Competition and Consumer Act - Australia

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The Commission must not make a determination that would have any of the following effects:

      (a) preventing an existing user obtaining a sufficient amount of the service to be able to meet the user’s reasonably anticipated requirements, measured at the time when the dispute was notified;

      (b) preventing a person from obtaining, by the exercise of a pre-notification right, a sufficient amount of the service to be able to meet the person’s actual requirements;

      (c) depriving any person of a protected contractual right;

      (d) resulting in the third party becoming the owner (or one of the owners) of any part of the facility, or of extensions of the facility, without the consent of the provider;

      (e) requiring the provider to bear some or all of the costs of extending the facility or maintaining extensions of the facility;

      (f) requiring the provider to bear some or all of the costs of interconnections to the facility or maintaining interconnections to the facility.

      (2) Paragraphs (1)(a) and (b) do not apply in relation to the requirements and rights of the third party and the provider when the Commission is making a determination in arbitration of an access dispute relating to an earlier determination of an access dispute between the third party and the provider.

      (3) A determination is of no effect if it is made in contravention of subsection (1).

      (4) If the Commission makes a determination that has the effect of depriving a person (the second person) of a pre-notification right to require the provider to supply the service to the second person, the determination must also require the third party:

      (a) to pay to the second person such amount (if any) as the Commission considers is fair compensation for the deprivation; and

      (b) to reimburse the provider and the Commonwealth for any compensation that the provider or the Commonwealth agrees, or is required by a court order, to pay to the second party as compensation for the deprivation.

      Note: Without infringing paragraph (1)(b), a determination may deprive a second person of the right to be supplied with an amount of service equal to the difference between the total amount of service the person was entitled to under a pre-notification right and the amount that the person actually needs to meet his or her actual requirements.

      (4A) If an application for review of a declaration of a service has been made under subsection 44K(1), the Commission must not make a determination in relation to the service until the Tribunal has made its decision on the review.

      (5) In this section:

      existing user means a person (including the provider) who was using the service at the time when the dispute was notified.

      pre-notification right means a right under a contract, or under a determination, that was in force at the time when the dispute was notified.

      protected contractual right means a right under a contract that was in force at the beginning of 30 March 1995.

      44X Matters that the Commission must take into account

      Final determinations

      (1) The Commission must take the following matters into account in making a final determination:

      (aa) the objects of this Part;

      (a) the legitimate business interests of the provider, and the provider’s investment in the facility;

      (b) the public interest, including the public interest in having competition in markets (whether or not in Australia);

      (c) the interests of all persons who have rights to use the service;

      (d) the direct costs of providing access to the service;

      (e) the value to the provider of extensions whose cost is borne by someone else;

      (ea) the value to the provider of interconnections to the facility whose cost is borne by someone else;

      (f) the operational and technical requirements necessary for the safe and reliable operation of the facility;

      (g) the economically efficient operation of the facility;

      (h) the pricing principles specified in section 44ZZCA.

      (2) The Commission may take into account any other matters that it thinks are relevant.

      Interim determinations

      (3) The Commission may take the following matters into account in making an interim determination:

      (a) a matter referred to in subsection (1);

      (b) any other matter it considers relevant.

      (4) In making an interim determination, the Commission does not have a duty to consider whether to take into account a matter referred to in subsection (1).

      44XA Time limit for Commission’s final determination

      Commission to make final determination within 180 days

      (1) The Commission must make a final determination within the period of 180 days (the expected period) starting at the start of the day the application is received.

      Stopping the clock

      (2) In working out the expected period in relation to a final determination, in a situation referred to in column 1 of an item of the following table, disregard any day in a period:

      (a) starting on the day referred to in column 2 of the item; and

      (b) ending on the day referred to in column 3 of the item.

      Stopping the clock Item Column 1

      Situation Column 2

      Start day Column 3

      End day 1 An agreement is made in relation to the arbitration under subsection (4) The first day of the period specified in the agreement The last day of the period specified in the agreement 2 A direction is given under subsection 44ZG(1) to give information or make a submission within a specified period The first day of the period specified for the giving of the information or the making of the submission The last day of the period specified for the giving of the information or the making of the submission 3 A decision is published under subsection 44ZZCB(4) deferring consideration of the dispute while the Commission considers an access undertaking The day on which the decision is published The day on which the Commission makes its decision on the access undertaking under subsection 44ZZA(3) 4 The Commission, under subsection 44ZZCBA(1) or (2), defers arbitrating the dispute while a declaration is under review by the Tribunal The day on which the Commission gives the notice to defer arbitrating the dispute The day the Tribunal makes its decision under section 44K on the review

      (3) Despite subsection (2), do not disregard any day more than once.

      Stopping the clock by agreement

      (4) The Commission and the parties to the access dispute may agree in writing that a specified period is to be disregarded in working out the expected period.

      (5) The Commission must publish, by electronic or other means, the agreement.

      Deemed final determination

      (6) If the Commission does not publish under section 44ZNB a written report about a final determination within the expected period, it is taken, immediately after the end of the expected period, to have:

      (a) made a final determination that does not impose any obligations on the parties or alter any obligations (if any) that exist at that time between the parties; and

      (b) published a written report about the final determination under section 44ZNB.

      44Y Commission may terminate arbitration in certain cases

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