Competition and Consumer Act. Australia
the methodologies the Commission applied in making the determination and the reasons for the choice of the asset valuation methodology;
(c) how the Commission took into account the matters mentioned in subsection 44X(1) in making the determination;
(d) any matter the Commission took into account under subsection 44X(2) in making the determination and the reasons for doing so;
(e) any information provided by the parties to the arbitration that was relevant to those principles or methodologies;
Note: Confidentiality issues are dealt with in subsections (5) to (7).
(f) any implications the Commission considers the determination has for persons seeking access to the service or to similar services in the future;
(g) if applicable — the reasons for the determination dealing with matters that were already agreed between the parties to the arbitration at the time the access dispute was notified;
(h) if applicable — the reasons for the access dispute being the subject of a joint arbitration hearing under section 44ZNA despite the objection of a party to the arbitration.
Report may include other matters
(4) The report may include any other matter that the Commission considers relevant.
Confidentiality
(5) The Commission must not include in the report any information the Commission decided not to give to a party to the arbitration under section 44ZL.
(6) Before publishing the report, the Commission must give each party to the arbitration a notice in writing:
(a) specifying what the Commission is proposing to publish; and
(b) inviting the party to make a written submission to the Commission within 14 days after the notice is given identifying any information the party considers should not be published because of its confidential commercial nature.
(7) The Commission must have regard to any submission so made in deciding what to publish. It may have regard to any other matter it considers relevant.
Legislative Instruments Act
(8) A report prepared under subsection (1) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Subdivision E
Effect of determinations
44ZO Operation of final determinations
(1) If none of the parties to the arbitration applies to the Tribunal under section 44ZP for a review of the Commission’s final determination, the determination has effect 21 days after the determination is made.
(2) If a party to the arbitration applies to the Tribunal under section 44ZP for a review of the Commission’s final determination, the determination is of no effect until the Tribunal makes its determination on the review.
Backdating
(3) Any or all of the provisions of a final determination may be expressed to apply from a specified day that is earlier than the day on which it takes effect under subsection (1) or (2).
Example: The Commission makes a final determination on 1 August. It takes effect under subsection (1) on 22 August, but it is expressed to apply from 1 July.
(4) The specified day must not be earlier than the following day:
(a) if the third party and provider commenced negotiations on access to the service after the service became a declared service — the day on which the negotiations commenced;
(b) if the third party and provider commenced negotiations on access to the service before the service became a declared service — the day on which the declaration began to operate.
However, the specified day cannot be a day on which the third party did not have access to the service.
Operation of interim determination
(5) If a provision of a final determination is expressed to apply from a day when an interim determination was in effect, the provision of the final determination prevails over the interim determination to the extent set out in the final determination.
Interest
(6) If:
(a) a provision of a final determination is covered by subsection (3); and
(b) the provision requires a party to the determination (the first party) to pay money to another party;
the determination may require the first party to pay interest to the other party, at the rate specified in the determination, on the whole or a part of the money, for the whole or a part of the period:
(c) beginning on the day specified under subsection (3); and
(d) ending on the day on which the determination takes effect under subsection (1) or (2).
Guidelines
(7) In exercising the power conferred by subsection (3) or (6), the Commission must have regard to any guidelines in force under subsection (8). It may have regard to any other matter it considers relevant.
(8) The Commission must, by legislative instrument, determine guidelines for the purposes of subsection (7).
(9) The Commission must take all reasonable steps to ensure that the first set of guidelines under subsection (8) is made within 6 months after the commencement of this subsection.
44ZOA Effect and duration of interim determinations
(1) An interim determination takes effect on the day specified in the determination.
(2) Unless sooner revoked, an interim determination continues in effect until the earliest of the following:
(a) the notification of the access dispute is withdrawn under section 44T;
(b) a final determination relating to the access dispute takes effect;
Note: A backdated final determination may prevail over an interim determination: see subsection 44ZO(5).
(c) an interim determination made by the Tribunal (while reviewing a final determination relating to the access dispute) takes effect.
Subdivision F
Review of final determinations
44ZP Review by Tribunal
(1) A party to a final determination may apply in writing to the Tribunal for a review of the determination.
(2) The application must be made within 21 days after the Commission made the final determination.
(3) A review by the Tribunal is a re-arbitration of the access dispute based on the information, reports and things referred to in section 44ZZOAA.
Note: There are time limits that apply to the Tribunal’s decision on the review: see section 44ZZOA.
(4) For the purposes of the review, the Tribunal has the same powers as the Commission.
(5) The member of the Tribunal presiding at the review may require the Commission to give assistance for the purposes of the review.
(5A) Without limiting subsection (5), the member may, by written notice, require the Commission to give information, and to make reports, of a kind specified in the notice, within 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 other party or parties to the final determination; and
(iii) any other person who