Competition and Consumer Act 2010

The Commission must take the following matters into account in making a final determination:

the objects of this Part;

the operational and technical requirements (including those relating to interoperability and financial stability) necessary for the safe and reliable operation of a current or proposed CS facility that is or may be linked to the CS service;

the pricing principles specified in subsection (3);

if an obligation of the provider under an Australian law in relation to the CS service is mentioned in a party’s case—that obligation;

if the provider is not the holder of the Australian CS facility licence that authorises the operation of the CS facility, and an obligation of the holder under an Australian law in relation to the CS service is mentioned in a party’s case—that obligation;

any advice provided by ASIC or the Reserve Bank of Australia in response to consultations undertaken under paragraph 153ZEP(3)(b);

any advice provided by ASIC or the Reserve Bank of Australia under subsection 153ZEX(3) in relation to the arbitration;

any guidance or policies relating to CS services made by the Commission, ASIC or the Reserve Bank of Australia;

the legitimate business interests of the provider, and the provider’s investment in the CS facility;

if the provider is not the holder of the Australian CS facility licence that authorises the operation of the CS facility—the legitimate business interests of the holder, and the holder’s investment in the CS facility;

the interests of all persons who have rights to access the CS service;

the public interest, including the public interest in having competition in markets (whether or not in Australia).

The Commission may take any other matters that it thinks are relevant into account in making a final determination.

For the purposes of paragraph (1)(c), the pricing principles are as follows:

access prices should generate expected revenue for a CS service that reflects the costs of providing access to the CS service;

access prices should include a return on investment commensurate with the regulatory and commercial risks involved;

access price structures should not allow a vertically integrated provider to set terms and conditions that discriminate in favour of its related entities, except to the extent that the cost of providing access to other access seekers is higher;

access pricing should provide incentives to reduce costs or otherwise improve productivity.

The Commission may take a matter referred to in subsection (1) or (2) into account in making an interim determination.

In making an interim determination, the Commission does not have a duty to consider whether to take into account a matter referred to in subsection (1).