Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) Each carrier who is obliged to ensure the development, installation and maintenance of a delivery capability must ensure that the capability is developed, installed and maintained on such terms and conditions:
(a) as are agreed in writing between the carrier and the interception agency concerned; or
(b) in the absence of such an agreement--as are determined in writing by the ACMA.
(2) The terms and conditions on which a carrier is to provide a delivery capability must be consistent with the following principles:
(a) the principle that the most cost effective means of ensuring the development, installation and maintenance of that capability is employed;
(b) the principle that the carrier is to incur the costs (whether of a capital nature or otherwise) relating to the development, installation and maintenance of that capability;
(c) the principle that the carrier may, over time, recover from an interception agency such of those costs as are required, under section 208, to be borne by that interception agency.
(3) Nothing in subsection (2) prevents a carrier from entering into an agreement with more than one interception agency.
(4) The agreement should also provide that if the working out of the costs to a particular interception agency of developing, installing and maintaining a delivery capability is the subject of a disagreement between the carrier and that interception agency:
(a) the interception agency may request the ACMA to arbitrate the matter; and
(b) if it does so, those costs are to be as determined by the ACMA.
(5) The regulations may make provision in relation to the conduct of an arbitration by the ACMA under this section.
(6) The existence of a cost dispute in relation to a delivery capability does not affect the obligations of the carrier in respect of that capability while that dispute is being resolved.
(7) If, as a result of the arbitration of a cost dispute between the carrier and an interception agency, the ACMA concludes that a lesser rate of charge would have been available, the carrier:
(a) must allow the interception agency credit for any costs already charged to the extent that they were worked out at a rate that exceeds that lesser rate; and
(b) must adjust its means of working out future costs;
to take account of that conclusion.
(8) For the purposes of this section, any reference in this section to terms and conditions agreed between a carrier and an interception agency includes a reference to terms and conditions agreed between the carrier and:
(a) in the case of an interception agency of a State--the State, on behalf of the interception agency; and
(b) in the case of an interception agency of the Commonwealth--the Commonwealth, on behalf of the interception agency.
(9) A determination made under paragraph (1)(b) is not a
legislative instrument.