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COMPETITION AND CONSUMER ACT 2010 - SECT 152ATA

Anticipatory individual exemptions from category A standard access obligations

Application for exemption order

             (1)  A person who is, or expects to be, a carrier or a carriage service provider may apply to the Commission for a written order that, in the event that a specified service or proposed service becomes an active declared service, the person is exempt from any or all of the obligations referred to in section 152AR, to the extent to which the obligations relate to the active declared service.

             (2)  An application under subsection (1) must be:

                     (a)  in writing; and

                     (b)  in a form approved in writing by the Commission for the purposes of this paragraph.

          (2A)  Before the Commission makes a decision under subsection (3) in relation to the application, the applicant may, by written notice given to the Commission within the time allowed by the Procedural Rules, modify the application, so long as the modification is a modification that, under the Procedural Rules, is taken to be a modification of a minor nature.

Commission must make exemption order or refuse application

             (3)  After considering the application, the Commission must:

                     (a)  make a written order that, in the event that the service or proposed service becomes an active declared service, the applicant is exempt from one or more of the obligations referred to in section 152AR, to the extent to which the obligations relate to the active declared service; or

                     (b)  refuse the application.

          (3A)  A service or a proposed service must not be specified in an order under paragraph (3)(a) if, at the time when the order is made, the service or proposed service is a declared service.

             (4)  An order under paragraph (3)(a) may be unconditional or subject to such conditions or limitations as are specified in the order.

Note:          For judicial enforcement of conditions and limitations, see section 152BBAA.

          (4A)  An order under paragraph (3)(a) may:

                     (a)  provide that the order must not be varied; or

                     (b)  provide that the order must not be varied except in such circumstances as are specified in the order.

          (4B)  An order under paragraph (3)(a) may:

                     (a)  provide that the order must not be revoked; or

                     (b)  provide that the order must not be revoked except in such circumstances as are specified in the order.

             (5)  An order under paragraph (3)(a) has effect accordingly.

Criteria for making exemption order

             (6)  The Commission must not make an order under paragraph (3)(a) unless the Commission is satisfied that the making of the order will promote the long-term interests of end-users of carriage services or of services provided by means of carriage services.

Serial applications

             (7)  If:

                     (a)  a person makes an application (the first application ) under subsection (1) for an order in relation to a service or proposed service; and

                     (b)  the Commission refuses the first application; and

                     (c)  the person subsequently makes another application under subsection (1); and

                     (d)  the Commission is satisfied that:

                              (i)  the first application and the other application have material similarities; or

                             (ii)  the grounds on which the person made the first application are materially similar to the grounds on which the person has made the other application;

the Commission may refuse to consider the other application.

Expiry time for exemption order

           (10)  An order under paragraph (3)(a) must specify the expiry time for the order. If an order expires, this Part does not prevent the Commission from making a fresh order under paragraph (3)(a) in the same terms as the expired order.

        (10A)  The expiry time for the order may be described by reference to the end of a period beginning when the service or proposed service becomes an active declared service.

        (10B)  Subsection (10A) does not, by implication, limit subsection (10).

Consultation

           (11)  If, in the Commission's opinion, the making of an order under paragraph (3)(a) is likely to have a material effect on the interests of a person, then, before making the order, the Commission must first:

                     (a)  publish the application for the order and invite people to make submissions to the Commission on the question of whether the order should be made; and

                     (b)  consider any submissions that were received within the time limit specified by the Commission when it published the application.

Commission to make decision within 6 months

           (12)  If the Commission does not make a decision on an application under this section within 6 months after receiving the application, the Commission is taken to have made, at the end of that 6-month period, an order under paragraph (3)(a) in accordance with the terms of the application.

           (13)  In calculating the 6-month period referred to in subsection (12), disregard:

                     (a)  if the Commission has published the application under subsection (11)--a day in the period:

                              (i)  beginning on the date of publication; and

                             (ii)  ending at the end of the time limit specified by the Commission when it published the application; and

                     (b)  if the Commission has requested further information under section 152AU in relation to the application--a day during any part of which the request, or any part of the request, remains unfulfilled.

Extension of decision-making period

           (14)  The Commission may, by written notice given to the applicant, extend or further extend the 6-month period referred to in subsection (12), so long as:

                     (a)  the extension or further extension is for a period of not more than 3 months; and

                     (b)  the notice includes a statement explaining why the Commission has been unable to make a decision on the application within that 6-month period or that 6-month period as previously extended, as the case may be.

           (15)  As soon as practicable after the Commission gives a notice under subsection (14), the Commission must cause a copy of the notice to be made available on the internet.

Notification of refusal of application

           (16)  If the Commission makes a decision refusing an application under subsection (1), the Commission must give the applicant a written statement setting out the reasons for the refusal.

        (16A)  Subsection 33(3) of the Acts Interpretation Act 1901 applies to a power conferred on the Commission by paragraph (3)(a), but it applies with the following changes.

        (16B)  A provision referred to in paragraph (4A)(a) or (b) or (4B)(a) or (b) cannot be varied or removed.

        (16C)  An order under paragraph (3)(a) must not be varied or revoked in a manner that is inconsistent with a provision referred to in (4A)(a) or (b) or (4B)(a) or (b).

Definition

           (18)  In this section:

"active declared service " has the same meaning as in section 152AR.



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