Federal Register of Legislation - Australian Government

Primary content

A Bill for an Act to amend the law relating to telecommunications, and for related purposes
Administered by: Broadband, Communications and the Digital Economy
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Introduced Senate 02 Oct 1997

 

 

1997

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

TELECOMMUNICATIONS LEGISLATION AMENDMENT BILL 1997

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of Senator the Hon. Richard Alston, Minister for Communications, the Information Economy and the Arts)

 

 

THIS MEMORANDUM TAKES ACCOUNT OF THE AMENDMENT

MADE BY THE SENATE TO THE BILL AS INTRODUCED


TELECOMMUNICATIONS LEGISLATION AMENDMENT BILL 1997

 

 

OUTLINE

 

 

The Telecommunications Legislation Amendment Bill 1997 (referred to in the explanatory memorandum as ‘the Bill’) applies new arrangements to procedures for establishing an interception capability for telecommunications services in Australia and the funding of this interception capability.

 

Currently the Telecommunications Act 1997 requires carriers and carriage service providers to be able to executive an interception warrant issued under the Telecommunications (Interception) Act 1979. The Bill provides for a continuation of this requirement (the ‘fallback’ capability) until a new level of interception capability is determined by the Attorney-General.  This new level of interception capability is to be based upon a relevant international standard or guideline.

 

The Minister and the Attorney-General can jointly authorise the operation of a service with a lower (or no) level of interception capability. Law enforcement and national security agencies will have the same power, while the Australian Communications Authority (ACA) will be able to provide exemptions for trial services after consultation.

 

Carriers and nominated carriage service providers will be required to notify the ACA of any new technology or change to existing technology that if implemented will affect the carriers’ or providers’ interception obligations. Agencies will be provided with reasonable opportunity to consult with carriers or providers on the new technology.

The Bill provides for carriers and nominated carriage service providers to submit interception capability plans covering a period of five years from the start of the plan. These plans will be required to be submitted annually, and will include a statement of the policies of the carrier or provider in relation to interception generally; of its strategies for compliance with its interception obligations; a statement of any relevant business developments, and a description of the carriers’ or providers’ strategies for minimising long term costs.

Carriers will be required to pay for the costs of providing the required level of interception capability.

The Bill requires carriers and agencies 1to agree to a delivery point that is relevant to the interception capability specified by the Attorney-General or the ‘fallback’ interception capability. Carriers are required to pay for the: transmission of information to the delivery point, and the agency is required to pay for the transmission costs from the delivery point to the final destination.

Agencies are to reimburse carriers and carriage service providers for the costs of interception capabilities specified by the agencies, including delivery, formatting and ancillary items. Carriers and carriage service providers are required to find the most cost effective solutions, and can be audited by the ACA in this regard.

The Bill requires agencies to continue to reimburse carriers for the costs of executing interception warrants, as well any other ‘help’ matters that are ancillary to the listening and recording of a communication.

The Minister is required to conduct a review into the long-term cost effectiveness of the new interception arrangements before 1 July 1999. A copy of the report from this review is to be laid before each House of the Parliament.

Items 1 to 24 of Schedule 2 to the Bill contain a series of minor amendments to the Telecommunications Act 1997. These proposed amendments:

           require the ACA, if requested by the Minister, to monitor and report on specified matters relating to the performance of telecommunications carriers and carriage service providers;

           require intermediaries who arrange for the supply of a carriage service enabling access to the Internet to enter into the Telecommunications Industry Ombudsman scheme;

           make it clear that the requirement for carriers and carriage service providers to provide pre-selection in favour of carriage service providers does not include a requirement to provide multi-basket pre-selection;

           allow the labelling requirements for telecommunications equipment or cabling to be imposed on the agents of manufacturers or importers of that equipment or cabling;

           require carriers to have a current industry development plan at all times;

           require variations to industry development plans to be approved by the Minister for Industry, Science and Technology;

           require the Industry Minister to notify carriers and applicants for carrier licences of government policies he wishes them to take into account in preparing their industry development plans;

           remove the need for carriers to notify land owners and public authorities of their intention to inspect land, engage in maintenance activities or install telecommunications facilities in certain emergency situations;

           remove the need for carriers to notify land owners and public authorities of their intention to inspect land in connection with the installation of a temporary defence facility, or of their intention to install or maintain such a facility where it is impracticable to do so;

           make it clear that the ACA can issue a telecommunications facility installation permit in a situation where a landowner consents to the proposed installation but a local council does not (Senate amendments to this item moved by Senator Allison also impose additional requirements on the carriers to consult with proprietors and each relevant administrative authority before the ACA can consider issuing a facility installation permit); and

 

•      correct typographical and cross-referencing errors.

 

Items 25 and 26 of Schedule 2 make amendments to the Telecommunications

(Transitional Provisions and Consequential Amendments) Act 1997:

           to insert an inadvertently omitted definition of ‘eligible service’ in subsection 40(4) in the same terms as the definition of that term in subsection 39(15); and

           to correct a typographical error.

 

Items 27 to 31 correct typographical and cross-referencing errors in Parts XIB and XIC of the Trade Practices Act 1974, dealing with anti-competitive conduct in the telecommunications industry and the telecommunications access regime.

 

FINANCIAL IMPACT

Currently the Act requires law enforcement and national security agencies to reimburse the carriers for providing a level of interception capability sufficient to enable the execution of an interception warrant issued under the Telecommunications (Interception) Act 1979.

The Bill provides for carriers to meet the costs of providing the required level of interception capability, which may be the existing level of capability or an enhanced level of capability determined by the Attorney-General. Costs to the carriers of providing the required interception capability may be in the order of $50 million over the next three years.

The Bill continues the current requirements for law enforcement and national security agencies to reimburse the carriers and carriage service providers for the costs of executing individual interception warrants, as well as imposing the obligation that these agencies pay for any additional interception capabilities they have specifically requested the industry to provide. These costs are unknown at this stage, but will be on a ‘user pays’ basis.

The industry development plan amendments should not result in additional costs being imposed on carriers. There should be little cost to the Government in being required to approve proposed variations to industry development plans. Staff and procedures are already in place to monitor industry development plans and to review variations to them.

The remaining amendments in the Bill are not expected to have a significant financial impact on Commonwealth expenditure or revenue.

 


REGULATION IMPACT STATEMENT – SCHEDULE 1

 

TELECOMMUNICATIONS LEGISLATION AMENDMENT BILL 1997 :
NEW INTERCEPTION ARRANGEMENTS

 

A. Problem identification and specification of regulatory objectives

The current regulatory and associated funding arrangements for telecommunications interception (TI) capabilities have the following key elements:

 

       telecommunications carriers and nominated carriage service providers (“carriers”) are required to have an ability to execute an interception warrant when requested by law enforcement and national security agencies (‘agencies’), unless those carriers are authorised by the Minister for Communications and the Arts (‘the Minister’)

       carriers must consult with agencies about new technologies before introducing a telecommunications service which makes use of that technology

       agencies bear all of the costs associated with developing interception capabilities and executing individual warrants.

 

These arrangements are no longer considered appropriate.  They have already led to significant delays to the introduction of some telecommunications services with consequences for consumers and businesses. The current arrangements have also contributed to delays in the development of an adequate interception capability for other new services, with consequences for law enforcement and national security. With the opening of the market to full competition, and continuing technological change, it will become increasingly difficult and expensive for agencies to negotiate interception capability arrangements bilaterally with every new entrant. In turn, this could lead to increasing delays to the entrance of new market participants, and to new services, with implications for the evolution of the telecommunications market.

 

There has also been growing concern in the international law enforcement community about a declining ability in the longer term of agencies to intercept telecommunications services, primarily because of technological and market change. A report for the previous Government by Mr Pat Barrett in 1994 (‘the Barrett Report’) proposed that the best long term hope for retaining a cost effective interception capability into the longer run was through international co-operation directed at getting telecommunications equipment vendors (especially manufacturers of switches) to include common interception capabilities into their equipment. The idea was that this would ensure that capabilities were maintained, while keeping costs down (through economies of scale) and sharing them among all user countries.

Based on this reasoning, law enforcement and national security agencies from most OECD countries have been meeting under the auspices of a grouping calling itself the International Law Enforcement Telecommunications Seminar (ILETS). ILETS has developed a document currently known as the International User Requirement (IUR). The IUR is intended to provide a high level specification of generic agency requirements in relation to the interceptibility of telecommunications networks. It is intended that the IUR form the basis of a future international telecommunications standard dealing with interceptibility issues.

The main objectives of this regulation are:

       to maximise the surveillance capabilities of the agencies while this remains cost effective

       to provide industry with a clear and definitive statement of its regulatory responsibilities in relation to interception capabilities

       to ensure that the telecommunications industry is not unduly hindered or delayed in its ability to offer new services

       to provide incentives for both industry and agencies to minimise the costs associated with providing interception capabilities

       to foster a co-operative environment between the telecommunications industry and agencies

       to provide for a reasonable degree of transparency in the dealings between carriers and the industry in relation to interception capability matters.

 

The Bill makes no changes to the requirements of the Telecommunications (Interception) Act 1979, and makes no substantial changes to the existing requirements in the Telecommunications Act relating to ‘help’ (Part 14). However, there will be changes to the standard of interception capability, and the funding of that capability and certain ancillary matters (Part 15 of the Act).

B. Identification of alternatives

The main alternatives to the current arrangements are.

A1.       Remove any regulatory obligations in relation to interception capability or help to agencies and rely instead on industry self-regulation (possibly using the industry code mechanisms under Part 6 of the Act) and market signals to encourage carriers and carriage service providers to provide help to agencies.

A2.       Remove specific interception capability obligations, and rely instead on the broad concept of ‘help’ in Part 14 of the Act. Continue the funding arrangements under which agencies pay on the basis of the carrier neither benefiting nor losing from the provision of that help.

A3.      Clarify the specific interception capability obligations in a way that takes advantage of international efforts to lower the costs of those capabilities, and creates clarity for the industry. Pass the costs of those obligations onto the telecommunications industry, while leaving discretionary costs with agencies.

A4.       Allow the agencies to specify their own obligations. Pass the costs of all interception obligations onto the telecommunications industry

Alternative 1 would have the advantage of having the greatest simplicity, and imposing the fewest restrictions on the industry introducing new services. It would also encourage the agencies to focus their requests for help on those matters of greatest importance.

 

However this option is likely to lead to unacceptable levels of uncertainty for agencies about the extent to which they can get co-operation from carriers and carriage service providers and is likely to substantially raise their costs. Also, there may end up being unequal burdens placed on some parts of the industry.

 

Alternative 2 would focus agency interception requests onto areas of their greatest need, and would ensure that the telecommunications industry and its consumers were not bearing any hidden agency costs. However, this approach carries large administrative costs for the agencies which are likely to rise with competition and increasingly complex technology It is also likely to lead to an overall degradation in interception capability in those networks because the development of such capabilities often has long lead times.

Alternative 3 is essentially the approach in the Bill. It strikes a balance between the industry (and its consumers) now bearing the costs of interception for clearly defined obligations, but these are in turn linked to international efforts to keep interception capability costs under control. However, it leaves agencies with the capability to specify certain discretionary requirements (mainly relating to the delivery of intercepted material), on the basis that the agencies pay for those matters. The latter requirement should help ensure that there are incentives for the agencies to tailor their discretionary requirements in a cost effective way. This arrangement is also likely to lead to fewer administrative costs and delays in the introduction of new telecommunications services.

Alternative 4 would maximise the surveillance capability of the telecommunications network with benefits to agencies. However, it would leave the telecommunications industry with unacceptable levels of uncertainty about its contingent obligations, and would give the agencies little incentive to minimise the costs associated with interception capabilities.

C. Impact Analysis

Benefits

Overall, the Bill streamlines the regulatory processes associated with interception capability obligations by providing for an interception standard and less cumbersome exemption mechanisms. It also improves the framework for promoting co-operation between the major industry players and law enforcement agencies, and assists in the future introduction of new services.

It is difficult to estimate the benefits provide by this form of surveillance, although the agencies claim that the benefits are great, particularly in relation to fighting organised crime; for evidentiary purposes; and in relation to national security, including providing acceptable surveillance for major national events (for example, the 2000 Olympics).

The Victorian Police have previously estimated that in five operations where the cost of TI was approximately $150,000, an early guilty plea saved the State Government over $800,000 (Barrett Report).

 

Costs

In terms of costs, the Bill will have the effect of passing the bulk of the costs of developing and maintaining interception capabilities from the agencies (and through them, the Budget) to the telecommunications industry and its consumers. However, the agencies will remain responsible for discretionary costs (such as delivery) which are the direct result of their own specifications. Given the rapidly changing nature of the industry and its technology, it is not possible to estimate the magnitude of these costs (although historic data provides some indicator of orders of magnitude).

In 1993 it was estimated that total recurrent costs of TI by law enforcement agencies in 1992-93 was over $10.5 million, although only a relatively small proportion of the capital costs of providing an interception capacity was borne by those agencies (Barrett Report).

Taken together, historic experience, combined with the entry of new carriers and likely network upgrades, suggest that costs to industry of establishing the required capability for interception over the next 3 years would likely be in the order of $50 million.

 

Carriers and nominated carriage service providers will also have to bear costs associated with the development of interception capability plans, as well as the costs of examining lower cost interception options when such an examination is requested by the Australian

Communications Authority (ACA).

 

The requirement for the ACA to monitor compliance costs, and for the Minister to hold a review should result in improved cost and benefit information in the future.

 

D. Other Requirements

Consultation

As part of the Cabinet approval process the previous two incumbent general carriers (Telstra and Optus) were consulted in February and March 1997 on the proposed new arrangements. In general, the carriers were supportive of the general principles and objectives underlying the proposed changes to the current interception arrangements. Concerns were raised in regard to the application of the IUR in its totality to Australia, and that flexibility be introduced for compliance with the IUR. There are obvious carrier concerns with their responsibility for funding an interception capability.

Law enforcement agencies have in general been highly supportive of the new arrangements.

Consultations were also undertaken with the Commonwealth Departments of Finance, Treasury, Defence, and Foreign Affairs and Trade. The Attorney-General’s Department was jointly involved with the Department of Communications and the Arts in undertaking the consultation process.

Major industry participants and organisations were informed of the Government’s decisions about the proposed new arrangements.

A presentation and consultation was also undertaken at the ACA Law Enforcement Advisory Committee (LEAC) meeting of 23 July 1997. LEAC comprised of law enforcement and national security agencies, Telstra, Optus, Vodafone, the Service

Providers Action Network (SPAN), and relevant Government bodies.

Consultation was undertaken on the incorporation or the new interception arrangements into the Telecommunications Legislation Amendment Bill 1997. Consultation was

undertaken with relevant Commonwealth departments, major industry participants (Telstra, Optus, Vodafone and SPAN), and the law enforcement agencies. The ‘T’ status of the Bill, and the importance of amending the existing arrangements, means that this final level of consultation was necessarily limited in duration.

 

The law enforcement and national security considerations raised by TI capabilities make it inappropriate to undertake consumer consultation.

 

Administrative simplicity, economy and flexibility

The new arrangements have the benefit of much greater administrative simplicity through the requirement for the majority of telecommunications services to be capable of interception to a relevant international standard. This will encourage the use of this standard at the equipment manufacturing stage, removing the need for a lengthy approval process for most new services.

Where exemptions arc to be granted, the additional powers provided to the law enforcement agencies will ensure that there is a less bureaucratic process to be followed, and the approval time for new services should be greatly reduced.

Explanatory material

Australian carriers, carriage service providers, industry and consumer organisations were provided in March 1997 with the information on the Government’s new policy for TI.

The information on the new interception arrangements detailed below was also placed on the Department’s internet webpage on 26 August 1997.

E. Review

 

The current interception arrangements do not require the ACA to monitor or report on their operation.

 

Under the amendments to the Act the ACA will be required to monitor and report on the operation of the interception arrangements. The ACA is to provide this report as part of their reporting requirements under s. 105 of the Act.

 

The Bill will also require the Minister to cause a review to be conducted before 1 July 1999 of the longer-term cost-effectiveness of the revised interception funding arrangements, and to report to the Parliament on the results of that review.

 

REGULATION IMPACT STATEMENT - SCHEDULE 2

INDUSTRY DEVELOPMENT PLANS

Amendment to Part 2 of Schedule 1 of the Telecommunications Act 1997, to require variations of industry development plans to be approved by the Industry Minister.

 

A. Problem identification and specification of regulatory objectives

Currently, the Act does not require carriers to have amendments to Industry

Development Plans (IDPs) approved by the Industry Minister. The Act requires only that carriers have IDPs approved by the Industry Minister before a carrier licence can be issued to them.

 

This technical oversight in the drafting of the Act gives rise to the possibility that carriers, having had their IDPs approved, could then substantially vary those IDPs (for example, by substantially lessening any obligation on them).

 

The objective of the amendment is to require all amendments to IDPs to require approval of the Industry Minister.

B. Identification of alternatives

The only alternative is to do nothing and trust that carriers will not amend plans or if they propose to amend their plans that they will submit the proposed amendments to the Industry Minister before making the amendments.

C. Impact analysis

Impact Group Identification

There will be only one group affected, namely the carriers who will be required to have proposed amendments to IDPs approved by the Industry Minister before preparing a summary of the amendments for release to the public. At present they are only required to submit the varied plan to the Industry Minister after the variation has been made.

Assessment of costs and benefits

There should be little cost to the Government of approving proposed amendments to IDPs as the staff and procedures are already in place for the original IDPs, and variations are already submitted to the Industry Minister after being made and would be reviewed, but don’t require approval

There should be no additional cost to the carriers of submitting IDPs for approval as they are currently required to submit varied IDPs to the Minister, but not seek his approval. Similarly there should be no noticeable effect on consumers or the community as there is no substantial change in procedures.

 

In assessing the varied IDPs the Industry Minister will use the same criteria as used in assessing original industry development plans. These requirements are outlined in Clause 6 of Part 2 of Schedule 1 to the Telecommunications Act 1997.

They include any relevant particulars of carriers’ strategic commercial relationships

including:

-               their relationships in connection with the production and supply of facilities; and

-               their relationships in connection with investment in, and development of, Australian manufacturing and supply capabilities; and

-               strategic alliances with Australian companies; and

-               strategic alliances with multinational companies; and

-               relationships in connections with the production and supply of equipment for use by people with disabilities.

The plans must also include particulars of a carrier’s activities in relation to research and development, including investment, new technologies, intellectual property ownership, and technology transfers to Australia.

 

There are also requirements that the plans include particulars of a carrier’s export development plans, and any relevant particulars of the carrier’s arrangements at encouraging employment in the industries involved in the manufacture, development or supply of facilities, including training.

 

The Industry Minister assesses IDPs against these items taking into account the size of the carrier and the extent of its operations in Australia

D. Other requirements

Consultation

The Department of Industry Science & Tourism and the Australian Communications

Authority (ACA) have been consulted on this amendment.

The Department of Industry Science & Tourism supports the amendment. The ACA had no comment on the amendment.

Administrative simplicity, economy and flexibility

 

The amendment has the attraction of ensuring all IDPs, whether original or variations, are treated in the same manner, and that carriers are able to plan accordingly.

 

E. Review

The amendment would be reviewed as part of any review of the Telecommunications Act 1997. The Industry Minister is required to report to Parliament each year on the implementation of IDPs by carriers, and could comment earlier if it is discovered that the amendment is not working in the manner it is intended to.

REGULATION IMPACT STATEMENT – SCHEDULE 2

AMENDMENTS TO DIVISION 7 OF PART 21 OF THE TELECOMMUNICATIONS ACT 1997 DEALING WITH LABELLING OF CUSTOMER EQUIPMENT AND CUSTOMER CABLING

A. Problem identification and specification of regulatory objectives

Section 407 of the Telecommunications Act 1997 (the Act) allows the Australian Communications Authority (the ACA) to make a written instrument requiring any person who manufactures or imports specified customer equipment or specified customer cabling to apply to the equipment or cabling a label that indicates whether the equipment or cabling meets the requirements of the technical standards (made under s.376 of the Act) specified in the instrument. The power under s.407 is restricted in its application to manufacturers and importers.

Section 408 of the Act allows the ACA to specify in a s.407 instrument requirements that must be met before (s.408(5)) or after (s.408(6)) a label has been applied. Those requirements are also expressed to apply to manufacturers and importers. Such requirements include arranging for the testing of equipment or cabling against relevant technical standards made under s.376 of the Act; signing a declaration of conformity (DOC) that the equipment or cabling complies with all applicable technical standards; and maintaining a compliance folder that contains all the documents (test reports, DOC, etc) relating to the compliance of the equipment or cabling, and which is to be made available for inspection by the ACA’s auditors as part of the ACA’s enforcement regime for technical regulation of telecommunications.

During the preparation of the first instrument made under s.407 of the Act1, it became apparent that it was common practice for overseas manufacturers to employ local agents to undertake all the steps necessary for the compliance of equipment or cabling, that they propose to supply to Australia, with the requirements of local technical regulatory regimes. But these agents generally are not directly or indirectly involved in the importation of equipment supplied by the manufacturers2. This occurs with direct mail orders, and with the advent of, and expected rise in ordering of equipment through the Internet with subsequent direct supply from the overseas manufacturer to the person

__________________

1The Telecommunications Labelling Notice 1997 (the Labelling Notice) was prepared by a taskforce comprised of representatives of various industry associations, the former Australian Telecommunications Authority and Spectrum Management Agency, and the Department of Communications and the Arts.

2 Subsection 3(3) of the Notice provides that the obligation to label, and the pre- and post-labelling requirements apply to manufacturers of equipment or cabling manufactured in Australia (not overseas manufacturers), and (local) importers of equipment or cabling manufactured overseas.

who placed the order. In these situations, it is the person who places the order who is technically the importer of the equipment. However, it is generally accepted that it would be inappropriate, and virtually unenforceable, to impose the labelling requirements on such persons many of whom are domestic consumers.

Currently, it is possible to allow an importer to enter an agency arrangement to authorise an overseas agent to apply labels to equipment on behalf of the manufacturer3. Should the equipment not comply with applicable s.376 standards, the importer is a person who is within jurisdiction who can be held liable for that non-compliance, and therefore be subject to enforcement action such as prosecution.

However, if an overseas manufacturer authorised a local agent to apply labels on behalf of the manufacturer, and the equipment was subsequently found to be non-compliant, it would be the overseas manufacturer who would be the subject of enforcement action (as the person to whom the s.407 instrument applies). Clearly, it would be impractical to mount a prosecution against an overseas manufacturer. Also, in the direct (mail) order situation, it would be inappropriate to take enforcement action against the person who ordered the equipment in relation to breaches that were effectively committed by the overseas manufacturer.

As well, industry has indicated that it is generally accepted practice in an agency arrangement for the agent to make the declaration of conformity after having taken all the necessary steps to establish that the relevant equipment or cabling complies with all applicable technical standards. It appears that these established arrangements were not taken into account when the Act was drafted.

 

The ACA has had representations from industry (including manufacturers and agents, both local and overseas) to the effect that many agency arrangements, involving major overseas manufacturers, are under threat because of the current inability for the labelling requirements to be imposed on the agents This could seriously adversely affect the supply of telecommunications equipment to Australia at a time when demand for such equipment is increasing in a climate of increasing competition in the supply of telecommunications services following the commencement of the Act and related legislation on 1 July 1997.

B. Identification of alternatives

Alternative 1

One alternative is not to amend the Act and continue to provide in the Labelling Notice for only one type of agency, that is, authorising an agent (an overseas manufacturer) to apply a label to equipment or cabling on behalf of an importer.

Alternative 2

Another alternative is to amend the Notice to apply it to overseas manufacturers.

 

 

_________________

3 See s.6(2) of the Labelling Notice.

Alternative 3 - Preferred option

The preferred option is to amend ss.407 and 408 of the Act (with consequential amendments) to allow the labelling requirements to be imposed directly on the agents.

C. Impact analysis

Alternative 1

Alternative 1 would have the continued effect of interfering with established agency arrangements and threatening the supply to Australia of telecommunications equipment at a critical time in the development of competition in the Australian telecommunications market.

Another effect would be to require, at great cost and inconvenience, any person in Australia, who places a mail order with an overseas manufacturer for the supply of equipment or cabling to the person in Australia, to enter into an agency arrangement with the manufacturer for the purposes of the labelling requirements. Should there be any breach of the requirements, the individual would be liable. This clearly would be unreasonable, as the individual would have not expertise, or be in any practical position, to ascertain or ensure that the equipment or cabling complied with all applicable technical standards.

Alternative 2

The effect of Alternative 2 would be that Australian authorities would be, in any practical sense, unable to take action against an overseas manufacturer because of the difficulties of prosecuting a person who is overseas.

It would also have the effect of continuing to interfere with established agency arrangements whereby the overseas manufacturers are able to rely on the expertise of local agents to take all the necessary regulatory steps (and be liable for any breaches in relation to those steps) to enable the manufacturers’ products to be supplied to Australia.

Alternative 3 - Preferred option

Alternative 3 would allow manufacturers and importers to revert back to established agency arrangements whereby the agents take responsibility for ensuring that the labelling requirements are met. Overseas manufacturers could rely on local agents to satisfy the labelling requirements, obviating the need for the individual in Australia who places a mail order to enter into agency arrangements with those manufacturer.

This would ensure the supply of equipment and cabling to Australia to facilitate the introduction and growth of competition in the supply of goods and services in the Australian telecommunications market.

D. Other requirements

Consultation

The Telecommunications Labelling Notice 1997 (the Labelling Notice) was prepared by a Taskforce comprised of representatives of various industry associations, the former Australian Telecommunications Authority and Spectrum Management Agency, and the Department of Communications and the Arts.

The taskforce forms the core of the Communications Technical Regulation Consultation Group (the Group), a forum coordinated by the ACA for the purpose of reviewing the technical regulation of telecommunications and radiocommunications in Australia. This Group has a wide membership representing all sectors of the industries affected by such regulation. Those sectors include telecommunications carriers, carriage service providers, equipment suppliers, cabling suppliers, testing houses, agents, and consumer groups.

Both the Taskforce and the Group have identified the need for these amendments as the highest immediate priority for the technical regulation regime.

As well, the proposal for the amendments has been recommended and endorsed by the Australian Communications Industry Forum (ACIF), a new peak industry body established for the purpose of managing the industry self-regulation processes in accordance with the letter and spirit of the new telecommunications regime provided by the Act.

E. Review

As previously stated, the Group has been established for the purpose of reviewing the technical regulation of telecommunications and radiocommunications in Australia. The Group will continue to examine the operation of the regimes for the technical regulation of telecommunications with a view to simplifying the requirements and eliminating any overlap that currently may require the taking of the same (separate) action in relation to different regimes.

Also the ACA will be entering into a Memorandum of Understanding under which the ACIF will take the running on the preparation of technical standards to be made by the ACA under s.376 of the Act. The preparation of these standards necessarily involves a re-examination of the Labelling Notice because the Notice prescribes compliance levels4 in relation to s.376 standards.

 

 

 

 

___________________________

4Compliance levels relate to the steps one is required to take to demonstrate that the relevant equipment or cabling complies with the applicable s.376 standards. These compliance levels have to be satisfied before a label is applied to the equipment or cabling.


NOTES ON CLAUSES

Clause 1 – Short title

Clause 1 provides that the Act may be cited as the Telecommunications Legislation Amendment Bill 1997.

 

Clause 2 Commencement

The amendments contained in Schedule 1 to the Bill relating to telecommunication

interception and related matters will commence on Royal Assent.

Item 25 of Schedule 2 to the Bill, which inserts a definition of ‘eligible service’ for the purposes of subsection 40(4) of the Telecommunications (Transitional Provisions and Consequential Amendments) Act 1997, will be taken to have commenced on 3 May 1997 (the date that subsection commenced) immediately after the commencement of that  subsection.

Item 26 of Schedule 2 to the Bill, which corrects a cross-referencing error in item 15 of Schedule 3 to the Telecommunications (Transitional Provisions and Consequential Amendments) Act 1997, will be taken to have commenced immediately before the commencement of that item. (That item will commence on the commencement of the proposed Commonwealth Authorities and Companies Act 1997.)

Items 27 to 31 inclusive of Schedule 2 to the Bill, which correct typographical and cross‑referencing errors in Parts XIB and XIC of the Trade Practices Act 1974 dealing with anti-competitive conduct in the telecommunications industry and the telecommunications access regime, will be taken to have commenced immediately after the commencement of Schedule 1 to the Trade Practices Amendment (Telecommunications) Act 1997 (which inserted Parts XIB and XIC).

Clause 3 – Schedule(s)

 

Clause 3 provides that any amendment or repeals to the Acts specified in a Schedule to the Bill have effect according to their terms. The relevant Acts are the Telecommunications Act 1997, the Telecommunications (Transitional Provisions and Consequential Amendments) Act 1997 and the Trade Practices Amendment (Telecommunications) Act 1997.

Schedule 1 – Amendment of the Telecommunications Act 1997 in relation to telecommunications interception and related matters

Item 1 – Proposed amendment of section 7

This item inserts some significant new definitions which are required by the changes made elsewhere in Schedule 1 to the Bill. The new defined terms are:

       agency - which provides a list of the law enforcement agencies for the purpose of the Act

       agency coordinator - which is defined as a person described in the new section 7A (inserted by Item 2)

       an IC Plan - which refers to the interception capability plans described in the new section 329, and properly lodged, and

       interception related information - which means information about a matter which is the subject of an obligation under the new Division 2 of Part 15.

 

Item 2 - Insertion of new proposed section 7A

This item inserts a new section which defines the agency coordinator. The agency coordinator is intended to provide a central point of contact between carriers and carriage service providers, and to provide a formal decision maker in relation to ‘agency’ decisions under Part 15 of the Act. In the first instance, this person has been deemed to be the Secretary of the Attorney-General’s Department. However, flexibility has been provided for the Attorney-General to nominate another person or body to take on this role, should this become necessary or desirable.

Subsection (2) deems any act done by the agency coordinator as being an act done on behalf of all agencies. While the deeming effect of this subsection is necessary in order to provide certainty, in practice it is nevertheless expected that the agency coordinator will in fact represent and act on behalf of the agencies. It is therefore likely that the agency coordinator will need to work out appropriate coordination arrangements with each affected agency, or with the agencies collectively. The agency coordinator’s roles in Parts 14 and 15 allows substantial flexibility for this to occur.

Subsection (3) requires that a determination issued by the Attorney-General under subsection (1) which changes the agency coordinator, is to be a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Item 3 - Insertion of proposed new subsection 105(5A)

This item inserts a new requirement on the ACA to monitor and report each financial year to the Minister on the operation of Parts 14 and 15 of the Telecommunications Act 1997 and on the costs of compliance with the requirements of those Parts. This information is likely to be used as an element in the review which will be required by the new Division 6 of Part 15 of the inserted by item 10.

Item 4 - Proposed amendment of subsections 105(6) and (7)

This item inserts a reference to the new subsection 105(5A) into subsections 105(6) and (7) which deal with the ACA’s reporting obligations.

Item 5 - Proposed new subsection 313(7)

This item repeals subsection 313(7) of the Telecommunications Act 1997 and replaces it with a new subsection which puts it beyond doubt that the concept of ‘giving help’ in Part 14 of the Telecommunications Act 1997 includes help by way of the provision of interception services and that, in turn, this includes the execution of individual warrants. One of the consequences of this is that agencies are required to pay the incremental cost of executing individual warrants, according to the principles set out in section 314 of the Telecommunications Act 1997.

The item also inserts a note at the end of section 313 of the Telecommunications Act 1997 which is intended to help explain that the particular obligations to provide certain kinds of interception capabilities under Part 15 are in addition to the more general obligation to provide help by way of interception, including in particular instances, under Part 14.

Item 6 - Proposed amendment of subsection 314(2)

The inserted words in this item make it clear that the general principle in subsection 314(2) (that a person giving help under Part 14 neither profit from, nor bear the cost of giving that help) is changed in the particular circumstances (relating primarily to the delivery of intercepted information) set out in the new subsection 314(3A) inserted by Item 8.

Item 7 - Proposed amendment of subsection 314(3)

This item makes it clear that any agreement between a person giving help and a person asking for help is subject to the principles in the new subsection 314(3A), to the extent that these are relevant.

Item 8 - Insertion of proposed subsection 314(3A)

The new subsection 314(3A) inserted by this item sets out some particular principles governing the terms and conditions governing certain aspects of help by way of interception services by a person giving help to an agency. These principles require:

·      the person giving help to bear the cost of transmission of interception related information from the point to interception to a delivery point (defined in the new section 314A inserted by item 9) for the agency concerned;

·      the agency to bear the cost of transmission from that delivery point to another place specified by the agency; and

·      the agency to bear the cost of any agency specific delivery capability imposed on the person under Division 4 of Part 15.

Under s.313(3) of the Telecommunications Act 1997 requires carriers and carriage service providers (CSPs) to provide reasonably necessary help to a potentially broad range of people and bodies which includes, but goes beyond, agencies. Subsection 314(3B) is intended to put it beyond doubt that the special principles in subsection 314(3A) only apply to the provision of help by a carrier/CSP to an agency.

Item 9 - Insertion of proposed section 314A - Delivery points

This item inserts a new section which sets out a process for defining delivery points. The concept of delivery point is used in proposed subsection 314(3A) inserted by item 8 to determine the allocation of costs between a person providing help and an agency in relation to certain interception matters. This provision is intended in large part to implement a policy principle that carriers and carriage service providers fund the development and maintenance costs of interception related information up to the point of interception (in most cases up to and including the switch), with the agencies responsible for funding the development and maintenance costs of delivery from the point of interception to the agency (and any cost of additional formatting requirements).

Subsection 314A(1) requires that each carrier or CSP must nominate at least one delivery point in Australia for each agency from which information, passing over the carriers network or by the carriage service provider, can be transmitted to that agency. The carrier must inform the agency coordinator of the nominated delivery point for each agency.

It is worth noting that the number of nominated delivery points may vary with the carrier and agency concerned. For example, it may, depending on the considerations outlined in subsection 314A(5), be appropriate for a nationally based telecommunications carrier with substantial long distance capacity in its own network to provide several points in relation to different agencies or even to different sites for a nationally based agency. However, it may be appropriate for a small scale CSP with no network of its own only to nominate one point for all agencies at or close the point of interception. Subsection 314A(5) provides a process for resolving disputes about these sorts of considerations.

Subsection 314A(2) provides that the agency coordinator may notify the carrier or provider that an agency does not agree with a nominated delivery point the carrier or provider must nominate another delivery point and inform the agency coordinator.

Subsection 314A(3) provides that if the delivery point is still unsatisfactory to the agency then the agency coordinator must inform the carrier and refer the disagreement to the ACA for resolution.

Subsection 314A(4) provides that after hearing the views of the carrier or providers and the agency, the ACA must determine the location of the delivery point.

Subsection 314A(5) provides that, in making its decision on the location of the delivery point, the ACA must have regard to technical and cost issues (including relative costs to the agency and carrier), the reasonable needs of the agency, the reasonable commercial requirements of the carrier or provider, and the location of any delivery points already existing in relation to that agency or any other agencies. The last criterion is intended to allow the ACA to take into account the fact that a carrier may already have in place a delivery point which is being used to supply interception related information to other agencies.

Subsection 314A(6) clarifies that the point of interception need not also be the delivery point if another more suitable delivery point exists in accordance with the criteria in subsection 314A(5).

Subsection 314A(7) clarifies that where a carrier or provider and an agency do not agree on a delivery point, and the ACA is yet to determine a location, then the point last nominated by the carrier or provider is to be the delivery point.

Subsections 314A(8) - (10) address the situation of changing a delivery point after the ACA has made a decision under subsection 314A(5).

314A(8) allows a carrier or provider to change an ACA determined delivery point if there has been a material change in circumstances by notifying the agency coordinator.

314A(9) allows the agency coordinator to seek a change to an ACA determined delivery point if there has been a material change in circumstances either by the agency coordinator, or the agency concerned, requesting the carrier or provider to nominate another place as the location of that delivery point.

314A(10) in essence provides that the procedures for resolving disputes about new delivery points under subsections 314A(8) and (9) are to be resolved using the same process as for other delivery points.

Item 10 - Insertion of proposed new Part 15

This item repeals Part 15 of the Act and substitutes a new Part 15.

The new Part 15 is titled Co-operation with agencies.

Division 1 - Introduction

Proposed new section 317 - Simplified outline

Proposed new section 317 provides an outline of this Part which states:

       carriers and carriage service providers must comply with obligations on standards of interception capability and special assistance capability;

       exemption from compliance with these obligations may be granted in certain circumstances;

       carriers and nominated carriage service providers must comply with obligations to prepare and submit an annual interception capability plan;

       carriers and certain nominated carriage service providers must notify the ACA of technological changes affecting the provision of help under Part 14 in connection with a requirement under Division 2 of this Part;

       carriers, carriage service providers and agencies are required to meet different costs associated with the provision of various capabilities related to interception

       the Minister is to cause a review to be conducted of the cost effectiveness of interception and related matters.

Proposed new section 318 - Definition

This proposed section provides for a definition of a nominated carriage service provider to be a carriage service provider declared by the Attorney-General under proposed section 331.

Proposed new section 319 - Meaning of interception

The definition of interception proposed by this section is closely based on the definition of interception in subsection 6(1) of the Telecommunications (Interception) Act 1979.

The definition is used principally to help define an interception capability in the proposed section 320.

Proposed new section 320 - Meaning of interception capability, special assistance capability and agency specific delivery capability

This proposed section sets out the meaning of three key sets of capabilities which under Part 15 carriers, and in some cases CSPs, can be obliged to provide.

The basic layer of capability is that described in proposed subsection 320(2) which defines interception capability as the ability to intercept a communication passing over a controlled network or controlled facility. Since this definition relies on the definition of interception in proposed section 319, it thus essentially goes to a capability to monitor and record a communication.

The next layer of capability is that in described in proposed subsection 320(3) which defines a special assistance capability as the ability of a controlled network or controlled facility to render certain specified forms of assistance to law enforcement agencies. The assistance must:

       not relate to the interception capability or to the actual interception of a communication; and

       must be related to a matter set out in an international standard or guideline mentioned in proposed subsection 322(4).

As is clear from the notes to both proposed subsections 320(2) and (3), the specific obligations relating to interception capabilities and special assistance capabilities flow from a determination made by the Attorney-General under proposed section 322. The likely form of these is described below.

Proposed subsection 320(4) describes the third layer of capabilities which can be the subject of carrier/CSP obligations. It defines agency specific delivery capability, as the ability of the carrier or provider of the service to meet specific delivery requirements notified by the agency under proposed section 332J, for the purposes of providing help to the agency under Part 14.

In general, interception capabilities and special assistance capabilities are likely to apply widely to all suppliers in the telecommunications industry, although the special assistance capabilities may vary from service to service. The agency specific delivery capabilities are discretionary, and are likely to be carrier- or service provider-specific.

Division 2 - Obligations concerning interception capability and ancillary matters and exemption from the obligations

This Division sets out the rules governing the basic obligations of both carriers and CSPs in relation to providing interception and special assistance capabilities.

Subdivision A - Introduction

Proposed new section 320 - Purpose of Division

This proposed section identifies that the purpose of this Division is to provide for:

•    the Attorney-General’s power to make determinations to enable the interception capability or special assistance capability, and

•   obligations concerning the determination: and

•   obligations concerning interception capability where the determination is not applicable; and

•   the exemptions from the obligations.

Subdivision B - Obligations

Proposed new section 322 - Attorney-General may make determinations

The main obligations in the Subdivision B flow from the making by the Attorney-General of a written determination.

Proposed subsection 322(1) provides the Attorney-General’s power to make written determinations to enable the interception capability or special assistance capability in relation to a specified carriage service which involves, or will involve, the use of a controlled network or controlled facility of a carrier or carriage service provider. The reason for the determination needing to address particular services is addressed below.

Proposed subsection 322(2) provides that a determination must:

•    specify an international standard or guidelines on which the determination is based; and

       provide for special assistance capability by adopting international standards of guidelines, in whole or part, with modifications as are necessary to facilitate the application of the international standard; and

       be expressed to be a determination in relation to interception capability, special assistance capability or both;

       specify which part of the determination is in relation to interception capability and special assistance capability where the determination applies to both;

       be accompanied by a copy of the international standard or the relevant part of the international standard.

The approach in this section is intended to allow the Attorney-General to implement in Australia the International User Requirement (described in the Regulatory Impact Statement above), with any subsequent amendments. This approach is appropriate because, in practice:

       the IUR is a high level specification which on its face would not create certain obligations for the industry;

       some of the requirements in the IUR are not likely to be capable of immediate application to all services (for example. a capability to measure call duration has little meaning in relation to data services);

       the IUR contains a number of obligations which are specifically designated as being for implementation by national governments;

       the IUR has not yet been accepted by the International Telecommunications Union as a technical standard, and hence many manufacturers of switch and related equipment are not yet manufacturing to its standards, and it may he unreasonable to impose the full range of IUR obligations on the telecommunications industry for some services under these circumstances;

       the IUR is likely to evolve as the international community of agencies is able to specify their requirements in relation to new services.

For these reasons, it is necessary to provide flexibility. It will be necessary to work through the IUR’s general requirements with the industry and agencies, probably on a service-by-service basis. For this reason, proposed subsection 322(1) requires that the determination be applied to particular carriage services.

However, this flexibility is circumscribed by appropriate safeguards. Proposed paragraph 322(2)(b) limits the application of the determination to the implementation of the relevant standard. Paragraph (e) requires that the determination be accompanied by a copy of the relevant standard. Proposed subsection 322(3) provides that a determination is a disallowable instrument for the purposes of s.46A the Acts Interpretation Act 1901. Proposed subsection 322(4) provides that the international standard continued in a determination as referred to in proposed subsection 322(2), must deal primarily with the requirements of agencies in relation to interception of communications and related matters, and may be part of an international agreement or arrangement or a proposed international agreement or arrangement. Taken together, these requirements ensure that there should be adequate scrutiny of any interception capability obligations which are imposed on the telecommunications industry.

The main reasons for separating the ‘interception capability’ and ‘special assistance capability’ aspects of a determination in proposed paragraph 322(2)(c) are:

       interception capabilities represent the fundamental obligation related to the monitoring and recording of information, whereas special assistance capabilities will often go to about the provision of ancillary information (for example, the time and duration of a call, the identity of the callers)

       the execution of intercepts by carriers on the request of agencies require an interception warrant under the Telecommunications (Interception) Act 1979, whereas the provision of information relating to special assistance capabilities generally will not

       in other provisions of Parts 14 and 15 the distinction between these two types of information is important.

Proposed section 323 - Obligations of persons covered by a determination

This proposed section provides that once the Attorney-General has made a determination under proposed section 322 in respect of a service, then any carrier or carriage service provider who supplies that service must ensure that

       the supply of the service complies with the determination (proposed subsection 323(1)); and

       the capability is developed, installed and maintained (proposed subsection 323(2)).

In both cases it is possible for the supplier of the service to have someone else actually undertake the relevant tasks, as long as he or she makes sure that this occurs. For example, a reseller could meet his or her obligations under this section by ensuring that the carrier from whom he or she has obtained a service has met, and will continue to meet, all of these obligations in respect of the carrier’s supply of the service to the reseller.

Proposed section 324 - Obligations of persons not covered by a determination in relation to particular carriage service

This proposed section provides a ‘default’ level of interception capability obligation. Essentially, this is the current standard of interception capability obligation (s.319 of the existing Telecommunications Act 1997). This approach ensures there is loss of interception capability coverage while the determinations under proposed section 322 are developed for particular services, and at the same time provides certainty to industry about its minimum level of interception capability obligation.

Proposed subsection 324(1) limits the application of the section only to those carriage services where the Attorney-General has not made a determination in relation to interception capability only or interception capability and special assistance capability. This means that the Attorney-General could, if he chose, make a determination about special assistance capability only for a service, and rely on proposed section 324 to address the interception capability issues. But once he or she makes a determination that addresses the interception capability issue for a service, then this ‘default’ section ceases to have effect in relation to that service.

Proposed subsection 324(2) creates the obligation on a person to whom the section applies to ensure that it is possible, in effect, to execute a warrant issued under the Telecommunications Act 1979 in relation to a communication passing over the network or facility.

Proposed subsection 324(3) puts it beyond doubt that the obligation under proposed subsection 324(2) extends to an obligation to ensure that the relevant capability is developed, installed and maintained.

Proposed Subdivision C - Exemptions

This Subdivision allows for the granting of exemptions to obligations imposed under Division 2.

Proposed section 325 - The Minister may grant exemption

Proposed subsection 326(1) provides that the Minister for Communications, the Information Economy and the Arts may, with the written agreement of the Attorney‑General, provide an exemption, to a specified person, from all or some of the specified carriage service obligations under Subdivision B.

Proposed subsections 325(2) and 325(3) require that the exemption must be in writing and it may be unconditional or contain specified conditions.

While this Ministerial power to grant exemptions has been retained in a modified form, it is considered that, in practice, the proposed section 326 would provide the more usual mechanism for the consideration and granting of exemptions from interception capability and related obligations.

Proposed section 326 - The agency co-ordinator may grant exemption

Proposed subsection 326(1) provides that the agency coordinator may provide an exemption, to a specified person, from all or some of the specified carriage service obligations under Subdivision B.

Proposed subsections 326(2) and 326(3) require that the exemption must be in writing and it may be unconditional or contain specific conditions.

It is considered reasonable to give the agencies (through the agency coordinator) a broad ranging ability to grant exemptions because the agencies are the only users of the relevant capabilities. If the agencies do not consider a particular capability to be required, then it is not likely it will be required by anyone.

Proposed section 327 - ACA may grant exemption when authorising trial services

Proposed subsection 327(1) provides further flexibility by giving the ACA a power to grant an exemption to a specified person, from all or some of the specified carriage service obligations under Subdivision B for a trial service. A trial service is normally a service offered on a trial basis to a defined class or group of customers, for a limited period. It is usually offered in order to allow the carrier or CSP to conduct market research, test technical factors and feasibility, and any other matters relevant to helping the carrier or provider decide whether or how to provide the service to a wider market.

Proposed subsection 327(2) requires that the ACA must not grant an exemption unless it is satisfied that the exemption is unlikely to create a risk to national security or law enforcement. The ACA may consult with all agencies it considers appropriate about granting an exemption.

Proposed subsections 327(3) and 327(4) require that the exemption must be in writing and it may be unconditional or contain specific conditions.

Proposed Division 3 – Interception capability plans

 

This proposed Division introduces a wholly new obligation on carriers, and certain nominated CSPs. The idea behind interception capability (IC) plans is to provide a mechanism by which carriers and agencies are required to think about, and work through, the implications of strategic business developments for interception capabilities and related matters.

In general, the obligation to provide an IC plan falls on carriers. However, the Division provides a mechanism by which the Attorney-General can nominate particular CSPs who are of particular interest to the agencies also to start providing IC Plans.

Proposed section 328 – Purpose of Division

 

This proposed section identifies the purpose of the Division as outlining:

 

       the nature of IC plans;

       where carriers and nominated carriage service providers are required to prepare such plans; and

       the means by which such plans are considered and adjusted.

Proposed section 329 - Nature of an interception capability plan

Proposed subsection 329(1) sets out the required contents of an IC Plan. These are:

       a statement by the carrier or provider on their policies and strategies to provide an interception capability for their controlled network or controlled facility;

       a statement by the carrier or provider of any relevant developments that is likely to affect the interception capability within 5 years of the start of the plan; and

       a list of the employees of the carrier or provider with responsibility for interception matters and other relevant information; and

       a description of the strategies of the carrier or provider for minimising long term costs associated with interception; and

       any ‘other matters’ determined by the Minister to be relevant to the IC plan.

Proposed subsection 329(2) requires that ‘other matters’ as determined by the Minister must be made by a written determination and be a disallowable instrument for the purposes of s.46A of the Acts Interpretation Act 1901.

Proposed section 330 - Carriers’ obligations in relation to IC Plans

Proposed subsection 330(1) requires that a carrier must lodge an IC Plan with the ACA and the agency coordinator by 1 January each year (following commencement of the proposed replacement Part 15), or for new carriers beginning operation after this date, within 90 days of receiving their carrier licence.

Proposed subsection 330(2) provides that a new carrier lodging its first IC Plan within 120 days before 1 January need not lodge another plan during the next year. For example, if a new carrier lodged a new IC Plan in November 1998, then it would not be required another IC Plan until 1 January 2000.

Proposed section 331 - Nominated carriage service providers’ obligations in relation to IC Plans

Proposed subsection 331(1) requires that a CSP nominated under proposed subsection 332A(3) must lodge an IC Plan with the ACA and the agency coordinator by 1 January each year (following commencement of this Part), or for CSPs nominated within less than 90 days before the next following 1 January within 90 days and by each 1 January thereafter.

Proposed subsection 331(2) provides that a new nominated carriage service provider carrier lodging its first IC Plan within 120 days before 1 January need not lodge another plan during the next year. For example if a new nominated carriage service provider lodged a new IC Plan in November 1999, then it would not be required another IC Plan until 1 January 2001.

Proposed subsection 331(3) provides that the Attorney-General may declare a CSP to be a nominated carriage service provider by written determination.

Proposed section 332 - Lodgement of IC Plans

Proposed section 332 provides that an IC Plan is deemed to be lodged with the ACA or agency coordinator when it is received by an officer of each organisation authorised to accept it.

Proposed section 332A - Commencement of IC Plans

Proposed subsection 332A(1) provides that each IC Plan lodged under proposed section 330 or 331 has effect as soon as lodged with the ACA.

Proposed subsection 332A(2) provides that each IC Plan as amended in accordance with proposed section 332C or 332D has effect as soon as lodged with the ACA.

Proposed section 332B - Compliance with IC plans and amended IC plans

This proposed section in effect requires a carrier or provider to ensure that its business activities are consistent with its IC plan which is current at any given time.

In practice, it is expected that compliance with this obligation would normally be met by a carrier or nominated CSP taking all reasonable steps to achieve consistency between its activities and the plan.

Proposed section 332C - Consideration of IC plans

This proposed section establishes a process by which agencies are given the opportunity to make comments on IC plans; that affected carriers and nominated CSPs are given the chance to respond; and that where there is an unresolved dispute about an IC plan, that the ACA resolve the dispute.

Proposed subsection 332C(1) provides that within 60 days after lodgement of the IC Plan, the agency coordinator must:

       give agencies that, in the opinion of the coordinator, are likely to be interested in the plan an opportunity to comment on the plan; and

       give the carrier or provider concerned copies of any agency comments received in respect of the plan;

       if an agency requests an amendment of the plan (an amendment request) request that the carrier or provider respond to each such amendment request within 30 days (the response period) of receipt of the comments from the agency coordinator.

Proposed subsection 332C(2) provides that the carrier or provider my respond to an amendment request by:

       accepting the request and amending its IC plan appropriately;

       by rejecting the request and providing reasons for the non-acceptance.

Proposed subsection 332C(3) provides that if the response of the carrier or provider to an amendment request involves preparation of an amended IC plan then the new plan must be lodged with the ACA and the agency coordinator within the response period and the carrier or provider must ensure that its further business activities are consistent with the amended plan with the effect from the date of commencement.

Proposed subsection 332C(4) provides that where the amendment request is rejected by the carrier or provider, the agency coordinator must provide the ACA with all relevant material to the ACA and request the ACA to determine whether any amendment or further amendment of the IC Plan is required.

Proposed subsection 332C(5) provides that ACA has completed its consideration of whether an amendment of the IC Plan is required, it must determine in writing whether the IC Plan requires amendment or whether comments made by the agencies are reasonable and that the Plan as originally lodged or as amended, should be emended to take account of those comments.

Proposed subsection 332C(6) provides that on receipt of the ACA determination, the relevant carrier or provider must:

       amend its IC Plan to take account of that determination;

       lodge a plan which takes account of the ACA determination;

       notify the Minister, agency coordinator and Attorney-General (where the Attorney-­General is not the agency coordinator);

       ensure that its further business activities are consistent with the lodged IC Plan.

Proposed subsection 332C(7) provides that the Minister, the agency coordinator, the Attorney-General or any agency may at any time request the carrier or provider to provide a copy of a lodged Plan.

Proposed section 332D - Consequences of changed business plans

Proposed subsection 332D(1) provides that if changes to carrier or nominated carriage service provider business plans renders the current IC Plan inadequate, then the carrier and nominated carriage service provider must prepare an amended IC Plan and lodge the amended Plan with the ACA and agency coordinator as quickly as possible.

Proposed subsection 332D(2) states that proposed subsection 332D(1) applies only if the change in business plans has, or is likely to have a material adverse effect on the ability of the carrier or provider to comply with its obligations under Division 2, and the change in business plans does not occur within 120 days of lodgement of the next IC Plan.

Proposed subsection 332D(3) provides that an amended plan is subject to consideration in accordance with proposed section 332C.

Division 4 - Proposed technological changes affecting interception capability

Proposed section 332E - Purpose of Division

This proposed section identifies the purpose of this Division as:

       to require carriers and nominated carriage service providers to give notice of any new technology or existing technology that may affect their ability to give help under Part 14 in relation to an obligation under Division 2 of Part 15; and

       to allow agencies a reasonable opportunity for consultation with carriers and providers over the likely effect of the nominated technology;

       to allow individual a reasonable opportunity to specify delivery requirements suitable to those agencies through the agency coordinator that are required for the nominated technology.

Proposed section 332F - Carrier or provider to notify impending technological change

Proposed subsection 332F(1) require carriers and nominated carriage service providers to give written notice to the ACA of any new technology or change to existing technology that is likely to have a material adverse affect on the capacity of the provider to provide help to agencies under Part 14 in relation to an obligation under Division 2 of Part 15.

Proposed subsection 332F(2) requires that the notification to the ACA must include a description of the new technology or change in technology proposed.

Proposed subsection 332F(3) requires that a carrier or provider cannot implement the new or changed technology notified to the ACA under proposed subsection 332F(2) until:

       the agencies have had an opportunity to consult with the carrier or provider in accordance with proposed section 332G; and

       if the agency coordinator informs the carrier or provider of particular delivery requirements of an agency - until the carrier or provider is able to meet the requirements of proposed subsection 332J(6) in respect of those requirements.

Proposed section 332G - ACA to give agencies a reasonable opportunity to consult on new technology

Proposed section 332G requires that following a notification to the ACA under proposed section 333F, the ACA must as soon as practicable advise the agencies likely to be interested and determine a reasonable consultation period for agencies to consult with carriers and nominated carriage service providers.

The ACA is given considerable discretion about the way in which agencies are notified. This allows, for example, the ACA to make use of a representative ‘advisory committee’ approach similar to the approach historically adopted by the New Technology Subcommittee to AUSTEL’s Law Enforcement Advisory Committee, as long as that approach is agreed with those agencies who are likely to be interested in new technologies.

The ‘reasonable period’ approach to consultations has been adopted so as to ensure that:

       agencies are given a reasonable opportunity for consultation,

       ensuring that such consultations do not unnecessarily delay the introduction of innovative telecommunications services or the development of competition in the market for such services.

Thus, the ACA will need to balance these considerations on a case-by-case basis taking account of the particular circumstances surrounding the notification. Relevant substantive factors in each case could be expected to include:

       the agencies’ familiarity with the technology, and its complexity

       the likely nature of the effect of the technological change on interception capabilities, and consequently on the ability of the agencies to meet their objectives

       any commercial issues relating to delays notified by the person nominating the technological change

       the impact of delays in the introduction of the technology on competition and consumer interests.

In setting the ‘reasonable period’, it is expected that mere administrative inconvenience for an agency would not of itself provide a reason for setting a longer period. Rather, it is likely that the relevant benchmark for such considerations would be the period of time in which a reasonable agency could be expected to engage in consultations given the factors involved in the particular notification.

Consultation periods can be extended under proposed section 332H.

Proposed section 332H - Extension to consultation periods

Proposed subsection 332H(1) allows the ACA to extend the consultation period on written request of an agency.

Proposed subsection 332H(2) provides that an extension to the consultation period is an extension for all agencies involved in consultation and the ACA must ensure that each carrier, provider and agency involved in the consultation is somehow notified of the extension.

While the ACA is given considerable discretion to grant extensions because of the wide range of possible circumstances which could potentially arise, it is anticipated that the ACA would normally exercise this judgement to grant extensions using the sorts of considerations noted in the discussion of the ‘reasonableness’ issue in the notes to the proposed section 332G.

Proposed section 332J - Delivery requirements arising from implementation of new or altered technology

This proposed section gives an agency (via the agency coordinator - to ensure there are no possible conflicts) the ability to specify particular requirements relevant to that agency in respect of a new technology which go beyond the requirements of Division 2 to Part 5.

Proposed subsection 332J(1) provides that where an agency decides that a carrier or provider should meet specific delivery requirements in providing help to the agency under Part 14 in relation to a new technology or change to existing technology, the agency must notify those requirements to the agency coordinator within the consultation period specified under proposed section 332G.

Proposed subsection 332J(2) provides that the delivery requirements specified by an agency may include any or all of the following:

       the format in which the information is to be delivered to the agency;

       the place and manner in which the information is to be delivered;

       any ancillary information that should accompany the information covered by that obligation (beyond that already required by Division 2 of Part 15).

Proposed subsection 332J(3) provides that if one agency notifies the agency coordinator of delivery requirements then the coordinator must convey these requirements to the carrier or provider.

Proposed subsection 332J(4) provides that if different requirements are notified to the agency coordinator by different agencies, then the coordinator must notify the carrier or provider of each of the delivery requirements unless they are mutually inconsistent.

Proposed subsection 332J(5) provides that where the agency coordinator consider the agency delivery requirements to be mutually inconsistent, the coordinator after consulting the agencies must determine delivery requirements which are the fairest compromise, notify each agency of that determination and, on behalf of each agency concerned, notify the carrier or provider of its determination.

Proposed subsection 332J(6) provides that if delivery requirements are notified to it, then the carrier or provider must ensure that there is an agency specific delivery capability to meet those requirements.

Proposed subsection 332J(7) provides that the obligation under proposed subsection 332J(6) includes the obligation to develop, install and maintain the capability.

Division 5 - Allocation of costs in relation to interception and delivery capabilities

Proposed section 332K - Purpose of Division

Proposed section 332K sets out the principles for the allocation of costs of developing, installing and maintaining between the carrier or carriage service provider and an agency for:

                     the interception capability;

                     a special assistance capability; and

                     an agency specific delivery capability.

Proposed section 332L - Distribution of the costs of interception and delivery capability

The provision is intended in large part to implement a policy principle that carriers and carriage service providers fund the development and maintenance costs of interception related information up to the point of interception (in most cases up to and including the switch), with the agencies responsible for funding the development and maintenance costs of delivery from the point of interception to the agency (and any cost of additional formatting requirements).

Proposed subsection 312L(1) provides that the carrier or provider will bear the capital and ongoing costs of developing, installing and maintaining an interception capability.

Proposed subsection 312L(2) provides that the agency will bear the capital and ongoing costs of developing, installing and maintaining an agency specific delivery capability.

Proposed section 332M – Exception to the cost distribution set out in section 332L

This section is intended to give effect to a policy that the interception and related capabilities for existing GSM mobile telephone services should continue to be paid for by the agencies.

Proposed subsection 332M(1) gives the Attorney-General the power to make a written determination to the effect that a specified GSM digital mobile service offered by a specified carrier or carriage service provider is a service to which the section applies. It is proposed that the Attorney-General will determine that the GSM services offered by Telstra, Optus and Vodafone are such services.

Proposed subsection 332M(2) changes the cost allocation rules normally applying by virtue of proposed section 332L for such GSM services, and requires the agencies to bear the relevant costs.

 

Proposed section 332N - Working out costs of agency specific delivery capabilities

Proposed subsection 332N(1) requires that a carrier or CSP meets any obligations to provide an agency specific delivery capability on terms and conditions that are either

       agreed with the agency or agencies concerned, or

       if there is no agreement, determined by the ACA.

Proposed subsection 332N(2) requires the terms and conditions on which a carrier or CSP meets its obligations to provide an agency specific delivery capability to be consistent with certain principles

       that the most cost effective means of ensuring the development, installation and maintenance of that capability is employed;

       that the carrier incur the (upfront) costs relating to the development, installation and maintenance of the capability

       that the carrier be entitled to recover from an agency such of those costs are required under proposed section 332L to be borne by that agency.

Proposed subsection 332N(3) makes it clear that carriers or CSPs may make agreements with agencies collectively for the provision of agency specific delivery capabilities.

Proposed subsection 332N(4) provides that an agency can request the ACA to arbitrate on disagreements between a carrier or provider and an agency over the apportionment of costs. If the ACA does arbitrate then it will determine the cost allocation.

Proposed subsection 332N(5) provides that the regulations may make provision in relation to the conduct of an arbitration by the ACA under this section.

Proposed subsection 332N(6) provides that the existence of a cost dispute does not remove the obligation on carriers and providers to fulfil its obligations while the dispute is being resolved.

Proposed subsection 332N(7) provides that where an ACA arbitration on costs concludes that a lesser cost would have been appropriate, then the carrier or provider must allow the agency credit for any amount already charged and must adjust its means of charging in accordance with the ACA findings.

Proposed subsection 332N(8) provides extra flexibility by allowing for an agreement between a carrier or provider and an agency about an agency specific delivery capability also to include any agreement between a carrier or provider and the State on behalf of the agency and the Commonwealth on behalf of the agency.

Proposed section 332P - Examination of lower cost options

This proposed section provides an optional procedure which may be activated during the course of an arbitration which is conducted under section 332N.

Proposed subsection 332P(1) provides that the ACA, in conducting an arbitration under proposed section 332N, may, by written notice, require the carrier or CSP to examine, at its own expense, the possibility of an alternative lower cost option than that proposed. The notice would specify when a report was required from the carrier or provider.

Proposed subsection 332P(2) provides that a report under proposed subsection 332P(1) must be carried out and provided to the ACA in writing.

Proposed section 332Q - ACA may require independent audit of costs

This proposed section provides an optional procedure which may be activated during the course of an arbitration which is conducted under proposed section 332N.

Proposed subsection 332Q(1) provides that in undertaking an arbitration under section 332N, the ACA may require the carrier or CSP to conduct an audit of costs incurred in meeting their obligations.

Proposed subsection 332Q(2) requires that the auditor be selected by the carrier or CSP and approved by the ACA.

Proposed subsection 332Q(3) allows the ACA to select an auditor where it does not approve the carrier or CSP’s choice, or to conduct the audit itself.

Proposed subsection 332Q(4) allows the ACA to specify when the audit should be completed, where it does not conduct the audit itself.

Proposed subsection 332Q(5) requires a carrier or CSP to co-operate in full with the person or body conducting the audit and bear the cost of the audit.

Division 6 – Review of cost-effectiveness of interception and related matters

Proposed subsection 332R(1) requires that the Minister must conduct and report on a review before 1 July 1999 of the long term cost effectiveness of interception.

Proposed subsection 332R(2) requires the Minister to cause a copy of the report to be put before Parliament within 15 sitting days after the day on which the report is made.

Item 11 - Application

This item clarifies that the arrangements set out in these amendments governing cost allocations, only apply from the commencement of this item. The only exception to this is the GSM mobile exception set out in proposed section 332M.

Schedule 2 - Other amendments of Telecommunications legislation

Items 1 to 24 of Schedule 2 to the Bill contain a series of minor amendments to the Telecommunications Act 1997. These proposed amendments:

       require the ACA, if requested by the Minister, to monitor and report on specified matters relating to the performance of telecommunications carriers and carriage service providers;

       require intermediaries who arrange for the supply of a carriage service enabling access to the Internet to enter into the Telecommunications Industry Ombudsman scheme;

       make it clear that the requirement for carriers and carriage service providers to provide pre-selection in favour of carriage service providers does not include a requirement to provide multi-basket pre-selection;

       allow the labelling requirements for telecommunications equipment or cabling to be imposed on the agents of manufacturers or importers of that equipment or cabling;

       require carriers to have a current industry development plan at all times;

       require variations to industry development plans to be approved by the Minister for Industry, Science and Tourism;

       require the Industry Minister to notify carriers and applicants for carrier licences of government policies he wishes them to take into account in preparing their industry development plans;

       remove the need for carriers to notify land owners and public authorities of their intention to inspect land, engage in maintenance activities or install telecommunications facilities in certain emergency situations;

       remove the need for carriers to notify land owners and public authorities of their intention to inspect land in connection with the installation of a temporary defence facility, or of their intention to install or maintain such a facility where it is impracticable to do so;

       make it clear that the ACA can issue a telecommunications facility installation permit in a situation where a landowner consents to the proposed installation but a local council does not; and

       correct typographical and cross-referencing errors.

Items 25 and 26 of Schedule 2 make amendments to the Telecommunications (Transitional Provisions and Consequential Amendments) Act 1997:

       to insert an inadvertently omitted definition of ‘eligible service’ in subsection 40(4) in the same terms as the definition of that term in subsection 39(15); and

       to correct a typographical error.

Items 27 to 31 correct typographical and cross-referencing errors in Parts XIB and XIC of the Trade Practices Act 1974, dealing with anti-competitive conduct in the telecommunications industry and the telecommunications access regime.

Item 1 - Proposed amendment to section 104 - Simplified outline

Section 104 of the Telecommunications Act 1997 contains a simplified outline of Part 5 of that Act to assist readers. Part 5 requires the ACA to monitor and report each year to the Minister on significant matters relating to the performance of carriers and carriage service providers.

Item 1 adds an additional matter to the simplified outline to reflect the amendment contained in item 2.

Item 2 - Proposed new section 105A - Monitoring of performance - additional report

Section 105 of the Telecommunications Act 1997 requires the ACA to monitor and report each financial year to the Minister on all significant matters relating to the performance of carriers and carriage service providers.

Proposed new section 105A will enable the Minister to direct the ACA to monitor, and report to the Minister at any time on, specified matters relating to the performance of carriers and carriage service providers. This will enable the Minister to obtain reports on particular matters that may arise during the year eg information about the coverage and quality of service of the Australian Mobile Phone Service (AMPS) as it is phased out.

The ACA will be required to give the additional report to the Minister either:

(a) as soon as practicable after the end of a period specified in the direction; or

(b) before the end of a time specified in the direction.

Item 3 - Proposed amendment to section 245 - Eligible carriage service providers

Section 245 of the Telecommunications Act 1997 defines who is an eligible carriage service provider for the purposes of Part 10 of the Act and therefore required to enter into the Telecommunications Industry Ombudsman (TIO) scheme.

Paragraph 245(b) provides that for the purposes of Part 10 an eligible carriage service provider includes a carriage service intermediary who arranges for the supply of a service referred to in subparagraph (a)(i) or (ii). These services are:

       a standard telephone service, where any of the customers are residential customers or small business customers; or

       a public mobile telecommunications service.

Item 3 amends paragraph 245(b) by replacing the reference to ‘subparagraph (a)(i) or (ii)’ with a reference to ‘subparagraph (a)(i), (ii) or (iii)’. Subparagraph 245(a)(iii) provides that, for the purposes of Part 10, an eligible carriage service provider includes a carriage service provider who supplies a carriage service that enables end-users to access the Internet. This amendment addressed concerns that, with the rapid growth in the use of the Internet, persons providing access to the Internet should be required to be members of the TIO scheme, thereby giving customers the protection afforded by the scheme.

The proposed amendment will correct an omission that has resulted in Internet intermediaries being inadvertently excluded from the TIO scheme.

Item 4 - Proposed amendment to section 350 - When pre-selection is provided in favour of a carriage service provider

Part 17 of the Telecommunications Act 1997 provides that 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.

In defining pre-selection for the purposes of Part 17, paragraphs 350(1)(b) and (2)(b) refer to ‘separate carriage service provider pre-selection’. It is not proposed to move to multi-basket pre-selection at this time, however these references to ‘separate carriage service provider pre-selection’ may be seen as requiring a determination under s.349 to require multi-basket pre-selection.

Item 4 will remedy this by omitting paragraphs 350(1)(b) and (2)(b).

The following is an explanation of the difference between ‘single basket pre-selection’ and ‘multi-basket pre-selection’.

‘Single basket pre-selection is where a group or basket of services is specified as pre‑selectable and an end-user may choose to pre-select one provider for all services within the group of services. To further illustrate this concept, the end-user cannot choose or pre-select different providers for individual services within the group nor can they choose or pre-select a provider for only one of the services within the group. The concept is probably best summarised as an ‘all or nothing’ requirement. In the single basket environment the end-user could have a maximum of two providers of services - the access service deliverer (eg Telstra) who could provide all telecommunications services (whether pre-selectable or otherwise) and a prime service deliverer who could provide all pre-selectable services.

‘Multi-basket pre-selection’ allows for an end-user to choose or pre-select different providers for different services. In other words, there may be more than one basket of pre-selectable services, and the end-user could then choose a different provider for each basket of services. In a multi-basket environment, the end-user could have more than two providers of services.

Item 5 - Proposed new section 406A - Application of Division to agent of manufacturer or importer

The effect of proposed new section 406A is to make it clear that the labelling requirements for customer equipment and customer cabling under Division 7 of Part 21 of the Telecommunications Act 1997 apply not only to manufacturers or importers of this equipment or cabling but also to authorised agents acting in Australia on behalf of such manufacturers or importers.

Item 6 - Proposed amendment to subsection 407(1)

This item is consequential upon item 5. It will ensure that the interpretation provision in item 5 will apply to subsection 407(1).

Item 7  - Proposed amendment to paragraph 408(5)(d)

This item corrects an inadvertent omission from paragraph 408(5)(d).

Item 8 - Proposed amendment to paragraph 413(1)(a)

This item is consequential upon item 5. It will ensure that the interpretation provision in item 5 will apply to paragraph 413(1)(a).

Item 9 - Transitional provision - labelling requirements

Item 9 will ensure that from the time the ACA’s first labelling instrument under s. 407 was made until before the commencement of item 9, the Act and any section 407 instrument in force during that period will have effect not only in relation to manufacturers or importers of customer equipment or customer cabling but also to persons who were authorised during that period to act as their agents in Australia for the purposes of the labelling requirements of Division 7 of Part 21 of the Act. Item 9 is not intended to preclude overseas agents of Australian importers from applying labels to customer equipment or customer cabling on behalf of those importers in accordance with an agency agreement.

Item 10 - Amendment to subsection 458(3)

Item 10 corrects a cross-referencing error.

Item 11 - Amendment to clause 4 of Schedule 1 - Carriers must have a current industry development plan

Item 11 amends clause 4 of Schedule 1 to the Act to require a carrier to have a current industry development plan at all times after the carrier is granted a carrier licence. A carrier will be taken to have a current industry development plan if the carrier has given the plan to the Minister for Industry, Science and Tourism (the Industry Minister) and the Industry Minister has approved the plan.

As a result of subsections 49(1) and (2) of the Telecommunications (Transitional Provisions and Consequential Amendments) Act 1997, Telstra Corporation Limited, Optus Networks Pty Ltd, Optus Mobile Pty Ltd and Vodafone Pty Ltd were deemed to have been granted a carrier licence on 1 July 1997. Because of the wording of clause 4 of Schedule 1 to the Act, these existing carriers were not required by that provision to give a current industry development plan to the Industry Minister. To overcome this difficulty, the Minister for Communications and the Arts made a series of declarations on 24 June 1997 imposing a licence condition on the existing carriers to give a current industry development plan to the Industry Minister and to obtain his or her approval of the plan within 90 days after 1 July 1997. The continued use of this licence condition is not a preferred approach and that it is considered more appropriate that all carriers should be placed on an equal footing under the Act.

Item 12 - Proposed amendment to subclause 8(1) of Schedule 1 - Publication of industry development plan

Subclause 8(1) of Schedule 1 to the Act provides that as soon as practicable after giving the Industry Minister an industry development plan, a carrier must make a summary of the plan available to the public.

Item 12 amends subclause 8(1) so that the summary will not be required to be publicised until such time as the Industry Minister has approved the industry development plan.

Item 13 - Proposed amendment to subclause 9(1) of Schedule 1 - Variation of industry development plan

Clause 9 of Schedule 1 to the Act deals with variations of industry development plans. There is currently no requirement for carriers to have variations to their industry development plans approved by the Industry Minister. This gives rise to the possibility that carriers, having had their industry development plans approved, could then substantially vary the plans eg by substantially lessening any obligation in them. This would be quite contrary to the intention of the Act that carriers have industry development plans approved by the Minister.

Item 13 amends clause 9 so that proposed variations to industry development plans will require the approval of the Industry Minister before being made. As soon as practicable after varying an industry development plan, a carrier will be required to make a summary of the variation available to the public.

Item 14 - Proposed amendment to clause 11 of Schedule 1

As clause 11 of Schedule 1 to the Act is currently worded, carriers are required to have regard to views expressed by the Industry Minister about industry development. There is, however, no clarification of how these views may be expressed or conveyed to the carriers. Clause 11 therefore appears to require carriers to apprise themselves of all views expressed on any occasion by the Industry Minister about industry development.

This is an unreasonable obligation as there is a risk that carriers would be unaware of relevant industry views. Clause 11 also has no application in relation to applicants for carrier licences.

Item 14 replaces clause 11 with a new clause to the effect that if the Industry Minister, by notice published in the Gazette, has declared that a particular Commonwealth Government policy is relevant in formulating an industry development plan or a variation of such a plan, the declared policy must be taken into account by:

(a) an applicant for a carrier licence in formulating an industry development plan; or

(b) a carrier in formulating an industry development plan, or a variation of such a plan.

The Industry Minister’s notice may include the whole or a summary of the declared policy.  If the whole of the declared policy is not included in the notice, the notice must state where and when a copy of the declared policy can be obtained.

Items 15 and 16 - Proposed amendments to paragraphs 5(1)(b) and 5(2)(b) of Schedule 3

Clause 5 of Schedule 3 to the Act authorises a carrier to enter onto and inspect land and anything that is necessary or desirable for the purposes of determining whether it is suitable for its purposes. Clause 5 sets out certain examples of what is necessary or desirable. These examples include making surveys, taking levels, sinking bores, taking samples, digging pits and examining the soil.

As a consequence of amendments that are proposed to clauses 18 and 19 of Schedule 3, items 15 and 16 include other examples, drawn from clauses 18 and 19, as follows:

       felling and lopping trees and clearing and removing other vegetation and undergrowth;

       closing, diverting or narrowing a road or bridge;

       installing a facility in, over or under a road or bridge;

       altering the position of a water, sewerage or gas main or pipe; and

       altering the position of an electricity cable or wire.

Items 17 and 18 - Proposed amendments to Schedule 3, clause 17 - Notice to owner of land - general

Subclause 17(6) of Schedule 3 to the Act provides that it is not necessary for a carrier to give a notice to a land owner of its intention to engage in a maintenance activity under Division 4 of Part 1 of Schedule 3 in certain emergency situations.

Item 17 ensures that a carrier will also not be required to give notice of its intention to engage in activities under Divisions 2 and 3 of Part 1 of Schedule 3 (dealing with inspection of land and installation of facilities) where it is an emergency situation.

Item 18 will ensure that a carrier is only required to give notice of its intention to inspect land under Division 2 in connection with the installation of a temporary defence facility (ie a facility referred to in paragraph 6(1)(c) of Schedule 3) or of its intention to install or maintain such a facility under Division 3 or 4 where it is practicable to do so.

Items 19 to 21 - Proposed amendments to Schedule 3, clause 18 - Notice to owner of land - lopping of trees etc.

Clause 18 of Schedule 3 to the Act provides that a carrier, before carrying out an installation or maintenance activity authorised under Division 3 or 4 of Part 1 of Schedule 3 to cut or lop a tree or remove undergrowth or vegetation on private land, must give 10 business days’ notice requesting that the owner or occupier do the work as specified in the notice. The carrier only may carry out those activities if that request is not complied with. This requirement to give notice may be waived and does not apply in the case of emergency maintenance in the circumstances set out in subclause 18(4).

Item 19 amends subclause 18(1) to ensure that it also applies in connection with activities authorised under Division 2 of Part 1 of Schedule 3 (which deals with inspection of land).

Item 20 will ensure that a carrier is only required to give notice of its intention to lop trees etc. during the course of inspecting land under Division 2 in connection with the installation of a temporary defence facility (ie a facility referred to in paragraph 6(1)(c)) or of its intention to lop trees etc during the course of the installation or maintenance of such a facility under Division 3 or 4 where it is practicable to do so.

Subclause 18(4) provides that it is not necessary for a carrier to give a notice to a land owner of its intention to lop trees etc. when engaging in a maintenance activity under Division 4 in certain emergency situations. Item 21 will ensure that a carrier does not also have to give notice of its intention to engage in activities under Divisions 2 and 3 (dealing with inspection of land and installation of facilities) where it is an emergency situation.

Items 22 and 23 - Proposed amendments to Schedule 3, clause 19 - Notice to roads authorities, utilities etc.

Clause 19 of Schedule 3 to the Act requires a carrier to give 10 business days’ notice of any intention to affect existing infrastructure as specified in subclause 19(1) before carrying out an activity authorised under Division 3 or 4 of Part 1 of Schedule 3. The notice must be given to the person or authority responsible for the care and management of the relevant existing infrastructure. The requirement to give notice may be waived and does not apply to emergency maintenance in the circumstances set out in subclause 19(3).

Item 22 will ensure that a carrier is only required to give notice of its intention to inspect land under Division 2 in connection with the installation of a temporary defence facility (ie a facility referred to in paragraph 6(1)(e)) or of its intention to install or maintain such a facility under Division 3 or 4 where it is practicable to do so.

Subclause 19(3) provides that it is not necessary for a carrier to give a notice to roads authorities and other utilities of its intention to engage in a maintenance activity under Division 4 in certain emergency situations. Item 23 will ensure that a carrier does not also have to give notice of its intention to engage in activities under Divisions 2 and 3 (dealing with inspection of land and installation of facilities) where it is an emergency situation.

Item 24 - Proposed amendment to Schedule 3, clause 27 - Criteria for issue of facility installation permit

This clause as currently drafted requires that before an application can be made to the ACA for a facility installation permit where none of the facilities consists of a designated overhead line both of the following conditions must be met:

       a landowner has not consented (cl. 27(1)(a)); and

       a relevant administrative authority has not consented (cl. 27(1)(b)).

This has the peculiar (and unintended) consequence that if a landowner consents to a proposal, while a local council does not, then it is not possible for the ACA to issue a facility installation permit.

Item 24 rectifies this anomaly by redrafting subclauses 27(1) and (2).

The effect of the amendment is that in a case where none of the facilities consists of a designated overhead line, a carrier will be able to apply to the ACA for a facility installation permit if any of the conditions in proposed paragraph 27(1)(c) apply and any of the following additional conditions applies:

       the carrier has made reasonable efforts to negotiate in good faith with the relevant proprietors and at least one of those approvals has not been obtained within 20 business days after the beginning of the negotiations concerned; or

       the carrier has made reasonable efforts to negotiate in good faith with relevant administrative authorities and at least one of those approvals has not been obtained within 6 months after the beginning of the negotiations concerned; or

       the carrier has made reasonable efforts to negotiate in good faith with relevant administrative authorities and at least one of those approvals has been refused.

The Senate amendments moved by Senator Allison impose an additional requirement on carriers to that contained in the Bill. These amendments require that the carrier make reasonable efforts to negotiate in good faith with the proprietor and administrative authority and that this negotiation must continue until either:

       the proprietor has not given approval within 20 business days; or

       at least one of the approvals from an administrative authority is not given within 6 months; or

       the administrative authority or the proprietor refuses approval.

Item 25 - Proposed amendment to subsection 40(4) of the Telecommunications (Transitional Provisions and Consequential Amendments) Act 1997

Item 25 inserts a definition of ‘eligible service’ for the purpose of subsection 40(4) of the Telecommunications (Transitional Provisions and Consequential Amendments) Act 1997. This definition was inadvertently omitted from section 40. It is in the same terms as the definition of that term in subsection 39(5) of the Act.

Item 26 - Proposed amendment to item 15 of Schedule 3 to the Telecommunications (Transitional Provisions and Consequential Amendments) Act 1997

Item 26 corrects a cross-referencing error.

Items 27 to 31 - Proposed amendments to the Trade Practices Act 1974

Items 27 to 31 correct typographical and cross-referencing errors in Parts XIB and XIC of the Trade Practices Act 1974 dealing with anti-competitive conduct in the telecommunications industry and the telecommunications access regime.