Process for developing the model terms aProcess for developing the model terms and conditions

Process for developing the model terms and conditions

The Commission has considered the nature of the perceived problem as identified by interested parties and examined that problem in the light of the current applicable GAA or CSPA clause. The Commission has then decided whether or not there is any merit in the concern identified and how a change to the applicable clause might address or overcome the concern.

Where the issue was considered to warrant further action, the Commission has explained the nature of the problem in Part 2 and then stated what it considers to be the relevant principle to apply. Accordingly, the related clause has been developed to reflect the principle the Commission considers appropriate. In some cases, it has been necessary to develop a clause without reference to any existing clauses since the GAA or CSPA does not currently deal with the issue at hand. On other occasions, a change to the current clause was not deemed necessary and therefore the existing clause has remained unchanged.

As discussed above, the aim of the draft Determination was to gather views from interested parties on whether:

the Commission’s assessment and in-principle decision in relation to the matter at hand was considered appropriate; and
the drafting of the model clause effectively reflected the expressed position.

The views of parties in response to the draft Determination have been a key input into the finalisation of this Determination. Further issues raised in relation to the Commission’s proposed in-principle position are again discussed in Part 2. Part 3 has been updated to reflect any amendments made to the model clauses since the draft Determination.

The Commission has been assisted throughout the process of developing the relevant principles and particularly the draft clauses by Mr Matthew Nicholls, Technology and Communications Lawyer, Melbourne.

As previously mentioned, where an ACIF code deals with a particular issue raised, the Commission has adopted the ACIF code provisions as the model term and condition. In some cases, however, where an improvement to the ACIF code is considered necessary, the Commission has identified the further work that should be progressed within the ACIF to address the matter.

It should be noted that the model clause or ACIF code provisions are intended to apply to all the core services unless indicated otherwise.