Competition and Consumer Act. Australia
of the Commission’s decision.
(3) The review by the Tribunal is a re-consideration of the matter based on the information, reports and things referred to in section 44ZZOAA.
Note: There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and 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 contract; and
(iii) 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; and
(6) The Tribunal may either:
(a) affirm the Commission’s decision; or
(b) register the contract.
44ZY Effect of registration of contract
The parties to a contract that has been registered:
(a) may enforce the contract under Division 7 as if the contract were a determination of the Commission under section 44V and they were parties to the determination; and
(b) cannot enforce the contract by any other means.
Division 5
Hindering access to declared services
44ZZ Prohibition on hindering access to declared services
(1) The provider or a user of a service to which a third party has access under a determination, or a body corporate related to the provider or a user of the service, must not engage in conduct for the purpose of preventing or hindering the third party’s access to the service under the determination.
(2) A person may be taken to have engaged in conduct for the purpose referred to in subsection (1) even though, after all the evidence has been considered, the existence of that purpose is ascertainable only by inference from the conduct of the person or from other relevant circumstances. This subsection does not limit the manner in which the purpose of a person may be established for the purposes of subsection (1).
(3) In this section, a user of a service includes a person who has a right to use the service.
Division 6
Access undertakings and access codes for services
Subdivision A
Giving of access undertakings and access codes
44ZZA Access undertakings by providers
(1) A person who is, or expects to be, the provider of a service may give a written undertaking to the Commission in connection with the provision of access to the service.
Note: The following are examples of the kinds of things that might be dealt with in the undertaking:
(a) terms and conditions of access to the service;
(b) procedures for determining terms and conditions of access to the service;
(c) an obligation on the provider not to hinder access to the service;
(d) an obligation on the provider to implement a particular business structure;
(e) an obligation on the provider to provide information to the Commission or to another person;
(f) an obligation on the provider to comply with decisions of the Commission or another person in relation to matters specified in the undertaking;
(g) an obligation on the provider to seek a variation of the undertaking in specified circumstances.
(2) The undertaking must specify the expiry date of the undertaking.
(3) The Commission may accept the undertaking, if it thinks it appropriate to do so having regard to the following matters:
(aa) the objects of this Part;
(ab) the pricing principles specified in section 44ZZCA;
(a) the legitimate business interests of the provider;
(b) the public interest, including the public interest in having competition in markets (whether or not in Australia);
(c) the interests of persons who might want access to the service;
(da) whether the undertaking is in accordance with an access code that applies to the service;
(e) any other matters that the Commission thinks are relevant.
Note 1: There are grounds on which the Commission may reject the undertaking if it contains, or should contain, fixed principles: see section 44ZZAAB.
Note 2: The Commission may defer consideration of the undertaking if it is also arbitrating an access dispute: see section 44ZZCB.
(3AA) The Commission must not accept the undertaking if a decision of the Commonwealth Minister is in force under section 44N that a regime established by a State or Territory for access to the service is an effective access regime.
(3AB) The Commission may reject the undertaking if it incorporates one or more amendments (see subsection 44ZZAAA(5)) and the Commission is satisfied that the amendment or amendments are of a kind, are made at a time, or are made in a manner that:
(a) unduly prejudices anyone the Commission considers has a material interest in the undertaking; or
(b) unduly delays the process for considering the undertaking.
(3A) The Commission must not accept the undertaking unless:
(a) the provider, or proposed provider, is a corporation (or a partnership or joint venture consisting wholly of corporations); or
(b) the undertaking provides for access only to third parties that are corporations; or
(c) the undertaking provides for access that is (or would be) in the course of, or for the purposes of, constitutional trade or commerce.
(6) If the undertaking provides for disputes about the undertaking to be resolved by the Commission, then the Commission may resolve the disputes in accordance with the undertaking.
(6A) If the undertaking provides for the Commission to perform functions or exercise powers in relation to the undertaking, the Commission may perform those functions and exercise those powers. If the Commission decides to do so, it must do so in accordance with the undertaking.
(6B) The Commission may accept the undertaking even if the service is the subject of a decision by the designated Minister under section 44LG that the service is ineligible to be a declared service.
(7) The provider may:
(a) withdraw the application given under subsection (1) at any time before the Commission makes a decision on whether to accept the application; and
(b) withdraw or vary the undertaking at any time after it has been accepted by the Commission, but only with the consent of the Commission.
The Commission may consent to a variation of the undertaking if it thinks it appropriate to do so having regard to the matters in subsection