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COMPETITION AND CONSUMER ACT 2010 - SECT 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 (3).

Note 1:       There are time limits that apply to a decision of the Commission under this section: see section 44ZZBC.

Note 2:       The Commission may request information and invite public submissions in relation to its decision: see sections 44ZZBCA and 44ZZBD.

Note 3:       The Commission must publish its decision: see section 44ZZBE.



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