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Telecommunications Amendment Act 1994

Act No. 67 of 1994 as made
An Act to amend the Telecommunications Act 1991, and for related purposes
Administered by: Communications and the Arts
Date of Assent 30 May 1994
 

TELECOMMUNICATIONS AMENDMENT ACT 1994 No. 67 of 1994

TELECOMMUNICATIONS AMENDMENT ACT 1994 No. 67 of 1994 - TABLE OF PROVISIONS

TABLE OF PROVISIONS
Section
1. Short title etc.
2. Commencement
3. Definitions
4. Minister may give directions to AUSTEL
5. Carrier not to discriminate against resuppliers
6. Exceptions
7. Insertion of new section:
185A. Decisions permitting discrimination
8. Insertion of new section:
189A. Operation of Part IV of the Trade Practices Act 1974
9. Tariff of basic services
10. AUSTEL may disallow non-complying tariff
11. Variation and revocation of BCS tariff
12. AUSTEL may disallow variation that is contrary to section
192
13. Dominant carrier must charge in accordance with its BCS
tariff
14. Insertion of new section:
201A. Operation of Part IV of the Trade Practices Act 1974
15. Insertion of new sections:
238A. AUSTEL may disallow anti-competitive tariff
238B. Certain tariffs, and variations of certain tariffs,
not to come into force for an extended period
238C Minister may give directions to AUSTEL
238D. Directions to have general application only

TELECOMMUNICATIONS AMENDMENT ACT 1994 No. 67 of 1994 - LONG TITLE

An Act to amend the Telecommunications Act 1991, and for
related purposes

TELECOMMUNICATIONS AMENDMENT ACT 1994 No. 67 of 1994 - SECT 1
Short title etc.

(Assented to 30 May 1994)
1.(1) This Act may be cited as the Telecommunications Amendment Act 1994.


(2) In this Act, "Principal Act" means the Telecommunications Act 1991.*1*


(Minister's second reading speech made in-
House of Representatives on 23 March 1994
Senate on 23 March 1994)
*1* No. 98, 1991, as amended. For previous amendments, see Nos. 145, 173 and 180, 1991; Nos. 71, 105, 118, 167, 216 and 222, 1992; No. 8, 1993; and Nos. 4 and 5, 1994.

TELECOMMUNICATIONS AMENDMENT ACT 1994 No. 67 of 1994 - SECT 2
Commencement

2. This Act is taken to have commenced on 15 March 1994.

TELECOMMUNICATIONS AMENDMENT ACT 1994 No. 67 of 1994 - SECT 3
Definitions

3. Section 5 of the Principal Act is amended by adding at the end of the definition of "BCS tariff" the following word and paragraph:
"; or (e) a document that constitutes a tariff of a kind referred to in paragraph (a) or (b) of this definition, or a part of such a document, being a document or part of a document that AUSTEL has disallowed under section 238A, except to the extent that its operation is continued under subsection 238A(11);".

TELECOMMUNICATIONS AMENDMENT ACT 1994 No. 67 of 1994 - SECT 4
Minister may give directions to AUSTEL

4. Section 50 of the Principal Act is amended by inserting after paragraph (3)(c) the following paragraph:
"(ca) that he or she is empowered to give under section 238C, or would apart from section 238D be empowered to give under section 238C; or".

TELECOMMUNICATIONS AMENDMENT ACT 1994 No. 67 of 1994 - SECT 5
Carrier not to discriminate against resuppliers

5. Section 184 of the Principal Act is amended by omitting subsection (3).

TELECOMMUNICATIONS AMENDMENT ACT 1994 No. 67 of 1994 - SECT 6
Exceptions

6.(1) Section 185 of the Principal Act is amended:
(a) by omitting subsections (1) and (2) substituting the following subsections:


"(1) Neither of sections 183 and 184 apply if, at the time of the discrimination, there is in force a decision by AUSTEL under section 185A that the discrimination, or discrimination of that kind, should be permitted.


"(2) Subject to subsection (2A), neither of sections 183 and 184 apply if the carrier committing the discrimination has applied to AUSTEL for a decision under section 185A that the discrimination, or discrimination of that kind, should be permitted.



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"(2A) Subsection (2) does not apply, and is taken never to have applied, if AUSTEL notifies the carrier in writing that it refuses to make a decision under section 185A that the discrimination, or discrimination of that kind, should be permitted.


"(2B) Section 183 does not apply if:
(a) the discrimination consists of:
(i) supplying a telecommunications service to a customer on terms
and conditions that differ from the terms and conditions on which services of that particular kind are supplied to other customers; or
(ii) charging a customer for that service in a way that differs
from the way in which other customers are charged for services of that particular kind; and
(b) each of the services is supplied under a legitimate charging option (whether or not each of the services is supplied under the same legitimate charging option).


"(2C) For the purposes of paragraph (2B)(b), a telecommunications service is supplied by a carrier under a legitimate charging option if, at the time it is supplied, supply of the carrier's services of that particular kind on the same terms and conditions as the terms and conditions on which that service is supplied, is available to:
(a) all, or all but an insubstantial minority of, customers to whom supply of those services is technically feasible; or
(b) all, or all but an insubstantial minority of, business customers to whom supply of those services is technically feasible; or
(c) all, or all but an insubstantial minority of, residential customers to whom supply of those services is technically feasible; or
(d) all, or all but an insubstantial minority of, customers:
(i) who are included in a class of persons that AUSTEL determines
in writing to be a class of persons to whom this paragraph applies; and
(ii) to whom supply of those services is technically feasible.


"(2D) Without limiting what is or is not technically feasible for the purposes of subsection (2C), supply of a telecommunications service of a particular kind to customers is, for those purposes, not technically feasible if, at the time in question, supply is not feasible using the facilities available to the carrier at that time for supplying such a service to those customers.


"(2E) In deciding whether to make a determination under subparagraph (2C)(d)(i), AUSTEL must have regard to:
(a) the objects of this Act; and
(b) AUSTEL's general functions set out in section 37.


"(2F) Determinations under subparagraph (2C)(d)(i) are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.";
(b) by omitting from subsection (3) "subsection 184(1)" and substituting "184";
(c) by omitting from subsection (3) "subsection (1) or (2)" and substituting "subsection (1), (2) or (2B)";
(d) by adding at the end the following subsection:


"(4) In this section:
'customers', in relation to telecommunications services of a particular kind, means the persons who acquire or propose to acquire, or who might reasonably be expected to acquire or propose to acquire, telecommunications services of that kind;
'terms and conditions', in relation to supply of a telecommunications service, includes terms and conditions about charges for that service.".


(2) Despite subsection (1) of this section, subsection 185(2) of the Principal Act continues to apply to discrimination if:
(a) the discrimination occurs before the end of the period of one month after this Act receives the Royal Assent; and
(b) subsection 185(2) of the Principal Act would have applied to the discrimination if the discrimination had occurred while that subsection was in force.

TELECOMMUNICATIONS AMENDMENT ACT 1994 No. 67 of 1994 - SECT 7
Insertion of new section

7. After section 185 of the Principal Act the following section is inserted:
Decisions permitting discrimination
"185A.(1) AUSTEL may, in writing, decide that discrimination by a particular carrier that is:
(a) discrimination specified in the decision; or
(b) discrimination of the kind specified in the decision; should be permitted.



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"(2) AUSTEL must not so decide unless satisfied that the discrimination, or discrimination of that kind, as the case requires, is justified by:
(a) a difference in costs borne by the carrier (other than a difference that is insignificant) that will be, or is likely to be, related to the discrimination; or
(b) the community interest in promotion of the objects referred to in subparagraphs 3(a)(ii) and (iii); or
(c) the desirability of trial programs, pilot programs and demonstrations being conducted that promote the objects of this Act.


"(3) Without limiting the matters to which AUSTEL may have regard in considering whether to make such a decision on the ground referred to in paragraph (2)(a), it may have regard to any of the following:
(a) the quantities in which telecommunications services that would be affected by the decision are supplied;
(b) the transmission capacity needed to supply the services;
(c) the places from or to which the services are supplied;
(d) the periods for which the services are supplied;
(e) the performance characteristics at which the services are supplied;
(f) network matters relating to supply of the services;
(g) the administrative and/or operational costs in relation to the services.


"(4) AUSTEL may, in writing, revoke or vary a decision under subsection (1) (including such a decision as varied under this subsection) if it is satisfied that:
(a) there has been a material change in the cirumstances to which the decision relates, and the decision would have been different if AUSTEL had had regard to the circumstances as so changed; or
(b) information on which the decision was based was incorrect in a material respect, and the decision would have been different if AUSTEL had not based it on that information; or
(c) there has been a material change in the cirumstances to which the decision relates and information on which the decision was based was incorrect in a material respect, and the decision would have been different if:
(i) AUSTEL had had regard to the circumstances as so changed; and
(ii) AUSTEL had not based the decision on that information.


"(5) For the purposes of subsection 185(1), a decision is taken to be in force on and from the day it is made, and:
(a) if the discrimination in question is provided for in or arises from a tariff that was in force immediately before the commencement of the Telecommunications Amendment Act 1994-is also taken to have been in force since that commencement; or
(b) if the discrimination in question is provided for in or arises from a tariff that came into force during the period between that commencement and that Act receiving the Royal Assent-is also taken to have been in force since that tariff came into force.


"(6) Any such revocation or variation has no effect in relation to discrimination that occurred before the revocation or variation.


"(7) Decisions, and revocations or variations of decisions, are to be made public in the way AUSTEL thinks appropriate.


"(8) A decision under this section that discrimination should be permitted does not prevent AUSTEL exercising any power it has under this Act to disallow a tariff, even if the act or omission constituting the discrimination is required or permitted under the tariff.".

TELECOMMUNICATIONS AMENDMENT ACT 1994 No. 67 of 1994 - SECT 8
Insertion of new section

8. After section 189 of the Principal Act, the following section is inserted in Division 4:
Operation of Part IV of the Trade Practices Act 1974
"189A. To avoid doubt, nothing in this Division authorises or approves any act or thing, or any kind of act or thing, for the purposes of paragraph 51(1)(a) of the Trade Practices Act 1974.".

TELECOMMUNICATIONS AMENDMENT ACT 1994 No. 67 of 1994 - SECT 9
Tariff of basic services

9. Section 190 of the Principal Act is amended by inserting after subsection (4) the following subsection:


"(4A) Subsection (4) of this section does not affect the operation of section 238B.".

TELECOMMUNICATIONS AMENDMENT ACT 1994 No. 67 of 1994 - SECT 10
AUSTEL may disallow non-complying tariff

10. Section 191 of the Principal Act is amended by adding at the end the following Note:
"Note: Section 238A confers on AUSTEL a further power to disallow tariffs as anti-competitive.".

TELECOMMUNICATIONS AMENDMENT ACT 1994 No. 67 of 1994 - SECT 11

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Variation and revocation of BCS tariff
11. Section 192 of the Principal Act is amended by inserting after subsection (3) the following subsection:


"(3A) Subsection (3) of this section does not affect the operation of section 238B.".

TELECOMMUNICATIONS AMENDMENT ACT 1994 No. 67 of 1994 - SECT 12
AUSTEL may disallow variation that is contrary to section 192

12. Section 193 of the Principal Act is amended by adding at the end the following Note:
"Note: Section 238A confers on AUSTEL a further power to disallow tariffs as anti-competitive.".

TELECOMMUNICATIONS AMENDMENT ACT 1994 No. 67 of 1994 - SECT 13
Dominant carrier must charge in accordance with its BCS tariff

13. Section 197 of the Principal Act is amended by adding at the end the following subsection:


"(3) To avoid doubt, disallowance of a BCS tariff, or provisions of a BCS tariff, under this Act does not have the effect of applying subsection (2) to a demand or receipt in relation to charge attributable to a period that occurred before that disallowance.".

TELECOMMUNICATIONS AMENDMENT ACT 1994 No. 67 of 1994 - SECT 14
Insertion of new section

14. After section 201 of the Principal Act, the following section is inserted in Division 5:


Operation of Part IV of the Trade Practices Act 1974
"201A. To avoid doubt, nothing in this Division authorises or approves any act or thing, or any kind of act or thing, for the purposes of paragraph 51(1)(a) of the Trade Practices Act 1974.".

TELECOMMUNICATIONS AMENDMENT ACT 1994 No. 67 of 1994 - SECT 15

Insertion of new sections
15. After section 238 of the Principal Act, the following sections are inserted in Division 1:


AUSTEL may disallow anti-competitive tariff
"238A.(1) This section applies in relation to a tariff if:
(a) a carrier is in a position to dominate a market for a particular kind of telecommunications service; and
(b) that kind of telecommunications service is included in a tariff of the carrier.


"(2) If, in AUSTEL's opinion, the operation or continued operation of the tariff would be anti-competitive in any market for any telecommunications service, AUSTEL must give the carrier written notice stating that AUSTEL is disallowing all or any of the provisions of the tariff.


"(3) The notice must set out why AUSTEL is of the opinion that the operation or continued operation of those provisions of the tariff would be anti-competitive in that market.


"(4) AUSTEL's power to disallow provisions of a tariff under this section may be exercised:
(a) at any time during which the tariff is in force; and
(b) if the tariff is a BCS tariff-at any time after a carrier gives AUSTEL a copy of the tariff or a variation of the tariff and before the tariff comes into force.


"(5) To avoid doubt, AUSTEL's powers of disallowance under this section may be exercised in relation to provisions of a BCS tariff whether or not complying with section 197 in relation to the tariff will result in a contravention of section 183 or 184.


"(6) Subject to subsection (11), the disallowance takes effect on the day specified in the notice for that purpose.


"(7) The day so specified must not be a day occurring more than 5 days after the day on which the notice was given.


"(8) Subject to subsection (10), AUSTEL may state in the notice that the disallowance does not apply:
(a) for specified purposes; or
(b) in relation to persons of a specified kind to whom the carrier supplies the service; or
(c) for specified purposes in relation to persons of a specified kind to whom the carrier supplies the service.


"(9) AUSTEL may revoke or vary such a statement at any time.


"(10) The statement (including such a statement as varied under subsection

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(9)) must not relate to supply of the service to persons to whom the carrier was not supplying the service at the time the disallowance takes effect.


"(11) If the statement so specifies, the tariff, or the disallowed provisions of the tariff, continue to apply as specified in the statement:
(a) for the period specified in the statement for the purposes of that continued application; or
(b) if no such period is specified-for so long as the tariff remains in force.


"(12) Notices, and revocations or variations of statements in notices, are to be made public in the way AUSTEL thinks appropriate.


"(13) A carrier must not demand or receive payment of a charge for the supply of a telecommunications service to a person if:
(a) the charge is worked out in accordance with a tariff, or provisions of a tariff, that have been disallowed under this section; and
(b) the whole or a part of the charge is attributable to a period occurring after the tariff, or the provisions of the tariff, were disallowed.


"(14) For the purposes of this section, the operation or continued operation of a tariff is taken to be anti-competitive in a market if and only if:
(a) the operation or continued operation of the tariff, or provisions of the tariff; or
(b) the operation or continued operation of the tariff, or provisions of the tariff, in conjunction with other tariffs or commercial arrangements;
has, or is likely to have, the effect of materially and adversely affecting the development and/or maintenance of commercially sustainable competition in that market.


Certain tariffs, and variations of certain tariffs, not to come into force for an extended period "238B.(1) Subject to subsection (3), a BCS tariff of a carrier that is a tariff in relation to which section 238A applies does not come into force before:
(a) the 15th business day after a carrier has given AUSTEL a copy of the tariff; or
(b) if AUSTEL notifies the carrier in writing that the tariff may come into force on an earlier day-that day.


"(2) Subject to subsection (3), a variation of a BCS tariff of a carrier that is a tariff in relation to which section 238A applies does not come into force before:
(a) the 15th business day after a carrier has given AUSTEL a copy of the variation; or
(b) if AUSTEL notifies the carrier in writing that the variation may come into force on an earlier day-that day.


"(3) Subsection (1) does not apply to a tariff, and subsection (2) does not apply to a variation of a tariff, if the tariff or variation was already in force at the commencement of this section.


"(4) The giving of a notice under paragraph (1)(b) or (2)(b) in relation to a tariff or variation of a tariff does not prevent AUSTEL exercising any power it has under this Act to disallow the tariff or variation.


"(5) This section does not affect the operation of subsection 190(4) or 192(3).


Minister may give directions to AUSTEL "238C.(1) The Minister may, by written notice, give to AUSTEL directions about how AUSTEL is to perform its functions under section 238A.


"(2) Without limiting subsection (1), a direction under that subsection may contain any one or more of the following:
(a) a requirement that AUSTEL develop a decision-making framework for the performance of its functions under section 238A;
(b) principles to which AUSTEL must have regard in considering whether to disallow provisions of a tariff under section 238A;
(c) requirements about the way in which AUSTEL is to develop the decision-making framework;
(d) the matters to which AUSTEL must have regard in considering whether the operation or continued operation of a tariff would (within the meaning of section 238A) be anti-competitive in a market for a telecommunications service;
(e) a description (whether exhaustive or not) of circumstances in which AUSTEL must consider whether the operation or continued operation of a tariff would (within the meaning of section 238A) be anti-competitive in a market for a telecommunications service;
(f) a requirement that AUSTEL develop procedures that it is to follow in considering whether to disallow provisions of a tariff under section 238A.


"(3) This section does not affect:
(a) the Minister's power to give AUSTEL directions under other provisions; or
(b) AUSTEL's power to give carriers directions under section 46; about other matters.
"(4) A direction under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.


Directions to have general application only "238D.(1) A direction under section 238C must not direct AUSTEL to disallow provisions of a particular tariff, or particular provisions of a tariff.
"(2) A direction is invalid so far as it contravenes subsection (1).".