Competition and Consumer Act - Australia

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      (1) The Commission may at any time terminate an arbitration (without making a final determination) if it thinks that:

      (a) the notification of the dispute was vexatious; or

      (b) the subject matter of the dispute is trivial, misconceived or lacking in substance; or

      (c) the party who notified the dispute has not engaged in negotiations in good faith; or

      (d) access to the service should continue to be governed by an existing contract between the provider and the third party.

      (2) In addition, if the dispute is about varying an existing determination, the Commission may terminate the arbitration if it thinks there is no sufficient reason why the previous determination should not continue to have effect in its present form.

      44YA Commission must terminate arbitration if declaration varied or set aside by Tribunal

      If the Commission is arbitrating a dispute in relation to a declared service and the Tribunal sets aside or varies the declaration in relation to the service under section 44K, the Commission must terminate the arbitration.

      Subdivision D

      Procedure in arbitrations

      44Z Constitution of Commission for conduct of arbitration

      For the purposes of a particular arbitration, the Commission is to be constituted by 2 or more members of the Commission nominated in writing by the Chairperson.

      44ZA Member of the Commission presiding at an arbitration

      (1) Subject to subsection (2), the Chairperson is to preside at an arbitration.

      (2) If the Chairperson is not a member of the Commission as constituted under section 44Z in relation to a particular arbitration, the Chairperson must nominate a member of the Commission to preside at the arbitration.

      44ZB Reconstitution of Commission

      (1) This section applies if a member of the Commission who is one of the members who constitute the Commission for the purposes of a particular arbitration:

      (a) stops being a member of the Commission; or

      (b) for any reason, is not available for the purpose of the arbitration.

      (2) The Chairperson must either:

      (a) direct that the Commission is to be constituted for the purposes of finishing the arbitration by the remaining member or members; or

      (b) direct that the Commission is to be constituted for that purpose by the remaining member or members together with one or more other members of the Commission.

      (3) If a direction under subsection (2) is given, the Commission as constituted in accordance with the direction must continue and finish the arbitration and may, for that purpose, have regard to any record of the proceedings of the arbitration made by the Commission as previously constituted.

      44ZC Determination of questions

      If the Commission is constituted for an arbitration by 2 or more members of the Commission, any question before the Commission is to be decided:

      (a) unless paragraph (b) applies — according to the opinion of the majority of those members; or

      (b) if the members are evenly divided on the question — according to the opinion of the member who is presiding.

      44ZD Hearing to be in private

      (1) Subject to subsection (2), an arbitration hearing for an access dispute is to be in private.

      (2) If the parties agree, an arbitration hearing or part of an arbitration hearing may be conducted in public.

      (3) The member of the Commission who is presiding at an arbitration hearing that is conducted in private may give written directions as to the persons who may be present.

      (4) In giving directions under subsection (3), the member presiding must have regard to the wishes of the parties and the need for commercial confidentiality.

      44ZE Right to representation

      In an arbitration hearing before the Commission under this Part, a party may appear in person or be represented by someone else.

      44ZF Procedure of Commission

      (1) In an arbitration hearing about an access dispute, the Commission:

      (a) is not bound by technicalities, legal forms or rules of evidence; and

      (b) must act as speedily as a proper consideration of the dispute allows, having regard to the need to carefully and quickly inquire into and investigate the dispute and all matters affecting the merits, and fair settlement, of the dispute; and

      (c) may inform itself of any matter relevant to the dispute in any way it thinks appropriate.

      (2) The Commission may determine the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties to an access dispute, and may require that the cases be presented within those periods.

      (3) The Commission may require evidence or argument to be presented in writing, and may decide the matters on which it will hear oral evidence or argument.

      (4) The Commission may determine that an arbitration hearing is to be conducted by:

      (a) telephone; or

      (b) closed circuit television; or

      (c) any other means of communication.

      44ZG Particular powers of Commission

      (1) The Commission may do any of the following things for the purpose of arbitrating an access dispute:

      (a) give a direction in the course of, or for the purposes of, an arbitration hearing;

      (b) hear and determine the arbitration in the absence of a person who has been summoned or served with a notice to appear;

      (c) sit at any place;

      (d) adjourn to any time and place;

      (e) refer any matter to an expert and accept the expert’s report as evidence;

      (f) generally give all such directions, and do all such things, as are necessary or expedient for the speedy hearing and determination of the access dispute.

      (2) A person must not do any act or thing in relation to the arbitration of an access dispute that would be a contempt of court if the Commission were a court of record.

      Penalty: Imprisonment for 6 months.

      (3) Subsection (1) has effect subject to any other provision of this Part and subject to the regulations.

      (4) The Commission may give an oral or written order to a person not to divulge or communicate to anyone else specified information that was given to the person in the course of an arbitration unless the person has the Commission’s permission.

      (5) A person who contravenes an order under subsection (4) is guilty of an offence, punishable on conviction by imprisonment for a term not exceeding 6 months.

      44ZH Power to take evidence on oath or affirmation

      (1) The Commission may take evidence on oath or affirmation and for that purpose a member of the Commission may administer an oath or affirmation.

      (2) The member of the Commission who is presiding may summon a person to appear before the Commission to give evidence and to produce such documents (if any) as are referred to in the summons.

      (3) The powers in this section may be exercised only for the purposes of arbitrating an access dispute.

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