Telecommunications (Arbitration) Regulations 1997

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Telecommunications (Arbitration) Regulations 1997

Statutory Rules 1997 No. 350 as amended

made under the

Telecommunications Act 1997

This compilation was prepared on 21 December 2001
taking into account amendments up to SR 2001 No. 337

Prepared by the Office of Legislative Drafting,
Attorney-General’s Department, Canberra

Contents

Page

Part 1 Preliminary

1 Name of Regulations [see Note 1]

2 Definitions

Part 2 Notification of disputes

3 Notification of disputes

4 Withdrawal of notices

Part 3 Arbitration

5 Parties to arbitration

6 Constitution of ACCC for arbitration

7 Determination of questions

8 Matters that ACCC must take into account

9 Determinations

10 When ACCC may terminate arbitration

11 ACCC may direct parties to engage in negotiations in good faith

12 Evidence on oath or affirmation

13 Parties may request ACCC to treat material as confidential

14 Other ACCC powers

15 Parties to pay costs of arbitration

Part 4 Arbitration hearings

16 ACCC may conduct arbitration hearings

17 Summons

18 Arbitration hearings to be in private

19 Right to representation

20 Hearing procedures

21 Failure to attend as witness

22 Failure to answer questions etc

25 Intimidation etc prohibited

26 Disturbing etc arbitration hearings prohibited

Schedule

Form Summons

Notes

Part 1 Preliminary

1 Name of Regulations [see Note 1]

These Regulations are the Telecommunications (Arbitration) Regulations 1997.

2 Definitions

In these Regulations, unless the contrary intention appears:

Act means the Telecommunications Act 1997.

arbitration means arbitration of a dispute by the ACCC under:

(a) section 267, 269, 335, 351 or 462 of the Act; or

(b) clause 18, 27, 29 or 36 of Schedule 1 to the Act; or

(c) clause 5 or 8 of Schedule 2 to the Act.

determination means a determination of a dispute.

dispute means a dispute notified under regulation 3.

member, in relation to the ACCC, includes an associate member.

party means a person or body who, under regulation 5, is a party to an arbitration.

service means:

(a) access to a service that is required to be provided under:

(i) section 267 of the Act; or

(ii) clause 4 or 7 of Schedule 2 to the Act; or

(b) access to a carriage service, facility or network that is required to be provided under:

(i) section 269 of the Act; or

(ii) clause 17, 33, 34 or 35 of Schedule 1 to the Act; or

(c) a service that is required to be provided under section 335 or 351 of the Act; or

(d) compliance with a requirement of a numbering plan mentioned in section 462 of the Act; or

(e) access to information that is required to be provided under clause 21, 22, 23, 24 or 25 of Schedule 1 to the Act; or

(f) consultation that is required under clause 29 of Schedule 1 to the Act.

service provider means a person who is required under the Act to provide a service.

service seeker means a person or body:

(a) seeking to make or vary an agreement about provision of a service to the person or body; or

(b) whose service provider has changed, or proposes to change, the terms and conditions on which a service is provided by the provider to the person or body.

Part 2 Notification of disputes

3 Notification of disputes

(1) A service seeker or provider may notify the ACCC in writing that a dispute exists if they are unable to agree about the terms and conditions on which a service is, or is to be, provided.

(2) The following are examples of things on which a service seeker and provider might disagree:

(a) the price, or the method of establishing the price, at which a service is provided;

(b) whether a previous determination should be varied.

(3) Notice of a dispute about a service must include the following information:

(a) the name of the person notifying the dispute (the notifier) and, if the notifier is not an individual, the name and address of an individual who represents the notifier;

(b) the notifier’s address for the delivery of documents in relation to the notice;

(c) whether the notifier is the service seeker or provider and:

(i) if the notifier is the service seeker — the name and address of the service provider;

(ii) if the notifier is the service provider — the name and address of the service seeker;

(d) the provision of the Act that requires the service;

(e) a description of the dispute, including:

(i) whether the dispute is about varying existing access arrangements and, if it is, a description of the arrangements; and

(ii) each aspect of the service on which the parties are able to agree; and

(iii) each aspect of the service on which the parties are unable to agree;

(f) a description of any effort that has been made to resolve the dispute.

(4) When it receives notice of a dispute, the ACCC must give written notice of the dispute:

(a) if the service seeker notified the dispute — to the service provider; and

(b) if the service provider notified the dispute — to the service seeker; and

(c) if the ACCC considers that resolution of the dispute may involve requiring another person to do something — to the other person; and

(d) to any other person whom the ACCC considers may wish to become a party.

4 Withdrawal of notices

(1) Notice of a dispute may be withdrawn only in the following manner:

(a) if the service seeker notified the dispute — the service seeker may withdraw notice of the dispute before the ACCC makes a determination;

(b) if the service provider notified the dispute:

(i) the service provider may withdraw notice of the dispute before the ACCC makes a determination; and

(ii) the service seeker may withdraw notice of the dispute given by the service provider after the ACCC issues a draft determination, but before it makes its final determination.

(2) Despite subparagraph (1) (b) (ii), if the service provider gave notice of a dispute about a variation of a determination, the service seeker cannot withdraw notice of the dispute by the provider.

(3) Withdrawal of notice of a dispute must:

(a) be in writing to the ACCC; and

(b) include the following information:

(i) the name of the person withdrawing the notice;

(ii) whether the person withdrawing the notice is the service provider or seeker;

(iii) a short description of the dispute to which the notice relates;

(iv) a reference to the relevant provision of subregulation (1) under which the person is withdrawing the notice.

(4) A person who gives notice of withdrawal to the ACCC must give a copy of the notice to a service seeker or provider who is a party to the dispute.

(5) Notice of withdrawal takes effect when the notice is received by the ACCC.

(6) The ACCC must give a copy of the notice to a person (except the person who gave notice of the withdrawal of the dispute) to whom the ACCC gave notice of the dispute under subregulation 3 (4).

Part 3 Arbitration

5 Parties to arbitration

The parties to an arbitration are:

(a) the service seeker; and

(b) the service provider; and

(c) if the ACCC considers that determination of the dispute may require another person to do something—the other person; and

(d) any other person who applies in writing to be made a party and is accepted by the ACCC as having a sufficient interest in the dispute.

6 Constitution of ACCC for arbitration

(1) For an arbitration, the ACCC may be constituted by a member, or 3 members, of the ACCC.

(2) If the Chairperson of the ACCC is a member of the ACCC for the arbitration, the Chairperson must preside over the arbitration.

(3) If subregulation (2) does not apply, the Chairperson must nominate a member of the ACCC to preside over the hearing.

7 Determination of questions

If the ACCC is constituted for an arbitration by 3 members of the ACCC, a matter must be decided according to the opinion of the majority of the members.

8 Matters that ACCC must take into account

(1) The ACCC must take the following matters into account in making a determination:

(a) the legitimate business interests of the parties, and the parties’ investment in facilities used to supply the relevant service;

(b) the interests of all persons who have rights to use the service;

(c) the direct costs of providing access to the service;

(d) the operational and technical requirements for the safe and reliable operation of a telecommunications network, or facilities used to supply carriage services;

(e) the economically efficient operation of a carriage service, a telecommunications network or a facility;

(f) whether the determination will promote the long-term interests of end-users of carriage services or services supplied by means of carriage services.

(2) For paragraph (1) (f), whether a determination will promote the long-term interests of end-users of carriage services or of services supplied by means of carriage services is to be determined in the same way as the question is determined for Part XIC of the Trade Practices Act 1974.

Note See Trade Practices Act 1974, s. 152AB.

(3) The ACCC may take into account any other matters that it considers relevant.

9 Determinations

(1) Before making a determination, the ACCC must give a draft determination to the parties.

(2) Unless a notice is withdrawn under regulation 4 or the ACCC terminates an arbitration under regulation 10, the ACCC must:

(a) make a written determination; and

(b) give a copy of the determination to each party; and

(c) include the reasons for the determination.

10 When ACCC may terminate arbitration

(1) The ACCC may terminate an arbitration without making a determination if it considers 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) a party has not engaged in negotiations in relation to the dispute in good faith; or

(d) the service that is the subject of the dispute should continue to be provided under an existing arrangement between the service seeker and provider.

(2) In addition, if the dispute is about varying an existing determination, the ACCC may terminate the arbitration if it considers that there is no sufficient reason why the existing determination should not continue to have effect.

11 ACCC may direct parties to engage in negotiations in good faith

(1) If the ACCC suspects that a person who is or was a party is not engaging or has not engaged in negotiations in good faith, the ACCC may, to facilitate the negotiations, give the person a written procedural direction requiring the person to do, or refrain from doing, a stated act or thing relating to the conduct of those negotiations.

(2) In deciding whether to give a direction under subregulation (1), the ACCC must have regard to:

(a) any guidelines in force under subsection 152CT (6) of the Trade Practices Act 1974, to the extent that they are applicable; and

(b) other relevant matters.

(3) A person must not contravene a direction under subregulation (1).

Penalty: 10 penalty units.

(4) The following are examples of the kinds of procedural directions that may be given under subregulation (1):

(a) a direction requiring a party to give relevant information to 1 or more other parties;

(b) a direction requiring a party to conduct research or investigations to obtain relevant information;

(c) a direction requiring a party not to impose unreasonable procedural conditions on the party’s participation in negotiations;

(d) a direction requiring a party to respond in writing to another party’s proposal or request in relation to the time and place of a meeting;

(e) a direction requiring a party, or a representative of a party, to attend a mediation conference;

(f) a direction requiring a party, or a representative of a party, to attend a conciliation conference.

(5) If an arbitration is terminated, a reference in subregulation (4) to a party is a reference to a former party.

12 Evidence on oath or affirmation

(1) The ACCC may take evidence on oath for an arbitration.

(2) An ACCC member for the arbitration may administer the oath.

13 Parties may request ACCC to treat material as confidential

(1) A party may:

(a) inform the ACCC that, in the opinion of the party, a stated part of a document contains confidential commercial information; and

(b) request the ACCC not to give a copy of that part to another party.

(2) On receiving a request, the ACCC must:

(a) inform the other party 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 whether it objects to the ACCC complying with the request.

(3) If there is an objection to the ACCC complying with the request, the party having the objection may inform the ACCC of its objection and of the reasons for it.

(4) The ACCC may decide not to give to the other party a copy of so much of the document as contains confidential commercial information that the ACCC considers should not be so given after considering:

(a) the request; and

(b) any objection; and

(c) any further submissions that any party has made in relation to the request.

14 Other ACCC powers

(1) The ACCC may:

(a) refer any matter to an expert and accept the expert’s report as evidence; and

(b) direct a person not to divulge or communicate to anyone else stated information that was given to the person for an arbitration unless the person is permitted by the ACCC; and

(c) give any other such direction, and do any such thing, as is necessary or expedient to determine a dispute.

(2) Subregulation (1) has effect subject to any other provision of these Regulations.

(3) A person must not contravene a direction under paragraph (1) (b) or (c).

Penalty: 10 penalty units.

15 Parties to pay costs of arbitration

The ACCC may:

(a) charge the parties to an arbitration for its costs in conducting the arbitration; and

(b) apportion the amount of the charge between the parties.

Part 4 Arbitration hearings

16 ACCC may conduct arbitration hearings

(1) The ACCC may:

(a) conduct an arbitration hearing; and

(b) hear and determine the arbitration in the absence of a person who has been summoned to appear at the hearing;

(c) conduct the hearing at any place;

(d) adjourn the hearing to any time and place.

(2) Subregulation (1) has effect subject to any other provision of these Regulations.

17 Summons

(1) For an arbitration hearing, the presiding member may:

(a) summon a person to attend the hearing; and

(b) require the person to produce a document mentioned in the summons.

(2) A summons must be in the form set out in the Schedule.

(3) A summons must be served on a person by:

(a) delivering a copy of the summons to the person personally; and

(b) showing the original of the summons to the person when the copy is delivered to the person.

18 Arbitration hearings to be in private

(1) An arbitration hearing is to be conducted in private.

(2) However, if the parties agree, a hearing, or part of a hearing, may be conducted in public.

(3) The presiding member for an arbitration hearing conducted in private may give written directions about the persons who may be present at the hearing.

(4) In giving directions, the presiding member must have regard to the wishes of the parties and the need for commercial confidentiality.

19 Right to representation

A party may appear in person or be represented by someone else at an arbitration hearing.

20 Hearing procedures

(1) In an arbitration hearing, the ACCC:

(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 inquire into and investigate carefully and quickly the dispute and all matters affecting the merits, and a fair settlement, of the dispute; and

(c) may inform itself of any matter relevant to the dispute in any way it considers appropriate.

(2) The ACCC may determine the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties, and may require that their cases be presented within those periods.

(3) The ACCC may require evidence or argument to be presented in writing, and may decide the matters on which it will hear oral evidence or argument.

(4) The ACCC may determine that an arbitration hearing is to be conducted by:

(a) telephone; or

(b) closed circuit television; or

(c) any other means of communication.

21 Failure to attend as witness

(1) A person who:

(a) is summoned under regulation 17 to attend an arbitration hearing; and

(b) has not been excused, or released from further attendance, by a member of the ACCC for the arbitration;

must attend the hearing as required by the summons.

Penalty: 10 penalty units.

(2) Strict liability applies to subregulation (1).

(3) It is a defence to a prosecution for an offence against subregulation (1) if the person had a reasonable excuse.

Note A defendant bears an evidential burden in relation to the question whether he or she had a reasonable excuse (see section 13.3 of the Criminal Code).

22 Failure to answer questions etc

(1) A witness at an arbitration hearing must not:

(a) fail to be sworn or to make an affirmation; or

(b) fail to answer a question that the witness is required by the ACCC to answer; or

(c) fail to produce a document that the witness is required to produce by a summons under paragraph 17 (1) (b).

Penalty: 10 penalty units.

(2) Without limiting subregulation (4), paragraph (1) (b) or (c) does not require a witness to answer a question or produce a document if the answer or the production of the document might tend to incriminate the witness or expose him or her to a penalty.

(3) Strict liability applies to subregulation (1).

(4) It is a defence to a prosecution for an offence against subregulation (1) if the witness had a reasonable excuse.

Note A defendant bears an evidential burden in relation to the question whether he or she had a reasonable excuse (see section 13.3 of the Criminal Code).

25 Intimidation etc prohibited

(1) This regulation applies if a person:

(a) has produced, or proposes to produce, documents to the ACCC; or

(b) has appeared, or proposes to appear, as a witness at an arbitration hearing.

(2) A person must not engage in conduct that:

(a) threatens, intimidates, or coerces a person mentioned in subregulation (1); or

(b) causes damage, disadvantage or loss to the person.

Penalty: 10 penalty units.

(3) Strict liability applies to the physical element in paragraph (2) (a) that the person is a person mentioned in subregulation (1).

26 Disturbing etc arbitration hearings prohibited

A person must not, in relation to an arbitration hearing:

(a) insult or disturb an ACCC member exercising powers or performing functions or duties as an ACCC member; or

(b) interrupt the hearing; or

(c) use insulting language towards an ACCC member exercising powers, or performing functions or duties, as an ACCC member; or

(d) create a disturbance, or participate in creating or continuing a disturbance, where the hearing is being conducted.

Penalty: 10 penalty units.

Schedule

(subregulation 17 (2))

Form Summons

COMMONWEALTH OF AUSTRALIA
Telecommunications Act 1997
SUMMONS
(Title of matter)

To

Name of witness: (insert full name of witness)

Address of witness: (insert address of witness)

1. You are summoned to attend the Australian Competition and Consumer Commission, (insert address), for an arbitration hearing in this matter on (insert date) at (insert time) and then from day to day until the hearing is completed or until you are released from further attendance.

2. You are required to attend the Commission to give evidence at the hearing.

*3. You are required to bring with you and produce the following documents:

(specify the documents required).

Dated .

Presiding Member

Australian Competition and Consumer Commission

* Omit if inapplicable.

Notes to the Telecommunications (Arbitration) Regulations 1997

Note 1

Note: The Telecommunications (Arbitration) Regulations 1997 (in force under the Telecommunications Act 1997) as shown in this compilation comprise Statutory Rules 1997 No. 350 amended as indicated in the Tables below.

Note: Table of Statutory Rules

Note: (a) Statutory Rules 2001 No. 337 was made under the Australian National Maritime Museum Act 1990, the National Gallery Act 1975, the National Library Act 1960, the Radiocommunications Act 1992 and the Telecommunications Act 1997.

Note: Table of Amendments

<table cellspacing="0" cellpadding="0" style="border-collapse:collapse"><tbody><tr><td colspan="2" style="width:354.9pt; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableOfAmendHead" style="margin-right:0pt"><span>ad. = added or inserted</span><span> </span><span>am. = amended</span><span> </span><span>rep. = repealed</span><span> </span><span>rs. = repealed and substituted</span></p></td></tr><tr><td style="width:111.1pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableColHead"><span>Provision affected</span></p></td><td style="width:233pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableColHead"><span>How affected</span></p></td></tr><tr><td style="width:111.1pt; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableOfAmend" style="margin-right:0pt"><span>R. 1</span><span style="width:96.89pt; text-indent:0pt; font-family:'Lucida Console', monospace; display:inline-block">.................</span></p></td><td style="width:233pt; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableOfAmend" style="margin-right:0pt"><span>rs. 2001 No. 337</span></p></td></tr><tr><td style="width:111.1pt; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableOfAmend" style="margin-right:0pt"><span>Rr. 21, 22</span><span style="width:73.88pt; text-indent:0pt; font-family:'Lucida Console', monospace; display:inline-block">.............</span></p></td><td style="width:233pt; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableOfAmend" style="margin-right:0pt"><span>rs. 2001 No. 337</span></p></td></tr><tr><td style="width:111.1pt; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableOfAmend" style="margin-right:0pt"><span>Rr. 23, 24</span><span style="width:73.88pt; text-indent:0pt; font-family:'Lucida Console', monospace; display:inline-block">.............</span></p></td><td style="width:233pt; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableOfAmend" style="margin-right:0pt"><span>rep. 2001 No. 337</span></p></td></tr><tr><td style="width:111.1pt; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableOfAmend" style="margin-right:0pt"><span>R. 25</span><span style="width:91.89pt; text-indent:0pt; font-family:'Lucida Console', monospace; display:inline-block">................</span></p></td><td style="width:233pt; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"><p class="TableOfAmend" style="margin-right:0pt"><span>am. 2001 No. 337</span></p></td></tr></tbody></table>