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Telecommunications Act 1997

  • - C2004A05145
  • In force - Superseded Version
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Act No. 47 of 1997 as made
An Act about telecommunications, and for related purposes
Administered by: Communications and the Arts
Originating Bill: Telecommunications Bill 1996 [1997]
Date of Assent 22 Apr 1997
Table of contents.
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Collapse Part 1—IntroductionPart 1—Introduction
1 Short title
2 Commencement
3 Objects
4 Regulatory policy
5 Simplified outline
6 Main index
7 Definitions
8 Crown to be bound
9 Extra-territorial application
10 Extension to external Territories
11 Extension to adjacent areas
12 Act subject to Radiocommunications Act
13 Continuity of partnerships
14 Controlled carriage services, controlled networks and controlled facilities
15 Content service
16 Listed carriage services
17 Standard telephone service
18 Access to an emergency call service
19 Recognised person who operates an emergency call service
20 Customer cabling
21 Customer equipment
22 Customer cabling and customer equipment—boundary of a telecommunications network
23 Immediate circle
24 Extended meaning of use
Expand Part 2—Network unitsPart 2—Network units
Expand Part 3—CarriersPart 3—Carriers
Expand Part 4—Service providersPart 4—Service providers
Expand Part 5—Monitoring of the performance of carriers and carriage service providersPart 5—Monitoring of the performance of carriers and carriage service providers
Expand Part 6—Industry codes and industry standardsPart 6—Industry codes and industry standards
Expand Part 7—Universal service regimePart 7—Universal service regime
Expand Part 8—Continued access to untimed local callsPart 8—Continued access to untimed local calls
Expand Part 9—Customer service guaranteePart 9—Customer service guarantee
Expand Part 10—The Telecommunications Industry OmbudsmanPart 10—The Telecommunications Industry Ombudsman
Expand Part 11—Protection for residential customers against failure by carriage service providers to provide standard carriage servicesPart 11—Protection for residential customers against failure by carriage service providers to provide standard carriage services
Expand Part 12—Provision of emergency call servicesPart 12—Provision of emergency call services
Expand Part 13—Protection of communicationsPart 13—Protection of communications
Expand Part 14—National interest mattersPart 14—National interest matters
Expand Part 15—Co-operation with law enforcement agenciesPart 15—Co-operation with law enforcement agencies
Expand Part 16—Defence requirements and disaster plansPart 16—Defence requirements and disaster plans
Expand Part 17—Pre-selection in favour of carriage service providersPart 17—Pre-selection in favour of carriage service providers
Expand Part 18—Calling line identificationPart 18—Calling line identification
Expand Part 19—Advanced Mobile Phone System (AMPS)Part 19—Advanced Mobile Phone System (AMPS)
Expand Part 20—International aspects of activities of the telecommunications industryPart 20—International aspects of activities of the telecommunications industry
Expand Part 21—Technical regulationPart 21—Technical regulation
Expand Part 22—Numbering of carriage services and regulation of electronic addressingPart 22—Numbering of carriage services and regulation of electronic addressing
Expand Part 23—Standard agreements for the supply of carriage servicesPart 23—Standard agreements for the supply of carriage services
Expand Part 24—Carriers’ powers and immunitiesPart 24—Carriers’ powers and immunities
Expand Part 25—Public inquiriesPart 25—Public inquiries
Expand Part 26—InvestigationsPart 26—Investigations
Expand Part 27—The ACA’s information-gathering powersPart 27—The ACA’s information-gathering powers
Expand Part 28—EnforcementPart 28—Enforcement
Expand Part 29—Review of decisionsPart 29—Review of decisions
Expand Part 30—InjunctionsPart 30—Injunctions
Expand Part 31—Civil penaltiesPart 31—Civil penalties
Expand Part 32—Vicarious liabilityPart 32—Vicarious liability
Expand Part 33—False or misleading statementsPart 33—False or misleading statements
Expand Part 34—Special provisions relating to the ACA’s telecommunications functions and powersPart 34—Special provisions relating to the ACA’s telecommunications functions and powers
Expand Part 35—MiscellaneousPart 35—Miscellaneous
Schedule 1—Standard carrier licence conditions
Expand Part 1—Compliance with this ActPart 1—Compliance with this Act
Expand Part 2—Industry development plansPart 2—Industry development plans
Expand Part 3—Access to supplementary facilities Part 3—Access to supplementary facilities
Expand Part 4—Access to network informationPart 4—Access to network information
Expand Part 5—Access to telecommunications transmission towers and to underground facilitiesPart 5—Access to telecommunications transmission towers and to underground facilities
Expand Part 6—Inspection of facilities etc.Part 6—Inspection of facilities etc.
Schedule 2—Standard service provider rules
Expand Part 1—Compliance with this ActPart 1—Compliance with this Act
Expand Part 2—Operator servicesPart 2—Operator services
Expand Part 3—Directory assistance servicesPart 3—Directory assistance services
Expand Part 4—Integrated public number databasePart 4—Integrated public number database
Expand Part 5—Itemised billingPart 5—Itemised billing
Schedule 3—Carriers’ powers and immunities
Expand Part 1—General provisionsPart 1—General provisions
Expand Part 2—Transitional provisionsPart 2—Transitional provisions
Schedule 4—Reviewable decisions of the ACA
Expand Part 1—Decisions that may be subject to reconsideration by the ACAPart 1—Decisions that may be subject to reconsideration by the ACA
Expand Part 2—Decisions to which section 556 does not applyPart 2—Decisions to which section 556 does not apply

 

 

 

 

Telecommunications Act 1997

 

No.  47, 1997

 

 

 

 

An Act about telecommunications, and for related purposes

 

 

 


Contents

Part 1—Introduction                                                                                                     Error!

1............ Short title............................................................................................ 1

2............ Commencement.................................................................................. 2

3............ Objects................................................................................................ 2

4............ Regulatory policy............................................................................... 4

5............ Simplified outline................................................................................ 5

6............ Main index........................................................................................ 10

7............ Definitions........................................................................................ 12

8............ Crown to be bound........................................................................... 21

9............ Extra-territorial application.............................................................. 22

10.......... Extension to external Territories....................................................... 22

11.......... Extension to adjacent areas............................................................... 22

12.......... Act subject to Radiocommunications Act........................................ 23

13.......... Continuity of partnerships............................................................... 23

14.......... Controlled carriage services, controlled networks and controlled facilities              23

15.......... Content service................................................................................. 25

16.......... Listed carriage services..................................................................... 26

17.......... Standard telephone service............................................................... 26

18.......... Access to an emergency call service................................................. 28

19.......... Recognised person who operates an emergency call service............ 28

20.......... Customer cabling.............................................................................. 29

21.......... Customer equipment........................................................................ 29

22.......... Customer cabling and customer equipment—boundary of a telecommunications network    30

23.......... Immediate circle................................................................................ 33

24.......... Extended meaning of use................................................................... 37

Part 2—Network units                                                                                                        38

Division 1—Simplified outline                                                                                38

25.......... Simplified outline.............................................................................. 38

Division 2—Basic definition                                                                                    39

26.......... Single line links connecting distinct places in Australia.................... 39

27.......... Multiple line links connecting distinct places in Australia............... 39

28.......... Designated radiocommunications facility......................................... 40

29.......... Facilities specified in Ministerial determination............................... 41

Division 3—Related definitions                                                                            42

30.......... Line links.......................................................................................... 42

31.......... Designated radiocommunications facility......................................... 42

32.......... Public mobile telecommunications service........................................ 44

33.......... Intercell hand-over functions............................................................ 45

34.......... When a base station is part of a terrestrial radiocommunications customer access network   46

35.......... Fixed radiocommunications link....................................................... 47

Division 4—Distinct places                                                                                     49

36.......... Distinct places—basic rules............................................................. 49

37.......... Properties......................................................................................... 49

38.......... Combined areas................................................................................. 50

39.......... Principal user of a property............................................................. 51

40.......... Eligible combined areas..................................................................... 51

Part 3—Carriers                                                                                                                    52

Division 1—Simplified outline                                                                                52

41.......... Simplified outline.............................................................................. 52

Division 2—Prohibitions relating to carriers                                                 53

42.......... Network unit not to be used without carrier licence or nominated carrier declaration            53

43.......... Continuing offences.......................................................................... 54

44.......... Supply to the public......................................................................... 54

45.......... Exemption—defence......................................................................... 56

46.......... Exemption—intelligence operations................................................. 57

47.......... Exemption—transport authorities.................................................... 57

48.......... Exemption—broadcasting services................................................... 59

49.......... Exemption—electricity supply bodies............................................. 61

50.......... Exemption—line links authorised by or under previous laws.......... 62

51.......... Exemption—Ministerial determination............................................ 64

Division 3—Carrier licences                                                                                  65

52.......... Applications for carrier licence......................................................... 65

53.......... Form of application etc.................................................................... 65

54.......... Application to be accompanied by charge........................................ 65

55.......... Further information.......................................................................... 65

56.......... Grant of licence................................................................................. 65

57.......... Carrier licence has effect subject to this Act.................................... 66

58.......... Refusal of carrier licence—disqualified applicant............................. 66

59.......... Time limit on licence decision........................................................... 69

60.......... Notification of refusal of application............................................... 70

61.......... Conditions of carrier licence specified in Schedule 1........................ 70

62.......... Condition of carrier licence set out in section 152AZ of the Trade Practices Act 1974          70

63.......... Conditions of carrier licence declared by Minister........................... 70

64.......... Consultation about declared licence conditions................................ 72

65.......... Conditions about foreign ownership or control................................ 73

66.......... Conditions about Telstra’s ISDN obligations.................................. 73

67.......... Carrier licence conditions—special provisions................................. 74

68.......... Compliance with conditions............................................................. 74

69.......... Remedial directions—breach of condition........................................ 75

70.......... Formal warnings—breach of condition............................................. 76

71.......... Surrender of carrier licence................................................................ 76

72.......... Cancellation of carrier licence........................................................... 77

73.......... Collection of charges relating to carrier licences............................... 78

74.......... Collection of charges on behalf of the Commonwealth.................... 80

75.......... Cancellation of certain exemptions from charge............................... 80

76.......... Commonwealth not liable to charge.................................................. 81

Division 4—Nominated carrier declarations                                                  82

77.......... Applications for nominated carrier declarations............................... 82

78.......... Application to be accompanied by charge etc.................................. 82

79.......... Form of application etc.................................................................... 82

80.......... Further information.......................................................................... 82

81.......... Making a nominated carrier declaration............................................ 83

82.......... Notification of refusal of application............................................... 83

83.......... Revocation of nominated carrier declaration..................................... 83

Division 5—Register of nominated carrier declarations and carrier licences    85

84.......... Register of nominated carrier declarations and carrier licences......... 85

Part 4—Service providers                                                                                                86

Division 1—Simplified outline                                                                                86

85.......... Simplified outline.............................................................................. 86

Division 2—Service providers                                                                               87

86.......... Service providers.............................................................................. 87

Division 3—Carriage service providers                                                           88

87.......... Carriage service providers................................................................. 88

88.......... Supply to the public......................................................................... 90

89.......... Exemption from definition—customers located on the same premises 91

90.......... Exemption from definition—defence................................................ 92

91.......... Exemption from definition—intelligence operations........................ 92

92.......... Exemption from definition—transport authorities........................... 92

93.......... Exemption from definition—broadcasting services.......................... 93

94.......... Exemption from definition—electricity supply bodies.................... 94

95.......... Exemption from definition—Ministerial determination................... 95

96.......... Exemption from certain regulatory provisions—Ministerial determination            95

Division 4—Content service providers                                                            97

97.......... Content service providers................................................................. 97

Division 5—Service provider rules                                                                     98

98.......... Service provider rules....................................................................... 98

99.......... Service provider determinations....................................................... 98

100........ Exemptions from service provider rules........................................... 99

101........ Service providers must comply with service provider rules............ 99

102........ Remedial directions—breach of service provider rules................... 100

103........ Formal warnings—breach of service provider rules....................... 101

Part 5—Monitoring of the performance of carriers and carriage service providers            102

104........ Simplified outline............................................................................ 102

105........ Monitoring of performance............................................................ 102

Part 6—Industry codes and industry standards                                                 105

Division 1—Simplified outline                                                                              105

106........ Simplified outline............................................................................ 105

Division 2—Interpretation                                                                                     106

107........ Industry codes................................................................................ 106

108........ Industry standards.......................................................................... 106

109........ Telecommunications activity.......................................................... 106

110........ Sections of the telecommunications industry................................. 106

111........ Participants in a section of the telecommunications industry........ 108

Division 3—General principles relating to industry codes and industry standards         109

112........ Statement of regulatory policy....................................................... 109

113........ Examples of matters that may be dealt with by industry codes and industry standards        110

114........ Industry codes and industry standards may confer powers on the Telecommunications Industry Ombudsman  111

115........ Industry codes and industry standards not to deal with certain design features and performance requirements    111

116........ Industry codes and industry standards not to deal with matters dealt with by codes and standards under Part 9 of the Broadcasting Services Act.............................................................. 112

Division 4—Industry codes                                                                                   114

117........ Registration of industry codes........................................................ 114

118........ ACA may request codes................................................................. 115

119........ Publication of notice where no body or association represents a section of the telecommunications industry      117

120........ Replacement of industry codes...................................................... 117

121........ Directions about compliance with industry codes......................... 118

122........ Formal warnings—breach of industry codes.................................. 118

Division 5—Industry standards                                                                           119

123........ ACA may determine an industry standard if a request for an industry code is not complied with        119

124........ ACA may determine industry standard where no industry body or association formed        120

125........ ACA may determine industry standards where industry codes fail 121

126........ Industry standards not to be determined for certain privacy matters 122

127........ Industry standards not to be determined during the first 180 days after commencement       123

128........ Compliance with industry standards.............................................. 123

129........ Formal warnings—breach of industry standards............................ 123

130........ Variation of industry standards...................................................... 124

131........ Revocation of industry standards................................................... 124

132........ Public consultation on industry standards..................................... 124

133........ Consultation with ACCC and the Telecommunications Industry Ombudsman     125

134........ Consultation with Privacy Commissioner...................................... 126

135........ Consultation with consumer body................................................. 126

Division 6—Register of industry codes and industry standards        127

136........ ACA to maintain Register of industry codes and industry standards 127

Part 7—Universal service regime                                                                              128

Division 1—Introduction                                                                                        128

137........ Simplified outline............................................................................ 128

138........ Objects............................................................................................ 129

139........ Special meaning of Australia........................................................... 129

140........ Payphones...................................................................................... 130

141........ Prescribed carriage services............................................................. 130

142........ Supply of standard telephone services........................................... 131

143........ Supply of services similar to the National Relay Service to be treated as the supply of standard telephone services........................................................................................................ 133

144........ Supply of prescribed carriage services........................................... 133

145........ Service area..................................................................................... 133

146........ Participating carriers....................................................................... 134

147........ Eligible revenue............................................................................... 134

148........ Approved auditor........................................................................... 134

Division 2—Universal service obligation                                                      135

149........ Universal service obligation............................................................ 135

Division 3—Universal service providers                                                       137

150........ Universal service providers............................................................ 137

151........ Effect of universal service provider declaration.............................. 139

152........ Selection system for national universal service provider................ 140

153........ Selection system for regional universal service providers.............. 140

154........ Selection systems—information-gathering powers........................ 141

155........ Multiple national universal service providers................................ 142

156........ Multiple regional universal service providers................................. 142

Division 4—Universal service plans                                                                144

157........ Universal service provider must submit universal service plan...... 144

158........ Universal service plans................................................................... 144

159........ Replacement of approved universal service plan........................... 144

160........ Approval of draft universal service plan by Minister.................... 144

161........ Public comment—draft plan........................................................... 145

162........ Minister to have regard to certain matters...................................... 145

163........ Minister may formulate requirements for draft plans.................... 146

164........ Notification of decision.................................................................. 146

165........ Variation of approved universal service plan................................. 147

166........ Public comment—variation of plan................................................ 147

167........ Minister may direct the ACA to give reports and/or advice.......... 148

168........ Minister may direct variation or replacement of plan.................... 148

169........ Compliance with approved universal service plan......................... 149

170........ Register of universal service plans.................................................. 149

Division 5—Regulation of universal service charges                             150

171........ Universal service charges................................................................ 150

172........ Declaration subjecting universal service charges to price control arrangements      150

173........ Price control determinations........................................................... 150

174........ Content of price control determinations......................................... 151

175........ Price control determinations subject to determinations under Telstra Corporation Act         151

176........ Compliance with price control determinations............................... 152

Division 6—Assessment, collection, recovery and distribution of universal service levy          153

Subdivision A—Simplified outline                                                                       153

177........ Simplified outline............................................................................ 153

Subdivision B—Net cost areas                                                                              154

178........ Universal service provider must propose service areas for declaration as net cost areas—ordinary declaration    154

179........ Net cost areas—ordinary declarations............................................ 154

180........ Universal service provider may propose service areas for declaration as net cost areas—special declaration        155

181........ Net cost areas—special declarations.............................................. 156

182........ Minister may give directions about declaring net cost areas.......... 157

Subdivision C—Assessment of liability for levy and of entitlement to levy distributions  157

183........ Claims for levy credit..................................................................... 157

184........ No levy payable unless at least one claim for a levy credit is made 158

185........ ACA to give copies of claims to other participating carriers......... 158

186........ Net universal service cost of a universal service provider for a financial year         159

187........ Reduction of excessive costs etc..................................................... 163

188........ Shortfalls in revenue earned............................................................ 163

189........ ACA determinations about working out a universal service provider’s net universal service cost         164

190........ Application of determinations under section 189.......................... 165

191........ Participating carriers must lodge returns of eligible revenue........... 165

192........ ACA may inquire into the correctness of a claim or return............ 166

193........ ACA to assess liabilities and entitlement....................................... 167

194........ Explanation to the Minister if assessment not made within 270 days 168

195........ Amendment of assessments........................................................... 168

196........ Levy debit of a participating carrier for a financial year................. 168

197........ Levy debit balance of a participating carrier for a financial year.... 170

198........ Levy credit balance of a universal service provider for a financial year.. 170

199........ Publication of assessment............................................................... 170

Subdivision D—Disclosure by the ACA of information about decisions relating to net cost areas and assessments 170

200........ Public may request information...................................................... 170

201........ Request for information that is unavailable under section 200....... 171

202........ How the ACA is to comply with a request................................... 173

Subdivision E—Collection and recovery of levy                                                 174

203........ When levy payable......................................................................... 174

204........ Levy a debt due to the Commonwealth.......................................... 174

205........ Validity of assessment.................................................................... 174

206........ Evidence of assessment.................................................................. 174

207........ Onus of establishing incorrectness of assessment.......................... 175

208........ Refund of overpayment of levy..................................................... 175

209........ Cancellation of certain exemptions from levy................................ 175

210........ Commonwealth not liable to levy................................................... 175

Subdivision F—Distribution of levy                                                                     175

211........ Universal Service Reserve............................................................... 175

212........ Payments into Universal Service Reserve...................................... 176

213........ Purposes of Universal Service Reserve.......................................... 176

214........ Levy distribution to a universal service provider........................... 177

215........ Levy not to be distributed until paid.............................................. 177

216........ Recovery of overpayments............................................................ 177

Subdivision G—Advance on account of distribution of levy                             178

217........ Advance on account of distribution of levy................................... 178

218........ Repayment of excess advances....................................................... 178

Subdivision H—Levy guarantee                                                                            179

219........ Levy guarantee................................................................................ 179

220........ Exemptions from levy guarantee.................................................... 179

221........ Compliance with levy guarantee obligations.................................. 180

Part 8—Continued access to untimed local calls                                               181

222........ Simplified outline............................................................................ 181

223........ Requirement to provide an untimed local call option..................... 181

224........ Untimed local call option................................................................ 181

225........ Eligible local calls............................................................................ 182

226........ Benefits for customers outside standard zones.............................. 184

227........ Standard zones................................................................................ 185

228........ Applicable zones............................................................................ 186

229........ Eligible customer............................................................................. 187

230........ Points.............................................................................................. 188

231........ Application of this Part.................................................................. 188

Part 9—Customer service guarantee                                                                      189

232........ Simplified outline............................................................................ 189

233........ Interpretation.................................................................................. 189

234........ Performance standards.................................................................... 190

235........ Damages for breach of performance standards............................... 191

236........ Scale of damages for breach of performance standards................... 192

237........ Evidentiary certificate issued by the Telecommunications Industry Ombudsman 193

238........ Waiver of customer service guarantee............................................. 194

239........ Savings of other laws and remedies................................................ 194

240........ Breach of performance standard is not an offence.......................... 194

241........ Clause 1 of Schedule 2 does not apply to a breach of a performance standard       195

242........ Minister may direct the ACA about the use of its powers under this Part            195

243........ Review of performance standards following Ministerial direction. 195

Part 10—The Telecommunications Industry Ombudsman                          197

244........ Simplified outline............................................................................ 197

245........ Eligible carriage service providers................................................... 197

246........ Telecommunications Industry Ombudsman scheme...................... 198

247........ Exemptions from requirement to join scheme................................ 198

248........ Direction to join scheme................................................................. 199

249........ Determination that a class of carriage service providers must join scheme             200

250........ Members of scheme must comply with scheme............................ 201

251........ Register of members of scheme...................................................... 201

Part 11—Protection for residential customers against failure by carriage service providers to provide standard carriage services                                                                         202

252........ Simplified outline............................................................................ 202

253........ Scope of Part.................................................................................. 202

254........ Standard residential customer......................................................... 203

255........ Protected payments........................................................................ 204

256........ Compliance with protection schemes for protected payments...... 205

257........ Protection schemes for protected payments—alternative supply of standard carriage services            205

258........ Protection schemes for protected payments—third party guarantee 206

259........ Protection schemes for protected payments—insurance cover..... 206

260........ Protection schemes for protected payments—holding of payments in trust accounts           207

261........ Waiver of protection by customers................................................ 208

262........ Incidental rules................................................................................ 208

263........ Enforcement of protection schemes............................................... 208

Part 12—Provision of emergency call services                                                  211

264........ Simplified outline............................................................................ 211

265........ Provision of emergency call services.............................................. 211

266........ Compliance with determination...................................................... 215

267........ Access to emergency call services.................................................. 216

268........ Ministerial pricing determinations.................................................. 217

269........ Access to be provided.................................................................... 217

Part 13—Protection of communications                                                                 219

Division 1—Introduction                                                                                        219

270........ Simplified outline............................................................................ 219

271........ Eligible person................................................................................ 220

272........ Number-database operator and eligible number-database person... 220

273........ Information..................................................................................... 220

274........ Telecommunications contractor...................................................... 220

275........ Number-database contractor........................................................... 221

Division 2—Primary disclosure/use offences                                              222

276........ Primary disclosure/use offence—eligible persons.......................... 222

277........ Primary disclosure/use offence—eligible number-database persons 224

278........ Primary disclosure/use offence—emergency call persons.............. 226

Division 3—Exceptions to primary disclosure/use offences               228

Subdivision A—Exceptions                                                                                    228

279........ Performance of person’s duties...................................................... 228

280........ Authorisation by or under law....................................................... 229

281........ Witnesses........................................................................................ 229

282........ Law enforcement and protection of public revenue....................... 230

283........ ASIO............................................................................................... 233

284........ Assisting the ACA, the ACCC or the Telecommunications Industry Ombudsman               233

285........ Integrated public number database................................................. 234

286........ Calls to emergency service number................................................. 235

287........ Threat to person’s life or health..................................................... 236

288........ Communications for maritime purposes........................................ 236

289........ Knowledge or consent of person concerned................................... 236

290........ Implicit consent of sender and recipient of communication........... 237

291........ Business needs of other carriers or service providers..................... 237

292........ Circumstances prescribed in the regulations................................... 239

293........ Uses connected with exempt disclosures....................................... 239

294........ Generality of Subdivision not limited............................................. 240

Subdivision B—Burden of proof                                                                           240

295........ Burden of proof.............................................................................. 240

Division 4—Secondary disclosure/use offences                                         241

296........ Performance of person’s duties...................................................... 241

297........ Authorisation by or under law....................................................... 241

298........ Law enforcement and protection of public revenue....................... 241

299........ Assisting the ACA, the ACCC or the Telecommunications Industry Ombudsman               242

300........ Threat to person’s life or health..................................................... 243

301........ Communications for maritime purposes........................................ 243

302........ Business needs of other carriers or service providers..................... 243

303........ Secondary offence—contravening this Division............................. 244

Division 5—Record-keeping requirements                                                 245

304........ Associate........................................................................................ 245

305........ Certificates issued by authorised officers of enforcement agencies 245

306........ Record of disclosures...................................................................... 246

307........ Incorrect records............................................................................. 247

308........ Annual reports to the ACA by carriers, carriage service providers or number-database operators        248

309........ Monitoring by the Privacy Commissioner..................................... 248

Division 6—Instrument-making powers not limited                                249

310........ Instrument-making powers not limited.......................................... 249

Part 14—National interest matters                                                                           250

311........ Simplified outline............................................................................ 250

312........ ACA’s obligations.......................................................................... 250

313........ Obligations of carriers and carriage service providers..................... 251

314........ Terms and conditions on which help is to be given........................ 253

315........ Suspension of supply of carriage service in an emergency............. 254

316........ Generality of Part not limited......................................................... 255

Part 15—Co-operation with law enforcement agencies                                 256

Division 1—Simplified outline                                                                              256

317........ Simplified outline............................................................................ 256

Division 2—Execution of warrants under the Telecommunications (Interception) Act 1979   257

318........ Scope of Division........................................................................... 257

319........ Execution of warrants..................................................................... 257

320........ Exemptions..................................................................................... 257

Division 3—Interception capability                                                                   259

321........ Scope of Division........................................................................... 259

322........ Requirement to provide interception capability............................. 259

323........ Interception capability to be provided........................................... 259

324........ Terms and conditions—compliance with principles...................... 260

325........ Terms and conditions—timing of implementation of requirement. 260

326........ Meaning of interception capability.................................................. 261

327........ Expressions to have the same meaning as in the Telecommunications (Interception) Act 1979               261

328........ Meaning of agency.......................................................................... 261

Division 4—Consultation about new technology                                       262

329........ Designated agency.......................................................................... 262

330........ Consultation about new technology—advisory committee established  262

331........ Consultation about new technology—no advisory committee established             263

332........ Exemptions..................................................................................... 263

Part 16—Defence requirements and disaster plans                                        264

Division 1—Introduction                                                                                        264

333........ Simplified outline............................................................................ 264

334........ Defence authority........................................................................... 264

Division 2—Supply of carriage services                                                         265

335........ Requirement to supply carriage services for defence purposes or for the management of natural disasters           265

Division 3—Defence planning                                                                              267

336........ Definitions...................................................................................... 267

337........ Preparation of draft agreement....................................................... 267

338........ ACA’s certification of draft agreement.......................................... 268

339........ Requirement to enter into certified agreement................................ 269

340........ Compliance with agreement............................................................ 269

341........ Withdrawal of certification of agreement........................................ 269

342........ Duration of agreement.................................................................... 270

343........ Variation of agreement.................................................................... 270

Division 4—Disaster plans                                                                                    272

344........ Designated disaster plans............................................................... 272

345........ Carrier licence conditions about designated disaster plans............. 272

346........ Service provider determinations about designated disaster plans... 272

Division 5—Delegation                                                                                            273

347........ Delegation....................................................................................... 273

Part 17—Pre-selection in favour of carriage service providers               274

348........ Simplified outline............................................................................ 274

349........ Requirement to provide pre-selection............................................ 274

350........ When pre-selection is provided in favour of a carriage service provider 275

351........ Pre-selection to be provided........................................................... 277

352........ Exemptions from requirement to provide pre-selection................. 278

353........ Use of over-ride dial codes............................................................. 278

Part 18—Calling line identification                                                                           280

354........ Simplified outline............................................................................ 280

355........ Calling line identification................................................................ 280

356........ Exemptions from calling line identification requirement................. 281

Part 19—Advanced Mobile Phone System (AMPS)                                       282

357........ Simplified outline............................................................................ 282

358........ Meaning of AMPS........................................................................... 282

359........ Scope of Part.................................................................................. 282

360........ No new AMPS............................................................................... 282

361........ AMPS to be phased out................................................................. 282

362........ Limited exemption from phase-out of AMPS................................ 283

363........ Competition not to be reduced....................................................... 284

Part 20—International aspects of activities of the telecommunications industry   285

Division 1—Simplified outline                                                                              285

364........ Simplified outline............................................................................ 285

Division 2—Compliance with international agreements                        286

365........ INTELSAT and Inmarsat—directions to Signatories..................... 286

366........ Compliance with conventions........................................................ 286

Division 3—Rules of Conduct about dealings with international telecommunications operators           288

367........ Rules of Conduct about dealings with international telecommunications operators               288

368........ ACCC to administer Rules of Conduct.......................................... 291

369........ Rules of Conduct to bind carriers and carriage service providers... 291

370........ Unenforceability of agreements...................................................... 291

371........ Investigations by the ACCC.......................................................... 292

372........ Reviews of the operation of this Division...................................... 292

Part 21—Technical regulation                                                                                     293

Division 1—Simplified outline                                                                              293

373........ Simplified outline............................................................................ 293

Division 2—Interpretative provisions                                                             295

374........ Part applies to networks or facilities in Australia operated by carriers or carriage service providers     295

375........ Manager of network or facility....................................................... 295

Division 3—Technical standards about customer equipment and customer cabling      296

376........ ACA’s power to make technical standards.................................... 296

377........ Adoption of voluntary standards................................................... 297

378........ Procedures for making technical standards..................................... 297

379........ Making technical standards in cases of urgency............................. 298

Division 4—Disability standards                                                                         300

380........ Disability standards........................................................................ 300

381........ Adoption of voluntary standards................................................... 301

382........ Procedures for making disability standards.................................... 301

383........ Effect of compliance with disability standards.............................. 302

Division 5—Technical standards about the interconnection of facilities               303

384........ ACA’s power to make technical standards.................................... 303

385........ Adoption of voluntary standards................................................... 304

386........ Procedures for making technical standards..................................... 304

387........ Procedures for making technical standards..................................... 305

388........ Provision of access......................................................................... 306

389........ Promotion of the long‑term interests of end‑users of carriage services and of services supplied by means of carriage services........................................................................................... 307

Division 6—Connection permits and connection rules                          308

Subdivision A—Connection permits authorising the connection of non-standard customer equipment and non‑standard cabling                                                                                          308

390........ Application for connection permit................................................. 308

391........ Form of application........................................................................ 308

392........ Application to be accompanied by charge...................................... 309

393........ Further information........................................................................ 309

394........ Issue of connection permits............................................................ 309

395........ Connection permit has effect subject to this Act........................... 310

396........ Nominees of holder......................................................................... 310

397........ Duration of connection permits...................................................... 310

398........ Conditions of connection permits.................................................. 311

399........ Offence of contravening condition.................................................. 311

400........ Formal warnings—breach of condition........................................... 312

401........ Surrender of connection permit...................................................... 312

402........ Cancellation of connection permit.................................................. 312

403........ Register of connection permits....................................................... 313

Subdivision B—Connection rules                                                                        313

404........ Connection rules............................................................................. 313

405........ Procedures for making connection rules......................................... 314

Division 7—Labelling of customer equipment and customer cabling 316

406........ Application of labels...................................................................... 316

407........ Labelling requirements.................................................................... 316

408........ Requirements to apply labels—ancillary matters.......................... 316

409........ Recognised testing authorities and competent bodies.................... 318

410........ Certification bodies......................................................................... 319

411........ Connection of customer equipment or customer cabling—breach of section 376 standards   319

412........ Connection of labelled customer equipment or customer cabling not to be refused                321

413........ Supply of unlabelled customer equipment or unlabelled customer cabling             322

414........ Applying labels before satisfying requirements under subsection 408(5)               323

415........ Failure to retain records etc............................................................ 323

416........ Application of labels containing false statements about compliance with standards              324

Division 8—Protected symbols                                                                           325

417........ Protected symbols.......................................................................... 325

Division 9—Cabling providers                                                                            329

418........ Cabling work................................................................................... 329

419........ Types of cabling work.................................................................... 329

420........ Prohibition of unauthorised cabling work....................................... 329

421........ Cabling provider rules..................................................................... 330

422........ Procedures for making cabling provider rules................................. 331

423........ Application for cabling licence....................................................... 332

424........ Form of application........................................................................ 332

425........ Application to be accompanied by charge...................................... 332

426........ Further information........................................................................ 332

427........ Grant of cabling licence................................................................... 332

428........ Time limit on licence decision......................................................... 333

429........ Notification of refusal of application............................................. 334

430........ Cabling licence has effect subject to this Act................................. 334

431........ Duration of cabling licence.............................................................. 334

432........ Conditions of cabling licence.......................................................... 334

433........ Procedures for changing licence conditions..................................... 335

434........ Offence of contravening condition.................................................. 335

435........ Formal warnings—breach of condition........................................... 336

436........ Surrender of cabling licence............................................................. 336

437........ Suspension of cabling licence.......................................................... 336

438........ Cancellation of cabling licence........................................................ 337

439........ ACA may limit application of Division in relation to customer cabling 337

440........ Ministerial directions...................................................................... 338

441........ Delegation....................................................................................... 338

442........ Register of cabling licences............................................................. 339

Division 10—Remedies for unauthorised connections to telecommunications networks etc. 340

443........ Civil action for unauthorised connections to telecommunications networks etc.    340

444........ Remedy for contravention of labelling requirements...................... 342

445........ Remedies for connection of unlabelled customer equipment or unlabelled customer cabling  342

446........ Disconnection of dangerous customer equipment or customer cabling 345

447........ Disconnection of customer equipment or customer cabling—protection of the integrity of networks and facilities........................................................................................................ 346

448........ Civil action for dangerous connections to telecommunications networks etc.         347

449........ Other remedies not affected............................................................ 348

Division 11—Prohibited customer equipment and prohibited customer cabling             349

450........ Declaration of prohibited customer equipment or prohibited customer cabling      349

451........ Consultation on proposed declaration............................................ 350

452........ Operation of prohibited customer equipment or customer cabling 350

Division 12—Pre-commencement labels                                                       352

453........ Pre-commencement labels............................................................... 352

Part 22—Numbering of carriage services and regulation of electronic addressing              353

Division 1—Simplified outline                                                                              353

454........ Simplified outline............................................................................ 353

Division 2—Numbering of carriage services                                               354

Subdivision A—Numbering plan                                                                          354

455........ Numbering plan.............................................................................. 354

456........ Numbering plan—supply to the public......................................... 356

457........ Numbering plan—allocation otherwise than in accordance with an allocation system           356

458........ Numbering plan—rules about portability of allocated numbers.... 356

459........ ACA to administer numbering plan................................................ 357

460........ Consultation about numbering plan................................................ 357

461........ Consultation with ACCC............................................................... 359

462........ Compliance with the numbering plan............................................. 359

Subdivision B—Allocation system for numbers                                                361

463........ Allocation system for numbers...................................................... 361

464........ Consultation about an allocation system........................................ 362

Subdivision C—Miscellaneous                                                                             363

465........ Register of allocated numbers......................................................... 363

466........ Emergency service numbers............................................................ 364

467........ Delegation....................................................................................... 365

468........ Collection of numbering charges..................................................... 365

469........ Collection of charges on behalf of the Commonwealth.................. 367

470........ Cancellation of certain exemptions from charge............................. 367

471........ Commonwealth not liable to charge................................................ 368

472........ Integrated public number database................................................. 369

473........ Letters and symbols taken to be numbers...................................... 369

Division 3—Regulation of electronic addressing                                      370

474........ Declared manager of electronic addressing...................................... 370

475........ ACA may give directions to declared manager of electronic addressing  370

476........ ACCC may give directions to declared manager of electronic addressing                371

477........ ACCC’s directions to prevail over the ACA’s directions.............. 372

Part 23—Standard agreements for the supply of carriage services      373

478........ Simplified outline............................................................................ 373

479........ Standard terms and conditions apply unless excluded................... 373

480........ Standard form of agreement to be publicly available...................... 375

481........ Standard form of agreement to be given to the ACA...................... 376

482........ Concurrent operation of State/Territory laws................................ 376

483........ Trade Practices Act not affected by this Part................................ 376

Part 24—Carriers’ powers and immunities                                                          377

484........ Schedule 3....................................................................................... 377

Part 25—Public inquiries                                                                                                 378

Division 1—Simplified outline                                                                              378

485........ Simplified outline............................................................................ 378

Division 2—Inquiries by the ACA                                                                     379

486........ When inquiry must be held............................................................. 379

487........ When inquiry may be held.............................................................. 379

488........ Informing the public about an inquiry............................................ 380

489........ Discussion paper............................................................................ 380

490........ Written submissions and protection from civil actions.................. 381

491........ Hearings.......................................................................................... 381

492........ Hearing to be in public except in exceptional cases........................ 382

493........ Confidential material not to be published....................................... 382

494........ Direction about private hearings..................................................... 383

495........ Reports on inquiries....................................................................... 384

Division 3—Inquiries by the ACCC                                                                 385

496........ When inquiry must be held............................................................. 385

497........ When inquiry may be held.............................................................. 385

498........ Informing the public about an inquiry............................................ 385

499........ Discussion paper............................................................................ 386

500........ Written submissions and protection from civil actions.................. 386

501........ Hearings.......................................................................................... 387

502........ Hearing to be in public except in exceptional cases........................ 388

503........ Confidential material not to be published....................................... 388

504........ Direction about private hearings..................................................... 389

505........ Reports on inquiries....................................................................... 389

506........ ACCC’s other powers not limited................................................. 390

Part 26—Investigations                                                                                                   391

507........ Simplified outline............................................................................ 391

508........ Matters to which this Part applies................................................. 391

509........ Complaints to the ACA................................................................. 391

510........ Investigations by the ACA............................................................. 392

511........ Preliminary inquiries....................................................................... 392

512........ Conduct of investigations............................................................... 393

513........ Complainant and certain other persons to be informed of various matters             393

514........ Reference of matters to Ombudsman or other responsible person 394

515........ Reference of matters to the ACCC................................................. 395

516........ Reports on investigations............................................................... 396

517........ Publication of reports..................................................................... 396

518........ Person adversely affected by report to be given opportunity to comment             397

519........ Protection from civil actions........................................................... 397

Part 27—The ACA’s information-gathering powers                                       399

Division 1—Simplified outline                                                                              399

520........ Simplified outline............................................................................ 399

Division 2—Information-gathering powers                                                   400

521........ The ACA may obtain information and documents from carriers and service providers         400

522........ The ACA may obtain information and documents from other persons  402

523........ Copying documents—reasonable compensation............................ 403

524........ Self-incrimination............................................................................ 403

525........ Giving false or misleading information or evidence........................ 404

526........ Provision of false or misleading documents.................................... 404

527........ Copies of documents...................................................................... 405

528........ ACA may retain documents........................................................... 405

Division 3—Record‑keeping rules                                                                    406

529........ ACA may make record-keeping rules............................................. 406

530........ Compliance with record‑keeping rules........................................... 406

531........ Incorrect records............................................................................. 407

Part 28—Enforcement                                                                                                      408

Division 1—Simplified outline                                                                              408

532........ Simplified outline............................................................................ 408

Division 2—Inspectors and identity cards                                                    409

533........ Inspectors....................................................................................... 409

534........ Identity cards.................................................................................. 410

Division 3—Search warrants relating to offences against Part 21    411

535........ Magistrate may issue warrant........................................................ 411

536........ Reasonable grounds for issuing warrant etc.................................... 411

537........ Contents of warrant........................................................................ 412

538........ Warrants may be issued by telephone etc...................................... 412

539........ Provisions relating to issue of warrant by telephone etc................ 412

540........ Proceedings involving warrant issued by telephone etc................. 414

Division 4—Searches and seizures relating to offences against Part 21               415

541........ When is a thing connected with an offence?................................... 415

542........ Offence-related searches and seizures............................................ 415

543........ Production of identity card etc....................................................... 416

544........ Evidence of commission of other offences..................................... 416

545........ Emergency entry, search and seizure.............................................. 417

546........ Retention of things seized.............................................................. 418

Division 5—Searches to monitor compliance with Part 21                   419

547........ Searches to monitor compliance with Part 21................................ 419

Division 6—Other powers of inspectors                                                        420

548........ General powers of inspectors......................................................... 420

549........ Power to require information etc.................................................... 421

550........ Retention of documents.................................................................. 422

Division 7—Forfeiture                                                                                             423

551........ Court may order forfeiture............................................................. 423

552........ Forfeited goods may be sold........................................................... 423

Division 8—Future offences                                                                                 424

553........ Offences that are going to be committed........................................ 424

Part 29—Review of decisions                                                                                      425

554........ Simplified outline............................................................................ 425

555........ Decisions that may be subject to reconsideration by the ACA..... 425

556........ Deadlines for reaching certain decisions......................................... 425

557........ Statements to accompany notification of decisions....................... 426

558........ Applications for reconsideration of decisions................................ 426

559........ Reconsideration by the ACA......................................................... 427

560........ Deadlines for reconsiderations........................................................ 427

561........ Statements to accompany notification of decisions on reconsideration  427

562........ Review by the Administrative Appeals Tribunal.......................... 428

Part 30—Injunctions                                                                                                          429

563........ Simplified outline............................................................................ 429

564........ Injunctions...................................................................................... 429

565........ Interim injunctions.......................................................................... 430

566........ Discharge etc. of injunctions........................................................... 431

567........ Certain limits on granting injunctions not to apply........................ 431

568........ Other powers of the court unaffected............................................ 432

Part 31—Civil penalties                                                                                                   433

569........ Simplified outline............................................................................ 433

570........ Pecuniary penalties for contravention of civil penalty provisions. 433

571........ Civil action for recovery of pecuniary penalties............................ 434

572........ Criminal proceedings not to be brought for contravention of civil penalty provisions           435

Part 32—Vicarious liability                                                                                            436

573........ Simplified outline............................................................................ 436

574........ Proceedings under this Act............................................................. 436

575........ Liability of corporations................................................................. 436

576........ Liability of persons other than corporations.................................. 437

Part 33—False or misleading statements                                                              440

577........ Simplified outline............................................................................ 440

578........ False or misleading statements....................................................... 440

Part 34—Special provisions relating to the ACA’s telecommunications functions and powers     441

579........ Simplified outline............................................................................ 441

580........ ACA must have regard to conventions........................................... 441

581........ Power to give directions to carriers and service providers............. 442

Part 35—Miscellaneous                                                                                                  443

582........ Simplified outline............................................................................ 443

583........ Penalties for certain continuing offences........................................ 444

584........ Procedure relating to certain continuing offences........................... 444

585........ Treatment of partnerships.............................................................. 444

586........ Giving of documents to partnerships............................................. 445

587........ Nomination of address for service of documents........................... 445

588........ Service of summons or process on foreign corporations—criminal proceedings     446

589........ Instruments under this Act may provide for matters by reference to other instruments        446

590........ Arbitration—acquisition of property............................................. 448

591........ Compensation—constitutional safety net...................................... 448

592........ Act not to affect performance of State or Territory functions....... 449

593........ Funding of consumer representation, and of research, in relation to telecommunications       449

594........ Regulations..................................................................................... 450

Schedule 1—Standard carrier licence conditions                     451

Part 1—Compliance with this Act                                                                              451

1............ Compliance with this Act............................................................... 451

Part 2—Industry development plans                                                                        452

2............ Simplified outline............................................................................ 452

3............ Definitions...................................................................................... 452

4............ Carriers must have a current industry development plan............... 453

5............ Exemptions from industry development plan requirements.......... 453

6............ Contents of industry development plan......................................... 453

7............ Current industry development plan............................................... 455

8............ Publication of industry development plan..................................... 455

9............ Variation of industry development plan......................................... 455

10.......... Requirements relating to research and development activities....... 455

11.......... Formulation of plan or variation—expression of views of the Commonwealth Government about industry development................................................................................... 456

12.......... Compliance with provisions of plan relating to research and development activities             456

13.......... Notification of matters that may affect the achievement of an industry development plan   456

14.......... Annual report on implementation of industry development plan.. 457

15.......... Annual report by Industry Minister.............................................. 457

Part 3—Access to supplementary facilities                                                          458

16.......... Simplified outline............................................................................ 458

17.......... Access to supplementary facilities................................................. 458

18.......... Terms and conditions of access...................................................... 459

19.......... Ministerial pricing determinations.................................................. 460

Part 4—Access to network information                                                                  461

20.......... Simplified outline............................................................................ 461

21.......... Access to network information...................................................... 461

22.......... Access to information in databases................................................ 462

23.......... Access to network planning information........................................ 462

24.......... Access to information about likely changes to network facilities—completion success rate of calls     463

25.......... Access to quality of service information etc.................................. 463

26.......... Security procedures........................................................................ 465

27.......... Terms and conditions of compliance.............................................. 465

28.......... Ministerial pricing determinations.................................................. 466

29.......... Consultation about reconfiguration etc........................................... 466

Part 5—Access to telecommunications transmission towers and to underground facilities             468

30.......... Simplified outline............................................................................ 468

31.......... Definitions...................................................................................... 468

32.......... Extended meaning of access............................................................ 469

33.......... Access to telecommunications transmission towers...................... 469

34.......... Access to sites of telecommunications transmission towers.......... 470

35.......... Access to eligible underground facilities......................................... 472

36.......... Terms and conditions of access...................................................... 473

37.......... Code relating to access.................................................................... 474

38.......... Industry co-operation about sharing of sites and eligible underground facilities     475

39.......... This Part does not limit Part 3 of this Schedule............................. 475

Part 6—Inspection of facilities etc.                                                                           476

40.......... Simplified outline............................................................................ 476

41.......... Records relating to underground facilities....................................... 476

42.......... Regular inspection of facilities........................................................ 477

43.......... Prompt investigation of dangerous facilities................................... 477

44.......... Remedial action............................................................................... 478

Schedule 2—Standard service provider rules                               479

Part 1—Compliance with this Act                                                                              479

1............ Compliance with this Act............................................................... 479

Part 2—Operator services                                                                                             480

2............ Simplified outline............................................................................ 480

3............ Scope of Part.................................................................................. 480

4............ Operator services must be provided to end-users of a standard telephone service 480

5............ Access to end‑users of other carriage service providers................. 480

Part 3—Directory assistance services                                                                    482

6............ Simplified outline............................................................................ 482

7............ Directory assistance services must be provided to end-users........ 482

8............ Access by end-users of other carriage service providers................ 482

Part 4—Integrated public number database                                                        484

9............ Simplified outline............................................................................ 484

10.......... Carriage service providers must give information to Telstra.......... 484

11.......... Carriage service providers must give information to another person or association                485

Part 5—Itemised billing                                                                                                   486

12.......... Simplified outline............................................................................ 486

13.......... Itemised billing................................................................................ 486

14.......... Exemptions from itemised billing requirements.............................. 488

15.......... Details that are not to be specified in an itemised bill.................... 488

Schedule 3—Carriers’ powers and immunities                           489

Part 1—General provisions                                                                                           489

Division 1—Simplified outline and definitions                                             489

1............ Simplified outline............................................................................ 489

2............ Definitions...................................................................................... 492

3............ Designated overhead line................................................................ 494

4............ Extension to a tower to be treated as the installation of a facility.. 494

Division 2—Inspection of land                                                                             496

5............ Inspection of land........................................................................... 496

Division 3—Installation of facilities                                                                  497

6............ Installation of facilities................................................................... 497

Division 4—Maintenance of facilities                                                              500

7............ Maintenance of facilities................................................................. 500

Division 5—Conditions relating to the carrying out of authorised activities      503

8............ Carrier to do as little damage as practicable.................................... 503

9............ Carrier to restore land..................................................................... 503

10.......... Management of activities................................................................ 503

11.......... Agreements with public utilities..................................................... 504

12.......... Compliance with industry standards.............................................. 504

13.......... Compliance with international agreements..................................... 504

14.......... Conditions specified in the regulations........................................... 505

15.......... Conditions specified in a Ministerial Code of Practice.................. 505

16.......... Conditions to which a facility installation permit is subject.......... 506

17.......... Notice to owner of land—general................................................... 506

18.......... Notice to owner of land—lopping of trees etc............................... 508

19.......... Notice to roads authorities, utilities etc.......................................... 509

20.......... Roads etc. to remain open for passage........................................... 510

Division 6—Facility installation permits                                                         511

21.......... Application for facility installation permit.................................... 511

22.......... Form of application........................................................................ 511

23.......... Application to be accompanied by charge...................................... 511

24.......... Withdrawal of application.............................................................. 511

25.......... Issue of facility installation permit................................................. 511

26.......... Deemed refusal of facility installation permit................................ 512

27.......... Criteria for issue of facility installation permit.............................. 513

28.......... Special provisions relating to environmental matters..................... 519

29.......... Consultation with the ACCC......................................................... 520

30.......... Facility installation permit has effect subject to this Act.............. 520

31.......... Duration of facility installation permit........................................... 521

32.......... Conditions of facility installation permit....................................... 521

33.......... Surrender of facility installation permit.......................................... 521

34.......... Cancellation of facility installation permit..................................... 522

35.......... Review of decisions by Administrative Appeals Tribunal............ 522

Division 7—Exemptions from State and Territory laws                         523

36.......... Activities not generally exempt from State and Territory laws..... 523

37.......... Exemption from State and Territory laws...................................... 523

38.......... Concurrent operation of State and Territory laws......................... 524

39.......... Liability to taxation not affected.................................................... 524

Division 8—Miscellaneous                                                                                    525

40.......... Constitution of the ACA—performance of functions under this Part 525

41.......... Guidelines....................................................................................... 525

42.......... Compensation................................................................................. 526

43.......... Power extends to carrier’s employees etc...................................... 527

44.......... State and Territory laws that discriminate against carriers and users of carriage services       527

45.......... State and Territory laws may confer powers and immunities on carriers               529

46.......... ACA may limit tort liability in relation to the supply of certain carriage services 529

47.......... Ownership of facilities................................................................... 530

48.......... ACA may inform the public about designated overhead lines, telecommunications transmission towers and underground facilities...................................................................... 530

49.......... Review of options for placing facilities underground..................... 532

50.......... Monitoring of progress in relation to placing facilities underground 532

51.......... Removal of certain overhead lines.................................................. 532

52.......... Commonwealth laws not displaced................................................ 535

53.......... Subdivider to pay for necessary alterations................................... 535

54.......... Service of notices............................................................................ 535

55.......... Facilities installed before 1 January 1999 otherwise than in reliance on Commonwealth laws—environmental impact........................................................................................................ 536

Part 2—Transitional provisions                                                                                  540

56.......... Continued application of sections 116, 117, 118 and 119 of the Telecommunications Act 1991—general             540

57.......... Continued application of Division 3 of Part 7 of the Telecommunications Act 1991—general               541

58.......... Continued application of sections 116, 117, 118 and 119 of the Telecommunications Act 1991—special rule where injunction restrains activity............................................................ 543

59.......... Continued application of Division 3 of Part 7 of the Telecommunications Act 1991—special rule where injunction restrains activity............................................................................. 545

60.......... Existing buildings, structures and facilities—application of State and Territory laws            547

61.......... Existing buildings, structures and facilities—application of the common law         548

Schedule 4—Reviewable decisions of the ACA                           549

Part 1—Decisions that may be subject to reconsideration by the ACA 549

1............ Reviewable decisions of the ACA.................................................. 549

Part 2—Decisions to which section 556 does not apply                                551

2............ Decisions to which section 556 does not apply............................. 551

 


Telecommunications Act 1997

No.  47, 1997

 

 

 

An Act about telecommunications, and for related purposes

[Assented to 22 April 1997]

The Parliament of Australia enacts:

Part 1—Introduction

1  Short title

                   This Act may be cited as the Telecommunications Act 1997.

2  Commencement

             (1)  The following provisions of this Act commence on the day on which this Act receives the Royal Assent:

                     (a)  this Part;

                     (b)  Part 2;

                     (c)  Divisions 2, 3 and 4 of Part 4;

                     (d)  Division 3 of Part 25;

                     (e)  Part 33;

                      (f)  section 589;

                     (g)  section 594.

             (2)  Sections 52 to 55 (inclusive) commence on 5 June 1997.

             (3)  The remaining provisions of this Act commence on 1 July 1997.

3  Objects

             (1)  The main object of this Act, when read together with Parts XIB and XIC of the Trade Practices Act 1974, is to provide a regulatory framework that promotes:

                     (a)  the long-term interests of end-users of carriage services or of services provided by means of carriage services; and

                     (b)  the efficiency and international competitiveness of the Australian telecommunications industry.

             (2)  The other objects of this Act, when read together with Parts XIB and XIC of the Trade Practices Act 1974, are as follows:

                     (a)  to ensure that standard telephone services, payphones and other carriage services of social importance are:

                              (i)  reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and

                             (ii)  are supplied as efficiently and economically as practicable; and

                            (iii)  are supplied at performance standards that reasonably meet the social, industrial and commercial needs of the Australian community;

                     (b)  to provide a framework under which a carriage service that provides digital data capability comparable to an ISDN channel is to become available to all people in Australia:

                              (i)  by 1 January 2000; or

                             (ii)  by another date having regard to the findings of the review into the timing of the availability of that service;

                     (c)  to promote the supply of diverse and innovative carriage services and content services;

                     (d)  to promote the development of an Australian telecommunications industry that is efficient, competitive and responsive to the needs of the Australian community;

                     (e)  to promote the effective participation by all sectors of the Australian telecommunications industry in markets (whether in Australia or elsewhere);

                      (f)  to promote:

                              (i)  the development of the technical capabilities and skills of the Australian telecommunications industry; and

                             (ii)  the development of the value-adding and export‑oriented activities of the Australian telecommunications industry; and

                            (iii)  research and development that contributes to the growth of the Australian telecommunications industry;

                     (g)  to promote the equitable distribution of benefits from improvements in the efficiency and effectiveness of:

                              (i)  the provision of telecommunications networks and facilities; and

                             (ii)  the supply of carriage services;

                     (h)  to provide appropriate community safeguards in relation to telecommunications activities and to regulate adequately participants in sections of the Australian telecommunications industry;

                      (i)  to promote the placement of lines underground, taking into account economic and technical issues, where placing such lines underground is supported by the affected community.

4  Regulatory policy

                   The Parliament intends that telecommunications be regulated in a manner that:

                     (a)  promotes the greatest practicable use of industry self‑regulation; and

                     (b)  does not impose undue financial and administrative burdens on participants in the Australian telecommunications industry;

but does not compromise the effectiveness of regulation in achieving the objects mentioned in section 3.

5  Simplified outline

                   The following is a simplified outline of this Act:

     This Act sets up a system for regulating telecommunications.

     The main entities regulated by this Act are carriers and service providers.

     A carrier is the holder of a carrier licence granted under this Act.

     The owner of a network unit that is used to supply carriage services to the public must hold a carrier licence unless responsibility for the unit is transferred from the owner to a carrier.

     There are 4 types of network unit:

               (a)     a single line link connecting distinct places in Australia, where the line link meets certain minimum distance requirements;

               (b)     multiple line links connecting distinct places in Australia, where the line links meet certain minimum distance requirements;

               (c)     a designated radiocommunications facility;

               (d)     a facility specified in a Ministerial determination.

     Carrier licences are subject to conditions.

     There are 2 types of service provider:

               (a)     a carriage service provider;

               (b)     a content service provider.

     A carriage service provider is a person who supplies, or proposes to supply, certain carriage services.

     A content service provider is a person who supplies, or proposes to supply, certain content services.

     Service providers must comply with the service provider rules.

     The Australian Communications Authority (ACA) is to monitor, and report each year to the Minister on, significant matters relating to the performance of carriers and carriage service providers.

     Bodies and associations that represent sections of the telecommunications industry may develop industry codes.

     Industry codes may be registered by the ACA.

     Compliance with an industry code is voluntary unless the ACA directs a particular participant in the telecommunications industry to comply with the code.

     The ACA has a reserve power to make an industry standard if there are no industry codes or if an industry code is deficient.

     Compliance with industry standards is mandatory.

     A universal service regime is established. The main object of the universal service regime is to ensure that all people in Australia, wherever they reside or carry on business, should have reasonable access, on an equitable basis, to:

               (a)     standard telephone services; and

               (b)     payphones; and

               (c)     prescribed carriage services.

     Certain local calls are to be charged for on an untimed basis.

     The ACA may make performance standards to be complied with by carriage service providers in relation to customer service.

     Certain carriers and carriage service providers must enter into the Telecommunications Industry Ombudsman scheme.

     Provision is made for the protection of residential customers of carriage service providers against failure by the providers to supply standard telephone services.

     The ACA may impose requirements on carriers, carriage service providers and certain other persons in relation to emergency call services.

     Carriers and carriage service providers must protect the confidentiality of communications.

     The ACA, carriers and carriage service providers must do their best to prevent telecommunications networks and facilities from being used to commit offences.

     A carrier or carriage service provider may be required to have an interception capability.

     Carriers and carriage service providers must ensure that it is possible to execute a warrant issued under the Telecommunications (Interception) Act 1979.

     Carriage service providers may be required to supply carriage services for defence purposes or for the management of natural disasters.

     A carrier or carriage service provider may be required to enter into an agreement with the Commonwealth about:

               (a)     planning for network survivability; or

               (b)     operational requirements in times of crisis.

     The ACA may require certain carriers and carriage service providers to provide pre-selection in favour of carriage service providers.

     The Advanced Mobile Phone System is to be phased out by 1 January 2000.

     Carriers and carriage service providers may be required to comply with certain international conventions.

     The Minister may make Rules of Conduct about dealings with international telecommunications operators.

     Provision is made for the technical regulation of customer equipment, customer cabling and cabling work.

     The ACA may regulate numbering by means of a numbering plan.

     Provision is made for standard agreements for the supply of carriage services.

     The ACA and the ACCC may hold public inquiries about certain matters relating to telecommunications.

     The ACA may investigate certain matters relating to telecommunications.

     Certain switching systems must be capable of providing calling line identification.

     Provision is made for the following ancillary matters:

               (a)     information-gathering powers;

               (b)     powers of search, entry and seizure;

               (c)     review of decisions;

               (d)     injunctions;

               (e)     the prohibition of false and misleading statements.

6  Main index

                   The following is a main index to this Act:

 

Main Index

 

 

Item

Topic

Provisions

1

AMPS (Advanced Mobile Phone System)

Part 19

2

Calling line identification

Part 18

3

Carriers’ powers and immunities

Part 24, Schedule 3

4

Carrier licence conditions

Part 3, Schedule 1

5

Carriers

Part 3

6

Communications, protection of

Part 13

7

Customer service guarantee

Part 9

8

Decisions, review of

Part 29, Schedule 4

9

Defence requirements and disaster plans

Part 16

10

Emergency call services

Part 12

11

Enforcement

Part 28

12

Industry codes and industry standards

Part 6

13

Information-gathering powers

Part 27

14

Injunctions

Part 30

15

Inquiries, public

Part 25

16

International aspects

Part 20

17

Investigations

Part 26

18

Law enforcement agencies, co-operation with

Part 15

19

Liability, vicarious

Part 32

20

Local calls, untimed

Part 8

21

National interest matters

Part 14

22

Network units

Part 2

23

Numbering and electronic addressing

Part 22

24

Penalties, civil

Part 31

25

Performance of carriers and carriage service providers, monitoring of

Part 5

26

Pre-selection

Part 17

27

Residential customers, protection of

Part 11

28

Service provider rules

Part 4, Schedule 2

29

Service providers

Part 4

30

Standard agreements for the supply of carriage services

Part 23

31

Statements, false and misleading

Part 33

32

Technical regulation

Part 21

33

Telecommunications Industry Ombudsman

Part 10

34

Universal service regime

Part 7

7  Definitions

                   In this Act, unless the contrary intention appears:

ACA means the Australian Communications Authority.

ACA’s telecommunications functions has the same meaning as in the Australian Communications Authority Act 1997.

ACA’s telecommunications powers means the powers conferred on the ACA by or under:

                     (a)  this Act; or

                     (b)  Part XIC of the Trade Practices Act 1974; or

                     (c)  section 9 of the Australian Communications Authority Act 1997, in so far as that section relates to the ACA’s telecommunications functions.

ACCC means the Australian Competition and Consumer Commission.

ACCC’s telecommunications functions and powers means the functions and powers conferred on the ACCC by or under:

                     (a)  this Act; or

                     (b)  the Telstra Corporation Act 1991; or

                     (c)  Part XIB of the Trade Practices Act 1974; or

                     (d)  Part XIC of the Trade Practices Act 1974; or

                     (e)  any other provision of the Trade Practices Act 1974, in so far as that provision applies to a matter connected with telecommunications.

For this purpose, telecommunications means the carriage of communications by means of guided and/or unguided electromagnetic energy.

access, in relation to an emergency call service, has a meaning affected by section 18.

aircraft includes a balloon.

approved universal service plan means an approved universal service plan under Division 4 of Part 7.

Australia, when used in a geographical sense, includes the eligible Territories.

base station that is part of a terrestrial radiocommunications customer access network has the meaning given by section 34.

broadcasting service has the same meaning as in the Broadcasting Services Act 1992.

cabling licence means a licence granted under section 427.

carriage service means a service for carrying communications by means of guided and/or unguided electromagnetic energy.

carriage service intermediary means a person who is a carriage service provider under subsection 87(5).

carriage service provider has the meaning given by section 87.

carrier means the holder of a carrier licence.

carrier licence means a licence granted under section 56.

carry includes transmit, switch and receive.

Chairman means the Chairman of the ACA.

civil penalty provision means:

                     (a)  subsection 68(1); or

                     (b)  subsection 68(2); or

                     (c)  subsection 101(1); or

                     (d)  subsection 101(2); or

                     (e)  subsection 121(2); or

                      (f)  subsection 121(3); or

                     (g)  subsection 128(1); or

                     (h)  subsection 128(2); or

                      (i)  subsection 221(1); or

                      (j)  subsection 221(2); or

                     (k)  subsection 266(1); or

                      (l)  subsection 266(3).

communications includes any communication:

                     (a)  whether between persons and persons, things and things or persons and things; and

                     (b)  whether in the form of speech, music or other sounds; and

                     (c)  whether in the form of data; and

                     (d)  whether in the form of text; and

                     (e)  whether in the form of visual images (animated or otherwise); and

                      (f)  whether in the form of signals; and

                     (g)  whether in any other form; and

                     (h)  whether in any combination of forms.

connected, in relation to:

                     (a)  a telecommunications network; or

                     (b)  a facility; or

                     (c)  customer cabling; or

                     (d)  customer equipment;

includes connection otherwise than by means of physical contact, for example, a connection by means of radiocommunication.

connection permit means a permit issued under section 394.

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

content service has the meaning given by section 15.

content service provider has the meaning given by section 97.

controlled carriage service has the meaning given by section 14.

controlled facility has the meaning given by section 14.

controlled network has the meaning given by section 14.

customer cabling has the meaning given by section 20.

customer equipment has the meaning given by section 21.

data processing device means any article or material (for example, a disk) from which information is capable of being reproduced, with or without the aid of any other article or device.

defence purposes means any one or more of the following:

                     (a)  the operation of command or 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:

                              (i)  the Commonwealth; or

                             (ii)  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 matter specified in the regulations.

designated radiocommunications facility has the meaning given by section 31.

directory assistance services means services that are:

                     (a)  provided to an end-user of a standard telephone service to help the end-user find the number of another end-user of a standard telephone service; and

                     (b)  provided by an operator or by means of:

                              (i)  an automated voice response system; or

                             (ii)  another technology‑based system.

distinct places has the meaning given by section 36.

draft universal service plan means a draft universal service plan under Division 4 of Part 7.

eligible partnership means a partnership where each partner is a constitutional corporation.

eligible Territory means:

                     (a)  the Territory of Christmas Island; or

                     (b)  the Territory of Cocos (Keeling) Islands; or

                     (c)  an external Territory prescribed for the purposes of section 10.

emergency call contractor means a person who performs services for or on behalf of a recognised person who operates an emergency call service, but does not include a person who performs such services in the capacity of an employee of the person who operates the emergency call service.

Note:          Recognised person who operates an emergency call service is defined by section 19.

emergency call person means:

                     (a)  a recognised person who operates an emergency call service; or

                     (b)  an employee of such a person; or

                     (c)  an emergency call contractor; or

                     (d)  an employee of an emergency call contractor.

Note:          Recognised person who operates an emergency call service is defined by section 19.

emergency call service means a service for:

                     (a)  receiving and handling calls to an emergency service number; and

                     (b)  transferring such calls to:

                              (i)  a police force or service; or

                             (ii)  a fire service; or

                            (iii)  an ambulance service; or

                            (iv)  a service specified in the numbering plan for the purposes of this subparagraph; or

                             (v)  a service for despatching a force or service referred to in subparagraph (i), (ii), (iii) or (iv).

For the purposes of paragraph (b), transferring a call includes giving information in relation to the call for purposes connected with dealing with the matter or matters raised by the call.

emergency service number has the meaning given by section 466.

exempt network-user means:

                     (a)  a person:

                              (i)  who is entitled to use a network unit to supply a carriage service; and

                             (ii)  whose entitlement derives, directly or indirectly, from rights granted to a carrier; or

                     (b)  if:

                              (i)  a police force or service; or

                             (ii)  a fire service; or

                            (iii)  an ambulance service; or

                            (iv)  an emergency service specified in the regulations;

                            (the first force or service) uses a network unit for the sole or principal purpose of enabling either or both of the following:

                             (v)  communication between the members of the first force or service;

                            (vi)  communication between the members of the first force or service and the members of another force or service, where the other force or service is of a kind covered by subparagraph (i), (ii), (iii) or (iv);

                            the first force or service.

For the purposes of paragraph (b), an employee of a force or service is taken to be a member of the force or service.

facility means:

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

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

Federal Court means the Federal Court of Australia.

fixed radiocommunications link has the meaning given by section 35.

immediate circle has the meaning given by section 23.

import means import into Australia.

inspector has the meaning given by section 533.

intercell hand-over functions has the meaning given by section 33.

levy means levy imposed by the Telecommunications (Universal Service Levy) Act 1997.

line means a wire, cable, optical fibre, tube, conduit, waveguide or other physical medium used, or 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 30.

listed carriage service has the meaning given by section 16.

member means a member of the ACA (and does not include an associate member).

National Relay Service means the service operated by the Australian Communication Exchange from 30 May 1995 for the purpose of facilitating the transfer of messages between text telephone users and voice telephone users.

national universal service provider has the meaning given by section 150.

net cost area has the meaning given by section 179 or 181.

network unit has the meaning given by Division 2 of Part 2.

nominated carrier means a carrier in respect of whom a nominated carrier declaration is in force.

nominated carrier declaration means a declaration under section 81.

numbering plan has the meaning given by section 455.

owner, in relation to a network unit, means a person who legally owns the unit (whether alone or together with one or more other persons).

participating carrier has the meaning given by section 146.

person includes a partnership.

point-to-multipoint service means a carriage service which allows a person to transmit a communication to more than one end-user simultaneously.

public body means:

                     (a)  the Commonwealth, a State or a Territory; or

                     (b)  an authority, or institution, of the Commonwealth, a State or a Territory; or

                     (c)  an incorporated company all the stock or shares in the capital of which is beneficially owned by one of the following:

                              (i)  the Commonwealth;

                             (ii)  a State;

                            (iii)  a Territory; or

                     (d)  an incorporated company limited by guarantee, where the interests and rights of the members in or in relation to the company are beneficially owned by one of the following:

                              (i)  the Commonwealth;

                             (ii)  a State;

                            (iii)  a Territory.

public mobile telecommunications service has the meaning given by section 32.

radiocommunication has the same meaning as in the Radiocommunications Act 1992.

radiocommunications receiver has the same meaning as in the Radiocommunications Act 1992.

radiocommunications transmitter has the same meaning as in the Radiocommunications Act 1992.

recognised person who operates an emergency call service has the meaning given by section 19.

recognised testing authority has the meaning given by section 409.

record-keeping rule means a rule under section 529.

regional universal service provider has the meaning given by section 150.

satellite-based facility means a radiocommunications transmitter, or a radiocommunications receiver, in a satellite.

service provider has the meaning given by section 86.

service provider rules has the meaning given by section 98.

standard telephone service has the meaning given by section 17.

telecommunications industry includes an industry that involves:

                     (a)  carrying on business as a carrier; or

                     (b)  carrying on business as a carriage service provider; or

                     (c)  supplying goods or services for use in connection with the supply of a listed carriage service; or

                     (d)  supplying a content service using a listed carriage service; or

                     (e)  manufacturing or importing customer equipment or customer cabling; or

                      (f)  installing, maintaining, operating or providing access to:

                              (i)  a telecommunications network; or

                             (ii)  a facility;

                            used to supply a listed carriage service.

Telecommunications Industry Ombudsman means the Telecommunications Industry Ombudsman appointed under the Telecommunications Industry Ombudsman scheme.

Telecommunications Industry Ombudsman scheme means the scheme referred to in section 246.

telecommunications network means a system, or series of systems, that carries, or is capable of carrying, communications by means of guided and/or unguided electromagnetic energy.

Telstra has the same meaning as in the Telstra Corporation Act 1991.

this Act includes the regulations.

universal service obligation has the meaning given by section 149.

universal service provider means:

                     (a)  the national universal service provider; or

                     (b)  a regional universal service provider.

vessel means a vessel or boat of any description, and includes:

                     (a)  an air-cushion vehicle; and

                     (b)  any floating structure.

8  Crown to be bound

             (1)  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.

             (2)  This Act does not make the Crown liable to a pecuniary penalty or to be prosecuted for an offence.

             (3)  The protection in subsection (2) does not apply to an authority of the Crown.

9  Extra-territorial application

                   This Act applies both within and outside Australia.

10  Extension to external Territories

                   This Act extends to:

                     (a)  the Territory of Christmas Island; and

                     (b)  the Territory of Cocos (Keeling) Islands; and

                     (c)  such other external Territories (if any) as are prescribed.

11  Extension to adjacent areas

             (1)  This Act applies in relation to the adjacent areas of:

                     (a)  each of the States; and

                     (b)  each of the eligible Territories;

as if references in this Act to Australia included references to those adjacent areas. This subsection has effect subject to subsection (2).

             (2)  The application of this Act in accordance with subsection (1) in relation to an adjacent area extends only in relation to acts, matters and things touching, concerning, arising out of or connected with:

                     (a)  the exploration of the continental shelf of Australia; or

                     (b)  the exploitation of the resources of the continental shelf of Australia.

             (3)  The application of this Act in accordance with subsection (1) in relation to an adjacent area 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 for a reason touching, concerning, arising out of or connected with:

                     (a)  the exploration of the continental shelf of Australia; or

                     (b)  the exploitation of the resources of the continental shelf of Australia.

             (4)  Subsection (3) does not, by implication, limit subsection (2).

             (5)  In this section:

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

continental shelf has the same meaning as in the Seas and Submerged Lands Act 1973.

12  Act subject to Radiocommunications Act

             (1)  This Act has effect subject to the Radiocommunications Act 1992.

             (2)  However, to avoid doubt, the fact that a person is authorised to do something under a licence under the Radiocommunications Act 1992 does not entitle the person to do that thing if the person is prohibited by or under this Act from doing it, unless a condition of the licence requires the person to do it.

13  Continuity of partnerships

                   For the purposes of this Act, a change in the composition of a partnership does not affect the continuity of the partnership.

14  Controlled carriage services, controlled networks and controlled facilities

Controlled carriage services

             (1)  For the purposes of this Act, if:

                     (a)  a carrier or carriage service provider supplies, or proposes to supply, a carriage service; and

                     (b)  the carriage service involves, or will involve, the use of a controlled network, or a controlled facility, of the carrier or of the provider, as the case may be;

the carriage service is a controlled carriage service of the carrier or the provider, as the case may be.

Controlled networks

             (2)  For the purposes of this Act, if:

                     (a)  a carrier or carriage service provider operates a telecommunications network; and

                     (b)  the network satisfies the geographical test set out in subsection (4);

the network is a controlled network of the carrier or the provider, as the case may be.

Controlled facilities

             (3)  For the purposes of this Act, if:

                     (a)  a carrier or carriage service provider operates a facility; and

                     (b)  the facility satisfies the geographical test set out in subsection (4);

the facility is a controlled facility of the carrier or provider, as the case may be.

Geographical test

             (4)  For the purposes of this section, a telecommunications network, or a facility, satisfies the geographical test if:

                     (a)  the whole or any part of the network or facility, as the case requires, is, or will be, located in Australia; or

                     (b)  all of the following conditions are satisfied:

                              (i)  a person, or a group of persons, operates the network or the facility, as the case requires;

                             (ii)  the person, or at least one of the members of the group, carries on, or will carry on, a telecommunications-related business wholly or partly in Australia;

                            (iii)  the network, or the facility, as the case requires, is used, or will be used, to supply a listed carriage service, or a service that is ancillary or incidental to such a service.

Definition

             (5)  In this section:

telecommunications-related business means a business that consists of, or includes:

                     (a)  supplying a carriage service; or

                     (b)  supplying goods or services for use in connection with the supply of a carriage service; or

                     (c)  supplying a content service; or

                     (d)  installing, maintaining, operating or providing access to:

                              (i)  a telecommunications network; or

                             (ii)  a facility.

15  Content service

             (1)  For the purposes of this Act, a content service is:

                     (a)  a broadcasting service; or

                     (b)  an on-line information service (for example, a dial-up information service); or

                     (c)  an on-line entertainment service (for example, a video‑on‑demand service or an interactive computer game service); or

                     (d)  any other on-line service (for example, an education service provided by a State or Territory government); or

                     (e)  a service of a kind specified in a determination made by the Minister for the purposes of this paragraph.

             (2)  The Minister may make a written determination for the purposes of paragraph (1)(e).

             (3)  A determination made for the purposes of paragraph (1)(e) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

16  Listed carriage services

             (1)  For the purposes of this Act, the following carriage services are listed carriage services:

                     (a)  a carriage service between a point in Australia and one or more other points in Australia;

                     (b)  a carriage service between a point and one or more other points, where the first-mentioned point is in Australia and at least one of the other points is outside Australia;

                     (c)  a carriage service between a point and one or more other points, where the first-mentioned point is outside Australia and at least one of the other points is in Australia.

             (2)  For the purposes of this section, a point includes a mobile or potentially mobile point, whether on land, underground, in the atmosphere, in outer space, underwater, at sea or anywhere else.

             (3)  For the purposes of this section, a point that is:

                     (a)  in the atmosphere; and

                     (b)  in or below the stratosphere; and

                     (c)  above Australia;

is taken to be a point in Australia.

             (4)  For the purposes of this section, a point that is:

                     (a)  on a satellite; and

                     (b)  above the stratosphere;

is taken to be a point outside Australia.

17  Standard telephone service

             (1)  A reference in a particular provision of this Act to a standard telephone service is a reference to a carriage service for each of the following purposes:

                     (a)  the purpose of voice telephony;

                     (b)  if:

                              (i)  voice telephony is not practical for a particular end‑user with a disability (for example, because the user has a hearing impairment); and

                             (ii)  another form of communication that is equivalent to voice telephony (for example, communication by means of a teletypewriter) would be required to be supplied to the end-user in order to comply with the Disability Discrimination Act 1992;

                            the purpose of that form of communication;

                     (c)  a purpose declared by the regulations to be a designated purpose for the purposes of that provision;

where:

                     (d)  the service passes the connectivity test set out in subsection (2); and

                     (e)  to the extent that the service is for the purpose referred to in paragraph (a)—the service has the characteristics (if any) declared by the regulations to be the designated characteristics in relation to that service for the purposes of that provision; and

                      (f)  to the extent that the service is for the purpose referred to in paragraph (b)—the service has the characteristics (if any) declared by the regulations to be the designated characteristics in relation to that service for the purposes of that provision; and

                     (g)  to the extent that the service is for a particular purpose referred to in paragraph (c)—the service has the characteristics (if any) declared by the regulations to be the designated characteristics in relation to that service for the purposes of that provision.

             (2)  A service passes the connectivity test if an end-user supplied with the service for a purpose mentioned in paragraph (1)(a), (b) or (c) is ordinarily able to communicate, by means of the service, with each other end-user who is supplied with the same service for the same purpose, whether or not the end-users are connected to the same telecommunications network.

             (3)  The following are examples of purposes that could be declared by regulations made for the purposes of paragraph (1)(c):

                     (a)  the purpose of the carriage of data;

                     (b)  the purpose of tone signalling.

             (4)  In making a recommendation to the Governor-General at a particular time about the making of regulations for the purposes of paragraph (1)(c), the Minister must have regard to the following matters:

                     (a)  whether a carriage service for the purpose proposed to be declared by the regulations can be supplied using the same infrastructure as is, at that time, being used by universal service providers to supply a standard telephone service for the purpose referred to in paragraph (1)(a);

                     (b)  such other matters (if any) as the Minister considers relevant.

             (5)  This section does not prevent a characteristic declared by regulations made for the purposes of paragraph (1)(e), (f) or (g) from being a performance characteristic.

18  Access to an emergency call service

                   For the purposes of this Act, a person is taken not to have access to an emergency call service unless, in the event that the person attempts to place a call to the relevant emergency service number, the call can be established and maintained.

19  Recognised person who operates an emergency call service

             (1)  A reference in this Act to a recognised person who operates an emergency call service is a reference to a person who:

                     (a)  operates an emergency call service; and

                     (b)  is specified, in a written determination made by the ACA for the purposes of this paragraph, as:

                              (i)  a national operator of emergency call services; or

                             (ii)  a regional operator of emergency call services.

             (2)  A copy of a determination under paragraph (1)(b) is to be published in the Gazette.

20  Customer cabling

             (1)  For the purposes of this Act, customer cabling means a line that, under the regulations, is treated as customer cabling.

             (2)  Regulations made for the purposes of subsection (1) may deal with a matter by reference to the boundary of a telecommunications network.

Note:          Boundary of a telecommunications network is defined by section 22.

             (3)  Subsection (2) does not, by implication, limit subsection (1).

             (4)  If no regulations are in force for the purposes of subsection (1), then, for the purposes of this Act, customer cabling means a line that is used, installed ready for use or intended for use on the customer side of the boundary of a telecommunications network.

Note:          Boundary of a telecommunications network is defined by section 22.

21  Customer equipment

             (1)  For the purposes of this Act, customer equipment means:

                     (a)  any equipment, apparatus, tower, mast, antenna or other structure or thing; or

                     (b)  any system (whether software-based or otherwise);

that:

                     (c)  is used, installed ready for use or intended for use in connection with a carriage service; and

                     (d)  under the regulations, is treated as customer equipment;

but does not include a line.

             (2)  Regulations made for the purposes of subsection (1) may deal with a matter by reference to the boundary of a telecommunications network.

Note:          Boundary of a telecommunications network is defined by section 22.

             (3)  Subsection (2) does not, by implication, limit subsection (1).

             (4)  If no regulations are in force for the purposes of subsection (1), then, for the purposes of this Act, customer equipment means:

                     (a)  any equipment, apparatus, tower, mast, antenna or other structure or thing that is used, installed ready for use or intended for use on the customer side of the boundary of a telecommunications network; or

                     (b)  any system (whether software-based or otherwise) that is used, installed ready for use or intended for use on the customer side of the boundary of a telecommunications network;

but does not include:

                     (c)  a line; or

                     (d)  equipment of a kind specified in regulations made for the purposes of this paragraph; or

                     (e)  an apparatus, tower, mast, antenna or other structure or thing that is of a kind specified in regulations made for the purposes of this paragraph; or

                      (f)  a system (whether software-based or otherwise) that is of a kind specified in regulations made for the purposes of this paragraph.

Note :         Boundary of a telecommunications network is defined by section 22.

22  Customer cabling and customer equipment—boundary of a telecommunications network

             (1)  For the purposes of sections 20 and 21, the boundary of a telecommunications network is to be ascertained in accordance with the regulations.

             (2)  Regulations made for the purposes of subsection (1) may deal with a matter by reference to any or all of the following:

                     (a)  the terms of an agreement between 2 or more carriers, where the agreement is entered into for the purposes of those regulations;

                     (b)  the terms of an agreement between 2 or more carriage service providers, where the agreement is entered into for the purposes of those regulations;

                     (c)  the terms of an agreement between a carrier and a carriage service provider, where the agreement is entered into for the purposes of those regulations;

                     (d)  the terms of an agreement between a carrier and a customer of the carrier, where the agreement is entered into for the purposes of those regulations;

                     (e)  the terms of an agreement between a carriage service provider and a customer of the provider, where the agreement is entered into for the purposes of those regulations.

             (3)  Subsection (2) does not, by implication, limit subsection (1).

             (4)  If no regulations are in force for the purposes of subsection (1), then, for the purposes of sections 20 and 21, the boundary of a telecommunications network is:

                     (a)  in a case where a telecommunications network is used to supply a carriage service to an end-user in a building by means of a line that enters the building—the point agreed between the customer and the carrier or carriage service provider who operates the telecommunications network, or, failing agreement:

                              (i)  if there is a main distribution frame in the building and the line is connected to the frame—the side of the frame nearest to the end-user; or

                             (ii)  if subparagraph (i) does not apply but the line is connected to a network termination device located in, on or within close proximity to, the building—the side of the device nearest to the end-user; or

                            (iii)  if neither subparagraph (i) nor (ii) applies but the line is connected to one or more sockets in the building—the side nearest to the end-user of the first socket after the building entry point; or

                     (b)  in a case where a telecommunications network is used to supply a carriage service to an end-user by means of a satellite-based facility that transmits to, or receives transmissions from, the point where the end user is located—the outer surface of the satellite-based facility; or

                     (c)  in a case where:

                              (i)  a telecommunications network is used to supply a carriage service to an end-user; and

                             (ii)  paragraphs (a) and (b) do not apply;

                            the outer surface of the fixed facility nearest to the end-user, where the facility is used, installed ready for use or intended for use to supply the carriage service.

             (5)  If, immediately before 1 July 1997, the boundary of a telecommunications network used to supply a standard telephone service to an end-user in a building by means of a line that enters the building is the side of a main distribution frame, or a telephone socket, nearest to the end-user, paragraph (4)(a) has effect, on and after 1 July 1997, as if the customer and the carrier or carriage service provider who operates the network had agreed to the boundary at that point.

             (6)  Subsection (5) does not prevent the customer and the carrier or carriage service provider agreeing to a boundary at a different point.

             (7)  For the purposes of subsection (4), the building entry point is the point at which a line that is used to provide a carriage service to an end-user in a building meets the outer surface of that building, immediately before entering the building.

             (8)  In this section:

building includes a structure, a caravan and a mobile home.

23  Immediate circle

             (1)  For the purposes of this Act, a person’s immediate circle consists of the person, together with the following persons:

                     (a)  if the person is an individual—an employee of the individual;

                     (b)  if the person is a partnership—an employee of the partnership;

                     (c)  if the person is a body corporate:

                              (i)  an officer of the body corporate;

                             (ii)  if another body corporate is related to the first‑mentioned body corporate (within the meaning of the Corporations Law)—that other body corporate and an officer of that other body corporate;

                     (d)  if the person is the Commonwealth:

                              (i)  an authority or institution of the Commonwealth (other than an authority or institution that carries on a business as a core function) and a constituent member or an employee of such an authority or institution;

                             (ii)  an officer or employee of the Commonwealth;

                            (iii)  a member of the Australian Defence Force;

                            (iv)  a member of the Australian Federal Police;

                             (v)  a member of the Parliament and a member of the staff of a member of the Parliament;

                            (vi)  a person who holds or performs the duties of an office under the Constitution or a law of the Commonwealth;

                     (e)  if the person is a State:

                              (i)  an authority or institution of the State (other than an authority or institution that carries on a business as a core function) and a constituent member or an employee of such an authority or institution;

                             (ii)  an officer or employee of the State;

                            (iii)  a member of the police force of the State;

                            (iv)  a member of the Parliament of the State and a member of the staff of a member of the Parliament of the State;

                             (v)  a person who holds or performs the duties of an office under a law of the State;

                      (f)  if the person is a Territory:

                              (i)  an authority or institution of the Territory (other than an authority or institution that carries on a business as a core function) and a constituent member or an employee of such an authority or institution;

                             (ii)  an officer or employee of the Territory;

                            (iii)  a member of the police force of the Territory;

                            (iv)  a member of the Legislative Assembly of the Territory and a member of the staff of a member of the Legislative Assembly of the Territory;

                             (v)  a person who holds or performs the duties of an office under a law of the Territory;

                     (g)  if the person is an authority or institution of the Commonwealth (other than an authority or institution that carries on a business as a core function):

                              (i)  a constituent member or an employee of the authority or institution;

                             (ii)  the Commonwealth;

                            (iii)  an officer or employee of the Commonwealth;

                            (iv)  a member of the Australian Defence Force;

                             (v)  a member of the Australian Federal Police;

                            (vi)  a member of the Parliament and a member of the staff of a member of the Parliament;

                           (vii)  a person who holds or performs the duties of an office under the Constitution or a law of the Commonwealth;

                           (viii)  another authority or institution of the Commonwealth (other than an authority or institution that carries on a business as a core function) and a constituent member or an employee of the other authority or institution;

                     (h)  if the person is an authority or institution of the Commonwealth, being an authority or institution that carries on a business as a core function—a constituent member or an employee of the authority or institution;

                      (i)  if the person is an authority or institution of a State (other than an authority or institution that carries on a business as a core function):

                              (i)  a constituent member or an employee of the authority or institution;

                             (ii)  the State;

                            (iii)  an officer or employee of the State;

                            (iv)  a member of the police force of the State;

                             (v)  a member of the Parliament of the State and a member of the staff of a member of the Parliament of the State;

                            (vi)  a person who holds or performs the duties of an office under a law of the State;

                           (vii)  another authority or institution of the State (other than an authority or institution that carries on a business as a core function) and a constituent member or an employee of the other authority or institution;

                      (j)  if the person is an authority or institution of a State, being an authority or institution that carries on a business as a core function—a constituent member or an employee of the authority or institution;

                     (k)  if the person is an authority or institution of a Territory (other than an authority or institution that carries on a business as a core function):

                              (i)  a constituent member or an employee of the authority or institution;

                             (ii)  the Territory;

                            (iii)  an officer or employee of the Territory;

                            (iv)  a member of the police force of the Territory;

                             (v)  a member of the Legislative Assembly of the Territory and a member of the staff of a member of the Legislative Assembly of the Territory;

                            (vi)  a person who holds or performs the duties of an office under a law of the Territory;

                           (vii)  another authority or institution of the Territory (other than an authority or institution that carries on a business as a core function) and a constituent member or an employee of the other authority or institution;

                      (l)  if the person is an authority or institution of a Territory, being an authority or institution that carries on a business as a core function—a constituent member or employee of the authority or institution;

                    (m)  if the person is a tertiary education institution:

                              (i)  a member of the governing body of the tertiary education institution;

                             (ii)  an officer or employee of the tertiary education institution;

                            (iii)  a student of the tertiary education institution;

                     (n)  a person specified in a determination under subsection (2).

             (2)  The Minister may make a written determination specifying persons for the purposes of paragraph (1)(n).

             (3)  A determination under subsection (2) may be unconditional or subject to such conditions (if any) as are specified in the determination.

             (4)  Paragraphs (1)(a) to (m) (inclusive) do not, by implication, limit subsections (2) and (3).

             (5)  The Minister may make a written determination providing that a specified authority or specified institution is taken to carry on a business as a core function for the purposes of subsection (1).

             (6)  The Minister may make a written determination providing that a specified authority or specified institution is taken not to carry on a business as a core function for the purposes of subsection (1).

             (7)  A determination under subsection (2), (5) or (6) has effect accordingly.

             (8)  A determination under subsection (2), (5) or (6) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

             (9)  For the purposes of this section, a person who holds or performs the duties of the office of Administrator of the Northern Territory is taken to be an officer of that Territory.

           (10)  For the purposes of this section, the Australian Federal Police is taken to be the police force of the Australian Capital Territory.

           (11)  In this section:

core function, in relation to an authority or institution, means a function of the authority or institution other than a secondary or incidental function.

director includes a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, a State or a Territory.

executive officer, in relation to a body corporate, means a person, by whatever name called and whether or not a director of the body, who is concerned in, or takes part in, the management of the body.

officer, in relation to a body corporate, includes a director, secretary, executive officer or employee of the body.

tertiary education institution means:

                     (a)  a higher education institution (within the meaning of the Student and Youth Assistance Act 1973); or

                     (b)  a technical and further education institution (within the meaning of that Act).

24  Extended meaning of use

                   Unless the contrary intention appears, a reference in this Act to the use of a thing is a reference to the use of the thing either:

                     (a)  in isolation; or

                     (b)  in conjunction with one or more other things.

Part 2—Network units

Division 1—Simplified outline

25  Simplified outline

                   The following is a simplified outline of this Part:

     The object of this Part is to define the expression network unit.

     There are 4 types of network unit:

               (a)     a single line link connecting distinct places in Australia, where the line link meets certain minimum distance requirements;

               (b)     multiple line links connecting distinct places in Australia, where the line links meet certain minimum distance requirements;

               (c)     a designated radiocommunications facility;

               (d)     a facility specified in a Ministerial determination.

Division 2—Basic definition

26  Single line links connecting distinct places in Australia

             (1)  If:

                     (a)  a line link connects distinct places in Australia; and

                     (b)  the distinct places are at least the statutory distance apart;

the line link is a network unit.

             (2)  For the purposes of this section, the statutory distance is:

                     (a)  500 metres; or

                     (b)  if a longer distance, not exceeding 50 kilometres, is specified in the regulations—that longer distance.

27  Multiple line links connecting distinct places in Australia

             (1)  If:

                     (a)  the same person owns, or the same persons own, 2 or more line links; and

                     (b)  each of those line links connects distinct places in Australia; and

                     (c)  the aggregate of the distances between the distinct places is more than the statutory distance;

each of those line links is a network unit.

Note:          Statutory distance is defined by subsection (3).

             (2)  If:

                     (a)  the following conditions are satisfied in relation to 2 or more line links:

                              (i)  the owners of the line links are bodies corporate;

                             (ii)  the owners of the line links are all members of the same related company group; and

                     (b)  each of those line links connects distinct places in Australia; and

                     (c)  the aggregate of the distances between the distinct places is more than the statutory distance;

each of those line links is a network unit.

Note:          Statutory distance is defined by subsection (3).

             (3)  For the purposes of this section, the statutory distance is:

                     (a)  5 kilometres; or

                     (b)  if a longer distance, not exceeding 500 kilometres, is specified in the regulations—that longer distance.

             (4)  In this section:

owner means legal or beneficial owner, and own has a corresponding meaning.

related company group means a group of 2 or more bodies corporate, where each member of the group is related to each other member of the group.

             (5)  For the purposes of this section, the question whether a body corporate is related to another body corporate is to be determined in the same manner as that question is determined under the Corporations Law.

28  Designated radiocommunications facility

             (1)  If a designated radiocommunications facility is used, or is for use, to supply a carriage service between a point in Australia and one or more other points in Australia, the facility is a network unit.

             (2)  It does not matter whether the supply involves:

                     (a)  the use of a satellite; or

                     (b)  the use of a line or other facility outside Australia.

             (3)  For the purposes of this section, a point includes a mobile or potentially mobile point, whether on land, underground, in the atmosphere, in outer space, underwater, at sea or anywhere else.

             (4)  For the purposes of this section, a point that is:

                     (a)  in the atmosphere; and

                     (b)  in or below the stratosphere; and

                     (c)  above Australia;

is taken to be a point in Australia.

             (5)  For the purposes of this section, a point that is:

                     (a)  on a satellite; and

                     (b)  above the stratosphere;

is taken to be a point outside Australia.

29  Facilities specified in Ministerial determination

             (1)  The Minister may, by written instrument, determine that a specified facility is a network unit for the purposes of this Act.

             (2)  The determination has effect accordingly.

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

             (4)  To avoid doubt, nothing in the other provisions of this Part limits the power conferred by subsection (1).

Division 3—Related definitions

30  Line links

             (1)  A line constitutes a line link.

             (2)  If:

                     (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.

31  Designated radiocommunications facility

             (1)  A reference in this Act to a designated radiocommunications facility is a reference to:

                     (a)  a base station used, or for use, to supply a public mobile telecommunications service; or

                     (b)  a base station that is part of a terrestrial radiocommunications customer access network; or

                     (c)  a fixed radiocommunications link; or

                     (d)  a satellite-based facility; or

                     (e)  a radiocommunications transmitter of a kind specified in a determination under subsection (2); or

                      (f)  a radiocommunications receiver of a kind specified in a determination under subsection (3);

but does not include a reference to:

                     (g)  a base station of a kind declared under subsection (5) to be exempt from this section; or

                     (h)  a fixed radiocommunications link of a kind declared under subsection (5) to be exempt from this section; or

                      (i)  a satellite-based facility of a kind declared under subsection (5) to be exempt from this section.

Note 1:       Public mobile telecommunications service is defined by section 32.

Note 2:       Base station that is part of a terrestrial radiocommunications customer access network is defined by section 34.

Note 3:       Fixed radiocommunications link is defined by section 35.

Note 4:       Satellite-based facility is defined by section 7.

             (2)  The Minister may make a written determination for the purposes of paragraph (1)(e).

             (3)  The Minister may make a written determination for the purposes of paragraph (1)(f).

             (4)  A determination under subsection (2) or (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

             (5)  The Minister may make a written declaration for the purposes of paragraph (1)(g), (h) or (i).

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

             (7)  To avoid doubt, nothing in the other provisions of this Part limits a power conferred by subsection (2), (3) or (5).

32  Public mobile telecommunications service

             (1)  For the purposes of this Act, if:

                     (a)  an end-user can use a carriage service while moving continuously between places; and

                     (b)  the 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

                     (c)  the service is supplied by use of a telecommunications network that has intercell hand-over functions; and

                     (d)  the service is not an exempt service (as defined by subsection (2), (3) or (4));

the service is a public mobile telecommunications service.

             (2)  For the purposes of this section, a carriage service is an exempt service if:

                     (a)  the service is supplied by means of a telecommunications network (a primary network) that is connected to one or more line links or other facilities that, apart from this section, are eligible network units; and

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

                     (c)  the supply of carriage services between such equipment and equipment connected to the network units 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 the network units and other such equipment.

             (3)  For the purposes of this section, a carriage service is an exempt service if the service is:

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

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

             (4)  For the purposes of this section, a carriage service is an exempt service if all of the end‑users of the service are located at the same distinct place.

             (5)  In this section:

eligible network unit means a network unit:

                     (a)  that is owned by one or more carriers; or

                     (b)  in relation to which a nominated carrier declaration is in force.

33  Intercell hand-over functions

             (1)  For the purposes of this Act, a telecommunications network is taken to have intercell hand-over functions if, and only if:

                     (a)  the facilities of the network include at least 2 base stations each of which transmits and receives signals to and from customer equipment (mobile equipment) that is:

                              (i)  used for or in relation to the supply of an eligible mobile telecommunications service; and

                             (ii)  located within a particular area (a cell); and

                     (b)  the network includes the functions necessary to do the following while the network 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)  For the purposes of this section, a carriage service is an eligible mobile telecommunications service if:

                     (a)  an end-user can use it while moving continuously between places; and

                     (b)  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.

34  When a base station is part of a terrestrial radiocommunications customer access network

             (1)  For the purposes of this Act, a base station is part of a terrestrial radiocommunications customer access network if, and only if:

                     (a)  the base station is part of a telecommunications network; and

                     (b)  the base station is not an exempt base station (as defined by subsection (2)); and

                     (c)  the base station is used, or for use, in connection with the supply of a carriage service; 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)  the service is wholly or principally used, or wholly or principally for use, by each end‑user:

                              (i)  at premises occupied or used by the end‑user; or

                             (ii)  in the immediate vicinity of those premises; and

                      (f)  the network does not have intercell hand‑over functions; and

                     (g)  the conditions (if any) specified in the regulations are satisfied; and

                     (h)  the network is not an exempt network (as defined by subsection (3)).

             (2)  For the purposes of paragraph (1)(b), a base station is an exempt base station if the sole use of the base station is use by a broadcaster to:

                     (a)  supply broadcasting services to the public; or

                     (b)  supply a secondary carriage service by means of the main carrier signal of a primary broadcasting service;

or both.

             (3)  For the purposes of paragraph (1)(h), a network is an exempt network if:

                     (a)  the network is used, or for use, for the sole purpose of supplying carriage services on a non‑commercial basis; or

                     (b)  the network is of a kind specified in the regulations.

             (4)  In this section:

broadcaster means:

                     (a)  the Australian Broadcasting Corporation; or

                     (b)  the Special Broadcasting Service Corporation; or

                     (c)  the holder of a licence under the Broadcasting Services Act 1992; or

                     (d)  a person who provides a broadcasting service under a class licence under the Broadcasting Services Act 1992.

35  Fixed radiocommunications link

             (1)  For the purposes of this Act, a fixed radiocommunications link is a facility, or a combination of facilities, where:

                     (a)  the facility or combination is used, or for use, in connection with the supply of a carriage service between 2 or more fixed points by means of radiocommunication; and

                     (b)  some or all of the communications carried by means of the facility or combination have the characteristic of double‑ended interconnection (as defined by subsection (3)); and

                     (c)  the facility or combination does not consist of:

                              (i)  one or more base stations that are part of a terrestrial radiocommunications customer access network; or

                             (ii)  one or more base stations that would be part of such a network if paragraph 34(1)(h) had not been enacted.

             (2)  For the purposes of this section, a fixed point is a fixed point on:

                     (a)  land; or

                     (b)  a building or structure on land.

             (3)  For the purposes of this section, if:

                     (a)  a communication is carried over a line link or other facility that, apart from this section, is an eligible network unit; and

                     (b)  the communication is then carried (immediately or with a transmission delay of not longer than 30 seconds), by means of radiocommunication, between 2 or more fixed points; and

                     (c)  the communication is then carried (immediately or with a transmission delay of not longer than 30 seconds) over another line link or other facility that, apart from this section, is an eligible network unit;

the communication referred to in paragraph (b) has the characteristic of double‑ended interconnection.

             (4)  In this section:

eligible network unit means a network unit:

                     (a)  that is owned by one or more carriers; or

                     (b)  in relation to which a nominated carrier declaration is in force.

Division 4—Distinct places

36  Distinct places—basic rules

             (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 37.

             (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 38 and:

                     (a)  the same person or persons is or are the principal user (as defined by section 39) of all the properties that together constitute that combined area; or

                     (b)  because of a determination in force under section 40, 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 eligible Territory.

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

37  Properties

             (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; and

                     (c)  the title to the area is defined by reference to geographical coordinates.

             (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)  The regulations may prescribe the circumstances in which an area of land in relation to which there is a single freehold or leasehold title is not to constitute a property for the purposes of this Division.

             (5)  Despite paragraph (1)(c), the regulations may prescribe the circumstances in which an area of land, the title to which is defined otherwise than by reference to geographical coordinates, is a property.

             (6)  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.

38  Combined areas

             (1)  2 contiguous properties form a combined area.

             (2)  If:

                     (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.

39  Principal user of a property

             (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.

40  Eligible combined areas

             (1)  The Minister may, by writing, determine that specified combined areas are eligible combined areas for the purposes of paragraph 36(3)(b).

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

Part 3—Carriers

Division 1—Simplified outline

41  Simplified outline

                   The following is a simplified outline of this Part:

     The owner of a network unit that is used to supply carriage services to the public must hold a carrier licence unless:

               (a)     a nominated carrier declaration is in force in relation to the network unit; or

               (b)     an exemption applies.

     Carrier licences are granted by the ACA.

     The holder of a carrier licence is known as a carrier.

     If responsibility for a network unit is transferred from the owner of the unit to a carrier, the ACA may make a nominated carrier declaration that declares the carrier to be the nominated carrier in relation to the unit.

     Carrier licences are subject to conditions.

Division 2—Prohibitions relating to carriers

42  Network unit not to be used without carrier licence or nominated carrier declaration

             (1)  If there is only one owner of a network unit, the owner of the network unit must not use the unit, either alone or jointly with one or more other persons, to supply a carriage service to the public, unless:

                     (a)  the owner holds a carrier licence; or

                     (b)  a nominated carrier declaration is in force in relation to the unit.

             (2)  If there is only one owner of a network unit, the owner of the network unit must not allow or permit another person to use the unit to supply a carriage service to the public unless:

                     (a)  the owner holds a carrier licence; or

                     (b)  a nominated carrier declaration is in force in relation to the unit.

             (3)  If there are 2 or more owners of a network unit, an owner of the network unit must not use the unit, either alone or jointly with one or more other persons, to supply a carriage service to the public, unless:

                     (a)  the owner holds a carrier licence; or

                     (b)  a nominated carrier declaration is in force in relation to the unit.

             (4)  If there are 2 or more owners of a network unit, an owner of the network unit must not, either alone or together with one or more other owners, allow or permit another person to use the unit to supply a carriage service to the public unless:

                     (a)  the owner holds a carrier licence; or

                     (b)  a nominated carrier declaration is in force in relation to the unit.

             (5)  A person who intentionally or recklessly contravenes subsection (1), (2), (3) or (4) is guilty of an offence punishable on conviction by a fine not exceeding 20,000 penalty units.

Note:          See also sections 4AA and 4B of the Crimes Act 1914.

43  Continuing offences

                   A person who contravenes section 42 is guilty of a separate offence in respect of each day (including a day of a conviction under this section or any later day) during which the contravention continues.

44  Supply to the public

             (1)  This section sets out the circumstances in which a network unit is taken, for the purposes of section 42, to be used to supply a carriage service to the public.

             (2)  If:

                     (a)  there is only one owner of a network unit; and

                     (b)  no nominated carrier declaration is in force in relation to the unit; and

                     (c)  any of the following conditions is satisfied:

                              (i)  the unit is used for the carriage of communications between 2 end‑users, where each end‑user is outside the immediate circle of the owner of the unit;

                             (ii)  the unit is used to supply point‑to‑multipoint services to end‑users, where at least one end‑user is outside the immediate circle of the owner of the unit;

                            (iii)  the unit is used to supply designated content services (other than point‑to‑multipoint services) to one or more end‑users, where at least one end‑user is outside the immediate circle of the owner of the unit;

the unit is used to supply a carriage service to the public.

             (3)  If:

                     (a)  there are 2 or more owners of a network unit; and

                     (b)  no nominated carrier declaration is in force in relation to the unit; and

                     (c)  any of the following conditions is satisfied:

                              (i)  the unit is used for the carriage of communications between 2 end‑users, where each end‑user is outside the overlap of the immediate circles of the owners of the unit;

                             (ii)  the unit is used to supply point‑to‑multipoint services to end‑users, where at least one end‑user is outside the overlap of the immediate circles of the owners of the unit;

                            (iii)  the unit is used to supply designated content services (other than point‑to‑multipoint services) to one or more end‑users, where at least one end‑user is outside the overlap of the immediate circles of the owners of the unit;

the unit is used to supply a carriage service to the public.

             (4)  If:

                     (a)  a nominated carrier declaration is in force in relation to a network unit; and

                     (b)  any of the following conditions is satisfied:

                              (i)  the unit is used for the carriage of communications between 2 end‑users, where each end‑user is outside the immediate circle of the nominated carrier in relation to the unit;

                             (ii)  the unit is used to supply point‑to‑multipoint services to end‑users, where at least one end‑user is outside the immediate circle of the nominated carrier in relation to the unit;

                            (iii)  the unit is used to supply designated content services (other than point‑to‑multipoint services) to one or more end‑users, where at least one end‑user is outside the immediate circle of the nominated carrier in relation to the unit;

the unit is used to supply a carriage service to the public.

             (5)  For the purposes of this section, a person is outside the overlap of the immediate circles of the owners of a network unit unless the person is:

                     (a)  within the immediate circles of each of the owners of the unit; or

                     (b)  the owner, or one of the owners, of the unit.

             (6)  For the purposes of this section, a designated content service is a content service of a kind specified in a written determination made by the Minister.

             (7)  A determination under subsection (6) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

45  Exemption—defence

             (1)  If the sole use of a network unit is use by, or on behalf of, a defence organisation to carry communications necessary or desirable for defence purposes, section 42 does not apply to the unit.

             (2)  If:

                     (a)  the principal use of a network unit is use by, or on behalf of, a defence organisation to carry communications necessary or desirable for defence purposes; and

                     (b)  the remaining use of the unit is use by one or more carriers, or by one or more exempt network-users, to supply carriage services and/or content services;

section 42 does not apply to the unit.

             (3)  In this section:

defence organisation means:

                     (a)  the Department of Defence; or

                     (b)  the Australian Defence Force; or

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

                              (i)  has functions corresponding to functions of, or of a part of, the Department of Defence or the Australian 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.

46  Exemption—intelligence operations

                   Section 42 does not apply to a network unit that is used wholly or principally:

                     (a)  by the Australian Secret Intelligence Service; or

                     (b)  by the Australian Security Intelligence Organization.

47  Exemption—transport authorities

             (1)  Section 42 does not apply to a network unit if the sole use of the unit is use by Airservices Australia to carry communications necessary or desirable for the workings of aviation services.

             (2)  Section 42 does not apply to a network unit if the sole use of the unit is use by the Australian National Railways Commission to carry communications necessary or desirable for the workings of train services.

             (3)  Section 42 does not apply to a network unit if the sole use of the unit is use by a State or Territory transport authority to carry communications necessary or desirable for the workings of any or all of the following services:

                     (a)  train services of a kind provided by the authority;

                     (b)  bus or other road services of a kind provided by the authority;

                     (c)  tram services of a kind provided by the authority.

             (4)  Section 42 does not apply to a network unit if the sole use of the unit is use by a rail corporation to carry communications necessary or desirable for the workings of train services.

             (5)  Section 42 does not apply to a network unit if:

                     (a)  the principal use of the unit is use by Airservices Australia to carry communications necessary or desirable for the workings of aviation services; and

                     (b)  the remaining use of the unit is use by one or more carriers, or by one or more exempt network-users, to supply carriage services and/or content services.

             (6)  Section 42 does not apply to a network unit if:

                     (a)  the principal use of the unit is use by the Australian National Railways Commission to carry communications necessary or desirable for the workings of train services; and

                     (b)  the remaining use of the unit is use by one or more carriers, or by one or more exempt network-users, to supply carriage services and/or content services.

             (7)  Section 42 does not apply to a network unit if:

                     (a)  the principal use of the unit is use by a State or Territory transport authority to carry communications necessary or desirable for the workings of any or all of the following services:

                              (i)  train services of a kind provided by the authority;

                             (ii)  bus or other road services of a kind provided by the authority;

                            (iii)  tram services of a kind provided by the authority; and

                     (b)  the remaining use of the unit is use by one or more carriers, or by one or more exempt network-users, to supply carriage services and/or content services.

             (8)  Section 42 does not apply to a network unit if:

                     (a)  the principal use of the unit is use by a rail corporation to carry communications necessary or desirable for the workings of train services; and

                     (b)  the remaining use of the unit is use by one or more carriers, or by one or more exempt network-users, to supply carriage services and/or content services.

             (9)  In this section:

rail corporation means a body corporate that manages or operates either or both of the following:

                     (a)  rail transport services;

                     (b)  rail transport infrastructure.

48  Exemption—broadcasting services

             (1)  If :

                     (a)  the sole use of a network unit is use to carry communications that are necessary or desirable for either or both of the following purposes:

                              (i)  the supply of broadcasting services to the public;

                             (ii)  the supply of a secondary carriage service by means of the main carrier signal of a primary broadcasting service; and

 

                     (b)  the unit does not consist of, or include, a facility used to carry communications between:

                              (i)  the head end of a cable transmission system; and

                             (ii)  the equipment used by an end‑user to receive a broadcasting service; and

                     (c)  the unit does not consist of a broadcasting transmitter transmitting a signal of a broadcasting service to its intended audience;

section 42 does not apply to the unit.

 

             (2)  If:

                     (a)  the principal use of a network unit is use to carry communications that are necessary or desirable for either or both of the following purposes:

                              (i)  the supply of broadcasting services to the public;

                             (ii)  the supply of a secondary carriage service by means of the main carrier signal of a primary broadcasting service; and

                     (b)  the unit does not consist of, or include, a facility used to carry communications between:

                              (i)  the head end of a cable transmission system; and

                             (ii)  the equipment used by an end‑user to receive a broadcasting service; and

                     (c)  the unit does not consist of a broadcasting transmitter transmitting a signal of a broadcasting service to its intended audience; and

                     (d)  the remaining use of the unit is use by one or more carriers, or by one or more exempt network-users, to supply carriage services and/or content services;

section 42 does not apply to the unit.

             (3)  If the sole use of a line link is use for the purpose of a re‑transmission of a kind mentioned in paragraph 212(1)(a) or (b) of the Broadcasting Services Act 1992, section 42 of this Act does not apply to the line link.

             (4)  If:

                     (a)  the principal use of a line link is use for the purpose of a re‑transmission of a kind mentioned in paragraph 212(1)(a) or (b) of the Broadcasting Services Act 1992; and

                     (b)  the remaining use of the line link is use by one or more carriers, or by one or more exempt network-users, to supply carriage services and/or content services;

section 42 of this Act does not apply to the line link.

             (5)  In this section:

broadcasting transmitter means a radiocommunications transmitter used, or for use, to deliver a broadcasting service.

head end of a cable transmission system means a facility that:

                     (a)  is connected to a line link; and

                     (b)  is used, or for use, in connection with the delivery of a broadcasting service; and

                     (c)  processes signals for delivery by the line link to end‑users having equipment appropriate for receiving the service.

49  Exemption—electricity supply bodies

             (1)  If the sole use of a network unit is use by an electricity supply body to carry communications necessary or desirable for:

                     (a)  managing the generation, transmission, distribution or supply of electricity; or

                     (b)  charging for the supply of electricity;

section 42 does not apply to the unit.

             (2)  If:

                     (a)  the principal use of a network unit is use by an electricity supply body to carry communications necessary or desirable for:

                              (i)  managing the generation, transmission, distribution or supply of electricity; or

                             (ii)  charging for the supply of electricity; and

                     (b)  the remaining use of the unit is use by one or more carriers, or by one or more exempt network-users, to supply carriage services and/or content services;

section 42 does not apply to the unit.

             (3)  In this section:

electricity supply body means an authority, or a body corporate, that carries on a business, or performs a function, of:

                     (a)  generating, transmitting, distributing or supplying electricity; or

                     (b)  managing the generation, transmission, distribution or supply of electricity.

50  Exemption—line links authorised by or under previous laws

             (1)  If:

                     (a)  a line link 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; and

                     (b)  the sole use of the line link is use as provided in, and in accordance with any conditions specified in, the authorisation;

section 42 of this Act does not apply to the line link.

             (2)  If:

                     (a)  a line link 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; and

                     (b)  the principal use of the line link is use as provided in, and in accordance with any conditions specified in, the authorisation; and

                     (c)  the remaining use of the line link is use by one or more carriers, or by one or more exempt network-users, to supply carriage services and/or content services;

section 42 of this Act does not apply to the line link.

             (3)  If a line link 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;

section 42 of this Act does not apply to the line link.

             (4)  If:

                     (a)  a line link 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; and

                     (b)  the sole use of the line link is use as provided in, and in accordance with any conditions specified in, the authorisation;

section 42 of this Act does not apply to the line link.

             (5)  If:

                     (a)  a line link 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; and

                     (b)  the principal use of the line link is use as provided in, and in accordance with any conditions specified in, the authorisation; and

                     (c)  the remaining use of the line link is use by one or more carriers, or by one or more exempt network-users, to supply carriage services and/or content services;

section 42 of this Act does not apply to the line link.

             (6)  If:

                     (a)  a line link consists of facilities in relation to which an authorisation was in force under section 108 of the Telecommunications Act 1991 immediately before the repeal of that Act; and

                     (b)  the sole use of the line link is use as provided in, and in accordance with any conditions specified in, the authorisation;

section 42 of this Act does not apply to the line link.

             (7)  If:

                     (a)  a line link consists of facilities in relation to which an authorisation was in force under section 108 of the Telecommunications Act 1991 immediately before the repeal of that Act; and

                     (b)  the principal use of the line link is use as provided in, and in accordance with any conditions specified in, the authorisation; and

                     (c)  the remaining use of the line link is use by one or more carriers, or by one or more exempt network-users, to supply carriage services and/or content services;

section 42 of this Act does not apply to the line link.

51  Exemption—Ministerial determination

             (1)  The Minister may, by written instrument, determine that section 42 does not apply in relation to:

                     (a)  a specified network unit; or

                     (b)  a specified person; or

                     (c)  a specified use of a network unit.

             (2)  A determination under this section may be unconditional or subject to such conditions (if any) as are specified in the determination.

             (3)  A determination under this section has effect accordingly.

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

Division 3—Carrier licences

52  Applications for carrier licence

                   A person may apply to the ACA for a carrier licence, so long as the person is:

                     (a)  a constitutional corporation; or

                     (b)  an eligible partnership; or

                     (c)  a public body.

53  Form of application etc.

                   An application must be:

                     (a)  in writing; and

                     (b)  in accordance with the form approved in writing by the ACA.

54  Application to be accompanied by charge

                   An application must be accompanied by the charge (if any) imposed on the application by Part 2 of the Telecommunications (Carrier Licence Charges) Act 1997.

55  Further information

             (1)  The ACA may, within 28 days after an application is made, request the applicant to give the ACA, within the period specified in the request, further information about the application.

             (2)  The ACA may refuse to consider the application until the applicant gives the ACA the information.

56  Grant of licence

             (1)  After considering an application, the ACA may grant a carrier licence in accordance with the application.

             (2)  If the ACA grants a carrier licence to a person, the ACA must give the person a written notice stating that the licence has been granted.

             (3)  If the ACA grants a carrier licence, the ACA must cause to be published in the Gazette a notice stating that the licence has been granted.

57  Carrier licence has effect subject to this Act

                   A carrier licence has effect subject to this Act.

58  Refusal of carrier licence—disqualified applicant

             (1)  The ACA may refuse to grant a carrier licence to an applicant if, immediately before the ACA makes its decision on the application, the applicant is disqualified.

When body corporate is disqualified

             (2)  For the purposes of this section, a body corporate is disqualified at a particular time (the test time) if:

                     (a)  at any time before the test time, a carrier licence held by the body corporate was cancelled under subsection 72(1) or (2); or

                     (b)  at any time before the test time, a carrier licence held by a partnership in which the body corporate was a partner was cancelled under subsection 72(1) or (2); or

                     (c)  at the test time, any of the following individuals is disqualified:

                              (i)  a director of the body corporate;

                             (ii)  the secretary of the body corporate;

                            (iii)  a person (by whatever name called and whether or not a director of the body corporate) who is concerned in, or takes part in, the management of the body corporate.

When individual is disqualifiedfailure to pay annual charge

             (3)  For the purposes of subsection (2), an individual is disqualified at a particular time (the test time) if:

                     (a)  at any time before the test time, a carrier licence held by a body corporate or partnership was cancelled under subsection 72(1) because of a failure by the body corporate or partnership to pay in full the charge referred to in that subsection; and

                     (b)  in the case of a body corporate—at the time when the charge referred to in subsection 72(1) was due and payable, the individual was:

                              (i)  a director of the body corporate; or

                             (ii)  the secretary of the body corporate; or

                            (iii)  a person (by whatever name called and whether or not a director of the body corporate) who was concerned in, or took part in, the management of the body corporate; and

                     (c)  in the case of a partnership—at the time when the charge referred to in subsection 72(1) was due and payable, the individual:

                              (i)  was an employee of the partnership; and

                             (ii)  was concerned in, or took part in, the management of the partnership; and

                     (d)  the individual:

                              (i)  aided, abetted, counselled or procured the failure of the body corporate or partnership; or

                             (ii)  was in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the failure of the body corporate or partnership.

When individual is disqualifiedfailure to pay universal service levy

             (4)  For the purposes of subsection (2), an individual is disqualified at a particular time (the test time) if:

                     (a)  at any time before the test time, a carrier licence held by a body corporate or partnership was cancelled under subsection 72(2) because of a failure by the body corporate or partnership to pay in full the levy referred to in that subsection; and

                     (b)  in the case of a body corporate—at the time when the levy referred to in subsection 72(2) was due and payable, the individual was:

                              (i)  a director of the body corporate; or

                             (ii)  the secretary of the body corporate; or

                            (iii)  a person (by whatever name called and whether or not a director of the body corporate) who was concerned in, or took part in, the management of the body corporate; and

                     (c)  in the case of a partnership—at the time when the levy referred to in subsection 72(2) was due and payable, the individual:

                              (i)  was an employee of the partnership; and

                             (ii)  was concerned in, or took part in, the management of the partnership; and

                     (d)  the individual:

                              (i)  aided, abetted, counselled or procured the failure of the body corporate or partnership; or

                             (ii)  was in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the failure of the body corporate or partnership.

When partnership is disqualified

             (5)  For the purposes of this section, a partnership is disqualified at a particular time (the test time) if:

                     (a)  at any time before the test time, a carrier licence held by the partnership was cancelled under subsection 72(1) or (2); or

                     (b)  at the test time, any of the partners is disqualified; or

                     (c)  at the test time, an individual who:

                              (i)  is an employee of the partnership; and

                             (ii)  is concerned in, or takes part in, the management of the partnership;

                            is disqualified.

This section does not limit grounds for refusal to grant carrier licence

             (6)  This section does not, by implication, limit the grounds on which the ACA may refuse to grant a carrier licence.

59  Time limit on licence decision

                   If the ACA neither grants, nor refuses to grant, a carrier licence before the end of whichever of the following periods is applicable:

                     (a)  if the ACA did not give a request under section 55 in relation to the licence application—the period of 28 days after the day on which the ACA received the application;

                     (b)  if:

                              (i)  the ACA gave a request under section 55 in relation to the licence application; and

                             (ii)  the request was complied with;

                            the period of 14 days after the day on which the request was complied with;

                     (c)  if:

                              (i)  the ACA gave a request under section 55 in relation to the licence application; and

                             (ii)  the request was not complied with;

                            the period of 28 days after the end of the period specified in the request;

the ACA is taken, at the end of that period, to have refused to grant the licence.

60  Notification of refusal of application

                   If the ACA refuses to grant a carrier licence, the ACA must give written notice of the refusal to the applicant.

61  Conditions of carrier licence specified in Schedule 1

                   A carrier licence is subject to the conditions specified in Schedule 1.

62  Condition of carrier licence set out in section 152AZ of the Trade Practices Act 1974

                   A carrier licence is subject to the condition set out in section 152AZ of the Trade Practices Act 1974.

Note:          Section 152AZ of the Trade Practices Act 1974 deals with standard access obligations.

63  Conditions of carrier licence declared by Minister

Conditions applying to each carrier licence

             (1)  The Minister may, by written instrument, declare that each carrier licence is subject to such conditions as are specified in the instrument.

Conditions applying to specified existing carrier licences

             (2)  The Minister may, by written instrument, declare that a specified carrier licence is subject to such conditions as are specified in the instrument.

Note:          A licence may be specified by name, by inclusion in a specified class or in any other way.

Conditions applying to specified future carrier licences

             (3)  The Minister may, by written instrument, declare that, in the event that a carrier licence is granted to a specified person during a specified period, the carrier licence is subject to such conditions as are specified in the instrument.

Declarations have effect

             (4)  A declaration under this section has effect accordingly.

Variation of conditions

             (5)  The Minister may, by written instrument, vary an instrument under subsection (1), (2) or (3).

Revocation of conditions

             (6)  The Minister may, by written instrument, revoke an instrument under subsection (1), (2) or (3).

Notification of conditions—existing licences

             (7)  As soon as practicable after the Minister makes an instrument under subsection (1), (2), (5) or (6) that relates to a licence, the Minister must give the holder of the licence a copy of the instrument.

Notification of conditions—future licences

             (8)  As soon as practicable after the Minister makes an instrument under subsection (3) that relates to a licence, the Minister must give the applicant for the licence a copy of the instrument.

Validity not affected by failure to notify conditions

             (9)  A contravention of subsection (7) or (8) does not affect the validity of an instrument.

Gazettal

           (10)  A copy of an instrument under subsection (1), (2), (3), (5) or (6) is to be published in the Gazette.

Date of effect—existing licences

           (11)  An instrument under subsection (1), (2), (5) or (6) takes effect:

                     (a)  on the day on which a copy of the instrument is published in the Gazette; or

                     (b)  if the instrument specifies a later day—on that later day.

Date of effect—future licences

           (12)  An instrument under subsection (3) relating to a licence takes effect when the licence is granted.

Disallowable instrument

           (13)  An instrument under subsection (1), (2), (3), (5) or (6) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

64  Consultation about declared licence conditions

             (1)  Before making an instrument under subsection 63(1), (2), (5) or (6) that relates to a licence, the Minister must first:

                     (a)  cause the holder of the licence to be given a written notice setting out a draft version of the instrument and inviting the holder to make submissions to the Minister on the draft; and

                     (b)  consider any submissions that were received within the time limit specified in the notice.

             (2)  The time limit specified in a notice under subsection (1) must be at least 30 days.

             (3)  Before making an instrument under subsection 63(3) that relates to a licence, the Minister must first:

                     (a)  cause the applicant for the licence to be given a written notice setting out a draft version of the instrument and inviting the applicant to make submissions to the Minister on the draft; and

                     (b)  consider any submissions that were received within the time limit specified in the notice.

65  Conditions about foreign ownership or control

             (1)  A condition of a carrier licence may relate to the extent of foreign ownership or control (whether direct or indirect) of the holder.

             (2)  Subsection (1) does not, by implication, limit the conditions that may be declared under section 63.

66  Conditions about Telstra’s ISDN obligations

             (1)  The Minister must ensure that Telstra’s carrier licence is subject to one or more conditions directed towards achieving:

                     (a)  the result that, by 1 July 1997, Telstra is in a position to make available, to at least 93.4% of the Australian population, a carriage service that provides a digital data capability broadly comparable to that provided by a data channel with a data transmission speed of 64 kilobits per second supplied to end-users as part of the designated basic rate ISDN service; and

                     (b)  the result that, by 31 December 1998, Telstra is in a position to make available, to at least 96% of the Australian population, a carriage service that provides a digital data capability broadly comparable to that provided by a data channel with a data transmission speed of 64 kilobits per second supplied to end-users as part of the designated basic rate ISDN service.

             (2)  For the purposes of this section, if:

                     (a)  immediately before 1 July 1997, Telstra supplied a basic rate Integrated Services Digital Network (ISDN) service; and

                     (b)  the service complied with any of the standards for ISDN services made by the European Telecommunications Standards Institute (ETSI);

the service is a designated basic rate ISDN service.

             (3)  For the purposes of this section, the determination of the comparability of the digital data capability of a carriage service is to be based solely on a comparison of the data transmission speed available to an end‑user of the service.

             (4)  This section does not, by implication, limit the application of section 63 to Telstra.

67  Carrier licence conditions—special provisions

             (1)  A condition of a carrier licence held by a carrier has effect subject to the provisions of a licence under the Radiocommunications Act 1992 under which the carrier is authorised to do something.

             (2)  A condition of a carrier licence held by a carrier may remove or restrict a right or privilege that the carrier would otherwise have under a provision of this Act (whether or not in the carrier’s capacity as a carrier).

68  Compliance with conditions

             (1)  A carrier must not contravene a condition of the carrier licence held by the carrier.

             (2)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of subsection (1); or

                     (b)  induce, whether by threats or promises or otherwise, a contravention of subsection (1); or

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or

                     (d)  conspire with others to effect a contravention of subsection (1).

             (3)  Subsections (1) and (2) are civil penalty provisions.

Note:          Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

69  Remedial directions—breach of condition

             (1)  This section applies if a carrier has contravened, or is contravening, a condition of the carrier licence held by the carrier.

             (2)  The ACA may give the carrier a written direction requiring the carrier to take specified action directed towards ensuring that the carrier does not contravene the condition, or is unlikely to contravene the condition, in the future.

             (3)  The following are examples of the kinds of direction that may be given to a carrier under subsection (2):

                     (a)  a direction that the carrier implement effective administrative systems for monitoring compliance with a condition of the licence;

                     (b)  a direction that the carrier implement a system designed to give the carrier’s employees, agents and contractors a reasonable knowledge and understanding of the requirements of a condition of the licence, in so far as those requirements affect the employees, agents or contractors concerned.

             (4)  A carrier must not contravene a direction under subsection (2).

             (5)  Subsection (1) does not apply to a condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 369.

Note:          Section 369 deals with Rules of Conduct under section 367.

             (6)  Subsection (1) does not apply to a condition set out in Part 3 or 4 of Schedule 1.

Note:          Parts 3 and 4 of Schedule 1 deal with access to supplementary facilities and network information.

             (7)  Subsection (1) does not apply to the condition set out in section 152AZ of the Trade Practices Act 1974.

Note:          Section 152AZ of the Trade Practices Act 1974 deals with standard access obligations.

70  Formal warnings—breach of condition

             (1)  The ACA may issue a formal warning if a carrier contravenes a condition of the carrier licence held by the carrier.

             (2)  Subsection (1) does not apply to a condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 369.

Note:          Section 369 deals with Rules of Conduct under section 367.

             (3)  Subsection (1) does not apply to a condition set out in Part 3 or 4 of Schedule 1.

Note:          Parts 3 and 4 of Schedule 1 deal with access to supplementary facilities and network information.

             (4)  Subsection (1) does not apply to the condition set out in section 152AZ of the Trade Practices Act 1974.

Note:          Section 152AZ of the Trade Practices Act 1974 deals with standard access obligations.

             (5)  The ACCC may issue a formal warning if a carrier contravenes any of the following conditions of the carrier licence held by the carrier:

                     (a)  the condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 369;

                     (b)  a condition set out in Part 3 or 4 of Schedule 1;

                     (c)  the condition set out in section 152AZ of the Trade Practices Act 1974.

71  Surrender of carrier licence

                   A carrier may, by written notice given to the ACA, surrender the carrier licence held by the carrier.

72  Cancellation of carrier licence

Failure to pay annual charge

             (1)  The ACA may cancel a carrier licence held by a carrier if the carrier fails to pay in full any annual charge on or before the date on which the charge becomes due and payable. For this purpose, annual charge means charge imposed by Part 3 of the Telecommunications (Carrier Licence Charges) Act 1997.

Failure to pay universal service levy

             (2)  The ACA may cancel a carrier licence held by a carrier if the carrier fails to pay in full any levy on or before the date on which the levy becomes due and payable.

Note:          Levy is defined by section 7 to mean levy imposed by the Telecommunications (Universal Service Levy) Act 1997.

Becoming a disqualified body corporate

             (3)  If the holder of a carrier licence becomes a disqualified body corporate (within the meaning of section 58), the ACA may cancel the licence.

Becoming a disqualified partnership

             (4)  If the holder of a carrier licence becomes a disqualified partnership (within the meaning of section 58), the ACA may cancel the licence.

Ceasing to be a constitutional corporation, eligible partnership or public body

             (5)  If, at a particular time, the holder of a carrier licence is none of the following:

                     (a)  a constitutional corporation;

                     (b)  an eligible partnership;

                     (c)  a public body;

the licence is taken to have been cancelled at that time.

Submissions relating to proposed cancellation

             (6)  The ACA must not cancel a carrier licence under subsection (1), (2), (3) or (4) unless the ACA has first:

                     (a)  given the carrier a written notice:

                              (i)  setting out a proposal to cancel the licence; and

                             (ii)  inviting the carrier to make a submission to the ACA on the proposal; and

                     (b)  considered any submission that was received within the time limit specified in the notice.

Time limit

             (7)  A time limit specified in the notice under subsection (6) must run for at least 7 days.

Notification of cancellation

             (8)  If a carrier licence held by a person is cancelled, the ACA must give written notice of the cancellation to the person.

73  Collection of charges relating to carrier licences

Definitions

             (1)  In this section:

annual charge means charge imposed by Part 3 of the Telecommunications (Carrier Licence Charges) Act 1997.

application charge means charge imposed by Part 2 of the Telecommunications (Carrier Licence Charges) Act 1997.

late payment penalty means an amount that is payable by way of penalty in accordance with a determination under subsection (4).

When application charge due and payable

             (2)  Application charge imposed on an application for a carrier licence is due and payable when the application is made.

When annual charge due and payable

             (3)  Annual charge is due and payable at the time ascertained in accordance with a written determination made by the ACA.

Late payment penalty

             (4)  The ACA may, by written instrument, determine that, if any annual charge payable by a person remains unpaid after the time when it became due for payment, the person is liable to pay to the Commonwealth, by way of penalty, an amount calculated at the rate of:

                     (a)  20% per annum; or

                     (b)  if the determination specifies a lower percentage—that lower percentage per annum;

on the amount unpaid, computed from that time.

Determination has effect

             (5)  A determination under subsection (4) has effect accordingly.

Remission of penalty

             (6)  A determination under subsection (4) may authorise the ACA to make decisions about the remission of the whole or a part of an amount of late payment penalty.

Payment of charge and late payment penalty

             (7)  Annual charge, application charge and late payment penalty are payable to the ACA on behalf of the Commonwealth.

Recovery of charge and penalty

             (8)  Annual charge, application charge and late payment penalty may be recovered by the ACA, on behalf of the Commonwealth, as debts due to the Commonwealth.

Payment into Consolidated Revenue Fund

             (9)  Amounts received by way of annual charge, application charge or late payment penalty must be paid into the Consolidated Revenue Fund.

Disallowable instrument

           (10)  A determination under subsection (3) or (4) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

74  Collection of charges on behalf of the Commonwealth

                   The ACA may enter into an arrangement with a person under which the person may, on behalf of the Commonwealth, collect payments of charge imposed by the Telecommunications (Carrier Licence Charges) Act 1997.

75  Cancellation of certain exemptions from charge

             (1)  This section cancels the effect of a provision of another Act that would have the effect of exempting a person from liability to pay charge imposed by the Telecommunications (Carrier Licence Charges) Act 1997.

             (2)  The cancellation does not apply if the provision of the other Act is enacted after the commencement of this section and refers specifically to charge imposed by the Telecommunications (Carrier Licence Charges) Act 1997.

76  Commonwealth not liable to charge

             (1)  The Commonwealth is not liable to pay charge imposed by the Telecommunications (Carrier Licence Charges) Act 1997.

             (2)  A reference in this section to the Commonwealth includes a reference to an authority of the Commonwealth that cannot, by law of the Commonwealth, be made liable to taxation by the Commonwealth.

Division 4—Nominated carrier declarations

77  Applications for nominated carrier declarations

                   A carrier may apply to the ACA for a nominated carrier declaration in relation to one or more specified network units.

Note:          A network unit may be specified by name, by inclusion in a specified class or in any other way.

78  Application to be accompanied by charge etc.

                   An application must be accompanied by:

                     (a)  the charge (if any) fixed by a determination under section 53 of the Australian Communications Authority Act 1997; and

                     (b)  the consent of the owner, or each of the owners, of the network units; and

                     (c)  the election of the applicant accepting responsibility for the units for the purposes of this Act.

79  Form of application etc.

                   The application, consent and election must be:

                     (a)  in writing; and

                     (b)  in accordance with a form approved in writing by the ACA.

80  Further information

             (1)  The ACA may request the applicant to give the ACA, within the period specified in the request, further information about the application.

             (2)  The ACA may refuse to consider the application until the applicant gives the ACA the information.

81  Making a nominated carrier declaration

             (1)  After considering the application, the ACA may declare in writing that the applicant is the nominated carrier in relation to the network units if the ACA is satisfied that:

                     (a)  if the declaration were made, the applicant would be in a position to comply with all of the obligations imposed on the applicant in the applicant’s capacity as the nominated carrier in relation to the units; and

                     (b)  the making of the declaration will not impede the efficient administration of this Act.

             (2)  The ACA may only declare one carrier to be the nominated carrier in relation to the network units.

             (3)  The ACA must give a copy of the declaration to:

                     (a)  the applicant; and

                     (b)  the owner, or each of the owners, of the network units.

             (4)  A copy of the declaration is to be published in the Gazette.

82  Notification of refusal of application

                   If the ACA refuses to make a nominated carrier declaration, the ACA must give written notice of the refusal to:

                     (a)  the applicant; and

                     (b)  the owner, or each of the owners, of the network units.

83  Revocation of nominated carrier declaration

             (1)  The ACA may, by writing, revoke a nominated carrier declaration relating to a nominated carrier if the ACA is satisfied that, if it were assumed that the nominated carrier were to apply for the declaration, the ACA would refuse to make the declaration.

             (2)  The ACA must, by writing, revoke the nominated carrier declaration relating to a nominated carrier and relating to one or more network units if:

                     (a)  the owner, or any of the owners, of the network units gives the ACA a written notice stating that the owner does not consent to the continued operation of the declaration; or

                     (b)  the nominated carrier gives the ACA a written notice stating that it does not accept responsibility for the units for the purposes of this Act.

             (3)  The ACA must give a copy of the revocation to:

                     (a)  the former nominated carrier; and

                     (b)  the owner, or each of the owners, of the network units concerned.

             (4)  A copy of the revocation must be published in the Gazette.

             (5)  A revocation under subsection (1) or (2) takes effect on the date specified in the revocation.

             (6)  The ACA must not revoke a nominated carrier declaration under subsection (1) unless the ACA has first:

                     (a)  given the nominated carrier a written notice:

                              (i)  setting out a proposal to revoke the declaration; and

                             (ii)  inviting the nominated carrier to make a submission to the ACA on the proposal; and

                     (b)  considered any submission that was received within the time limit specified in the notice.

             (7)  A time limit specified in a notice under subsection (6) must run for at least 7 days.

Division 5—Register of nominated carrier declarations and carrier licences

84  Register of nominated carrier declarations and carrier licences

             (1)  The ACA is to maintain a Register in which the ACA includes:

                     (a)  all nominated carrier declarations currently in force; and

                     (b)  all carrier licences currently in force; and

                     (c)  all conditions of such licences.

             (2)  The Register may be maintained by electronic means.

             (3)  A person may, on payment of the charge (if any) fixed by a determination under section 53 of the Australian Communications Authority Act 1997:

                     (a)  inspect the Register; and

                     (b)  make a copy of, or take extracts from, the Register.

             (4)  For the purposes of this section, if the Register is maintained by electronic means, a person is taken to have made a copy of, or taken an extract from, the Register if the ACA gives the person a printout of, or of the relevant parts of, the Register.

             (5)  If a person requests that a copy be provided in an electronic form, the ACA may provide the relevant information:

                     (a)  on a data processing device; or

                     (b)  by way of electronic transmission.

Part 4—Service providers

Division 1—Simplified outline

85  Simplified outline

                   The following is a simplified outline of this Part:

     A service provider is:

               (a)     a carriage service provider; or

               (b)     a content service provider.

     A carriage service provider is a person who supplies, or proposes to supply, certain carriage services.

     A content service provider is a person who supplies, or proposes to supply, certain content services.

     Service providers must comply with the service provider rules.

Division 2—Service providers

86  Service providers

                   For the purposes of this Act, a service provider is:

                     (a)  a carriage service provider; or

                     (b)  a content service provider.

Note 1:       Carriage service provider is defined by section 87.

Note 2:       Content service provider is defined by section 97.

Division 3—Carriage service providers

87  Carriage service providers

Basic definition

             (1)  For the purposes of this Act, if a person supplies, or proposes to supply, a listed carriage service to the public using:

                     (a)  a network unit owned by one or more carriers; or

                     (b)  a network unit in relation to which a nominated carrier declaration is in force;

the person is a carriage service provider.

International carriage service providers

             (2)  For the purposes of this Act, if:

                     (a)  a person supplies, or proposes to supply, a listed carriage service to the public using:

                              (i)  a line link connecting a place in Australia and a place outside Australia; or

                             (ii)  a satellite‑based facility; and

                     (b)  the carriage service is mentioned in paragraph 16(1)(b) or (c);

the person is a carriage service provider.

Secondary users of exempt network units

             (3)  For the purposes of this Act, if:

                     (a)  a carrier or an exempt network-user supplies a carriage service as mentioned in any of the following provisions:

                              (i)  paragraph 45(2)(b);

                             (ii)  paragraph 47(5)(b);

                            (iii)  paragraph 47(6)(b);

                            (iv)  paragraph 47(7)(b);

                             (v)  paragraph 47(8)(b);

                            (vi)  paragraph 48(2)(d);

                           (vii)  paragraph 48(4)(b);

                           (viii)  paragraph 49(2)(b);

                            (ix)  paragraph 50(2)(c);

                             (x)  paragraph 50(5)(c);

                            (xi)  paragraph 50(7)(c); and

                     (b)  the carriage service is supplied to the public;

the carrier or the exempt network-user, as the case may be, is a carriage service provider.

Declared carriage service providers

             (4)  The Minister may, by written instrument, declare that a specified person who supplies, or proposes to supply, a specified listed carriage service is a carriage service provider for the purposes of this Act. A declaration under this subsection has effect accordingly.

Note:          For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

Intermediaries

             (5)  For the purposes of this Act, if:

                     (a)  a person (the first person), for reward, arranges, or proposes to arrange, for the supply of a listed carriage service by a carriage service provider to a third person; and

                     (b)  the first person would be a carriage service provider under subsection (1) or (2) if the person had supplied that carriage service; and

                     (c)  the commercial relationship between the first person and the third person is, or is to be, governed (in whole or in part) by an agreement between the first person and the third person that deals with one or more matters relating to the continuing supply of the service (whether or not that supply is, or is to be, for a readily ascertainable period); and

                     (d)  the conditions (if any) specified in a determination under subsection (8) are satisfied;

the person is a carriage service provider.

Note:          Under section 7, carriage service intermediary is defined to mean a person who is a carriage service provider under this subsection.

             (6)  For the purposes of paragraph (5)(a), it does not matter whether the first person makes arrangements as agent for:

                     (a)  the carriage service provider; or

                     (b)  the third person; or

                     (c)  any other person.

             (7)  The reference in paragraph (5)(a) to reward does not include a reference to remuneration received in the capacity of employee.

             (8)  The Minister may make a written determination for the purposes of paragraph (5)(d).

Disallowable instrument

             (9)  An instrument under subsection (4) or (8) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

88  Supply to the public

             (1)  This section sets out the circumstances in which a carriage service is taken, for the purposes of subsections 87(1), (2) and (3), to be supplied to the public.

             (2)  If:

                     (a)  a carriage service is used for the carriage of communications between 2 end-users; and

                     (b)  each end-user is outside the immediate circle of the supplier of the service;

the service is supplied to the public.

             (3)  If:

                     (a)  a carriage service is used to supply point‑to‑multipoint services to end‑users; and

                     (b)  at least one end‑user is outside the immediate circle of the supplier of the service;

the service is supplied to the public.

             (4)  If:

                     (a)  a carriage service is used to supply designated content services (other than point‑to‑multipoint services) to end‑users; and

                     (b)  at least one end‑user is outside the immediate circle of the supplier of the service;

the service is supplied to the public.

             (5)  For the purposes of this section, a designated content service is a content service of a kind specified in a written determination made by the Minister.

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

89  Exemption from definition—customers located on the same premises

             (1)  If:

                     (a)  the supplier of a carriage service manages a business or other activity carried on at particular premises; and

                     (b)  that business or activity is the sole or principal use of the premises; and

                     (c)  all of the customers of the service are physically present on the premises;

subsections 87(1) and (2) do not apply to the carriage service.

             (2)  In this section:

premises includes:

                     (a)  land; and

                     (b)  a group of buildings that is located in the same vicinity.

90  Exemption from definition—defence

             (1)  If the sole or principal use of a carriage service is use by, or on behalf of, a defence organisation to carry communications necessary or desirable for defence purposes, subsections 87(1) and (2) do not apply to the service.

             (2)  In this section:

defence organisation means:

                     (a)  the Department of Defence; or

                     (b)  the Australian Defence Force; or

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

                              (i)  has functions corresponding to functions of, or of a part of, the Department of Defence or the Australian 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.

91  Exemption from definition—intelligence operations

                   Subsections 87(1) and (2) do not apply to a carriage service that is used wholly or principally:

                     (a)  by the Australian Secret Intelligence Service; or

                     (b)  by the Australian Security Intelligence Organization.

92  Exemption from definition—transport authorities

             (1)  Subsections 87(1) and (2) do not apply to a carriage service if the sole or principal use of the carriage service is use by Airservices Australia to carry communications necessary or desirable for the workings of aviation services.

             (2)  Subsections 87(1) and (2) do not apply to a carriage service if the sole or principal use of the carriage service is use by the Australian National Railways Commission to carry communications necessary or desirable for the workings of train services.

             (3)  Subsections 87(1) and (2) do not apply to a carriage service if the sole or principal use of the unit is use by a State or Territory transport authority to carry communications necessary or desirable for the workings of the following services:

                     (a)  train services of a kind provided by the authority;

                     (b)  bus or other road services of a kind provided by the authority;

                     (c)  tram services of a kind provided by the authority.

             (4)  Subsections 87(1) and (2) do not apply to a carriage service if the sole or principal use of the carriage service is use by a rail corporation to carry communications necessary or desirable for the workings of train services.

             (5)  In this section:

rail corporation means a body corporate that manages or operates either or both of the following:

                     (a)  rail transport services;

                     (b)  rail transport infrastructure.

93  Exemption from definition—broadcasting services

             (1)  If:

                     (a)  the sole or principal use of a carriage service is use to carry communications that are necessary or desirable for either or both of the following purposes:

                              (i)  the supply of broadcasting services to the public;

                             (ii)  the supply of a secondary carriage service by means of the main carrier signal of a primary broadcasting service; and

 

                     (b)  those communications are neither:

                              (i)  communications carried between the head end of a cable transmission system and the equipment used by an end‑user to receive a broadcasting service; nor

                             (ii)  communications carried from a broadcasting transmitter transmitting a signal of a broadcasting service to its intended audience;

subsections 87(1) and (2) do not apply to the carriage service.

             (2)  If the sole or principal use of a carriage service is use for the purpose of a re-transmission of a kind mentioned in paragraph 212(1)(a) or (b) of the Broadcasting Services Act 1992, subsections 87(1) and (2) of this Act do not apply to the service.

             (3)  In this section:

broadcasting transmitter means a radiocommunications transmitter used, or for use, to deliver a broadcasting service.

head end of a cable transmission system means a facility that:

                     (a)  is connected to a line link; and

                     (b)  is used, or for use, in connection with the delivery of a broadcasting service; and

                     (c)  processes signals for delivery by the line link to end‑users having equipment appropriate for receiving the service.

94  Exemption from definition—electricity supply bodies

             (1)  If the sole or principal use of a carriage service is use by an electricity supply body to carry communications necessary or desirable for:

                     (a)  managing the generation, transmission, distribution or supply of electricity; or

                     (b)  charging for the supply of electricity;

subsection 87(1) does not apply to the service.

             (2)  In this section:

electricity supply body means an authority, or a body corporate, that carries on a business, or performs a function, of:

                     (a)  generating, transmitting, distributing or supplying electricity; or

                     (b)  managing the generation, transmission, distribution or supply of electricity.

95  Exemption from definition—Ministerial determination

             (1)  The Minister may, by written instrument, determine that a specified eligible definition provision does not apply in relation to:

                     (a)  a specified carriage service; or

                     (b)  a specified person.

Note:          For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

             (2)  A determination under this section may be unconditional or subject to such conditions (if any) as are specified in the determination.

             (3)  A determination under this section has effect accordingly.

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

             (5)  For the purposes of this section, each of the following provisions is an eligible definition provision:

                     (a)  subsection 87(1);

                     (b)  subsection 87(2);

                     (c)  subsection 87(3);

                     (d)  subsection 87(5).

96  Exemption from certain regulatory provisions—Ministerial determination

             (1)  The Minister may, by written instrument, determine that a specified regulatory provision does not apply to a specified person in the person’s capacity as a designated carriage service provider. For this purpose, a designated carriage service provider is a person who is a carriage service provider under subsection 87(4) or (5).

Note:          For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

             (2)  A determination under this section may be unconditional or subject to such conditions (if any) as are specified in the determination.

             (3)  A determination under this section has effect accordingly.

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

             (5)  For the purposes of this section, a regulatory provision is a provision of:

                     (a)  this Act; or

                     (b)  any other law of the Commonwealth;

that contains a reference to a carriage service provider or to carriage service providers.

Division 4—Content service providers

97  Content service providers

             (1)  For the purposes of this Act, if a person uses, or proposes to use, a listed carriage service to supply a content service to the public, the person is a content service provider.

             (2)  For the purposes of subsection (1), a content service is supplied to the public if, and only if, at least one end‑user of the content service is outside the immediate circle of the supplier of the content service.

Division 5—Service provider rules

98  Service provider rules

             (1)  For the purposes of this Act, the following are the service provider rules:

                     (a)  the rules set out in Schedule 2;

                     (b)  the rules (if any) set out in service provider determinations in force under section 99.

             (2)  In addition to the rules mentioned in subsection (1), the rule set out in subsection 152BA(2) of the Trade Practices Act 1974 is a service provider rule for the purposes of this Act.

Note:          Subsection 152BA(2) of the Trade Practices Act 1974 provides that a carriage service provider must comply with any standard access obligations that are applicable to the provider.

99  Service provider determinations

             (1)  The ACA may make a written determination setting out rules that apply to service providers in relation to the supply of either or both of the following:

                     (a)  specified carriage services;

                     (b)  specified content services.

The determination is called a service provider determination.

             (2)  A service provider determination has effect only to the extent that:

                     (a)  it is authorised by paragraph 51(v) of the Constitution (either alone or when read together with paragraph 51(xxxix) of the Constitution); or

                     (b)  both:

                              (i)  it is authorised by section 122 of the Constitution; and

                             (ii)  it would have been authorised by paragraph 51(v) of the Constitution (either alone or when read together with paragraph 51(xxxix) of the Constitution) if section 51 of the Constitution extended to the Territories.

             (3)  The ACA must not make a service provider determination unless the determination relates to a matter specified in the regulations or in section 346.

             (4)  Before making a service provider determination, the ACA must consult the ACCC.

             (5)  A service provider determination may make provision for or in relation to a particular matter by empowering the ACA to make decisions of an administrative character.

             (6)  A service provider determination is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

100  Exemptions from service provider rules

             (1)  The Minister may, by written instrument, determine that a specified service provider is exempt from the service provider rules.

             (2)  The Minister may, by written instrument, determine that a specified service provider is exempt from a specified service provider rule.

             (3)  A determination under this section may be unconditional or subject to such conditions (if any) as are specified in the determination.

             (4)  A determination under this section has effect accordingly.

             (5)  A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

101  Service providers must comply with service provider rules

             (1)  A service provider must comply with the service provider rules that apply to the provider.

Note:          Service provider rules is defined by section 98.

             (2)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of subsection (1); or

                     (b)  induce, whether by threats or promises or otherwise, a contravention of subsection (1); or

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or

                     (d)  conspire with others to effect a contravention of subsection (1).

             (3)  Subsections (1) and (2) are civil penalty provisions.

Note:          Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

102  Remedial directions—breach of service provider rules

             (1)  This section applies if a service provider has contravened, or is contravening, a service provider rule.

             (2)  The ACA may give the provider a written direction requiring the provider to take specified action directed towards ensuring that the provider does not contravene the rule, or is unlikely to contravene the rule, in the future.

             (3)  The following are examples of the kinds of direction that may be given to a service provider under subsection (2):

                     (a)  a direction that the provider implement effective administrative systems for monitoring compliance with a service provider rule;

                     (b)  a direction that the provider implement a system designed to give the provider’s employees, agents and contractors a reasonable knowledge and understanding of the requirements of a service provider rule, in so far as those requirements affect the employees, agents or contractors concerned.

             (4)  A service provider must not contravene a direction under subsection (2).

             (5)  Subsection (1) does not apply to the rule set out in Part 1 of Schedule 2 in so far as that rule relates to section 369.

Note:          Section 369 deals with Rules of Conduct under section 367.

             (6)  Subsection (1) does not apply to the rule set out in subsection 152BA(2) of the Trade Practices Act 1974.

Note:          Subsection 152BA(2) of the Trade Practices Act 1974 provides that a carriage service provider must comply with any standard access obligations that are applicable to the provider.

103  Formal warnings—breach of service provider rules

             (1)  The ACA may issue a formal warning if a person contravenes a service provider rule.

             (2)  Subsection (1) does not apply to the rule set out in Part 1 of Schedule 2 in so far as that rule relates to section 369.

Note:          Section 369 deals with Rules of Conduct under section 367.

             (3)  Subsection (1) does not apply to the rule set out in subsection 152BA(2) of the Trade Practices Act 1974.

Note:          Subsection 152BA(2) of the Trade Practices Act 1974 provides that a carriage service provider must comply with any standard access obligations that are applicable to the provider.

             (4)  The ACCC may issue a formal warning if a person contravenes the service provider rule set out in subsection 152BA(2) of the Trade Practices Act 1974.

             (5)  The ACCC may issue a formal warning if a person contravenes the service provider rule set out in Part 1 of Schedule 2 in so far as that rule relates to section 369.

Part 5—Monitoring of the performance of carriers and carriage service providers

104  Simplified outline

                   The following is a simplified outline of this Part:

•      The ACA is to monitor, and report each year to the Minister on, significant matters relating to the performance of carriers and carriage service providers.

105  Monitoring of performance

             (1)  The ACA must monitor, and report each financial year to the Minister on, all significant matters relating to the performance of:

                     (a)  carriers; and

                     (b)  carriage service providers;

with particular reference to:

                     (c)  consumer satisfaction; and

                     (d)  consumer benefits; and

                     (e)  quality of service.

             (2)  In performing its functions under subsection (1), the ACA must have regard to such world best practice performance indicators as the ACA considers appropriate. This subsection does not, by implication, limit subsection (1).

             (3)  A report under subsection (1) must set out details of the following matters:

                     (a)  the efficiency with which carriers and carriage service providers supply:

                              (i)  carriage services; or

                             (ii)  ancillary goods; or

                            (iii)  ancillary services;

                     (b)  the adequacy and quality of the:

                              (i)  carriage services; or

                             (ii)  billing services; or

                            (iii)  billing information services; or

                            (iv)  ancillary goods; or

                             (v)  ancillary services;

                            supplied by carriers or carriage service providers;

                     (c)  the adequacy of each carrier’s and each carriage service provider’s compliance with its obligations under Part 6;

                     (d)  the adequacy of each carrier’s and each carriage service provider’s compliance with:

                              (i)  codes registered under Part 6; and

                             (ii)  standards determined under Part 6;

                     (e)  the adequacy of each universal service provider’s compliance with its obligations under Part 7;

                      (f)  such other matters relating to the performance of carriers or carriage service providers as the ACA thinks appropriate.

             (4)  The ACA must monitor, and report each financial year to the Minister on, the appropriateness and adequacy of the approaches taken by the carriage service providers in carrying out their obligations, and discharging their liabilities, under Part 9.

             (5)  The ACA must monitor, and report each financial year to the Minister on, the progress made by carriers and carriage service providers towards making a carriage service that provides digital data capability comparable to an ISDN channel available to all people in Australia.

             (6)  The ACA must give a report under subsection (1), (4) or (5) to the Minister as soon as practicable after the end of the financial year concerned.

             (7)  The Minister must cause a copy of a report under subsection (1), (4) or (5) to be laid before each House of the Parliament within 15 sitting days of that House after receiving the report.

             (8)  In this section:

ancillary goods means goods for use in connection with a carriage service.

ancillary service means a service for use in connection with a carriage service.

Part 6—Industry codes and industry standards

Division 1—Simplified outline

106  Simplified outline

                   The following is a simplified outline of this Part.

     Bodies and associations that represent sections of the telecommunications industry may develop industry codes.

     Industry codes may be registered by the ACA.

     Compliance with an industry code is voluntary unless the ACA directs a particular participant in the telecommunications industry to comply with the code.

     The ACA has a reserve power to make an industry standard if there are no industry codes or if an industry code is deficient.

     Compliance with industry standards is mandatory.

 

Division 2—Interpretation

107  Industry codes

                   For the purposes of this Part, an industry code is a code developed under this Part (whether or not in response to a request under this Part).

108  Industry standards

                   For the purposes of this Part, an industry standard is a standard determined under this Part.

109  Telecommunications activity

                   For the purposes of this Part, a telecommunications activity is an activity that consists of:

                     (a)  carrying on business as a carrier; or

                     (b)  carrying on business as a carriage service provider; or

                     (c)  supplying goods or services for use in connection with the supply of a listed carriage service; or

                     (d)  supplying a content service using a listed carriage service; or

                     (e)  manufacturing or importing customer equipment or customer cabling; or

                      (f)  installing, maintaining, operating or providing access to:

                              (i)  a telecommunications network; or

                             (ii)  a facility;

                            used to supply a listed carriage service.

110  Sections of the telecommunications industry

             (1)  For the purposes of this Part, sections of the telecommunications industry are to be ascertained in accordance with this section.

             (2)  For the purposes of this Part, each of the following groups is a section of the telecommunications industry:

                     (a)  carriers;

                     (b)  service providers;

                     (c)  carriage service providers;

                     (d)  carriage service providers who supply standard telephone services;

                     (e)  carriage service providers who supply public mobile telecommunications services;

                      (f)  content service providers;

                     (g)  persons who perform cabling work (within the meaning of Division 9 of Part 21);

                     (h)  persons who manufacture or import customer equipment or customer cabling.

             (3)  The ACA may, by written instrument, determine that persons carrying on, or proposing to carry on, one or more specified kinds of telecommunications activity constitute a section of the telecommunications industry for the purposes of this Part.

             (4)  The section must be identified in the determination by unique name and/or number.

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

             (6)  Sections of the telecommunications industry determined under subsection (3):

                     (a)  need not be mutually exclusive; and

                     (b)  may consist of the aggregate of any 2 or more sections of the telecommunications industry mentioned in subsection (2) or determined under subsection (3); and

                     (c)  may be subsets of a section of the telecommunications industry mentioned in subsection (2) or determined under subsection (3).

             (7)  Subsection (6) does not, by implication, limit subsection (3).

             (8)  A copy of a determination under subsection (3) is to be published in the Gazette.

111  Participants in a section of the telecommunications industry

                   For the purposes of this Part, if a person is a member of a group that constitutes a section of the telecommunications industry, the person is a participant in that section of the telecommunications industry.

Division 3—General principles relating to industry codes and industry standards

112  Statement of regulatory policy

             (1)  The Parliament intends that bodies or associations that the ACA is satisfied represent sections of the telecommunications industry should develop codes (industry codes) that are to apply to participants in the respective sections of the industry in relation to the telecommunications activities of the participants.

             (2)  The Parliament intends that the ACA, in exercising its powers under sections 117, 118, 119, 123, 124 and 125, will act in a manner that, in the opinion of the ACA, enables public interest considerations to be addressed in a way that does not impose undue financial and administrative burdens on participants in sections of the telecommunications industry.

             (3)  In determining whether public interest considerations are being addressed in a way that does not impose undue financial and administrative burdens on participants in sections of the telecommunications industry, the ACA must have regard to:

                     (a)  the number of customers who would be likely to benefit from the code or standard concerned; and

                     (b)  the extent to which those customers are residential or small business customers; and

                     (c)  the legitimate business interests of participants in sections of the telecommunications industry; and

                     (d)  the public interest, including the public interest in the efficient, equitable and ecologically sustainable supply of:

                              (i)  carriage services; and

                             (ii)  goods for use in connection with carriage services; and

                            (iii)  services for use in connection with carriage services;

                            in a manner that reflects the legitimate expectations of the Australian community.

             (4)  Subsection (3) does not, by implication, limit the matters to which regard may be had.

113  Examples of matters that may be dealt with by industry codes and industry standards

             (1)  This section sets out examples of matters that may be dealt with by industry codes and industry standards.

             (2)  The applicability of a particular example will depend on which section of the telecommunications industry is involved.

             (3)  The examples are as follows:

                     (a)  telling customers about:

                              (i)  goods or services on offer; and

                             (ii)  the prices of those goods or services; and

                            (iii)  the other terms and conditions on which those goods or services are offered;

                     (b)  giving customers information about performance indicators customers can use to evaluate the quality of services;

                     (c)  regular reporting to customers about performance against those performance indicators;

                     (d)  the internal handling of customer complaints;

                     (e)  reporting about customer complaints;

                      (f)  privacy and, in particular:

                              (i)  the protection of personal information; and

                             (ii)  the intrusive use of telecommunications by carriers or service providers; and

                            (iii)  the monitoring or recording of communications; and

                            (iv)  calling number display; and

                             (v)  the provision of directory products and services;

                     (g)  the “churning” of customers;

                     (h)  security deposits given by customers;

                      (i)  debt collection practices;

                      (j)  customer credit practices;

                     (k)  disconnection of customers;

                      (l)  ensuring that customers have an informed basis on which to enter into agreements of a kind mentioned in paragraph 22(2)(d) or (e) or (4)(a) (which deal with boundaries of telecommunications networks);

                    (m)  the quality of standard telephone services;

                     (n)  the accuracy of billing of customers of carriage service providers in relation to the supply of standard telephone services;

                     (o)  the timeliness and comprehensibility of bills;

                     (p)  the procedures to be followed in order to generate standard billing reports to assist in the investigation of customer complaints about bills.

114  Industry codes and industry standards may confer powers on the Telecommunications Industry Ombudsman

             (1)  If the Telecommunications Industry Ombudsman consents, an industry code or industry standard may confer functions and powers on the Telecommunications Industry Ombudsman.

             (2)  The continuity of a consent under subsection (1) is not affected by:

                     (a)  a change in the occupancy of the position of Telecommunications Industry Ombudsman; or

                     (b)  a vacancy in the position of Telecommunications Industry Ombudsman that does not continue for more than 4 months.

115  Industry codes and industry standards not to deal with certain design features and performance requirements

             (1)  For the purposes of this Part, an industry code or an industry standard has no effect:

                     (a)  to the extent (if any) to which compliance with the code or standard is likely to have the effect (whether direct or indirect) of requiring customer equipment, customer cabling, a telecommunications network or a facility:

                              (i)  to have particular design features; or

                             (ii)  to meet particular performance requirements; or

                     (b)  to the extent (if any) to which it deals with the content of content services.

             (2)  The rule in subsection (1) does not apply to an industry code or an industry standard to the extent (if any) to which compliance with the code or standard is likely:

                     (a)  to have the indirect effect of requiring customer equipment, customer cabling, a telecommunications network or a facility to have particular design features that relate to:

                              (i)  the accuracy of billing of customers of carriage service providers in relation to the supply of standard telephone services; or

                             (ii)  the quality of standard telephone services; or

                            (iii)  a matter specified in the regulations; or

                     (b)  to have the direct or indirect effect of requiring customer equipment, customer cabling, a telecommunications network or a facility to meet performance requirements that relate to:

                              (i)  the accuracy of billing of customers of carriage service providers in relation to the supply of standard telephone services; or

                             (ii)  the quality of standard telephone services; or

                            (iii)  a matter specified in the regulations.

             (3)  The rule in subsection (1) does not apply to an industry code or an industry standard to the extent (if any) to which the code or standard deals with a matter referred to in paragraph 113(3)(f).

116  Industry codes and industry standards not to deal with matters dealt with by codes and standards under Part 9 of the Broadcasting Services Act

                   For the purposes of this Part, an industry code or an industry standard that deals with a matter relating to a content service has no effect to the extent (if any) to which the matter is dealt with by a code registered, or standard determined, under Part 9 of the Broadcasting Services Act 1992.

Division 4—Industry codes

117  Registration of industry codes

             (1)  This section applies if:

                     (a)  the ACA is satisfied that a body or association represents a particular section of the telecommunications industry; and

                     (b)  that body or association develops an industry code that applies to participants in that section of the industry and deals with one or more matters relating to the telecommunications activities of those participants; and

                     (c)  the body or association gives a copy of the code to the ACA; and

                     (d)  the ACA is satisfied that:

                              (i)  in a case where the code deals with matters of substantial relevance to the community—the code provides appropriate community safeguards for the matters covered by the code; or

                             (ii)  in a case where the code does not deal with matters of substantial relevance to the community—the code deals with the matters covered by the code in an appropriate manner; and

                     (e)  the ACA is satisfied that, before giving the copy of the code to the ACA:

                              (i)  the body or association published a draft of the code and invited participants in that section of the industry to make submissions to the body or association about the draft within a specified period; and

                             (ii)  the body or association gave consideration to any submissions that were received from participants in that section of the industry within that period; and

                      (f)  the ACA is satisfied that, before giving the copy of the code to the ACA:

                              (i)  the body or association published a draft of the code and invited members of the public to make submissions to the body or association about the draft within a specified period; and

                             (ii)  the body or association gave consideration to any submissions that were received from members of the public within that period; and

                     (g)  the ACA is satisfied that the ACCC has been consulted about the development of the code; and

                     (h)  the ACA is satisfied that the Telecommunications Industry Ombudsman has been consulted about the development of the code; and

                      (i)  the ACA is satisfied that at least one body or association that represents the interests of consumers has been consulted about the development of the code; and

                      (j)  in a case where the code deals with a matter set out in paragraph 113(3)(f)—the ACA is satisfied that the Privacy Commissioner has been consulted about the development of the code.

             (2)  The ACA must register the code by including it in the Register of industry codes kept under section 136.

             (3)  A period specified under subparagraph (1)(e)(i) or (1)(f)(i) must run for at least 30 days.

             (4)  If:

                     (a)  an industry code (the new code) is registered under this Part; and

                     (b)  the new code is expressed to replace another industry code;

the other code ceases to be registered under this Part when the new code is registered.

118  ACA may request codes

             (1)  If the ACA is satisfied that a body or association represents a particular section of the telecommunications industry, the ACA may, by written notice given to the body or association, request the body or association to:

                     (a)  develop an industry code that applies to participants in that section of the industry and deals with one or more specified matters relating to the telecommunications activities of those participants; and

                     (b)  give the ACA a copy of the code within the period specified in the notice.

             (2)  The period specified in a notice under subsection (1) must run for at least 120 days.

             (3)  The ACA must not make a request under subsection (1) in relation to a particular section of the telecommunications industry unless the ACA is satisfied that:

                     (a)  the development of the code is necessary or convenient in order to:

                              (i)  provide appropriate community safeguards; or

                             (ii)  otherwise deal with the performance or conduct of participants in that section of the industry; and

                     (b)  in the absence of the request, it is unlikely that an industry code would be developed within a reasonable period.

             (4)  The ACA must not make a request under subsection (1) in relation to a code if:

                     (a)  the code would deal with a matter referred to in paragraph 113(3)(f) (which relates to privacy); and

                     (b)  compliance with the code would be likely to have the effect (whether direct or indirect) of requiring customer equipment, customer cabling, a telecommunications network or a facility:

                              (i)  to have particular design features; or

                             (ii)  to meet particular performance requirements.

However, this rule does not apply if the ACA is satisfied that the benefits to the community from the operation of the code would outweigh the costs of compliance with the code.

             (5)  The ACA may vary a notice under subsection (1) by extending the period specified in the notice.

             (6)  Subsection (5) does not, by implication, limit the application of subsection 33(3) of the Acts Interpretation Act 1901.

             (7)  A notice under subsection (1) may specify indicative targets for achieving progress in the development of the code (for example, a target of 60 days to develop a preliminary draft of the code).

119  Publication of notice where no body or association represents a section of the telecommunications industry

             (1)  If the ACA is satisfied that a particular section of the telecommunications industry is not represented by a body or association, the ACA may publish a notice in the Gazette:

                     (a)  stating that, if such a body or association were to come into existence within a specified period, the ACA would be likely to give a notice to that body or association under subsection 118(1); and

                     (b)  setting out the matter or matters relating to telecommunications activities that would be likely to be specified in the subsection 118(1) notice.

             (2)  The period specified in a notice under subsection (1) must run for at least 60 days.

120  Replacement of industry codes

             (1)  Changes to an industry code are to be achieved by replacing the code instead of varying the code.

             (2)  If the replacement code differs only in minor respects from the original code, section 117 has effect, in relation to the registration of the code, as if paragraphs 117(1)(e) and (f) had not been enacted.

Note:          Paragraphs 117(1)(e) and (f) deal with submissions about draft codes.

121  Directions about compliance with industry codes

             (1)  If:

                     (a)  a person is a participant in a particular section of the telecommunications industry; and

                     (b)  the ACA is satisfied that the person has contravened or is contravening an industry code that:

                              (i)  is registered under this Part; and

                             (ii)  applies to participants in that section of the industry;

the ACA may, by written notice given to the person, direct the person to comply with the industry code.

             (2)  A person must comply with a direction under subsection (1).

             (3)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of subsection (2); or

                     (b)  induce, whether by threats or promises or otherwise, a contravention of subsection (2); or

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (2); or

                     (d)  conspire with others to effect a contravention of subsection (2).

             (4)  Subsections (2) and (3) are civil penalty provisions.

Note:          Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

122  Formal warnings—breach of industry codes

             (1)  This section applies to a person who is a participant in a particular section of the telecommunications industry.

             (2)  The ACA may issue a formal warning if the person contravenes an industry code registered under this Part.

Division 5—Industry standards

123  ACA may determine an industry standard if a request for an industry code is not complied with

             (1)  This section applies if:

                     (a)  the ACA has made a request under subsection 118(1) in relation to the development of a code that is to:

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

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

                     (b)  any of the following conditions is satisfied:

                              (i)  the request is not complied with;

                             (ii)  if indicative targets for achieving progress in the development of the code were specified in the notice of request—any of those indicative targets were not met;

                            (iii)  the request is complied with, but the ACA subsequently refuses to register the code; and

                     (c)  the ACA is satisfied that it is necessary or convenient for the ACA to determine a standard in order to:

                              (i)  provide appropriate community safeguards in relation to that matter or those matters; or

                             (ii)  otherwise regulate adequately participants in that section of the industry in relation to that matter or those matters.

             (2)  The ACA may, by written instrument, determine a standard that applies to participants in that section of the industry and deals with that matter or those matters. A standard under this subsection is to be known as an industry standard.

             (3)  Before determining an industry standard under this section, the ACA must consult the body or association to whom the request mentioned in paragraph (1)(a) was made.

             (4)  A standard under subsection (2) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

124  ACA may determine industry standard where no industry body or association formed

             (1)  This section applies if:

                     (a)  the ACA is satisfied that a particular section of the telecommunications industry is not represented by a body or association; and

                     (b)  the ACA has published a notice under subsection 119(1) relating to that section of the industry; and

                     (c)  that notice:

                              (i)  states that, if such a body or association were to come into existence within a particular period, the ACA would be likely to give a notice to that body or association under subsection 118(1); and

                             (ii)  sets out one or more matters relating to the telecommunications activities of the participants in that section of the industry; and

                     (d)  no such body or association comes into existence within that period; and

                     (e)  the ACA is satisfied that it is necessary or convenient for the ACA to determine a standard in order to:

                              (i)  provide appropriate community safeguards in relation to that matter or those matters; or

                             (ii)  otherwise regulate adequately participants in that section of the industry in relation to that matter or those matters.

             (2)  The ACA may, by written instrument, determine a standard that applies to participants in that section of the industry and deals with that matter or those matters. A standard under this subsection is to be known as an industry standard.

             (3)  A standard under subsection (2) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

125  ACA may determine industry standards where industry codes fail

             (1)  This section applies if:

                     (a)  an industry code that:

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

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

                            has been registered under this Part for at least 180 days; and

                     (b)  the ACA is satisfied that the code is deficient (as defined by subsection (7)); and

                     (c)  the ACA has given the body or association that developed the code a written notice requesting that deficiencies in the code be addressed within a specified period; and

                     (d)  that period ends and the ACA is satisfied that it is necessary or convenient for the ACA to determine a standard that applies to participants in that section of the industry and deals with that matter or those matters.

             (2)  The period specified in a notice under paragraph (1)(c) must run for at least 30 days.

             (3)  The ACA may, by written instrument, determine a standard that applies to participants in that section of the industry and deals with that matter or those matters. A standard under this subsection is to be known as an industry standard.

             (4)  If the ACA is satisfied that a body or association represents that section of the industry, the ACA must consult the body or association before determining an industry standard under subsection (3).

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

             (6)  The industry code ceases to be registered under this Part on the day on which the industry standard comes into force.

             (7)  For the purposes of this section, an industry code that applies to participants in a particular section of the telecommunications industry and deals with one or more matters relating to the telecommunications activities of those participants is deficient if, and only if:

                     (a)  the code is not operating to provide appropriate community safeguards in relation to that matter or those matters; or

                     (b)  the code is not otherwise operating to regulate adequately participants in that section of the industry in relation to that matter or those matters.

126  Industry standards not to be determined for certain privacy matters

                   The ACA must not determine an industry standard if:

                     (a)  the standard would deal with a matter referred to in paragraph 113(3)(f) (which relates to privacy); and

                     (b)  compliance with the standard would be likely to have the effect (whether direct or indirect) of requiring customer equipment, customer cabling, a telecommunications network or a facility:

                              (i)  to have particular design features; or

                             (ii)  to meet particular performance requirements.

However, this rule does not apply if the ACA is satisfied that the benefits to the community from the operation of the standard would outweigh the costs of compliance with the standard.

127  Industry standards not to be determined during the first 180 days after commencement

                   The ACA must not determine an industry standard during the first 180 days after the commencement of this section.

128  Compliance with industry standards

             (1)  If an industry standard that applies to participants in a particular section of the telecommunications industry is registered under this Part, each participant in that section of the industry must comply with the standard.

             (2)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of subsection (1); or

                     (b)  induce, whether by threats or promises or otherwise, a contravention of subsection (1); or

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or

                     (d)  conspire with others to effect a contravention of subsection (1).

             (3)  Subsections (1) and (2) are civil penalty provisions.

Note:          Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

129  Formal warnings—breach of industry standards

             (1)  This section applies to a person who is a participant in a particular section of the telecommunications industry.

             (2)  The ACA may issue a formal warning if the person contravenes an industry standard registered under this Part.

130  Variation of industry standards

             (1)  The ACA may, by written instrument, vary an industry standard that applies to participants in a particular section of the telecommunications industry if it is satisfied that it is necessary or convenient to do so to:

                     (a)  provide appropriate community safeguards in relation to one or more matters relating to the telecommunications activities of those participants; and

                     (b)  otherwise regulate adequately those participants in relation to one or more matters relating to the telecommunications activities of those participants.

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

131  Revocation of industry standards

             (1)  The ACA may, by written instrument, revoke an industry standard.

             (2)  If:

                     (a)  an industry code is registered under this Part; and

                     (b)  the code is expressed to replace an industry standard;

the industry standard is revoked when the code is registered.

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

132  Public consultation on industry standards

             (1)  Before determining or varying an industry standard, the ACA must:

                     (a)  cause to be published in a newspaper circulating in each State a notice:

                              (i)  stating that the ACA has prepared a draft of the industry standard or variation; and

                             (ii)  stating that free copies of the draft will be made available to members of the public during normal office hours throughout the period specified in the notice; and

                            (iii)  specifying the place or places where the copies will be available; and

                            (iv)  inviting interested persons to give written comments about the draft to the ACA within the period specified under subparagraph (ii); and

                     (b)  make copies of the draft available in accordance with the notice.

             (2)  The period specified under subparagraph (1)(a)(ii) must run for at least 30 days after the publication of the notice.

             (3)  Subsection (1) does not apply to a variation if the variation is of a minor nature.

             (4)  If interested persons have given comments in accordance with a notice under subsection (1), the ACA must have due regard to those comments in determining or varying the industry standard, as the case may be.

             (5)  In this section:

State includes the Northern Territory and the Australian Capital Territory.

133  Consultation with ACCC and the Telecommunications Industry Ombudsman

             (1)  Before determining or varying an industry standard, the ACA must consult the ACCC and the Telecommunications Industry Ombudsman.

             (2)  Before revoking an industry standard under subsection 131(1), the ACA must consult the ACCC and the Telecommunications Industry Ombudsman.

134  Consultation with Privacy Commissioner

             (1)  This section applies to an industry standard that deals with a matter set out in paragraph 113(3)(f).

             (2)  Before determining or varying the industry standard, the ACA must consult the Privacy Commissioner.

             (3)  Before revoking the industry standard under subsection 131(1), the ACA must consult the Privacy Commissioner.

135  Consultation with consumer body

             (1)  Before determining or varying an industry standard, the ACA must consult at least one body or association that represents the interests of consumers.

             (2)  Before revoking an industry standard under subsection 131(1), the ACA must consult at least one body or association that represents the interests of consumers.

Division 6—Register of industry codes and industry standards

136  ACA to maintain Register of industry codes and industry standards

             (1)  The ACA is to maintain a Register in which the ACA includes:

                     (a)  all industry codes required to be registered under this Part; and

                     (b)  all industry standards; and

                     (c)  all requests made under section 118; and

                     (d)  all notices under section 119; and

                     (e)  all directions given under section 121.

             (2)  The Register may be maintained by electronic means.

             (3)  A person may, on payment of the charge (if any) fixed by a determination under section 53 of the Australian Communications Authority Act 1997:

                     (a)  inspect the Register; and

                     (b)  make a copy of, or take extracts from, the Register.

             (4)  For the purposes of this section, if the Register is maintained by electronic means, a person is taken to have made a copy of, or taken an extract from, the Register if the ACA gives the person a printout of, or of the relevant parts of, the Register.

             (5)  If a person requests that a copy be provided in an electronic form, the ACA may provide the relevant information:

                     (a)  on a data processing device; or

                     (b)  by way of electronic transmission.

Part 7—Universal service regime

Division 1—Introduction

137  Simplified outline

                   The following is a simplified outline of this Part:

     This Part establishes a universal service regime.

     The main object of the universal service regime is to ensure that all people in Australia, wherever they reside or carry on business, should have reasonable access, on an equitable basis, to:

               (a)     standard telephone services; and

               (b)     payphones; and

               (c)     prescribed carriage services.

     The key elements of the universal service regime are as follows:

               (a)     the specification of the universal service obligation;

               (b)     the declaration of universal service providers;

               (c)     the carrying out of universal service plans;

               (d)     the regulation of universal service charges;

               (e)     the assessment, collection, recovery and distribution of the levy imposed by the Telecommunications (Universal Service Levy) Act 1997.

138  Objects

                   The objects of this Part are to give effect to the following policy principles:

                     (a)  all people in Australia, wherever they reside or carry on business, should have reasonable access, on an equitable basis, to:

                              (i)  standard telephone services; and

                             (ii)  payphones; and

                            (iii)  prescribed carriage services;

                     (b)  the universal service obligation described in section 149 should be fulfilled as efficiently and economically as practicable;

                     (c)  the losses that result from supplying loss-making services in the course of fulfilling the universal service obligation should be shared among carriers;

                     (d)  information on the basis of which, and the methods by which, those losses and those carriers’ respective shares in those losses are to be determined should be open to scrutiny by:

                              (i)  those carriers; and

                             (ii)  the public;

                            to the greatest extent possible without undue damage to a carrier’s interests being caused by the disclosure of confidential commercial information.

139  Special meaning of Australia

             (1)  A reference in this Part to Australia includes a reference to:

                     (a)  the Territory of Christmas Island; and

                     (b)  the Territory of Cocos (Keeling) Islands; and

                     (c)  an external Territory specified in the regulations.

             (2)  The definition of Australia in section 7 does not apply to this Part.

140  Payphones

                   For the purposes of this Part, a payphone is a fixed telephone that:

                     (a)  is a means by which a standard telephone service is supplied; 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.

141  Prescribed carriage services

             (1)  For the purposes of this Part, a prescribed carriage service is a carriage service specified in the regulations.

             (2)  Before 30 September 1998, the Minister must cause to be conducted a review to determine whether a carriage service that provides a digital data capability broadly comparable to that provided by a data channel with a data transmission speed of 64 kilobits per second supplied to end-users as part of the designated basic rate ISDN service should be specified, on and after 31 December 1998, in regulations made for the purposes of subsection (1).

             (3)  The review is to deal with the question whether the benefits to the community resulting from so specifying that carriage service would outweigh the costs to the community from so specifying that carriage service.

             (4)  If:

                     (a)  a carrier makes a submission to the review; and

                     (b)  the submission includes a claim that the costs to the community resulting from so specifying that carriage service would outweigh the benefits to the community from so specifying that carriage service;

the review is to include an examination of whether there is sufficient evidence to substantiate the claim.

             (5)  For the purposes of this section, the determination of the comparability of the digital data capability of a carriage service is to be based solely on a comparison of the data transmission speed available to an end‑user of the service.

             (6)  The Minister must cause to be prepared a report of the review.

             (7)  The Minister must cause copies of the report to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the preparation of the report.

             (8)  In this section:

designated basic rate ISDN service has the same meaning as in section 66.

142  Supply of standard telephone services

             (1)  A reference in this Part to the supply of a standard telephone service includes a reference to the supply of:

                     (a)  if the regulations prescribe customer equipment for the purposes of this paragraph—whichever of the following is applicable:

                              (i)  that customer equipment;

                             (ii)  if other customer equipment is supplied, instead of the first-mentioned customer equipment, in order to comply with the Disability Discrimination Act 1992—that other customer equipment; and

                     (b)  if paragraph (a) does not apply—whichever of the following is applicable:

                              (i)  a telephone handset that does not have switching functions;

                             (ii)  if other customer equipment is supplied, instead of such a handset, in order to comply with the Disability Discrimination Act 1992—that other customer equipment; and

                     (c)  other goods of a kind specified in the regulations; and

                     (d)  services of a kind specified in the regulations;

where the equipment, goods or services, as the case may be, are for use in connection with the standard telephone service.

             (2)  A reference in this Part to the supply of a standard telephone service includes a reference to the supply, to a person with a disability, of:

                     (a)  customer equipment of a kind specified in the regulations; and

                     (b)  other goods of a kind specified in the regulations; and

                     (c)  services of a kind specified in the regulations;

where the equipment, goods or services, as the case may be, are for use in connection with the standard telephone service.

             (3)  In this section:

disability has the same meaning as in the Disability Discrimination Act 1992.

143  Supply of services similar to the National Relay Service to be treated as the supply of standard telephone services

             (1)  A reference in this Part to the supply of a standard telephone service includes a reference to the supply of a service that is:

                     (a)  specified in the regulations; and

                     (b)  similar in scope and purpose to the National Relay Service; and

                     (c)  intended to facilitate personal communication by persons with hearing and/or speech impairments; and

                     (d)  for use in connection with the standard telephone service.

             (2)  The Minister must take all reasonable steps to ensure that, at all times on and after 30 June 1998, regulations are in force for the purposes of paragraph (1)(a).

 

144  Supply of prescribed carriage services

                   A reference in this Part to the supply of a prescribed carriage service includes a reference to the supply of:

                     (a)  customer equipment of a kind specified in the regulations; and

                     (b)  other goods of a kind specified in the regulations; and

                     (c)  services of a kind specified in the regulations;

where the equipment, goods or services, as the case may be, are for use in connection with the prescribed carriage service.

145  Service area

                   For the purposes of this Part, a service area is:

                     (a)  a geographical area within Australia; or

                     (b)  any area of land; or

                     (c)  any premises or part of premises;

regardless of size.

146  Participating carriers

             (1)  For the purposes of this Part, a person is a participating carrier in relation to a financial year if the person was a carrier at any time during the financial year.

             (2)  This section does not apply to a person if the person is of a kind declared by the regulations to be exempt from this section.

147  Eligible revenue

                   For the purposes of this Part, the eligible revenue of a participating carrier for a financial year is the amount that, under the regulations, is taken to be the eligible revenue of the carrier for the financial year.

148  Approved auditor

             (1)  A reference in this Part to an approved auditor is a reference to a person included in a class of persons specified in a written determination made by the ACA for the purposes of this section.

             (2)  A copy of a determination under subsection (1) is to be published in the Gazette.

Division 2—Universal service obligation

149  Universal service obligation

             (1)  For the purposes of this Act, the universal service obligation is the obligation:

                     (a)  to ensure that standard telephone services are reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and

                     (b)  to ensure that payphones are reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and

                     (c)  to ensure that prescribed carriage services are reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business.

             (2)  To the extent necessary to achieve the obligation mentioned in subsection (1), it is part of the universal service obligation:

                     (a)  to supply standard telephone services to people in Australia on request; and

                     (b)  to supply, install and maintain payphones in Australia; and

                     (c)  to supply prescribed carriage services to people in Australia on request.

             (3)  The Minister may make a written determination that it is part of the universal service obligation to supply, install and maintain payphones at specified locations in Australia. The determination has effect accordingly.

             (4)  A copy of a determination under subsection (3) must be published in the Gazette.

             (5)  The regulations may prescribe, for the purpose of paragraph (1)(b), what is, or is not, necessary to ensure that payphones are reasonably accessible as mentioned in that paragraph, including:

                     (a)  criteria for determining the locations of payphones; and

                     (b)  the process for public consultation on the location of payphones; and

                     (c)  the process for resolution of any complaints about the location of payphones.

             (6)  Subsection (3) does not limit the generality of subsection (5).

             (7)  Subsection (5) does not limit the generality of subsection (3).

             (8)  An obligation does not arise under paragraph (2)(a) in relation to particular equipment, goods or services the supply of which is treated under section 142 as the supply of a standard telephone service if the customer concerned requests not to be supplied with the equipment, goods or services.

             (9)  An obligation does not arise under paragraph (2)(c) in relation to particular equipment, goods or services the supply of which is treated under section 144 as the supply of a prescribed carriage service if the customer concerned requests not to be supplied with the equipment, goods or services.

           (10)  To avoid doubt, an obligation arising under paragraph (2)(a) in relation to customer equipment requires the customer concerned to be given the option of hiring the equipment.

Division 3—Universal service providers

150  Universal service providers

             (1)  The Minister may make a written declaration stating that a specified carrier is the national universal service provider.

Note:          If a selection system has been determined under section 152, a declaration under this subsection must be consistent with the system.

             (2)  The Minister may make a written declaration stating that a specified carrier is the regional universal service provider for a specified service area.

Note:          If a selection system has been determined under section 153, a declaration under this subsection must be consistent with the system.

             (3)  A declaration under subsection (1) or (2) has effect accordingly.

             (4)  The Minister must exercise his or her powers under this section in such a way that:

                     (a)  at any particular time, there is not more than one declaration in force under subsection (1); and

                     (b)  no service area in relation to which a declaration is in force under subsection (2) overlaps (either wholly or in part) with another service area.

             (5)  A declaration under this section:

                     (a)  takes effect at the start of the next financial year after the one in which it is made; and

                     (b)  if it specifies a financial year at whose end it ceases to have effect—ceases to have effect at the end of that financial year, unless sooner revoked.

This subsection has effect subject to subsections (7), (8) and (9).

             (6)  A revocation of a declaration under this section takes effect:

                     (a)  if it specifies a financial year at whose end it is to take effect—at the end of that financial year; or

                     (b)  otherwise—at the end of the financial year in which it is made.

This subsection has effect subject to subsections (7) and (8).

             (7)  If:

                     (a)  a declaration (the original declaration) is in force under subsection (1) in relation to a particular carrier; and

                     (b)  a fresh declaration is made under subsection (1); and

                     (c)  the fresh declaration is expressed to replace the original declaration with effect from a specified time; and

                     (d)  the fresh declaration specifies another carrier;

then:

                     (e)  the fresh declaration takes effect at that time; and

                      (f)  the original declaration ceases to have effect at that time.

             (8)  If:

                     (a)  a declaration (the original declaration) is in force under subsection (2) in relation to a particular carrier and in relation to a particular service area; and

                     (b)  a fresh declaration is made under subsection (2); and

                     (c)  the fresh declaration is expressed to replace the original declaration with effect from a specified time; and

                     (d)  the fresh declaration specifies another carrier; and

                     (e)  the service area specified in the fresh declaration is the same as the service area specified in the original declaration;

then:

                      (f)  the fresh declaration takes effect at that time; and

                     (g)  the original declaration ceases to have effect at that time.

             (9)  If:

                     (a)  a declaration is in force under subsection (2) in relation to a particular carrier; and

                     (b)  at a particular time, the carrier ceases to hold a carrier licence;

the declaration ceases to be in force at that time.

           (10)  A declaration under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

           (11)  A reference in this section to a carrier does not include a reference to a person of a kind declared by the regulations to be exempt from section 146.

151  Effect of universal service provider declaration

             (1)  The national universal service provider is the universal service provider:

                     (a)  for Australia, except each service area in relation to which a declaration is in force under subsection 150(2); and

                     (b)  for so much of any service area as is not within such an area.

             (2)  A regional universal service provider in relation to a particular service area is the universal service provider:

                     (a)  for that area; and

                     (b)  for each service area that is within that area.

Note:          If, at a particular time during a financial year, a carrier ceases to be the regional universal service provider for a particular service area and is not replaced as the regional universal service provider for that area by another carrier, the national universal service provider automatically becomes the universal service provider for that area.

             (3)  For the purposes of this Part, a person in relation to whom a declaration is in force under subsection 150(1) or (2) at any time during a financial year is a universal service provider in relation to the financial year.

             (4)  For the purposes of this Part, the areas for which a person is a universal service provider are taken to be a single area.

             (5)  The universal service provider for an area must take all reasonable steps to fulfil the universal service obligation, so far as the obligation relates to that area.

152  Selection system for national universal service provider

             (1)  The Minister may, by written instrument, determine a selection system for the purpose of selecting a carrier to be the national universal service provider in relation to specified financial years.

             (2)  A system so determined must require the selected carrier to have elected that:

                     (a)  an amount specified in the election will be the carrier’s net universal service cost for the financial year concerned; or

                     (b)  a method of ascertaining an amount, being a method specified in the election, will apply for the purposes of determining the carrier’s net universal service cost for the financial year concerned.

             (3)  A system so determined may require an applicant for selection to give the Minister a copy of the document that the applicant would be required to give to the Minister under section 157 in the event that the applicant is successful. This subsection does not, by implication, limit subsection (1).

             (4)  If a system has been determined under this section, the Minister must not exercise the powers conferred by subsection 150(1) in a way that is inconsistent with the system.

             (5)  This Part does not prevent a method mentioned in paragraph (2)(b) from being the same as a method that would have applied if the system concerned had not been determined.

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

153  Selection system for regional universal service providers

             (1)  The Minister may, by written instrument, determine a selection system for the purpose of selecting carriers to be regional universal service providers for specified service areas in relation to specified financial years.

             (2)  A system so determined must require the selected carrier to have elected that:

                     (a)  an amount specified in the election will be the carrier’s net universal service cost for the financial year concerned; or

                     (b)  a method of ascertaining an amount, being a method specified in the election, will apply for the purposes of determining the carrier’s net universal service cost for the financial year concerned.

             (3)  A system so determined may require an applicant for selection to give the Minister a copy of the document that the applicant would be required to give to the Minister under section 157 in the event that the applicant is successful. This subsection does not, by implication, limit subsection (1).

             (4)  If a system has been determined under this section, the Minister must not exercise the powers conferred by subsection 150(2) in a way that is inconsistent with the system.

             (5)  This Part does not prevent a method mentioned in paragraph (2)(b) from being the same as a method that would have applied if the system concerned had not been determined.

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

154  Selection systems—information-gathering powers

             (1)  If the Minister has reason to believe that a carrier or carriage service provider has information that is relevant to:

                     (a)  the exercise of the powers conferred on the Minister by subsection 152(1) or 153(1); or

                     (b)  the administration of a system determined under subsection 152(1) or 153(1);

the Minister may, by written notice given to the carrier or provider, require the carrier or provider to give to the Minister, within the period and in the manner and form specified in the notice, any such information.

             (2)  A carrier or carriage service provider must comply with a requirement under subsection (1).

155  Multiple national universal service providers

             (1)  The regulations may authorise the Minister to declare that 2 or more carriers are to be national universal service providers.

             (2)  The regulations may also authorise the Minister to declare that this Act has effect, in relation to any such declared provider, as if the universal service obligation applicable to the provider were limited as set out in the declaration. However, declarations may only be made in accordance with this subsection for the purpose of dividing the universal service obligation between 2 or more declared providers.

             (3)  A declaration made in accordance with this section has effect accordingly.

             (4)  The regulations may provide that this Part applies in relation to any such declared providers subject to such modifications as are specified in the regulations.

             (5)  In this section:

modifications includes additions, omissions and substitutions.

156  Multiple regional universal service providers

             (1)  The regulations may authorise the Minister to declare that 2 or more carriers are to be regional universal service providers for the same service area.

             (2)  The regulations may also authorise the Minister to declare that this Act has effect, in relation to any such declared provider, as if the universal service obligation applicable to the provider were limited as set out in the declaration. However, declarations may only be made in accordance with this subsection for the purpose of dividing the universal service obligation between 2 or more declared providers.

             (3)  A declaration made in accordance with this section has effect accordingly.

             (4)  The regulations may provide that this Part applies in relation to any such declared providers subject to such modifications as are specified in the regulations.

             (5)  In this section:

modifications includes additions, omissions and substitutions.

Division 4—Universal service plans

157  Universal service provider must submit universal service plan

             (1)  A universal service provider for a particular area must give the Minister a draft universal service plan for that area.

             (2)  The provider must give the Minister the plan within 90 days after the provider became the universal service provider for that area.

158  Universal service plans

                   A draft or approved universal service plan for an area is a plan that sets out how the universal service provider for that area will progressively fulfil the universal service obligation (in so far as the obligation relates to that area).

Note:          An approved universal service plan is a draft universal service plan that has been approved by the Minister.

159  Replacement of approved universal service plan

                   If an approved universal service plan (the original plan) for an area is in force, a draft universal service plan for the area may be expressed to replace the original plan. When the draft plan becomes an approved universal service plan, the original plan ceases to be in force.

160  Approval of draft universal service plan by Minister

             (1)  If a universal service provider gives the Minister a draft universal service plan, the Minister must:

                     (a)  approve the draft plan; or

                     (b)  refuse to approve the draft plan.

             (2)  If the Minister approves the draft plan, the draft plan becomes an approved universal service plan.

             (3)  If the Minister refuses to approve the draft plan, the Minister may, by written notice given to the provider, direct the provider to give the Minister, within the period and in the terms specified in the direction, a fresh draft universal service plan for the area concerned. The provider must comply with the direction.

161  Public comment—draft plan

             (1)  Before giving the Minister a draft universal service plan under section 160, a universal service provider must:

                     (a)  publish a preliminary version of the draft plan and invite members of the public to make submissions to the provider about the preliminary version within a specified period; and

                     (b)  give consideration to any submissions received from members of the public within that period.

             (2)  The period specified in the invitation must run for at least 30 days.

             (3)  This section does not apply to a draft plan given to the Minister in accordance with a direction under subsection 160(3).

             (4)  This section does not apply to a draft plan given to the Minister in accordance with a notice under section 168.

162  Minister to have regard to certain matters

             (1)  In deciding whether to approve a draft universal service plan for an area, the Minister must have regard to whether:

                     (a)  the plan provides for the universal service obligation (in so far as it relates to that area) to be fulfilled:

                              (i)  as efficiently and economically as practicable; and

                             (ii)  at performance standards that reasonably meet the social, industrial and commercial needs of the Australian community; and

                            (iii)  progressively throughout that area within such period as the Minister considers reasonable; and

                     (b)  the draft plan complies with any requirements in force under section 163.

             (2)  Subsection (1) does not, by implication, limit the matters to which regard may be had.

163  Minister may formulate requirements for draft plans

             (1)  The Minister may, by writing, formulate requirements to be complied with by draft universal service plans.

             (2)  The following are examples of requirements:

                     (a)  timetables for the supply of services;

                     (b)  performance standards relating to the fulfilment of the universal service obligation;

                     (c)  the form of a draft universal service plan.

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

164  Notification of decision

             (1)  After deciding whether to approve a draft universal service plan for an area, the Minister must give a written notice setting out the decision to:

                     (a)  the universal service provider for the area; and

                     (b)  the ACA.

             (2)  A copy of a notice under subsection (1) must be published in the Gazette.

             (3)  If the Minister refuses to approve a draft universal service plan for an area, the Minister must give a written notice setting out the reasons for the refusal to the universal service provider for the area.

165  Variation of approved universal service plan

             (1)  This section applies if:

                     (a)  an approved universal service plan for an area (the current plan) is in force; and

                     (b)  the universal service provider for the area gives the Minister a draft variation of the plan.

             (2)  The Minister must:

                     (a)  approve the variation; or

                     (b)  refuse to approve the variation.

             (3)  The Minister must not approve the variation unless the Minister is satisfied that, if it were assumed that the universal service provider were to give the Minister a draft universal service plan in the same terms as the current plan (as proposed to be varied), the Minister would approve that draft plan.

             (4)  After deciding whether to approve the variation, the Minister must give a written notice setting out the decision to:

                     (a)  the universal service provider; and

                     (b)  the ACA.

             (5)  A copy of a notice under subsection (4) must be published in the Gazette.

             (6)  If the Minister refuses to approve the variation, the Minister must give a written notice setting out the reasons for the refusal to the universal service provider.

             (7)  If the Minister approves the variation, the current plan is varied accordingly.

166  Public comment—variation of plan

             (1)  Before giving the Minister a draft variation of a plan under section 165, a universal service provider must:

                     (a)  publish a preliminary version of the draft variation and invite members of the public to make submissions to the provider about the preliminary version within a specified period; and

                     (b)  give consideration to any submissions that were received from members of the public within that period.

             (2)  The period specified in the invitation must run for at least 30 days.

             (3)  This section does not apply to a draft variation given to the Minister in accordance with a notice under section 168.

167  Minister may direct the ACA to give reports and/or advice

             (1)  Before deciding whether to approve a draft universal service plan or a draft variation of an approved universal service plan, the Minister may direct the ACA to give the Minister such reports and/or advice as the Minister requires to assist in making the decision.

             (2)  The ACA must comply with the direction.

             (3)  This section does not, by implication, limit the Minister’s powers under section 486 (which deals with public inquiries).

168  Minister may direct variation or replacement of plan

             (1)  This section applies if an approved universal service plan (the current plan) for an area is in force.

             (2)  The Minister may give the universal service provider for the area a written notice requiring the provider:

                     (a)  within the period and in the terms set out in the notice, to give the Minister a draft variation of the current plan; or

                     (b)  within the period and in the terms set out in the notice, to give the Minister a fresh draft universal service plan for the area that is expressed to replace the current plan.

             (3)  The provider must comply with the notice.

169  Compliance with approved universal service plan

                   If an approved universal service plan for an area is in force, the universal service provider for the area must take all reasonable steps to ensure that the plan is complied with.

170  Register of universal service plans

             (1)  The ACA is to maintain a Register in which the ACA includes all approved universal service plans currently in force.

             (2)  The Register may be maintained by electronic means.

             (3)  A person may, on payment of the charge (if any) fixed by a determination under section 53 of the Australian Communications Authority Act 1997:

                     (a)  inspect the Register; and

                     (b)  make a copy of, or take extracts from, the Register.

             (4)  For the purposes of this section, if the Register is maintained by electronic means, a person is taken to have made a copy of, or taken an extract from, the Register if the ACA gives the person a printout of, or of the relevant parts of, the Register.

             (5)  If a person requests that a copy be provided in an electronic form, the ACA may provide the relevant information:

                     (a)  on a data processing device; or

                     (b)  by way of electronic transmission.

Division 5—Regulation of universal service charges

171  Universal service charges

             (1)  This section applies if a person is the universal service provider for a particular area.

             (2)  For the purposes of this Division, a universal service charge is a charge imposed, or proposed to be imposed, by the person for:

                     (a)  the supply of standard telephone services to persons in the area; or

                     (b)  calls made from payphones in the area; or

                     (c)  the supply of prescribed carriage services to persons in the area.

172  Declaration subjecting universal service charges to price control arrangements

             (1)  The Minister may, by notice published in the Gazette, declare that specified universal service charges are subject to price control arrangements under this Division.

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

173  Price control determinations

             (1)  This section applies if a declaration is in force under section 172 in relation to a particular universal service charge.

             (2)  The Minister may make a written determination setting out:

                     (a)  price-cap arrangements and other price control arrangements that are to apply in relation to the charge; or

                     (b)  principles or rules in accordance with which the universal service provider may impose or alter the charge;

or both.

             (3)  A determination has effect accordingly.

             (4)  A determination under this section takes effect at the start of the next financial year after the one in which it is made.

             (5)  A determination under this section may make different provision with respect to different customers. This section does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

             (6)  A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

174  Content of price control determinations

             (1)  A determination under section 173 relating to a universal service charge may:

                     (a)  prohibit the charge from being imposed or altered without the Minister’s consent; or

                     (b)  prohibit the charge from being imposed or altered without the ACCC’s consent; or

                     (c)  prohibit the charge from being imposed or altered without prior notice being given to the Minister; or

                     (d)  prohibit the charge from being imposed or altered without prior notice being given to the ACCC; or

                     (e)  empower the Minister to direct the ACCC to give the Minister such reports and advice as the Minister requires for the purposes of assisting the Minister in deciding whether to give a consent in accordance with the determination.

             (2)  Subsection (1) does not, by implication, limit section 173.

175  Price control determinations subject to determinations under Telstra Corporation Act

             (1)  This section applies if a determination under subsection 20(1) or 23(1) of the Telstra Corporation Act 1991 is in force in relation to a charge imposed, or proposed to be imposed, by Telstra.

             (2)  A determination under this Division is of no effect in so far as it relates to that charge.

176  Compliance with price control determinations

                   A universal service provider must comply with a determination in force under this Division.

Division 6—Assessment, collection, recovery and distribution of universal service levy

Subdivision A—Simplified outline

177  Simplified outline

                   The following is a simplified outline of this Division:

•    This Division sets out a scheme under which losses that result from supplying services in the course of fulfilling the universal service obligation are shared among carriers.

•    If a universal service provider incurs a loss (called a net universal service cost) from supplying services to certain areas (net cost areas) in the course of fulfilling the universal service obligation, the provider may be entitled to a payment (a levy credit) to recoup those losses.

     A levy credit is funded out of the proceeds of the levy imposed on carriers by the Telecommunications (Universal Service Levy) Act 1997.

     Certain information about the operation of the scheme is available to the public.

     The ACA is required to make an annual assessment of levies and levy credits.

     The ACA may make advances on account of levy credits.

     Certain carriers are required to obtain guarantees given by third persons in relation to the discharge of the carriers’ liability for levy.

Subdivision B—Net cost areas

178  Universal service provider must propose service areas for declaration as net cost areas—ordinary declaration

             (1)  This section applies if a person is a universal service provider on the first day of a financial year.

             (2)  Within 60 days after the beginning of the financial year, the person must give the ACA a written notice that:

                     (a)  specifies service areas for which the person is the universal service provider and that, in the person’s opinion, the ACA should declare under section 179 as net cost areas for the financial year; and

                     (b)  sets out why, in the person’s opinion, the ACA should so declare the specified areas.

             (3)  A notice under subsection (2) must be in a form approved in writing by the ACA.

             (4)  In addition to the matters set out in paragraphs (2)(a) and (b), a notice under subsection (2) must contain such other information (if any) as the approved form of notice requires.

179  Net cost areas—ordinary declarations

             (1)  The ACA must comply with this section within 60 days after receiving a notice under section 178 from a person.

             (2)  For each service area specified in the notice, the ACA must decide:

                     (a)  to declare the area as a net cost area for the financial year; or

                     (b)  to declare as a net cost area for the financial year a service area if:

                              (i)  the person is the universal service provider for the area; and

                             (ii)  the area includes the whole or a part of the service area specified in the notice; or

                     (c)  not to declare as mentioned in paragraph (a) or (b).

             (3)  If the ACA makes a decision under paragraph (2)(a) or (b), the ACA must make a written declaration stating that the area concerned is a net cost area for the financial year. The declaration has effect accordingly.

             (4)  Before making a decision under subsection (2), the ACA may make whatever inquiries it thinks necessary or desirable in order to determine what decision it should make under that subsection.

             (5)  In making a decision under subsection (2), the ACA must:

                     (a)  have regard to the reasons specified in accordance with paragraph 178(2)(b); and

                     (b)  comply with any directions in force under section 182.

180  Universal service provider may propose service areas for declaration as net cost areas—special declaration

             (1)  This section applies if a person is a universal service provider on the first day of a financial year.

             (2)  During the financial year, or within 45 days after the end of the financial year, the person may give the ACA written notice that:

                     (a)  specifies service areas for which the person is the universal service provider and that, in the person’s opinion, the ACA should declare under section 181 as net cost areas for the financial year; and

                     (b)  sets out why, in the person’s opinion, the ACA should so declare the specified areas.

             (3)  A notice under subsection (2) must be in a form approved in writing by the ACA.

             (4)  In addition to the matters set out in paragraphs (2)(a) and (b), a notice under subsection (2) must contain such other information (if any) as the approved form of notice requires.

181  Net cost areas—special declarations

             (1)  The ACA must comply with this section within 30 days after receiving a notice under section 180 from a person.

             (2)  For each service area specified in the notice, the ACA must decide:

                     (a)  to declare the area as a net cost area for the financial year; or

                     (b)  not to declare as mentioned in paragraph (a).

             (3)  If the ACA makes a decision under paragraph (2)(a), the ACA must make a written declaration stating that the area concerned is a net cost area for the financial year. The declaration has effect accordingly.

             (4)  Before making a decision under subsection (2), the ACA may make whatever inquiries it thinks necessary or desirable in order to determine what decision it should make under that subsection.

 

             (5)  In making a decision under subsection (2), the ACA must:

                     (a)  have regard to the reasons specified in accordance with paragraph 180(2)(b); and

                     (b)  comply with any directions in force under section 182.

             (6)  The ACA must not make a declaration under this section stating that an area is a net cost area for the financial year unless the ACA is satisfied that:

                     (a)  the person has incurred, or is likely to incur, a substantial loss attributable to the supply by the person of services to the area during the financial year; and

                     (b)  the loss is wholly the result of circumstances beyond the person’s control; and

                     (c)  when the person became aware of those circumstances, the person took all reasonable steps to minimise the loss.

             (7)  A reference in subsection (6) to a person supplying services to an area during a financial year is a reference to the person:

                     (a)  supplying standard telephone services to persons in the area; or

                     (b)  supplying, installing or maintaining payphones in the area; or

                     (c)  supplying prescribed carriage services in the area;

during that financial year.

182  Minister may give directions about declaring net cost areas

                   The Minister may give the ACA written directions about:

                     (a)  the criteria it should apply; or

                     (b)  the matters to which it should have regard;

in deciding whether or not to declare an area as a net cost area for a financial year.

Subdivision C—Assessment of liability for levy and of entitlement to levy distributions

183  Claims for levy credit

             (1)  This section applies to a financial year if a person is a universal service provider in relation to the financial year.

             (2)  Within the period of 90 days after the end of the financial year, the person may give the ACA a written claim for a levy credit for that financial year.

             (3)  The claim must be in a form approved in writing by the ACA.

             (4)  The claim must set out:

                     (a)  the person’s net universal service cost for the financial year (worked out under section 186); and

                     (b)  details of how that net universal service cost has been worked out; and

                     (c)  such other information (if any) as the approved form of claim requires.

             (5)  The claim must be accompanied by a report of an approved auditor that:

                     (a)  is in a form approved in writing by the ACA; and

                     (b)  states that the auditor has been given sufficient access to the person’s records in order to audit the claim; and

                     (c)  states that the auditor has audited the claim; and

                     (d)  contains a declaration of the opinion of the auditor, being a declaration in the terms specified in the form.

             (6)  A form approved by the ACA for the purposes of subsection (3) may provide for verification by a statutory declaration of statements in claims for levy credits.

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

             (1)  This section applies to a financial year if, at the end of the period of 90 days after the end of the financial year, no claim for a levy credit for that financial year has been lodged under section 183.

             (2)  No person is liable to pay an amount of levy in respect of the financial year.

185  ACA to give copies of claims to other participating carriers

             (1)  This section applies if a claim for a levy credit for a financial year is lodged under section 183.

             (2)  As soon as practicable, and in any case within 14 days, after the lodgment, the ACA must give a copy of the claim to each person (other than the person who lodged the claim) who is a participating carrier for that financial year.

186  Net universal service cost of a universal service provider for a financial year

             (1)  A person’s net universal service cost for a financial year depends on which of the following paragraphs is applicable for that financial year:

                     (a)  if:

                              (i)  the person is a universal service provider in relation to that financial year because of the operation of a selection system determined under section 152 or 153; and

                             (ii)  the person has elected that a specified amount will be the person’s net universal service cost for the financial year;

                            the person’s net universal service cost for the financial year is equal to that amount;

                     (b)  if:

                              (i)  the person is a universal service provider in relation to that financial year because of the operation of a selection system determined under section 152 or 153; and

                             (ii)  the person has elected that a specified method of ascertaining an amount will apply for the purposes of determining the person’s net universal service cost for the financial year;

                            the person’s net universal service cost for the financial year is worked out using that method;

                     (c)  if:

                              (i)  the person is a universal service provider in relation to that financial year; and

                             (ii)  the person is not a universal service provider in relation to that financial year because of the operation of a selection system determined under section 152 or 153; and

                            (iii)  a determination is in force under subsection (6) in relation to that financial year;

                            the person’s net universal service cost for the financial year is worked out in accordance with the determination;

                     (d)  if:

                              (i)  the person is a universal service provider in relation to that financial year; and

                             (ii)  the person is not a universal service provider in relation to that financial year because of the operation of a selection system determined under section 152 or 153; and

                            (iii)  no determination is in force under subsection (6) in relation to that financial year;

                            then:

                            (iv)  if the amount worked out using the formula in subsection (2) is greater than zero dollars—the person’s net universal service cost for the financial year is equal to that amount; or

                             (v)  if the amount worked out using the formula in subsection (2) is not greater than zero dollars—the person’s net universal service cost for the financial year is zero dollars.

             (2)  The formula is:

where:

avoidable costs means:

                     (a)  if a determination is in force under subsection (9)—the amount ascertained in accordance with the determination; or

                     (b)  if no determination is in force under subsection (9)—the total of:

                              (i)  the amount (if any) by which the total costs (in this definition called the operating costs) incurred by the person during that financial year (other than the allowances, costs and amounts referred to in subparagraphs (ii), (iii) and (iv)) exceed what it is reasonable to expect that the operating costs would have been if the person had not supplied services to net cost areas during the financial year; and

                             (ii)  the amount (if any) by which the total allowances made by the person for depreciation during that financial year of capital items exceed what it is reasonable to expect that the total allowances so made would have been if the person had not supplied services to net cost areas during the financial year; and

                            (iii)  the amount (if any) by which the person’s total opportunity costs of capital for that financial year exceed what it is reasonable to expect that those costs would have been if the person had not supplied services to net cost areas during the financial year; and

                            (iv)  the amounts (if any) specified, for the purposes of this paragraph, in such provisions of determinations under section 189 as apply in relation to the person, in relation to the financial year, because of section 190.

revenue forgone means an amount equal to so much of the revenue earned by the person during that financial year as it is reasonable to expect that the person would not have earned during that financial year if the person had not supplied services to net cost areas during that financial year.

             (3)  A reference in subsection (2) to a person supplying services to net cost areas during a financial year is a reference to the person:

                     (a)  supplying standard telephone services to persons in the net cost areas for that financial year for which the person was the universal service provider; or

                     (b)  supplying, installing or maintaining payphones in those areas; or

                     (c)  supplying prescribed carriage services in those areas;

during that financial year.

             (4)  If the person was a carrier for part only of the financial year, a reference in subsection (2) or (3) to the financial year is a reference to that part of the financial year.

             (5)  An amount applicable to a person under subsection (2) for a financial year must be determined in accordance with such provisions of determinations under section 189 as apply in relation to the person, in relation to the financial year, because of section 190.

             (6)  The Minister may make a written determination specifying a method of ascertaining an amount for the purposes of paragraph (1)(c). The determination has no effect unless each person who was a participating carrier immediately before the determination was made gave a written consent to the making of the determination.

             (7)  The amount worked out under a determination under subsection (6) may be zero dollars.

             (8)  A copy of a determination under subsection (6) must be published in the Gazette.

             (9)  The ACA may make a written determination specifying a method of ascertaining an amount for the purposes of paragraph (a) of the definition of avoidable costs in subsection (2).

           (10)  A determination under subsection (9) must provide for an amount to be ascertained wholly or partly by reference to an indexation factor.

           (11)  A determination under subsection (9):

                     (a)  may only be made with the Minister’s consent; and

                     (b)  is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

           (12)  Before making a determination under subsection (9), the ACA must consult each person who was a participating carrier immediately before the determination was made.

187  Reduction of excessive costs etc.

             (1)  The Minister may, by written instrument, formulate principles that are to be applied in determining the extent (if any) to which costs, allowances or opportunity costs of a kind mentioned in subparagraph (b)(i), (ii) or (iii) of the definition of avoidable costs in subsection 186(2) are to be treated as excessive for the purposes of subsection (2) of this section.

             (2)  For the purposes of the calculation of the formula in subsection 186(2) in relation to a particular financial year, if:

                     (a)  any of the following conditions are satisfied:

                              (i)  a person has incurred costs of a kind mentioned in subparagraph (b)(i) of the definition of avoidable costs in subsection 186(2);

                             (ii)  a person has made allowances of a kind mentioned in subparagraph (b)(ii) of that definition;

                            (iii)  a person has opportunity costs of a kind mentioned in subparagraph (b)(iii) of that definition; and

                     (b)  the costs, allowances or opportunity costs are treated, under the principles in force under subsection (1), as excessive to any extent;

the amount of the costs, allowances or opportunity costs, as the case may be, is to be reduced by the amount of the excess.

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

188  Shortfalls in revenue earned

             (1)  The Minister may, by written instrument, formulate principles that are to be applied in determining the extent (if any) to which there is taken, for the purposes of subsection (2), to be a shortfall in relation to revenue earned as mentioned in the definition of revenue forgone in subsection 186(2).

             (2)  For the purposes of the calculation of the formula in subsection 186(2) in relation to a particular financial year, if:

                     (a)  a person has earned revenue as mentioned in the definition of revenue forgone in subsection 186(2); and

                     (b)  under the principles in force under subsection (1), there is taken to be a shortfall in relation to that revenue;

the amount of the revenue is to be increased by the amount of the shortfall.

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

189  ACA determinations about working out a universal service provider’s net universal service cost

             (1)  The ACA may make written determinations:

                     (a)  for or in relation to specifying methods of calculating an amount referred to in:

                              (i)  subparagraph (b)(i), (ii) or (iii) of the definition of avoidable costs in subsection 186(2); or

                             (ii)  the definition of revenue forgone in subsection 186(2);

                            as applying in relation to a universal service provider in relation to a financial year; or

                     (b)  specifying amounts for the purposes of subparagraph (b)(iv) of the definition of avoidable costs in subsection 186(2) as so applying.

             (2)  An instrument under this section:

                     (a)  may only be made with the Minister’s consent; and

                     (b)  is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

             (3)  Before making a determination in relation to a financial year under this section, the ACA must consult each person who was a participating carrier immediately before the determination was made.

190  Application of determinations under section 189

             (1)  Except so far as the contrary intention appears in a determination under section 189, a provision of such a determination applies in relation to:

                     (a)  the first financial year that ends after the commencement of the last-mentioned provision; and

                     (b)  each later financial year.

             (2)  Despite anything in an instrument under section 189, but subject to subsection (4) of this section, a provision of a determination under that section does not apply in relation to a financial year ending before the commencement of that provision.

             (3)  A person may elect in writing that a provision that, apart from subsection (4), does not apply in relation to the person in relation to a particular financial year is to apply in relation to the person in relation to that financial year.

             (4)  An election under subsection (3) has effect accordingly.

             (5)  In this section:

commencement, in relation to a provision of a determination under section 189, means:

                     (a)  in the case of such a provision as originally in effect—the time when the provision took effect; or

                     (b)  in the case of a provision as varied by another provision of an instrument under section 189—the time when the last‑mentioned provision took effect.

191  Participating carriers must lodge returns of eligible revenue

             (1)  Within 90 days after the end of a financial year, each participating carrier in relation to that financial year must give the ACA a written return of the carrier’s eligible revenue for that financial year.

             (2)  The return must be in a form approved in writing by the ACA.

             (3)  The return must set out:

                     (a)  the carrier’s eligible revenue for that financial year; and

                     (b)  details of how that eligible revenue was worked out; and

                     (c)  such other information (if any) as the approved form of return requires.

             (4)  A person who intentionally or recklessly contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding 50 penalty units.

Note:          See also sections 4AA and 4B of the Crimes Act 1914.

             (5)  A form approved by the ACA for the purposes of subsection (2) may provide for verification by a statutory declaration of statements in returns under this section.

             (6)  The return must be accompanied by a report of an approved auditor that:

                     (a)  is in a form approved in writing by the ACA; and

                     (b)  states that the auditor has been given sufficient access to the person’s records in order to audit the return; and

                     (c)  states that the auditor has audited the return; and

                     (d)  contains a declaration of the opinion of the auditor, being a declaration in the terms specified in the form.

192  ACA may inquire into the correctness of a claim or return

                   The ACA may make whatever inquiries it thinks necessary or desirable in order to determine:

                     (a)  whether or not a claim by a universal service provider for a levy credit for a financial year correctly states the universal service provider’s net universal service cost for that financial year; or

                     (b)  whether or not a return by a participating carrier of the carrier’s eligible revenue for a financial year correctly states the carrier’s eligible revenue for that financial year.

193  ACA to assess liabilities and entitlement

             (1)  For each financial year, the ACA must make a written assessment for the purposes of this Part.

             (2)  The assessment must set out, for each participating carrier in relation to that financial year:

                     (a)  the carrier’s eligible revenue for the financial year; and

                     (b)  the carrier’s levy debit under section 196 for the financial year; and

                     (c)  the carrier’s levy debit balance (if any) under section 197 for the financial year; and

                     (d)  if the assessment sets out a levy debit balance of the carrier for the financial year—the levy payable by the carrier on that levy debit balance.

             (3)  The assessment must set out, for each universal service provider in relation to that financial year:

                     (a)  the universal service provider’s net universal service cost for the financial year; and

                     (b)  the universal service provider’s levy credit balance (if any) under section 198 for the financial year; and

                     (c)  if the assessment sets out a levy credit balance of the universal service provider for the financial year—the amount payable to the universal service provider under section 214 for the financial year.

             (4)  The assessment must be made on the basis of:

                     (a)  the respective claims for levy credits lodged by universal service providers in relation to the financial year; and

                     (b)  the respective returns under section 191 lodged by the participating carriers in relation to the financial year; and

                     (c)  the information and documents obtained by the ACA because of its inquiries under section 192; and

                     (d)  any other information or documents that the ACA has and that it thinks relevant to making the assessment.

             (5)  Despite anything in this Part, the ACA may, for the purposes of making its assessment, accept, either in whole or in part, a statement in a claim or return.

194  Explanation to the Minister if assessment not made within 270 days

             (1)  This section applies if the ACA has not made its assessment under section 193 in relation to a financial year within 270 days after the end of the financial year.

             (2)  The ACA must give the Minister a written statement explaining why the ACA has not made its assessment within that 270‑day period.

             (3)  In this section:

assessment does not include an amended assessment.

195  Amendment of assessments

             (1)  The ACA may amend its assessment by making such alterations and additions as it thinks necessary, even if levy credits or levy has been paid in respect of the assessment.

             (2)  Unless the contrary intention appears, an amended assessment is taken, for the purposes of this Part, to be an assessment under section 193.

196  Levy debit of a participating carrier for a financial year

             (1)  A participating carrier’s levy debit for a financial year is the amount worked out using the formula:

where:

contribution factor has the meaning given by subsection (2).

total net universal service cost means the total net universal service costs for the financial year of all the universal service providers in relation to the financial year.

             (2)  The contribution factor for the financial year depends on whether a determination is in force under subsection (3) in relation to the financial year:

                     (a)  if a determination is in force under subsection (3) in relation to the financial year—the contribution factor is ascertained in accordance with the determination;

                     (b)  if no determination is in force under subsection (3) in relation to the financial year—the contribution factor is worked out using the following formula:

                            where:

                            carrier’s eligible revenue means the participating carrier’s eligible revenue for the financial year.

                            total eligible revenue means the total eligible revenue for the financial year of all the participating carriers in relation to the financial year.

             (3)  The Minister may make a written determination specifying a method of ascertaining the contribution factor for the purposes of paragraph (2)(a). The determination has no effect unless each person who was a participating carrier immediately before the determination was made gave a written consent to the making of the determination.

             (4)  A copy of a determination under subsection (3) must be published in the Gazette.

197  Levy debit balance of a participating carrier for a financial year

                   If a person’s levy debit under subsection 196(1) for a financial year exceeds the person’s net universal service cost for that financial year:

                     (a)  the person has a levy debit balance for that financial year; and

                     (b)  the amount of that balance is the amount of the excess.

198  Levy credit balance of a universal service provider for a financial year

                   If a person’s net universal service cost for a financial year exceeds the person’s levy debit under subsection 196(1) for that financial year:

                     (a)  the person has a levy credit balance for that financial year; and

                     (b)  the amount of that balance is the amount of the excess.

199  Publication of assessment

                   As soon as practicable after making an assessment under section 193 for a financial year, the ACA must:

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

                     (b)  give a copy of the assessment to each participating carrier in relation to that financial year.

Subdivision D—Disclosure by the ACA of information about decisions relating to net cost areas and assessments

200  Public may request information

             (1)  A person may request the ACA to make available to the person:

                     (a)  specified information or documents on the basis of which the ACA has made its assessment under section 193 for a financial year; or

                     (b)  specified information about how the ACA has worked out the matters that such an assessment sets out because of subsection 193(2) or (3); or

                     (c)  specified information or documents relating to a decision by the ACA under section 179 or 181 to declare an area as a net cost area for a financial year.

             (2)  The ACA must comply with a request as provided in section 202. This subsection has effect subject to subsection (3).

             (3)  The ACA must not make available under this section:

                     (a)  information (other than information prescribed for the purposes of this paragraph):

                              (i)  that was obtained from, or relates to, a person who is a universal service provider in relation to a financial year; and

                             (ii)  the making available of which under this section can reasonably be expected to cause substantial damage to the person referred to in subparagraph (i); or

                     (b)  information prescribed for the purposes of this paragraph; or

                     (c)  so much of a document as sets out information of a kind referred to in paragraph (a) or (b).

201  Request for information that is unavailable under section 200

             (1)  For the purposes of this section, each of the following persons is an eligible person:

                     (a)  a person who is a universal service provider in relation to a financial year;

                     (b)  a person who is a participating carrier in relation to a financial year.

             (2)  An eligible person may request the ACA to make available to it specified information or documents of a kind referred to in subsection 200(1) that subsection 200(3) prevents the ACA from making available to the eligible person under section 200.

             (3)  The ACA must comply with a request as provided for in section 202. This section has effect subject to subsection (4).

             (4)  The ACA must not, under this section, make available to an eligible person (in this section called the first eligible person) information, or so much of a document as sets out information:

                     (a)  that was obtained from, or relates to, another eligible person; and

                     (b)  the making available of which to the first eligible person can reasonably be expected to cause substantial damage to the other eligible person’s commercial or other interests;

unless the ACA is satisfied:

                     (c)  that the information could be obtained by the first eligible person lawfully, and without the other eligible person’s consent, from a source other than the ACA; or

                     (d)  in the case of a request under paragraph 200(1)(a) or (b)—that:

                              (i)  the first eligible person has made the request in good faith for the sole purpose of informing itself about the basis on which, or the methods by which, the ACA made the assessment concerned; and

                             (ii)  having regard to the policy principles in section 138, the first eligible person’s interest in being able to examine that basis and those methods in order to see how its liability to pay levy, or its entitlement to a payment under section 214, as the case requires, has been assessed outweighs the other eligible person’s interest in avoiding the damage referred to in paragraph (b); or

                     (e)  in the case of a request under paragraph 200(1)(c)—that:

                              (i)  the first eligible person has made the request in good faith for the sole purpose of informing itself about the basis on which, or the methods by which, the ACA made the decision to make the declaration concerned; and

                             (ii)  having regard to the policy principles in section 138, the first eligible person’s interest in being able to examine that decision outweighs the other eligible person’s interest in avoiding the damage referred to in paragraph (b).

             (5)  In determining the question referred to in paragraph (4)(b), the ACA must have regard to:

                     (a)  whether any undertakings have been given under subsection (6) and, if so, the nature of those undertakings; and

                     (b)  such other matters (if any) as the ACA considers relevant.

             (6)  For the purposes of this section, a person may give the ACA a written undertaking that, in the event that specified information, or the whole or a part of a specified document, is made available to the person under this section, the person will not disclose the information, or the contents of the document, except to one or more specified persons.

Note:          Information, documents or persons may be specified by name, by inclusion in a class or in any other way.

             (7)  If a person gives an undertaking under subsection (6), the person must comply with the undertaking.

202  How the ACA is to comply with a request

             (1)  The ACA may comply with a request by a person under section 200 or 201 by:

                     (a)  communicating information to the person in writing or in some other form; or

                     (b)  making documents available for inspection by the person or by an employee, agent or professional adviser of the person; or

                     (c)  giving to the person copies of, extracts from, or summaries of, documents.

             (2)  In this section:

document includes a part of a document.

Subdivision E—Collection and recovery of levy

203  When levy payable

                   Levy assessed under section 193 becomes due and payable on the 28th day after the ACA gives a copy of the assessment to the participating carrier in respect of which the levy has been assessed.

204  Levy a debt due to the Commonwealth

                   Levy may be recovered in a court of competent jurisdiction as a debt due to the Commonwealth.

205  Validity of assessment

                   The validity of an assessment under section 193 is not affected by a contravention of this Act.

206  Evidence of assessment

             (1)  This section applies if there is produced:

                     (a)  a copy of the Gazette that sets out what purports to be a copy of an assessment made under section 193; or

                     (b)  a document that purports to be such a copy.

             (2)  Except so far as the contrary is established, it must be presumed:

                     (a)  that the copy of the Gazette sets out, or that the document is, as the case may be, a copy of such an assessment; and

                     (b)  that the ACA has duly made the assessment; and

                     (c)  that the amounts and other particulars set out in the assessment are correct.

207  Onus of establishing incorrectness of assessment

                   In any proceeding, the onus of establishing that an assessment under section 193 is incorrect is on the party making that assertion.

208  Refund of overpayment of levy

                   If there is an overpayment of levy, the overpayment is to be refunded.

209  Cancellation of certain exemptions from levy

             (1)  This section cancels the effect of a provision of another Act that would have the effect of exempting a person from liability to pay levy.

             (2)  The cancellation does not apply if the provision of the other Act is enacted after the commencement of this section and refers specifically to levy imposed by the Telecommunications (Universal Service Levy) Act 1997.

210  Commonwealth not liable to levy

             (1)  The Commonwealth is not liable to pay levy.

             (2)  A reference in this section to the Commonwealth includes a reference to an authority of the Commonwealth that cannot, by law of the Commonwealth, be made liable to taxation by the Commonwealth.

Subdivision F—Distribution of levy

211  Universal Service Reserve

                   This section establishes an account called the Universal Service Reserve, which is a trust account for the purposes of section 62A of the Audit Act 1901 and is to be administered by the Department.

212  Payments into Universal Service Reserve

                   There must be paid into the Universal Service Reserve:

                     (a)  amounts equal to amounts of levy paid under this Part; and

                     (b)  money appropriated by law for the Universal Service Reserve’s purposes; and

                     (c)  amounts equal to interest from the investment of money in the Universal Service Reserve; and

                     (d)  amounts equal to amounts that were overpaid under section 214 and have been recovered; and

                     (e)  amounts equal to amounts paid under section 218.

213  Purposes of Universal Service Reserve

             (1)  The purposes of the Universal Service Reserve are:

                     (a)  making payments under section 214 or 217; and

                     (b)  refunding any overpaid amounts of levy; and

                     (c)  refunding any other amounts paid into the Universal Service Reserve in error; and

                     (d)  reimbursing the Commonwealth for:

                              (i)  the costs or expenses incurred by the Commonwealth or the ACA in administering the Telecommunications (Universal Service Levy) Act 1997 and this Division during any period; and

                             (ii)  without limiting subparagraph (i), costs or expenses incurred in connection with recovering levy; and

                            (iii)  costs incurred by the Commonwealth during the period in collecting, compiling, analysing and publishing information about the operation of that Act and this Division.

             (2)  For the purposes of paragraph (1)(d), the Minister for Finance may, from time to time, determine the amount of a reimbursement to be made to the Commonwealth in relation to a period on such basis as he or she thinks appropriate.

             (3)  Despite subsection (2), the total of the amounts reimbursed under paragraph (1)(d) must not exceed the total of the amounts paid into the Universal Service Reserve under paragraphs 212(b) and (c).

214  Levy distribution to a universal service provider

                   If a person has a levy credit balance for a financial year because of section 198, an amount equal to the amount of that balance is payable to the person out of the Universal Service Reserve.

215  Levy not to be distributed until paid

                   No amount is payable under section 214 in relation to a financial year unless and until:

                     (a)  the ACA has made an assessment under section 193 for that financial year; and

                     (b)  each participating carrier in respect of which levy was assessed has paid the levy.

216  Recovery of overpayments

             (1)  For the purposes of this section, an overpaid amount is so much of an amount paid under section 214 as represents an overpayment.

             (2)  An overpaid amount is a debt due to the Commonwealth.

             (3)  An overpaid amount may be recovered by the Commonwealth by action in a court of competent jurisdiction.

             (4)  If a person is liable to pay an overpaid amount, the overpaid amount may be deducted from one or more other amounts that are payable to the person under this Part, and if it is so deducted, the other amounts are taken to have been paid in full to the person.

Subdivision G—Advance on account of distribution of levy

217  Advance on account of distribution of levy

                   If the ACA is satisfied that, because of special circumstances, it is appropriate to do so, the ACA may, on behalf of the Commonwealth, make an advance on account of payments that may become payable to a person under section 214 in relation to a financial year.

218  Repayment of excess advances

             (1)  If:

                     (a)  a person has received a total amount, by way of advances on account of payments that may become payable to the person under section 214 in relation to a particular financial year; and

                     (b)  that total amount is greater than the amount that became payable to the person under section 214 in relation to that financial year;

the person is liable to pay to the Commonwealth the amount of the excess.

             (2)  If a person is liable to pay an amount to the Commonwealth under subsection (1):

                     (a)  the amount may be recovered, as a debt due to the Commonwealth, by action in a court of competent jurisdiction; or

                     (b)  the amount may be deducted from any other amount that is payable to the person under this Part, and if the amount is so deducted, the other amount is taken to have been paid in full to the person.

Subdivision H—Levy guarantee

219  Levy guarantee

             (1)  This section applies to a person (the first person) at a particular time if:

                     (a)  the first person is a carrier at that time; or

                     (b)  the first person ceased to be a carrier during the 2‑year period that ended at that time.

             (2)  The first person must ensure that, at that time, there is in force a guarantee given by a third person in respect of the discharge of the first person’s liability (if any) for levy.

             (3)  The third person must be:

                     (a)  a bank (within the meaning of the Banking Act 1959); or

                     (b)  a body corporate formed under the law of a State or Territory to carry on the business of banking within Australia; or

                     (c)  a body corporate whose sole or principal business is the provision of financial accommodation to other persons, where the body corporate is a registered corporation within the meaning of the Financial Corporations Act 1974; or

                     (d)  a body corporate accredited in writing by the ACA for the purposes of this paragraph.

             (4)  A reference in this section to a carrier does not include a reference to a person who, under subsection 146(2), is exempt from section 146.

220  Exemptions from levy guarantee

             (1)  A person is exempt from section 219 if the person held a general telecommunications licence, or a public mobile licence, that was in force under the Telecommunications Act 1991 on 30 June 1997.

             (2)  The ACA may make a written determination exempting a specified person from section 219 if:

                     (a)  in the ACA’s opinion, there is no reasonable likelihood that the person will incur a liability for levy; or

                     (b)  both:

                              (i)  the person has held a carrier licence for at least 2 years; and

                             (ii)  in the ACA’s opinion, there is no significant risk that the person will fail to discharge fully the person’s liability for levy.

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

221  Compliance with levy guarantee obligations

             (1)  A person must not contravene section 219.

             (2)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of subsection (1); or

                     (b)  induce, whether by threats or promises or otherwise, a contravention of subsection (1); or

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or

                     (d)  conspire with others to effect a contravention of subsection (1).

             (3)  Subsections (1) and (2) are civil penalty provisions.

Note:          Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

Part 8—Continued access to untimed local calls

222  Simplified outline

                   The following is a simplified outline of this Part:

     Certain local calls are to be charged for on an untimed basis.

223  Requirement to provide an untimed local call option

                   If a carriage service provider charges an eligible customer for eligible local calls made using a standard telephone service supplied to the customer, the provider must give the customer an untimed local call option.

Note 1:       Eligible customer is defined by section 229.

Note 2:       Eligible local call is defined by section 225.

Note 3:       Untimed local call option is defined by section 224.

224  Untimed local call option

             (1)  For the purposes of this Part, if a carriage service provider charges an eligible customer for eligible local calls made using a standard telephone service supplied to the customer, the provider gives the customer an untimed local call option if, and only if, the service is supplied to the customer on terms and conditions under which:

                     (a)  the customer may choose, on connection of the service, to have the charges for eligible local calls that are made using the service worked out on an untimed basis; and

                     (b)  if the customer chooses as mentioned in paragraph (a)—the carriage service provider 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 on an untimed basis;

                            the customer may later give the carriage service provider a written notice to the effect that the customer wishes the charges for such calls to be worked out on an untimed basis; and

                     (d)  if the customer gives the carriage service provider such a notice—the carriage service provider:

                              (i)  must, in respect of the earliest practicable period beginning after it receives the notice, work out the charges for such calls on an untimed basis; 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.

Note 1:       Eligible customer is defined by section 229.

Note 2:       Untimed basis is defined by subsection (2).

             (2)  For the purposes of this section, charges for eligible local calls are worked out on an untimed basis if, and only if, the charges for those calls are worked out by reference to the number of such calls made during a particular period, regardless of how long each call lasted.

225  Eligible local calls

             (1)  For the purposes of the application of this Part to a carriage service provider who charges for a call made using a standard telephone service supplied to an eligible customer in a particular standard zone, being an eligible customer who is a residential/charity customer, if the call:

                     (a)  is made between points in the applicable zone in relation to the provider and in relation to the customer; and

                     (b)  is either:

                              (i)  of a kind that, immediately before 20 September 1996, a general carrier offered to supply, or supplied, on an untimed basis between points in that standard zone; or

                             (ii)  made using a standard telephone service supplied to the customer in fulfilment of the universal service obligation;

the call is an eligible local call unless the call involves the use, by at least one party to the call, of a public mobile telecommunications service, or a satellite service, that is not supplied to that party in fulfilment of the universal service obligation.

Note 1:       Eligible customer is defined by section 229.

Note 2:       Standard zone is defined by section 227.

Note 3:       Applicable zone is defined by section 228.

Note 4:       Untimed basis is defined by subsection (3).

             (2)  For the purposes of the application of this Part to a carriage service provider who charges for a call made using a standard telephone service supplied to an eligible customer in a particular standard zone, being an eligible customer who is not a residential/charity customer, if the call:

                     (a)  is a voice call or, if a voice call is not practical for a particular end-user with a disability, a call that is equivalent to a voice call; and

                     (b)  is made between points in the applicable zone in relation to the provider and in relation to the customer; and

                     (c)  is either:

                              (i)  of a kind that, immediately before 20 September 1996, a general carrier offered to supply, or supplied, on an untimed basis between points in that standard zone; or

                             (ii)  made using a standard telephone service supplied to the customer in fulfilment of the universal service obligation;

the call is an eligible local call unless the call involves the use, by at least one party to the call, of a public mobile telecommunications service, or a satellite service, that is not supplied to that party in fulfilment of the universal service obligation.

Note 1:       Eligible customer is defined by section 229.

Note 2:       Standard zone is defined by section 227.

Note 3:       Applicable zone is defined by section 228.

Note 4:       Untimed basis is defined by subsection (3).

             (3)  For the purposes of this section, calls of a particular kind are supplied on an untimed basis if, and only if, the charges for the calls of that kind are worked out by reference to the number of such calls made during a particular period, regardless of how long each call lasted.

             (4)  In this section:

general carrier means a person who held a general telecommunications licence under the Telecommunications Act 1991 immediately before 20 September 1996.

residential/charity 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.

satellite service means a carriage service, where customer equipment used in connection with the supply of the service communicates directly with a satellite-based facility.

226  Benefits for customers outside standard zones

             (1)  For the purposes of this section, if a customer of a carriage service provider is in Australia, but is not in a standard zone, the customer is a designated customer.

             (2)  The regulations may formulate a scheme to give benefits to designated customers, where the benefits:

                     (a)  relate to charges for calls made using a standard telephone service supplied to the customer; and

                     (b)  are comparable to the benefits given to eligible customers under section 223 (which deals with the requirement to provide an untimed local call option).

             (3)  For the purposes of subsection (2), a comparison of benefits is to have regard to (among other things), the ability to make calls to essential business and community services on an untimed basis.

             (4)  Regulations made for the purposes of subsection (2) may impose requirements on carriage service providers.

             (5)  A carriage service provider must comply with any applicable requirements imposed by regulations made for the purposes of subsection (2).

             (6)  The Minister must take all reasonable steps to ensure that, at all times on and after 1 January 1998, regulations are in force for the purposes of subsection (2).

             (7)  For the purposes of this section, charges for particular calls are worked out on an untimed basis if, and only if, the charges for those calls are worked out by reference to the number of such calls made during a particular period, regardless of how long each call lasted.

227  Standard zones

             (1)  For the purposes of this Part, if:

                     (a)  immediately before 1 July 1991, Telecom supplied, or offered to supply, to persons within a particular area within Australia, a carriage service that was, immediately before that date, a standard telephone service (within the meaning of the Telecommunications Act 1991); and

                     (b)  under the terms and conditions on which Telecom supplied, or would supply, that service to persons in that area, the charges for calls of a particular kind between points within that area made using the service were, or would be, worked out on an untimed basis;

that area is a standard zone.

Note:          Untimed basis is defined by subsection (2).

             (2)  For the purposes of this section, charges for calls of a particular kind are worked out on an untimed basis if, and only if, the charges for the calls of that kind are worked out by reference to the number of such calls made during a particular period, regardless of how long each call lasted.

             (3)  In this section:

Telecom means the Australian Telecommunications Corporation, as it existed immediately before 1 July 1991.

228  Applicable zones

             (1)  A reference in this Part to the applicable zone in relation to a carriage service provider and in relation to an eligible customer, being a customer in a particular standard zone, is a reference to whichever of the following is applicable:

                     (a)  if:

                              (i)  the provider is the universal service provider for the customer; and

                             (ii)  there is in force a written notice given to the ACA by the provider nominating a specified area as a nominated area; and

                            (iii)  the customer is in the nominated area and chooses to adopt that nominated area as the applicable zone in relation to the provider and in relation to the customer;

                            the nominated area;

                     (b)  if:

                              (i)  the provider is the universal service provider for the customer; and

                             (ii)  paragraph (a) does not apply;

                            the standard zone;

                     (c)  if:

                              (i)  the provider is not the universal service provider for the customer; and

                             (ii)  there is in force a written notice given to the ACA by the provider nominating a specified area as a nominated area; and

                            (iii)  the customer is in the nominated area;

                            the nominated area;

                     (d)  if:

                              (i)  the provider is not the universal service provider for the customer; and

                             (ii)  paragraph (c) does not apply;

                            the standard zone.

             (2)  To avoid doubt, an area nominated under subsection (1) may overlap a standard zone.

             (3)  For the purposes of this section, if:

                     (a)  a customer of a carriage service provider is in a particular area; and

                     (b)  the provider is the universal service provider for that area;

the provider is the universal service provider for the customer.

229  Eligible customer

                   For the purposes of this Part, if a customer of a carriage service provider is in a standard zone, the customer is an eligible customer.

230  Points

                   For the purposes of the application of this Part to a mobile-type carriage service, a point includes a mobile or potentially mobile point.

231  Application of this Part

                   This Part does not apply in relation to a contract for the supply of a standard telephone service if:

                     (a)  the contract was entered into before the commencement of this section; and

                     (b)  the contract would not have complied with this Part if it had been entered into immediately after the commencement of this section.

Part 9—Customer service guarantee

232  Simplified outline

                   The following is a simplified outline of this Part:

•      The ACA may make performance standards to be complied with by carriage service providers in relation to customer service.

•      If a carriage service provider contravenes a performance standard, the carriage service provider is liable to pay damages to the customer for the contravention.

•      The amount of damages payable for a particular contravention is equal to the relevant amount specified in the scale of damages determined by the ACA.

•      The Telecommunications Industry Ombudsman may issue an evidentiary certificate in relation to a contravention of a performance standard.

233  Interpretation

             (1)  In this Part:

customer includes prospective customer.

damages includes punitive damages.

             (2)  In determining the meaning that an expression has when used in a provision of this Act other than this Part, subsection (1) is to be disregarded.

234  Performance standards

             (1)  The ACA may, by written instrument, make standards to be complied with by carriage service providers in relation to:

                     (a)  the making of arrangements with customers about the period taken to comply with requests to connect customers to specified kinds of carriage services; and

                     (b)  the periods that carriage service providers may offer to customers when making those arrangements; and

                     (c)  the compliance by carriage service providers with the terms of those arrangements; and

                     (d)  the period taken to comply with requests to rectify faults or service difficulties relating to specified kinds of carriage services, where the rectification follows the making of a customer report about a fault or service difficulty; and

                     (e)  the keeping of appointments to meet customers, or representatives of customers, where the appointment relates to:

                              (i)  a connection of a kind covered by paragraph (a); or

                             (ii)  a rectification of a kind covered by paragraph (d); and

                      (f)  any other matter concerning the supply, or proposed supply, of a carriage service to a customer.

             (2)  A standard under this section that relates to a particular kind of carriage service does not apply to a particular carriage service provider in connection with the supply of that kind of service at a particular location unless the carriage service provider:

                     (a)  supplies that kind of service at that location; or

                     (b)  offers to supply that kind of service at that location.

             (3)  The ACA must not make a standard under this section unless it is directed to do so by the Minister under section 242.

             (4)  A standard under this section may be of general application or may be limited as provided in the standard. This subsection does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

             (5)  A standard under this section takes effect:

                     (a)  if the instrument making the standard specifies a day for the purpose—on that day; or

                     (b)  otherwise—on the day on which the standard was notified in the Gazette.

             (6)  A standard under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

235  Damages for breach of performance standards

             (1)  If:

                     (a)  a carriage service provider contravenes a standard in force under section 234; and

                     (b)  the contravention relates to a particular customer;

the carriage service provider is liable to pay damages to the customer for the contravention.

             (2)  The amount of damages payable for a particular contravention is equal to the relevant amount specified in the scale in force under section 236.

             (3)  However, if:

                     (a)  the carriage service provider:

                              (i)  credits an amount to an account that the customer has with the provider; or

                             (ii)  pays an amount to the customer; and

                     (b)  the credit or payment was made as a result of a right or remedy that:

                              (i)  was available to the customer otherwise than under this Division; and

                             (ii)  arose out of the same event or transaction as the contravention;

the amount of damages payable for the contravention is to be reduced (but not below zero) by the amount of the credit or payment.

             (4)  The customer may recover the amount of the damages by action against the carriage service provider in a court of competent jurisdiction.

             (5)  The liability of the carriage service provider under this section may be discharged:

                     (a)  by giving the customer a credit in an account the customer has with the carriage service provider; or

                     (b)  in any other manner agreed between the carriage service provider and the customer.

             (6)  An action under this section must be instituted within 2 years after:

                     (a)  in the case of a contravention that continued throughout a period—the time when the contravention began; or

                     (b)  in any other case—the time when the contravention occurred.

             (7)  If the customer dies, a reference in this section to the customer includes a reference to the legal personal representative of the customer.

236  Scale of damages for breach of performance standards

             (1)  The ACA may, by written instrument, specify a scale of damages for contraventions of standards under section 234.

             (2)  The scale must:

                     (a)  specify categories of contraventions; and

                     (b)  specify a dollar amount as the amount of damages payable for contraventions covered by each of those categories.

             (3)  A dollar amount specified in accordance with paragraph (2)(b) must not exceed $25,000.

             (4)  A category may be specified by reference to contraventions that continue over a specified number of days.

             (5)  Subsection (4) does not, by implication, limit the ways in which a category may be specified.

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

237  Evidentiary certificate issued by the Telecommunications Industry Ombudsman

             (1)  The Telecommunications Industry Ombudsman may issue a written certificate:

                     (a)  stating that a specified carriage service provider has contravened a standard in force under section 234; and

                     (b)  setting out particulars of that contravention.

             (2)  In any proceedings under this Part, a certificate under subsection (1) is prima facie evidence of the matters in the certificate.

             (3)  A document purporting to be a certificate under subsection (1) must, unless the contrary is established, be taken to be a certificate and to have been properly given.

             (4)  Subsection (1) does not apply to the Telecommunications Industry Ombudsman unless the Telecommunications Industry Ombudsman gives the Minister a written notice consenting to the conferral of the powers conferred by that subsection.

             (5)  If no notice is in force under subsection (4), subsection (1) has effect as if the reference in that subsection to the Telecommunications Industry Ombudsman were a reference to the ACA.

             (6)  The Minister must cause a copy of a notice under subsection (4) to be published in the Gazette.

             (7)  The continuity of a notice under subsection (4) is not affected by:

                     (a)  a change in the occupancy of the position of Telecommunications Industry Ombudsman; or

                     (b)  a vacancy in the position of Telecommunications Industry Ombudsman that does not continue for more than 4 months.

238  Waiver of customer service guarantee

             (1)  The ACA may, by written instrument, make provision for customers of carriage service providers to waive, in whole or in part, their protection and rights under this Part in relation to a particular carriage service supplied, or proposed to be supplied, by the carriage service provider concerned.

             (2)  If such a waiver is made, then, to the extent of the waiver, the carriage service provider is not bound by, and need not comply with, any standards in force under section 234 in relation to the supply of that service to that customer.

             (3)  A waiver must be made in accordance with the rules set out in the instrument.

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

239  Savings of other laws and remedies

             (1)  This Part is not intended to exclude or limit the concurrent operation of any law of a State or Territory.

             (2)  This Part does not limit, restrict or otherwise affect any right or remedy a person would have if this Part had not been enacted.

             (3)  This Part does not limit, restrict or otherwise affect the operation of the Telecommunications Industry Ombudsman scheme. In particular, this Part does not affect a customer’s right to complain to the Telecommunications Industry Ombudsman.

             (4)  Subsection (3) does not, by implication, limit subsection (2).

240  Breach of performance standard is not an offence

                   A contravention of a standard in force under section 234 is not an offence.

241  Clause 1 of Schedule 2 does not apply to a breach of a performance standard

                   Clause 1 of Schedule 2 does not apply to a contravention of a standard in force under section 234.

Note:          Clause 1 of Schedule 2 requires carriage service providers to comply with this Act.

242  Minister may direct the ACA about the use of its powers under this Part

             (1)  The Minister may give the ACA written directions about how the ACA is to exercise its powers under this Part.

             (2)  The ACA must comply with a direction under this section.

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

             (5)  The Minister must not give the ACA a direction under section 12 of the Australian Communications Authority Act 1997 about how the ACA is to exercise its powers under this Part.

243  Review of performance standards following Ministerial direction

             (1)  This section applies to a direction under section 242 that requires the ACA to make a standard under section 234.

             (2)  If the Minister revokes a direction, the ACA must revoke the section 234 standard that is in force because of the direction.

             (3)  If the Minister varies a direction, the ACA must either:

                     (a)  vary the section 234 standard that is in force because of the direction so that the standard complies with the varied direction; or

                     (b)  revoke the section 234 standard and determine a new section 234 standard that so complies.

             (4)  If a section 234 standard is in force because of a direction:

                     (a)  the ACA may vary the standard on its own initiative, but only in such a way that the varied standard still complies with the direction; and

                     (b)  the ACA may, on its own initiative, revoke the standard and determine a new section 234 standard that so complies.

Part 10—The Telecommunications Industry Ombudsman

244  Simplified outline

                   The following is a simplified outline of this Part:

•      Certain carriers and carriage service providers must enter into the Telecommunications Industry Ombudsman scheme.

•      The membership of the scheme must be open to all carriers and carriage service providers.

•      Carriers and carriage service providers must comply with the scheme.

245  Eligible carriage service providers

                   For the purposes of this Part, an eligible carriage service provider is:

                     (a)  a carriage service provider who supplies:

                              (i)  a standard telephone service, where any of the customers are residential customers or small business customers; or

                             (ii)  a public mobile telecommunications service; or

                            (iii)  a carriage service that enables end-users to access the Internet; or

                     (b)  a carriage service intermediary who arranges for the supply of a service referred to in subparagraph (a)(i) or (ii).

246  Telecommunications Industry Ombudsman scheme

             (1)  Each carrier and each eligible carriage service provider must, in association with other carriers and other eligible carriage service providers, enter into a scheme providing for a Telecommunications Industry Ombudsman.

Note:          Section 247 provides for exemptions from subsection (1) of this section.

             (2)  The scheme is to be known as the Telecommunications Industry Ombudsman scheme.

             (3)  The scheme must provide for the Telecommunications Industry Ombudsman to:

                     (a)  investigate; and

                     (b)  make determinations relating to; and

                     (c)  give directions relating to;

complaints about carriage services by end-users of those services.

             (4)  The following is an example of such a complaint: a complaint about billing, or the manner of charging, for the supply of carriage services.

             (5)  The scheme must not provide for the Telecommunications Industry Ombudsman to investigate complaints about:

                     (a)  the levels at which tariffs are set; or

                     (b)  the content of a content service.

             (6)  The membership of the scheme must be open to all:

                     (a)  carriers; and

                     (b)  carriage service providers.

247  Exemptions from requirement to join scheme

             (1)  The ACA may, by notice in the Gazette, declare that a specified carrier or eligible carriage service provider is exempt from the requirement set out in subsection 246(1). The declaration has effect accordingly.

Note:          Carriers or providers may be specified by name, by inclusion in a particular class or in any other way.

             (2)  In deciding whether a carrier or provider should be exempt from the requirement set out in subsection 246(1), the ACA must have regard to the following matters:

                     (a)  the extent to which the carrier or provider deals with residential customers in relation to the supply of carriage services;

                     (b)  the extent to which the carrier or provider deals with proprietors of small businesses in relation to the supply of carriage services;

                     (c)  the potential for complaints under the Telecommunications Industry Ombudsman scheme about services supplied by the carrier or provider.

             (3)  Subsection (2) does not, by implication, limit the matters to which the ACA may have regard.

             (4)  Before making a declaration under this section, the ACA must consult the Telecommunications Industry Ombudsman.

248  Direction to join scheme

             (1)  The ACA may give a carriage service provider a written notice directing the provider to enter into the Telecommunications Industry Ombudsman scheme.

             (2)  The provider must comply with the direction.

             (3)  In deciding whether to give a direction to a provider under this section, the ACA must have regard to the following matters:

                     (a)  the extent to which the provider deals with residential customers in relation to the supply of carriage services;

                     (b)  the extent to which the provider deals with proprietors of small businesses in relation to the supply of carriage services;

                     (c)  the potential for complaints under the Telecommunications Industry Ombudsman scheme about the services supplied by the provider.

             (4)  Subsection (3) does not, by implication, limit the matters to which the ACA may have regard.

             (5)  Before giving a direction under this section, the ACA must consult the Telecommunications Industry Ombudsman.

249  Determination that a class of carriage service providers must join scheme

             (1)  The ACA may make a written determination that the members of a specified class of carriage service providers must enter into the Telecommunications Industry Ombudsman scheme.

             (2)  A copy of the determination must be published in the Gazette.

             (3)  In deciding whether to make a determination under this section in relation to a class of carriage service providers, the ACA must have regard to the following matters:

                     (a)  the extent to which members of that class deal with residential customers in relation to the supply of carriage services;

                     (b)  the extent to which members of that class deal with proprietors of small businesses in relation to the supply of carriage services;

                     (c)  the potential for complaints under the Telecommunications Industry Ombudsman scheme about services supplied by members of that class.

             (4)  Subsection (3) does not, by implication, limit the matters to which the ACA may have regard.

             (5)  Before making a determination under this section, the ACA must consult the Telecommunications Industry Ombudsman.

250  Members of scheme must comply with scheme

                   A carrier or carriage service provider who is a member of the Telecommunications Industry Ombudsman scheme must comply with the scheme.

251  Register of members of scheme

             (1)  The Telecommunications Industry Ombudsman is to maintain a Register of the names of the members of the Telecommunications Industry Ombudsman scheme.

             (2)  The Register may be maintained by electronic means.

             (3)  The Telecommunications Industry Ombudsman must ensure that the Register is open for inspection, at all reasonable times, by members of the public.

Part 11—Protection for residential customers against failure by carriage service providers to provide standard carriage services

252  Simplified outline

                   The following is a simplified outline of this Part:

•      The ACA may determine that certain payments received by a carriage service provider from residential customers are protected payments.

•      The ACA may formulate schemes aimed at ensuring that if:

               (a)     a residential customer of a carriage service provider makes a protected payment to the provider; and

               (b)     the provider fails to supply a standard telephone service to the customer;

       the customer is protected.

•      A protection scheme may be enforced by the Federal Court on the application of the ACA or a residential customer.

253  Scope of Part

             (1)  This Part applies to a carriage service provider if the provider supplies, or proposes to supply, a standard telephone service to residential customers.

             (2)  A carriage service provider is exempt from this Part if the provider was a carrier (within the meaning of the Telecommunications Act 1991) immediately before 1 July 1997.

             (3)  The ACA may, by notice in the Gazette, declare that a specified provider is exempt from this Part. The declaration has effect accordingly.

Note:          Providers may be specified by name, by inclusion in a particular class or in any other way.

             (4)  In deciding whether a person should be exempt from this Part, the ACA must have regard to the following matters:

                     (a)  the duration of the prior period (if any) during which the person carried on business in Australia as a carriage service provider;

                     (b)  the scale of the person’s prior operations in Australia as a carriage service provider;

                     (c)  the person’s business record;

                     (d)  if the person is a partnership—the business record of each of the partners;

                     (e)  if the person is an incorporated company—the business record of each individual, by whatever name called and whether or not a director of the company, who is concerned, or takes part, in the management of the company.

             (5)  Subsection (4) does not, by implication, limit the matters to which the ACA may have regard.

254  Standard residential customer

             (1)  For the purposes of this Part, if a residential customer, or a proposed residential customer, of a carriage service provider is supplied, or proposed to be supplied, with a standard telephone service by the provider, then:

                     (a)  the customer is a standard residential customer of the provider; and

                     (b)  the service is a standard carriage service.

             (2)  Subsection (1) does not apply to a standard telephone service if:

                     (a)  the service is a public mobile telecommunications service; and

                     (b)  the service is neither supplied, nor proposed to be supplied, to the customer in fulfilment of the universal service obligation.

255  Protected payments

             (1)  The ACA may make a written determination that a specified payment made, or liable to be made, to a carriage service provider by a standard residential customer of that provider is a protected payment for the purposes of this Part. The determination has effect accordingly.

Note:          Payments may be specified by name, by inclusion in a particular class or in any other way.

             (2)  The payment must be received, or proposed to be received, by the provider directly or indirectly in connection with its business as a carriage service provider.

             (3)  The following are examples of payments that may be specified in the determination:

                     (a)  payments for line rental;

                     (b)  payments for equipment rental;

                     (c)  payments by way of connection fees;

                     (d)  a pre-payment for a standard carriage service.

             (4)  For each protected payment, the determination must specify, or specify a means of ascertaining, a period for the purposes of this subsection. That period is called the minimum service period for the payment.

             (5)  The minimum service period for a protected payment:

                     (a)  must begin when the payment is made; and

                     (b)  must not run for longer than 2 years.

             (6)  A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

256  Compliance with protection schemes for protected payments

             (1)  Before demanding or receiving a protected payment, a carriage service provider must give the ACA a written election to be bound by a specified scheme formulated under this Part.

             (2)  If a carriage service provider gives the ACA such an election, the provider is bound by, and must comply with, the scheme specified in the election.

             (3)  If an election under this section is in force in relation to a particular scheme (the original scheme), the provider may give the ACA a written notice varying the election by omitting the original scheme and substituting another scheme formulated under this Part. The variation takes effect at the time specified in the notice.

             (4)  Despite the variation, the original scheme continues to apply, in relation to protected payments made before the variation took effect, as if the variation had not been made.

257  Protection schemes for protected payments—alternative supply of standard carriage services

             (1)  The ACA may, by written instrument, formulate a scheme that requires a carriage service provider bound by the scheme to enter into and maintain a legally enforceable arrangement aimed at ensuring that, if:

                     (a)  a residential customer of the provider makes a protected payment to the provider; and

                     (b)  at any time during the minimum service period for that payment, the provider fails to supply standard carriage services to the customer;

the customer:

                     (c)  is supplied, during the remainder of the period, with standard carriage services that are equivalent to the standard carriage services that the provider has not supplied; and

                     (d)  is not required to pay more for the supply of those equivalent services than the customer would have had to pay had the provider supplied them.

             (2)  A scheme formulated under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

258  Protection schemes for protected payments—third party guarantee

             (1)  The ACA may, by written instrument, formulate a scheme that:

                     (a)  makes a carriage service provider that is bound by the scheme liable, in the event that:

                              (i)  a residential customer of the provider makes a protected payment to the provider; and

                             (ii)  at any time during the minimum service period for that payment, the provider fails to supply standard carriage services to the customer;

                            to reimburse the payment on a pro-rata basis in proportion to that part or parts of the period during which the provider fails to supply the services to the customer; and

                     (b)  requires the provider to obtain a guarantee from a third person in respect of the provider’s discharge of that liability.

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

259  Protection schemes for protected payments—insurance cover

             (1)  The ACA may, by written instrument, formulate a scheme that:

                     (a)  makes a carriage service provider that is bound by the scheme liable, in the event that:

                              (i)  a residential customer of the provider makes a protected payment to the provider; and

                             (ii)  at any time during the minimum service period for that payment, the provider fails to supply standard carriage services to the customer;

                            to reimburse the payment on a pro-rata basis in proportion to that part or parts of the period during which the provider fails to supply the services to the customer; and

                     (b)  requires the provider to take out and maintain an insurance policy to indemnify residential customers against a total or partial failure to discharge that liability.

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

260  Protection schemes for protected payments—holding of payments in trust accounts

             (1)  The ACA may, by written instrument, formulate a scheme that:

                     (a)  makes a carriage service provider that is bound by the scheme liable, in the event that:

                              (i)  a residential customer of the provider makes a protected payment to the provider; and

                             (ii)  at any time during the minimum service period for that payment, the provider fails to supply standard carriage services to the customer;

                            to reimburse the payment on a pro-rata basis in proportion to that part or parts of the period during which the provider fails to supply the services to the customer; and

                     (b)  requires the provider to hold protected payments it receives in trust accounts; and

                     (c)  prohibits the provider from transferring any or all of the money in such an account to its beneficial ownership except in accordance with the draw-down rules set out in the scheme.

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

261  Waiver of protection by customers

             (1)  A scheme formulated under this Part may provide for standard residential customers of a carriage service provider to waive their protection and rights under the scheme in relation to a particular protected payment made to the provider.

             (2)  If such a waiver is made, the provider is not bound by, and need not comply with, the scheme in relation to that payment.

             (3)  A waiver must be made in accordance with the rules set out in the scheme concerned.

             (4)  Rules mentioned in subsection (3) may require a carriage service provider to inform a customer about the consequences of a waiver.

             (5)  Subsection (4) does not, by implication, limit the matters that may be dealt with by:

                     (a)  a code registered under Part 6; or

                     (b)  a standard under Part 6.

262  Incidental rules

             (1)  A scheme formulated under this Part may require carriage service providers to comply with such ancillary or incidental rules (if any) as are set out in the scheme.

             (2)  Those rules include (but are not limited to) requiring carriage service providers to inform their standard residential customers about matters relating to the implementation of the scheme.

263  Enforcement of protection schemes

             (1)  This section applies if a carriage service provider is bound by a scheme formulated under this Part.

             (2)  If:

                     (a)  the ACA; or

                     (b)  a standard residential customer of the provider;

thinks that the provider has:

                     (c)  failed to discharge a liability of the provider under the scheme; or

                     (d)  otherwise breached the scheme;

the ACA or the customer may apply to the Federal Court for an order under subsection (3).

             (3)  If the Federal Court is satisfied that the provider has:

                     (a)  failed to discharge a liability of the provider under the scheme; or

                     (b)  otherwise breached the scheme;

the Court may make all or any of the following orders:

                     (c)  an order directing the provider to discharge a liability under the scheme;

                     (d)  an order directing the provider to comply with the scheme;

                     (e)  an order directing the provider to compensate any person who has suffered loss or damage as a result of the breach;

                      (f)  any other order that the Court thinks appropriate.

             (4)  The Federal Court may discharge or vary an order granted under this section.

             (5)  This section does not, by implication, limit other remedies.

             (6)  A reference in this section to a carriage service provider includes a reference to:

                     (a)  in a case where the provider is an individual or a partnership—the provider’s trustee in bankruptcy; or

                     (b)  in a case where the provider is a body corporate or a partnership—each of the following:

                              (i)  a receiver, receiver and manager, or other controller, of property of the body or partnership;

                             (ii)  an administrator of the body or partnership;

                            (iii)  an administrator of a deed of arrangement entered into by the body or partnership;

                            (iv)  a liquidator or provisional liquidator of the body or partnership;

                             (v)  a trustee or other person administering a compromise or arrangement made between the body or partnership and any other person or persons.

Part 12—Provision of emergency call services

264  Simplified outline

                   The following is a simplified outline of this Part:

•      The ACA may impose requirements on any or all of the following:

               (a)     carriers;

               (b)     carriage service providers;

               (c)     emergency call persons;

       in relation to emergency call services.

265  Provision of emergency call services

             (1)  The ACA must make a written determination imposing requirements on any or all of the following:

                     (a)  carriers;

                     (b)  carriage service providers;

                     (c)  emergency call persons;

in relation to emergency call services.

             (2)  In making a determination under this section, the ACA must have regard to the following:

                     (a)  the objective that a carriage service provider who supplies a standard telephone service should provide each end-user of that standard telephone service with access, free of charge, to an emergency call service, unless the ACA considers that it would be unreasonable for such access to be provided;

                     (b)  the objective that, if a carriage service provider who supplies a standard telephone service is required to provide each end-user of that standard telephone service with access to an emergency call service operated by a recognised person, the recognised person should:

                              (i)  receive and handle calls made by those end‑users to the relevant emergency service number; and

                             (ii)  if appropriate—transfer such calls to an appropriate emergency service organisation; and

                            (iii)  if appropriate—give information in relation to such calls to an appropriate emergency service organisation;

                     (c)  the objective that emergency service organisations should not be charged for services provided by a recognised person who operates an emergency call service, being services by way of:

                              (i)  receiving and handling calls to an emergency service number; or

                             (ii)  transferring such calls to an emergency service organisation; or

                            (iii)  giving information in relation to such calls to an emergency service organisation;

                     (d)  the objective that emergency service organisations should not be charged for the following carriage services:

                              (i)  carriage services used to connect calls made to an emergency service number;

                             (ii)  carriage services used to transfer such calls to an emergency service organisation;

                            (iii)  carriage services used to give information in relation to such calls to an emergency service organisation;

                     (e)  the objective that, as far as practicable, a common system is used to:

                              (i)  transfer calls made to an emergency service number to an emergency service organisation; and

                             (ii)  give information in relation to such calls to an emergency service organisation;

                      (f)  the objective that calls made to an emergency service number are transferred to an appropriate emergency service organisation with the minimum of delay;

                     (g)  the objective that, from the perspective of an ordinary end-user of a standard telephone service, there appears to be a single national emergency call system;

                     (h)  the objective that reasonable community expectations for the handling of calls to emergency service numbers are met;

                      (i)  the objective that carriage services used to make calls to an emergency service number should, as far as practicable, provide the emergency call person concerned with automatic information about:

                              (i)  the location of the caller; and

                             (ii)  the identity of the customer of the service being used by the caller;

                      (j)  the objective that carriers should provide carriage service providers with access to:

                              (i)  controlled carriage services of the carriers; and

                             (ii)  controlled networks of the carriers; and

                            (iii)  controlled facilities of the carriers;

                            in order that the providers can comply with their obligations under the determination;

                     (k)  the objective that carriage service providers should provide other carriage service providers with access to:

                              (i)  controlled carriage services of the first‑mentioned providers; and

                             (ii)  controlled networks of the first‑mentioned providers; and

                            (iii)  controlled facilities of the first‑mentioned providers;

                            in order that the other providers can comply with their obligations under the determination;

                      (l)  the objective that a determination should be consistent with the following:

                              (i)  Principle 11 of the Information Privacy Principles set out in section 14 of the Privacy Act 1988;

                             (ii)  codes registered under Part 6;

                            (iii)  standards determined under Part 6.

             (3)  Subsection (2) does not, by implication, limit the matters to which the ACA may have regard.

             (4)  A determination under this section may deal with ancillary or incidental matters, including the protection of the privacy of information transmitted in connection with a call to an emergency service number.

             (5)  A determination under this section may deal with performance standards, including (but not limited to) performance standards relating to:

                     (a)  the answering of calls to emergency service numbers; and

                     (b)  delays in transferring calls made to an emergency service number to the appropriate emergency service organisation; and

                     (c)  the handling of complaints about emergency call services.

             (6)  Subsections (4) and (5) do not, by implication, limit subsection (1).

             (7)  A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

             (8)  In making a determination under this section, the ACA may apply, adopt or incorporate (with or without modification) any matter contained in a code or standard proposed or approved by a body or association, either:

                     (a)  as in force or existing at a particular time; or

                     (b)  as in force or existing from time to time.

This subsection does not, by implication, limit section 589.

             (9)  Before making a determination under this section, the ACA must consult representatives of each of the following groups:

                     (a)  carriers;

                     (b)  carriage service providers;

                     (c)  recognised persons who operate an emergency call service;

                     (d)  emergency service organisations;

                     (e)  consumers of standard telephone services.

           (10)  A carriage service provider may provide the access referred to in paragraph (2)(a) itself or by arranging with another person for the access to be provided.

           (11)  In this section:

emergency service organisation means:

                     (a)  a police force or service; or

                     (b)  a fire service; or

                     (c)  an ambulance service; or

                     (d)  a service specified in the numbering plan for the purposes of this paragraph; or

                     (e)  a service for despatching a force or service referred to in paragraph (a), (b), (c) or (d).

266  Compliance with determination

             (1)  A person on whom a requirement is imposed by a determination in force under section 265 must comply with the determination.

             (2)  Subsection (1) has effect subject to sections 267 and 269.

             (3)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of subsection (1); or

                     (b)  induce, whether by threats or promises or otherwise, a contravention of subsection (1); or

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or

                     (d)  conspire with others to effect a contravention of subsection (1).

             (4)  Subsections (1) and (3) are civil penalty provisions.

Note:          Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

267  Access to emergency call services

             (1)  This section applies if:

                     (a)  an emergency call service is operated by a recognised person; and

                     (b)  a determination under section 265 requires a carriage service provider who supplies a standard telephone service to provide each end-user of that standard telephone service with access to that emergency call service; and

                     (c)  a determination under section 265 requires the recognised person to:

                              (i)  receive and handle calls made by those end‑users to the relevant emergency service number; and

                             (ii)  if appropriate—transfer such calls to an appropriate emergency service organisation; and

                            (iii)  if appropriate—give information in relation to such calls to an appropriate emergency service organisation.

             (2)  The recognised person must comply with the requirement mentioned in paragraph (1)(c) on such terms and conditions as are:

                     (a)  agreed between the following parties:

                              (i)  the carriage service provider;

                             (ii)  the recognised person; or

                     (b)  failing agreement, determined by an arbitrator appointed by the parties.

If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.

             (3)  The regulations may make provision for and in relation to the conduct of an arbitration under this section.

             (4)  The regulations may provide that, for the purposes of a particular arbitration conducted by the ACCC under this section, the ACCC may be constituted by a single member, or a specified number of members, of the ACCC. For each such arbitration, that member or those members are to be nominated in writing by the Chairperson of the ACCC.

             (5)  Subsection (4) does not, by implication, limit subsection (3).

             (6)  A determination made in an arbitration under this section must not be inconsistent with a Ministerial pricing determination in force under section 268.

268  Ministerial pricing determinations

             (1)  The Minister may make a written determination setting out principles dealing with price‑related terms and conditions relating to requirements of a kind referred to in subsection 267(1). The determination is to be known as a Ministerial pricing determination.

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

             (3)  In this section:

price-related terms and conditions means terms and conditions relating to price or a method of ascertaining price.

269  Access to be provided

             (1)  This section applies if a determination under section 265 requires a person to provide access as mentioned in paragraph 265(2)(j) or (k).

             (2)  The person must provide that access in accordance with the requirements set out in the determination and on such terms and conditions as are:

                     (a)  agreed between the following parties:

                              (i)  the person;

                             (ii)  the carriage service provider to whom access is required to be provided; or

                     (b)  failing agreement, determined by an arbitrator appointed by the parties.

If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.

             (3)  The regulations may make provision for and in relation to the conduct of an arbitration under this section.

             (4)  The regulations may provide that, for the purposes of a particular arbitration conducted by the ACCC under this section, the ACCC may be constituted by a single member, or a specified number of members, of the ACCC. For each such arbitration, that member or those members are to be nominated in writing by the Chairperson of the ACCC.

             (5)  Subsection (4) does not, by implication, limit subsection (3).

Part 13—Protection of communications

Division 1—Introduction

270  Simplified outline

                   The following is a simplified outline of this Part:

     Carriers, carriage service providers, number-database operators, emergency call persons and their respective associates must protect the confidentiality of information that relates to:

               (a)     the contents of communications that have been, or are being, carried by carriers or carriage service providers; and

               (b)     carriage services supplied by carriers and carriage service providers; and

               (c)     the affairs or personal particulars of other persons.

     The disclosure or use of protected information is authorised in limited circumstances (for example, disclosure or use for purposes relating to the enforcement of the criminal law).

     An authorised recipient of protected information may only disclose or use the information for an authorised purpose.

     Certain record‑keeping requirements are imposed in relation to authorised disclosures or uses of information.

271  Eligible person

                   For the purposes of this Part, an eligible person is a person who is:

                     (a)  a carrier; or

                     (b)  a carriage service provider; or

                     (c)  an employee of a carrier; or

                     (d)  an employee of a carriage service provider; or

                     (e)  a telecommunications contractor; or

                      (f)  an employee of a telecommunications contractor.

272  Number-database operator and eligible number-database person

             (1)  For the purposes of this Part, a number-database operator is a person in respect of which a determination is in force under subsection 472(1).

             (2)  For the purposes of this Part, an eligible number-database person is a person who is:

                     (a)  a number-database operator; or

                     (b)  an employee of a number-database operator; or

                     (c)  a number-database contractor; or

                     (d)  an employee of a number-database contractor.

273  Information

                   A reference in this Part to information includes a reference to opinion.

274  Telecommunications contractor

                   A reference in this Part to a telecommunications contractor is a reference to a person who performs services for or on behalf of:

                     (a)  a carrier; or

                     (b)  a carriage service provider;

but does not include a reference to a person who performs such services in the capacity of an employee of the carrier or provider.

275  Number-database contractor

                   A reference in this Part to a number-database contractor is a reference to a person who performs services for or on behalf of a number-database operator, but does not include a reference to a person who performs such services in the capacity of an employee of the operator.

Division 2—Primary disclosure/use offences

276  Primary disclosure/use offence—eligible persons

Current eligible persons

             (1)  An eligible person must not disclose or use any information or document that:

                     (a)  relates to:

                              (i)  the contents or substance of a communication that has been carried by a carrier or carriage service provider; or

                             (ii)  the contents or substance of a communication that is being carried by a carrier or carriage service provider (including a communication that has been collected or received by such a carrier or provider for carriage by it but has not been delivered by it); or

                            (iii)  carriage services supplied, or intended to be supplied, to another person by a carrier or carriage service provider; or

                            (iv)  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:

                              (i)  if the person is a carrier or carriage service provider—in connection with the person’s business as such a carrier or provider; or

                             (ii)  if the person is an employee of a carrier or carriage service provider—because the person is employed by the carrier or provider in connection with its business as such a carrier or provider; or

                            (iii)  if the person is a telecommunications contractor—in connection with the person’s business as such a contractor; or

                            (iv)  if the person is an employee of a telecommunications contractor—because the person is employed by the contractor in connection with its business as such a contractor.

Former eligible persons

             (2)  A person who has been an eligible person must not disclose or use any information 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:

                              (i)  if the person was a carrier or carriage service provider—in connection with the person’s business as such a carrier or provider; or

                             (ii)  if the person was an employee of a carrier or carriage service provider—because the person was employed by the carrier or provider in connection with its business as such a carrier or provider; or

                            (iii)  if the person was a telecommunications contractor—in connection with the person’s business as such a contractor; or

                            (iv)  if the person was an employee of a telecommunications contractor—because the person was employed by the contractor in connection with its business as such a contractor.

Offence

             (3)  A person who intentionally or recklessly contravenes this section is guilty of an offence punishable on conviction by imprisonment for a term not exceeding 2 years.

Note 1:       This section is subject to the exceptions in Division 3.

Note 2:       See also sections 4AA and 4B of the Crimes Act 1914.

Scope of subsection (1)—carriage by means of electromagnetic energy

             (4)  Subparagraphs (1)(a)(i) and (ii) do not apply to a communication that is or has been carried by a carrier or carriage service provider unless the carriage was by means of, is by means of, or is proposed to be delivered by means of, guided and/or unguided electromagnetic energy.

277  Primary disclosure/use offence—eligible number-database persons

Current eligible number-database persons

             (1)  An eligible number-database person must not disclose or use any information or document that:

                     (a)  relates to:

                              (i)  carriage services supplied, or intended to be supplied, to another person by a carrier or carriage service provider; or

                             (ii)  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:

                              (i)  if the person is a number-database operator—in connection with the person’s business as such an operator; or

                             (ii)  if the person is an employee of a number-database operator—because the person is employed by the operator in connection with its business as such an operator; or

                            (iii)  if the person is a number-database contractor—in connection with the person’s business as such a contractor; or

                            (iv)  if the person is an employee of a number-database contractor—because the person is employed by the contractor in connection with its business as such a contractor.

Former eligible number-database persons

             (2)  A person who has been an eligible number-database person must not disclose or use any information 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:

                              (i)  if the person was a number-database operator—in connection with the person’s business as such an operator; or

                             (ii)  if the person was an employee of a number-database operator—because the person was employed by the operator in connection with its business as such an operator; or

                            (iii)  if the person was a number-database contractor—in connection with the person’s business as such a contractor; or

                            (iv)  if the person was an employee of a number-database contractor—because the person was employed by the contractor in connection with its business as such a contractor.

 

Offence

             (3)  A person who intentionally or recklessly contravenes this section is guilty of an offence punishable on conviction by imprisonment for a term not exceeding 2 years.

Note 1:       This section is subject to the exceptions in Division 3.

Note 2:       See also sections 4AA and 4B of the Crimes Act 1914.

278  Primary disclosure/use offence—emergency call persons

Current emergency call persons

             (1)  An emergency call person must not disclose or use any information or document that:

                     (a)  relates to:

                              (i)  the contents or substance of a communication that has been carried by a carrier or carriage service provider; or

                             (ii)  the contents or substance of a communication that is being carried by a carrier or carriage service provider; 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, in connection with the operation of an emergency call service.

Former emergency call persons

             (2)  A person who has been an emergency call person must not disclose or use any information 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, in connection with the operation of an emergency call service.

Offence

             (3)  A person who intentionally or recklessly contravenes this section is guilty of an offence punishable on conviction by imprisonment for a term not exceeding 2 years.

Note 1:       This section is subject to the exceptions in Division 3.

Note 2:       See also sections 4AA and 4B of the Crimes Act 1914.

Scope of subsection (1)—carriage by means of electromagnetic energy

             (4)  Subparagraphs (1)(a)(i) and (ii) do not apply to a communication that is or has been carried by a carrier or carriage service provider unless the carriage was by means of, is by means of, or is proposed to be delivered by means of, guided and/or unguided electromagnetic energy.

Division 3—Exceptions to primary disclosure/use offences

Subdivision A—Exceptions

279  Performance of person’s duties

             (1)  Section 276 does not prohibit a disclosure or use by a person of information or a document if:

                     (a)  the person is an employee of:

                              (i)  a carrier; or

                             (ii)  a carriage service provider; or

                            (iii)  a telecommunications contractor; and

                     (b)  the disclosure or use is made in the performance of the person’s duties as such an employee.

             (2)  Section 276 does not prohibit a disclosure or use by a person of information or a document if:

                     (a)  the person is a telecommunications contractor; and

                     (b)  the disclosure or use is made in the performance of the person’s duties as such a contractor.

             (3)  Section 277 does not prohibit a disclosure or use by a person of information or a document if:

                     (a)  the person is an employee of:

                              (i)  a number-database operator; or

                             (ii)  a number-database contractor; and

                     (b)  the disclosure or use is made in the performance of the person’s duties as such an employee.

             (4)  Section 277 does not prohibit a disclosure or use by a person of information or a document if:

                     (a)  the person is a number-database contractor; and

                     (b)  the disclosure or use is made in the performance of the person’s duties as such a contractor.

             (5)  Section 278 does not prohibit a disclosure or use by a person of information or a document if:

                     (a)  the person is an employee of:

                              (i)  a recognised person who operates an emergency call service; or

                             (ii)  an emergency call contractor; and

                     (b)  the disclosure or use is made in the performance of the person’s duties as such an employee.

             (6)  Section 278 does not prohibit a disclosure or use by a person of information or a document if:

                     (a)  the person is an emergency call contractor; and

                     (b)  the disclosure or use is made in the performance of the person’s duties as such a contractor.

280  Authorisation by or under law

             (1)  Division 2 does not prohibit a disclosure or use of information or a document if:

                     (a)  in a case where the disclosure or use is in connection with the operation of an enforcement agency—the disclosure or use is required or authorised under a warrant; or

                     (b)  in any other case—the disclosure or use is required or authorised by or under law.

             (2)  In this section:

enforcement agency has the same meaning as in section 282.

281  Witnesses

                   Division 2 does not prohibit a disclosure by a person of information or a document if the person makes the disclosure as a witness summoned to give evidence or to produce documents.

282  Law enforcement and protection of public revenue

             (1)  Division 2 does not prohibit a disclosure or use by a person of information or a document if the disclosure or use is reasonably necessary for the enforcement of the criminal law.

             (2)  Sections 276 and 277 do not prohibit a disclosure or use by a person of information or a document if the disclosure or use is reasonably necessary for:

                     (a)  the enforcement of a law imposing a pecuniary penalty; or

                     (b)  the protection of the public revenue.

             (3)  Division 2 does not prohibit a disclosure by a person of information or a document if an authorised officer of a criminal law-enforcement agency has certified that the disclosure is reasonably necessary for the enforcement of the criminal law.

             (4)  Sections 276 and 277 do not prohibit a disclosure by a person of information or a document if an authorised officer of:

                     (a)  a criminal law-enforcement agency; or

                     (b)  a civil penalty-enforcement agency;

has certified that the disclosure is reasonably necessary for the enforcement of a law imposing a pecuniary penalty.

             (5)  Sections 276 and 277 do not prohibit a disclosure by a person of information or a document if an authorised officer of:

                     (a)  a criminal law-enforcement agency; or

                     (b)  a public revenue agency;

has certified that the disclosure is reasonably necessary for the protection of the public revenue.

             (6)  Subsections (3), (4) and (5) do not apply to the disclosure by a person of information or a document that relates to:

                     (a)  the contents or substance of a communication that has been carried by a carrier or carriage service provider; or

                     (b)  the contents or substance of a communication that is being carried by a carrier or carriage service provider (including a communication that has been collected or received by such a carrier or provider for carriage by it but has not been delivered by it).

             (7)  A certificate under subsection (3), (4) or (5) must comply with such requirements as are determined in writing by the ACA.

             (8)  Before making a determination under subsection (7), the ACA must consult the Privacy Commissioner.

             (9)  A certificate under subsection (3), (4) or (5) may be:

                     (a)  in written form; or

                     (b)  in electronic form (for example, electronic mail).

           (10)  In this section:

agency includes a Department of the Commonwealth, a State or a Territory.

authorised officer, in relation to an enforcement agency, means a senior officer of the agency authorised in writing by the head of the agency to give certificates for the purposes of this section.

civil penalty-enforcement agency means an agency responsible for administering a law imposing a pecuniary penalty.

criminal law-enforcement agency means:

                     (a)  the Australian Federal Police; or

                     (b)  a police force or service of a State or a Territory; or

                     (c)  the National Crime Authority; or

                     (d)  the New South Wales Crime Commission; or

                     (e)  the Independent Commission Against Corruption of New South Wales; or

                      (f)  the Criminal Justice Commission of Queensland; or

                     (g)  a prescribed authority established by or under a law of the Commonwealth, a State or a Territory; or

                     (h)  a body or organisation responsible to the Australasian Police Ministers’ Council for the facilitation of national law enforcement support;

and includes the National Exchange of Police Information.

enforcement agency means:

                     (a)  a criminal law-enforcement agency; or

                     (b)  a civil penalty-enforcement agency; or

                     (c)  a public revenue agency.

officer, in relation to an enforcement agency, means:

                     (a)  a member of the agency; or

                     (b)  an officer, employee or member of staff of the agency.

public revenue agency means an agency responsible for the administration of a law relating to the protection of the public revenue, and includes the Australian Taxation Office.

senior officer, in relation to an enforcement agency, means:

                     (a)  if the agency is a police force or service—a commissioned officer of that force or service; or

                     (b)  if the agency has a senior executive service (however described)—an officer of that service; or

                     (c)  if the agency does not have a senior executive service (however described)—an officer of the agency (by whatever name called) who is concerned in, or takes part in, the management of the agency; or

                     (d)  if a group of officers of the agency perform their duties at premises that are:

                              (i)  occupied by the agency; and

                             (ii)  located at a place outside the boundaries of a capital city of a State or internal Territory;

                            the most senior of that group of officers.

For the purposes of paragraph (d), the boundaries of a capital city are to be ascertained in accordance with the regulations. However, if no regulations are in force, the boundary of a capital city is a circle with a 50 kilometre radius from the general post office of the capital city.

283  ASIO

             (1)  Division 2 does not prohibit a disclosure of information or a document if the disclosure is made:

                     (a)  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

                     (b)  in connection with the performance by the Organization of its functions.

             (2)  Division 2 does not prohibit a disclosure of information or a document if:

                     (a)  the disclosure is made 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

                     (b)  an officer or employee of the Organization authorised in writing by the Director-General for the purposes of this paragraph has certified that the disclosure would be connected with the performance by the Organization of its functions.

284  Assisting the ACA, the ACCC or the Telecommunications Industry Ombudsman

             (1)  Sections 276 and 277 do not prohibit a disclosure by a person of information or a document if:

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

                     (b)  the information or document may assist the ACA to carry out its functions or powers.

             (2)  Sections 276 and 277 do not prohibit a disclosure by a person of information or a document if:

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

                     (b)  the information or document may assist the ACCC to carry out its telecommunications functions and powers.

             (3)  Sections 276 and 277 do not prohibit a disclosure by a person of information or a document if:

                     (a)  the disclosure is made to the Telecommunications Industry Ombudsman, or to an employee of the Telecommunications Industry Ombudsman; and

                     (b)  the information or document may assist the Telecommunications Industry Ombudsman in the consideration of a complaint made to the Telecommunications Industry Ombudsman.

285  Integrated public number database

             (1)  Sections 276 and 277 do not prohibit a disclosure or use by a person of information or a document if:

                     (a)  the information or document relates to information (other than information relating to an unlisted telephone number) contained in an integrated public number database; and

                     (b)  the information or document relates to:

                              (i)  carriage services supplied, or intended to be supplied, to another person by a carrier or carriage service provider; or

                             (ii)  the affairs or personal particulars of another person (other than an address relating to an unlisted telephone number); and

                     (c)  the disclosure or use is made for purposes connected with:

                              (i)  the provision of directory assistance services by or on behalf of a carriage service provider; or

                             (ii)  the publication or maintenance of a directory of public numbers, where the directory does not enable a person who only knows a customer’s number to readily identify the customer’s name and/or address; or

                            (iii)  dealing with the matter or matters raised by a call to an emergency service number.

             (2)  In this section:

integrated public number database means:

                     (a)  an integrated public number database maintained by Telstra as mentioned in Part 4 of Schedule 2; or

                     (b)  an integrated public number database maintained by a person as mentioned in section 472.

public number means a number specified in the numbering plan as mentioned in subsection 455(3), but does not include an unlisted number.

286  Calls to emergency service number

                   Division 2 does not prohibit a disclosure by a person of information or a document if:

                     (a)  the information or document came to the person’s knowledge, or into the person’s possession, because of a call to an emergency service number; and

                     (b)  the information, or the contents of the document, consists of any or all of the following:

                              (i)  a name;

                             (ii)  a telephone number;

                            (iii)  an address;

                            (iv)  a location;

                             (v)  the matter or matters raised by the call; and

                     (c)  the disclosure is made to:

                              (i)  a member of a police force or service; or

                             (ii)  a member of a fire service; or

                            (iii)  a member of an ambulance service; or

                            (iv)  an emergency call person; or

                             (v)  a member of a service specified in the numbering plan for the purposes of this subparagraph; or

                            (vi)  a service for despatching a force or service referred to in subparagraph (i), (ii), (iii) or (v);

                            for purposes connected with dealing with the matter or matters raised by the call.

287  Threat to person’s life or health

                   Division 2 does not prohibit a disclosure or use by a person (the first person) of information or a document if:

                     (a)  the information or document relates to the affairs or personal particulars (including any unlisted telephone number or any address) of another person; and

                     (b)  the first person believes on reasonable grounds that the disclosure or use is reasonably necessary to prevent or lessen a serious and imminent threat to the life or health of a person.

288  Communications for maritime purposes

                   Division 2 does not prohibit a disclosure or use of information or a document if:

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

                     (b)  the disclosure or use:

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

                             (ii)  is made for maritime communications purposes.

289  Knowledge or consent of person concerned

                   Division 2 does not prohibit a disclosure or use by a person of information or a document if:

                     (a)  the information or document relates to the affairs or personal particulars (including any unlisted telephone number or any address) of another person; and

                     (b)  the other person:

                              (i)  is reasonably likely to have been aware or made aware that information or a document of that kind is usually disclosed, or used, as the case requires, in the circumstances concerned; or

                             (ii)  has consented to the disclosure, or use, as the case requires, in the circumstances concerned.

290  Implicit consent of sender and recipient of communication

                   Section 276 does not prohibit a disclosure or use by a person if:

                     (a)  the information or document relates to the contents or substance of a communication made by another person; and

                     (b)  having regard to all the relevant circumstances, it might reasonably be expected that the sender and the recipient of the communication would have consented to the disclosure or use, if they had been aware of the disclosure or use.

291  Business needs of other carriers or service providers

             (1)  Section 276 does not prohibit a disclosure or use by a person of information or a document if:

                     (a)  the disclosure or use is made by or on behalf of:

                              (i)  a carrier (the first carrier); or

                             (ii)  a carriage service provider (the first provider); and

                     (b)  the disclosure or use is made for a purpose of, or is connected with, any other carrier or service provider carrying on its business as such a carrier or provider; and

                     (c)  the information or document relates to a person (the third person) who is a customer or former customer of:

                              (i)  the first carrier or the first provider; or

                             (ii)  the other carrier or the other provider; and

                     (d)  the disclosure or use is made for a purpose of, or is connected with:

                              (i)  the supply, or proposed supply, by the other carrier or other provider to the third person of a carriage service or a content service; or

                             (ii)  the supply, or proposed supply, by the other carrier or other provider to the third person of goods or services for use in connection with the supply of a carriage service or a content service; or

                            (iii)  the installation, maintenance, operation or provision of access to a telecommunications network or a facility, where the network or facility is used, or for use, by the other carrier or the other provider to supply a carriage service or a content service to the third person.

             (2)  Section 276 does not prohibit a disclosure or use by a person of information or a document if:

                     (a)  the disclosure or use is made by or on behalf of a carriage service provider; and

                     (b)  the disclosure or use is made for a purpose of, or is connected with, an arrangement, or proposed arrangement, made by a carriage service intermediary for the supply of a carriage service by the provider to a third person; and

                     (c)  the information or document relates to the third person; and

                     (d)  the disclosure or use is made for a purpose of, or is connected with:

                              (i)  the supply, or proposed supply, by the provider to the third person of that service; or

                             (ii)  the supply, or proposed supply, by the provider to the third person of goods or services for use in connection with the supply of the first‑mentioned service; or

                            (iii)  the installation, maintenance, operation or provision of access to a telecommunications network or a facility, where the network or facility is used, or for use, by the provider to supply the first‑mentioned service to the third person.

             (3)  Section 276 does not prohibit a disclosure or use by a person of information or a document if:

                     (a)  the disclosure or use is made by or on behalf of a carriage service intermediary; and

                     (b)  the disclosure or use is made for a purpose of, or is connected with, an arrangement, or proposed arrangement, made by the intermediary for the supply of a carriage service by a carriage service provider to a third person; and

                     (c)  the information or document relates to the third person; and

                     (d)  the disclosure or use is made for a purpose of, or is connected with:

                              (i)  the supply, or proposed supply, by the provider to the third person of that service; or

                             (ii)  the supply, or proposed supply, by the provider to the third person of goods or services for use in connection with the supply of the first‑mentioned service; or

                            (iii)  the installation, maintenance, operation or provision of access to a telecommunications network or a facility, where the network or facility is used, or for use, by the provider to supply the first‑mentioned service to the third person.

292  Circumstances prescribed in the regulations

             (1)  Section 276 does not prohibit a disclosure or use of information or a document in circumstances specified in the regulations.

             (2)  Section 277 does not prohibit a disclosure or use of information or a document in circumstances specified in the regulations.

             (3)  Section 278 does not prohibit a disclosure or use of information or a document in circumstances specified in the regulations.

293  Uses connected with exempt disclosures

             (1)  Section 276 does not prohibit a use of information or a document if:

                     (a)  the use is made for the purposes of, or in connection with, a disclosure of the information or document by the person; and

                     (b)  because of this Division, the disclosure is not prohibited by section 276.

             (2)  Section 277 does not prohibit a use of information or a document if:

                     (a)  the use is made for the purposes of, or in connection with, a disclosure of the information or document by the person; and

                     (b)  because of this Division, the disclosure is not prohibited by section 277.

             (3)  Section 278 does not prohibit a use of information or a document if:

                     (a)  the use is made for the purposes of, or in connection with, a disclosure of the information or document by the person; and

                     (b)  because of this Division, the disclosure is not prohibited by section 278.

294  Generality of Subdivision not limited

                   Nothing in this Subdivision limits the generality of anything else in it.

Subdivision B—Burden of proof

295  Burden of proof

             (1)  For the purposes of determining the persuasive burden of proof in proceedings for an offence against Division 2, the exceptions set out in this Division are taken to be part of the description of the offence.

             (2)  In proceedings for an offence against Division 2, the defendant bears the evidential burden in relation to an exception set out in this Division.

             (3)  In this section:

evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

Division 4—Secondary disclosure/use offences

296  Performance of person’s duties

                   If:

                     (a)  information or a document is disclosed to a person for a particular purpose as permitted by section 279 or this section; and

                     (b)  the information or the contents of the document does not relate to the person’s affairs or personal particulars;

the person must not disclose or use the information or document except for that purpose.

297  Authorisation by or under law

                   If information or a document is disclosed to a person for a particular purpose as permitted by section 280 or this section, the person must not disclose or use the information or document unless the disclosure or use is required or authorised by or under law.

298  Law enforcement and protection of public revenue

             (1)  If information or a document is disclosed to a person as permitted by subsection 282(1) or (3) or this subsection, the person must not disclose or use the information or document unless the disclosure or use is reasonably necessary for the enforcement of the criminal law.

             (2)  If information or a document is disclosed to a person as permitted by paragraph 282(2)(a), subsection 282(4) or this subsection, the person must not disclose or use the information or document unless the disclosure or use is reasonably necessary for the enforcement of a law imposing a pecuniary penalty.

             (3)  If information or a document is disclosed to a person as permitted by paragraph 282(2)(b), subsection 282(5) or this subsection, the person must not disclose or use the information or document unless the disclosure or use is reasonably necessary for the protection of the public revenue.

Note:          Section 282 deals with the disclosure or use of information or documents reasonably necessary for law enforcement purposes or the protection of the public revenue.

299  Assisting the ACA, the ACCC or the Telecommunications Industry Ombudsman

             (1)  If information or a document is disclosed to a person as permitted by subsection 284(1) or this subsection, the person must not disclose or use the information or document except for the purpose of, or in connection with, the carrying out of the ACA’s functions and powers.

             (2)  If information or a document is disclosed to a person as permitted by subsection 284(2) or this subsection, the person must not disclose or use the information or document except for the purpose of, or in connection with, the carrying out of the ACCC’s telecommunications functions and powers.

             (3)  If information or a document is disclosed to a person as permitted by subsection 284(3) or this subsection, the person must not disclose or use the information or document except for the purpose of, or in connection with, assisting the Telecommunications Industry Ombudsman in the consideration of a complaint made to the Telecommunications Industry Ombudsman.

Note:          Section 284 deals with the disclosure or use of information or documents to assist the ACA, the ACCC or the Telecommunications Industry Ombudsman.

300  Threat to person’s life or health

                   If information or a document is disclosed to a person (the first person) as permitted by section 287 or this section, the first person must not disclose or use the information or document unless:

                     (a)  the disclosure or use is for the purpose of, or in connection with, preventing or lessening a serious and imminent threat to the life or health of another person; or

                     (b)  the first person believes on reasonable grounds that the disclosure or use is reasonably necessary to prevent or lessen a serious and imminent threat to the life or health of another person.

Note:          Section 287 deals with the disclosure or use of information or documents by a person where the person believes on reasonable grounds that the disclosure or use is reasonably necessary to prevent or lessen a serious and imminent threat to the life or health of another person.

301  Communications for maritime purposes

                   If information or a document is disclosed to a person as permitted by section 288 or this section, the person must not disclose or use the information or document unless:

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

                     (b)  the disclosure or use:

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

                             (ii)  is made for maritime communications purposes.

Note:          Section 288 deals with the disclosure or use of information or documents where the disclosure or use is made for certain maritime purposes.

302  Business needs of other carriers or service providers

                   If information or a document is disclosed to a person as permitted by section 291 or this section, a person must not disclose or use the information or document except for:

                     (a)  the purpose of, or in connection with, the carrying on by:

                              (i)  a carrier; or

                             (ii)  a service provider;

                            of its business as such a carrier or provider; and

                     (b)  the purpose of, or in connection with:

                              (i)  the supply, or proposed supply, by a carrier or service provider of a carriage service or a content service; or

                             (ii)  the supply, or proposed supply, by a carrier or service provider of goods or services for use in connection with the supply of a carriage service or a content service; or

                            (iii)  the installation, maintenance, operation or provision of access to a telecommunications network or a facility, where the network or facility is used, or for use, by a carrier or service provider to supply a carriage service or a content service to a person.

Note:          Section 291 deals with the disclosure or use of information or documents for the purposes of a carrier or a service provider carrying on its business as such a carrier or provider.

303  Secondary offence—contravening this Division

                   A person who intentionally or recklessly contravenes this Division is guilty of an offence punishable on conviction by imprisonment for a term not exceeding 2 years.

Note:          See also sections 4AA and 4B of the Crimes Act 1914.

Division 5—Record-keeping requirements

304  Associate

                   A reference in this Division to an associate of a carrier, carriage service provider or number-database operator is a reference to:

                     (a)  an employee of the carrier, provider or operator; or

                     (b)  a person (other than an employee) who performs services for or on behalf of the carrier, provider or operator; or

                     (c)  an employee of a person covered by paragraph (b).

305  Certificates issued by authorised officers of enforcement agencies

             (1)  This section applies if a person issues a certificate under subsection 282(3), (4) or (5).

             (2)  If the certificate authorises the disclosure of information or a document by a carrier, carriage service provider or number-database operator, the person must give a copy of the certificate to the carrier, provider or operator as soon as practicable after the issue of the certificate and, in any event, within 5 days after the issue of the certificate.

             (3)  If the certificate authorises the disclosure of information or a document by an associate of a carrier, carriage service provider or number-database operator, the person must give a copy of the certificate to the carrier, provider or operator as soon as practicable after the issue of the certificate and, in any event, within 5 days after the issue of the certificate.

             (4)  A copy may be given under subsection (2) or (3):

                     (a)  in written form; or

                     (b)  in electronic form (for example, by electronic mail).

             (5)  If a carrier, carriage service provider or number-database operator is given a copy under subsection (2) or (3), the carrier, provider or operator must retain the copy for 3 years.

             (6)  A copy may be retained under subsection (5):

                     (a)  in written form; or

                     (b)  in electronic form.

306  Record of disclosures

             (1)  This section applies if:

                     (a)  an eligible person or an eligible number-database person discloses information or a document; and

                     (b)  the disclosure is authorised by a provision of Division 3 (other than section 279, 283, 285, 290 or 291).

             (2)  If the person is a carrier, carriage service provider or number-database operator, the carrier, provider or operator must:

                     (a)  make a record of the disclosure as soon as practicable after the disclosure and, in any event, within 5 days after the disclosure; and

                     (b)  retain that record for 3 years.

             (3)  If the person is an associate of a carrier, carriage service provider or number-database operator, the person must:

                     (a)  make a record of the disclosure as soon as practicable after the disclosure and, in any event, within 5 days after the disclosure; and

                     (b)  give a copy of that record to the carrier, provider or operator within 5 days after the making of the record.

             (4)  If a copy of a record is given to a carrier, carriage service provider or number-database operator under subsection (3), the carrier, provider or operator must retain that copy for 3 years.

             (5)  A record made under subsection (2) or (3) must set out:

                     (a)  the name of the person who disclosed the information or document concerned; and

                     (b)  the date of the disclosure; and

                     (c)  a statement of the grounds for the disclosure; and

                     (d)  if the disclosure is made on the grounds of a certificate under subsection 282(3), (4) or (5):

                              (i)  the name of the person who issued the certificate; and

                             (ii)  the date of the issue of the certificate; and

                     (e)  if paragraph (d) does not apply and the disclosure was at the request of another agency or person:

                              (i)  the name of the agency or person; and

                             (ii)  the date of the request; and

                      (f)  if the information or document relates to the contents or substance of a communication that was carried by means of a carriage service—particulars of that carriage service.

             (6)  A record, or a copy of a record, may be made, given or retained under this section:

                     (a)  in written form; or

                     (b)  in electronic form.

             (7)  A person who intentionally or recklessly contravenes this section is guilty of an offence punishable on conviction by a fine not exceeding 300 penalty units.

Note:          See also sections 4AA and 4B of the Crimes Act 1914.

307  Incorrect records

             (1)  A person must not, in purported compliance with section 306, make a record of any matter or thing in such a way that it does not correctly record the matter or thing.

             (2)  A person who intentionally or recklessly contravenes subsection (1) is guilty of an offence punishable on conviction by imprisonment for a term not exceeding 6 months.

Note:          See also sections 4AA and 4B of the Crimes Act 1914.

308  Annual reports to the ACA by carriers, carriage service providers or number-database operators

             (1)  If:

                     (a)  information or a document is disclosed during a financial year; and

                     (b)  either:

                              (i)  under section 306, a carrier, carriage service provider or number-database operator makes a record of the disclosure; or

                             (ii)  under section 306, a carrier, carriage service provider or number-database operator is given a copy of a record of the disclosure;

the carrier, carriage service provider or number-database operator must, within 2 months after the end of the financial year, give the ACA a written report relating to the disclosure.

             (2)  The report must set out such information about the disclosure as the ACA requires.

309  Monitoring by the Privacy Commissioner

             (1)  In addition to the functions conferred on the Privacy Commissioner by the Privacy Act 1988, the Privacy Commissioner has the function of monitoring compliance with this Division.

             (2)  In particular, the function conferred on the Privacy Commissioner by subsection (1) includes monitoring:

                     (a)  whether a record made under section 306 sets out a statement of the grounds for a disclosure; and

                     (b)  whether that statement is covered by Division 3 (which deals with exceptions).

             (3)  A carrier, carriage service provider or number-database operator must give the Privacy Commissioner such access to the records of the carrier, provider or operator as the Privacy Commissioner reasonably requires for the purposes of the performance of the function conferred by subsection (1).

             (4)  The Privacy Commissioner may give the Minister a written report about any matters arising out of the performance of the function conferred by subsection (1).

             (5)  Section 99 of the Privacy Act 1988 applies to this section as if this section were a provision of the Privacy Act 1988.

Note:          Section 99 of the Privacy Act 1988 deals with delegation.

Division 6—Instrument-making powers not limited

310  Instrument-making powers not limited

             (1)  This Part does not, by implication, limit a power conferred by or under this Act to make an instrument.

             (2)  This Part does not, by implication, limit the matters that may be dealt with by codes or standards referred to in Part 6.

             (3)  This section does not, by implication, limit subsection 33(3B) of the Acts Interpretation Act 1901.

Part 14—National interest matters

311  Simplified outline

                   The following is a simplified outline of this Part:

     The ACA, carriers and carriage service providers must do their best to prevent telecommunications networks and facilities from being used to commit offences.

     The ACA, carriers and carriage service providers must give the authorities such help as is reasonably necessary for the purposes of:

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

               (b)     protecting the public revenue; and

               (c)     safeguarding national security.

     A carriage service provider may suspend the supply of a carriage service in an emergency if requested to do so by a senior police officer.

312  ACA’s obligations

             (1)  The ACA must, in performing its telecommunications functions or exercising its telecommunications powers, do its best to prevent:

                     (a)  telecommunications networks; and

                     (b)  facilities;

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)  The ACA must, in performing its telecommunications functions or exercising its telecommunications powers, give officers and authorities of the Commonwealth and of the States and Territories such help as is reasonably necessary for the following purposes:

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

                     (b)  protecting the public revenue;

                     (c)  safeguarding national security.

             (3)  The ACA 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 of the duty imposed by subsection (1) or (2).

             (4)  An officer, employee or agent of the ACA 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 the ACA as mentioned in subsection (3).

313  Obligations of carriers and carriage service providers

             (1)  A carrier or carriage service provider must, in connection with:

                     (a)  the operation by the carrier or provider of telecommunications networks or facilities; or

                     (b)  the supply by the carrier or provider of carriage services;

do the carrier’s best or the provider’s best to prevent telecommunications networks and facilities from being used in, or in relation to, the commission of offences against the laws of the Commonwealth or of the States and Territories.

             (2)  A carriage service intermediary must do the intermediary’s best to prevent telecommunications networks and facilities from being used in, or in relation to, the commission of offences against the laws of the Commonwealth or of the States and Territories.

             (3)  A carrier or carriage service provider must, in connection with:

                     (a)  the operation by the carrier or provider of telecommunications networks or facilities; or

                     (b)  the supply by the carrier or provider of carriage services;

give officers and authorities of the Commonwealth and of the States and Territories such help as is reasonably necessary for the following purposes:

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

                     (d)  protecting the public revenue;

                     (e)  safeguarding national security.

Note:          Section 314 deals with the terms and conditions on which such help is to be provided.

             (4)  A carriage service intermediary who arranges for the supply by a carriage service provider of carriage services must, in connection with:

                     (a)  the operation by the provider of telecommunications networks or facilities; or

                     (b)  the supply by the provider of carriage services;

give officers and authorities of the Commonwealth and of the States and Territories such help as is reasonably necessary for the following purposes:

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

                     (d)  protecting the public revenue;

                     (e)  safeguarding national security.

Note:          Section 314 deals with the terms and conditions on which such help is to be provided.

             (5)  A carrier or carriage service provider 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 of the duty imposed by subsection (1), (2), (3) or (4); or

                     (b)  in compliance with a direction that the ACA gives in good faith in performance of its duties under section 312.

             (6)  An officer, employee or agent of a carrier or of a carriage service provider 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 the carrier or provider as mentioned in subsection (5).

             (7)  A reference in this section to giving help includes a reference to giving help by way of the provision of interception services.

314  Terms and conditions on which help is to be given

             (1)  This section applies if a person is required to give help to an officer or authority of the Commonwealth, a State or a Territory as mentioned in subsection 313(3) or (4).

             (2)  The person must comply with the requirement on the basis that the person neither profits from, nor bears the costs of, giving that help.

             (3)  The person must comply with the requirement on such terms and conditions as are:

                     (a)  agreed between the following parties:

                              (i)  the person;

                             (ii)  the Commonwealth, the State or the Territory, as the case may be; or

                     (b)  failing agreement, determined by an arbitrator appointed by the parties.

If the parties fail to agree on the appointment of an arbitrator, the ACA is to appoint the arbitrator.

             (4)  An arbitrator appointed by the ACA under subsection (3) must be a person specified in a written determination made by the Minister.

Note:          A person may be specified by name, by inclusion in a specified class or in any other way.

             (5)  Before making a determination under subsection (4), the Minister must consult the Attorney-General.

             (6)  If an arbitration under this section is conducted by an arbitrator appointed by the ACA, the cost of the arbitration must be apportioned equally between the parties.

             (7)  The regulations may make provision for and in relation to the conduct of an arbitration under this section.

315  Suspension of supply of carriage service in an emergency

             (1)  If a senior officer of a police force or service has reasonable grounds to believe that:

                     (a)  an individual has access to a particular carriage service; and

                     (b)  the individual has:

                              (i)  done an act that has resulted, or is likely to result, in loss of life or in the infliction of serious personal injury; or

                             (ii)  made an imminent threat to kill, or seriously injure, another person; or

                            (iii)  made an imminent threat to cause serious damage to property; or

                            (iv)  made an imminent threat to take the individual’s own life; or

                             (v)  made an imminent threat to do an act that will, or is likely to, endanger the individual’s own life or create a serious threat to the individual’s health or safety; and

                     (c)  the suspension of the supply of the carriage service is reasonably necessary to:

                              (i)  prevent a recurrence of the act mentioned in subparagraph (b)(i); or

                             (ii)  prevent or reduce the likelihood of the carrying out of a threat mentioned in subparagraph (b)(ii), (iii), (iv) or (v);

the officer may request a carriage service provider to suspend the supply of the carriage service.

             (2)  The carriage service provider may comply with the request.

             (3)  This section does not, by implication, limit any other powers that the provider may have to suspend the supply of the carriage service.

             (4)  In this section:

senior officer, in relation to a police force or service, means a commissioned officer of the force or service who holds a rank not lower than the rank of Assistant Commissioner.

316  Generality of Part not limited

                   Nothing in this Part limits the generality of anything else in it.

 

Part 15—Co-operation with law enforcement agencies

Division 1—Simplified outline

317  Simplified outline

                   The following is a simplified outline of this Part:

     Carriers and carriage service providers must ensure that it is possible to execute a warrant issued under the Telecommunications (Interception) Act 1979.

     A carrier or carriage service provider may be required to have an interception capability.

     Carriers and carriage service providers must comply with consultation requirements relating to the effect of new technology on the operation of certain law enforcement agencies.

Division 2—Execution of warrants under the Telecommunications (Interception) Act 1979

318  Scope of Division

             (1)  This Division applies to a person if the person is:

                     (a)  a carrier; or

                     (b)  a member of a class of carriage service providers specified in a written determination made by the Minister.

             (2)  Before making a determination under paragraph (1)(b), the Minister must consult the Attorney-General.

             (3)  A determination under paragraph (1)(b) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

319  Execution of warrants

             (1)  A person must ensure that it is possible to execute a warrant issued under the Telecommunications (Interception) Act 1979 in relation to a carriage service supplied by means of:

                     (a)  a controlled network of the person; or

                     (b)  a controlled facility of the person.

             (2)  A person must ensure that it is possible to execute a warrant issued under the Telecommunications (Interception) Act 1979 in relation to a controlled carriage service of the person.

320  Exemptions

             (1)  The Minister may make a written determination exempting a specified person from the requirements of section 319 in so far as those requirements relate to a specified carriage service.

             (2)  The exemption may be:

                     (a)  unconditional; or

                     (b)  subject to such conditions as are specified in the determination.

             (3)  Before making a determination under subsection (1), the Minister must consult the Attorney-General.

Division 3—Interception capability

321  Scope of Division

                   This Division applies to a carrier or carriage service provider who, under section 320, is exempt from the requirements of section 319.

322  Requirement to provide interception capability

                   The Minister may give a carrier or carriage service provider a written notice requiring that:

                     (a)  a controlled network of the carrier or provider have a specified kind of interception capability; or

                     (b)  a controlled facility of the carrier or provider have a specified kind of interception capability; or

                     (c)  a controlled carriage service of the carrier or provider have a specified kind of interception capability.

Note:          Interception capability is defined by section 326.

323  Interception capability to be provided

             (1)  If a requirement is in force under section 322 in relation to a carrier or carriage service provider, the carrier or provider must provide the interception capability in accordance with the requirement and on such terms and conditions as are:

                     (a)  agreed between the following parties:

                              (i)  the carrier or provider;

                             (ii)  the agency or agencies specified by the Minister in the notice; or

                     (b)  failing agreement, determined by an arbitrator appointed by the parties.

If the parties fail to agree on the appointment of an arbitrator, the ACA is to appoint the arbitrator.

             (2)  An arbitrator appointed by the ACA under subsection (1) must be a person specified in a written determination made by the Minister.

Note:          A person may be specified by name, by inclusion in a specified class or in any other way.

             (3)  Before making a determination under subsection (2), the Minister must consult the Attorney-General.

             (4)  If an arbitration under this section is conducted by an arbitrator appointed by the ACA, the cost of the arbitration must be apportioned equally between the parties.

             (5)  The regulations may make provision for and in relation to the conduct of an arbitration under this section.

             (6)  A reference in subsection (1) to an agency includes a reference to:

                     (a)  in the case of an agency of a State—the State on behalf of the agency; and

                     (b)  in the case of an agency of the Commonwealth—the Commonwealth on behalf of the agency.

324  Terms and conditions—compliance with principles

                   The terms and conditions on which a carrier or carriage service provider is to provide an interception capability are to comply with the following principles:

                     (a)  the principle that the carrier or provider is to incur the costs (whether of a capital nature or otherwise) relating to the creation or development of the interception capability;

                     (b)  the principle that the carrier or provider may recover those costs, over time, from the other party or parties.

This section does not, by implication, limit section 323.

325  Terms and conditions—timing of implementation of requirement

                   A term or condition agreed or determined under section 323 may relate to the period within which the requirement is to be implemented. This section does not, by implication, limit section 323.

326  Meaning of interception capability

                   For the purposes of this Division, a telecommunications network, a facility, or a carriage service has an interception capability if, and only if:

                     (a)  assuming that a warrant were issued to an agency; and

                     (b)  assuming that the warrant authorised the interception of a communication passing over the network, facility or service, as the case may be;

the network, facility or service, as the case requires, will be capable of enabling that communication to be intercepted.

327  Expressions to have the same meaning as in the Telecommunications (Interception) Act 1979

                   Unless the contrary intention appears, an expression used in this Division and in the Telecommunications (Interception) Act 1979 has the same meaning in this Division as it has in that Act.

328  Meaning of agency

                   In this Division:

agency means:

                     (a)  an agency within the meaning of Part VI of the Telecommunications (Interception) Act 1979; or

                     (b)  the Australian Security Intelligence Organization.

Division 4—Consultation about new technology

329  Designated agency

                   For the purposes of this Division, each of the following is a designated agency:

                     (a)  the Australian Federal Police;

                     (b)  a police force or service of a State or a Territory;

                     (c)  the National Crime Authority;

                     (d)  the New South Wales Crime Commission;

                     (e)  the Independent Commission Against Corruption of New South Wales;

                      (f)  the Criminal Justice Commission of Queensland;

                     (g)  the Australian Security Intelligence Organization;

                     (h)  a prescribed authority established by or under a law of the Commonwealth, a State or a Territory.

330  Consultation about new techialogy—advisory committee established

             (1)  This section applies if the ACA has established an advisory committee for the purposes of facilitating consultation with designated agencies about new technology.

             (2)  A carrier or carriage service provider must, in accordance with directions given to it by the ACA, consult with the advisory committee about the carrier’s proposals or the provider’s proposals to:

                     (a)  use new technology in relation to its controlled networks, controlled facilities or controlled carriage services; and

                     (b)  develop new technology in order to use the technology in relation to its controlled networks, controlled facilities or controlled carriage services.

331  Consultation about new technology—no advisory committee established

             (1)  This section applies if no advisory committee is established by the ACA for the purposes of facilitating consultation with designated agencies about new technology.

             (2)  A carrier or carriage service provider must, in accordance with directions given to it by the ACA, consult with designated agencies about proposals to:

                     (a)  use new technology in relation to its controlled networks, controlled facilities or controlled carriage services; and

                     (b)  develop new technology in order to use the technology in relation to its controlled networks, controlled facilities or controlled carriage services.

332  Exemptions

             (1)  The Minister may make a written determination exempting the members of a specified class of persons from the requirements of this Division.

             (2)  The exemption may be:

                     (a)  unconditional; or

                     (b)  subject to such conditions as are specified in the determination.

             (3)  Before making a determination under subsection (1), the Minister must consult the Attorney-General.

Part 16—Defence requirements and disaster plans

Division 1—Introduction

333  Simplified outline

                   The following is a simplified outline of this Part:

     A carriage service provider may be required to supply a carriage service for defence purposes or for the management of natural disasters.

     A carrier or carriage service provider may be required to enter into an agreement with the Commonwealth about:

               (a)     planning for network survivability; or

               (b)     operational requirements in times of crisis.

     A carrier licence condition or a service provider rule may deal with compliance with a disaster plan.

334  Defence authority

                   For the purposes of this Part, a defence authority is:

                     (a)  the Secretary to the Department of Defence; or

                     (b)  the Chief of the Defence Force.

 

Division 2—Supply of carriage services

335  Requirement to supply carriage services for defence purposes or for the management of natural disasters

             (1)  A defence authority may give a carriage service provider a written notice requiring the provider to supply a specified carriage service for the use of:

                     (a)  the Department of Defence; or

                     (b)  the Defence Force.

             (2)  A defence authority must not issue a notice about a carriage service unless the service is required for:

                     (a)  defence purposes; or

                     (b)  for the purposes of the management of natural disasters;

or both.

             (3)  A notice issued by a defence authority requiring a carriage service provider to supply a carriage service in particular circumstances is of no effect if there is in force a written certificate issued by the ACA stating that, in the ACA’s opinion, it would be unreasonable for the provider to be required to supply the service in those circumstances.

             (4)  If a requirement is in force, the provider must supply the carriage service in accordance with the requirement and on such terms and conditions as are:

                     (a)  agreed between the provider and the defence authority; or

                     (b)  failing agreement, determined by an arbitrator appointed by the parties.

If the parties cannot agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.

             (5)  The regulations may make provision for and in relation to the conduct of an arbitration under this section.

             (6)  The regulations may provide that, for the purposes of a particular arbitration conducted by the ACCC under this section, the ACCC may be constituted by a single member, or a specified number of members, of the ACCC. For each such arbitration, that member or those members are to be nominated in writing by the Chairperson of the ACCC.

             (7)  Subsection (6) does not, by implication, limit subsection (5).

 

Division 3—Defence planning

336  Definitions

                   In this Division:

certified agreement has the meaning given by section 338.

crisis means:

                     (a)  war, war-like conflict or war-like operations; or

                     (b)  civil disturbance; or

                     (c)  terrorism; or

                     (d)  earthquakes, floods, fire, cyclones, storms or other disasters (whether natural or resulting from the acts or omissions of humans).

draft agreement means a draft agreement prepared under section 337.

network survivability means the ability of a telecommunications network, or of a facility, to continue to function in times of crisis.

337  Preparation of draft agreement

             (1)  A defence authority may prepare a draft agreement to be entered into by the defence authority (on behalf of the Commonwealth) and:

                     (a)  a carrier; or

                     (b)  a carriage service provider.

             (2)  The agreement must be about:

                     (a)  planning for network survivability; or

                     (b)  operational requirements in times of crisis;

or both.

             (3)  In preparing the draft agreement, the defence authority must consult the carrier or provider concerned.

338  ACA’s certification of draft agreement

             (1)  The ACA may certify a draft agreement if the ACA is of the opinion that the draft agreement is reasonable.

             (2)  On being certified, the draft agreement becomes a certified agreement.

             (3)  In deciding whether to certify a draft agreement, the ACA must have regard to whether the draft agreement deals with the following matters in a reasonable way:

                     (a)  consultation with a defence authority about maintenance, installation, modification and removal of telecommunications networks or facilities;

                     (b)  consultation with a defence authority about operational arrangements in times of crisis;

                     (c)  the protection of confidential information, including restrictions on the uses to which such information may be put;

                     (d)  grants of financial assistance (including conditional grants) by the Commonwealth for purposes relating to:

                              (i)  network survivability; or

                             (ii)  operational requirements in times of crisis;

                            or both.

             (4)  For the purposes of this section, in determining whether a particular matter is reasonable, the ACA must have regard to:

                     (a)  the needs of the Department of Defence and of the Defence Force; and

                     (b)  the interests of the carrier or carriage service provider concerned.

This subsection does not, by implication, limit the meaning of the expression “reasonable”.

             (5)  In deciding whether to certify a draft agreement, the ACA must consult the parties to the agreement.

             (6)  As soon as practicable after deciding whether to certify a draft agreement, the ACA must give each of the parties to the agreement a written notice setting out its decision.

339  Requirement to enter into certified agreement

             (1)  This section applies if the ACA has certified a draft agreement relating to a carrier or carriage service provider.

             (2)  A defence authority may give:

                     (a)  the carrier; or

                     (b)  the carriage service provider;

as the case requires, a written notice requiring the carrier or provider to enter into the agreement within 30 days after receiving the notice.

             (3)  The carrier or provider must comply with the notice.

340  Compliance with agreement

                   If:

                     (a)  a carrier; or

                     (b)  a carriage service provider;

has entered into a certified agreement, the carrier or provider, as the case requires, must comply with the agreement, so long as the agreement remains in force.

341  Withdrawal of certification of agreement

             (1)  This section applies if:

                     (a)  a certified agreement is in force at a particular time; and

                     (b)  the ACA is of the opinion that, if the agreement were a draft agreement at that time, the ACA would have refused to certify it.

             (2)  The ACA must withdraw its certification of the agreement.

             (3)  As soon as practicable after withdrawing its certification of the agreement, the ACA must give each of the parties to the agreement a written notice stating that it has withdrawn its certification of the agreement.

342  Duration of agreement

             (1)  If a certified agreement has been entered into, it remains in force until it is revoked under this section.

             (2)  A certified agreement is revoked if the parties enter into a fresh certified agreement that is expressed to replace the original agreement.

             (3)  If the ACA withdraws its certification of a certified agreement, the agreement is revoked 60 days after the withdrawal.

343  Variation of agreement

             (1)  This section applies if a certified agreement is in force.

             (2)  A defence authority may prepare a draft variation of the agreement.

             (3)  In preparing the draft variation, the defence authority must consult the carrier or carriage service provider concerned.

             (4)  If:

                     (a)  a defence authority has prepared a draft variation of a certified agreement; and

                     (b)  the ACA is of the opinion that, if the agreement, as proposed to be varied, were a draft agreement, the ACA would certify the agreement;

the ACA must certify the variation.

             (5)  Before forming an opinion referred to in paragraph (4)(b) about an agreement, the ACA must consult the parties to the agreement.

             (6)  After deciding whether to certify a draft variation of a certified agreement, the ACA must give each of the parties to the agreement a written notice setting out its decision.

             (7)  If the ACA certifies a draft variation of a certified agreement, the agreement is varied accordingly.

Division 4—Disaster plans

344  Designated disaster plans

                   For the purposes of this Division, a designated disaster plan is a plan that:

                     (a)  is for coping with disasters and/or civil emergencies; and

                     (b)  is prepared by the Commonwealth, a State or a Territory.

345  Carrier licence conditions about designated disaster plans

             (1)  An instrument under section 63 imposing conditions on a carrier licence held by a carrier may make provision for and in relation to compliance by the carrier with one or more specified designated disaster plans.

             (2)  Subsection (1) does not, by implication, limit section 63.

346  Service provider determinations about designated disaster plans

             (1)  Service provider determinations under section 99 may make provision for and in relation to compliance by one or more specified carriage service providers with one or more specified designated disaster plans.

             (2)  Subsection (1) does not, by implication, limit section 99.

Division 5—Delegation

347  Delegation

             (1)  The Secretary to the Department of Defence may, by writing, delegate to a person holding or performing the duties of a Senior Executive Service office in that Department any or all of the Secretary’s powers under this Part.

             (2)  The Chief of the Defence Force may, by writing, delegate to a member of the Defence Force holding a senior rank any or all of the powers conferred on the Chief of the Defence Force by this Part.

             (3)  In this section:

Senior Executive Service office has the same meaning as in the Public Service Act 1922.

senior rank means a rank not lower than:

                     (a)  in the case of the Royal Australian Navy—the rank of Commodore; or

                     (b)  in the case of the Australian Army—the rank of Brigadier; or

                     (c)  in the case of the Royal Australian Air Force—the rank of Air Commodore.

Part 17—Pre-selection in favour of carriage service providers

348  Simplified outline

                   The following is a simplified outline of this Part:

     The ACA may require certain carriers and carriage service providers to provide pre-selection in favour of carriage service providers.

     Pre-selection must include over-ride dial codes for selecting alternative carriage service providers on a call-by-call basis.

349  Requirement to provide pre-selection

             (1)  The ACA must make a written determination requiring each carrier or carriage service provider who supplies a standard telephone service to:

                     (a)  provide pre-selection in favour of a specified carriage service provider, in relation to calls made using a standard telephone service, in the manner specified in the determination; and

                     (b)  comply with such ancillary or incidental rules (if any) as are set out in the determination.

             (2)  The ACA may make a written determination requiring each carrier or carriage service provider who supplies a specified carriage service to:

                     (a)  provide pre-selection in favour of a specified carriage service provider, in relation to calls made using the carriage service, in the manner specified in the determination; and

                     (b)  comply with such ancillary or incidental rules (if any) as are set out in the determination.

             (3)  In making a determination under subsection (1) or (2), the ACA must have regard to:

                     (a)  the technical feasibility of complying with the requirement concerned; and

                     (b)  the costs and benefits of complying with the requirement concerned.

             (4)  Subsection (3) does not, by implication, limit the matters to which regard may be had.

             (5)  A reference in this section to a standard telephone service does not include a reference to a service that is supplied by means of a public mobile telecommunications service.

             (6)  Before making a determination under this section, the ACA must consult the ACCC.

             (7)  In making a determination under this section, the ACA may apply, adopt or incorporate (with or without modification) any matter contained in a code or standard proposed or approved by a body or association, either:

                     (a)  as in force or existing at a particular time; or

                     (b)  as in force or existing from time to time.

This subsection does not, by implication, limit section 589.

             (8)  A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

350  When pre-selection is provided in favour of a carriage service provider

             (1)  For the purposes of this Part, a determination requires a carrier to provide pre-selection in favour of a carriage service provider in relation to calls made using a particular carriage service if, and only if, the determination requires:

                     (a)  the controlled networks and controlled facilities of the carrier to permit an end-user to:

                              (i)  pre-select the carriage service provider as the end-user’s preferred carriage service provider for such of the end‑user’s requirements, in relation to calls made using that carriage service, as are specified in the determination; and

                             (ii)  change that selection from time to time; and

                     (b)  the controlled networks and controlled facilities of the carrier to provide an end-user with separate carriage service provider pre-selection for such of the end-user’s requirements, in relation to calls made using that carriage service, as are specified in the determination; and

                     (c)  the controlled networks and controlled facilities of the carrier to provide over-ride dial codes for selecting alternative carriage service providers, in relation to calls made using that carriage service, on a call-by-call basis.

Note:          End-user is defined by subsection (3).

             (2)  For the purposes of this Part, a determination requires a carriage service provider (the first provider) to provide pre-selection in favour of another carriage service provider (the second provider) in relation to calls made using a particular carriage service if, and only if, the determination requires:

                     (a)  the controlled networks and controlled facilities of the first provider to permit an end-user to:

                              (i)  pre-select the second provider as the end-user’s preferred carriage service provider for such of the end‑user’s requirements, in relation to calls made using that carriage service, as are specified in the determination; and

                             (ii)  change that selection from time to time; and

                     (b)  the controlled networks and controlled facilities of the first provider to provide an end-user with separate carriage service provider pre-selection for such of the end-user’s requirements, in relation to calls made using that carriage service, as are specified in the determination; and

                     (c)  the controlled networks and controlled facilities of the first provider to provide over-ride dial codes for selecting alternative carriage service providers, in relation to calls made using that carriage service, on a call-by-call basis.

Note:          End-user is defined by subsection (3).

             (3)  For the purposes of this section, an end-user, in relation to a controlled network or a controlled facility, is an end-user of a carriage service that involves the use of the network or facility.

             (4)  Each of the following is an example of an end‑user’s requirements:

                     (a)  the end-user’s requirements relating to domestic long-distance calls;

                     (b)  the end-user’s requirements relating to international calls.

351  Pre-selection to be provided

             (1)  This section applies to a person if a determination under section 349 is in force and that determination requires the person to provide pre-selection.

             (2)  A person must provide pre-selection in accordance with the requirements set out in the determination and on such terms and conditions as are:

                     (a)  agreed between the following parties:

                              (i)  the person;

                             (ii)  the carriage service provider in whose favour pre‑selection is required to be provided; or

                     (b)  failing agreement, determined by an arbitrator appointed by the parties.

If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.

             (3)  The regulations may make provision for and in relation to the conduct of an arbitration under this section.

             (4)  The regulations may provide that, for the purposes of a particular arbitration conducted by the ACCC under this section, the ACCC may be constituted by a single member, or a specified number of members, of the ACCC. For each such arbitration, that member or those members are to be nominated in writing by the Chairperson of the ACCC.

             (5)  Subsection (4) does not, by implication, limit subsection (3).

             (6)  A person must comply with any rules set out in the determination as mentioned in paragraph 349(1)(b) or (2)(b).

352  Exemptions from requirement to provide pre-selection

             (1)  The ACA may, by notice in the Gazette, declare that a specified carrier or carriage service provider is exempt from a requirement imposed under section 349. The declaration has effect accordingly.

Note:          Carriers or providers may be specified by name, by inclusion in a particular class or in any other way.

             (2)  In deciding whether a carrier or carriage service provider should be exempt from a requirement imposed under section 349, the ACA must have regard to the following matters:

                     (a)  whether it would be technically feasible for the carrier or provider to comply with the requirement concerned;

                     (b)  whether compliance with the requirement concerned would impose unreasonable financial hardship on the carrier or provider.

             (3)  Subsection (2) does not, by implication, limit the matters to which the ACA may have regard.

353  Use of over-ride dial codes

             (1)  This section applies to a carriage service provider (the first provider) if:

                     (a)  the first provider supplies a carriage service that involves the use of a controlled network, or a controlled facility, of a carrier, of the first provider or of another carriage service provider; and

                     (b)  in accordance with a determination under section 349, the network or facility, as the case may be, provides over-ride dial codes for selecting alternative carriage service providers on a call-by-call basis.

             (2)  Unless, in the ACA’s opinion:

                     (a)  it would not be technically feasible; or

                     (b)  it would impose unreasonable financial hardship on the first provider;

the first provider must take such steps as are necessary to ensure that each end-user of the carriage service is able to make use of those codes for selecting alternative carriage service providers on a call-by-call basis.

             (3)  The requirement in subsection (2) does not, by implication, prevent an alternative carriage service provider from refusing to supply a carriage service to the end‑user concerned.

Part 18—Calling line identification

354  Simplified outline

                   The following is a simplified outline of this Part:

     Certain switching systems must be capable of providing calling line identification.

355  Calling line identification

             (1)  This section applies to a person if:

                     (a)  the person is a carrier or a carriage service provider; and

                     (b)  a controlled facility of the person consists of:

                              (i)  a switching system used in connection with the supply of a standard telephone service; or

                             (ii)  a switching system of a kind specified in a determination under subsection (3); and

                     (c)  either:

                              (i)  the completion of the installation of the system occurred on or after 1 July 1997; or

                             (ii)  immediately before 1 July 1997, the system was capable of providing calling line identification.

             (2)  The person must take all reasonable steps to ensure that the system is capable of providing calling line identification.

             (3)  The ACA may make a written determination for the purposes of subparagraph (1)(b)(ii).

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

356  Exemptions from calling line identification requirement

             (1)  The ACA may, by notice in the Gazette, declare that a specified person is exempt from the requirement set out in section 355. The declaration has effect accordingly.

Note:          A person may be identified by name, by inclusion in a particular class or in any other way.

             (2)  In deciding whether a person should be exempt from the requirement set out in section 355, the ACA must have regard to the following matters:

                     (a)  whether it would be unreasonable to impose the requirement;

                     (b)  whether it is in the public interest to impose the requirement.

             (3)  Subsection (2) does not, by implication, limit the matters to which the ACA may have regard.

Part 19—Advanced Mobile Phone System (AMPS)

357  Simplified outline

                   The following is a simplified outline of this Part:

     The Advanced Mobile Phone System is to be phased out by 1 January 2000.

358  Meaning of AMPS

                   In this Part:

AMPS means the Advanced Mobile Phone System.

Note:          The Advanced Mobile Phone System does not incorporate digital modulation techniques.

359  Scope of Part

                   This Part applies to a person who is:

                     (a)  a carrier; or

                     (b)  a carriage service provider.

360  No new AMPS

                   Before 1 January 2000, a person other than Telstra must not install or operate an AMPS network.

361  AMPS to be phased out

             (1)  On or after 1 January 2000, a person must not install or operate an AMPS network.

             (2)  Before 1 January 2000, a person must comply with any written plan determined by the Minister in relation to:

                     (a)  ceasing installation or operation of an AMPS network; or

                     (b)  ceasing the supply of AMPS services; or

                     (c)  ceasing to use, for AMPS purposes, the radiocommunications spectrum used in relation to AMPS services.

             (3)  Subsections (1) and (2) have effect subject to section 362.

             (4)  A plan under subsection (2) may make provision in relation to a matter by applying, adopting or incorporating (with or without modifications) provisions of any frequency band plan (within the meaning of the Radiocommunications Act 1992), either:

                     (a)  as in force at a particular time; or

                     (b)  as in force from time to time.

             (5)  Subsection (4) does not, by implication, limit section 589.

362  Limited exemption from phase-out of AMPS

             (1)  A person may install or operate an AMPS network in a particular area:

                     (a)  on or after 1 January 2000; or

                     (b)  contrary to the requirements of a plan of a kind to which subsection 361(2) applies;

if:

                     (c)  the Minister and each eligible mobile carrier agree in writing; or

                     (d)  the Minister agrees in writing after:

                              (i)  the Minister has consulted each eligible mobile carrier; and

                             (ii)  the Minister has determined that the installation or operation of the AMPS network will not erode unduly the practical value to an eligible mobile carrier of the regime embodied in sections 360 and 361.

             (2)  Subsection (1) does not authorise a person to do anything that would contravene a provision of this Act (other than section 360 or 361).

             (3)  In this section:

eligible mobile carrier means a person who was a mobile carrier (within the meaning of the Telecommunications Act 1991) immediately before 1 July 1997.

363  Competition not to be reduced

             (1)  This section applies if a person installs or operates an AMPS network.

             (2)  The person must not use the installation of the AMPS network, or operate the AMPS network, in a way that could unfairly reduce the scope for competition between carriage service providers who supply public mobile telecommunications services.

Part 20—International aspects of activities of the telecommunications industry

Division 1—Simplified outline

364  Simplified outline

                   The following is a simplified outline of this Part:

     The Minister may give directions to the Signatories to the INTELSAT Agreement and the Inmarsat Convention.

     Carriers and carriage service providers may be required to comply with certain international conventions.

     The Minister may make Rules of Conduct about dealings with international telecommunications operators.

Division 2—Compliance with international agreements

365  INTELSAT and Inmarsat—directions to Signatories

             (1)  This section applies to a person if:

                     (a)  the person is:

                              (i)  a carrier; or

                             (ii)  a carriage service provider; and

                     (b)  either:

                              (i)  the person is a Signatory within the meaning of the INTELSAT Agreement because the person 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

                             (ii)  the person is a Signatory within the meaning of the Convention on the International Maritime Satellite Organisation (Inmarsat) because the person 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 Organisation (Inmarsat).

             (2)  The Minister may give the person such written directions as the Minister thinks necessary in relation to the person’s performance of the person’s functions as a Signatory within the meaning of that Agreement or Convention.

             (3)  The Minister must not give a direction under subsection (2) that relates to the manner in which the person is to deal with a particular customer.

             (4)  A person must comply with a direction under subsection (2).

366  Compliance with conventions

             (1)  This section applies to a person who is:

                     (a)  a carrier; or

                     (b)  a carriage service provider.

             (2)  The Minister may, by notice published in the Gazette, declare that, for the purposes of this section, a specified convention is binding in relation to the members of a specified class of persons.

             (3)  A person who is a member of that class must, in connection with:

                     (a)  the operation by the person of telecommunications networks or of facilities; or

                     (b)  the supply by the person of carriage services;

act in a way consistent with Australia’s obligations under that convention.

             (4)  The Minister may, by notice published in the Gazette, declare that, for the purposes of this section, a specified part of a specified convention is binding in relation to the members of a specified class of persons.

             (5)  A person who is a member of that class must, in connection with:

                     (a)  the operation by the person of telecommunications networks or of facilities; or

                     (b)  the supply by the person of carriage services;

act in a way consistent with Australia’s obligations under that part of the convention.

             (6)  In this section:

convention means:

                     (a)  a convention to which Australia is a party; or

                     (b)  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.

 

Division 3—Rules of Conduct about dealings with international telecommunications operators

367  Rules of Conduct about dealings with international telecommunications operators

             (1)  For the purposes of this section, an international telecommunications operator engages in unacceptable conduct if, and only if:

                     (a)  the operator uses, in a manner that is, or is likely to be, contrary to the national interest, the operator’s power in a market for:

                              (i)  carriage services; or

                             (ii)  goods or services for use in connection with the supply of carriage services; or;

                            (iii)  the installation of, maintenance of, operation of, or provision of access to, telecommunications networks or facilities; or

                     (b)  the operator uses, in a manner that is, or is likely to be, contrary to the national interest, any legal rights or legal status that the operator has because of foreign laws that relate to:

                              (i)  carriage services; or

                             (ii)  goods or services for use in connection with the supply of carriage services; or

                            (iii)  the installation of, maintenance of, operation of, or provision of access to, telecommunications networks or facilities; or

                     (c)  the operator engages in any other conduct that is, or is likely to be, contrary to the national interest.

             (2)  With a view to preventing, mitigating or remedying unacceptable conduct engaged in by international telecommunications operators, the Minister may, by written instrument, make Rules of Conduct:

                     (a)  prohibiting or regulating dealings by either or both of the following:

                              (i)  carriers;

                             (ii)  carriage service providers;

                            with such operators and with other persons; or

                     (b)  authorising the ACCC to make written determinations of a legislative character, where the determination imposes requirements, prohibitions or restrictions on either or both of the following:

                              (i)  carriers;

                             (ii)  carriage service providers; or

                     (c)  authorising the ACCC to give either or both of the following:

                              (i)  carriers;

                             (ii)  carriage service providers;

                            written directions of an administrative character, where the direction imposes a requirement, prohibition or restriction on the carrier or provider, as the case requires; or

                     (d)  requiring:

                              (i)  carriers; and

                             (ii)  carriage service providers;

                            to comply with:

                            (iii)  a determination mentioned in paragraph (b); or

                            (iv)  a direction mentioned in paragraph (c); or

                     (e)  authorising the ACCC to make information available to:

                              (i)  the public; or

                             (ii)  a specified class of persons; or

                            (iii)  a specified person;

                            if, in the opinion of the ACCC, the disclosure of the information:

                            (iv)  would promote the fair and efficient operation of a market; or

                             (v)  would otherwise be in the national interest.

             (3)  Before the ACCC makes a determination, or gives a direction, under the Rules of Conduct, the ACCC must consult the ACA.

             (4)  Rules of Conduct are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.

             (5)  A determination mentioned in paragraph (2)(b) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

             (6)  For the purposes of this section, if a person carries on activities outside Australia that involve:

                     (a)  the supply of a carriage service specified in paragraph 16(1)(b) or (c); or

                     (b)  the supply of goods or services for use in connection with the supply of a carriage service specified in paragraph 16(1)(b) or (c); or

                     (c)  the installation of, maintenance of, operation of or provision of access to:

                              (i)  a telecommunications network; or

                             (ii)  a facility;

                            where the network or facility is used to supply a carriage service specified in paragraph 16(1)(b) or (c);

the person is an international telecommunications operator.

             (7)  In this section:

engaging in conduct has the same meaning as in the Trade Practices Act 1974.

foreign law means a law of a place outside Australia.

 

international telecommunications operator has the meaning given by subsection (6).

368  ACCC to administer Rules of Conduct

                   The ACCC has the general administration of the Rules of Conduct in force under section 367.

369  Rules of Conduct to bind carriers and carriage service providers

             (1)  This section applies to a person who is:

                     (a)  a carrier; or

                     (b)  a carriage service provider.

             (2)  The person must comply with Rules of Conduct in force under section 367.

             (3)  If a provision of an agreement made by the person is inconsistent with Rules of Conduct in force under section 367, the provision is unenforceable (see section 370).

370  Unenforceability of agreements

             (1)  This section applies if an agreement, or a provision of an agreement, is unenforceable because of section 369.

             (2)  A party to the agreement is not entitled, as against any other party:

                     (a)  to enforce the agreement or provision, as the case may be, whether directly or indirectly; or

                     (b)  to rely on the agreement or provision, as the case may be, whether directly or indirectly and whether by way of defence or otherwise.

             (3)  A party (the first party) to the agreement is not entitled to recover by any means (including, for example, set-off, a quasi-contractual claim or a claim for a restitutionary remedy) any amount that another party would have been liable to pay to the first party under or in connection with the agreement or provision, as the case may be, if this section had not been enacted.

371  Investigations by the ACCC

             (1)  This Act does not prevent the ACCC from carrying out an investigation of a contravention of Rules of Conduct in force under section 367.

             (2)  If the ACCC begins an investigation of a contravention of the Rules of Conduct, the ACCC must:

                     (a)  notify the ACA accordingly; and

                     (b)  consult the ACA about any significant developments that occur in the course of that investigation.

372  Reviews of the operation of this Division

             (1)  The ACCC must review, and report each financial year to the Minister on, the operation of this Division.

             (2)  The ACCC must give a report under subsection (1) to the Minister as soon as practicable after the end of the financial year concerned.

             (3)  The ACCC must, if directed in writing to do so by the Minister, review, and report to the Minister on, specified matters relating to the operation of this Division.

             (4)  The ACCC must give a report under subsection (3) to the Minister before the end of the period specified in the direction.

             (5)  The Minister must cause a copy of a report under this section to be laid before each House of the Parliament within 15 sitting days of that House after receiving the report.

Part 21—Technical regulation

Division 1—Simplified outline

373  Simplified outline

                   The following is a simplified outline of this Part:

     The ACA may make the following types of standards:

               (a)     technical standards about customer equipment and customer cabling;

               (b)     standards relating to the features of customer equipment that are designed to cater for the special needs of persons with disabilities;

               (c)     technical standards about the interconnection of facilities.

     The ACA may require customer equipment and customer cabling to be labelled so as to indicate compliance with standards.

     The ACA may issue connection permits, and make connection rules, authorising the connection of customer equipment and customer cabling that does not comply with the labelling requirements.

     A label may include a compliance symbol. The unauthorised use of compliance symbols is prohibited.

     The ACA may grant cabling licences, and make cabling provider rules, authorising the performance of cabling work.

     Civil actions may be instituted for unlawful or dangerous connections of customer equipment or customer cabling.

     Dangerous equipment and cabling may be disconnected from networks.

     The ACA may prohibit the supply or possession of dangerous equipment or cabling.

Division 2—Interpretative provisions

374  Part applies to networks or facilities in Australia operated by carriers or carriage service providers

             (1)  A reference in this Part to a telecommunications network is a reference to a telecommunications network in Australia that is operated by a carrier or carriage service provider.

             (2)  A reference in this Part to a facility is a reference to a facility in Australia that is operated by a carrier or carriage service provider.

375  Manager of network or facility

                   For the purposes of this Part, the manager of:

                     (a)  a telecommunications network; or

                     (b)  a facility of a telecommunications network;

is the carrier, or carriage service provider, who operates the network or facility, as the case may be.

Division 3—Technical standards about customer equipment and customer cabling

376  ACA’s power to make technical standards

             (1)  The ACA may, by written instrument, make a technical standard relating to specified customer equipment or specified customer cabling.

             (2)  Standards under this section are to consist only of such requirements as are necessary or convenient for:

                     (a)  protecting the integrity of a telecommunications network or a facility; or

                     (b)  protecting the health or safety of persons who:

                              (i)  operate; or

                             (ii)  work on; or

                            (iii)  use services supplied by means of; or

                            (iv)  are otherwise reasonably likely to be affected by the operation of;

                            a telecommunications network or a facility; or

                     (c)  ensuring that customer equipment can be used to give access to an emergency call service; or

                     (d)  ensuring, for the purpose of the supply of a standard telephone service, the interoperability of customer equipment with a telecommunications network to which the equipment is, or is proposed to be, connected; or

                     (e)  achieving an objective specified in the regulations.

             (3)  Regulations made for the purposes of paragraph (2)(e) must not specify an objective if the achievement of the objective is likely to have the effect (whether direct or indirect) of requiring a telecommunications network or a facility to:

                     (a)  have particular design features; or

                     (b)  meet particular performance requirements.

             (4)  A standard under this section may be of general application or may be limited as provided in the standard. This subsection does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

             (5)  A standard under this section takes effect:

                     (a)  if the instrument making the standard specifies a day for the purpose—on that day; or

                     (b)  otherwise—on the day on which the standard was notified in the Gazette.

             (6)  A standard under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

377  Adoption of voluntary standards

             (1)  In making a technical standard under section 376, the ACA may apply, adopt or incorporate (with or without modification) any matter contained in a standard proposed or approved by:

                     (a)  the Standards Association of Australia; or

                     (b)  any other body or association;

either:

                     (c)  as in force or existing at a particular time; or

                     (d)  as in force or existing from time to time.

             (2)  Subsection (1) does not, by implication, limit section 589.

378  Procedures for making technical standards

             (1)  Before making a technical standard under section 376, the ACA must, so far as is practicable, try to ensure that:

                     (a)  interested persons have had an adequate opportunity to make representations about the proposed standard (either directly, or indirectly by means of a report under paragraph (2)(g)); and

                     (b)  due consideration has been given to any representation so made.

Note:          This subsection has effect subject to section 379 (which deals with the ACA’s power to make standards in cases of urgency).

             (2)  The ACA may make an arrangement with any of the following bodies or associations:

                     (a)  the Standards Association of Australia;

                     (b)  a body or association approved in writing by the Standards Association of Australia for the purposes of this subsection;

                     (c)  a body or association specified in a written determination made by the ACA for the purposes of this subsection;

under which the body or association:

                     (d)  prepares a draft of a standard; and

                     (e)  publishes the draft standard; and

                      (f)  undertakes a process of public consultation on the draft standard; and

                     (g)  reports to the ACA on the results of that process of public consultation.

             (3)  A copy of an approval under paragraph (2)(b) is to be published in the Gazette.

             (4)  A copy of a determination under paragraph (2)(c) is to be published in the Gazette.

             (5)  For the purposes of subsection (1), interested persons are taken not to have had an adequate opportunity to make representations unless there was a period of at least 60 days during which the representations could be made.

379  Making technical standards in cases of urgency

             (1)  The ACA is not required to comply with subsection 378(1) in relation to the making of a particular technical standard if the ACA is satisfied that it is necessary to make the standard as a matter of urgency in order to:

                     (a)  protect the integrity of a telecommunications network or of a facility; or

                     (b)  protect the health or safety of persons who:

                              (i)  operate; or

                             (ii)  work on; or

                            (iii)  use services supplied by means of; or

                            (iv)  are otherwise reasonably likely to be affected by the operation of;

                            a telecommunications network or a facility.

             (2)  If subsection (1) applies to a standard (the urgent standard), the urgent standard ceases to have effect 12 months after it came into operation. However, this rule does not prevent the ACA from revoking the urgent standard and making another standard under section 376 that:

                     (a)  is not a standard to which subsection (1) applies; and

                     (b)  deals with the same subject matter as the urgent standard.

Division 4—Disability standards

380  Disability standards

             (1)  The ACA may, by written instrument, make a standard relating to specified customer equipment if:

                     (a)  the customer equipment is for use in connection with the standard telephone service; and

                     (b)  the customer equipment is for use primarily by persons who do not have a disability; and

                     (c)  the standard relates to the features of the equipment that are designed to cater for any or all of the special needs of persons with disabilities.

             (2)  The following are examples of features mentioned in paragraph (1)(c):

                     (a)  an induction loop that is designed to assist in the operation of a hearing aid;

                     (b)  a raised dot on the button labelled “5” on a telephone.

             (3)  A standard under this section may be of general application or may be limited as provided in the standard. This subsection does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

             (4)  A standard under this section takes effect:

                     (a)  if the instrument making the standard specifies a day for the purpose—on that day; or

                     (b)  otherwise—on the day on which the standard was notified in the Gazette.

             (5)  A standard under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

             (6)  In this section:

disability has the same meaning as in the Disability Discrimination Act 1992.

381  Adoption of voluntary standards

             (1)  In making a standard under section 380, the ACA may apply, adopt or incorporate (with or without modification) any matter contained in a standard proposed or approved by:

                     (a)  the Standards Association of Australia; or

                     (b)  any other body or association;

either:

                     (c)  as in force or existing at a particular time; or

                     (d)  as in force or existing from time to time.

             (2)  Subsection (1) does not, by implication, limit section 589.

382  Procedures for making disability standards

             (1)  Before making a standard under section 380, the ACA must, so far as is practicable, try to ensure that:

                     (a)  interested persons have had an adequate opportunity to make representations about the proposed standard (either directly, or indirectly by means of a report under paragraph (2)(g)); and

                     (b)  due consideration has been given to any representation so made.

             (2)  The ACA may make an arrangement with any of the following bodies or associations:

                     (a)  the Standards Association of Australia;

                     (b)  a body or association approved in writing by the Standards Association of Australia for the purposes of this subsection;

                     (c)  a body or association specified in a written determination made by the ACA for the purposes of this subsection;

under which the body or association:

                     (d)  prepares a draft of a standard; and

                     (e)  publishes the draft standard; and

                      (f)  undertakes a process of public consultation on the draft standard; and

                     (g)  reports to the ACA on the results of that process of public consultation.

             (3)  A copy of an approval under paragraph (2)(b) is to be published in the Gazette.

             (4)  A copy of a determination under paragraph (2)(c) is to be published in the Gazette.

             (5)  For the purposes of subsection (1), interested persons are taken not to have had an adequate opportunity to make representations unless there was a period of at least 60 days during which the representations could be made.

383  Effect of compliance with disability standards

             (1)  In determining whether a person has infringed section 24 of the Disability Discrimination Act 1992 in relation to the supply or provision of customer equipment, regard must be had to whether the customer equipment complies with a standard in force under section 380.

             (2)  Subsection (1) does not, by implication, limit the matters to which regard may be had.

Division 5—Technical standards about the interconnection of facilities

384  ACA’s power to make technical standards

             (1)  The ACA may, by written instrument, make a technical standard relating to the interconnection of facilities.

Note:          For enforcement of the standards, see section 152AR of the Trade Practices Act 1974.

             (2)  The ACA must not make a standard under subsection (1) unless the ACA is directed to do so by the ACCC under subsection (3).

             (3)  The ACCC may give written directions to the ACA in relation to the exercise of the power to make standards under subsection (1).

             (4)  The ACA must exercise its powers under subsection (1) in a manner consistent with any directions given by the ACCC under subsection (3).

             (5)  The ACCC must not give a direction under subsection (3) unless, in the ACCC’s opinion, it is necessary to do so in order to:

                     (a)  promote the long‑term interests of end‑users of carriage services or of services supplied by means of carriage services; or

                     (b)  reduce or eliminate the likelihood of hindrance to the provision of access to declared services.

             (6)  A standard under subsection (1) may be of general application or may be limited as provided in the standard. This subsection does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

             (7)  A standard under subsection (1) takes effect:

                     (a)  if the instrument making the standard specifies a day for the purpose—on that day; or

                     (b)  otherwise—on the day on which the standard was notified in the Gazette.

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

             (9)  In this section:

declared service has the same meaning as in Part XIC of the Trade Practices Act 1974.

385  Adoption of voluntary standards

             (1)  In making a technical standard under section 384, the ACA may apply, adopt or incorporate (with or without modification) any matter contained in a standard proposed or approved by:

                     (a)  the Standards Association of Australia; or

                     (b)  any other body or association;

either:

                     (c)  as in force or existing at a particular time; or

                     (d)  as in force or existing from time to time.

             (2)  Subsection (1) does not, by implication, limit section 589.

386  Procedures for making technical standards

             (1)  Before making a technical standard under section 384, the ACA must, so far as is practicable, try to ensure that:

                     (a)  interested persons have had an adequate opportunity to make representations about the proposed standard (either directly, or indirectly by means of a report under paragraph (2)(g)); and

                     (b)  due consideration has been given to any representations so made.

             (2)  The ACA may make an arrangement with any of the following bodies or associations:

                     (a)  the Standards Association of Australia;

                     (b)  a body or association approved in writing by the Standards Association of Australia for the purposes of this subsection;

                     (c)  a body or association specified in a written determination made by the ACA for the purposes of this subsection;

under which the body or association:

                     (d)  prepares a draft of a standard; and

                     (e)  publishes the draft standard; and

                      (f)  undertakes a process of public consultation on the draft standard; and

                     (g)  reports to the ACA on the results of that process of public consultation.

             (3)  A copy of an approval under paragraph (2)(b) is to be published in the Gazette.

             (4)  A copy of a determination under paragraph (2)(c) is to be published in the Gazette.

             (5)  For the purposes of subsection (1), interested persons are taken not to have had an adequate opportunity to make representations unless there was a period of at least 60 days during which the representations could be made.

387  Procedures for making technical standards

             (1)  The ACA must not make a standard under section 384 relating to a particular matter unless:

                     (a)  the ACA has given a body or association a written notice requesting the body or association to make a standard relating to that matter within the period specified in the notice; and

                     (b)  one of the following subparagraphs applies:

                              (i)  the body or association does not comply with the request;

                             (ii)  the body or association complies with the request, but the ACA is not satisfied that the body’s or association’s standard deals with that matter in an adequate way;

                            (iii)  the body or association complies with the request, but the ACA is not satisfied that the body’s or association’s standard is operating adequately.

             (2)  The period specified under paragraph (1)(a) must run for at least 120 days after the notice was given.

             (3)  In making a decision under subparagraph (1)(b)(ii) or (iii), the ACA must have regard to:

                     (a)  whether the body’s or association’s standard is likely to promote the long‑term interests of end‑users of carriage services and of services supplied by means of carriage services; and

                     (b)  whether the body’s or association’s standard is likely to reduce or eliminate the likelihood of hindrance to the provision of access to declared services.

             (4)  Subsection (3) does not, by implication, limit the matters to which the ACA may have regard.

             (5)  Before making a decision under subparagraph (1)(b)(ii) or (iii), the ACA must consult the ACCC.

388  Provision of access

                   A reference in this Division to the provision of access is a reference to the provision of access to:

                     (a)  service providers generally; or

                     (b)  a particular class or classes of service providers; or

                     (c)  a particular service provider or particular service providers;

in order that the service provider or providers can provide carriage services and/or content services.

389  Promotion of the long‑term interests of end‑users of carriage services and of services supplied by means of carriage services

                   For the purposes of this Division, the question whether a particular thing promotes the long‑term interests of end‑users of carriage services or of services supplied by means of carriage services is to be determined in the same manner as it is determined for the purposes of Part XIC of the Trade Practices Act 1974.

Division 6—Connection permits and connection rules

Subdivision A—Connection permits authorising the connection of non-standard customer equipment and non‑standard cabling

390  Application for connection permit

Customer equipment

             (1)  A person (the applicant) may apply to the ACA for a permit authorising the applicant, and such other persons as are from time to time nominated by the applicant, to:

                     (a)  connect specified customer equipment to a telecommunications network or to a facility; and

                     (b)  maintain such a connection.

The permit is called a connection permit.

Customer cabling

             (2)  A person (the applicant) may apply to the ACA for a permit authorising the applicant, and such other persons as are from time to time nominated by the applicant, to:

                     (a)  connect specified customer cabling to a telecommunications network or to a facility; and

                     (b)  maintain such a connection.

The permit is called a connection permit.

391  Form of application

                   An application must be:

                     (a)  in writing; and

                     (b)  in accordance with the form approved in writing by the ACA.

392  Application to be accompanied by charge

                   An application must be accompanied by the charge (if any) fixed by a determination under section 53 of the Australian Communications Authority Act 1997.

393  Further information

             (1)  The ACA may request the applicant to give the ACA further information about the application.

             (2)  The ACA may refuse to consider the application until the applicant gives the ACA the information.

394  Issue o