Broadcasting Services (Transmitter Access) Regulations 2019

The Regulations revolve around a small set of statutory building blocks. The primary concepts in the text are: access provider, access seeker, broadcasting transmission tower and designated associated facility, disputes and notifications, ACCC arbitration and determinations, exemptions to access obligations, powers to obtain information and summon witnesses, private hearings, confidentiality, costs and penalties.

• Access provider and access seeker. The Regulations define access provider as the owner or operator of a broadcasting transmission tower or of a designated associated facility (section 5). The term access seeker is used in the same circumstances as in clauses 45, 45A and 46 of Schedule 4 to the Act, and the Regulations refer users back to those clauses for the substantive situations in which a person is an access seeker (section 5).

• Exemptions to the statutory obligation to give access. For designated associated facilities the Regulations set out explicit grounds on which the owner or operator need not give access (section 6). Those grounds include if giving access would prevent certain persons from obtaining sufficient service to meet reasonably anticipated or actual requirements measured at the time of request (section 6(2)(a)-(b)), or would deprive a person of a right under a contract in force on 10 May 2000 (section 6(2)(c)). The Regulations also allow refusal if there are reasonable grounds to believe the access seeker would materially fail to comply with terms or fail to protect the integrity of a telecommunications network, continuity of broadcasting service, or the safety of individuals (section 6(4)). Examples, such as evidence of lack of creditworthiness or repeated failures to comply, are provided as reasonable grounds (section 6(5)).

• Notification and parties to arbitration. Either an access seeker or access provider may notify the ACCC in writing that a dispute exists when the parties are unable to agree about terms and conditions for access to a tower, a site or a designated associated facility (section 8(1)). The notification must include specified information (section 8(2)), and the ACCC must give written notice of the dispute to the counterparty and any other person it considers may be affected or may wish to become a party (section 8(4)). Parties may be joined if they have a sufficient interest (section 8(5)).

• ACCC arbitration and determinations. The ACCC must make a written determination of the terms and conditions of access (section 9(1)), and may deal with any matter relating to access, including matters not originally the subject of notification (section 9(2)). The determination can require access providers to give access or require access seekers to accept and pay for access (section 9(3)(a)-(b)), can specify terms and conditions (section 9(3)(c)-(d)), and may require extension or enhancement of capability (section 9(3)(e)). The ACCC must give parties a draft determination before finalising and include reasons with the final determination (section 9(6)-(7)).

• Limits on ACCC power. The Regulations explicitly limit ACCC power. A determination cannot require access if that requirement is already imposed by Part 5 of Schedule 4 or another Commonwealth law (section 9(4)). For disputes about designated associated facilities, determinations must not be inconsistent with the statutory exemptions (section 9(5)(a)), cannot cause transfer of ownership without consent (section 9(5)(b)), and cannot require parties other than the access seeker to bear costs of extending or maintaining capability (section 9(5)(c)).

• Matters the ACCC must take into account. Section 10 lists mandatory considerations: legitimate business interests and investment in facilities (section 10(1)(a)), interests of persons who have been given access (section 10(1)(b)), direct costs of giving access (section 10(1)(c)), operational and technical requirements for safe and reliable operation (section 10(1)(d)), economically efficient operation (section 10(1)(e)), and the value of extensions or enhancements paid for by others (section 10(1)(f)). The ACCC may take into account any other matters it considers relevant (section 10(2)).

• Procedural powers and safeguards. The ACCC may conduct arbitration on the papers, by hearing, or a mix (section 13(1)); is not bound by technicalities or rules of evidence (section 13(2)(a)); and must act speedily while inquiring carefully (section 13(2)(b)). The ACCC can refer matters to experts (section 17(a)), require parties to conduct research or provide information (section 17(b)-(c)), give directions about confidentiality (section 17(d)), and issue information notices (section 18) and summonses in a prescribed form (section 19 and Schedule 1).

• Confidentiality and costs. Parties may inform the ACCC that parts of documents contain confidential commercial information and request that those parts not be provided to other parties; the ACCC must consult and decide after considering submissions (section 32). The ACCC may charge parties for its costs in conducting an arbitration and apportion those charges among the parties (section 33).

• Enforcement and penalties. The Regulations create strict liability offences for contravening directions (section 27) and for failing to comply with notices to give information or produce documents (section 28), both attracting penalties of 10 penalty units. Witness offences for failure to attend, to be sworn, to answer, or to produce documents are strict liability offences likewise attracting 10 penalty units (section 29). Intimidation or actions to cause damage to witnesses carry 30 penalty units (section 30) and disruption of hearings carries 30 penalty units (section 31).

These main concepts combine to make a regime that determines access disputes through ACCC arbitration, backed by investigatory tools, confidentiality procedures, cost recovery and criminal penalties for non‑cooperation.

The Regulations directly affect several identifiable categories of persons and entities.

• Owners and operators of broadcasting transmission towers and designated associated facilities. The Regulations define an access provider as the owner or operator of a broadcasting transmission tower or a designated associated facility (section 5). Those owners or operators face obligations under the Act to give access and, where relevant, must comply with ACCC determinations about terms and conditions of access (section 9(3)(a)-(c)). They also gain specific exemptions for designated associated facilities under section 6, which allow refusal of access on specified grounds.

• Access seekers. The Regulations address persons who seek access to towers, tower sites or designated associated facilities in the circumstances described in Schedule 4, clauses 45, 45A and 46 of the Act (section 5). Access seekers may initiate notification of disputes to the ACCC (section 8(1)), may be required to accept and pay for access in an ACCC determination (section 9(3)(b)), and may be required to bear costs of extension or enhancement of capability where the ACCC so determines (section 9(3)(e), read with section 9(5)(c)).

• Parties with existing contractual rights. The Regulations preserve certain pre‑existing contractual rights. Section 6(2)(c) expressly prevents giving access from depriving any person of a right under a contract in force on 10 May 2000. The ACCC’s determinations must not be inconsistent with the exemptions in section 6 when a designated associated facility is involved (section 9(5)(a)). Persons who have contractual rights to access or exclusivity therefore retain a degree of protection under the Regulations.

• Third parties with an interest in a dispute. When a dispute is notified to the ACCC, the ACCC must give written notice of the dispute to the counterparty and to any person it considers the determination may affect (section 8(4)(a)-(c)). Such third parties can become parties to the arbitration if they apply in writing and are accepted by the ACCC as having a sufficient interest (section 8(4)(d)-(5)(d)). The Regulations therefore create a mechanism for including affected parties beyond the immediate access seeker and provider.

• The ACCC and its members. The Regulations place responsibilities on the ACCC to conduct arbitrations, make determinations and exercise investigatory powers. The Chairperson nominates members to constitute the ACCC for an arbitration (section 14), and procedures for reconstitution are set out if a member ceases to be available (section 15). The ACCC is empowered to decide on procedures, require information, refer matters to experts and run hearings in private (sections 13, 17-21).

• Witnesses, experts and other persons who hold relevant information. The ACCC can issue written notices requiring information or documents (section 18) and presiding members may summon people to attend and produce documents (section 19 and Schedule 1). Failure to comply attracts strict liability penalties (sections 28-29). Experts may be engaged and their reports accepted into evidence (section 17(a)).

• Parties potentially liable for ACCC costs. The ACCC may charge persons who are, or were, parties to an arbitration for the ACCC’s costs and may apportion those charges between them (section 33). Parties should budget for potential fees and be prepared for cost apportionment decisions.

• Persons involved in telecommunications networks and other facilities located on transmission towers. The Regulations require the ACCC to take operational and technical requirements for the safe and reliable operation of another facility located at, on, in or under the tower or site into account (section 10(1)(d)(ii)). Owners or operators of other facilities co‑located on towers therefore have their interests recognised as a relevant consideration.

Indirect effects include contractual and commercial behaviour changes by owners and operators in negotiating access terms, by access seekers in preparing notifications with the detailed information required by section 8(2), and by all parties in the way they manage evidence and confidentiality because of the ACCC’s investigatory powers and the availability of sanctions for non‑compliance.

The Regulations create express duties for parties to engage in the ACCC arbitration process and set rights that flow from those duties. These duties and rights are tied to specific sections in the instrument.

Duties of access providers

• Duty to give access where required by the Act. The underlying statutory obligation originates in Schedule 4 to the Act, and the Regulations operate within that framework. The ACCC can require access providers to give access in a determination (section 9(3)(a)). However, for designated associated facilities, an owner or operator is not required to give access if section 6 applies; section 6(1) implements the exemption mechanism tied to subclause 45A(9) of Schedule 4.

• Duty to comply with ACCC directions in arbitration. The ACCC may direct a party to conduct research, provide information to other parties, or refrain from divulging specified information (section 17(b)-(d)). Non‑compliance with such directions is an offence of strict liability carrying 10 penalty units (section 27).

• Duty to comply with notices to provide information or documents. The ACCC may give a written notice requiring a person to give information or produce documents relevant to the arbitration. The notice must specify a compliance period (at least 14 days) and manner of compliance and must inform the recipient of the effect of section 28 (section 18(2)-(3)). Failure to comply is a strict liability offence (section 28).

Duties of access seekers

• Duty to provide specified information when notifying a dispute. An access seeker initiating a dispute must include, among other things, the name and representative address, the address for delivery of documents, identification of the access provider, reference to the Act provision requiring the access, a description of the dispute including aspects agreed and disputed, efforts made to resolve the dispute, and confirmation if the parties failed to agree on appointing an arbitrator (section 8(2)(a)-(j)). A failure to strictly comply with the specified contents does not invalidate the notification (section 8(3)).

• Duty to comply with ACCC determinations. The ACCC can require an access seeker to accept and pay for access (section 9(3)(b)), and can require a party to extend or enhance a facility’s capability (section 9(3)(e)). The ACCC must not, however, require parties other than the access seeker to bear costs of such extensions or maintenance where the arbitration concerns a designated associated facility (section 9(5)(c)).

Common duties and rights in arbitration

• Right to notification and participation. When the ACCC receives notification of a dispute it must notify the counterparty and other affected persons (section 8(4)). Parties to the arbitration include the access seeker, the access provider and other affected persons or those accepted as having sufficient interest (section 8(5)). Parties have the right to representation (section 22).

• ACCC’s duty to make a written determination and provide reasons. The ACCC must make a written determination of the terms and conditions of access (section 9(1)) and must give each party a copy of the determination with reasons (section 9(7)(a)-(b)). Before making the determination the ACCC must give parties a draft determination (section 9(6)).

• Right to confidentiality processes. A party may inform the ACCC that a stated part of a document contains confidential commercial information and request that the ACCC not provide that part to another party. The ACCC must inform the other party of the request, allow an objection and consider submissions before deciding whether not to provide the material (section 32(1)-(4)).

• Duty to present cases within ACCC periods. The ACCC may determine time periods it considers reasonably necessary for fair presentation and require parties to present their cases within those periods (section 13(3)).

• Rights linked to limits on ACCC power. A determination cannot require access if that requirement is already imposed by Part 5 of Schedule 4 or another Commonwealth law (section 9(4)). If the dispute concerns a designated associated facility, the ACCC must respect the exemptions in section 6 and must not cause transfer of ownership without consent (section 9(5)(a)-(b)).

Procedural duties for witnesses and other persons

• Duty to comply with summonses. The presiding member may summon a person to attend, give evidence and produce documents (section 19(1)). Service must include delivering a copy and showing the original (section 19(3)). Failure to attend, to be sworn or to answer required questions, or to produce documents as required, are strict liability offences attracting penalties of 10 penalty units (section 29).

• Duty not to intimidate witnesses or disturb hearings. It is an offence to threaten or intimidate a person because they have attended or propose to attend to give evidence, or for producing documents (section 30), with a penalty of 30 penalty units. It is also an offence to insult, disturb or interrupt an arbitration hearing or create a disturbance where a hearing is being conducted (section 31), with the same penalty.

Enforcement and cost allocation rights

• ACCC’s right to charge parties. The ACCC may charge persons who are, or were, parties to an arbitration for the ACCC’s costs and may apportion the charge (section 33).

• ACCC’s power to refer matters to experts and accept expert reports as evidence (section 17(a)), and to decide whether to conduct hearings in private or public subject to party agreement (section 21(1)-(2)).

These duties and rights create a structured process: parties must attempt to resolve terms of access, provide prescribed information when invoking ACCC arbitration, comply with ACCC directions, notices and summonses, may seek confidentiality and must accept the ACCC’s determinations subject to statutory limits.

The Regulations establish a framework of investigatory powers and criminal sanctions to ensure compliance with the ACCC’s arbitration process.

Investigatory and compulsory powers

• Directions and information orders. The ACCC may give directions to parties to conduct research or investigations, to provide relevant information to other parties, to refrain from divulging specified information, and otherwise to do things necessary to make a determination (section 17(b)-(e)). The ACCC may also issue written notices under section 18 requiring a person to give information or produce documents relevant to an arbitration. A section 18 notice must specify a period (at least 14 days) and manner for compliance and must state the effect of section 28, the penalty provision for failure to comply (section 18(3)).

• Summonses. The presiding member may summon a person to attend, give evidence and produce documents (section 19(1)). A summons must follow the form in Schedule 1 and must be served by delivering a copy and showing the original to the person (section 19(2)-(3)).

Criminal offences and penalties

• Strict liability offences for failure to obey procedural instruments. The Regulations create several strict liability offences for procedural non‑compliance, each carrying a sanction measured in penalty units.

  • Contravention of a direction given under paragraphs 17(b)-(e) is a strict liability offence with a penalty of 10 penalty units (section 27). This covers failure to carry out ordered research, to provide information to other parties, or to observe confidentiality directions issued under section 17.

  • Failure to comply with a notice under section 18 to give information or produce documents is a strict liability offence with a penalty of 10 penalty units (section 28).

  • Witness offences under section 29 are strict liability: failure to attend when summoned (section 29(1)), failure to be sworn or to answer required questions (section 29(2)), and failure to produce documents specified in the summons (section 29(3)) each attract penalties of 10 penalty units.

• Higher penalties for interference with witnesses or hearings. The Regulations impose stiffer penalties for interference with the arbitration process:

  • Intimidation, threats, coercion or conduct that causes damage, disadvantage or loss to a person because the person has attended or proposes to attend to give evidence, or has produced or proposes to produce documents, is an offence carrying a penalty of 30 penalty units (section 30(1)). The physical element in paragraph (1)(b) is subject to strict liability (section 30(2)).

  • Disturbing an arbitration hearing by insulting, disturbing or using insulting language towards a member of the ACCC, interrupting a hearing or otherwise creating a disturbance carries a penalty of 30 penalty units (section 31).

Enforcement mechanics

• The Regulations place enforcement primacy with the ACCC’s processes. The ACCC can sanction non‑compliance by initiating prosecutions for the offences set out in Divisions 3 and 6. The Regulations do not set out administrative fines or civil enforcement options beyond the ability to charge parties for the ACCC’s costs of arbitration (section 33). The ACCC’s power to require attendance and documents is backed by strict liability criminal sanctions for refusal or evasion (sections 27-29), thereby increasing the practical leverage of its investigatory instruments.

• Procedural protections and practical constraints. The ACCC must give parties a draft determination in advance (section 9(6)) and must include reasons with the final determination (section 9(7)(b)). Arbitration hearings are generally conducted in private (section 21(1)), but may be conducted in public if the parties agree (section 21(2)). The ACCC must act speedily but also to inquire carefully and fairly (section 13(2)(b)). These procedural constraints frame how and when enforcement powers will be exercised.

Financial liabilities

• Penalty units quantify criminal sanctions. The Regulations refer to penalty units rather than setting monetary amounts directly. Penalty units are an established statutory measure in Australian law but their monetary value is not specified in the Regulations themselves. The practical financial exposure for non‑compliance therefore depends on the current monetary value of a penalty unit.

• ACCC’s ability to recover costs. The ACCC may charge parties for the costs of conducting the arbitration and may apportion those charges (section 33). The Regulations do not set a tariff or rules for apportionment; the ACCC has discretion to determine charges and their allocation. For disputes involving designated associated facilities, the ACCC cannot require a party other than the access seeker to bear the costs of extending or maintaining facility capability (section 9(5)(c)), which constrains how costs for facility upgrades may be allocated in determinations.

The enforcement regime therefore relies on criminal sanctions for failure to comply with investigative directions, notices or summonses; higher penalties for intimidation or disruption; and a regulatory cost‑recovery mechanism. The combination of investigatory compulsion and criminal exposure gives the ACCC enforceable leverage when conducting arbitrations under these Regulations.

The Regulations are expressly made under the Broadcasting Services Act 1992 (section 3) and are built to operate together with provisions in that Act, particularly Schedule 4. The instrument contains several cross‑references and explicit limits that integrate it with other Commonwealth law.

• Subordination to substantive access obligations in the Act. Section 7( a) states that Part 3 of the Regulations is made for the purposes of subclause 47(3) of Schedule 4 to the Act and provides for the conduct of arbitration by the ACCC under clause 47. The Regulations therefore operationalise the arbitration power authorised by the Act and apply where the access seeker and access provider are unable to agree under the Act’s access provisions (section 8(1)). References throughout the Regulations to clauses 45, 45A and 46 of Schedule 4 show that the scope of who qualifies as an access seeker derives from the Act (section 5).

• Limits imposed by other Commonwealth laws. Section 9(4) provides that a determination must not require an access provider to give access if that requirement is already imposed by Part 5 of Schedule 4 to the Act or any other law of the Commonwealth. That clause places the Regulations in a subordinated position to existing Commonwealth legal obligations, preventing duplication or contradictory obligations.

• Interplay with telecommunications legislation. The definitions note that telecommunications network has the meaning given by section 7 of the Telecommunications Act 1997 (section 5). Section 6(4)(b)(i) bars access where an access seeker would fail to protect the integrity of a telecommunications network, and section 10(1)(d)(i) requires the ACCC to take operational and technical requirements for the safe and reliable operation of a telecommunications network or facility into account. These references mean that technical and safety considerations under telecommunications law are recognised in ACCC determinations under these Regulations.

• Preservation of historic contractual rights. Section 6(2)(c) prevents giving access from depriving any person of a right under a contract that was in force on 10 May 2000. That date‑based protection embeds a specific contractual carve‑out into the Regulations, preserving long‑standing contractual arrangements from displacement by new access claims under the Act and Regulations.

• Interaction with the old Regulations. The instrument repeals the Broadcasting Services (Transmitter Access) Regulations 2001 in Schedule 2. Section 35 provides a transitional saving that keeps the old law applicable to disputes that were notified to the ACCC prior to commencement and for which arbitration had not been terminated, withdrawn, or determined. This ensures continuity of process for disputes started under the prior regulatory instrument.

• ACCC’s evidence and procedural powers in administrative processes. The Regulations grant the ACCC powers to require documents, to summon witnesses and to run hearings in private or on the papers (sections 17-23). These procedural powers intersect with general administrative law principles and with criminal procedure only as far as the Regulations confer strict liability offences for non‑compliance (sections 27-29). The text does not itself create reference to judicial review or appeal remedies; it does, however, require written determinations with reasons (section 9(7)(b)), which is a procedural record pertinent to any external legal processes.

• Confidentiality and commercial information handling. Section 32 sets a process for parties to request confidential treatment of parts of documents and for the ACCC to consult the other party and decide whether to withhold those parts. That process shapes how ACCC arbitration evidence is shared, and interacts practically with any statutory secrecy or commercial confidentiality protections under other Commonwealth laws.

In sum, the Regulations are implemented as a procedural adjunct to the Broadcasting Services Act, with explicit cross‑references to the Act’s Schedule 4 for substantive access rights and obligations, and with attention to telecommunications law definitions and safety considerations. They also preserve pre‑existing contractual rights dated to 10 May 2000 and provide for a smooth transition from the 2001 Regulations for disputes already in train.

The source provides the original enactment and immediate repeal history contained within the instrument itself and records no subsequent amendments. The relevant points in the text are:

• Instrument identification and date. The instrument is the Broadcasting Services (Transmitter Access) Regulations 2019. It is dated 19 September 2019 and signed by the Governor‑General and the Minister for Communications, Cyber Safety and the Arts (front matter).

• Commencement details. Section 2 contains a commencement table that specifies that the whole of the instrument commences the day after the instrument is registered. The table indicates the commencement date as 24 September 2019 for the instrument as originally made (section 2 and the commencement table notes).

• Authority. The instrument is made under the Broadcasting Services Act 1992, which is stated in section 3.

• Repeal of the old Regulations. Schedule 2 repeals the Broadcasting Services (Transmitter Access) Regulations 2001 in its entirety (Schedule 2 and the Repeals heading). Section 4 cross‑references Schedule 2 and provides that each instrument specified in Schedule 2 is amended or repealed as set out in that Schedule.

• Transitional saving. Section 35 provides that despite the repeal of the old law, the old law continues to apply in relation to a dispute if, immediately before commencement, notification of the dispute had been given to the ACCC, a withdrawal had not been received, the arbitration had not been terminated, and a determination had not been made. This preserves the regulatory regime for disputes initiated under the prior instrument.

• No further amendments recorded in the text. The instrument contains a note under section 2 indicating that the commencement table relates only to the instrument as originally made and will not be amended to deal with later amendments, but the printed text of the instrument supplied here shows no subsequent amending items. The content of Schedules, Parts and Sections reflects the state of the instrument as of the date it was made.

Because the instrument text provided does not include any further amending instruments or notes of amendment beyond the 2019 repeal of the 2001 Regulations and the commencement statement, the amendment history that is recorded in the document is limited to the 2019 enactment, commencement on 24 September 2019, the repeal of the 2001 Regulations and the transitional provision preserving disputes in train under the old law (sections 2, Schedule 2 and section 35). The instrument itself notes that the commencement table refers only to the instrument as originally made and may not reflect later amendments; no later amendments appear in this source.

The Regulations, as supplied, contain no recorded litigation history, no references to cases decided under the instrument and no citations of judicial decisions. The instrument itself is a statutory text and does not record court outcomes or legal challenges.

That absence of recorded litigation in the instrument does not eliminate procedural features that create records suitable for external legal processes. The Regulations require the ACCC to make written determinations and to include reasons with each determination (section 9(7)(a)-(b)). The ACCC must provide a draft determination to each party before making a final determination (section 9(6)), creating an administrative record that sets out the ACCC’s reasoning process and facilitates transparency in outcomes. Arbitration hearings are generally private (section 21(1)), but the ACCC must still provide parties with reasons for its determinations, and the Regulations provide for the ACCC to accept expert reports as evidence and to require parties to produce documents and attend (sections 17, 18 and 19).

The Regulations create criminal offences for non‑compliance with procedural instruments (sections 27-31) and establish mechanisms for confidentiality claims by parties (section 32). Those features generate documentary and testimonial materials during arbitrations. The presence of structured determinations with reasons and specific offences linked to the arbitration process are elements that, in other contexts, have been relevant to subsequent legal challenges and review. However, the instrument itself contains no examples of such review, and no cases are named in the text.

For researchers or practitioners seeking a litigation record, the instrument provides the structural indicators to identify relevant ACCC determinations and to determine when disputes were handled under the old Regulations (savings in section 35). Where interested parties need to trace litigation history, the primary sources to consult beyond this instrument are the ACCC’s published determinations and public records, and court registries for any prosecutions under the offences enumerated in Divisions 3 and 6. The instrument equips practitioners to anticipate the form and content of ACCC determinations (drafts, reasons, parties notified) and to locate the statutory hooks used in any external legal proceedings by reference to the cited sections.

The Regulations contain several procedural, timing and substantive traps for parties who do not carefully follow the text. Highlighted items are strictly grounded in the instrument.

• Strict liability offences for procedural non‑compliance. Several offences are strict liability, meaning fault is not an element. Contravening an ACCC direction under section 17(b)-(e) is a strict liability offence (section 27). Failure to comply with a section 18 notice to give information or produce documents is strict liability (section 28). Witness failures to attend, be sworn, answer questions or produce documents when summoned under section 19 are strict liability (section 29). Because strict liability applies, procedural failures can lead to penalties without the need to prove intentional misconduct; the penalty units are specified in each section.

• Minimum compliance period for information notices. A notice under section 18 must specify a period within which the person is required to comply and that period must be at least 14 days after the notice is given (section 18(3)(a)). Parties receiving a notice should note the mandatory minimum and plan for compliance within that timeframe.

• Service requirements for summonses. A summons must be served by delivering a copy personally and showing the original to the person when the copy is delivered (section 19(3)). Failure to comply with these service requirements could impact the enforceability of the summons. The summons form is prescribed by Schedule 1.

• Confidentiality requests are subject to an objection process. A party’s request that parts of a document be treated as confidential must be notified to the ACCC, which must inform the other party and invite objections (section 32(1)-(3)). The ACCC has discretion to decide whether to withhold parts of documents after considering requests, objections and further submissions (section 32(4)). Parties should anticipate that confidentiality is not automatic and must be justified in submissions.

• ACCC’s discretion to join third parties and run joint arbitrations. The ACCC must notify persons it considers may be affected or may wish to be party to the arbitration (section 8(4)(c)-(d)). The Chairperson can direct joint arbitration of disputes where matters are common and efficiency is likely to improve outcomes, but only after giving notice and inviting written submissions within 14 days (section 24(1)-(4)). Parties facing a joint arbitration will need to prepare for potentially broader issues and new participants.

• ACCC may act “speedily” and limit time for submissions. The ACCC must act as speedily as proper consideration allows while inquiring carefully (section 13(2)(b)). It may determine periods reasonably necessary for fair presentation and require parties to present within those periods (section 13(3)). Parties should not assume lengthy delays; the ACCC can set tight timetables.

• Draft determinations and reasons are mandatory. The ACCC must give a draft of the determination to each party before finalising (section 9(6)) and must provide each party with the final determination and reasons (section 9(7)). Parties should be prepared to respond to a draft and to see the ACCC publish reasons that will frame the dispute record.

• Limits on cost allocation for designated associated facilities. While the ACCC can require a party to extend or enhance capability (section 9(3)(e)), when the dispute involves a designated associated facility a determination must not require a party other than the access seeker to bear the costs of such extension or maintenance (section 9(5)(c)). Parties should be aware that the ACCC’s power to require facility upgrades is constrained in how costs may be allocated to non‑seekers.

• Historic contractual carve‑out. Section 6(2)(c) prevents giving access where that would deprive any person of a right under a contract that was in force on 10 May 2000. That date‑based protection can surprise parties unfamiliar with the history; contracts entered into on or before that date retain protection from displacement by access claims under these Regulations.

• Preservation of old law for disputes in train. The repeal of the 2001 Regulations is subject to a saving for disputes notified before commencement and not withdrawn, terminated or determined (section 35). Parties must check which regime governs their dispute if notification preceded commencement.

• ACCC cost recovery without tariff rules. The ACCC may charge parties for the costs of conducting arbitration and apportion charges (section 33). The Regulations do not specify a tariff or apportionment methodology; parties may therefore face uncertainty about likely charges and must be ready to contest apportionment where appropriate.

• Private hearings by default. Arbitration hearings are to be conducted in private unless parties agree otherwise (section 21(1)-(2)). The private default affects publicity and access to evidence and requires parties to plan disclosure and confidentiality carefully.

• Safety and network integrity grounds for refusal. An access provider may refuse access where there are reasonable grounds to believe the access seeker would fail to protect integrity of a telecommunications network, continuity of broadcasting service, or the safety of individuals working on, or using services supplied by means of, a network or facility (section 6(4)(b)(i)-(iii)). Evidence of creditworthiness or repeated failures to comply with terms are provided as examples of reasonable grounds (section 6(5)). Access providers should document such grounds where relied upon.

These items are concrete traps embedded in the text. Parties that overlook service formalities, minimum timeframes, strict liability exposure, confidentiality procedures, or the special protections for old contracts and cost allocation may find themselves caught by the Regulations’ procedural and substantive provisions.

The Regulations prescribe specific steps and behaviours for access seekers, access providers and other participants in arbitration. The following compliance checklist restates those steps and links them to the relevant provisions.

Before notification

• Attempt negotiation and document efforts. Section 8(2)(h) requires notification to include a description of any effort made to resolve the dispute, including efforts to appoint an arbitrator in accordance with the Act. Parties should document pre‑notification negotiations and any attempts to agree on an arbitrator.

Notification to the ACCC (access seeker or access provider)

• Notify in writing and include prescribed information. To notify the ACCC that a dispute exists, an access seeker or access provider must deliver a written notification under section 8(1). The notification must include the notifier’s name and representative contact if not an individual, an address for delivery of documents relating to the notification, identification of whether the notifier is the access seeker or access provider (section 8(2)(a)-(c)), the name and address of the counterparty (section 8(2)(d)-(e)), the provision of the Act that requires the access (section 8(2)(f)), a description of the dispute including what is agreed and what is disputed (section 8(2)(g)), description of negotiation efforts (section 8(2)(h)), confirmation if the parties failed to agree on appointment of an arbitrator (section 8(2)(i)), and any other relevant information (section 8(2)(j)). Non‑compliance with the technical contents does not invalidate a notification (section 8(3)), but including all items avoids delays.

• Provide an address for service and a representative. The notification must state an address for delivery of documents (section 8(2)(b)) and, where the notifier is not an individual, the name and address of an individual who represents the notifier (section 8(2)(a)). Ensure that these are monitored for ACCC notices and draft determinations.

After notification

• Expect ACCC notice to other parties and potential joinder. On receipt, the ACCC will give written notice of the dispute to the counterparty and may notify other persons it considers will be affected or may wish to be parties (section 8(4)). If joined, prepare to participate as a party to the arbitration (section 8(5)).

• Prepare for draft determination and respond. The ACCC must provide a draft determination to each party before finalising (section 9(6)). Parties should review the draft and prepare submissions addressing the ACCC’s proposed terms and reasoning. The ACCC will include reasons with the final determination (section 9(7)(b)).

Compliance with ACCC procedural instruments

• Comply with directions, notices and summonses. If the ACCC issues a direction under section 17(b)-(e), a notice under section 18, or a summons under section 19, take immediate steps to comply. Failure to comply with directions (section 27) or notices (section 28) or with summons obligations (section 29) is a strict liability offence. A section 18 notice must allow at least 14 days to comply (section 18(3)(a)); plan to meet that timeline or raise compliance issues formally with the ACCC.

• Service of summonses. If served with a summons, note that service must be by personal delivery of a copy and showing the original at the time of delivery (section 19(3)). Ensure the person attending brings originals and copies of requested documents.

Presenting evidence and participating in hearings

• Prepare within ACCC timeframes. The ACCC may set periods reasonably necessary for presentation of cases and may require cases to be presented within those periods (section 13(3)). Prepare submissions and evidence sufficiently in advance to meet ACCC timetables.

• Be prepared for private hearings. Hearings are private unless parties agree to public proceedings (section 21(1)-(2)). Where confidentiality of materials is important, follow the confidentiality request process in section 32.

• Right to representation and oath. Parties may appear in person or be represented (section 22). The ACCC may take evidence on oath or affirmation (section 23); ensure witnesses are instructed about oath/affirmation procedures.

Confidentiality and document handling

• Use the confidentiality procedure where needed. If part of a document contains confidential commercial information, inform the ACCC and request that those parts not be supplied to other parties (section 32(1)). Be ready to provide the general nature of the matters and to respond to objections from other parties (section 32(2)-(3)). The ACCC will decide whether withholding is appropriate after considering submissions (section 32(4)).

Costs and budgeting

• Anticipate ACCC cost charges. The ACCC may charge parties for the cost of conducting arbitration and apportion those charges (section 33). Budget for potential fees and keep documentation to contest apportionment if necessary.

When access is to be refused or limited

• Rely on the statutory exemptions where appropriate. An access provider of a designated associated facility may refuse access if giving access would cause the scenarios in section 6(2) or if there are reasonable grounds that the access seeker would materially fail to comply with terms or would compromise integrity, continuity or safety (section 6(4)). Document the factual basis for relying on these exemptions, including evidence of creditworthiness or repeated non‑compliance where applicable (section 6(5)).

Cost allocation for facility upgrades

• Understand limits on who can be required to bear extension costs. The ACCC may require a party to extend or enhance capability (section 9(3)(e)), but where the arbitration concerns a designated associated facility it must not require a party other than the access seeker to bear costs of extension or maintenance (section 9(5)(c)). If seeking an upgrade, be prepared to address who will pay and whether the upgrade falls within the permitted allocation.

Withdrawal and termination

• Withdrawals must be in writing and communicated to the counterparty. A notification may only be withdrawn by the notifier before the ACCC makes a determination, and the withdrawal must include the name of the withdrawing person, whether the person is the access seeker or access provider and a short description of the dispute (section 11(1)-(2)). A copy of the withdrawal must be given to the counterparty (section 11(3)). The withdrawal takes effect when received by the ACCC (section 11(4)) and the ACCC must circulate it to other notified persons (section 11(5)).

Other practical points

• Anticipate potential joint arbitrations. If more than one dispute about related matters exists, the ACCC Chairperson may order a joint arbitration after giving notice and inviting submissions within 14 days (sections 24(1)-(4)). Parties should monitor for notices proposing joint arbitration and prepare submissions within the 14‑day window.

• Plan for operational and safety evidence. The ACCC must take operational and technical requirements for the safe and reliable operation of facilities and co‑located facilities into account (section 10(1)(d)). Provide technical evidence and risk assessments to satisfy the ACCC about safe co‑existence at tower sites.

• Keep careful records of negotiations, offers and refusals. Section 8(2)(g)-(h) requires description of each aspect of the terms and conditions on which the parties agree and disagree and of efforts made to resolve the dispute. Detailed documentary evidence of negotiations will support positions in the ACCC process.

Following these steps will align behaviour with the express procedural and substantive requirements of the Regulations. Parties should integrate the cited sections into procedural checklists and legal advice to ensure compliance with the specified timelines, form and content rules and to avoid strict liability exposure for procedural defaults.