Competition and Consumer Act. Australia
the period specified in the notice, for the purposes of the review.
(5B) The Tribunal must:
(a) give a copy of the notice to:
(i) the person who applied for review; and
(ii) the person who made the application under subsection 44PA(1) requesting approval of a tender process as a competitive tender process; and
(iii) for a review of a decision under subsection 44PC(2) — the provider of the service; and
(iv) any other person who has been made a party to the proceedings for review by the Tribunal; and
(b) publish, by electronic or other means, the notice.
Tribunal’s decision
(6) The Tribunal must, by writing, affirm or set aside the Commission’s decision.
Division 2C
Register of decisions and declarations
44Q Register of decisions, declarations and ineligibility decisions
The Commission must maintain a public register that includes:
(a) each decision of the Commonwealth Minister that a regime established by a State or Territory for access to a service is an effective access regime for the service or proposed service; and
(aa) each decision of the Commonwealth Minister to extend the period for which a decision under section 44N is in force; and
(b) each declaration (including a declaration that is no longer in force); and
(ba) each decision of a designated Minister under section 44LG that a service is ineligible to be a declared service; and
(bb) each decision of a designated Minister under section 44LI to revoke his or her decision that a service is ineligible to be a declared service; and
(c) each decision of the Commission under subsection 44PA(3) to approve a tender process as a competitive tender process; and
(d) each decision of the Commission under section 44PC to revoke a decision under subsection 44PA(3).
Division 3
Access to declared services
Subdivision A
Scope of Division
44R Constitutional limits on operation of this Division
This Division does not apply in relation to a third party’s access to a service unless:
(a) the provider is a corporation (or a partnership or joint venture consisting wholly of corporations); or
(b) the third party is a corporation; or
(c) the access is (or would be) in the course of, or for the purposes of, constitutional trade or commerce.
Subdivision B
Notification of access disputes
44S Notification of access disputes
(1) If a third party is unable to agree with the provider on one or more aspects of access to a declared service, either the provider or the third party may notify the Commission in writing that an access dispute exists, but only to the extent that those aspects of access are not the subject of an access undertaking that is in operation in relation to the service.
Note: An example of one of the things on which a provider and third party might disagree is whether a previous determination ought to be varied.
(2) On receiving the notification, the Commission must give notice in writing of the access dispute to:
(a) the provider, if the third party notified the access dispute;
(b) the third party, if the provider notified the access dispute;
(c) any other person whom the Commission thinks might want to become a party to the arbitration.
44T Withdrawal of notifications
(1) A notification may be withdrawn as follows (and not otherwise):
(a) if the provider notified the dispute:
(i) the provider may withdraw the notification at any time before the Commission makes its final determination;
(ii) the third party may withdraw the provider’s notification at any time after the Commission issues a draft final determination, but before it makes its final determination;
(b) if the third party notified the dispute, the third party may withdraw the notification at any time before the Commission makes its determination.
(2) Despite subparagraph (1)(a)(ii), if the provider notified a dispute over variation of a final determination, the third party may not withdraw the provider’s notification.
(3) If the notification is withdrawn, it is taken for the purposes of this Part never to have been given.
Subdivision C
Arbitration of access disputes
44U Parties to the arbitration
The parties to the arbitration of an access dispute are:
(a) the provider;
(b) the third party;
(c) any other person who applies in writing to be made a party and is accepted by the Commission as having a sufficient interest.
44V Determination by Commission
(1) Unless it terminates the arbitration under section 44Y, 44YA, 44ZZCB or 44ZZCBA, the Commission:
(a) must make a written final determination; and
(b) may make a written interim determination;
on access by the third party to the service.
Note 1: There are time limits that apply to the Commission’s final determination: see section 44XA.
Note 2: The Commission may defer arbitration of the access dispute if it is also considering an access undertaking: see section 44ZZCB.
(2) A determination may deal with any matter relating to access by the third party to the service, including matters that were not the basis for notification of the dispute. By way of example, the determination may:
(a) require the provider to provide access to the service by the third party;
(b) require the third party to accept, and pay for, access to the service;
(c) specify the terms and conditions of the third party’s access to the service;
(d) require the provider to extend the facility;
(da) require the provider to permit interconnection to the facility by the third party;
(e) specify the extent to which the determination overrides an earlier determination relating to access to the service by the third party.
(3) A determination does not have to require the provider to provide access to the service by the third party.
(4) Before making a determination, the Commission must give a draft determination to the parties.
(5) When the Commission makes a determination, it must give the parties to the arbitration its reasons for making the determination.
(6) A determination is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.
44W Restrictions on access determinations
(1)