40Access determinations

#### 40 Access determinations 40 Access determinations > > (1) If a dispute exists between a service provider and an access seeker— > > > > > (a) as to the terms on which the access seeker is to be given access (or an increase in access) to a service the subject of a coverage declaration or an access undertaking, or > > > > > (b) as to any matter arising under an access agreement that provides for a dispute as to that matter to be dealt with in accordance with this section, or > > > > > (c) as to any matter arising under a determination under this section, > > > > either party to the dispute may apply to IPART for the dispute to be determined by arbitration. > > > > Note. > > > > Pursuant to section 24B of the [Independent Pricing and Regulatory Tribunal Act 1992](/view/html/inforce/current/act-1992-039) (as applied by subsection (5)), the arbitrator for such a dispute may be IPART or some other person appointed by IPART to arbitrate the dispute. > > > (2) IPART may refuse to accept such an application if it is not satisfied that the applicant has, in good faith, attempted to resolve the dispute by negotiation. > > > (3) At any time after commencement of proceedings on an application under this section, the arbitrator may require the service provider to cause notice of the proceedings to be given to all other persons to which the service provider provides access to the service concerned. > > > (4) Subject to this section and the regulations, the [Commercial Arbitration Act 2010](/view/html/inforce/current/act-2010-061) applies to an arbitration under this section, and to any determination arising from an arbitration under this section, as if a reference in that Act to an award were a reference to a determination under this section. > > > (5) Sections 24B–24E of the [Independent Pricing and Regulatory Tribunal Act 1992](/view/html/inforce/current/act-1992-039) apply to an arbitration under this section in the same way as they apply to an arbitration under section 24A of that Act, and so apply as if— > > > > > (a) a reference in those sections to a government agency were a reference to a service provider, and > > > > > (b) section 24B (2) and (3) (b) and (c) of that Act were omitted, > > > > except that section 15 of that Act does not apply in relation to any determination arising from an arbitration under this section. > > > (6) In considering the terms of a proposed determination, the arbitrator must have regard to such matters as are prescribed by the regulations. > > > > Note. > > > > See also section 41 in relation to the application of pricing principles. > > > (7) Before making a determination, the arbitrator— > > > > > (a) must cause copies of the proposed determination to be given to each of the parties to the dispute, and > > > > > (b) must give each of the parties an opportunity to make submissions to the arbitrator in relation to the proposed determination. > > > (8) Subject to subsection (9), the arbitrator must use his or her best endeavours to determine the dispute within 6 months after the application for the dispute to be determined was made to IPART. > > > (9) If the access seeker seeks access in relation to any activity for which it would require, but does not yet hold, a licence under Part 2— > > > > > (a) the arbitrator may adjourn proceedings for such time as the arbitrator considers reasonable for the purpose of enabling the access seeker to obtain such a licence, and > > > > > (b) if the access seeker fails to obtain such a licence within that time, may make a determination refusing the access sought. > > > (10) In making a determination under this section— > > > > > (a) the arbitrator must give effect to any access undertaking to which the service concerned is subject, and > > > > > (b) the arbitrator must not include in the determination any provision that requires a service provider to do, or not to do, anything that would put it in breach of its obligations under any existing access determination or under this or any other Act or law. > > > (11) On making a determination under this section, the arbitrator must cause a notice of the making of the determination (which notice must include a summary of the determination) to be given to IPART. > > > (12) On receiving such a notice, IPART must cause the information contained in the notice to be made available to the public on IPART’s internet website. > > **s 40:** Am 2010 No 61, Sch 2.21 \[1\].