Queensland Competition Authority Act 1997 (Qld)

Queensland Competition Authority Act 1997

An Act to establish the Queensland Competition Authority, give it powers and functions about pricing practices relating to monopoly business activities, competitive neutrality and access to services, and for other purposes

Part 1    Preliminary

Division 1 Introduction

1   Short title

This Act may be cited as the Queensland Competition Authority Act 1997.

2   Commencement

Parts 3 and 4 commence on 1 July 1997.

3   Act binds State

(1)This Act binds the State.

(2)Nothing in this Act makes the State liable to be prosecuted for an offence.

4   Extraterritorial operation

It is the intention of Parliament that this Act should apply, as far as possible, to—

(a)land and things outside Queensland (whether in or outside Australia); and

(b)acts, transactions and things done, entered into or happening outside Queensland (whether in or outside Australia); and

(c)land, things, acts and transactions (wherever situated, done, entered into or happening) that would, apart from this Act, be governed or otherwise affected by the law of another jurisdiction (including a foreign country).

Division 2 Interpretation

5   Dictionary

The dictionary in schedule 2 defines particular words in this Act.

6   [Repealed]

Part 2    Queensland Competition Authority

Division 1 Establishment of authority

7   Establishment of authority

The Queensland Competition Authority is established.

8   Legal status of authority

The authority—

(a)is a body corporate; and

(b)has a common seal; and

(c)may sue and be sued in its corporate name.

9   Authority’s relationship with State

(1)The authority represents the State.

(2)Without limiting subsection (1), the authority has all the rights, privileges and immunities of the State.

Division 2 Functions and powers of authority

10   Authority’s functions

The authority’s functions are—

(a)to develop criteria, and, at the request of the Minister or on its own initiative, to revise the criteria or give information or advice to the Minister about the criteria, to be used by the Minister for deciding whether to declare the following—

(i)a government business activity or non-government business activity to be a monopoly business activity;

(ii)a candidate water supply activity to be a monopoly water supply activity; and

(b)to make recommendations to the Minister for the revocation of declarations of monopoly business activities made by the Minister; and

(c)to conduct investigations and report to the Minister about pricing practices relating to monopoly business activities; and

(d)to conduct price monitoring investigations in relation to monopoly business activities and report the results of the investigations to the Minister; and

(e)to advise government agencies about complying with the principle of competitive neutrality; and

(f)to receive, investigate and report on complaints about the alleged failures of government agencies to comply with the principle of competitive neutrality; and

(g)if directed by the Minister—under the direction, to investigate and report to the Minister on any matter relating to competition, industry or productivity; and

(h)to make recommendations to the Minister for the making or revocation of declarations of services under part 5; and

(i)to mediate to resolve access disputes; and

(j)if asked by the parties to access agreements—to mediate to resolve disputes under the agreements; and

(k)to conduct arbitration hearings for resolving access disputes; and

(l)if asked by the parties to access agreements—to arbitrate to resolve disputes under the agreements; and

(m)to conduct arbitration hearings about applications for arbitration under the Water Supply (Safety and Reliability) Act 2008, section 524(2); and

(n)to approve undertakings for services; and

(o)to monitor compliance with approved access undertakings; and

(p)to monitor compliance with water pricing determinations; and

(q)at the request of the Minister, or on its own initiative—to give information or advice to the Minister about—

(i)access codes or proposed access codes, or the contents of access codes or proposed access codes; or

(ii)water pricing determination codes or proposed water pricing determination codes, or the contents of water pricing determination codes or proposed water pricing determination codes; and

(r)to make distribution network codes, other than an initial distribution network code, under the Electricity Act 1994 and the Gas Supply Act 2003; and

(s)to monitor compliance with distribution network codes under the Electricity Act 1994 and the Gas Supply Act 2003; and

(t)to review particular decisions under the Electricity Act 1994; and

(u)if directed by the Minister—to monitor compliance by a government agency, or conduct arbitration hearings for resolving disputes about a government agency’s compliance, with a code of conduct the agency has agreed to abide by; and

(v)to perform other functions given to the authority under an Act, including, for example—

(i)performing a function or exercising a power delegated to it under an Act; or

(ii)doing an act it is directed to do under an Act; and

(w)to perform a function incidental to a function mentioned in paragraphs (a) to (v).

11   Authority’s powers

(1)The authority has all the powers of an individual and may, for example—

(a)enter into contracts; and

(b)acquire, hold, deal with and dispose of property; and

(c)appoint agents and attorneys; and

(d)engage consultants; and

(e)do anything else necessary or convenient to be done for, or in connection with, the performance of its functions.

(2)Without limiting subsection (1), the authority has the powers given to it under this or another Act.

(3)The authority may exercise its powers inside and outside Queensland, including outside Australia.

12   Directions by Minister about authority’s functions

(1)The authority is subject to the written directions of the Minister in performing its functions.

(2)Despite subsection (1), the authority is not subject to direction by the Minister—

(a)in relation to the conduct of any investigation by the authority (except as provided in subsection (3) and section 24); or

(b)in relation to the content of any report of the authority; or

(c)in performing its functions under part 5.

(3)For the conduct of an investigation by the authority, other than an investigation of a competitive neutrality complaint, the Minister may direct the authority to consult with a stated entity.

(4)The Minister must cause a copy of any direction to be gazetted within 14 days after it is given.

(5)Despite subsection (2), a direction by the Minister under section 10(g) must state how the investigation is to be conducted and, for that purpose, may apply all or stated provisions of part 6 to the investigation.

(6)To the extent the direction applies all or stated provisions of part 6, the part or stated provisions apply to the investigation.

13   Public availability of directions

(1)If the authority receives a direction from the Minister, the authority must ensure—

(a)a copy of the direction is available for public inspection within 14 days after receiving the direction; and

(b)a copy of the direction continues to be available for public inspection—

(i)for 2 years after it first became available for public inspection; or

(ii)if, in the period, a report of the authority containing details of the direction becomes available for public inspection—until the report becomes available for public inspection.

(2)Arrangements made for subsection (1) must include ensuring a copy of the direction is available for public inspection during office hours on business days at the authority’s office.

Part 3    Pricing practices relating to monopoly business activities

Division 1 Application of part

13A   What pt 3 is about

(1)This part is about—

(a)the declaration of monopoly business activities; and

(b)the investigation and reporting by the authority about pricing practices relating to monopoly business activities; and

(c)the conduct of price monitoring investigations by the authority in relation to monopoly business activities.

(2)This part applies generally to—

(a)government agencies; and

(b)other persons carrying on business activities involving services provided by means of facilities.

(3)The application of the part to an activity carried on by a local government entity depends on whether the activity is a significant business activity.

13B   Application of part to responsible local governments consisting of 2 or more local governments

(1)This section applies if the responsible local government for a local government entity consists of 2 or more local governments (the participants).

(2)If this part requires or permits something to be done by a responsible local government, the thing may be done by 1 or more of the participants for the responsible local government.

(3)If a provision of this part refers to a responsible local government doing something, the provision applies as if the provision referred to 1 or more of the participants for the responsible local government doing the thing for the responsible local government.

13C   Application of part to responsible local government for giving notices

(1)If this part requires or permits a notice to be given to a responsible local government and it consists of 2 or more local governments, the notice may be given to—

(a)if there is a nominated local government for the responsible local government—the nominated local government; or

(b)if the authority has requested notification of a nominated local government for the responsible local government but there is no nominated local government—any 1 of the local governments of which the responsible local government consists.

(2)A local government is the nominated local government for a responsible local government consisting of 2 or more local governments only if a written notice has been given to the authority in relation to the local government (the nominee) and the notice contains—

(a)the nominee’s name and address for receiving notices; and

(b)a signed statement by the other local governments that the nominee is authorised by them to receive notices under this part for all the local governments; and

(c)a signed statement by the nominee agreeing to be the local government authorised to receive notices under this Act for all the local governments.

(3)For subsection (1)(b), the authority may request notification of a nominated local government for the responsible local government by giving a notice to each local government of which the responsible local government consists asking that a written notice be given to the authority containing—

(a)the name, and address for receiving notices, of 1 of the local governments (also the nominee); and

(b)a signed statement by the other local governments that the nominee is authorised by them to receive notices under this Act for all the local governments; and

(c)a signed statement by the nominee agreeing to be the local government authorised to receive notices under this Act for all the local governments.

13D   Application of part to local government entities and responsible local governments that are the same person

(1)This section applies if—

(a)this part requires or permits something to be done by both a local government entity and the responsible local government for the entity; and

(b)the local government entity is not incorporated.

(2)The thing may be done by the local government entity or the responsible local government once and—

(a)if the thing is done by the local government entity—it is taken to have also been done by the responsible local government; or

(b)if the thing is done by the responsible local government—it is taken to have also been done by the local government entity.

13E   Application of part to local government entities and responsible local governments that are the same person for giving notices

(1)This section applies if—

(a)this part requires or permits a notice to be given to both a local government entity and the responsible local government for the entity; and

(b)the local government entity is not incorporated.

(2)The notice may be given to the local government entity or the responsible local government once and—

(a)if the notice is given to the local government entity—it is taken to have also been given to the responsible local government; or

(b)if the notice is given to the responsible local government—it is taken to have also been given to the local government entity.

Division 1A Criteria for declarations of monopoly business activities

14   Development of criteria for government business activities

Within 6 months after the commencement, the authority must—

(a)develop criteria for use by the Minister for deciding whether to declare a government business activity to be a monopoly business activity; and

(b)give written notice of the criteria to the Minister.

14A   Development of criteria for non-government business activities

Within 6 months after the commencement of this section, the authority must—

(a)develop criteria for use by the Minister for deciding whether to declare a non-government business activity to be a monopoly business activity; and

(b)give written notice of the criteria to the Minister.

15   Revision of, and advice about, criteria

(1)The authority must, if requested by the Minister, and may, on its own initiative—

(a)revise the criteria given to the Minister under section 14 or 14A, including the criteria as previously revised under this section; and

(b)give information or advice to the Minister about the current criteria.

(2)The authority must give written notice of any revised criteria to the Minister.

16   Consultation about criteria

In developing or revising criteria for this division, the authority may consult with anyone it considers appropriate.

17   Publication of criteria

The authority must publish the criteria and any revised criteria developed under this division in the gazette and in any other way it considers appropriate.

Division 2 Declarations of monopoly business activities

Subdivision 1 Government business activities

18   Request for declaration

The authority may ask the Minister—

(a)to declare a government business activity, whether or not it is a significant business activity, to be a monopoly business activity; and

Note—

For this part significant business activity is defined in the dictionary in schedule 2 as a significant business activity of a local government.

(b)if the declaration is made—to refer the monopoly business activity to it under section 23 or 23A.

18A   Notice of requests relating to significant business activities

(1)This section applies if the authority makes a request under section 18(a) relating to a significant business activity.

(2)The authority must give written notice of the request to the following, including details of the authority’s reasons for making it—

(a)the local government entity carrying on the activity;

(b)the responsible local government for the entity.

18B   Requests by local government entities and responsible local governments

(1)A responsible local government for a local government entity may ask the Minister—

(a)to declare a government business activity that is a significant business activity to be a monopoly business activity; and

(b)if the declaration is made—to refer the monopoly business activity to the authority under section 23 or 23A.

(2)The responsible local government must give the authority a copy of the request.

19   Declaration by Minister

(1)The Minister may declare a government business activity to be a monopoly business activity.

(2)The declaration must be made by gazette notice.

(3)In deciding whether to make a declaration, the Minister must have regard to—

(a)the current criteria given to the Minister by the authority for the purpose; and

(b)any information or advice about the current criteria given to the Minister by the authority.

(4)Also, in deciding whether to make a declaration about a government business activity that is a significant business activity, the Minister must consult with the local government entity carrying on the activity and the responsible local government for the entity.

(5)For a consultation under subsection (4), the Minister must—

(a)notify the responsible local government and the local government entity of the Minister’s intention to make a declaration about the significant business activity; and

(b)give the responsible local government and the local government entity 90 days to make submissions to the Minister about the intended declaration.

(6)A declaration must identify the business activity by reference to the government agency carrying on the activity.

(7)The Minister may make a declaration whether or not a request for the declaration is made by the authority.

(8)A declaration continues in operation until it is revoked.

20   Declaration by regulation

(1)A regulation may declare a government business activity to be a monopoly business activity.

(2)A declaration must identify the business activity by reference to the government agency carrying on the activity.

21   Public availability of requests

The authority must—

(a)keep a list of requests made during the preceding 2 years—

(i)by the authority under section 18; and

(ii)by responsible local governments under section 18B, of which the authority has been given a copy under section 18B(2); and

(b)ensure a copy of the list is available for public inspection during office hours on business days at the authority’s office.

Subdivision 2 Non-government business activities

21A   Declaration by Minister

(1)The Minister may declare a non-government business activity to be a monopoly business activity.

(2)The declaration must be made by gazette notice.

(3)In deciding whether to make the declaration, the Minister must—

(a)have regard to—

(i)the relevant declaration criteria; and

(ii)any information or advice about the criteria given to the Minister by the authority; and

(b)consult with the person carrying on the activity.

(4)A declaration must identify the non-government business activity by reference to the person carrying on the activity.

(5)A declaration continues in operation until it is revoked.

21B   Declaration by regulation

(1)A regulation may declare a non-government business activity to be a monopoly business activity.

(2)A declaration must identify the non-government business activity by reference to the person carrying on the activity.

21C   Effect on declaration of change of person carrying on activity

(1)This section applies if—

(a)a non-government business activity is declared to be a monopoly business activity under this subdivision; and

(b)after the declaration is made, the person carrying on the activity changes.

(2)The change in the person carrying on the monopoly business activity does not affect the validity of the declaration.

(3)The declaration is taken to identify the monopoly business activity by reference to the new person carrying on the activity.

Division 2A Revocation of declarations made by the Minister

21D   Recommendation to revoke

(1)The authority may recommend to the Minister that a declaration of a monopoly business activity made by the Minister under section 19 or 21A (a part 3 Ministerial declaration) be revoked.

(2)Without limiting subsection (1), a relevant entity for a monopoly business activity may ask the authority to recommend the revocation of the part 3 Ministerial declaration.

(3)The Minister may ask the authority to consider whether a part 3 Ministerial declaration should be revoked by the Minister.

(4)The authority may recommend the revocation of a part 3 Ministerial declaration only if the authority is satisfied that revocation would be appropriate having regard to the relevant declaration criteria.

(5)In this section—

relevant entity, for a monopoly business activity, means any of the following—

(a)the government agency or other person carrying on the activity;

(b)if the activity is a significant business activity—the responsible local government for the local government entity carrying on the activity.

21E   Power of authority to conduct investigation

For making a revocation recommendation, the authority may conduct an investigation about the monopoly business activity.

21F   Notice of investigation

(1)Before starting an investigation under this division, the authority must give reasonable notice of the investigation to—

(a)the government agency or other person carrying on the monopoly business activity; and

(b)if the activity is a significant business activity—the responsible local government for the local government entity carrying on the activity; and

(c)any other person the authority considers appropriate.

(2)The notice must state the following—

(a)the authority’s intention to conduct the investigation;

(b)the subject matter of the investigation;

(c)an invitation to interested persons to make written submissions to the authority on the subject matter within a reasonable time stated in the notice;

(d)the authority’s address.

21G   Procedures for investigation

Part 6 applies to an investigation under this division.

21H   Revocation

(1)The Minister may revoke a part 3 Ministerial declaration only if the Minister is satisfied that revocation would be appropriate having regard to the relevant declaration criteria.

(2)A part 3 Ministerial declaration may be revoked whether or not a revocation recommendation has been made.

(3)If the Minister receives a revocation recommendation, the Minister must either revoke the part 3 Ministerial declaration or decide not to revoke the declaration.

21I   Notice of decision

(1)The Minister must publish in the gazette—

(a)notice of a decision to revoke, or not to revoke, a part 3 Ministerial declaration; and

(b)the reasons for the decision.

(2)Also, as soon as practicable after making the decision, the Minister must give a written notice stating the decision and reasons for the decision to—

(a)the government agency or other person carrying on the activity; and

(b)if the business activity is a significant business activity—the responsible local government for the local government entity carrying on the activity; and

(c)the authority.

21J   When revocation takes effect

A decision of the Minister to revoke a part 3 Ministerial declaration takes effect on—

(a)the day notice of the decision is published in the gazette; or

(b)if a later day of effect is stated in the notice—the later day.

Division 3 Investigations about monopoly business activities

22   Meaning of price monitoring investigation

A price monitoring investigation, in relation to a monopoly business activity, means an ongoing investigation in which the authority—

(a)monitors pricing practices relating to the activity; and

(b)reports periodically to the Minister about the results of the investigation.

23   Investigations about pricing practices

(1)The Minister may refer a monopoly business activity to the authority for an investigation about the pricing practices relating to the activity.

(2)In deciding whether to refer a monopoly business activity that is a significant business activity or non-government business activity to the authority under subsection (1), the Minister must consult with—

(a)for a significant business activity—the local government entity carrying on the activity and the responsible local government for the entity; or

(b)for a non-government business activity—the person carrying on the activity.

(3)The authority must conduct the investigation.

(4)The Minister may, by written notice given to the authority, withdraw or amend the reference at any time before receiving the authority’s report of the results of the investigation.

(5)A notice under subsection (4) must state the reasons for the withdrawal or amendment of the reference.

23A   Price monitoring investigations

(1)The Minister may refer a monopoly business activity to the authority for a price monitoring investigation.

(2)In deciding whether to refer a monopoly business activity that is a significant business activity or non-government business activity to the authority under subsection (1), the Minister must consult with—

(a)for a significant business activity—the local government entity carrying on the activity and the responsible local government for the entity; or

(b)for a non-government business activity—the person carrying on the activity.

(3)In referring a monopoly business activity to the authority under subsection (1), the Minister must give the authority a written notice stating—

(a)the period for which the price monitoring investigation is to be conducted; and

(b)how often the authority must periodically report the results of the investigation to the Minister.

(4)The authority must conduct the investigation.

(5)Unless the reference is earlier withdrawn or the period of the investigation is amended under subsection (6), the reference ends at the end of the period stated in the notice under subsection (3)(a).

(6)The Minister may, by written notice given to the authority, withdraw or amend the reference at any time before it ends.

(7)A notice under subsection (6) must state the reasons for the withdrawal or amendment of the reference.

24   Directions of Minister for investigation

(1)In referring a monopoly business activity to the authority for an investigation, the Minister may direct the authority to do any or all of the following—

(a)to make a draft report available to the public, or a stated entity, during the investigation;

(b)to consider stated matters when conducting the investigation;

(c)to give a report of the results of the investigation to the Minister within a stated period;

(d)to make a recommendation to the Minister about a stated matter, including, for example, if the activity was referred to the authority under section 23(1), a recommendation about—

(i)whether a price monitoring investigation should be conducted in relation to the activity; or

(ii)if a price monitoring investigation were to be conducted in relation to the activity, what the nature of the investigation should be, including, for example, the matters mentioned in section 23A(3)(a) and (b).

(2)The authority must comply with a direction.

25   Notice of investigation

(1)Before starting an investigation under this division, the authority must give reasonable notice of the investigation.

(2)The notice must be published on the authority’s website.

(3)The notice must be given to—

(a)the government agency or other person carrying on the monopoly business activity; or

(b)if the investigation relates to a monopoly business activity that is a significant business activity—

(i)the local government Minister; and

(ii)the responsible local government for the local government entity carrying on the activity.

(4)The authority may also give the notice to anyone else it considers appropriate.

(5)The notice must—

(a)state the authority’s intention to conduct the investigation; and

(b)state the subject matter of the investigation; and

(c)invite interested persons to make written submissions to the authority on the subject matter within a reasonable time stated in the notice; and

(d)state the authority’s address.

26   Matters to be considered by authority for investigation

(1)In conducting an investigation under this division, the authority must have regard to the following matters—

(a)the need for efficient resource allocation;

(b)the need to promote competition;

(c)the protection of consumers from abuses of monopoly power;

(d)in relation to the goods or services to which the monopoly business activity relates—

(i)the cost of providing the goods or services in an efficient way, having regard to relevant interstate and international benchmarks; and

(ii)the actual cost of providing the goods or services; and

(iii)the standard of the goods or services, including quality, reliability and safety;

(e)the appropriate rate of return on assets;

(f)the effect of inflation;

(g)the impact on the environment of prices charged by the government agency or other person carrying on the monopoly business activity;

(h)considerations of demand management;

(i)social welfare and equity considerations including community service obligations, the availability of goods and services to consumers and the social impact of pricing practices;

(j)the need for pricing practices not to discourage socially desirable investment or innovation by government agencies and persons carrying on non-government business activities;

(k)legislation and government policies relating to ecologically sustainable development;

(l)legislation and government policies relating to occupational health and safety and industrial relations;

(m)economic and regional development issues, including employment and investment growth;

(n)if the monopoly business activity is a government business activity—any directions given by the government to the government agency by which the monopoly business activity is carried on.

(2)If the investigation relates to a monopoly business activity involving the supply of water, the authority must have regard to water pricing determinations.

(3)Subsections (1) and (2) do not limit the matters to which the authority may have regard in conducting an investigation.

27   Procedures for investigations

Part 6 applies to an investigation under this division.

28   Ending of authority’s jurisdiction for investigation

(1)The authority’s jurisdiction to continue an investigation about a monopoly business activity ends if—

(a)the activity stops being a monopoly business activity; or

(b)the reference of the activity to the authority by the Minister is withdrawn, or otherwise ends under section 23A.

(2)If the authority’s jurisdiction to continue an investigation ends, the authority may report the results of the investigation, up to the time its jurisdiction ended, to—

(a)the Minister; and

(b)if the monopoly business activity is a non-government business activity—the person carrying on the activity.

Division 4 Reports of authority about investigations

29   Application of division

This division applies to—

(a)the authority for reporting the results of an investigation conducted by it under division 3, including the periodic reporting of the results of a price monitoring investigation; and

(b)a report of the authority of the results of the investigation.

30   Authority to report to Minister

(1)The authority must report the results of an investigation to the Minister.

(2)Also, if the investigation is a price monitoring investigation, the authority must periodically report the results of the investigation to the Minister as required under the notice given to the authority under section 23A(3).

(3)If the investigation relates to a monopoly business activity that is a significant business activity, the authority must, on the same day as it reports the results of the investigation to the Minister, give a copy of the report to—

(a)the local government Minister; and

(b)the responsible local government for the local government entity carrying on the activity.

31   Authority to give copy of report to government agency or other person carrying on activity

On the same day as it reports the results of an investigation to the Minister, the authority must give a copy of the report to the government agency or other person carrying on the monopoly business activity.

32   Multiple reports

For reporting the results of an investigation, the authority may make more than 1 report.

33   Contents of report

(1)The authority must include in a report—

(a)if the investigation is not a price monitoring investigation—its recommendations about the pricing practices relating to the monopoly business activity; and

(b)any recommendations made by the authority as required under a direction given to the authority by the Minister for the investigation; and

(c)the reasons for its recommendations; and

(d)if the investigation is a price monitoring investigation—the information obtained by the authority about the pricing practices relating to the monopoly business activity; and

(e)if the Minister gave a direction to the authority for the investigation—details of the direction.

(2)The authority may include in a report anything else about the investigation it considers appropriate.

34   Public availability of reports

(1)The authority must make a copy of a report available for public inspection as soon as practicable after giving the report to the Minister.

(2)Arrangements made for subsection (1) must include ensuring a copy of the report is available for public inspection during office hours on business days at the authority’s office.

(3)The authority may publish a report that is available for public inspection.

(4)Subsection (1) applies subject to section 35.

35   Delaying public availability of reports

(1)The authority may decide that, in the special circumstances of the case, a report, or a part of a report, must not be made available for public inspection for a stated period.

(2)The decision and the reasons for it must be stated in the report.

(3)Section 34(1) applies to the report, or part of the report, to which the decision relates as if the report were given to the Minister at the end of the period mentioned in subsection (1).

36   Decision of Minister about particular recommendations in report—monopoly business activity that is a government business activity, other than a significant business activity

(1)This section applies to recommendations about pricing practices, or price monitoring recommendations, contained in a report relating to a monopoly business activity that is a government business activity, other than a significant business activity.

(2)Within 90 days after the Minister receives a report, the Minister must—

(a)accept (with or without qualification), or reject, the recommendations; or

(b)accept (with or without qualification) some of the recommendations and reject the other recommendations.

(3)Before making a decision under subsection (2) about a monopoly business activity involving the supply of water, the Minister must have regard to water pricing determinations.

(4)As soon as practicable after making a decision under subsection (2), the Minister must notify the decision and the reasons for the decision by gazette notice.

(5)In this section—

price monitoring recommendations means recommendations about—

(a)whether a price monitoring investigation should be conducted in relation to the monopoly business activity; or

(b)what the nature of a future price monitoring investigation in relation to the activity should be.

36A   Decision of responsible local government about particular recommendations in report—monopoly business activity that is a significant business activity

(1)This section applies to recommendations about pricing practices contained in a report relating to a monopoly business activity that is a significant business activity.

(2)Within 90 days after the responsible local government for the local government entity carrying on the activity receives the report, the responsible local government must, by resolution—

(a)accept, with or without qualification, or reject, the recommendations; or

(b)accept, with or without qualification, some of the recommendations and reject the other recommendations.

(3)Before making a decision under subsection (2) about a significant business activity involving the supply of water, the responsible local government must have regard to water pricing determinations.

(4)As soon as practicable after making a decision under subsection (2), the responsible local government must—

(a)notify the decision and the reasons for the decision by gazette notice; and

(b)give a copy of the decision and the reasons for the decision to—

(i)the Minister; and

(ii)the authority; and

(iii)the local government Minister; and

(iv)the local government entity carrying on the activity.

36B   Response to report of person carrying on activity—monopoly business activity that is a non-government business activity

(1)This section applies to a report relating to a monopoly business activity that is a non-government business activity.

(2)Within 90 days after receiving the report, the person carrying on the activity must give the authority the person’s written response to the report, including details of any action the person will or may take in response to each recommendation contained in the report.

Maximum penalty—500 penalty units.

37   Referral of particular accepted recommendations to responsible Minister—monopoly business activity that is government business activity

(1)This section applies if the Minister accepts recommendations about pricing practices relating to a monopoly business activity that is a government business activity.

(2)The Minister must refer the recommendations, and any qualifications on which the recommendations are accepted, to the responsible Minister for the government agency carrying on the monopoly business activity.

37A   Register of recommendations, and decisions or responses, relating to monopoly business activities involving the supply of water

(1)The authority must keep a register of—

(a)the authority’s recommendations about pricing practices contained in reports of the results of investigations about monopoly business activities involving the supply of water; and

(b)whichever of the following applies in relation to the recommendations—

(i)if the activities are government business activities other than significant business activities—the Minister’s decisions under section 36(2);

(ii)if the activities are significant business activities—the decisions of the responsible local governments under section 36A(2);

(iii)if the activities are non-government business activities—the responses of the persons carrying on the activities.

(2)The register must include, for each recommendation, details of the following—

(a)the name of the government agency or other person carrying on the monopoly business activity;

(b)the monopoly business activity;

(c)the reasons for the recommendation;

(d)the day the report in which the recommendation is made is to be, or was, given to—

(i)if the activity is a significant business activity—the responsible local government for the local government entity carrying on the activity; or

(ii)otherwise—the Minister.

(3)The register must also include, for each decision mentioned in subsection (1)(b), details of the following—

(a)the day the decision was made;

(b)the day the decision is to be, or was, notified under section 36(4) or 36A(4).

Division 5 Miscellaneous

37B   Authority may give advice about pricing practices

(1)The authority may, if requested by a government agency or another person carrying on a monopoly business activity, give the person advice about pricing practices relating to the activity.

(2)Advice given under this section is not binding on any person.

Part 4    Competitive neutrality

Division 1 Preliminary

38   Principle of competitive neutrality

(1)The principle of competitive neutrality is the principle that a government agency carrying on a significant business activity should not enjoy a competitive advantage over competitors or potential competitors in a particular market solely because the agency’s activities are not subject to 1 or more of the following—

(a)full Commonwealth or State taxes or tax equivalent systems;

(b)debt guarantee fees directed towards offsetting the competitive advantages of government guarantees;

(c)procedural or regulatory requirements of the Commonwealth, the State or a local government on conditions equivalent to the conditions to which a competitor or potential competitor may be subject, including, for example, requirements about the protection of the environment and about planning and approval processes.

(2)In this section—

significant business activity see section 39(3).

39   Significant business activities

(1)The Minister may, on the recommendation of the authority, decide that a business activity carried out by a government agency other than a government owned corporation is a significant business activity.

(2)The Minister must give written notice of the decision to the government agency.

(3)A significant business activity is a business activity that—

(a)the Minister decides is a significant business activity under subsection (1); or

(b)is carried out by a government owned corporation.

(4)The authority must publish a list of all significant business activities on its website.

Division 2 Competitive neutrality complaints

40   Meaning of competitive neutrality complaint

A competitive neutrality complaint is a complaint about the alleged failure of a government agency to comply with the principle of competitive neutrality.

41   Making competitive neutrality complaint

(1)A person may make a competitive neutrality complaint to the authority if the person is, or could be—

(a)a person in competition with a government agency in a particular market; or

(b)a person adversely affected by a competitive advantage the person alleges is enjoyed by the government agency.

(2)The complaint must—

(a)be in writing; and

(b)contain details of the alleged failure of a government agency to comply with the principle of competitive neutrality; and

(c)include sufficient details to show—

(i)the person and the government agency are, or could be, in competition in a particular market; or

(ii)how the person is, or could be, adversely affected by the competitive advantage the person alleges is enjoyed by the government agency; and

(d)include sufficient details to show whether the person has made a genuine, but unsuccessful, attempt to resolve the subject matter of the complaint with the government agency.

42   Further information to support complaint

(1)The authority may, by written notice, require a complainant to give the authority further stated information about the competitive neutrality complaint within the reasonable period stated in the notice.

(2)The stated information must be information that the authority considers is necessary and reasonable to help the authority decide whether or not to investigate the complaint.

Division 3 Dealing with competitive neutrality complaints

43   Guideline for dealing with complaints

(1)The Minister may approve a guideline that sets out the process for dealing with competitive neutrality complaints.

(2)The authority must—

(a)publish the approved guideline on its website; and

(b)subject to this part, comply with the approved guideline when dealing with a competitive neutrality complaint.

44   Requirement to investigate complaint

The authority must investigate a competitive neutrality complaint under division 4 unless the authority refuses to deal with, or to continue to deal with, the complaint under section 45.

45   Refusing complaint

(1)The authority may refuse a competitive neutrality complaint if—

(a)the authority believes the complainant is not, and could not be, in competition in a particular market with the government agency the subject of the complaint; or

(b)the authority believes the complainant has not made a genuine attempt to resolve the complaint with the government agency the subject of the complaint; or

(c)the complainant failed, without reasonable excuse, to comply with a notice, given to the complainant under section 42, requiring the complainant to give stated information to the authority; or

(d)the authority believes the complaint is frivolous or vexatious.

(2)Within 14 days after deciding to refuse the complaint, the authority must give the complainant a notice that states the decision and the reasons for the decision.

(3)In this section—

refuse, in relation to a competitive neutrality complaint, means refuse to deal with, or continue to deal with, the complaint.

Division 4 Investigation of competitive neutrality complaints

46   Application of division

This division applies if the authority is required to investigate, under this division, a competitive neutrality complaint made against a government agency.

47   Notice of investigation

(1)The authority must give written notice of the requirement for the investigation to—

(a)the government agency; and

(b)the responsible Minister for the government agency; and

(c)the complainant.

(2)The notice must be given a reasonable period before the authority starts the investigation.

(3)The authority may also give notice of the investigation to any other person the authority considers appropriate.

48   Power to require certain information from government agency

(1)The authority may require the government agency, by written notice given to the agency, to—

(a)give the authority stated information relevant to the complaint within a stated period; or

(b)produce a stated document relevant to the complaint to the authority at a stated time and place.

(2)The government agency must comply with the notice unless—

(a)the stated information or document is subject to legal professional privilege, parliamentary privilege or public interest immunity; or

(b)giving the stated information or document to the authority is prohibited under an Act; or

(c)giving the stated information or document to the authority could reasonably be expected to prejudice the investigation of a contravention, or possible contravention, of a law.

(3)The government agency is not liable for a breach of a contract, confidence or duty for giving the authority a copy of the stated information, or producing the stated document to the authority, in compliance with the notice.

49   Requirement for report about investigation

(1)After the authority completes the investigation, the authority must—

(a)prepare a written report about the investigation and the results of the investigation; and

(b)give the report to the Minister.

(2)The authority may recommend in the report that the report, or part of it, not be made available to the public until the end of a stated period.

(3)The authority must include the reasons for the recommendation in the report.

50   Minister’s response to report about investigation

As soon as practicable after receiving the report about the investigation from the authority, the Minister must give the authority a response to the report.

51   Publication of report about investigation

(1)As soon as practicable after receiving the Minister’s response to its report about the investigation, the authority must publish the report on its website.

(2)However, if the Minister accepted a recommendation under section 49 to delay publication of the report, or part of it, the authority must not publish the report or part on its website until the end of the period stated in the recommendation.

Division 5 General

52   Confidentiality requests

(1)This section applies if a person believes that the disclosure of information given, or to be given, to the authority under this part is likely to damage the person’s commercial activities.

(2)The person may give the authority a written notice (a confidentiality request) that—

(a)states the person’s belief; and

(b)asks the authority not to disclose the information to an external entity without the person’s consent.

(3)The authority may accept the person’s confidentiality request if the authority is satisfied—

(a)the person’s belief is justified; and

(b)disclosure of the information would not be in the public interest.

(4)If the authority accepts the person’s confidentiality request, the authority must not—

(a)include the information in a report about the investigation of a competitive neutrality complaint; or

(b)otherwise disclose the information to an external entity.

(5)Subsection (4) does not apply if the information is included in a report, or otherwise disclosed to an external entity, in a way that could not reasonably be expected to identify the person.

(6)In this section—

commercial activities means activities conducted on a commercial basis.

contractor, of the authority, means a person (other than a member or employee of the authority) who performs services for the authority—

(a)under a contract between the person and the authority; or

(b)under an arrangement between the authority and another person.

external entity, in relation to information, means an entity other than—

(a)the Minister; or

(b)if the information relates to a government agency—the responsible Minister for the government agency; or

(c)a member of the authority; or

(d)a member of the authority’s staff, or a contractor of the authority, who would ordinarily receive the information in administering, or performing a function under, this Act; or

(e)if the information relates to a local government—the local government.

information includes a document.

person includes a government agency.

53   [Repealed]

54   [Repealed]

55   [Repealed]

56   [Repealed]

57   [Repealed]

58   [Repealed]

59   [Repealed]

60   [Repealed]

61   [Repealed]

62   [Repealed]

63   [Repealed]

64   [Repealed]

65   [Repealed]

66   [Repealed]

67   [Repealed]

68   [Repealed]

69   [Repealed]

Division 6 [Repealed]

69A   [Repealed]

69B   [Repealed]

69C   [Repealed]

69D   [Repealed]

Part 5    Access to services

Division 1 Preliminary

69E   Object of pt 5

The object of this part is to promote the economically efficient operation of, use of and investment in, significant infrastructure by which services are provided, with the effect of promoting effective competition in upstream and downstream markets.

70   Meaning of facility

(1)Facility includes—

(a)rail transport infrastructure; and

(b)port infrastructure; and

(c)electricity, petroleum, gas or GHG stream transmission and distribution infrastructure; and

(d)water and sewerage infrastructure, including treatment and distribution infrastructure.

(2)In this section—

GHG stream see the Greenhouse Gas Storage Act 2009, section 12.

71   Meaning of market

(1)A market is a market in Australia or a foreign country.

(2)If market is used in relation to goods or services, it includes a market for—

(a)the goods or services; and

(b)other goods or services that are able to be substituted for, or are otherwise competitive with, the goods or services mentioned in paragraph (a).

72   Meaning of service

(1)Service is a service provided, or to be provided, by means of a facility and includes, for example—

(a)the use of a facility (including, for example, a road or railway line); and

(b)the transporting of people; and

(c)the handling or transporting of goods or other things; and

(d)a communications service or similar service.

(2)However, service does not include—

(a)the supply of goods (except to the extent the supply is an integral, but subsidiary, part of the service); or

(b)the use of intellectual property or a production process (except to the extent the use is an integral, but subsidiary, part of the service); or

(c)a service—

(i)provided, or to be provided, by means of a facility for which a decision of the Australian Competition and Consumer Commission, approving a competitive tender process under the Competition and Consumer Act 2010 (Cwlth), section 44PA, is in force; and

(ii)that was stated under section 44PA(2) of that Act in the application for the approval.

(3)Subsections (1) and (2) apply only for this part.

73   References to facilities

In this part, a reference to a facility in association with a reference to a service or part of a service is a reference to the facility used, or to be used, to provide the service or part of the service.

74   Application of part to partnerships and joint ventures

(1)This section applies if an access provider of a service is a partnership or joint venture consisting of 2 or more entities (the participants).

(2)If this part requires or permits something to be done by an access provider, the thing may be done by 1 or more of the participants for the access provider.

(3)If a provision of this part refers to an access provider bearing any costs, the provision applies as if the provision referred to any of the participants bearing any costs.

(4)If a provision of this part refers to an access provider doing something, the provision applies as if the provision referred to 1 or more of the participants doing the thing for the access provider.

(5)Subsection (6) applies if—

(a)a provision of this part requires an access provider to do something, or prohibits an access provider from doing something; and

(b)a contravention of the provision is an offence.

(6)The provision mentioned in subsection (5) applies as if a reference to the access provider were a reference to any person responsible for the day-to-day management and control of the access provider.

(7)Subsection (8) applies if—

(a)a provision of this part requires an access provider to do something, or prohibits an access provider from doing something; and

(b)a contravention of the provision is not an offence.

(8)The provision mentioned in subsection (7) applies as if a reference to the access provider were a reference to each participant and to any other person responsible for the day-to-day management and control of the access provider.

75   Application of Act to authority for purposes of giving notices to owner

(1)If this Act requires or permits a notice to be given to the owner of a facility or service by the authority and there is more than 1 owner of the facility or service, the notice may be given to—

(a)if there is a nominated owner for the facility or service—the nominated owner; or

(b)if the authority has requested notification of a nominated owner for the facility or service but there is no nominated owner—any 1 of the owners.

(2)An owner is the nominated owner, for a facility or service for which there is more than 1 owner, only if a written notice has been given to the authority in relation to the owner (the nominee) and the notice contains—

(a)the nominee’s name and address for receiving notices; and

(b)a signed statement by the other owners that the nominee is authorised by them to receive notices under this Act for all the owners; and

(c)a signed statement by the nominee agreeing to be the owner authorised to receive notices under this Act for all the owners.

(3)For subsection (1)(b), the authority may request notification of a nominated owner, for a facility or service for which there is more than 1 owner, by giving a notice to each owner whose name and address is known to the authority asking that a written notice be given to the authority containing—

(a)the name, and address for receiving notices, of 1 owner (also the nominee); and

(b)a signed statement by the other owners that the nominee is authorised by them to receive notices under this Act for all the owners; and

(c)a signed statement by the nominee agreeing to be the owner authorised to receive notices under this Act for all the owners.

75A   Application of Act to authority for purposes of giving notices to operator

(1)If this Act requires or permits a notice to be given to the operator of a facility or service by the authority and there is more than 1 operator of the facility or service, the notice may be given to—

(a)if there is a nominated operator for the facility or service—the nominated operator; or

(b)if the authority has requested notification of a nominated operator for the facility or service but there is no nominated operator—any one of the operators.

(2)An operator is the nominated operator, for a facility or service for which there is more than 1 operator, only if a written notice has been given to the authority in relation to the operator (the nominee) and the notice contains—

(a)the nominee’s name and address for receiving notices; and

(b)a signed statement by the other operators that the nominee is authorised by them to receive notices under this Act for all the operators; and

(c)a signed statement by the nominee agreeing to be the operator authorised to receive notices under this Act for all the operators.

(3)For subsection (1)(b), the authority may request notification of a nominated operator, for a facility or service for which there is more than 1 operator, by giving a notice to each operator whose name and address is known to the authority asking that a written notice be given to the authority containing—

(a)the name, and address for receiving notices, of 1 operator (also the nominee); and

(b)a signed statement by the other operators that the nominee is authorised by them to receive notices under this Act for all the operators; and

(c)a signed statement by the nominee agreeing to be the operator authorised to receive notices under this Act for all the operators.

Division 2 Declarations of services

Subdivision 1 Criteria for declaration recommendations and making of declarations

76   Access criteria

(1)This section sets out the matters (the access criteria) about which—

(a)the authority is required to be satisfied for recommending that a service be declared by the Minister; and

(b)the Minister is required to be satisfied for declaring a service.

(2)The access criteria are as follows—

(a)that access (or increased access) to the service, on reasonable terms and conditions, as a result of a declaration of the service would promote a material increase in competition in at least 1 market (whether or not in Australia), other than the market for the service;

(b)that the facility for the service could meet the total foreseeable demand in the market—

(i)over the period for which the service would be declared; and

(ii)at the least cost compared to any 2 or more facilities (which could include the facility for the service);

(c)that the facility for the service is significant, having regard to its size or its importance to the Queensland economy;

(d)that access (or increased access) to the service, on reasonable terms and conditions, as a result of a declaration of the service would promote the public interest.

(3)For subsection (2)(b), if the facility for the service is currently at capacity, and it is reasonably possible to expand that capacity, the authority and the Minister may have regard to the facility as if it had that expanded capacity.

(4)Without limiting subsection (2)(b), the cost referred to in subsection (2)(b)(ii) includes all costs associated with having multiple users of the facility for the service, including costs that would be incurred if the service were declared.

(5)In considering the access criterion mentioned in subsection (2)(d), the authority and the Minister must have regard to the following matters—

(a)if the facility for the service extends outside Queensland—

(i)whether access to the service provided outside Queensland by means of the facility is regulated by another jurisdiction; and

(ii)the desirability of consistency in regulating access to the service;

(b)the effect that declaring the service would have on investment in—

(i)facilities; and

(ii)markets that depend on access to the service;

(c)the administrative and compliance costs that would be incurred by the provider of the service if the service were declared;

(d)any other matter the authority or Minister considers relevant.

Subdivision 2 Recommendation by authority for declaration

77   Requests about declarations

(1)A person may ask the authority to recommend that a particular service be declared by the Minister.

(2)The Minister may ask the authority to consider whether a particular service should be declared by the Minister.

(3)A request must be in the form approved by the authority.

(4)At any time before the authority makes a recommendation about a request, the applicant may—

(a)withdraw the request; or

(b)with the written agreement of the authority—amend the request.

78   Notice of request

(1)This section applies if the applicant for a request is not the owner of the service.

(2)The authority must—

(a)immediately tell the owner of the service that the authority has received the request; and

(b)if the request is later withdrawn or amended by the applicant—immediately tell the owner of the withdrawal, or immediately give details of the amendment to the owner.

79   Making recommendation

(1)After receiving a request, the authority must recommend to the Minister that—

(a)the service be declared; or

(b)part of the service, that is itself a service, be declared; or

(c)the service not be declared.

(2)Before making the recommendation, the authority may consult with any person it considers appropriate.

(3)The authority must publish the recommendation and the reasons for the recommendation in the way the authority considers appropriate.

(4)If the authority makes a recommendation that a service, or part of a service, be declared, the authority also must recommend the period for which the declaration should operate.

(5)Unless the request is made by the Minister, the authority must give a copy of the request to the Minister with the recommendation.

79A   Period for making recommendation

(1)The authority must use its best endeavours to make a recommendation under section 79 within 6 months from the day the authority receives the request.

(2)However, the 6 month period mentioned in subsection (1) does not include any of the following—

(a)if the authority conducts an investigation for making the recommendation and gives a notice under section 185 to a person requiring the person to give information or produce a document for the investigation, a day in the period—

(i)starting on the day the notice is given to the person; and

(ii)ending on the day the person complies with the notice;

(b)if the authority publishes a document about the recommendation and invites persons to make submissions on the document to the authority within a stated period—a day in the period for making submissions stated by the authority.

(3)The authority must publish a notice on its website, while the authority is considering the making of the recommendation, stating—

(a)the day the 6 month period mentioned in subsection (1) started or will start; and

(b)the day the period will end; and

(c)for a day not included in the period under subsection (2)—the reason the day is not included in the period.

(4)If the authority fails to make the recommendation within the 6 month period mentioned in subsection (1), it must, as soon as practicable after the period ends—

(a)prepare a written notice stating—

(i)the reasons for the authority’s failure; and

(ii)details about the action the authority proposes to take to make the recommendation as soon as reasonably practicable; and

(b)publish the notice on its website; and

(c)give a copy of the notice to—

(i)the applicant for the request; and

(ii)if the request was not made by the Minister—the Minister.

80   Factors affecting making of recommendation

(1)The authority must recommend that a service be declared by the Minister if the authority is satisfied about all of the access criteria for the service.

(2)The authority must recommend that a service not be declared by the Minister if the authority is not satisfied about all of the access criteria for the service.

(3)Despite subsection (1), the authority may recommend that a service not be declared by the Minister if the authority considers the request was not made in good faith or is frivolous.

(4)Subsection (3) does not apply to a request made by the Minister.

(5)Despite subsections (1) and (2), the authority may recommend that part of a service be declared by the Minister if the authority is satisfied about all of the access criteria for the part of the service.

Subdivision 3 Investigations about services

81   Power of authority to conduct investigation

For making a recommendation under subdivision 2, the authority may conduct an investigation about the service.

82   Notice of investigation

(1)Before starting an investigation under this subdivision, the authority must give reasonable notice of the investigation to—

(a)the owner of the service; and

(b)any other person the authority considers appropriate.

(2)The notice must—

(a)state the authority’s intention to conduct the investigation; and

(b)state the name of the owner of the service; and

(c)state the subject matter of the investigation; and

(d)invite the person to whom the notice is given to make written submissions to the authority on the subject matter within a reasonable time stated in the notice; and

(e)state the authority’s address.

83   Procedures for investigation

Part 6 applies to an investigation under this subdivision.

Subdivision 4 Declaration by Minister

84   Making declaration

(1)On receiving a declaration recommendation, the Minister must do 1 of the following—

(a)declare the service;

(b)declare part of the service, that is itself a service;

(c)decide not to declare the service.

(2)If the service is provided by means of a facility owned by a local government entity, the Minister must consult with the local government entity, and the responsible local government for the entity, before doing anything under subsection (1).

(3)For consulting under subsection (2), the Minister must—

(a)notify the local government entity and the responsible local government of the Minister’s intention to make a declaration about the service; and

(b)give the local government entity and the responsible local government 90 days to make submissions to the Minister about the intended declaration.

(4)If the Minister declares the service, or part of the service, the declaration must state the expiry date of the declaration.

(5)If the Minister decides not to declare the service and the declaration recommendation was made under subdivision 4A, the decision does not affect the existing declaration for the service.

85   Notice of decision

(1)The Minister must, within 90 days after the relevant day, publish in the gazette—

(a)notice of the decision to declare the service in whole or part or not to declare the service; and

(b)the reasons for the decision.

(2)Also, as soon as practicable after making the decision, the Minister must—

(a)give the designated material for the decision to the following—

(i)if a request about the declaration of the service was made by someone other than the Minister—the applicant;

(ii)the owner of the service, unless the owner made a request about the declaration of the service;

(iii)if the owner and operator of the service are different entities—the operator, unless the operator made a request about the declaration of the service; and

(b)give to the authority a written notice stating the decision and the reasons for the decision.

(4)In this section—

designated material, for a decision of the Minister to declare, or not to declare, a service, means—

(a)a copy of the declaration recommendation; and

(b)a written notice stating the decision and the reasons for the decision.

relevant day means—

(a)for a service provided by means of a facility owned by a local government entity—the day after the 90 day period given, under section 84(3)(b), to the local government entity to make submissions; or

(b)otherwise—the day the Minister receives the declaration recommendation.

86   Factors affecting making of declaration

(1)The Minister must declare a service if the Minister is satisfied about all of the access criteria for the service.

(2)The Minister must decide not to declare a service if the Minister is not satisfied about all of the access criteria for the service.

(3)Despite subsections (1) and (2), the Minister may declare part of a service if the Minister is satisfied about all of the access criteria for the part of the service.

87   Duration of declaration

(1)A declaration starts to operate on—

(a)the day notice of the decision to declare the service is published in the gazette; or

(b)if a later day of operation is stated in the notice—the later day.

(2)A declaration continues in operation until its expiry date, unless it is earlier revoked.

Subdivision 4A Review of declaration

87A   Declaration recommendation to be made before expiry of declaration

(1)At least 6 months, but not more than 12 months, before the expiry date of a declaration of a service, the authority must recommend to the Minister that, with effect from the expiry date—

(a)the service be declared; or

(b)part of the service, that is itself a service, be declared; or

(c)the service not be declared.

(2)Before making the recommendation, the authority may consult with any person it considers appropriate.

(3)The authority must publish the recommendation and the reasons for the recommendation in the way the authority considers appropriate.

(4)If the authority recommends that the service, or part of the service, be declared with effect from the expiry date, the authority must also recommend the period for which that declaration should operate.

Note—

On receiving the recommendation the Minister must, under subdivision 4, either declare all or part of the service, or decide not to declare the service.

87B   Notice of review

The authority must, when it starts considering the making of a recommendation under section 87A, tell the owner of the service that the authority is considering the matter.

87C   Factors affecting making of recommendation

(1)The authority must make a recommendation under section 87A(1)(a) if the authority is satisfied about all of the access criteria for the service.

(2)The authority must make a recommendation under section 87A(1)(c) if the authority is not satisfied about all of the access criteria for the service.

(3)Despite subsections (1) and (2), the authority may make a recommendation under section 87A(1)(b) if the authority is satisfied about all of the access criteria for the part of the service.

87D   Power of authority to conduct investigation

For making a recommendation under section 87A, the authority may conduct an investigation about the service.

87E   Notice of investigation

(1)Before starting an investigation under this subdivision, the authority must give reasonable notice of the investigation to—

(a)the owner of the service; and

(b)any other person the authority considers appropriate.

(2)The notice must—

(a)state the authority’s intention to conduct the investigation; and

(b)state the name of the owner of the service; and

(c)state the subject matter of the investigation; and

(d)invite the person to whom the notice is given to make written submissions to the authority on the subject matter within a reasonable time stated in the notice; and

(e)state the authority’s address.

87F   Procedures for investigation

Part 6 applies to an investigation under this subdivision.

Subdivision 5 Revocation of declaration

88   Recommendation to revoke

(1)The authority may recommend to the Minister that a declaration of a service or part of a service be revoked.

(2)Without limiting subsection (1), the owner of the declared service may ask the authority to recommend revocation of the declaration of the service or part of the service.

(3)The authority may recommend revocation of a declaration of a service or part of a service only if it is satisfied that, at the time of the recommendation, section 86 would prevent the Minister from declaring the relevant service or the part of the relevant service.

89   Power of authority to conduct investigation

For making a revocation recommendation, the authority may conduct an investigation about the declared service.

90   Notice of investigation

(1)Before starting an investigation under this subdivision, the authority must give reasonable notice of the investigation to—

(a)the owner of the service; and

(b)any other person the authority considers appropriate.

(2)The notice must—

(a)state the authority’s intention to conduct the investigation; and

(b)state the subject matter of the investigation; and

(c)invite the person to whom the notice is given to make written submissions to the authority on the subject matter within a reasonable time stated in the notice; and

(d)state the authority’s address.

91   Procedures for investigation

Part 6 applies to an investigation under this subdivision.

92   Revocation

(1)On receiving a revocation recommendation, the Minister must—

(a)revoke the declaration of the service or the part of the service; or

(b)decide not to revoke the declaration of any part of the service.

(2)The Minister may revoke a declaration of a service or part of a service—

(a)only after receiving a revocation recommendation; and

(b)only if the Minister is satisfied that, at the time of the revocation, section 86 would prevent the Minister from declaring the relevant service or the part of the relevant service.

93   Notice of decision

(1)The Minister must publish in the gazette—

(a)notice of a decision—

(i)to revoke the declaration of a service or part of a service; or

(ii)not to revoke the declaration of any part of a service; and

(b)the reasons for the decision.

(2)Also, as soon as practicable after making the decision, the Minister must give a written notice stating the decision and the reasons for the decision to—

(a)the owner of the service; and

(b)if the owner and operator of the service are different entities—the operator of the service; and

(c)the authority.

94   When revocation takes effect

A decision of the Minister to revoke a declaration of a service or part of a service takes effect on—

(a)the day notice of the decision is published in the gazette; or

(b)if a later day of effect is stated in the notice—the later day.

Subdivision 6 Other matters

95   Effect of expiry or revocation of declaration

The expiry of a declaration, or the revocation of a declaration of a service or part of a service, does not affect—

(a)the mediation or arbitration of an access dispute for which an access dispute notice was given before the expiry or revocation; or

(b)the operation or enforcement of an access determination made in the arbitration of an access dispute for which an access dispute notice was given before the expiry or revocation; or

(c)the operation of an access agreement, or a right acquired, or liability incurred, under an access agreement, that was entered into before the expiry or revocation.

96   Register of declarations

(1)The authority must keep a register of declarations in operation.

(2)The register must include, for each declaration, details the authority considers appropriate.

Division 3 [Repealed]

97   [Repealed]

98   [Repealed]

Division 4 Access agreements for declared services

Subdivision 1 Negotiations for access agreements

99   Obligation of access provider to negotiate

An access provider of a declared service must, if required by an access seeker, negotiate with the access seeker for making an access agreement relating to the service.

100   Obligations of parties to negotiations

(1)The access provider and access seeker must negotiate in good faith for reaching an access agreement.

(2)In negotiating access agreements, or amendments to access agreements, relating to the service, the access provider must not unfairly differentiate between access seekers in a way that has a material adverse effect on the ability of 1 or more of the access seekers to compete with other access seekers.

Note—

Provision for enforcing compliance with subsection (2) is made in division 8 (Enforcement for pt 5), particularly section 153 (Orders to enforce prohibitions on hindering access and unfair differentiation).

(3)Subsection (2) does not prevent the access provider treating access seekers differently to the extent the different treatment is—

(a)reasonably justified because of the different circumstances, relating to access to the declared service, applicable to the access provider or any of the access seekers; or

(b)expressly required or permitted by—

(i)an access code or approved access undertaking for the declared service; or

(ii)an access determination to which the access provider is a party.

(4)However, subsection (3) does not authorise an access provider to engage in conduct for the purpose of preventing or hindering a user’s access to the declared service.

Note—

See sections 104 and 125 in relation to conduct preventing or hindering a user’s access to the declared service.

101   Obligation of access provider to satisfy access seeker’s requirements

(1)In negotiations between an access provider and access seeker for an access agreement, the access provider must make all reasonable efforts to try to satisfy the reasonable requirements of the access seeker.

(2)Without limiting subsection (1), and subject to any relevant access code or approved access undertaking, the access provider must give the access seeker the following—

(a)information about the price at which the access provider provides the service, including the way in which the price is calculated;

(b)information about the costs of providing the service, including the capital, operation and maintenance costs;

(c)information about the value of the access provider’s assets, including the way in which the value is calculated;

(d)an estimate of the spare capacity of the service, including the way in which the spare capacity is calculated;

(e)a diagram or map of the facility used to provide the service;

(f)information about the operation of the facility;

(g)information about the safety system for the facility;

(h)if the authority makes a determination in an arbitration about access to the service under division 5, subdivision 3—information about the determination.

(3)Despite subsection (2), if the authority reasonably considers the disclosure of information under subsection (2) may be likely to damage the commercial activities of the access provider, an access seeker or an access user, the authority may—

(a)allow the information to be categorised or aggregated so the disclosure is not unduly damaging; or

(b)authorise the access provider not to give the access seeker 1 or more of the matters mentioned in subsection (2).

(4)Despite subsection (2), the authority may allow the matters mentioned in subsection (2)(a) to (c) to be given in the form of a reference tariff.

(5)The access provider or access seeker may ask the authority for advice or directions about a matter mentioned in this section.

(6)The access provider and the access seeker must not, without the consent of the giver of the information, disclose to another person information given under this section.

(7)In this section—

reference tariff, for a service, means a price, or formula for calculating a price, that has been approved by the authority to set the basis for negotiation of the price for access to the service under an access agreement.

Subdivision 2 Rights and obligations of parties to access agreements

102   Terms of access under separate agreements

In entering into separate access agreements in relation to the same declared service, an access provider is not required to provide access on the same terms under each agreement.

103   Requirement to produce access agreement

(1)This section applies to an access agreement only if it is made in writing.

(2)The authority may, by written notice given to an access provider who is a party to an access agreement, require the access provider to give a copy of the agreement to the authority within the time (not less than 14 days) stated in the notice.

(3)The access provider must comply with the requirement within the time stated in the notice, unless the access provider has a reasonable excuse.

Maximum penalty for subsection (3)—500 penalty units or 6 months imprisonment.

104   Preventing or hindering access

(1)An access provider or user of a declared service, or a related body corporate of the access provider or user, must not engage in conduct for the purpose of preventing or hindering a user’s access to the declared service under an access agreement.

Note—

Provision for enforcing compliance with section 104(1) is made in division 8, particularly section 153.

(2)An access provider who is the owner or operator of a declared service engages in conduct for preventing or hindering a user’s access to the declared service if, having regard to the relevant criterion, the access provider provides, or proposes to provide, access to the declared service to itself, or a related body corporate of the access provider, on more favourable terms than the terms on which the access provider provides, or proposes to provide, access to the declared service to a competitor of the access provider.

(3)For subsection (2), the relevant criterion is the terms, taken as a whole, on which the access provider provides, or proposes to provide, access to the declared service to itself and the competitor having regard, in particular, to—

(a)the fees, tariffs or other payments to be made for access to the declared service by the access provider and the competitor; and

(b)the nature and quality of the declared service provided, or proposed to be provided, to the access provider and competitor.

(4)An access provider or user of a declared service, or a related body corporate of the access provider or user, may be taken to have engaged in conduct for preventing or hindering a user’s access to a service even though, after all the evidence has been considered, the existence of the purpose is ascertainable only by inference from the conduct of the access provider, user or related body corporate or other relevant circumstances.

(5)Subsections (2) and (4) do not limit the ways in which the purpose of an access provider or user, or a related body corporate of an access provider or user, may be established for subsection (1).

237   Protection from liability of member or employee

(1)A member or employee of the authority is not civilly liable for an act done, or omission made, in good faith under this Act.

(2)If subsection (1) prevents a civil liability attaching to a member or employee, the liability attaches instead to the authority.

238   Protection from liability of person giving information to authority

A person is not liable in any way for any loss, damage or injury suffered by another person because of the giving in good faith of information to the authority for this Act.

239   Confidential information—commercial activities

(1)This section applies if—

(a)information about a person (other than information to which section 187 or 207 applies) is received by the authority; and

(b)the authority believes the disclosure of the information—

(i)would be likely to damage the person’s commercial activities; and

(ii)would not be in the public interest.

(2)The authority must take all reasonable steps to ensure the information is not, without the person’s consent, disclosed to another person other than—

(a)a member; or

(b)an employee, consultant or agent of the authority who receives the information in the course of his or her duties; or

(c)an entity that performs similar functions to the authority under a law of the Commonwealth, another State or a foreign country; or

(d)the regulator under the Electricity Act 1994, to facilitate the performance of the regulator’s function mentioned in section 63(1)(c) of that Act; or

(e)the regulator under the Gas Supply Act 2003, to facilitate the performance of the regulator’s function of monitoring compliance with the conditions of authorities under that Act; or

(g)the regulator under the Water Supply (Safety and Reliability) Act 2008, to facilitate the performance of the regulator’s function mentioned in section 11(1)(c) of that Act; or

(h)the energy and water ombudsman, to facilitate the performance of the ombudsman’s functions under the Energy and Water Ombudsman Act 2006.

(3)If, under subsection (2)(h), the authority discloses information to the energy and water ombudsman, it must tell the energy and water ombudsman that the information—

(a)is confidential information to which this section applies; and

(b)has been disclosed under subsection (2)(h).

(4)In this section—

commercial activities means activities conducted on a commercial basis.

person includes a government agency.

239A   [Repealed]

240   Secrecy

(1)A person to whom this section applies must not—

(a)make a record of protected information; or

(b)whether directly or indirectly, divulge or communicate to a person protected information about another person or a government agency.

Maximum penalty—1,000 penalty units or 1 year’s imprisonment.

(2)However, subsection (1) does not apply if—

(a)the record is made, or the information is divulged or communicated—

(i)under this Act; or

(ii)in the performance of duties, as a person to whom this section applies, under this Act; or

(iii)with the consent of the person or agency to whom the protected information relates; or

(b)the information is divulged or communicated to an entity that performs similar functions to the authority under a law of the Commonwealth, another State or a foreign country; or

(c)the protected information is otherwise publicly available.

(3)Unless it is necessary to do so for carrying this Act into effect, a person to whom this section applies is not required—

(a)to divulge or communicate protected information to a court; or

(b)to produce a protected document in court.

(4)In this section—

court includes a tribunal, authority or person having power to require the production of documents or the answering of questions.

employee includes a consultant or agent.

person to whom this section applies means a person who is, or has been, a member or employee of the authority.

produce includes permit access to.

protected document means a document that—

(a)contains information about a person or government agency; and

(b)is obtained or made by a person to whom this section applies in the course of, or because of, the person’s duties under this Act.

protected information means information that—

(a)is about a person or government agency; and

(b)is disclosed to, or obtained by, a person to whom this section applies in the course of, or because of, the person’s duties under this Act.

241   Draft reports

In preparing a report under this Act, the authority may give a draft of the report to the persons it considers appropriate.

242   Annual reports

The authority must include in its annual report as a statutory body under the Financial Accountability Act 2009—

(a)details of each request made by the authority under section 18; and

(b)comments about the implementation of, and any failure to implement, recommendations mentioned in section 36.

243   Delegation

The chairperson may delegate the chairperson’s powers under this Act to another member or the authority’s chief executive officer.

244   Tabling reports

(1)This section applies to a report received by the Minister and mentioned in section 34.

(2)If the Minister must make the report, or a part of the report, available for public inspection, the Minister must ensure the report or part of the report is tabled in the Legislative Assembly within 14 sitting days after the report is received by the Minister.

(3)If the authority has recommended that the report, or a part of the report, not be available for public inspection for a stated period, the Minister must ensure the recommendation, and the authority’s reasons for the recommendation, are tabled in the Legislative Assembly within 14 sitting days after the report is received by the Minister.

244A   Approval of forms

The authority may approve forms for use under this Act.

245   Regulation-making power

(1)The Governor in Council may make regulations under this Act.

(2)A regulation may be made for or about fees or charges for services provided, or functions performed, by the authority.

Part 11    [Repealed]

246   [Repealed]

247   [Repealed]

Part 12    Transitional and savings provisions

Division 1 Transitional and savings provisions for Motor Accident Insurance and Other Legislation Amendment Act 2010

248   Definition for division

In this division—

expiry day means the day that is 10 years from the day this section commences.

249   Exclusion of service from pt 5

(1)Despite section 72, part 5 does not apply to the service mentioned in subsection (2).

(2)The service is the use of rail transport infrastructure for providing transportation by rail between Queensland and another State if—

(a)the infrastructure is standard gauge track; and

(b)the transportation is effected by using standard gauge rolling stock.

(3)Subsection (1) stops applying at the end of the expiry day.

250   Saving of declarations of particular services

(1)Each of the following services is taken to be a service declared by the Ministers under part 5, division 2—

(a)the use of a coal system for providing transportation by rail;

(b)the use of rail transport infrastructure for providing transportation by rail if the infrastructure is used for operating a railway for which Queensland Rail Limited, or a successor, assign or subsidiary of Queensland Rail Limited, is the railway manager;

(c)the handling of coal at Dalrymple Bay Coal Terminal by the terminal operator.

Note—

The services mentioned in subsection (1) were, immediately before the commencement of this division, declared under a regulation made under repealed section 97.

(2)Subsection (1) stops having effect in relation to a service, or part of a service—

(a)at the end of the expiry day; or

(b)if the declaration of the service or part of the service is revoked under part 5, division 2, subdivision 5—when the revocation takes effect.

Notes—

1See section 95 in relation to the effect of the declaration ending.

2Subsection (1) ceasing to have effect in relation to a service does not prevent the Ministers declaring the service under part 5, division 2 with effect after the expiry day.

(3)For this section, coal system means rail transport infrastructure that is—

(a)part of any of the following—

(i)the Blackwater system, being the railway connecting Gregory, Rolleston and Minerva to Gladstone, including the part of the North Coast Line between Parana and Rocklands, as shown on the diagram in schedule 1;

(ii)the Goonyella system, being the railway connecting Gregory, North Goonyella and Blair Athol mine to the Port of Hay Point, as shown on the diagram in schedule 1;

(iii)the Moura system, being the railway connecting Moura mine to Gladstone, as shown on the diagram in schedule 1;

(iv)the Newlands system, being the railway connecting Newlands to the Port of Abbot Point, including the part of the North Coast Line between Durroburra and Kaili, as shown on the diagram in schedule 1; or

(b)directly or indirectly connected to a system mentioned in paragraph (a) and owned or leased by the owner or lessee, or a related body corporate of the owner or lessee, of the system.

(4)Also, a coal system includes an extension of the coal system that—

(a)is built on or after 30 July 2010; and

(b)does not directly connect the coal system to a coal basin to which the coal system was not directly connected on 30 July 2010; and

(c)is owned or leased by—

(i)the owner or lessee of the coal system; or

(ii)a related body corporate of the owner or lessee of the coal system.

Note—

The declaration of the service mentioned in subsection (1)(a) under the Queensland Competition Authority Regulation 2007, repealed section 2B, commenced on 30 July 2010.

(5)In this section—

Dalrymple Bay Coal Terminal means the port infrastructure located at the port of Hay Point owned by Ports Corporation of Queensland or the State, or a successor or assign of Ports Corporation of Queensland or the State, and known as Dalrymple Bay Coal Terminal and includes the following which form part of the terminal—

(a)loading and unloading equipment;

(b)stacking, reclaiming, conveying and other handling equipment;

(c)wharfs and piers;

(d)deepwater berths;

(e)ship loaders.

handling of coal includes unloading, storing, reclaiming and loading.

North Coast Line means the railway running the length of the coast of Queensland from Brisbane to Cairns.

Queensland Rail Limited means Queensland Rail Limited ACN 132 181 090.

railway manager see the Transport Infrastructure Act 1994, schedule 6.

terminal operator means—

(a)the owner or lessee of Dalrymple Bay Coal Terminal; or

(b)a person operating Dalrymple Bay Coal Terminal for the owner or lessee.

251   [Repealed]

Division 2 Transitional provision for Revenue and Other Legislation Amendment Act 2011

252   References to, and acts etc. by, Ministers

(1)In a document brought into existence before the commencement of this section, a reference to the Ministers under the pre-amended Act may be taken, if the context permits, to be a reference to the Ministers under the amended Act.

(2)A direction, referral, declaration, revocation, decision or other act by the Ministers under the pre-amended Act may be taken, if the context permits, to be a direction, referral, declaration, revocation, decision or other act by the Ministers under the amended Act.

(3)This section does not limit the Acts Interpretation Act 1954, section 20.

(4)In this section—

amended Act means this Act as amended by the Revenue and Other Legislation Amendment Act 2011.

pre-amended Act means this Act as in force before the commencement of this section.

Division 3 Declaratory provision for Fairer Water Prices for SEQ Amendment Act 2011

253   Revocation of declaration

(1)This section applies to the declaration, under repealed section 170QA, of particular activities to be a monopoly water supply activity.

(2)The declaration is revoked at the start of 1 July 2011 and has no force or effect.

(3)Subsection (2) applies despite the Acts Interpretation Act 1954, section 20.

Division 4 Transitional provision for Treasury and Trade and Other Legislation Amendment Act 2013

254   References to, and acts etc. by, Ministers

(1)In a document brought into existence before the commencement of this section, a reference to the Ministers under the pre-amended Act may be taken, if the context permits, to be a reference to the Minister under the amended Act.

(2)A direction, referral, declaration, revocation, decision or other act by the Ministers under the pre-amended Act may be taken, if the context permits, to be a direction, referral, declaration, revocation, decision or other act by the Minister under the amended Act.

(3)In this section—

amended Act means this Act as amended by the Treasury and Trade and Other Legislation Amendment Act 2013.

pre-amended Act means this Act as in force before the commencement of this section.

Division 5 Transitional provision for Queensland Competition Authority Amendment Act 2018

255   Preparation and approval of particular draft, or draft amending, access undertakings

This Act, as in force immediately before the commencement, continues to apply to the preparation and approval of the following started, but not completed, before the commencement—

(a)a draft access undertaking under part 5, division 7, subdivision 1;

(b)a draft amending access undertaking under part 5, division 7, subdivision 2.

Division 6 Transitional provisions for the Queensland Future Fund (Titles Registry) Act 2021

256   Definitions for division

(1)In this division—

repealed Act means the repealed Queensland Productivity Commission Act 2015.

(2)Words defined under the repealed Act and used in this division have the same meanings as they had under the repealed Act.

257   Existing competitive neutrality complaints and investigations

(1)This section applies if, immediately before the commencement—

(a)a competitive neutrality complaint made to the commission under the repealed Act had not been resolved or withdrawn; and

(b)the commission had not completed all actions in relation to the complaint that the commission was required to take under the repealed Act, part 5.

(2)This Act applies in relation to the competitive neutrality complaint as if the complaint were made to the authority under section 41.

258   Guideline for dealing with competitive neutrality complaints

The prescribed competitive neutrality policy is taken to be a guideline approved by the Minister under section 43.

Note—

See the repealed Queensland Productivity Commission Act 2015, section 36(2), definition prescribed competitive neutrality policy.

259   Queensland Productivity Commission and its board

On the commencement—

(a)the Queensland Productivity Commission and its board are abolished; and

(b)the principal commissioner goes out of office.

260   State is successor in law of commission

(1)The State is the successor in law of the commission.

(2)Subsection (1) is not limited by another provision of this division.

261   Assets and liabilities

On the commencement, the assets and liabilities of the commission immediately before the commencement become assets and liabilities of the State held in the department.

262   Contracts, agreements, undertakings, other arrangements and instruments

(1)This section applies to a contract, agreement, undertaking or other arrangement to which the commission was a party, or an instrument that applied to the commission, immediately before the commencement.

(2)On the commencement, the State becomes a party to the contract, agreement, undertaking or arrangement, or the instrument starts to apply to the State, in place of the commission.

(3)This section applies subject to section 265.

263   Proceedings not yet started

(1)This section applies if, immediately before the commencement, a proceeding could have been started by or against the commission within a particular period.

(2)The proceeding may be started by or against the State, in place of the commission, within the period.

264   Current proceedings

(1)This section applies to a proceeding that, immediately before the commencement, had not ended and to which the commission was a party.

(2)The State becomes a party to the proceeding in place of the commission.

265   Matters relating to employment

(1)This section applies to each person who was employed as a member of the commission’s staff immediately before the commencement, other than a person employed as an executive manager or on a casual basis.

(2)On the commencement—

(a)the person becomes an employee of the department; and

(b)the person stops being an employee of the commission; and

(c)the commission’s liability for recreation, sick or long service leave accrued but not taken by the person before the commencement is transferred to the State held in the department; and

(d)the commission’s records, to the extent they relate to the person’s employment, become records of the State held in the department.

(3)Without limiting subsection (2)(a)—

(a)the chief executive is taken to have employed the person as a fixed term temporary employee in the department under the Public Sector Act 2022, section 150; and

(b)the person’s contract of employment with the commission is taken to be a contract of employment between the person and the chief executive and applies with any necessary changes to give effect to the contract.

(4)The change of the person’s employer under subsection (2) does not—

(a)affect the person’s total remuneration; or

(b)interrupt the person’s continuity of service, except that the person is not entitled to claim the benefit of a right or entitlement more than once in relation to the same period of service; or

(c)prejudice the person’s existing or accruing rights to superannuation, or recreation, sick, long service or other leave; or

(d)constitute a termination of employment by the commission, retrenchment or redundancy; or

(e)entitle the person to a payment or other benefit merely because the person is no longer employed by the commission; or

(f)require any payment to be made in relation to the person’s accrued rights to recreation, sick, long service or other leave irrespective of any arrangements between the commission and the person.

(5)In this section—

executive manager means a senior executive employee with responsibility for managing the commission, subject only to the direction of the board.

266   Act applies despite other laws and instruments

A thing may be done under this division despite any other law or instrument.

267   Effect on legal relationships

(1)Anything done under this division—

(a)does not make the commission or the State liable for a civil wrong or a contravention of a law or for a breach of contract, confidence or duty; and

(b)does not make the commission or the State in breach of any instrument, including an instrument prohibiting, restricting or regulating the assignment, novation or transfer of a right or liability or the disclosure of information; and

(c)does not fulfil a condition that—

(i)terminates, or allows a person to terminate, an instrument or obligation; or

(ii)modifies, or allows a person to modify, the operation or effect of an instrument or obligation; or

(iii)allows a person to avoid or enforce an obligation or liability contained in an instrument; or

(iv)requires a person to perform an obligation contained in an instrument; or

(v)requires any money to be paid before its stated maturity; and

(d)does not release a surety or other obligee, wholly or partly, from an obligation.

(2)If, apart from this section, the advice, consent or approval of a person would be necessary to do something under this division, the advice is taken to have been obtained or the consent or approval is taken to have been given unconditionally.

(3)If giving notice to a person would be necessary to do something under this division, the notice is taken to have been given.

(4)A reference in this section to the State includes a reference to an employee or agent of the State.

268   References to the commission

In an Act or document, a reference to the commission is, if the context permits, taken to be a reference to the State.

Part 13    [Repealed]

Schedule 1 Central Queensland coal network rail infrastructure

section 250

Schedule 2 Dictionary

section 5

access agreement means an agreement—

(a)between an access provider of a declared service and another person providing for access to the service by the other person; and

(b)that is entered into after the commencement of section 99 (whether it is entered into before or after the service is declared).

access code means a code mentioned in part 5, division 6.

access criteria see section 76.

access determination see section 117(1).

access dispute notice see section 113(1).

access provider, for a service, means the entity that, as an owner, operator or user of the facility used, or to be used, to provide the service (whether or not the service is a declared service) has given, or is able to give, someone else access to the service under an access agreement.

access seeker, for a service, means a person who wants access, or increased access, to the service.

access undertaking, for a service, means a written undertaking that sets out details of the terms on which an owner or operator of the service undertakes to provide access to the service whether or not it sets out other information about the provision of access to the service.

Allconnex Water ...

applicant, for a request made to the authority under section 77 or 170G, means the person who made the request.

application, for part 5, division 7A, see section 150C.

approved access undertaking means an access undertaking approved by the authority under part 5, and includes the access undertaking as amended with the authority’s approval.

approved undertaking means an undertaking approved by the authority, and includes the undertaking as amended with the authority’s approval.

approved water supply undertaking ...

associate member means a member of the panel of associate members.

authority means the Queensland Competition Authority.

business activity means a trading in goods or services.

Cabinet includes a Cabinet committee or subcommittee.

candidate service ...

candidate water supply activity means a water supply activity that is—

(a)carried on by a water supplier; and

(b)declared under a regulation to be a candidate water supply activity.

chairperson means the chairperson of the authority.

competition policy means the policies, contained in the following agreements, aimed at increasing the level of competition in the Australian economy—

(a)the conduct code agreement;

(b)the competition principles agreement;

(c)the implementation agreement.

Editor’s note—

Copies of the agreements may be viewed at principles agreement means the agreement titled competition principles agreement, made on 11 April 1995 by the Commonwealth, the State of New South Wales, the State of Victoria, the State of Queensland, the State of Western Australia, the State of South Australia, the State of Tasmania, the Australian Capital Territory and the Northern Territory of Australia, as in force for the time being.

competitive advantage ...

competitive neutrality complaint see section 40.

complainant, for a competitive neutrality complaint, means the person who made the complaint to the authority.

conduct code agreement means the agreement titled conduct code agreement, made on 11 April 1995 by the Commonwealth, the State of New South Wales, the State of Victoria, the State of Queensland, the State of Western Australia, the State of South Australia, the State of Tasmania, the Australian Capital Territory and the Northern Territory of Australia, as in force for the time being.

court means the Supreme Court.

declaration means—

(a)for part 5—a declaration of a service made by the Minister under part 5, division 2; or

(b)for part 5A—a declaration of a monopoly water supply activity.

declaration of a monopoly water supply activity means a declaration of a candidate water supply activity to be a monopoly water supply activity made by the Minister under part 5A, division 2.

declaration recommendation means—

(a)for part 5—a recommendation made by the authority under section 79 or 87A; or

(b)for part 5A—a recommendation made by the authority under section 170I.

declared service means a service for which a declaration is in operation.

deputy chairperson means the deputy chairperson of the authority.

determination for part 5A, division 2, subdivision 7, see section 170ZA.

director see the Corporations Act, section 9.

dispute notice means an access dispute notice.

draft access undertaking, for part 5, division 7A, see section 150C.

enforcement injunction means—

(a)for part 5—an injunction under section 152 or 153; or

(b)for part 5A—an injunction under section 170ZZZF.

entity includes a partnership and joint venture.

executive officer, of a corporation, means a person who is concerned with, or takes part in, the corporation’s management, whether or not the person is a director or the person’s position is given the name of executive officer.

exempt matter see section 235.

expiry day ...

extension, of a facility, includes an enhancement, expansion, augmentation, duplication or replacement of all or part of the facility.

facility see section 70.

goods includes—

(a)animals, including fish; and

(b)minerals, trees and crops (whether or not on, under or attached to land); and

(c)water, including treated and waste water; and

(d)gas or electricity.

government means—

(a)for part 3—

(i)the government of the State; or

(ii)a local government; or

(b)other than for part 3—the government of the State.

government agency—

(a)means—

(i)a government company or part of a government company; or

(ii)a State instrumentality, agency, authority or entity, or a division, branch or other part of a State instrumentality, agency, authority or entity; or

(iii)a department or a division, branch or other part of a department; or

(iv)a government owned corporation; and

(b)includes—

(i)for parts 3 and 5A—a local government entity; and

(ii)for part 4—a subsidiary, within the meaning of the Government Owned Corporations Act 1993, section 2, of a government owned corporation.

government business activity means—

(a)for a government agency other than a local government entity—a business activity carried on by the government agency; or

(b)for a government agency that is a local government entity—a significant business activity carried on by the government agency.

government company means a corporation incorporated under the Corporations Act all the stocks or shares in the capital of which are beneficially owned by the State or a government agency.

government monopoly business activity ...

implementation agreement means the agreement titled the agreement to implement national competition policy and related reforms, made on 11 April 1995 by the Commonwealth, the State of New South Wales, the State of Victoria, the State of Queensland, the State of Western Australia, the State of South Australia, the State of Tasmania, the Australian Capital Territory and the Northern Territory of Australia, as in force for the time being.

initial amendment notice, for part 5, see section 139.

initial undertaking notice see section 133.

investigation means an investigation conducted under this Act.

investigation notice means—

(a)for an investigation under part 3, division 2A—a notice of the investigation given under section 21F; or

(b)for an investigation under part 3, division 3—a notice of the investigation given under section 25; or

(d)for an investigation under part 5, division 2, subdivision 3—a notice of the investigation given under section 82; or

(e)for an investigation under part 5, division 2, subdivision 4A—a notice of investigation given under section 87E; or

(f)for an investigation under part 5, division 2, subdivision 5—a notice of the investigation given under section 90; or

(g)for an investigation under part 5, division 7, subdivision 3—a notice of the investigation given under section 146; or

(h)for an investigation under part 5, division 7A—a notice of the investigation given under section 150I; or

(i)for an investigation under part 5A, division 2, subdivision 3—a notice of the investigation given under section 170L; or

(j)for an investigation under part 5A, division 2, subdivision 5—a notice of the investigation given under section 170T; or

(k)for an investigation under part 5A, division 2, subdivision 7—a notice of the investigation given under section 170ZS.

Local Government Act means the Local Government Act 2009.

local government entity means—

(a)a local government or part of a local government; or

(b)a local government owned corporation.

local government Minister means the Minister administering the Local Government Act.

local government owned corporation means a local government owned corporation under the Local Government Act.

market see section 71.

mediated resolution, of an access dispute, see section 115E(1).

mediation agreement, for part 5, division 5, subdivision 2A, see section 115E(2).

mediation conference, for the mediation of an access dispute for part 5, division 5, subdivision 2A, see section 115A(2).

mediator, for a mediation, means 1 or more persons constituted as a mediator under part 6A, division 2.

member means a member of the authority, and includes—

(a)the chairperson and deputy chairperson; and

(b)for a particular investigation or arbitration—an associate member chosen, under section 214D(1), for the investigation or arbitration.

Ministerial declaration ...

Ministers ...

Minister’s decision notice ...

monopoly business activity means a government business activity or non-government business activity declared to be a monopoly business activity under a regulation or by the Minister.

monopoly water supply activity means a candidate water supply activity declared by the Minister, under section 170N, to be a monopoly water supply activity.

non-government business activity means a business activity—

(a)carried on by a person other than a government agency; and

(b)involving services provided by means of a facility.

notice for part 5A, division 2, subdivision 7, see section 170ZA.

owner, for a service, means the owner of the facility used, or to be used, to provide the service (whether or not the service is a declared service).

panel of associate members means the panel of associate members mentioned in section 213.

part 3 Ministerial declaration see section 21D(1).

party means—

(a)for the mediation of an access dispute—a party to the mediation under section 115B; or

(b)for the arbitration of an access dispute—a party to the arbitration under section 116; or

(c)for an access determination—a party to the arbitration in which the authority made the access determination; or

(d)for the arbitration of an application for arbitration under the Water Supply (Safety and Reliability) Act 2008, section 524(2)—a party to the arbitration.

port infrastructure see Transport Infrastructure Act 1994, schedule 6.

prescribed person, for part 5, division 7A, see section 150C.

price includes any rate, fee, levy and charge and any other valuable consideration (however described).

price monitoring investigation see section 22.

pricing practice, for a monopoly business activity or a monopoly water supply activity—

(a)means—

(i)the level and structure of prices for the activity; or

(ii)anything that affects the level and structure of prices for the activity, including, for example, the service quality, costs of production and levels of performance relating to the activity; and

(b)includes, for a monopoly water supply activity, anything that may be included in a water pricing determination under section 170ZB(5) or (6).

principle of competitive neutrality see section 38(1).

private facility ...

public facility ...

Queensland Urban Utilities ...

rail transport infrastructure see Transport Infrastructure Act 1994, schedule 6.

reasonably believes means believes on grounds that are reasonable in all the circumstances.

register means any of the following registers kept by the authority—

(a)the register of recommendations, and decisions or responses, relating to monopoly business activities involving the supply of water;

(b)the register of declarations under part 5;

(c)the register of access determinations;

(d)the register of approved access undertakings;

(e)the register of rulings under part 5, division 7A;

(f)a register that the authority is required to keep under the Electricity Act 1994, section 254B or the Gas Supply Act 2003, section 310A;

(g)the register of declarations of monopoly water supply activities;

(h)the register of water pricing determinations.

regulation based declaration ...

regulatory impact statement ...

related access provider, in relation to a service, means an access provider that—

(a)owns or operates the service; and

(b)provides, or proposes to provide, access to the service to itself or a related body corporate of the access provider.

related body corporate, of another body corporate, means—

(a)a body corporate that is related to the other body corporate under the Corporations Act, section 50; or

(b)another entity that is a subsidiary of the other body corporate under the Government Owned Corporations Act 1993, section 2.

relevant assumption, for part 5, division 7A, see section 150C.

relevant circumstances, for part 5, division 7A, see section 150C.

relevant declaration criteria, for part 3, means the current criteria for deciding whether to declare a government business activity, or a non-government business activity, to be a monopoly business activity, given by the authority to the Minister under part 3, division 1A.

Note—

The criteria are given by the authority to the Minister under section 14 for a government business activity or section 14A for a non-government business activity.

required minimum number of members means the number that is half the number of members of which the authority for the time being consists or, if that number is not a whole number, the next higher whole number.

responsible local government, for a local government entity, means—

(a)for a local government entity that is a local government or part of a local government—the local government; or

(b)for a local government entity that is a local government owned corporation—

(i)if a local government holds all the shares in the local government owned corporation—the local government; or

(ii)if 2 or more local governments hold shares in the local government owned corporation—the local governments.

responsible Minister, for a government agency, means—

(a)for a government agency that is a department or a division, branch or other part of a department—the Minister administering the department; or

(b)for a government agency established under an Act—the Minister administering the Act; or

(c)for a government agency that is a government owned corporation—its shareholding Ministers under the Government Owned Corporations Act 1993; or

(d)in any other case—the Minister nominated to be responsible for the government agency by the Minister administering this Act.

responsible operator ...

responsible person, for an approved access undertaking, means the person to whom the undertaking applies as an owner or operator of the relevant service.

revocation recommendation means—

(a)for part 3—a recommendation made by the authority under section 21D; or

(b)for part 5—a recommendation made by the authority under section 88; or

(c)for part 5A—a recommendation made by the authority under section 170R.

ruling, for part 5, division 7A, see section 150C.

ruling notice, for part 5, division 7A, see section 150C.

secondary amendment notice, for part 5, see section 140(2).

secondary undertaking notice see section 134.

service (other than for part 5) includes—

(a)the supply of goods; and

(b)the making available for use of facilities of any kind; and

(c)the conferring of rights, benefits or privileges; and

(d)the exercise of the general functions of a government agency.

service, for part 5, see section 72.

significant business activity, for part 3, means a significant business entity of a local government under the Local Government Act.

undertaking ...

Unitywater ...

user, for a service, means a person who has access to the service under an access agreement or access determination.

water authority ...

water board ...

water pricing determination see section 170ZB(1).

water pricing determination code means a code mentioned in part 5A, division 3.

water pricing period for part 5A, division 2, subdivision 7, see section 170ZA.

water pricing proposal for part 5A, division 2, subdivision 7, see section 170ZA.

water seeker ...

water supplier means an entity, other than the State or a government agency, that—

(a)carries on, or negotiates to carry on, a water supply activity; and

(b)is not owned, whether legally or beneficially and whether entirely or in part, by the State or a government agency.

water supply activity means the provision of 1 or both of the following—

(a)water services, including the following—

(i)water storage;

(ii)the transmission of water;

(iii)the reticulation of water;

(iv)water treatment or recycling;

(b)wastewater services, including the following—

(i)wastewater treatment;

(ii)the collection and transmission of wastewater through infrastructure;

(iii)the disposal of wastewater.

water supply agreement ...

water supply criteria see section 170C.

water supply determination ...

water supply dispute notice ...

water supply undertaking ...