Non-discrimination provisions were introduced into Part XIC of the Competition and Consumer Act 2010 (CCA) as part of the National Broadband Network (NBN) reforms.
The non-discrimination provisions apply to NBN corporations (such as NBN Co) and providers of Layer 2 bitstream services over designated superfast telecommunications networks (collectively referred to as 'network access providers').
The relevant provisions are as follows:
Sections 152ARA(1) and 152AXC(1) of the CCA provide that network access providers must not discriminate between access seekers in complying with their Category A and B Standard Access Obligations.
Sections 152ARB and 152AXD of the CCA provide that network access providers must not discriminate between access seekers in the carrying on of activities related to the supply of declared services.
Sections 152ARA(7) and 152AXC(7) of the CCA provide that a network access provider must not discriminate in favour of itself in the supply of declared services.
Sections 152BCB(4A) to (4C) and 152BDA(4A) to (4C) of the CCA prohibit the ACCC from making an Access Determination or issuing a Binding Rule of Conduct in relation to services provided by network access providers which has the effect (whether direct or indirect) of discriminating between access seekers.
The sections relating to designated superfast telecommunications network providers in sections 152ARA and 152ARB will take effect on 13 April 2012 or on an earlier date set by Proclamation.
ACCC explanatory material
Under section 152CJH of the CCA, the ACCC is required to publish explanatory material relating to these non-discrimination provisions on its website.
On 19 April 2012, the ACCC released explanatory material under section 152CJH of the CCA. This explanatory material is available below.
The release of this explanatory material follows consultation on draft explanatory material and an issues paper. The ACCC has responded to submissions to the draft explanatory material in the following document.
Under sections 152BEBA to 152BEBG of the CCA, network access providers are required to provide the ACCC with a ‘statement of differences’ where an Access Agreement contains terms and conditions which differ from those set out in a Special Access Undertaking, Standard Form of Access Agreement or Access Determination.
The ACCC is required to maintain public registers of these statements on its website.
