Part IIIA establishes a legal regime to facilitate third party access to services of certain facilities that are considered critical to competition in related markets.
The regime focuses on third party access to the services provided by a limited class of facilities that have the following distinguishing features: Natural monopoly characteristics, wherein, due to economies of scale or scope, a single facility can satisfy all the demand for its services in a market at lower cost than two or more facilities;
Occupation of a strategic position in an industry, so that access to the facility’s service is a prerequisite for businesses to be able to compete effectively in markets upstream or downstream of the facility (often referred to as a ‘bottleneck’ facility)
Being of national significance, having regard to its size and/or importance to interstate or international trade.
Access can only be required under Part IIIA if it would promote a material increase in competition in at least one other market, and not be contrary to the public interest.
Part IIIA is not limited to any particular set of industries. The types of services that may be covered by Part IIIA are typically provided by facilities such as railway tracks, airport facilities and water pipelines. Access matters involving telecommunications services are handled via Part XIC of the Act.
Part IIIA sets out a number of mechanisms by which access can be obtained to infrastructure services including (1) declaration and arbitration, (2) access undertakings and (3) certification of effective state access regimes.
ACCC role
Part IIIA provides a role for the ACCC in arbitrating access disputes where the supply of services have been ‘declared’. The ACCC also has a role in assessing access undertakings by owners/operators of facilities.
Legislative amendments
Effective from 1 October 2006, the Trade Practices Amendment (National Access Regime) Act 2006 amended Part IIIA to include, among other things, the objects of Part IIIA and principles for pricing access to a service. The ACCC is required, when making an arbitration determination or a decision on an undertaking under Part IIIA, to take into account these new provisions. The Act was also amended to enable service providers to lodge access undertakings with the ACCC after a service has been declared under Part IIIA. This is intended to provide a means for achieving certainty on access terms and conditions and facilitating negotiations between service providers and access seekers.
ACCC guidelines on Part IIIA matters
The ACCC released two procedural guides on the resolution of access disputes under Part IIIA in April 2006.
Note: These guides were published before the commencement of legislative amendments which took effect from 1 October 2006. Therefore, the guides should be read in conjunction with the current legislation pertaining to Part IIIA (detailed guide and the summary guide are available)
Previous ACCC guides on Part IIIA matters (A guide to Part IIIA of the Trade Practices Act published in 1995 and a Guide to access undertakings published in 1999) have been withdrawn from the ACCC’s website. The ACCC is preparing updated guidance on Part IIIA to reflect legislative amendments and, more generally, the ACCC's experience in dealing with arbitrations and assessing access undertakings.
