Part IIIA of the Competition and Consumer Act 2010 establishes a legal regime to facilitate third party access to certain services provided by means of significant infrastructure facilities. It is also known as the National Access Regime.
One of the objects of Part IIIA is to promote the economically efficient operation of, use of and investment in infrastructure by which services are provided, thereby promoting effective competition in upstream and downstream markets.
Part IIIA is not limited to any particular industries. Services that may be covered under Part IIIA include those provided by facilities such as railway tracks, airports, port terminals or sewage pipes.
Part IIIA sets out a number of mechanisms by which access can be sought to infrastructure services. These include declaration and arbitration, access undertakings and the certification of effective state access regimes.
The ACCC has a role under Part IIIA to assess access undertakings put forward by owners/operators of infrastructure facilities. Part IIIA also provides a role for the ACCC to arbitrate access disputes where a service has been ‘declared’.
In recent years the ACCC has accepted access undertakings in relation to:
Telecommunications access matters are dealt with under Part XIC of the Act.
Energy matters (gas and electricity) are dealt with by the Australian Energy Regulator (AER) under the National Electricity Law and National Gas Law.
An access undertaking is a document that sets out matters relevant to obtaining access to a particular service. These matters may include the terms and conditions on which the service provider will offer access, the price for the service, and dispute resolution processes in the event the parties cannot agree.
The actual process for having an undertaking considered by the ACCC will depend on the circumstances, characteristics and complexity in each case.
The Act sets time limits for the ACCC to make decisions on access undertakings.
The ACCC has developed guidelines regarding Part IIIA undertakings. This included public consultation on a draft version of the Part IIIA access undertaking guidelines released in May 2016. The submissions received are available on the ACCC’s consultation hub.
Where a service has been declared under Part IIIA and an access seeker and provider cannot agree on the terms and conditions of access to that service, either party may request in writing for the ACCC to arbitrate the dispute.
Except where otherwise agreed by the parties to a dispute, arbitration hearings are to be conducted in private. The ACCC therefore does not generally make any public comment on disputes during the course of arbitration except to announce when a dispute has been notified. Before making a determination, the ACCC must give a draft determination to the parties. The ACCC is required to publish a written report about a final arbitration determination.
The Act sets time limits for the ACCC to make final determinations for arbitration applications.
- Arbitrations: a guide to resolution of access disputes under Part IIIA of the Act - a summary guide
- Arbitrations: a guide to resolution of access disputes under Part IIIA of the Act
- Guidelines relating to deferral of arbitrations and backdating of determinations
Note: The ACCC’s guidelines relating to deferral of arbitrations and backdating of determinations are currently under consultation.
The National Competition Council performs roles under Part IIIA in relation to the declaration of services and the certification of effective state access regimes.