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COMPETITION AND CONSUMER ACT 2010 - SECT 152BBA

Commission may give directions in relation to negotiations

             (1)  This section applies if a carrier or carriage service provider is required to comply with any or all of the standard access obligations.

             (2)  If the following parties:

                     (a)  the carrier or carriage service provider, as the case requires;

                     (b)  the access seeker;

propose to negotiate, or are negotiating, with a view to agreeing on terms and conditions as mentioned in paragraph 152AY(2)(a), the Commission may, for the purposes of facilitating those negotiations, if requested in writing to do so by either party, give a party a written procedural direction requiring the party to do, or refrain from doing, a specified act or thing relating to the conduct of those negotiations.

             (3)  The following are examples of the kinds of procedural directions that may be given under subsection (2):

                     (a)  a direction requiring a party to give relevant information to the other party;

                     (b)  a direction requiring a party to carry out research or investigations in order to obtain relevant information;

                     (c)  a direction requiring a party not to impose unreasonable procedural conditions on the party's participation in negotiations;

                     (d)  a direction requiring a party to respond in writing to the other party's proposal or request in relation to the time and place of a meeting;

                     (e)  a direction requiring a party, or a representative of a party, to attend a mediation conference;

                      (f)  a direction requiring a party, or a representative of a party, to attend a conciliation conference.

             (4)  For the purposes of paragraph (3)(c), if a party (the first party ) imposes, as a condition on the first party's participation in negotiations, a requirement that the other party must not disclose to the Commission any or all information, or the contents of any or all documents, provided in the course of negotiations, that condition is taken to be an unreasonable procedural condition on the first party's participation in those negotiations.

             (5)  A person must not contravene a direction under subsection (2).

             (6)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of subsection (5); or

                     (b)  induce, whether by threats or promises or otherwise, a contravention of subsection (5); or

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (5); or

                     (d)  conspire with others to effect a contravention of subsection (5).

             (7)  In deciding whether to give a direction under subsection (2), the Commission must have regard to:

                     (a)  any guidelines in force under subsection (8); and

                     (b)  such other matters as the Commission considers relevant.

             (8)  The Commission may, by written instrument, formulate guidelines for the purposes of subsection (7).

             (9)  In addition to its effect apart from this subsection, this section also has the effect it would have if:

                     (a)  each reference to a carrier were, by express provision, confined to a carrier that is a constitutional corporation; and

                     (b)  each reference to a carriage service provider were, by express provision, confined to a carriage service provider that is a constitutional corporation; and

                     (c)  each reference to an access seeker were, by express provision, confined to an access seeker that is a constitutional corporation.



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