Competition and Consumer Act. Australia

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СКАЧАТЬ 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 has been made a party to the proceedings for review by the Tribunal; and

      (b) publish, by electronic or other means, the notice.

      (6) The Tribunal may either affirm or vary the Commission’s determination.

      (7) The determination, as affirmed or varied by the Tribunal, is to be taken to be a determination of the Commission for all purposes of this Part (except this section).

      (8) The decision of the Tribunal takes effect from when it is made.

      44ZQ Provisions that do not apply in relation to a Tribunal review

      Sections 37, 39 to 43 (inclusive) and 103 to 110 (inclusive) do not apply in relation to a review by the Tribunal of a final determination made by the Commission.

      44ZR Appeals to Federal Court from determinations of the Tribunal

      (1) A party to an arbitration may appeal to the Federal Court, on a question of law, from the decision of the Tribunal under section 44ZP.

      (2) An appeal by a person under subsection (1) must be instituted:

      (a) not later than the 28th day after the day on which the decision of the Tribunal is made or within such further period as the Federal Court (whether before or after the end of that day) allows; and

      (b) in accordance with the Rules of Court made under the Federal Court of Australia Act 1976.

      (3) The Federal Court must hear and determine the appeal and may make any order that it thinks appropriate.

      (4) The orders that may be made by the Federal Court СКАЧАТЬ