Telecommunications Legislation Amendment Act 1997
Act No. 200 of 1997 as amended
This compilation was prepared on 23 July 2002
[This Act was amended by Act No. 63 of 2002]
Amendment from Act No. 63 of 2002
[Schedule 2 (item 31) amended items 18, 19, 25, 26 and 27 of Schedule 2
Schedule 2 (item 31) commenced immediately after 22 April 1997]
Prepared by the Office of Legislative Drafting,
Attorney-General’s Department, Canberra
Contents
1 Short title...................................
2 Commencement...............................
3 Schedule(s)..................................
Schedule 1—Amendment of the Telecommunications Act 1997 in relation to telecommunication interception and related matters
Schedule 2—Other amendments of telecommunications legislation
Telecommunications Act 1997
Telecommunications (Transitional Provisions and Consequential Amendments) Act 1997
Trade Practices Act 1974
An Act to amend the law relating to telecommunications, and for related purposes
This Act may be cited as the Telecommunications Legislation Amendment Act 1997.
(1) Subject to subsections (2), (3) and (4), this Act commences on the day on which it receives the Royal Assent.
(2) Item 28 of Schedule 2 is taken to have commenced on 3 May 1997, immediately after the commencement of subsection 40(4) of the Telecommunications (Transitional Provisions and Consequential Amendments) Act 1997.
(3) Item 29 of Schedule 2 commences, or is taken to have commenced, immediately before the commencement of item 15 of Schedule 3 to the Telecommunications (Transitional Provisions and Consequential Amendments) Act 1997.
(4) Items 30, 31, 32, 33 and 34 of Schedule 2 are taken to have commenced on 30 April 1997, immediately after the commencement of Schedule 1 to the Trade Practices Amendment (Telecommunications) Act 1997.
Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
1 Section 7
Insert:
agency means:
(a) the Australian Federal Police; or
(b) a police force or service of a State or of a Territory; or
(c) the National Crime Authority; or
(d) the New South Wales Crimes Commission; or
(e) the Independent Commission Against Corruption of New South Wales; or
(f) the Criminal Justice Commission of Queensland; or
(g) the Australian Security Intelligence Organization; or
(h) the Police Integrity Commission; or
(i) a prescribed authority established by or under a law of the Commonwealth, a State or a Territory.
agency co-ordinator has the meaning given by section 7A.
IC plan means an instrument of a kind described in section 329:
(a) that is lodged in accordance with section 330 or 331; or
(b) that is so lodged and subsequently amended in accordance with section 332C or 332D.
interception related information means information about a matter that is the subject of an obligation under Division 2 of Part 15.
2 After section 7
Insert:
7A Agency co-ordinator
(1) In this Act:
agency co-ordinator means:
(a) if paragraph (b) does not apply—the Secretary to the Attorney-General’s Department in his or her capacity as agency co-ordinator; or
(b) if the Attorney-General determines in writing that a person or body is to act as the agency co-ordinator—the person or body in the capacity of that person or body as agency co‑ordinator.
(2) Unless the context otherwise requires, an act done by or in relation to the agency co-ordinator is taken to be an act done by or in relation to the agency co-ordinator on behalf of all the agencies.
(3) A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
3 After subsection 105(5)
Insert:
(5A) The ACA must monitor, and report each financial year to the Minister on, the operation of Parts 14 and 15 and on the costs of compliance with the requirements of those Parts.
4 Subsections 105(6) and (7)
Omit “or (5)”, substitute “, (5) or (5A)”.
5 Subsection 313(7)
Repeal the subsection, substitute:
(7) A reference in this section to giving help includes a reference to giving help by way of the provision of interception services, including services in executing an interception warrant under the Telecommunications (Interception) Act 1979.
Note: Additional obligations concerning interception capability, special assistance capability or agency specific delivery capability are, or may be, imposed on a carrier or carriage service provider under Part 15.
6 Subsection 314(2)
After “the requirement”, insert “(except to the extent that the compliance involves costs that are, in accordance with the principles set out in subsection (3A), required to be borne by the person)”.
7 Subsection 314(3)
Omit “The person”, substitute “Subject to subsection (3A), the person”.
8 After subsection 314(3)
Insert:
(3A) Any agreement or determination under subsection (3) setting out the terms and conditions on which a person is required to provide help to an agency must, so far as it relates to the cost of providing the help, reflect the following principles:
(a) the principle that, to the extent that the provision of the help involves an interception capability or a special assistance capability that is required of the person under Division 2 of Part 15 and relates to the transmission of interception related information, for the purposes of that agency, to a delivery point fixed under section 314A in respect of that agency—the cost of the help is to be borne by the person;
(b) the principle that, to the extent that the provision of the help involves an interception capability or a special assistance capability that is required of the person under Division 2 of Part 15 and relates to the transmission of interception related information from such a delivery point to another place specified by the agency—the cost of the help is to be borne by the agency;
(c) the principle that, to the extent that the provision of the help involves an agency specific delivery capability that is required of the person under Division 4 of Part 15 in relation to that agency—the cost of the help is to be borne by the agency.
(3B) Nothing in subsection (3A) affects, by implication, the question of allocation of costs in providing help to a person or body other than an agency.
9 After section 314
Insert:
314A Delivery points
(1) Each carrier or carriage service provider must, as soon as practicable after the commencement of this section:
(a) nominate, in respect of a carriage service of that carrier or provider and of each agency, at least one place in Australia as the location of a point (a delivery point) from which interception related information can most conveniently be transmitted to that agency; and
(b) inform the agency co-ordinator of the place or places nominated for each agency.
(2) The agency co-ordinator may, at any time, notify the carrier or provider that an agency does not agree to the location of a delivery point nominated in respect of that carriage service and that agency and, upon being so notified, the carrier or provider must nominate another location for that delivery point in the place of that first-mentioned location and inform the co‑ordinator.
(3) If the location of that delivery point is still unsatisfactory to the agency, the agency co-ordinator must:
(a) inform the carrier or provider to that effect; and
(b) refer the disagreement to the ACA for a determination under subsection (4).
(4) The ACA, after hearing the views of the carrier or provider and the views of the agency concerning the best location of that delivery point in relation to that carriage service and that agency, must determine the location of that delivery point for the purposes of this section.
(5) In determining the location of a delivery point, the carrier or provider and the agency or, failing agreement, the ACA, must have regard to:
(a) the configuration of the carriage service in respect of which the delivery point is required to be decided; and
(b) the relative costs to the carrier and the agency of any particular point that is chosen as that delivery point; and
(c) the reasonable needs of the agency; and
(d) the reasonable commercial requirements of the carrier or provider; and
(e) the location of any delivery points already existing in relation to that agency or other agencies.
(6) It is not a requirement that a place where an interception takes place is the place nominated as the location of a delivery point if, in accordance with the criteria set out in subsection (5), another more suitable location exists.
(7) If the carrier or provider and an agency do not agree on the location of a delivery point, then, until the ACA determines the location of that delivery point, the place last nominated by the carrier or provider is to be treated as that delivery point.
(8) If:
(a) the location of a delivery point has been determined by the ACA in respect of a carriage service and an agency; and
(b) as a result of a material change in the circumstances of the carrier or carriage service provider concerned, the location of that point becomes unsuitable;
the carrier or provider:
(c) may nominate another place as the location of that delivery point in respect of that carriage service and that agency; and
(d) must inform the agency co-ordinator of the place so nominated.
(9) If:
(a) the location of a delivery point has been determined by the ACA in respect of a carriage service and an agency; and
(b) as a result of a material change in the circumstances of the agency, the location of that point becomes unsuitable; and
(c) the agency, either directly or through the agency co‑ordinator, requests the carrier or provider to nominate another place as the location of that delivery point;
the carrier or provider concerned must:
(d) nominate another place as the location of that delivery point in respect of that carriage service and that agency; and
(e) inform the agency co-ordinator of the place nominated.
(10) Subsections (2) to (7) apply in relation to a nomination under subsection (8) or (9) as if it were a nomination under subsection (1).
10 Part 15
Repeal the Part, substitute:
Part 15—Co-operation with agencies
Division 1—Introduction
317 Simplified outline
The following is a simplified outline of this Part:
• Carriers and carriage service providers must comply with obligations concerning interception capability and special assistance capability.
• Exemption from compliance with these obligations may be granted in certain circumstances.
• Carriers and certain nominated carriage service providers must comply with the obligations to prepare and submit an annual interception capability plan.
• Carriers and certain nominated carriage service providers must notify ACA of technological changes affecting the provision of help under Part 14 in connection with a requirement under Division 2 of this Part.
• Carriers, carriage service providers and agencies are required to meet different costs associated with the provision of various capabilities related to interception.
• The Minister is to conduct a review of the cost‑effectiveness of interception.
318 Definition
In this Part:
nominated carriage service provider means a carriage service provider who is declared by the Attorney-General under section 331 to be a nominated carriage service provider.
319 Meaning of interception
For the purposes of this Part, interception of a communication passing over a controlled network or controlled facility consists of:
(a) listening to; or
(b) recording;
such a communication, by any means, in its passage over that network or facility without the knowledge of the person making the communication.
320 Meaning of interception capability, special assistance capability and agency specific delivery capability
(1) This section sets out the meaning of 3 important concepts used in this Part, namely:
(a) interception capability (relating to obligations under Division 2); and
(b) special assistance capability (relating to obligations under Division 2); and
(c) agency specific delivery capability (relating to obligations under Division 4).
These concepts do not overlap.
(2) In this Part, interception capability, in relation to a carriage service that involves, or will involve, the use of a controlled network or controlled facility, means the capability of the network or facility to enable a communication passing over it to be intercepted.
Note: The specific requirement of interception capability that applies to a particular carriage service is to be found either in a determination made under section 322 (see also section 323) or in section 324.
(3) In this Part, special assistance capability, in relation to a carriage service that involves, or will involve, the use of a controlled network or controlled facility, means the capability of the network or facility to render certain assistance to agencies. The assistance must:
(a) not relate to interception capability or the actual execution of an interception of a communication; and
(b) be related to a matter set out in an international standard or guidelines mentioned in subsection 322(4).
Note: The specific requirement of special assistance capability that applies to a particular carriage service is to be found in a determination made under section 322 (see also section 323).
(4) In this Part, agency specific delivery capability, in relation to a particular agency and to a carriage service that involves, or will involve, the use of a controlled network or a controlled facility, means the capability of the carrier or provider of the service, for the purpose of providing help to the agency under Part 14, to meet specific delivery requirements notified by the agency under section 332J.
Division 2—Obligations concerning interception and special assistance capabilities and exemption from those obligations
Subdivision A—Introduction
321 Purpose of Division
The purpose of this Division is to:
(a) provide for the Attorney-General’s power to make determinations in relation to interception capabilities or special assistance capabilities; and
(b) provide for obligations concerning interception capabilities or special assistance capabilities where the Attorney-General’s determination is applicable; and
(c) provide for obligations concerning interception capabilities where the Attorney-General’s determination is not applicable; and
(d) provide for exemptions from the obligations referred to in paragraph (b) or (c).
Subdivision B—Obligations
322 Attorney-General may make determinations
(1) The Attorney-General may make written determinations in relation to interception capabilities or special assistance capabilities applicable to a carriage service that involves, or will involve, the use of:
(a) a controlled network of a carrier or carriage service provider; or
(b) a controlled facility of a carrier or carriage service provider.
(2) A determination:
(a) must specify an international standard or guidelines (the international standard), or the relevant part of the international standard, on which the determination is based; and
(b) must provide for interception capability or special assistance capability by adopting, applying or incorporating the whole or a part of the international standard, with only such modifications as are necessary to facilitate the application of the standard or the relevant part of the standard in Australia (including any transitional arrangement in relation to an existing carriage service that might be required); and
(c) must be expressed to be a determination in relation to:
(i) interception capability only; or
(ii) special assistance capability only; or
(iii) both interception capability and special assistance capability; and
(d) if the determination is expressed to be a determination in relation to both interception capability and special assistance capability—must specify in the determination the part of the determination that relates to interception capability and the part of the determination that relates to special assistance capability; and
(e) must be accompanied by a copy of the international standard or of the relevant part of the international standard.
(3) A determination is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(4) For the purposes of subsection (2), the international standard or guidelines specified in a determination:
(a) must deal primarily with the requirements of agencies in relation to the interception of communications passing over a telecommunications network and related matters; and
(b) may be a part of an international agreement or arrangement or a proposed international agreement or arrangement.
323 Obligations of persons covered by a determination
(1) If a determination under section 322 applies to a carriage service that involves, or will involve, the use of a controlled network or controlled facility of a person who is a carrier or carriage service provider, the person must ensure that the supply of the service by that person complies with the determination.
(2) Without limiting subsection (1), if the person is required to have interception capability or special assistance capability in relation to a carriage service under the determination, the person is required to ensure that that capability is developed, installed and maintained.
Note: A person may be exempted from the requirements of this section under a provision of Subdivision C.
324 Obligations of persons not covered by a determination in relation to particular carriage service
(1) This section applies to a carriage service that involves, or will involve, the use of a controlled network or controlled facility of a person who is a carrier or carriage service provider if the service is not covered by any determination under section 322 that is expressed to be a determination in relation to:
(a) interception capability only; or
(b) both interception capability and special assistance capability.
(2) The person must ensure that the network or facility has the interception capability to enable a communication passing over the network or facility to be intercepted in accordance with a warrant issued under the Telecommunications (Interception) Act 1979.
(3) Without limiting subsection (2), the obligation under that subsection in relation to the possession of an interception capability includes the obligation to ensure that that capability is developed, installed and maintained.
Note 1: A person may be exempted from the requirements of this section under a provision of Subdivision C.
Note 2: A person may be required to comply with the special assistance capability requirements under a determination made under section 322 as well as the interception capability requirements under this section.
Subdivision C—Exemptions
325 The Minister may grant exemption
(1) The Minister may, with the written agreement of the Attorney‑General, exempt a specified person from all or any of the obligations imposed on the person under Subdivision B in so far as those obligations relate to a specified carriage service.
Note: Because of the operation of subsection 46(2) of the Acts Interpretation Act 1901 an exemption under subsection (1) may be granted in respect of a specified class of person.
(2) The exemption must be in writing.
(3) The exemption may be:
(a) unconditional; or
(b) subject to such conditions as are specified in the exemption.
326 The agency co-ordinator may grant exemption
(1) The agency co-ordinator may exempt a specified person from all or any of the obligations imposed on the person under Subdivision B in so far as those obligations relate to a specified carriage service.
Note: Because of the operation of subsection 46(2) of the Acts Interpretation Act 1901 an exemption under subsection (1) may be granted in respect of a specified class of person.
(2) The exemption must be in writing.
(3) The exemption may be:
(a) unconditional; or
(b) subject to such conditions as are specified in the exemption.
327 ACA may grant exemption when authorising trial services
(1) The ACA may exempt a specified person from all or any of the obligations imposed on the person under Subdivision B in so far as those obligations relate to a carriage service that is a trial service.
Note: Because of the operation of subsection 46(2) of the Acts Interpretation Act 1901 an exemption under subsection (1) may be granted in respect of a specified class of person.
(2) The ACA must not grant an exemption unless the ACA, after consulting any agencies that the ACA considers appropriate, is satisfied that the exemption is unlikely to create a risk to national security or law enforcement.
(3) The exemption must be in writing.
(4) The exemption may be:
(a) unconditional; or
(b) subject to such conditions as are specified in the exemption.
Division 3—Interception capability plans
328 Purpose of Division
The purpose of this Division is to outline the nature of interception capability plans, the circumstances in which carriers and nominated carriage service providers are required to prepare such plans and the means by which such plans are considered and adjusted.
329 Nature of an interception capability plan
(1) An interception capability plan (IC plan) of a carrier or nominated carriage service provider is a written instrument setting out:
(a) a statement of the policies of the carrier or provider in relation to interception generally and of its strategies for compliance with its legal obligation to provide interception capabilities in relation to carriage services that involve, or will involve, the use of a controlled network, or controlled facility, of the carrier or provider; and
(b) a statement of any relevant developments in the business of the carrier or provider that are proposed and that, if implemented, is likely to affect those interception capabilities, within the period of 5 years from the start of the plan; and
(c) a list of employees of the carrier or provider with responsibility for interception and other relevant matters; and
(d) a description of the strategies of the carrier or provider for minimising long term costs associated with interception; and
(e) any other matters determined by the Minister to be relevant to the IC plan.
(2) For the purposes of paragraph (1)(e), a determination by the Minister that a matter is a relevant matter:
(a) must be made by written instrument; and
(b) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(3) On receipt by it of an IC plan of a carrier or nominated carriage service provider, the ACA, the agency co-ordinator and each agency that receives the plan:
(a) must treat the plan as confidential; and
(b) must ensure that it is not disclosed to any person or body not referred to in this subsection without the written permission of the carrier or provider.
330 Carriers’ obligations in relation to IC plans
(1) A carrier must lodge an IC plan with the ACA and the agency co‑ordinator:
(a) unless paragraph (b) applies—by 1 January of each year that follows the commencement of this Part; and
(b) if the carrier becomes a carrier (whether before or after the commencement of this Part) on a day occurring less than 90 days before the next following 1 January—within 90 days of the day of so becoming a carrier and by each 1 January thereafter.
(2) Despite subsection (1), a carrier who lodges a first IC plan less than 120 days before the next following 1 January is not obliged under this section to lodge another IC plan before the first anniversary of that next following 1 January.
331 Nominated carriage service providers’ obligations in relation to IC plans
(1) A carriage service provider nominated under subsection (3) must lodge an IC plan with the ACA and the agency co-ordinator:
(a) unless paragraph (b) applies—by 1 January of each year that follows the commencement of this Part; and
(b) if the nominated carriage service provider becomes a nominated carriage service provider on a day occurring less than 90 days before the next following 1 January—within 90 days after the day of that nomination and by each 1 January thereafter.
(2) Despite subsection (1), a nominated carriage service provider who lodges a first IC plan less than 120 days before the next following 1 January is not obliged under this section to lodge another IC plan before the first anniversary of that next following 1 January.
(3) For the purposes of this section, the Attorney-General may, by determination in writing, declare a carriage service provider to be a nominated carriage service provider.
332 Lodgment of IC plans
An IC plan is taken to have been lodged with the ACA or the agency co-ordinator when the plan, or a copy of the plan, is received at an office of the ACA or of the agency co-ordinator (as the case requires) by an officer authorised to receive it.
332A Commencement of IC plans
(1) Each IC plan that is required to be lodged under section 330 or 331 has effect on and from the date of its lodgment with the ACA.
(2) Each IC plan, as amended in accordance with section 332C or 332D, has effect on and from the date of its lodgment with the ACA.
332B Compliance with IC plans and amended IC plans
From the date of effect of:
(a) an IC plan lodged under section 330 or 331; or
(b) an IC plan amended in accordance with section 332C or 332D;
the carrier or provider whose plan it is must ensure that its business activities are consistent with the plan, or with the plan as so amended.
332C Consideration of IC plans
(1) Within:
(a) 60 days after receipt by the agency co-ordinator of the IC plan from a carrier or nominated carriage service provider; or
(b) such longer periods as the ACA, in the circumstances of the case, specifies to be a reasonable period for the purpose;
the co-ordinator must:
(c) give agencies that, in the opinion of the co-ordinator, are likely to be interested in the plan, an opportunity to comment on the plan; and
(d) give the carrier or provider concerned copies of any agency comments received in respect of the plan; and
(e) if any agency comment requests an amendment of the plan (an amendment request)—request that the carrier or provider respond to each such amendment request within 30 days (the response period) after giving the carrier or provider the agency comments referred to in paragraph (b).
(2) The carrier or provider may respond to an amendment request either:
(a) by indicating its acceptance of the request and amending its IC plan appropriately; or
(b) by indicating that it does not accept the request and providing its reasons for that non-acceptance.
(3) If the response of the carrier or provider to an amendment request involves the preparation of an amended IC plan, that plan must be lodged with the ACA and the agency co-ordinator within the response period.
(4) If the carrier or provider does not, in the carrier or provider’s response, accept an amendment request, the agency co-ordinator must:
(a) refer all the original comments, the amended IC plan (if any), the response and the agencies’ further comments to the ACA; and
(b) request the ACA to determine whether any amendment, or further amendment, of the IC plan is required;
unless, within 30 days after the end of the response period, the co-ordinator is satisfied that the agencies accept the amended IC plan (if any) and the response.
(5) When the ACA has completed its consideration of the question whether any amendment of an IC plan, or of an IC plan as amended, is required, the ACA must determine, in writing:
(a) that the IC plan as originally lodged, or as amended, is satisfactory; or
(b) if, in the opinion of the ACA:
(i) particular comments made by the agencies and not addressed in the IC plan as originally lodged, or as amended, are reasonable; but
(ii) the carrier or provider’s response to those comments is not reasonable;
that the plan as so lodged, or as so amended, should be amended in a specified manner to take account of those comments.
(6) On receipt of a determination under paragraph (5)(b), the carrier or provider concerned must:
(a) amend its IC plan, or its IC plan as already amended, to take account of that determination; and
(b) lodge the plan, amended to take account of the determination, with the ACA; and
(c) notify the Minister, the agency co-ordinator and, if the agency co-ordinator is not the Attorney-General, the Attorney-General, that it has lodged such a plan.
(7) The Minister, the agency co-ordinator, the Attorney-General or any agency may, at any time after the notification under paragraph (6)(c), request the carrier or provider to provide a copy of the plan lodged under paragraph (6)(b).
332D Consequences of changed business plans
(1) If, because of changes to the business plans of a carrier or nominated carriage service provider, an IC plan lodged by that carrier or provider ceases, during the period before another such IC plan is due to be lodged, to constitute an adequate IC plan in relation to that carrier or provider, the carrier or provider must, subject to subsection (2) and having regard to those changed plans:
(a) prepare an amended IC plan; and
(b) lodge the amended IC plan with the ACA and agency co‑ordinator forthwith.
(2) Subsection (1) applies only if the change in business plans:
(a) has, or is likely to have, a material adverse effect on the ability of the carrier or provider to comply with its obligations under Division 2; and
(b) does not take place within 120 days of the last day on which the next IC plan could be lodged by the carrier or provider concerned.
(3) If an amended IC plan is lodged under subsection (1), the amended plan is itself subject to consideration in accordance with section 332C.
Division 4—Requirement arising from proposed technological changes
332E Purpose of Division
The purpose of the Division is:
(a) to require carriers and nominated carriage service providers to give notice of the particulars of any new technology, or change to existing technology, whose implementation may affect the capacity of the carrier or provider to provide help to agencies under Part 14 in relation to a matter that is the subject of an obligation under Division 2 of this Part; and
(b) to give agencies a reasonable opportunity to consult those carriers and providers concerning the likely effect of that new technology or that change on that capacity; and
(c) to give individual agencies, through the agency co-ordinator, a reasonable opportunity to specify delivery requirements suitable to those individual agencies that are required if that new technology or that change is implemented.
332F Carrier or provider to notify impending technological change
(1) If, at any time, a carrier or a nominated carriage service provider becomes aware that the implementation by the carrier or provider of:
(a) a new technology; or
(b) a change to existing technology;
is likely to have a material adverse effect on the capacity of the carrier or provider to provide help to agencies under Part 14 in relation to a matter that is the subject of an obligation under Division 2 of this Part, the carrier or provider must notify the ACA in writing of its intention to implement that new technology or that change.
(2) A notification provided under subsection (1) must include a description of the new technology or change in technology proposed.
(3) A carrier or provider who has notified the ACA of a new technology or of a change to existing technology must not implement that new technology or that change:
(a) until the agencies have had an opportunity to consult with the carrier or provider in accordance with section 332G; and
(b) if, as a result of that consultation, the agency co-ordinator informs the carrier or provider on behalf of an agency of particular delivery requirements of that agency that are related to that new technology, or to that change—until the carrier or provider is able to meet the obligations imposed by subsection 332J(6) in respect of those requirements.
332G ACA to give agencies a reasonable opportunity to consult on new technology
(1) As soon as practicable after the ACA has been notified by a carrier or nominated carriage service provider of an intention to implement a new technology or a change in an existing technology, the ACA must, in whatever manner it thinks appropriate (including, for example, by an arrangement with the agency co-ordinator), ensure:
(a) that agencies likely to be interested in the proposed implementation are notified of it; and
(b) that, for a specified period (the consultation period) that the ACA determines is reasonable in the circumstances, those agencies have an opportunity to consult with the carrier or provider concerned on the likely effect of the proposed implementation on the capacity of the carrier or provider to provide help in relation to a matter that is the subject of an obligation under Division 2 of this Part.
(2) On receipt by it of the notification of a carrier or provider of an intention to implement a new technology or a change to existing technology, the ACA, the agency co-ordinator (if the co-ordinator is involved) and each agency that receives notification of the proposed implementation from the ACA or the co-ordinator:
(a) must treat the proposed implementation as confidential; and
(b) must ensure that it is not disclosed to any person or body not referred to in this subsection without the written permission of the carrier or provider.
332H Extensions to consultation periods
(1) The ACA may, if the ACA thinks it reasonable to do so, on the written request of an agency, extend the consultation period.
(2) If the ACA does extend the consultation period:
(a) the period is taken to have been extended for all agencies involved in the consultation; and
(b) the ACA must ensure that the carrier or provider concerned and, either directly or through the co-ordinator, each agency involved in the consultation, are notified of the extension.
332J Delivery requirements arising from implementation of new or altered technology
(1) If, in the course of its consultations concerning new technology or a change to existing technology, an agency decides that the carrier or provider concerned should meet specific delivery requirements of that agency in providing help to the agency under Part 14 in relation to a matter that is the subject of an obligation under Division 2 of this Part and that involves that new technology or that change, it must, within the consultation, notify those delivery requirements to the agency co-ordinator.
(2) The delivery requirements of an agency that may be notified under subsection (1) constitute all or any of the following:
(a) the format in which information covered by an obligation under Division 2 of this Part is to be delivered to the agency; and
(b) the place to which, and manner in which, the information covered by that obligation is to be delivered; and
(c) any ancillary information that should accompany the information covered by that obligation.
(3) If only one agency notifies the agency co-ordinator of delivery requirements involving that new technology or that altered technology, the agency co-ordinator must notify the carrier or provider of the delivery requirements of that agency.
(4) If different delivery requirements are notified to the agency co‑ordinator by different agencies, the co-ordinator must, unless the requirements are mutually inconsistent, on behalf of the agencies, notify the carrier or provider of the delivery requirements of each of the agencies.
(5) If different delivery requirements notified to the agency co‑ordinator are, in the opinion of the co-ordinator, mutually inconsistent, the co-ordinator must, after consulting the agencies concerned:
(a) determine delivery requirements for each agency that, in the opinion of the co-ordinator, constitutes the fairest compromise between the conflicting requirements; and
(b) notify each agency concerned of that determination; and
(c) on behalf of each agency concerned, notify the carrier or provider of its determination.
(6) If delivery requirements are notified to a carrier or provider under this section, that carrier or provider must take all practical steps to ensure that the carriage service concerned has a capability (an agency specific delivery capability) to meet those delivery requirements.
(7) Without limiting subsection (6), the obligation under that subsection in relation to an agency specific delivery capability includes the obligation to ensure the development, installation and maintenance of, the capability.
Note: This obligation is additional to the obligation to provide an interception capability and any special assistance capability, imposed on the carrier or provider under Division 2.
Division 5—Allocation of costs in relation to interception, special assistance, and agency specific delivery capabilities
332K Purpose of Division
This Division sets out the principles for the allocation between a carrier or carriage service provider and an agency of the costs of developing, installing and maintaining:
(a) an interception capability required in accordance with Division 2; and
(b) a special assistance capability required in accordance with Division 2; and
(c) an agency specific delivery capability required in accordance with Division 4.
Note: The actual cost of the provision of help to an agency in particular circumstances, including the cost of the execution of a warrant under the Telecommunications (Interception) Act 1979, is dealt with under Part 14.
332L Distribution of the costs of interception, special assistance, and agency specific delivery capabilities
(1) The capital and ongoing costs of developing, installing and maintaining an interception capability, or a special assistance capability, imposed on a carrier or carriage service provider under Division 2 in respect of a specified carriage service of a carrier or a carriage service provider are required to be borne by the carrier or provider.
(2) The capital and ongoing costs, worked out in accordance with section 332N, of developing, installing and maintaining an agency specific delivery capability imposed on a carrier or carriage service provider under Division 4 are to be borne by the agency concerned.
332M Exception to the cost distribution set out in section 332L
(1) The Attorney-General may make a written determination to the effect that a digital telephone service:
(a) that operates on the standard known as the Global System for Mobile; and
(b) that is offered by a carrier or carriage service provider specified in the determination;
is a service to which this section applies.
(2) Despite subsection 332L(1), the capital and ongoing costs incurred on or after 1 July 1997 of developing, installing and maintaining an interception capability or a special assistance capability in relation to a service to which this section applies are to be borne not by the carrier or provider concerned but by the agencies on the same basis as was provided under the Telecommunications Act 1991 as in force before that date.
332N Working out costs of agency specific delivery capabilities
(1) Each carrier or carriage service provider who is obliged to ensure the development, installation and maintenance of an agency specific delivery capability must ensure that that capability is developed, installed and maintained on such terms and conditions:
(a) as are agreed in writing between the carrier or provider and the agency concerned; or
(b) in the absence of such an agreement—as are determined by the ACA.
(2) The terms and conditions on which a carrier or provider is to provide an agency specific delivery capability must be consistent with the following principles:
(a) the principle that the most cost effective means of ensuring the development, installation and maintenance of that capability is employed;
(b) the principle that the carrier or provider is to incur the costs (whether of a capital nature or otherwise) relating to the development, installation and maintenance of that capability;
(c) the principle that the carrier or provider may, over time, recover from an agency such of those costs as are required, under section 332L, to be borne by that agency.
(3) Nothing in subsection (2) prevents a carrier or provider from entering into an agreement with more than one agency.
(4) The agreement should also provide that if the working out of the costs to a particular agency of developing, installing and maintaining an agency specific delivery capability is the subject of a disagreement between the carrier or provider and that agency:
(a) the agency may request the ACA to arbitrate the matter; and
(b) if it does so, those costs are to be as determined by the ACA.
(5) The regulations may make provision in relation to the conduct of an arbitration by the ACA under this section.
(6) The existence of a cost dispute in relation to an agency specific delivery capability does not affect the obligations of the carrier or provider in respect of that capability while that dispute is being resolved.
(7) If, as a result of the arbitration of a cost dispute between the carrier or provider and an agency, the ACA concludes that a lesser rate of charge would have been available, the carrier or provider:
(a) must allow the agency credit for any costs already charged to the extent that they were worked out at a rate that exceeds that lesser rate; and
(b) must adjust its means of working out future costs;
to take account of that conclusion.
(8) For the purposes of this section, any reference in this section to terms and conditions agreed between a carrier or provider and an agency includes a reference to terms and conditions agreed between the carrier or provider and:
(a) in the case of an agency of the State—the State, on behalf of the agency; and
(b) in the case of an agency of the Commonwealth—the Commonwealth, on behalf of the agency.
332P Examination of lower cost options
(1) In undertaking an arbitration under section 332N, the ACA may on its own initiative or at the request of an agency, by notice in writing given to a carrier or carriage service provider, require the carrier or provider:
(a) to examine, at the expense of the carrier or provider, the possibility of a lower cost option than the one designated by the carrier or provider for providing an agency specific delivery capability; and
(b) to report to the ACA, within a period specified in the notice, on the results of that examination.
(2) If a carrier or provider receives a notice under subsection (1), the carrier or provider must, within the period specified in the notice:
(a) carry out the examination concerned; and
(b) report in writing to the ACA on the results of the examination.
332Q ACA may require independent audit of costs
(1) In undertaking an arbitration under section 332N, the ACA may, by notice in writing, require a carrier or carriage service provider to arrange for an audit of the costs claimed to have been incurred by the carrier or provider in relation to the provision to an agency of an agency specific delivery capability.
(2) Subject to subsection (3), the audit is to be carried out by an auditor selected by the carrier or provider and approved by the ACA.
(3) If the auditor selected by a carrier or provider is not approved by the ACA, the ACA may require that the audit be carried out by an auditor selected by the ACA or by the ACA itself.
(4) Unless the audit is carried out by the ACA itself, the ACA may, in the notice requiring the audit, specify the period within which the auditor is to report to the ACA.
(5) If a carrier or provider receives a notice under this section, the carrier or provider:
(a) must co-operate in full with the person or body carrying out the audit; and
(b) must bear the costs of the audit.
Division 6—Review of cost-effectiveness of interception
332R Minister to conduct review etc.
(1) Before 1 July 1999, the Minister, in consultation with the Attorney-General, must:
(a) cause a review to be conducted to assess the longer term cost‑effectiveness of the arrangements provided for in Parts 14 and 15 that relate to the funding of telecommunications interception; and
(b) prepare a written report on the review.
(2) 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 day on which the report is made.
11 Application
Except as provided for under section 332M:
(a) Part 14 of the Telecommunications Act 1997 as amended by this Act applies in relation to costs of providing help to agencies under that Part; and
(b) Part 15 of that Act as so amended applies in relation to costs of developing, installing and maintaining interception capabilities, special assistance capabilities and agency specific delivery capabilities under that Part;
only to the extent that those costs are incurred after the commencement of this item.
1 Section 104
Add at the end:
• The ACA may be directed by the Minister to monitor, and report on, specified matters relating to the performance of carriers and carriage service providers.
Note: The heading to section 105 is amended by adding at the end “—annual report”.
2 At the end of Part 5
Add:
105A Monitoring of performance—additional report
(1) The ACA must monitor, and report to the Minister on, specified matters relating to the performance of carriers and carriage service providers in accordance with any written direction given by the Minister to the ACA.
(2) The ACA must give a report under subsection (1) to the Minister:
(a) if paragraph (b) does not apply—as soon as practicable after the end of a period specified in the direction; or
(b) if the direction requires the report to be given before a specified time—before that time.
3 Paragraph 245(b)
Omit “or (ii)”, substitute “, (ii) or (iii)”.
4 Paragraphs 350(1)(b) and (2)(b)
Repeal the paragraphs.
5 After sections 406
Insert:
406A Application of Division to agent of manufacturer or importer
For the purposes of this Act and to avoid doubt, a reference in this Division to a manufacturer or importer of customer equipment or customer cabling includes a reference to a person who is authorised in writing by such a manufacturer or importer to act in Australia as an agent of the manufacturer or importer (as the case may be) for the purposes of this Division.
6 Subsection 407(1)
Omit “manufactures or imports”, substitute “is a manufacturer or importer of”.
7 Paragraph 408(5)(d)
After “the manufacturer”, insert “or importer”.
8 Paragraph 413(1)(a)
Omit “has manufactured or imported”, substitute “is a manufacturer or importer of”.
9 Transitional provision—labelling requirements
(1) In this item:
ACA means the Australian Communications Authority.
section 407 instrument means an instrument made under section 407 of the Telecommunications Act.
Telecommunications Act means the Telecommunications Act 1997.
transitional period means the period beginning when the first section 407 instrument came into force and ending immediately before the commencement of this item.
(2) For the purposes of the operation of the Telecommunications Act in relation to the transitional period, that Act, and any section 407 instrument in force during that period, have effect as if:
(a) a reference to a person who manufactures or imports customer equipment or customer cabling; or
(b) a reference to a manufacturer or importer of customer equipment or customer cabling;
were also a reference to a person who, at any time during the transitional period, was authorised (whether because of actual or apparent authority) to act in Australia as an agent of a manufacturer or importer of customer equipment or customer cabling for the purposes of Division 7 of Part 21 of the Telecommunications Act.
10 Subsection 458(3)
Omit “(1)”, substitute “(2)”.
11 Clause 4 of Schedule 1
Add at the end:
(2) A carrier must at all times have a current industry development plan.
(3) For the purposes of subclause (2), a carrier has a current industry development plan if the carrier has given the plan to the Industry Minister and the Industry Minister has approved the plan.
12 Subclause 8(1) of Schedule 1
Omit “giving the Industry Minister an industry development plan, a”, substitute “the Industry Minister has approved a carrier’s industry development plan, the”.
13 Subclause 9(1) of Schedule 1
Repeal the subclause, substitute:
(1) A carrier may vary an industry development plan if the carrier has given a copy of the proposed variation to the Industry Minister and the Industry Minister has approved it.
(1A) As soon as practicable after varying an industry development plan under subclause (1), a carrier must make a summary of the variation available to the public.
14 Clause 11 of Schedule 1
Repeal the clause, substitute:
11 Formulation of plan or variation—Commonwealth government policy about industry development
(1) The Industry Minister may, by notice published in the Gazette, declare that a particular Commonwealth government policy (the declared policy) is relevant in formulating an industry development plan or a variation of an industry development plan.
(2) The notice:
(a) may include the whole or a summary of the declared policy; and
(b) if the whole of the declared policy is not included in the notice—must state where and when a copy of the declared policy can be obtained.
(3) An applicant for a carrier licence must have regard to the declared policy when formulating an industry development plan.
(4) A carrier must have regard to the declared policy when formulating a variation of an industry development plan.
15 Paragraph 5(1)(b) of Schedule 3
Repeal the paragraph, substitute:
(b) do anything on the land that is necessary or desirable for that purpose, including, for example:
(i) making surveys, taking levels, sinking bores, taking samples, digging pits and examining the soil; and
(ii) felling and lopping trees and clearing and removing other vegetation and undergrowth; and
(iii) closing, diverting or narrowing a road or bridge; and
(iv) installing a facility in, over or under a road or bridge; and
(v) altering the position of a water, sewerage or gas main or pipe; and
(vi) altering the position of an electricity cable or wire.
16 Paragraph 5(2)(b) of Schedule 3
Repeal the paragraph, substitute:
(b) do anything on the entered land that is necessary or desirable for that purpose, including, for example:
(i) making surveys and taking levels; and
(ii) felling and lopping trees and clearing and removing other vegetation and undergrowth; and
(iii) closing, diverting or narrowing a road or bridge; and
(iv) installing a facility in, over or under a road or bridge; and
(v) altering the position of a water, sewerage or gas main or pipe; and
(vi) altering the position of an electricity cable or wire.
17 Paragraph 17(6)(a) of Schedule 3
After “Division”, insert “2 (which deals with inspection of land), 3 (which deals with installation of facilities) or”.
18 After subclause 17(6) of Schedule 3
Insert:
(6A) Subclause (1) does not apply if:
(a) the carrier intends to engage in an activity under Division 2, 3 or 4 in relation to the installation, proposed installation or maintenance of a temporary defence facility; and
(b) the carrier considers that compliance with subclause (1) is impracticable in the circumstances.
(6B) For the purposes of this clause, a temporary defence facility is a facility of the kind that is mentioned in paragraph 6(1)(c) of this Schedule.
19 Subclause 18(1) of Schedule 3
After “Division”, insert “2,”.
20 After subclause 18(3) of Schedule 3
Insert:
(3A) Subclauses (1) and (2) do not apply if:
(a) the carrier intends to engage in an activity under Division 2, 3 or 4 in relation to the installation, proposed installation or maintenance of a temporary defence facility; and
(b) the carrier considers that compliance with subclause (1) is impracticable in the circumstances.
(3B) For the purposes of this clause, a temporary defence facility is a facility of the kind mentioned in paragraph 6(1)(c) of this Schedule.
21 Paragraph 18(4)(a) of Schedule 3
After “Division”, insert “2 (which deals with inspection of land), 3 (which deals with installation of facilities) or”.
22 After subclause 19(2) of Schedule 3
Insert:
(2A) Subclause (1) does not apply if:
(a) the carrier intends to engage in an activity under Division 2, 3 or 4 in relation to the installation, proposed installation or maintenance of a temporary defence facility; and
(b) the carrier considers that compliance with subclause (1) is impracticable in the circumstances.
(2B) For the purposes of this clause, a temporary defence facility is a facility of the kind mentioned in paragraph 6(1)(c) of this Schedule.
23 Paragraph 19(3)(a) of Schedule 3
After “Division”, insert “2 (which deals with inspection of land), 3 (which deals with installation of facilities) or”.
24 Subclauses 27(1) and (2) of Schedule 3
Repeal the subclauses, substitute:
Criteria
(1) The ACA must not issue a facility installation permit that authorises a carrier to carry out the installation of one or more facilities unless the ACA is satisfied that:
(a) the telecommunications network to which the facilities relate is, or is likely to be, of national significance; and
(b) the facilities are, or are likely to be, an important part of the telecommunications network to which the facilities relate; and
(c) any of the following conditions is satisfied:
(i) the greater part of the infrastructure of the telecommunications network to which the facilities relate has already been installed;
(ii) the greater part of the infrastructure of the telecommunications network to which the facilities relate has not been installed but each administrative authority whose approval was required or would, apart from Division 3, be required, for the installation of the greater part of the infrastructure of the network has given, or is reasonably likely to give, such approval;
(iii) no part of the infrastructure of the telecommunications network to which the facilities relate has been installed, but each administrative authority whose approval was required or would, apart from Division 3, be required, for the installation of the greater part of the infrastructure of the network has given, or is reasonably likely to give, such an approval; and
(d) the advantages that are likely to be derived from the operation of the facilities in the context of the telecommunications network to which the facilities relate outweigh any form of degradation of the environment that is likely to result from the installation of the facilities; and
(e) in a case where none of the facilities consists of a designated overhead line—the conditions set out in subclause (2) are satisfied; and
(f) in a case where any of the facilities consists of a designated overhead line—all the conditions set out in subclause (2A) are satisfied.
Conditions relating to facilities other than designated overhead lines
(2) For the purposes of paragraph (1)(e), the following conditions are specified:
(a) the carrier has made reasonable efforts to negotiate in good faith with:
(i) each proprietor whose approval is required, or would, apart from Division 3, be required, for carrying out the installation; and
(ii) each administrative authority whose approval is required, or would, apart from Division 3, be required, for carrying out the installation; and
(b) one of the following subparagraphs applies:
(i) at least one approval that is referred to in subparagraph (a)(i) has not been obtained within 20 business days after the beginning of the negotiations concerned;
(ii) at least one approval that is referred to in subparagraph (a)(ii) has not been obtained within 6 months after the beginning of the negotiations concerned;
(iii) at least one approval that is referred to in paragraph (a) has been refused.
Conditions relating to facilities consisting of designated overhead lines
(2A) For the purposes of paragraph (1)(f), the following conditions are specified:
(a) the carrier has made reasonable efforts to negotiate in good faith with each proprietor whose approval is required, or would, apart from Division 3, be required, for carrying out the installation; and
(b) at least one of those approvals has not been obtained within 20 business days after the beginning of the negotiations concerned; and
(c) each administrative authority whose approval is required, or would, apart from Division 3, be required, for the installation of the line has given such an approval.
25 Subclause 27(3) of Schedule 3
Omit “(d)”, substitute “(a)”.
26 Subclause 27(4) of Schedule 3
Omit “(e)”, substitute “(b)”.
27 Subclause 27(5) of Schedule 3
Omit “(g)”, substitute “(d)”.
28 Subsection 40(4)
Insert:
eligible service has the same meaning as in section 152AL of the Trade Practices Act 1974.
29 Item 15 of Schedule 3
Omit “55(1)(a)”, substitute “56(1)(a)”.
30 Paragraph 151AJ(5)(f)
Omit “49(9)(d)”, substitute “47(9)(d)”.
31 Paragraph 152AL(3)(b)
After “505”, insert “of”.
32 Subsection 152AM(5)
After “505”, insert “of”.
33 Paragraph 152AN(2)(a)
After “498”, insert “of”.
34 Paragraph 152CT(2)(d)
Omit “a another”, substitute “another”.