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Telecommunications Act 1991

Authoritative Version
Act No. 98 of 1991 as made
An Act about telecommunications, and for related purposes
Date of Assent 27 Jun 1991
Date of repeal 01 Jul 1997
Repealed by Telecommunications (Transitional Provisions and Consequential Amendments) Act 1997

Telecommunications Act 1991

No. 98 of 1991

TABLE OF PROVISIONS

PART 1—PRELIMINARY

Section

 

1.

Short title

2.

Commencement

3.

General objects of Act

PART 2—INTERPRETATION

Division 1General

4.

Effect of this Part

5.

Definitions

Division 2Boundaries of telecommunications networks

6.

End facilities

7.

Boundary of a reserved line link

8.

Facilities beyond the boundaries of a reserved line link

9.

Facilities within the boundaries of a telecommunications network comprising a reserved line link

10.

Other boundaries of a telecommunications network

11.

Regulations may determine network boundaries

Division 3Distinct places

12.

Basic rules

13.

Properties

14.

Combined areas

15.

Principal user of a property

16.

Eligible combined areas


TABLE OF PROVISIONScontinued

 

Section

 

Division 4Interpreting other expressions

17.

Equipment connected to network

18.

Eligible services

19.

What constitutes supply of an eligible service under a class licence

20.

Meaning of customer equipment of same type

21.

Inclusion of a service in a BCS tariff

22.

Line links

23.

Facilities ancillary to a line link

24.

Reserved line links

25.

Public mobile telecommunications service

26.

Public access cordless telecommunications services

27.

Different kinds of telecommunications services

28.

When a carrier is in a position to dominate a market

PART 3—APPLICATION OF ACT

29.

Extraterritorial operation

30.

Extension to external Territories

31.

Extension to adjacent areas

32.

Act binds the Crown

33.

Act subject to Radiocommunications Act

PART 4—ESTABLISHMENT, FUNCTIONS AND POWERS OF AUSTEL

34.

AUSTEL

35.

AUSTEL is body corporate etc.

36.

General functions—overall responsibilities of AUSTEL

37.

General functions—promotion of competition

38.

General functions—protection of public interest and consumers

39.

General functions—numbering

40.

General functions—reports to Minister on competitive safeguards and carrier performance

41.

General functions—licensing

42.

General functions—technical regulation and setting of technical standards

43.

General functions—administering universal service levy arrangements

44.

Other functions

45.

General powers

46.

Power to give directions to carriers

47.

AUSTEL, carriers and service providers to prevent use of networks and facilities in commission of offences

48.

General governmental obligations of AUSTEL

49.

Minister may notify AUSTEL of general policies of Commonwealth Government

50.

Minister may give directions to AUSTEL

51.

AUSTEL not otherwise subject to government direction

52.

Consultation

53.

Advisory committees

54.

Exercise of certain powers

PART 5—LICENSING, AND GENERAL OBLIGATIONS, OF CARRIERS

Division 1Objects of Part

55.

Objects

Division 2Grant of licence

56.

Application for a licence

57.

Decision on application

58.

Revocation of licence

59.

Application for transfer of licence

60.

Decision on application

61.

Minister may delegate certain powers


TABLE OF PROVISIONScontinued

 

Section

 

 

Division 3Licence conditions

62.

Conditions to which a licence is subject

63.

Conditions about certain matters

64.

Declaration of conditions of licences in a class

65.

Declaration of conditions of particular licences

66.

Notification and date of effect of instruments under sections 64 and 65

67.

Carrier consent required for change in licence period

68.

Minister to consult with carriers before changing licence conditions

69.

Reports by AUSTEL on proposed instruments about licence conditions

70.

Agreement with carrier about licences

71.

Prescribed carrier obligations

72.

Prescribed carrier obligation about untimed calls

73.

Continued access to untimed calls made using the standard telephone service

 

Division 4International aspects of carriers’ activities

74.

Signatory must give effect to policies of Commonwealth Government

75.

Minister may notify carriers about conventions

76.

Carriers to comply with relevant conventions and foreign laws

77.

Minister may determine Code of Practice relating to dealings with international telecommunications operators

78.

Code of Practice binding on carriers

79.

Enforcement of Code of Practice

Division 5Accounting and charging procedures

80.

Preparation of chart of accounts and cost allocation manual

81.

When chart or manual binds carrier

82.

AUSTEL may modify chart or manual as binding on a particular carrier

83.

Carrier to keep books and records in accordance with chart and manual

84.

Individual services to be priced and charged for separately

85.

AUSTEL may give directions about accounting and charging requirements

86.

AUSTEL may, for the purposes of this Part, inspect carrier’s books and records

87.

Compliance with other laws

Division 6Protection of communications

88.

Carriers’ employees etc. not to disclose or use contents of communications etc.

PART 6—RESERVED RIGHTS OF CARRIERS

Division 1Declarations of policy

89.

Declarations

Division 2Reserved rights

90.

Reserved line links

91.

Facilities ancillary to reserved line links

92.

Supply of telecommunications services by satellite-based facilities

93.

Provision of public payphones

94.

Supply of public mobile telecommunications services

95.

Action to enforce this Part

Division 3General exceptions

96.

Acts done on behalf of a carrier


TABLE OF PROVISIONScontinued

 

Section

 

Division 4Exceptions relating to line links

97.

Interpretation

98.

Line links used by transport authorities

99.

Line links used by broadcasters

100.

Line links authorised by or under previous laws

101.

Defence line links

102.

Restriction on use or disposal of certain reserved line links

Division 5Exceptions relating to satellite-based facilities

103.

Supply by satellite of international service to operator of licensed earth station

104.

Satellite services for defence purposes

Division 6Use of certain facilities under AUSTEL authorisations

105.

This Division not limited by Division 3, 4 or 5

106.

Minister may direct AUSTEL in the use of its powers under this Division

107.

AUSTEL to comply with Ministerial directions

108.

AUSTEL may authorise use of certain facilities

109.

Terms and conditions of authorisation

110.

How long authorisation has effect

111.

Dealing with line link after authorisation ceases

112.

Variation of authorisations

113.

Revocation

114.

Effect of authorisation

115.

Reconsideration of decisions

PART 7—CARRIERS’ POWERS AND IMMUNITIES

Division 1General

116.

Regulations may exempt carriers from State and Territory laws

117.

National Code about carriers’ exempt activities

118.

National Code binding on carriers

119.

AUSTEL may give directions about complying with National Code

120.

State and Territory laws that discriminate against carriers

121.

AUSTEL may limit carriers’ tort liability in respect of supplying basic carriage services

122.

Effect of limitation determined by AUSTEL

123.

Ownership of telecommunications facilities

Division 2Industry codes of practice

124.

Declaration of policy

125.

Carrier may request AUSTEL to give directions about a prescribed arrangement

126.

When AUSTEL may give directions

127.

Enforcement of directions against persons other than carriers

Division 3General carriers’ powers to enter land

128.

Power to inspect land etc.

129.

Powers relating to installation of facilities etc.

130.

Trees may be cut etc.

131.

A general carrier may replace, repair and maintain facilities etc.

132.

Subdivider to pay for necessary alterations

133.

Power extends to carrier’s employees etc.

134.

Carrier to do as little damage as practicable etc.

135.

Service of notices

PART 8—ACCESS BY CARRIERS TO NETWORKS AND SERVICES OF OTHER CARRIERS

Division 1Objects of Part

136.

Objects


TABLE OF PROVISIONScontinued

 

Section

 

Division 2Access rights of carriers

137.

Right to interconnection and related carriage

138.

Supplementary access conditions of licences

139.

AUSTEL’s role in negotiations for access agreements

Division 3Charging principles

140.

Minister may determine principles to govern charging for access

141.

Access agreements must comply with charging principles

142.

Access agreements must be varied when charging principles change

143.

AUSTEL may advise carriers when to vary access agreements

Division 4Registration of access agreements

144.

AUSTEL to keep register

145.

Effect of registration

146.

Application for registration

147.

Request for material to be put in the confidential part of the register

148.

Decision on request

149.

Effect of direction to include material in the confidential part

150.

Agreement not to be registered pending determination of request; effect of refusal

151.

Deregistration of agreements

152.

Certificate of registration under this Division

153.

Application of Division in relation to variation of access agreement

Division 5Arbitration

154.

Arbitration by AUSTEL of terms of access

155.

AUSTEL may extend time for giving its determination

156.

Determination under section 154 taken to be an access agreement

157.

Arbitration where carriers cannot agree on variation of access agreement

158.

Determination supersedes previous agreements and determinations

159.

AUSTEL’s way of operating

160.

Constitution of AUSTEL for conduct of arbitration

161.

Presiding member

162.

Reconstitution of AUSTEL

163.

Determination of questions

164.

Previous activities as member of AUSTEL do not disqualify a member from participating in an arbitration

165.

Arbitration to be conducted in private unless the parties agree otherwise

166.

Steps to be taken in the arbitration

167.

Party may request AUSTEL to treat material as confidential

168.

AUSTEL may set up advisory panel

169.

Public inquiry about matter involved in arbitration

170.

The end of the arbitration

171.

Carriers must help AUSTEL conduct arbitration

172.

AUSTEL’s arbitration jurisdiction is exclusive

PART 9—SUPPLY OF BASIC CARRIAGE SERVICES BY CARRIERS

Division 1Declarations of policy

173.

Declarations

Division 2What constitutes a basic carriage service

174.

Basic carriage services

175.

Functions necessary for basic communications carriage

176.

AUSTEL may give opinions about what is a basic carriage service

177.

Public register of AUSTEL opinions

178.

AUSTEL opinions are advisory only


TABLE OF PROVISIONScontinued

 

Section

 

Division 3Direction to a carrier to unbundle a basic carriage service

179.

AUSTEL may inquire into the unbundling of a basic carriage service

180.

Request to AUSTEL to hold unbundling inquiry

181.

Direction to carrier following inquiry

182.

How carrier must comply with direction

Division 4Prohibition of discrimination

183.

Dominant carrier not to discriminate between acquirers of telecommunications services

184.

Carrier not to discriminate against resuppliers or their customers

185.

Exceptions

186.

Action for discrimination

187.

Dominant carrier not to favour itself when using its own basic carriage services to supply certain services

188.

In other cases, carrier may favour itself when using its own basic carriage service to supply service

189.

Direction to carrier to make available information about its supply of basic carriage services

Division 5Tariffs of basic carriage services

190.

Tariff of basic carriage services

191.

AUSTEL may disallow non-complying tariff

192.

Variation and revocation of BCS tariff

193.

AUSTEL may disallow variation that is contrary to section 192

194.

Basic carriage service must be tariffed if supplied to the public

195.

Dominant carrier may not use untariffed basic carriage services in supplying higher level services

196.

When carrier may restrict use of tariffed basic carriage service to use in supplying specified higher level services

197.

Dominant carrier must charge in accordance with its BCS tariff

198.

Non-dominant carrier must not exceed charges in its BCS tariff

199.

Effect of sections 197 and 198

200.

Terms and conditions in BCS tariff apply unless excluded

201.

BCS tariffs to be publicly available

Division 6Exception for registered access agreements

202.

Supply of basic carriage service under registered access agreement

PART 10—SUPPLY OF TELECOMMUNICATIONS SERVICES UNDER CLASS LICENCES

Division 1Objects of Part

203.

Objects

Division 2Ministerial directions

204.

Minister may give directions to AUSTEL

205.

Directions to have general application only

206.

Directions not to affect pre-existing rights to supply services

207.

Carrier may ask Minister to give direction about use of interconnected radcom facilities

208.

Minister to consult carriers before varying or revoking a direction


TABLE OF PROVISIONScontinued

 

Section

 

Division 3Class licences

Subdivision AGeneral

209.

Issuing of class licences

210.

Consultation with carriers on proposed class licences

211.

Variation of class licences

212.

Consultation with carriers on proposed variations of class licences

213.

Publication of proposed restrictive variations of class licences

Subdivision BApplications for variation of class licences

214.

Applications for variation of class licences

215.

Carriers to be consulted on proposed variations

216.

Carriers may make representations on proposed variations

217.

Variation of class licences

218.

Deemed refusal of applications etc.

219.

Notice of right to seek reconsideration

220.

Reconsideration of decisions

Subdivision CRegistration of eligible services

221.

Register of eligible services

222.

Registration of eligible services

223.

Deemed refusal of application for registration

224.

Reconsideration of refusals of applications for registration

Subdivision DEnrolment of suppliers

225.

Class licence conditions requiring suppliers to enrol

226.

Roll of suppliers

227.

Enrolment of suppliers

Subdivision EUnlicensed services

228.

Declarations that services are unlicensed

229.

Declarations in respect of registered eligible services

230.

Reconsideration of declarations

231.

Effect of declarations

232.

Registration of unlicensed services

Division 4Use of telecommunications networks for the supply of eligible services

233.

Connection etc. of unlicensed services

234.

Carriers must connect eligible services

235.

Action for failure to connect eligible services

PART 11—SUPPLY OF TELECOMMUNICATIONS SERVICES GENERALLY

Division 1Competition

236.

Certain acts done under this Act do not breach Part IV of the Trade Practices Act

237.

Carrier may refuse to supply basic carriage service not included in its BCS tariff

238.

This Division does not limit other Trade Practices Act exceptions

Division 2Management of numbering of telecommunications services

239.

National numbering plan

240.

Matters affecting national numbering plan

241.

Services to be provided in accordance with national numbering plan

242.

Allocation of numbers


TABLE OF PROVISIONScontinued

 

Section

 

PART 12—TECHNICAL REGULATION

Division 1Objects of Part

243.

Objects

 

Division 2Technical standards about network matters

244.

Determination of technical standards

245.

Carriers to comply with networks standards

Division 3Technical standards about customer equipment and customer cabling

246.

Determination of technical standards

Division 4Technical standards generally

247.

Publication etc. of proposed technical standards

248.

Emergency determination of technical standards

249.

Adoption of technical standards

Division 5Ministerial directions about permits and licences

250.

Minister may give directions to AUSTEL

251.

Directions to have general application only

252.

Inconsistency with technical standards

Division 6Permits for customer equipment

253.

Connection of customer equipment for which there is no permit

254.

Disconnection of customer equipment for which there is no permit

255.

Sale of customer equipment for which there is no permit

256.

Register of customer equipment

257.

Applications for permits

258.

Issue of permits

259.

Deemed refusal of permits

260.

Variation of permits

261.

Applications for variation of permits

262.

Representations concerning variation of permits

263.

Cancellation of permits

264.

Representations concerning cancellation of permits

265.

Transfer of permits

266.

Accreditation etc. of test houses

267.

AUSTEL may limit application of Division in relation to customer equipment

Division 7—Licensing of cabling providers

268.

Performance of cabling work without licence etc.

269.

Register of cabling licences

270.

Applications for cabling licences

271.

Issue of cabling licences

272.

Deemed refusal of cabling licences

273.

Variation of cabling licences

274.

Applications for variation of cabling licences

275.

Representations concerning variation of cabling licences

276.

Cancellation of cabling licences

277.

Representations concerning cancellation of cabling licence

278.

Surrender of cabling licences

279.

Delegation of licensing

280.

AUSTEL may limit application of Division in relation to customer cabling


TABLE OF PROVISIONScontinued

 

Section

 

Division 8Connection of customer equipment and customer cabling to telecommunications networks

281.

Disconnection etc. of customer equipment or customer cabling

282.

Directions to pay compensation

283.

Action for unauthorised connection to telecommunications network of customer equipment or customer cabling

Division 9Miscellaneous

284.

Reconsideration of decisions

285.

Effect on operation of other laws

286.

Evidence

PART 13—ASSESSMENT, COLLECTION AND DISTRIBUTION OF UNIVERSAL SERVICE LEVY

Division 1Preliminary

287.

Declarations of policy

288.

Universal service obligation

Division 2Universal service carriers and net cost areas

289.

Participating carriers

290.

Minister may declare universal service carriers

291.

Effect of declaration: meaning of “universal service carrier”

292.

Prescribed carrier obligation of universal service carrier

293.

Universal service carrier must propose service areas for declaration as net cost areas

294.

AUSTEL may declare net cost areas

295.

Minister may give directions about declaring net cost areas

Division 3Assessment of liability for levy and of entitlement to levy distributions

296.

When a claim for a levy credit may be made

297.

No levy payable unless at least one claim for a levy credit is made

298.

AUSTEL to give other participating carriers copies of claims

299.

When a claim for a levy credit must be made

300.

Requirements with which a claim for a levy credit must comply

301.

Net universal service cost of a carrier for a financial year

302.

AUSTEL determinations about working out a carrier’s net universal service cost

303.

Application of determinations under section 302

304.

Participating carrier must lodge return of timed traffic

305.

Timed traffic of a carrier for a financial year

306.

Timed traffic across networks operated by different carriers

307.

AUSTEL may inquire into the correctness of a claim or return

308.

AUSTEL to assess liabilities and entitlements

309.

Period within which assessment must be made

310.

Levy debit of a carrier for a financial year

311.

Levy debit balance of a carrier for a financial year

312.

Levy credit balance of a carrier for a financial year

313.

Publication of assessment

Division 4Disclosure by AUSTEL of information about the basis and methods of an assessment

314.

Public may request information

315.

Carrier may request information that is unavailable under section 314

316.

How AUSTEL to comply with a request


TABLE OF PROVISIONScontinued

 

Section

 

Division 5Collection and recovery of levy

317.

When levy payable

318.

Levy a debt due to the Commonwealth

319.

Validity of assessment

320.

Evidence of assessment

321.

Onus of establishing incorrectness of assessment

Division 6Distribution of levy

322.

Universal Service Fund

323.

Payments into Fund

324.

Purposes of Fund

325.

Levy distribution to participating carrier

326.

Levy not to be distributed until paid

PART 14—PUBLIC INQUIRIES

327.

When inquiry must be held

328.

When inquiry may be held

329.

Informing the public about an inquiry

330.

Discussion paper

331.

Written submissions; protection from civil actions

332.

Public hearings

PART 15—INVESTIGATIONS

333.

Matters AUSTEL may investigate

334.

Complaints

335.

Investigations

336.

Preliminary inquiries

337.

Conduct of investigations

338.

Complainant and certain other persons to be informed of various matters

339.

Reference of matters to Ombudsman

340.

Reference of matters to Trade Practices Commission

341.

Effect of investigation by Auditor-General

342.

Reports on investigations

343.

AUSTEL may direct carrier to remedy breach of licence condition

344.

AUSTEL may direct carrier to fulfil prescribed carrier obligation

345.

Protection from civil actions

346.

Public register of information about investigations

PART 16—ENFORCEMENT

Division 1—AUSTEL directions

347.

Application

348.

Enforcement of AUSTEL directions

349.

Pecuniary penalties for contraventions of AUSTEL directions

350.

Civil action for recovery of pecuniary penalties

351.

Remedies may be pursued at the same time

352.

Criminal proceedings not to be brought for contraventions of AUSTEL directions

353.

Recovery of damages for contravention of section 344 direction

Division 2Conditions of carrier licences

354.

Application

355.

Enforcement of licence condition

356.

Pecuniary penalty for contravention of licence condition

357.

Civil action for recovery of pecuniary penalties

358.

Remedies may be pursued at the same time

359.

Criminal proceedings not to be brought for contravention of licence condition


TABLE OF PROVISIONScontinued

 

Section

 

Division 3Powers of entry, search and seizure

360.

Appointment of inspectors

361.

Identity cards

362.

Searches to monitor compliance with Act etc.

363.

Offence-related searches and seizures

364.

Warrants may be granted by telephone

365.

Power to require information etc.

366.

Retention of books, records and documents

PART 17—CONSTITUTION OF AUSTEL

Division 1Membership of AUSTEL

367.

Membership

368.

Appointment of members

369.

Associate members

370.

Qualification of members

Division 2—Meetings of AUSTEL

371.

Times and places of meetings

372.

Notice of meetings

373.

Presiding at meetings

374.

Quorum

375.

Voting at meetings

376.

Conduct of meetings

377.

Resolutions without meetings

378.

Minutes

379.

Disclosure of interests

Division 3Provisions relating to members

380.

Term of appointment

381.

Age limit

382.

Remuneration and allowances

383.

Outside employment

384.

Leave of absence

385.

Resignation

386.

Termination of appointment

387.

Terms and conditions of appointment etc.

388.

Acting appointments

Division 4Finance

389.

Money of AUSTEL

390.

Application and investment of money

391.

.Estimates

392.

Limitation on contracts

393.

Application of Division 3 of Part XI of the Audit Act

394.

Liability to taxation

PART 18—MISCELLANEOUS

395.

Federal Court powers relating to injunctions

396.

Nature of unenforceability of agreements

397.

Review of decisions

398.

Statement to accompany notification of decision

399.

AUSTEL to review and report to Minister on competitive safeguards and carrier performance

400.

AUSTEL may obtain information and documents from carriers


TABLE OF PROVISIONScontinued

 

Section

 

401.

AUSTEL may obtain information and documents from persons other than carriers

402.

AUSTEL may waive fees

403.

Staff

404.

Consultants

405.

Delegation

406.

Regulations


Telecommunications Act 1991

No. 98 of 1991

An Act about telecommunications, and for related purposes

[Assented to 27 June 1991]

The Parliament of Australia enacts:

PART 1—PRELIMINARY

Short title

1.  This Act may be cited as the Telecommunications Act 1991.

Commencement

2.  (1) Subject to this section, this Act commences on 1 July 1991.

(2)    Sections 1 and 2 commence on the day on which this Act receives the Royal Assent.

(3)    Sections 116 and 120 commence on a day to be fixed by Proclamation.

(4)    If sections 116 and 120 do not commence under subsection (3) of this section before 1 January 1992, they commence on that day.

General objects of Act

3.  The objects of this Act include:

(a) ensuring that the standard telephone service:


(i) is supplied as efficiently and economically as practicable; and

(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; and

(b)     maximising the efficiency of the carriers, as the primary providers of Australia’s telecommunications networks and the primary suppliers of Australia’s telecommunications services; and

(c)     enabling the carriers to meet their commercial obligations and their obligations under this Act and other laws of the Commonwealth; and

(d)     ensuring that the carriers achieve the highest possible levels of accountability and responsiveness to customer and community needs; and

(e)     achieving optimal rates of expansion and modernisation for Australia’s telecommunications infrastructure and networks; and

(f) promoting the introduction of new and diverse telecommunications services; and

(g) enabling all sectors of the Australian telecommunications industry to participate effectively in Australian and overseas telecommunications markets on a commercial basis and making Australia more attractive as an international telecommunications centre; and

(h) 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; and

(i) creating a regulatory environment for the supply of telecommunications services which promotes competition and fair and efficient market conduct; and

(j) promoting the development of Australia’s telecommunications capabilities, industries and skills, for use in Australia and overseas; and

(k) promoting research and development within Australia in relation to new and diverse telecommunications facilities and services for use in Australia and overseas; and

(l) ensuring that all parts of the community benefit from lower prices for telecommunications facilities and services and from the future development of telecommunications networks.


PART 2—INTERPRETATION

Division 1General

Effect of this Part

4.  The provisions of this Part have effect for the purposes of this Act, except so far as the contrary intention appears in this Act.

Definitions

5.  Unless the contrary intention appears:

“access agreement” means an agreement made for the purposes of subsection 137 (2) or (3) or of a supplementary access condition of a general telecommunications licence or public mobile licence, and has the additional meaning for which section 156 provides;

“accredited test house” means a test house in relation to which there is in operation an accreditation granted under regulations made because of section 266;

“adjacent area”, in relation to a State or Territory, has the same meaning as in the Petroleum (Submerged Lands) Act 1967;

“appointing authority” means:

(a)     in relation to a member appointed under section 368—the Governor-General; and

(b)    in relation to an associate member appointed under section 369—the Minister;

“appropriate fee”, in relation to an application, means the fee for the application that is payable under the Telecommunications (Application Fees) Act 1991;

“AUSTEL” means the Australian Telecommunications Authority;

“Australia” includes the external Territories (if any) to which this Act extends;

“basic carriage service” has the meaning given by section 174;

“BCS tariff”, in relation to a carrier, means:

(a)     a tariff given to AUSTEL by the carrier under section 190 and in force for the time being, whether or not it has been varied under section 192; or

(b)    a tariff that purports to be such a tariff but does not comply with section 190;

but does not include:

(c)     a tariff that contravenes subsection 190 (4); or

(d)    a document that AUSTEL has disallowed under section 191;

“boundary”, in relation to a telecommunications network, has a meaning affected by Division 2;

“business day” means a day that is not a Saturday, a Sunday or a public holiday or bank holiday in the place concerned;


“cabling licence” means a licence issued under Division 7 of Part 12 to perform cabling work;

“cabling work” means:

(a)     the installation of customer cabling for connection to a telecommunications network operated by a carrier; or

(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 a general carrier or a mobile carrier;

“carry” includes transmit, switch and receive;

“Chairperson” means the Chairperson of AUSTEL;

“charge” includes:

(a)     any charge or fee (whether payable periodically, in instalments or otherwise); and

(b)    a nil charge or nil fee; and

(c)     in relation to a telecommunications service, includes:

(i) any charge or fee (including of a kind referred to in paragraph (a) or (b)) for or in relation to a facility used, or intended for use, in relation to the supply of the service; and

(ii) any other charge or fee (including of a kind referred to in paragraph (a) or (b)) for or in relation to the supply of the service;

“class licence” means a class licence issued under Subdivision A of Division 3 of Part 10;

“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; or

(b) data; or

(c) text; or

(d) visual images, whether or not animated; or

(e) signals; or

(ii) in any other form or in any combination of forms;

“condition”, in relation to a general telecommunications licence or a public mobile licence, means a condition or restriction to which the licence is subject, or will be subject, as the case requires;

“convention” means a convention to which Australia is a party or an agreement or arrangement between Australia and a foreign country,


and includes, for example, an agreement, arrangement or understanding between a Minister and an official or authority of 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 is, or is intended to be, connected to a telecommunications network operated by a carrier, other than equipment that is used, or intended for use, within the boundaries of such a network;

“distinct places” has the meaning given by Division 3;

“dominate” has a meaning affected by section 28;

“earth-based facility” means a facility other than a satellite-based facility;

“eligible corporation” means a body corporate that is, for the purposes of paragraph 51 (20) of the Constitution, a trading corporation, or a financial corporation, formed within the limits of the Commonwealth;

“eligible international service” means an eligible service that is also an international service;

“eligible service” has the meaning given by section 18;

“eligible Territory” means an internal Territory, or an external Territory to which this Act extends;

“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;

“exempt activity” means an activity, or conduct, engaged in in the course of, for the purposes of, or otherwise in connection with:

(a)     installing, maintaining or operating a telecommunications network; or

(b)    without limiting paragraph (a), supplying, installing, maintaining or operating a facility;

“facility”:

(a)  in the case of a reference to a facility ancillary to a line link—has the meaning given by section 23; or

(b)  otherwise—means:

(i) any part of the infrastructure of a telecommunications network; or

(ii) any line, equipment, tower, mast, antenna, tunnel, hole, pit, pole or other structure or thing used, or intended for use, in or in connection with a telecommunications network; or

(iii) without limiting subparagraph (i) or (ii), a facility ancillary to a line link (as defined by section 23);

“Federal Court” means the Federal Court of Australia;


“Fund” means the Universal Service Fund established by section 322;

“general carrier” means the holder of a general telecommunications licence in force under Part 5;

“higher level service” means a telecommunications service that is not a basic carriage service;

“included”, in relation to a BCS tariff, has the meaning given by section 21;

“install” includes alter, move, remove and replace;

“international service” means a telecommunications service between a place within Australia and a place outside Australia;

“international telecommunications operator” means a person (other than a carrier) who operates a telecommunications network outside Australia for or in relation to the supply of international services, or who supplies such services;

“law”, in relation to a State or Territory, does not include the common law of the State or Territory;

“levy” means levy imposed by the Telecommunications (Universal Service Levy) Act 1991 and assessed under Division 3 of Part 13 of this Act;

“licence”, in Parts 5, 6, 7, 8 and 16, means a general telecommunications licence, or a public mobile licence, in force under Part 5;

“licensee”, in Part 12, means a natural person who is the holder of a cabling licence;

“line” means a wire, cable, optical fibre, tube, conduit, waveguide or other physical medium used, or intended for use, as a continuous artificial guide for or in connection with carrying communications by means of guided electromagnetic energy;

“line link” has the meaning given by section 22;

“maintain” includes adjust and repair;

“market” has the same meaning as in the Trade Practices Act 1974;

“member” means a member of AUSTEL and:

(a)  in Division 5 of Part 8, includes:

(i) an associate member directed to perform the duties of a member generally; and

(ii) an associate member directed to perform the duties of a member in relation to specified matters that are related to the subject of the arbitration concerned; and

(b)     in Part 17 (other than sections 367, 368, 372, 374 and 375), includes an associate member; and

(c)     in section 375, includes:

(i) an associate member directed to perform the duties of a member generally; and

(ii) an associate member directed to perform the duties of a member in relation to specified matters that are related to the question to be decided;


“mobile carrier” means the holder of a public mobile licence in force under Part 5;

“modifications” includes variations, additions, omissions and substitutions;

“national numbering plan” means the plan prepared under section 239;

“net cost area”, in relation to a financial year, means an area declared under section 294 to be a net cost area for that financial year;

“network matter” means a matter relating to:

(a)     the operation of telecommunications networks; or

(b)    the operation of facilities connected to, and within the boundaries of, telecommunications networks; or

(c)     the supply of telecommunications services by means of telecommunications networks;

“Ombudsman” means the Commonwealth Ombudsman;

“participating carrier” has the meaning given by section 289;

“payphone” means a fixed telephone that:

(a)     is connected to a telecommunications network operated by a general carrier; and

(b)    when in normal working order, cannot be used to make a telephone call (other than a free call or a call made with operator assistance) unless, as payment for the call, or to enable payment for the call to be collected:

(i) money, or a token, card or other object, has been put into a device that forms part of, is attached to, or is located near, the telephone; or

(ii) an identification number, or a code or other information (in numerical or any other form), has been input into a device that forms part of, is attached to, or is located near, the telephone; or

(iii) a prescribed act has been done;

“permit” means a permit issued under Division 6 of Part 12 for connection of customer equipment to a telecommunications network;

“prescribed carrier obligation”, in relation to a carrier, means a condition:

(a)     to which a general telecommunications licence or public mobile licence held by the carrier is subject; and

(b)    in relation to which a declaration under subsection 71 (1) is in force, or for which section 72 or 292 provides;

“prescribed external Territory” means an external Territory to which this Act extends and that is prescribed for the purposes of this definition;

“public access cordless telecommunications service” has the meaning given by section 26;

“public mobile telecommunications service” has the meaning given by section 25;

“public payphone” means a payphone located in a public place;


“public place” means a place to which the public usually has access, or usually has access except during particular hours of the day or particular days of the week, but does not include:

(a)  a place to which a person (other than a government, a public authority or an officer or employee of a government or of a public authority) is entitled to deny the public entry; or

(b)  a vehicle, vessel, aircraft or other means of transport;

“public telecommunications network”, in Division 2 of Part 11, means a telecommunications network operated by a carrier;

“radcom facility” means a facility used for or in relation to carrying communications by means of radiocommunication;

“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 line link” has the meaning given by section 24;

“satellite-based facility” means a facility in a satellite;

“service area” means:

(a)     any geographical area within Australia; or

(b)    any area of land; or

(c)     any premises or part of premises;

regardless of size, and whether or not constituting a property as defined by section 13 or a combined area as defined by section 14;

“standard telephone service” means:

(a)  unless paragraph (b) applies—a public switched telephone service that:

(i) is supplied by a carrier; and

(ii) is supplied by means of a telephone handset that does not have switching functions; or

(b)  if the regulations prescribe a telecommunications service, or telecommunications services, for the purposes of this definition—that telecommunications service or any of those telecommunications services;

“supplementary access condition”:

(a)     in relation to a general telecommunications licence or a public mobile licence—has the meaning given by subsection 138 (1); and

(b)    in relation to a carrier—means a supplementary access condition (as defined by subsection 138 (1)) of a general telecommunications licence or public mobile licence held by the carrier;

“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;

“telecommunications service” means a service for carrying communications by means of guided or unguided electromagnetic energy or both;

“terms and conditions”, in relation to supplying telecommunications services, includes:

(a)     discounts, allowances, rebates or credits given or allowed in ‘ relation to supplying the services; and

(b)    the supply of goods, or of other services, in respect of the telecommunications services; and

(c)     the making of payments for goods, or for other services, supplied in respect of the telecommunications services;

“universal service carrier” has the meaning given by section 291;

“universal service obligation” has the meaning given by section 288.

Division 2Boundaries of telecommunications networks

End facilities

6.  (1) An end facility is:

(a)     a main distribution frame; or

(b)    a telephone socket.

(2) An end facility is on a line link if, and only if, the end facility is connected to a line that is, or forms part of, the line link.

Boundary of a reserved line link

7.  (1) An end facility on a reserved line link is a boundary of the reserved line link if, and only if:

(a)     the end facility is on a property; and

(b)    there is a line that is connected to the end facility and that, if it were removed from the end facility:

(i) would not itself be a line link of a kind referred to in subsection 24 (1); and

(ii) would form part of no such line link; and

(c)  in the case of a telephone socket—there is no other end facility on the property that precedes that telephone socket.

(2) An end facility that is on a reserved line link and on a property precedes another end facility that is on that line link and on that property if, and only if:

(a)     there is a direct line link that connects the 2 end facilities; and

(b)    that direct line link, if removed from the first-mentioned end facility:


(i) would not itself be a line link of a kind referred to in subsection 24 (1); and

(ii) would form part of no line link of a kind so referred to.

(3)  A line link is a direct line link that connects 2 end facilities that are on the same property if, and only if:

(a)     there is connected to each of those end facilities a line that is, or forms part of, the line link; and

(b)    no line that is, or forms part of, the line link is connected to any other end facility that is on the property.

(4)  In this section:

“property” means:

(a)     a property as defined by section 13; or

(b)    a combined area, as defined by section 14, that is an eligible combined area for the purposes of paragraph 12 (3) (b).

Facilities beyond the boundaries of a reserved line link

8. (1) A line is beyond the boundaries of a reserved line link if, and only if:

(a)     the line is connected, within the meaning of subsection 22 (2), to no line that is, or forms part of, the line link; or

(b)    the line is connected to an end facility that is a boundary of the line link and, if the line were removed from that facility:

(i) the line would not itself be a line link of a kind referred to in subsection 24 (1); and

(ii) the line would form part of no line link of a kind so referred to.

(2)  Subject to subsection (3), a facility (other than a line) is beyond the boundaries of a reserved line link if, and only if:

(a)     the facility is connected to no line that is, or forms part of, the line link, and to no facility (other than a line) to which such a line is connected; or

(b)    the first-mentioned facility:

(i) is connected to an end facility that is a boundary of the line link; and

(ii) is not otherwise connected as mentioned in paragraph (a).

(3)  An end facility that is a boundary of a reserved line link is taken to be within, and not beyond, the boundaries of that reserved line link.


Facilities within the boundaries of a telecommunications network comprising a reserved line link

9.  A facility that is not beyond the boundaries of a reserved line link is within the boundaries of a telecommunications network:

(a)     that is constituted by the line link; or

(b)    of which the line link forms part.

Other boundaries of a telecommunications network

10.  (1) Where a telecommunications network is used, or intended to be used, to supply telecommunications services to a person, this section applies unless customer equipment used for or in relation to the supply of the services to the person is connected to an end facility:

(a)     that is on a line link; and

(b)    that is a boundary, or is beyond the boundaries, of a reserved line link that is constituted. by, or forms part of, the line link referred to in paragraph (a).

(2) The boundary of the network is 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 fixed facility that would result in the fixed facility being within the boundary of the network.

Regulations may determine network boundaries

11.  (1) The regulations may make provision for or in relation to:

(a)     defining the boundaries of a telecommunications network; or

(b)    determining the equipment, lines and other facilities that are to be taken to be beyond, or not beyond, the boundaries of a telecommunications network.

(2) Regulations in force because of subsection (1) have effect despite anything in this Division.

Division 3Distinct places

Basic rules

12.  (1) Places are distinct unless they are all in the same area because of subsection (2), (3) or (4).

(2)    Places are in the same area if they are all situated in the same property as defined by section 13.

(3)    Places are in the same area if they are situated in properties each of which forms part of a combined area as defined by section 14 and:

(a)     the same person or persons is or are the principal user (as defined by section 15) of all the properties that together constitute that combined area; or

(b)    because of a determination in force under section 16, that


combined area is an eligible combined area for the purposes of this paragraph.

(4)    Places are in the same area if they are all situated in the same prescribed external Territory.

(5)    The later provisions of this Division have effect only for the purposes of this Division.

Properties

13.  (1) An area of land is a property if:

(a)     there is a single freehold or leasehold title in relation to that area (whether or not that title is registered under a law of a State or Territory relating to the registration of interests in land); and

(b)    no part of that area is subject to a lease granted by the holder of that title.

(2)  If:

(a)     there is a single freehold or leasehold title (as mentioned in paragraph (1) (a)) in relation to an area of land; and

(b)    some but not all of that area is subject to a lease granted by the holder of that title;

then, an area of land:

(c)     all of which is within the area referred to in paragraph (a) of this subsection; and

(d)    none of which is subject to such a lease;

is a property unless it is only part of another such area.

(3)    An area of land is not a property except as provided in this section.

(4)    In this section:

“land” includes premises and a part of premises, but does not include unalienated Crown land;

“lease” includes sublease and “leasehold title” has a corresponding meaning.

Combined areas

14.  (1) Two contiguous properties form a combined area.

(2) Where:

(a)     a property is contiguous with another property; and

(b)     the other property forms part of a combined area;

the first-mentioned property, and the combined area referred to in paragraph (b), together form a combined area.


(3) Subsection (2) is recursive, that is, the reference in paragraph (2) (b) to a combined area is a reference to something that is a combined area because of any other application or applications of this section.

Principal user of a property

15.  (1) The principal user of a property is the person who:

(a)     occupies the property; or

(b)    uses the property for the purpose that is the sole or principal purpose for which the property is used.

(2) However, if 2 or more persons:

(a)     together occupy a property; or

(b)    together use a property for the purpose that is the sole or principal purpose for which the property is used;

they are taken to together be the principal user of the property.

Eligible combined areas

16.  (1) The Minister may by writing determine that specified combined areas are eligible combined areas for the purposes of paragraph 12 (3) (b).

(2)  The Minister may make or vary a determination under subsection (1) only if:

(a)     he or she has consulted each general carrier whose interests may, in his or her opinion, be affected by the determination, or by the determination as varied, as the case may be; and

(b)    in his or her opinion, the determination, or the determination as varied, as the case may be, will not erode unduly the practical value of the general carriers’ rights under sections 90 and 92.

(3)  An instrument under subsection (1) is a disallowable instrument for the purposes of section 46a of the Acts Interpretation Act 1901.

Division 4Interpreting other expressions

Equipment etc. connected to network

17.  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.

Eligible services

18.  (1) Subject to this section, a telecommunications service that is supplied by means of:

(a) at least one reserved line link; or


(b) facilities including at least one reserved line link; is an eligible service.

(2)  Subject to this section, a telecommunications service:

(a)  between distinct places within Australia; or

(b) between places within Australia and places outside Australia; that is supplied by the use of satellite-based facilities is an eligible service.

(3)    A telecommunications service (other than a public mobile telecommunications service or a public access cordless telecommunications service) that is supplied by a general carrier is not an eligible service.

(4)    A public mobile telecommunications service that is supplied by a mobile carrier is not an eligible service.

(5)    The fact that subsection (3) or (4) prevents a telecommunications service of a particular kind from being an eligible service because it is supplied by a general carrier or a mobile carrier, as the case may be, must be disregarded in determining whether a telecommunications service of that kind that is supplied by a person other than such a carrier is an eligible service because of subsection (1) or (2).

What constitutes supply of an eligible service under a class licence

19.  An eligible 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.

Meaning of customer equipment of same type

20.  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 differ in no material respect; and

(b)    the respective ways in which the items were produced differ in no material respect; and

(c)     the form and functions of the one item differ in no material respect from the form and functions of the other item.

Inclusion of a service in a BCS tariff

21.  A basic carriage service of a particular kind is included in a carrier’s BCS tariff if, and only if, the tariff complies, or purports to comply, with subsections 190 (5), (6) and (8) in relation to that kind of basic carriage service.


Line links

22.  (1) A line constitutes a line link.

(2)  Where:

(a)     a line is connected to another line; and

(b)    the other line constitutes, or forms part of, a line link;

the first-mentioned line, and the line link referred to in paragraph (b), together constitute a line link.

(3)    Subsection (2) is recursive, that is, the reference in paragraph (2) (b) to a line link is a reference to something that is a line link because of any other application or applications of this section.

(4)    For the purposes of subsection (2), a line is connected to another line if, and only if:

(a)     the lines are connected to each other; or

(b)    each of the lines is connected to the same facility (other than a line);

in such a way that a communication can be carried, by means of the 2 lines, or by means of facilities including the 2 lines, in the same way as if the 2 lines were a single line.

(5)  A facility other than a line does not form part of any line link.

Facilities ancillary to a line link

23.  A reference to a facility ancillary to a line link is a reference to:

(a)     a tunnel, hole, pit, duct, pipe, sheath, conduit or similar thing; or

(b)    a pole, tower, mast or similar structure;

so far as it is used, or intended for use, to contain, support or protect:

(c)     a line or lines constituting, or forming part of, the line link; or

(d)    equipment connecting 2 or more such lines.

Reserved line links

24.  (1) A reserved line link is:

(a)     a line link between distinct places within Australia; or

(b)    a line link between a place within Australia and a place outside Australia;

whether or not installed or maintained by a general carrier.

(2) Where:

(a)     but for this subsection, the whole of a line link would be a reserved line link; and

(b)    a line that forms part of that line link is beyond the boundary of a reserved line link that also forms part of the first-mentioned line link;


then, despite subsection (1), that line is not, and does not form part of, a reserved line link.

Public mobile telecommunications service

25. (1) A telecommunications service is a public mobile telecommunications service if, and only if:

(a)     it is not a public access cordless telecommunications service (as defined by section 26); and

(b)    it is offered to the public generally; and

(c)     a person can use it while moving continuously between places; and

(d)    customer equipment used for or in relation to the supply of the service is not in physical contact with any part of the telecommunications network by means of which the service is supplied; and

(e)     a facility that is used for or in relation to supplying the service is connected to a telecommunications network operated by a general carrier; and

(f)     neither of subsections (2) and (3) prevents the service from being a public mobile telecommunications service.

(2)  A telecommunications service is not a public mobile telecommunications service if:

(a)   it is supplied by means of a telecommunications network (in this subsection called the “primary network”) that is connected to:

(i) a telecommunications network (in this subsection called a “general network”) operated by a general carrier; or

(ii) each of 2 or more general networks; and

(b)     the principal function of the primary network is to supply telecommunications services between equipment connected to the primary network and other such equipment; and

(c)     the supply of telecommunications services between such equipment and equipment connected to a general network is at most an ancillary function of the primary network; and

(d)     despite the connection or connections referred to in paragraph (a), the primary network cannot be used in carrying a communication, as a single transaction, between equipment connected to a general network and other such equipment.

(3)  A telecommunications service is not a public mobile telecommunications service if it is:

(a)     a one-way only, store-and-forward communications service; or

(b)     a service that performs the same functions as such a service.


Public access cordless telecommunications services

26.  (1) A telecommunications service that, but for paragraph 25(1) (a), would be a public mobile telecommunications service is a public access cordless telecommunications service unless:

(a)  the service is supplied by the use of facilities that include at least 2 fixed facilities (called “base stations”) each of which transmits and receives signals to and from customer equipment (called “mobile equipment”) that is:

(i) used for or in relation to the supply of the service; and

(ii) located within a particular area (called a “cell”); and

(b)  the service includes the functions necessary to do the following while the service is carrying a communication made to or from particular mobile equipment:

(i) determine in which cell the equipment is located and cause the base station in that cell to transmit and receive signals to and from the equipment;

(ii) when the equipment moves from one cell to another, cause the base station in the one cell to stop, and the base station in the other cell to start, transmitting and receiving signals to and from the equipment.

(2)    The regulations may provide that paragraphs (1) (a) and (b) must be disregarded in determining whether prescribed telecommunications services are public access cordless telecommunications services.

(3)    The regulations may provide that prescribed telecommunications services are not public access cordless telecommunications services.

(4)    The regulations may provide that the supply of prescribed equipment is not a public access cordless telecommunications service.

Different kinds of telecommunications services

27.  (1) A telecommunications service for carrying communications between one geographical area and another may be taken for a particular purpose to be of a kind different from:

(a)     a telecommunications service for carrying communications between one of those areas and a third geographical area; or

(b)    a telecommunications service for carrying communications between a third geographical area and a fourth;

even if 2 or more of those areas overlap and even if the services are alike in other respects.

(2) Subsection (1) does not limit the matters that may be considered in determining for a particular purpose whether a telecommunications service is of the same kind as another telecommunications service.


When a carrier is in a position to dominate a market

28.  A carrier is taken to be in a position to dominate a market if, and only if, the carrier is taken, for the purposes of section 50 of the Trade Practices Act 1974, to be in a position to dominate that market, or would be so taken if the market were a market within the meaning of that section.

PART 3—APPLICATION OF ACT

Extraterritorial operation

29.  This Act applies both within and outside Australia.

Extension to external Territories

30.  This Act extends to such external Territories (if any) as are prescribed.

Extension to adjacent areas

31.  (1) Subject to subsection (2), this Act applies in relation to the adjacent areas of the States and eligible Territories as if references to Australia included references to those adjacent areas.

(2)    The application of this Act in relation to the adjacent areas of the States and eligible 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 eligible 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 eligible 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

32.  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

33.  (1) This Act has effect subject to the Radiocommunications Act 1983.

(2) However, to avoid doubt, the fact that a person holds a licence under the Radiocommunications Act 1983 does not entitle the person to do something that the person is prohibited by or under this Act


from doing, unless a condition of that licence requires the person to do that thing.

PART 4—ESTABLISHMENT, FUNCTIONS AND POWERS OF AUSTEL

AUSTEL

34.  The body corporate that was, immediately before the commencement of this Part, in existence because of section 16 of the Telecommunications Act 1989 under the name Australian Telecommunications Authority continues in existence by force of this section as a body corporate, under and subject to the provisions of this Act, under that name.

AUSTEL is body corporate etc.

35.  The Australian Telecommunications Authority:

(a)      is a body corporate with perpetual succession; and

(b)      is to have a common seal; and

(c)      may sue and be sued in its corporate name.

General functions—overall responsibilities of AUSTEL

36.  The functions of AUSTEL include responsibility for:

(a)   economic and technical regulation of the Australian telecommunications industry, including in particular the promotion of fair and efficient market conduct within the industry, and the implementation of the Commonwealth Government’s industry policies relating to telecommunications; and

(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—promotion of competition

37.  The functions of AUSTEL include promoting competition in the telecommunications industry, within the regulatory framework established by the Parliament, and, for that purpose:

(a)     protecting persons who, within that framework, supply telecommunications services, or supply facilities, from practices of the carriers that are damaging to competition; and

(b)     facilitating the entry, into markets for such services and facilities, of persons wishing so to supply such services and facilities; and

(c)     promoting competition among the carriers; and

(d)     protecting carriers from misuse of market power of other carriers; and


(e)    arbitrating disputes between carriers under Part 8; and

(f)     receiving and investigating complaints under Part 15; and

(g)    referring matters to the Trade Practices Commission, as appropriate; and

(h) preventing the misuse of market power by international telecommunications operators, by administering the Code of Practice in force under section 77 and the class licence system under Part 10; and

(i) advising the Minister on ways of promoting competition within the telecommunications industry.

General functions—protection of public interest and consumers

38. (1) The functions of AUSTEL include ensuring that the provisions of this Act are carried out with due regard to the public interest.

(2)  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, including complaints about charges for telecommunications services; and

(b)      developing indicative performance standards relating to the quality of:

(i) standard telephone services that carriers supply to consumers; and

(ii) goods and services that carriers supply to consumers in connection with supplying standard telephone services to them; and

(iii) other telecommunications services in relation to which AUSTEL thinks it appropriate to develop such standards; and

(c)     monitoring, and reporting to the Minister on, the performance of carriers and other persons in meeting the standards developed under paragraph (b); and

(d)     referring consumer complaints to the Ombudsman or the Trade Practices Commission in appropriate cases; and

(e)     monitoring, and reporting to the Minister on, charges paid by consumers.

(3)  When developing standards under paragraph (2) (b), AUSTEL must have regard to the best international practice performance indicators available to it.


General functions—numbering

39.  The functions of AUSTEL include managing the numbering of telecommunications services in Australia.

General functions—reports to Minister on competitive safeguards and carrier performance

40.  The functions of AUSTEL include reviewing, and reporting to the Minister on, all significant matters relating to the operation of Parts 5, 8 and 9, including:

(a)     the operation of competitive safeguards; and

(b)    carrier performance, measured against the best international practice performance indicators available to AUSTEL, and with particular reference to consumer satisfaction, consumer benefits and quality of service.

General functions—licensing

41.  The functions of AUSTEL include:

(a)     issuing class licences, licences and permits as provided by this Act; and

(b)     in relation to licences and permits issued under this Act, whether by AUSTEL or the Minister:

(i) monitoring the conduct of the holders of such licences and permits; and

(ii) enforcing conditions of such licences and permits; and

(c)     monitoring the conduct of persons who supply eligible services under class licences; and

(d)     enforcing conditions included in class licences.

General functions—technical regulation and setting of technical standards

42.  (1) The functions of AUSTEL include ensuring the safety and quality of telecommunications services and, for that purpose:

(a)  determining under Part 12 technical standards about:

(i) network matters; and

(ii) the connection of customer equipment to telecommunications networks; and

(iii) the performance of cabling work; and

(b)    regulating the connection of customer equipment to telecommunications networks; and

(c)     regulating the performance of cabling work.

(2) The functions of AUSTEL include managing Australia’s input into the setting of international technical standards for telecommunications, except so far as the Standards Association of Australia is responsible for managing Australia’s input into the setting of such standards.


General functions—administering universal service levy arrangements

43.  The functions of AUSTEL include administering Part 13 in relation to assessing:

(a)     the liability of carriers to pay levy that the Telecommunications (Universal Service Levy) Act 1991 imposes in connection with ensuring that standard telephone services, and payphones, are reasonably accessible to all people in Australia; and

(b)    the entitlement of carriers to payments out of the Universal Service Fund, into which that levy is paid.

Other functions

44.  In addition to its functions under sections 36 to 42 (inclusive), AUSTEL has such other functions as are conferred on it by this or any other Act.

General powers

45.  (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.

Power to give directions to carriers

46.  (1) AUSTEL may give written directions to a carrier in connection with performing any of AUSTEL’s functions under sections 37 (promotion of competition), 38 (protection of consumers), 39 (numbering), 40 (reports to Minister on competitive safeguards and carrier performance), 41 (licensing) and 42 (technical regulation).

(2) This section is not limited by any other provision of an Act that confers a power on AUSTEL.

AUSTEL, carriers and service providers to prevent use of networks and facilities in commission of offences

47.  (1) AUSTEL, the carriers, and the persons who supply eligible services, must, in exercising their respective powers, do their best to prevent telecommunications networks and facilities operated by carriers, or by such persons, from being used in, or in relation to, the commission of offences against the laws of the Commonwealth and of the States and Territories.

(2) AUSTEL, the carriers, and the persons who supply eligible services, must give to officers and authorities of the Commonwealth and of the States and Territories such help as is reasonably necessary for any of the following purposes:

(a)     enforcing the criminal law and laws imposing pecuniary penalties;

(b)    protecting the public revenue;


(c) safeguarding national security.

(3)    AUSTEL is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in performance or purported performance of the duty imposed by subsection (1) or (2).

(4)    A carrier is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith:

(a)     in performance or purported performance of the duty imposed by subsection (1) or (2); or

(b)    in compliance or purported compliance with a condition of a general telecommunications licence or public mobile licence held by the carrier, being:

(i) a condition that is expressed to have the purpose of giving effect to subsection (1) or (2); or

(ii) a condition of the kind referred to in paragraph 63 (4) (m); or

(c)  in compliance or purported compliance with a direction that AUSTEL has given in good faith:

(i) in performance or purported performance of the duty imposed by subsection (1) or (2); or

(ii) under a condition of the kind referred to in paragraph 63 (4) (m).

(5)  A person who supplies eligible services is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith:

(a)     in performance or purported performance of the duty imposed by subsection (1) or (2); or

(b)    in compliance or purported compliance with a condition included in a class licence under which the person supplies eligible services, being a condition that is expressed to have the purpose of giving effect to subsection (1) or (2); or

(c)     in compliance or purported compliance with a direction that AUSTEL has given in good faith:

(i) in performance or purported performance of the duty imposed by subsection (1) or (2); or

(ii) under a condition of a kind referred to in paragraph (b) of this subsection.

(6)  An officer, employee or agent of AUSTEL, of a carrier, or of a person who supplies eligible services, is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in connection with an act done or omitted by AUSTEL, the carrier, or the person, as mentioned in subsection (3), (4) or (5), as the case may be.


(7) Nothing in this section limits the generality of anything else in it.

General governmental obligations of AUSTEL

48.  AUSTEL must perform its functions in a manner consistent with:

(a)      any general policies of the Commonwealth Government notified by the Minister under section 49; and

(b)     any directions given by the Minister under section 50; and

(c)      Australia’s obligations under any convention of which the Minister has notified AUSTEL in writing.

Minister may notify AUSTEL of general policies of Commonwealth Government

49.  (1) The Minister may notify AUSTEL of general policies of the Commonwealth Government that are to apply in relation to AUSTEL.

(2)    AUSTEL must ensure that the policies are carried out.

(3)    A notification under subsection (1) must be given in writing.

Minister may give directions to AUSTEL

50.  (1) The Minister may give written directions to AUSTEL in relation to the performance of its functions and the exercise of its powers.

(2)    A direction under subsection (1) must be published in the Gazette.

(3)    The Minister must not give under subsection (1) a direction:

(a)     that he or she is empowered to give under section 106, or would apart from subsection 106 (2) be empowered to give under section 106; or

(b)     about a matter that he or she is empowered to determine under section 140; or

(c)     that he or she is empowered to give under section 204, or would apart from section 205 be empowered to give under section 204; or

(d)     that he or she is empowered to give under section 244; or

(e)     that he or she is empowered to give under section 250, or would apart from section 251 be empowered to give under section 250.

AUSTEL not otherwise subject to government direction

51.  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

52.  In performing its functions and exercising its powers, AUSTEL must, where it is appropriate and practicable to do so, consult with:

(a)     government, commercial, industrial, consumer and standards bodies and organisations (for example, carriers); and

(b)    other relevant bodies and organisations.

Advisory committees

53.  (1) AUSTEL may, by writing, establish advisory committees to assist it in performing any of its functions (other than its functions under Division 5 of Part 8).

(2)    An advisory committee consists 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.

Exercise of certain powers

54.  In exercising a power under Part 6 or 10 or its power to give directions under subsection 46 (1), AUSTEL must have regard to the rights of each carrier under Part 6.

PART 5—LICENSING, AND GENERAL OBLIGATIONS, OF CARRIERS

Division 1Objects of Part

Objects

55.  The objects of this Part are to help achieve the objects of this Act by:

(a)  establishing a system for licensing general carriers, on the basis that they are to be:

(i) the primary providers of Australia’s line-based and satellite-based public telecommunications capacity; and

(ii) the primary suppliers of telecommunications services by the use of line links and satellite-based facilities; and

(b)    establishing a system for licensing mobile carriers, on the basis that they are to be the primary suppliers of public mobile telecommunications services; and

(c)     providing for a Code of Practice that:

(i) relates to dealings by carriers with international telecommunications operators and with other persons; and


(ii) is to operate, together with the class licence system established by Part 10, to prevent the misuse of market power by international telecommunications operators; and

(d) providing for accounting separation of the various business activities of each carrier, in order to:

(i) identify cross-subsidisation between business activities that do not face strong competition and those that do; and

(ii) encourage each carrier to improve each of the main parts of its business.

Division 2Grant of licence

Application for a licence

56.  (1) An eligible corporation may apply to the Minister, in a manner and form approved by the Minister, for a general telecommunications licence or a public mobile licence.

(2) The Minister may require an applicant for a licence to give the Minister such further information in relation to the application as he or she thinks necessary.

Decision on application

57.  (1) Where a corporation applies under section 56 for a general telecommunications licence or a public mobile licence, the Minister:

(a)     may defer consideration of the application for as long as he or she thinks appropriate; and

(b)    subject to subsection (2) and to subsection 60 (4), may, in his or her absolute discretion, either grant the licence or refuse the application.

(2)    The Minister must refuse the application if the applicant is not an eligible corporation.

(3)    The Minister must cause a copy of each licence to be laid before each House of the Parliament within 15 sitting days of that House after the licence is granted, but failure to do so does not affect the validity of a licence.

Revocation of licence

58.  (1) The Minister may by writing revoke a licence if:

(a)     the holder of the licence so requests in writing; or

(b)     in his or her opinion, the holder of the licence is about to cease to be an eligible corporation.

(2) A licence is revoked by force of this subsection if at any time the holder of the licence is not an eligible corporation.


(3) Revocation of a licence does not affect an obligation of the holder of the licence to do an act if the obligation arose before the revocation, whether it arose under this Act or a condition of the licence or otherwise.

Application for transfer of licence

59.  (1) The holder of a licence may apply to the Minister, in a manner and form approved by the Minister, to transfer the licence to another eligible corporation.

(2)    An application under subsection (1) must be accompanied by an application by the other corporation under section 56 for a general telecommunications licence or a public mobile licence, as the case requires.

(3)    The Minister may require an applicant under subsection (1) to give the Minister such further information in relation to the application as he or she thinks necessary.

Decision on application

60.  (1) This section applies where the holder of a licence applies under section 59 to transfer the licence to another corporation.

(2)  The Minister:

(a)     may defer consideration of the application for as long as he or she thinks appropriate; and

(b)    subject to subsection (3), may, in his or her absolute discretion, either grant or refuse the application.

(3)    The Minister must refuse the application if the other corporation is not an eligible corporation.

(4)    If the Minister grants the application, he or she must:

(a)     revoke the licence; and

(b)    grant under paragraph 57 (1) (b) a general telecommunications licence or a public mobile licence, as the case requires, to the other corporation.

Minister may delegate certain powers

61.  (1) The Minister may by writing delegate to AUSTEL all or any of the Minister’s functions and powers under this Part.

(2) In the performance of a function, or the exercise of a power, delegated under this section, the delegate is subject to the Minister’s directions.


Division 3Licence conditions

Conditions to which a licence is subject

62.  A licence is subject to:

(a)     a condition that the holder of the licence comply with this Act and the regulations; and

(b)    a condition that the holder of the licence comply with any direction, determination or order that this Act provides for AUSTEL to give or make; and

(c)     such conditions as are specified in declarations for the time being in force under section 64 in relation to:

(i) all licences; or

(ii) all general telecommunications licences, or all public mobile licences, as the case requires; and

(d)    such conditions as are specified in declarations for the time being in force under section 65 in relation to the licence; and

(e)     in the case of a general telecommunications licence—the condition for which section 72 provides; and

(f) the conditions for which sections 74 and 76 provide; and

(g) the condition for which section 245 provides; and

(h) the condition for which section 292 provides.

Conditions about certain matters

63.  (1) Subject to subsection (3), a condition of a licence must not be inconsistent with an Act, or regulations under an Act.

(2)    A condition of a licence held by a carrier has effect subject to the provisions of a licence under the Radiocommunications Act 1983 that is held by the carrier.

(3)    A condition of a licence held by a carrier may abrogate or restrict a right or privilege that the carrier would otherwise have under a provision of this Act or the regulations.

(4)    A condition or conditions of any of the following kinds may be imposed under section 64 or 65 on a licence:

(a)     a condition that the licence ceases to be in effect at the end of a specified period or on the happening of a specified event;

(b)    a condition that the holder of the licence must engage in specified activities or conduct, as provided in the condition;

(c)     a condition that the holder must not supply specified telecommunications services except for carrying communications:

(i) within a specified geographical area; or

(ii) between a specified geographical area and places outside that area;


(d)     a condition that the holder must not engage in specified activities or conduct at all, or except as provided in the condition;

(e)     a condition about what the holder must do in connection with developing the telecommunications industry in Australia;

(f)      a condition about the extent of foreign ownership or control (whether direct or indirect) of the holder;

(g)     a supplementary access condition (as defined by subsection 138 (1));

(h) a condition about how the holder is to ensure and maintain quality in connection with its supply of telecommunications services;

(i) a condition about how the holder is to deal with inquiries and complaints from the persons to whom it supplies telecommunications services;

(j) a condition about what the holder must do to maintain appropriate technical standards in its telecommunications activities;

(k) a condition that the holder must install and operate new telecommunications network infrastructure as provided in the condition;

(l) a condition that the holder must, in accordance with directions by AUSTEL, consult with Commonwealth, State and Territory law enforcement agencies about the holder’s proposals to use new technology in its telecommunications activities or to develop new technology in order to so use it;

(m) a condition that the holder must, in accordance with directions by AUSTEL, give to officers and authorities of the Commonwealth and of the States and Territories such help as is reasonably necessary for any of the following purposes:

(i) enforcing the criminal law and laws imposing pecuniary penalties;

(ii) protecting the public revenue;

(iii) safeguarding national security;

(n) a condition that the holder must, as soon as practicable and in association with other carriers, enter into an Ombudsman scheme, providing for investigation and report to AUSTEL in relation to complaints by consumers about all matters relating to service, billing and the manner of charging for telecommunications services.

(5) A reference in paragraph (4) (b) or (d) to activities or conduct includes a reference to activities or conduct having no direct or indirect connection with supplying telecommunications services or operating telecommunications networks.


(6)    A licence that is subject to a condition of a kind referred to in paragraph (4) (a) ceases to be in effect as provided by the condition.

(7)    Nothing in this section limits the generality of anything else in it, or of section 64 or 65.

(8)    As soon as practicable after the day on which this Act receives the Royal Assent, the Minister shall cause to be laid before each House of the Parliament a copy of the form of a licence.

Declaration of conditions of licences in a class

64.  (1) The Minister may by writing declare that:

(a)     all licences; or

(b)    all general telecommunications licences; or

(c)     all public mobile licences;

are subject to conditions specified in the declaration.

(2) The Minister may by writing vary or revoke a declaration in force under this section.

Declaration of conditions of particular licences

65.  (1) The Minister may by writing declare that a licence specified in the declaration is subject to conditions so specified.

(2)     A declaration under this section may be included in the licence or may be made while the licence is in force.

(3)     The Minister may by writing vary or revoke a declaration in force under this section.

Notification and date of effect of instruments under sections 64 and 65

66.  (1) As soon as practicable after making an instrument under section 64 or 65, the Minister must:

(a)     cause a copy to be published in the Gazette; and

(b)     if the instrument was made under section 64—give a copy to each carrier that holds a licence of a kind to which the instrument relates that is in effect when the instrument takes effect; and

(c)     if the instrument was made under section 65—give a copy to the carrier that holds the licence; and

(d)     give a copy to each carrier that section 68 required the Minister to consult with before making the instrument.

(2) An instrument under section 64 or 65 takes effect:

(a)     at the end of the day on which the Minister complies with paragraph (1) (a), and paragraph (1) (b) or (c), as the case requires, in relation to the instrument; or

(b)     if the instrument states that it takes effect on a later day—on that later day.


(3)    Subject to subsection (2), a contravention of this section does not affect the validity of an instrument.

(4)    An instrument made by the Minister under section 64 or 65 is a disallowable instrument for the purposes of section 46a of the Acts Interpretation Act 1901.

Carrier consent required for change in licence period

67.  (1) Before making under section 64 an instrument having the effect of imposing or varying a condition of a kind referred to in paragraph 63 (4) (a), the Minister must obtain the written consent of each carrier that holds a licence that would be affected by the instrument.

(2) Before making under section 65 an instrument:

(a)     relating to a licence that is in force; and

(b)    having the effect of imposing or varying a condition of a kind referred to in paragraph 63 (4) (a);

the Minister must obtain the written consent of the carrier that holds the licence.

Minister to consult with carriers before changing licence conditions

68.  (1) The Minister must comply with this section before:

(a)     making an instrument under section 64; or

(b)    making under section 65 an instrument relating to a licence that is in force.

(2)    Unless the sole effect of the instrument would be to remove a condition (other than a supplementary access condition) of a licence or licences, the Minister must consult with the carrier that holds the licence, or each carrier that holds a licence, as the case requires, affected by the instrument.

(3)    If the instrument would have the effect of imposing a supplementary access condition on a licence, the Minister must consult with each carrier on which, or in whose favour, obligations would be imposed by a supplementary access condition that the instrument would impose.

(4)    If the instrument would have the effect of varying a supplementary access condition of a licence, the Minister must consult with each carrier on which, or in whose favour:

(a)     obligations are imposed by a supplementary access condition that the instrument would vary; or

(b)    obligations would be imposed by such a condition as varied by the instrument.

(5)  If the instrument would have the effect of removing a supplementary access condition of a licence, the Minister must consult with each carrier on which, or in whose favour, obligations are imposed by a supplementary access condition that the instrument would remove.


Reports by AUSTEL on proposed instruments about licence conditions

69.  (1) Where the Minister proposes:

(a)     to make an instrument under subsection 71 (3); or

(b)    to make under section 64 or 65 an instrument that would have the effect of varying or removing a prescribed carrier obligation of a carrier;

the Minister must by writing request AUSTEL to give a written report about the question whether, having regard to such matters (if any) as are specified in the request, it is in the public interest to make the proposed instrument.

(2)  Subject to subsection (1), where the Minister proposes:

(a)     to make an instrument under section 64; or

(b)    to make under section 65 an instrument relating to a licence that is in force;

the Minister may by writing request AUSTEL to give a written report about the question whether, having regard to such matters (if any) as are specified in the request, it is in the public interest to make the proposed instrument.

(3)  As soon as practicable after receiving a request, and in any event within such period (if any) as the request specifies, AUSTEL must comply with the request by:

(a)     holding a public inquiry under Part 14 about that question; and

(b)    giving to the Minister a written report about that question based on the findings AUSTEL has made as a result of the inquiry.

(4)  For the purposes of Part 14, that question is the matter to which the public inquiry relates.

Agreement with carrier about licences

70.  (1) The Minister, acting on the Commonwealth’s behalf, may make a written agreement with a carrier about the exercise of one or more of the following:

(a)     the power to grant a licence under section 57;

(b)     the power to make under section 64 an instrument relating to:

(i) in any case—all licences; or

(ii) if the carrier is a general carrier—all general telecommunications licences; or

(iii) if the carrier is a mobile carrier—all public mobile licences;

(c)  the power to make under section 65 an instrument relating to a licence held by the carrier.

(2) Without limiting subsection (1), an agreement under that subsection may prevent or restrict, either generally or as otherwise


provided in the agreement, the exercise of a power, for example, by providing:

(a)     that the power may only be exercised in a particular way or in particular circumstances; or

(b)    that a particular licence condition is not to be varied.

(3)    Without limiting subsection (1), an agreement under that subsection may provide that if a power to which the agreement relates is exercised in a way that contravenes the agreement, the Commonwealth must pay to the carrier an amount specified in, or worked out in accordance with, the agreement.

(4)    The Minister, acting on the Commonwealth’s behalf, and the other party to an agreement in force under this section may agree in writing to vary or terminate the agreement.

(5)    Subsection (4) does not prevent an agreement from being discharged or terminated otherwise than under that subsection, for example:

(a)     in accordance with the terms of the agreement itself; or

(b)    for breach of the agreement.

(6)    Where an agreement is in force under this section, the Minister must exercise in accordance with the agreement the power, or each power, to which the agreement relates.

(7)    Where an agreement in force under this section provides as mentioned in subsection (3):

(a)     an amount may become payable under the provision whether or not the amount represents a reasonable estimate of the loss or damage that the carrier is likely to suffer because the power concerned was exercised in a way that contravened the agreement; and

(b)    if an amount becomes payable under the provision—the Commonwealth must pay that amount to the carrier.

(8)    As soon as practicable after the day on which this Act receives the Royal Assent, the Minister shall cause to be laid before each House of the Parliament a copy of a form of agreement with carriers about licences.

(9)    The Minister must cause a copy of each agreement under subsection (1) or (4) to be laid before each House of the Parliament within 15 sitting days of that House after the agreement is made, but failure to do so does not affect the validity of an agreement.

Prescribed carrier obligations

71. (1) A licence may declare that a specified condition of the licence is a prescribed carrier obligation of the carrier that holds the licence.


(2)    A declaration under subsection (1) may be included in the licence when it is granted.

(3)    The Minister may by writing vary a licence by inserting, varying or omitting a declaration under subsection (1).

(4)    A variation under subsection (3) takes effect:

(a)     when a copy of the variation is given to the carrier; or

(b)    if the variation states that it takes effect on a later date—that later date.

(5)  An instrument under subsection (3) is a disallowable instrument for the purposes of section 46a of the Acts Interpretation Act 1901.

Prescribed carrier obligation about untimed calls

72.  (1) A general telecommunications licence is subject to a condition that the holder of the licence must not contravene section 73.

(2)    The condition for which subsection (1) provides is a prescribed carrier obligation of the general carrier that holds the licence.

(3)    A contravention of section 73 does not constitute an offence, and the only consequences of such a contravention are those resulting from the contravention of the condition for which subsection (1) of this section provides.

Continued access to untimed calls made using the standard telephone service

73.  (1) This section applies where:

(a)     at the commencement of this section, Telecom supplies, or offers to supply, to persons within a particular area within Australia, a telecommunications service that is at that commencement the standard telephone service; and

(b)    under the terms and conditions on which Telecom supplies, or would supply, that service to persons in that area, the charges for calls of a particular kind made using the service are, or would be, worked out by reference to the number of such calls made during a particular period, regardless of how long each call lasted.

(2) A general carrier must not supply a standard telephone service to an eligible customer in that area except on terms and conditions under which:

(a)     the customer may choose, on connection of the service, to have the charges for calls of that kind that are made using the service worked out as mentioned in paragraph (1) (b); and

(b)    if the customer chooses as mentioned in paragraph (a), the carrier must not work out the charges for such calls in any other way except with the customer’s written consent; and


(c)  if the customer:

(i) does not choose as mentioned in paragraph (a); or

(ii) consents to having the charges for such calls worked out otherwise than as mentioned in paragraph (1) (b);

the customer may later give the carrier a written notice to the effect that the customer wishes the charges for such calls to be worked out as mentioned in paragraph (1) (b); and

(d)  if the customer gives the carrier such a notice, the carrier:

(i) must, in respect of the earliest practicable period beginning after it receives the notice, work out the charges for such calls as mentioned in paragraph (1) (b); and

(ii) must not, in respect of a period after the period referred to in subparagraph (i), work out the charges for such calls in any other way except with the customer’s written consent.

(3) In this section:

“Australia” does not include the prescribed external Territories;

“eligible customer” means:

(a)     a residential customer; or

(b)    a customer that is:

(i) a charitable body or organisation; or

(ii) a welfare body or organisation.

Division 4International aspects of carriers’ activities

Signatory must give effect to policies of Commonwealth Government

74. (1) This section applies where:

(a) a carrier is a Signatory within the meaning of the INTELSAT Agreement because the carrier has been designated, by or on behalf of the Commonwealth and in accordance with Article II (b) of that Agreement, to sign the INTELSAT Operating Agreement; or

(b). a carrier is a Signatory within the meaning of the Convention on the International Maritime Satellite Organization (INMARSAT) because the carrier has been designated, by or on behalf of the Commonwealth and in accordance with Article 2 (3) of that Convention, to sign the Operating Agreement on the International Maritime Satellite Organization (INMARSAT).

(2) The Minister may notify the carrier in writing of the general policies of the Commonwealth Government that are to apply in relation to the carrier’s performance of its functions as a Signatory within the meaning of that Agreement or Convention.


(3)    The Minister may give the carrier such written directions as he or she thinks necessary in order to give effect to the policies set out in notices under subsection (2).

(4)    It is a condition of each licence held by the carrier that the carrier must perform its functions as a Signatory within the meaning of that Agreement or Convention in a way that is consistent with notices under subsection (2) and directions under subsection (3).

Minister may notify carriers about conventions

75.  The Minister may give to a carrier written notice of a convention if he or she thinks that the carrier is likely to be affected by obligations under the convention, whether because of a licence condition for which subsection 76 (1) provides or otherwise.

Carriers to comply with relevant conventions and foreign laws

76.  (1) A licence is subject to a condition that the holder of the licence must:

(a)     exercise its rights and powers, and perform its duties, under the licence; and

(b)    otherwise act;

in a way consistent with Australia’s obligations under any convention of which the carrier has been notified under section 75.

(2) A licence is subject to a condition that the holder of the licence must not, outside Australia, do an act, or make an omission, that is not in accordance with the law (whether written or unwritten) in force where it is done or made.

Minister may determine Code of Practice relating to dealings with international telecommunications operators

77.  (1) With a view to preventing the misuse of market power by international telecommunications operators, the Minister may by writing determine a Code of Practice relating to dealings by carriers with such operators and with other persons.

(2) An instrument under this section is a disallowable instrument for the purposes of section 46a of the Acts Interpretation Act 1901.

Code of Practice binding on carriers

78.  A carrier must comply with the Code of Practice in force under section 77.

Enforcement of Code of Practice

79.  (1) AUSTEL may give written directions to a carrier about how the carrier should comply with the Code of Practice.

(2) Where a provision of an agreement made by a carrier is inconsistent with the Code of Practice, the provision is unenforceable (as provided for in section 396).


Division 5Accounting and charging procedures

Preparation of chart of accounts and cost allocation manual

80.  (1) AUSTEL must develop a chart of accounts and a cost allocation manual for use by the carriers.

(2)    AUSTEL may from time to time revise the chart of accounts or cost allocation manual.

(3)    AUSTEL must give to each carrier a copy of the chart of accounts and cost allocation manual and of any revised chart or manual.

When chart or manual binds carrier

81.  Subject to section 82, a chart of accounts or cost allocation manual is binding on a carrier from the later of the following days:

(a)     the day after a copy of the chart or manual is received by the carrier; or

(b)    the day specified in the chart or manual as its day of effect.

AUSTEL may modify chart or manual as binding on a particular carrier

82.  (1) AUSTEL may declare that the chart of accounts or cost allocation manual that would otherwise be binding on a particular carrier is binding on that carrier with such modifications as the declaration specifies.

(2)    AUSTEL may only make a declaration under subsection (1) if it is satisfied that making the declaration is desirable in order to help achieve the objects of this Part.

(3)    A declaration under subsection (1):

(a)     may be made on AUSTEL’s own initiative or at the request of the carrier concerned; and

(b)    must be made by writing given to the carrier.

(4)  A declaration under subsection (1) has effect, according to its tenor, from:

(a)     if the declaration is made before the day when the chart or manual would, apart from the declaration, become binding on the carrier—that day; or

(b)    the day after the carrier receives the declaration; or

(c)  the day specified in the declaration as its day of effect; whichever is later or latest.

Carrier to keep books and records in accordance with chart and manual

83.  A carrier must:

(a) keep such books of account and other records as are necessary in order to comply with the chart of accounts and the cost


allocation manual that are binding on it from time to time under section 81 or 82; and

(b) keep those books and records in accordance with the chart and the manual.

Individual services to be priced and charged for separately

84.  (1) A carrier must, to the extent required by AUSTEL from time to time:

(a)     separately identify charges for different basic carriage services that the carrier supplies or offers to supply (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); and

(b)    separately identify charges for different higher level services that the carrier supplies or offers to supply (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); and

(c)     in any written communication with a customer of the carrier about the customer’s account, separately identify the charges for different telecommunications services supplied to the customer.

(2) A requirement under subsection (1) may only be imposed by written notice to the carrier concerned.

AUSTEL may give directions about accounting and charging requirements

85.  AUSTEL may give written directions to a carrier about how the carrier should comply with its obligations under section 83 or 84.

AUSTEL may, for the purposes of this Part, inspect carrier’s books and records

86.  (1) AUSTEL may, by writing given to a carrier, direct the carrier to permit a specified person of a kind referred to in paragraph 405 (a), (b) or (c) to inspect, and to make copies of, or take extracts from, specified books of account or other records of the carrier, for such of the following purposes as the direction specifies:

(a)     to determine whether the carrier is complying with its obligations under sections 83 and 84;

(b)     any other purpose connected with achieving the objects of this Part.

(2)    A direction may specify a reasonable period within which the carrier must comply with it.

(3)    This section does not limit AUSTEL’s powers under section 400 or any other provision.


Compliance with other laws

87.  (1) The obligations of a carrier under sections 83 and 84 are additional to, and do not derogate from, obligations imposed by or under any other law of the Commonwealth or a law of a State or Territory, for example, the Income Tax Assessment Act 1936 or the Corporations Law.

(2)    In particular, if the only way for a carrier to comply with its obligations under sections 83 and 84 as well as. with obligations of a kind referred to in subsection (1) is by keeping additional books of account or other records, the carrier must do that.

(3)    Subsection (2) does not limit the cases where a carrier may comply as mentioned in that subsection by keeping additional books of account or other records.

Division 6Protection of communications

Carriers’ employees etc. not to disclose or use contents of communications etc.

88.  (1) A person who is an employee of a carrier must not disclose or use any fact or document that:

(a)  relates to:

(i) the contents or substance of a communication that has been carried by the carrier or a communication in the course of telecommunications carriage; or

(ii) telecommunications services supplied, or intended to be supplied, to another person by the carrier; or

(iii) the affairs or personal particulars (including any unlisted telephone number or any address) of another person; and

(b)  comes to the person’s knowledge, or into the person’s possession, because the person is an employee of the carrier.

Penalty: Imprisonment for 2 years.

(2)  A person who has been an employee of a carrier must not disclose or use any fact or document that:

(a)     relates to a matter mentioned in paragraph (1) (a); and

(b)    came to the person’s knowledge, or into the person’s possession, because the person was an employee of the carrier.

Penalty: Imprisonment for 2 years.

(3)  This section does not prohibit a disclosure by a person of a fact or document:

(a)     if the disclosure is made in the performance of the person’s duties as an employee of the carrier; or

(b)    if the disclosure is made as a witness summoned to give evidence or to produce documents; or


(c)  if the disclosure is made:

(i) to an officer or employee of the Australian Security Intelligence Organization authorised in writing by the Director-General of Security to receive the disclosure; and

(ii) in connection with the performance by the Organization of its functions; or

(d)  if:

(i) the fact or document came to the person’s knowledge, or into the person’s possession, because of a call to the emergency number 000; and

(ii) the disclosure is made to a member of a police force or fire service or of an ambulance service to which the call was connected; or

(e)  if the fact or document relates to the affairs or personal particulars (including any unlisted telephone number or any address) of another person and:

(i) the other person is reasonably likely to have been aware or made aware that information of that kind is usually disclosed in the circumstances concerned; or

(ii) the other person has consented to the disclosure in the circumstances concerned; or

(iii) the person who makes the disclosure believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of a person; or

(f) if the disclosure is required or authorised by or under law; or

(g) if the disclosure is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue; or

(h) if:

(i) the person who made the disclosure is an employee of the carrier; and

(ii) the disclosure is made to, or to an employee of, another carrier or a supplier of an eligible service; and

(iii) the fact or document relates to:

(a) the operation or maintenance of a telecommunications network or facility operated by the other carrier or the supplier; or

(b) the supply of services by the other carrier or the supplier by means of a telecommunications network or facility; and

(iv) the disclosure is made for the purpose of the carrying on by the other carrier or the supplier of its business relating to the supply of services by means of a


telecommunications network or facility operated by the other carrier or the supplier; or

(i) if:

(i) the person who made the disclosure is an employee of the carrier; and

(ii) the disclosure is made to, or to an employee of, another carrier or a supplier of an eligible service; and

(iii) the fact or document relates to:

(a) the operation or maintenance of a telecommunications network or facility operated by the first-mentioned carrier; or

(b) the supply of services by the first-mentioned carrier by means of a telecommunications network or facility; and

(iv) the disclosure is made for the purpose of the carrying on by the other carrier or the supplier of its business relating to the supply of services by means of a telecommunications network or facility operated by the first-mentioned carrier; or

(j) if the disclosure is reasonably necessary for the purpose of the preservation of human life at sea; or

(k) if the disclosure:

(i) relates to the location of a vessel at sea; and

(ii) is made for maritime communications purposes; or

(l) if:

(i) the person who made the disclosure is or has been an employee of the carrier; and

(ii) the disclosure is made to, or to a member of the staff of, AUSTEL; and

(iii) the fact or document may assist AUSTEL in the performance of any of its functions or the exercise of any of its powers under this Act or any other law of the Commonwealth; or

(m) if the disclosure is made in prescribed circumstances.

(4) This section does not prohibit a use by a person of a fact or document:

(a)     if the use is made for the purposes of or in connection with a disclosure of the fact or document by the person, being a disclosure to which subsection (3) applies; or

(b)    if the use is made in the performance of the person’s duties as an employee of the carrier; or

(c)     if the fact or document relates to the affairs or personal particulars (including any unlisted telephone number or any address) of another person and:


(i) the other person is reasonably likely to have been aware or made aware that information of that kind is usually used in the circumstances concerned; or

(ii) the other person has consented to the use in the circumstances concerned; or

(iii) the person who makes the use believes on reasonable grounds that the use is necessary to prevent or lessen a serious and imminent threat to the life or health of a person; or

(d)     if the use is required or authorised by or under law; or

(e)     if the use is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue; or

(f) if:

(i) the person who made the use is an employee of the carrier; and

(ii) the fact or document relates to:

(a) the operation or maintenance of a telecommunications network or facility operated by another carrier or by a supplier of an eligible service; or

(b) the supply of services by another carrier, or by the supplier of an eligible service, by means of a telecommunications network or facility; and

(iii) the use is made for the purpose of the carrying on by the other carrier or the supplier of its business relating to the supply of services by means of a telecommunications network or facility operated by the other carrier or the supplier; or

(g) if:

(i) the person who made the use is an employee of the carrier; and

(ii) the fact or document relates to:

(a) the operation or maintenance of a telecommunications network or facility operated by the carrier; or

(b) the supply of services by the carrier by means of a telecommunications network or facility; and

(iii) the use is made for the purpose of the carrying on by another carrier, or by a supplier of an eligible service, of its business relating to the supply of services by means of a telecommunications network or facility operated by the first-mentioned carrier; or

(h) if the use is reasonably necessary for the purpose of the preservation of human life at sea; or


(i) if the use:

(i) relates to the location of a vessel at sea; and

(ii) is made for maritime communications purposes; or

(j) if the use is made in prescribed circumstances.

(5) In this section:

“communication in the course of telecommunications carriage” means a communication that is being carried by a carrier, and includes a communication that has been collected or received by a carrier for carriage by it but has not been delivered by it;

“employee”, in relation to a carrier or a supplier of an eligible service, includes:

(a)     a person who performs services for or on behalf of the carrier or supplier; and

(b)    an employee of such a person.

PART 6—RESERVED RIGHTS OF CARRIERS

Division 1Declarations of policy

Declarations

89. It is the Parliament’s intention:

(a)  that the general carriers, as the primary providers of Australia’s public telecommunications infrastructure and networks, should have certain reserved rights in relation to the following aspects of that infrastructure and those networks:

(i) the provision of line links;

(ii) the use of satellite-based facilities;

(iii) the provision of public payphones; and

(b)    that the mobile carriers, as the primary suppliers of public mobile telecommunications services, should have certain reserved rights in relation to the supply of such services; and

(c)     that, subject to Part 9, the carriers should be able to use facilities under their control to supply telecommunications services in a way that enables the carriers to exploit the economies of scale and scope available to them because they control those facilities; and

(d)    that, subject to subparagraph (a) (iii), the supply, installation, maintenance and operation of all equipment, lines and other facilities that are connected to, but beyond the boundaries of, the carriers’ telecommunications networks should be open to competition; and

(e)     that nothing in this Part limits the right of the general carriers to supply, or should discourage them from supplying, telecommunications services by means of radiocommunication


or by any other means, whether or not the supply also involves the use of line links or satellite-based facilities.

Division 2Reserved rights

Reserved line links

90.  (1) Subject to this section, a person must not install or maintain a reserved line link.

(2)    A general carrier may install or maintain a reserved line link.

(3)    A person may, together with, or for or on behalf of, a person who is, or persons at least one of whom is, a general carrier, install or maintain a reserved line link between a place within Australia and a place outside Australia.

Facilities ancillary to reserved line links

91.  A person must not install or maintain a facility ancillary to a reserved line link unless the person is authorised by or under this Act to install or maintain that line link.

Supply of telecommunications services by satellite-based facilities

92.  (1) Subject to this section, a person must not supply a telecommunications service:

(a)     between distinct places within Australia; or

(b)    between a place within Australia and a place outside Australia; by the use of satellite-based facilities.

(2)    A general carrier may supply a telecommunications service as mentioned in subsection (1).

(3)    A person may supply a telecommunications service as mentioned in subsection (1) if the only use of satellite-based facilities for or in relation to the supply of that service is use for or in relation to the supply of a telecommunications service that, or of 2 or more telecommunications services each of which, is supplied by a general carrier and:

(a)     is used by the person for or in relation to the supply of the first-mentioned service; or

(b)    is the first in a series of telecommunications services:

(i) the last telecommunications service in which is the first-mentioned service; and

(ii) each telecommunications service in which (other than the last) is used for or in relation to the supply of the next telecommunications service in the series.


Provision of public payphones

93.  (1) A person must not supply, install or maintain a public payphone within Australia.

(2)    A general carrier may supply, install or maintain a public payphone within Australia.

(3)    In this section:

“Australia” does not include the prescribed external Territories.

Supply of public mobile telecommunications services

94.  (1) Subject to this section, a person must not supply a public mobile telecommunications service:

(a)     for carrying communications between distinct places within Australia; or

(b)    for carrying communications between Australia and places outside Australia.

(2)  In subsection (1):

“Australia” does not include the prescribed external Territories.

(3)    A mobile carrier may supply a public mobile telecommunications service of a kind referred to in subsection (1).

(4)    A person may supply a public mobile telecommunications service of a kind referred to in subsection (1) if a public mobile telecommunications service supplied by a mobile carrier:

(a)     is used by the person for or in relation to the supply of the first-mentioned service; or

(b)    is the first in a series of telecommunications services:

(i) the last telecommunications service in which is the first-mentioned service; and

(ii) each telecommunications service in which (other than the last) is used for or in relation to the supply of the next telecommunications service in the series.

Action to enforce this Part

95.  (1) Where a person has engaged, or is proposing to engage, in conduct that involves, or would involve, a contravention of section 90, 91, 92, 93, 102, 109 or 111, a general carrier may, with AUSTEL’s written consent, apply to the Federal Court for relief.

(2)    Where a person has engaged, or is proposing to engage, in conduct that involves, or would involve, a contravention of section 94, a mobile carrier may, with AUSTEL’s written consent, apply to the Federal Court for relief.

(3)    The relief that may be granted includes an injunction and, at the plaintiffs option, either damages or an account of profits.


(4) Section 395 applies to an application under this section.

Division 3General exceptions

Acts done on behalf of a carrier

96.  (1) None of sections 90, 91, 92, 93, 102, 109 and 111 prevents a person from doing anything for or on behalf of a general carrier.

(2) Section 94 does not prevent a person from doing anything for or on behalf of a mobile carrier.

Division 4Exceptions relating to line links

Interpretation

97.  (1) A reference in subsection (2) or section 98, 99, 100, 101 or 102 to maintaining a reserved line link includes a reference to maintaining such a line link that was installed before the commencement of this section.

(2) A reference in section 98, 99, 100, 101 or 102 to installing or maintaining a reserved line link for a particular purpose includes a reference to installing or maintaining such a line link for 2 purposes, of which:

(a)     that purpose is the dominant purpose; and

(b)    the other is the purpose of using the line link for or in relation to supply of a telecommunications service to or by a general carrier.

Line links used by transport authorities

98.  Despite section 90, the Civil Aviation Authority, the Australian National Railways Commission, or a State or Territory transport authority, may install or maintain a reserved line link for the purpose of using it to carry communications necessary or desirable for the workings of aviation services, train services, bus or other road services, or tram services, for which the Authority, Commission or transport authority is responsible.

Line links used by broadcasters

99.  (1) Despite section 90, a broadcaster may install or maintain a reserved line link for the purpose of using it for or in relation to:

(a)     the supply of radio or television broadcasting services, by that or another broadcaster, to members of the public; or

(b)     the supply by the broadcaster of prescribed telecommunications services by means of facilities that include a radiocommunications transmitter in relation to which the broadcaster holds a licence of a prescribed kind that is in force under the Radiocommunications Act 1983.

(2) In this section:


“broadcaster” means the Australian Broadcasting Corporation, the Special Broadcasting Service, or the holder of a licence or permit under the Broadcasting Act 1942.

Line links authorised by or under previous laws

100.  (1) A person may install or maintain a reserved line link so far as it consists 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.

(2)  A person may maintain a reserved line link so far as it consists of facilities that:

(a)      were installed before the repeal of section 45 of the Telecommunications Act 1989; and

(b)     immediately before that repeal, were permitted by that section to be maintained and operated.

(3)    A person may maintain a reserved line link so far as it consists of facilities in relation to which an authorisation was in force under section 46 of the Telecommunications Act 1989 immediately before the repeal of that Act.

(4)    This section has effect despite section 90.

Defence line links

101.  (1) Despite section 90, a defence organisation may install or maintain a reserved line link for the purpose of using it to carry communications necessary or desirable for defence purposes.

(2) In this section:

“defence organisation” means:

(a)     the Department of Defence or any part of it; or

(b)     the Defence Force or any part of it; or

(c)     an organisation or body of a foreign country, so far as the organisation or body:

(i) has functions corresponding to functions of, or of a part of, the Department of Defence or the Defence Force; and

(ii) is authorised by the Commonwealth to operate or train in Australia or an external Territory; or

(d)  a part of such an organisation or body;

“defence purposes” means any one or more of the following:

(a)     the operation of command and control systems;

(b)     the operation, direction or use of a defence organisation;

(c)     the operation of intelligence systems;

(d)     the collection or dissemination of information relevant to the


security or defence of the Commonwealth, or of a foreign country that is allied or associated with the Commonwealth;

(e)    the operation or control of weapons systems, including any thing that, by itself or together with any other thing or things, is intended for defensive or offensive use in combat;

(f)    any other prescribed matter;

“foreign country” means a country outside Australia and the external Territories.

Restriction on use or disposal of certain reserved line links

102.  (1) A person whom section 98 or subsection 99 (1) or 101 (1) permits to install or maintain a reserved line link for the purpose of using it as mentioned in that section or subsection:

(a)  must not use the line link except:

(i) as so mentioned; or

(ii) for or in relation to the supply of a telecommunications service to or by a general carrier; and

(b)  must not dispose of the line link except to a general carrier.

(2) A person whom subsection 100 (1) or (3) permits to install or maintain a reserved line link:

(a)  must not use the line link except:

(i) as provided in, and in accordance with any conditions specified in, the authorisation; or

(ii) for or in relation to the supply of a telecommunications service to or by a general carrier; and

(b)  must not dispose of the line link except to a general carrier.

Division 5Exceptions relating to satellite-based facilities

Supply by satellite of international service to operator of licensed earth station

103.  (1) A person may supply an international service to another person by the use of satellite-based facilities if:

(a)      the other person is the holder of a licence under the Radiocommunications Act 1983 to operate a prescribed earth station; and

(b)      the service is supplied by the use of the prescribed earth station.

(2)  A person may supply an international service by use of satellite- based facilities if:

(a)      the person is the holder of a licence under the Radiocommunications Act 1983 to operate a prescribed earth station; and

(b)      the service is supplied by the use of the prescribed earth station.

(3)  This section has effect despite section 92.


Satellite services for defence purposes

104.  (1) Despite section 92, a person (including a defence organisation) may supply a telecommunications service by the use of satellite-based facilities if the service is exclusively for the use of a defence organisation in carrying communications necessary or desirable for defence purposes, except to the extent (if any) that a general carrier uses the service for or in relation to the supply by the carrier of a telecommunications service.

(2) In subsection (1):

“defence organisation” and “defence purposes” have the same respective meanings as in section 101.

Division 6Use of certain facilities under AUSTEL authorisations

This Division not limited by Division 3, 4 or 5

105.  Nothing in Division 3, 4 or 5 limits the generality of anything in this Division.

Minister may direct AUSTEL in the use of its powers under this Division

106.  (1) The Minister may give AUSTEL written directions about:

(a)     what authorisations AUSTEL may or must give under this Division; and

(b)    what terms and conditions (if any) may or must be included in authorisations under this Division; and

(c)     how AUSTEL is to exercise its other powers under this Division.

(2)  The Minister may give or vary a direction only if:

(a)     he or she has consulted each general carrier whose interests may, in his or her opinion, be affected by the direction, or by the direction as varied, as the case may be; and

(b)    in his or her opinion, the direction, or the direction as varied, as the case may be, will not erode unduly the practical value of the general carriers’ rights under sections 90 and 92.

(3)    This section does not affect the Minister’s power to give AUSTEL directions under other provisions about other matters.

(4)    An instrument under this section is a disallowable instrument for the purposes of section 46a of the Acts Interpretation Act 1901.

AUSTEL to comply with Ministerial directions

107.  AUSTEL may only exercise a power under this Division as required or permitted by a direction in force under section 106, but must exercise such a power as and when so required.


AUSTEL may authorise use of certain facilities

108.  On application by a person, AUSTEL may by writing authorise the person:

(a)     to install, maintain, use or dispose of specified line links; or

(b)    to supply, by the use of specified satellite-based facilities, specified telecommunications services.

Terms and conditions of authorisation

109.  (1) An authorisation under paragraph 108(a) may include terms and conditions relating to the installation, maintenance, use or disposal of the specified line links.

(2)     An authorisation under paragraph 108 (b) may include terms and conditions relating to the use of the specified satellite-based facilities or the supply or use of the specified telecommunications services.

(3)     The person to whom an authorisation is given must, while it has effect, comply with terms and conditions included in it under this section.

(4)     However, nothing in this Division prevents a person from:

(a)     using, or permitting another to use, a line link for or in relation to the supply of a telecommunications service to or by a general carrier; or

(b)     disposing of a line link to a general carrier.

How long authorisation has effect

110.  (1) An authorisation under this Division has effect:

(a)     if it specifies a period for which it has effect—for that period; or

(b)     if it provides that it has effect until a specified event happens— until that event happens; or

(c)     otherwise—until it is revoked under section 113.

(2) An authorisation may be varied or revoked under this Division even if it specifies or provides as mentioned in paragraph (1) (a) or (b).

Dealing with line link after authorisation ceases

111.  After an authorisation under paragraph 108 (a) ceases to have effect, the person to whom it was given must not:

(a)     use; or

(b)     permit another to use; or

(c)     dispose of;

any of the specified line links except as mentioned in subsection 109 (4).


Variation of authorisations

112.  (1) On application by the person to whom an authorisation in force under this Division was given, AUSTEL may vary the authorisation in accordance with the application or as otherwise agreed in writing with the person.

(2)    AUSTEL may, of its own motion, vary an authorisation given to a person, but only if the person agrees in writing.

(3)    AUSTEL must not vary an authorisation so as to make it inconsistent with a direction in force under section 106.

Revocation

113.  (1) AUSTEL may revoke an authorisation if, and only if, the person to whom it was given:

(a)     asks for the revocation; or

(b)    has contravened a term or condition included in the authorisation under this Division.

(2)    AUSTEL may revoke an authorisation under paragraph (1) (b) only if it has given the person an opportunity to make submissions and give evidence to it in relation to the matter.

(3)    As soon as practicable after AUSTEL decides to revoke an authorisation under paragraph (1) (b) it must give the person written reasons for the decision.

Effect of authorisation

114.  An authorisation in force under this Division has effect despite sections 90, 92 and 102.

Reconsideration of decisions

115.  (1) An application may be made to AUSTEL for reconsideration of a decision described in Column 1 of the following table:

TABLE

Item

No.

Column 1

Decision

Column 2

Applicant

1.

A decision not to give an authorisation under section 108

The person who applied for the authorisation

2.

The inclusion, under subsection 109 (1) or (2), of terms and conditions in an authorisation

The person who applied for the authorisation

3.

The specifying, under subsection 110 (1), of a period for which, or an event until the happening of which, an authorisation has effect

The person who applied for the authorisation


TABLE—continued

Item

No.

Column 1

Decision

Column 2

Applicant

4.

A decision not to vary an authorisation under subsection 112 (1)

The person who applied for the variation

5.

A decision to revoke an authorisation under paragraph 113 (1) (b)

The person to whom the authorisation was given

(2)     An application for reconsideration of a decision described in Column 1 of an item in the table in subsection (1) may be made by a person described in Column 2 of the same item (in this section called “the applicant”).

(3)     An application must be made within:

(a)     21 days after the applicant is informed of the decision concerned; 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.

(4)     An application must be in the form approved by AUSTEL.

(5)     The approved form of application may provide for verification by statutory declarations of statements in applications.

(6)     Where an application for reconsideration is made, AUSTEL must reconsider the decision to which the application relates and may:

(a)     affirm the decision; or

(b)     (where applicable) vary the decision; or

(c)     revoke the decision; or

(d)     (where applicable) revoke the decision and substitute a fresh decision.

(7)     AUSTEL’s decision on reconsideration of a decision has effect as if it had been made under the provision under which the original decision was made.

(8)     AUSTEL must not, under subsection (6), vary the decision, or revoke the 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 provision under which the original decision was made.

(9)     AUSTEL must give to the applicant a notice stating its decision on the reconsideration, together with a statement of its reasons for its decision.


PART 7—CARRIERS’ POWERS AND IMMUNITIES

Division 1General

Regulations may exempt carriers from State and Territory laws

116.  (1) The regulations may provide that specified carriers may engage in specified exempt activities despite specified laws of a State or Territory.

(2)    A regulation in force because of subsection (1) has effect, according to its tenor, because of this subsection.

(3)    It is the Parliament’s intention that, where a regulation in force because of subsection (1) entitles a carrier to engage in specified exempt activities despite specified laws of a State or Territory, nothing in the regulation or in this section is to affect the operation of any other law of a State or Territory, so far as that other law is capable of operating concurrently with this Act.

(4)    Nothing in this section affects the liability of a carrier to taxation under a law of a State or Territory.

National Code about carriers’ exempt activities

117.  (1) The Minister must by writing determine a National Code that does one or more of the following:

(a)     provides for technical, design, safety, environmental or other standards with which carriers must comply in connection with their exempt activities;

(b)    imposes requirements or prohibitions on carriers in relation to:

(i) the development or use of land, or the erection, maintenance or use of buildings or other structures, in connection with the carriers’ exempt activities; or

(ii) the effect of the carriers’ exempt activities on the environment; or

(iii) any other matter connected with the carriers’ exempt activities;

(c)  requires carriers, before engaging in exempt activities, to consult with officers and authorities of States and Territories about the effect of the exempt activities on matters of a kind in relation to which those officers and authorities perform functions or exercise powers.

(2) Where a regulation in force because of subsection 116 (1) entitles a carrier to engage in an exempt activity despite particular laws of a State or Territory, a National Code determined under subsection (1) of this section may, in relation to that exempt activity, make provision in respect of matters in respect of which those laws make provision.


(3)    Nothing in either of subsections (1) and (2) limits the generality of anything else in either of those sections.

(4)    An instrument under subsection (1) is a disallowable instrument for the purposes of section 46a of the Acts Interpretation Act 1901.

(5)    Before determining a National Code under subsection (1), the Minister must:

(a)     publish a draft of the Code and invite the public to comment on the draft; and

(b)    cause a public inquiry to be held for the purposes of receiving and considering submissions about the draft.

(6)  The Minister may comply with paragraph (5) (b):

(a)     by giving to AUSTEL an appropriate direction under paragraph 327 (b) to hold a public inquiry under Part 14; or

(b)    by arranging for a person, authority or body (other than AUSTEL) to hold a public inquiry.

(7)  Where the Minister arranges under paragraph (6) (b) for a person, authority or body to hold a public inquiry, Part 14 applies in relation to the person, authority or body, in relation to the inquiry, in the same way, as nearly as practicable, as that Part applies in relation to AUSTEL in relation to an inquiry under that Part.

National Code binding on carriers

118.  (1) This section applies where a regulation in force because of subsection 116 (1) entitles a carrier to engage in an exempt activity despite particular laws of a particular State or Territory.

(2) The carrier must, so far as it engages in that exempt activity in that State or Territory, comply with the National Code in force under section 117, so far as that Code applies in relation to that exempt activity and makes provision in respect of any of the matters in respect of which those laws make provision.

AUSTEL may give directions about complying with National Code

119.  AUSTEL may give written directions to a carrier about how the carrier should comply with its obligations under section 118.

State and Territory laws that discriminate against carriers

120.  A carrier is not subject to any requirement, obligation, liability, penalty or disability under a law of a State or Territory, so far as that law would, apart from this section:

(a)     apply in relation to that carrier, or carriers including that carrier; and

(b)    so apply as to discriminate against that carrier or those carriers.


AUSTEL may limit carriers’ tort liability in respect of supplying basic carriage services

121.  (1) AUSTEL may by writing determine the maximum amount recoverable in tort in relation to an act done, or an omission made, in relation to the supply of a specified basic carriage service.

(2) An instrument made by AUSTEL under subsection (1) is a disallowable instrument for the purposes of section 46a of the Acts Interpretation Act 1901.

Effect of limitation determined by AUSTEL

122.  (1) This section applies where:

(a)     a person has suffered, or may suffer, loss or damage because of an act or omission (whether negligent or not) done or made by or on behalf of a carrier in relation to the supply by the carrier of a basic carriage service; and

(b)    when’ the act was done, or the omission was made, a determination under section 121 was in force in relation to that basic carriage service.

(2) The most that can be recovered by way of damages under:

(a)     if the person has only one cause of action in tort against that carrier or any other person in relation to loss or damage that the first-mentioned person has suffered, or may suffer, because of that act or omission—that cause of action; or

(b)    if the person has 2 or more such causes of action—all of those causes of action;

is the maximum amount specified in the determination.

Ownership of telecommunications facilities

123.  Unless the circumstances indicate otherwise, a facility, or part of a facility, that is supplied, installed, maintained or operated by a general carrier remains the property of the carrier, whether or not it has become (either in whole or in part) a fixture.

Division 2Industry codes of practice

Declaration of policy

124.  It is the Parliament’s intention that, in order to achieve the objects of Part 8, all carriers should be able to become parties, on an equal basis, to certain agreements or arrangements:

(a)     to which Telecom is a party at the commencement of this section; and

(b)    that establish codes of practice or conduct relating to coordination of the respective activities of, or to co-operation between, Telecom and any of the following:


(i) public authorities of the Commonwealth or of a State or Territory;

(ii) other bodies that supply services to the public generally, for example, energy, water, sewerage or transport services.

Carrier may request AUSTEL to give directions about a prescribed arrangement

125.  (1) Where, at the commencement of this section, Telecom is a party to an agreement or arrangement prescribed for the purposes of this section (in this Division called the “prescribed arrangement”), a carrier (other than Telecom or its successor in law) may request AUSTEL to give directions under this Division.

(2) Nothing in section 124 affects the validity of regulations purporting to be made for the purposes of this section.

When AUSTEL may give directions

126.  (1) This section applies where a carrier has made a request under section 125 and AUSTEL is satisfied that:

(a)     the carrier has negotiated in good faith with the other parties to the prescribed arrangement, and has done everything else it reasonably can, in order to become a party to the arrangement on a basis that is not materially different from the basis on which Telecom is such a party; and

(b)    it is desirable, having regard to the declaration in section 124, for AUSTEL to give directions under this Division in order to put the carrier in the same position, as nearly as practicable, as if it were a party to the arrangement on that basis.

(2)    AUSTEL may direct a party to the prescribed arrangement to do, or not to do, specified acts that AUSTEL is satisfied the arrangement would provide for that party to do, or not to do, if the applicant were a party to the arrangement on the basis referred to in paragraph (1) (a).

(3)    Without limiting subsection (2), AUSTEL may, in a direction under that subsection, specify acts by reference to provisions of the arrangement as in force at a particular time or from time to time.

(4)    AUSTEL may give a direction under subsection (2) even if the prescribed arrangement is not itself legally binding.

(5)    AUSTEL may direct the requesting carrier or any other person (whether or not a party to the prescribed arrangement) to do, or not to do, specified acts that AUSTEL is satisfied need to be done or prevented in order to give practical effect to a direction under subsection (2).

(6)    AUSTEL may vary or revoke a direction under subsection (2) or (5).


(7)    A direction under subsection (2) or (5), or a variation or revocation, must be in writing given to the persons affected by the direction, variation or revocation.

(8)    A direction under subsection (2) or (5) has effect despite anything in the prescribed arrangement or in any other agreement or arrangement.

Enforcement of directions against persons other than carriers

127.  (1) Where a person (other than a carrier) has contravened, or proposes to contravene, a direction under subsection 126 (2) or (5):

(a)     AUSTEL may; or

(b)    a carrier that is or would be affected by the contravention may, with AUSTEL’s written consent;

apply to the Federal Court for an injunction restraining the person from engaging in particular conduct, or requiring the person to do a particular act.

(2) Section 395 applies to an application under this section.

Division 3General carriers’ powers to enter land

Power to inspect land etc.

128.  (1) A general carrier may:

(a)  for the purpose of determining whether any land is suitable for its purposes:

(i) enter on, and inspect, the land; and

(ii) do anything on the land that is necessary or desirable for that purpose, including, for example, making surveys, taking levels, sinking bores, taking samples, digging pits and examining the soil; and

(b)  for the purpose of surveying or obtaining information in relation to any land that, in the carrier’s opinion, is or may be suitable for its purposes:

(i) enter on any other land; and

(ii) do anything on the entered land that is necessary or desirable for that purpose, including, for example, making surveys and taking levels.

(2)  Before exercising its powers under subsection (1) in relation to any land, a carrier must give reasonable written notice of its intention to do so to:

(a)     the owner of the land; and

(b)    if the land is occupied by a person other than the owner—the occupier.

(3)  The notice must specify the purpose for which the carrier intends to exercise its powers in relation to the land.


Powers relating to installation of facilities etc.

129. (1) Subject to subsections (5) and (6), a general carrier may, for purposes connected with the supply of a telecommunications service:

(a)     construct a facility on, over or under any land; or

(b)    attach a facility to any building or other structure.

(2)  Without limiting subsection (1) or section 131, but subject to subsections (5) and (6) of this section, a general carrier may, for purposes connected with the installation, maintenance or operation of a facility:

(a)     enter on, and occupy, any land; and

(b)    on, over or under the land do anything necessary or desirable for those purposes, including, for example:

(i) constructing, erecting and placing any plant, machinery, equipment and goods; and

(ii) felling and lopping trees and clearing and removing other vegetation and undergrowth; and

(iii) making cuttings and excavations; and

(iv) restoring the surface of the land and, for that purpose, removing and disposing of soil, vegetation and other material; and

(v) erecting temporary workshops, sheds and other buildings; and

(vi) levelling the surface of the land and making roads.

(3)  Before exercising its powers under this section in relation to any land, a general carrier must give reasonable written notice of its intention to do so to:

(a)     the owner of the land; and

(b)    if the land is occupied by a person other than the owner—the occupier.

(4)    The notice must specify the purpose for which the carrier intends to exercise its powers in relation to the land.

(5)    A general carrier must not:

(a)     close, divert or narrow a road or bridge; or

(b)     install a facility on, over or under a road or bridge; or

(c)     alter the position of a water, sewerage or gas main or pipe; or

(d)     alter the position of an electricity cable or wire;

unless it has given reasonable written notice of its intention to do so to the person or authority responsible for the care and management of the road, bridge, main, pipe, cable or wire.

(6)  A general carrier must ensure that a facility installed over a road, bridge, path or navigable water is installed in a way that will allow reasonable passage by persons, vehicles and vessels.


Trees may be cut etc.

130.  (1) If any tree, undergrowth or vegetation on or over land owned or occupied by the Commonwealth or a State or Territory, or an authority of the Commonwealth or of a State or Territory, obstructs, or is likely to obstruct, the operation of a facility, a general carrier may cut down or lop the tree or clear the undergrowth or vegetation.

(2)    Before exercising its powers under subsection (1) in relation to any land a general carrier must give reasonable written notice of its intention to do so to the person or authority responsible for the care and management of the land.

(3)    If any tree, undergrowth or vegetation on or over any private land obstructs, or is likely to obstruct, the operation of a facility, a general carrier may, by written notice served on the owner of the land, require the owner to cut down or lop the tree, or to clear and remove the undergrowth or vegetation, in the manner, and within the period, specified in the notice.

(4)    If the owner does not comply with the requirement, the general carrier may enter the land and cut down or lop the tree, or clear and remove the undergrowth or vegetation, in the manner specified in the notice.

A general carrier may replace, repair and maintain facilities etc.

131.  (1) A general carrier may, at any time, alter, move, remove, replace or maintain:

(a)     a facility constructed on, over or under any land; or

(b)    a facility attached to a building or other structure.

(2)    For the purpose of exercising powers under subsection (1), a general carrier may enter on, and occupy, land and may remove, or erect a gate in, any fence.

(3)    Before removing, or erecting a gate in, a fence, a general carrier must take all reasonable steps to give written notice of its intention to do so to the power of the land on which, or on the boundary of which, the fence is erected.

Subdivider to pay for necessary alterations

132.  (1) Where it becomes necessary, in the opinion of a general carrier, because of the subdivision of any land, to remove, or alter the position of, a facility on, over or under the land, the carrier may enter the land and do anything necessary or desirable for that purpose.

(2) The person who subdivided the land is liable to pay to the general carrier the reasonable cost of anything reasonably done by the carrier under subsection (1) and that amount may be recovered in a court of competent jurisdiction as a debt due to the carrier.


Power extends to carrier’s employees etc.

133.  Where, under a provision of this Division, a general carrier is empowered to enter on land, inspect land, occupy land or do anything else on, over or under land, the provision also empowers an employee of the carrier, a person acting for the carrier under a contract, or an employee of such a person, to do that thing.

Carrier to do as little damage as practicable etc.

134.  (1) In exercising its powers under this Division, a carrier must take all reasonable steps to ensure that it causes as little detriment and inconvenience, and does as little damage, as is practicable.

(2)    If a person suffers financial loss or damage because of anything done by a carrier under section 128, 129 or 131 in relation to any property owned by the person or in which the person has an interest, there is payable to the person by the carrier such reasonable amount of compensation as is agreed between them or, failing agreement, as is determined by a court of competent jurisdiction.

(3)    Compensation payable under subsection (2) includes (without limitation) compensation in relation to:

(a)     damage of a temporary character as well as of a permanent character; and

(b)    the taking of sand, soil, stone, gravel, timber, water and other things.

(4)  In this section:

“court of competent jurisdiction”, in relation to property, means:

(a)     the Federal Court; or

(b)    the Supreme Court of the State or Territory in which the property is situated or was situated at the time of the relevant loss or damage; or

(c)     an inferior court that has jurisdiction:

(i) for the recovery of debts up to an amount not less than the amount of compensation claimed by the person; and

(ii) in relation to the locality in which the property, or part of the property, is situated or was situated at the time of the relevant loss or damage;

“inferior court” means:

(a)     a County Court, District Court or local Court of a State or Territory; or

(b)    a court of summary jurisdiction exercising civil jurisdiction.

Service of notices

135.  (1) If:

(a) a general carrier is unable, after diligent inquiry, to find out who owns particular land; or


(b)  a general carrier is unable to serve a notice under this Division on the owner of land either personally or by post;

the carrier may serve a notice under this Division on the owner of the land by publishing a copy of the notice in a newspaper circulating in a district in which the land is situated and:

(c)     if the land is occupied—serving a copy of the notice on the occupier; or

(d)    if the land is not occupied—attaching, if practicable, a copy of the notice to a conspicuous part of the land.

(2)  If a general carrier is unable, after diligent inquiry, to find out:

(a)     whether particular land is occupied; or

(b)    who occupies particular land;

it may treat the land as unoccupied land.

(3)  If a general carrier is unable to serve a notice under this Division on the occupier of land either personally or by post, the carrier may serve a notice under this Division on the occupier by:

(a)     publishing a copy of the notice in a newspaper circulating in a district in which the land is situated; and

(b)    attaching, if practicable, a copy of the notice to a conspicuous part of the land.

(4)  This section does not affect the operation of any other law of the Commonwealth, or of any law of a State or Territory, that authorises the service of a document otherwise than as provided in this section.

PART 8—ACCESS BY CARRIERS TO NETWORKS AND SERVICES OF OTHER CARRIERS

Division 1Objects of Part

Objects

136. (1) The object of this Part is to promote the long-term interests of consumers of telecommunications services by:

(a)     promoting and protecting competition in the telecommunications industry generally and among carriers; and

(b)    enabling the carriers to compete with each other on an equal basis in providing telecommunications networks and supplying telecommunications services.

(2) This object will be achieved by:

(a)     protecting each carrier from the misuse of market power by other carriers in relation to access to essential facilities or access to consumers; and

(b)    giving each carrier the right:


(i) to interconnect its facilities to networks of the other carriers; and

(ii) to obtain access to services supplied by the other carriers;

and to do so on terms and conditions that:

(iii) are fair to the first-mentioned carrier and to the other carriers concerned; and

(iv) promote the long-term interests of consumers of telecommunications services; and

(c)     removing obstacles to consumers having equal access to the telecommunications services supplied by the various carriers; and

(d)    encouraging the efficient use of, and investment in, telecommunications infrastructure.

Division 2Access rights of carriers

Right to interconnection and related carriage

137. (1) In this section:

“network” means:

(a)     a telecommunications network to supply telecommunications services between distinct places within Australia; or

(b)    a telecommunications network within Australia to supply telecommunications services between places within Australia and places outside Australia;

and, in relation to a carrier, means such a network that is operated by the carrier;

“network facilities”, in relation to a carrier, means facilities that the carrier operates or uses, or intends to operate or use, as part of, in, or in connection with, a network of the carrier.

(2)  A carrier has the right to interconnect its network facilities to a network of any other carrier:

(a)     for the purpose of the other carrier carrying communications across the network under subsection (3); and

(b)    on such terms and conditions as the carriers agree on or, failing agreement, as AUSTEL determines under section 154.

(3)  Where a carrier’s network facilities are, or are to be, interconnected because of subsection (2) to a network of another carrier, the other carrier must carry communications across the network:

(a) so far as is necessary or desirable for the purposes of the first-mentioned carrier supplying, by means of those facilities:

(i) if the first-mentioned carrier is both a general carrier and a mobile carrier—telecommunications services; or

(ii) if the first-mentioned carrier is a general carrier but not


a mobile carrier—telecommunications services other than public mobile telecommunications services; or

(iii) if the first-mentioned carrier is a mobile carrier but not a general carrier—public mobile telecommunications services; and

(b) on such terms and conditions as the carriers agree on or, failing agreement, as AUSTEL determines under section 154.

Supplementary access conditions of licences

138.  (1) The licence conditions that may be imposed under section 64 or 65 include conditions (called “supplementary access conditions” of the licence) that impose on the holder of the licence obligations relating to:

(a)     the grant by the holder to other carriers of rights or interests in relation to facilities, or in relation to land in or on which facilities are located; or

(b)    the supply by the holder to other carriers of specified goods or services in connection with matters associated with, or incidental to, the supply by the other carriers of telecommunications services by means of facilities interconnected to networks of the holder, for example:

(i) customer billing and operator assistance (including directory assistance); and

(ii) published directories of telecommunications services.

(2)    Without limiting subsection (1), a supplementary access condition may require a carrier to grant rights or interests, or to supply goods or services, on such terms and conditions as the carrier and the acquirer of the rights, interests, goods or services agree on or, failing agreement, as AUSTEL determines under section 154.

(3)    Without limiting the terms and conditions that may be agreed on or determined for the purposes of a supplementary access condition that requires as mentioned in subsection (2), those terms and conditions may include terms and conditions about charges payable for the grant of the rights or interests, or the supply of the goods or services, as the case requires, or for related matters.

(4)    Nothing in this section limits the generality of anything in section 63, 64 or 65.

AUSTEL’s role in negotiations for access agreements

139.  (1) Where 2 carriers propose to negotiate, or are negotiating, with a view to:

(a) agreeing on terms and conditions for the purposes of subsection 137 (2) or (3) or of a supplementary access condition of a licence held by one of them; or


(b) agreeing on a variation of an access agreement to which they are parties;

either or both of them may request AUSTEL in writing to arrange for a representative of AUSTEL to attend the negotiations.

(2) AUSTEL must comply with the request or requests by taking steps to ensure that a person of a kind referred to in paragraph 405 (a), (b) or (c) attends the negotiations on its behalf.

Division 3Charging principles

Minister may determine principles to govern charging for access

140. (1) The Minister may determine in writing principles that are to be applied in agreeing on or determining terms and conditions about charges payable by a specified carrier to another specified carrier for:

(a)     interconnection of facilities to networks of the other carrier under subsection 137 (2); or

(b)     carriage of communications across such networks under subsection 137 (3); or

(c)     the supply of facilities for the purposes of such interconnection or carriage; or

(d)     the grant of rights or interests, or the supply of goods or services, as required by a supplementary access condition; or

(e)     matters related to a matter of a kind referred to in a preceding paragraph.

(2)  A determination under subsection (1) may require the terms and conditions to include:

(a)     specified price-cap provisions, or other price control provisions, relating to the charges; or

(b)    specified provisions in accordance with which the charges are to be altered;

or both.

(3)  A determination under subsection (1) may require the terms and conditions:

(a)     to fix, at amounts or rates specified in the determination, charges for matters that are so specified and each of which is of a kind referred to in a paragraph of subsection (1); or

(b)     to provide for charges for such matters to be worked out in accordance with methods so specified.

(4)    Nothing in any of subsections (1), (2) and (3) limits the generality of anything else in any of those subsections.

(5)    An instrument under this section is a disallowable instrument for the purposes of section 46a of the Acts Interpretation Act 1901.


Access agreements must comply with charging principles

141. (1) This section applies where:

(a)     a determination is in force under section 140 in relation to charges payable by a carrier to another carrier; and

(b)    the carriers propose:

(i) to make an access agreement under which charges in relation to which the determination applies would be payable; or

(ii) to vary an access agreement under which charges in relation to which the determination applies are payable.

(2)  The other carrier must give AUSTEL a written notice setting out:

(a)     the terms and conditions of the proposed agreement or variation; and

(b)    the reasons why the proposed agreement, or the agreement as proposed to be varied, as the case may be, is in accordance with the determination.

(3)    Within 28 days after receiving a notice under subsection (2), AUSTEL must give the other carrier a written notice stating that, in AUSTEL’s opinion, the proposed agreement, or the agreement as proposed to be varied, as the case may be, is, or is not, as the case requires, in accordance with the determination.

(4)    AUSTEL may, by written notice given to the other carrier, extend, or further extend, the period within which AUSTEL must comply with subsection (3).

(5)    A notice under subsection (4) may be given only if the period, or the period as last extended, as the case may be, has not yet ended.

(6)    A notice under subsection (4) must state that AUSTEL:

(a)     needs more time in order to determine whether or not the proposed agreement, or the agreement as proposed to be varied, as the case may be, is in accordance with the determination; and

(b)    is extending, or further extending, as the case requires, to the end of a specified day the period within which it must comply with subsection (3).

(7)  The 2 carriers must not make or vary, as the case may be, the agreement unless:

(a)     AUSTEL gives the other carrier a written notice stating that AUSTEL is satisfied that the proposed agreement, or the agreement as proposed to be varied, as the case may be, is in accordance with the determination; or

(b)    AUSTEL fails to comply with subsection (3).


(8)    An agreement made in contravention of this section is unenforceable (as provided for in section 396).

(9)    A variation made in contravention of this section is of no effect.

Access agreements must be varied when charging principles change

142.  (1) This section applies where:

(a)  while an access agreement is in force:

(i) a determination is made under section 140 in relation to charges payable under the agreement; or

(ii) a determination in force under section 140 in relation to such charges is varied; and

(b)    the agreement is not in accordance with the determination, or the determination as varied, as the case may be; and

(c)    at the end of 90 days after the day when the determination was made or varied, the agreement:

(i) is still in force (whether in the same or a different form); and

(ii) is still not in accordance with the determination, or the determination as varied, as the case may be.

(2)    After the end of those 90 days the agreement is unenforceable (as provided for in section 396).

(3)    In counting those 90 days, a day must be disregarded if it is part of a period that:

(a)     began on the day when a party to the agreement gave to AUSTEL a notice under subsection 141 (2) in relation to a proposed variation of the agreement; and

(b)    ended on the day when AUSTEL gave to that party a notice under subsection 141 (3) in relation to the agreement as proposed to be varied.

AUSTEL may advise carriers when to vary access agreements

143.  Where AUSTEL is of the opinion that an access agreement needs to be varied to avoid becoming unenforceable because of section 142, it may notify the parties in writing:

(a)       that it is of that opinon; and

(b)      why it is of that opinion; and

(c)       in what respects it thinks the agreement needs to be varied.

Division 4Registration of access agreements

AUSTEL to keep register

144.  (1) AUSTEL must keep a register of access agreements for the purposes of this Division.

(2) The register must consist of a public part and a confidential part.


(3)    The public part must be open to public inspection.

(4)    Nothing in this Division affects the operation of the Freedom of Information Act 1982.

Effect of registration

145.  Section 236 provides for the consequences of registration under this Division.

Application for registration

146.  (1) A party to an access agreement may, by writing accompanied by a copy of the agreement, apply to AUSTEL for registration of the agreement under this Division.

(2)  If AUSTEL is satisfied that:

(a)     the agreement was made for the purposes of either or both of subsections 137 (2) and (3) and contains only terms and conditions dealing with some or all of the matters described in subsection 154 (5); or

(b)    the agreement was made for the purposes of a supplementary access condition of a licence and contains only terms and conditions reasonably necessary for the purposes of complying with the condition; or

(c)     the agreement:

(i) was made as mentioned in paragraph (a) and also as mentioned in paragraph (b); and

(ii) contains only terms and conditions of a kind referred to in paragraph (a) and terms and conditions of a kind referred to in paragraph (b);

then, subject to subsection (3) of this section and to sections 149 and 150, AUSTEL must:

(d)    register the agreement by including a copy of it in the public part of the register; and

(e)     give to each party to the agreement written notice of the registration.

(3)  AUSTEL may refuse the application if it is satisfied that:

(a)     the agreement is, or registration of the agreement under this Division would be, detrimental to achieving the objects of this Part; or

(b)    the agreement was made in contravention of this Act, or of an obligation imposed under this Act; or

(c)     giving effect to the agreement would involve a contravention of this Act, or of an obligation imposed under this Act.

(4)  If subsection (2) does not apply, AUSTEL must refuse the application.


(5) If it refuses the application, AUSTEL must:

(a)  give to each party to the agreement a written notice:

(i) stating that the application is refused; and

(ii) setting out the reasons for the refusal; and

(b)  return to the applicant the copy of the agreement that accompanied the application.

Request for material to be put in the confidential part of the register

147.  (1) Where an application is or has been made under section 146, a party to the agreement may request AUSTEL to include in the confidential part of the register a copy of the whole, or of a specified part, of the agreement.

(2)    A request must be in writing and may be made even if the agreement has already been registered.

(3)    Where a request is made and the application under section 146 has not yet been determined, AUSTEL must defer consideration of the request until the application is determined.

Decision on request

148.  (1) This section applies where:

(a)     a person has made a request under section 147; and

(b)    AUSTEL has decided to register the agreement or has registered it.

(2)    If AUSTEL thinks it desirable to do so because matters in the agreement are confidential, AUSTEL may direct in writing that a copy of the whole, or of a specified part, of the agreement be included in the confidential part of the register.

(3)    Otherwise, AUSTEL must refuse the request.

(4)    For the purposes of this Division (other than subsection (3) and this subsection), AUSTEL is also taken to refuse the request if it makes under subsection (2) a direction that would result in a copy of a part of the agreement being included in the public part of the register, not in the confidential part as provided for in the request.

(5)    AUSTEL must give to each party to the agreement a written notice that:

(a)     sets out its decision on the request; and

(b)     if it refuses the request—sets out the reasons for the decision.

Effect of direction to include material in the confidential part

149.  (1) This section applies where AUSTEL directs under subsection 148 (2) that a copy of the whole, or of a specified part, of an agreement be included in the confidential part of the register.


(2)  Subject to section 150, if the agreement is not already registered, AUSTEL must register it by:

(a)     including in the confidential part of the register a copy of the whole, or of the specified part, as the case may be, of the agreement; and

(b)    unless AUSTEL includes in the confidential part a copy of the whole of the agreement—including in the public part of the register a copy of the remainder of the agreement.

(3)  If the agreement is already registered, AUSTEL must:

(a)     include in the confidential part of the register a copy of the whole, or of the specified part, as the case may be, of the agreement; and

(b)    unless AUSTEL includes in the confidential part a copy of the whole of the agreement—include in the public part of the register a copy of the remainder of the agreement; and

(c)     remove from the public part the copy of the whole, or each copy of a part, as the case requires, of the agreement that was included in the public part before AUSTEL complied with paragraph (b).

(4)    On complying with subsection (2) or (3), AUSTEL must give to each party to the agreement written notice of what it has done.

(5)    On complying with subsection (2) or (3), AUSTEL must include in the public part of the register a notice that:

(a)     specifies the agreement and the parties to it; and

(b)    states that the whole or a part, as the case may be, of the agreement has been included in the confidential part of the register; and

(c)     summarises what the agreement, or that part of it, as the case may be, is about, but without disclosing any matter that AUSTEL considers to be confidential.

(6)  An agreement is taken to be registered under this Division for so long as a copy of the whole, or of a part, of the agreement is included in the public part, or the confidential part, of the register.

Agreement not to be registered pending determination of request; effect of refusal

150. (1) This section applies where a party makes a request under section 147 and the agreement is not already registered.

(2) Until the end of 14 days after it gives the party notice under subsection 148 (5) of its decision on the request, AUSTEL must not register the agreement in a way that results in a copy of the whole or a part of the agreement being included in the public part of the register, not in the confidential part as provided for in the request.


(3) If AUSTEL refuses the request and, within those 14 days, the party requires AUSTEL to return to the party who applied under section 146 for registration of the agreement the copy of the agreement that accompanied the application, AUSTEL:

(a)     must so return the copy; and

(b)    must not register the agreement pursuant to that application.

Deregistration of agreements

151.  (1) AUSTEL must deregister an access agreement if the parties to it request AUSTEL in writing to deregister the agreement.

(2)  AUSTEL may deregister an access agreement if:

(a)     in the case of a determination made under section 154 because of an arbitration—a party to the arbitration gave to AUSTEL, for the purposes of the arbitration; or

(b)    in any case—a party to the agreement gave to AUSTEL, in connection with the application to register the agreement;

information that was false or misleading in a material particular.

(3)  AUSTEL may deregister an access agreement if it is satisfied that:

(a)     there has been a material change in circumstances since the agreement was registered; and

(b)    that change is such that AUSTEL would now be entitled to refuse under subsection 146 (3) an application for registration of the agreement if it were not already registered.

(4)  Deregistration of an access agreement consists of removing from the register the copy of the whole, or each copy of a part, as the case requires, of the agreement.

Certificate of registration under this Division

152.  (1) Where an agreement is, or has been but is no longer, registered under this Division, AUSTEL must, if so requested by a party to the agreement, give to the party a certificate that:

(a)     is signed by a member of AUSTEL; and

(b)     specifies the day when it is so signed; and

(c)     specifies the agreement and either:

(i) states that the agreement is registered under this Division on that day and specifies the day when the agreement last became registered under this Division; or

(ii) specifies a period during which the agreement was registered under this Division;

as the case requires.

(2) A document that purports to be a certificate given under subsection (1) and to be signed by a member of AUSTEL:


(a)     is to be received in evidence without further proof; and

(b)    is evidence of the matters to which it relates.

Application of Division in relation to variation of access agreement

153.  This Division applies in relation to a variation of an access agreement as if:

(a)     subject to paragraph (b), a reference in this Division to an access agreement were a reference to the variation; and

(b)    the agreement referred to in paragraphs 146 (2) (a), (b) and (c) were the first-mentioned access agreement as varied by the variation.

Division 5Arbitration

Arbitration by AUSTEL of terms of access

154.  (1) Where 2 carriers cannot agree on terms and conditions for the purposes of subsection 137 (2) or (3) or of a supplementary access condition of a licence held by one of them, either or both of them may by writing submit the matter to AUSTEL for arbitration under this Division.

(2)    Within 28 days after the end of an arbitration, AUSTEL must make a written determination about the matter to which the arbitration relates.

(3)    A determination made for the purposes of subsection 137 (2) must:

(a)     specify the facilities and the network concerned; and

(b)    set out the terms and conditions of the interconnection.

(4)  A determination made for the purposes of subsection 137 (3) must:

(a)     specify the facilities and the network concerned; and

(b)    state how far it is necessary or desirable for the one carrier to carry communications across that network for the purposes of the other carrier supplying telecommunications services by means of those facilities; and

(c)     set out the terms and conditions of the carriage.

(5)  The terms and conditions set out under paragraph (3) (b) or (4) (c) must only relate to such of the following as are appropriate in the particular case:

(a)     technical standards for interconnection;

(b)    points of interconnection;

(c)     supply of facilities for the purposes of the interconnection or carriage;

(d)    supply by the one carrier to the other of:


(i) information about traffic carried on the network concerned; or

(ii) any other information necessary to ensure the efficient supply of telecommunications services by means of the facilities and network concerned;

(e) charges payable for the interconnection or carriage, for the supply of such facilities or information, or for related matters;

(f) matters incidental to a matter of a kind referred to in a preceding paragraph.

(6)  A determination made for the purposes of a supplementary access condition of a licence held by a carrier must set out:

(a)     the carrier’s obligations under the condition, so far as it relates to the matter to which the arbitration relates; and

(b)    the terms and conditions on which the carrier must comply with those obligations.

(7)    AUSTEL must not make a determination under this section of terms and conditions about charges payable to a carrier as mentioned in subsection 140 (1) that is inconsistent with a determination by the Minister in force under that subsection.

(8)    In determining terms and conditions under this section (other than terms and conditions about charges payable to a carrier as mentioned in subsection 140 (1)), AUSTEL must have regard to:

(a)     submissions and comments made by the parties to the arbitration; and

(b)    AUSTEL’s own analysis of the issues involved in the arbitration, including where relevant an analysis of costs likely to be incurred by each party in connection with the matters for arbitration.

AUSTEL may extend time for giving its determination

155. (1) AUSTEL may, by written notice given to each of the parties to an arbitration, extend, or further extend, the period within which AUSTEL must comply with subsection 154 (2) in relation to the arbitration.

(2)    A notice under subsection (1) may be given only if the period, or the period as last extended, as the case may be, has not yet ended.

(3)    A notice under subsection (1) must state that AUSTEL:

(a)     needs more time in order to make its determination in relation to the arbitration; and

(b)     is extending, or further extending, as the case requires, to the end of a specified day the period within which it must comply with subsection 154 (2) in relation to the arbitration.


Determination under section 154 taken to be an access agreement

156.  (1) A determination made under section 154 because of an arbitration:

(a)     is taken to be an access agreement between the carriers who were parties to the arbitration; and

(b)    may be varied by those carriers, and enforced by each of them, as if it were a contract between them.

(2)  Paragraph (1) (a) has effect for the purposes of:

(a)     sections 157 and 158, Division 4 and section 236; and

(b)    any other provision of this Act, except subparagraph 141 (1) (b) (i), this section and any provision that expressly distinguishes between an access agreement and a determination made under section 154.

(3)    Paragraph (1) (b) does not affect Division 1 of Part 16.

(4)    Subsection (1) does not apply in relation to a determination made as mentioned in subsection 157 (4).

Arbitration where carriers cannot agree on variation of access agreement

157.  (1) Where:

(a)     2 carriers are parties to an access agreement made for particular purposes; and

(b)    the carriers cannot agree on whether to vary the agreement, or on how to vary it;

then, for the purposes of section 154, the carriers are taken to be unable to agree on terms and conditions for those purposes.

(2)  Where a matter is submitted to arbitration because of subsection (1), AUSTEL may:

(a)     decline to conduct, or to further conduct, the arbitration; or

(b)    decline to make a determination about the matter;

if it is satisfied that there is no sufficient reason why the access agreement should not continue to have effect in its present form.

(3)  For the purposes of subsection (2), AUSTEL must have regard to:

(a)     how long it is since the access agreement was made, or last varied, as the case requires; and

(b)    the nature of the matters in dispute between the parties to the arbitration; and

(c)     such other matters as AUSTEL thinks relevant.

(4)  Where a matter is submitted to arbitration because of subsection (1), AUSTEL may make its determination about the matter in the form of a variation of the access agreement, but may only do so if:


(a)  the agreement, as varied by the determination:

(i) will deal with all the matters that section 154 would require the determination to deal with if it were not made in that form; and

(ii) will deal with those matters in accordance with section 154; and

(b)  the determination does not vary the agreement in relation to matters that the determination could not deal with if it were not made in that form.

(5) A determination made as mentioned in subsection (4) has effect for all purposes (except those of subparagraph 141 (1) (b) (ii)) as if it were a variation made by a contract between the carriers who were parties to the arbitration.

Determination supersedes previous agreements and determinations

158.  A determination made under section 154 because of an arbitration has effect despite:

(a)     any agreement between the parties to the arbitration; and

(b)    any variation of such an agreement;

that was made before the determination was made.

AUSTEL’s way of operating

159.  (1) AUSTEL must, in conducting an arbitration for the purposes of section 154, pursue the objective of providing a mechanism of arbitration that is fair, just, economical, informal and quick.

(2) AUSTEL, in conducting an arbitration:

(a)     is not bound by technicalities, legal forms or rules of evidence; and

(b)    must act according to substantial justice and the merits of the case; and

(c)     must have regard to:

(i) the rights of the carriers under section 137; and

(ii) any applicable licence conditions, including supplementary access conditions; and

(iii) any applicable determination in force under section 140.

Constitution of AUSTEL for conduct of arbitration

160.  (1) For the purposes of a particular arbitration, AUSTEL is to be constituted by the member or members nominated by the Chairperson.

(2) A nomination must be in writing.


Presiding member

161.  (1) This section applies in relation to an arbitration for which AUSTEL is constituted by 2 or more members.

(2)    If the Chairperson is one of the members of AUSTEL as constituted for the arbitration, he or she must preside at the arbitration.

(3)    If the Chairperson is not one of the members of AUSTEL as constituted for the arbitration, he or she must specify which of the members is to preside at the arbitration.

(4)    The specification must be included in the written nomination under section 160.

Reconstitution of AUSTEL

162.  (1) This section applies where a member who constitutes AUSTEL, or who is one of the members who constitute AUSTEL, for the purposes of a particular arbitration (in this section called the “unavailable member”):

(a)     stops being a member; or

(b)    for any reason, is not available for the purpose of the arbitration at the place where the arbitration is being conducted.

(2)    If the unavailable member constitutes AUSTEL, the Chairperson must direct another member or members to constitute AUSTEL for the purpose of finishing the arbitration.

(3)    If the unavailable member is one of the members who constitute AUSTEL, the Chairperson must either:

(a)     direct that AUSTEL is to be constituted for the purposes of finishing the arbitration by the remaining member or members; or

(b)    direct that AUSTEL is to be constituted for that purpose by the remaining member or members together with another member or members.

(4)    Where a direction under subsection (2) or (3) is given, AUSTEL as constituted in accordance with the direction must continue and finish the arbitration and may, for that purpose, have regard to any record of the proceedings of the arbitration made by AUSTEL as previously constituted.

(5)    In exercising powers under this section, the Chairperson must have regard to the objective set out in subsection 159 (1).

Determination of questions

163.  (1) Where AUSTEL is constituted for an arbitration by 3 or more members, any question before AUSTEL is to be decided:

(a) unless paragraph (b) applies—according to the opinion of the majority of those members; or


(b) if the members are evenly divided on the question—according to the opinion of the presiding member.

(2) Where AUSTEL is constituted for an arbitration by 2 members, any question before AUSTEL is to be decided:

(a)     if the 2 members are of the same opinion—according to that opinion; or

(b)    in any other case—according to the opinion of the presiding member.

Previous activities as member of AUSTEL do not disqualify a member from participating in an arbitration

164.  A member is not disqualified from constituting AUSTEL (whether alone or with other members) for a particular arbitration merely because:

(a)     the member gave advice to the Minister in relation to the exercise of the Minister’s powers under section 140; or

(b)    under section 139, the member represented AUSTEL at negotiations about the matter for arbitration.

Arbitration to be conducted in private unless the parties agree otherwise

165.  (1) An arbitration is to be conducted in private.

(2)    AUSTEL may determine the persons who may be present at an arbitration conducted in private.

(3)    Where the parties to the arbitration agree, an arbitration or part of an arbitration may be conducted in public.

Steps to be taken in the arbitration

166.  (1) For the purposes of an arbitration, AUSTEL must take the following steps:

(a)     invite each party to make written submissions about the matters for arbitration;

(b)    give to each party a copy of the submissions made by the other party (other than so much of a party’s submission as contains confidential commercial information that AUSTEL thinks should not be given to another party);

(c)     invite each party to make written comments about the other party’s submissions;

(d)    prepare a preliminary analysis of the issues involved in the arbitration, including where relevant an analysis of costs likely to be incurred by each party in connection with the matters for arbitration;

(e)     give to each party a copy of the preliminary analysis (other than so much of the analysis as contains confidential commercial information that AUSTEL thinks should not be given to that party);


(f)     invite each party to make written comments about the preliminary analysis;

(g)    give each party to the arbitration an opportunity to appear before it to give evidence and to present that party’s case in relation to the matters for arbitration.

(2)    Where AUSTEL invites a party to make written submissions or comments under subsection (1), AUSTEL must specify a date by which the party must give the submission or comments to AUSTEL.

(3)    AUSTEL must give each party the opportunity required by paragraph (1) (g) after the last date specified under subsection (2) for giving submissions or comments to AUSTEL in relation to the arbitration.

(4)    A party to an arbitration is entitled to be represented before AUSTEL by any officer or employee of the party.

Party may request AUSTEL to treat material as confidential

167. (1) A party to an arbitration may:

(a)  inform AUSTEL that, in the party’s opinion, a specified part of:

(i) a submission made by the party; or

(ii) the preliminary analysis prepared under paragraph 166 (1) (d);

contains confidential commercial information; and

(b)  request AUSTEL not to give a copy of that part to the other party.

(2)  On receiving a request, AUSTEL must:

(a)     inform the other party that the request has been made and of the general nature of the matters to which the relevant part of the submission or analysis relates; and

(b)    ask the other party whether it objects to AUSTEL complying with the request.

(3)    If the other party objects to AUSTEL complying with a request, the other party may inform AUSTEL of its objection and of the reasons for it.

(4)    After considering:

(a)     a request; and

(b)    any objection by the other party; and

(c)     any further submissions that either party has made, at AUSTEL’s invitation, in relation to the request;

AUSTEL may decide not to give to the other party a copy of so much of the requesting party’s submission, or of the preliminary analysis, as the case may be, as contains confidential commercial information that AUSTEL thinks should not be so given.


(5) This section does not affect AUSTEL’s power to decide under paragraph 166 (1) (b) or (e), otherwise than because of a request, not to give to a party all or part of another party’s submission, or of a preliminary analysis.

AUSTEL may set up advisory panel

168.  (1) AUSTEL may by writing establish a panel to advise it on a matter connected with an arbitration if AUSTEL considers that it would benefit by obtaining the panel’s advice on that matter.

(2)  The instrument establishing a panel must specify, as the persons who are to constitute the panel:

(a)     for each party to the arbitration, at least one person nominated by that party; and

(b)    at least one person of a kind referred to in paragraph 405 (a), (b) or (c).

(3)  AUSTEL may give a panel written directions about:

(a)     how the panel is to perform its functions; and

(b)    what procedures the panel is to follow in relation to meetings.

Public inquiry about matter involved in arbitration

169.  (1) Subsections (3) and (4) apply where AUSTEL considers that a matter involved in an arbitration is likely to have an effect on consumers of telecommunications services that is both significant and direct.

(2)    An example of such a matter is a proposal, as part of the arrangements for access by one carrier to another’s networks and services, for a major change in the way telephone calls are made—such as the introduction of a dialling prefix to be used by customers of a particular carrier.

(3)    AUSTEL may hold a public inquiry under Part 14 about the matter unless it considers that such an inquiry cannot be held without substantially delaying the conclusion of the arbitration.

(4)    If AUSTEL holds such an inquiry, it must do so in a way that does not substantially delay the conclusion of the arbitration.

The end of the arbitration

170.  For the purposes of subsection 154 (2), an arbitration is taken to have ended when each party has either:

(a)     appeared before AUSTEL as mentioned in paragraph 166 (1) (g); or

(b)     notified AUSTEL in writing that it does not wish to appear before AUSTEL in connection with the arbitration.


Carriers must help AUSTEL conduct arbitration

171.  A carrier that is a party to an arbitration must do everything that it reasonably can to help AUSTEL in the conduct of the arbitration.

AUSTEL’s arbitration jurisdiction is exclusive

172.  (1) A carrier must not, alone or together with another person, submit a matter to arbitration otherwise than under subsection 154 (1) if the matter may be submitted to arbitration under that subsection.

(2) An agreement is void in so far as it provides for the doing of an act that subsection (1) prohibits.

PART 9—SUPPLY OF BASIC CARRIAGE SERVICES BY CARRIERS

Division 1Declarations of policy

Declarations

173.  It is the Parliament’s intention:

(a)     that the carriers, as the primary providers of Australia’s public telecommunications infrastructure and networks, and the principal suppliers of telecommunications services in Australia, should be able to exploit fully, in their supply of basic carriage services, the economies of scale and scope available to them because of the facilities they control; and

(b)    that the use of telecommunications services supplied by carriers to other persons (including use for or in relation to the supply of telecommunications services by those persons) should be free of restrictions other than those that AUSTEL imposes under Part 10 by including conditions in class licences; and

(c)     that, in relation to the supply of higher level services, there should be competition, on an equitable basis, among suppliers of such services (whether carriers or other persons); and

(d)    that, in order to promote competition in markets for telecommunications services, in a way that is orderly and consistent with the declaration in paragraph (a), AUSTEL should be empowered to require a carrier to unbundle basic carriage services progressively; and

(e)     that, in order to promote competition, and to reduce information-gathering costs to consumers of telecommunications services, the carriers should be required to prepare tariffs of the basic carriage services they supply; and

(f)     that a carrier that is in a position to dominate a market for telecommunications services should not abuse its market power by discriminating between persons who acquire such services in that market; and

(g)     that, in view of the declaration in paragraph (b), a carrier


should not, in its supply of telecommunications services in a market, discriminate between resellers who acquire such services in that market and other persons who so acquire such services.

Division 2What constitutes a basic carriage service

Basic carriage services

174.  (1) A telecommunications service is a basic carriage service if, and only if, it is a service for basic communications carriage between 2 or more distinct places and is supplied:

(a)  by means of:

(i) at least one reserved line link; or

(ii) facilities including at least one reserved line link; or

(b)  by the use of satellite-based facilities.

(2)  A service for basic communications carriage is a telecommunications service that consists only of functions each of which is involved in:

(a)     establishing, maintaining or terminating a connection across the telecommunications network by means of which the service is supplied; or

(b)    modifying a connection after it has been so established; or

(c)     carrying a communication across the network.

(3)  To avoid doubt, the supply of customer equipment is not a basic carriage service.

Functions necessary for basic communications carriage

175.  The regulations:

(a)     may provide that specified functions are, or are not; or

(b)     may otherwise make provision for or in relation to determining what functions are or are not;

to be taken, for the purposes of section 174, to be involved in:

(c)     establishing, maintaining or terminating a connection across a telecommunications network by means of which a telecommunications service is supplied; or

(d)     modifying a connection after it has been so established; or

(e)     carrying a communication across a telecommunications network by means of which a telecommunications service is supplied.

AUSTEL may give opinions about what is a basic carriage service

176.  (1) AUSTEL may, at a person’s request or of its own motion, give a written opinion about whether or not a particular telecommunications service is a basic carriage service within the meaning of this Act.

(2) An opinion must set out the reasons for the conclusion reached.


(3) Without limiting subsection (2), if the conclusion is based to any extent on regulations made because of section 175, the opinion must:

(a)     specify the regulations; and

(b)    state how the regulations affect that conclusion.

Public register of AUSTEL opinions

177.  (1) AUSTEL must keep a register of the opinions it gives under section 176.

(2) The register must be open to public inspection.

AUSTEL opinions are advisory only

178.  (1) A party to a proceeding in a court or before a tribunal may request the court or tribunal to consider an opinion given under section 176.

(2)    However, the court or tribunal need not comply with the request and, if it does, the opinion is in no way binding on it.

(3)    An opinion under section 176 is not otherwise binding on a court or tribunal, or on any other authority, body or person whatever.

(4)    In this section:

“tribunal” means:

(a)     a tribunal in Australia; or

(b)    any other body, authority or person in Australia having power, by law or by consent of parties, to hear, receive or examine evidence.

Division 3Direction to a carrier to unbundle a basic carriage service

AUSTEL may inquire into the unbundling of a basic carriage service

179.  (1) AUSTEL may at any time hold a public inquiry under Part 14 about whether it should direct a particular carrier to supply a particular basic carriage service to the public generally.

(2) AUSTEL may hold such an inquiry because of a request under section 180 or on its own initiative.

Request to AUSTEL to hold unbundling inquiry

180.  (1) A person may request AUSTEL to hold a public inquiry under Part 14 about whether AUSTEL should direct a carrier specified in the request to supply to the public generally a basic carriage service so specified.

(2) As soon as practicable after deciding not to hold a public inquiry that a person has requested under subsection (1), AUSTEL must notify the person in writing of the decision and of the reasons for it.


Direction to carrier following inquiry

181. (1) This section applies where, because of section 179, AUSTEL has held a public inquiry under Part 14.

(2)  AUSTEL must direct the carrier to supply the service to the public generally if AUSTEL is satisfied that:

(a)     having regard to the matters referred to in subsection (3), it is technically feasible for the carrier to supply, and charge for, that service as a service distinct from any other telecommunications service; and

(b)    the carrier is in a position to dominate a market for that service; and

(c)     unless the direction is given, there will be a substantial lessening of competition, within the meaning of the Trade Practices Act 1974, in a market for any other telecommunications service; and

(d)    complying with the direction will not significantly reduce the carrier’s ability to use facilities under its control to supply other telecommunications services in a way that enables the carrier to exploit the economies of scale and scope available to it because it controls those facilities; and

(e)     the carrier’s compliance with the direction will not unduly affect the practical ability of the carriers to be the primary suppliers of telecommunications services in Australia.

(3)  In determining whether it is satisfied that it is technically feasible for the carrier to supply, and charge for, the service as mentioned in paragraph (2) (a), AUSTEL must have regard to:

(a)     the technology used by, or available to, the carrier; and

(b)     whether the costs that would be involved in so supplying, and charging for, the service are reasonable; and

(c)     the effects that so supplying, and charging for, that service would have on the operation and performance of the telecommunications networks that the carrier operates.

(4)    If AUSTEL is not satisfied as mentioned in subsection (2), it must decide not to direct the carrier so to supply the service.

(5)    The direction under subsection (3), or the decision under subsection (4), must be in writing, and AUSTEL must:

(a)     give a copy of it to the carrier; and

(b)    publish its contents in whatever way AUSTEL thinks appropriate.

How carrier must comply with direction

182.  A direction under section 181 is taken to include a direction:

(a) to comply with section 194 in relation to the service; and


(b) to supply the service on reasonable terms and conditions.

Division 4Prohibition of discrimination

Dominant carrier not to discriminate between acquirers of telecommunications services

183.  (1) A carrier that is in a position to dominate a market for a particular kind of telecommunications service must not discriminate, between persons who acquire in that market telecommunications services of that kind, in relation to:

(a)     the charges for the services; or

(b)    the terms and conditions on which the services are supplied.

(2) Subsection (1) does not apply in relation to prescribed telecommunications services.

Carrier not to discriminate against resuppliers or their customers

184.  (1) A carrier must not, in relation to the supply of basic carriage services, discriminate against a person for the reason, or for reasons including the reason, that the person:

(a)     supplies, or proposes to supply, eligible services under a class licence; or

(b)    uses, or wishes to use, eligible services supplied under a class licence.

(2)  In subsection (1):

“discriminate” includes discriminate in relation to:

(a)     the charges for the service concerned; or

(b)    the performance characteristics of the service concerned; or

(c)     other terms and conditions on which the service concerned is supplied.

(3)  A carrier must not vary a charge for a basic carriage service that the carrier supplies, or proposes to supply, to a person if the reason, or one of the reasons, for the variation is that the carrier also supplies, or does not also supply, other telecommunications services to the person.

Exceptions

185.  (1) Neither of section 183 and subsection 184 (1) applies where the discrimination makes only reasonable allowance for differences in the costs or likely costs of supplying services if the differences result from any of the following:

(a)     the different quantities in which the services are supplied;

(b)    the different transmission capacity needed to supply the services;

(c)     the different places from or to which the services are supplied;

(d)    the different periods for which the services are supplied;


(e) the different performance characteristics at which the services are supplied;

(f) such other matters as are prescribed.

(2)    Where a discrimination in relation to the charges for telecommunications services would make only reasonable allowance for differences in the other terms and conditions on which the services are supplied, neither of section 183 and subsection 184 (1) applies in relation to the discrimination in relation to the charges, or in relation to the differences in the other terms and conditions.

(3)    In a proceeding for a contravention of section 183 or subsection 184 (1), the onus of establishing that that section or subsection does not apply because of subsection (1) or (2) of this section is on the party asserting that.

Action for discrimination

186.  (1) Where a carrier contravenes, or proposes to contravene, section 183 or 184:

(a)     any person who is, or would be, subjected to discrimination; or

(b)    any other aggrieved person;

may apply to the Federal Court for relief.

(2)     The relief that may be granted includes an injunction and damages.

(3)     Section 395 applies to an application under subsection (1) of this section.

Dominant carrier not to favour itself when using its own basic carriage services to supply certain services

187.  (1) This section has effect for the purposes of section 183 where:

(a)     a carrier supplies a basic carriage service (in this section called the “primary service”) of a particular kind and uses it for or in relation to the supply by the carrier of a higher level service (in this section called the “secondary service”) of a particular kind; and

(b)    the carrier is in a position to dominate a market for that kind of basic carriage service, being a market in which other suppliers of higher level services of that kind acquire basic carriage services of that kind for use for or in relation to their supply of such higher level services.

(2) This section also has effect for the purposes of section 183 where:

(a) because of a direction under section 181, a carrier must supply a basic carriage service of a particular kind to the public generally; and


(b)    the carrier uses a basic carriage service of that kind (in this section also called the “primary service”) for or in relation to the supply by the carrier of a telecommunications service (in this section also called the “secondary service”) of a particular kind; and

(c)     the carrier is in a position to dominate a market for that kind of basic carriage service, being a market in which other suppliers of telecommunications services of that kind acquire basic carriage services of that kind for use for or in relation to their supply of such telecommunications services.

(3)    The carrier is taken to acquire the primary service in that market.

(4)    The charges for the primary service are taken to be so much of the total of the amounts shown in the carrier’s books of account as the costs of supplying the secondary service as those books treat as being attributable to the supply of the primary service.

(5)    The terms and conditions on which the primary service is supplied are taken to be the terms and conditions on which it is reasonable to expect that the primary service would have been supplied if:

(a)     the part of the carrier’s undertaking that is concerned with the supply of basic carriage services of the same kind as the primary service; and

(b)    the part of that undertaking that is concerned with the supply of higher level services or telecommunications services, as the case may be, of the same kind as the secondary service;

had respectively belonged to distinct legal persons dealing with each other at arm’s length.

In other cases, carrier may favour itself when using its own basic carriage service to supply a service

188.  (1) Except as provided in section 187, a carrier is not taken for the purposes of section 183 to acquire a basic carriage service that the carrier supplies, and uses for or in relation to the supply by the carrier of a telecommunications service.

(2) Subsection (1) is enacted to avoid doubt.

Direction to carrier to make available information about its supply of basic carriage services

189.  AUSTEL may direct a carrier in writing to publish, or otherwise make available, in a specified manner and form, information the carrier has derived from supplying basic carriage services, for example, metering and traffic analyses.


Division 5Tariffs of basic carriage services

Tariff of basic carriage services

190. (1) A carrier may give to AUSTEL a written tariff of the carrier’s charges for basic carriage services that complies with this section.

(2)    The tariff must be in a form approved by AUSTEL.

(3)    The tariff must state the period (in this section called the “term” of the tariff) for which it is to be in force.

(4)    The term must not begin before the third business day after the tariff is given to AUSTEL, or at a time when a previous BCS tariff of the carrier is still in force because its term has not expired or because a revocation of it under section 192 has not taken effect.

(5)    In relation to each kind of basic carriage service that the carrier proposes to offer during the term, the tariff must set out:

(a)     a description of the service; and

(b)    details of the nature and amounts of the charges payable for the service.

(6)  If the charges payable for a particular service vary, in their nature, in their amounts or both, according to any of the matters set out in subsection (7), the tariff must set out, in relation to each matter according to which the charges vary:

(a)     details of that matter; and

(b)     details of how the charges vary according to that matter.

(7)  The following matters are set out for the purposes of subsection (6):

(a)     the quantity in which the service is supplied;

(b)     the transmission capacity needed to supply the service in particular circumstances;

(c)     the place from or to which the service is supplied;

(d)     the period for which the service is supplied;

(e)  the performance characteristics at which the service is supplied;

(f) the terms and conditions on which the service is supplied;

(g) any other prescribed matter.

(8)    The tariff must be precise and detailed enough to be used to work out the nature and amounts of charges payable for the supply of basic carriage services in particular cases.

(9)    In preparing the tariff, the carrier must have regard to its obligations under sections 83 and 84.


(10)    The tariff must be prepared in such a way that complying with section 197 or 198 in relation to the tariff will not result in a contravention of section 183 or 184.

(11)    The tariff may set out, in relation to a kind, or each of 2 or more kinds, of higher level service that the carrier proposes to offer during the term of the tariff:

(a)     a description of the service; and

(b)    details of the nature and amounts of the charges payable for the service.

(12)    The tariff may set out, or may be accompanied by a document setting out, other terms and conditions on which the carrier proposes to supply services described in the tariff.

(13)    If the tariff is accompanied by a document of a kind referred to in subsection (12), the document is taken to be part of the tariff.

AUSTEL may disallow non-complying tariff

191.  Where:

(a)     a carrier gives to AUSTEL a document that purports to be a tariff of the carrier’s charges for basic carriage services; and

(b)    in AUSTEL’s opinion, the document does not comply with section 190;

AUSTEL may, within 2 business days after receiving the document, give the carrier a written notice:

(c)     stating that AUSTEL is disallowing the document because it does not so comply; and

(d)    setting out why AUSTEL thinks that the document does not so comply.

Variation and revocation of BCS tariff

192.  (1) Subject to this section, a carrier’s BCS tariff is in force for the period stated in the tariff under subsection 190 (3).

(2)    A carrier may vary or revoke its BCS tariff by writing given to AUSTEL.

(3)    A variation or revocation takes effect:

(a)     on the third business day after it is given to AUSTEL; or

(b)    if it provides for it to take effect on a later day—on that later day.

(4)    A tariff must not be varied so as to cease to comply with section 190.

(5)    In preparing a variation, a carrier must have regard to its obligations under sections 83 and 84.


(6)    A variation must be prepared in such a way that complying with section 197 or 198 in relation to the varied tariff will not result in a contravention of section 183 or 184.

(7)    A carrier must vary its BCS tariff as and when necessary to ensure that:

(a)     the carrier complies with its obligations under sections 83 and 84; and

(b)    complying with section 197 or 198 in relation to the tariff will not result in a contravention of section 183 or 184.

AUSTEL may disallow variation that is contrary to section 192

193.  (1) Where:

(a)     a carrier gives to AUSTEL a document that purports to be a variation of a BCS tariff of the carrier; and

(b)    in AUSTEL’s opinion, the proposed variation would contravene section 192;