Commonwealth Numbered Acts

COMPETITION POLICY REFORM ACT 1995 No. 88 of 1995 - SECT 59

59. After Part III of the Principal Act the following Part is inserted:
                  "PART IIIA-ACCESS TO SERVICES


"Division 1-Preliminary Definitions

"44B. In this Part, unless the contrary intention appears:
'access undertaking' means an undertaking under section 44ZZA;
'Commonwealth Minister' means the Minister;
'constitutional trade or commerce' means any of the following:

   (a)  trade or commerce among the States;

   (b)  trade or commerce between Australia and places outside Australia;

   (c)  trade or commerce between a State and a Territory, or between 2
        Territories;
'declaration' means a declaration made by the designated Minister under
Division 2;
'declaration recommendation' means a recommendation made by the Council under
section 44F;
'declared service' means a service for which a declaration is in operation;
'designated Minister' has the meaning given by section 44D;
'determination' means a determination made by the Commission under Division 3;
'director' has the same meaning as in the Corporations Law;
'entity' means a person, partnership or joint venture;
'modifications' includes additions, omissions and substitutions;
'officer' has the same meaning as in the Corporations Law;
'party' means:

   (a)  in relation to an arbitration of an access dispute-a party to the
        arbitration, as mentioned in section 44U;

   (b)  in relation to a determination-a party to the arbitration in which the
        Commission made the determination;
'provider', in relation to a service, means the entity that is the owner or
operator of the facility that is used (or is to be used) to provide the
service;
'responsible Minister' means:

   (a)  the Premier, in the case of a State;

   (b)  the Chief Minister, in the case of a Territory;
'revocation recommendation' means a recommendation made by the Council under
section 44J;
'service' means a service provided by means of a facility and includes:

   (a)  the use of an infrastructure facility such as a road or railway line;

   (b)  handling or transporting things such as goods or people;

   (c)  a communications service or similar service; but does not include:

   (d)  the supply of goods; or

   (e)  the use of intellectual property; or

   (f)  the use of a production process; except to the extent that it is an
        integral but subsidiary part of the service;
'State or Territory body' means:

   (a)  a State or Territory;

   (b)  an authority of a State or Territory;
'third party', in relation to a service, means a person who wants access to
the service or wants a change to some aspect of the person's existing access
to the service.

How this Part applies to partnerships and joint ventures

"44C.(1) This section applies if the provider of a service is a partnership or
joint venture that consists of 2 or more corporations. Those corporations are
referred to in this section as the 'participants'.

"(2) If this Part requires or permits something to be done by the provider,
the thing may be done by one or more of the participants on behalf of the
provider.

"(3) If a provision of this Part refers to the provider bearing any costs, the
provision applies as if the provision referred to any of the participants
bearing any costs.

"(4) If a provision of this Part refers to the provider doing something, the
provision applies as if the provision referred to one or more of the
participants doing that thing on behalf of the provider.

"(5) If:

   (a)  a provision of this Part requires the provider to do something, or
        prohibits the provider from doing something; and

   (b)  a contravention of the provision is an offence; the provision applies
        as if a reference to the provider were a reference to any person
        responsible for the day-to-day management and control of the provider.

"(6) If:

   (a)  a provision of this Part requires a provider to do something, or
        prohibits a provider doing something; and

   (b)  a contravention of the provision is not an offence; the provision
        applies as if the reference to provider were a reference to each
        participant and to any other person responsible for the day-to-day
        management and control of the provider.

Meaning of "designated Minister"

"44D.(1) The Commonwealth Minister is the designated Minister unless
subsection (2) or (3) applies.

"(2) In relation to declaring a service in a case where:

   (a)  the provider is a State or Territory body; and

   (b)  the State or Territory concerned is a party to the Competition
        Principles Agreement; the responsible Minister of the State or
        Territory is the designated Minister.

"(3) In relation to revoking a declaration that was made by the responsible
Minister of a State or Territory, the responsible Minister of that State or
Territory is the designated Minister.

This Part binds the Crown

"44E.(1) This Part binds the Crown in right of the Commonwealth, of each of
the States, of the Australian Capital Territory and of the Northern Territory.

"(2) Nothing in this Part makes the Crown liable to be prosecuted for an
offence.

"(3) The protection in subsection (2) does not apply to an authority of the
Commonwealth or an authority of a State or Territory.

                "Division 2-Declared services


"Subdivision A-Recommendation by the Council Person may request recommendation

"44F.(1) The designated Minister, or any other person, may make a written
application to the Council asking the Council to recommend under section 44G
that a particular service be declared.

"(2) After receiving the application, the Council:

   (a)  must tell the provider of the service that the Council has received
        the application, unless the provider is the applicant; and

   (b)  must recommend to the designated Minister:

        (i)    that the service be declared; or

        (ii)   that the service not be declared.

"(3) If the applicant is a person other than the designated Minister, the
Council may recommend that the service not be declared if the Council thinks
that the application was not made in good faith. This subsection does not
limit the grounds on which the Council may decide to recommend that the
service not be declared.

"(4) In deciding what recommendation to make, the Council must consider
whether it would be economical for anyone to develop another facility that
could provide part of the service. This subsection does not limit the grounds
on which the Council may decide to recommend that the service be declared or
not be declared.

"(5) The applicant may withdraw the application at any time before the Council
makes a recommendation relating to it.

Limits on the Council recommending declaration of a service

"44G.(1) The Council cannot recommend declaration of a service that is the
subject of an access undertaking in operation under section 44ZZA.

"(2) The Council cannot recommend that a service be declared unless it is
satisfied of all of the following matters:

   (a)  that access (or increased access) to the service would promote
        competition in at least one market (whether or not in Australia),
        other than the market for the service;

   (b)  that it would be uneconomical for anyone to develop another facility
        to provide the service;

   (c)  that the facility is of national significance, having regard to:

        (i)    the size of the facility; or

        (ii)   the importance of the facility to constitutional trade or
               commerce; or

        (iii)  the importance of the facility to the national economy;

   (d)  that access to the service can be provided without undue risk to human
        health or safety;

   (e)  that access to the service is not already the subject of an effective
        access regime;

   (f)  that access (or increased access) to the service would not be contrary
        to the public interest.

"(3) In deciding whether an access regime established by a State or Territory
that is a party to the Competition Principles Agreement is an effective access
regime, the Council:

   (a)  must apply the relevant principles set out in that agreement; and

   (b)  must not consider any other matters.

"(4) If there is in force a decision of the Commonwealth Minister under
section 44N that a regime established by a State or Territory for access to
the service is an effective access regime, the Council must follow that
decision, unless the Council believes that, since the Commonwealth Minister's
decision was published, there have been substantial modifications of the
access regime or of the relevant principles set out in the Competition
Principles Agreement. Note: The period for which a decision is in force is
determined under subsection 44N(3) and paragraph 44P(a).



"Subdivision B-Declaration by the designated Minister Designated Minister may
declare a service

"44H.(1) On receiving a declaration recommendation, the designated Minister
must either declare the service or decide not to declare it.

"(2) In deciding whether to declare the service or not, the designated
Minister must consider whether it would be economical for anyone to develop
another facility that could provide part of the service. This subsection does
not limit the grounds on which the designated Minister may make a decision
whether to declare the service or not.

"(3) The designated Minister cannot declare a service that is the subject of
an access undertaking in operation under section 44ZZA.

"(4) The designated Minister cannot declare a service unless he or she is
satisfied of all of the following matters:

   (a)  that access (or increased access) to the service would promote
        competition in at least one market (whether or not in Australia),
        other than the market for the service;

   (b)  that it would be uneconomical for anyone to develop another facility
        to provide the service;

   (c)  that the facility is of national significance, having regard to:

        (i)    the size of the facility; or

        (ii)   the importance of the facility to constitutional trade or
               commerce; or

        (iii)  the importance of the facility to the national economy;

   (d)  that access to the service can be provided without undue risk to human
        health or safety;

   (e)  that access to the service is not already the subject of an effective
        access regime;

   (f)  that access (or increased access) to the service would not be contrary
        to the public interest.

"(5) In deciding whether an access regime established by a State or Territory
that is a party to the Competition Principles Agreement is an effective access
regime, the Minister:

   (a)  must apply the relevant principles set out in that agreement; and

   (b)  must not consider any other matters.

"(6) If there is in force a decision of the Commonwealth Minister under
section 44N that a regime established by a State or Territory for access to
the service is an effective access regime, the designated Minister must follow
that decision, unless the designated Minister believes that, since the
Commonwealth Minister's decision was published, there have been substantial
modifications of the access regime or of the relevant principles set out in
the Competition Principles Agreement. Note: The period for which a decision is
in force is determined under subsection 44N(3) and paragraph 44P(a).

"(7) The designated Minister must publish the declaration or his or her
decision not to declare the service. At the same time, the designated Minister
must give reasons for the decision and a copy of the declaration
recommendation to the provider and to the person who applied for the
declaration recommendation.

"(8) If the designated Minister declares the service, the declaration must
specify the expiry date of the declaration.

"(9) If the designated Minister does not publish under subsection (7) within
60 days after receiving the declaration recommendation, the designated
Minister is taken, at the end of that 60-day period, to have decided not to
declare the service and to have published that decision not to declare the
service.

Duration and effect of declaration

"44I.(1) Subject to this section, a declaration begins to operate at a time
specified in the declaration. The time cannot be earlier than 21 days after
the declaration is published.

"(2) If an application for review of a declaration is made within 21 days
after the declaration is published, the declaration does not begin to operate
until the Tribunal makes its decision on the review.

"(3) A declaration continues in operation until its expiry date, unless it is
earlier revoked.

"(4) The expiry or revocation of a declaration does not affect:

   (a)  the arbitration of an access dispute that was notified before the
        expiry or revocation; or

   (b)  the operation or enforcement of any determination made in the
        arbitration of an access dispute that was notified before the expiry
        or revocation.

Revocation of declaration

"44J.(1) The Council may recommend to the designated Minister that a
declaration be revoked.

"(2) The Council cannot recommend revocation of a declaration unless it is
satisfied that, at the time of the recommendation, subsection 44H(4) would
prevent the designated Minister from declaring the service concerned.

"(3) On receiving a revocation recommendation, the designated Minister must
either revoke the declaration or decide not to revoke the declaration.

"(4) The designated Minister must publish the decision to revoke or not to
revoke.

"(5) If the designated Minister decides not to revoke, the designated Minister
must give reasons for the decision to the provider of the declared service
when the designated Minister publishes the decision.

"(6) The designated Minister cannot revoke a declaration without receiving a
revocation recommendation.

Review of declaration

"44K.(1) If the designated Minister declares a service, the provider may apply
in writing to the Tribunal for review of the declaration.

"(2) If the designated Minister decides not to declare a service, an
application in writing for review of the designated Minister's decision may be
made by the person who applied for the declaration recommendation.

"(3) An application for review must be made within 21 days after publication
of the designated Minister's decision.

"(4) The review by the Tribunal is a re-consideration of the matter.

"(5) For the purposes of the review, the Tribunal has the same powers as the
designated Minister.

"(6) The member of the Tribunal presiding at the review may require the
Council to give information and other assistance and to make reports, as
specified by the member for the purposes of the review.

"(7) If the designated Minister declared the service, the Tribunal may affirm,
vary or set aside the declaration.

"(8) If the designated Minister decided not to declare the service, the
Tribunal may either:

   (a)  affirm the designated Minister's decision; or

   (b)  set aside the designated Minister's decision and declare the service
        in question.

"(9) A declaration, or varied declaration, made by the Tribunal is to be taken
to be a declaration by the designated Minister for all purposes of this Part
(except this section).

Review of decision not to revoke a declaration

"44L.(1) If the designated Minister decides not to revoke a declaration, the
provider may apply in writing to the Tribunal for review of the decision.

"(2) An application for review must be made within 21 days after publication
of the designated Minister's decision.

"(3) The review by the Tribunal is a re-consideration of the matter.

"(4) For the purposes of the review, the Tribunal has the same powers as the
designated Minister.

"(5) The member of the Tribunal presiding at the review may require the
Council to give information and other assistance and to make reports, as
specified by the member for the purposes of the review.

"(6) The Tribunal may either:

   (a)  affirm the designated Minister's decision; or

   (b)  set aside the designated Minister's decision and revoke the
        declaration.



"Subdivision C-Miscellaneous Recommendation for a Ministerial decision on
effectiveness of access regime

"44M.(1) This section applies if a State or Territory that is a party to the
Competition Principles Agreement has established at any time a regime for
access to a service.

"(2) The responsible Minister for the State or Territory may make a written
application to the Council asking the Council to recommend that the
Commonwealth Minister decide that the regime for access to the service is an
effective access regime.

"(3) The Council must recommend to the Commonwealth Minister:

   (a)  that he or she decide that the access regime is an effective access
        regime for the service; or

   (b)  that he or she decide that the access regime is not an effective
        access regime for the service.

"(4) In deciding what recommendation it should make, the Council:

   (a)  must assess whether the access regime is an effective access regime by
        applying the relevant principles set out in the Competition Principles
        Agreement; and

   (b)  must not consider any other matters.

"(5) When the Council recommends that the Commonwealth Minister make a
particular decision, the Council must also recommend the period for which the
decision should be in force.

Ministerial decision on effectiveness of access regime

"44N.(1) On receiving a recommendation, the Commonwealth Minister must:

   (a)  decide that the access regime is an effective access regime for the
        service; or

   (b)  decide that the access regime is not an effective access regime for
        the service.

"(2) In making a decision, the Commonwealth Minister:

   (a)  must apply the relevant principles set out in the Competition
        Principles Agreement; and

   (b)  must not consider any other matters.

"(3) The decision must specify the period for which it is in force.

"(4) The Commonwealth Minister must publish his or her decision. At the same
time, the Commonwealth Minister must give his or her reasons for the decision,
and a copy of the Council's recommendation, to the responsible Minister for
the State or Territory who applied for the recommendation.

Review of Ministerial decision on effectiveness of access regime

"44O.(1) The responsible Minister of the State or Territory who applied for a
recommendation that the Commonwealth Minister decide that the access regime is
an effective access regime may apply to the Tribunal for review of the
Commonwealth Minister's decision.

"(2) An application for review must be made within 21 days after publication
of the Commonwealth Minister's decision.

"(3) The review by the Tribunal is a reconsideration of the matter.

"(4) For the purposes of the review, the Tribunal has the same powers as the
Commonwealth Minister.

"(5) The member of the Tribunal presiding at the review may require the
Council to give information and other assistance, and to make reports, as
specified by the member for the purposes of the review.

"(6) The Tribunal may affirm, vary or reverse the Commonwealth Minister's
decision.

"(7) A decision made by the Tribunal is to be taken to be a decision of the
Commonwealth Minister for all purposes of this Part (except this section).

State or Territory ceasing to be a party to Competition Principles Agreement

"44P. If a State or Territory that has established a regime for access to a
service ceases to be a party to the Competition Principles Agreement:

   (a)  a decision by the Commonwealth Minister that the regime is an
        effective access regime ceases to be in force; and

   (b)  the Council, the Commonwealth Minister and the Tribunal need not take
        any further action relating to an application for a decision by the
        Commonwealth Minister that the regime is an effective access regime.

Register of decisions and declarations

"44Q. The Commission must maintain a public register that includes:

   (a)  each decision of the Commonwealth Minister that a regime established
        by a State or Territory for access to a service is an effective access
        regime for the service; and

   (b)  each declaration (including a declaration that is no longer in force).

               "Division 3-Access to declared services


"Subdivision A-Scope of Division Constitutional limits on operation of this
Division

"44R. This Division does not apply in relation to a third party's access to a
service unless:

   (a)  the provider is a corporation (or a partnership or joint venture
        consisting wholly of corporations); or

   (b)  the third party is a corporation; or

   (c)  the access is (or would be) in the course of, or for the purposes of,
        constitutional trade or commerce.



"Subdivision B-Notification of access disputes Notification of access disputes

"44S.(1) If a third party is unable to agree with the provider on one or more
aspects of access to a declared service, either the provider or the third
party may notify the Commission in writing that an access dispute exists.
Note: An example of one of the things on which a provider and third party
might disagree is whether a previous determination ought to be varied.

"(2) On receiving the notification, the Commission must give notice in writing
of the access dispute to:

   (a)  the provider, if the third party notified the access dispute;

   (b)  the third party, if the provider notified the access dispute;

   (c)  any other person whom the Commission thinks might want to become a
        party to the arbitration.

Withdrawal of notifications

"44T.(1) A notification may be withdrawn as follows (and not otherwise):

   (a)  if the provider notified the dispute:

        (i)    the provider may withdraw the notification at any time before
               the Commission makes its determination;

        (ii)   the third party may withdraw the provider's notification at any
               time after the Commission issues a draft determination, but
               before it makes its determination;

   (b)  if the third party notified the dispute, the third party may withdraw
        the notification at any time before the Commission makes its
        determination.

"(2) Despite subparagraph (1)(a)(ii), if the provider notified a dispute over
variation of a determination, the third party may not withdraw the provider's
notification.

"(3) If the notification is withdrawn, it is taken for the purposes of this
Part never to have been given.



"Subdivision C-Arbitration of access disputes Parties to the arbitration

"44U. The parties to the arbitration of an access dispute are:

   (a)  the provider;

   (b)  the third party;

   (c)  any other person who applies in writing to be made a party and is
        accepted by the Commission as having a sufficient interest.

Determination by Commission

"44V.(1) Unless it terminates the arbitration under section 44Y, the
Commission must make a written determination on access by the third party to
the service.

"(2) The determination may deal with any matter relating to access by the
third party to the service, including matters that were not the basis for
notification of the dispute. By way of example, the determination may:

   (a)  require the provider to provide access to the service by the third
        party;

   (b)  require the third party to accept, and pay for, access to the service;

   (c)  specify the terms and conditions of the third party's access to the
        service;

   (d)  require the provider to extend the facility;

   (e)  specify the extent to which the determination overrides an earlier
        determination relating to access to the service by the third party.

"(3) The determination does not have to require the provider to provide access
to the service by the third party.

"(4) Before making a determination, the Commission must give a draft
determination to the parties.

"(5) When the Commission makes a determination, it must give the parties to
the arbitration its reasons for making the determination.

Restrictions on access determinations

"44W.(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.

"(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.

"(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.

Matters that the Commission must take into account

"44X.(1) The Commission must take the following matters into account in making
a determination:

   (a)  the legitimate business interests of the provider, and the provider's
        investment in the facility;

   (b)  the public interest, including the public interest in having
        competition in markets (whether or not in Australia);

   (c)  the interests of all persons who have rights to use the service;

   (d)  the direct costs of providing access to the service;

   (e)  the value to the provider of extensions whose cost is borne by someone
        else;

   (f)  the operational and technical requirements necessary for the safe and
        reliable operation of the facility;

   (g)  the economically efficient operation of the facility.

"(2) The Commission may take into account any other matters that it thinks are
relevant.

Commission may terminate arbitration in certain cases

"44Y.(1) The Commission may at any time terminate an arbitration (without
making a determination) if it thinks that:

   (a)  the notification of the dispute was vexatious; or

   (b)  the subject matter of the dispute is trivial, misconceived or lacking
        in substance; or

   (c)  the party who notified the dispute has not engaged in negotiations in
        good faith; or

   (d)  access to the service should continue to be governed by an existing
        contract between the provider and the third party.

"(2) In addition, if the dispute is about varying an existing determination,
the Commission may terminate the arbitration if it thinks there is no
sufficient reason why the previous determination should not continue to have
effect in its present form.



"Subdivision D-Procedure in arbitrations Constitution of Commission for
conduct of arbitration

"44Z. For the purposes of a particular arbitration, the Commission is to be
constituted by 2 or more members of the Commission nominated in writing by the
Chairperson.

Member of the Commission presiding at an arbitration

"44ZA.(1) Subject to subsection (2), the Chairperson is to preside at an
arbitration.

"(2) If the Chairperson is not a member of the Commission as constituted under
section 44Z in relation to a particular arbitration, the Chairperson must
nominate a member of the Commission to preside at the arbitration.

Reconstitution of Commission

"44ZB.(1) This section applies if a member of the Commission who is one of the
members who constitute the Commission for the purposes of a particular
arbitration:

   (a)  stops being a member of the Commission; or

   (b)  for any reason, is not available for the purpose of the arbitration.

"(2) The Chairperson must either:

   (a)  direct that the Commission is to be constituted for the purposes of
        finishing the arbitration by the remaining member or members; or

   (b)  direct that the Commission is to be constituted for that purpose by
        the remaining member or members together with one or more other
        members of the Commission.

"(3) If a direction under subsection (2) is given, the Commission as
constituted in accordance with the direction must continue and finish the
arbitration and may, for that purpose, have regard to any record of the
proceedings of the arbitration made by the Commission as previously
constituted.

Determination of questions

"44ZC. If the Commission is constituted for an arbitration by 2 or more
members of the Commission, any question before the Commission is to be
decided:

   (a)  unless paragraph (b) applies-according to the opinion of the majority
        of those members; or

   (b)  if the members are evenly divided on the question-according to the
        opinion of the member who is presiding.

Hearing to be in private

"44ZD.(1) Subject to subsection (2), an arbitration hearing for an access
dispute is to be in private.

"(2) If the parties agree, an arbitration hearing or part of an arbitration
hearing may be conducted in public.

"(3) The member of the Commission who is presiding at an arbitration hearing
that is conducted in private may give written directions as to the persons who
may be present.

"(4) In giving directions under subsection (3), the member presiding must have
regard to the wishes of the parties and the need for commercial
confidentiality.

Right to representation

"44ZE. In an arbitration hearing before the Commission under this Part, a
party may appear in person or be represented by someone else.

Procedure of Commission

"44ZF.(1) In an arbitration hearing about an access dispute, the Commission:

   (a)  is not bound by technicalities, legal forms or rules of evidence; and

   (b)  must act as speedily as a proper consideration of the dispute allows,
        having regard to the need to carefully and quickly inquire into and
        investigate the dispute and all matters affecting the merits, and fair
        settlement, of the dispute; and

   (c)  may inform itself of any matter relevant to the dispute in any way it
        thinks appropriate.

"(2) The Commission may determine the periods that are reasonably necessary
for the fair and adequate presentation of the respective cases of the parties
to an access dispute, and may require that the cases be presented within those
periods.

"(3) The Commission may require evidence or argument to be presented in
writing, and may decide the matters on which it will hear oral evidence or
argument.

"(4) The Commission may determine that an arbitration hearing is to be
conducted by:

   (a)  telephone; or

   (b)  closed circuit television; or

   (c)  any other means of communication.

Particular powers of Commission

"44ZG.(1) The Commission may do any of the following things for the purpose of
arbitrating an access dispute:

   (a)  give a direction in the course of, or for the purposes of, an
        arbitration hearing;

   (b)  hear and determine the arbitration in the absence of a person who has
        been summoned or served with a notice to appear;

   (c)  sit at any place;

   (d)  adjourn to any time and place;

   (e)  refer any matter to an expert and accept the expert's report as
        evidence;

   (f)  generally give all such directions, and do all such things, as are
        necessary or expedient for the speedy hearing and determination of the
        access dispute.

"(2) A person must not do any act or thing in relation to the arbitration of
an access dispute that would be a contempt of court if the Commission were a
court of record. Penalty: Imprisonment for 6 months.

"(3) Subsection (1) has effect subject to any other provision of this Part and
subject to the regulations.

"(4) The Commission may give an oral or written order to a person not to
divulge or communicate to anyone else specified information that was given to
the person in the course of an arbitration unless the person has the
Commission's permission.

"(5) A person who contravenes an order under subsection (4) is guilty of an
offence, punishable on conviction by imprisonment for a term not exceeding 6
months.

Power to take evidence on oath or affirmation

"44ZH.(1) The Commission may take evidence on oath or affirmation and for that
purpose a member of the Commission may administer an oath or affirmation.

"(2) The member of the Commission who is presiding may summon a person to
appear before the Commission to give evidence and to produce such documents
(if any) as are referred to in the summons.

"(3) The powers in this section may be exercised only for the purposes of
arbitrating an access dispute.

Failing to attend as a witness

"44ZI. A person who is served, as prescribed, with a summons to appear as a
witness before the Commission must not, without reasonable excuse:

   (a)  fail to attend as required by the summons; or

   (b)  fail to appear and report himself or herself from day to day unless
        excused, or released from further attendance, by a member of the
        Commission. Penalty: Imprisonment for 6 months.

Failing to answer questions etc.

"44ZJ.(1) A person appearing as a witness before the Commission must not,
without reasonable excuse:

   (a)  refuse or fail to be sworn or to make an affirmation; or

   (b)  refuse or fail to answer a question that the person is required to
        answer by the Commission; or

   (c)  refuse or fail to produce a document that he or she was required to
        produce by a summons under this Part served on him or her as
        prescribed. Penalty: Imprisonment for 6 months.

"(2) It is a reasonable excuse for the purposes of subsection (1) for an
individual to refuse or fail to answer a question or produce a document on the
ground that the answer or the production of the document might tend to
incriminate the individual or to expose the individual to a penalty. This
subsection does not limit what is a reasonable excuse for the purposes of
subsection (1).

Intimidation etc.

"44ZK. A person must not:

   (a)  threaten, intimidate or coerce another person; or

   (b)  cause or procure damage, loss or disadvantage to another person;
        because that other person:

   (c)  proposes to produce, or has produced, documents to the Commission; or

   (d)  proposes to appear or has appeared as a witness before the Commission.
        Penalty: Imprisonment for 12 months.

Party may request Commission to treat material as confidential

"44ZL.(1) A party to an arbitration hearing may:

   (a)  inform the Commission that, in the party's opinion, a specified part
        of a document contains confidential commercial information; and

   (b)  request the Commission not to give a copy of that part to another
        party.

"(2) On receiving a request, the Commission must:

   (a)  inform the other party or parties that the request has been made and
        of the general nature of the matters to which the relevant part of the
        document relates; and

   (b)  ask the other party or parties whether there is any objection to the
        Commission complying with the request.

"(3) If there is an objection to the Commission complying with a request, the
party objecting may inform the Commission of its objection and of the reasons
for it.

"(4) After considering:

   (a)  a request; and

   (b)  any objection; and

   (c)  any further submissions that any party has made in relation to the
        request; the Commission may decide not to give to the other party or
        parties a copy of so much of the document as contains confidential
        commercial information that the Commission thinks should not be so
        given.

Sections 18 and 19 do not apply to the Commission in an arbitration

"44ZM. Sections 18 and 19 do not apply to the Commission, as constituted for
an arbitration.

Parties to pay costs of an arbitration

"44ZN. The regulations may provide for the Commission to:

   (a)  charge the parties to an arbitration for its costs in conducting the
        arbitration; and

   (b)  apportion the charge between the parties.



"Subdivision E-Effect of determinations Operation of determinations

"44ZO.(1) If none of the parties to the arbitration applies to the Tribunal
under section 44ZP for a review of the Commission's 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 determination, the determination is of no
effect until the Tribunal makes its determination on the review.

                 "Subdivision F-Review of determinations
Review by Tribunal

"44ZP.(1) A party to a 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
determination.

"(3) A review by the Tribunal is a re-arbitration of the access dispute.

"(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 information and other assistance and to make reports, as
specified by the member for the purposes of the review.

"(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.

Provisions that do not apply in relation to a Tribunal review

"44ZQ. Sections 37, 39 to 43 (inclusive) and 103 to 110 (inclusive) do not
apply in relation to a review by the Tribunal of a determination made by the
Commission.

Appeals to Federal Court from determinations of the Tribunal

"44ZR.(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 on appeal include (but
are not limited to):

   (a)  an order affirming or setting aside the decision of the Tribunal; and

   (b)  an order remitting the matter to be decided again by the Tribunal in
        accordance with the directions of the Federal Court.

Operation and implementation of a determination that is subject to appeal

"44ZS.(1) Subject to this section, the fact that an appeal is instituted in
the Federal Court from a decision of the Tribunal does not affect the
operation of the decision or prevent action being taken to implement the
decision.

"(2) If an appeal is instituted in the Federal Court from a decision of the
Tribunal, the Federal Court or a judge of the Federal Court may make any
orders staying or otherwise affecting the operation or implementation of the
decision of the Tribunal that the Federal Court or judge thinks appropriate to
secure the effectiveness of the hearing and determination of the appeal.

"(3) If an order is in force under subsection (2) (including an order
previously varied under this subsection), the Federal Court or a judge of the
Federal Court may make an order varying or revoking the first-mentioned order.

"(4) An order in force under subsection (2) (including an order previously
varied under subsection (3)):

   (a)  is subject to any conditions that are specified in the order; and

   (b)  has effect until:

        (i)    the end of any period for the operation of the order that is
               specified in the order; or

        (ii)   the giving of a decision on the appeal; whichever is earlier.

Transmission of documents

"44ZT. If an appeal is instituted in the Federal Court:

   (a)  the Tribunal must send to the Federal Court all documents that were
        before the Tribunal in connection with the matter to which the appeal
        relates; and

   (b)  at the conclusion of the proceedings before the Federal Court in
        relation to the appeal, the Federal Court must return the documents to
        the Tribunal.



"Subdivision G-Variation of determinations Variation of determinations

"44ZU.(1) The Commission may vary a determination on the application of any
party to the determination. However, it cannot vary the determination if any
other party objects. Note: If the parties cannot agree on a variation, a new
access dispute can be notified under section 44S.

"(2) Sections 44W and 44X apply to a variation under this section as if:

   (a)  an access dispute arising out of the determination had been notified
        when the application was made to the Commission for the variation of
        the determination; and

   (b)  the variation were the making of a determination in the terms of the
        varied determination.



"Division 4-Registered contracts for access to declared services
Constitutional limits on operation of this Division

"44ZV. This Division does not apply to a contract unless:

   (a)  the contract provides for access to a declared service; and

   (b)  the contract was made after the service was declared; and

   (c)  the parties to the contract are the provider of the service and a
        third party; and

   (d)  at least one of the following conditions is met:

        (i)    the provider is a corporation (or a partnership or joint
               venture consisting wholly of corporations);

        (ii)   the third party is a corporation;

        (iii)  the access is (or would be) in the course of, or for the
               purposes of, constitutional trade or commerce.

Registration of contract

"44ZW.(1) On application by all the parties to a contract, the Commission
must:

   (a)  register the contract by entering the following details on a public
        register:

        (i)    the names of the parties to the contract;

        (ii)   the service to which the contract relates;

        (iii)  the date on which the contract was made; or

   (b)  decide not to register the contract.

"(2) In deciding whether to register a contract, the Commission must take into
account:

   (a)  the public interest, including the public interest in having
        competition in markets (whether or not in Australia); and

   (b)  the interests of all persons who have rights to use the service to
        which the contract relates.

"(3) The Commission must publish a decision not to register a contract.

"(4) If the Commission publishes a decision not to register a contract, it
must give the parties to the contract reasons for the decision when it
publishes the decision.

Review of decision not to register contract

"44ZX.(1) If the Commission decides not to register a contract, a party to the
contract may apply in writing to the Tribunal for review of the decision.

"(2) An application for review must be made within 21 days after publication
of the Commission's decision.

"(3) The review by the Tribunal is a re-consideration of the matter.

"(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 information and other assistance and to make reports, as
specified by the member for the purposes of the review.

"(6) The Tribunal may either:

   (a)  affirm the Commission's decision; or

   (b)  register the contract.

Effect of registration of contract

"44ZY. The parties to a contract that has been registered:

   (a)  may enforce the contract under Division 7 as if the contract were a
        determination of the Commission under section 44V and they were
        parties to the determination; and

   (b)  cannot enforce the contract by any other means.



"Division 5-Hindering access to declared services Prohibition on hindering
access to declared services

"44ZZ.(1) The provider or a user of a service to which a third party has
access under a determination, or a body corporate related to the provider or a
user of the service, must not engage in conduct for the purpose of preventing
or hindering the third party's access to the service under the determination.

"(2) A person may be taken to have engaged in conduct for the purpose referred
to in subsection (1) even though, after all the evidence has been considered,
the existence of that purpose is ascertainable only by inference from the
conduct of the person or from other relevant circumstances. This subsection
does not limit the manner in which the purpose of a person may be established
for the purposes of subsection (1).

"(3) In this section, a 'user' of a service includes a person who has a right
to use the service.



"Division 6-Access undertakings for non-declared services Access undertakings
by providers

"44ZZA.(1) A person who is, or expects to be, the provider of a service may
give a written undertaking to the Commission, setting out details of the terms
and conditions on which the provider undertakes to provide access to the
service.

"(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:

   (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;

   (d)  whether access to the service is already the subject of an access
        regime;

   (e)  any other matters that the Commission thinks are relevant.

"(4) The Commission must not accept the undertaking unless the Commission has
first:

   (a)  published the undertaking and invited people to make submissions to
        the Commission on the undertaking; and

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

"(5) If the Commission accepts the undertaking:

   (a)  the undertaking comes into operation at the time of acceptance; and

   (b)  the undertaking continues in operation until its expiry date, unless
        it is earlier withdrawn.

"(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.

"(7) The provider may withdraw or vary the undertaking at any time, but only
with the consent of the Commission.

Undertakings cannot be accepted in certain cases

"44ZZB. The Commission cannot accept an undertaking given under section 44ZZA
if the service concerned is a declared service.

Register of access undertakings

"44ZZC.(1) The Commission must maintain a public register that includes all
access undertakings that have been accepted by the Commission, including those
that are no longer in operation.

"(2) The register must include all variations of access undertakings.



"Division 7-Enforcement and remedies Enforcement of determinations

"44ZZD.(1) If the Federal Court is satisfied, on the application of a party to
a determination, that another party to the determination has engaged, is
engaging, or is proposing to engage in conduct that constitutes a
contravention of the determination, the Court may make all or any of the
following orders:

   (a)  an order granting an injunction on such terms as the Court thinks
        appropriate:

        (i)    restraining the other party from engaging in the conduct; or

        (ii)   if the conduct involves refusing or failing to do
               something-requiring the other party to do that thing;

   (b)  an order directing the other party to compensate the applicant for
        loss or damage suffered as a result of the contravention;

   (c)  any other order that the Court thinks appropriate.

"(2) If the Federal Court has power under subsection (1) to grant an
injunction restraining a person from engaging in particular conduct, or
requiring a person to do anything, the Court may make any other orders
(including granting an injunction) that it thinks appropriate against any
other person who was involved in the contravention concerned.

"(3) A reference in this section to a person involved in the contravention is
a reference to a person who has:

   (a)  aided, abetted, counselled or procured the contravention; or

   (b)  induced the contravention, whether through threats or promises or
        otherwise; or

   (c)  been in any way (directly or indirectly) knowingly concerned in or a
        party to the contravention; or

   (d)  conspired with others to effect the contravention.

Enforcement of prohibition on hindering access

"44ZZE.(1) If the Federal Court is satisfied, on the application of any
person, that another person (the 'obstructor') has engaged, is engaging, or is
proposing to engage in conduct constituting a contravention of section 44ZZ,
the Court may make all or any of the following orders:

   (a)  an order granting an injunction on such terms as the Court thinks
        appropriate:

        (i)    restraining the obstructor from engaging in the conduct; or

        (ii)   if the conduct involves refusing or failing to do
               something-requiring the obstructor to do that thing;

   (b)  an order directing the obstructor to compensate a person who has
        suffered loss or damage as a result of the contravention;

   (c)  any other order that the Court thinks appropriate.

"(2) If the Federal Court has power under subsection (1) to grant an
injunction restraining a person from engaging in particular conduct, or
requiring a person to do anything, the Court may make any other orders
(including granting an injunction) that it thinks appropriate against any
other person who was involved in the contravention concerned.

"(3) The grounds on which the Court may decide not to make an order under this
section include the ground that Divisions 2 and 3 provide a more appropriate
way of dealing with the issue of the applicant's access to the service
concerned.

"(4) A reference in this section to a person involved in the contravention is
a reference to a person who has:

   (a)  aided, abetted, counselled or procured the contravention; or

   (b)  induced the contravention, whether through threats or promises or
        otherwise; or

   (c)  been in any way (directly or indirectly) knowingly concerned in or a
        party to the contravention; or

   (d)  conspired with others to effect the contravention.

Consent injunctions

"44ZZF. On an application for an injunction under section 44ZZD or 44ZZE, the
Federal Court may grant an injunction by consent of all of the parties to the
proceedings, whether or not the Court is satisfied that the section applies.

Interim injunctions

"44ZZG.(1) The Federal Court may grant an interim injunction pending
determination of an application under section 44ZZD or 44ZZE.

"(2) If the Commission makes an application under section 44ZZE to the Federal
Court for an injunction, the Court must not require the Commission or any
other person, as a condition of granting an interim injunction, to give any
undertakings as to damages.

Factors relevant to granting a restraining injunction

"44ZZH. The power of the Federal Court to grant an injunction under section
44ZZD or 44ZZE restraining a person from engaging in conduct may be exercised
whether or not:

   (a)  it appears to the Court that the person intends to engage again, or to
        continue to engage, in conduct of that kind; or

   (b)  the person has previously engaged in conduct of that kind; or

   (c)  there is an imminent danger of substantial damage to any person if the
        first-mentioned person engages in conduct of that kind.

Factors relevant to granting a mandatory injunction

"44ZZI. The power of the Federal Court to grant an injunction under section
44ZZD or 44ZZE requiring a person to do a thing may be exercised whether or
not:

   (a)  it appears to the Court that the person intends to refuse or fail
        again, or to continue to refuse or fail, to do that thing; or

   (b)  the person has previously refused or failed to do that thing; or

   (c)  there is an imminent danger of substantial damage to any person if the
        first-mentioned person refuses or fails to do that thing.

Enforcement of access undertakings

"44ZZJ.(1) If the Commission thinks that the provider of an access undertaking
in operation under section 44ZZA has breached any of its terms, the Commission
may apply to the Federal Court for an order under subsection (2).

"(2) If the Federal Court is satisfied that the provider has breached a term
of the undertaking, the Court may make all or any of the following orders:

   (a)  an order directing the provider to comply with that term of the
        undertaking;

   (b)  an order directing the provider to compensate any other person who has
        suffered loss or damage as a result of the breach;

   (c)  any other order that the Court thinks appropriate.

"(3) The Federal Court cannot make an order under this section unless:

   (a)  the provider is a corporation; or

   (b)  the breach relates to access to the service by a third party that is a
        corporation; or

   (c)  the breach involves access to the service in the course of, or for the
        purposes of, constitutional trade or commerce.

Discharge or variation of injunction or other order

"44ZZK. The Federal Court may discharge or vary an injunction or order granted
under this Division.

                       "Division 8-Miscellaneous
Register of determinations

"44ZZL. The Commission must maintain a public register that specifies the
following information for each determination:

   (a)  the names of the parties to the determination;

   (b)  the service to which the determination relates;

   (c)  the date on which the determination was made.

Commission may perform functions under other access regimes

"44ZZM. A State or Territory law that establishes an access regime may confer
functions on the Commission for the purposes of that law, in accordance with
any relevant agreement between the Commonwealth and the State or Territory
concerned.

Compensation for acquisition of property

"44ZZN.(1) If:

   (a)  a determination would result in an acquisition of property; and

   (b)  the determination would not be valid, apart from this section, because
        a particular person has not been sufficiently compensated; the
        Commonwealth must pay that person:

   (c)  a reasonable amount of compensation agreed on between the person and
        the Commonwealth; or

   (d)  failing agreement-a reasonable amount of compensation determined by a
        court of competent jurisdiction.

"(2) In assessing compensation payable in a proceeding begun under this
section, the following must be taken into account if they arise out of the
same event or transaction:

   (a)  any damages or compensation recovered, or other remedy, in a
        proceeding begun otherwise than under this section;

   (b)  compensation awarded under a determination.

"(3) In this section, 'acquisition of property' has the same meaning as in
paragraph 51(xxxi) of the Constitution.

Conduct by directors, servants or agents

"44ZZO.(1) If, in a proceeding under this Part in respect of conduct engaged
in by a body corporate, it is necessary to establish the state of mind of the
body corporate in relation to particular conduct, it is sufficient to show:

   (a)  that the conduct was engaged in by a director, servant or agent of the
        body corporate within the scope of his or her actual or apparent
        authority; and

   (b)  that the director, servant or agent had the state of mind.

"(2) Any conduct engaged in on behalf of a body corporate:

   (a)  by a director, servant or agent of the body corporate within the scope
        of the person's actual or apparent authority; or

   (b)  by any other person at the direction or with the consent or agreement
        (whether express or implied) of a director, servant or agent of the
        body corporate, if the giving of the direction, consent or agreement
        is within the scope of the actual or apparent authority of the
        director, servant or agent; is taken for the purposes of this Part to
        have been engaged in also by the body corporate, unless the body
        corporate establishes that the body corporate took reasonable
        precautions and exercised due diligence to avoid the conduct.

"(3) If, in a proceeding under this Part in respect of conduct engaged in by
an individual, it is necessary to establish the state of mind of the
individual, it is sufficient to show:

   (a)  that the conduct was engaged in by a servant or agent of the
        individual within the scope of his or her actual or apparent
        authority; and

   (b)  that the servant or agent had the relevant state of mind.

"(4) Conduct engaged in on behalf of an individual:

   (a)  by a servant or agent of the individual within the scope of the actual
        or apparent authority of the servant or agent; or

   (b)  by any other person at the direction or with the consent or agreement
        (whether express or implied) of a servant or agent of the individual,
        if the giving of the direction, consent or agreement is within the
        scope of the actual or apparent authority of the servant or agent; is
        taken, for the purposes of this Part, to have been engaged in also by
        that individual, unless that individual establishes that he or she
        took reasonable precautions and exercised due diligence to avoid the
        conduct.

"(5) If:

   (a)  an individual is convicted of an offence; and

   (b)  the individual would not have been convicted of the offence if
        subsections (3) and (4) had not been enacted; the individual is not
        liable to be punished by imprisonment for that offence.

"(6) A reference in subsection (1) or (3) to the state of mind of a person
includes a reference to:

   (a)  the knowledge, intention, opinion, belief or purpose of the person;
        and

   (b)  the person's reasons for the intention, opinion, belief or purpose.

"(7) A reference in this section to a director of a body corporate includes a
reference to a constituent member of a body corporate incorporated for a
public purpose by a law of the Commonwealth, of a State or of a Territory.

Regulations about review by the Tribunal

"44ZZP. The regulations may make provision about the following matters in
relation to the functions of the Tribunal under this Part:

   (a)  the constitution of the Tribunal;

   (b)  the arrangement of the business of the Tribunal;

   (c)  the disclosure of interests by members of the Tribunal;

   (d)  determining questions before the Tribunal and questions that arise
        during a review;

   (e)  procedure and evidence, including the appointment of persons to assist
        the Tribunal by giving evidence (whether personally or by means of a
        written report).

Regulations about fees for inspection etc. of registers

"44ZZQ. The regulations may make provision about the inspection of registers
maintained under this Part (including provision about fees).".