Document ID: chunk:federal_register_of_legislation:F2017L01112:body:0:p11
Version: federal_register_of_legislation:F2017L01112
Segment Type: other
Provision Reference: 
Character Range: 26556–29356

Under s. 44ZO, the provisions of a final determination may be expressed to take effect earlier than the date on which the determination takes effect. In the case of a declared service, a final determination can be backdated to any date as long as the specified date is not earlier than the date on which negotiations commenced (s. 44ZO(4)(a)). If the parties commenced negotiations on access before the service became a declared service, then backdating is limited to a date that is on or after the day on which the declaration began to operate (s. 44ZO(4)(b)). In either case, a determination cannot be backdated to a day on which the access seeker did not have access to the service.
Section 44ZO also requires the ACCC to formulate guidelines about its approach to backdating and to have regard to those guidelines. These guidelines are set out below.

3.2.2 Rationale for backdating
Backdating of a determination only applies in certain circumstances and only where the access seeker already has access to the service. The objective of the backdating provisions is to remove an incentive to delay the negotiate/arbitrate process. Subject to s. 44ZO(4), in the case of a declared service, the price determined by the ACCC can be backdated to a specified date that is up to the day upon which negotiations commenced. The ability to backdate a dispute to the date when negotiations commenced means that, in certain cases, parties can continue to negotiate without needing to notify an access dispute in order to facilitate a backdated determination.
A determination cannot be backdated to a day on which the access seeker did not have access to the service. Therefore, the backdating provisions will not affect incentives to provide access in the first place but will lessen incentives to demand unreasonable terms and conditions.

3.2.3 Approach to backdating
Given that the backdating provisions are intended to improve incentives to not delay the negotiate/arbitrate process, the ACCC will, in general, be inclined to backdate determinations. That said, each case must be considered on its merits. In particular, the ACCC is likely to consider whether the manner in which the parties have conducted themselves before and during the arbitration provides grounds for not backdating the determination.
For instance, if, before notification of the dispute, the access provider offered the access seeker price and non-price terms and conditions that are substantially similar to those determined by the ACCC and the access seeker refused, then it 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