185ADecisions permitting discrimination

##### 185A Decisions permitting discrimination (1) AUSTEL may, in writing, decide that discrimination by a particular carrier that is: (a) discrimination specified in the decision; or (b) discrimination of the kind specified in the decision; should be permitted. (2) AUSTEL must not so decide unless satisfied that the discrimination, or discrimination of that kind, as the case requires, is justified by: (a) a difference in costs borne by the carrier (other than a difference that is insignificant) that will be, or is likely to be, related to the discrimination; or (b) the community interest in promotion of the objects referred to in subparagraphs 3(a)(ii) and (iii); or (c) the desirability of trial programs, pilot programs and demonstrations being conducted that promote the objects of this Act. (3) Without limiting the matters to which AUSTEL may have regard in considering whether to make such a decision on the ground referred to in paragraph (2)(a), it may have regard to any of the following: (a) the quantities in which telecommunications services that would be affected by the decision are supplied; (b) the transmission capacity needed to supply the services; (c) the places from or to which the services are supplied; (d) the periods for which the services are supplied; (e) the performance characteristics at which the services are supplied; (f) network matters relating to supply of the services; (g) the administrative and/or operational costs in relation to the services. (4) AUSTEL may, in writing, revoke or vary a decision under subsection (1) (including such a decision as varied under this subsection) if it is satisfied that: (a) there has been a material change in the cirumstances to which the decision relates, and the decision would have been different if AUSTEL had had regard to the circumstances as so changed; or (b) information on which the decision was based was incorrect in a material respect, and the decision would have been different if AUSTEL had not based it on that information; or (c) there has been a material change in the cirumstances to which the decision relates and information on which the decision was based was incorrect in a material respect, and the decision would have been different if: (i) AUSTEL had had regard to the circumstances as so changed; and (ii) AUSTEL had not based the decision on that information. (5) For the purposes of subsection 185(1), a decision is taken to be in force on and from the day it is made, and: (a) if the discrimination in question is provided for in or arises from a tariff that was in force immediately before the commencement of the Telecommunications Amendment Act 1994—is also taken to have been in force since that commencement; or (b) if the discrimination in question is provided for in or arises from a tariff that came into force during the period between that commencement and that Act receiving the Royal Assent—is also taken to have been in force since that tariff came into force. (6) Any such revocation or variation has no effect in relation to discrimination that occurred before the revocation or variation. (7) Decisions, and revocations or variations of decisions, are to be made public in the way AUSTEL thinks appropriate. (8) A decision under this section that discrimination should be permitted does not prevent AUSTEL exercising any power it has under this Act to disallow a tariff, even if the act or omission constituting the discrimination is required or permitted under the tariff.