Access to infrastructure services

The national access regime sets the legal right for third parties to gain access to certain infrastructure services, with reasonable terms and conditions.

What the ACCC does

  • We have certain responsibilities under the national framework providing regulated access to infrastructure.
  • We assess undertakings put forward by owners and operators of infrastructure facilities.
  • We arbitrate disputes about access to declared services.

What the ACCC can't do

  • We don’t decide which services to declare under law. The National Competition Council assesses these applications, and the Minister can make or revoke declarations.

About the national access regime

The national access regime sets the legal right for third parties to gain access to certain infrastructure services, with terms and conditions that are reasonable.

The rules of the national access regime and the ACCC’s roles are set out in Part IIIA of the Competition and Consumer Act 2010.

The national access regime is limited to the services of nationally significant infrastructure facilities where, broadly:

  • it’s not economic to develop another facility to provide the service
  • access would promote competition in the market.

The regime is not limited to a particular industry or facility. For example, it has applied to railway tracks, airports and port terminals.

Access by declaration with the option of arbitration

About declaration of services

Any party has the right to negotiate terms and conditions of access to a declared service, under Part IIIA of the Competition and Consumer Act 2010.

Services must meet certain criteria to become a declared service.

The National Competition Council considers applications to declare a service. It then makes recommendations to the responsible Minister who can decide to declare a service.

Parties can request arbitration when negotiation fails

Negotiation is between the party seeking access and the provider of the service.

If negotiation fails and the parties can’t agree on terms and conditions, either party can request binding arbitration by the ACCC.

Arbitration hearings are usually conducted in private, unless parties agree otherwise. As a result, we don’t comment on disputes during arbitration, except to announce when a dispute has been notified.

Before making our determination, we must give a draft determination to the parties. We must publish a written report on the final arbitration determination. Arbitration decisions can be appealed to the Federal Court.

Time limits for disputes

There are time limits for the ACCC to make decisions on arbitration applications. These are set out in the Competition and Consumer Act 2010.

We must make a final determination within 180 days of receiving the arbitration application.

Certain periods of time are not counted when calculating the 180-day period. This occurs when the ACCC:

  • and the parties to the dispute agree to stop the clock
  • gives a direction requesting further information on the dispute
  • gives a direction inviting submissions on the dispute
  • publishes a decision to defer the process while it considers an access undertaking
  • defers arbitrating the dispute while the Australian Competition Tribunal is reviewing a declaration.

See also

Access through a voluntary undertaking approved by the ACCC

About access undertakings

Undertakings allow infrastructure owners and operators to give other parties access to their services on a voluntary basis.

While a voluntary undertaking is in force, the service cannot be declared.

An access undertaking covers a range of matters about access to a particular service. It often includes the:

  • terms and conditions under which the provider is willing to offer access
  • price for the service
  • dispute resolution processes if parties can’t agree.

Section 44ZZA of the Competition and Consumer Act 2010 sets out:

  • the rules when an undertaking is eligible or ineligible
  • the matters that the ACCC must consider in accepting an undertaking.

The ACCC assesses applications for new undertakings

We assess applications put forward by owners and operators of infrastructure facilities.

The process we use to consider a new undertaking depends on its circumstances, characteristics and how complex it is. The process often involves inviting public submissions.

Time limits to make a decision

There are time limits for the ACCC to make decisions on access undertakings. These are set out in the Competition and Consumer Act 2010.

We must make a decision on an access undertaking application within 180 days of receiving the application.

Certain periods of time are not counted when calculating the 180-day period. This occurs when the ACCC:

  • and the access provider agree to stop the clock
  • gives a notice requesting further information on the application
  • publishes a notice inviting public submissions on an application, or
  • publishes a decision to defer the process while the ACCC arbitrates an access dispute.

If we do not publish a decision on the undertaking within the 180-day period (or longer if the clock has stopped), the application is rejected.

Types of services with access undertakings

The ACCC has accepted access undertakings for:

Separately, Part XIC of the Competition and Consumer Act 2010 deals with telecommunications access matters.

The Australian Energy Regulator, under electricity and gas laws, deals with energy matters.

See also

Access under a certified state access regime

Access to an infrastructure service can be gained by using an existing State or Territory access regime.

The Competition and Consumer Act 2010 cannot declare infrastructure services that are the subject of an effective State or Territory access regime.

To determine if a State or Territory access regime is effective, a party can apply for certification. The National Competition Council certifies state access regimes.

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