44XMatters that the Commission must take into account

44X  Matters that the Commission must take into account Final determinations  (1) The Commission must take the following matters into account in making a final determination:  (a) the legitimate business interests of the provider, and the provider’s investment in the facility;  (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 (including expansions of capacity and expansions of geographical reach) whose cost is borne by someone else;  (ea) the value to the provider of interconnections to the facility 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;  (h) the pricing principles specified in section 44ZZCA.  (2) The Commission may take into account any other matters that it thinks are relevant. Interim determinations  (3) The Commission may take the following matters into account in making an interim determination:  (a) a matter referred to in subsection (1);  (b) any other matter it considers relevant.  (4) In making an interim determination, the Commission does not have a duty to consider whether to take into account a matter referred to in subsection (1). 44XA  Time limit for Commission’s final determination Commission to make final determination within 180 days  (1) The Commission must make a final determination within the period of 180 days (the expected period) starting at the start of the day the application is received.  (2) In working out the expected period in relation to a final determination, in a situation referred to in column 1 of an item of the following table, disregard any day in a period:   - 1 An agreement is made in relation to the arbitration under subsection (4) The first day of the period specified in the agreement The last day of the period specified in the agreement - 2 A direction is given under subsection 44ZG(1) to give information or make a submission within a specified period The first day of the period specified for the giving of the information or the making of the submission The last day of the period specified for the giving of the information or the making of the submission - 3 A decision is published under subsection 44ZZCB(4) deferring consideration of the dispute while the Commission considers an access undertaking The day on which the decision is published The day on which the Commission makes its decision on the access undertaking under subsection 44ZZA(3) - 4 The Commission, under subsection 44ZZCBA(1) or (2), defers arbitrating the dispute while a declaration is under review by the Tribunal The day on which the Commission gives the notice to defer arbitrating the dispute The day the Tribunal makes its decision under section 44K on the review  (4) The Commission and the parties to the access dispute may agree in writing that a specified period is to be disregarded in working out the expected period. Deemed final determination  (6) If the Commission does not publish under section 44ZNB a written report about a final determination within the expected period, it is taken, immediately after the end of the expected period, to have:  (a) made a final determination that does not impose any obligations on the parties or alter any obligations (if any) that exist at that time between the parties; and  (b) published a written report about the final determination under section 44ZNB. 44Y  Commission may terminate arbitration in certain cases  (1) The Commission may at any time terminate an arbitration (without making a final determination) if it thinks that:  (a) the notification of the dispute was vexatious; or  (b) the subject matter of the dispute is trivial, misconceived or lacking in substance; or  (c) the party who notified the dispute has not engaged in negotiations in good faith; or  (d) access to the service should continue to be governed by an existing contract between the provider and the third party.  (2) In addition, if the dispute is about varying an existing determination, the Commission may terminate the arbitration if it thinks there is no sufficient reason why the previous determination should not continue to have effect in its present form. 44YA  Commission must terminate arbitration if declaration varied or set aside by Tribunal   If the Commission is arbitrating a dispute in relation to a declared service and the Tribunal sets aside or varies the declaration in relation to the service under section 44K, the Commission must terminate the arbitration. Subdivision D—Procedure in arbitrations 44Z  Constitution of Commission for conduct of arbitration   For the purposes of a particular arbitration, the Commission is to be constituted by 2 or more members of the Commission nominated in writing by the Chairperson. 44ZA  Member of the Commission presiding at an arbitration  (1) Subject to subsection (2), the Chairperson is to preside at an arbitration.  (2) If the Chairperson is not a member of the Commission as constituted under section 44Z in relation to a particular arbitration, the Chairperson must nominate a member of the Commission to preside at the arbitration. 44ZB  Reconstitution of Commission  (1) This section applies if a member of the Commission who is one of the members who constitute the Commission for the purposes of a particular arbitration:  (a) stops being a member of the Commission; or  (b) for any reason, is not available for the purpose of the arbitration.  (2) The Chairperson must either:  (a) direct that the Commission is to be constituted for the purposes of finishing the arbitration by the remaining member or members; or  (b) direct that the Commission is to be constituted for that purpose by the remaining member or members together with one or more other members of the Commission.  (3) If a direction under subsection (2) is given, the Commission as constituted in accordance with the direction must continue and finish the arbitration and may, for that purpose, have regard to any record of the proceedings of the arbitration made by the Commission as previously constituted. 44ZC  Determination of questions   If the Commission is constituted for an arbitration by 2 or more members of the Commission, any question before the Commission is to be decided:  (a) unless paragraph (b) applies—according to the opinion of the majority of those members; or  (b) if the members are evenly divided on the question—according to the opinion of the member who is presiding. 44ZD  Hearing to be in private  (1) Subject to subsection (2), an arbitration hearing for an access dispute is to be in private.  (2) If the parties agree, an arbitration hearing or part of an arbitration hearing may be conducted in public.  (3) The member of the Commission who is presiding at an arbitration hearing that is conducted in private may give written directions as to the persons who may be present.  (4) In giving directions under subsection (3), the member presiding must have regard to the wishes of the parties and the need for commercial confidentiality. 44ZE  Right to representation   In an arbitration hearing before the Commission under this Part, a party may appear in person or be represented by someone else. 44ZF  Procedure of Commission  (1) In an arbitration hearing about an access dispute, the Commission:  (a) is not bound by technicalities, legal forms or rules of evidence; and  (b) must act as speedily as a proper consideration of the dispute allows, having regard to the need to carefully and quickly inquire into and investigate the dispute and all matters affecting the merits, and fair settlement, of the dispute; and  (c) may inform itself of any matter relevant to the dispute in any way it thinks appropriate.  (2) The Commission may determine the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties to an access dispute, and may require that the cases be presented within those periods.  (3) The Commission may require evidence or argument to be presented in writing, and may decide the matters on which it will hear oral evidence or argument. 44ZG  Particular powers of Commission  (1) The Commission may do any of the following things for the purpose of arbitrating an access dispute:  (a) give a direction in the course of, or for the purposes of, an arbitration hearing;  (b) hear and determine the arbitration in the absence of a person who has been summoned or served with a notice to appear;  (c) sit at any place;  (d) adjourn to any time and place;  (e) refer any matter to an expert and accept the expert’s report as evidence;  (f) generally give all such directions, and do all such things, as are necessary or expedient for the speedy hearing and determination of the access dispute.  (2) A person must not do any act or thing in relation to the arbitration of an access dispute that would be a contempt of court if the Commission were a court of record.  (3) Subsection (1) has effect subject to any other provision of this Part and subject to the regulations.  (4) The Commission may give an oral or written order to a person not to divulge or communicate to anyone else specified information that was given to the person in the course of an arbitration unless the person has the Commission’s permission.  (5) A person who contravenes an order under subsection (4) is guilty of an offence, punishable on conviction by imprisonment for a term not exceeding 6 months. 44ZH  Power to take evidence on oath or affirmation  (1) The Commission may take evidence on oath or affirmation and for that purpose a member of the Commission may administer an oath or affirmation.  (2) The member of the Commission who is presiding may summon a person to appear before the Commission to give evidence and to produce such documents (if any) as are referred to in the summons.  (3) The powers in this section may be exercised only for the purposes of arbitrating an access dispute. 44ZI  Failing to attend as a witness   A person who is served, as prescribed, with a summons to appear as a witness before the Commission must not, without reasonable excuse:  (a) fail to attend as required by the summons; or  (b) fail to appear and report himself or herself from day to day unless excused, or released from further attendance, by a member of the Commission. 44ZJ  Failing to answer questions etc.  (1) A person appearing as a witness before the Commission must not, without reasonable excuse:  (a) refuse or fail to be sworn or to make an affirmation; or  (b) refuse or fail to answer a question that the person is required to answer by the Commission; or  (c) refuse or fail to produce a document that he or she was required to produce by a summons under this Part served on him or her as prescribed.  (2) It is a reasonable excuse for the purposes of subsection (1) for an individual to refuse or fail to answer a question or produce a document on the ground that the answer or the production of the document might tend to incriminate the individual or to expose the individual to a penalty. This subsection does not limit what is a reasonable excuse for the purposes of subsection (1). 44ZK  Intimidation etc.   A person must not:  (a) threaten, intimidate or coerce another person; or  (b) cause or procure damage, loss or disadvantage to another person; because that other person:  (c) proposes to produce, or has produced, documents to the Commission; or  (d) proposes to appear or has appeared as a witness before the Commission. Penalty: Imprisonment for 12 months. 44ZL  Party may request Commission to treat material as confidential  (1) A party to an arbitration hearing may:  (a) inform the Commission that, in the party’s opinion, a specified part of a document contains confidential commercial information; and  (b) request the Commission not to give a copy of that part to another party.  (2) On receiving a request, the Commission must:  (a) inform the other party or parties that the request has been made and of the general nature of the matters to which the relevant part of the document relates; and  (b) ask the other party or parties whether there is any objection to the Commission complying with the request.  (3) If there is an objection to the Commission complying with a request, the party objecting may inform the Commission of its objection and of the reasons for it.  (4) After considering:  (a) a request; and  (b) any objection; and  (c) any further submissions that any party has made in relation to the request; the Commission may decide not to give to the other party or parties a copy of so much of the document as contains confidential commercial information that the Commission thinks should not be so given. 44ZM  Sections 18 and 19 do not apply to the Commission in an arbitration   Sections 18 and 19 do not apply to the Commission, as constituted for an arbitration. 44ZN  Parties to pay costs of an arbitration   The regulations may provide for the Commission to:  (a) charge the parties to an arbitration for its costs in conducting the arbitration; and  (b) apportion the charge between the parties. 44ZNA  Joint arbitration hearings Joint arbitration hearing  (a) the Commission is arbitrating 2 or more access disputes at a particular time; and  (b) one or more matters are common to those disputes; the Chairperson may, by notice in writing, decide that the Commission must hold a joint arbitration hearing in respect of such of those disputes (the nominated disputes) as are specified in the notice.  (2) The Chairperson may do so only if he or she considers this would be likely to result in the nominated disputes being resolved in a more efficient and timely manner. Consulting the parties  (3) Before doing so, the Chairperson must give each party to the arbitration of each nominated dispute a notice in writing:  (a) specifying what the Chairperson is proposing to do; and  (b) inviting the party to make a written submission on the proposal to the Chairperson within 14 days after the notice is given.  (4) The Chairperson must have regard to any submission so made in deciding whether to do so. He or she may have regard to any other matter he or she considers relevant. Directions to presiding member  (5) The Chairperson may, for the purposes of the conduct of the joint arbitration hearing, give written directions to the member of the Commission presiding at the hearing. Constitution and procedure of Commission  (6) Sections 44Z to 44ZN apply to the joint arbitration hearing in a corresponding way to the way in which they apply to a particular arbitration. Note: For example, the Chairperson would be required to nominate in writing 1 or more members of the Commission to constitute the Commission for the purposes of the joint arbitration hearing. Record of proceedings etc.  (7) The Commission as constituted for the purposes of the joint arbitration hearing may have regard to any record of the proceedings of the arbitration of any nominated dispute.  (8) The Commission as constituted for the purposes of the arbitration of each nominated dispute may, for the purposes of making a determination in relation to that arbitration:  (a) have regard to any record of the proceedings of the joint arbitration hearing; and  (b) adopt any findings of fact made by the Commission as constituted for the purposes of the joint arbitration hearing.  (9) The following are not legislative instruments:  (a) a notice made under subsection (1);  (b) a direction given under subsection (5). Subdivision DA—Arbitration reports 44ZNB  Arbitration reports  (1) The Commission must prepare a written report about a final determination it makes. It must publish, by electronic or other means, the report.  (2) The report may include the whole or a part of the determination and the reasons for the determination or the part of the determination. Report must include certain matters  (3) The report must set out the following matters:  (a) the principles the Commission applied in making the determination;  (b) the methodologies the Commission applied in making the determination and the reasons for the choice of the asset valuation methodology;  (c) how the Commission took into account the matters mentioned in subsection 44X(1) in making the determination;  (d) any matter the Commission took into account under subsection 44X(2) in making the determination and the reasons for doing so;  (e) any information provided by the parties to the arbitration that was relevant to those principles or methodologies; Note: Confidentiality issues are dealt with in subsections (5) to (7).  (f) any implications the Commission considers the determination has for persons seeking access to the service or to similar services in the future;  (g) if applicable—the reasons for the determination dealing with matters that were already agreed between the parties to the arbitration at the time the access dispute was notified;  (h) if applicable—the reasons for the access dispute being the subject of a joint arbitration hearing under section 44ZNA despite the objection of a party to the arbitration. Report may include other matters  (4) The report may include any other matter that the Commission considers relevant.  (5) The Commission must not include in the report any information the Commission decided not to give to a party to the arbitration under section 44ZL.  (6) Before publishing the report, the Commission must give each party to the arbitration a notice in writing:  (a) specifying what the Commission is proposing to publish; and  (b) inviting the party to make a written submission to the Commission within 14 days after the notice is given identifying any information the party considers should not be published because of its confidential commercial nature.  (7) The Commission must have regard to any submission so made in deciding what to publish. It may have regard to any other matter it considers relevant.  (8) A report prepared under subsection (1) is not a legislative instrument. Subdivision E—Effect of determinations 44ZO  Operation of final determinations  (1) If none of the parties to the arbitration applies to the Tribunal under section 44ZP for a review of the Commission’s final determination, the determination has effect 21 days after the determination is made.  (2) If a party to the arbitration applies to the Tribunal under section 44ZP for a review of the Commission’s final determination, the determination is of no effect until the Tribunal makes its determination on the review. Backdating  (3) Any or all of the provisions of a final determination may be expressed to apply from a specified day that is earlier than the day on which it takes effect under subsection (1) or (2). Example: The Commission makes a final determination on 1 August. It takes effect under subsection (1) on 22 August, but it is expressed to apply from 1 July.  (4) The specified day must not be earlier than the following day:  (a) if the third party and provider commenced negotiations on access to the service after the service became a declared service—the day on which the negotiations commenced;  (b) if the third party and provider commenced negotiations on access to the service before the service became a declared service—the day on which the declaration began to operate. However, the specified day cannot be a day on which the third party did not have access to the service. Operation of interim determination  (5) If a provision of a final determination is expressed to apply from a day when an interim determination was in effect, the provision of the final determination prevails over the interim determination to the extent set out in the final determination. Interest  (a) a provision of a final determination is covered by subsection (3); and  (b) the provision requires a party to the determination (the first party) to pay money to another party; the determination may require the first party to pay interest to the other party, at the rate specified in the determination, on the whole or a part of the money, for the whole or a part of the period:  (c) beginning on the day specified under subsection (3); and  (d) ending on the day on which the determination takes effect under subsection (1) or (2). Guidelines  (7) In exercising the power conferred by subsection (3) or (6), the Commission must have regard to any guidelines in force under subsection (8). It may have regard to any other matter it considers relevant.  (8) The Commission must, by legislative instrument, determine guidelines for the purposes of subsection (7).  (9) The Commission must take all reasonable steps to ensure that the first set of guidelines under subsection (8) is made within 6 months after the commencement of this subsection. 44ZOA  Effect and duration of interim determinations  (1) An interim determination takes effect on the day specified in the determination.  (2) Unless sooner revoked, an interim determination continues in effect until the earliest of the following:  (a) the notification of the access dispute is withdrawn under section 44T;  (b) a final determination relating to the access dispute takes effect; Note: A backdated final determination may prevail over an interim determination: see subsection 44ZO(5).  (c) an interim determination made by the Tribunal (while reviewing a final determination relating to the access dispute) takes effect. Subdivision F—Review of final determinations 44ZP  Review by Tribunal  (1) A party to a final determination may apply in writing to the Tribunal for a review of the determination.  (2) The application must be made within 21 days after the Commission made the final determination.  (3) A review by the Tribunal is a re‑arbitration of the access dispute based on the information, reports and things referred to in section 44ZZOAA. Note: There are time limits that apply to the Tribunal’s decision on the review: see section 44ZZOA.  (5) The member of the Tribunal presiding at the review may require the Commission to give assistance for the purposes of the review.  (5A) Without limiting subsection (5), the member may, by written notice, require the Commission to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review.  (ii) the other party or parties to the final determination; and  (6) The Tribunal may either affirm or vary the Commission’s determination.  (7) The determination, as affirmed or varied by the Tribunal, is to be taken to be a determination of the Commission for all purposes of this Part (except this section).  (8) The decision of the Tribunal takes effect from when it is made. 44ZQ  Provisions that do not apply in relation to a Tribunal review   Sections 37, 39 to 43 (inclusive) and 103 to 110 (inclusive) do not apply in relation to a review by the Tribunal of a final determination made by the Commission. 44ZR  Appeals to Federal Court from determinations of the Tribunal  (1) A party to an arbitration may appeal to the Federal Court, on a question of law, from the decision of the Tribunal under section 44ZP.  (2) An appeal by a person under subsection (1) must be instituted:  (a) not later than the 28th day after the day on which the decision of the Tribunal is made or within such further period as the Federal Court (whether before or after the end of that day) allows; and  (b) in accordance with the Rules of Court made under the Federal Court of Australia Act 1976.  (3) The Federal Court must hear and determine the appeal and may make any order that it thinks appropriate.  (4) The orders that may be made by the Federal Court on appeal include (but are not limited to):  (a) an order affirming or setting aside the decision of the Tribunal; and  (b) an order remitting the matter to be decided again by the Tribunal in accordance with the directions of the Federal Court. 44ZS  Operation and implementation of a determination that is subject to appeal  (1) Subject to this section, the fact that an appeal is instituted in the Federal Court from a decision of the Tribunal does not affect the operation of the decision or prevent action being taken to implement the decision.  (2) If an appeal is instituted in the Federal Court from a decision of the Tribunal, the Federal Court or a judge of the Federal Court may make any orders staying or otherwise affecting the operation or implementation of the decision of the Tribunal that the Federal Court or judge thinks appropriate to secure the effectiveness of the hearing and determination of the appeal.  (3) If an order is in force under subsection (2) (including an order previously varied under this subsection), the Federal Court or a judge of the Federal Court may make an order varying or revoking the first‑mentioned order.  (4) An order in force under subsection (2) (including an order previously varied under subsection (3)):  (a) is subject to any conditions that are specified in the order; and  (b) has effect until:  (i) the end of any period for the operation of the order that is specified in the order; or  (ii) the giving of a decision on the appeal;   whichever is earlier. 44ZT  Transmission of documents   If an appeal is instituted in the Federal Court:  (a) the Tribunal must send to the Federal Court all documents that were before the Tribunal in connection with the matter to which the appeal relates; and  (b) at the conclusion of the proceedings before the Federal Court in relation to the appeal, the Federal Court must return the documents to the Tribunal. Subdivision G—Variation and revocation of determinations 44ZU  Variation of final determinations  (1) The Commission may vary a final determination on the application of any party to the determination. However, it cannot vary the final determination if any other party objects. Note: If the parties cannot agree on a variation, a new access dispute can be notified under section 44S.  (2) Sections 44W and 44X apply to a variation under this section as if:  (a) an access dispute arising out of the final determination had been notified when the application was made to the Commission for the variation of the determination; and  (b) the variation were the making of a final determination in the terms of the varied determination. 44ZUA  Variation and revocation of interim determinations  (1) The Commission may, by writing, vary or revoke an interim determination.  (2) The Commission must, by writing, revoke an interim determination if requested to do so by the parties to the determination. Division 4—Registered contracts for access to declared services 44ZV  Constitutional limits on operation of this Division   This Division does not apply to a contract unless:  (a) the contract provides for access to a declared service; and  (b) the contract was made after the service was declared; and  (c) the parties to the contract are the provider of the service and a third party; and  (d) at least one of the following conditions is met:  (i) the provider is a corporation (or a partnership or joint venture consisting wholly of corporations);  (ii) the third party is a corporation;  (iii) the access is (or would be) in the course of, or for the purposes of, constitutional trade or commerce. 44ZW  Registration of contract  (1) On application by all the parties to a contract, the Commission must:  (a) register the contract by entering the following details on a public register:  (i) the names of the parties to the contract;  (ii) the service to which the contract relates;  (iii) the date on which the contract was made; or  (b) decide not to register the contract.  (2) In deciding whether to register a contract, the Commission must take into account:  (aa) the objects of this Part; and  (a) the public interest, including the public interest in having competition in markets (whether or not in Australia); and  (b) the interests of all persons who have rights to use the service to which the contract relates.  (2A) The Commission must not register a contract if it deals with a matter or matters relating to access to the service that are dealt with in an access undertaking that is in operation.  (3) The Commission must publish a decision not to register a contract.  (4) If the Commission publishes a decision not to register a contract, it must give the parties to the contract reasons for the decision when it publishes the decision. 44ZX  Review of decision not to register contract  (1) If the Commission decides not to register a contract, a party to the contract may apply in writing to the Tribunal for review of the decision.  (2) An application for review must be made within 21 days after publication of the Commission’s decision.  (3) The review by the Tribunal is a re‑consideration of the matter based on the information, reports and things referred to in section 44ZZOAA. Note: There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA).  (5) The member of the Tribunal presiding at the review may require the Commission to give assistance for the purposes of the review.  (5A) Without limiting subsection (5), the member may, by written notice, require the Commission to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review.  (ii) the other party or parties to the contract; and  (b) publish, by electronic or other means, the notice; and  (6) The Tribunal may either:  (a) affirm the Commission’s decision; or  (b) register the contract. 44ZY  Effect of registration of contract   The parties to a contract that has been registered:  (a) may enforce the contract under Division 7 as if the contract were a determination of the Commission under section 44V and they were parties to the determination; and  (b) cannot enforce the contract by any other means. Division 5—Hindering access to declared services 44ZZ  Prohibition on hindering access to declared services  (1) The provider or a user of a service to which a third party has access under a determination, or a body corporate related to the provider or a user of the service, must not engage in conduct for the purpose of preventing or hindering the third party’s access to the service under the determination.  (2) A person may be taken to have engaged in conduct for the purpose referred to in subsection (1) even though, after all the evidence has been considered, the existence of that purpose is ascertainable only by inference from the conduct of the person or from other relevant circumstances. This subsection does not limit the manner in which the purpose of a person may be established for the purposes of subsection (1).  (3) In this section, a user of a service includes a person who has a right to use the service. Division 6—Access undertakings and access codes for services Subdivision A—Giving of access undertakings and access codes 44ZZA  Access undertakings by providers  (1) A person who is, or expects to be, the provider of a service may give a written undertaking to the Commission in connection with the provision of access to the service. Note: The following are examples of the kinds of things that might be dealt with in the undertaking: (a) terms and conditions of access to the service; (b) procedures for determining terms and conditions of access to the service; (c) an obligation on the provider not to hinder access to the service; (d) an obligation on the provider to implement a particular business structure; (e) an obligation on the provider to provide information to the Commission or to another person; (f) an obligation on the provider to comply with decisions of the Commission or another person in relation to matters specified in the undertaking; (g) an obligation on the provider to seek a variation of the undertaking in specified circumstances.  (2) The undertaking must specify the expiry date of the undertaking.  (3) The Commission may accept the undertaking, if it thinks it appropriate to do so having regard to the following matters:  (ab) the pricing principles specified in section 44ZZCA;  (a) the legitimate business interests of the provider;  (c) the interests of persons who might want access to the service;  (da) whether the undertaking is in accordance with an access code that applies to the service;  (e) any other matters that the Commission thinks are relevant. Note 1: There are grounds on which the Commission may reject the undertaking if it contains, or should contain, fixed principles: see section 44ZZAAB. Note 2: The Commission may defer consideration of the undertaking if it is also arbitrating an access dispute: see section 44ZZCB.  (3AA) The Commission must not accept the undertaking if a decision of the Commonwealth Minister is in force under section 44N that a regime established by a State or Territory for access to the service is an effective access regime.  (3AB) The Commission may reject the undertaking if it incorporates one or more amendments (see subsection 44ZZAAA(5)) and the Commission is satisfied that the amendment or amendments are of a kind, are made at a time, or are made in a manner that:  (a) unduly prejudices anyone the Commission considers has a material interest in the undertaking; or  (b) unduly delays the process for considering the undertaking.  (3A) The Commission must not accept the undertaking unless:  (a) the provider, or proposed provider, is a corporation (or a partnership or joint venture consisting wholly of corporations); or  (b) the undertaking provides for access only to third parties that are corporations; or  (c) the undertaking provides for access that is (or would be) in the course of, or for the purposes of, constitutional trade or commerce.  (6) If the undertaking provides for disputes about the undertaking to be resolved by the Commission, then the Commission may resolve the disputes in accordance with the undertaking.  (6A) If the undertaking provides for the Commission to perform functions or exercise powers in relation to the undertaking, the Commission may perform those functions and exercise those powers. If the Commission decides to do so, it must do so in accordance with the undertaking.  (6B) The Commission may accept the undertaking even if the service is the subject of a decision by the designated Minister under section 44LG that the service is ineligible to be a declared service.  (7) The provider may:  (a) withdraw the application given under subsection (1) at any time before the Commission makes a decision on whether to accept the application; and  (b) withdraw or vary the undertaking at any time after it has been accepted by the Commission, but only with the consent of the Commission. The Commission may consent to a variation of the undertaking if it thinks it appropriate to do so having regard to the matters in subsection (3). Note 2: The Commission may request information and invite public submissions in relation to its decision: see sections 44ZZBCA and 44ZZBD. 44ZZAAA  Proposed amendments to access undertakings Commission may give an amendment notice in relation to an undertaking  (1) Before deciding whether to accept an undertaking given to it under subsection 44ZZA(1) by a person who is, or expects to be, the provider of a service, the Commission may give the person an amendment notice in relation to the undertaking.  (2) An amendment notice is a notice in writing that specifies:  (a) the nature of the amendment or amendments (the proposed amendment or amendments) that the Commission proposes be made to the undertaking; and  (b) the Commission’s reasons for the proposed amendment or amendments; and  (c) the period (the response period) within which the person may respond to the notice, which must be at least 14 days after the day the notice was given to the person.  (3) The Commission may publish, by electronic or other means, the amendment notice.  (4) The Commission may give more than one amendment notice in relation to an undertaking. Person may give a revised undertaking in response to notice  (5) If a person receives an amendment notice, the person may, within the response period, respond to the notice by giving a revised undertaking to the Commission that incorporates one or more amendments.  (6) If the revised undertaking incorporates one or more amendments that the Commission considers are not of the nature proposed in the amendment notice and do not address the reasons for the proposed amendments given in the amendment notice, the Commission must not accept the revised undertaking and must return it to the person within 21 days of receiving it.  (7) If the person gives a revised undertaking under subsection (5) and the revised undertaking is not returned to the person under subsection (6), the revised undertaking is taken, after the time it is given to the Commission, to be the undertaking given under section 44ZZA for the purposes of this Part.  (8) The person is taken to have not agreed to the proposed amendment or amendments if the person does not respond within the response period. Commission not required to accept revised undertaking  (9) The Commission is not required to accept the revised undertaking under section 44ZZA. No duty to propose amendments  (10) In considering whether to accept an undertaking, the Commission does not have a duty to consider whether to propose one or more amendments to the undertaking. Notice of proposed amendment is not a legislative instrument  (11) A notice given under subsection (1) is not a legislative instrument. 44ZZAAB  Access undertakings containing fixed principles Access undertakings may contain fixed principles  (1) An access undertaking given to the Commission under subsection 44ZZA(1) may include one or more terms that, under the undertaking, are fixed for a specified period.  (2) Each of the terms is a fixed principle and the specified period is a fixed period. Different periods may be specified for different fixed principles.  (3) The fixed period must:  (a) start:  (i) when the access undertaking comes into operation; or  (ii) at a later time ascertained in accordance with the undertaking; and  (b) extend beyond the expiry date of the undertaking. Consideration of fixed principles  (4) The Commission may reject the undertaking if it:  (a) includes a term that is not a fixed principle and that the Commission considers should be a fixed principle; or  (b) includes a fixed principle that the Commission considers should not be fixed; or  (c) includes a fixed principle that the Commission considers should be fixed for a period that is different from the period specified in the undertaking. However, the Commission must not reject the undertaking solely on the basis that it is consistent with a fixed principle that is included in the undertaking in compliance with subsection (6). Fixed principles must be carried over to later undertakings  (5) Subsection (6) applies if:  (a) the Commission accepts an undertaking (the earlier undertaking) in connection with the provision of access to a service that includes a fixed principle; and  (b) an undertaking (the later undertaking) is given to the Commission in connection with the provision of access to the service within the fixed period for the fixed principle; and  (c) at the time the later undertaking is given:  (i) the fixed principle has not been revoked under subsection (7); and  (ii) the earlier undertaking has not been varied under subsection 44ZZA(7) so that the fixed principle is no longer a term of the earlier undertaking.  (6) The Commission must not accept the later undertaking under section 44ZZA unless the undertaking includes a term that is the same as the fixed principle. Variation or revocation of fixed principles when no undertaking is in operation  (7) If there is no access undertaking in operation in connection with the provision of access to a service, the provider may revoke or vary a fixed principle that relates to the service (including the fixed period for the principle), but only with the consent of the Commission. The Commission may consent to the revocation or variation of the fixed principle if it thinks it appropriate to do so having regard to the matters in subsection 44ZZA(3). Note: Subsection 44ZZA(7) contains provision for fixed principles to be varied or revoked in the situation where there is an access undertaking in operation. This may include a variation of the fixed period for the fixed principle. Alteration of fixed principles  (8) If an undertaking that is accepted by the Commission contains one or more fixed principles, the undertaking is accepted on the basis that:  (a) the principle may be varied or revoked under subsection (7) or 44ZZA(7); and  (b) the principle may be cancelled, revoked, terminated or varied by or under later legislation; and  (c) no compensation is payable if the principle is cancelled, revoked, terminated or varied as mentioned in any of the above paragraphs.  (9) Subsection (8) does not, by implication, affect the interpretation of any other provision of this Act. 44ZZAA  Access codes prepared by industry bodies  (1) An industry body may give a written code to the Commission setting out rules for access to a service.  (2) The code must specify the expiry date of the code.  (3) The Commission may accept the code, if it thinks it appropriate to do so having regard to the following matters:  (ab) the pricing principles specified in section 44ZZCA;  (a) the legitimate business interests of providers who might give undertakings in accordance with the code;  (c) the interests of persons who might want access to the service covered by the code;  (e) any matters specified in regulations made for the purposes of this subsection;  (f) any other matters that the Commission thinks are relevant.  (3A) The Commission must not accept the code if a decision of the Commonwealth Minister is in force under section 44N that a regime established by a State or Territory for access to the service is an effective access regime.  (6) The industry body may:  (a) withdraw the code given under subsection (1) at any time before the Commission makes a decision whether to accept the code; and  (b) withdraw or vary the code at any time after it has been accepted by the Commission, but only with the consent of the Commission. The Commission may consent to a variation of the code if it thinks it appropriate to do so having regard to the matters in subsection (3). Note: The Commission may rely on industry body consultations before giving its consent: see section 44ZZAB.  (7) If the industry body that gave the code to the Commission has ceased to exist, a withdrawal or variation under subsection (6) may be made by a body or association prescribed by the regulations as a replacement for the original industry body.  (8) In this section: code means a set of rules (which may be in general terms or detailed terms). industry body means a body or association (including a body or association established by a law of a State or Territory) prescribed by the regulations for the purposes of this section. Note 2: The Commission may request information and invite public submissions in relation to its decision: see sections 44ZZBCA and 44ZZBD. 44ZZAB  Commission may rely on industry body consultations  (1) The Commission may accept a code if the industry body has done the following before giving the code to the Commission under subsection 44ZZAA(1):  (a) published the code or a draft of the code and invited people to make submissions to the industry body on the code or draft;  (b) specified the effect of this subsection and subsection (2) when it published the code or draft;  (c) considered any submissions that were received within the time limit specified by the industry body when it published the code or draft.  (2) In deciding whether to accept the code, the Commission may consider any submission referred to in paragraph (1)(c).  (3) Before consenting to a variation or withdrawal of a code under subsection 44ZZAA(6), the Commission may rely on:  (a) publication of the variation or notice of the withdrawal by the industry body, including specification of the effect of this subsection and subsection (4); and  (b) consideration by the industry body of any submissions that were received within the time limit specified by the industry body when it published the variation or notice.  (4) In deciding whether to consent to the variation or withdrawal, the Commission may consider any submission referred to in paragraph (3)(b).  (5) In this section: code has the same meaning as it has in section 44ZZAA. industry body has the same meaning as it has in section 44ZZAA. Subdivision B—Effect of access undertakings and access codes 44ZZBA  When access undertakings and access codes come into operation Acceptance of access undertakings or access codes  (1) If the Commission accepts an access undertaking or an access code, it comes into operation at:  (a) if, within 21 days after the Commission publishes its decision, no person has applied to the Tribunal for review of the decision—the end of that period; or  (b) if a person applies to the Tribunal within that period for review of the decision and the Tribunal affirms the decision—the time of the Tribunal’s decision.  (2) If the Tribunal decides under paragraph 44ZZBF(7)(e) to accept an access undertaking or access code, it comes into operation at the time of the Tribunal’s decision.  (3) An access undertaking or access code continues in operation until its expiry date, unless it is earlier withdrawn. Note: The period for which an access undertaking or access code is in operation may be extended: see section 44ZZBB. Withdrawal or variation of access undertakings or access codes  (4) If the Commission consents to the withdrawal or variation of an access undertaking or an access code, the withdrawal or variation comes into operation at:  (a) if, within 21 days after the Commission publishes its decision, no person has applied to the Tribunal for review of the decision—the end of that period; or  (b) if a person applies to the Tribunal within that period for review of the decision and the Tribunal affirms the decision—the time of the Tribunal’s decision.  (5) If the Tribunal decides under paragraph 44ZZBF(7)(e) to consent to the withdrawal or variation of an access undertaking or access code, the withdrawal or variation comes into operation at the time of the Tribunal’s decision. Revocation or variation of fixed principles in access undertakings  (6) If the Commission consents to the revocation or variation of a fixed principle that is included as a term of an access undertaking under subsection 44ZZAAB(7), the revocation or variation comes into operation at:  (a) if, within 21 days after the Commission publishes its decision, no person has applied to the Tribunal for review of the decision—the end of that period; or  (b) if a person applies to the Tribunal within that period for review of the decision and the Tribunal affirms the decision—the time of the Tribunal’s decision.  (7) If the Tribunal decides under paragraph 44ZZBF(7)(e) to consent to the revocation or variation of a fixed principle that is included as term of an access undertaking, the revocation or variation comes into operation at the time of the Tribunal’s decision. Subdivision C—Extensions of access undertakings and access codes 44ZZBB  Extensions of access undertakings and access codes Access undertakings  (1) If an access undertaking is in operation under section 44ZZBA (including as a result of an extension under this section), the provider of the service may apply in writing to the Commission for an extension of the period for which it is in operation. Note: The Commission may extend the period for which the undertaking is in operation more than once: see subsection (8). This means there may be multiple applications under this subsection.  (2) The provider of the service must specify in the application a proposed extension period.  (3) The Commission may, by notice in writing, extend the period for which the undertaking is in operation if it thinks it appropriate to do so having regard to the matters mentioned in subsection 44ZZA(3). The notice must specify the extension period. Access codes  (4) If an access code is in operation under section 44ZZBA (including as a result of an extension under this section), the industry body may apply in writing to the Commission for an extension of the period for which it is in operation. Note: The Commission may extend the period for which the code is in operation more than once: see subsection (8). This means there may be multiple applications under this subsection.  (5) The industry body must specify in the application a proposed extension period.  (6) The Commission may, by notice in writing, extend the period for which the code is in operation if it thinks it appropriate to do so having regard to the matters mentioned in subsection 44ZZAA(3). The notice must specify the extension period.  (7) If the industry body that gave the code to the Commission has ceased to exist, an application under subsection (4) may be made by a body or association referred to in subsection 44ZZAA(7). Multiple extensions  (8) The Commission may extend the period for which an access undertaking or an access code is in operation more than once. Note 2: The Commission may request information and invite public submissions in relation to its decision: see sections 44ZZBCA and 44ZZBD. 44ZZBC  Time limit for Commission decisions Commission to make decision on application within 180 days  (1) The Commission must make a decision on an access undertaking application or an access code application within the period of 180 days (the expected period) starting at the start of the day the application is received.  (2) In working out the expected period in relation to an access undertaking application or an access code application, in a situation referred to in column 1 of an item of the following table, disregard any day in a period:   - 1 An agreement is made in relation to the application under subsection (4) The first day of the period specified in the agreement The last day of the period specified in the agreement - 2 A notice is given under subsection 44ZZBCA(1) requesting information in relation to the application The day on which the notice is given The last day of the period specified in the notice for the giving of the information - 3 A notice is published under subsection 44ZZBD(1) inviting public submissions in relation to the application The day on which the notice is published The day specified in the notice as the day by which submissions may be made - 4 A decision is published under subsection 44ZZCB(4) deferring consideration of whether to accept the access undertaking, in whole or in part, while the Commission arbitrates an access dispute The day on which the decision is published The day on which the final determination in relation to the arbitration of the access dispute is made  (4) The Commission and:  (a) for an access undertaking application—the provider of the service; and  (b) for an access code application—the industry body or its replacement; may agree in writing that a specified period is to be disregarded in working out the expected period. Deemed final determination  (6) If the Commission does not publish under section 44ZZBE an access undertaking decision or an access code decision within the expected period, it is taken, immediately after the end of the expected period, to have:  (a) made a decision to not accept the application; and  (b) published its decision under section 44ZZBE and its reasons for that decision. 44ZZBCA  Commission may request information  (1) The Commission may give a person a written notice requesting the person give to the Commission, within a specified period, information of a kind specified in the notice that the Commission considers may be relevant to making a decision on an access undertaking application or an access code application.  (2) The Commission must:  (i) in the case of an access undertaking application—the provider of the service (unless the provider is the person); and  (ii) in the case of an access code application—the industry body that gave the application to the Commission (unless the body is the person); and  (3) In making a determination, the Commission:  (a) must have regard to any information given in compliance with a notice under subsection (1) within the specified period; and  (b) may disregard any information of the kind specified in the notice that is given after the specified period has ended. 44ZZBD  Commission may invite public submissions  (1) The Commission may publish, by electronic or other means, a notice inviting public submissions on an access undertaking application or an access code application if it considers that it is appropriate and practicable to do so.  (2) The notice must specify how submissions may be made and the day by which submissions may be made (which must be at least 14 days after the day the notice is published).  (3) Subject to subsection (6), in making its decision on the application, the Commission: Commission may make submissions publicly available  (4) The Commission may make any written submission, or a written record (which may be a summary) of any oral submission, publicly available.  (5) A person may, at the time of making a submission, request that the Commission:  (b) not publish or make available the whole or a part of the submission under section 44ZZBE;  (6) If the Commission refuses such a request:  (a) for a written submission—the Commission must, if the person who made it so requires, return the whole or the part of it to the person; and  (b) for an oral submission—the person who made it may inform the Commission that the person withdraws the whole or the part of it; and  (c) if the Commission returns the whole or the part of the submission, or the person withdraws the whole or the part of the submission, the Commission must not:  (ii) publish or make available the whole or the part of the submission under section 44ZZBE; and  (iii) have regard to the whole or the part of the submission in making its decision on the application. 44ZZBE  Commission must publish its decisions  (1) The Commission must publish, by electronic or other means, an access undertaking decision or an access code decision and its reasons for the decision.  (2) The Commission must give a copy of the publication to:  (a) for an access undertaking decision—the provider of the service; or  (b) for an access code decision—the industry body or its replacement.  (3) Before publishing under subsection (1), the Commission may give any one or more of the following persons:  (a) for an access undertaking decision—the provider of the service;  (b) for an access code decision—the industry body or its replacement;  (c) in any case—any other person the Commission considers appropriate;  (d) specifying what the Commission is proposing to publish; and  (e) inviting the person to make a written submission to the Commission within 14 days after the notice is given identifying any information the person considers should not be published because of its confidential commercial nature.  (4) The Commission must have regard to any submission so made in deciding what to publish. It may have regard to any other matter it considers relevant. 44ZZBF  Review of decisions  (1) A person whose interests are affected by an access undertaking decision or an access code decision may apply in writing to the Tribunal for review of the decision.  (3) The review by the Tribunal is a reconsideration of the matter based on the information, reports and things referred to in section 44ZZOAA. Note: There are limits on the information to which the Tribunal may have regard (see section 44ZZOAA) and time limits that apply to the Tribunal’s decision on the review (see section 44ZZOA).  (4) For the purposes of the review, the Tribunal has the same powers as the Commission (other than the power to propose amendments under section 44ZZAAA).  (5) The member of the Tribunal presiding at the review may require the Commission to give assistance for the purposes of the review.  (5A) Without limiting subsection (5), the member may, by written notice, require the Commission to give information, and to make reports, of a kind specified in the notice, within the period specified in the notice, for the purposes of the review.  (ii) the provider of the service; and  (6) If the Commission:  (a) accepted an access undertaking or access code; or  (b) consented to the withdrawal or variation of an access undertaking or access code; or  (ba) consented to the revocation or variation of a fixed principle under subsection 44ZZAAB(7); or  (c) extended the period for which an access undertaking or access code is in operation; the Tribunal must, by writing, affirm or set aside the Commission’s decision.  (7) If the Commission:  (a) rejected an access undertaking or access code; or  (b) refused to consent to the withdrawal or variation of an access undertaking or access code; or  (ba) refused to consent to the revocation or variation of a fixed principle under subsection 44ZZAAB(7); or  (c) refused to extend the period for which an access undertaking or access code is in operation; the Tribunal must, by writing:  (d) affirm the Commission’s decision; or  (e) set aside the Commission’s decision and accept the undertaking or code, consent to the withdrawal or variation of the undertaking or code, consent to the revocation or variation of the fixed principle or extend the period for which the undertaking or code is in operation. Subdivision F—Register of access undertakings and access codes 44ZZC  Register of access undertakings and access codes  (1) The Commission must maintain a public register that includes all access undertakings and access codes that have been accepted by the Commission, including those that are no longer in operation.  (1A) For the purposes of subsection (1), if an access undertaking includes one or more fixed principles, the register must also include details of the fixed principles, including their fixed periods.  (2) The register must include all variations of access undertakings and access codes.  (3) The register must also include details of all extensions of the period for which an access undertaking or an access code is in operation. Division 6A—Pricing principles for access disputes and access undertakings or codes 44ZZCA  Pricing principles for access disputes and access undertakings or codes   The pricing principles relating to the price of access to a service are:  (a) that regulated access prices should:  (i) be set so as to generate expected revenue for a regulated service or services that is at least sufficient to meet the efficient costs of providing access to the regulated service or services; and  (ii) include a return on investment commensurate with the regulatory and commercial risks involved; and  (b) that the access price structures should:  (i) allow multi‑part pricing and price discrimination when it aids efficiency; and  (ii) not allow a vertically integrated access provider to set terms and conditions that discriminate in favour of its downstream operations, except to the extent that the cost of providing access to other operators is higher; and  (c) that access pricing regimes should provide incentives to reduce costs or otherwise improve productivity. Note: The Commission must have regard to the principles in making a final determination under Division 3 and in deciding whether or not to accept an access undertaking or access code under Division 6. Division 6B—Overlap among determinations, registered contracts, access undertakings and Tribunal review 44ZZCB  Deferring access disputes or access undertakings  (1) If, at a particular time, the Commission is:  (a) arbitrating an access dispute under Division 3 relating to one or more matters of access to a declared service; and  (b) considering whether to accept an access undertaking relating to the service and to one or more of those matters; then the Commission may, by notice in writing, decide to:  (c) defer arbitrating the access dispute, in whole or in part, while it considers the access undertaking; or  (d) defer considering whether to accept the access undertaking, in whole or in part, while it arbitrates the access dispute. Deferral of arbitration of access dispute  (a) the Commission defers arbitrating the access dispute; and  (b) the Commission then accepts the access undertaking and it comes into operation; then the Commission must terminate the arbitration when the undertaking comes into operation, but only to the extent of the matters relating to access to the service that are dealt with in the undertaking. Note: The third party’s access to the service is determined under the access undertaking to the extent of the matters it deals with. If the access dispute deals with other matters, the third party’s access to the service in relation to those other matters is determined under any determination the Commission makes. Deferral of consideration of access undertaking  (3) If:  (a) the Commission defers considering whether to accept the access undertaking; and  (b) the Commission then makes a final determination in relation to the arbitration of the access dispute; then the Commission must resume considering whether to accept the access undertaking.  (4) The Commission must publish, by electronic or other means, any decision it makes under subsection (1) and its reasons for the decision. The Commission must give a copy of the decision (including the reasons for the decision) to each party to the arbitration. Guidelines  (5) In exercising the power conferred by subsection (1), the Commission must have regard to:  (a) the fact that the access undertaking will, if accepted, apply generally to access seekers and a final determination relating to the access dispute will only apply to the parties to the arbitration; and  (b) any guidelines in force under subsection (6). It may have regard to any other matter it considers relevant.  (6) The Commission must, by legislative instrument, determine guidelines for the purposes of subsection (5).  (7) The Commission must take all reasonable steps to ensure that the first set of guidelines under subsection (6) is made within 6 months after the commencement of this subsection.  (8) A notice made under subsection (1) is not a legislative instrument. 44ZZCBA  Deferral of arbitration if review is underway Commission may defer arbitration if declaration not stayed  (a) the Commission is arbitrating an access dispute relating to one or more matters of access to a declared service; and  (b) an application for review of the declaration of the service has been made under subsection 44K(1); and  (c) the Tribunal does not make an order under section 44KA staying the operation of the declaration; then the Commission may, by notice in writing to each party to the arbitration, decide to defer arbitrating the access dispute until the Tribunal has made its decision on the review if it considers it appropriate to do so. Commission must defer arbitration if declaration stayed  (a) the Commission is arbitrating an access dispute relating to one or more matters of access to a declared service; and  (b) an application for review of the declaration of the service has been made under subsection 44K(1); and  (c) the Tribunal makes an order under section 44KA staying the operation of the declaration; then the Commission must, by notice in writing to each party to the arbitration, defer arbitrating the access dispute until the Tribunal has made its decision on the review. Resumption of arbitration if declaration affirmed  (3) If the Commission defers arbitrating the access dispute and the Tribunal affirms the declaration, the Commission must resume arbitrating the dispute. Termination of arbitration if declaration varied or set aside  (4) If the Commission defers arbitrating the access dispute and the Tribunal sets aside or varies the declaration, the Commission must terminate the arbitration.  (a) an arbitration is terminated under subsection (4) or section 44YA; and  (b) an access dispute is notified under section 44S in relation to access to the same declared service; and  (c) the parties to the dispute are the same parties to the terminated arbitration; then the Commission may have regard to any record made in the course of the terminated arbitration if it considers it appropriate to do so. Notices are not legislative instruments  (6) A notice given under subsection (1) or (2) is not a legislative instrument. 44ZZCC  Overlap between determinations and access undertakings   If, at a particular time:  (a) a final determination is in operation in relation to a declared service; and  (b) an access undertaking is in operation in relation to the service; the third party’s access to the service at that time is to be determined under the undertaking to the extent that it deals with a matter or matters relating to access to the service that are not dealt with in the determination. 44ZZCD  Overlap between registered contracts and access undertakings   If, at a particular time:  (a) a contract is registered under Division 4 in relation to a declared service; and  (b) an access undertaking is in operation in relation to the service; the third party’s access to the service at that time is to be determined under the undertaking to the extent that it deals with a matter or matters relating to access to the service that are not dealt with in the contract. Division 7—Enforcement and remedies 44ZZD  Enforcement of determinations  (1) If the Federal Court is satisfied, on the application of a party to a determination, that another party to the determination has engaged, is engaging, or is proposing to engage in conduct that constitutes a contravention of the determination, the Court may make all or any of the following orders:  (a) an order granting an injunction on such terms as the Court thinks appropriate:  (i) restraining the other party from engaging in the conduct; or  (ii) if the conduct involves refusing or failing to do something—requiring the other party to do that thing;  (b) an order directing the other party to compensate the applicant for loss or damage suffered as a result of the contravention;  (2) If the Federal Court has power under subsection (1) to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do anything, the Court may make any other orders (including granting an injunction) that it thinks appropriate against any other person who was involved in the contravention concerned.  (3) A reference in this section to a person involved in the contravention is a reference to a person who has:  (a) aided, abetted, counselled or procured the contravention; or  (b) induced the contravention, whether through threats or promises or otherwise; or  (c) been in any way (directly or indirectly) knowingly concerned in or a party to the contravention; or  (d) conspired with others to effect the contravention. 44ZZE  Enforcement of prohibition on hindering access  (1) If the Federal Court is satisfied, on the application of any person, that another person (the obstructor) has engaged, is engaging, or is proposing to engage in conduct constituting a contravention of section 44ZZ, the Court may make all or any of the following orders:  (a) an order granting an injunction on such terms as the Court thinks appropriate:  (i) restraining the obstructor from engaging in the conduct; or  (ii) if the conduct involves refusing or failing to do something—requiring the obstructor to do that thing;  (b) an order directing the obstructor to compensate a person who has suffered loss or damage as a result of the contravention;  (2) If the Federal Court has power under subsection (1) to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do anything, the Court may make any other orders (including granting an injunction) that it thinks appropriate against any other person who was involved in the contravention concerned.  (3) The grounds on which the Court may decide not to make an order under this section include the ground that Divisions 2 and 3 provide a more appropriate way of dealing with the issue of the applicant’s access to the service concerned.  (4) A reference in this section to a person involved in the contravention is a reference to a person who has:  (a) aided, abetted, counselled or procured the contravention; or  (b) induced the contravention, whether through threats or promises or otherwise; or  (c) been in any way (directly or indirectly) knowingly concerned in or a party to the contravention; or  (d) conspired with others to effect the contravention. 44ZZF  Consent injunctions   On an application for an injunction under section 44ZZD or 44ZZE, the Federal Court may grant an injunction by consent of all of the parties to the proceedings, whether or not the Court is satisfied that the section applies. 44ZZG  Interim injunctions  (1) The Federal Court may grant an interim injunction pending determination of an application under section 44ZZD or 44ZZE.  (2) If the Commission makes an application under section 44ZZE to the Federal Court for an injunction, the Court must not require the Commission or any other person, as a condition of granting an interim injunction, to give any undertakings as to damages. 44ZZH  Factors relevant to granting a restraining injunction   The power of the Federal Court to grant an injunction under section 44ZZD or 44ZZE restraining a person from engaging in conduct may be exercised whether or not:  (a) it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; or  (b) the person has previously engaged in conduct of that kind; or  (c) there is an imminent danger of substantial damage to any person if the first‑mentioned person engages in conduct of that kind. 44ZZI  Factors relevant to granting a mandatory injunction   The power of the Federal Court to grant an injunction under section 44ZZD or 44ZZE requiring a person to do a thing may be exercised whether or not:  (a) it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that thing; or  (b) the person has previously refused or failed to do that thing; or  (c) there is an imminent danger of substantial damage to any person if the first‑mentioned person refuses or fails to do that thing. 44ZZJ  Enforcement of access undertakings  (1) If the Commission thinks that the provider of an access undertaking in operation under Division 6 has breached any of its terms, the Commission may apply to the Federal Court for an order under subsection (2).  (2) If the Federal Court is satisfied that the provider has breached a term of the undertaking, the Court may make all or any of the following orders:  (a) an order directing the provider to comply with that term of the undertaking;  (b) an order directing the provider to compensate any other person who has suffered loss or damage as a result of the breach; 44ZZK  Discharge or variation of injunction or other order   The Federal Court may discharge or vary an injunction or order granted under this Division. Division 8—Miscellaneous 44ZZL  Register of determinations   The Commission must maintain a public register that specifies the following information for each determination:  (a) the names of the parties to the determination;  (b) the service to which the determination relates;  (c) the date on which the determination was made. 44ZZM  Commonwealth consent to conferral of functions etc. on the Commission or Tribunal by State or Territory laws  (1) Subject to section 44ZZMAA, a State or Territory access regime law may confer functions or powers, or impose duties, on the Commission or Tribunal. Note: Section 44ZZMB sets out when such a law imposes a duty on the Commission or Tribunal.  (2) Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by a law of a State or Territory to the extent to which:  (a) the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the Commission or Tribunal; or  (3) The Commission or Tribunal cannot perform a duty or function, or exercise a power, under a State or Territory access regime law unless the conferral of the function or power, or the imposition of the duty, is in accordance with an agreement between the Commonwealth and the State or Territory concerned. 44ZZMAA  No merits review by Tribunal of decisions under energy laws  (1) This section applies if a State/Territory energy law or the Australian Energy Market Act 2004 purports to confer a function or power, or to impose a duty, in relation to a decision made under:  (a) a State/Territory energy law; or  (b) a uniform energy law applied as a law of the Commonwealth under the Australian Energy Market Act 2004. However, this section does not apply in relation to a decision relating to the disclosure of confidential or protected information under such a law.  (2) The purported conferral or imposition has no effect to the extent to which it would require or permit merits review (however described) of the decision by the Tribunal.  (3) This section applies despite anything in any law of the Commonwealth, a State or a Territory. 44ZZMA  How duty is imposed  (1) This section applies if a State or Territory access regime law purports to impose a duty on the Commission or Tribunal. Note 1: Section 44ZZMB sets out when such a law imposes a duty on the Commission or Tribunal. Note 2: Section 320 of the South Australian Energy Retail Legislation, as it applies as a law of a State or Territory, deals with the case where a duty purportedly imposed on a Commonwealth body under that applied law cannot be imposed by the State or Territory or the Commonwealth due to constitutional doctrines restricting such duties.  (2) The duty is taken not to be imposed by this Act (or any other law of the Commonwealth) to the extent to which:  (b) imposing the duty by the law of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the Commission or Tribunal. Note: If this subsection applies, the duty will be taken to be imposed by force of the law of the State or Territory (the Commonwealth having consented under section 44ZZM to the imposition of the duty by that law).  (3) If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law of the State or Territory), the duty is taken to be imposed by this Act to the extent necessary to ensure that validity.  (4) If, because of subsection (3), this Act is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Act.  (5) The duty is taken to be imposed by this Act in accordance with subsection (3) only to the extent to which imposing the duty:  (b) is consistent with the constitutional doctrines restricting the duties that may be imposed on the Commission or Tribunal.  (6) Subsections (1) to (5) do not limit section 44ZZM. 44ZZMB  When a law of a State or Territory imposes a duty   For the purposes of sections 44ZZM and 44ZZMA, a State or Territory access regime law imposes a duty on the Commission or Tribunal if:  (a) the law confers a function or power on the Commission or Tribunal; and  (b) the circumstances in which the function or power is conferred give rise to an obligation on the Commission or Tribunal to perform the function or to exercise the power. 44ZZN  Compensation for acquisition of property  (a) a determination would result in an acquisition of property; and  (b) the determination would not be valid, apart from this section, because a particular person has not been sufficiently compensated; the Commonwealth must pay that person:  (c) a reasonable amount of compensation agreed on between the person and the Commonwealth; or  (d) failing agreement—a reasonable amount of compensation determined by a court of competent jurisdiction.  (2) In assessing compensation payable in a proceeding begun under this section, the following must be taken into account if they arise out of the same event or transaction:  (a) any damages or compensation recovered, or other remedy, in a proceeding begun otherwise than under this section;  (b) compensation awarded under a determination.  (3) In this section, acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution. 44ZZNA  Operation of Parts IV, IVA and VII not affected by this Part   This Part does not affect the operation of Parts IV, IVA and VII. 44ZZO  Conduct by directors, servants or agents  (1) If, in a proceeding under this Part in respect of conduct engaged in by a body corporate, it is necessary to establish the state of mind of the body corporate in relation to particular conduct, it is sufficient to show:  (a) that the conduct was engaged in by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority; and  (b) that the director, servant or agent had the state of mind.  (2) Any conduct engaged in on behalf of a body corporate:  (a) by a director, servant or agent of the body corporate within the scope of the person’s actual or apparent authority; or  (b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, servant or agent of the body corporate, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, servant or agent; is taken for the purposes of this Part to have been engaged in also by the body corporate, unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.  (3) If, in a proceeding under this Part in respect of conduct engaged in by an individual, it is necessary to establish the state of mind of the individual, it is sufficient to show:  (a) that the conduct was engaged in by a servant or agent of the individual within the scope of his or her actual or apparent authority; and  (b) that the servant or agent had the relevant state of mind.  (4) Conduct engaged in on behalf of an individual:  (a) by a servant or agent of the individual within the scope of the actual or apparent authority of the servant or agent; or  (b) by any other person at the direction or with the consent or agreement (whether express or implied) of a servant or agent of the individual, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the servant or agent; is taken, for the purposes of this Part, to have been engaged in also by that individual, unless that individual establishes that he or she took reasonable precautions and exercised due diligence to avoid the conduct.  (a) an individual is convicted of an offence; and  (b) the individual would not have been convicted of the offence if subsections (3) and (4) had not been enacted; the individual is not liable to be punished by imprisonment for that offence.  (6) A reference in subsection (1) or (3) to the state of mind of a person includes a reference to:  (a) the knowledge, intention, opinion, belief or purpose of the person; and  (b) the person’s reasons for the intention, opinion, belief or purpose.  (7) A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory. 44ZZOAAA  Information to be given to Tribunal Tribunal to notify decision maker  (1) If an application for review of a decision (however described) is made under this Part, the Tribunal must notify the decision maker of the application.  (2) If the application is made under section 44K, 44L, 44LJ, 44LK or 44O, the Tribunal must also notify the Council of the application. Decision maker to give material to Tribunal  (3) The decision maker must give the following information to the Tribunal within the period specified by the Tribunal:  (a) if the decision is taken to have been made because of the operation of subsection 44H(9), 44J(7), 44LG(6), 44LI(7), 44N(4), 44NB(3A) or 44NBC(5)—all of the information that the Council took into account in connection with making the recommendation to which the decision under review relates;  (b) if the decision is taken to have been made because of the operation of subsection 44PD(6), 44XA(6) or 44ZZBC(6)—any information or documents given to the Commission in connection with the decision to which the review relates, other than information or documents in relation to which the Commission could not have regard because of subparagraph 44PE(6)(c)(iii) or 44ZZBD(6)(c)(iii);  (c) otherwise—all of the information that the decision maker took into account in connection with the making of the decision to which the review relates. Tribunal may request further information  (4) The Tribunal may request such information that the Tribunal considers reasonable and appropriate for the purposes of making its decision on a review under this Part.  (5) A request under subsection (4) must be made by written notice given to a person specifying the information requested and the period within which the information must be given to the Tribunal.  (6) The Tribunal must:  (ii) if the application is made under section 44K, 44L, 44LJ, 44LK or 44O—the Council; and  (iii) if the application is made under section 44PG, 44PH, 44ZP, 44ZX or 44ZZBF—the Commission; and  (7) Without limiting the information that may be given in accordance with the notice, information may include information that could not have reasonably been made available to the decision maker at the time the decision under review was made. Certain material before the Tribunal not to be disclosed  (8) The Tribunal may, on the application of a person, prohibit or restrict the disclosure of the contents of a document or other information given to the Tribunal under this section if the Tribunal is satisfied that it is desirable to do so because of the confidential nature of the document or other information, or for any other reason.  (9) In this section: decision maker, in relation to an application for review under this Part, means:  (a) if the application was made under section 44K, 44L, 44LJ or 44LK—the designated Minister; or  (b) if the application was made under section 44O—the Commonwealth Minister; or  (c) if the application was made under section 44PG, 44PH, 44ZP, 44ZX, or 44ZZBF—the Commission. 44ZZOAA  Tribunal only to consider particular material   For the purposes of a review under this Part, the Tribunal:  (a) subject to paragraph (b), must have regard to:  (i) information that was given to the Tribunal under subsection 44ZZOAAA(3); and  (ii) any information given to the Tribunal in accordance with a notice given under subsection 44ZZOAAA(5); and  (iii) any thing done as mentioned in subsection 44K(6), 44L(5), 44LJ(5), 44LK(5), 44O(5), 44PG(5), 44PH(5), 44ZP(5), 44ZX(5) or 44ZZBF(5); and  (iv) any information or report given to the Tribunal in relation to the review under subsection 44K(6A), 44L(5A), 44LJ(6), 44LK(6), 44O(5A), 44PG(5A), 44PH(5A), 44ZP(5A), 44ZX(5A) or 44ZZBF(5A) within the specified period; and  (b) may disregard:  (i) any information given to the Tribunal in response to a notice given under subsection 44ZZOAAA(5) after the period specified in the notice has ended; and  (ii) any information or report of the kind specified in a notice under subsection 44K(6A), 44L(5A), 44LJ(6), 44LK(6), 44O(5A), 44PG(5A), 44PH(5A), 44ZP(5A), 44ZX(5A) or 44ZZBF(5A) that is given to the Tribunal after the specified period has ended. 44ZZOA  Time limit for Tribunal decisions  (1) The Tribunal must make a decision on a review under this Part within the consideration period.  (2) The consideration period is a period of 180 days (the expected period), starting at the start of the day the application for review is received, unless the consideration period is extended under subsection (7).  (3) In working out the expected period in relation to an application for review, in a situation referred to in column 1 of an item of the following table, disregard any day in a period:   - 1 An agreement is made in relation to the application under subsection (5) The first day of the period specified in the agreement The last day of the period specified in the agreement - 2 A notice is given under subsection 44ZZOAAA(5) requesting information in relation to the decision to which the application relates The day on which the notice is given The last day of the period specified in the notice for the giving of the information - 3 A notice is given under subsection 44K(6A), 44L(5A), 44LJ(6), 44LK(6), 44O(5A), 44PG(5A), 44PH(5A), 44ZP(5A), 44ZX(5A) or 44ZZBF(5A) requiring information or a report to be given in relation to the review The day on which the notice is given The last day of the period specified in the notice for the giving of the information or the report  (4) Despite subsection (3), do not disregard any day more than once.  (5) The following may agree in writing that a specified period is to be disregarded in working out the expected period:  (a) the Tribunal;  (b) the person who applied for review;  (c) if the application is made under section 44K, 44L, 44LJ, 44LK or 44O—the Council;  (d) if the application is made under section 44PG, 44PH, 44ZP, 44ZX or 44ZZBF—the Commission;  (e) any other person who has been made a party to the proceedings for review by the Tribunal.  (6) The Tribunal must publish, by electronic or other means, the agreement. Extension of time for making decision  (7) If the Tribunal is unable to make a decision on an application for review within the consideration period (whether it is the expected period or the consideration period as previously extended under this subsection), it must, by notice in writing to the designated Minister, extend the consideration period by a specified period.  (a) specify when the Tribunal must now make its decision on the application for review; and  (b) include a statement explaining why the Tribunal has been unable to make a decision on the review within the consideration period.  (9) The Tribunal must give a copy of the notice to:  (a) the person who applied for review; and  (b) if the application for review is made under section 44K, 44L, 44LJ, 44LK or 44O—the Council; and  (c) if the application for review is made under section 44PG, 44PH, 44ZP, 44ZX or 44ZZBF—the Commission; and  (d) any other person who has been made a party to the proceedings for review by the Tribunal.  (10) If the Tribunal extends the consideration period under subsection (7), it must publish a notice in a manner that results in the notice being accessible to the public and reasonably prominent:  (b) specifying the day by which it must now make a decision on the application for review.  (11) Failure by the Tribunal to comply with a time limit set in this section does not affect the validity of a decision made by the Tribunal under this Part. 44ZZP  Regulations about review by the Tribunal  (1) The regulations may make provision about the following matters in relation to the functions of the Tribunal under this Part:  (a) the constitution of the Tribunal;  (b) the arrangement of the business of the Tribunal;  (c) the disclosure of interests by members of the Tribunal;  (d) determining questions before the Tribunal and questions that arise during a review;  (e) procedure and evidence, including the appointment of persons to assist the Tribunal by giving evidence (whether personally or by means of a written report).  (2) Regulations made for the purposes of subsection (1) do not apply in relation to the functions of the Tribunal under a State/Territory energy law or a designated Commonwealth energy law. Note: See section 44ZZR. 44ZZQ  Regulations about fees for inspection etc. of registers   The regulations may make provision about the inspection of registers maintained under this Part (including provision about fees). 44ZZR  Procedure of the Tribunal when performing functions under a State/Territory energy law or a designated Commonwealth energy law  (1) Sections 103, 105, 106, 107, 108 and 110 of this Act apply to the Tribunal when performing functions under a State/Territory energy law or a designated Commonwealth energy law.  (2) The regulations may make provision about the following matters in relation to the functions of the Tribunal under a State/Territory energy law or a designated Commonwealth energy law:  (a) the constitution of the Tribunal;  (b) the arrangement of the business of the Tribunal;  (c) the disclosure of interests by members of the Tribunal;  (d) determining questions before the Tribunal and questions that arise during a review;  (e) procedure and evidence, including the appointment of persons to assist the Tribunal by giving evidence (whether personally or by means of a written report);  (f) the fees and expenses of witnesses in proceedings before the Tribunal.  (3) Subsection (1), and regulations made for the purposes of subsection (2), have no effect to the extent (if any) to which they are inconsistent with the State/Territory energy law, or the designated Commonwealth energy law, concerned. Chapter 3—Restrictive trade practices Part IV—Restrictive trade practices Division 1—Cartel conduct Subdivision A—Introduction 45AA  Simplified outline   The following is a simplified outline of this Division: • This Division sets out parallel offences and civil penalty provisions relating to cartel conduct. • A corporation must not make, or give effect to, a contract, arrangement or understanding that contains a cartel provision. • A cartel provision is a provision relating to:  (a) price‑fixing; or  (b) restricting outputs in the production and supply chain; or  (c) allocating customers, suppliers or territories; or  (d) bid‑rigging;  by parties that are, or would otherwise be, in competition with each other. 45AB  Definitions   In this Division: benefit includes any advantage and is not limited to property. bid includes:  (a) tender; and  (b) the taking, by a potential bidder or tenderer, of a preliminary step in a bidding or tendering process. evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. likely, in relation to any of the following:  (a) a supply of goods or services;  (b) an acquisition of goods or services;  (c) the production of goods;  (d) the capacity to supply services; includes a possibility that is not remote. obtaining includes:  (a) obtaining for another person; and  (b) inducing a third person to do something that results in another person obtaining. party has a meaning affected by section 45AC. production includes manufacture, processing, treatment, assembly, disassembly, renovation, restoration, growing, raising, mining, extraction, harvesting, fishing, capturing and gathering. 45AC  Extended meaning of party   For the purposes of this Division, if a body corporate is a party to a contract, arrangement or understanding (otherwise than because of this section), each body corporate related to that body corporate is taken to be a party to that contract, arrangement or understanding. 45AD  Cartel provisions  (1) For the purposes of this Act, a provision of a contract, arrangement or understanding is a cartel provision if:  (a) either of the following conditions is satisfied in relation to the provision:  (i) the purpose/effect condition set out in subsection (2);  (ii) the purpose condition set out in subsection (3); and  (b) the competition condition set out in subsection (4) is satisfied in relation to the provision. Purpose/effect condition  (2) The purpose/effect condition is satisfied if the provision has the purpose, or has or is likely to have the effect, of directly or indirectly:  (a) fixing, controlling or maintaining; or  (b) providing for the fixing, controlling or maintaining of; the price for, or a discount, allowance, rebate or credit in relation to:  (c) goods or services supplied, or likely to be supplied, by any or all of the parties to the contract, arrangement or understanding; or  (d) goods or services acquired, or likely to be acquired, by any or all of the parties to the contract, arrangement or understanding; or  (e) goods or services re‑supplied, or likely to be re‑supplied, by persons or classes of persons to whom those goods or services were supplied by any or all of the parties to the contract, arrangement or understanding; or  (f) goods or services likely to be re‑supplied by persons or classes of persons to whom those goods or services are likely to be supplied by any or all of the parties to the contract, arrangement or understanding. Note 1: The purpose/effect condition can be satisfied when a provision is considered with related provisions—see subsection (8). Note 2: Party has an extended meaning—see section 45AC. Purpose condition  (3) The purpose condition is satisfied if the provision has the purpose of directly or indirectly:  (a) preventing, restricting or limiting:  (i) the production, or likely production, of goods by any or all of the parties to the contract, arrangement or understanding; or  (ii) the capacity, or likely capacity, of any or all of the parties to the contract, arrangement or understanding to supply services; or  (iii) the supply, or likely supply, of goods or services to persons or classes of persons by any or all of the parties to the contract, arrangement or understanding; or  (iv) the acquisition, or likely acquisition, of goods or services from persons or classes of persons by any or all of the parties to the contract, arrangement or understanding; or  (b) allocating between any or all of the parties to the contract, arrangement or understanding:  (i) the persons or classes of persons who have acquired, or who are likely to acquire, goods or services from any or all of the parties to the contract, arrangement or understanding; or  (ii) the persons or classes of persons who have supplied, or who are likely to supply, goods or services to any or all of the parties to the contract, arrangement or understanding; or  (iii) the geographical areas in which goods or services are supplied, or likely to be supplied, by any or all of the parties to the contract, arrangement or understanding; or  (iv) the geographical areas in which goods or services are acquired, or likely to be acquired, by any or all of the parties to the contract, arrangement or understanding; or  (c) ensuring that in the event of a request for bids in relation to the supply or acquisition of goods or services:  (i) one or more parties to the contract, arrangement or understanding bid, but one or more other parties do not; or  (ii) 2 or more parties to the contract, arrangement or understanding bid, but at least 2 of them do so on the basis that one of those bids is more likely to be successful than the others; or  (iii) 2 or more parties to the contract, arrangement or understanding bid, but not all of those parties proceed with their bids until the suspension or finalisation of the request for bids process; or  (iv) 2 or more parties to the contract, arrangement or understanding bid and proceed with their bids, but at least 2 of them proceed with their bids on the basis that one of those bids is more likely to be successful than the others; or  (v) 2 or more parties to the contract, arrangement or understanding bid, but a material component of at least one of those bids is worked out in accordance with the contract, arrangement or understanding. Note 1: For example, subparagraph (3)(a)(iii) will not apply in relation to a roster for the supply of after‑hours medical services if the roster does not prevent, restrict or limit the supply of services. Note 2: The purpose condition can be satisfied when a provision is considered with related provisions—see subsection (9). Note 3: Party has an extended meaning—see section 45AC. Competition condition  (4) The competition condition is satisfied if at least 2 of the parties to the contract, arrangement or understanding:  (a) are or are likely to be; or  (b) but for any contract, arrangement or understanding, would be or would be likely to be; in competition with each other in relation to:  (c) if paragraph (2)(c) or (3)(b) applies in relation to a supply, or likely supply, of goods or services—the supply of those goods or services in trade or commerce; or  (d) if paragraph (2)(d) or (3)(b) applies in relation to an acquisition, or likely acquisition, of goods or services—the acquisition of those goods or services in trade or commerce; or  (e) if paragraph (2)(e) or (f) applies in relation to a re‑supply, or likely re‑supply, of goods or services—the supply of those goods or services in trade or commerce to that re‑supplier; or  (f) if subparagraph (3)(a)(i) applies in relation to preventing, restricting or limiting the production, or likely production, of goods—the production of those goods in trade or commerce; or  (g) if subparagraph (3)(a)(ii) applies in relation to preventing, restricting or limiting the capacity, or likely capacity, to supply services—the supply of those services in trade or commerce; or  (h) if subparagraph (3)(a)(iii) applies in relation to preventing, restricting or limiting the supply, or likely supply, of goods or services—the supply of those goods or services in trade or commerce; or  (i) if subparagraph (3)(a)(iv) applies in relation to preventing, restricting or limiting the acquisition, or likely acquisition, of goods or services—the acquisition of those goods or services in trade or commerce; or  (j) if paragraph (3)(c) applies in relation to a supply of goods or services—the supply of those goods or services in trade or commerce; or  (k) if paragraph (3)(c) applies in relation to an acquisition of goods or services—the acquisition of those goods or services in trade or commerce. Note 1: Party has an extended meaning—see section 45AC. Note 2: Trade or commerce is defined in section 4 to mean trade or commerce within Australia or between Australia and places outside Australia. Immaterial whether identities of persons can be ascertained  (5) It is immaterial whether the identities of the persons referred to in paragraph (2)(e) or (f) or subparagraph (3)(a)(iii) or (iv) or (b)(i) or (ii) can be ascertained. Recommending prices etc.  (6) For the purposes of this Division, a provision of a contract, arrangement or understanding is not taken:  (a) to have the purpose mentioned in subsection (2); or  (b) to have, or be likely to have, the effect mentioned in subsection (2); by reason only that it recommends, or provides for the recommending of, a price, discount, allowance, rebate or credit. Immaterial whether particular circumstances or particular conditions  (7) It is immaterial whether:  (a) for the purposes of subsection (2), subparagraphs (3)(a)(iii) and (iv) and paragraphs (3)(b) and (c)—a supply or acquisition happens, or a likely supply or likely acquisition is to happen, in particular circumstances or on particular conditions; and  (b) for the purposes of subparagraph (3)(a)(i)—the production happens, or the likely production is to happen, in particular circumstances or on particular conditions; and  (c) for the purposes of subparagraph (3)(a)(ii)—the capacity exists, or the likely capacity is to exist, in particular circumstances or on particular conditions. Considering related provisions—purpose/effect condition  (8) For the purposes of this Division, a provision of a contract, arrangement or understanding is taken to have the purpose, or to have or be likely to have the effect, mentioned in subsection (2) if the provision, when considered together with any or all of the following provisions:  (a) the other provisions of the contract, arrangement or understanding;  (b) the provisions of another contract, arrangement or understanding, if the parties to that other contract, arrangement or understanding consist of or include at least one of the parties to the first‑mentioned contract, arrangement or understanding; has that purpose, or has or is likely to have that effect. Considering related provisions—purpose condition  (9) For the purposes of this Division, a provision of a contract, arrangement or understanding is taken to have the purpose mentioned in a paragraph of subsection (3) if the provision, when considered together with any or all of the following provisions:  (a) the other provisions of the contract, arrangement or understanding;  (b) the provisions of another contract, arrangement or understanding, if the parties to that other contract, arrangement or understanding consist of or include at least one of the parties to the first‑mentioned contract, arrangement or understanding; has that purpose. Purpose/effect of a provision  (10) For the purposes of this Division, a provision of a contract, arrangement or understanding is not to be taken not to have the purpose, or not to have or to be likely to have the effect, mentioned in subsection (2) by reason only of:  (a) the form of the provision; or  (b) the form of the contract, arrangement or understanding; or  (c) any description given to the provision, or to the contract, arrangement or understanding, by the parties. Purpose of a provision  (11) For the purposes of this Division, a provision of a contract, arrangement or understanding is not to be taken not to have the purpose mentioned in a paragraph of subsection (3) by reason only of:  (a) the form of the provision; or  (b) the form of the contract, arrangement or understanding; or  (c) any description given to the provision, or to the contract, arrangement or understanding, by the parties. 45AE  Meaning of expressions in other provisions of this Act   In determining the meaning of an expression used in a provision of this Act (other than this Division, subsection 6(2C), paragraph 76(1B)(b) or subsection 93AB(1A)), this Division is to be disregarded. Subdivision B—Offences etc. 45AF  Making a contract etc. containing a cartel provision  (1) A corporation commits an offence if:  (a) the corporation makes a contract or arrangement, or arrives at an understanding; and  (b) the contract, arrangement or understanding contains a cartel provision.  (2) The fault element for paragraph (1)(b) is knowledge or belief. Penalty  (3) An offence against subsection (1) is punishable on conviction by a fine not exceeding the greater of the following:  (a) $50,000,000;  (b) if the court can determine the total value of the benefits that:  (i) have been obtained by one or more persons; and  (ii) are reasonably attributable to the commission of the offence;   3 times that total value;  (c) if the court cannot determine the total value of those benefits—30% of the corporation’s adjusted turnover during the breach turnover period for the offence. Indictable offence  (4) An offence against subsection (1) is an indictable offence. 45AG  Giving effect to a cartel provision  (1) A corporation commits an offence if:  (a) a contract, arrangement or understanding contains a cartel provision; and  (b) the corporation gives effect to the cartel provision.  (2) The fault element for paragraph (1)(a) is knowledge or belief. Penalty  (3) An offence against subsection (1) is punishable on conviction by a fine not exceeding the greater of the following:  (a) $50,000,000;  (b) if the court can determine the total value of the benefits that:  (i) have been obtained by one or more persons; and  (ii) are reasonably attributable to the commission of the offence;   3 times that total value;  (c) if the court cannot determine the total value of those benefits—30% of the corporation’s adjusted turnover during the breach turnover period for the offence. Pre‑commencement contracts etc.  (4) Paragraph (1)(a) applies to contracts or arrangements made, or understandings arrived at, before, at or after the commencement of this section. Indictable offence  (5) An offence against subsection (1) is an indictable offence. 45AH  Determining guilt  (1) A corporation may be found guilty of an offence against section 45AF or 45AG even if:  (a) each other party to the contract, arrangement or understanding is a person who is not criminally responsible; or  (b) subject to subsection (2), all other parties to the contract, arrangement or understanding have been acquitted of the offence. Note: Party has an extended meaning—see section 45AC.  (2) A corporation cannot be found guilty of an offence against section 45AF or 45AG if:  (a) all other parties to the contract, arrangement or understanding have been acquitted of such an offence; and  (b) a finding of guilt would be inconsistent with their acquittal. 45AI  Court may make related civil orders   If a prosecution against a person for an offence against section 45AF or 45AG is being, or has been, heard by a court, the court may:  (a) grant an injunction under section 80 against the person in relation to:  (i) the conduct that constitutes, or is alleged to constitute, the offence; or  (ii) other conduct of that kind; or  (b) make an order under section 86C, 86D, 86E or 87 in relation to the offence. 45AIA  Section 4AB of the Crimes Act does not apply   Section 4AB of the Crimes Act 1914 does not apply to any provision of this Subdivision. Subdivision C—Civil penalty provisions 45AJ  Making a contract etc. containing a cartel provision   A corporation contravenes this section if:  (a) the corporation makes a contract or arrangement, or arrives at an understanding; and  (b) the contract, arrangement or understanding contains a cartel provision. 45AK  Giving effect to a cartel provision  (1) A corporation contravenes this section if:  (a) a contract, arrangement or understanding contains a cartel provision; and  (b) the corporation gives effect to the cartel provision.  (2) Paragraph (1)(a) applies to contracts or arrangements made, or understandings arrived at, before, at or after the commencement of this section. Subdivision D—Exceptions 45AL  Conduct notified  (1) Sections 45AF, 45AG, 45AJ and 45AK do not apply to a corporation in relation to a contract, arrangement or understanding containing a cartel provision, in so far as:  (a) the cartel provision:  (i) has the purpose, or has or is likely to have the effect, mentioned in subsection 45AD(2); or  (ii) has the purpose mentioned in a paragraph of subsection 45AD(3) other than paragraph (c); and  (b) the corporation has given the Commission a collective bargaining notice under subsection 93AB(1A) setting out particulars of the contract, arrangement or understanding; and  (c) the notice is in force under section 93AD. Note: A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal Code and subsection (2) of this section).  (2) A person who wishes to rely on subsection (1) in relation to a contravention of section 45AJ or 45AK bears an evidential burden in relation to that matter. 45AM  Cartel provision subject to grant of authorisation  (1) Sections 45AF and 45AJ do not apply in relation to the making of a contract that contains a cartel provision if:  (a) the contract is subject to a condition that the provision will not come into force unless and until the corporation is granted an authorisation to give effect to the provision; and  (b) the corporation applies for the grant of such an authorisation within 14 days after the contract is made. Note: A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal Code and subsection (2) of this section).  (2) A person who wishes to rely on subsection (1) in relation to a contravention of section 45AJ bears an evidential burden in relation to that matter. 45AMA  Acquisition subject to notification  (1) Sections 45AF and 45AJ do not apply in relation to the making of a contract that contains a cartel provision, in so far as the cartel provision provides for an acquisition if the contract is subject to a condition that the provision will not come into force unless and until the acquisition becomes a notified acquisition. Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code and subsection (2) of this section).  (2) A person who wishes to rely on subsection (1) in relation to a contravention of section 45AJ bears an evidential burden in relation to that matter. 45AN  Contracts, arrangements or understandings between related bodies corporate  (1) Sections 45AF, 45AG, 45AJ and 45AK do not apply in relation to a contract, arrangement or understanding if the only parties to the contract, arrangement or understanding are bodies corporate that are related to each other. Note: A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal Code and subsection (2) of this section).  (2) A person who wishes to rely on subsection (1) in relation to a contravention of section 45AJ or 45AK bears an evidential burden in relation to that matter. 45AO  Joint ventures—prosecution   Sections 45AF and 45AG do not apply in relation to a contract, arrangement or understanding containing a cartel provision if the defendant proves that:  (a) the cartel provision is:  (i) for the purposes of a joint venture; and  (ii) reasonably necessary for undertaking the joint venture; and  (b) the joint venture is for any one or more of the following:  (i) production of goods;  (ii) supply of goods or services;  (iii) acquisition of goods or services; and  (c) the joint venture is not carried on for the purpose of substantially lessening competition; and  (d) in a case where subparagraph 4J(a)(i) applies to the joint venture—the joint venture is carried on jointly by the parties to the contract, arrangement or understanding; and  (e) in a case where subparagraph 4J(a)(ii) applies to the joint venture—the joint venture is carried on by a body corporate formed by the parties to the contract, arrangement or understanding for the purpose of enabling those parties to carry on the activity mentioned in paragraph (b) jointly by means of:  (i) their joint control; or  (ii) their ownership of shares in the capital;   of that body corporate. Note 1: A defendant bears a legal burden in relation to the matter in this section (see section 13.4 of the Criminal Code). Note 2: For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services. 45AP  Joint ventures—civil penalty proceedings  (1) Sections 45AJ and 45AK do not apply in relation to a contract, arrangement or understanding containing a cartel provision if the defendant proves that:  (a) the cartel provision is:  (i) for the purposes of a joint venture; and  (ii) reasonably necessary for undertaking the joint venture; and  (b) the joint venture is for any one or more of the following:  (i) production of goods;  (ii) supply of goods or services;  (iii) acquisition of goods or services; and  (c) the joint venture is not carried on for the purpose of substantially lessening competition; and  (d) in a case where subparagraph 4J(a)(i) applies to the joint venture—the joint venture is carried on jointly by the parties to the contract, arrangement or understanding; and  (e) in a case where subparagraph 4J(a)(ii) applies to the joint venture—the joint venture is carried on by a body corporate formed by the parties to the contract, arrangement or understanding for the purpose of enabling those parties to carry on the activity mentioned in paragraph (b) jointly by means of:  (i) their joint control; or  (ii) their ownership of shares in the capital;   of that body corporate. Note: For example, if a joint venture formed for the purpose of research and development provides the results of its research and development to participants in the joint venture, it may be a joint venture for the supply of services.  (2) A defendant who wishes to rely on subsection (1) must prove that matter on the balance of probabilities. 45AQ  Resale price maintenance  (1) Sections 45AF, 45AG, 45AJ and 45AK do not apply in relation to a contract, arrangement or understanding containing a cartel provision, in so far as the cartel provision relates to:  (a) conduct that contravenes section 48; or  (b) conduct that would contravene section 48 but for the operation of section 88; or  (c) conduct that would contravene section 48 if this Act defined the acts constituting the practice of resale price maintenance by reference to the maximum price at which goods or services are to be sold or supplied or are to be advertised, displayed or offered for sale or supply. Note: A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal Code and subsection (2) of this section).  (2) A person who wishes to rely on subsection (1) in relation to a contravention of section 45AJ or 45AK bears an evidential burden in relation to that matter. 45AR  Exclusive dealing  (1) Sections 45AF and 45AJ do not apply in relation to the making of a contract, arrangement or understanding that contains a cartel provision, in so far as giving effect to the cartel provision would, or would but for the operation of subsection 47(10) or section 88 or 93, constitute a contravention of section 47. Note: A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal Code and subsection (3) of this section).  (2) Sections 45AG and 45AK do not apply in relation to the giving effect to a cartel provision by way of:  (a) engaging in conduct that contravenes, or would but for the operation of subsection 47(10) or section 88 or 93 contravene, section 47; or  (b) doing an act by reason of a breach or threatened breach of a condition referred to in subsection 47(2), (4), (6) or (8), being an act done by a person at a time when:  (i) an authorisation under section 88 is in force in relation to conduct engaged in by that person on that condition; or  (ii) by reason of subsection 93(7), conduct engaged in by that person on that condition is not to be taken to have the effect of substantially lessening competition within the meaning of section 47; or  (iii) a notice under subsection 93(1) is in force in relation to conduct engaged in by that person on that condition. Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code and subsection (3) of this section).  (3) A person who wishes to rely on subsection (1) or (2) in relation to a contravention of section 45AJ or 45AK bears an evidential burden in relation to that matter. 45AS  Dual listed company arrangement  (1) Sections 45AF and 45AJ do not apply in relation to the making of a contract, arrangement or understanding that contains a cartel provision, in so far as:  (a) the contract, arrangement or understanding is a dual listed company arrangement; and  (b) the making of the contract, arrangement or understanding would, or would apart from section 88, contravene section 49. Note: A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal Code and subsection (3) of this section).  (2) Sections 45AG and 45AK do not apply in relation to the giving effect to a cartel provision, in so far as:  (a) the cartel provision is a provision of a dual listed company arrangement; and  (b) the giving effect to the cartel provision would, or would apart from section 88, contravene section 49. Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code and subsection (3) of this section).  (3) A person who wishes to rely on subsection (1) or (2) in relation to a contravention of section 45AJ or 45AK bears an evidential burden in relation to that matter. 45AT  Acquisition of shares or assets  (1) Sections 45AF, 45AG, 45AJ and 45AK do not apply in relation to a contract, arrangement or understanding containing a cartel provision, in so far as the cartel provision provides directly or indirectly for the acquisition of:  (a) any shares in the capital of a body corporate; or  (b) any assets of a person. Note: A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal Code and subsection (2) of this section).  (2) A person who wishes to rely on subsection (1) in relation to a contravention of section 45AJ or 45AK bears an evidential burden in relation to that matter.  (3) Sections 45AF, 45AG, 45AJ and 45AK do not apply in relation to a contract, arrangement or understanding containing a cartel provision, in so far as the cartel provision provides for an acquisition, if the acquisition is a notified acquisition. Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code and subsection (4) of this section).  (4) A person who wishes to rely on subsection (3) in relation to a contravention of section 45AJ or 45AK bears an evidential burden in relation to that matter. 45AU  Collective acquisition of goods or services by the parties to a contract, arrangement or understanding  (1) Sections 45AF, 45AG, 45AJ and 45AK do not apply in relation to a contract, arrangement or understanding containing a cartel provision, in so far as:  (a) the cartel provision has the purpose, or has or is likely to have the effect, mentioned in subsection 45AD(2); and  (b) either:  (i) the cartel provision relates to the price for goods or services to be collectively acquired, whether directly or indirectly, by the parties to the contract, arrangement or understanding; or  (ii) the cartel provision is for the joint advertising of the price for the re‑supply of goods or services so acquired. Note: A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3) of the Criminal Code and subsection (2) of this section).  (2) A person who wishes to rely on subsection (1) in relation to a contravention of section 45AJ or 45AK bears an evidential burden in relation to that matter. Division 1A—Acquisitions 45AV  Purportedly putting acquisitions into effect  (1) A reference in this Division to putting an acquisition into effect includes a reference to purportedly putting the acquisition into effect.  (2) A person purportedly puts into effect an acquisition if the person engages in conduct that, apart from this Division, would constitute putting the acquisition into effect. Subdivision B—Obligations 45AW  Commission must be notified of acquisitions  (a) the person is a principal party to an acquisition; and  (b) the acquisition is required to be notified; and  (c) the acquisition is put into effect; and  (d) when the acquisition is put into effect:  (i) the acquisition is not a notified acquisition; or  (ii) no notification of the acquisition has an effective notification date (see section 51ABZ); or  (iii) the latest notification of the acquisition that has an effective notification date is stale. Note 1: For when an acquisition is required to be notified, see Division 2 of Part IVA. Note 2: For when an acquisition is stale, see section 51ABG. Note 3: For enforcement, see Part VI. 45AX  Commission must be notified of material changes of fact in relation to notified acquisitions  (a) a person is the notifying party of a notification of an acquisition; and  (b) a change of fact occurs; and  (c) the change of fact is material to the Commission making a determination under subsection 51ABZE(1) in respect of the notification; and  (d) the person becomes aware of the change of fact at a time:  (i) occurring on or after the effective notification date of the notification; and  (ii) at which the Commission has not decided to cease considering the notification under section 51ABZD; and  (iii) at which the Commission has not made a determination in respect of the notification under subsection 51ABZE(1); and  (iv) if the notification is subject to phase 2 review—occurring at least 15 business days (within the meaning of section 51ABK) before the end of the phase 2 determination period for the notification.  (2) For the purposes of this section, the person is taken to become aware of the change of fact at the earliest time at which the person is:  (a) aware of the change of fact; and  (b) aware that the change of fact is material in the way described in paragraph (1)(c).  (3) This section also applies if:  (a) a person is the notifying party of a notification of an acquisition; and  (b) the notifying party has made a public benefit application in relation to the notification; and  (c) a change of fact occurs; and  (d) the change of fact is material to the Commission making a determination under subsection 51ABZW(1) in respect of the application; and  (e) the person becomes aware of the change of fact at a time:  (i) occurring on or after the effective application date of the application; and  (ii) at which the Commission has not decided to cease considering the application under section 51ABZV; and  (iii) at which the Commission has not made a determination under subsection 51ABZW(1) in respect of the application.  (4) For the purposes of this section, the person is taken to become aware of the change of fact at the earliest time at which the person is:  (a) aware of the change of fact; and  (b) aware that the change of fact is material in the way described in paragraph (3)(d).  (5) The person contravenes this subsection if the Commission is not notified of the change of fact, as soon as practicable after the person becomes aware of the change, by:  (a) if the person is the only notifying party of the notification of the acquisition—the person; or  (b) otherwise—all of the notifying parties jointly.  (6) For the purposes of this section, a person who ought reasonably to be aware of something is taken to be aware of it. 45AY  Stayed acquisitions must not be put into effect  (a) the person puts an acquisition into effect; and  (b) the acquisition is stayed. Note 1: For when an acquisition is stayed, see section 51ABE. Note 2: For enforcement, see Part VI. 45AZ  Conditions must be complied with  (1) This section applies to a person who puts a notified acquisition into effect, if putting the acquisition into effect is subject to conditions. Note: For when putting an acquisition into effect is subject to conditions, see section 51ABH.  (2) The person contravenes this subsection if any of those conditions are not complied with. Subdivision C—Acquisitions void if put into effect while stayed 45AZA  Acquisitions void if put into effect while stayed  (1) This section applies to an acquisition that is put into effect, or purportedly put into effect, in contravention of section 45AY.  (2) The acquisition is, and is taken always to have been, void by force of this subsection. 45AZB  Providing false or misleading information  (a) the person gives information to the Commission or the Tribunal under an acquisitions provision; and  (b) the information is false or misleading in a material particular; and  (c) the person knows that, or is reckless as to whether, the information is false or misleading in a material particular. Division 2—Other provisions