Commonwealth Consolidated Acts

COMPETITION AND CONSUMER ACT 2010 - SECT 44ZZAAB

Access undertakings may contain fixed principles

  (1)   An access undertaking given to the Commission under subsection   44ZZA(1) may include one or more terms that, under the undertaking, are fixed for a specified period.

  (2)   Each of the terms is a fixed principle and the specified period is a fixed period . Different periods may be specified for different fixed principles.

  (3)   The fixed period must:

  (a)   start:

  (i)   when the access undertaking comes into operation; or

  (ii)   at a later time ascertained in accordance with the undertaking; and

  (b)   extend beyond the expiry date of the undertaking.

Consideration of fixed principles

  (4)   The Commission may reject the undertaking if it:

  (a)   includes a term that is not a fixed principle and that the Commission considers should be a fixed principle; or

  (b)   includes a fixed principle that the Commission considers should not be fixed; or

  (c)   includes a fixed principle that the Commission considers should be fixed for a period that is different from the period specified in the undertaking.

However, the Commission must not reject the undertaking solely on the basis that it is consistent with a fixed principle that is included in the undertaking in compliance with subsection   (6).

Fixed principles must be carried over to later undertakings

  (5)   Subsection   (6) applies if:

  (a)   the Commission accepts an undertaking (the earlier undertaking ) in connection with the provision of access to a service that includes a fixed principle; and

  (b)   an undertaking (the later undertaking ) is given to the Commission in connection with the provision of access to the service within the fixed period for the fixed principle; and

  (c)   at the time the later undertaking is given:

  (i)   the fixed principle has not been revoked under subsection   (7); and

  (ii)   the earlier undertaking has not been varied under subsection   44ZZA(7) so that the fixed principle is no longer a term of the earlier undertaking.

  (6)   The Commission must not accept the later undertaking under section   44ZZA unless the undertaking includes a term that is the same as the fixed principle.

Variation or revocation of fixed principles when no undertaking is in operation

  (7)   If there is no access undertaking in operation in connection with the provision of access to a service, the provider may revoke or vary a fixed principle that relates to the service (including the fixed period for the principle), but only with the consent of the Commission. The Commission may consent to the revocation or variation of the fixed principle if it thinks it appropriate to do so having regard to the matters in subsection   44ZZA(3).

Note:   Subsection   44ZZA(7) contains provision for fixed principles to be varied or revoked in the situation where there is an access undertaking in operation. This may include a variation of the fixed period for the fixed principle.

Alteration of fixed principles

  (8)   If an undertaking that is accepted by the Commission contains one or more fixed principles, the undertaking is accepted on the basis that:

  (a)   the principle may be varied or revoked under subsection   (7) or 44ZZA(7); and

  (b)   the principle may be cancelled, revoked, terminated or varied by or under later legislation; and

  (c)   no compensation is payable if the principle is cancelled, revoked, terminated or varied as mentioned in any of the above paragraphs.

  (9)   Subsection   (8) does not, by implication, affect the interpretation of any other provision of this Act.