Declaration is a pathway available under Part IIIA of the Competition and Consumer Act 2010 (Cth) for third parties to share the use of certain infrastructure facilities of national significance (ie to have a service provided by a facility declared). Further information can be found in the document Access to Monopoly Infrastructure in Australia available below for download.
If a service is declared, access seekers acquire a legal right to:
negotiate access to the service with the service provider; and
if necessary, have their request for access determined through arbitration by the Australian Competition and Consumer Commission (ACCC).
A party wanting access to a particular service may apply to the Council to have the service 'declared'. The Council considers the application before forwarding a recommendation to the designated Minister, who decides whether to declare the service. The Minister's decision may be appealed to the Australian Competition Tribunal. The Council cannot recommend that a service be declared unless it is affirmatively satisfied that all of the four criteria in section 44CA of the Competition and Consumer Act 2010 (Cth) are met.
The Council must also consider whether the facility that is used (or will be used) could meet the total foreseeable demand in the market over the declaration period and at least costs compared to two or more facilities.
The Council has prepared a Guide to Declaration which reflects the Council's current thinking as it has evolved through dealing with applications since 1996, and draws on relevant decisions of the Australian Competition Tribunal and the Courts. The Council notes, however, that each application raises its own unique issues. As such, the Council's thinking continues to evolve and the views expressed in the guide are neither definitive nor binding.
Parties contemplating an application for declaration should have regard to the Council's Guide to Declaration. While it cannot prejudge any application the Council also encourages potential applicants to contact the Council Secretariat in advance of lodging an application.