The ACCC has published its Part IIIA access undertaking guidelines, following a public consultation on the draft in May 2016, which took place as part of a broader response to the Harper Review’s recommendations with respect to the National Access Regime. The guidelines provide a framework and guiding principles on the operation of the National Access Regime, which is administered by Part IIIA of the Competition and Consumer Act 2010 (CCA).
Based on the previous experience of the ACCC in assessing access undertakings given by service providers, the guidelines set out the Commission’s advice for drafting access undertakings, as well as information as to its decision-making process in assessing an undertaking application. Though the process for determining a proposed undertaking will vary depending on the circumstances and context of each proposal, an ACCC assessment will typically include pre-lodgement discussions, the formal lodgement of the proposed undertaking, an industry consultation, the ACCC assessment including publication of a draft decision, and potential further consultations, followed by the provision of a final decision. Supporting information as to each stage of this process is outlined in Chapter 3 of the guidelines, which also details the timelines set by the CCA by which the Commission must make final determinations as to the outcome of undertaking applications.
Once an undertaking is accepted, it provides a framework for obtaining access to a particular service, including the terms and conditions, price and dispute resolution process with the service provider, enforceable by the Federal Court.
Matters to be considered by the ACCC
Chapter 2 of the guidelines set out the matters that the Commission is required to consider in deciding whether to accept or reject an access undertaking, including but not limited to the following range of factors:
- the legitimate business interests of the provider;
- the pricing principles set out in Part IIIA;
- the objectives of the National Access Regime, being consistency in the approach to access regulation across industries and the economically efficient investment and operation of infrastructure by which services are provided;
- overriding concerns as to the public interest, including the preservation of competition in markets, within and outside of Australia;
- the interests of potential access seekers of the service; and
- compliance with any access code that may apply to any particular service.
The ACCC will have regard to the same set of factors in determining whether to accept a variation to existing undertakings.
Drafting proposed undertakings
The guidelines include a useful chapter dealing with the drafting of access undertakings, including suggested commitments that the ACCC would generally expect to see addressed in an appropriate access undertaking, as well as example terms for the most efficient wording of a proposed undertaking. For instance, Chapter 4 states that in order to most adequately address the interests of access seekers to a service, draft undertakings should provide for:
- commitments to meet reasonably foreseeable demand;
- objectively reasonable quality and reliability of service;
- efficient cost-based pricing; and
- fair and efficient dispute resolution processes.
The guidelines do not apply to decisions made by either the ACCC under the telecommunications access regime pursuant to Part XIC of the CCA, nor the Australian Energy Regulatory per the national energy market legislation and rules.
The final guidelines are published on the ACCC website.
