Response to draft DeterminationResponse to draft Determination

Response to draft Determination

The main issues raised by submitters involved the audit provisions concerning the access provider’s use of an access seeker’s confidential information. One party contended that the proposed audit provisions were unnecessary as well as unworkable for the reasons that:

they required the visibility of all access seeker information which in turn required multilateral consent for disclosure of the information in auditing process;
neither an access seeker or auditor would be competent to judge whether there was

prima facie evidence of a misuse of confidential information;

audit provisions are likely to lead to an increase in disputes which could be used by access seekers in preparation for litigation where for example, an access seeker was experiencing financial difficulties; and
the threshold for triggering the audit provisions was not reasonably stringent.

In addition, other submitters queried whether the provision of quarterly information was adequate for all types of audits and whether they should be provided more regularly, and whether it would be possible for numerous access seekers to share the costs (and resulting information) of an engaging an independent auditor.