This instrument is the Broadcasting Services (Transmitter Access) Regulations 2019.

(1) Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provisions	Commencement	Date/Details
1. The whole of this instrument	The day after this instrument is registered.	24 September 2019

Note: This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

(2) Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.

3 Authority

This instrument is made under the Broadcasting Services Act 1992.

4 Schedule 2

Each instrument that is specified in Schedule 2 to this instrument is amended or repealed as set out in the applicable items in that Schedule, and any other item in that Schedule has effect according to its terms.

5 Definitions

Note: A number of expressions used in this instrument are defined in the Act, including the following:

(a) ACCC;

(b) broadcasting service;

(d) designated associated facility;

(e) facility;

(f) giving access.

In this instrument:

access provider means the owner or operator of:

(a) a broadcasting transmission tower; or

(b) a designated associated facility.

access seeker, in relation to access that is described in clause 45, 45A or 46 of Schedule 4 to the Act, means a person described as an access seeker in that clause.

Act means the Broadcasting Services Act 1992.

determination means a written determination made by the ACCC under subsection 9(1).

dispute means a dispute notified under subsection 8(1).

telecommunications network has the meaning given by section 7 of the Telecommunications Act 1997.

Part 2—Access to designated associated facilities

6 Exemptions from obligation to give access

Exemptions

(1) For the purposes of subclause 45A(9) of Schedule 4 to the Act, the owner or operator of a designated associated facility is not required to give an access seeker access to the designated associated facility if subsection (2) or (4) applies.

Note: For the obligation to give access, see subclauses 45A(2) and (4) of Schedule 4 to the Act.

Giving access would have certain effects

(2) This subsection applies if giving access would:

(a) prevent a person covered by subsection (3) from obtaining a sufficient amount of a service provided by means of the designated associated facility to be able to meet the person’s reasonably anticipated requirements, measured at the time the request for access was made; or

(b) prevent any person from obtaining, by the exercise of a right under a contract or determination in force at the time the request for access is made, a sufficient level of access to a service provided by means of the designated associated facility to be able to meet the person’s actual requirements; or

(3) A person is covered by this subsection if the person is:

(a) the owner or operator of the designated associated facility; or

(b) a customer of the owner or operator who, at the time the request is made, has access to, or a right to access, the designated associated facility.

Access seeker would fail in certain respects

(4) This subsection applies if there are reasonable grounds to believe that, if access were given, the access seeker:

(a) would fail, to a material extent, to comply with the terms and conditions on which the owner or operator complies, or is reasonably likely to comply, with the obligation to give access; or

(b) would fail to protect:

(i) the integrity of a telecommunications network; or

(ii) the continuity of a broadcasting service; or

(iii) the safety of individuals working on, or using services supplied by means of, a telecommunications network or facility.

(5) Examples of reasonable grounds for believing the matter mentioned in paragraph (4)(a) include:

(a) evidence that the access seeker is not creditworthy; and

(b) repeated failures by the access seeker to comply with the terms and conditions on which the same or similar access has been provided (whether or not by the owner or operator).

Part 3—Arbitration

Division 1—General

7 Purpose and application of this Part

This Part:

(a) is made for the purposes of subclause 47(3) of Schedule 4 to the Act; and

(b) provides for and in relation to the conduct of an arbitration by the ACCC under clause 47 of that Schedule.

8 Notification of disputes

Notification requirements

(1) An access seeker or access provider may notify the ACCC in writing that a dispute exists if the access seeker and access provider are unable to agree about the terms and conditions on which access is, or is to be, given to:

(a) a broadcasting transmission tower; or

(b) a site of a broadcasting transmission tower; or

(i) a broadcasting transmission tower; or

(ii) the site on which a broadcasting transmission tower is situated.

Example: An access seeker and access provider are unable to agree about:

(a) the price, or the method establishing the price, at which access is to be provided; or

(b) whether a previous determination should be varied.

(2) The notification must include the following information:

(a) the name of the person notifying the dispute (the notifier) and, if the notifier is not an individual, the name and address of an individual who represents the notifier;

(b) the notifier’s address for the delivery of documents in relation to the notification;

(d) if the notifier is the access seeker—the name and address of the access provider;

(e) if the notifier is the access provider—the name and address of the access seeker;

(f) the provision of the Act that requires the access to be given;

(g) a description of the dispute, including:

(i) whether the dispute is about varying existing terms and conditions of access and, if it is, a description of the existing terms and conditions; and

(ii) each aspect of the terms and conditions on which the access seeker and access provider are able to agree; and

(iii) each aspect of the terms and conditions on which the access seeker and access provider are unable to agree;

(h) a description of any effort that has been made to resolve the dispute, including efforts to appoint an arbitrator in accordance with paragraph 47(1)(b), 47(1A)(b) or 47(2)(b) of Schedule 4 to the Act;

(i) if the parties have failed to agree on the appointment of an arbitrator—confirmation of the failure to agree;

(j) any other information that the notifier considers relevant (such as the name and address of a person that the notifier considers may have an interest in the dispute).

(3) A contravention of subsection (2) does not affect the validity of a notification.

Parties to the arbitration

(4) When the ACCC receives the notification, it must give written notice of the dispute as follows:

(a) if the access seeker notified the dispute—to the access provider;

(b) if the access provider notified the dispute—to the access seeker;

(c) if the ACCC considers that the determination of the dispute may affect another person (whether or not the determination would require the other person to do something)—to the other person;

(d) to any other person whom the ACCC considers may wish to become a party to the arbitration of the dispute.

(5) Each of the following is a party to the arbitration of the dispute:

(a) the access seeker;

(b) the access provider;

(d) any other person who applies in writing to be made a party to the arbitration and is accepted by the ACCC as having a sufficient interest.

9 Determination by ACCC

Power to make determination

(1) The ACCC must make a written determination of the terms and conditions of access.

(2) The determination may deal with any matter relating to access, including matters that were not the basis for the notification of the dispute.

(3) Without limiting subsection (2), the determination may:

(a) require the access provider to give the access seeker access to a broadcasting transmission tower, designated associated facility or site;

(b) require the access seeker to accept, and pay for, access to a broadcasting transmission tower, designated associated facility or site;

(c) specify the terms and conditions on which the access provider is to comply with any or all of the obligations under clauses 45, 45A and 46 of Schedule 4 to the Act that are applicable to the access provider;

(d) specify any other terms and conditions on which the access seeker is given access;

(e) require a party to the arbitration of the dispute to extend or enhance the capability of a broadcasting transmission tower, designated associated facility or site;

(f) specify the extent to which the determination varies an earlier determination made under this section.

Limits on power

(4) The determination must not require the access provider to give access if the requirement is already imposed by Part 5 of Schedule 4 to the Act or any other law of the Commonwealth.

(5) If the arbitration relates to a designated associated facility—the determination must not:

(a) be inconsistent with an exemption mentioned in section 6; or

(b) result in the access seeker becoming the owner (or one of the owners) of any part of a facility without the consent of the owner of the facility; or

(c) require a party to the arbitration of the dispute (other than the access seeker) to bear some or all of the costs of:

(i) extending or enhancing the capability of a facility; or

(ii) maintaining extensions to or enhancements of the capability of a facility.

Informing parties

(6) Before making the determination, the ACCC must give a draft of the determination to each party to the arbitration of the dispute.

(7) When the ACCC makes the determination, it must:

(a) give a copy of the determination to each party to the arbitration of the dispute; and

(b) include the reasons for the determination.

Withdrawal of notification or termination of arbitration

(8) To avoid doubt, the ACCC is not required to make a written determination of the terms and conditions of access if:

(a) notification of the dispute is withdrawn under section 11; or

(b) the ACCC terminates the arbitration of the dispute under section 12.

10 Matters to be taken into account

(1) The ACCC must take the following matters into account in making the determination:

(a) the legitimate business interests of the parties, and the parties’ investment in facilities used in giving access to a broadcasting transmission tower, designated associated facility or site to which the arbitration relates;

(b) the interests of all persons who have been given access to a broadcasting transmission tower, designated associated facility or site to which the arbitration relates;

(c) the direct costs of giving access to a broadcasting transmission tower, designated associated facility or site to which the arbitration relates;

(d) the operational and technical requirements for the safe and reliable operation of:

(i) a broadcasting transmission tower, designated associated facility or site to which the arbitration relates; or

(ii) another facility located at, on, in or under that broadcasting transmission tower, designated associated facility or site;

(e) the economically efficient operation of a broadcasting transmission tower, designated associated facility or site to which the arbitration relates;

(f) the value to a party to the arbitration of the dispute of:

(i) an extension of property that is or would be paid for by a person other than the party; or

(ii) an enhancement of capability, that is or would be paid for by a person other than the party;

(g) whether the determination will promote the objects set out in paragraphs 3(1)(a), (aa), (b) and (ba) of the Act.

(2) The ACCC may take into account any other matters that it considers relevant.

11 Withdrawal of notifications

(1) A notification of the dispute under subsection 8(1) may only be withdrawn:

(a) by the person who notified the dispute; and

(b) before the ACCC makes its determination on the dispute.

(2) The withdrawal of the notification must:

(a) be given in writing to the ACCC; and

(b) include the following information:

(i) the name of the person withdrawing the notification;

(ii) whether the person is the access seeker or access provider;

(iii) a short description of the dispute.

(3) The person withdrawing the notification must give a copy of the withdrawal to:

(a) if the person is the access seeker—the access provider; or

(b) if the person is the access provider—the access seeker.

(4) The withdrawal of the notification takes effect when the withdrawal is received by the ACCC.

(5) The ACCC must give a copy of the withdrawal to:

(a) each person to whom the ACCC gave notice of the dispute under subsection 8(4); and

(b) if any person who is a party to the arbitration of the dispute (other than the person withdrawing the notification) was not given notice under that subsection—each such person.

12 When ACCC may terminate arbitration

(1) The ACCC may terminate an arbitration of a dispute (without making a determination) if it considers that:

(a) the notification of the dispute was vexatious; or

(b) the subject matter of the dispute is trivial, misconceived or lacking in substance; or

(d) the access that is the subject of the dispute should continue to be provided under an existing arrangement between the access seeker and access provider.

(2) In addition, if the dispute is about varying an earlier determination, the ACCC may terminate the arbitration if it considers that there is no sufficient reason why that determination should not continue to have effect.

Division 2—Conduct of arbitration

13 Conduct of arbitration

(1) The ACCC may conduct an arbitration of a dispute:

(a) on the papers; or

(b) by holding an arbitration hearing; or

Note: See section 24 for when the ACCC may conduct a joint arbitration.

(2) In conducting an arbitration of a dispute, the ACCC:

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) must act as speedily as a proper consideration of the dispute allows, having regard to the need to inquire into and investigate carefully and quickly the dispute and all matters affecting the merits, and a fair settlement, of the dispute; and

(3) The ACCC may determine the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties, and may require that their cases be presented within those periods.

14 Constitution of ACCC for arbitration

(1) For the purposes of an arbitration of a dispute, the ACCC may be constituted by one or more members of the ACCC nominated in writing by the Chairperson of the ACCC.

(2) If the Chairperson nominates 2 or more members under subsection (1), the Chairperson must nominate one of the members to preside at the arbitration.

(3) A member of the ACCC is not disqualified from constituting the ACCC (alone or with other members) for the purposes of an arbitration of a dispute about a particular matter merely because the member has performed functions, or exercised powers, in relation to the matter or a related matter.

15 Reconstitution of ACCC for arbitration

(1) This section applies if a member constituting, or who is one of the members constituting, the ACCC for the purposes of an arbitration of a dispute:

(a) stops being a member of the ACCC; or

(b) is not available for the purposes of the arbitration for any reason.

(2) The Chairperson must, for the purposes of the arbitration, direct that:

(a) if only one member constituted the ACCC—another member is to constitute the ACCC; or

(b) if more than one member constituted the ACCC—the ACCC is to be constituted by:

(i) the remaining member or members; or

(ii) one or more other members, together with the remaining member or members.

(3) The ACCC must continue and finish the arbitration in accordance with the direction.

(4) In conducting the arbitration, the ACCC may have regard to any record of the proceedings of the arbitration made by the ACCC as previously constituted.

16 Determination of matters

If the ACCC is constituted by 2 or more members for the purposes of an arbitration of a dispute, a matter must be decided:

(a) according to the opinion of the majority of those members; or

(b) if the members are evenly divided on the question—according to the opinion of the member who is presiding.

Division 3—Powers of ACCC in conducting arbitration

17 Power to refer matters and give directions

The ACCC may do any of the following for the purposes of an arbitration of a dispute:

(a) refer any matter to an expert and accept the expert’s report as evidence;

(b) direct a party to the arbitration to conduct research or investigations to obtain relevant information;

(c) direct a person who is, or was, a party to the arbitration to give relevant information to one or more other parties;

(d) direct a person not to divulge, or communicate to anyone else, stated information that was given to the person for the purposes of the arbitration unless the person is permitted to do so by the ACCC;

(e) give any other such direction, and do any such thing, as is necessary or expedient to make a determination.

Note: A person may commit an offence if the person does an act, or omits to do an act, that contravenes a direction under any of paragraphs (b) to (e) (see section 27).

18 Power to require person to give information or produce documents

(1) The ACCC may give a notice to a person under subsection (2) if the ACCC has reason to believe that the person has information, or a document, relevant to an arbitration of a dispute.

(2) The ACCC may, by written notice given to the person, require the person:

(a) to give any such information to the ACCC; or

(b) to produce any such document to the ACCC;

for the purposes of the arbitration.

(3) The notice must:

(a) specify the period (which must be at least 14 days after the notice is given to the person) within which the person is required to comply with the notice; and

(b) specify the manner in which the person is required to comply with the notice; and

Note: A person may commit an offence if the person fails to comply with a notice (see section 28).

19 Power to summon person to give evidence and produce documents

(1) The member of the ACCC who is presiding at an arbitration of a dispute may, for the purposes of the arbitration, summon a person to:

(a) attend before the ACCC to give evidence; and

(b) produce such documents (if any) as are referred to in the summons.

(2) A summons must be in the form set out in Schedule 1.

(3) A summons must be served on a person by:

(a) delivering a copy of the summons to the person personally; and

(b) showing the original of the summons to the person when the copy is delivered to the person.

Note: A person may commit an offence if the person fails to comply with a summons (see section 29).

Division 4—Arbitration hearings

20 Conduct of arbitration hearings

(1) The ACCC may do any of the following things for the purposes of an arbitration hearing:

(a) require evidence or argument to be presented in writing;

(b) decide the matters on which it will hear oral evidence or argument;

(d) sit at any place;

(e) adjourn to any time and place.

(2) The ACCC may determine that an arbitration hearing is to be conducted by:

(a) telephone; or

(b) closed‑circuit television; or

21 Arbitration hearings to be in private

(1) Subject to subsection (2), an arbitration hearing is to be conducted in private.

(2) If the parties to an arbitration of a dispute agree, an arbitration hearing, or part of an arbitration hearing, may be conducted in public.

(3) The member of the ACCC who is presiding at an arbitration hearing conducted in private may give written directions about the persons who may be present at the hearing.

(4) In giving directions under subsection (3), the member presiding must have regard to the wishes of the parties to the arbitration and the need for commercial confidentiality.

22 Right to representation

A party to an arbitration of a dispute may appear in person at an arbitration hearing, or be represented by someone else.

23 Evidence on oath or affirmation

The ACCC may take evidence on oath or affirmation at an arbitration hearing and, for that purpose, a member of the ACCC may administer the oath or affirmation.

Division 5—Joint arbitration of disputes

24 When joint arbitration may be conducted

(1) If:

(a) the ACCC is arbitrating 2 or more disputes at a particular time; and

(b) one or more matters are common to those disputes;

the Chairperson of the ACCC may, by notice in writing, decide that the ACCC must conduct a joint arbitration of such of those disputes (the nominated disputes) as are specified in the notice.

(2) The Chairperson may decide that the ACCC must conduct a joint arbitration of the nominated disputes only if the Chairperson considers this would be likely to result in the nominated disputes being resolved in a more efficient and timely manner.

(3) Before deciding that the ACCC must conduct a joint arbitration of the nominated disputes, the Chairperson must give each party to the arbitration of each nominated dispute a notice in writing:

(a) specifying what the Chairperson is proposing to do; and

(b) inviting the party to make a written submission on the proposal to the Chairperson within 14 days after the notice is given.

(4) The Chairperson must have regard to any submission so made in deciding whether the ACCC must conduct a joint arbitration of the nominated disputes. The Chairperson may have regard to any other matter the Chairperson considers relevant.

25 Procedure in joint arbitration

(1) Sections 13 to 23 and 27 to 33 apply to the joint arbitration in a corresponding way to the way in which they apply to a particular arbitration.

(2) The Chairperson of the ACCC may, for the purposes of the conduct of the joint arbitration, give written directions to the member of the ACCC presiding at the arbitration.

(3) The ACCC as constituted for the purposes of the joint arbitration of 2 or more disputes may have regard to any record of the proceedings of the arbitration of any of those disputes.

26 Determination of disputes

(1) The ACCC as constituted for the purposes of the joint arbitration of 2 or more disputes may make a single determination that covers all of the disputes.

(2) If the ACCC does not make a single determination that covers all of the disputes, the ACCC as constituted for the purposes of the arbitration of each dispute may, for the purposes of making a determination of the dispute:

(a) have regard to any record of the proceedings of the joint arbitration; and

(b) adopt any findings of fact made by the ACCC as constituted for the purposes of the joint arbitration.

Note: See also sections 9 and 10 in relation to the making of determinations.

Division 6—Offences

27 Contravention of a direction

A person commits an offence of strict liability if:

(a) the person is given a direction under any of paragraphs 17(b) to (e); and

(b) the person contravenes the direction.

Penalty: 10 penalty units.

28 Failure to comply with notice to give information or produce documents

A person commits an offence of strict liability if:

(a) the person is given a notice under section 18; and

(b) the person fails to comply with the notice.

Penalty: 10 penalty units.

29 Offences by witnesses

Failure to appear

(1) A person commits an offence of strict liability if:

(a) the person is served with a summons under section 19 to attend before the ACCC to give evidence; and

(b) the person has not been excused, or released from further attendance, by a member of the ACCC; and

Penalty: 10 penalty units.

Failure to answer questions etc.

(2) A person commits an offence of strict liability if:

(a) the person is served with a summons under section 19 to attend before the ACCC to give evidence; and

(b) either:

(i) the person fails to be sworn or to make an affirmation; or

(ii) the person fails to answer a question that the person is required to answer by the ACCC.

Penalty: 10 penalty units.

Failure to produce document

(3) A person commits an offence of strict liability if:

(a) the person is served with a summons under section 19 to produce a document; and

(b) the person fails to produce the document as required by the summons.

Penalty: 10 penalty units.

30 Intimidation etc.

(1) A person (the first person) commits an offence if:

(a) the first person engages in conduct that:

(i) threatens, intimidates or coerces another person; or

(ii) causes damage, disadvantage or loss to another person; and

(b) the first person does so because the other person:

(i) has attended, or proposes to attend, before the ACCC to give evidence at an arbitration hearing; or

(ii) has produced, or proposes to produce, a document to the ACCC.

Penalty: 30 penalty units.

(2) Strict liability applies to the physical element in paragraph (1)(b) that the other person:

(a) has attended, or proposes to attend, before the ACCC to give evidence at an arbitration hearing; or

(b) has produced, or proposes to produce, a document to the ACCC.

31 Disturbing an arbitration hearing etc.

A person commits an offence if the person:

(a) insults, disturbs or uses insulting language towards a member of the ACCC who is exercising powers, or performing functions or duties, as a member of the ACCC for the purposes of an arbitration hearing; or

(b) interrupts an arbitration hearing; or

(c) creates a disturbance, or participates in creating or continuing a disturbance, in a place where an arbitration hearing is being conducted.

Penalty: 30 penalty units.

Division 7—Miscellaneous

32 Parties may request ACCC to treat material as confidential

(1) A party to an arbitration of a dispute may:

(a) inform the ACCC that, in the opinion of the party, a stated part of a document contains confidential commercial information; and

(b) request the ACCC not to give a copy of that part of the document to another party to the arbitration.

(2) On receiving the request, the ACCC must:

(a) inform the other party that the request has been made and of the general nature of the matters to which the relevant part of the document relates; and

(b) ask the other party whether that party objects to the ACCC complying with the request.

(3) If the other party objects, that party may inform the ACCC of its objection and of the reasons for it.

(4) The ACCC may decide not to give to the other party a copy of so much of the document as contains confidential commercial information that the ACCC considers should not be given after considering:

(a) the request; and

(b) any objection; and

33 Parties to pay costs of arbitration

The ACCC may:

(a) charge the persons who are, or were, parties to an arbitration of a dispute for the ACCC’s costs in conducting the arbitration; and

(b) apportion the amount of the charge between those persons.

Part 4—Application, saving and transitional provisions

34 Definitions

In this Part:

commencement means the day this instrument commences.

old law means the Broadcasting Services (Transmitter Access) Regulations 2001, as in force immediately before commencement.

35 Transitional—disputes notified before commencement

Despite the repeal of the old law by Schedule 2 to this instrument, the old law continues to apply in relation to a dispute if, immediately before commencement:

(a) notification of the dispute had been given to the ACCC; and

(b) a withdrawal of the notification of the dispute had not been received by the ACCC; and

(d) a determination of the dispute had not been made.