sec.104Preventing or hindering access

### sec.104 Preventing or hindering access An access provider or user of a declared service, or a related body corporate of the access provider or user, must not engage in conduct for the purpose of preventing or hindering a user’s access to the declared service under an access agreement. Provision for enforcing compliance with section 104 (1) is made in division 8 , particularly section 153 . An access provider who is the owner or operator of a declared service engages in conduct for preventing or hindering a user’s access to the declared service if, having regard to the relevant criterion, the access provider provides, or proposes to provide, access to the declared service to itself, or a related body corporate of the access provider, on more favourable terms than the terms on which the access provider provides, or proposes to provide, access to the declared service to a competitor of the access provider. For subsection (2) , the relevant criterion is the terms, taken as a whole, on which the access provider provides, or proposes to provide, access to the declared service to itself and the competitor having regard, in particular, to— the fees, tariffs or other payments to be made for access to the declared service by the access provider and the competitor; and the nature and quality of the declared service provided, or proposed to be provided, to the access provider and competitor. An access provider or user of a declared service, or a related body corporate of the access provider or user, may be taken to have engaged in conduct for preventing or hindering a user’s access to a service even though, after all the evidence has been considered, the existence of the purpose is ascertainable only by inference from the conduct of the access provider, user or related body corporate or other relevant circumstances. Subsections (2) and (4) do not limit the ways in which the purpose of an access provider or user, or a related body corporate of an access provider or user, may be established for subsection (1) . An access provider or user of a declared service, or a related body corporate of the access provider or user, does not contravene subsection (1) if the conduct of the access provider, user or related body corporate is constituted by— an act done in accordance with an access code or approved access undertaking for the declared service; or a reasonable act done in, and for, an emergency (including an emergency that involves, or may involve, injury to persons or damage to property). Subsection (2) applies despite section 102 . In this section— competitor , of an access provider of a declared service, means a person who has, or seeks to have, access to the declared service to compete in a market with the access provider, or a related body corporate of the access provider. s 104 amd 2000 No. 15 s 2 sch (sec.104-ssec.1) An access provider or user of a declared service, or a related body corporate of the access provider or user, must not engage in conduct for the purpose of preventing or hindering a user’s access to the declared service under an access agreement. Provision for enforcing compliance with section 104 (1) is made in division 8 , particularly section 153 . (sec.104-ssec.2) An access provider who is the owner or operator of a declared service engages in conduct for preventing or hindering a user’s access to the declared service if, having regard to the relevant criterion, the access provider provides, or proposes to provide, access to the declared service to itself, or a related body corporate of the access provider, on more favourable terms than the terms on which the access provider provides, or proposes to provide, access to the declared service to a competitor of the access provider. (sec.104-ssec.3) For subsection (2) , the relevant criterion is the terms, taken as a whole, on which the access provider provides, or proposes to provide, access to the declared service to itself and the competitor having regard, in particular, to— the fees, tariffs or other payments to be made for access to the declared service by the access provider and the competitor; and the nature and quality of the declared service provided, or proposed to be provided, to the access provider and competitor. (sec.104-ssec.4) An access provider or user of a declared service, or a related body corporate of the access provider or user, may be taken to have engaged in conduct for preventing or hindering a user’s access to a service even though, after all the evidence has been considered, the existence of the purpose is ascertainable only by inference from the conduct of the access provider, user or related body corporate or other relevant circumstances. (sec.104-ssec.5) Subsections (2) and (4) do not limit the ways in which the purpose of an access provider or user, or a related body corporate of an access provider or user, may be established for subsection (1) . (sec.104-ssec.6) An access provider or user of a declared service, or a related body corporate of the access provider or user, does not contravene subsection (1) if the conduct of the access provider, user or related body corporate is constituted by— an act done in accordance with an access code or approved access undertaking for the declared service; or a reasonable act done in, and for, an emergency (including an emergency that involves, or may involve, injury to persons or damage to property). (sec.104-ssec.7) Subsection (2) applies despite section 102 . (sec.104-ssec.8) In this section— competitor , of an access provider of a declared service, means a person who has, or seeks to have, access to the declared service to compete in a market with the access provider, or a related body corporate of the access provider. - (a) the fees, tariffs or other payments to be made for access to the declared service by the access provider and the competitor; and - (b) the nature and quality of the declared service provided, or proposed to be provided, to the access provider and competitor. - (a) an act done in accordance with an access code or approved access undertaking for the declared service; or - (b) a reasonable act done in, and for, an emergency (including an emergency that involves, or may involve, injury to persons or damage to property).