Access disputes

Where a service has been declared under Part IIIA of the Competition and Consumer Act 2010, and an access seeker and provider cannot agree on the terms and conditions of access to that service, either party may request the ACCC to arbitrate the dispute. To engage in arbitration, an access seeker and/or an access provider must notify the ACCC in writing.

Unless it terminates the arbitration, the ACCC must make a final determination on the dispute, which may deal with any matter relating to access by the third party to the service. In reaching its determination, the ACCC must take into account the relevant matters set out in the Act.

The Act states that the ACCC must make a final determination within 180 days from the day an arbitration application is received.

The 180 day period may in effect be extended by ‘clock stoppers.’ That is, the Act provides that certain periods of time are not counted when calculating the 180 period. This occurs where:

• the ACCC and the parties to the dispute agree to stop the clock;
• the ACCC gives a direction requesting further information or submissions in relation to the dispute;
• the ACCC publishes a decision to defer consideration of the dispute while it considers an access undertaking;
• the ACCC defers arbitrating the dispute while a declaration is under review by the Australian Competition Tribunal.
  

Except where otherwise agreed by the parties to a dispute, arbitration hearings are to be conducted in private. The ACCC therefore does not generally make any public comment on disputes during the course of arbitration except to announce when a dispute has been notified. Before making a determination, the ACCC must give a draft determination to the parties. The ACCC is required to publish a written report about a final arbitration determination.

In 2007 the ACCC made a final arbitration determination in relation to a dispute between Services Sydney Pty Limited and Sydney Water Corporation Limited.

Further guidance on Part IIIA access disputes

If you have a query about the ACCC’s role arbitrating access disputes under Part IIIA, please contact:

General Manager
Fuel, Transport and Prices Oversight Branch 
Regulatory Affairs Division
Australian Competition and Consumer Commission
GPO Box 520
Melbourne VIC 3000
Email: transport@accc.gov.au

The ACCC released two procedural guides on the resolution of access disputes under Part IIIA in April 2006. The summary guide provides a brief overview of the ACCC’s powers in relation to arbitrating access disputes and the way in which the ACCC is likely to conduct the arbitration process. A more detailed guide Arbitrations—A guide to resolution of access disputes under Part IIIA of the Trade Practices Act 1974 is also available. It provides additional information and highlights particular sections of Part IIIA that impose specific obligations on both the parties to a dispute and the ACCC in arbitrating the dispute.

These guidelines were published prior to the commencement of legislative amendments to Part IIIA which took effect in 2006 and 2010. They should therefore be read in conjunction with Part IIIA as it is currently enacted, and parties contemplating notifying an access dispute should contact the ACCC in the first instance.

In March 2007 the ACCC also released guidelines relating to deferral of arbitrations and backdating of determinations under Part IIIA, which was prior to legislative amendments which took effect in 2010. Again, these guidelines should be read in conjunction with Part IIIA as currently enacted, and parties contemplating notifying an access dispute should contact the ACCC in the first instance.