the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.
General objects of Act
3. The objects of this Act include:
(a) ensuring that the standard telephone service supplied by Telecom (namely, the public switched telephone service):
(i) is supplied as efficiently and economically as practicable;
(ii) is, in view of the social importance of the service, reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and
(iii) is supplied at performance standards that reasonably meet the social, industrial and commercial needs of the Australian community;
(b) maximising the efficiency of the carriers and enabling them to meet their commercial and general governmental obligations and, in the case of Telecom, its community service obligations;
(c) ensuring that the carriers achieve the highest possible levels of accountability and responsiveness to customer and community needs;
(d) achieving optimal rates of expansion and modernisation for Australia’s telecommunications infrastructure and networks, and, for example, the introduction of new and diverse telecommunications services;
(e) enabling all sectors of the Australian telecommunications industry to participate effectively in Australian and overseas telecommunications markets on a commercial basis; and
(f) promoting the development of other sectors of the Australian economy through the commercial supply of a full range of modern telecommunications services at the lowest possible prices.
Interpretation—definitions
4. In this Act, unless the contrary intention appears:
“adjacent area”, in relation to a State or Territory, has the same meaning as in the Petroleum (Submerged Lands) Act 1967;
“appropriate fee”, in relation to an application, means the fee imposed by the Telecommunications (Application Fees) Act 1989 in relation to applications of that kind;
“AUSSAT” means AUSSAT Pty Ltd;
“AUSTEL” means the Australian Telecommunications Authority;
“Australia”, when used in a geographical sense, includes the external Territories;
“basic telephone service” means, subject to the regulations, a public switched telephone service that is supplied by Telecom to a customer
by means of a telephone handset that does not have switching functions;
“cabling licence” means a licence issued under Division 5 of Part 5 to perform cabling work;
“cabling work” means:
(a) the installation of customer cabling for connection to a telecommunications network operated by a carrier;
(b) the connection of customer cabling to a telecommunications network operated by a carrier; or
(c) the maintenance of customer cabling connected to a telecommunications network operated by a carrier;
“carrier” means Telecom, OTC or AUSSAT;
“carry” includes transmit, switch and receive;
“Chairperson” means the Chairperson of AUSTEL;
“charge” includes:
(a) a fee; and
(b) a nil charge or fee;
“class licence” means a class licence issued under Subdivision A of Division 3 of Part 4;
“communication” includes any communication:
(a) whether between persons and persons, things and things or persons and things; and
(b) whether:
(i) in the form of:
(a) speech, music or other sounds;
(b) data;
(c) text;
(d) visual images, whether or not animated; or
(e) signals; or
(ii) in any other form or in any combination of forms;
“community service obligations”, in relation to Telecom, means obligations under section 27 of the Australian Telecommunications Corporation Act 1989;
“competitive facility” means a facility in relation to which subsection 43 (2) or section 45 or 46 applies;
“convention” means a convention to which Australia is a party or an agreement or arrangement between Australia and a foreign country;
“customer cabling” means a line that:
(a) is, or is intended to be, connected to a telecommunications network operated by a carrier; and
(b) is used, or intended for use, beyond the boundaries of any such telecommunications network;
“customer equipment” means equipment that:
(a) is, or is intended to be, connected to a telecommunications network operated by a carrier; and
(b) is used, or intended for use, beyond the boundaries of any such telecommunications network;
but, subject to the regulations, does not include a receiver or a radiocommunications transmitter;
“earth-based facility” means a facility other than a satellite-based facility;
“equipment” means any apparatus or equipment used, or intended for use, in or in connection with a telecommunications network, but does not include a line;
“facility” means any part of the infrastructure of a telecommunications network, and includes any line, equipment, tower, antenna, tunnel, hole, pit, pole or other structure or thing used, or intended for use, in or in connection with a telecommunications network;
“Federal Court” means the Federal Court of Australia;
“install” includes alter, move, remove and replace;
“licensee” means a natural person who is the holder of a cabling licence;
“line” means any wire, cable, optical fibre, tube, conduit, waveguide or other physical medium used, or intended for use, in or in connection with a telecommunications network;
“maintain” includes adjust and repair;
“member” means, subject to section 160, a member of AUSTEL;
“Ombudsman” means the Commonwealth Ombudsman;
“OTC” means OTC Limited;
“permit” means a permit issued under Division 4 of Part 5 for connection of customer equipment to a telecommunications network;
“prescribed external Territory” means Norfolk Island, Christmas Island or Cocos (Keeling) Islands;
“prescribed international telecommunications supplier” means a person (other than a carrier) who:
(a) is recognised by the government of a foreign country as a supplier of international telecommunications services; and
(b) is prescribed for the purposes of this definition;
“primary communications carriage” has the meaning given by section 53;
“private network service” means a telecommunications service only for the carriage of private traffic:
(a) by the person supplying the service; or
(b) by persons all of whom have a common interest with each other, whether the service is supplied by one of those persons or by 2 or more of those persons;
and includes such a telecommunications service that is supplied (in whole or part) within the boundaries of a telecommunications network operated by a carrier, but does not include a value added service;
“public payphone” means a payphone that is used, or intended for use, by the public generally;
“public reserved services” means reserved services other than leased circuit services;
“public telecommunications network” means a telecommunications network used, or intended for use, in the supply of telecommunications services that are available to the public generally;
“radiocommunication” has the same meaning as in the Radiocommunications Act 1983;
“radiocommunications transmitter” has the same meaning as in the Radiocommunications Act 1983;
“receiver” has the same meaning as in the Radiocommunications Act 1983;
“reserved facility” means a facility in relation to which subsection 43 (1) or section 44, 47 or 48 applies;
“reserved service” has the meaning given by subsection 52 (1);
“reserved service charge” means:
(a) a rental fee or other charge for or in relation to a facility used, or intended for use, in relation to the supply of a reserved service by a carrier; or
(b) any other fee or charge for or in relation to the supply of a reserved service by a carrier;
“satellite-based facility” means a facility in a satellite;
“supply”, in relation to a private network service, includes supply of the service by a person for the person’s own purposes;
“Telecom” means the Australian Telecommunications Corporation;
“telecommunications network” means a system, or series of systems, for carrying communications by means of guided or unguided electromagnetic energy or both, but does not include a system, or series of systems, for carrying communications solely by means of radiocommunication;
“telecommunications service” means a service for carrying communications by means of guided or unguided electromagnetic energy or both, but does not include a service for carrying communications solely by means of radiocommunication;
“value added service” has the meaning given by subsection 52 (2).
Interpretation—meaning of equipment etc. connected to network
5. For the purposes of this Act, equipment, or a line or other facility, is connected to a telecommunications network if the equipment, line or other facility (either by itself or in conjunction with any other thing) is being used to supply, or is installed or connected for use to supply, telecommunications services by means of the network, whether or not the equipment, line or other facility is comprised in, or is in physical contact with any part of, the network.
Interpretation—meaning of person entitled to use satellite-based facilities operated by AUSSAT
6. For the purposes of this Act, a person is entitled to use satellite-based facilities operated by AUSSAT, or telecommunications services supplied by AUSSAT, if the person is entitled to use the facilities or services under:
(a) an approval of AUSSAT; or
(b) an agreement between AUSSAT and the person.
Interpretation—meaning of cadastrally separated
7. For the purposes of this Act, places or persons are cadastrally separated if:
(a) the places or persons are not situated in contiguous areas of land or in the same premises; or
(b) if the places or persons are situated in contiguous areas of land or in the same premises—the areas of land, or the areas of the premises, in which the places or persons are situated are owned or occupied by different persons or, if the areas are owned and occupied by the same person, there are different titles in relation to the areas (whether or not those titles are registered under a law of a State or Territory relating to the registration of interests in land).
Interpretation—meaning of supply under a class licence of value added service or private network service
8. For the purposes of this Act, a value added service or private network service is supplied under a class licence if:
(a) supplying the service is permitted under the class licence; and
(b) the service is supplied in accordance with the conditions of the licence.
Interpretation—meaning of customer equipment of same type
9. For the purposes of this Act, an item of customer equipment is of the same type as another item of customer equipment if:
(a) the items were produced to specifications that do not differ in any material respect; and
(b) the respective ways in which each of the items were produced do not differ in any material respect.
Interpretation—meaning of common interest
10. For the purposes of this Act, a person has a common interest with another person if, under directions given to AUSTEL under subsection 73 (2), the person is to be taken to have a common interest with the other person.
Extraterritorial operation of Act
11. This Act applies both within and outside Australia.
Extension of Act to external Territories
12. This Act extends to the external Territories.
Extension of Act to adjacent areas
13. (1) Subject to subsection (2), this Act applies in relation to the adjacent areas of the States and Territories as if references to Australia (when used in a geographical sense) included references to the adjacent areas.
(2) The application of this Act in relation to the adjacent areas of the States and Territories extends only in relation to acts, matters and things touching, concerning, arising out of or connected with the exploration of, or the exploitation of the resources of, the continental shelf of Australia.
(3) Without limiting subsection (2), the application of this Act in relation to the adjacent areas of the States and Territories because of subsection (1) extends in relation to all acts done by or in relation to, and all matters, circumstances and things affecting, any person who is in the adjacent area of a State or Territory for a reason touching, concerning, arising out of or connected with the exploration of, or the exploitation of the resources of, the continental shelf of Australia.
Act binds the Crown
14. This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory, of the Northern Territory and of Norfolk Island.
Act subject to Radiocommunications Act
15. This Act has effect subject to the Radiocommunications Act 1983.
PART 2—ESTABLISHMENT, FUNCTIONS AND POWERS OF AUSTEL
Establishment of AUSTEL
16. An authority by the name of the Australian Telecommunications Authority is established.
AUSTEL is body corporate etc.
17. The Australian Telecommunications Authority:
(a) is a body corporate with perpetual succession;
(b) shall have a common seal; and
(c) may sue and be sued in its corporate name.
General functions—overall responsibilities of AUSTEL
18. The functions of AUSTEL include responsibility for:
(a) economic and technical regulation of the Australian telecommunications industry, including, in particular, implementation
of the Commonwealth Government’s industry policies relating to telecommunications;
(b) giving advice and assistance to the Australian telecommunications industry; and
(c) giving reports and advice to the Minister in relation to the industry.
General functions—protection of carrier reservations
19. The functions of AUSTEL include protecting the integrity of the networks, facilities and services reserved to the carriers and, for that purpose:
(a) regulating the boundaries between the reserved and competitive facilities and services;
(b) monitoring, and reporting to the Minister on, the areas in which this Act and the Radiocommunications Act 1983 overlap;
(c) regulating competition and relations between the carriers; and
(d) regulating the supply of competitive facilities and services.
General functions—protection of competitors from unfair practices of carriers
20. The functions of AUSTEL include protecting the suppliers of competitive facilities and services from unfair practices of the carriers, and generally promoting fair and efficient market conduct in relation to the supply of competitive facilities and services, and, for those purposes:
(a) regulating the manner in which the reserved facilities and services of carriers are made available to suppliers of competitive facilities and services; and
(b) regulating the manner in which the carriers supply competitive facilities and services.
General functions—protection of consumers from unfair practices
21. The functions of AUSTEL include protecting consumers from unfair practices of carriers and other persons in the supply of telecommunications services, the supply, installation or maintenance of customer equipment or the performance of cabling work and, for that purpose:
(a) receiving and investigating consumer complaints;
(b) referring consumer complaints to the Ombudsman or the Trade Practices Commission in appropriate cases; and
(c) monitoring, and reporting to the Minister on, reserved service charges.
General functions—promotion of efficiency of carriers etc.
22. The functions of AUSTEL include monitoring, and reporting to the Minister on:
(a) the appropriateness of the boundaries between the reserved and competitive facilities and services;
(b) the efficiency with which each of the carriers supplies reserved facilities and services;
(c) the adequacy and quality of the reserved facilities and services supplied by each of the carriers;
(d) the appropriateness and adequacy of the strategies and policies that Telecom is following to carry out its community service obligations; and
(e) the efficiency with which Telecom is carrying out those obligations.
General functions—technical regulation
23. The functions of AUSTEL include ensuring the safety and quality of telecommunications services and, for that purpose:
(a) regulating the connection of customer equipment to telecommunications networks;
(b) regulating the performance of cabling work; and
(c) issuing guidelines in relation to:
(i) the supply of telecommunications services;
(ii) the connection of customer equipment to telecommunications networks; and
(iii) the performance of cabling work.
Other functions
24. In addition to its functions under sections 18 to 23 (inclusive), AUSTEL has such other functions as are conferred on it by this or any other Act.
General powers
25. (1) AUSTEL has power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions.
(2) Subsection (1) is not limited by any other provision of this or any other Act that confers a power on AUSTEL.
AUSTEL and carriers to prevent use of networks and facilities in commission of offences
26. AUSTEL and each of the carriers shall, in exercising their respective powers, use their best endeavours to ensure that telecommunications networks and facilities operated by the carriers are not used in, or in relation to, the commission of offences against the laws of the Commonwealth and of the States and Territories.
General governmental obligations of AUSTEL
27. AUSTEL shall perform its functions in a manner consistent with:
(a) any general policies of the Commonwealth Government notified by the Minister under section 28;
(b) any directions given by the Minister under section 29; and
(c) Australia’s obligations under any convention.
Minister may notify AUSTEL of general policies of Commonwealth Government
28. (1) The Minister may notify AUSTEL of general policies of the Commonwealth Government that are to apply in relation to AUSTEL.
(2) AUSTEL shall ensure that the policies are carried out.
(3) A notification under subsection (1) shall be given in writing.
Minister may give directions to AUSTEL
29. (1) The Minister may give written directions to AUSTEL in relation to the performance of its functions and the exercise of its powers.
(2) The Minister shall not, under subsection (1), give a direction that he or she is empowered to give under section 73 or 111.
(3) A direction under subsection (1) shall be published in the Gazette.
AUSTEL not otherwise subject to government direction
30. Except as otherwise provided by or under this or any other Act, AUSTEL is not subject to direction by or on behalf of the Commonwealth Government.
Consultation
31. In the performance of its functions and the exercise of its powers, AUSTEL shall, where it is appropriate and practicable to do so, consult with government, commercial, industrial, consumer, standards and other relevant bodies and organisations.
Advisory committees
32. (1) AUSTEL may, in writing, establish advisory committees to assist it in carrying out any of its functions.
(2) An advisory committee shall consist of such persons as AUSTEL from time to time appoints to the committee.
(3) AUSTEL may give an advisory committee written directions as to:
(a) the way in which the committee is to carry out its functions; and
(b) procedures to be followed in relation to meetings.
PART 3—REGULATION OF TELECOMMUNICATIONS NETWORKS
Division 1—Preliminary
Declaration of policy—infrastructure and networks
33. (1) It is the intention of the Parliament:
(a) that the carriers should provide Australia’s public telecommunications infrastructure and networks;
(b) that Telecom and AUSSAT should provide Australia’s national public telecommunications infrastructure and networks;
(c) that OTC should provide:
(i) Australia’s international public telecommunications infrastructure; and
(ii) Australia’s access to international public telecommunications networks; and
(d) that the shared use and resale of simple carriage of communications over private telecommunications networks should continue to be restricted to prevent undue diversion of communications from public telecommunications networks.
(2) In paragraphs (1) (a) and (b):
“Australia” does not include a prescribed external Territory.
Declaration of policy—domestic satellite system
34. It is the intention of the Parliament that AUSSAT should continue to have the exclusive right to provide the space segment of Australia’s domestic satellite system.
Declaration of policy—supply of facilities
35. It is the intention of the Parliament:
(a) that Telecom should continue its role as the sole supplier of the first telephone until at least 30 June 1991;
(b) that Telecom should continue to have the exclusive right to supply, install and maintain public payphones;
(c) that, with certain limited exceptions, each carrier should have the exclusive right to supply, install, maintain and operate all equipment, lines and other facilities that are connected to, and within the boundaries of, a telecommunications network operated by it; and
(d) that, subject to paragraphs (a) and (b), the supply, installation, maintenance and operation of all equipment, lines and other facilities that are connected to, but beyond the boundaries of, a telecommunications network operated by a carrier should be open to competition.
Declaration of policy—supply of reserved services
36. (1) It is the intention of the Parliament that the carriers should have the exclusive right to supply certain telecommunications services.
(2) These services are:
(a) public switched telephone services;
(b) public switched data services;
(c) public switched text and video services;
(d) public switched Integrated Services Digital Networks (ISDN);
(e) leased circuit services; and
(f) public mobile telephone services.
Division 2—Telecommunications networks and facilities
Operation etc. of networks to supply telecommunications services between places within Australia otherwise than by satellite-based facilities
37. (1) Subject to this section and section 39, Telecom has the exclusive right to install, maintain and operate telecommunications networks to supply telecommunications services between places within Australia (other than places all of which are within a particular prescribed external Territory).
(2) Without limiting subsection (1), Telecom has the exclusive right to install, maintain and operate networks to supply public switched telephone services between places within Australia (other than places all of which are within a particular prescribed external Territory).
(3) OTC may install, maintain and operate telecommunications networks to supply telecommunications services that it has the right to supply under Division 3 between places in Australia.
(4) AUSSAT may install, maintain and operate telecommunications networks to supply telecommunications services between places in Australia that it has the right to supply under Division 3.
(5) Subsections (1) and (2) do not prevent OTC or AUSSAT from doing anything for Telecom.
(6) Subsections (1), (2) and (3) do not authorise Telecom or OTC to operate any satellite-based facility.
Operation etc. of networks to supply telecommunications services from and to Australia
38. (1) Subject to this section and section 39, OTC has the exclusive right to install, maintain and operate telecommunications networks within Australia to supply telecommunications services between places within Australia and places outside Australia.
(2) Without limiting subsection (1), OTC has the exclusive right to install, maintain and operate networks within Australia to supply public switched telephone services between places within Australia and places outside Australia.
(3) AUSSAT may install, maintain and operate telecommunications networks within Australia to supply telecommunications services between places within Australia and places outside Australia that it has the right to supply under Division 3.
(4) This section does not prevent Telecom or AUSSAT from doing anything for OTC.
Exceptions to reservation of networks to carriers
39. Sections 37 and 38 do not apply in relation to:
(a) a telecommunications network so far as the network is operated, or intended to be operated, solely by means of radiocommunication;
(b) a telecommunications network operated, or intended to be operated, by the Australian National Railways Commission or a State or Territory transport authority solely for carrying communications necessary or desirable for the workings of train, bus or tram services for which the Commission or authority is responsible;
(c) a telecommunications network operated, or intended to be operated, by the Australian Broadcasting Corporation, the Special Broadcasting Service, or the holder of a licence or permit under the Broadcasting Act 1942, solely for supplying broadcasting or television services by the Corporation, Service or holder to members of the public;
(d) a telecommunications network operated, or intended to be operated, by a person if the network:
(i) is only capable of being used for carrying communications on land or within premises owned or occupied by the person; and
(ii) is, or is intended to be, used solely for the person’s own purposes; or
(e) a telecommunications network so far as the network is operated by means of facilities in relation to which an authorisation was in force under paragraph 13 (1) (a) of the Telecommunications Act 1975 immediately before the repeal of that Act.
Boundaries of public switched telephone network—line running to customer land or premises
40. (1) Where the public switched telephone network is used, or intended to be used, to supply telecommunications services for a person by means of a line running to land or premises owned or occupied by the person, the boundary of the network in relation to the supply of the services is, subject to the regulations, the outside of the first interface point on the line within the land or premises, that is, the side of the first interface point that would result in the interface point being within the boundary of the network.
(2) In subsection (1):
“interface point” means an interface point at which customer equipment or customer cabling may, under technical standards determined by AUSTEL under Division 2 of Part 5, connect with the public switched telephone network.
Boundaries of public switched telephone network—public switched mobile telephone service
41. Where the public switched telephone network is used, or intended to be used, to supply public switched mobile telephone services for a person, the boundary of the network in relation to the supply of the services is,
subject to the regulations, the outside of the fixed facility nearest to the person that is used, or intended to be used, to supply the services, that is, the side of the facility that would result in the facility being within the boundary of the network.
Boundaries of networks generally
42. (1) The regulations may make provision for and in relation to determining the boundaries of the public switched telephone network (other than in relation to the supply of a service to which section 40 or 41 applies) or any other network.
(2) Without limiting subsection (1), the regulations may make provision for and in relation to determining the equipment, lines and other facilities that are to be taken to be beyond, or not beyond, the boundaries of a telecommunications network (including the public switched telephone network in relation to the supply of a service to which section 40 or 41 applies).
Supply etc. of facilities connected to carrier networks
43. (1) Subject to subsection (3) and sections 44, 45 and 46, a carrier has the exclusive right to supply, install, maintain and operate all equipment, lines and other facilities that are connected to, and within the boundaries of, a telecommunications network operated by it.
(2) Subject to sections 44, 47 and 48, the supply, installation, maintenance and operation of all equipment, lines and other facilities that are connected to, but beyond the boundaries of, a telecommunications network operated by a carrier are open to competition.
(3) Subsection (1) does not apply in relation to a facility in relation to which an authorisation was in force under paragraph 13 (1) (a) of the Telecommunications Act 1975 immediately before the repeal of that Act.
(4) Subsection (1) does not prevent a carrier from doing anything for another carrier.
Operation of satellite-based facilities
44. (1) Subject to subsection (2), AUSSAT has the exclusive right to operate satellite-based facilities for or in relation to the supply of telecommunications services between places within Australia.
(2) OTC may operate satellite-based facilities to supply any telecommunications services that it has the right to supply under Division 3.
(3) Subsection (1) does not prevent Telecom or OTC from doing anything for AUSSAT.
Earth-based facilities incidental to satellite services
45. AUSSAT, or a person entitled to use satellite-based facilities operated by AUSSAT or telecommunications services supplied by AUSSAT, may install, maintain and operate an earth-based facility that is necessary or
desirable for the use of the facilities or services, including an earth-based facility for carrying communications between a satellite earth station and premises owned or occupied, and used, by AUSSAT or the person.
Authorisations to supply etc. facilities within boundaries of a network
46. (1) Subject to subsection (3), AUSTEL may, in writing, authorise a person to supply, install, maintain and operate a facility that is connected to, and within the boundaries of, a network operated by a carrier.
(2) The authorisation is subject to any conditions specified in it.
(3) AUSTEL shall not grant an authorisation unless:
(a) the carrier has agreed to the granting of the authorisation and the conditions to which the authorisation is to be subject; and
(b) if the carrier is Telecom—AUSTEL is satisfied that granting the authorisation would not unreasonably result in Telecom failing to carry out any of its community service obligations.
(4) Subject to subsection (5), AUSTEL may, in writing, vary or revoke an authorisation.
(5) AUSTEL shall not vary the authorisation unless:
(a) the carrier concerned has agreed to the variations; and
(b) if the carrier is Telecom—AUSTEL is satisfied that the variation would not unreasonably result in Telecom failing to carry out any of its community service obligations.
Supply etc. of first telephones
47. (1) Telecom has the exclusive right to supply, install and maintain the first telephone for a basic telephone service.
(2) This section applies in relation to the period ending on 30 June 1991 and such further periods (if any) as are prescribed.
Supply etc. of public payphones
48. (1) Telecom has the exclusive right to supply, install and maintain public payphones within Australia (other than within a prescribed external Territory).
(2) Subsection (1) does not apply in relation to a payphone that is used, or intended to be used, solely in the supply of telecommunications services between places within Australia and places outside Australia.
Carrier to make available networks and facilities to another carrier at direction of AUSTEL
49. (1) A carrier (in this section called the “requesting carrier”) may request AUSTEL to direct another carrier to make available, or to provide and make available, a telecommunications network or a facility for its use.
(2) If AUSTEL is satisfied:
(a) that the network or facility is necessary or desirable to enable the requesting carrier to supply telecommunications services that it has the right to supply under Division 3; and
(b) that it is necessary or desirable for the efficient and economical operation of Australia’s public telecommunications infrastructure and networks that the network or facility should be made available, or provided and made available, by the other carrier for the use of the requesting carrier;
AUSTEL may direct the other carrier accordingly.
(3) There is payable to the other carrier by the requesting carrier for its use of the network or facility such reasonable amount as is agreed between them or, failing agreement, as is determined by AUSTEL.
Report by AUSTEL on provision of networks and facilities on reference by Minister
50. (1) The Minister may refer to AUSTEL for investigation and report the question whether a particular kind of telecommunications network or facility should be provided by a carrier rather than be made available, or be provided and made available, for its use by another carrier.
(2) AUSTEL shall hold an investigation into the question and report to the Minister.
Report by AUSTEL on provision of networks and facilities on application by carrier
51. (1) A carrier may apply to AUSTEL for an investigation into the question whether a particular kind of telecommunications network or facility should be made available, or provided and made available, by it for use by another carrier rather than be provided by the other carrier.
(2) AUSTEL may hold an investigation into the question, and, if it decides to do so, it shall inform the Minister of its decision and report to the Minister.
Division 3—Reserved services
Reserved services and value added services—the basic rule
52. (1) A telecommunications service is a reserved service if it is a service for primary communications carriage between 2 or more cadastrally separated places or persons.
(2) All other telecommunications services are value added services.
(3) Subject to subsection 59 (3), the carriers have the exclusive right to supply reserved services (other than private network services that are supplied under a class licence).
(4) The supply of value added services is open to competition.
Meaning of primary communications carriage
53. A telecommunications service is a service for primary communications carriage so far as it consists only of the functions necessary:
(a) to arrange, operate and manage connectivity across the telecommunications network by means of which the service is supplied; and
(b) to carry communications across the network or, if under section 55 there are service delivery standards applicable to the service, to carry communications across the network in a way that does not result in the service delivery standards being exceeded in the supply of the service.
Functions necessary for purpose of primary communications carriage
54. The regulations may make provision for and in relation to determining the functions that are to be taken to be necessary or not to be necessary:
(a) to arrange, operate and manage connectivity across a telecommunications network by means of which a telecommunications service is supplied; or
(b) to carry communications across a telecommunications network by means of which a telecommunications service is supplied or, if under section 55 there are service delivery standards applicable to the service, to carry communications across the network in a way that does not result in the service delivery standards being exceeded in the supply of the service.
Service delivery standards for purpose of primary communications carriage
55. The regulations may make provision for and in relation to determining service delivery standards for a telecommunications service for the purposes of section 53.
Supply of reserved services within Australia otherwise than by satellite-based facilities
56. (1) Subject to this section and section 60, Telecom has the exclusive right to supply reserved services between places within Australia (other than places all of which are within a particular prescribed external Territory).
(2) OTC may supply a reserved service between a place in Australia and:
(a) a ship at sea; or
(b) a commercial or private aircraft (other than an aircraft trading or operating exclusively within Australia);
whether or not the ship or aircraft is within Australia.
(3) OTC may, with the approval of AUSTEL, supply reserved services between places within Australia if the supply of the services is incidental to
the supply of other telecommunications services that it has the right to supply under this Division.
(4) Subsection (1) does not prevent OTC or AUSSAT from supplying a reserved service for Telecom.
(5) This section does not authorise Telecom or OTC to supply a reserved service by means of satellite-based facilities.
Supply of reserved services within Australia by satellite-based facilities
57. (1) Subject to this section and section 60, AUSSAT has the exclusive right to supply reserved services between places within Australia by the use of satellite-based facilities.
(2) AUSSAT shall not supply public switched telecommunications services between places within Australia (other than places all of which are within a particular prescribed external Territory) otherwise than for Telecom or OTC.
(3) OTC may, by means of satellite-based facilities, supply a reserved service between a place in Australia and:
(a) a ship at sea; or
(b) a commercial or private aircraft (other than an aircraft trading or operating exclusively within Australia);
whether or not the ship or aircraft is within Australia.
(4) OTC may, with the approval of AUSTEL, supply reserved services between places within Australia by means of satellite-based facilities if the supply of the services is incidental to the supply of other telecommunications services that it has the right to supply under this Division.
(5) Subsection (1) does not prevent Telecom or OTC from supplying for AUSSAT telecommunications services between places within Australia by means of satellite-based facilities.
Approvals for supply of incidental services
58. (1) AUSTEL shall not give an approval under subsection 56 (3) or 57 (4) unless AUSTEL has consulted with, and taken into account the views of:
(a) in the case of an approval under subsection 56 (3)—Telecom; and
(b) in the case of an approval under subsection 57 (4)—AUSSAT.
(2) AUSTEL shall not give an approval under subsection 56 (3) or 57 (4) unless it is satisfied:
(a) that it is in the interests of users of telecommunications services of the relevant kind that the approval be given; and
(b) that giving the approval will not significantly and adversely affect the overall operations of Telecom or AUSSAT, as the case may be.
Supply of reserved services from and to Australia
59. (1) Subject to this section and section 60, OTC has the exclusive right to supply reserved services between places within Australia and places outside Australia.
(2) Subject to subsection (4), AUSSAT may, by means of satellite-based facilities, supply reserved services (other than public switched telecommunications services) between places within Australia and places outside Australia.
(3) Subject to subsection (4), a prescribed international telecommunications supplier who is entitled to use satellite-based facilities operated by AUSSAT may use the facilities to supply reserved services (other than public switched telecommunications services) between places within Australia and places outside Australia.
(4) Services supplied under subsection (2) by AUSSAT, or under subsection (3) by a prescribed international telecommunications supplier, shall be supplied only within the limits of AUSSAT’s satellite footprint as at the commencement of this section.
(5) Subsection (1) does not prevent Telecom or AUSSAT from supplying a reserved service for OTC.
Supply of private network services under class licences
60. Sections 56, 57 and 59 do not apply in relation to the supply of private network services under a class licence.
Disputes between carriers as to right to supply services
61. If:
(a) a dispute arises between carriers as to whether a carrier has the right to supply a particular telecommunications service under this Division; and
(b) the carriers concerned are unable to resolve the dispute;
AUSTEL shall settle the dispute by arbitration.
Division 4—Reserved service charges
Reserved service charges subject to price control arrangements
62. (1) The Minister may, in writing, determine that a specified reserved service charge is to be subject to price control arrangements.
(2) A determination under this section is a disallowable instrument for the purposes of section 46a of the Acts Interpretation Act 1901.
Price control arrangements
63. (1) The Minister may, in writing, determine:
(a) price-cap arrangements and other price control arrangements that are to apply in relation to a reserved service charge that is subject to price control arrangements; and
(b) principles in accordance with which a carrier is to make alterations to a reserved service charge that is subject to price control arrangements.
(2) A determination under this section is a disallowable instrument for the purposes of section 46a of the Acts Interpretation Act 1901.
Alteration of charges subject to price control arrangements
64. (1) If a carrier proposes to alter a reserved service charge that is subject to price control arrangements, the carrier shall, by written notice, inform AUSTEL of the alteration and of the reasons why the alteration is in accordance with applicable determinations made by the Minister under section 63.
(2) The carrier shall not make the proposed alteration unless AUSTEL informs it, by written notice, that it agrees that the proposed alteration is in accordance with such applicable determinations.
Reserved service charges subject to notification and disallowance
65. (1) The Minister may, in writing, determine that a specified reserved service charge is subject to notification and disallowance.
(2) A determination under this section is a disallowable instrument for the purposes of section 46a of the Acts Interpretation Act 1901.
Alteration of charges subject to notification and disallowance
66. (1) If a carrier proposes to alter a reserved service charge that is subject to notification and disallowance, the carrier shall, by written notice, inform the Minister of the proposed alteration at least 30 days before the proposed alteration is to take effect.
(2) The Minister may, within 30 days after receiving the notice:
(a) request AUSTEL, in writing, to give a written report as to whether the proposed alteration should be disallowed in the public interest; and
(b) direct the carrier, in writing, not to make the alteration until the Minister has received and considered the report.
(3) AUSTEL shall give the report to the Minister within 30 days after receiving the request.
(4) If the Minister, after taking AUSTEL’s report into account, is of the opinion that the proposed alteration is not in the public interest, the Minister may, by written notice given to the carrier within 30 days after receiving the report, direct the carrier not to make the alteration.
Division 5—Miscellaneous
Present satellite footprint of AUSSAT
67. The regulations may make provision for or in relation to defining the limits of AUSSAT’s satellite footprint as at the commencement of section 59.
Directions by AUSTEL to carriers in relation to supply of reserved services
68. (1) AUSTEL may, in connection with the performance of its functions under sections 19, 20, 21 and 22, give written directions to a carrier.
(2) Without limiting subsection (1), a direction under that subsection may:
(a) require a carrier to publish, or otherwise make available, technical standards for reserved services supplied, or intended to be supplied, by it;
(b) require a carrier to publish:
(i) reserved service charges;
(ii) discounts available in relation to reserved service charges;
(iii) the terms and conditions on which such discounts are available; and
(iv) the terms and conditions on which reserved services are supplied by it; and
(c) require a carrier to publish, or otherwise make available, information derived from reserved services supplied by it, including, for example, metering and traffic analyses.
(3) Without limiting subsection (1), where:
(a) Telecom has refused or failed to supply a standard telephone service for a person or a public payphone for a particular place or area; and
(b) AUSTEL is of the opinion that Telecom’s refusal or failure is inconsistent with the strategies and policies that Telecom is, under its corporate plan, following to carry out its community service obligations;
AUSTEL may, under that subsection, direct Telecom, in writing, to supply the service or payphone within such period as is specified in the direction.
(4) This section is not limited by any other provision of this or any other Act that confers a power on AUSTEL.
Actions for infringement of carrier reservations
69. (1) Where a person has engaged, or is proposing to engage, in conduct that involves, or would involve, an infringement of an exclusive right that a carrier has under this Part, the carrier may, with the written consent of AUSTEL, apply to the Federal Court for relief.
(2) The relief that may be granted includes an injunction and, at the option of the plaintiff, either damages or an account of profits.
(3) Where, in the opinion of the Federal Court, it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1).
(4) The power of the Federal Court to grant an injunction restraining a person from engaging in conduct may be exercised:
(a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind;
(b) whether or not the person has previously engaged in conduct of that kind; and
(c) whether or not there is imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind.
PART 4—VALUE ADDED SERVICES AND PRIVATE NETWORK SERVICES
Division 1—Preliminary
Objects of Part
70. The objects of this Part are:
(a) by providing for a system of class licences for value added services and private network services:
(i) to regulate the supply of value added services in such a way that they do not infringe the carriers’ exclusive rights to supply reserved facilities and services;
(ii) to permit and safeguard a fair and efficient market in the supply of value added services and to ensure that the supply of value added services is open to full competition; and
(iii) to regulate the supply of private network services in such a way that they are used only in the supply of telecommunications services on a private basis;
(b) to ensure the proper use of telecommunications networks in the supply of value added services and private network services; and
(c) to provide safeguards against the carriers using their exclusive rights to supply reserved facilities and services in a way that gives them an unfair competitive advantage in the supply of value added services.
Value added service licensing principle
71. The value added service licencing principle is that value added services are not to be supplied in a way that would result in a person engaging in conduct that would involve an infringement of an exclusive right that a carrier has under Part 3.
Private network service licensing principles
72. The private network service licensing principles are as follows:
(a) private network services are not to be supplied in a way that would permit a person (other than a carrier) to sell, or otherwise dispose of, capacity of private networks to third parties;
(b) private network services are not to be supplied in a way that would result in a person engaging in conduct that would involve an infringement of an exclusive right that a carrier has under Part 3.
Division 2—Ministerial directions
Minister may give directions to AUSTEL
73. (1) The Minister may, by written notice, give to AUSTEL directions about the way in which AUSTEL is to perform its functions under Division 3.
(2) The Minister may, by written notice, give to AUSTEL directions relating to the circumstances under which persons are to be taken to have a common interest.
(3) The Minister shall give to AUSTEL a direction under subsection (2) before the end of one month after the commencement of this section.
(4) Directions under this section shall be consistent with the value added service licensing principle and the private network service licensing principles.
(5) Nothing in this section affects the power of the Minister to give a direction to AUSTEL under section 29 about other matters.
(6) A direction under this section is a disallowable instrument for the purposes of section 46a of the Acts Interpretation Act 1901.
Directions to have general application only
74. (1) A direction under section 73 shall not concern the way in which AUSTEL is to deal with:
(a) a particular application for the variation of a class licence under Subdivision B of Division 3;
(b) a particular application for registration, under a class licence, of a value added service or private network service under Subdivision C of Division 3;
(c) whether or not to declare a particular value added service or private network service to be an unlicensed service under Subdivision D of Division 3; or
(d) a particular application under section 86, 90 or 93 for reconsideration of a decision.
(2) A direction is invalid to the extent that it purports to deal with such a matter.
Division 3—Class licences
Subdivision A—General
Issuing of class licences
75. (1) AUSTEL may, by notice published in the Gazette, issue class licences specifying value added services or private network services that
persons are, subject to the conditions set out in the licences, permitted to supply.
(2) AUSTEL may include conditions in a class licence, including, for example, conditions relating to:
(a) the way in which value added services or private network services specified in the licence are to be supplied;
(b) prohibition of the supply of value added services or private network services for illegal purposes; and
(c) prohibition of the improper use of telecommunications networks.
(3) AUSTEL shall not issue a class licence unless it is satisfied that the conditions included in the licence are sufficient to ensure that:
(a) any value added service supplied under the licence will be supplied in a way consistent with the value added service licensing principle;
(b) any private network service supplied under the licence will be supplied in a way consistent with the private network service licensing principles; and
(c) any customer equipment or customer cabling that will be used in the supply of a value added service or a private network service under the licence will comply with technical standards determined under Division 2 of Part 5.
(4) AUSTEL shall not issue a class licence that is inconsistent with directions given by the Minister under Division 2.
(5) A class licence has effect on and from the day specified in the notice published under subsection (1).
Consultation with carriers on proposed class licences
76. (1) Subject to subsection (5), before issuing a class licence, AUSTEL shall send to each carrier a copy of the proposed licence.
(2) A carrier may, within 21 days after receipt of the notice, make written representations to AUSTEL concerning the proposed licence.
(3) AUSTEL shall, before issuing a class licence, give due consideration to any representations so made, and may alter the proposed licence.
(4) Failure to comply strictly with subsection (1) does not affect the validity of a class licence if the requirements of that subsection are substantially complied with.
(5) This section does not apply to the issuing of a class licence before the end of the period of one month after the commencement of this section.
Variation of class licences
77. (1) AUSTEL may, by notice published in the Gazette, vary a class licence.
(2) The power to vary a class licence includes the power to:
(a) specify further value added services or private network services that persons are to be permitted to supply under the licence in addition to the services already specified in the licence;
(b) vary or revoke descriptions of any services specified in the licence;
(c) add to the conditions in the licence; or
(d) vary or revoke any of the conditions.
(3) AUSTEL shall not vary a class licence under this section unless it is satisfied that the conditions included in the licence as varied are sufficient to ensure that:
(a) any value added service supplied under the licence will be supplied in a way consistent with the value added service licensing principle;
(b) any private network service supplied under the licence will be supplied in a way consistent with the private network service licensing principles; and
(c) any customer equipment or customer cabling that will be used in supplying a value added service or a private network service under the licence will comply with technical standards determined under Division 2 of Part 5.
(4) AUSTEL shall not vary a class licence in a manner that is inconsistent with directions given by the Minister under Division 2.
(5) A class licence varied under this section has effect, as varied, on and from the day specified in the notice published under subsection (1).
Consultation with carriers on proposed variations of class licences
78. (1) Before varying a class licence, AUSTEL shall send to each carrier a copy of the proposed variation.
(2) A carrier may, within 21 days after receipt of the notice, make written representations to AUSTEL concerning the proposed variation.
(3) AUSTEL shall, before varying a class licence, give due consideration to any representations so made, and may alter the proposed variation.
(4) Failure to comply strictly with subsection (1) does not affect the validity of the variation of a class licence if the requirements of that subsection are substantially complied with.
Publication of proposed restrictive variations of class licences
79. (1) Where AUSTEL proposes to vary a class licence so that:
(a) a value added service or a private network service that is permitted to be supplied under the licence would no longer be so permitted; or
(b) the conditions under which a value added service or a private network service is permitted to be supplied under the licence would become more onerous on a supplier of the service;
the following provisions of this section apply.
(2) Before varying a class licence, AUSTEL shall, by notice in writing, published under subsection (5):
(a) state that it proposes to vary the class licence specified in the notice;
(b) state the subject matter of the variation;
(c) specify a place or places at which copies of the licence, and of the proposed variation to the licence, may be bought;
(d) invite interested persons to make representations concerning the proposed variation by the date, not being less than 1 month after the date of publication of the notice, specified in the notice; and
(e) specify an address or addresses to which representations concerning the proposed variation may be sent.
(3) A person may, not later than the date specified in the notice, make representations to AUSTEL concerning the proposed variation.
(4) AUSTEL shall, before varying a class licence, give due consideration to any representations so made.
(5) A notice shall be taken to have been published under this subsection if:
(a) it is published in the Gazette; and
(b) where regulations made for the purposes of this subsection provide for additional requirements in relation to the publication of notices— it is published in accordance with those additional requirements.
(6) Failure to comply strictly with subsection (2) does not affect the validity of the notice, or the validity of a variation of a class licence, if the requirements of that subsection are substantially complied with.
Subdivision B—Applications for variation of class licences
Applications for variation of class licences
80. (1) A person who is proposing to supply a value added service or a private network service may apply to AUSTEL for a class licence to be varied in such a way that the service would be supplied under the licence.
(2) The application shall:
(a) describe in sufficient detail the nature of the value added service or private network service;
(b) be in the form approved by AUSTEL; and
(c) be accompanied by the payment of the appropriate fee.
(3) The approved form of application may provide for verification by statutory declaration of statements in applications.
Carriers to be consulted on proposed variations
81. (1) Subject to subsection (2), where an application is made under section 80, AUSTEL shall send to each carrier who is, in AUSTEL’s opinion, likely to be interested in the application:
(a) a copy of a proposed variation of the class licence concerned that AUSTEL proposes it would make if it were to accept the application; and
(b) where AUSTEL considers it necessary to give to the carrier information contained in the application for the purpose of enabling the carrier to make representations to AUSTEL concerning the proposed variation—a statement setting out such of that information as AUSTEL considers necessary to give to the carrier for that purpose.
(2) AUSTEL shall not give a carrier a statement of a kind referred to in paragraph (1) (b) unless it has reached agreement with the applicant as to the information to be set out in the statement.
(3) Subject to subsection (4), if agreement is reached, AUSTEL shall accept the application and, by written notice, inform the applicant that it has been accepted.
(4) If:
(a) where AUSTEL considers it necessary for a statement of a kind referred to in paragraph (1) (b) to be given to a carrier for the purpose of enabling the carrier to make representations to AUSTEL concerning the proposed variation—AUSTEL is unable to reach agreement with the applicant as to the information to be set out in the statement; or
(b) AUSTEL is satisfied that it would not be possible to comply with subsection 83 (3) in varying the class licence concerned in order to permit the supply of the value added service or private network service to which the application relates;
AUSTEL shall refuse to accept the application.
(5) On refusing to accept the application, AUSTEL shall:
(a) give to the applicant written notice:
(i) stating that AUSTEL refuses to accept the application; and
(ii) giving its reasons for its refusal; and
(b) return the application, and any documents that accompanied the application, to the applicant.
Carriers may make representations on proposed variations
82. Where, under section 81, AUSTEL sends to a carrier a copy of a proposed variation of a class licence, the carrier may, within 21 days after receiving the copy, make written representations to AUSTEL concerning the proposed variation.
Variation of class licences
83. (1) Where an application has been accepted under subsection 81 (3), AUSTEL may, by written notice given to the applicant, vary a class licence in such a way that the value added service or private network service that is the subject of the application will be supplied under the class licence.
(2) AUSTEL shall, before deciding whether to vary the class licence, give due consideration to any representations made under section 82 by carriers concerning the proposed variation of the licence.
(3) AUSTEL shall not vary a class licence under this section unless it is satisfied that the conditions included in the licence, as varied, are sufficient to ensure that:
(a) any value added service supplied under the licence will be supplied in a way consistent with the value added service licensing principle;
(b) any private network service supplied under the licence will be supplied in a way consistent with the private network service licensing principles; and
(c) any customer equipment or customer cabling that will be used in supplying a value added service or a private network service under the licence will comply with technical standards determined under Division 2 of Part 5.
(4) AUSTEL shall not vary a class licence in a way that is inconsistent with directions given by the Minister under Division 2.
(5) AUSTEL shall not vary a class licence under this section so that:
(a) a value added service or a private network service that was previously permitted to be supplied under the licence would no longer be permitted; or
(b) the conditions under which a value added service or a private network service is permitted to be supplied under the licence would become more onerous on a supplier of the service.
(6) A class licence varied under this section has effect, as varied, on and from the day on which notice of the variation is given under subsection (1).
(7) Where AUSTEL varies a class licence under this section, it shall:
(a) under section 88, register under the class licence the value added service or private network service in relation to which the application for the variation was made;
(b) cause to be published in the Gazette a notice:
(i) specifying the class licence that has been varied;
(ii) setting out the text of the variation; and
(iii) specifying the day on and from which the variation has effect;
(c) give a copy of the text of the variation to each carrier; and
(d) subject to subsection (9), give a copy of its reasons for varying the licence to each carrier (if any) that has made representations concerning the application under section 82.
(8) AUSTEL shall include in the notice given under subsection (1) a statement that the value added service or private network service concerned has been registered under the class licence.
(9) AUSTEL shall delete any confidential commercial information from the documents that it gives to a carrier under subsection (7).
(10) If AUSTEL decides not to vary the licence under this section, it shall:
(a) give to the applicant written notice that the application is refused together with reasons for the refusal; and
(b) give to each carrier to whom notice of the application was given under subsection 81 (1) written notice that the application is refused.
Deemed refusal of applications etc.
84. (1) If, at the end of 30 days after an application for the variation of a class licence is made, AUSTEL has not accepted the application, AUSTEL shall be regarded, for the purposes of section 86, as:
(a) having refused to accept the application on the last day of the 30 days; and
(b) having informed the applicant accordingly on that day.
(2) If, at the end of 30 days after an application for the variation of a class licence has been accepted under subsection 81 (3), AUSTEL has not varied the licence, AUSTEL shall be regarded, for the purposes of section 86, as:
(a) having decided, on the last of the 30 days, not to vary the licence; and
(b) having informed the applicant accordingly on that day.
Notice of right to seek reconsideration
85. Where AUSTEL gives to an applicant for the variation of a class licence a notice of a decision of a kind referred to in column 1 of the table in subsection 86 (1), it shall include in the notice a statement that the applicant may, within 21 days after the notice is received, apply to AUSTEL for reconsideration of the decision.
Reconsideration of decisions
86. (1) Decisions of a kind referred to in column 1 of the following table are decisions in respect of which application may be made to AUSTEL for reconsideration.
TABLE
| Item No. | Column 1 | Column 2 |
| Decision | Applicant |
| 1. | A refusal, under subsection 81 (4), to accept an application for the variation of a class licence | The person who applied for the variation |
| 2. | A decision to vary a class licence under section 83 | A carrier who made representations under section 82 concerning the application for the variation |
| Item No. | Column 1 | Column 2 |
| Decision | Applicant |
| 3. | A decision not to vary a class licence under section 83 | The person who applied for the variation |
(2) In relation to a decision referred to in column 1 of an item in the table in subsection (1), a person (in this section called “the applicant”) referred to in column 2 of the item may make the application for reconsideration within:
(a) 21 days after being informed of the decision; or
(b) if, as a result of a request made by the applicant within 21 days after being informed of the decision, AUSTEL extends the period within which an application for reconsideration of the decision may be made—the extended period granted by AUSTEL for making the application.
(3) An application under this section shall be in the form approved by AUSTEL.
(4) The approved form of application may provide for verification by statutory declaration of statements in applications.
(5) Where a carrier applies for reconsideration of a decision to vary a class licence under section 83, AUSTEL shall send to the person who applied for the licence to be so varied:
(a) a copy of the carrier’s application; and
(b) a notice inviting the person to make representations to AUSTEL, within 21 days after receiving the notice, concerning the reconsideration of the decision.
(6) A person who receives such a notice may make representations to AUSTEL, within 21 days after receiving the notice, concerning reconsideration of the decision.
(7) AUSTEL shall, in reconsidering the decision to vary the licence, give due consideration to any representations so made.
(8) AUSTEL shall reconsider the decision to which the application for reconsideration relates and may:
(a) affirm the decision;
(b) (where applicable) vary the decision;
(c) revoke the decision; or
(d) (where applicable) revoke the decision and substitute a fresh decision.
(9) AUSTEL’s decision on reconsideration of a decision has effect as if it had been made under the section under which the original decision was made.
(10) AUSTEL shall not, under subsection (8), vary a decision, or revoke a decision and substitute a fresh decision, so that the decision as varied, or as substituted, could not have been made under the section under which the original decision was made.
(11) AUSTEL shall give to the applicant, and (where applicable) to a person who made representations under subsection (6) concerning the reconsideration:
(a) a written notice stating its decision on the reconsideration; and
(b) a statement of the reasons for its decision.
Subdivision C—Registration of value added services and private network services
Register of value added services and private network services
87. (1) AUSTEL shall maintain a register for value added services and private network services in respect of each class licence that it has issued.
(2) The register shall be open to public inspection.
(3) Subject to subsection 94 (1), if a particular value added service or private network service is registered under a class licence, the supply of that service shall be taken, for the purposes of this Act, to be under the class licence.
(4) A value added service or private network service (other than a service to which subsection 94 (1) applies) may be taken to be supplied under a class licence even though it is not registered under the class licence.
Registration of value added services and private network services
88. (1) A person may apply in writing to AUSTEL for the registration under a class licence of a particular value added service or private network service that the person is supplying or proposing to supply.
(2) The application must:
(a) describe in sufficient detail the nature of the value added service or private network service;
(b) specify the class licence under which the service is sought to be registered;
(c) be in the form approved by AUSTEL; and
(d) be accompanied by the payment of the appropriate fee.
(3) If AUSTEL is satisfied that:
(a) the application complies with subsection (2);
(b) the provision of the value added service or private network service is or will be under the class licence specified in the application; and
(c) the application is accompanied by payment of the fee referred to in paragraph (2) (d);
AUSTEL shall register the service under the class licence and give to the applicant written notice of the registration.
(4) If AUSTEL is not satisfied as described in subsection (3), it shall refuse the application and give to the applicant written notice:
(a) stating that the application is refused;
(b) setting out the reasons for the refusal; and
(c) stating that the applicant may, within 21 days after the day on which the notice is given, request AUSTEL to reconsider the application.
Deemed refusal of application for registration
89. If, at the end of 30 days after an application for the registration of a particular value added service or private network service under a class licence has been made under section 88, AUSTEL has not given to the applicant a notice under section 88 indicating its decision concerning the application, AUSTEL shall be regarded, for the purposes of section 90, as:
(a) having refused the application on the last day of the 30 days; and
(b) having informed the applicant accordingly on that day.
Reconsideration of refusals of applications for registration
90. (1) Where AUSTEL refuses an application for the registration of a value added service or private network service, the applicant may, within:
(a) 21 days after being informed of the refusal; or
(b) if, as a result of a request made by the applicant within 21 days after being informed of the refusal, AUSTEL extends the period within which an application for reconsideration of the refusal may be made—the extended period granted by AUSTEL for making the application;
make a written request to AUSTEL for reconsideration of the refusal.
(2) On receiving such a request, AUSTEL shall reconsider the application.
(3) If, on reconsidering the application, AUSTEL is satisfied as described in subsection 88 (3), it shall register the value added service or private network service under the class licence concerned and give to the applicant written notice of the registration.
(4) If, on reconsidering the application, AUSTEL is not satisfied as described in subsection 88 (3), it shall reject the application and give to the applicant written notice of the rejection, together with its reasons for rejecting the application.
Subdivision D—Unlicensed services
Declarations that services are unlicensed
91. (1) Where AUSTEL has reasonable cause to suspect that:
(a) a person is supplying, or proposes to supply, a value added service or a private network service; and
(b) the service is not being, or would not be, supplied under any class licence;
AUSTEL may give the person a written notice under this section.
(2) The notice shall:
(a) specify the service concerned;
(b) invite the person to make representations to AUSTEL as to why the service should not be declared to be an unlicensed service; and
(c) specify a date, not being later than 28 days after the notice is sent to the person, by which such representations may be made.
(3) The notice may, in addition, require the person to give to AUSTEL, in writing, such information relating to the service concerned as is required by the notice.
(4) AUSTEL may, if it is satisfied:
(a) that the person is supplying, or proposes to supply, the service concerned; and
(b) that:
(i) the service is not being, or would not be, supplied under any class licence; or
(ii) the person has failed to comply, to the best of the person’s ability, with a requirement under subsection (3);
give to the person a written declaration that the service is an unlicensed service.
(5) Before giving the declaration to the person, AUSTEL shall give due consideration to any representations made by the person on or before the date referred to in paragraph (2) (c).
(6) A declaration given to a person shall be accompanied by a statement informing the person that the person may, within 21 days after the day on which the declaration is given, request AUSTEL to reconsider its decision to give the declaration.
(7) A declaration given to a person under subsection (4) has effect:
(a) if the person does not, within the period for making an application under section 93 for reconsideration of the decision to give the declaration, make such an application to AUSTEL under that section—on and from the day occurring 30 days after the declaration is given to the person; or
(b) if the person makes such an application within that period—on and from the day occurring 30 days after the making of the application for reconsideration of the decision to give the declaration.
(8) Where AUSTEL:
(a) has given a notice under subsection (1) to a person in respect of a value added service or a private network service; and
(b) subsequently decides not to give to the person a declaration under subsection (4) in respect of the service;
AUSTEL shall give to the person a notice to the effect that it has decided not to declare the service to be an unlicensed service.
Declarations in respect of registered value added services and private network services
92. (1) AUSTEL shall not give a declaration in respect of a value added service or private network service that is, under section 88, registered under a class licence unless, in addition to the requirements of section 91, it is satisfied that, since the registration of the service, the conditions of the class licence concerned have been varied so that the service is no longer being, or would no longer be, supplied under the class licence.
(2) Where AUSTEL gives to a person a declaration under section 91 in respect of a service that is, under section 88, registered under a class licence:
(a) the registration of the service ceases to have effect on and from the day on which the declaration has effect; and
(b) AUSTEL shall remove the service from the register maintained under subsection 87 (1) in respect of the class licence concerned.
Reconsideration of declarations
93. (1) Where AUSTEL gives to a person a declaration under section 91 in respect of a service, the person may, within:
(a) 21 days after being given the declaration; or
(b) if, as a result of a request made by the applicant within 21 days after being given the declaration, AUSTEL extends the period within which an application for reconsideration of its decision may be made—the extended period granted by AUSTEL for making the application;
make a written request to AUSTEL for reconsideration of its decision to give the declaration.
(2) On receiving such a request, AUSTEL shall reconsider its decision.
(3) If, after reconsidering its decision, AUSTEL is no longer satisfied as to the matters as to which it is required to be satisfied in order to give a declaration under section 91, it shall revoke the declaration concerned and give to the person written notice accordingly.
(4) If, after reconsidering its decision, AUSTEL is still satisfied as to those matters, it shall affirm its declaration and give to the person written notice of its decision, together with its reasons.
Effect of declarations
94. (1) If a declaration under section 91 that a particular service is an unlicensed service has effect, the supplying of the service shall be taken, for the purposes of this Act, not to be under any class licence.
(2) A value added service or a private network service (other than such a service that is registered under a class licence) may be taken not to be supplied under any class licence even though no declaration under section 91 in respect of the service has been given or has effect.
Registration of unlicensed services
95. (1) Where:
(a) a declaration has been given that a value added service or a private network service is an unlicensed service; and
(b) since the declaration has been given, AUSTEL has issued a new class licence or has varied a class licence;
a person wishing to supply the service may apply in writing under section 88 for registration of the service under the class licence concerned.
(2) If AUSTEL registers the service under section 88, the declaration ceases to have effect on and from the day of registration.
Division 4—Use of public telecommunications networks for the supply of value added services and private network services
Connection etc. of unlicensed services
96. (1) Where, under section 91, AUSTEL declares a value added service or a private network service to be an unlicensed service, it shall give to each carrier a written notice:
(a) stating that the declaration has been made;
(b) specifying the service concerned; and
(c) specifying the person to whom the declaration was given.
(2) Where a carrier is given such a notice:
(a) if the service concerned is already connected to a telecommunications network operated by the carrier—it shall take the necessary action to ensure that the service is no longer so connected; or
(b) if the service concerned is not already so connected—it shall not connect the service to any telecommunications network that it operates.
Obligation of carriers to connect value added services and private network services
97. (1) Subject to subsection (2), where a person wishing to supply a value added service or a private network service gives a carrier who operates a telecommunications network that will need to be used in the supply of the service a request to connect the service to the network, the carrier shall connect the service unless a notice has been given to the carrier under subsection 96 (1) in relation to the service.
(2) A carrier shall not be taken to be in breach of an obligation under subsection (1) to connect a service to a network if the connection is delayed: (a) for a period that:
(i) is reasonable in the circumstances; and
(ii) is not substantially longer than the delay normally experienced for connection of a service of that type, and in that locality, to the network;
(b) because a connection of the value added service or private network service is not technically feasible; or
(c) for reasons beyond the carrier’s control.
(3) Paragraph (2) (b) does not apply in relation to the connection of a value added service or private network service to a telecommunications network operated by a carrier unless there is in force a written notice, given by AUSTEL to the carrier, certifying that connection of a value added service or private network service of that kind to a telecommunications network is not technically feasible.
(4) Where AUSTEL is satisfied that it has become technically feasible to connect a value added service or private network service of a kind in respect of which a notice under subsection (3) is in force, AUSTEL shall, by written notice given to the carrier to whom the notice under subsection (3) was given, revoke the notice under subsection (3).
Discrimination prohibited in relation to value added and private network services
98. (1) A carrier shall not, in relation to the supply of reserved services, discriminate against a person for the reason, or for reasons that include the reason, that the person:
(a) is a supplier of value added services under a class licence;
(b) uses, or wishes to use, value added services supplied under a class licence; or
(c) uses, or wishes to use, private network services supplied under a class licence.
(2) A carrier shall not vary a reserved service charge to a person for the reason, or for reasons that include the reason, that the person does, or does not, also obtain value added services from the carrier.
(3) In a proceeding against a carrier for a contravention of subsection (1), it is a defence if the carrier proves that the discrimination concerned made only reasonable allowance for differences in the cost or likely cost of supplying the services concerned resulting from:
(a) the differing quantities in which the services are, or are to be, supplied;
(b) the differing transmission capacity required, or that would be required, to supply the services;
(c) the differing places from or to which the services are, or are to be, supplied;
(d) the differing periods for which the services are, or are to be, supplied; and
(e) the differing performance characteristics at which the services are, or are to be, supplied.
(4) In this section:
“discriminate” includes discriminate in respect of:
(a) the price at which the service concerned is supplied;
(b) the performance characteristics of the service supplied; or
(c) the terms and conditions under which the service is supplied.
Action for failure to connect value added services or for discrimination
99. (1) Where a carrier contravenes, or proposes to contravene, section 97 or 98, an aggrieved person may apply to the Federal Court for relief.
(2) The relief that may be granted includes an injunction and damages.
(3) Where, in the opinion of the Federal Court, it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1).
(4) The power of the Federal Court to grant an injunction restraining a carrier from engaging in conduct may be exercised:
(a) whether or not it appears to the Court that the carrier intends to engage again, or to continue to engage, in conduct of that kind;
(b) whether or not the carrier has previously engaged in conduct of that kind; and
(c) whether or not there is imminent danger of substantial damage to any person if the carrier engages in conduct of that kind.
(5) In this section:
“aggrieved person” includes:
(a) in the case of a contravention of section 97—the person who requested that the service concerned be connected; and
(b) in the case of a contravention of section 98—the person subjected to discrimination.
Division 5—Miscellaneous
Carriers not to bundle certain charges
100. If:
(a) a carrier supplies telecommunications services; and
(b) the services consist of:
(i) public reserved services, leased circuit services, or both; and
(ii) value added services;
the carrier shall separately identify:
(c) charges for any public reserved services (including any rental fee or other charge for or in relation to facilities used, or intended to be used, in relation to the supply of those services, but not including
any rental fee or other charge of a kind prescribed for the purposes of this section);
(d) the charges for any leased circuit services (including any rental fee or other charge for or in relation to facilities used, or intended to be used, in relation to the supply of those services, but not including any rental fee or other charge of a kind prescribed for the purposes of this section); and
(e) any rental fee or other charge of a kind prescribed for the purposes of this section.
Accounting requirements
101. A carrier shall maintain its accounts and records so as to enable:
(a) its activities relating to the supply by the carrier of public reserved services;
(b) its activities relating to the supply by the carrier of leased circuit services; and
(c) its other activities;
to be separately identified.
AUSTEL may give directions in relation to bundling and accounting requirements
102. AUSTEL may give directions to a carrier concerning how it is to comply with its obligations under section 100 or 101.
Supply of value added services by carriers
103. A carrier shall not supply a value added service unless it is supplied under a class licence.
Pre-existing value added services and private network services
104. (1) For the purposes of this Act, where, immediately before the commencement of section 69, a person was supplying a value added service or a private network service:
(a) that was connected to a telecommunications network operated by a carrier; and
(b) in respect of the supply of which the person had obtained the carrier’s approval;
the service shall, by force of this subsection, be taken to be supplied under a class licence.
(2) If, at any time after the commencement of section 69, the person supplies the value added service or private network service concerned in a way that is not in accordance with the approval given by the carrier, subsection (1) ceases to apply from that time.
PART 5—TECHNICAL REGULATION
Division 1—Preliminary
Objects of Part
105. The objects of this Part are:
(a) to provide for AUSTEL to determine technical standards for customer equipment, and for customer cabling, being standards relating to:
(i) protecting the integrity of telecommunications networks and the safety of persons working on, or using services supplied by means of, telecommunications networks;
(ii) ensuring the interoperability of customer equipment, or customer cabling, with a telecommunications network to which it is connected; and
(iii) ensuring compliance with recognised international standards concerning the interfacing of customer equipment or customer cabling to telecommunications networks;
(b) to provide for directions to be given by the Minister to AUSTEL about the issuing of permits or cabling licences;
(c) by providing for a system of permits for connection of customer equipment to telecommunications networks, to ensure that all customer equipment so connected complies with:
(i) technical standards determined by AUSTEL under this Part; and
(ii) directions given by the Minister under this Part; and
(d) by providing for the licensing of persons engaged in the supply, installation and maintenance of customer cabling connected to telecommunications networks, to ensure that all customer cabling so connected complies with:
(i) technical standards determined by AUSTEL under this Part; and
(ii) directions given by the Minister under this Part.
Division 2—Technical standards
Determination of technical standards
106. (1) AUSTEL may, by notice published in the Gazette, determine a technical standard relating to customer equipment, or customer cabling, that is connected to a telecommunications network.
(2) Subject to subsection (3), AUSTEL shall only determine such a standard where it believes it to be necessary or desirable to do so in order to:
(a) protect the integrity of a telecommunications network or the safety of persons working on, or using services supplied by means of, a telecommunications network;
(b) ensure the interoperability of customer equipment, or customer cabling, with a telecommunications network to which it is connected; or
(c) ensure that customer equipment, or customer cabling, connected to a telecommunications network complies with recognised international standards concerning the interfacing of customer equipment or customer cabling to a telecommunications network.
(3) A standard determined under this section may vary or revoke another standard determined under this section.
(4) A standard determined under this section has effect on and from the day specified in the notice published under subsection (1).
(5) A standard determined under this section is a disallowable instrument for the purposes of section 46a of the Acts Interpretation Act 1901.
Publication etc. of proposed technical standards
107. (1) Subject to sections 108 and 109, before determining a technical standard, AUSTEL shall, by notice published under subsection (4):
(a) state that it proposes to determine a technical standard;
(b) state the subject matter of the proposed standard;
(c) specify a place or places at which copies of the proposed standard may be bought;
(d) invite interested persons to make representations concerning the proposed standard by the date, not being less than one month after the date of publication, specified in the notice; and
(e) specify an address or addresses to which representations concerning the proposed standard may be sent.
(2) A person may, not later than the date specified in the notice, make representations to AUSTEL concerning the proposed standard.
(3) AUSTEL shall, before determining a technical standard, give due consideration to any representations so made and may alter the proposed standard.
(4) A notice shall be taken to have been published under this subsection if:
(a) it is published in the Gazette; and
(b) where regulations made for the purposes of this subsection provide for additional requirements in relation to the publication of notices— it is published in accordance with those additional requirements.
(5) Failure to comply strictly with subsection (1) does not affect the validity of the notice, or the validity of a technical standard, if the requirements of that subsection are substantially complied with.
Emergency determination of technical standards
108. (1) Section 107 does not apply to the determining of a technical standard under section 106 if:
(a) AUSTEL is satisfied that it is necessary to determine the standard to meet an emergency; and
(b) a statement to that effect is included in the standard.
(2) A standard that includes such a statement ceases to have effect 3 months after it is determined.
Determination of technical standards within first month
109. (1) Within the period of one month after the commencement of this section, AUSTEL may determine technical standards under section 106 without complying with section 107.
(2) If AUSTEL determines a technical standard within that period, it shall, as soon as practicable after determining the standard, by notice in writing published in the same way as a notice published under subsection 107 (4):
(a) state the subject matter of the standard it has determined;
(b) specify a place or places at which copies of the standard may be bought;
(c) invite interested persons to make representations concerning the standard by the date, not being less than 6 months after the date of publication, specified in the notice; and
(d) specify an address or addresses to which such representations may be sent.
(3) A person may, not later than the date specified in the notice, make representations to AUSTEL concerning the standard.
(4) AUSTEL shall give due consideration to any representations so made and may, without complying with section 107, determine a technical standard under section 106 varying or revoking the standard that is the subject of the representations.
(5) Failure to comply strictly with subsection (2) does not affect the validity of the notice or the validity of a technical standard, if the requirements of that subsection are substantially complied with.
Adoption of technical standards
110. In determining a technical standard under section 106, AUSTEL may apply, adopt or incorporate, with or without modification, any matter contained in a standard proposed or approved by the Standards Association of Australia, or by any other association or body, as in force or existing at a particular time.
Division 3—Ministerial directions
Minister may give directions to AUSTEL
111. (1) The Minister may, by written notice, give to AUSTEL directions about the way in which AUSTEL is to perform its functions or exercise its powers relating to the issuing of permits under Division 4 or the issuing of cabling licences under Division 5.
(2) Nothing in this section affects the power of the Minister to give a direction to AUSTEL under section 29 about other matters.
(3) A direction under this section is a disallowable instrument for the purposes of section 46a of the Acts Interpretation Act 1901.
Directions to have general application only
112. (1) A direction under section 111 shall not concern the way in which AUSTEL is to deal with a particular application for:
(a) a permit under Division 4;
(b) a cabling licence under Division 5;
(c) an order to be made under subsection 141 (6); or
(d) reconsideration of a decision under section 144.
(2) A direction is invalid to the extent that it purports to deal with any of those matters.
Inconsistency with technical standards
113. Where a direction under section 111 is inconsistent with a technical standard determined by AUSTEL under section 106, AUSTEL shall determine a new standard under section 106 that varies the first-mentioned standard so that it is consistent with the direction.
Division 4—Permits for customer equipment
Connection of customer equipment for which there is no permit
114. (1) A person shall not knowingly or recklessly connect to a telecommunications network customer equipment in respect of which a permit for connection to a telecommunications network is not in force.
Penalty: $12,000.
(2) For the purposes of subsection (1), a permit for connection of customer equipment to a telecommunications network shall be taken to be in force if such a permit is in force in respect of customer equipment that is of the same type as the first-mentioned customer equipment.
(3) This section does not apply to customer equipment connected to a telecommunications network if the customer equipment is connected in such a way that it is only capable of being used in the provision of telecommunications services that do not use the reserved services of a carrier.
Sale of customer equipment for which there is no permit
115. A person shall not sell to another person customer equipment that the person knows, or ought reasonably to know, to be customer equipment the connection of which to a telecommunications network would be contrary to subsection 114 (1), without first informing the other person that there is no permit in force for connection of the equipment to a telecommunications network.
Penalty: $12,000.
Register of customer equipment
116. (1) AUSTEL shall maintain a register of permits for the connection of customer equipment, or types of customer equipment.
(2) The register shall be open to public inspection.
Applications for permits
117. (1) A person may apply to AUSTEL for a permit for the connection to a telecommunications network of customer equipment, or a type of customer equipment.
(2) The application shall:
(a) give a detailed description of the nature of the customer equipment, or type of customer equipment;
(b) be accompanied by:
(i) a report issued by an accredited test house on whether connection of the equipment to a telecommunications network would comply with technical standards determined under Division 2; or
(ii) such other technical information as AUSTEL requires the applicant to provide;
(c) be in the form approved by AUSTEL; and
(d) be accompanied by the payment of the appropriate fee.
(3) The approved form of application may provide for verification by statutory declaration of statements in applications.
Issue of permits
118. (1) Where an application has been made under section 117, AUSTEL may, by notice in writing given to the applicant, issue a permit for the connection to a telecommunications network of customer equipment or a type of customer equipment.
(2) AUSTEL may include conditions in the permit including, for example, conditions:
(a) requiring the customer equipment to be labelled in the specified manner; and
(b) requiring the customer equipment to be inspected by carriers before being connected to a telecommunications network.
(3) AUSTEL shall not issue a permit unless it is satisfied that:
(a) the application complies with subsection 117 (2);
(b) connection of the customer equipment concerned, in accordance with the conditions included in the permit, would comply with technical standards determined by AUSTEL under Division 2; and
(c) the issuing of the permit is not contrary to directions given by the Minister under Division 3.
(4) In deciding whether it is satisfied as to whether connection of customer equipment to a telecommunications network would comply with technical standards determined under Division 2, AUSTEL may reach a conclusion contrary to any conclusion reached on that matter in a report, by an accredited test house, that accompanied the application for the permit concerned.
(5) Where AUSTEL issues a permit, it shall include in the notice under subsection (1) a statement to the effect that the applicant may, within 21 days after receiving the notice, apply to AUSTEL for reconsideration of the conditions included in the permit.
(6) Where AUSTEL decides not to issue a permit, it shall give to the applicant written notice that the application is refused, together with:
(a) its reasons for the refusal; and
(b) a statement to the effect that the applicant may, within 21 days after receiving the notice, apply to AUSTEL for reconsideration of the refusal.
Deemed refusal of permits
119. If, at the end of 30 days after an application for the issue of a permit has been made under section 117, AUSTEL has not issued the permit, AUSTEL shall be regarded, for the purposes of section 144, as:
(a) having decided, on the last of the 30 days, not to issue the permit; and
(b) having informed the applicant accordingly on that day.
Variation of permits
120. (1) AUSTEL may, by written notice given to the holder of a permit, vary the permit.
(2) The power to vary a permit includes the power to:
(a) vary the conditions of the permit;
(b) add further conditions; or
(c) revoke any of the conditions.
(3) AUSTEL shall not vary a permit unless it is satisfied that:
(a) connection of the customer equipment, to which the permit relates, to a telecommunications network in accordance with the conditions included in the permit, as varied, would comply with technical standards determined by AUSTEL under Division 2; and
(b) the variation is not contrary to directions given by the Minister under Division 3.
(4) A permit varied under this section has effect, as varied, on and from the day after the day on which notice of the variation is given to the holder of the permit.
(5) Where AUSTEL varies a permit, it shall include in the notice under subsection (1):
(a) the text of the variation;
(b) AUSTEL’s reasons for the variation; and
(c) a statement to the effect that the applicant may, within 21 days after receiving the notice, apply to AUSTEL for reconsideration of the variation.
Applications for variation of permits
121. (1) A person may apply to AUSTEL to vary a permit under section 120.
(2) The application shall:
(a) be in the form approved by AUSTEL; and
(b) be accompanied by the payment of the appropriate fee.
(3) The approved form of application may provide for verification by statutory declaration of statements in applications.
(4) Where AUSTEL decides not to vary the permit, it shall give to the applicant written notice that the application is refused, together with:
(a) its reasons for the refusal; and
(b) a statement to the effect that the applicant may, within 21 days after receiving the notice, apply to AUSTEL for reconsideration of the refusal.
(5) If, at the end of 30 days after an application under this section for the variation of a permit has been made, AUSTEL has not varied the permit, or given to the applicant a notice under subsection 122 (1) for variation of the permit, AUSTEL shall be regarded, for the purposes of section 144, as:
(a) having decided, on the last of the 30 days, not to vary the permit; and
(b) having informed the applicant accordingly on that day.
Representations concerning variation of permits
122. (1) Before varying a permit, AUSTEL:
(a) shall give to the holder of the permit; and
(b) may give to such other persons as AUSTEL considers to have an interest in the permit;
a notice:
(c) setting out the text of the proposed variation; and
(d) inviting each person to whom the notice is given to make representations to AUSTEL, within 21 days after receiving the notice, concerning the proposed variation.
(2) A person who receives such a notice may, within 21 days after receiving the notice, make such representations to AUSTEL.
(3) AUSTEL shall give due consideration to any representations so made.
(4) Failure to comply strictly with subsection (1) does not affect the validity of the notice, or a variation of a permit, if the requirements of that subsection are substantially complied with.
Cancellation of permits
123. (1) Where AUSTEL is satisfied that the holder of a permit has contravened the conditions of the permit, AUSTEL may cancel the permit by written notice given to the holder of the permit.
(2) Where AUSTEL cancels a permit, it shall include in the notice under subsection (1):
(a) AUSTEL’s reasons for the cancellation; and
(b) a statement to the effect that the applicant may, within 21 days after receiving the notice, apply to AUSTEL for reconsideration of the cancellation.
(3) The cancellation of a permit has effect on and from the day after the day on which notice of the cancellation is given to the holder of the permit.
Representations concerning cancellation of permits
124. (1) Before cancelling a permit, AUSTEL:
(a) shall give to the holder of the permit; and
(b) may give to such other persons as AUSTEL considers to have an interest in the permit;
a written notice:
(c) stating that it proposes to cancel the permit; and
(d) inviting each person to whom the notice is given to make representations to AUSTEL, within 21 days after receiving the notice, concerning the proposed cancellation.
(2) A person who receives such a notice may, within 21 days after receiving the notice, make such representations to AUSTEL.
(3) AUSTEL shall give due consideration to any representations so made.
(4) If AUSTEL decides not to proceed with the cancellation, it shall give to the holder of the permit written notice to that effect.
(5) Failure to comply strictly with subsection (1) does not affect the validity of the notice, or of a cancellation of a permit, if the requirements of that subsection are substantially complied with.
Transfer of permits
125. (1) The holder of a permit may, at any time, transfer the permit to another person.
(2) The transfer of a permit shall not be taken to have effect before AUSTEL has been given a notice in writing:
(a) stating that the permit has been transferred; and
(b) specifying the name and address of the person to whom the permit has been transferred.
Pre-existing authorities for connection of customer equipment
126. For the purposes of this Act, where, immediately before the commencement of section 114, there was in force an authority (by whatever name called) given by a carrier to a person for the connection of customer equipment:
(a) the authority shall be taken, on that commencement, to be a permit issued under this Division, being a permit that includes the conditions (if any) to which the authority was subject immediately before that commencement; and
(b) the person to whom the authority was given shall be taken, on that commencement, to be the holder of that permit.
Accreditation etc. of test houses
127. The regulations may provide for:
(a) the accreditation of test houses by AUSTEL;
(b) the testing of customer equipment by accredited test houses;
(c) the removal of the accreditation of test houses;
(d) the review of administrative decisions made in connection with the accreditation, or the removal of the accreditation, of test houses;
(e) the payment of the appropriate fee for applications for the accreditation of test houses; and
(f) any matter related to a matter referred to in paragraph (a), (b), (c), (d) or (e).
Division 5—Licensing of cabling service providers
Performance of cabling work without licence etc.
128. (1) A person shall not perform cabling work unless:
(a) the person is a licensee; or
(b) the person performs work under the supervision of a licensee.
Penalty: $12,000.
(2) A licensee shall not, in performing cabling work, knowingly or recklessly contravene the conditions of his or her cabling licence.
Penalty: $12,000.
(3) A licensee shall take all reasonable steps to ensure that cabling work performed under his or her supervision does not contravene the conditions of his or her cabling licence.
Penalty: $12,000.
(4) This section does not apply to the performance of cabling work if the customer cabling concerned is connected to a telecommunications network in such a way that it is only capable of being used in the supply of telecommunications services that do not use the reserved services of a carrier.
Register of cabling licences
129. (1) AUSTEL shall maintain a register of cabling licences.
(2) The register shall be open to public inspection.
Applications for cabling licences
130. (1) A natural person may apply to AUSTEL for a cabling licence.
(2) The application shall:
(a) describe the knowledge and experience of the applicant to perform cabling work;
(b) be in the form approved by AUSTEL; and
(c) be accompanied by the payment of the appropriate fee.
(3) The approved form of application may provide for verification by statutory declaration of statements in applications.
Issue of cabling licences
131. (1) Where an application has been made under section 130, AUSTEL may, by written notice given to the applicant, issue a cabling licence.
(2) AUSTEL may include conditions in a cabling licence, including, for example, conditions relating to:
(a) the types of premises in or on which the licensee may perform cabling work;
(b) requiring customer cabling in relation to which the licensee has performed cabling work to be inspected by carriers or AUSTEL; and
(c) the duration of the licence.
(3) AUSTEL shall not issue a cabling licence unless it is satisfied that:
(a) the application complies with subsection 130 (2);
(b) the applicant has the necessary knowledge and experience to perform cabling work;
(c) cabling work performed in accordance with the conditions included in the licence would comply with technical standards determined by AUSTEL under Division 2; and
(d) the issuing of the licence is not contrary to directions given by the Minister under Division 3.
(4) Where AUSTEL issues a cabling licence, it shall include in the notice under subsection (1) a statement to the effect that the applicant may, within 21 days after receiving the notice, apply to AUSTEL for reconsideration of the conditions included in the licence.
(5) Where AUSTEL decides not to issue a cabling licence, it shall give to the applicant written notice that the application is refused, together with:
(a) its reasons for the refusal; and
(b) a statement to the effect that the applicant may, within 21 days after receiving the notice, apply to AUSTEL for reconsideration of the refusal.
Deemed refusal of cabling licences
132. If, at the end of 30 days after an application for the issue of a cabling licence has been made under section 130, AUSTEL has not issued the licence, AUSTEL shall be regarded, for the purposes of section 144, as:
(a) having decided, on the last of the 30 days, not to issue the licence; and
(b) having informed the applicant accordingly on that day.
Variation of cabling licences
133. (1) AUSTEL may, by written notice given to a licensee, vary the cabling licence concerned.
(2) The power to vary a cabling licence includes the power to:
(a) vary the conditions of the licence;
(b) add further conditions; or
(c) revoke any of the conditions.
(3) AUSTEL shall not vary a cabling licence unless it is satisfied that:
(a) cabling work performed in accordance with the conditions included in the licence, as varied, would comply with technical standards determined by AUSTEL under Division 2; and
(b) the variation is not contrary to directions given by the Minister under Division 3.
(4) A cabling licence varied under this section has effect, as varied, on and from the day after the day on which notice of the variation is given to the licensee.
(5) Where AUSTEL varies a cabling licence, it shall include in the notice under subsection (1):
(a) the text of the variation;
(b) AUSTEL’s reasons for the variation; and
(c) a statement to the effect that the licensee may, within 21 days after receiving the notice, apply to AUSTEL for reconsideration of the variation.
Applications for variation of cabling licences
134. (1) A person may apply to AUSTEL to vary a cabling licence under section 133.
(2) The application shall:
(a) be in the form approved by AUSTEL; and
(b) be accompanied by the payment of the appropriate fee.
(3) The approved form of application may provide for verification by statutory declaration of statements in applications.
(4) Where AUSTEL decides not to vary the licence, it shall give to the applicant written notice that the application is refused, together with:
(a) its reasons for the refusal; and
(b) a statement to the effect that the applicant may, within 21 days after receiving the notice, apply to AUSTEL for reconsideration of the refusal.
(5) If, at the end of 30 days after an application under this section for the variation of a cabling licence has been made, AUSTEL has not varied the licence, or given to the applicant notice under subsection 135 (1) for variation of the licence, AUSTEL shall be regarded, for the purposes of section 144, as:
(a) having decided, on the last of the 30 days, not to vary the licence; and
(b) having informed the applicant accordingly on that day.
Representations concerning variation of cabling licences
135. (1) Before varying a cabling licence, AUSTEL shall give to the licensee a notice:
(a) setting out the text of the proposed variation; and
(b) inviting the licensee to make representations to AUSTEL, within 21 days after receiving the notice, concerning the proposed variation.
(2) The licensee may, within 21 days after receiving the notice, make such representations to AUSTEL.
(3) AUSTEL shall give due consideration to any representation so made.
(4) Failure to comply strictly with subsection (1) does not affect the validity of the notice, or of a variation of a cabling licence, if the requirements of that subsection are substantially complied with.
Cancellation of cabling licences
136. (1) Where AUSTEL is satisfied that a licensee has contravened the conditions of his or her cabling licence, AUSTEL may cancel the licence by written notice given to the licensee.
(2) Where AUSTEL cancels a cabling licence, it shall include in the notice under subsection (1):
(a) AUSTEL’s reasons for the cancellation; and
(b) a statement to the effect that the licensee may, within 21 days after receiving the notice, apply to AUSTEL for reconsideration of the cancellation.
(3) The cancellation of a cabling licence has effect on and from the day on which notice of the cancellation is given to the licensee.
Representations concerning cancellation of cabling licence
137. (1) Before cancelling a cabling licence, AUSTEL shall give to the licensee a written notice:
(a) stating that it proposes to cancel the licence; and
(b) inviting the licensee to make representations to AUSTEL, within 21 days after receiving the notice, concerning the proposed cancellation.
(2) The licensee may, within 21 days after receiving the notice, make such representations to AUSTEL.
(3) AUSTEL shall give due consideration to any representations so made.
(4) If AUSTEL decides not to proceed with the cancellation, it shall give to the licensee written notice to that effect.
(5) Failure to comply strictly with subsection (1) does not affect the validity of the notice, or of a cancellation of a cabling licence, if the requirements of that subsection are substantially complied with.
Surrender of cabling licences
138. (1) A licensee may, at any time, surrender his or her cabling licence by:
(a) returning it to AUSTEL; and
(b) giving AUSTEL written notice that it is surrendered.
(2) The surrender of a cabling licence takes effect (unless the licence is sooner cancelled):
(a) if the notice of surrender specifies a day on which the surrender is to take effect—at the end of that day; or
(b) in any other case—on the day on which the notice is given.
Pre-existing licences for performing cabling work
139. For the purposes of this Act, where, immediately before the commencement of section 128, there was in force a licence (by whatever name called) given by a carrier to a person for the performance of work that is cabling work:
(a) the licence shall be taken, on that commencement, to be a cabling licence issued under this Division, being a cabling licence that includes the conditions (if any) to which the first-mentioned licence was subject immediately before that commencement; and
(b) the person to whom the first-mentioned licence was given shall be taken, on that commencement, to be the licensee in respect of that cabling licence.
Delegation of licensing
140. (1) AUSTEL may, in writing, delegate to another person or body such of its functions and powers under this Division as are specified in the instrument.
(2) AUSTEL shall not delegate under this section its power to:
(a) under subsection 131 (5), refuse an application for a cabling licence;
(b) vary a cabling licence under section 133; or
(c) under subsection 134(4), refuse an application for variation of a cabling licence.
(3) A delegation under this section does not have effect unless it is approved in writing by the Minister.
Division 6—Connection of customer equipment and customer cabling to telecommunications networks
Disconnection etc. of customer equipment or customer cabling
141. (1) A carrier may cease supplying a service to a person by means of a telecommunications network operated by the carrier if, through the use of the service, there is connected to the network customer equipment or customer cabling that is a threat to:
(a) the safety or proper functioning of the network; or
(b) the safety of any person.
(2) A carrier may refuse to supply to a person a service of a kind normally provided by the carrier by means of a telecommunications network operated by the carrier if the carrier is satisfied that the person intends, through the use of the service, to connect or have connected to the network customer equipment or customer cabling that is a threat to:
(a) the safety or proper functioning of the network; or
(b) the safety of any person.
(3) Where a carrier stops providing a service to a person under subsection (1) or refuses to provide a service to a person under subsection (2), the person may apply to AUSTEL for an order under subsection (6).
(4) AUSTEL shall, by notice in writing:
(a) inform the carrier concerned of the making of the application; and
(b) invite the carrier to make representations to AUSTEL, within 7 days after receiving the notice, about whether an order should be made under subsection (6).
(5) In deciding whether to make an order under subsection (6), AUSTEL shall give due consideration to any representations so made.
(6) Where, on an application having been made, AUSTEL is satisfied that the connection to a telecommunications network, operated by the carrier concerned, of the customer equipment or customer cabling to which the application relates is not a threat to:
(a) the safety or proper functioning of the network; or
(b) the safety of any person;
AUSTEL shall, by written notice:
(c) order the carrier to supply the service that is necessary for connection of the customer equipment or customer cabling to the network; and
(d) inform the applicant that the order has been made.
(7) Where AUSTEL decides not to make an order under subsection (6), it shall give to the applicant written notice that the application is refused, together with:
(a) its reasons for the refusal; and
(b) a statement to the effect that the person may, within 21 days after receiving the notice, apply to AUSTEL for reconsideration of the refusal.
(8) If, at the end of 30 days after an application for the making of an order under subsection (6) has been made, AUSTEL has not made such an order, AUSTEL shall be regarded, for the purposes of section 144, as:
(a) having decided, on the last of the 30 days, not to make such an order; and
(b) having informed the person accordingly on that day.
Directions to pay compensation
142. (1) Where:
(a) under subsection 141 (6), AUSTEL orders a carrier to supply a service; and
(b) AUSTEL is satisfied that the applicant for the order has suffered loss as a result of the carrier ceasing, or refusing, to supply the service;
AUSTEL may include in the order under subsection 141 (6) a direction that the carrier pay compensation to the applicant for the loss, or the part of the loss, specified in the direction.
(2) Where AUSTEL includes such a direction in an order made under subsection 141 (6) it shall give to the applicant, and any carrier concerned, a written notice:
(a) stating that the direction has been so included; and
(b) including a statement to the effect that the applicant, or the carrier, as the case may be, may, within 21 days after receiving the notice, apply to AUSTEL for reconsideration of its decision to include the direction.
(3) Where AUSTEL decides not to include such a direction in an order made under subsection 141 (6), it shall give to the applicant for the order a written notice:
(a) stating that it has so decided; and
(b) including a statement to the effect that the applicant may, within 21 days after receiving the notice, apply to AUSTEL for reconsideration of its decision not to include such a direction.
(4) A notice under subsection (2) or (3) may be incorporated with a notice given by AUSTEL under subsection 141 (6).
Action for unauthorised connection to telecommunications network of customer equipment or customer cabling
143. (1) Where:
(a) a person:
(i) connects customer equipment to a telecommunications network contrary to section 114;
(ii) has under his or her control customer equipment connected to a telecommunications network that was so connected by another person contrary to section 114;
(iii) connects customer cabling to a telecommunications network contrary to section 128; or
(iv) has under his or her control customer cabling connected to a telecommunications network that was so connected by another person contrary to section 128; and
(b) as a result of the connection of the customer equipment or customer cabling to the network, or as a result of the customer equipment or customer cabling being used while it was so connected, damage is caused to the network, or the carrier operating the network suffers a loss or incurs a liability;
the carrier operating the network may apply to the Federal Court for relief.
(2) The relief that may be granted includes an injunction and, at the option of the carrier, either damages or an account of profits.
(3) Where, in the opinion of the Federal Court, it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1).
(4) The power of the Federal Court to grant an injunction restraining a person from engaging in conduct may be exercised:
(a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind;
(b) whether or not the person has previously engaged in conduct of that kind; and
(c) whether or not there is imminent danger of substantial damage to any person if the first-mentioned person engaged in conduct of that kind.
Division 7—Miscellaneous
Reconsideration of decisions
144. (1) Decisions of a kind referred to in Column 1 of the following table are decisions in respect of which application may be made to AUSTEL for their reconsideration.
TABLE
| | Column 1 | Column 2 |
| Item No. | Decision | Applicant |
| 1. | The inclusion, under subsection 118(2), of conditions in a permit | The person who applied for the permit |
| 2. | A refusal to issue a permit under section 118 | The person who applied for the permit |
| 3. | A decision to vary a permit under section 120 | The holder of the permit |
| 4. | A decision not to vary a permit where an application for variation has been made under section 121 | The person who applied for the variation |
| 5. | A decision to cancel a permit under section 123 | The holder of the permit |
| 6. | The inclusion, under subsection 131 (2), of conditions in a cabling licence | The person who applied for the licence |
| 7. | A refusal to issue a cabling licence under section 131 | The person who applied for the licence |
| 8. | A decision to vary a cabling licence under section 133 | The licensee |
| Item No. | Column 1 | Column 2 |
| Decision | Applicant |
| 9. | A decision not to vary a cabling licence where an application for variation has been made under section 134 | The person who applied for the variation |
| 10. | A decision to cancel a cabling licence under section 136 | The licensee |
| 11. | A decision refusing an application for an order to be made under subsection 141 (6) | The person who applied for the order under subsection 141 (6) |
| 12. | A decision to include a direction under section 142 in an order made under subsection 141 (6) | The person who applied for the order under subsection 141 (6), or the carrier against whom the order was made |
| 13. | A decision not to include a direction under section 142 in an order made under subsection 141 (6) | The person who applied for the order under subsection 141 (6) |
(2) In relation to a decision referred to in Column 1 of an item in the table in subsection (1), a person (in this section called “the applicant”) referred to in Column 2 of the item may make the application for reconsideration within:
(a) 21 days after being informed of the decision; or
(b) if, as a result of a request made by the applicant within 21 days after being informed of the decision, AUSTEL extends the period within which an application for reconsideration of the decision may be made—the extended period granted by AUSTEL for making the application.
(3) An application under this section shall be in the form approved by AUSTEL.
(4) The approved form of application may provide for verification by statutory declarations of statements in applications.
(5) Where a carrier applies for reconsideration of a decision to include a direction under section 142 in an order made under subsection 141 (6), AUSTEL shall send to the person who applied for the order under subsection 141 (6):
(a) a copy of the carrier’s application; and
(b) a notice inviting the person to make representations to AUSTEL, within 21 days after receiving the notice, concerning the reconsideration of the decision.
(6) Where a person (other than a carrier) applies for reconsideration of a decision:
(a) to include a direction under section 142; or
(b) not to include such a direction;
in an order under subsection 141 (6), AUSTEL shall send to the carrier against whom the order under subsection 141 (6) was made:
(c) a copy of the person’s application for reconsideration of the decision; and
(d) a notice inviting the carrier to make representations to AUSTEL, within 21 days after receiving the notice, concerning the reconsideration of the decision.
(7) A person who receives such a notice under subsection (5) or (6) may make representations to AUSTEL, within 21 days after receiving the notice, concerning reconsideration of the decision concerned.
(8) AUSTEL shall, in reconsidering the decision concerned, give due consideration to any representations so made.
(9) Where an application for reconsideration is made, AUSTEL shall reconsider the decision to which the application relates and may:
(a) affirm the decision;
(b) (where applicable) vary the decision;
(c) revoke the decision; or
(d) (where applicable) revoke the decision and substitute a fresh decision.
(10) AUSTEL’s decision on reconsideration of a decision has effect as if it had been made under the section under which the original decision was made.
(11) AUSTEL shall not, under subsection (9), vary the decision, or revoke a decision and substitute a fresh decision, in such a way that the decision as varied, or as substituted, could not have been made under the section under which the original decision was made.
(12) AUSTEL shall give to the applicant a notice stating its decision on the reconsideration, together with a statement of its reasons for its decision.
Effect on operation of other laws
145. The fact that:
(a) a permit is in force for the connection of customer equipment to a telecommunications network; or
(b) cabling work has been performed by a licensee;
shall not be taken to affect the operation of any law of the Commonwealth or of a State or a Territory that prohibits or regulates the sale, installation, maintenance, use or disposal of the customer equipment or customer cabling, as the case may be.
Evidence
146. (1) A certificate issued by AUSTEL stating any matter in relation to customer equipment, customer cabling or a permit or cabling licence is prima facie evidence of the matter.
(2) Without limiting subsection (1), the matters that may be certified under that subsection include:
(a) whether there is in force a permit for the connection to a telecommunications network of particular customer equipment, or customer equipment of the same type;
(b) whether a person is a licensee; or
(c) whether the performance of particular cabling work contravenes conditions included in a particular cabling licence.
(3) A document purporting to be a certificate under subsection (1) shall, unless the contrary is established, be taken to be a certificate and to have been properly given.
PART 6—INVESTIGATIONS
Complaints
147. (1) A person may complain to AUSTEL about:
(a) the supply of, or a failure to supply, a telecommunications service;
(b) the connection of, or a failure to connect, customer equipment; or
(c) the performance of or supervision of the performance of, or failure to perform or supervise the performance of, cabling work.
(2) A complaint shall be in writing.
(3) The complaint shall specify the respondent in respect of the complaint, being the person against whom the complaint is made.
Investigations
148. (1) AUSTEL may investigate;
(a) the supply of, or the failure to supply, a telecommunications service;
(b) the connection of, or a failure to connect, customer equipment; or
(c) the performance of or supervision of the performance of, or failure to perform or supervise the performance of, cabling work;
if:
(d) a complaint is made under section 147; or
(e) AUSTEL considers that it is desirable to investigate the matter.
(2) AUSTEL shall not conduct such an investigation if it thinks that the subject matter of the investigation would not be a matter relevant to the performance of any of its functions.
(3) AUSTEL shall investigate:
(a) any of the matters referred to in paragraph (1) (a), (b) or (c); or
(b) any other matter concerning telecommunications services or the telecommunications industry;
if the Minister requests AUSTEL so to investigate.
Preliminary inquiries
149. Where a complaint has been made to AUSTEL under section 147, AUSTEL may make inquiries of the respondent for the purposes of determining:
(a) whether AUSTEL has power to investigate the matter to which the complaint relates; or
(b) whether AUSTEL should, in its discretion, investigate the matter.
Conduct of investigations
150. (1) Before commencing an investigation of a matter to which a complaint relates, AUSTEL shall inform the respondent that the matter is to be investigated.
(2) An investigation under this Part shall be conducted as AUSTEL thinks fit.
(3) AUSTEL may, for the purposes of an investigation, obtain information from such persons, and make such inquiries, as it thinks fit.
(4) Subject to subsection (5), it is not necessary for a complainant or a respondent to be afforded an opportunity to appear before AUSTEL in connection with an investigation.
(5) AUSTEL shall not, as a result of the investigation, make a finding that is adverse to a complainant or a respondent unless it has afforded the complainant or respondent an opportunity to make submissions in relation to the matter to which the investigation relates.
Complainant and certain other persons to be informed of various matters
151. Where AUSTEL decides not to investigate, or not to investigate further, a matter to which a complaint relates, it shall, as soon as practicable and as it thinks fit, inform the complainant and the respondent of the decision and of the reasons for the decision.
Reference of matters to Ombudsman
152. (1) Where, before AUSTEL commences, or after it has commenced, an investigation of a matter to which a complaint relates, AUSTEL forms the opinion that:
(a) a complaint relating to that matter has been, or could have been, made by the complainant to the Ombudsman under the Ombudsman Act 1976; and
(b) the matter could be more conveniently or effectively dealt with by the Ombudsman;
it may decide not to investigate the matter, or not to investigate the matter further, as the case may be.
(2) If AUSTEL so decides, it shall:
(a) transfer the complaint to the Ombudsman;
(b) give written notice to the complainant stating that the complaint has been so transferred; and
(c) give to the Ombudsman any information or documents that relate to the complaint and that are in AUSTEL’s possession or under its control.
(3) A complaint transferred under subsection (2) shall be taken to be a complaint made to the Ombudsman under the Ombudsman Act 1976.
Reference of matters to Trade Practices Commission
153. (1) Where, before AUSTEL commences, or after it has commenced, an investigation of a matter to which a complaint relates, AUSTEL forms the opinion that the matter could be more conveniently or effectively dealt with by the Trade Practices Commission, it may decide not to investigate the matter, or not to investigate the matter further, as the case may be.
(2) If AUSTEL so decides, it shall:
(a) transfer the complaint to the Trade Practices Commission;
(b) give written notice to the complainant stating that the complaint has been so transferred; and
(c) give to the Trade Practices Commission any information or documents that relate to the complaint and that are in AUSTEL’s possession or under its control.
(3) The Trade Practices Commission may hold an investigation into the matter and, if it decides to do so, it shall report to AUSTEL on:
(a) the conduct of the investigation; and
(b) any findings that it has made as a result of the investigation.
(4) If the Trade Practices Commission decides not to hold an investigation into the matter, it shall give to AUSTEL a written notice informing AUSTEL of its decision and of the reasons for its decision.
Effect of investigation by Auditor-General
154. Where AUSTEL becomes aware that a matter being investigated by it is, or is related to, a matter that is under investigation by the Auditor-General, AUSTEL shall not, unless the Auditor-General consents, continue to investigate the matter until the investigation by the Auditor-General has been completed.
Reports on investigations
155. (1) After concluding an investigation under subsection 148 (1), AUSTEL may prepare and give to the Minister a report under this section.
(2) After concluding an investigation under subsection 148 (3) AUSTEL shall prepare and give to the Minister a report under this section.
(3) A report under this section shall cover:
(a) the conduct of the investigation concerned; and
(b) any findings that AUSTEL has made as a result of the investigation.
Protection from civil actions
156. Civil proceedings do not lie against a person in respect of loss, damage or injury of any kind suffered by another person because of any of the following acts done in good faith:
(a) the making of a complaint under section 147;
(b) the making of a statement to, or the giving of a document or information to, AUSTEL in connection with an investigation under section 148.
PART 7—CONSTITUTION OF AUSTEL
Division 1—Membership of AUSTEL
Membership
157. AUSTEL consists of the following members:
(a) a Chairperson;
(b) 2 other members.
Appointment of members
158. (1) The members of AUSTEL shall be appointed by the Governor-General.
(2) The Chairperson shall be appointed as a full time member.
(3) A member, other than the Chairperson, may be appointed as a full time member or as a part time member.
Qualification of members
159. A person shall not be appointed as a member unless he or she appears to the Governor-General to be qualified for appointment because of his or her knowledge of, or experience in, one or more of the following fields:
(a) industry;
(b) commerce;
(c) technology;
(d) consumer affairs;
(e) economics;
(f) law;
(g) public administration.
Associate members
160. (1) The Minister may, in writing, appoint such associate members as he or she thinks fit.
(2) A person shall not be appointed as an associate member unless he or she appears to the Minister to be qualified for appointment because of his or her knowledge of, or experience in, one or more of the fields referred to in section 159.
(3) An associate member shall be appointed for the period, not exceeding 5 years, specified in the instrument of appointment, but is eligible for reappointment.
(4) Subject to this section, an associate member holds office on such terms and conditions (in respect of matters not provided by this Act) as are determined by the Minister.
(5) The Minister may, in writing, direct an associate member to perform the duties of a member, either generally or in relation to the matters specified in the instrument.
(6) While performing the duties of a member under a direction given under subsection (5), an associate member shall be taken, for the purposes of this Act (other than section 175), to be a member.
Division 2—Meetings of AUSTEL
Times and places of meetings
161. (1) AUSTEL shall hold such meetings as is necessary for the efficient performance of its functions.
(2) Subject to subsections (3) and (4), meetings shall be held at such times and places as AUSTEL determines.
(3) The Minister or the Chairperson may call a meeting at any time.
(4) The Chairperson shall call a meeting if requested to do so in writing by the other members.
Presiding at meetings
162. (1) The Chairperson shall preside at all meetings at which he or she is present.
(2) If the Chairperson is not present at a meeting, the members present shall appoint one of their number to preside.
Quorum
163. A majority of the members constitutes a quorum.
Voting at meetings
164. (1) A question shall be decided by a majority of the votes of the members present and voting.
(2) The person presiding at a meeting has a deliberative vote and, if necessary, also a casting vote.
Conduct of meetings
165. (1) AUSTEL may, subject to this Division, regulate proceedings at its meetings as it considers appropriate.
(2) Without limiting subsection (1), AUSTEL may permit a member to participate in a meeting by telephone or any other means of communication.
(3) A member who is permitted to participate in a meeting under subsection (2) shall be regarded as being present at that meeting.
Resolution without meetings
166. If AUSTEL so determines, a resolution shall be taken to have been passed at a meeting of AUSTEL if, without meeting, a majority of the number of members who would, if present at a meeting of AUSTEL and entitled to vote on the resolution at that meeting, have constituted a quorum under section 163 indicate agreement with the resolution in accordance with the method determined by AUSTEL.
Minutes
167. AUSTEL shall keep minutes of its meetings.
Disclosure of interests
168. (1) A member who has a direct or indirect pecuniary interest in a matter being considered by AUSTEL shall, 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 AUSTEL.
(2) A disclosure shall be recorded in the minutes of the meeting and the member shall not, unless the Minister or AUSTEL otherwise determines:
(a) be present during any deliberation by AUSTEL about that matter; or
(b) take part in any decision of AUSTEL relating to that matter.
(3) For the purpose of AUSTEL making such a determination in relation to a member who has made a disclosure, a member who has a direct or indirect pecuniary interest in the matter to which the disclosure relates shall not:
(a) be present during any deliberation by AUSTEL for the purpose of making the determination; or
(b) take part in making the determination.
Division 3—Provisions relating to members
Term of appointment
169. (1) A member shall be appointed for the period, not exceeding 5 years, specified in the instrument of appointment.
(2) A member is eligible for reappointment.
Age limit
170. (1) A person who is aged 65 years or more shall not be appointed as a full time member.
(2) A person shall not be appointed as a full time member for a period that extends beyond the day on which he or she will reach the age of 65 years.
Remuneration and allowances
171. (1) A member shall be paid such remuneration as is determined by the Remuneration Tribunal.
(2) If no determination of that remuneration is in operation, a member shall be paid such remuneration as is prescribed.
(3) A member shall be paid such allowances as are prescribed.
(4) This section has effect subject to the Remuneration Tribunal Act 1973.
(5) In this section:
“member” includes a member of an advisory committee established under section 32.
Outside employment
172. (1) A full time member shall not engage in any paid employment outside the duties of his or her office without the Minister’s written approval.
(2) A part time member shall not engage in any paid employment that, in the Minister’s opinion, conflicts, or may conflict, with the proper performance of the member’s duties.
(3) This section does not apply in relation to the holding by a member of an office or appointment in the Defence Force.
Leave of absence
173. (1) The Minister may grant leave of absence to the Chairperson on such terms and conditions as to remuneration or otherwise as the Minister determines in writing.
(2) The Chairperson may grant leave of absence to another full time member on such terms and conditions as to remuneration or otherwise as the Minister determines in writing.
(3) The Chairperson may grant leave to a part time member to be absent from a meeting or meetings of AUSTEL.
Resignation
174. A member may resign by writing signed and delivered to the Minister.
Termination of appointment
175. (1) The Governor-General may terminate the appointment of a member for misbehaviour or mental incapacity.
(2) If:
(a) a member becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of remuneration for their benefit;
(b) a full time member:
(i) engages, except with the Minister’s approval, in paid employment outside the duties of his or her office; or
(ii) is absent from duty, except on leave of absence granted under subsection 173 (1) or (2), as the case requires, for 14 consecutive days or for 28 days in any 12 months;
(c) a part time member:
(i) engages in paid employment that, in the Minister’s opinion, conflicts with the proper performance of the member’s duties; or
(ii) is absent, except on leave of absence granted under subsection 173 (3), from 3 consecutive meetings of AUSTEL; or
(d) a member fails, without reasonable excuse, to comply with section 168;
the Governor-General may terminate the member’s appointment.
Terms and conditions of appointment etc.
176. A member holds office on such terms and conditions (in respect of matters not provided for by this Act) as are determined by the Governor-General.
Acting appointments
177. (1) The Minister may appoint a member or another person to act as the Chairperson:
(a) during a vacancy in the office of Chairperson (whether or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when the Chairperson is absent from duty or from Australia or is, for any other reason, unable to perform the duties of the office.
(2) The Minister may appoint a person to act as a member:
(a) during a vacancy in the office of a member (whether or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when a member is acting as the Chairperson, is absent from duty or from Australia, or is, for any other reason, unable to perform the duties of the office.
(3) A person appointed to act during a vacancy shall not continue to act for more than 12 months.
(4) Anything done by a person purporting to act under an appointment under this section is not invalid merely because:
(a) the occasion for the appointment had not arisen;
(b) there was a defect or irregularity in, or in connection with, the appointment;
(c) the appointment had ceased to have effect; or
(d) the occasion for the person to act had not arisen or had ceased.
PART 8—MISCELLANEOUS
Review of decisions
178. (1) Applications may be made to the Administrative Appeals Tribunal for the review of the following decisions of AUSTEL:
(a) a decision under section 86 reconsidering a decision of AUSTEL under Subdivision B of Division 3 of Part 4;
(b) a decision under section 90 reconsidering a decision of AUSTEL to refuse an application for the registration of a value added service or private network service;
(c) a decision under section 93 reconsidering a decision of AUSTEL to declare a value added service or private network service to be an unlicensed service;
(d) a decision under section 144 reconsidering a decision of AUSTEL under Part 5;
(e) a decision of AUSTEL under section 86, 90, 93 or 144 refusing to grant, or granting, an extension of the period of time within which an application for reconsideration may be made under section 86, 90, 93 or 144, as the case requires.
(2) If, at the end of 30 days after an application for the reconsideration of a decision of AUSTEL is made under section 86, 90, 93 or 144, AUSTEL has not informed the applicant of its decision on the reconsideration, AUSTEL shall be regarded, for the purposes of this section, as:
(a) having decided to affirm the decision, in respect of which the application for reconsideration was made, on the last day of the 30 days; and
(b) having informed the applicant accordingly on that day.
(3) If, at the end of 14 days after a request has been made under section 86, 90, 93 or 144 for an extension of the period within which an application for reconsideration may be made under section 86, 90, 93 or 144, as the case requires, AUSTEL has not informed the person who made the request of its decision as to whether to grant an extension of the period, AUSTEL shall be regarded, for the purposes of this section as:
(a) having decided, on the last day of the 14 days, to refuse to grant the extension to the period; and
(b) having informed the person accordingly on that day.
Statement to accompany notification of decision
179. (1) Where a decision of a kind referred to in section 178 is made and a notice in writing of the decision is given to a person whose interests are affected by the decision, the notice must include:
(a) a statement to the effect that application may be made to the Administrative Appeals Tribunal under the Administrative Appeals Tribunal Act 1975 for review of the decision; and
(b) a statement to the effect that a person who is entitled to apply to the Administrative Appeals Tribunal for the review of a decision may, under section 28 of that Act, request a statement that includes reasons for the decision.
(2) Paragraph (1) (b) does not apply in relation to a case to which subsection 28 (4) of the Administrative Appeals Tribunal Act 1975 applies.
(3) A contravention of subsection (1) in relation to a decision does not affect the validity of the decision.
AUSTEL may obtain information and documents from carriers
180. If AUSTEL has reason to believe that a carrier has information or a document that is relevant to the performance of any of AUSTEL’s functions or the exercise of any of its powers, AUSTEL may by written notice given to the carrier, require the carrier, within the time specified in the notice, to give the information to AUSTEL in writing, or to produce the document to AUSTEL, as the case requires.
Application of Division 3 of Part XI of the Audit Act
181. (1) AUSTEL is a public authority to which Division 3 of Part XI of the Audit Act 1901 applies.
(2) Each annual report submitted by AUSTEL under section 63m of the Audit Act 1901, as that section applies because of subsection (1) of this section, shall include:
(a) particulars of each notification of general policies of the Commonwealth Government under section 28 of this Act, being a notification given during the financial year to which the annual report relates; and
(b) a report on:
(i) the number and types of complaints made under Part 6 during the financial year;
(ii) the investigations conducted under Part 6 during the financial year as a result of complaints made under Part 6; and
(iii) the results of those investigations.
Staff
182. (1) AUSTEL’s staff shall be appointed or employed under the Public Service Act 1922.
(2) The Chairperson has all the powers of a Secretary under the Public Service Act 1922 as they relate to the branch of the Australian Public Service comprising AUSTEL’s staff.
(3) AUSTEL may make an arrangement with an authority of the Commonwealth for the services of officers or employees of that authority to be made available for the purposes of AUSTEL.
Consultants
183. AUSTEL may engage such persons as it thinks fit as consultants to advise AUSTEL in respect of the exercise of its powers and the performance of its functions.
Delegation
184. AUSTEL may, in writing, delegate all or any of its powers under this Act to:
(a) a member;
(b) a staff member; or
(c) a person whose services are made available to AUSTEL under subsection 182 (3).
Regulations
185. (1) The Governor-General may make regulations, not inconsistent with this Act, 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 make provision for penalties by way of a fine not exceeding $1,000 for offences against the regulations.
[Minister’s second reading speech made in—
House of Representatives on 13 April 1989
Senate on 11 May 1989]