Document ID: chunk:federal_register_of_legislation:F2017L01112:body:0:p12
Version: federal_register_of_legislation:F2017L01112
Segment Type: other
Provision Reference: 
Character Range: 29102–31878

may not be appropriate to backdate. Considering the parties' conduct in this way improves incentives for the access provider to offer reasonable price and non-price terms and conditions, and reduces incentives for the access seeker to notify a dispute in the hope that the final price will be lower and backdated.
Similarly, if the access seeker has been tardy in responding to offers put forward by the access provider, then it may not be appropriate to backdate to the start of negotiation.
To minimise incentives for delay during the arbitration, the ACCC may indicate at the outset whether it is likely to backdate the final determination. However, the ACCC would expect to reconsider this issue towards the conclusion of the arbitration to see if there are any grounds for modifying its views on backdating.
The CCA provides for flexibility regarding the nature of the backdated terms and conditions. In some circumstances, it may be appropriate to provide that the same charges apply retrospectively and prospectively, while in others it may be better to have separate retrospective and prospective charges. For instance, if a price is cost-based, it may be appropriate to determine retrospective charges based on costs for the relevant year rather than current costs. These are matters on which the ACCC is likely to seek submissions from the parties.

3.2.4 Deciding on a backdated date
The extent to which any or all of the provisions of an arbitration determination can be backdated is limited to the following circumstances:
    (a) if the third party and provider commenced negotiations on access to the service after the service became declared, the specified day must not be earlier than the day on which negotiations commenced
    (b) if the third party and provider commenced negotiations on access to the service before the service became declared, the specified day must not be earlier than the day on which declaration began to operate.
In both cases, the specified day cannot be a day on which the third party did not have access to the service (s. 44ZO(4)).
In the case of (a) above, the parties will need to demonstrate the date on which negotiations commenced. Parties may disagree about this date. For instance they may have differing views about the purpose of a particular meeting—one may assert that the meeting was concerned with negotiations for a new contract, whereas the other may say it was concerned with reviewing administrative matters. To minimise the scope for disagreement about the date on which negotiations began, the parties should consider evidencing negotiations in writing.

3.2.5 Interest
For backdating to act as a control on the incentive for delay, the ACCC believes the backdated payment should include an interest component.