These provisions bring Part IIIA into line with similar provisions contained in the telecommunications access regime in Part XIC of the Act.
The Trade Practices Amendment (National Access Regime) Act 2006 amends Part IIIA to enable access providers to lodge access undertakings and access codes with the ACCC after a service has been declared under Part IIIA.
Effective from 1 October 2006 Part IIIA was amended to allow the ACCC to defer arbitration of an access dispute where it is also considering an access undertaking on related issues.
Further, the ACCC has the discretion to backdate a final determination and apply payment of interest to a backdated determination.
The purpose of these guidelines is to explain how the ACCC might apply the provisions on deferral of arbitrations and backdating of final determinations when making decisions under Part IIIA.
These guidelines are legislative instruments under the Legislative Instruments Act 2003 which means that they are subject to disallowance and will sunset after ten years.
assess access undertakings and industry access codes.
This is intended to provide a means for achieving certainty on access terms and conditions and facilitating negotiations between access providers and access seekers.
Post-declaration undertakings are intended to reduce recourse to arbitration, thereby reducing the burden on the regulator and the industry.
In most cases the particular circumstances of the dispute need to be taken into account when determining how the Act applies to that dispute.
Access providers may give an access undertaking to the ACCC.Courts have certainly been willing to hold that a contract exists before a written contract has been finalized. But I’d still use as the date for a written contract the date it was signed.