Document ID: chunk:federal_register_of_legislation:C2004A04938:body:0:p31
Version: federal_register_of_legislation:C2004A04938
Segment Type: other
Provision Reference: 
Character Range: 81938–84727

(e) requiring the provider to bear some or all of the costs of extending the facility or maintaining extensions of the facility.

"(2) Paragraphs (1)(a) and (b) do not apply in relation to the requirements and rights of the third party and the provider when the Commission is making a determination in arbitration of an access dispute relating to an earlier determination of an access dispute between the third party and the provider.

"(3) A determination is of no effect if it is made in contravention of subsection (1).

"(4) If the Commission makes a determination that has the effect of depriving a person (the 'second person') of a pre-notification right to require the provider to supply the service to the second person, the determination must also require the third party:

    (a) to pay to the second person such amount (if any) as the Commission considers is fair compensation for the deprivation; and

    (b) to reimburse the provider and the Commonwealth for any compensation that the provider or the Commonwealth agrees, or is required by a court order, to pay to the second party as compensation for the deprivation.

    Note: Without infringing paragraph (1)(b), a determination may deprive a second person of the right to be supplied with an amount of service equal to the difference between the total amount of service the person was entitled to under a pre-notification right and the amount that the person actually needs to meet his or her actual requirements.

"(5) In this section:

'existing user' means a person (including the provider) who was using the service at the time when the dispute was notified;

'pre-notification right' means a right under a contract, or under a determination, that was in force at the time when the dispute was notified;

'protected contractual right' means a right under a contract that was in force at the beginning of 30 March 1995.

Matters that the Commission must take into account

"44X.(1) The Commission must take the following matters into account in making a determination:

    (a) the legitimate business interests of the provider, and the provider's investment in the facility;

    (b) the public interest, including the public interest in having competition in markets (whether or not in Australia);

    (c) the interests of all persons who have rights to use the service;

    (d) the direct costs of providing access to the service;

    (e) the value to the provider of extensions whose cost is borne by someone else;

    (f) the operational and technical requirements necessary for the safe and reliable operation of the facility;

    (g) the economically efficient operation of the facility.

"(2) The Commission may take into account any other matters that it thinks are relevant.

Commission may terminate