An Act about telecommunications, and for related purposes
Part 1—Preliminary
1 Short title
This Act may be cited as the Telecommunications (Consumer Protection and Service Standards) Act 1999.
2 Commencement
(1) Subject to this section, this Act commences on the 28th day after the day on which it receives the Royal Assent.
(2) Part 3 commences on 1 July 1999.
3 Objects and regulatory policy
The following provisions of the Telecommunications Act 1997 apply to this Act in a corresponding way to the way in which they apply to that Act:
(a) section 3 (objects);
(b) section 4 (regulatory policy).
4 Simplified outline
The following is a simplified outline of this Act:
• A universal service regime is established. The main object of the universal service regime is to ensure that all people in Australia, wherever they reside or carry on business, should have reasonable access, on an equitable basis, to:
(a) standard telephone services; and
(b) payphones.
• The universal service regime established by this Act is to be phased out and replaced by alternative contractual arrangements under the Telecommunications Universal Service Management Agency Act 2012.
• Provision is made for the National Relay Service (NRS). The NRS provides persons who are deaf or who have a hearing and/or speech impairment with access to a standard telephone service on terms, and in circumstances, that are comparable to the access other Australians have to a standard telephone service.
• The NRS provisions in this Act are to be replaced by alternative contractual arrangements under the Telecommunications Universal Service Management Agency Act 2012.
• Local calls are to be charged for on an untimed basis.
• The ACMA may make performance standards to be complied with by carriage service providers in relation to customer service.
• Certain carriers and carriage service providers must enter into the Telecommunications Industry Ombudsman scheme.
• Provision is made for the protection of residential customers of carriage service providers against failure by the providers to supply standard telephone services.
• The ACMA may impose requirements on carriers, carriage service providers and certain other persons in relation to emergency call services.
• Telstra is subject to price control arrangements.
• This Act regulates telephone sex services.
• The Minister may direct Telstra to take action directed towards ensuring that Telstra complies with this Act.
5 Definitions
(1) Unless the contrary intention appears, expressions used in this Act and in the Telecommunications Act 1997 have the same meaning in this Act as they have in that Act.
(2) In this Act:
alternative telecommunications services, or ATS, in Part 2 has the meaning given by section 8E.
approved ATS marketing plan:
(a) for a primary universal service provider has the meaning given by subsection 12P(2); and
(b) for a competing universal service provider, or applicant for approval as a competing universal service provider, has the meaning given by subsection 13M(2).
approved policy statement:
(a) for a primary universal service provider has the meaning given by subsection 12F(2); and
(b) for a competing universal service provider, or applicant for approval as a competing universal service provider, has the meaning given by subsection 13F(2).
approved standard marketing plan:
(a) for a primary universal service provider has the meaning given by subsection 12F(4); and
(b) for a competing universal service provider, or applicant for approval as a competing universal service provider, has the meaning given by subsection 13F(4).
claim period in Part 2 has the meaning given by section 8D.
competing universal service provider has the meaning given by section 13A.
contestable service obligation has the meaning given by section 11C.
default arrangements has the meaning given by section 12.
designated STS area has the meaning given by section 8H.
draft ATS marketing plan:
(a) for a primary universal service provider has the meaning given by subsection 12P(1); and
(b) for a competing universal service provider, or applicant for approval as a competing universal service provider, has the meaning given by subsection 13M(1).
draft policy statement:
(a) for a primary universal service provider has the meaning given by subsection 12F(1); and
(b) for an applicant for approval as a competing universal service provider has the meaning given by subsection 13F(1).
draft standard marketing plan:
(a) for a primary universal service provider has the meaning given by subsection 12F(3); and
(b) for a competing universal service provider, or applicant for approval as a competing universal service provider, has the meaning given by subsection 13F(3).
eligible revenue for an eligible revenue period has the meaning given by section 20B.
eligible revenue period has the meaning given by section 20C.
levy means levy imposed by the Telecommunications (Universal Service Levy) Act 1997.
levy contribution factor has the meaning given by section 20H.
levy credit has the meaning given by subsection 20J(2).
levy debit has the meaning given by subsection 20R(2).
NBN Co has the same meaning as in the National Broadband Network Companies Act 2011.
participating person for an eligible revenue period has the meaning given by section 20A.
payphone carriage service means a carriage service supplied by means of a payphone.
price‑related terms and conditions means terms and conditions relating to price or a method of ascertaining price.
primary universal service provider has the meaning given by section 12A.
RTIRC means the Regional Telecommunications Independent Review Committee established by section 158R.
RTIRC Chair means the Chair of the Regional Telecommunications Independent Review Committee.
RTIRC member means a member of the Regional Telecommunications Independent Review Committee, and includes the RTIRC Chair.
service area has the meaning given by section 8C.
service obligation has the meaning given by section 9B.
standard contestability arrangements has the meaning given by section 13.
standard telephone service has the meaning given by section 6.
Telecommunications Industry Ombudsman means the Telecommunications Industry Ombudsman appointed under the Telecommunications Industry Ombudsman scheme.
Telecommunications Industry Ombudsman scheme means the scheme referred to in section 128.
this Act includes the regulations.
universal service area has the meaning given by section 9G.
universal service charge has the meaning given by section 18.
universal service contractor means a person who is a contractor (within the meaning of the Telecommunications Universal Service Management Agency Act 2012).
universal service grant recipient means a person who is a grant recipient (within the meaning of the Telecommunications Universal Service Management Agency Act 2012).
universal service obligation has the meaning given by section 9.
universal service provider has the meaning given by section 11A.
universal service subsidy has the meaning given by section 16.
VOIP service means a carriage service that enables a voice call to originate on customer equipment by means of the internet protocol.
6 Standard telephone service
(1) A reference in a particular provision of this Act to a standard telephone service is a reference to a carriage service for each of the following purposes:
(a) the purpose of voice telephony;
(b) if:
(i) voice telephony is not practical for a particular end‑user with a disability (for example, because the user is deaf or has a hearing and/or speech impairment); and
(ii) another form of communication that is equivalent to voice telephony (for example, communication by means of a device that enables text‑based communication) would be required to be supplied to the end‑user in order to comply with the Disability Discrimination Act 1992;
the purpose of that form of communication;
(c) a purpose declared by the regulations to be a designated purpose for the purposes of that provision;
where:
(d) the service passes the connectivity test set out in subsection (2); and
(e) to the extent that the service is for the purpose referred to in paragraph (a)—the service has the characteristics (if any) declared by the regulations to be the designated characteristics in relation to that service for the purposes of that provision; and
(f) to the extent that the service is for the purpose referred to in paragraph (b)—the service has the characteristics (if any) declared by the regulations to be the designated characteristics in relation to that service for the purposes of that provision; and
(g) to the extent that the service is for a particular purpose referred to in paragraph (c)—the service has the characteristics (if any) declared by the regulations to be the designated characteristics in relation to that service for the purposes of that provision.
(2) A service passes the connectivity test if an end‑user supplied with the service for a purpose mentioned in paragraph (1)(a), (b) or (c) is ordinarily able to communicate, by means of the service, with each other end‑user who is supplied with the same service for the same purpose, whether or not the end‑users are connected to the same telecommunications network.
(3) The following are examples of purposes that could be declared by regulations made for the purposes of paragraph (1)(c):
(a) the purpose of the carriage of data;
(b) the purpose of tone signalling.
(4) In making a recommendation to the Governor‑General at a particular time about the making of regulations for the purposes of paragraph (1)(c), the Minister must have regard to the following matters:
(a) whether a carriage service for the purpose proposed to be declared by the regulations can be supplied using the same infrastructure as is, at that time, being used by universal service providers, universal service contractors or universal service grant recipients to supply a standard telephone service for the purpose referred to in paragraph (1)(a);
(b) such other matters (if any) as the Minister considers relevant.
(5) This section does not prevent a characteristic declared by regulations made for the purposes of paragraph (1)(e), (f) or (g) from being a performance characteristic.
(6) In this section:
this Act includes:
(a) the Telecommunications Act 1997; and
(b) the Telecommunications Universal Service Management Agency Act 2012.
6A When a standard telephone service is supplied in fulfilment of the universal service obligation
Mobile and VOIP services
(1) For the purposes of this Act, if:
(a) a standard telephone service is supplied, or proposed to be supplied, to a customer by a primary universal service provider; and
(b) the service is:
(i) a public mobile telecommunications service; or
(ii) a VOIP service;
the service is taken not to be supplied in fulfilment of the universal service obligation unless, before the customer entered into an agreement with the primary universal service provider for the supply of the service:
(c) the provider notified the customer, in writing, that the service is supplied in fulfilment of the universal service obligation; and
(d) the notice complied with such requirements (if any) as are specified in a determination under subsection (2).
(2) The ACMA may, by legislative instrument, determine requirements for the purposes of paragraph (1)(d).
Other services
(3) For the purposes of this Act, if:
(a) a standard telephone service (the relevant service) is supplied, or proposed to be supplied, to a customer by a primary universal service provider; and
(b) the relevant service is not:
(i) a public mobile telecommunications service; or
(ii) a VOIP service;
the relevant service is taken not to be supplied in fulfilment of the universal service obligation if, before the customer entered into an agreement with the primary universal service provider for the supply of the relevant service:
(c) the customer was given the option of being supplied with another standard telephone service by the provider on the basis that the other standard telephone service would be supplied in fulfilment of the universal service obligation; and
(d) the customer has, by written notice given to the provider, acknowledged that the relevant service is not supplied in fulfilment of the universal service obligation; and
(e) the notice complied with such requirements (if any) as are specified in a determination under subsection (4).
(4) The ACMA may, by legislative instrument, determine requirements for the purposes of paragraph (3)(e).
7 Application of this Act
The following provisions of the Telecommunications Act 1997 apply to this Act in a corresponding way to the way in which they apply to that Act:
(a) section 8 (Crown to be bound);
(b) section 9 (extra‑territorial application);
(c) section 10 (extension to external Territories);
(d) section 11 (extension to offshore areas);
(e) section 12 (Act subject to Radiocommunications Act);
(f) section 13 (continuity of partnerships).
7A Application of the Criminal Code
Chapter 2 of the Criminal Code (except for Part 2.5) applies to all offences against this Act.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: For criminal liability of corporations under this Act, see sections 574A and 575 of the Telecommunications Act 1997.
Part 2—Universal Service Regime
Division 1—Introduction
8 Simplified outline
This is a simplified outline of this Part:
This Part establishes a universal service regime.
The universal service regime established by this Part is to be phased out and replaced by alternative contractual arrangements under the Telecommunications Universal Service Management Agency Act 2012.
In general terms, the universal service regime involves:
(a) the universal service obligation and universal service subsidy; and
(c) arrangements for collecting and distributing universal service levy.
The main object of the universal service regime is to ensure that all people in Australia, wherever they reside or carry on business, should have reasonable access, on an equitable basis, to:
(a) standard telephone services; and
(b) payphones.
The key elements of the universal service regime are as follows:
(a) the specification of the universal service obligation;
(b) the determination of universal service areas;
(c) the specification of arrangements for the fulfilment of the universal service obligation;
(d) the determination of primary universal service providers;
(e) the determination of contestable service obligations for particular universal service areas;
(f) requirements for the approval of, and compliance with, policy statements and marketing plans of universal service providers;
(h) the determination of the universal service subsidy payable for supplying services in fulfilment of the universal service obligation;
(j) the regulation of universal service charges;
(k) the assessment, collection, recovery and distribution of the levy imposed by the Telecommunications (Universal Service Levy) Act 1997;
(l) the disclosure of information on which certain decisions under this Part are based;
(m) the maintenance by the ACMA of Registers, and the delegation of the Minister’s powers under this Part to the ACMA.
8A Objects
The objects of this Part, when read together with the Telecommunications Universal Service Management Agency Act 2012, are to give effect to the following policy principles:
(a) all people in Australia, wherever they reside or carry on business, should have reasonable access, on an equitable basis, to:
(i) standard telephone services; and
(ii) payphones;
(b) the universal service obligation described in section 9 should be fulfilled:
(i) effectively, efficiently and economically; and
(ii) in ways that are consistent with Australia’s open and competitive telecommunications regime; and
(iii) in ways that are, as far as practicable, responsive to the needs of consumers;
(c) the fulfilment of the universal service obligation described in section 9 should generally be open to competition among carriers and carriage service providers;
(d) specific and predictable funding arrangements to advance the fulfilment of the universal service obligation, particularly in high cost areas, should be available;
(e) providers of telecommunications services should contribute, in a way that is equitable and reasonable, to the funding of the universal service obligation;
(f) information on the basis on which decisions are made for the purposes of the universal service regime should generally be open to public scrutiny;
(g) the universal service regime should be flexible and able to deal with rapid changes in both the telecommunications industry and the needs of consumers.
8B Special meaning of Australia
(1) A reference in this Part to Australia includes a reference to:
(a) the Territory of Christmas Island; and
(b) the Territory of Cocos (Keeling) Islands; and
(c) an external Territory specified in the regulations.
(2) The definition of Australia in section 7 of the Telecommunications Act 1997 does not apply to this Part.
8BA Special meaning of standard telephone service
(1) A reference in this Part to a standard telephone service is a reference to a standard telephone service (within the meaning of section 6) that has the characteristics (if any) specified in a determination under subsection (2).
(2) The Minister may, by legislative instrument, determine specified characteristics for the purposes of subsection (1).
8C Meaning of service area
For the purposes of this Part, a service area is:
(a) a geographical area within Australia; or
(b) any area of land; or
(c) any premises or part of premises;
regardless of size.
8D Meaning of claim period
(1) For the purposes of this Part, a claim period is:
(a) the 2000‑2001 financial year and each of the next 11 financial years; or
(b) if the Minister determines in writing another period—the other period.
(2) The Minister may determine different periods under paragraph (1)(b) in respect of one or more universal service subsidies.
(3) A period determined by the Minister under paragraph (1)(b) must not be a part of more than one financial year.
(3A) A period determined by the Minister under paragraph (1)(b) must not end after 30 June 2012.
(4) If the Minister determines a period under paragraph (1)(b), the determination may modify the way this Part applies to carriers and carriage service providers. The modifications may include additions, omissions and substitutions.
(5) A determination under paragraph (1)(b) is a legislative instrument.
8E Meaning of alternative telecommunications services, or ATS
For the purposes of this Part, alternative telecommunications services, or ATS, are services the supply of which by a particular universal service provider the ACMA authorises for the purposes of this section.
8F Meaning of approved auditor
(1) A reference in this Part to an approved auditor is a reference to a person included in a class of persons specified in a written determination made by the ACMA for the purposes of this section.
(2) A copy of the determination must be published in the Gazette.
8G Meaning of disability
In this Part:
disability has the same meaning as in the Disability Discrimination Act 1992.
8H Meaning of designated STS area
(1) For the purposes of this Act, designated STS area means:
(a) a non‑fibre designated STS area; or
(b) a fibre designated STS area.
Note 1: For non‑fibre designated STS area, see subsection (2).
Note 2: For fibre designated STS area, see subsection (6).
Non‑fibre designated STS area
(2) The Minister may, by writing, declare that a specified service area is a non‑fibre designated STS area for the purposes of this Act.
(3) The Minister must not make a declaration under subsection (2) in relation to a service area unless:
(a) a final migration plan is in force; and
(b) the Minister is satisfied that no NBN corporation has installed, is installing, or proposes to install, optical fibre lines to premises in the service area; and
(c) the Minister has made a declaration under section 8J that, in the Minister’s opinion, there are satisfactory alternative contractual arrangements relating to standard telephone services.
(4) A declaration under subsection (2) comes into force at the later of the following times:
(a) when the declaration is made;
(b) the start of the day immediately after the last day on which a resolution referred to in subsection 42(1) of the Legislative Instruments Act 2003 disallowing the section 8J declaration could be passed.
(5) Before making a declaration under subsection (2), the Minister must consult NBN Co.
Fibre designated STS area
(6) The Minister may, by writing, declare that a specified service area is a fibre designated STS area for the purposes of this Act.
(7) The Minister must not make a declaration under subsection (6) in relation to a service area unless:
(a) a final migration plan is in force; and
(b) the Minister is satisfied that an NBN corporation has installed, or is installing, optical fibre lines to premises in the service area; and
(c) the Minister has made a declaration under section 8J that, in the Minister’s opinion, there are satisfactory alternative contractual arrangements relating to standard telephone services.
(8) A declaration under subsection (6) comes into force at the later of the following times:
(a) when the declaration is made;
(b) the start of the day immediately after the last day on which a resolution referred to in subsection 42(1) of the Legislative Instruments Act 2003 disallowing the section 8J declaration could be passed.
(9) Before making a declaration under subsection (6), the Minister must consult NBN Co.
Duty to make declaration
(10) If:
(a) the Minister has made a declaration under section 8J that, in the Minister’s opinion, there are satisfactory alternative contractual arrangements relating to standard telephone services; and
(b) the Minister has the power to make one or more declarations under subsection (2) or (6), or both, of this section;
the Minister must ensure that at least one of those declarations is made within 90 days after the section 8J declaration comes into force.
Consideration of whether to make a declaration
(11) The Minister must, at least once every 6 months during the period:
(a) beginning when the first declaration is made under this section; and
(b) ending at the earliest of the following times:
(i) if Telstra has entered into a contract under section 13 of the Telecommunications Universal Service Management Agency Act 2012 for a purpose relating to the achievement of the policy objective set out in paragraph 11(a) of that Act—when the contract ceases to be in force;
(ii) if any of the provisions of a final migration plan cease to have effect in compliance with the migration plan principles (see section 577BB of the Telecommunications Act 1997)—at the time of that cessation;
(iii) if the Minister makes a declaration under section 48 of the National Broadband Network Companies Act 2011 that, in his or her opinion, the national broadband network should be treated as built and fully operational—when the declaration is made;
consider whether to make a declaration under subsection (2) or (6) of this section.
(12) Subsection (11) does not limit the power of the Minister to make a declaration under this section at any other time.
Declarations
(13) The Minister must cause a declaration under this section to be published on the Department’s website.
(14) A declaration under this section cannot be varied or revoked.
(15) A declaration under this section is not a legislative instrument.
8J Declaration about alternative contractual arrangements relating to standard telephone services
Initial declaration
(1) During the period:
(a) beginning 18 months after the commencement of this section; and
(b) ending 23 months after the commencement of this section;
the Minister must make either of the following declarations:
(c) a declaration that, in his or her opinion, there are satisfactory alternative contractual arrangements relating to standard telephone services;
(d) a declaration that the 18‑month period starting immediately after the declaration is made is the first declaration deferral period for the purposes of this section.
(2) If:
(a) a declaration is made under paragraph (1)(c) or (d); and
(b) the declaration is not in force as at the later of the following times:
(i) the end of the period of 26 months that began at the commencement of this section;
(ii) the start of the day immediately after the last day on which a resolution referred to in subsection 42(1) of the Legislative Instruments Act 2003 disallowing the declaration could be passed;
the 18‑month period starting immediately after the declaration was made is the first declaration deferral period for the purposes of this section.
Subsequent declarations
(3) Before the end of the first declaration deferral period, the Minister must make either of the following declarations:
(a) a declaration that, in his or her opinion, there are satisfactory alternative contractual arrangements relating to standard telephone services;
(b) a declaration that the 18‑month period starting immediately after the declaration is made is the second declaration deferral period for the purposes of this section.
(4) If:
(a) a declaration is made under paragraph (3)(a) or (b); and
(b) the declaration is not in force as at the later of the following times:
(i) the end of the 3‑month period starting immediately after the end of the first declaration deferral period;
(ii) the start of the day immediately after the last day on which a resolution referred to in subsection 42(1) of the Legislative Instruments Act 2003 disallowing the declaration could be passed;
the 18‑month period starting immediately after the declaration was made is the second declaration deferral period for the purposes of this section.
(5) Before the end of the second declaration deferral period, the Minister must make either of the following declarations:
(a) a declaration that, in his or her opinion, there are satisfactory alternative contractual arrangements relating to standard telephone services;
(b) a declaration that, in his or her opinion, there are no satisfactory alternative contractual arrangements relating to standard telephone services.
Criteria for making declaration
(6) The Minister must not make a declaration under paragraph (1)(c), (3)(a) or (5)(a) unless:
(a) Telstra has entered into a contract under section 13 of the Telecommunications Universal Service Management Agency Act 2012; and
(b) the contract was entered into for a purpose relating to the achievement of the policy objective set out in paragraph 11(a) of that Act; and
(c) the contract is in force; and
(d) neither party to the contract has given notice of termination of the contract; and
(e) the Minister is satisfied that Telstra is likely to substantially comply with the contract, having regard to:
(i) Telstra’s record of compliance with its obligations under the contract; and
(ii) the nature of Telstra’s obligations under the contract; and
(iii) Telstra’s record of compliance with its obligations under this Part, to the extent that the obligations relate to the service obligation mentioned in paragraph 9(1)(a); and
(iv) Telstra’s record of compliance with its obligations under Part 5; and
(v) such other matters (if any) as the Minister considers relevant; and
(f) the Minister has obtained advice from:
(i) the ACMA; and
(ii) TUSMA;
about the making of the declaration.
(7) Subparagraphs (6)(e)(iii) and (iv) do not apply to an act, omission, matter or thing that occurs before the commencement of this section.
(8) Subsection (6) does not limit the matters to which the Minister may have regard in making a declaration under this section.
Declarations
(9) A declaration under this section cannot be varied or revoked.
(10) A declaration under this section is a legislative instrument.
8K Declaration about alternative contractual arrangements relating to payphones
Initial declaration
(1) During the period:
(a) beginning 18 months after the commencement of this section; and
(b) ending 23 months after the commencement of this section;
the Minister must make either of the following declarations:
(c) a declaration that, in his or her opinion, there are satisfactory alternative contractual arrangements relating to payphones;
(d) a declaration that the 18‑month period starting immediately after the declaration is made is the first declaration deferral period for the purposes of this section.
(2) If:
(a) a declaration is made under paragraph (1)(c) or (d); and
(b) the declaration is not in force as at the later of the following times:
(i) the end of the period of 26 months that began at the commencement of this section;
(ii) the start of the day immediately after the last day on which a resolution referred to in subsection 42(1) of the Legislative Instruments Act 2003 disallowing the declaration could be passed;
the 18‑month period starting immediately after the declaration was made is the first declaration deferral period for the purposes of this section.
Subsequent declarations
(3) Before the end of the first declaration deferral period, the Minister must make either of the following declarations:
(a) a declaration that, in his or her opinion, there are satisfactory alternative contractual arrangements relating to payphones;
(b) a declaration that the 18‑month period starting immediately after the declaration is made is the second declaration deferral period for the purposes of this section.
(4) If:
(a) a declaration is made under paragraph (3)(a) or (b); and
(b) the declaration is not in force as at the later of the following times:
(i) the end of the 3‑month period starting immediately after the end of the first declaration deferral period;
(ii) the start of the day immediately after the last day on which a resolution referred to in subsection 42(1) of the Legislative Instruments Act 2003 disallowing the declaration could be passed;
the 18‑month period starting immediately after the declaration was made is the second declaration deferral period for the purposes of this section.
(5) Before the end of the second declaration deferral period, the Minister must make either of the following declarations:
(a) a declaration that, in his or her opinion, there are satisfactory alternative contractual arrangements relating to payphones;
(b) a declaration that, in his or her opinion, there are no satisfactory alternative contractual arrangements relating to payphones.
Criteria for making declaration
(6) The Minister must not make a declaration under paragraph (1)(c), (3)(a) or (5)(a) unless:
(a) Telstra has entered into a contract under section 13 of the Telecommunications Universal Service Management Agency Act 2012; and
(b) the contract was entered into for a purpose relating to the achievement of the policy objective set out in paragraph 11(b) of that Act; and
(c) the contract is in force; and
(d) neither party to the contract has given notice of termination of the contract; and
(e) the Minister is satisfied that Telstra is likely to substantially comply with the contract, having regard to:
(i) Telstra’s record of compliance with its obligations under the contract; and
(ii) the nature of Telstra’s obligations under the contract; and
(iii) Telstra’s record of compliance with its obligations under this Part, to the extent that the obligations relate to the service obligation mentioned in paragraph 9(1)(b); and
(iv) such other matters (if any) as the Minister considers relevant; and
(f) the Minister has obtained advice from:
(i) the ACMA; and
(ii) TUSMA;
about the making of the declaration.
(7) Subparagraph (6)(e)(iii) does not apply to an act, omission, matter or thing that occurs before the commencement of this section.
(8) Subsection (6) does not limit the matters to which the Minister may have regard in making a declaration under this section.
Declarations
(9) A declaration under this section cannot be varied or revoked.
(10) A declaration under this section is a legislative instrument.
Division 2—Universal service obligation
Subdivision A—What is the universal service obligation?
9 Universal service obligation
(1) For the purposes of this Act, the universal service obligation is the obligation:
(a) to ensure that standard telephone services are reasonably accessible to all people in Australia (other than people in designated STS areas) on an equitable basis, wherever they reside or carry on business; and
(b) to ensure that payphones are reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business.
(2) The obligation mentioned in paragraph (1)(a) includes the obligation to supply standard telephone services to people in Australia (other than people in designated STS areas) on request.
(2A) The obligation mentioned in paragraph (1)(b) includes the obligation to supply, install and maintain payphones in Australia.
(2AA) If:
(a) the Minister makes a declaration under section 8K that, in the Minister’s opinion, there are satisfactory alternative contractual arrangements relating to payphones; and
(b) neither House of the Parliament passes a resolution under section 42 of the Legislative Instruments Act 2003 disallowing the declaration;
an obligation does not arise under paragraph (1)(b) or subsection (2A) of this section after the last day on which such a resolution could have been passed by a House of the Parliament.
(2C) An obligation does not arise under paragraph (1)(a) or subsection (2) in relation to the supply of a standard telephone service to a person on request unless the request complies with the requirements (if any) set out in a determination under subsection (2D).
(2D) The Minister may, by legislative instrument, determine requirements for the purposes of subsection (2C).
(2E) An obligation does not arise under paragraph (1)(a) or subsection (2) in relation to the supply of a standard telephone service in the circumstances (if any) specified in a determination under subsection (3).
(3) The Minister may, by legislative instrument, determine circumstances for the purposes of subsection (2E).
(4) An obligation does not arise under paragraph (1)(a) or subsection (2) in relation to particular equipment, goods or services the supply of which is treated under section 9E as the supply of a standard telephone service if the customer concerned requests not to be supplied with the equipment, goods or services.
(6) To avoid doubt, an obligation arising under paragraph (1)(a) or subsection (2) in relation to customer equipment requires the customer concerned to be given the option of hiring the equipment.
9B What is a service obligation?
(1) Unless the Minister makes a determination under subsection (2), each of the following is a service obligation:
(a) the obligation referred to in paragraph 9(1)(a) (dealing with the standard telephone services);
(b) the obligation referred to in paragraph 9(1)(b) (dealing with payphones).
(2) The Minister may, by legislative instrument, determine the service obligations by dividing the universal service obligation in another way.
(3) The determination must also specify, in respect of each service obligation, what must be supplied or done in order to fulfil the service obligation.
9C Payphones
For the purposes of this Part, a payphone is a fixed telephone that:
(a) is a means by which a standard telephone service is supplied; and
(b) when in normal working order, cannot be used to make a telephone call (other than a free call or a call made with operator assistance) unless, as payment for the call, or to enable payment for the call to be collected:
(i) money, or a token, card or other object, has been put into a device that forms part of, is attached to, or is located near, the telephone; or
(ii) an identification number, or a code or other information (in numerical or any other form) has been input into a device that forms part of, is attached to, or is located near, the telephone; or
(iii) a prescribed act has been done.
9E Supply of standard telephone services
(1) A reference in this Part to the supply of a standard telephone service includes a reference to the supply of:
(a) if the regulations prescribe customer equipment for the purposes of this paragraph—whichever of the following is applicable:
(i) that customer equipment;
(ii) if other customer equipment is supplied, instead of the first‑mentioned customer equipment, in order to comply with the Disability Discrimination Act 1992—that other customer equipment; and
(b) if paragraph (a) does not apply—whichever of the following is applicable:
(i) a telephone handset that does not have switching functions;
(ii) if other customer equipment is supplied, instead of such a handset, in order to comply with the Disability Discrimination Act 1992—that other customer equipment; and
(c) other goods of a kind specified in the regulations; and
(d) services of a kind specified in the regulations;
where the equipment, goods or services, as the case may be, are for use in connection with the standard telephone service.
(2) A reference in this Part to the supply of a standard telephone service includes a reference to the supply, to a person with a disability, of:
(a) customer equipment of a kind specified in the regulations; and
(b) other goods of a kind specified in the regulations; and
(c) services of a kind specified in the regulations;
where the equipment, goods or services, as the case may be, are for use in connection with the standard telephone service.
Subdivision B—Universal service areas
9G Universal service areas
(1) The Minister may make a written determination that a service area, determined in any way the Minister considers appropriate, is a universal service area in respect of one or more specified service obligations.
Note: In some circumstances, the Minister will be taken to have made a determination under this section: see subsections (3), (4), (5) and (6), and section 12E.
(2) In determining universal service areas, the Minister must ensure that no universal service area in respect of a service obligation overlaps to any extent with any other universal service area in respect of that service obligation.
(3) If, at a particular time, any areas of Australia (other than designated STS areas) are not within a universal service area, covered by a determination under subsection (1), in respect of the service obligation mentioned in paragraph 9B(1)(a):
(a) those areas together constitute at that time a single universal service area in respect of that service obligation; and
(b) the Minister is taken to have made a determination under subsection (1) to that effect.
(4) If, at a particular time, one or more of the universal service areas, in respect of which the Minister is taken to have made a determination because of subsection (3), cover the same areas of Australia, then despite that subsection:
(a) those areas together constitute at that time a single universal service area in respect of the service obligation mentioned in paragraph 9B(1)(a); and
(b) the Minister is taken to have made a determination under subsection (1) to that effect.
(5) If, at a particular time, any areas of Australia are not within a universal service area, covered by a determination under subsection (1), in respect of the service obligation mentioned in paragraph 9B(1)(b):
(a) those areas together constitute at that time a single universal service area in respect of that service obligation; and
(b) the Minister is taken to have made a determination under subsection (1) to that effect.
(6) If, at a particular time, one or more of the universal service areas, in respect of which the Minister is taken to have made a determination because of subsection (5), cover the same areas of Australia, then despite that subsection:
(a) those areas together constitute at that time a single universal service area in respect of the service obligation mentioned in paragraph 9B(1)(b); and
(b) the Minister is taken to have made a determination under subsection (1) to that effect.
(7) A determination under this section is a legislative instrument.
(8) Despite subsection (7), a determination that the Minister is taken to have made is not a legislative instrument.
(9) The Minister must cause a determination that the Minister is taken to have made to be published on the Department’s website.
9H Effect of determination
(1) A determination under section 9G takes effect on the day specified in the determination. That day must not be before the day on which notice of the determination is published in the Gazette.
(2) If the determination is expressed to cease to have effect at a specified time, the determination ceases to have effect at that time.
(3) A variation or revocation of a determination under section 9G takes effect on the day specified for the purpose in the instrument of variation or revocation. That day must not be before notice of the instrument is published in the Gazette.
9J Transitional arrangements may be determined
(1) If the Minister revokes a determination under section 9G, the Minister may determine in writing arrangements to deal with any issues of a transitional nature that may arise as a result of the revocation.
(2) A copy of a determination under subsection (1) must be published in the Gazette.
Division 4—The arrangements for fulfilling the universal service obligation
11 The arrangements that apply to universal service areas
(1) This section sets out the arrangements for the fulfilment of the universal service obligation by universal service providers.
(2) The default arrangements set out in Division 5 apply to each universal service area in respect of a service obligation.
(3) If the Minister determines under section 11C, for a universal service area in respect of a service obligation, that the obligation is a contestable service obligation, then:
(a) the default arrangements set out in Division 5 apply to the area; and
(b) the standard contestability arrangements set out in Division 6 apply to the area in respect of the contestable service obligation.
(4) If the Minister determines under Division 7 that alternative arrangements apply to a universal service area in respect of a service obligation (whether or not it is a contestable service obligation), then:
(a) those alternative arrangements apply to the area; and
(b) the default arrangements set out in Division 5 apply to the area except to the extent that the determination modifies the way those arrangements apply, or excludes them from applying, to the area.
11A Universal service providers
(1) For the purposes of this Part, a universal service provider means:
(a) a primary universal service provider (see section 12A); or
(b) a competing universal service provider (see section 13A).
(2) For the purposes of this Part, a person who is a primary universal service provider under a determination that is in force under section 12A, at any time during a claim period, is:
(a) a universal service provider for the claim period; and
(b) a primary universal service provider for the claim period.
(3) For the purposes of this Part, a person who is approved as a competing universal service provider under section 13B, at any time during a claim period, is:
(a) a universal service provider for the claim period; and
(b) a competing universal service provider for the claim period.
11B Former universal service provider may be required to provide information to current universal service provider
(1) This section applies if:
(a) either:
(i) the Minister determines under section 12A that a carrier or carriage service provider (the current provider) is the primary universal service provider for a universal service area (the relevant area) in respect of a service obligation; or
(ii) the ACMA approves a carrier or carriage service provider (the current provider) under section 13B as a competing universal service provider for a universal service area (the relevant area) in respect of a contestable service obligation; and
(b) another person, who is or was a universal service provider for the area in respect of the obligation, is determined to be a former provider under subsection (2B).
Note: The Minister may be taken to have made a determination under section 12A if an agreement is made under section 56 or 57 of the Telstra Corporation Act 1991: see section 12E.
(2) This section also applies if:
(a) any of the following applies:
(i) the Minister revokes or varies a determination under section 12A so that a person (the former provider) ceases to be a universal service provider for a universal service area (the relevant area) in respect of a service obligation; or
(ii) the ACMA revokes or varies an approval under section 13B so that a person (the former provider) ceases to be a universal service provider for a universal service area (the relevant area) in respect of a service obligation; or
(iii) a person (the former provider) otherwise ceases to be a universal service provider for a universal service area (the relevant area) in respect of a service obligation; and
(b) another person (the current provider), who was also a universal service provider for the relevant area in respect of the service obligation, continues to be a universal service provider for the area in respect of that obligation:
(i) if subparagraph (a)(i) or (ii) applies—after the revocation or variation; or
(ii) if subparagraph (a)(iii) applies—after the cessation.
(2A) Subsections (1) and (2) can apply before the determination, revocation or variation under section 12A or the approval, revocation or variation under section 13B takes effect.
(2B) The Minister may determine in writing that a person is a former provider for the purposes of this section.
(3) The current provider may, by written notice given to the former provider, require the former provider to give to the current provider specified information of the kind referred to in subsection (4). A notice of this kind cannot be given more than 6 months after:
(a) if subsection (1) applies—the later of the following days:
(i) the day on which the current provider became a universal service provider for the relevant area; or
(ii) the day on which the determination under section 12A was made, or the approval under section 13B was given, (as the case may be) in respect of the current provider; or
(b) if subsection (2) applies—the day on which the former provider ceases to be a universal service provider for the relevant area.
(4) The information that may be required to be given must be information that will assist the current provider in doing something that the current provider is or will be required or permitted to do by or under a provision of this Part. The notice must identify the doing of that thing as the purpose for which the information is required.
Note 1: If, for example, information about service location and customer contact details will assist the current provider in fulfilling its obligation under subsection 12C(1), the former provider may be required to provide that kind of information.
Note 2: See also subsection (6), which allows the Minister to determine that a specified kind of information is information referred to in this subsection.
(5) If a requirement made by a notice under subsection (3) is reasonable, the former provider must comply with the requirement as soon as practicable after receiving the notice. However, if the requirement is unreasonable, the former provider does not have to comply with it.
(6) The Minister may, by legislative instrument, make a determination to the effect that, either generally or in a particular case, information of a kind specified in the determination is taken to be information that will assist a person in doing a specified thing that the person is or will be required or permitted to do by or under a provision of this Part. The determination has effect accordingly.
(6A) If a former provider has been given notice of a requirement under subsection (3), the ACMA may, in writing, direct the former provider to comply with the requirement or with specified aspects of the requirement. The former provider must comply with the direction.
(6B) In deciding whether to give a direction under subsection (6A), the ACMA must consider whether the requirement under subsection (3) is reasonable.
11C Determination of contestable service obligation
(1) The Minister may, by legislative instrument, determine, for a universal service area in respect of a service obligation, that the obligation is a contestable service obligation.
Note 1: This means that the standard contestability arrangements apply to the area in respect of the contestable service obligation (see subsection 11(3)).
Note 2: The Minister can make determinations under this section initially only in relation to pilot areas (see section 11F).
(2) The Minister must give to the ACMA a copy of each determination made under this section.
11D Effect of determination
(1) A determination under section 11C takes effect on the day specified in the determination. That day must not be before the day on which notice of the determination is published in the Gazette.
(2) If a determination under section 11C is expressed to cease to have effect at a specified time, the determination ceases to have effect at that time.
(3) A variation or revocation of a determination under section 11C takes effect on the day specified for the purpose in the instrument of variation or revocation. That day must not be before the day on which notice of the instrument is published in the Gazette.
11E Transitional arrangements may be determined
(1) If the Minister revokes a determination under section 11C, the Minister may determine in writing arrangements to deal with any issues of a transitional nature that may arise as a result of the revocation.
(2) A copy of a determination under subsection (1) must be published in the Gazette.
11F Section 11C temporarily limited to pilot areas
(1) Until the Minister has done both of the following, the Minister can make determinations under section 11C only in relation to pilot areas (as defined in subsection (2)):
(a) received a comprehensive report, following a public inquiry by the ACMA, on whether a net benefit has accrued from the operation, for a period not less than 12 months, of the standard contestability arrangements in each of the pilot areas;
(b) caused the report to be tabled in each House of the Parliament within 10 sitting days of that House after the Minister receives the report.
(2) A pilot area is an area determined in writing by the Minister for the purposes of this section. The Minister may determine a maximum of 2 pilot areas and cannot later change the boundaries of a pilot area.
(3) Before the Minister can make any determination under section 11C in relation to a pilot area, the Minister must have determined under section 9G one or more universal service areas that cover the whole of the pilot area.
(4) A copy of a determination under subsection (2) must be published in the Gazette.
Division 5—The default arrangements: primary universal service providers
Subdivision A—What are the default arrangements?
12 The default arrangements
The default arrangements consist of the arrangements set out in this Division.
Note: These apply to each universal service area except to the extent that a determination of alternative arrangements modifies the way they apply, or excludes them from applying, to the area (see subsection 11(4)).
Subdivision B—Primary universal service providers
12A Determination of primary universal service providers
(1) The Minister may determine in writing that a specified carrier or carriage service provider is the primary universal service provider for a universal service area in respect of a service obligation.
(2) The Minister may determine:
(a) different primary universal service providers in respect of different service obligations for the same universal service area; and
(b) the same person as the primary universal service provider for one or more universal service areas in respect of one or more service obligations.
(3) In exercising his or her powers under this section, the Minister must ensure that at all times there is one primary universal service provider, in respect of each service obligation, for each universal service area.
(4) In deciding whether to make a determination that a person is a primary universal service provider, the Minister is limited to considering factors that are relevant to achieving the objects of this Act.
(5) The Minister must give to the person and to the ACMA a copy of the determination.
(6) A determination under this section is a legislative instrument.
Note: A determination that the Minister is taken to have made under this section because of section 12D or 12E is not a legislative instrument (see subsections 12D(2) and 12E(6)).
12B Effect of determination
(1) A determination under section 12A takes effect on the day specified in the determination. That day must not be before the day on which notice of the determination is published in the Gazette.
(2) If such a determination is expressed to cease to have effect at a specified time, the determination ceases to have effect at that time.
(3) A variation or revocation of a determination under section 12A takes effect on the day specified for the purpose in the instrument of variation or revocation. That day must not be before notice of the instrument is published in the Gazette.
(4) If the Minister revokes a determination under section 12A, the Minister may determine in writing arrangements to deal with any issues of a transitional nature that may arise as a result of the revocation.
(5) A copy of a determination under subsection (4) must be published in the Gazette.
12C Obligations of primary universal service providers
(1) A primary universal service provider for a universal service area in respect of a service obligation must:
(a) fulfil that service obligation, so far as it relates to that area; and
(b) comply with:
(i) the provider’s approved policy statement; and
(ii) the approved standard marketing plan of the provider that covers that area in respect of that service obligation; and
(iii) the approved ATS marketing plan (if any) of the provider that covers that area in respect of that service obligation.
Note 1: For the meaning of approved policy statement and approved standard marketing plan, see section 12F.
Note 2: For the meaning of approved ATS marketing plan, see section 12P.
(1A) A primary universal service provider for a universal service area in respect of a service obligation, who fulfils that service obligation by supplying alternative telecommunications services in accordance with an approved ATS marketing plan, is taken to have fulfilled any other obligation that arises under this Act because of that service obligation to the extent that the other obligation applies to the supply of alternative telecommunications services.
(2) The ACMA may determine in writing requirements that a primary universal service provider must comply with if the provider intends to cease supplying alternative telecommunications services in accordance with an approved ATS marketing plan. A copy of the determination must be given to the provider.
(3) The provider must comply with those requirements (as well as any requirements in the plan).
12D Transitional: when Telstra is taken to be a primary universal service provider
(1) Until:
(a) a determination of a primary universal service provider under section 12A; or
(b) a deemed determination of a primary universal service provider under section 12E;
takes effect for the first time for a universal service area in respect of a service obligation, the Minister is taken to have made a determination under section 12A that Telstra is the primary universal service provider for that area in respect of that service obligation.
(2) Despite subsection 12A(6), the determination that the Minister is taken to have made is not a legislative instrument. Instead, a notice must be published in the Gazette to the effect that Telstra is the primary universal service provider for the area in respect of that service obligation.
12E Effect of certain agreements under the Telstra Corporation Act 1991
(1) This section applies to agreements under section 56 or 57 of the Telstra Corporation Act 1991 made between the Commonwealth and a person (including a State or Territory) that are expressed to also have effect for the purposes of:
(a) this subsection; or
(b) subsection 20(2B) of this Act as in force immediately before the commencement of Schedule 1 to the Telecommunications (Consumer Protection and Service Standards) Amendment Act (No. 2) 2000.
(2) The Minister is taken to have properly made:
(a) a determination under section 9G that each of the areas, specified in the agreement as a universal service area in respect of a service obligation, is a universal service area in respect of that service obligation for the purposes of this Act; and
(b) a determination under section 12A that the person is a primary universal service provider for each of the areas, in respect of the service obligation or obligations, specified in the agreement.
Those determinations are referred to in this section as deemed determinations.
(3) The deemed determinations take effect as follows:
(a) if the commencement date (see subsection (4)) is the same for each of the areas—they take effect on that commencement date; or
(b) if there are different commencement dates for different areas—they take effect for those different areas on those different dates.
(4) The commencement date or dates for an area is or are as follows:
(a) if the agreement specifies a single date as the commencement date for the area—subject to paragraph (c), the commencement date for the area is the specified date;
(b) if the agreement specifies different dates as the commencement dates for different areas—subject to paragraph (c), the commencement dates for those areas are the specified dates;
(c) if a determination under subsection (5) specifies a date as the commencement date for the area or areas—the commencement date for the area or areas is the specified date (regardless of any dates specified in the agreement).
A commencement date cannot be a date before the agreement is made, or before the commencement of this subsection or the subsection referred to in paragraph (1)(a).
(5) The Minister may make a written determination specifying a date as the commencement date for the area or areas specified in the agreement as universal service areas. A copy of the determination must be published in the Gazette.
(6) Despite subsections 9G(7) and 12A(6), the deemed determinations are not legislative instruments. Instead, a notice must be published in the Gazette that:
(a) states that the person is a primary universal service provider for the area or areas concerned, in respect of the service obligation or obligations concerned; and
(b) includes the relevant commencement date or dates.
(7) However, a variation or revocation of a deemed determination is a legislative instrument.
(8) This section applies to an agreement whether made before, on or after the commencement of Schedule 1 to the Telecommunications (Consumer Protection and Service Standards) Amendment Act (No. 2) 2000.
12EA Exclusive access to universal service subsidy
(1) If a person is a primary universal service provider for a universal service area in respect of a service obligation because of subsection 12E(2):
(a) the Minister must not determine any other person to be a primary universal service provider; and
(b) the ACMA must not approve any other person as a competing universal service provider;
for that area in respect of that service obligation.
(2) Subsection (1) applies while the agreement referred to in subsection 12E(2) remains in force in relation to that area but no longer than 3 years after the commencement date for the area.
(3) This section applies despite anything else in this Part.
Subdivision BA—Standard telephone service requirements
12EB Performance standards
Determination
(1) The Minister may make a written determination setting out standards to be complied with by a primary universal service provider in relation to any or all of the following matters:
(a) the terms and conditions of the supply of a standard telephone service to a customer, other than price‑related terms and conditions;
(b) the reliability of a standard telephone service supplied to a customer;
(c) the supply of a temporary standard telephone service to a customer;
(d) the maximum period within which a primary universal service provider must supply a standard telephone service following the making of a request by a prospective customer;
(e) the maximum period within which a primary universal service provider must rectify a fault or service difficulty relating to a standard telephone service following the making of a report by a customer about the fault or service difficulty;
(f) any other matter concerning the supply, or proposed supply, of a standard telephone service to a customer or prospective customer.
(2) A determination under subsection (1) may be of general application or may be limited as provided in the determination.
(3) Subsection (2) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.
Compliance
(4) A primary universal service provider must comply with a standard in force under subsection (1).
Determination prevails over inconsistent instruments
(5) Each of the following instruments:
(a) an approved policy statement for a primary universal service provider;
(b) an approved standard marketing plan for a primary universal service provider;
has no effect to the extent to which the instrument is inconsistent with a determination in force under subsection (1).
Service supplied in fulfilment of the universal service obligation
(6) This section does not apply to a standard telephone service unless the service is supplied, or proposed to be supplied, in fulfilment of the universal service obligation.
Note: See also section 6A (when a standard telephone service is supplied in fulfilment of the universal service obligation).
Determination is a legislative instrument
(7) A determination under subsection (1) is a legislative instrument.
12EC Performance benchmarks
Determination
(1) The Minister may make a written determination setting out standards to be complied with by a primary universal service provider in relation to any or all of the following matters:
(a) the terms and conditions of the supply of a standard telephone service to a customer, other than price‑related terms and conditions;
(b) the reliability of a standard telephone service supplied to a customer;
(c) the supply of a temporary standard telephone service to a customer;
(d) the maximum period within which a primary universal service provider must supply a standard telephone service following the making of a request by a prospective customer;
(e) the maximum period within which a primary universal service provider must rectify a fault or service difficulty relating to a standard telephone service following the making of a report by a customer about the fault or service difficulty;
(f) any other matter concerning the supply, or proposed supply, of a standard telephone service to a customer or prospective customer.
(2) A determination under subsection (1) may be of general application or may be limited as provided in the instrument.
(3) Subsection (2) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.
Determination prevails over inconsistent instruments
(4) Each of the following instruments:
(a) an approved policy statement for a primary universal service provider;
(b) an approved standard marketing plan for a primary universal service provider;
has no effect to the extent to which the instrument is inconsistent with a determination in force under subsection (1).
Determination is a legislative instrument
(5) A determination under subsection (1) is a legislative instrument.
Performance benchmarks
(6) The Minister may, by legislative instrument, set minimum benchmarks in relation to compliance by a primary universal service provider with a standard in force under subsection (1).
(7) An instrument under subsection (6) may be of general application or may be limited as provided in the instrument.
(8) Subsection (7) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.
Provider must meet or exceed minimum benchmarks
(9) A primary universal service provider must meet or exceed a minimum benchmark set by an instrument under subsection (6).
Clause 1 of Schedule 1 to the Telecommunications Act 1997 does not apply to a breach of a standard
(10) Clause 1 of Schedule 1 to the Telecommunications Act 1997 does not apply to a contravention of a standard in force under subsection (1).
Note: Clause 1 of Schedule 1 to the Telecommunications Act 1997 requires carriers to comply with this Act.
Clause 1 of Schedule 2 to the Telecommunications Act 1997 does not apply to a breach of a standard
(11) Clause 1 of Schedule 2 to the Telecommunications Act 1997 does not apply to a contravention of a standard in force under subsection (1).
Note: Clause 1 of Schedule 2 to the Telecommunications Act 1997 requires carriage service providers to comply with this Act.
Subdivision BB—Payphone requirements
12ED Performance standards
Determination
(1) The Minister may make a written determination setting out standards to be complied with by a primary universal service provider in relation to any or all of the following matters:
(a) the characteristics of a payphone carriage service;
(b) the supply, installation or maintenance of a payphone;
(c) the supply of a payphone carriage service;
(d) the reliability of a payphone;
(e) the reliability of a payphone carriage service;
(f) the maximum period within which a primary universal service provider must rectify a fault or service difficulty relating to a payphone following the making of a report about a fault or service difficulty;
(g) the maximum period within which a primary universal service provider must rectify a fault or service difficulty relating to a payphone carriage service following the making of a report about a fault or service difficulty;
(h) the handling of requests for the removal of a payphone;
(i) any other matter concerning:
(i) the supply, installation or maintenance of a payphone; or
(ii) the supply of a payphone carriage service.
(2) A determination under subsection (1) may be of general application or may be limited as provided in the determination.
(3) Subsection (2) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.
Compliance
(4) A primary universal service provider must comply with a determination under subsection (1).
Determination prevails over inconsistent instruments
(5) Each of the following instruments:
(a) an approved policy statement for a primary universal service provider;
(b) an approved standard marketing plan for a primary universal service provider;
has no effect to the extent to which the instrument is inconsistent with a determination in force under subsection (1).
Determination is a legislative instrument
(6) A determination under subsection (1) is a legislative instrument.
12EE Performance benchmarks
Determination
(1) The Minister may make a written determination setting out standards to be complied with by a primary universal service provider in relation to any or all of the following matters:
(a) the characteristics of a payphone carriage service;
(b) the supply, installation or maintenance of a payphone;
(c) the supply of a payphone carriage service;
(d) the reliability of a payphone;
(e) the reliability of a payphone carriage service;
(f) the maximum period within which a primary universal service provider must rectify a fault or service difficulty relating to a payphone following the making of a report about a fault or service difficulty;
(g) the maximum period within which a primary universal service provider must rectify a fault or service difficulty relating to a payphone carriage service following the making of a report about a fault or service difficulty;
(h) the handling of requests for the removal of a payphone;
(i) any other matter concerning:
(i) the supply, installation or maintenance of a payphone; or
(ii) the supply of a payphone carriage service.
(2) A determination under subsection (1) may be of general application or may be limited as provided in the determination.
(3) Subsection (2) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.
Determination prevails over inconsistent instruments
(4) Each of the following instruments:
(a) an approved policy statement for a primary universal service provider;
(b) an approved standard marketing plan for a primary universal service provider;
has no effect to the extent to which the instrument is inconsistent with a determination in force under subsection (1).
Determination is a legislative instrument
(5) A determination under subsection (1) is a legislative instrument.
Performance benchmarks
(6) The Minister may, by legislative instrument, set minimum benchmarks in relation to compliance by a primary universal service provider with a standard in force under subsection (1).
(7) An instrument under subsection (6) may be of general application or may be limited as provided in the instrument.
(8) Subsection (7) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.
Provider must meet or exceed minimum benchmarks
(9) A primary universal service provider must meet or exceed a minimum benchmark set by an instrument under subsection (6).
Clause 1 of Schedule 1 to the Telecommunications Act 1997 does not apply to a breach of a standard
(10) Clause 1 of Schedule 1 to the Telecommunications Act 1997 does not apply to a contravention of a standard in force under subsection (1).
Note: Clause 1 of Schedule 1 to the Telecommunications Act 1997 requires carriers to comply with this Act.
Clause 1 of Schedule 2 to the Telecommunications Act 1997 does not apply to a breach of a standard
(11) Clause 1 of Schedule 2 to the Telecommunications Act 1997 does not apply to a contravention of a standard in force under subsection (1).
Note: Clause 1 of Schedule 2 to the Telecommunications Act 1997 requires carriage service providers to comply with this Act.
12EF Rules about the location of payphones
(1) The Minister may make a determination setting out rules to be complied with by a primary universal service provider in relation to the places or areas in which payphones are to be located.
Compliance
(2) A primary universal service provider must comply with a determination under subsection (1).
(3) If a primary universal service provider complies with a determination under subsection (1), the provider is taken to have complied with an obligation under paragraph 9(1)(b) or subsection 9(2A), to the extent to which the obligation relates to the location of payphones.
Determination prevails over inconsistent instruments
(4) Each of the following instruments:
(a) an approved policy statement for a primary universal service provider;
(b) an approved standard marketing plan for a primary universal service provider;
has no effect to the extent to which the instrument is inconsistent with a determination in force under subsection (1).
Determination is a legislative instrument
(5) A determination under subsection (1) is a legislative instrument.
12EG Rules about the process for public consultation on the location or removal of payphones
(1) The Minister may make a determination setting out rules to be complied with by a primary universal service provider in relation to the process for public consultation on the location or removal of payphones.
(2) The Minister must ensure that a determination under subsection (1) provides that, if:
(a) a primary universal service provider makes a decision to remove a payphone from a particular location; and
(b) that payphone is the only payphone at that location;
then:
(c) the provider must undertake a process for public consultation on the removal of that payphone; and
(d) if, in accordance with that process, a person makes a submission to the provider—the provider must notify the person, in writing, of the outcome of that process.
Compliance
(3) A primary universal service provider must comply with a determination under subsection (1).
Determination prevails over inconsistent instruments
(4) Each of the following instruments:
(a) an approved policy statement for a primary universal service provider;
(b) an approved standard marketing plan for a primary universal service provider;
has no effect to the extent to which the instrument is inconsistent with a determination in force under subsection (1).
Determination is a legislative instrument
(5) A determination under subsection (1) is a legislative instrument.
12EH Rules about the process for resolution of complaints about the location or removal of payphones
(1) The Minister may make a determination setting out rules to be complied with by a primary universal service provider in relation to the process for resolution of complaints about the location or removal of payphones.
Compliance
(2) A primary universal service provider must comply with a determination under subsection (1).
Determination prevails over inconsistent instruments
(3) Each of the following instruments:
(a) an approved policy statement for a primary universal service provider;
(b) an approved standard marketing plan for a primary universal service provider;
has no effect to the extent to which the instrument is inconsistent with a determination in force under subsection (1).
Determination is a legislative instrument
(4) A determination under subsection (1) is a legislative instrument.
12EI Directions by the ACMA about the removal of payphones
Scope
(1) This section applies if:
(a) a primary universal service provider has made a decision to remove a payphone from a particular location; and
(b) a person notifies the ACMA, in writing, that the person objects to the removal; and
(c) the ACMA is satisfied that:
(i) the removal would breach, or has breached, a determination under subsection 12EF(1); or
(ii) the provider has breached a determination under subsection 12EG(1) in relation to the removal.
Direction
(2) If the payphone has not been removed, the ACMA may, by written notice given to the provider, direct the provider not to remove the payphone from that location.
(3) If the payphone has been removed, the ACMA may, by written notice given to the provider, direct the provider:
(a) to supply and install a payphone at that location; and
(b) to do so within the period specified in the notice.
(4) A period specified under paragraph (3)(b) must not be shorter than 30 days after the notice is given.
(5) A direction under subsection (2) or (3) must not be inconsistent with a determination under subsection 12EF(1).
Compliance
(6) A primary universal service provider must comply with a direction under subsection (2) or (3).
Direction is not a legislative instrument
(7) A direction under subsection (2) or (3) is not a legislative instrument.
Subdivision C—Policy statements and standard marketing plans of primary universal service providers
12F Meaning of expressions
(1) A draft policy statement for a primary universal service provider is a general statement of the policy the provider will apply in supplying equipment, goods or services as a primary universal service provider.
(2) A draft policy statement that has been approved by the ACMA under section 12K, and that is in force, is an approved policy statement for the primary universal service provider concerned.
(3) A draft standard marketing plan for a primary universal service provider for a universal service area in respect of a service obligation is a plan that sets out:
(a) the equipment, goods or services that the provider will supply in fulfilment of that service obligation, so far as it relates to that area; and
(b) the arrangements for supplying and marketing the equipment, goods or services;
but does not deal with alternative telecommunications services.
(4) A draft standard marketing plan that has been approved by the ACMA under section 12K, and that is in force, is an approved standard marketing plan for the primary universal service provider concerned.
(5) A draft or approved standard marketing plan may cover one or more universal service areas in respect of one or more service obligations.
12G Minister may determine requirements for drafts
(1) The Minister may, by legislative instrument, determine requirements for draft policy statements and draft standard marketing plans of primary universal service providers.
(2) These are some examples of requirements in relation to draft standard marketing plans:
(a) timeframes for the supply of specified equipment, goods or services;
(b) performance standards relating to the fulfilment of the universal service obligation;
(c) processes for advising persons about the availability, offer and supply of equipment, goods or services in the fulfilment of the universal service obligation, and the terms and conditions on which the equipment, goods or services are offered or supplied;
(d) the form of a draft standard marketing plan.
12H Obligation to submit a draft policy statement and draft standard marketing plan
Within 90 days after a person becomes a primary universal service provider for a universal service area in respect of a service obligation, the provider must give the ACMA:
(a) a draft policy statement, or draft variation of an approved policy statement; and
(b) a draft standard marketing plan, or draft variation of an approved standard marketing plan;
covering that area in respect of that service obligation.
12J Public consultation required on draft policy statement and draft standard marketing plan
(1) Before giving the ACMA a draft policy statement or draft standard marketing plan, a primary universal service provider must:
(a) publish a preliminary version of the draft and invite members of the public to make submissions to the provider about the preliminary version within a specified period (which must be at least 30 days); and
(b) give consideration to any submissions received from members of the public within that period.
(2) When giving the draft to the ACMA, the provider must include advice on the submissions considered and any changes made to the draft as a result.
(3) However, this section does not apply to a fresh draft policy statement, or fresh draft standard marketing plan, given to the ACMA by a primary universal service provider in accordance with a direction under paragraph 12M(2)(b) unless the ACMA notifies the provider in writing that it does apply to the document.
12K Approval of draft policy statement
(1) The ACMA must approve, or refuse to approve, a draft policy statement that a primary universal service provider gives to the ACMA.
(2) The ACMA must not approve the draft unless it is satisfied that the draft adequately deals with the supply of appropriate equipment, goods or services to:
(a) people with a disability; and
(b) people with special needs.
(3) If the service obligation concerned is a contestable service obligation, the ACMA must also be satisfied that the draft sets out appropriate arrangements that the provider will put in place if a competing universal service provider for the universal service area concerned in respect of that obligation ceases to supply equipment, goods or services in that area in respect of that obligation.
Note: The arrangements may, for example, deal with the transfer of customers from a competing universal service provider to the primary universal service provider.
(4) In deciding whether to approve the draft, the ACMA must also have regard to:
(a) whether the draft complies with the requirements (if any) under section 12G; and
(b) any other matters determined in writing by the Minister for the purposes of this paragraph; and
(c) such other matters as the ACMA considers relevant.
(5) A copy of a determination made for the purposes of paragraph (4)(b) must be published in the Gazette.
12L Approval of draft standard marketing plan
(1) The ACMA must approve, or refuse to approve, a draft standard marketing plan that a primary universal service provider gives to the ACMA.
(2) The ACMA must not approve the draft unless it is satisfied that:
(a) the draft specifies appropriate equipment, goods or services that the provider will supply in fulfilment of the service obligation concerned, so far as it relates to the universal service area concerned; and
(b) the draft adequately deals with how the provider will fulfil that service obligation, so far as it relates to that area; and
(c) the draft sets out appropriate terms and conditions on which the equipment, goods or services are to be supplied; and
(d) the draft sets out appropriate arrangements for the marketing of the supply of the equipment, goods or services to persons in the universal service area concerned.
(3) In deciding whether to approve the draft, the ACMA must also have regard to:
(a) whether the draft complies with the requirements (if any) under section 12G; and
(b) any other matters determined in writing by the Minister for the purposes of this paragraph; and
(c) any other matters the ACMA considers relevant.
(4) A copy of a determination made for the purposes of paragraph (3)(b) must be published in the Gazette.
12M Notice of decision
(1) The ACMA must give written notice of the ACMA’s decision whether to approve a draft policy statement, or draft standard marketing plan, to the primary universal service provider concerned.
(2) If the ACMA refuses to approve the draft, the ACMA:
(a) must give the provider written notice of the reasons for that refusal; and
(b) may, by giving written notice to the provider, direct the provider to give the ACMA, within a specified period and in specified terms, a fresh draft policy statement or fresh draft standard marketing plan as the case may be.
(3) The provider must comply with a direction under paragraph (2)(b).
(4) A copy of the notice under subsection (1) must be published in the Gazette if the decision is to approve the draft.
Subdivision D—ATS marketing plans of primary universal service providers
12P Meaning of expressions
(1) A draft ATS marketing plan for a primary universal service provider for a universal service area in respect of a service obligation is a plan that sets out:
(a) the alternative telecommunications services that the provider will supply in fulfilment of that service obligation so far as it relates to that area; and
(b) the arrangements for supplying and marketing those services.
(2) A draft ATS marketing plan that has been approved by the ACMA under section 12T, and that is in force, is an approved ATS marketing plan for the primary universal service provider concerned.
(3) Each draft or approved ATS marketing plan must cover only one universal service area and only one service obligation. However, the ACMA may determine in writing that this subsection does not apply to:
(a) draft or approved ATS marketing plans generally; or
(b) a draft or approved ATS marketing plan of a particular primary universal service provider.
(4) A copy of a determination made under subsection (3) must be published in the Gazette.
12Q Minister may determine requirements for drafts
(1) The Minister may, by legislative instrument, determine requirements for draft ATS marketing plans of primary universal service providers.
(2) These are some examples of requirements:
(a) timeframes for the supply of specified equipment, goods or services;
(b) performance standards relating to the fulfilment of the universal service obligation;
(c) processes for advising persons about the availability, offer and supply of equipment, goods or services in the fulfilment of the universal service obligation, and the terms and conditions on which the equipment, goods or services are offered or supplied;
(d) the form of a draft ATS marketing plan.
12R Primary universal service provider may submit a draft ATS marketing plan
(1) A primary universal service provider for a universal service obligation in respect of a service obligation, who wishes to supply alternative telecommunications services in fulfilment of that service obligation so far as it relates to that area, may give to the ACMA a draft ATS marketing plan covering the supply of those services.
(2) To avoid doubt, the primary universal service provider is still required to fulfil that service obligation so far as it relates to that area in accordance with section 9.
12S Public consultation required on draft ATS marketing plan
(1) Before deciding whether to approve a draft ATS marketing plan, the ACMA must require the provider concerned:
(a) to publish a preliminary version of the draft and invite members of the public to make submissions to the applicant about the preliminary version within a specified period (which must be at least 30 days); and
(b) to give consideration to any submissions received from members of the public within that period; and
(c) to advise the ACMA on those submissions and any changes made to the draft as a result.
(2) Subsection (1) applies only if a draft ATS marketing plan is materially different from an ATS marketing plan previously approved by the ACMA.
12T Approval of draft ATS marketing plan
(1) The ACMA must approve, or refuse to approve, a draft ATS marketing plan that a primary universal service provider gives to the ACMA.
(2) The ACMA must not approve the draft unless it is satisfied that:
(a) the draft specifies appropriate equipment, goods or services that the provider will supply in supplying the alternative telecommunications services; and
(b) the draft adequately deals with how the provider will supply alternative telecommunications services in fulfilment of the service obligation concerned, so far as it relates to the area concerned; and
(c) the alternative telecommunications services are of general appeal and are appropriate for fulfilling that service obligation, so far as it relates to that area; and
(d) the draft sets out appropriate terms and conditions on which the equipment, goods or services are to be supplied; and
(e) the draft sets out appropriate arrangements for the marketing of the supply of the equipment, goods or services to persons in that area; and
(ea) the draft includes a requirement that, before entering into an agreement to supply a person with alternative telecommunications services, the provider must give to the person information about the substantive differences between:
(i) what is to be supplied under the draft in fulfilment of the service obligation concerned, so far as it relates to the area concerned; and
(ii) what would be supplied under the provider’s draft standard marketing plan or approved standard marketing plan in fulfilment of the same service obligation, so far as it relates to the same area; and
(f) the draft sets out appropriate procedures that the provider will comply with if the provider ceases to supply alternative telecommunications services in fulfilment of that service obligation, so far as it relates to that area; and
(g) the requirements of section 12S have been met.
(3) The procedures referred to in paragraph (2)(f) must include the giving of at least 45 days’ notice to the ACMA, or such other notice as the ACMA determines in writing is adequate for the purposes of that paragraph.
(4) In deciding whether to approve the draft, the ACMA must also have regard to:
(a) whether the draft complies with the requirements (if any) under section 12Q; and
(b) any other matters determined in writing by the Minister for the purposes of this paragraph; and
(c) any other matters the ACMA considers relevant.
(5) A copy of a determination made for the purposes of paragraph (2)(f) or (4)(b) must be published in the Gazette.
12U Notice of decision
(1) The ACMA must give the provider written notice of the ACMA’s decision on whether to approve the draft ATS marketing plan.
(2) If the ACMA refuses to approve the draft, the ACMA must give the provider written notice of the reasons for that refusal.
(3) A copy of a notice under subsection (1) must be published in the Gazette, if the decision is to approve the draft.
Subdivision E—Replacement, variation and revocation of policy statements, standard marketing plans and ATS marketing plans
12V Replacement of approved policy statement, approved standard marketing plan or approved ATS marketing plan
(1) An approved policy statement for a primary universal service provider ceases to be in force if a later draft policy statement, that is expressed to replace it, becomes an approved policy statement.
(2) An approved standard marketing plan for a primary universal service provider ceases to be in force if a later draft standard marketing plan, that is expressed to replace it, becomes an approved standard marketing plan.
(3) An approved ATS marketing plan for a primary universal service provider ceases to be in force if a later draft ATS marketing plan, that is expressed to replace it, becomes an approved ATS marketing plan.
12W Variation of approved policy statement, approved standard marketing plan or approved ATS marketing plan
(1) This section applies if:
(a) an approved policy statement for a primary universal service provider (the current statement) is in force; or
(b) an approved standard marketing plan for a primary universal service provider (the current plan) is in force; or
(c) an approved ATS marketing plan for a primary universal service provider (the current plan) is in force;
and the provider gives the ACMA a draft variation of the current statement or current plan.
(2) The ACMA must:
(a) approve the variation; or
(b) refuse to approve the variation.
(3) Before deciding whether to approve the variation, the ACMA may, if the ACMA considers it appropriate, require the provider:
(a) to publish a preliminary version of the draft variation and invite members of the public to make submissions to the provider about the preliminary version within a specified period; and
(b) to give consideration to any submissions from members of the public received within that period; and
(c) to advise the ACMA on those submissions and any changes made to the draft variation as a result.
(4) The ACMA must not approve the variation unless it is satisfied that:
(a) in the case of a draft variation of an approved policy statement—if the provider were to give the ACMA a draft policy statement in the same terms as the current statement as varied, the ACMA would approve that draft; or
(b) in the case of a draft variation of an approved standard marketing plan—if the provider were to give the ACMA a draft standard marketing plan in the same terms as the current plan as varied, the ACMA would approve that draft; or
(c) in the case of a draft variation of an approved ATS marketing plan—if the provider were to give the ACMA a draft ATS marketing plan in the same terms as the current plan as varied, the ACMA would approve that draft.
12X Notice of decision
(1) After deciding whether to approve a variation under section 12W, the ACMA must give a written notice setting out the decision to the provider concerned.
(2) If the ACMA refuses to approve the variation, the ACMA must give a written notice setting out the reasons for the refusal to the provider.
(3) If the ACMA approves the variation:
(a) the current statement or plan is varied accordingly; and
(b) a copy of the notice given to the provider must be published in the Gazette, unless the variation is only of a minor technical nature.
12Y Minister may direct variation or replacement of policy statement or standard marketing plan
(1) If an approved policy statement for a primary universal service provider is in force, the Minister may give the provider a written notice requiring the provider:
(a) within a specified period and in specified terms, to give the ACMA a draft variation of the statement; or
(b) within a specified period and in specified terms, to give the ACMA a fresh draft policy statement that is expressed to replace the statement.
(2) If an approved standard marketing plan for a primary universal service provider is in force, the Minister may give the provider a written notice requiring the provider:
(a) within a specified period and in specified terms, to give the ACMA a draft variation of the plan; or
(b) within a specified period and in specified terms, to give the ACMA a fresh draft standard marketing plan that is expressed to replace the plan.
(3) A primary universal provider to whom a notice under this section is given must comply with the notice.
12Z Minister may revoke approved ATS marketing plan
(1) The Minister may, by giving written notice to a primary universal service provider, revoke the provider’s approved ATS marketing plan if the Minister considers that it is in the public interest to do so. A copy of the notice must be given to the ACMA.
(2) An approved ATS marketing plan that is revoked by the Minister ceases to be in force when the revocation takes effect.
(3) The revocation takes effect on the day specified in the notice which must be on or after the day on which the notice is given to the provider.
(4) The Minister may determine in writing arrangements to deal with issues of a transitional nature that may arise as a result of the revocation. A copy of the determination must be:
(a) given to the provider; and
(b) published in the Gazette.
(5) The provider must comply with the arrangements (if any) in a determination under subsection (4).
Division 6—The standard contestability arrangements: competing universal service providers
Subdivision A—What are the standard contestability arrangements?
13 The standard contestability arrangements
The standard contestability arrangements consist of the arrangements set out in this Division.
Note: These apply to universal service areas in respect of a contestable service obligation or obligations (see subsection 11(3)).
Subdivision B—Competing universal service providers
13A Application to be approved as a competing universal service provider
(1) A carrier or carriage service provider may apply to the ACMA for approval as a competing universal service provider for a universal service area in respect of a contestable service obligation.
(2) The application must be in the form approved in writing by the ACMA and must be accompanied by:
(a) a draft policy statement, or draft variation of an approved policy statement; and
(b) at least one of the following:
(i) a draft standard marketing plan;
(ii) a draft ATS marketing plan; and
(c) such information or documents as are required by the approved form.
Note 1: For the meaning of draft policy statement and approved policy statement, see section 13F.
Note 2: For the meaning of draft ATS marketing plan, see section 13M.
13B Approval of person as a competing universal service provider
(1) The ACMA must, within a reasonable time:
(a) approve (in writing) the applicant as a competing universal service provider for the universal service area in respect of the contestable service obligation in accordance with the application; or
(b) refuse the application and give the applicant written notice of the reasons for that refusal.
(2) The ACMA must not approve the applicant as a competing universal service provider unless:
(a) subject to subsection (3), the ACMA is satisfied that the applicant is an appropriate person to be approved as a competing universal service provider, having regard to:
(i) the applicant’s relevant technical competence and experience; and
(ii) the applicant’s commercial competence and financial standing; and
(iii) any matters determined in writing by the Minister for the purposes of this subparagraph; and
(iv) any other matters the ACMA considers relevant; and
(b) the applicant has an approved policy statement; and
(c) the applicant has either or both of the following:
(i) an approved standard marketing plan;
(ii) an approved ATS marketing plan;
covering the universal service area in respect of the contestable service obligation.
(3) If the applicant is already a competing universal service provider for a universal service area in respect of another contestable service obligation, the ACMA may, but is not required to, assume that paragraph (2)(a) is satisfied.
(4) A copy of a determination made for the purposes of subparagraph (2)(a)(iii) must be published in the Gazette.
13C Date of effect of approval, or variation or revocation of approval
(1) An approval under section 13B takes effect on the day specified in the approval. That day must be on or after the day on which the approval is given.
(2) If an approval is expressed to cease to have effect at a specified time, it ceases to have effect at that time.
(3) A variation or revocation of an approval takes effect on the day specified for the purpose in the instrument of variation or revocation. That day must be on or after the day on which the instrument is made.
(4) If the ACMA revokes an approval under section 13B, it may determine in writing arrangements to deal with any issues of a transitional nature that may arise as a result of the revocation.
(5) A copy of a determination under subsection (4) must be published in the Gazette.
13D Obligations of competing universal service providers
(1) A competing universal service provider for a universal service area in respect of a contestable service obligation must take all reasonable steps to:
(a) fulfil that service obligation, so far as it relates to that area; and
(b) comply with:
(i) the provider’s approved policy statement; and
(ii) the approved standard marketing plan (if any) of the provider that covers that area in respect of that service obligation; and
(iii) the approved ATS marketing plan (if any) of the provider that covers that area in respect of that service obligation.
Note 1: For the meaning of approved policy statement and approved standard marketing plan, see section 13F.
Note 2: For the meaning of approved ATS marketing plan, see section 13M.
(2) A competing universal service provider for a universal service area in respect of a contestable service obligation, who fulfils that service obligation by supplying alternative telecommunications services in accordance with an approved ATS marketing plan, is taken to have fulfilled any other obligation that arises under this Act because of that service obligation to the extent that the other obligation applies to the supply of alternative telecommunications services.
(3) The ACMA may determine in writing additional requirements that a competing universal service provider must comply with if the provider intends to cease fulfilling the contestable service obligation concerned, so far as it relates to the universal service area concerned, in accordance with:
(a) an approved standard marketing plan; or
(b) an approved ATS marketing plan.
(4) A copy of the determination must be given to the provider. The provider must comply with those requirements.
13E Surrender of approval as a competing universal service provider
(1) A competing universal service provider for a universal service area in respect of a contestable service obligation may, at any time, notify the ACMA that the provider intends to cease fulfilling that contestable service obligation, so far as it relates to that area.
(2) In giving the notice to the ACMA, the provider must comply with:
(a) the procedures referred to in paragraph 13K(2)(e) set out in the provider’s approved standard marketing plan; or
(b) the procedures referred to in paragraph 13Q(2)(f) set out in the provider’s approved ATS marketing plan;
whichever are applicable.
(3) After receiving the notice, the ACMA may determine in writing:
(a) the date on which the provider’s approval as a competing universal service provider in respect of that contestable service obligation ceases to have effect; and
(b) that section 13D does not apply, to the extent specified in the determination, to the provider from the day on which the ACMA received the notice or a later day specified in the determination.
(4) A copy of the determination must be:
(a) given to the provider; and
(b) published in the Gazette.
Subdivision C—Policy statements and standard marketing plans of competing universal service providers
13F Meaning of expressions
(1) A draft policy statement for an applicant for approval as a competing universal service provider is a general statement of the policy the applicant will apply in supplying equipment, goods or services as a competing universal service provider.
(2) A draft policy statement that has been approved by the ACMA under section 13J, and that is in force, is an approved policy statement for the applicant or competing universal service provider concerned.
(3) A draft standard marketing plan for an applicant for approval as a competing universal service provider for a universal service area in respect of a contestable service obligation is a plan that sets out:
(a) the equipment, goods or services that the applicant will supply in fulfilment of that contestable service obligation, so far as it relates to that area; and
(b) the arrangements for supplying and marketing the equipment, goods or services;
but does not deal with alternative telecommunications services.
(4) A draft standard marketing plan that has been approved by the ACMA under section 13K, and that is in force, is an approved standard marketing plan for the applicant or competing universal service provider concerned.
(5) Each draft or approved standard marketing plan may cover one or more universal service areas in respect of one or more contestable service obligations.
13G Minister may determine requirements for drafts
(1) The Minister may, by legislative instrument, determine requirements for draft policy statements and draft standard marketing plans of competing universal service providers.
(2) These are some examples of requirements for draft standard marketing plans:
(a) timeframes for the supply of specified equipment, goods or services;
(b) performance standards relating to the fulfilment of the universal service obligation;
(c) processes for advising persons about the availability, offer and supply of equipment, goods or services in the fulfilment of the universal service obligation, and the terms and conditions on which the equipment, goods or services are offered or supplied;
(d) the form of a draft standard marketing plan.
13H Public consultation on draft policy statement or standard marketing plan
Draft policy statement
(1) Before giving the ACMA a draft policy statement, the applicant concerned must:
(a) publish a preliminary version of the draft and invite members of the public to make submissions to the applicant about the preliminary version within a specified period (which must be at least 30 days); and
(b) give consideration to any submissions received from members of the public within that period.
(2) When giving the draft to the ACMA, the applicant must include advice on the submissions considered and any changes made to the draft as a result.
Draft standard marketing plan
(3) Before deciding whether to approve a draft standard marketing plan, the ACMA may require the applicant concerned:
(a) to publish a preliminary version of the draft and invite members of the public to make submissions to the applicant about the preliminary version within a specified period (which must be at least 30 days); and
(b) to give consideration to any submissions received from members of the public within that period; and
(c) to advise the ACMA on those submissions and any changes made to the draft as a result.
13J Approval of draft policy statement
(1) The ACMA must approve, or refuse to approve, a draft policy statement that an applicant for approval as a competing universal service provider gives to the ACMA.
(2) The ACMA must not approve the draft unless it is satisfied that the draft adequately deals with the supply of appropriate equipment, goods or services to:
(a) people with a disability; and
(b) people with special needs.
(3) The ACMA must also be satisfied that the draft sets out appropriate arrangements that the applicant will put in place if another competing universal service provider for the universal service area concerned, in respect of the contestable service obligation concerned, ceases to supply equipment, goods or services in that area in respect of that contestable service obligation.
Note: The arrangements may, for example, deal with the transfer of customers from one competing universal service provider to another.
(4) In deciding whether to approve the draft, the ACMA must also have regard to:
(a) whether the draft complies with the requirements (if any) under section 13G; and
(b) any other matters determined in writing by the Minister for the purposes of this paragraph; and
(c) such other matters as the ACMA considers relevant.
(5) A copy of a determination made for the purposes of paragraph (4)(b) must be published in the Gazette.
13K Approval of draft standard marketing plan
(1) The ACMA must approve, or refuse to approve, a draft standard marketing plan that an applicant for approval as a competing universal service provider gives to the ACMA.
(2) The ACMA must not approve the draft unless it is satisfied that:
(a) the draft specifies appropriate equipment, goods or services that the applicant will supply in fulfilment of the contestable service obligation concerned, so far as it relates to the universal service area concerned; and
(b) the draft adequately deals with how the applicant will fulfil that contestable service obligation, so far as it relates to that area; and
(c) the draft sets out appropriate terms and conditions on which the equipment, goods or services are to be supplied; and
(d) the draft sets out appropriate arrangements for the marketing of the supply of the equipment, goods or services to persons in that area; and
(e) the draft sets out appropriate procedures that the applicant will comply with if the applicant ceases:
(i) to supply any of the equipment, goods or services; or
(ii) to fulfil that contestable service obligation, so far as it relates to that area;
including the giving of at least 45 days’ notice to the ACMA, or such other notice as the ACMA determines in writing is adequate.
(3) In deciding whether to approve the draft, the ACMA must also have regard to:
(a) whether the draft complies with the requirements (if any) under section 13G; and
(b) any other matters determined in writing by the Minister for the purposes of this paragraph; and
(c) any other matters the ACMA considers relevant.
(4) A copy of a determination made for the purposes of paragraph (3)(b) must be published in the Gazette.
13L Notice of decision
(1) The ACMA must give written notice of the ACMA’s decision whether to approve a draft policy statement, or draft standard marketing plan, given to the ACMA by an applicant for approval as a competing universal service provider.
(2) If the ACMA refuses to approve the draft, the ACMA must give the applicant written notice of the reasons for that refusal.
(3) A copy of a notice under subsection (1), if the decision is to approve the draft, must be published in the Gazette.
Subdivision D—ATS marketing plans of competing universal service providers
13M Meaning of expressions
(1) A draft ATS marketing plan for an applicant for approval as a competing universal service provider for a universal service area in respect of a contestable service obligation is a plan that sets out:
(a) the alternative telecommunications services that the applicant will supply in fulfilment of that contestable service obligation, so far as it relates to that area; and
(b) the arrangements for supplying and marketing those services.
(2) A draft ATS marketing plan that has been approved by the ACMA under section 13Q, and that is in force, is an approved ATS marketing plan for the applicant or competing universal service provider concerned.
(3) Each draft or approved ATS marketing plan must cover only one universal service area and only one contestable service obligation. However, the ACMA may determine in writing that this subsection does not apply to:
(a) draft or approved ATS marketing plans generally; or
(b) a draft or approved ATS marketing plan of a particular applicant or competing universal service provider.
(4) A copy of a determination made under subsection (3) must be published in the Gazette.
13N Minister may determine requirements for drafts
(1) The Minister may, by legislative instrument, determine requirements for draft ATS marketing plans of competing universal service providers.
(2) These are some examples of requirements:
(a) timeframes for the supply of specified equipment, goods or services;
(b) performance standards relating to the fulfilment of the universal service obligation;
(c) processes for advising persons about the availability, offer and supply of equipment, goods or services in the fulfilment of the universal service obligation, and the terms and conditions on which the equipment, goods or services are offered or supplied;
(d) the form of a draft ATS marketing plan.
13P Public consultation required on draft ATS marketing plan
(1) Before deciding whether to approve a draft ATS marketing plan, the ACMA must require the applicant concerned:
(a) to publish a preliminary version of the draft and invite members of the public to make submissions to the applicant about the preliminary version within a specified period (which must be at least 30 days); and
(b) to give consideration to any submissions received from members of the public within that period; and
(c) to advise the ACMA on those submissions and any changes made to the draft as a result.
(2) Subsection (1) applies only if a draft ATS marketing plan is materially different from an ATS marketing plan previously approved by the ACMA.
13Q Approval of draft ATS marketing plan
(1) The ACMA must approve, or refuse to approve, a draft ATS marketing plan that an applicant for approval as a competing universal service provider gives to the ACMA.
(2) The ACMA must not approve the draft unless it is satisfied that:
(a) the draft specifies appropriate equipment, goods or services that the applicant will supply in supplying the alternative telecommunications services; and
(b) the draft adequately deals with how the applicant will supply alternative telecommunications services in fulfilment of the contestable service obligation concerned, so far as it relates to the universal service area concerned; and
(c) the alternative telecommunications services are of general appeal and are appropriate for fulfilling that contestable service obligation, so far as it relates to that area; and
(d) the draft sets out appropriate terms and conditions on which the equipment, goods or services are to be supplied; and
(e) the draft sets out appropriate arrangements for the marketing of the supply of the equipment, goods or services to persons within that area; and
(ea) the draft includes a requirement that, before entering into an agreement to supply a person with alternative telecommunications services, the provider must give to the person information about the substantive differences between:
(i) what is to be supplied under the draft in fulfilment of the service obligation concerned, so far as it relates to the area concerned; and
(ii) what would be supplied under the approved standard marketing plan of the relevant primary universal service provider in fulfilment of the same service obligation, so far as it relates to the same area; and
(f) the draft sets out appropriate procedures that the applicant will comply with if the applicant ceases:
(i) to supply any of the equipment, goods or services; or
(ii) to fulfil that contestable service obligation, so far as it relates to that area;
including the giving of at least 45 days’ notice to the ACMA, or such other notice as the ACMA determines in writing is adequate; and
(g) the requirements of section 13P have been met.
(3) In deciding whether to approve the draft, the ACMA must also have regard to:
(a) whether the draft complies with the requirements (if any) under section 13N; and
(b) any other matters determined in writing by the Minister for the purposes of this paragraph; and
(c) any other matters the ACMA considers relevant.
(4) A copy of a determination made for the purposes of paragraph (2)(f) or (3)(b) must be published in the Gazette.
13R Notice of decision
(1) The ACMA must give the applicant written notice of the ACMA’s decision on whether to approve the draft ATS marketing plan.
(2) If the ACMA refuses to approve the draft, the ACMA must give the applicant written notice of the reasons for that refusal.
(3) A copy of a notice under subsection (1) must be published in the Gazette, if the decision is to approve the draft.
Subdivision E—Replacement, variation and revocation of policy statements, standard marketing plans and ATS marketing plans
13S Replacement of approved policy statement, approved standard marketing plan or approved ATS marketing plan
(1) An approved policy statement for a competing universal service provider ceases to be in force if a later draft policy statement, that is expressed to replace it, becomes an approved policy statement.
(2) An approved standard marketing plan for a competing universal service provider ceases to be in force if a later draft standard marketing plan, that is expressed to replace it, becomes an approved standard marketing plan.
(3) An approved ATS marketing plan for a competing universal service provider ceases to be in force if a later draft ATS marketing plan, that is expressed to replace it, becomes an approved ATS marketing plan.
13T Variation of approved policy statement, approved standard marketing plan or approved ATS marketing plan
(1) This section applies if:
(a) an approved policy statement for a competing universal service provider (the current statement) is in force; or
(b) an approved standard marketing plan for a competing universal service provider (the current plan) is in force; or
(c) an approved ATS marketing plan for a competing universal service provider (the current plan) is in force;
and the provider gives the ACMA a draft variation of the current statement or current plan.
(2) The ACMA must:
(a) approve the variation; or
(b) refuse to approve the variation.
(3) Before deciding whether to approve the variation, the ACMA may, if the ACMA considers it appropriate, require the provider:
(a) to publish a preliminary version of the draft variation and invite members of the public to make submissions to the provider about the preliminary version within a specified period; and
(b) to give consideration to any submissions from members of the public received within that period; and
(c) to advise the ACMA on those submissions and any changes made to the draft variation as a result.
(4) The ACMA must not approve the variation unless it is satisfied that:
(a) in the case of a draft variation of an approved policy statement—if the provider were to give the ACMA a draft policy statement in the same terms as the current statement as varied, the ACMA would approve that draft; or
(b) in the case of a draft variation of an approved standard marketing plan—if the provider were to give the ACMA a draft standard marketing plan in the same terms as the current plan as varied, the ACMA would approve that draft; or
(c) in the case of a draft variation of an approved ATS marketing plan—if the provider were to give the ACMA a draft ATS marketing plan in the same terms as the current plan as varied, the ACMA would approve that draft.
13U Notice of decision
(1) After deciding whether to approve a variation under section 13T, the ACMA must give a written notice setting out the decision to the provider concerned.
(2) If the ACMA refuses to approve the variation, the ACMA must give a written notice setting out the reasons for the refusal to the provider.
(3) If the ACMA approves the variation:
(a) the current statement or plan is varied accordingly; and
(b) a copy of the notice given to the provider must be published in the Gazette, unless the variation is only of a minor technical nature.
13V Minister may revoke approved ATS marketing plan
(1) The Minister may, by giving written notice to a competing universal service provider, revoke the provider’s approved ATS marketing plan if the Minister considers that it is in the public interest to do so. A copy of the notice must be given to the ACMA.
(2) An approved ATS marketing plan that is revoked by the Minister ceases to be in force when the revocation takes effect.
(3) The revocation takes effect on the day specified in the notice which must be on or after the day on which the notice is given to the provider.
(4) The Minister may determine in writing arrangements to deal with issues of a transitional nature that may arise as a result of the revocation. A copy of the determination must be:
(a) given to the provider; and
(b) published in the Gazette.
(5) The provider must comply with the arrangements (if any) in a determination under subsection (4).
Division 7—Determination of alternative arrangements for fulfilling the universal service obligation
14 Determination of alternative arrangements
(1) The Minister may, by legislative instrument, determine that specified alternative arrangements apply to a universal service area in respect of a service obligation (whether or not it is a contestable service obligation).
(2) A determination under subsection (1) may expressly modify:
(a) the extent to which the default arrangements set out in Division 5 apply to the area; or
(b) the way in which any of the provisions in this Part apply to the area.
(3) The Minister must give to the ACMA a copy of each determination made under this section.
(5) In this section:
modify includes excluding the application of a provision entirely, as well as omitting, adding and substituting provisions.
14A Effect of determination
(1) A determination under section 14 takes effect on the day specified in the determination. That day must not be before the day on which notice of the determination is published in the Gazette.
(2) If a determination under section 14 is expressed to cease to have effect at a specified time, the determination ceases to have effect at that time.
(3) A variation or revocation of a determination under section 14 takes effect on the day specified for the purpose in the instrument of variation or revocation. That day must not be before notice of the instrument is published in the Gazette.
(4) If the Minister revokes a determination under section 14, the Minister may determine in writing arrangements to deal with any issues of a transitional nature that may arise as a result of the revocation.
(5) A copy of a determination under subsection (4) must be published in the Gazette.
Division 9—Universal service subsidy
16 Determination of universal service subsidy
(1) Before the end of a claim period, the Minister must determine in writing one or more universal service subsidies for the period. A copy of a determination under this subsection must be published in the Gazette.
(2) The Minister must ensure that there is a subsidy for each universal service area in respect of each service obligation. A subsidy may cover one or more universal service areas in respect of one or more service obligations.
(3) A determination under this section must specify:
(a) the amount, or a method for working out the amount, of the subsidy; and
(b) the circumstances in which a universal service provider for the claim period is eligible to be paid the subsidy.
(4) The circumstances that may be specified include, but are not limited to:
(a) whether the subsidy is payable to a primary universal service provider or a competing universal service provider; and
(b) the types or amount of equipment, goods or services that are supplied to persons in a universal service area.
(5) The determination must specify that a subsidy is only payable to a universal service provider who complies with the provider’s obligations under section 12C or 13D (whichever is applicable).
(6) A determination may specify an amount of subsidy as zero.
16A Minister must seek ACMA’s advice
(1) Before making or varying a determination under section 16, the Minister must direct the ACMA to give the Minister advice about the proposed determination or variation. However, this subsection does not apply to a proposed variation of a minor technical nature.
(2) The ACMA must comply with the direction.
(3) If the Minister has received advice from the ACMA about a proposed determination or variation and does not make the determination or variation in accordance with the advice, the Minister must ensure that a notice of his or her reasons for departing from the advice:
(a) is published in the Gazette within 14 days after making the determination or variation; and
(b) is laid before each House of the Parliament within 5 sitting days of that House after making the determination or variation.
(4) Subsection (1) does not, by implication, limit the Minister’s powers under section 486 of the Telecommunications Act 1997 (which deals with public inquiries).
16B Effect of the determination
(1) A determination under section 16 takes effect on the day specified in the determination (which may be before, on or after the day on which the determination is made).
(2) A determination under section 16 applies for the period specified in the determination, which must not be longer than 3 years.
(3) A variation or revocation of such a determination takes effect on the day specified for the purpose in the instrument of variation or revocation (which may be before, on or after the day on which the instrument is made).
Division 11—Regulation of universal service charges
18 Universal service charges
(1) This section applies if a person is the universal service provider for a universal service area.
(2) For the purposes of this Division, a universal service charge is a charge imposed, or proposed to be imposed, by the person for:
(a) the supply of standard telephone services to persons in the area; or
(b) calls made from payphones in the area.
18A Determination subjecting universal service charges to price control arrangements
(1) The Minister may, by notice published in the Gazette, determine that specified universal service charges are subject to price control arrangements under this Division.
(2) A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
18B Price control determinations
(1) This section applies if a determination is in force under section 18A in relation to a particular universal service charge.
(2) The Minister may make a written determination setting out:
(a) price‑cap arrangements and other price control arrangements that are to apply in relation to the charge; or
(b) principles or rules in accordance with which the universal service provider may impose or alter the charge;
or both.
(3) A determination under subsection (2) has effect accordingly and takes effect on the day specified in the determination which must be on or after notice of the determination is published in the Gazette.
(4) A determination under subsection (2) may make different provision with respect to different customers. This section does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.
(5) A determination under subsection (2) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
18C Content of price control determinations
(1) A determination under section 18B relating to a universal service charge may:
(a) prohibit the charge from being imposed or altered without the Minister’s consent; or
(b) prohibit the charge from being imposed or altered without the ACCC’s consent; or
(c) prohibit the charge from being imposed or altered without prior notice being given to the Minister; or
(d) prohibit the charge from being imposed or altered without prior notice being given to the ACCC; or
(e) empower the Minister to direct the ACCC to give the Minister such reports and advice as the Minister requires for the purposes of assisting the Minister in deciding whether to give a consent in accordance with the determination.
(2) Subsection (1) does not, by implication, limit section 18B.
18D Price control determinations subject to determinations under Part 9
(1) This section applies if a determination under subsection 154(1) or 157(1) is in force in relation to a charge imposed, or proposed to be imposed, by Telstra.
(2) A determination under this Division is of no effect so far as it relates to that charge.
18E Compliance with price control determinations
A universal service provider must comply with a determination in force under this Division.
Division 13—Assessment, collection, recovery and distribution of levy
Subdivision A—Eligible revenue of participating persons
20 Participating person must lodge return of eligible revenue
(1) A participating person for an eligible revenue period must give the ACMA a written return of the person’s eligible revenue for that period.
(2) The return must be:
(a) given to the ACMA within the period specified in writing by the ACMA for providing returns; and
(b) in a form approved in writing by the ACMA.
The approved form may require verification, by a statutory declaration, of statements made in the return.
(3) The return must set out:
(a) the eligible revenue for the eligible revenue period of the participating person; and
(b) details of how the eligible revenue was worked out; and
(c) such other information (if any) as the approved form of return requires.
Note: It is an offence to make a false or misleading statement in connection with the operation of this Act (see Part 7.4 of the Criminal Code).
20A Who is a participating person?
(1) For the purposes of this Act, a person is a participating person for an eligible revenue period if:
(a) the person was a carrier at any time during the eligible revenue period; or
(b) the Minister makes a written determination that carriage service providers are participating persons for the eligible revenue period and the person was a carriage service provider at any time during the eligible revenue period.
(2) However, a person is not a participating person for an eligible revenue period if:
(a) the person’s gross telecommunications revenue for the eligible revenue period is less than the amount determined in writing by the Minister for the purposes of this paragraph; or
(b) the person is of a kind, determined in writing by the Minister for the purposes of this paragraph, to be exempt from this section.
(3) A determination made for the purposes of subsection (1), or paragraph (2)(a) or (b), is a legislative instrument.
(4) In this section:
gross telecommunications revenue for an eligible revenue period has the meaning given by the determination made for the purposes of paragraph (2)(a).
20B What is eligible revenue?
(1) For the purposes of this Part, a participating person’s eligible revenue for an eligible revenue period is the amount that is taken to be the person’s eligible revenue for that period in accordance with a determination in writing made by the ACMA for the purposes of this subsection.
(2) To avoid doubt, the determination may, in providing the amount that is taken to be a person’s eligible revenue, refer to revenue of other persons.
(4) A determination under this section is a legislative instrument.
20C What is an eligible revenue period?
(1) For the purposes of this Act, an eligible revenue period is:
(a) the 1999‑2000 financial year and each of the next 12 financial years; or
(b) if the Minister determines in writing another period—that other period.
(1A) A period determined by the Minister under paragraph (1)(b) must not end after 30 June 2012.
(2) If the Minister determines another period, the Minister may, in the determination, modify the way in which this Part applies to participating persons. The modifications may include additions, omissions and substitutions.
(3) A determination under paragraph (1)(b) is a legislative instrument.
20D Audit report of eligible revenue return
(1) An eligible revenue return given to the ACMA under section 20 must be accompanied by a report of an approved auditor that:
(a) is in a form approved in writing by the ACMA; and
(b) states that the auditor has audited the return; and
(c) contains a determination, in the terms specified in the form, of the auditor’s opinion; and
(d) states that the auditor has been given sufficient information and assistance in order to audit the return; and
(e) includes all other statements and information required by the form to be included.
(2) However, the Minister may, by making a written determination, modify the requirements in subsection (1), including by omitting, adding or substituting requirements.
(3) This section does not apply to a person if the ACMA gives written notice to the person to that effect.
(4) A copy of a determination under subsection (2) must be published in the Gazette.
20E ACMA may inquire into correctness of return
The ACMA may make whatever inquiries it thinks necessary or desirable in order to determine whether or not a participating person’s eligible revenue return for an eligible revenue period correctly states the person’s eligible revenue for that period.
20F ACMA to assess eligible revenue
(1) The ACMA must make a written assessment of each participating person’s eligible revenue for an eligible revenue period.
Note: The assessment may be included in the same document as any other assessment the ACMA makes under this Part (see section 20Y).
(2) A person’s eligible revenue:
(a) must be assessed as zero if the person’s eligible revenue is less than the amount (the threshold amount) determined in writing by the Minister for the purposes of this subsection; or
(b) in any other case—must be reduced by the threshold amount.
(3) Subject to section 20G and subsection (2), the assessment must be based on:
(a) the person’s eligible revenue return; and
(b) the information and documents obtained by the ACMA because of its inquiries into the correctness of the return; and
(c) any other information or documents that the ACMA has and that it thinks relevant to making the assessment.
(4) A determination made for the purposes of subsection (2) is a legislative instrument.
(5) The ACMA must give a copy of an assessment of a person’s eligible revenue to the person concerned.
20G Assessment based on estimate of eligible revenue
(1) If a participating person fails to give the ACMA an eligible revenue return for an eligible revenue period, the ACMA may:
(a) estimate the person’s eligible revenue for that period; and
(b) make a written assessment under section 20F of the person’s eligible revenue for that period based on that estimate (but taking into account subsection 20F(2)).
(2) The ACMA must give at least 14 days’ notice to the person of the ACMA’s proposal to make the assessment based on the estimate, and of the amount of eligible return proposed to be assessed. The notice must be in writing.
(3) The ACMA must not make an assessment based on an estimate after receiving an eligible revenue return for the period from the person concerned.
(4) However, if the ACMA has made an assessment based on the estimate, the ACMA is not required to change it if an eligible revenue return is later given to the ACMA.
20H Levy contribution factor
(1) After the ACMA has assessed the eligible revenue of participating persons for an eligible revenue period, the ACMA must work out a levy contribution factor for the period for each of those persons.
Note: The levy contribution factor is used to work out the levy debit of a participating person. See section 20R.
(2) The levy contribution factor for an eligible revenue period is the amount worked out using the following formula:
where:
individual eligible revenue means the assessed eligible revenue of the participating person for the eligible revenue period.
total eligible revenue means the total assessed eligible revenue for the eligible revenue period of all the participating persons for the period.
Subdivision B—Levy credits
20J Claims for levy credit
(1) Within the period of 45 days after the end of a claim period, or such other period as is determined in writing by the Minister, a carrier or carriage service provider who is a universal service provider for the claim period may give to the ACMA a claim for a levy credit for that period.
(2) A person’s levy credit for a claim period is the total of all amounts of universal service subsidy to which the person is entitled for the period.
(3) A claim must be in a form approved in writing by the ACMA, and must include details of:
(a) the provider’s entitlement to universal service subsidy for the claim period; and
(b) how that entitlement has been worked out.
The claim must include such other information (if any) as is required by the approved form.
(4) The approved form may require verification, by a statutory declaration, of statements in the claim.
(5) A copy of a determination made under subsection (1) must be published in the Gazette.
Note: It is an offence to make a false or misleading statement in connection with the operation of this Act (see Part 7.4 of the Criminal Code).
20K Audit report of claim
(1) A claim must be accompanied by a report of an approved auditor that:
(a) is in a form approved in writing by the ACMA; and
(b) states that the auditor has audited the claim; and
(c) contains a determination, in the terms specified in the form, of the auditor’s opinion; and
(d) states that the auditor has been given sufficient information and assistance in order to audit the claim; and
(e) includes all other statements and information required by the form to be included.
(2) However, the Minister may, by making a written determination, modify the requirements in subsection (1), including by omitting, adding or substituting requirements.
(3) This section does not apply to a person if the ACMA gives written notice to the person to that effect.
(4) A copy of a determination under subsection (2) must be published in the Gazette.
20L ACMA to publish claims or a summary of claims
(1) Within 14 days after the end of the period for making claims for levy credit for a claim period, the ACMA must publish on the internet or by any other means that the ACMA considers appropriate:
(a) a copy of each claim made under section 20J in respect of the claim period; or
(b) a summary of all the claims made under that section in respect of the claim period.
(2) In this section:
claim includes a variation of a claim.
20M ACMA may inquire into correctness of claim
The ACMA may make whatever inquiries it thinks necessary or desirable in order to determine whether or not a claim by a universal service provider for a levy credit for a claim period correctly states the provider’s entitlement to universal service subsidy for the period.
20N ACMA to assess levy credit
(1) The ACMA must make a written assessment, in respect of each person who submits a claim for levy credit for a claim period in accordance with section 20J, of the person’s levy credit for that period.
Note: The assessment may be included in the same document as any other assessment the ACMA makes under this Part (see section 20Y).
(2) The assessment must set out the universal service subsidy to which the person is entitled for that period.
(3) The assessment must be based on:
(a) the claim lodged by the person; and
(b) the information and documents obtained by the ACMA because of its inquiries into the correctness of the claim; and
(c) any other information or documents that the ACMA has and that it thinks relevant to making the assessment.
(4) The ACMA must give a copy of the assessment to the person concerned.
20P Principles for assessing and adjusting claims
(1) The Minister may, by legislative instrument, determine principles that are to be applied in assessing (including adjusting) claims for a levy credit. The principles apply from the date specified in the determination.
(2) Before making the determination, the Minister must invite all affected carriers and carrier service providers to make submissions within a specified period to the Minister about the proposed principles. The period specified must be reasonable.
(3) The ACMA must apply the principles (if any) made by the Minister under this section in making assessments under this Part.
Subdivision C—Entitlement to levy distributions and liability for levy
20Q No levy payable unless at least one claim for a levy credit is made
If no claim for a levy credit for a claim period has been made under section 20J within the period for making such claims, no person is liable to pay an amount of levy in respect of that period.
20R Levy debit of a participating person
(1) For each claim period, the ACMA must work out a levy debit for each participating person for the last eligible revenue period that ended before the start of the claim period.
(2) The levy debit is the amount worked out using the formula:
where:
levy contribution factor means the person’s levy contribution factor for that eligible revenue period worked out under section 20H.
total levy credits means the total of all the levy credits to which persons are entitled for that claim period.
(3) The Minister may, by legislative instrument, modify the formula in subsection (2).
Note: The Minister may, for example, increase the amount of total levy credits to take account of the possibility of defaults in the payment of levy for a claim period.
20S Levy debit balance
If a person’s levy debit (if any) under section 20R for a claim period exceeds the person’s assessed levy credit (if any) under section 20N for the claim period, then:
(a) the person has a levy debit balance for the period; and
(b) the amount of that balance is the amount of the excess.
20T Levy credit balance
If a person’s assessed levy credit (if any) under section 20N for a claim period exceeds the person’s levy debit under subsection 20R for the claim period, then:
(a) the person has a levy credit balance for the period; and
(b) the amount of that balance is the amount of the excess.
20U ACMA to make written assessment
(1) For each claim period, the ACMA must make a written assessment setting out:
(a) the matters in subsections (2) and (3); and
(b) the total of all levy credits to which persons are entitled for the claim period.
(2) For each participating person for the last eligible revenue period that ended before the start of the claim period, the assessment must set out:
(a) the person’s levy debit under section 20R for the claim period; and
(b) the person’s levy debit balance (if any) under section 20S for the claim period; and
(c) if the person has a levy debit balance—the levy payable by the person on that balance.
Note: Section 20Z sets out when the levy is payable.
(3) For each universal service provider for the claim period, the assessment must set out:
(a) the universal service subsidy to which the ACMA assesses the provider is entitled for the claim period; and
(b) the provider’s levy credit balance (if any) under section 20T for the claim period; and
(c) if the provider has a levy credit balance—the amount payable to the provider under section 21C for the claim period.
(5) The assessment must be made on the basis of:
(a) the assessments under section 20N of levy credits for the claim period; and
(b) the assessments under section 20F of eligible revenue for each participating person for the last eligible revenue period that ended before the start of the claim period; and
(c) any other information or documents that the ACMA has and that it thinks relevant to making the assessment.
(6) The ACMA must act expeditiously in preparing its assessment. However, a failure to comply with this subsection does not affect the validity of the assessment.
20V Publication of assessment
As soon as practicable after making an assessment under section 20U for a claim period, the ACMA must:
(a) cause a copy of the assessment to be published in the Gazette; and
(b) give a copy of the assessment to each of the persons referred to in subsections 20U(2) and (3).
20W Variation of assessments
(1) The ACMA may vary an assessment made under this Part by making such alterations and additions as it thinks necessary, even if levy credits or levy has been paid in respect of an assessment.
(2) Unless the contrary intention appears, an amended assessment is taken, for the purposes of this Part, to be an assessment under section 20F, 20N or 20U (as the case may be).
20X ACMA may accept statements
Despite anything in this Part, the ACMA may, for the purposes of making an assessment under this Part, partly or completely accept a statement in a claim for levy credit or an eligible revenue return.
20Y Multiple assessments in the same document
The ACMA may include in the same document more than one assessment made under this Part.
Subdivision D—Collection and recovery of levy
20Z When levy payable
(1) Levy assessed under section 20U becomes due and payable on:
(a) the 28th day; or
(b) such later day as is determined in writing by the ACMA;
after the ACMA gives a copy of the assessment to the participating person in respect of which the levy has been assessed.
(2) A copy of a determination under paragraph (1)(b) must be published in the Gazette.
20ZA Levy a debt due to the Commonwealth
Levy may be recovered in a court of competent jurisdiction as a debt due to the Commonwealth.
20ZB Validity of assessment
The validity of an assessment under this Division is not affected by a contravention of this Act.
20ZC Evidence of assessment
(1) This section applies if:
(a) a copy of the Gazette is produced that sets out what purports to be a copy of an assessment made under section 20U; or
(b) a document that purports to be such a copy is produced.
(2) Except so far as the contrary is established, it must be presumed:
(a) that the copy of the Gazette sets out, or that the document is, as the case may be, a copy of such an assessment; and
(b) that the ACMA has duly made the assessment; and
(c) that the amounts and other particulars set out in the assessment are correct.
20ZD Onus of establishing incorrectness of assessment
In any proceeding, the onus of establishing that an assessment under section 20U is incorrect is on the party making that assertion.
20ZE Refund of overpayment of levy
If there is an overpayment of levy, the overpayment is to be refunded.
20ZF Cancellation of certain exemptions from levy
(1) This section cancels the effect of a provision of another Act that would have the effect of exempting a person from liability to pay levy.
(2) The cancellation does not apply if the provision of the other Act is enacted after the commencement of this section and refers specifically to levy imposed by the Telecommunications (Universal Service Levy) Act 1997.
20ZG Commonwealth not liable to levy
(1) The Commonwealth is not liable to pay levy.
(2) A reference in this section to the Commonwealth includes a reference to an authority of the Commonwealth that cannot, by law of the Commonwealth, be made liable to taxation by the Commonwealth.
20ZH Performance bonds and guarantees
(1) The Minister may, by written determination, require a person who has a liability to pay levy, or an anticipated liability to pay levy, to obtain, in accordance with the determination, performance bonds or guarantees in respect of the person’s liability or anticipated liability.
(2) The person must comply with the determination.
(3) A determination under this section is a legislative instrument.
(4) In this section:
performance bond has the meaning given by the determination.
Division 14—The Universal Service Account and distributions of levy
21 Universal Service Account
(1) The Universal Service Account that was, immediately before the commencement of this section, in existence because of section 82 of the unamended Act continues in existence under and subject to the provisions of this Act.
(2) The Universal Service Account is a special account for the purposes of the Public Governance, Performance and Accountability Act 2013.
(3) The Universal Service Account is to be administered by the ACMA.
(4) If there is a change to who is to administer the Universal Service Account in accordance with subsection (3), the Minister may determine in writing arrangements to deal with any issues of a transitional nature that may arise as a result of the change.
(5) A copy of a determination under subsection (4) must be published in the Gazette.
(6) In this section:
unamended Act means this Act as in force immediately before the commencement of Schedule 1 to the Telecommunications (Consumer Protection and Service Standards) Amendment Act (No. 2) 2000.
21A Credits to Universal Service Account
There must be credited to the Universal Service Account:
(a) amounts equal to amounts of levy paid from time to time under this Part; and
(c) amounts equal to amounts that were overpaid under section 21C and have been recovered; and
(d) amounts equal to amounts of penalty paid from time to time under section 23D.
Note: An Appropriation Act provides for amounts to be credited to a special account if any of the purposes of the special account is a purpose that is covered by an item in the Appropriation Act.
21B Purposes of Universal Service Account
(1) Amounts standing to the credit of the Universal Service Account may be expended:
(a) in payment of any amounts payable under section 21C; and
(b) in payment of any refunds under section 20ZE; and
(c) in refunding any amounts credited to the Universal Service Account in error; and
(d) in making distributions in accordance with section 21D; and
(e) in reimbursing the Commonwealth for:
(i) the costs or expenses incurred by the Commonwealth or the ACMA in administering the Telecommunications (Universal Service Levy) Act 1997 and this Division during any period; and
(ii) without limiting subparagraph (i), costs or expenses incurred in connection with recovering levy; and
(iii) costs incurred by the Commonwealth during the period in collecting, compiling, analysing and publishing information about the operation of that Act and this Division.
(2) For the purposes of paragraph (1)(e), the Finance Minister may, from time to time, determine the amount of a reimbursement to be made to the Commonwealth in relation to a period on such basis as he or she thinks appropriate.
(3) Despite subsection (2), the total of the amounts reimbursed under paragraph (1)(e) must not exceed the total of the amounts credited to the Universal Service Account under paragraph 21A(b) (including any interest earned on those amounts).
21C Levy distribution
(1) If a person has a levy credit balance for a claim period because of section 20T, an amount equal to the amount of that balance is payable to the person by the Commonwealth. The Universal Service Account is debited accordingly.
(2) No amount is payable under subsection (1) for a claim period unless and until the ACMA has made an assessment under section 20U for that claim period.
(3) If the total of the amounts payable to persons under subsection (1) is more than the balance of the Universal Service Account, after paying any refunds that are due under section 20ZE, the ACMA must:
(a) work out the amount payable to each person as a proportion of the total amounts payable; and
(b) ensure that any payments by the Commonwealth in respect of amounts standing to the credit of the Universal Service Account are made in accordance with those proportions (rounding amounts to whole dollars as the ACMA considers appropriate).
(4) However, if the Minister, by legislative instrument, determines a different method for making payments by the Commonwealth in respect of amounts standing to the credit of the Universal Service Account than the method provided in subsection (3), the ACMA must act in accordance with that determination.
(6) A person’s levy credit balance for the claim period is reduced by the amount (worked out under this section) that is paid to the person.
(7) This section continues to apply until each person’s levy credit balance for the period is reduced to nil.
21D Distribution of remaining balance of the Universal Service Account
(1) The ACMA may distribute to persons who are or were participating persons any balance standing to the credit of the Universal Service Account that remains after all payments payable by the Commonwealth in respect of debits from the Account for a claim period have been paid.
(2) The Minister may, by legislative instrument, determine rules for making those distributions. The ACMA must comply with those rules.
21E Recovery of overpayments
(1) For the purposes of this section, an overpaid amount is so much of an amount paid under section 21C as represents an overpayment.
(2) An overpaid amount is a debt due to the Commonwealth.
(3) An overpaid amount may be recovered by the Commonwealth by action in a court of competent jurisdiction.
(4) If a person is liable to pay an overpaid amount, the overpaid amount may be deducted from one or more other amounts that are payable to the person under this Part, and if it is so deducted, the other amounts are taken to have been paid in full to the person.
Division 15—Disclosure of information
22 Public may request information
(1) A person may request the ACMA to make available to the person:
(a) specified information or documents on the basis of which the ACMA may make, or has made, its assessment under section 20U for a claim period; or
(b) specified information about how the ACMA may work out, or has worked out, the matters that such an assessment will set out, or sets out, because of subsection 20U(2) or (3).
(2) The ACMA must comply with a request as provided in section 22B. This subsection has effect subject to subsection (3).
(3) The ACMA must not make available under this section:
(a) information (other than information prescribed for the purposes of this paragraph):
(i) that was obtained from, or relates to, a universal service provider for a claim period; and
(ii) the making available of which under this section can reasonably be expected to cause substantial damage to that provider; or
(b) information prescribed for the purposes of this paragraph; or
(c) so much of a document as sets out information of a kind referred to in paragraph (a) or (b).
22A Request for information that is unavailable under section 22
(1) For the purposes of this section, each of the following persons is an eligible person:
(a) a person who is a universal service provider for a claim period;
(c) a person who is a participating person for a claim period.
(2) An eligible person may request the ACMA to make available to it specified information or documents of a kind referred to in subsection 22(1) that subsection 22(3) prevents the ACMA from making available to the eligible person under section 22.
(3) The ACMA must comply with a request as provided for in section 22B. This section has effect subject to subsection (4).
(4) The ACMA must not, under this section, make available to an eligible person (the first eligible person) information, or so much of a document as sets out information:
(a) that was obtained from, or relates to, another eligible person; and
(b) the making available of which to the first eligible person can reasonably be expected to cause substantial damage to the other eligible person’s commercial or other interests;
unless the ACMA is satisfied:
(c) that the information could be obtained by the first eligible person lawfully, and without the other eligible person’s consent, from a source other than the ACMA; or
(d) in the case of a request under paragraph 22(1)(a) or (b)—that:
(i) the first eligible person has made the request in good faith for the sole purpose of informing itself about the basis on which, or the methods by which, the ACMA made the assessment concerned; and
(ii) having regard to the policy principles in section 8A, the first eligible person’s interest in being able to examine that basis and those methods in order to see how its liability to pay levy, or its entitlement to a payment under section 21C, as the case requires, has been assessed outweighs the other eligible person’s interest in avoiding the damage referred to in paragraph (b); or
(e) in the case of a request under paragraph 22(1)(c)—that:
(i) the first eligible person has made the request in good faith for the sole purpose of informing itself about the basis on which, or the methods by which, the ACMA made the decision to make the determination concerned; and
(ii) having regard to the policy principles in section 8A, the first eligible person’s interest in being able to examine that decision outweighs the other eligible person’s interest in avoiding the damage referred to in paragraph (b).
(5) In determining the question referred to in paragraph (4)(b), the ACMA must have regard to:
(a) whether any undertakings have been given under subsection (6) and, if so, the nature of those undertakings; and
(b) such other matters (if any) as the ACMA considers relevant.
(6) For the purposes of this section, a person may give the ACMA a written undertaking that, if specified information, or the whole or a part of a specified document, is made available to the person under this section, the person will not disclose the information, or the contents of the document, except to one or more specified persons.
Note: Information, documents or persons may be specified by name, by inclusion in a class or in any other way.
(7) If a person gives an undertaking under subsection (6), the person must comply with the undertaking.
22B How the ACMA is to comply with a request
(1) The ACMA may comply with a request by a person under section 22 or 22A by:
(a) communicating information to the person in writing or in some other form; or
(b) making documents available for inspection by the person or by an employee, agent or professional adviser of the person; or
(c) giving to the person copies of, extracts from, or summaries of, documents.
(2) In this section:
document includes a part of a document.
22C Minister’s information‑gathering powers
(1) This section applies if the Minister has reason to believe that a carrier or carriage service provider has information that is relevant to the exercise of the Minister’s powers, or performance of the Minister’s functions, under this Part.
(2) The Minister may give written notice to the carrier or provider requiring the carrier or provider to give the information to the Minister, within the period and in the manner specified in the notice.
(3) The carrier or provider must comply with the notice.
(4) A notice under subsection (2) is a legislative instrument.
22D Minister may modify way in which this Division applies
(1) The Minister may, by legislative instrument, determine that this Division applies to information subject to such modifications as are specified in the determination.
(3) In this section:
modifications includes omissions, additions and substitutions.
Division 16—Other matters
23 ACMA must maintain Register/s
(1) The ACMA is to maintain a Register or Registers in which the ACMA includes a copy of each of the following documents (indicating whether the document is currently in force):
(a) a determination made under section 11C, (contestable service obligations);
(b) a determination made under section 14 (alternative arrangements for fulfilling the universal service obligation);
(c) an approved policy statement for a primary universal service provider or a competing universal service provider;
(d) an approved standard marketing plan for a primary universal service provider or a competing universal service provider;
(e) an approved ATS marketing plan for a primary universal service provider or a competing universal service provider.
(2) The Register or Registers may be maintained by electronic means.
(3) A person may, on payment of the charge (if any) fixed by a determination under section 60 of the Australian Communications and Media Authority Act 2005:
(a) inspect the Register or Registers; and
(b) make a copy of, or take extracts from, the Register or Registers.
(4) For the purposes of this section, if a Register is maintained by electronic means, a person is taken to have made a copy of, or taken an extract from, the Register if the ACMA gives the person a printout of some or all of the Register.
(5) If a person requests that a copy be provided in an electronic form, the ACMA may provide the relevant information:
(a) on a data processing device; or
(b) by way of electronic transmission.
23A Delegation to the ACMA
(1) The Minister may delegate one or more of his or her powers under this Part to an SES employee, or an acting SES employee, of the ACMA. The delegation must be in writing.
(2) The delegation may be made subject to specified conditions.
(3) A notice of a delegation made under this section must be published in the Gazette, including details of the delegation.
23B Effect of failure to publish notices in the Gazette
A failure by the Minister or the ACMA to publish a notice in the Gazette as required by a provision of this Act does not affect the validity of anything else done in accordance with this Act.
23C Offence of failing to lodge eligible revenue return
(1) A person is guilty of an offence if:
(a) the person is required under section 20 to give the ACMA an eligible revenue return for an eligible revenue period; and
(b) the person fails to do so; and
(c) the ACMA has not made an assessment under section 20U that includes an estimate of the person’s eligible revenue for the eligible revenue period.
This is an offence of strict liability.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1 of the Criminal Code.
Note 3: The maximum penalty for a body corporate is 250 penalty units. See subsection 4B(3) of the Crimes Act 1914.
(2) A person who is guilty of an offence under subsection (1) is guilty of a separate offence in respect of each day on which the failure continues (including the day of a conviction for the offence or any later day).
(3) Despite anything in section 583 of the Telecommunications Act 1997, that section does not apply to an offence under subsection (1).
23D Penalty for late payment of levy
(1) If any amount of levy assessed under section 20U that is payable by a person remains unpaid after the day by which it must be paid, the person is liable to a penalty on the unpaid amount for each day until all of the levy has been paid.
(2) The penalty rate is 20% per year, or such lower rate as the ACMA determines in writing for the purposes of this subsection.
(3) The ACMA may remit the whole or part of a penalty that a person is liable to pay under subsection (2).
(4) The penalty for a day is due and payable to the ACMA at the end of that day and may be recovered by the ACMA, on the Commonwealth’s behalf, as a debt due to the Commonwealth.
(5) Amounts of penalty received are to be paid to the Commonwealth.
(6) If the amount of the penalty is not an amount of whole dollars, the penalty is rounded to the nearest dollar (rounding 50 cents upwards).
(7) As soon as practicable after a person fails to pay an amount of levy by the time by which it must be paid, the ACMA must, in writing, notify the person that the person is liable to a penalty under this section. However, a failure to do so does not affect the person’s liability.
(8) A determination made for the purposes of subsection (2) is a legislative instrument.
Part 3—The National Relay Service
Division 1—Introduction
93 Simplified outline
The following is a simplified outline of this Part:
• Provision is made for the National Relay Service (NRS).
• The NRS provisions in this Part are to be replaced by alternative contractual arrangements under the Telecommunications Universal Service Management Agency Act 2012.
94 Definitions
In this Part:
levy quarter means a quarter for which NRS levy is payable.
National Relay Service or NRS has the meaning given by subsection 95(1).
NRS contract means a contract under which the whole, or a part, of the National Relay Service is provided.
NRS levy means the levy payable in accordance with this Part.
NRS provider means a person who provides the whole, or a part, of the National Relay Service.
participating person for a levy quarter has the meaning given by section 94A.
quarter means a period of 3 months ending on 30 September, 31 December, 31 March or 30 June.
taxpayer, for a quarter, means a person who is liable to pay NRS levy for the quarter.
94A Who is a participating person?
(1) For the purposes of this Part, a person is a participating person for a quarter if:
(a) the person was a carrier at any time during the quarter; or
(b) the Minister makes a written determination that carriage service providers are participating persons for the quarter and the person was a carriage service provider at any time during the quarter.
(2) However, a person is not a participating person for a quarter if:
(a) the person’s gross telecommunications revenue for the eligible revenue period to which the most recent eligible revenue assessment relates is less than the amount determined in writing by the Minister for the purposes of this paragraph; or
(b) the person is of a kind, determined in writing by the Minister for the purposes of this paragraph, to be exempt from this section.
(3) A determination made for the purposes of paragraph (1)(b), or paragraph (2)(a) or (b), is a legislative instrument.
(4) In this section:
gross telecommunications revenue for an eligible revenue period has the meaning given by the determination made for the purposes of paragraph (2)(a).
Division 2—The National Relay Service
95 The National Relay Service (the NRS)
(1) A reference in this Part to the National Relay Service (or NRS) is a reference to a service that:
(a) provides persons who are deaf, or who have a hearing and/or speech impairment, with access to a standard telephone service on terms, and in circumstances, that are comparable to those on which other Australians have access to a standard telephone service; and
(b) either:
(i) is provided by a person under a contract with the Commonwealth; or
(ii) is provided by 2 or more persons under contracts with the Commonwealth (with each of the persons providing a part of the service).
(1A) This section does not authorise the entering into of a contract after the commencement of this subsection.
Note: After commencement, contracts may be entered into under section 13 of the Telecommunications Universal Service Management Agency Act 2012.
96 Publication of costs of providing the NRS
(1) Before the start of each levy quarter, each NRS provider must give the Minister a written estimate of the total cost of the provider in providing the NRS (or part of the NRS) during the quarter. The estimate must be prepared in accordance with the relevant NRS contract. The Minister must cause to be published in the Gazette the total amount notified to the Minister under this subsection for the quarter.
(2) On or before the 21st day of the third month after the end of each levy quarter, each NRS provider must give the Minister a written statement of the total cost of the provider in providing the NRS (or part of the NRS) during the quarter. The statement must be prepared in accordance with the relevant NRS contract. The Minister must cause to be published in the Gazette the total amount notified to the Minister under this subsection for the quarter.
97 ACMA reports and advice about NRS service plans
(1) The ACMA must monitor all significant matters relating to the performance by each NRS provider of the provider’s obligations under an NRS service plan.
(2) As soon as practicable after the end of each financial year, the ACMA must give a written report to the Minister about the performance by each NRS provider during the financial year of the provider’s obligations under an NRS service plan.
(2A) Subsections (1) and (2) do not apply to an obligation of an NRS provider if the obligation arises after the commencement of this subsection.
(3) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives the report.
(4) In addition to the report under subsection (2), the ACMA must give the Minister such reports or advice as the Minister requires in relation to the NRS service plan.
(5) A reference in this section to a financial year is a reference to the 1999‑2000 financial year and each of the next 12 financial years.
(6) For the purposes of this section, an NRS service plan is a plan:
(a) referred to in subsection 95(2), as in force immediately before the commencement of this subsection; and
(b) that was prepared before the commencement of this subsection.
Division 3—The NRS levy
98 Levy quarters
NRS levy is payable for each of the quarters in:
(a) the 1999‑2000 financial year; and
(b) each of the next 12 financial years.
99 Persons liable to pay levy (taxpayers)
NRS levy for a levy quarter is payable by each person who:
(a) is a participating person for the quarter; and
(b) is covered by the most recent eligible revenue assessment made before the start of the quarter.
Note: The most recent eligible revenue assessment is defined in section 101C.
100 Amount of levy
(1) The total levy for a quarter (the current quarter) is calculated as follows:
(a) the starting point is the estimated NRS cost for the current quarter (the current estimate);
(b) if there is a levy shortfall for the second last quarter before the current quarter, then that shortfall is added to the current estimate;
(c) if there is a levy surplus for the second last quarter before the current quarter, then that surplus is deducted from the current estimate.
(2) Each taxpayer’s NRS contribution amount for the current quarter is calculated as follows:
Note: Levy is imposed on the NRS contribution amount by the NRS Levy Imposition Act 1998.
(2A) The Minister may, by legislative instrument, modify the formula in subsection (2).
(3) In this section:
actual NRS cost, for a quarter, means the amount published for the quarter under subsection 96(2).
eligible revenue, for a taxpayer for a quarter, means the taxpayer’s eligible revenue as shown in the most recent eligible revenue assessment made before the start of the quarter.
Note: The most recent eligible revenue assessment is defined in section 101C.
estimated NRS cost, for a quarter, means the amount published for the quarter under subsection 96(1).
levy shortfall, for a quarter, means the amount by which the estimated NRS cost for the quarter falls short of the actual NRS cost for the quarter.
levy surplus, for a quarter, means the amount by which the estimated NRS cost for the quarter exceeds the actual NRS cost for the quarter.
100A Variation of taxpayer’s NRS contribution amount
(1) The ACMA may vary a taxpayer’s NRS contribution amount for a quarter by making such alterations and additions as it thinks necessary, even if NRS levy on the contribution amount has been paid.
(2) If there has been an overpayment of NRS levy, the overpayment is to be refunded.
101 Payment of levy
(1) NRS levy is payable to the ACMA on behalf of the Commonwealth.
(2) A person who is liable to pay NRS levy for a quarter must pay it to the ACMA on or before the seventh day of the second month in the quarter.
(3) Unpaid NRS levy may be recovered as a debt in a court of competent jurisdiction, by the ACMA acting on behalf of the Commonwealth.
101A Penalty for late payment of levy
(1) If any amount of levy that a person is liable to pay under section 99 remains unpaid after the day by which it must be paid, the person is liable to a penalty on the unpaid amount for each day until all of the levy has been paid.
(2) The penalty rate is 20% per year, or such lower rate as the ACMA determines in writing for the purposes of this subsection.
(3) The ACMA may remit the whole or part of a penalty that a person is liable to pay under subsection (2).
(4) The penalty for a day is due and payable to the ACMA at the end of that day and may be recovered by the ACMA, on the Commonwealth’s behalf, as a debt due to the Commonwealth.
(5) Amounts of penalty received are to be paid to the Commonwealth.
(6) If the amount of the penalty is not an amount of whole dollars, the penalty is rounded to the nearest dollar (rounding 50 cents upwards).
(7) As soon as practicable after a person fails to pay an amount of levy by the time by which it must be paid, the ACMA must, in writing, notify the person that the person is liable to a penalty under this section. However, a failure to do so does not affect the person’s liability.
(8) A determination made for the purposes of subsection (2) is a legislative instrument.
101B Performance bonds and guarantees
(1) The Minister may, by written determination, require a person who has a liability to pay levy, or an anticipated liability to pay levy, under section 99 to obtain, in accordance with the determination, performance bonds or guarantees in respect of the person’s liability or anticipated liability.
(2) The person must comply with the determination.
(3) A determination under this section is a legislative instrument.
(4) In this section:
performance bond has the meaning given by the determination.
101C Meaning of most recent eligible revenue assessment
In this Division:
most recent eligible revenue assessment means the assessment most recently made by the ACMA under one of the following sections:
(a) section 193 of the Telecommunications Act 1997 as in force immediately before the commencement of item 15 of Schedule 4 to the Telecommunications Legislation Amendment Act 1999;
(b) section 64 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 as in force immediately before the commencement of Schedule 1 to the Telecommunications (Consumer Protection and Service Standards) Amendment Act (No. 2) 2000;
(c) section 20F of this Act.
Division 4—The NRS Account
102 The NRS Account
(1) There is continued in existence the NRS Account.
Note: The Account was established by subsection 5(3) of the Financial Management Legislation Amendment Act 1999.
(2) The NRS Account is a Special Account for the purposes of the Financial Management and Accountability Act 1997.
(3) The purposes of the NRS Account are as follows:
(a) to pay amounts payable by the Commonwealth under a contract entered into under section 13 of the Telecommunications Universal Service Management Agency Act 2012 for a purpose relating to the achievement of the policy objective set out in paragraph 11(d) of that Act;
(b) to make grants under section 13 of the Telecommunications Universal Service Management Agency Act 2012 for a purpose relating to the achievement of the policy objective set out in paragraph 11(d) of that Act.
Note: See section 21 of the Financial Management and Accountability Act 1997 (debits from Special Accounts).
(4) The following amounts must be credited to the NRS Account:
(a) amounts of NRS levy that are paid to the Commonwealth;
(b) interest from the investment of an amount standing to the credit of the NRS Account.
Part 4—Continued access to untimed local calls
103 Simplified outline
The following is a simplified outline of this Part:
• Local calls are to be charged for on an untimed basis.
104 Requirement to provide an untimed local call option
If a carriage service provider charges an eligible customer for eligible local calls made using a standard telephone service supplied to the customer, the provider must give the customer an untimed local call option.
Note 1: Eligible customer is defined by section 110.
Note 2: Eligible local call is defined by section 106.
Note 3: Untimed local call option is defined by section 105.
105 Untimed local call option
(1) For the purposes of this Part, if a carriage service provider charges an eligible customer for eligible local calls made using a standard telephone service supplied to the customer, the provider gives the customer an untimed local call option if, and only if, the service is supplied to the customer on terms and conditions under which:
(a) the customer may choose, on connection of the service, to have the charges for eligible local calls that are made using the service worked out on an untimed basis; and
(b) if the customer chooses as mentioned in paragraph (a)—the carriage service provider must not work out the charges for such calls in any other way except with the customer’s written consent; and
(c) if the customer:
(i) does not choose as mentioned in paragraph (a); or
(ii) consents to having the charges for such calls worked out otherwise than on an untimed basis;
the customer may later give the carriage service provider a written notice to the effect that the customer wishes the charges for such calls to be worked out on an untimed basis; and
(d) if the customer gives the carriage service provider such a notice—the carriage service provider:
(i) must, in respect of the earliest practicable period beginning after it receives the notice, work out the charges for such calls on an untimed basis; and
(ii) must not, in respect of a period after the period referred to in subparagraph (i), work out the charges for such calls in any other way except with the customer’s written consent.
Note 1: Eligible customer is defined by section 110.
Note 2: Untimed basis is defined by subsection (2).
(2) For the purposes of this section, charges for eligible local calls are worked out on an untimed basis if, and only if, the charges for those calls are worked out by reference to the number of such calls made during a particular period, regardless of how long each call lasted.
106 Eligible local calls
(1) For the purposes of the application of this Part to a carriage service provider who charges for a call made using a standard telephone service supplied to an eligible customer in a particular standard zone, being an eligible customer who is a residential/charity customer, if the call:
(a) is made between points in the applicable zone in relation to the provider and in relation to the customer; and
(b) is either:
(i) of a kind that, immediately before 20 September 1996, a general carrier offered to supply, or supplied, on an untimed basis between points in that standard zone; or
(ii) made using a standard telephone service supplied to the customer for a universal service purpose;
the call is an eligible local call unless the call involves the use, by at least one party to the call, of a public mobile telecommunications service, or a satellite service, that is not supplied to that party for a universal service purpose.
Note 1: Eligible customer is defined by section 110.
Note 2: Standard zone is defined by section 108.
Note 3: Applicable zone is defined by section 109.
Note 4: Untimed basis is defined by subsection (3).
(2) For the purposes of the application of this Part to a carriage service provider who charges for a call made using a standard telephone service supplied to an eligible customer in a particular standard zone, being an eligible customer who is not a residential/charity customer, if the call:
(a) is a voice call or, if a voice call is not practical for a particular end‑user with a disability, a call that is equivalent to a voice call; and
(b) is made between points in the applicable zone in relation to the provider and in relation to the customer; and
(c) is either:
(i) of a kind that, immediately before 20 September 1996, a general carrier offered to supply, or supplied, on an untimed basis between points in that standard zone; or
(ii) made using a standard telephone service supplied to the customer for a universal service purpose;
the call is an eligible local call unless the call involves the use, by at least one party to the call, of a public mobile telecommunications service, or a satellite service, that is not supplied to that party for a universal service purpose.
Note 1: Eligible customer is defined by section 110.
Note 2: Standard zone is defined by section 108.
Note 3: Applicable zone is defined by section 109.
Note 4: Untimed basis is defined by subsection (3).
(3) For the purposes of this section, calls of a particular kind are supplied on an untimed basis if, and only if, the charges for the calls of that kind are worked out by reference to the number of such calls made during a particular period, regardless of how long each call lasted.
(3A) For the purposes of this section, a service is supplied for a universal service purpose if, and only if, the service is supplied:
(a) in fulfilment of the universal service obligation; or
(b) in compliance with the obligations under a contract entered into under section 13 of the Telecommunications Universal Service Management Agency Act 2012 for a purpose relating to the achievement of the policy objective set out in paragraph 11(a) of that Act; or
(c) in compliance with the terms and conditions of a grant made under section 13 of the Telecommunications Universal Service Management Agency Act 2012 for a purpose relating to the achievement of the policy objective set out in paragraph 11(a) of that Act.
(4) In this section:
general carrier means a person who held a general telecommunications licence under the Telecommunications Act 1991 immediately before 20 September 1996.
residential/charity customer means:
(a) a residential customer; or
(b) a customer that is a registered charity.
satellite service means a carriage service, where customer equipment used in connection with the supply of the service communicates directly with a satellite‑based facility.
107 Benefits for customers outside standard zones
(1) For the purposes of this section, if a customer of a carriage service provider is in Australia, but is not in a standard zone, the customer is a designated customer.
(2) The regulations may formulate a scheme to give benefits to designated customers, where the benefits:
(a) relate to charges for calls made using a standard telephone service supplied to the customer; and
(b) are comparable to the benefits given to eligible customers under section 104 (which deals with the requirement to provide an untimed local call option).
(3) For the purposes of subsection (2), a comparison of benefits is to have regard to (among other things), the ability to make calls to essential business and community services on an untimed basis.
(4) Regulations made for the purposes of subsection (2) may impose requirements on carriage service providers.
(5) A carriage service provider must comply with any applicable requirements imposed by regulations made for the purposes of subsection (2).
(6) The Minister must take all reasonable steps to ensure that, at all times after the commencement of this section, regulations are in force for the purposes of subsection (2).
(6A) However, subsection (6) does not apply if obligations arising under one or any combination of the following:
(a) one or more agreements;
(b) this Act or the Telecommunications Act 1997;
(c) one or more disallowable instruments under this Act (other than regulations under subsection (2)) or the Telecommunications Act 1997;
have the effect of providing a scheme to give benefits of a kind mentioned in subsection (2).
(7) For the purposes of this section, charges for particular calls are worked out on an untimed basis if, and only if, the charges for those calls are worked out by reference to the number of such calls made during a particular period, regardless of how long each call lasted.
108 Standard zones
(1) For the purposes of this Part, if:
(a) immediately before 1 July 1991, Telecom supplied, or offered to supply, to persons within a particular area within Australia, a carriage service that was, immediately before that date, a standard telephone service (within the meaning of the Telecommunications Act 1991); and
(b) under the terms and conditions on which Telecom supplied, or would supply, that service to persons in that area, the charges for calls of a particular kind between points within that area made using the service were, or would be, worked out on an untimed basis;
that area is a standard zone.
Note: Untimed basis is defined by subsection (2).
(2) For the purposes of this section, charges for calls of a particular kind are worked out on an untimed basis if, and only if, the charges for the calls of that kind are worked out by reference to the number of such calls made during a particular period, regardless of how long each call lasted.
(3) In this section:
Telecom means the Australian Telecommunications Corporation, as it existed immediately before 1 July 1991.
109 Applicable zones
(1) A reference in this Part to the applicable zone in relation to a carriage service provider and in relation to an eligible customer, being a customer in a particular standard zone, is a reference to whichever of the following is applicable:
(a) if:
(i) the provider is a universal service provider, universal service contractor or universal service grant recipient for the customer; and
(ii) there is in force a written notice given to the ACMA by the provider nominating a specified area as a nominated area; and
(iii) the customer is in the nominated area and chooses to adopt that nominated area as the applicable zone in relation to the provider and in relation to the customer;
the nominated area;
(b) if:
(i) the provider is a universal service provider, universal service contractor or universal service grant recipient for the customer; and
(ii) paragraph (a) does not apply;
the standard zone;
(c) if:
(i) the provider is not a universal service provider, universal service contractor or universal service grant recipient for the customer; and
(ii) there is in force a written notice given to the ACMA by the provider nominating a specified area as a nominated area; and
(iii) the customer is in the nominated area;
the nominated area;
(d) if:
(i) the provider is not a universal service provider, universal service contractor or universal service grant recipient for the customer; and
(ii) paragraph (c) does not apply;
the standard zone.
(2) To avoid doubt, an area nominated under subsection (1) may overlap a standard zone.
(3) For the purposes of this section, if:
(a) a customer of a carriage service provider is in a particular area; and
(b) the provider is a universal service provider for that area;
the provider is a universal service provider for the customer.
(4) For the purposes of this section if:
(a) a customer of a carriage service provider is in a particular area; and
(b) the provider is a universal service contractor in relation to a contract entered into for a purpose relating to the achievement of the policy objective set out in paragraph 11(a) of the Telecommunications Universal Service Management Agency Act 2012; and
(c) the contract imposes an obligation on the universal service contractor to supply standard telephone services in the area;
the provider is a universal service contractor for the customer.
(5) For the purposes of this section if:
(a) a customer of a carriage service provider is in a particular area; and
(b) the provider is a universal service grant recipient in relation to a grant made for a purpose relating to the achievement of the policy objective set out in paragraph 11(a) of the Telecommunications Universal Service Management Agency Act 2012; and
(c) the terms and conditions of the grant require the universal service grant recipient to supply standard telephone services in the area;
the provider is a universal service grant recipient for the customer.
110 Eligible customer
For the purposes of this Part, if a customer of a carriage service provider is in a standard zone, the customer is an eligible customer.
111 Points
For the purposes of the application of this Part to a mobile‑type carriage service, a point includes a mobile or potentially mobile point.
112 Application of this Part
This Part does not apply in relation to a contract for the supply of a standard telephone service if:
(a) the contract was entered into before the commencement of section 231 of the Telecommunications Act 1997; and
(b) the contract would not have complied with Part 8 of that Act if the contract had been entered into immediately after the commencement of that section.
Part 5—Customer service guarantee
Division 1—Introduction
113 Simplified outline
The following is a simplified outline of this Part:
• The ACMA may make performance standards to be complied with by carriage service providers in relation to customer service.
• If a carriage service provider contravenes a performance standard, the carriage service provider is liable to pay damages to the customer for the contravention.
• The amount of damages payable for a particular contravention is equal to the relevant amount specified in the scale of damages determined by the ACMA.
• The Minister may make performance standards to be complied with by carriage service providers in relation to the supply of wholesale carriage services.
• The Minister may set minimum benchmarks in relation to compliance by carriage service providers with performance standards.
• The Telecommunications Industry Ombudsman may issue an evidentiary certificate in relation to a contravention of a performance standard.
114 Interpretation
(1) In this Part:
customer includes prospective customer.
damages includes punitive damages.
(2) In determining the meaning that an expression has when used in a provision of the Telecommunications Act 1997, or in a provision of this Act other than this Part, subsection (1) is to be disregarded.
114A Wholesale carriage service and wholesale customer
For the purposes of this Part, if:
(a) a carriage service provider (the first provider) supplies, or proposes to supply, a carriage service to another carriage service provider (the second provider); and
(b) the carriage service is, or is to be, supplied to the second provider in order that the second provider can provide a carriage service;
then:
(c) the carriage service that is, or is to be, supplied to the second provider is a wholesale carriage service; and
(d) the second provider is a wholesale customer of the first provider.
Division 2—Retail performance standards and benchmarks
115 Performance standards
(1) The ACMA may, by written instrument, make standards to be complied with by carriage service providers in relation to:
(a) the making of arrangements with customers about the period taken to comply with requests to connect customers to specified kinds of carriage services; and
(b) the periods that carriage service providers may offer to customers when making those arrangements; and
(c) the compliance by carriage service providers with the terms of those arrangements; and
(d) the period taken to comply with requests to rectify faults or service difficulties relating to specified kinds of carriage services, where the rectification follows the making of a customer report about a fault or service difficulty; and
(e) the keeping of appointments to meet customers, or representatives of customers, where the appointment relates to:
(i) a connection of a kind covered by paragraph (a); or
(ii) a rectification of a kind covered by paragraph (d); and
(f) any other matter concerning the supply, or proposed supply, of a carriage service to a customer.
(2) A standard under this section that relates to a particular kind of carriage service does not apply to a particular carriage service provider in connection with the supply of that kind of service at a particular location unless the carriage service provider:
(a) supplies that kind of service at that location; or
(b) offers to supply that kind of service at that location.
(2A) A standard under this section does not apply in relation to matter concerning the supply, or proposed supply, of a wholesale carriage service.
(3) The ACMA must not make a standard under this section unless it is directed to do so by the Minister under section 124.
(4) A standard under this section may be of general application or may be limited as provided in the standard. This subsection does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.
(5) An instrument under subsection (1) is a legislative instrument.
116 Damages for breach of performance standards
(1) If:
(a) a carriage service provider contravenes a standard in force under section 115; and
(b) the contravention relates to a particular customer;
the carriage service provider is liable to pay damages to the customer for the contravention.
(2) The amount of damages payable for a particular contravention is equal to the relevant amount specified in the scale in force under section 117.
(3) However, if:
(a) the carriage service provider:
(i) credits an amount to an account that the customer has with the provider; or
(ii) pays an amount to the customer; and
(b) the credit or payment was made as a result of a right or remedy that:
(i) was available to the customer otherwise than under this Division; and
(ii) arose out of the same event or transaction as the contravention;
the amount of damages payable for the contravention is to be reduced (but not below zero) by the amount of the credit or payment.
(4) The customer may recover the amount of the damages by action against the carriage service provider in a court of competent jurisdiction.
(5) The liability of the carriage service provider under this section may be discharged:
(a) by giving the customer a credit in an account the customer has with the carriage service provider; or
(b) in any other manner agreed between the carriage service provider and the customer.
(6) An action under this section must be instituted within 2 years after:
(a) in the case of a contravention that continued throughout a period—the time when the contravention began; or
(b) in any other case—the time when the contravention occurred.
(7) If the customer dies, a reference in this section to the customer includes a reference to the legal personal representative of the customer.
117 Scale of damages for breach of performance standards
(1) The ACMA may, by legislative instrument, specify a scale of damages for contraventions of standards under section 115.
(2) The scale must:
(a) specify categories of contraventions; and
(b) specify a dollar amount as the amount of damages payable for contraventions covered by each of those categories.
(3) A dollar amount specified in accordance with paragraph (2)(b) must not exceed $25,000.
(4) A category may be specified by reference to contraventions that continue over a specified number of days.
(5) Subsection (4) does not, by implication, limit the ways in which a category may be specified.
117A Time for payment of damages for breach of performance standards
Decision whether to accept liability for damages
(1) If, at a particular time, a carriage service provider first has reason to believe that an event has occurred that is reasonably likely to result in the carriage service provider being liable to pay damages to a particular customer under section 116, then, within 14 days after that time, the carriage service provider must decide whether to accept that liability.
(2) In making a decision under subsection (1), the carriage service provider must have regard to whether there is any reasonable basis for the carriage service provider to dispute the liability.
(3) If a carriage service provider makes a decision under subsection (1) to accept, or not to accept, a liability to pay damages to a particular customer, the carriage service provider must give the customer written notification of the decision within 14 weeks after the decision is made.
Crediting customer account
(4) If:
(a) a carriage service provider makes a decision under subsection (1) to accept a liability to pay damages to a particular customer; and
(b) the liability is to be discharged by giving the customer a credit in an account the customer has with the carriage service provider;
the liability must be discharged within the period of 14 weeks after the decision is made and:
(c) if it is practicable for the carriage service provider to give the customer the credit within that 14‑week period and in time for the customer to be notified of the credit in the first bill sent to the customer during that period—by giving the customer the credit in time for the customer to be notified of the credit in that bill; or
(d) if paragraph (c) does not apply, but it is practicable for the carriage service provider to give the customer the credit within that 14‑week period and in time for the customer to be notified of the credit in the second bill sent to the customer during that period—by giving the customer the credit in time for the customer to be notified of the credit in that bill.
Other manner of discharging liability
(5) If:
(a) a carriage service provider makes a decision under subsection (1) to accept a liability to pay damages to a particular customer; and
(b) the liability is not to be discharged by giving the customer a credit in an account the customer has with the carriage service provider;
the liability must be discharged within 14 weeks after the decision is made.
Customer
(6) If the customer dies, a reference in this section to the customer includes a reference to the legal personal representative of the customer.
Transitional
(7) The reference in subsection (1) to a particular time is a reference to a particular time after the end of the period of 12 months beginning on the date of commencement of this section.
117B Performance benchmarks
(1) The Minister may, by legislative instrument, set minimum benchmarks in relation to compliance by carriage service providers with a standard in force under section 115.
(2) An instrument under this section may be of general application or may be limited as provided in the instrument.
(3) Subsection (2) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.
117C Compliance with performance benchmarks
Scope
(1) This section applies if an instrument under section 117B is applicable to a carriage service provider (the first provider).
Provider must meet or exceed minimum benchmark
(2) The first provider must meet or exceed a minimum benchmark set by the instrument.
Contravention caused by another provider
(3) For the purposes of determining whether the first provider has met or exceeded a minimum benchmark set by the instrument, if:
(a) the first provider has contravened a standard in force under section 115; and
(b) the contravention is wholly or partly attributable to one or more acts or omissions of another carriage service provider;
the first provider is taken not to have contravened the standard.
Division 3—Wholesale performance standards and benchmarks
117D Performance standards
(1) The Minister may, by legislative instrument, make standards to be complied with by carriage service providers in relation to a matter that:
(a) concerns the supply, or proposed supply, of wholesale carriage services to a wholesale customer; and
(b) is capable of affecting the capacity or ability of a wholesale customer to comply with a standard in force under section 115 in relation to a matter concerning the supply, or proposed supply, of a carriage service by the wholesale customer.
(2) A standard under this section may be of general application or may be limited as provided in the standard.
(3) Subsection (2) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.
117E Performance benchmarks
(1) The Minister may, by legislative instrument, set minimum benchmarks in relation to compliance by carriage service providers with a standard in force under section 117D.
(2) An instrument under this section may be of general application or may be limited as provided in the instrument.
(3) Subsection (2) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.
117F Compliance with performance benchmarks
Scope
(1) This section applies if an instrument under section 117E is applicable to a carriage service provider (the first provider).
Provider must meet or exceed minimum benchmark
(2) The first provider must meet or exceed a minimum benchmark set by the instrument.
Contravention caused by another provider
(3) For the purposes of determining whether the first provider has met or exceeded a minimum benchmark set by the instrument, if:
(a) the first provider has contravened a standard in force under section 117D; and
(b) the contravention is wholly or partly attributable to one or more acts or omissions of another carriage service provider;
the first provider is taken not to have contravened the standard.
Division 4—Other provisions
118 Remedial directions—compliance with performance standards
(1) This section applies if a carriage service provider is subject to a standard in force under section 115 or 117D.
(2) The ACMA may give the provider a written direction:
(a) requiring the provider to take specified action directed towards ensuring that the provider does not contravene, or is unlikely to contravene, the standard; or
(b) requiring the provider to take such action as will ensure that the extent of the provider’s compliance with the standard reaches or exceeds a specified goal or target.
Note: Under section 124, the Minister may give the ACMA directions in relation to the exercise of its powers under this Part.
(3) The following are examples of the kinds of direction that may be given to a carriage service provider under subsection (2):
(a) a direction that the provider implement effective administrative systems for monitoring compliance with a standard in force under section 115 or 117D;
(b) a direction that the provider take such action as is necessary to ensure that the extent of the provider’s compliance with a standard in force under section 115, in so far as that standard relates to the keeping of appointments to meet customers in rural areas, reaches or exceeds a specified goal or target.
(4) Before giving a direction under subsection (2), the ACMA must consult the Telecommunications Industry Ombudsman. However, this rule does not apply if the Minister, under section 124, required the ACMA to give the direction.
(5) A carriage service provider must not contravene a direction under subsection (2).
(6) A direction under subsection (2) is a legislative instrument.
118A Right of contribution
(1) If:
(a) a carriage service provider (the first provider) contravenes a standard in force under section 115; and
(b) the contravention relates to a particular customer; and
(c) the first provider is liable, under section 116, to pay damages (the primary damages) to the customer for the contravention; and
(d) the contravention is wholly or partly attributable to one or more acts or omissions of another carriage service provider (the second provider); and
(e) the first provider has discharged the liability for the primary damages;
the second provider is liable to pay damages (the secondary damages) to the first provider for the acts or omissions.
(2) The amount of the secondary damages for the acts or omissions is:
(a) if the contravention is wholly attributable to the acts or omissions—an amount equal to the primary damages; or
(b) if the contravention is partly attributable to the acts or omissions—such amount (not exceeding the primary damages) as the court thinks fair and reasonable.
(3) If the second provider makes a payment to the first provider as a result of a right or remedy that:
(a) was available to the first provider otherwise than under this section; and
(b) arose out of the same acts or omissions;
the amount of the secondary damages payable for the acts or omissions is to be reduced (but not below zero) by the amount of the payment.
(4) The first provider may recover the amount of the secondary damages by action against the second provider in a court of competent jurisdiction.
(5) An action under this section must be instituted within 2 years after the first provider discharged the liability for the primary damages.
(6) If the customer dies, a reference in this section to the customer includes a reference to the legal personal representative of the customer.
(7) Paragraph (1)(a) does not apply to a contravention that occurs before the end of the period of 6 months beginning on the date of commencement of this section.
119 Evidentiary certificate issued by the Telecommunications Industry Ombudsman
(1) The Telecommunications Industry Ombudsman may issue a written certificate:
(a) stating that a specified carriage service provider has contravened a standard in force under section 115; and
(b) setting out particulars of that contravention.
(2) In any proceedings under this Part, a certificate under subsection (1) is prima facie evidence of the matters in the certificate.
(3) A document purporting to be a certificate under subsection (1) must, unless the contrary is established, be taken to be a certificate and to have been properly given.
(4) Subsection (1) does not apply to the Telecommunications Industry Ombudsman unless the Telecommunications Industry Ombudsman gives the Minister a written notice consenting to the conferral of the powers conferred by that subsection.
(5) If no notice is in force under subsection (4), subsection (1) has effect as if the reference in that subsection to the Telecommunications Industry Ombudsman were a reference to the ACMA.
(6) The Minister must cause a copy of a notice under subsection (4) to be published in the Gazette.
(7) The continuity of a notice under subsection (4) is not affected by:
(a) a change in the occupancy of the position of Telecommunications Industry Ombudsman; or
(b) a vacancy in the position of Telecommunications Industry Ombudsman that does not continue for more than 4 months.
120 Waiver of customer service guarantee
(1) The ACMA may, by written instrument, make provision for customers of carriage service providers to waive, in whole or in part, their protection and rights under this Part in relation to a particular carriage service supplied, or proposed to be supplied, by the carriage service provider concerned.
(2) If such a waiver is made, then, to the extent of the waiver, the carriage service provider is not bound by, and need not comply with, any standards in force under section 115 in relation to the supply of that service to that customer.
(3) A waiver must be made in accordance with the rules set out in the instrument.
(4) A waiver must be in the form specified in the instrument.
(5) The form must include a statement that summarises the consequences of the waiver.
(6) A waiver must not be set out in a standard form of agreement formulated by a carriage service provider for the purposes of section 479 of the Telecommunications Act 1997.
(7) A customer is not entitled to waive, in whole or in part, the customer’s protection and rights under this Part in relation to a particular standard telephone service supplied, or proposed to be supplied, by the carriage service provider concerned if the service is supplied, or proposed to be supplied:
(a) in fulfilment of the universal service obligation; or
(b) in compliance with the obligations under a contract entered into under section 13 of the Telecommunications Universal Service Management Agency Act 2012 for a purpose relating to the achievement of the policy objective set out in paragraph 11(a) of that Act; or
(c) in compliance with the terms and conditions of a grant made under section 13 of the Telecommunications Universal Service Management Agency Act 2012 for a purpose relating to the achievement of the policy objective set out in paragraph 11(a) of that Act.
(8) An instrument under subsection (1) is a legislative instrument.
120A Carriage service may be supplied on condition that the customer waives the customer service guarantee
This Act does not prevent, and is taken never to have prevented, a carriage service provider from supplying, or proposing to supply, a particular carriage service to a customer on condition that the customer waives, in accordance with section 120, the customer’s protection and rights under this Part in relation to the carriage service.
121 Savings of other laws and remedies
(1) This Part is not intended to exclude or limit the concurrent operation of any law of a State or Territory.
(2) This Part does not limit, restrict or otherwise affect any right or remedy a person would have if this Part had not been enacted.
(3) This Part does not limit, restrict or otherwise affect the operation of the Telecommunications Industry Ombudsman scheme. In particular, this Part does not affect a customer’s right to complain to the Telecommunications Industry Ombudsman.
(4) Subsection (3) does not, by implication, limit subsection (2).
122 Breach of performance standard is not an offence
A contravention of a standard in force under section 115 or 117D is not an offence.
122A Failure to meet or exceed a minimum benchmark is not an offence
A contravention of section 117C or 117F is not an offence.
123 Clause 1 of Schedule 2 to the Telecommunications Act 1997 does not apply to a breach of a performance standard
Clause 1 of Schedule 2 to the Telecommunications Act 1997 does not apply to a contravention of a standard in force under section 115 or 117D.
Note: Clause 1 of Schedule 2 to the Telecommunications Act 1997 requires carriage service providers to comply with this Act.
124 Minister may direct the ACMA about the use of its powers under this Part
(1) The Minister may give the ACMA written directions about how the ACMA is to exercise its powers under this Part.
(2) The ACMA must comply with a direction under this section.
(3) This section does not affect the Minister’s power to give the ACMA directions under other provisions about other matters.
(4) A direction under this section is a legislative instrument.
(5) The Minister must not give the ACMA a direction under section 14 of the Australian Communications and Media Authority Act 2005 about how the ACMA is to exercise its powers under this Part.
125 Review of performance standards following Ministerial direction
(1) This section applies to a direction under section 124 that requires the ACMA to make a standard under section 115.
(2) If the Minister revokes a direction, the ACMA must revoke the section 115 standard that is in force because of the direction.
(3) If the Minister varies a direction, the ACMA must either:
(a) vary the section 115 standard that is in force because of the direction so that the standard complies with the varied direction; or
(b) revoke the section 115 standard and determine a new section 115 standard that so complies.
(4) If a section 115 standard is in force because of a direction:
(a) the ACMA may vary the standard on its own initiative, but only in such a way that the varied standard still complies with the direction; and
(b) the ACMA may, on its own initiative, revoke the standard and determine a new section 115 standard that so complies.
(5) A revocation or variation of a section 115 standard must be in writing.
(6) An instrument of revocation or variation of a section 115 standard is a legislative instrument.
Part 6—The Telecommunications Industry Ombudsman
126 Simplified outline
The following is a simplified outline of this Part:
• Certain carriers and carriage service providers must enter into the Telecommunications Industry Ombudsman scheme.
• The membership of the scheme must be open to all carriers and carriage service providers.
• Carriers and carriage service providers must comply with the scheme.
127 Eligible carriage service providers
For the purposes of this Part, an eligible carriage service provider is:
(a) a carriage service provider who supplies:
(i) a standard telephone service, where any of the customers are residential customers or small business customers; or
(ii) a public mobile telecommunications service; or
(iii) a carriage service that enables end‑users to access the internet; or
(b) a carriage service intermediary who arranges for the supply of a service referred to in subparagraph (a)(i), (ii) or (iii).
128 Telecommunications Industry Ombudsman scheme
(1) Each carrier and each eligible carriage service provider must, in association with other carriers and other eligible carriage service providers, enter into a scheme providing for a Telecommunications Industry Ombudsman.
Note: Section 129 provides for exemptions from subsection (1) of this section.
(2) The scheme is to be known as the Telecommunications Industry Ombudsman scheme.
(3) To avoid doubt, there is only one Telecommunications Industry Ombudsman scheme, namely, the scheme operated by Telecomunications Industry Ombudsman Limited (ABN 46 057 634 787).
(4) The scheme must provide for the Telecommunications Industry Ombudsman to:
(a) investigate; and
(b) make determinations relating to; and
(c) give directions relating to;
complaints about carriage services by end‑users of those services.
(4A) An end‑user of a carriage service is not liable to pay any fee or charge (however described) to the provider of the carriage service in respect of a complaint made by the end‑user about the carriage service.
(5) The following is an example of such a complaint: a complaint about billing, or the manner of charging, for the supply of carriage services.
(6) The scheme must not provide for the Telecommunications Industry Ombudsman to investigate complaints about:
(a) the levels at which tariffs charged for the supply of carriage services are set; or
(b) the content of a content service.
(7) The membership of the scheme must be open to all:
(a) carriers; and
(b) carriage service providers.
(8) The scheme must comply with any standards determined under subsection (9).
(9) The Minister may, by legislative instrument, determine standards for the purposes of subsection (8).
(10) In making a determination under subsection (9), the Minister must have regard to the following matters:
(a) accessibility;
(b) independence;
(c) fairness;
(d) accountability;
(e) efficiency;
(f) effectiveness;
(g) such other matters (if any) as the Minister considers relevant.
(11) Before making a determination under subsection (9), the Minister must consult:
(a) the Telecommunications Industry Ombudsman; and
(b) the ACMA.
129 Exemptions from requirement to join scheme
(1) The ACMA may, by notice in the Gazette, declare that a specified carrier or eligible carriage service provider is exempt from the requirement set out in subsection 128(1). The declaration has effect accordingly.
Note: Carriers or providers may be specified by name, by inclusion in a particular class or in any other way.
(2) In deciding whether a carrier or provider should be exempt from the requirement set out in subsection 128(1), the ACMA must have regard to the following matters:
(a) the extent to which the carrier or provider deals with residential customers in relation to the supply of carriage services;
(b) the extent to which the carrier or provider deals with proprietors of small businesses in relation to the supply of carriage services;
(c) the potential for complaints under the Telecommunications Industry Ombudsman scheme about services supplied by the carrier or provider.
(3) Subsection (2) does not, by implication, limit the matters to which the ACMA may have regard.
(4) Before making a declaration under this section, the ACMA must consult the Telecommunications Industry Ombudsman.
130 Direction to join scheme
(1) The ACMA may give a carriage service provider a written notice directing the provider to enter into the Telecommunications Industry Ombudsman scheme.
(2) The provider must comply with the direction.
(3) In deciding whether to give a direction to a provider under this section, the ACMA must have regard to the following matters:
(a) the extent to which the provider deals with residential customers in relation to the supply of carriage services;
(b) the extent to which the provider deals with proprietors of small businesses in relation to the supply of carriage services;
(c) the potential for complaints under the Telecommunications Industry Ombudsman scheme about the services supplied by the provider.
(4) Subsection (3) does not, by implication, limit the matters to which the ACMA may have regard.
(5) Before giving a direction under this section, the ACMA must consult the Telecommunications Industry Ombudsman.
131 Determination that a class of carriage service providers must join scheme
(1) The ACMA may make a written determination that the members of a specified class of carriage service providers must enter into the Telecommunications Industry Ombudsman scheme.
(2) A copy of the determination must be published in the Gazette.
(3) In deciding whether to make a determination under this section in relation to a class of carriage service providers, the ACMA must have regard to the following matters:
(a) the extent to which members of that class deal with residential customers in relation to the supply of carriage services;
(b) the extent to which members of that class deal with proprietors of small businesses in relation to the supply of carriage services;
(c) the potential for complaints under the Telecommunications Industry Ombudsman scheme about services supplied by members of that class.
(4) Subsection (3) does not, by implication, limit the matters to which the ACMA may have regard.
(5) Before making a determination under this section, the ACMA must consult the Telecommunications Industry Ombudsman.
132 Members of scheme must comply with scheme
A carrier or carriage service provider who is a member of the Telecommunications Industry Ombudsman scheme must comply with the scheme.
133 Register of members of scheme
(1) The Telecommunications Industry Ombudsman is to maintain a Register of the names of the members of the Telecommunications Industry Ombudsman scheme.
(2) The Register may be maintained by electronic means.
(3) The Telecommunications Industry Ombudsman must ensure that the Register is open for inspection, at all reasonable times, by members of the public.
133A Reviews of the Telecommunications Industry Ombudsman scheme
(1) The Telecommunications Industry Ombudsman must cause to be conducted reviews of the operation of the Telecommunications Industry Ombudsman scheme.
Timing of reviews
(2) The first review must be completed within 3 years after the commencement of this section.
(3) Each subsequent review must be completed within 5 years after the completion of the previous review.
Independent reviews
(4) A review must be conducted by a person or body who is independent of:
(a) the Telecommunications Industry Ombudsman; and
(b) the telecommunications industry.
Consultation
(5) A review must make provision for:
(a) public consultation; and
(b) consultation with:
(i) the Telecommunications Industry Ombudsman; and
(ii) the ACMA.
Report of review
(6) The person or body conducting a review must:
(a) prepare a report of the review; and
(b) give the report to the Telecommunications Industry Ombudsman.
(7) The Telecommunications Industry Ombudsman must:
(a) give a copy of the report to the Minister; and
(b) publish the report on the Telecommunications Industry Ombudsman’s website.
Response to recommendations in report
(8) If a report of a review sets out one or more recommendations to the Telecommunications Industry Ombudsman, the Telecommunications Industry Ombudsman must, within 6 months after receiving the report:
(a) prepare a statement setting out the Telecommunications Industry Ombudsman’s response to each of the recommendations; and
(b) publish a copy of the statement on the Telecommunications Industry Ombudsman’s website; and
(c) give a copy of the statement to the Minister.
Completion of review
(9) For the purposes of this section, a review is completed when the report of the review is given to the Telecommunications Industry Ombudsman.
Part 7—Protection for residential customers against failure by carriage service providers to provide standard carriage services
134 Simplified outline
The following is a simplified outline of this Part:
• The ACMA may determine that certain payments received by a carriage service provider from residential customers are protected payments.
• The ACMA may formulate schemes aimed at ensuring that if:
(a) a residential customer of a carriage service provider makes a protected payment to the provider; and
(b) the provider fails to supply a standard telephone service to the customer;
the customer is protected.
• A protection scheme may be enforced by the Federal Court on the application of the ACMA or a residential customer.
135 Scope of Part
(1) This Part applies to a carriage service provider if the provider supplies, or proposes to supply, a standard telephone service to residential customers.
(2) A carriage service provider is exempt from this Part if the provider was a carrier (within the meaning of the Telecommunications Act 1991) immediately before 1 July 1997.
(3) The ACMA may, by notice in the Gazette, declare that a specified provider is exempt from this Part. The declaration has effect accordingly.
Note: Providers may be specified by name, by inclusion in a particular class or in any other way.
(4) In deciding whether a person should be exempt from this Part, the ACMA must have regard to the following matters:
(a) the duration of the prior period (if any) during which the person carried on business in Australia as a carriage service provider;
(b) the scale of the person’s prior operations in Australia as a carriage service provider;
(c) the person’s business record;
(d) if the person is a partnership—the business record of each of the partners;
(e) if the person is an incorporated company—the business record of each individual, by whatever name called and whether or not a director of the company, who is concerned, or takes part, in the management of the company.
(5) Subsection (4) does not, by implication, limit the matters to which the ACMA may have regard.
136 Standard residential customer
(1) For the purposes of this Part, if a residential customer, or a proposed residential customer, of a carriage service provider is supplied, or proposed to be supplied, with a standard telephone service by the provider, then:
(a) the customer is a standard residential customer of the provider; and
(b) the service is a standard carriage service.
(2) Subsection (1) does not apply to a standard telephone service if:
(a) the service is a public mobile telecommunications service; and
(b) the service is neither supplied, nor proposed to be supplied, to the customer:
(i) in fulfilment of the universal service obligation; or
(ii) in compliance with the obligations under a contract entered into under section 13 of the Telecommunications Universal Service Management Agency Act 2012 for a purpose relating to the achievement of the policy objective set out in paragraph 11(a) of that Act; or
(iii) in compliance with the terms and conditions of a grant made under section 13 of the Telecommunications Universal Service Management Agency Act 2012 for a purpose relating to the achievement of the policy objective set out in paragraph 11(a) of that Act.
137 Protected payments
(1) The ACMA may, by legislative instrument, make a determination that a specified payment made, or liable to be made, to a carriage service provider by a standard residential customer of that provider is a protected payment for the purposes of this Part. The determination has effect accordingly.
Note: Payments may be specified by name, by inclusion in a particular class or in any other way.
(2) The payment must be received, or proposed to be received, by the provider directly or indirectly in connection with its business as a carriage service provider.
(3) The following are examples of payments that may be specified in the determination:
(a) payments for line rental;
(b) payments for equipment rental;
(c) payments by way of connection fees;
(d) a pre‑payment for a standard carriage service.
(4) For each protected payment, the determination must specify, or specify a means of ascertaining, a period for the purposes of this subsection. That period is called the minimum service period for the payment.
(5) The minimum service period for a protected payment:
(a) must begin when the payment is made; and
(b) must not run for longer than 2 years.
138 Compliance with protection schemes for protected payments
(1) Before demanding or receiving a protected payment, a carriage service provider must give the ACMA a written election to be bound by a specified scheme formulated under this Part.
(2) If a carriage service provider gives the ACMA such an election, the provider is bound by, and must comply with, the scheme specified in the election.
(3) If an election under this section is in force in relation to a particular scheme (the original scheme), the provider may give the ACMA a written notice varying the election by omitting the original scheme and substituting another scheme formulated under this Part. The variation takes effect at the time specified in the notice.
(4) Despite the variation, the original scheme continues to apply, in relation to protected payments made before the variation took effect, as if the variation had not been made.
139 Protection schemes for protected payments—alternative supply of standard carriage services
(1) The ACMA may, by written instrument, formulate a scheme that requires a carriage service provider bound by the scheme to enter into and maintain a legally enforceable arrangement aimed at ensuring that, if:
(a) a residential customer of the provider makes a protected payment to the provider; and
(b) at any time during the minimum service period for that payment, the provider fails to supply standard carriage services to the customer;
the customer:
(c) is supplied, during the remainder of the period, with standard carriage services that are equivalent to the standard carriage services that the provider has not supplied; and
(d) is not required to pay more for the supply of those equivalent services than the customer would have had to pay had the provider supplied them.
(2) A scheme formulated under subsection (1) is a legislative instrument.
140 Protection schemes for protected payments—third party guarantee
(1) The ACMA may, by written instrument, formulate a scheme that:
(a) makes a carriage service provider that is bound by the scheme liable, in the event that:
(i) a residential customer of the provider makes a protected payment to the provider; and
(ii) at any time during the minimum service period for that payment, the provider fails to supply standard carriage services to the customer;
to reimburse the payment on a pro‑rata basis in proportion to that part or parts of the period during which the provider fails to supply the services to the customer; and
(b) requires the provider to obtain a guarantee from a third person in respect of the provider’s discharge of that liability.
(2) An instrument under subsection (1) is a legislative instrument.
141 Protection schemes for protected payments—insurance cover
(1) The ACMA may, by written instrument, formulate a scheme that:
(a) makes a carriage service provider that is bound by the scheme liable, in the event that:
(i) a residential customer of the provider makes a protected payment to the provider; and
(ii) at any time during the minimum service period for that payment, the provider fails to supply standard carriage services to the customer;
to reimburse the payment on a pro‑rata basis in proportion to that part or parts of the period during which the provider fails to supply the services to the customer; and
(b) requires the provider to take out and maintain an insurance policy to indemnify residential customers against a total or partial failure to discharge that liability.
(2) An instrument under subsection (1) is a legislative instrument.
142 Protection schemes for protected payments—holding of payments in trust accounts
(1) The ACMA may, by written instrument, formulate a scheme that:
(a) makes a carriage service provider that is bound by the scheme liable, in the event that:
(i) a residential customer of the provider makes a protected payment to the provider; and
(ii) at any time during the minimum service period for that payment, the provider fails to supply standard carriage services to the customer;
to reimburse the payment on a pro‑rata basis in proportion to that part or parts of the period during which the provider fails to supply the services to the customer; and
(b) requires the provider to hold protected payments it receives in trust accounts; and
(c) prohibits the provider from transferring any or all of the money in such an account to its beneficial ownership except in accordance with the draw‑down rules set out in the scheme.
(2) An instrument under subsection (1) is a legislative instrument.
143 Waiver of protection by customers
(1) A scheme formulated under this Part may provide for standard residential customers of a carriage service provider to waive their protection and rights under the scheme in relation to a particular protected payment made to the provider.
(2) If such a waiver is made, the provider is not bound by, and need not comply with, the scheme in relation to that payment.
(3) A waiver must be made in accordance with the rules set out in the scheme concerned.
(4) Rules mentioned in subsection (3) may require a carriage service provider to inform a customer about the consequences of a waiver.
(5) Subsection (4) does not, by implication, limit the matters that may be dealt with by:
(a) a code registered under Part 6 of the Telecommunications Act 1997; or
(b) a standard under Part 6 of the Telecommunications Act 1997.
144 Incidental rules
(1) A scheme formulated under this Part may require carriage service providers to comply with such ancillary or incidental rules (if any) as are set out in the scheme.
(2) Those rules include (but are not limited to) requiring carriage service providers to inform their standard residential customers about matters relating to the implementation of the scheme.
145 Enforcement of protection schemes
(1) This section applies if a carriage service provider is bound by a scheme formulated under this Part.
(2) If:
(a) the ACMA; or
(b) a standard residential customer of the provider;
thinks that the provider has:
(c) failed to discharge a liability of the provider under the scheme; or
(d) otherwise breached the scheme;
the ACMA or the customer may apply to the Federal Court for an order under subsection (3).
(3) If the Federal Court is satisfied that the provider has:
(a) failed to discharge a liability of the provider under the scheme; or
(b) otherwise breached the scheme;
the Court may make all or any of the following orders:
(c) an order directing the provider to discharge a liability under the scheme;
(d) an order directing the provider to comply with the scheme;
(e) an order directing the provider to compensate any person who has suffered loss or damage as a result of the breach;
(f) any other order that the Court thinks appropriate.
(4) The Federal Court may discharge or vary an order granted under this section.
(5) This section does not, by implication, limit other remedies.
(6) A reference in this section to a carriage service provider includes a reference to:
(a) in a case where the provider is an individual or a partnership—the provider’s trustee in bankruptcy; or
(b) in a case where the provider is a body corporate or a partnership—each of the following:
(i) a receiver, receiver and manager, or other controller, of property of the body or partnership;
(ii) an administrator of the body or partnership;
(iii) an administrator of a deed of arrangement entered into by the body or partnership;
(iv) a liquidator or provisional liquidator of the body or partnership;
(v) a trustee or other person administering a compromise or arrangement made between the body or partnership and any other person or persons.
Part 8—Provision of emergency call services
146 Simplified outline
The following is a simplified outline of this Part:
• The ACMA may impose requirements on any or all of the following:
(a) carriers;
(b) carriage service providers;
(c) emergency call persons;
in relation to emergency call services.
147 Provision of emergency call services
(1) The ACMA must make a written determination imposing requirements on any or all of the following:
(a) carriers;
(b) carriage service providers;
(c) emergency call persons;
in relation to emergency call services.
(2) In making a determination under this section, the ACMA must have regard to the following:
(a) the objective that a carriage service provider who supplies a standard telephone service should provide each end‑user of that standard telephone service with access, free of charge, to an emergency call service, unless the ACMA considers that it would be unreasonable for such access to be provided;
(b) the objective that, if a carriage service provider who supplies a standard telephone service is required to provide each end‑user of that standard telephone service with access to an emergency call service operated by a recognised person, the recognised person should:
(i) receive and handle calls made by those end‑users to the relevant emergency service number; and
(ii) if appropriate—transfer such calls to an appropriate emergency service organisation; and
(iii) if appropriate—give information in relation to such calls to an appropriate emergency service organisation;
(c) the objective that emergency service organisations should not be charged for services provided by a recognised person who operates an emergency call service, being services by way of:
(i) receiving and handling calls to an emergency service number; or
(ii) transferring such calls to an emergency service organisation; or
(iii) giving information in relation to such calls to an emergency service organisation;
(d) the objective that emergency service organisations should not be charged for the following carriage services:
(i) carriage services used to connect calls made to an emergency service number;
(ii) carriage services used to transfer such calls to an emergency service organisation;
(iii) carriage services used to give information in relation to such calls to an emergency service organisation;
(e) the objective that, as far as practicable, a common system is used to:
(i) transfer calls made to an emergency service number to an emergency service organisation; and
(ii) give information in relation to such calls to an emergency service organisation;
(f) the objective that calls made to an emergency service number are transferred to an appropriate emergency service organisation with the minimum of delay;
(g) the objective that, from the perspective of an ordinary end‑user of a standard telephone service, there appears to be a single national emergency call system;
(h) the objective that reasonable community expectations for the handling of calls to emergency service numbers are met;
(i) the objective that carriage services used to make calls to an emergency service number should, as far as practicable, provide the emergency call person concerned with automatic information about:
(i) the location of the caller; and
(ii) the identity of the customer of the service being used by the caller;
(j) the objective that carriers should provide carriage service providers with access to:
(i) controlled carriage services of the carriers; and
(ii) controlled networks of the carriers; and
(iii) controlled facilities of the carriers;
in order that the providers can comply with their obligations under the determination;
(k) the objective that carriage service providers should provide other carriage service providers with access to:
(i) controlled carriage services of the first‑mentioned providers; and
(ii) controlled networks of the first‑mentioned providers; and
(iii) controlled facilities of the first‑mentioned providers;
in order that the other providers can comply with their obligations under the determination;
(l) the objective that a determination should be consistent with the following:
(i) Australian Privacy Principle 6;
(ib) each registered APP code (as defined in the Privacy Act 1988), if any, that binds a participant in a section of the telecommunications industry;
(ii) codes registered under Part 6 of the Telecommunications Act 1997;
(iii) standards determined under Part 6 of the Telecommunications Act 1997.
(3) Subsection (2) does not, by implication, limit the matters to which the ACMA may have regard.
(4) A determination under this section may deal with ancillary or incidental matters, including the protection of the privacy of information transmitted in connection with a call to an emergency service number.
(5) A determination under this section may deal with performance standards, including (but not limited to) performance standards relating to:
(a) the answering of calls to emergency service numbers; and
(b) delays in transferring calls made to an emergency service number to the appropriate emergency service organisation; and
(c) the handling of complaints about emergency call services.
(6) Subsections (4) and (5) do not, by implication, limit subsection (1).
(7) A determination under this section is a legislative instrument.
(8) In making a determination under this section, the ACMA may apply, adopt or incorporate (with or without modification) any matter contained in a code or standard proposed or approved by a body or association, either:
(a) as in force or existing at a particular time; or
(b) as in force or existing from time to time.
This subsection does not, by implication, limit section 589 of the Telecommunications Act 1997.
(9) Before making a determination under this section, the ACMA must consult representatives of each of the following groups:
(a) carriers;
(b) carriage service providers;
(c) recognised persons who operate an emergency call service;
(d) emergency service organisations;
(e) consumers of standard telephone services.
(9A) Before making a determination under this section, the ACMA must consult TUSMA.
(10) A carriage service provider may provide the access referred to in paragraph (2)(a) itself or by arranging with another person for the access to be provided.
(11) In this section:
emergency service organisation means:
(a) a police force or service; or
(b) a fire service; or
(c) an ambulance service; or
(d) a service specified in the numbering plan for the purposes of this paragraph; or
(e) a service for despatching a force or service referred to in paragraph (a), (b), (c) or (d).
148 Compliance with determination
(1) A person on whom a requirement is imposed by a determination in force under section 147 must comply with the determination.
(2) Subsection (1) has effect subject to sections 149 and 151.
(3) A person must not:
(a) aid, abet, counsel or procure a contravention of subsection (1); or
(b) induce, whether by threats or promises or otherwise, a contravention of subsection (1); or
(c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or
(d) conspire with others to effect a contravention of subsection (1).
(4) Subsections (1) and (3) are civil penalty provisions.
Note: Part 31 of the Telecommunications Act 1997 provides for pecuniary penalties for breaches of civil penalty provisions. This provision is a civil penalty provision for the purposes of that Act.
149 Access to emergency call services
(1) This section applies if:
(a) an emergency call service is operated by a recognised person; and
(b) a determination under section 147 requires a carriage service provider who supplies a standard telephone service to provide each end‑user of that standard telephone service with access to that emergency call service; and
(c) a determination under section 147 requires the recognised person to:
(i) receive and handle calls made by those end‑users to the relevant emergency service number; and
(ii) if appropriate—transfer such calls to an appropriate emergency service organisation; and
(iii) if appropriate—give information in relation to such calls to an appropriate emergency service organisation.
(2) The recognised person must comply with the requirement mentioned in paragraph (1)(c) on such terms and conditions as are:
(a) agreed between the following parties:
(i) the carriage service provider;
(ii) the recognised person; or
(b) failing agreement, determined by an arbitrator appointed by the parties.
If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.
(3) The regulations may make provision for and in relation to the conduct of an arbitration under this section.
(4) The regulations may provide that, for the purposes of a particular arbitration conducted by the ACCC under this section, the ACCC may be constituted by a single member, or a specified number of members, of the ACCC. For each such arbitration, that member or those members are to be nominated in writing by the Chairperson of the ACCC.
(5) Subsection (4) does not, by implication, limit subsection (3).
(6) A determination made in an arbitration under this section must not be inconsistent with a Ministerial pricing determination in force under section 150.
150 Ministerial pricing determinations
The Minister may, by legislative instrument, make a determination setting out principles dealing with price‑related terms and conditions relating to requirements of a kind referred to in subsection 149(1). The determination is to be known as a Ministerial pricing determination.
151 Access to be provided
(1) This section applies if a determination under section 147 requires a person to provide access as mentioned in paragraph 147(2)(j) or (k).
(2) The person must provide that access in accordance with the requirements set out in the determination and on such terms and conditions as are:
(a) agreed between the following parties:
(i) the person;
(ii) the carriage service provider to whom access is required to be provided; or
(b) failing agreement, determined by an arbitrator appointed by the parties.
If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.
(3) The regulations may make provision for and in relation to the conduct of an arbitration under this section.
(4) The regulations may provide that, for the purposes of a particular arbitration conducted by the ACCC under this section, the ACCC may be constituted by a single member, or a specified number of members, of the ACCC. For each such arbitration, that member or those members are to be nominated in writing by the Chairperson of the ACCC.
(5) Subsection (4) does not, by implication, limit subsection (3).
Part 9—Price control arrangements for Telstra
152 Simplified outline
The following is a simplified outline of this Part:
• This Part provides for price control arrangements for carriage services, content services and facilities supplied by Telstra.
153 Definitions
In this Part:
carrier charge means:
(a) a charge for a carriage service, or a content service, supplied by Telstra; or
(b) a charge for a facility supplied by Telstra.
charge includes:
(a) any charge or fee (whether payable periodically, in instalments or otherwise); and
(b) a nil charge or nil fee; and
(c) in relation to a carriage service, includes:
(i) any charge or fee (including of a kind referred to in paragraph (a) or (b)) for or in relation to a facility used, or intended for use, in relation to the supply of the service; and
(ii) any other charge or fee (including of a kind referred to in paragraph (a) or (b)) for or in relation to the supply of the service.
154 Minister may determine price control arrangements
(1) The Minister may determine in writing that specified carrier charges are subject to price control arrangements.
(2) An instrument under this section is a legislative instrument.
155 Effect of price control arrangements
(1) Where a carrier charge is subject to price control arrangements, the Minister may, by legislative instrument, determine:
(a) price‑cap arrangements and other price control arrangements that are to be applied in relation to the charge; or
(b) principles in accordance with which Telstra is to make alterations to the charge;
or both.
(3) To avoid doubt, price‑cap arrangements and other price control arrangements determined under this section may relate to charges for untimed local calls in particular areas.
(4) A determination under this section may make different provision with respect to different customers. This section does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.
(5) Telstra must comply with a determination under this section.
156 Alteration of charges subject to price control arrangements
(1) Where Telstra proposes to alter a carrier charge that is subject to price control arrangements, the following provisions have effect.
(2) Where, under the applicable determinations under section 155, the consent of the ACCC is not required to the proposed alteration, Telstra may make the proposed alteration.
(3) Where, under the applicable determinations under section 155, the consent of the ACCC is required to the proposed alteration, Telstra must not make the proposed alteration unless the following paragraphs have been complied with:
(a) if those determinations require the giving to the ACCC of a period of notice before the proposed alteration is made—that period has ended or the ACCC has waived the giving of the notice;
(b) if those determinations require the giving to the ACCC of particular information not later than a particular time before the alteration is made:
(i) the information was so given; or
(ii) some only of the information was so given and the ACCC has waived the giving of the remainder of the information; or
(iii) the ACCC has waived the giving of the information;
(c) subject to paragraph (d), either:
(i) the ACCC has consented to the proposed alteration; or
(ii) the period within which the ACCC is required under those determinations to give or refuse its consent to the proposed alteration has ended and the ACCC did not before the end of that period refuse its consent to the proposed alteration;
(d) if, before the end of the period within which, but for this paragraph, the ACCC would be required under the applicable determinations to give or refuse its consent to the proposed alteration, the ACCC requested Telstra to provide further information about the proposed alteration, the first‑mentioned period is taken to be extended by a period equal to the number of days commencing on the day on which the request was made and ending on the day on which the further information was provided.
157 Carrier charges subject to notification and disallowance
(1) The Minister may determine in writing that specified carrier charges are subject to notification and disallowance.
(2) An instrument under this section is a legislative instrument.
158 Alteration of charges subject to notification and disallowance
(1) If Telstra proposes to alter a carrier charge that is subject to notification and disallowance, Telstra must, by written notice, inform the Minister of the alteration at least 30 days before it is to take effect.
(2) The Minister may, within 30 days after receiving the notice:
(a) by writing request the ACCC to give a written report as to whether the proposed alteration should be disallowed in the public interest; and
(b) direct Telstra in writing not to make the alteration until the Minister has received and considered the report.
(3) The ACCC must give the report to the Minister within 30 days after receiving the request.
(4) If the Minister, after taking the ACCC’s report into account, is of the opinion that the proposed alteration is not in the public interest, he or she may, by written notice given to Telstra within 30 days after receiving the report, direct Telstra not to make the alteration.
(5) Telstra must comply with a direction under subsection (4).
Part 9A—Telephone sex services
158A Simplified outline
The following is a simplified outline of this Part:
• This Part regulates the prefixes of numbers used by telephone sex services.
• The supply of other goods and services must not be tied to the supply of a telephone sex service.
158B Unacceptable conduct in relation to a telephone sex service
(1) A telephone sex service provider or a carriage service provider must not engage in unacceptable conduct in relation to a telephone sex service (within the meaning of subsection (2)).
Note: Telephone sex service provider is defined by section 158K.
(2) For the purposes of this Part, if:
(a) a telephone sex service provider uses a standard telephone service to supply a telephone sex service to an end‑user in Australia; and
(b) the supply is by way of a voice call; and
(c) a person (the relevant customer) is a customer of a carriage service provider in relation to the voice call; and
(d) a charge for the supply of the telephone sex service is expected to be included in a bill sent by or on behalf of the carriage service provider to the relevant customer;
the telephone sex service provider and the carriage service provider are taken to have engaged in unacceptable conduct in relation to the telephone sex service unless the voice call is made to a number with an approved prefix.
Note 1: Telephone sex service is defined by section 158J.
Note 2: Approved prefix is defined by section 158H.
(3) Subsection (1) is a civil penalty provision.
Note: Part 31 of the Telecommunications Act 1997 provides for pecuniary penalties for breaches of civil penalty provisions. Subsection (1) is a civil penalty provision for the purposes of that Act.
Charge for supply of telephone sex service not to be included in bill
(4) If a carriage service provider engages in unacceptable conduct in relation to a telephone sex service (within the meaning of subsection (2)), a charge for the supply of the telephone sex service must not be included in a bill sent by or on behalf of the carriage service provider to the relevant customer.
(5) Subsection (4) is a civil penalty provision.
Note: Part 31 of the Telecommunications Act 1997 provides for pecuniary penalties for breaches of civil penalty provisions. Subsection (4) is a civil penalty provision for the purposes of that Act.
Defence
(7) In any proceedings against a carriage service provider under Part 31 of the Telecommunications Act 1997 that arise out of this section and relate to a telephone sex service supplied using a standard telephone service supplied by the carriage service provider, it is a defence if the carriage service provider establishes:
(a) that it did not know; and
(b) that it could not, with reasonable diligence, have ascertained;
that the standard telephone service was, or was to be, used by a telephone sex service provider to supply the telephone sex service.
(8) For the purposes of subsection (7), in determining whether a carriage service provider could, with reasonable diligence, have ascertained whether a standard telephone service supplied by the carriage service provider was, or was to be, used by a telephone sex service provider to supply a telephone sex service, the following matters are to be taken into account:
(a) whether any inquiries were made of persons who proposed to use standard telephone services to supply commercial services by way of voice calls;
(b) whether persons who use standard telephone services to supply commercial services by way of voice calls are under any contractual obligation to notify the carriage service provider of the nature of those commercial services;
(c) whether the carriage service provider monitors, or arranges for the monitoring, of advertisements that are:
(i) for commercial services supplied by way of voice calls made using standard telephone services; and
(ii) published in mass‑circulation newspapers or mass‑circulation magazines circulated in Australia;
(d) any other relevant matters.
158C Supply of goods or services not to be tied to the supply of telephone sex services
(1) A person (the first person) must not:
(a) supply, or offer to supply, goods or services; or
(b) supply, or offer to supply, goods or services at a particular price; or
(c) give or allow, or offer to give or allow, a discount, allowance, rebate or credit in relation to the supply or proposed supply of goods or services by the first person;
on condition that the person to whom the first person supplies or offers or proposes to supply the goods or services will agree to the supply of one or more telephone sex services.
(2) Subsection (1) is a civil penalty provision.
Note: Part 31 of the Telecommunications Act 1997 provides for pecuniary penalties for breaches of civil penalty provisions. Subsection (1) is a civil penalty provision for the purposes of that Act.
(3) An expression used in this section and in section 47 of the Competition and Consumer Act 2010 has the same meaning in this section as it has in that section.
158E Aiding, abetting etc.
(1) A person must not:
(a) aid, abet, counsel or procure a contravention of subsection 158B(1) or (4) or 158C(1); or
(b) induce, whether by threats or promises or otherwise, a contravention of subsection 158B(1) or (4) or 158C(1); or
(c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection 158B(1) or (4) or 158C(1); or
(d) conspire with others to effect a contravention of subsection 158B(1) or (4) or 158C(1).
(2) Subsection (1) is a civil penalty provision.
Note: Part 31 of the Telecommunications Act 1997 provides for pecuniary penalties for breaches of civil penalty provisions. Subsection (1) is a civil penalty provision for the purposes of that Act.
158F Evidentiary certificate—telephone sex service
(1) The ACMA may issue a written certificate stating that a specified service is, or was, a telephone sex service.
(2) In any proceedings under the Telecommunications Act 1997 that relate to this Part, a certificate under subsection (1) is prima facie evidence of the matters in the certificate.
(3) A document purporting to be a certificate under subsection (1) must, unless the contrary is established, be taken to be a certificate and to have been properly given.
158H Approved prefix
(1) For the purposes of this Part, each of the following is an approved prefix:
(a) 1901 or, if there is in force a written determination made by the Minister or the ACMA specifying another prefix for the purposes of this paragraph, that other prefix;
(b) if there is in force a written determination made by the Minister or the ACMA specifying a prefix for the purposes of this paragraph—that prefix.
(2) A determination under paragraph (1)(a) or (b) is a legislative instrument.
158J Telephone sex service
(1) For the purposes of this Part, a telephone sex service is a commercial service supplied using a standard telephone service, where:
(a) the supply is by way of a voice call made using the standard telephone service; and
(b) having regard to:
(i) the way in which the service is advertised or promoted; and
(ii) the content of the service;
it would be concluded that a majority of persons who call the service are likely to do so with the sole or principal object of deriving sexual gratification from the call.
(2) However, a service is not a telephone sex service if it is a therapeutic or counselling service provided by a person registered or licensed as a medical practitioner, or as a psychologist, under a law of a State or Territory.
158K Telephone sex service provider
For the purposes of this Part, if a person uses, or proposes to use, a standard telephone service to supply one or more telephone sex services, the person is a telephone sex service provider.
158L Voice call
(1) To avoid doubt, a reference in this Part to a voice call includes a reference to a call that involves a recorded or synthetic voice.
(2) In determining the meaning of a provision of the Telecommunications Act 1997, or a provision of this Act other than this Part, subsection (1) is to be disregarded.
158M Savings of other laws
This Part is not intended to exclude or limit the concurrent operation of any law of a State or Territory.
158N Transitional
This Part does not apply to a telephone sex service that is supplied before the end of the period of 6 months beginning on the date of commencement of this section.
Part 9B—Independent reviews of regional telecommunications
Division 1—Independent reviews of regional telecommunications
158P Reviews of regional telecommunications to be conducted by the RTIRC
(1) The RTIRC must conduct reviews of the adequacy of telecommunications services in regional, rural and remote parts of Australia.
Note: RTIRC means the Regional Telecommunications Independent Review Committee established by section 158R.
(2) In determining the adequacy of those services, the RTIRC must have regard to whether people in regional, rural and remote parts of Australia have equitable access to telecommunications services that are:
(a) significant to people in those parts of Australia; and
(b) currently available in one or more urban parts of Australia.
Timing of reviews
(3) The first review must start:
(a) before the end of 2008; or
(b) if, before 31 December 2008, the Minister makes a written determination specifying an earlier day—as soon as practicable after that earlier day.
(4) Each subsequent review must be completed within 3 years after the last day on which a copy of a statement setting out the Commonwealth Government’s response to the recommendations of the previous review was tabled in a House of the Parliament under paragraph 158Q(6)(b). For this purpose, a review is completed when the report of the review is given to the Minister under section 158Q.
Consultation
(5) In conducting a review, the RTIRC must make provision for:
(a) public consultation; and
(b) consultation with people in regional, rural and remote parts of Australia.
Relevant matters
(6) In conducting a review, the RTIRC must have regard to:
(a) any policies of the Commonwealth Government notified to the RTIRC by the Minister; and
(b) such other matters as the RTIRC considers relevant.
Determination
(7) Before making a determination under paragraph (3)(b), the Minister must consult:
(a) the Prime Minister; and
(b) the Treasurer; and
(c) the Finance Minister; and
(d) the Minister administering the Urban and Regional Development (Financial Assistance) Act 1974.
(8) A determination under paragraph (3)(b) is a legislative instrument for the purposes of the Legislative Instruments Act 2003, but section 42 of that Act does not apply to the determination.
Australia
(9) Section 11 of the Telecommunications Act 1997 (as applied by section 7 of this Act) does not apply to a reference in this section to Australia.
Definitions
(10) In this section:
Australia does not include an external Territory prescribed for the purposes of section 10 of the Telecommunications Act 1997.
telecommunications services includes:
(a) carriage services; and
(b) services provided by means of carriage services.
158Q Report of review
(1) The RTIRC must:
(a) prepare a report of a review under section 158P; and
(b) give the report to the Minister.
(2) The Minister must cause copies of the report to be tabled in each House of the Parliament within 15 sitting days of that House after receiving the report.
Recommendations
(3) The report may set out recommendations to the Commonwealth Government.
(4) In formulating a recommendation that the Commonwealth Government should take particular action, the RTIRC must assess the costs and benefits of that action.
(5) Subsection (4) does not prevent the RTIRC from taking other matters into account in formulating a recommendation.
Government response to recommendations
(6) If a report sets out one or more recommendations to the Commonwealth Government:
(a) as soon as practicable after receiving the report, the Minister must cause to be prepared a statement setting out the Commonwealth Government’s response to the recommendations; and
(b) within 6 months after receiving the report, the Minister must cause copies of the statement to be tabled in each House of the Parliament.
(6A) A statement prepared under paragraph (6)(a) must contain an explanation of how the Commonwealth Government’s response to the recommendations will improve telecommunications services in regional, rural or remote parts of Australia.
(7) The Commonwealth Government’s response to the recommendations may have regard to the views of the following:
(a) participants in sections of the telecommunications industry (within the meaning of Part 6 of the Telecommunications Act 1997);
(b) the ACMA;
(c) the ACCC;
(d) the Telecommunications Industry Ombudsman;
(e) bodies or associations that represent the interests of consumers;
(f) such other persons as the Minister considers relevant.
Definitions
(8) In this section:
Australia has the same meaning as in section 158P.
telecommunications services has the same meaning as in section 158P.
Division 2—Regional Telecommunications Independent Review Committee (RTIRC)
158R Establishment of the RTIRC
There is to be a Regional Telecommunications Independent Review Committee.
158S Functions of the RTIRC
The RTIRC has the functions that are conferred on it by this Part.
158T Membership of the RTIRC
(1) The RTIRC is to consist of a Chair and at least 2 other members.
(2) A person may only be appointed as an RTIRC member if it appears to the Minister that the person has knowledge of, or experience in:
(a) matters affecting regional, rural and remote parts of Australia; or
(b) telecommunications.
(3) The Minister must ensure that:
(a) the RTIRC Chair is not a person covered by subsection (4); and
(b) a majority of the other RTIRC members are not persons covered by subsection (4).
(4) This subsection applies to the following persons:
(a) an employee of the Commonwealth;
(b) an employee of an authority of the Commonwealth;
(c) a person who holds a full‑time office under a law of the Commonwealth.
(4A) The Minister must ensure that at least one RTIRC member is nominated by an organisation that represents the interests of people, or bodies, in regional, rural or remote parts of Australia.
(5) The Minister must ensure that no RTIRC member is:
(a) a carriage service provider; or
(b) a partner in a carriage service provider partnership; or
(c) an officer or employee of a carrier; or
(d) an officer or employee of a carriage service provider; or
(e) an officer or employee of a partner in a carrier partnership; or
(f) an officer or employee of a partner in a carriage service provider partnership; or
(g) an officer or employee of a body corporate, where a related body corporate is:
(i) a carrier; or
(ii) a carriage service provider; or
(iii) a partner in a carrier partnership; or
(iv) a partner in a carriage service provider partnership.
(6) Section 11 of the Telecommunications Act 1997 (as applied by section 7 of this Act) does not apply to a reference in this section to Australia.
(7) In this section:
Australia does not include an external Territory prescribed for the purposes of section 10 of the Telecommunications Act 1997.
carriage service provider partnership means a partnership that is a carriage service provider.
carrier partnership means a partnership that is a carrier.
related body corporate has the same meaning as in the Corporations Act 2001.
158U Appointment of RTIRC members
(1) The RTIRC members are to be appointed by the Minister by written instrument.
(2) An RTIRC member holds office for the period specified in the instrument of appointment. The period must not exceed 4 years.
(3) An RTIRC member holds office on a part‑time basis.
158V Acting appointments—RTIRC Chair
The Minister may appoint an RTIRC member to act as the RTIRC Chair:
(a) during a vacancy in the office of the RTIRC Chair, whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the RTIRC Chair is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
158W Procedures
(1) The regulations may prescribe the procedures to be followed at or in relation to meetings of the RTIRC, including matters relating to the following:
(a) the convening of meetings of the RTIRC;
(b) the number of RTIRC members who are to constitute a quorum;
(c) the selection of an RTIRC member to preside at meetings of the RTIRC in the absence of the RTIRC Chair;
(d) the manner in which questions arising at a meeting of the RTIRC are to be decided.
(2) A resolution is taken to have been passed at a meeting of the RTIRC if:
(a) without meeting, a majority of RTIRC members indicate agreement with the resolution in accordance with the method determined by the RTIRC under subsection (3); and
(b) all RTIRC members were informed of the proposed resolution, or reasonable efforts had been made to inform all RTIRC members of the proposed resolution.
(3) Subsection (2) applies only if the RTIRC:
(a) determines that it applies; and
(b) determines the method by which RTIRC members are to indicate agreement with resolutions.
158X Disclosure of interests
(1) An RTIRC member who has a material personal interest in a matter being considered by the RTIRC must, as soon as possible after the relevant facts have come to the member’s knowledge, disclose the nature of the interest at a meeting of the RTIRC.
(2) The disclosure is to be recorded in the minutes of the meeting and, unless the Minister or the RTIRC otherwise determines, the RTIRC member must not:
(a) be present during any deliberation by the RTIRC about that matter; or
(b) take part in any decision of the RTIRC relating to that matter.
(3) For the purposes of the making of a determination by the RTIRC under subsection (2) in relation to an RTIRC member who has made a disclosure under subsection (1), an RTIRC member who has an interest in the matter to which the disclosure relates must not:
(a) be present during any deliberation of the RTIRC for the purposes of making the determination; or
(b) take part in the making by the RTIRC of the determination.
158Y Remuneration and allowances
(1) An RTIRC member is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed.
(2) An RTIRC member is to be paid the allowances that are prescribed.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
158Z Leave of absence
(1) The Minister may grant leave of absence to the RTIRC Chair on the terms and conditions that the Minister determines.
(2) The RTIRC Chair may grant leave of absence to an RTIRC member on the terms and conditions that the RTIRC Chair determines.
158ZA Resignation
An RTIRC member may resign his or her appointment by giving the Minister a written resignation.
158ZB Termination of appointment
(1) The Minister may terminate the appointment of an RTIRC member for misbehaviour or physical or mental incapacity.
(2) The Minister may terminate the appointment of an RTIRC member if:
(a) the RTIRC member:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with his or her creditors; or
(iv) makes an assignment of remuneration for the benefit of his or her creditors; or
(b) the RTIRC member is absent, except on leave of absence, for 3 consecutive meetings of the RTIRC; or
(c) the RTIRC member fails, without reasonable excuse, to comply with section 158X.
(3) The Minister may terminate the appointment of the RTIRC Chair if the RTIRC Chair becomes a person covered by subsection 158T(4).
(4) The Minister may terminate the appointment of an RTIRC member if the RTIRC member becomes a person covered by paragraph 158T(5)(a), (b), (c), (d), (e), (f) or (g).
158ZC Other terms and conditions
An RTIRC member holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.
158ZD Assistance to RTIRC
(1) Any or all of the following:
(a) the ACMA;
(b) the ACCC;
(c) the Department;
(d) any other Department, agency or authority of the Commonwealth;
may assist the RTIRC in the performance of its functions.
(2) The assistance may include the following:
(a) the provision of information;
(b) the provision of advice;
(c) the making available of resources and facilities (including secretariat services and clerical assistance).
(3) A reference in Parts 26 and 27 of the Telecommunications Act 1997 to the ACMA’s telecommunications functions includes a reference to the function conferred on the ACMA by subsection (1).
Part 10—Miscellaneous
159 Direction to Telstra to comply with this Act
(1) The Minister may, by written notice given to Telstra, direct Telstra to take specified action directed towards ensuring that Telstra complies with this Act.
(2) Before giving a direction under subsection (1), the Minister must consult Telstra.
(3) To avoid doubt:
(a) subsection (1) does not, by implication, limit a power conferred on the Minister, the ACMA or the ACCC by or under any other provision of a law; and
(b) subsection (1) is not limited by a power conferred on the Minister, the ACMA or the ACCC by or under any other provision of a law.
(4) Telstra must comply with a direction under subsection (1).
160 Regulations
(1) The Governor‑General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) The regulations may prescribe penalties, not exceeding 10 penalty units, for offences against the regulations.
