Dispute resolution arrangements3 Apr 2014

The SAU sets out a number of provisions relating to dispute resolution between NBN Co and access seekers in respect of Standard Forms of Access Agreements. These provisions apply until 30 June 2019.

The SAU confers powers on the ACCC to approve a number of matters, including:

  • the nomination and appointment of resolution advisors and a pool of persons who may be selected as members of an arbitration panel (‘pool members’)
  • the setting of terms of appointment for resolution advisors, pool members and panel members
  • the termination and replacement of resolution advisors and pool members
  • guidelines to be applied by a panel when considering a dispute.

Approval of resolution advisor and terms of appointment

On 3 April 2014, pursuant to Schedule 1H, Annexure 1 of the SAU, the ACCC made a decision to:

  • approve the appointment of NBN Co's proposed resolution advisor Professor Tania Sourdin (engaged through Endispute Pty Ltd) and the resolution advisor terms of appointment (clause 1.1(c))
  • approve the pool member terms of appointment (clause 2.2(c))
  • approve the panel member terms of appointment (clause 3.1(c)).

On 28 April 2014, NBN Co provided the ACCC with the signed resolution advisor terms of appointment, executed by Endispute Pty Ltd and NBN Co Ltd on 17 April 2014.

On 17 December 2014, the ACCC approved amendments to the standard terms of appointment for the dispute resolution pool and panel members to remove the mandatory insurance requirement. The revised standard terms of appointment are available on NBN Co’s website.

On 6 April 2016, the ACCC approved the reappointment of NBN Co’s dispute resolution advisor, Professor Tania Sourdin, until 31 October 2016, with the option to extend the appointment until 31 October 2017. Her initial appointment expired on 16 April 2016.

On 28 October 2016, NBN Co advised the ACCC that it has exercised its option to extend those terms for a further 12 months, to 31 October 2017. NBN Co has provided the ACCC with a copy of the letter to Professor Tania Sourdin regarding the extension of the appointment. The letter is available below.

Approval of pool members

On 8 May 2014, pursuant to Schedule 1H, Annexure 1, clause 2.1(e) of the SAU, the ACCC made a decision to approve the following persons nominated by NBN Co for appointment as pool members:

  1. Philip Argy
  2. Roger Davis
  3. Mark Dempsey SC
  4. Francis Douglas QC
  5. Raymond Finkelstein QC
  6. Steven Goldstein
  7. Malcolm Gracie
  8. Ian Harley Bailey SC
  9. Michael Heaton QC
  10. Jim Holmes
  11. Sibylle Krieger
  12. David Levin QC
  13. Michael McHugh AC QC (until 18 March 2015)
  14. Terry Mehigan
  15. Albert Monichino SC
  16. Dr Rob Nicholls
  17. Jonathan Redwood
  18. Don Ryan QC
  19. Tony Samuel
  20. Michael Shand QC
  21. Michael Sweeney
  22. Greg Thorpe
  23. Steve White

NBN Co dispute guidelines

On 16 July 2014, under Schedule 1H, Annexure 1, clause 6(b)(ii) of the SAU, NBN Co submitted to the ACCC a draft of the proposed guidelines to be applied by a panel when considering a dispute. The SAU provides that the ACCC must decide whether to approve the proposed Guidelines in the form submitted to it, or to require NBN Co to incorporate variations specified by the ACCC, within 20 business days of receiving the proposed guidelines. The ACCC initially extended its decision period to 24 September 2014 and subsequently further extended its decision period to 10 October 2014.

On 10 October 2014, the ACCC approved the NBN Co dispute guidelines and required NBN Co to incorporate variations specified by the ACCC. The main variations relate to the obligations of the disputing parties and the provision of reports to the ACCC by the resolution advisor, if directed to do so by the ACCC. The approved guidelines are available below and on NBN Co’s website.