Competition and Consumer Act - Australia

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regard to the principles in making a final determination under Division 3 and in deciding whether or not to accept an access undertaking or access code under Division 6.

      Division 6B

      Overlap among determinations, registered contracts, access undertakings and Tribunal review

      44ZZCB Deferring access disputes or access undertakings

      (1) If, at a particular time, the Commission is:

      (a) arbitrating an access dispute under Division 3 relating to one or more matters of access to a declared service; and

      (b) considering whether to accept an access undertaking relating to the service and to one or more of those matters;

      then the Commission may, by notice in writing, decide to:

      (c) defer arbitrating the access dispute, in whole or in part, while it considers the access undertaking; or

      (d) defer considering whether to accept the access undertaking, in whole or in part, while it arbitrates the access dispute.

      Deferral of arbitration of access dispute

      (2) If:

      (a) the Commission defers arbitrating the access dispute; and

      (b) the Commission then accepts the access undertaking and it comes into operation;

      then the Commission must terminate the arbitration when the undertaking comes into operation, but only to the extent of the matters relating to access to the service that are dealt with in the undertaking.

      Note: The third party’s access to the service is determined under the access undertaking to the extent of the matters it deals with. If the access dispute deals with other matters, the third party’s access to the service in relation to those other matters is determined under any determination the Commission makes.

      Deferral of consideration of access undertaking

      (3) If:

      (a) the Commission defers considering whether to accept the access undertaking; and

      (b) the Commission then makes a final determination in relation to the arbitration of the access dispute;

      then the Commission must resume considering whether to accept the access undertaking.

      Publication

      (4) The Commission must publish, by electronic or other means, any decision it makes under subsection (1) and its reasons for the decision. The Commission must give a copy of the decision (including the reasons for the decision) to each party to the arbitration.

      Guidelines

      (5) In exercising the power conferred by subsection (1), the Commission must have regard to:

      (a) the fact that the access undertaking will, if accepted, apply generally to access seekers and a final determination relating to the access dispute will only apply to the parties to the arbitration; and

      (b) any guidelines in force under subsection (6).

      It may have regard to any other matter it considers relevant.

      (6) The Commission must, by legislative instrument, determine guidelines for the purposes of subsection (5).

      (7) The Commission must take all reasonable steps to ensure that the first set of guidelines under subsection (6) is made within 6 months after the commencement of this subsection.

      Legislative Instruments Act

      (8) A notice made under subsection (1) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.

      44ZZCBA Deferral of arbitration if review is underway

      Commission may defer arbitration if declaration not stayed

      (1) If:

      (a) the Commission is arbitrating an access dispute relating to one or more matters of access to a declared service; and

      (b) an application for review of the declaration of the service has been made under subsection 44K(1); and

      (c) the Tribunal does not make an order under section 44KA staying the operation of the declaration;

      then the Commission may, by notice in writing to each party to the arbitration, decide to defer arbitrating the access dispute until the Tribunal has made its decision on the review if it considers it appropriate to do so.

      Commission must defer arbitration if declaration stayed

      (2) If:

      (a) the Commission is arbitrating an access dispute relating to one or more matters of access to a declared service; and

      (b) an application for review of the declaration of the service has been made under subsection 44K(1); and

      (c) the Tribunal makes an order under section 44KA staying the operation of the declaration;

      then the Commission must, by notice in writing to each party to the arbitration, defer arbitrating the access dispute until the Tribunal has made its decision on the review.

      Resumption of arbitration if declaration affirmed

      (3) If the Commission defers arbitrating the access dispute and the Tribunal affirms the declaration, the Commission must resume arbitrating the dispute.

      Termination of arbitration if declaration varied or set aside

      (4) If the Commission defers arbitrating the access dispute and the Tribunal sets aside or varies the declaration, the Commission must terminate the arbitration.

      (5) If:

      (a) an arbitration is terminated under subsection (4) or section 44YA; and

      (b) an access dispute is notified under section 44S in relation to access to the same declared service; and

      (c) the parties to the dispute are the same parties to the terminated arbitration;

      then the Commission may have regard to any record made in the course of the terminated arbitration if it considers it appropriate to do so.

      Notices are not legislative instruments

      (6) A notice given under subsection (1) or (2) is not a legislative instrument.

      44ZZCC Overlap between determinations and access undertakings

      If, at a particular time:

      (a) a final determination is in operation in relation to a declared service; and

      (b) an access undertaking is in operation in relation to the service;

      the third party’s access to the service at that time is to be determined under the undertaking to the extent that it deals with a matter or matters relating to access to the service that are not dealt with in the determination.

      44ZZCD Overlap between registered contracts and access undertakings

      If, at a particular time:

      (a) a contract is registered under Division 4 in relation to a declared service; and

      (b) an access undertaking is in operation in relation to the service;

      the third party’s access to the service at that time is to be determined under the undertaking to the extent that it deals with a matter or matters relating to access to the service that are not dealt with in the contract.

      Division 7

      Enforcement and remedies

      44ZZD Enforcement of determinations

      (1) If the Federal Court is satisfied, on the application of

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