Competition and Consumer Act. Australia

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      44W Restrictions on access determinations

      (1) The Commission must not make a determination that would have any of the following effects:

      (a) preventing an existing user obtaining a sufficient amount of the service to be able to meet the user’s reasonably anticipated requirements, measured at the time when the dispute was notified;

      (b) preventing a person from obtaining, by the exercise of a pre-notification right, a sufficient amount of the service to be able to meet the person’s actual requirements;

      (c) depriving any person of a protected contractual right;

      (d) resulting in the third party becoming the owner (or one of the owners) of any part of the facility, or of extensions of the facility, without the consent of the provider;

      (e) requiring the provider to bear some or all of the costs of extending the facility or maintaining extensions of the facility;

      (f) requiring the provider to bear some or all of the costs of interconnections to the facility or maintaining interconnections to the facility.

      (2) Paragraphs (1)(a) and (b) do not apply in relation to the requirements and rights of the third party and the provider when the Commission is making a determination in arbitration of an access dispute relating to an earlier determination of an access dispute between the third party and the provider.

      (3) A determination is of no effect if it is made in contravention of subsection (1).

      (4) If the Commission makes a determination that has the effect of depriving a person (the second person) of a pre-notification right to require the provider to supply the service to the second person, the determination must also require the third party:

      (a) to pay to the second person such amount (if any) as the Commission considers is fair compensation for the deprivation; and

      (b) to reimburse the provider and the Commonwealth for any compensation that the provider or the Commonwealth agrees, or is required by a court order, to pay to the second party as compensation for the deprivation.

      Note: Without infringing paragraph (1)(b), a determination may deprive a second person of the right to be supplied with an amount of service equal to the difference between the total amount of service the person was entitled to under a pre-notification right and the amount that the person actually needs to meet his or her actual requirements.

      (4A) If an application for review of a declaration of a service has been made under subsection 44K(1), the Commission must not make a determination in relation to the service until the Tribunal has made its decision on the review.

      (5) In this section:

      existing user means a person (including the provider) who was using the service at the time when the dispute was notified.

      pre-notification right means a right under a contract, or under a determination, that was in force at the time when the dispute was notified.

      protected contractual right means a right under a contract that was in force at the beginning of 30 March 1995.