153ZEQRestrictions on access determinations

153ZEQ Restrictions on access determinations

(1) The Commission must not make a determination that would have any of the following effects:

(a) preventing an existing user that is not related to the provider from obtaining sufficient access to the CS service to be able to meet the user’s reasonably anticipated requirements, measured at the time when the dispute was notified;

(b) preventing a person that is not related to the provider from obtaining, by the exercise of a pre‑notification right, sufficient access to the CS service to be able to meet the person’s actual requirements;

(d) resulting in the access seeker becoming the owner (or one of the owners) of any part of the CS facility that is linked to the CS service, or of extensions of the CS facility, without the consent of the provider;

(e) requiring the provider to bear some or all of the costs of extending the CS facility;

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

(2) Paragraphs (1)(a) and (b) do not apply in relation to the requirements and rights of the access seeker 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 access seeker and the provider.

(3) A determination is of no effect to the extent it has any of the effects mentioned in 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 CS service to the second person, the determination must also require the access seeker:

(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 CS service equal to the difference between the total amount of CS service the person was entitled to under a pre‑notification right and the amount that the person actually needs to meet the person’s actual requirements.

(5) If the provider is not the holder of the Australian CS facility licence that authorises the operation of the CS facility, this section applies in relation to the holder in the same way as it applies in relation to the provider.

(6) In this section:

existing user means a person (including the provider) who was using the CS service at the time when the access dispute was notified.