Competition and Consumer Act 2010

If:

a party to the arbitration of an access dispute seeks to include certain information in its case; and

in the negotiation under Division 3 that led to the notification of the access dispute, the information was the subject of a request under section 153ZEK; and

the party, or a person related to the party, was the responding party (within the meaning of subsection 153ZEK(1)) to the request; and

the responding party did not ensure that the requirements in subsection 153ZEK(3) were satisfied in respect of the request;

In determining whether to grant permission under subsection (1), the Commission must have regard to:

the desirability of the parties to the negotiation complying with the requirements in section 153ZEK; and

whether the responding party was given a reasonable opportunity to ensure that the requirements in subsection 153ZEK(3) were satisfied in respect of the request before the access dispute was notified.

If the Commission is satisfied that a party to the arbitration of an access dispute has failed to provide information in accordance with section 153ZEK in the negotiation under Division 3 that led to the notification of the access dispute, the Commission may do any of the following in the arbitration:

direct that the party is not entitled to rely on specified information or materials;

draw such adverse inferences from the failure as the circumstances justify;

for the purposes of making a determination, not have regard to information that the party in the negotiation failed to provide in accordance with section 153ZEK.