Commonwealth Consolidated Acts

COMPETITION AND CONSUMER ACT 2010 - SECT 152BE

  (1)   For the purposes of this Part, an access agreement is an agreement, where:

  (a)   the agreement is in writing; and

  (b)   the agreement is legally enforceable; and

  (c)   the agreement relates to access to a declared service; and

  (d)   the parties to the agreement are:

  (i)   an access seeker; and

  (ii)   the carrier or carriage service provider who supplies, or proposes to supply, the declared service; and

  (e)   any of the following subparagraphs applies:

  (i)   the agreement embodies any or all of the terms and conditions on which the carrier or carriage service provider is to comply with any or all of the standard access obligations applicable to the carrier or provider;

  (ii)   if an access determination imposes requirements on a carrier or carriage service provider in relation to access to the declared service, as mentioned in paragraph   152BC(3)(e)--the agreement embodies any or all of the terms and conditions on which the carrier or carriage service provider is to comply with any or all of those requirements;

  (iii)   the agreement embodies any other terms and conditions of the access seeker's access to the declared service;

  (iv)   the agreement requires the carrier or carriage service provider to comply with any or all of the standard access obligations applicable to the carrier or provider in a manner specified in the agreement;

  (v)   the agreement requires the carrier or carriage service provider to extend or enhance the capability of a facility by means of which the declared service is supplied;

  (vi)   the agreement imposes other requirements on the carrier or carriage service provider in relation to access to the declared service;

  (vii)   the agreement specifies the terms and conditions on which the carrier or carriage service provider is to comply with any or all of those other requirements;

  (viii)   the agreement requires the access seeker to accept, and pay for, access to the declared service;

  (ix)   the agreement provides that any or all of the obligations referred to in section   152AR are not applicable to the carrier or carriage service provider, either unconditionally or subject to such conditions or limitations as are specified in the agreement;

  (x)   the agreement restricts or limits the application to the carrier or carriage service provider of any or all of the obligations referred to in section   152AR;

  (xi)   the agreement deals with any other matter relating to access to the declared service.

  (1A)   Paragraph   (1)(b) does not apply to the agreement to the extent (if any) to which the agreement is covered by subparagraph   (1)(e)(ix) or (x).

  (2)   If:

  (a)   an agreement relates to access to an eligible service (within the meaning of section   152AL); and

  (b)   at the time the agreement was entered into to, the eligible service was a not a declared service; and

  (c)   at a later time (the declaration time ), the eligible service becomes a declared service; and

  (d)   if the agreement had been entered into immediately after the declaration time, the agreement would have been an access agreement;

the agreement becomes an access agreement immediately after the declaration time.

  (3)   If:

  (a)   an access agreement is varied by another agreement (the variation agreement ); and

  (b)   the variation agreement is in writing; and

  (c)   the variation agreement is legally enforceable;

a reference in this Part to the access agreement is a reference to the access agreement as varied by the variation agreement.

  (4)   It is immaterial whether an access agreement or variation agreement was entered into before or after the commencement of this section.

  (5)   An access agreement is not a legislative instrument.

  (6)   A variation agreement is not a legislative instrument.