Telecommunications Legislation Amendment (Future Proofing and Other Measures) Act 2005

No. 117, 2005

An Act to amend the law relating to telecommunications, and for other purposes

[Assented to 23 September 2005]

The Parliament of Australia enacts:

This Act may be cited as the Telecommunications Legislation Amendment (Future Proofing and Other Measures) Act 2005.

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table	The day on which this Act receives the Royal Assent.	23 September 2005
2. Schedules 1 and 2	The day on which this Act receives the Royal Assent.	23 September 2005
3. Schedule 3	A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.	23 March 2006
4. Schedule 4, items 1 to 6	The later of: (a) the start of the day on which this Act receives the Royal Assent; and (b) immediately after the commencement of Part 1 of Schedule 1 to the Telstra (Transition to Full Private Ownership) Act 2005. However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur.	23 September 2005 (paragraph (b) applies)
5. Schedule 4, item 7	The day on which this Act receives the Royal Assent.	23 September 2005

Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Communications Fund and Connect Australia package

Telecommunications (Consumer Protection and Service Standards) Act 1999

1 Before Part 10

Insert:

Part 9C—Communications Fund

Division 1—Introduction

158ZE Simplified outline

The following is a simplified outline of this Part:

• This Part sets up the Communications Fund.

• Money in the Fund will be used to finance the implementation of the Commonwealth Government’s response to the recommendations of the Regional Telecommunications Independent Review Committee.

• Money in the Fund may be invested in financial assets.

158ZF Definitions

In this Part:

debenture has the same meaning as in the Corporations Act 2001.

derivative has the same meaning as in Chapter 7 of the Corporations Act 2001.

financial asset means:

(a) a debenture, stock or bond issued by a government; or

(b) a share in, or debenture of, a body; or

(d) a unit of a debenture, share or interest covered by paragraph (a), (b) or (c);

and includes:

(e) a derivative; and

(f) an asset (other than tangible property) specified in the regulations.

Fund means the Communications Fund established by section 158ZG.

Fund Account means the Communications Fund Special Account established by section 158ZH.

investment means any mode of application of money or other property for the purpose of gaining a return (whether by way of income, capital gain or any other form of return).

investment of the Fund means a financial asset that, under subsection 158ZK(2), 158ZO(3), 158ZQ(2) or section 158ZR, is taken to be an investment of the Fund.

managed investment scheme has the same meaning as in the Corporations Act 2001.

realise includes redeem or dispose of.

responsible Ministers means:

(a) the Minister administering the Financial Management and Accountability Act 1997; and

(b) the Minister administering this Act.

State includes the Australian Capital Territory and the Northern Territory.

unit, in relation to a share, debenture or other interest, has the same meaning as in the Corporations Act 2001.

Division 2—Establishment of the Communications Fund

158ZG Establishment of the Communications Fund

(1) The Communications Fund is established by this section.

(2) The Communications Fund consists of:

(a) the Fund Account; and

(b) the investments of the Fund.

158ZH Establishment of the Communications Fund Special Account

(1) The Communications Fund Special Account is established by this section.

(2) The Fund Account is a Special Account for the purposes of the Financial Management and Accountability Act 1997.

158ZI Purposes of the Fund Account

(1) The purposes of the Fund Account are as follows:

(a) the purpose of implementing the Commonwealth Government’s response to any of the recommendations set out in a report under section 158Q, so long as the response relates to telecommunications services in regional, rural or remote parts of Australia;

(b) a purpose incidental or ancillary to the above purpose;

Note: Section 158Q deals with reports of reviews by the Regional Telecommunications Independent Review Committee.

(2) In this section:

Australia has the same meaning as in section 158P.

telecommunications services has the same meaning as in section 158P.

158ZJ Credit of $2 billion to the Fund Account

(1) The sum of $2 billion is to be credited to the Fund Account on the first business day after the later of:

(a) the day on which the Telecommunications Legislation Amendment (Future Proofing and Other Measures) Act 2005 receives the Royal Assent; and

(b) the day on which the Telstra (Transition to Full Private Ownership) Act 2005 receives the Royal Assent.

Note: The balance of the Fund may exceed $2 billion as a result of future investment growth.

(2) However, the sum of $2 billion is not to be credited to the Fund Account if the event mentioned in paragraph (1)(b) does not occur.

(3) In this section:

business day means a day that is not:

(a) a Saturday; or

(b) a Sunday; or

158ZK Transfer of financial assets to the Fund

(1) This section applies to a financial asset of the Commonwealth.

(2) The responsible Ministers may, by writing, determine that:

(a) a specified financial asset; or

(b) each of 2 or more specified financial assets;

is taken to be an investment of the Fund.

(3) A determination under subsection (2) has effect accordingly.

(4) A determination under subsection (2) is irrevocable.

(5) If a determination under subsection (2) about a financial asset or financial assets is in force, this Act does not prevent the realisation of the asset or assets in accordance with section 158ZP.

(6) A determination under subsection (2) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.

(7) To avoid doubt, a determination under subsection (2) is not a Telstra sale scheme for the purposes of the Telstra Corporation Act 1991.

158ZL Grant of financial assistance to a State

(1) This section applies if:

(a) an amount is to be debited from the Fund Account for the purpose of making a grant of financial assistance to a State; and

(b) the grant is covered by paragraph 158ZI(c).

(2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the State.

(3) An agreement under subsection (2) may be entered into by the Secretary of the Department on behalf of the Commonwealth.

158ZM Grant of financial assistance to a person other than a State

(1) This section applies if:

(a) an amount is to be debited from the Fund Account for the purpose of making a grant of financial assistance to a person other than a State; and

(b) the grant is covered by paragraph 158ZI(c).

(2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the person.

(3) An agreement under subsection (2) may be entered into by the Secretary of the Department on behalf of the Commonwealth.

158ZN Delegation by Secretary of the Department

(1) The Secretary of the Department may, by writing, delegate to an SES employee, or acting SES employee, in the Department all or any of the powers conferred on the Secretary by this Division.

(2) The delegate is, in the exercise of the power delegated under subsection (1), subject to the written directions of the Secretary of the Department.

Division 3—Investment of the Communications Fund

158ZO Investment of the Fund

(1) The responsible Ministers may authorise the investment of money standing to the credit of the Fund Account in any financial asset.

(2) Investments under subsection (1) are to be made in the name of the Commonwealth.

(3) Investments under subsection (1) are taken to be investments of the Fund.

(4) The Consolidated Revenue Fund is appropriated as necessary for the purposes of this section.

(5) This section does not authorise the acquisition of a derivative.

Note: For acquisition of derivatives, see section 158ZQ.

158ZP Management of investments of the Fund

(1) Income derived from an investment of the Fund is to be credited to the Fund Account.

(2) A return of capital, or any other financial distribution, relating to an investment of the Fund is to be credited to the Fund Account.

(3) Expenses of an investment of the Fund are to be debited from the Fund Account.

(4) The responsible Ministers may authorise the realisation of an investment of the Fund.

(5) Upon realisation of an investment of the Fund, the proceeds of the investment are to be credited to the Fund Account.

(6) At any time before an investment of the Fund matures, the responsible Ministers may authorise the re‑investment of the proceeds upon maturity in an investment with the same entity.

Note: The proceeds of investment of the original investment will not become public money when the investment matures because the proceeds will not be received by or on behalf of the Commonwealth.

(7) The Consolidated Revenue Fund is appropriated as necessary for the purposes of this section.

(8) Section 39 of the Financial Management and Accountability Act 1997 does not apply to an investment of the Fund.

158ZQ Derivatives

(1) The responsible Ministers may authorise the acquisition of a derivative for the purpose of:

(a) enhancing or protecting the value of an investment of the Fund (other than a derivative); or

(b) enhancing or protecting the return on an investment of the Fund (other than a derivative).

(2) A derivative acquired under subsection (1) is taken to be an investment of the Fund.

(3) A derivative acquired under subsection (1) is to be held in the name of the Commonwealth.

(4) The cost of acquiring a derivative under subsection (1) is to be debited from the Fund Account.

(5) The Consolidated Revenue Fund is appropriated as necessary for the purposes of this section.

158ZR Bonus shares etc.

If, as a result of:

(a) the Commonwealth’s holding of an investment of the Fund; or

(b) the exercise of any rights or powers conferred on the Commonwealth in its capacity as the holder of an investment of the Fund;

the Commonwealth becomes the holder of a financial asset, that financial asset is taken to be an investment of the Fund.

2 After section 159A

Insert:

159B Connect Australia package

(1) The Parliament acknowledges the Commonwealth Government’s intention to introduce legislation to appropriate $1.1 billion for the Connect Australia package.

Note: The Connect Australia package was announced by the Minister on 17 August 2005.

(2) The Parliament also acknowledges the Commonwealth Government’s intention that the $1.1 billion for the Connect Australia package will be in addition to the Communications Fund.

Schedule 2—Independent reviews of regional telecommunications etc.

Telecommunications (Consumer Protection and Service Standards) Act 1999

1 Subsection 5(2)

Insert:

RTIRC means the Regional Telecommunications Independent Review Committee established by section 158R.

2 Subsection 5(2)

Insert:

RTIRC Chair means the Chair of the Regional Telecommunications Independent Review Committee.

3 Subsection 5(2)

Insert:

RTIRC member means a member of the Regional Telecommunications Independent Review Committee, and includes the RTIRC Chair.

4 After Part 9A

Insert:

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

(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 the eligible Territories.

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;

(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;

(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

(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 the eligible Territories.

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

(1) 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.

(2) Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because:

(a) the occasion for the appointment had not arisen; or

(b) there was a defect or irregularity in connection with the appointment; or

(d) the occasion to act had not arisen or had ceased.

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;

(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

(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;

(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;

(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).

Schedule 3—Costs of development of consumer‑related industry codes

Telecommunications Act 1997

1 After Division 6 of Part 6

Insert:

Division 6A—Reimbursement of costs of development of consumer‑related industry codes

136A Application for eligibility for reimbursement of costs of development of consumer‑related industry code

(1) If a body or association proposes to develop an industry code that:

(a) applies to participants in a particular section of the telecommunications industry; and

(b) deals with one or more matters relating to the telecommunications activities of those participants; and

(c) deals wholly or mainly with one or more matters relating to the relationship between carriage service providers and their retail customers;

the body or association may apply to the ACMA for a declaration that the body or association is eligible for reimbursement of refundable costs incurred by it in developing the code.

Note: For refundable cost, see section 136E.

Form of application etc.

(2) An application must be:

(a) in writing; and

(b) in accordance with the form approved in writing by the ACMA; and

(i) an estimate of the total of the refundable costs likely to be incurred by the body or association in developing the code; and

(ii) a statement breaking down that estimate into categories of refundable costs.

Further information

(3) The ACMA may, within 20 business days after an application is made, request the applicant to give the ACMA, within the period specified in the request, further information about the application.

(4) The ACMA may refuse to consider the application until the applicant gives the ACMA the information.

Definition

(5) In this section:

business day means a day on which the ACMA is open for business in the Australian Capital Territory and in Victoria.

136B Declaration of eligibility for reimbursement of costs of development of consumer‑related industry code

(1) If a body or association makes an application under subsection 136A(1) for a declaration in relation to a code, the ACMA must make the declaration if it is satisfied that:

(a) the body or association represents the section of the telecommunications industry referred to in paragraph 136A(1)(a); and

(b) the code will deal wholly or mainly with one or more matters relating to the relationship between carriage service providers and their retail customers; and

(c) the process for developing the code, as outlined in the application, is likely to ensure that the interests of those retail customers are adequately represented in relation to the development of the code; and

(d) the total of the refundable costs likely to be incurred by the body or association in developing the code, as set out in the estimate that accompanied the application, is reasonable.

(2) If the ACMA is not satisfied as to the matters set out in subsection (1), the ACMA must, by written notice given to the applicant, refuse to make the declaration.

(3) A declaration under this section is irrevocable, and remains in force for 2 years.

(4) A declaration under this section is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.

136C Reimbursement of costs of developing consumer‑related industry code

Reimbursement of costs

(1) If:

(a) a section 136B declaration was made in relation to the development of an industry code by a body or association; and

(b) when the section 136B declaration was in force, the body or association gave a copy of the code to the ACMA under section 117; and

(c) the ACMA is satisfied that the code deals wholly or mainly with one or more matters relating to the relationship between carriage service providers and their retail customers; and

(d) the ACMA is satisfied that the process for the development of the code ensured that the interests of those retail customers were adequately represented in relation to the development of the code; and

(e) the copy of the code was accompanied by:

(i) a written statement itemising one or more costs incurred by the body or association in developing the code; and

(ii) a written claim for reimbursement of those costs; and

(iii) a written declaration by an approved auditor that he or she is of the opinion that the subparagraph (i) statement complies with the approved auditing requirements; and

(iv) a written statement describing the process for the development of the code; and

(f) the ACMA is satisfied that each of the costs itemised in the subparagraph (e)(i) statement:

(i) is a refundable cost incurred by the body or association in developing the code; and

(ii) was incurred when the section 136B declaration was in force;

the ACMA must, by written notice given to the body or association, determine that the body or association is entitled to be paid a specified amount.

Note: For refundable cost, see section 136E.

(2) The specified amount must be equal to whichever is the lesser of the following:

(a) the total of the costs itemised in the subparagraph (1)(e)(i) statement;

(b) the estimate that accompanied the application for the section 136B declaration.

(3) The ACMA, on behalf of the Commonwealth, must pay the specified amount to the body or association within 30 days after the day on which the body or association was notified under subsection (1) of its entitlement to be paid that amount.

(4) The Consolidated Revenue Fund is appropriated for payments under this section.

Approved auditors and approved auditing requirements

(5) The ACMA may make a written determination specifying:

(a) the persons who are to be approved auditors for the purposes of this section; and

(b) the requirements that are to be approved auditing requirements for the purposes of this section.

Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.

(6) A determination under subsection (5) has effect accordingly.

(7) A determination under subsection (5) is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

136D Costs—transactions between persons not at arm’s length

If:

(a) a body or association has incurred a cost in connection with a transaction where the parties to the transaction are not dealing with each other at arm’s length in relation to the transaction; and

(b) apart from this section, the cost is counted for the purposes of the application of this Division to the body or association; and

the amount of the cost is taken, for the purposes of the application of this Division in relation to the body or association, to be the amount that would have been reasonable if the parties were dealing with each other at arm’s length.

136E Refundable cost

(1) For the purposes of this Division, a refundable cost incurred by a body or association in developing a code is a cost incurred by the body or association in developing the code other than a cost specified in a written determination made by the ACMA under this subsection.

Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.

(2) A determination under subsection (1) is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

Schedule 4—Other amendments

Telstra Corporation Act 1991

1 After section 8AK

Insert:

8AKA Authorisation of borrowing—issue of sale‑scheme hybrid securities

To the extent to which the issue of sale‑scheme hybrid securities under a Telstra sale scheme involves a borrowing of money by the Commonwealth, that borrowing is authorised by this section.

Note: Section 37 of the Financial Management and Accountability Act 1997 provides that an agreement for the borrowing of money by the Commonwealth is of no effect unless the borrowing is authorised by an Act.

2 Subsection 8AL(2)

Omit “costs and expenses”, substitute “costs, expenses and obligations”.

3 At the end of subsection 8AL(2)

Add:

; (h) calls on guarantees given by the Commonwealth;

(i) obligations to make payments of amounts in relation to sale‑scheme hybrid securities issued by the Commonwealth (for example, payments of interest).

4 Subsection 8AL(3)

Repeal the subsection.

5 Subsection 8AS(5)

Repeal the subsection.

6 Subsection 8BA(4)

Repeal the subsection.

7 Subsection 8BUA(1)

After “regional”, insert “, rural or remote”.

Note: The heading to section 8BUA is altered by inserting “, rural or remote” after “regional”.

[Minister’s second reading speech made in—

House of Representatives on 7 September 2005

Senate on 13 September 2005]

(147/05)