Federal Register of Legislation - Australian Government

Primary content

A Bill for an Act to amend legislation relating to telecommunications, and for other 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.
Registered 18 Sep 2009
Introduced HR 15 Sep 2009

2008‑2009

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

 

 

 

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2009

 

No.      , 2009

 

(Broadband, Communications and the Digital Economy)

 

 

 

A Bill for an Act to amend legislation relating to telecommunications, and for other purposes

  

  


Contents

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

2............ Commencement.................................................................................. 1

3............ Schedule(s).......................................................................................... 3

Schedule 1—Amendments                                                                                                 4

Part 1—Amendments relating to Telstra                                                                  4

Division 1—Amendments commencing on the day after this Act receives the Royal Assent            4

Radiocommunications Act 1992                                                                               4

Telecommunications Act 1997                                                                                  4

Trade Practices Act 1974                                                                                         35

Division 2—Amendments commencing immediately after a final functional separation undertaking comes into force  37

Telecommunications Act 1997                                                                                37

Trade Practices Act 1974                                                                                         39

Division 3—Amendments commencing immediately after an undertaking about structural separation comes into force                                                                                                               41

Telecommunications Act 1997                                                                                41

Trade Practices Act 1974                                                                                         42

Part 2—Telecommunications access regime                                                         43

Division 1—Amendments                                                                                         43

National Transmission Network Sale Act 1998                                                  43

Telecommunications Act 1997                                                                                43

Trade Practices Act 1974                                                                                         48

Division 2—Transitional provisions                                                                       96

Part 3—Anti‑competitive conduct                                                                          106

Division 1—Amendments                                                                                       106

Trade Practices Act 1974                                                                                       106

Division 2—Application                                                                                         106

Part 4—Universal service regime                                                                            107

Telecommunications (Consumer Protection and Service Standards) Act 1999 107

Part 5—Customer service guarantee                                                                     121

Telecommunications (Consumer Protection and Service Standards) Act 1999 121

Part 6—Priority assistance                                                                                         126

Telecommunications Act 1997                                                                              126

Part 7—Infringement notices etc.                                                                            129

Division 1—Amendments                                                                                       129

Telecommunications Act 1997                                                                              129

Division 2—Application                                                                                         136

Part 8—Civil penalty provisions                                                                              137

Telecommunications Act 1997                                                                              137

 


A Bill for an Act to amend legislation relating to telecommunications, and for other purposes

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2009.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

 

2.  Schedule 1, Part 1, Division 1

The day after this Act receives the Royal Assent.

 

3.  Schedule 1, Part 1, Division 2

Immediately after a final functional separation undertaking comes into force under Part 9 of Schedule 1 to the Telecommunications Act 1997.

The Minister must announce by notice in the Gazette the time when a final functional separation undertaking comes into force under Part 9 of Schedule 1 to the Telecommunications Act 1997.

 

4.  Schedule 1, Part 1, Division 3

Immediately after an undertaking comes into force under section 577A of the Telecommunications Act 1997.

The Minister must announce by notice in the Gazette the time when an undertaking comes into force under section 577A of the Telecommunications Act 1997.

 

5.  Schedule 1, Parts 2 and 3

The day after this Act receives the Royal Assent.

 

6.  Schedule 1, Parts 4 to 7

1 July 2010.

1 July 2010

7.  Schedule 1, Part 8

The day after this Act receives the Royal Assent.

 

Note:          This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

             (2)  Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3  Schedule(s)

                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.


 

Schedule 1Amendments

Part 1Amendments relating to Telstra

Division 1—Amendments commencing on the day after this Act receives the Royal Assent

Radiocommunications Act 1992

1  After subsection 58(1)

Insert:

          (1A)  Subsection (1) has effect subject to section 577J of the Telecommunications Act 1997.

2  At the end of section 60

Add:

           (15)  This section has effect subject to section 577J of the Telecommunications Act 1997.

3  At the end of section 62

Add:

             (4)  This section has effect subject to section 577J of the Telecommunications Act 1997.

4  At the end of section 68

Add:

             (5)  This section has effect subject to section 577K of the Telecommunications Act 1997.

5  Subsection 85(1)

After “section 86”, substitute “of this Act and section 577L of the Telecommunications Act 1997”.

Telecommunications Act 1997

6  Section 7

Insert:

designated part of the spectrum has the meaning given by section 577H.

7  Section 7

Insert:

draft functional separation undertaking means a draft functional separation undertaking under Division 2 of Part 9 of Schedule 1.

8  Section 7

Insert:

final functional separation undertaking means a final functional separation undertaking under Division 2 of Part 9 of Schedule 1.

9  Section 7

Insert:

hybrid fibre‑coaxial network means a telecommunications network:

                     (a)  that is for use for the transmission of any broadcasting service; and

                     (b)  that is also capable of being used to supply an internet carriage service; and

                     (c)  the line component of which consists of optical fibre to connecting nodes, supplemented by coaxial cable connections from the nodes to the premises of end‑users.

10  Section 7

Insert:

internet carriage service means a carriage service that enables end‑users to access the internet.

11  Section 7

Insert:

radiocommunications device has the same meaning as in the Radiocommunications Act 1992.

12  Section 7

Insert:

spectrum has the same meaning as in the Radiocommunications Act 1992.

13  Section 7

Insert:

spectrum licence has the same meaning as in the Radiocommunications Act 1992.

14  Section 7

Insert:

subscription television broadcasting licence has the same meaning as in the Broadcasting Services Act 1992.

15  Before subsection 69(7)

Insert:

          (6B)  Subsection (1) does not apply to the condition set out in clause 84 of Schedule 1.

Note:          Clause 84 of Schedule 1 deals with control by Telstra of certain spectrum licences.

16  Before subsection 70(4)

Insert:

          (3B)  Subsection (1) does not apply to the condition set out in clause 84 of Schedule 1.

Note:          Clause 84 of Schedule 1 deals with control by Telstra of certain spectrum licences.

17  After paragraph 564(3)(b)

Insert:

                    (ba)  the carrier licence condition set out in clause 84 of Schedule 1; or

18  Subsection 564(3) (after note 2)

Insert:

Note 2A:    Clause 84 of Schedule 1 deals with control by Telstra of certain spectrum licences.

19  After paragraph 571(3)(b)

Insert:

                    (ba)  the carrier licence condition set out in clause 84 of Schedule 1; or

20  Subsection 571(3) (after note 2)

Insert:

Note 2A:    Clause 84 of Schedule 1 deals with control by Telstra of certain spectrum licences.

21  After Part 32

Insert:

Part 33Voluntary undertakings given by Telstra

Division 1Introduction

577  Simplified outline

                   The following is a simplified outline of this Part:

        Telstra may give the following undertakings:

               (a)     an undertaking about structural separation;

               (b)     an undertaking about hybrid fibre‑coaxial networks;

               (c)     an undertaking about subscription television broadcasting licences.

        An undertaking comes into force when it is accepted by the ACCC.

        Telstra will not be allowed to supply services using a designated part of the spectrum unless all 3 undertakings given by Telstra are in force.

        However, the Minister may exempt Telstra from the requirement to have an undertaking about hybrid fibre‑coaxial networks or subscription television broadcasting licences if the Minister is satisfied that Telstra’s undertaking about structural separation is sufficient to address concerns about the degree of Telstra’s power in telecommunications markets.

Division 2Structural separation

577A  Acceptance of undertaking about structural separation

             (1)  The ACCC may accept a written undertaking given by Telstra that:

                     (a)  at all times after a day specified in the undertaking:

                              (i)  Telstra will not supply fixed‑line carriage services to retail customers using a telecommunications network over which Telstra is in a position to exercise control; and

                             (ii)  Telstra will not be in a position to exercise control of a company that supplies fixed‑line carriage services to retail customers using a telecommunications network over which Telstra is in a position to exercise control; and

                     (b)  Telstra will, in order to comply with paragraph (a), take specified action and/or refrain from taking specified action.

Note 1:       For when Telstra is in a position to exercise control of a network, see section 577Q.

Note 2:       For control of a company, see section 577P.

             (2)  In deciding whether to accept an undertaking under subsection (1), the ACCC must have regard to:

                     (a)  the matters (if any) set out in an instrument in force under subsection (3); and

                     (b)  such other matters (if any) as the ACCC considers relevant.

             (3)  The Minister may, by writing, set out matters for the purposes of paragraph (2)(a).

             (4)  The day specified in the undertaking as mentioned in paragraph (1)(a) must be:

                     (a)  1 July 2018; or

                     (b)  if the Minister, by legislative instrument, specifies another day—that other day.

             (5)  The undertaking must be expressed to be an undertaking under this section.

             (6)  The undertaking comes into force when it is accepted by the ACCC.

             (7)  The undertaking may not be withdrawn.

             (8)  As soon as practicable after the undertaking comes into force, the ACCC must publish the undertaking on its website.

             (9)  Part 9 of Schedule 1 does not, by implication, limit the matters that may be included in an undertaking under this section.

Note:          Part 9 of Schedule 1 deals with the functional separation of Telstra.

           (10)  Subsection (1) does not apply to a fixed‑line carriage service specified in a legislative instrument made by the Minister.

           (11)  Subsection (1) does not apply to a telecommunications network specified in a legislative instrument made by the Minister.

           (12)  The Minister must cause a copy of an instrument under subsection (3) to be published on the Department’s website.

           (13)  An instrument under subsection (3) is not a legislative instrument.

           (14)  In this section:

fixed‑line carriage service means a carriage service that is supplied using a line to premises occupied or used by an end‑user.

577B  Variation of undertaking about structural separation

             (1)  This section applies if an undertaking given by Telstra is in force under section 577A.

             (2)  Telstra may give the ACCC a variation of the undertaking in so far as the undertaking is covered by paragraph 577A(1)(b).

             (3)  After considering the variation, the ACCC must decide to:

                     (a)  accept the variation; or

                     (b)  reject the variation.

             (4)  In deciding whether to accept the variation, the ACCC must have regard to:

                     (a)  the matters (if any) set out in an instrument in force under subsection (5); and

                     (b)  such other matters (if any) as the ACCC considers relevant.

             (5)  The Minister may, by writing, set out matters for the purposes of paragraph (4)(a).

             (6)  The variation takes effect when it is accepted by the ACCC.

             (7)  As soon as practicable after the variation takes effect, the ACCC must publish the variation on its website.

             (8)  The Minister must cause a copy of an instrument under subsection (5) to be published on the Department’s website.

             (9)  An instrument under subsection (5) is not a legislative instrument.

Division 3Hybrid fibre‑coaxial networks

577C  Acceptance of undertaking about hybrid fibre‑coaxial networks

             (1)  The ACCC may accept a written undertaking given by Telstra that:

                     (a)  at all times after the end of the period specified in the undertaking, Telstra will not be in a position to exercise control of a hybrid fibre‑coaxial network; and

                     (b)  Telstra will, in order to comply with paragraph (a), take specified action and/or refrain from taking specified action.

Note:          For when Telstra is in a position to exercise control of a network, see section 577Q.

             (2)  The period specified in the undertaking as mentioned in paragraph (1)(a) must not be longer than 12 months.

             (3)  The undertaking must be expressed to be an undertaking under this section.

             (4)  The undertaking comes into force when it is accepted by the ACCC.

             (5)  The undertaking may not be withdrawn.

             (6)  As soon as practicable after the undertaking comes into force, the ACCC must publish the undertaking on its website.

577D  Variation of undertaking about hybrid fibre‑coaxial networks

             (1)  This section applies if an undertaking given by Telstra is in force under section 577C.

             (2)  Telstra may give the ACCC a variation of the undertaking in so far as the undertaking is covered by paragraph 577C(1)(b).

             (3)  After considering the variation, the ACCC must decide to:

                     (a)  accept the variation; or

                     (b)  reject the variation.

             (4)  The variation takes effect when it is accepted by the ACCC.

             (5)  As soon as practicable after the variation takes effect, the ACCC must publish the variation on its website.

Division 4Subscription television broadcasting licences

577E  Acceptance of undertaking about subscription television broadcasting licences

             (1)  The ACCC may accept a written undertaking given by Telstra that:

                     (a)  at all times after the end of the period specified in the undertaking, Telstra will not be in a position to exercise control of a subscription television broadcasting licence; and

                     (b)  Telstra will, in order to comply with paragraph (a), take specified action and/or refrain from taking specified action.

Note:          For when Telstra is in a position to exercise control of a subscription television broadcasting licence, see subsection (7).

             (2)  The period specified in the undertaking as mentioned in paragraph (1)(a) must not be longer than 12 months.

             (3)  The undertaking must be expressed to be an undertaking under this section.

             (4)  The undertaking comes into force when it is accepted by the ACCC.

             (5)  The undertaking may not be withdrawn.

             (6)  As soon as practicable after the undertaking comes into force, the ACCC must publish the undertaking on its website.

             (7)  For the purposes of this section, the question of whether Telstra is in a position to exercise control of a subscription television broadcasting licence is to be determined under Schedule 1 to the Broadcasting Services Act 1992.

577F  Variation of undertaking about subscription television broadcasting licences

             (1)  This section applies if an undertaking given by Telstra is in force under section 577E.

             (2)  Telstra may give the ACCC a variation of the undertaking in so far as the undertaking is covered by paragraph 577E(1)(b).

             (3)  After considering the variation, the ACCC must decide to:

                     (a)  accept the variation; or

                     (b)  reject the variation.

             (4)  The variation takes effect when it is accepted by the ACCC.

             (5)  As soon as practicable after the variation takes effect, the ACCC must publish the variation on its website.

Division 5Enforcement of undertakings

577G  Enforcement of undertakings

             (1)  If:

                     (a)  an undertaking given by Telstra is in force under section 577A, 577C or 577E; and

                     (b)  the ACCC considers that Telstra has breached the undertaking;

the ACCC may apply to the Federal Court for an order under subsection (2).

             (2)  If the Federal Court is satisfied that Telstra has breached the undertaking, the Court may make any or all of the following orders:

                     (a)  an order directing Telstra to comply with the undertaking;

                     (b)  an order directing the disposal of network units, shares or other assets;

                     (c)  an order restraining the exercise of any rights attached to shares;

                     (d)  an order prohibiting or deferring the payment of any sums due to a person in respect of shares held by Telstra;

                     (e)  an order that any exercise of rights attached to shares be disregarded;

                      (f)  an order directing Telstra to pay to the Commonwealth an amount up to the amount of any financial benefit that Telstra has obtained directly or indirectly and that is reasonably attributable to the breach;

                     (g)  any order that the Court considers appropriate directing Telstra to compensate any other person who has suffered loss or damage as a result of the breach;

                     (h)  any other order that the Court considers appropriate.

             (3)  In addition to the Federal Court’s powers under subsection (2), the court:

                     (a)  has power, for the purpose of securing compliance with any other order made under this section, to make an order directing any person to do or refrain from doing a specified act; and

                     (b)  has power to make an order containing such ancillary or consequential provisions as the court thinks just.

             (4)  The Federal Court may, before making an order under this section, direct that notice of the application be given to such persons as it thinks fit or be published in such manner as it thinks fit, or both.

             (5)  The Federal Court may, by order, rescind, vary or discharge an order made by it under this section or suspend the operation of such an order.

Division 6Limits on allocation of spectrum licences etc.

577H  Designated part of the spectrum

             (1)  For the purposes of this Act, each of the following parts of the spectrum is a designated part of the spectrum:

                     (a)  frequencies higher than 520 MHz, up to and including 820 MHz;

                     (b)  frequencies higher than 2.5 GHz, up to and including 2.69 GHz.

             (2)  Subsection (1) has effect subject to subsection (3).

             (3)  The Minister may, by legislative instrument, determine that a specified part of the spectrum is not a designated part of the spectrum for the purposes of this Act.

             (4)  The Minister may, by legislative instrument, determine that a specified part of the spectrum is a designated part of the spectrum for the purposes of this Act.

577J  Limits on allocation of certain spectrum licences to Telstra

             (1)  The ACMA must not allocate a spectrum licence to Telstra if the licence relates to a designated part of the spectrum.

             (2)  However, the rule in subsection (1) does not apply if:

                     (a)  an undertaking given by Telstra is in force under section 577A; and

                     (b)  either:

                              (i)  an undertaking given by Telstra is in force under section 577C; or

                             (ii)  a declaration is in force under subsection (3); and

                     (c)  either:

                              (i)  an undertaking given by Telstra is in force under section 577E; or

                             (ii)  a declaration is in force under subsection (5).

Note 1:       Section 577A deals with undertakings about structural separation.

Note 2:       Section 577C deals with undertakings about hybrid fibre‑coaxial networks.

Note 3:       Section 577E deals with undertakings about subscription television broadcasting licences.

             (3)  The Minister may declare, in writing, that Telstra is exempt from the requirement to have an undertaking under section 577C.

             (4)  The Minister must not make a declaration under subsection (3) unless the Minister is satisfied that an undertaking given by Telstra and in force under section 577A is sufficient to address concerns about the degree of Telstra’s power in telecommunications markets.

             (5)  The Minister may declare, in writing, that Telstra is exempt from the requirement to have an undertaking under section 577E.

             (6)  The Minister must not make a declaration under subsection (5) unless the Minister is satisfied that an undertaking given by Telstra and in force under section 577A is sufficient to address concerns about the degree of Telstra’s power in telecommunications markets.

             (7)  A declaration made under subsection (3) or (5) is not a legislative instrument.

             (8)  In this section:

telecommunications market has the same meaning as in Part XIB of the Trade Practices Act 1974.

577K  Limits on use of certain spectrum licences by Telstra

             (1)  If a spectrum licence relates to a designated part of the spectrum, the licensee of the spectrum licence must not authorise Telstra to operate radiocommunications devices under the licence.

             (2)  However, the rule in subsection (1) does not apply if:

                     (a)  an undertaking given by Telstra is in force under section 577A; and

                     (b)  either:

                              (i)  an undertaking given by Telstra is in force under section 577C; or

                             (ii)  a declaration is in force under subsection 577J(3); and

                     (c)  either:

                              (i)  an undertaking given by Telstra is in force under section 577E; or

                             (ii)  a declaration is in force under subsection 577J(5).

Note 1:       Section 577A deals with undertakings about structural separation.

Note 2:       Section 577C deals with undertakings about hybrid fibre‑coaxial networks.

Note 3:       Section 577E deals with undertakings about subscription television broadcasting licences.

             (3)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of subsection (1); or

                     (b)  induce, whether by threats or promises or otherwise, a contravention of subsection (1); or

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or

                     (d)  conspire with others to effect a contravention of subsection (1).

             (4)  Subsections (1) and (3) are civil penalty provisions.

Note:          Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

577L  Limits on assignment of certain spectrum licences to Telstra etc.

             (1)  If a spectrum licence relates to a designated part of the spectrum, the licensee of the spectrum licence must not:

                     (a)  assign the whole or a part of the licence to Telstra; or

                     (b)  otherwise deal with Telstra in relation to the whole or a part of the licence.

             (2)  However, the rule in subsection (1) does not apply if:

                     (a)  an undertaking given by Telstra is in force under section 577A; and

                     (b)  either:

                              (i)  an undertaking given by Telstra is in force under section 577C; or

                             (ii)  a declaration is in force under subsection 577J(3); and

                     (c)  either:

                              (i)  an undertaking given by Telstra is in force under section 577E; or

                             (ii)  a declaration is in force under subsection 577J(5).

Note 1:       Section 577A deals with undertakings about structural separation.

Note 2:       Section 577C deals with undertakings about hybrid fibre‑coaxial networks.

Note 3:       Section 577E deals with undertakings about subscription television broadcasting licences.

             (3)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of subsection (1); or

                     (b)  induce, whether by threats or promises or otherwise, a contravention of subsection (1); or

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or

                     (d)  conspire with others to effect a contravention of subsection (1).

             (4)  Subsections (1) and (3) are civil penalty provisions.

Note:          Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

Division 7Other provisions

577M  Associate

             (1)  For the purposes of this Part, an associate of Telstra in relation to control of:

                     (a)  a hybrid fibre‑coaxial network; or

                     (b)  another telecommunications network; or

                     (c)  a company;

is:

                     (d)  a partner of Telstra; or

                     (e)  if Telstra or another person who is an associate of Telstra under another paragraph receives benefits or is capable of benefiting under a trust—the trustee of the trust; or

                      (f)  a person (whether a company or not) who:

                              (i)  acts, or is accustomed to act; or

                             (ii)  under a contract or an arrangement or understanding (whether formal or informal) is intended or expected to act;

                            in accordance with the directions, instructions or wishes of, or in concert with:

                            (iii)  Telstra; or

                            (iv)  Telstra and another person who is an associate of Telstra under another paragraph; or

                     (g)  another company if:

                              (i)  the other company is a related body corporate of Telstra for the purposes of the Corporations Act 2001; or

                             (ii)  Telstra, or Telstra and another person who is an associate of Telstra under another paragraph, are in a position to exercise control of the other company.

             (2)  However, persons are not associates of each other if the ACCC is satisfied that:

                     (a)  they do not act together in any relevant dealings relating to the network or company; and

                     (b)  neither of them is in a position to exert influence over the business dealings of the other in relation to the network or company.

577N  Control

                   In this Part, control includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights.

577P  Control of a company

             (1)  For the purposes of this Part, the question of whether a person is in a position to exercise control of a company is to be determined under Schedule 1 to the Broadcasting Services Act 1992.

             (2)  However, in determining that question:

                     (a)  the definition of associate in subsection 6(1) of the Broadcasting Services Act 1992 does not apply; and

                     (b)  the definition of associate in section 577M of this Act applies instead.

577Q  When Telstra is in a position to exercise control of a network

             (1)  For the purposes of this Part, Telstra is in a position to exercise control of:

                     (a)  a hybrid fibre‑coaxial network; or

                     (b)  another telecommunications network;

if:

                     (c)  Telstra legally or beneficially owns the network (whether alone or together with one or more other persons); or

                     (d)  Telstra is in a position, either alone or together with an associate of Telstra and whether directly or indirectly:

                              (i)  to exercise control of the operation of all or part of the network; or

                             (ii)  to exercise control of the selection of the kinds of services that are supplied using the network; or

                            (iii)  to exercise control of the supply of services using the network; or

                     (e)  a company other than Telstra legally or beneficially owns the network (whether alone or together with one or more other persons), and:

                              (i)  Telstra is in a position, either alone or together with an associate of Telstra, to exercise control of the company; or

                             (ii)  Telstra, either alone or together with an associate of Telstra, is in a position to veto any action taken by the board of directors of the company; or

                            (iii)  Telstra, either alone or together with an associate of Telstra, is in a position to appoint or secure the appointment of, or veto the appointment of, at least half of the board of directors of the company; or

                            (iv)  Telstra, either alone or together with an associate of Telstra, is in a position to exercise, in any other manner, whether directly or indirectly, direction or restraint over any substantial issue affecting the management or affairs of the company; or

                             (v)  the company or more than 50% of its directors act, or are accustomed to act in accordance with the directions, instructions or wishes of, or in concert with, Telstra or of Telstra and an associate of Telstra acting together or of the directors of Telstra; or

                            (vi)  the company or more than 50% of its directors, under a contract or an arrangement or understanding (whether formal or informal) are intended or expected to act, in accordance with the directions, instructions or wishes of, or in concert with, Telstra or of Telstra and an associate of Telstra acting together or of the directors of Telstra.

             (2)  An employee is not, except through an association with another person, to be regarded as being in a position to exercise control of a network under subsection (1) purely because of being an employee.

             (3)  More than one person may be in a position to exercise control of a network.

22  At the end of Schedule 1

Add:

Part 9Functional separation of Telstra

Division 1Introduction

68  Simplified outline

                   The following is a simplified outline of this Part:

        Telstra must prepare a draft functional separation undertaking.

        A final functional separation undertaking is a draft functional separation undertaking that has been approved by the Minister.

        Telstra must comply with a final functional separation undertaking.

        However, Telstra is not required to prepare a draft functional separation undertaking if an undertaking about structural separation is in force under section 577A.

69  Definitions

                   In this Part:

business unit means a part of Telstra.

declared network service has the meaning given by clause 70.

eligible service has the same meaning as in section 152AL of the Trade Practices Act 1974.

equivalence means:

                     (a)  equivalence in relation to terms and conditions relating to price or a method of ascertaining price; and

                     (b)  equivalence in relation to other terms and conditions.

functional includes organisational.

functional separation principles means the principles set out in clause 74.

functional separation requirements determination means a determination under clause 75.

quarter means a period of 3 months beginning on 1 January, 1 April, 1 July or 1 October.

regulated service has the meaning given by clause 71.

retail business unit means a business unit by which Telstra deals with its retail customers.

supply, in relation to a service, includes supply by Telstra of the service to itself.

wholesale/network business unit means the business unit of Telstra:

                     (a)  that supplies the following:

                              (i)  fault detection, handling and rectification;

                             (ii)  service activation and provisioning;

                            (iii)  declared network services;

                            to Telstra’s retail business units, and Telstra’s wholesale customers, in relation to eligible services; and

                     (b)  by which Telstra deals with its wholesale customers.

70  Declared network services

                   For the purposes of this Part, a declared network service is a service specified in a legislative instrument made by the Minister for the purposes of this clause.

71  Regulated services

             (1)  For the purposes of this Part, a regulated service is a declared service within the meaning of Part XIC of the Trade Practices Act 1974.

             (2)  Subclause (1) has effect subject to subclause (3).

             (3)  The Minister may, by legislative instrument, determine that a specified service is not a regulated service for the purposes of this Part.

             (4)  The Minister may, by legislative instrument, determine that a specified eligible service is a regulated service for the purposes of this Part.

72  Notional contracts

                   For the purposes of this Part:

                     (a)  a notional contract (however described) between any of Telstra’s business units is to be treated as if it were an actual contract; and

                     (b)  any terms and conditions (whether or not relating to price or a method of ascertaining price) in such a notional contract are to be treated as if they were actual terms and conditions.

Division 2Functional separation undertaking

73  Contents of draft or final functional separation undertaking

             (1)  A draft or final functional separation undertaking must:

                     (a)  comply with the functional separation principles; and

                     (b)  contain provisions requiring Telstra to establish and maintain a committee to be known as the Oversight and Equivalence Board; and

                     (c)  contain provisions requiring Telstra to require the Oversight and Equivalence Board:

                              (i)  within a specified period after the end of each quarter during which a final functional separation undertaking is in force, to prepare a report about the extent (if any) to which Telstra complied with the undertaking during that quarter; and

                             (ii)  to give a copy of the report to the ACCC and to Telstra’s board of directors; and

                     (d)  comply with such requirements (if any) as are specified in a functional separation requirements determination.

Note 1:       For the functional separation principles, see clause 74.

Note 2:       For the functional separation requirements determination, see clause 75.

             (2)  For the purposes of subparagraph (1)(c)(i), if a final functional separation undertaking is in force throughout a part, but not the whole, of a particular quarter, that part is taken to be a quarter in its own right.

74  Functional separation principles

                   The functional separation principles are as follows:

                     (a)  the principle that there should be equivalence in relation to the supply by Telstra of regulated services to:

                              (i)  Telstra’s wholesale customers; and

                             (ii)  Telstra’s retail business units;

                     (b)  the principle that Telstra should maintain:

                              (i)  one or more retail business units; and

                             (ii)  a wholesale/network business unit;

                     (c)  the principle that Telstra should maintain arm’s length functional separation between:

                              (i)  its wholesale/network business unit; and

                             (ii)  its retail business units;

                     (d)  the principle that Telstra should have systems, procedures and practices that relate to:

                              (i)  compliance with a final functional separation undertaking; and

                             (ii)  monitoring of, and reporting on, compliance with a final functional separation undertaking; and

                            (iii)  the development of performance measures relating to compliance with a final functional separation undertaking; and

                            (iv)  independent audit, and other checks, of compliance with a final functional separation undertaking;

                     (e)  the principle that Telstra’s wholesale/network business unit should not consult Telstra’s retail business units about:

                              (i)  proposed services to be supplied by Telstra’s wholesale/network business unit; or

                             (ii)  proposed developments in connection with services supplied by Telstra’s wholesale/network business unit;

                            unless Telstra’s wholesale/network business unit also consults Telstra’s wholesale customers at the same time and in the same manner.

75  Functional separation requirements determination

             (1)  The Minister may make a written determination (a functional separation requirements determination) specifying requirements to be complied with by a draft or final functional separation undertaking.

             (2)  A functional separation requirements determination may deal with the manner in which the functional separation principles are to be implemented.

             (3)  A functional separation requirements determination may deal with the manner in which a requirement set out in paragraph 73(1)(b) or (c) is to be met.

Note:          Clause 73 deals with the contents of a draft or final functional separation undertaking.

             (4)  Subclauses (2) and (3) do not limit subclause (1).

             (5)  The Minister must ensure that a functional separation requirements determination comes into force within 90 days after the commencement of this clause.

             (6)  A determination under subclause (1) is not a legislative instrument.

76  Draft functional separation undertaking to be given to Minister

             (1)  Telstra must give the Minister a draft functional separation undertaking:

                     (a)  within 90 days after the first functional separation requirements determination comes into force; or

                     (b)  if a longer period is specified in an instrument under subclause (3)—within that longer period.

             (2)  However, subclause (1) does not apply if an undertaking given by Telstra is in force under section 577A.

Note:          Section 577A deals with undertakings about structural separation.

             (3)  The Minister may, by writing, specify a period for the purposes of paragraph (1)(b).

             (4)  The Minister must not specify a period under subclause (3) unless:

                     (a)  Telstra satisfies the Minister that Telstra is preparing an undertaking under section 577A; or

                     (b)  both:

                              (i)  Telstra has given the ACCC an undertaking under section 577A; and

                             (ii)  the ACCC has not decided whether to accept the undertaking.

Note:          Section 577A deals with undertakings about structural separation.

             (5)  The Minister may, by writing, vary a subclause (3) instrument.

             (6)  A period specified in a subclause (3) instrument may be a period ascertained wholly or partly by reference to the occurrence of a specified event.

             (7)  The Minister does not have a duty to consider whether to exercise the power to make or vary a subclause (3) instrument, whether he or she is requested to do so by Telstra or by any other person, or in any other circumstances.

             (8)  The Minister must cause a copy of an instrument under subclause (3) or (5) to be published on the Department’s website.

             (9)  An instrument under subclause (3) or (5) is not a legislative instrument.

77  Approval of draft functional separation undertaking by Minister

             (1)  This clause applies if Telstra gives the Minister a draft functional separation undertaking (the original undertaking).

             (2)  The Minister must, by writing:

                     (a)  approve the original undertaking; or

                     (b)  both:

                              (i)  vary the original undertaking; and

                             (ii)  approve the original undertaking as varied; or

                     (c)  both:

                              (i)  determine that Telstra is taken to have given the Minister another draft functional separation undertaking (the replacement undertaking) in the terms specified in the determination, instead of the original undertaking; and

                             (ii)  approve the replacement undertaking.

Consultation

             (3)  Before making a decision under subclause (2), the Minister must:

                     (a)  cause to be published on the Department’s website a notice:

                              (i)  setting out the original undertaking; and

                             (ii)  inviting persons to make submissions to the Minister about the original undertaking within 14 days after the notice is published; and

                     (b)  give the ACCC a copy of the notice; and

                     (c)  cause to be published on the Department’s website a copy of each submission received within the 14‑day period mentioned in paragraph (a); and

                     (d)  consider any submissions received within the 14‑day period mentioned in paragraph (a); and

                     (e)  ask the ACCC to give advice to the Minister, within 44 days after the notice is published, about the original undertaking; and

                      (f)  have regard to any advice given by the ACCC.

Consultation—variation of original undertaking

             (4)  Before making a decision under paragraph (2)(b) to approve the original undertaking as varied, the Minister must:

                     (a)  give Telstra a notice:

                              (i)  setting out the original undertaking as proposed to be varied; and

                             (ii)  inviting Telstra to make submissions to the Minister, within 14 days after the notice is given, about the original undertaking as proposed to be varied; and

                     (b)  consider any submissions received from Telstra within the 14‑day period mentioned in paragraph (a).

Consultation—replacement undertaking

             (5)  Before making a decision under paragraph (2)(c) to approve the replacement undertaking, the Minister must:

                     (a)  give Telstra a notice:

                              (i)  setting out the proposed replacement undertaking; and

                             (ii)  inviting Telstra to make submissions to the Minister about the proposed replacement undertaking within 14 days after the notice is given; and

                     (b)  consider any submissions received from Telstra within the 14‑day period mentioned in paragraph (a).

Advice by the ACCC

             (6)  Subclause (3) does not, by implication, prevent the Minister from asking the ACCC to give the Minister additional advice about a matter arising under this clause.

Notification of decision

             (7)  As soon as practicable after making a decision under subclause (2), the Minister must notify Telstra in writing of the decision.

Instrument is not a legislative instrument

             (8)  An instrument made under subclause (2) is not a legislative instrument.

78  Time limit for making an approval decision

             (1)  This clause applies if Telstra gives the Minister a draft functional separation undertaking (the original undertaking).

             (2)  The Minister must use his or her best endeavours to make a decision under subclause 77(2) in relation to the original undertaking within 6 months after the original undertaking was given to the Minister.

79  Effect of approval

             (1)  If the Minister approves a draft functional separation undertaking under subclause 77(2), the undertaking becomes a final functional separation undertaking.

             (2)  A final functional separation undertaking comes into force on the day after notice of the relevant decision is given to Telstra in accordance with subclause 77(6).

             (3)  A final functional separation undertaking may not be withdrawn.

Undertaking is not a legislative instrument

             (4)  A final functional separation undertaking is not a legislative instrument.

80  Variation of final functional separation undertaking

             (1)  This clause applies if a final functional separation undertaking is in force.

Variation

             (2)  The Minister may, in writing, vary the final functional separation undertaking:

                     (a)  at the request of Telstra or another person; or

                     (b)  on the Minister’s own initiative.

             (3)  The Minister does not have a duty to consider whether to exercise the power to vary a final functional separation undertaking, whether he or she is requested to do so by Telstra or by any other person, or in any other circumstances.

Consultation

             (4)  Before varying a final functional separation undertaking, the Minister must:

                     (a)  cause to be published on the Department’s website a notice:

                              (i)  setting out the proposed variation; and

                             (ii)  inviting persons to make submissions to the Minister about the proposed variation within 14 days after the notice is published; and

                     (b)  give the ACCC a copy of the notice; and

                     (c)  cause to be published on the Department’s website a copy of each submission received within the 14‑day period mentioned in paragraph (a); and

                     (d)  consider any submissions received within the 14‑day period mentioned in paragraph (a); and

                     (e)  ask the ACCC to give advice to the Minister, within 44 days after the notice is published, about the proposed variation; and

                      (f)  have regard to any advice given by the ACCC.

Minor variation

             (5)  Subclause (4) does not apply to a proposed variation if the variation is of a minor nature.

             (6)  If the proposed variation:

                     (a)  is of a minor nature; and

                     (b)  is not made at the request of Telstra;

then, before making the proposed variation, the Minister must:

                     (c)  give Telstra a notice:

                              (i)  setting out the proposed variation; and

                             (ii)  inviting Telstra to make submissions to the Minister about the proposed variation within 14 days after the notice is given; and

                     (d)  consider any submissions received from Telstra within that 14‑day period.

Advice by the ACCC

             (7)  Subclause (4) does not, by implication, prevent the Minister from asking the ACCC to give the Minister additional advice about a matter arising under this clause.

Notification of variation

             (8)  As soon as practicable after varying a final functional separation undertaking, the Minister must notify Telstra in writing of the variation.

When variation comes into force

             (9)  A variation of a final functional separation undertaking comes into force on the day after the notice of the variation is given to Telstra in accordance with subclause (8).

Variation is not a legislative instrument

           (10)  A variation of a final functional separation undertaking is not a legislative instrument.

81  Publication of final functional separation undertaking

             (1)  As soon as practicable after a final functional separation undertaking comes into force, Telstra must make a copy of the undertaking available on Telstra’s website.

             (2)  As soon as practicable after a variation of a final functional separation undertaking comes into force, Telstra must make a copy of the varied final functional separation undertaking available on Telstra’s website.

82  Compliance with final functional separation undertaking

             (1)  If a final functional separation undertaking is in force, Telstra must comply with the undertaking.

             (2)  However, subclause (1) does not apply if an undertaking given by Telstra is in force under section 577A.

Note:          Section 577A deals with undertakings about structural separation.

Part 10Control and use by Telstra of certain spectrum licences

Division 1Introduction

83  Simplified outline

                   The following is a simplified outline of this Part:

        If a spectrum licence relates to a designated part of the spectrum, Telstra must not be in a position to exercise control of the licence unless the following undertakings given by Telstra are in force:

               (a)     an undertaking about structural separation;

               (b)     an undertaking about hybrid fibre‑coaxial networks;

               (c)     an undertaking about subscription television broadcasting licences.

        However, the Minister may exempt Telstra from the requirement to have an undertaking about hybrid fibre‑coaxial networks or subscription television broadcasting licences if the Minister is satisfied that Telstra’s undertaking about structural separation is sufficient to address concerns about the degree of Telstra’s power in telecommunications markets.

Division 2Control and use by Telstra of certain spectrum licences

84  Control by Telstra of certain spectrum licences

             (1)  If a spectrum licence relates to a designated part of the spectrum, Telstra must not be in a position to exercise control of the licence.

Note:          For when Telstra is in a position to exercise control of a spectrum licence, see clause 88.

             (2)  However, the rule in subclause (1) does not apply if:

                     (a)  an undertaking given by Telstra is in force under section 577A; and

                     (b)  either:

                              (i)  an undertaking given by Telstra is in force under section 577C; or

                             (ii)  a declaration is in force under subsection 577J(3); and

                     (c)  either:

                              (i)  an undertaking given by Telstra is in force under section 577E; or

                             (ii)  a declaration is in force under subsection 577J(5).

Note 1:       Section 577A deals with undertakings about structural separation.

Note 2:       Section 577C deals with undertakings about hybrid fibre‑coaxial networks.

Note 3:       Section 577E deals with undertakings about subscription television broadcasting licences.

85  Use by Telstra of certain spectrum licences

             (1)  If a spectrum licence relates to a designated part of the spectrum, Telstra must not supply a carriage service using a radiocommunications device the operation of which is authorised under the licence.

             (2)  However, the rule in subclause (1) does not apply if:

                     (a)  an undertaking given by Telstra is in force under section 577A; and

                     (b)  either:

                              (i)  an undertaking given by Telstra is in force under section 577C; or

                             (ii)  a declaration is in force under subsection 577J(3); and

                     (c)  either:

                              (i)  an undertaking given by Telstra is in force under section 577E; or

                             (ii)  a declaration is in force under subsection 577J(5).

Note 1:       Section 577A deals with undertakings about structural separation.

Note 2:       Section 577C deals with undertakings about hybrid fibre‑coaxial networks.

Note 3:       Section 577E deals with undertakings about subscription television broadcasting licences.

Division 3Other provisions

86  Associate

             (1)  In this Part, an associate of Telstra in relation to control of a spectrum licence is:

                     (a)  a partner of Telstra; or

                     (b)  if Telstra or another person who is an associate of Telstra under another paragraph receives benefits or is capable of benefiting under a trust—the trustee of the trust; or

                     (c)  a person (whether a company or not) who:

                              (i)  acts, or is accustomed to act; or

                             (ii)  under a contract or an arrangement or understanding (whether formal or informal) is intended or expected to act;

                            in accordance with the directions, instructions or wishes of, or in concert with:

                            (iii)  Telstra; or

                            (iv)  Telstra and another person who is an associate of Telstra under another paragraph; or

                     (d)  another company if:

                              (i)  the other company is a related body corporate of Telstra for the purposes of the Corporations Act 2001; or

                             (ii)  Telstra, or Telstra and another person who is an associate of Telstra under another paragraph, are in a position to exercise control of the other company.

             (2)  However, persons are not associates of each other if the ACCC is satisfied that:

                     (a)  they do not act together in any relevant dealings relating to the spectrum licence; and

                     (b)  neither of them is in a position to exert influence over the business dealings of the other in relation to the spectrum licence.

87  Control

                   In this Part, control includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights.

88  When Telstra is in a position to exercise control of a spectrum licence

             (1)  For the purposes of this Part, Telstra is in a position to exercise control of a spectrum licence if:

                     (a)  Telstra is the licensee; or

                     (b)  Telstra, either alone or together with an associate of Telstra, is in a position to exercise control of the spectrum licensee; or

                     (c)  Telstra, either alone or together with an associate of Telstra, is in a position to exercise (whether directly or indirectly) control of the selection of radiocommunications devices authorised to operate under the licence; or

                     (d)  Telstra, either alone or together with an associate of Telstra, is in a position to exercise (whether directly or indirectly) control of a significant proportion of the operations of radiocommunications devices authorised to operate under the licence; or

                     (e)  Telstra, either alone or together with an associate of Telstra, is in a position to:

                              (i)  veto any action taken by the board of directors of the licensee; or

                             (ii)  appoint or secure the appointment of, or veto the appointment of, at least half of the board of directors of the licensee; or

                            (iii)  exercise, in any other manner, whether directly or indirectly, direction or restraint over any substantial issue affecting the management or affairs of the licensee; or

                      (f)  the licensee or more than 50% of its directors:

                              (i)  act, or are accustomed to act; or

                             (ii)  under a contract or an arrangement or understanding (whether formal or informal) are intended or expected to act;

                            in accordance with the directions, instructions or wishes of, or in concert with, Telstra or of Telstra and an associate of Telstra acting together or of the directors of Telstra.

             (2)  An employee of a licensee is not, except through an association with another person, to be regarded as being in a position to exercise control of a spectrum licence under subclause (1) purely because of being an employee.

             (3)  More than one person may be in a position to exercise control of a spectrum licence.

Trade Practices Act 1974

23  Subsection 4(1)

Insert:

Telstra has the same meaning as in the Telstra Corporation Act 1991.

24  Subsection 151BTA(13) (definition of Telstra)

Repeal the definition.

25  Section 151BUAAA

Repeal the section.

26  At the end of Part XIB

Add:

Division 15Voluntary undertakings given by Telstra

151CQ  Voluntary undertakings given by Telstra

Scope

             (1)  This section applies if Telstra has engaged in conduct in order to comply with an undertaking in force under section 577A, 577C or 577E of the Telecommunications Act 1997.

Note 1:       Section 577A of the Telecommunications Act 1997 deals with undertakings about structural separation.

Note 2:       Section 577C of the Telecommunications Act 1997 deals with undertakings about hybrid fibre‑coaxial networks.

Note 3:       Section 577E of the Telecommunications Act 1997 deals with undertakings about subscription television broadcasting licences.

Commission must have regard to Telstra’s conduct

             (2)  In performing a function, or exercising a power, under this Part in relation to Telstra, the Commission must have regard to the conduct to the extent that the conduct is relevant.

27  At the end of Part XIC

Add:

152ER  Voluntary undertakings given by Telstra

Scope

             (1)  This section applies if Telstra has engaged in conduct in order to comply with an undertaking in force under section 577A, 577C or 577E of the Telecommunications Act 1997.

Note 1:       Section 577A of the Telecommunications Act 1997 deals with undertakings about structural separation.

Note 2:       Section 577C of the Telecommunications Act 1997 deals with undertakings about hybrid fibre‑coaxial networks.

Note 3:       Section 577E of the Telecommunications Act 1997 deals with undertakings about subscription television broadcasting licences.

Commission must have regard to Telstra’s conduct

             (2)  In performing a function, or exercising a power, under this Part in relation to Telstra, the Commission must have regard to the conduct to the extent that the conduct is relevant.

28  Transitional—continuity of special Telstra directions

The repeal of section 151BUAAA of the Trade Practices Act 1974 effected by this Part does not affect the continuity of a special Telstra direction (within the meaning of that section) that was in force immediately before the commencement of this item.

Division 2—Amendments commencing immediately after a final functional separation undertaking comes into force

Telecommunications Act 1997

29  Subsection 61(1)

Omit “(1)”.

30  Subsections 61(2), (3) and (4)

Repeal the subsections.

31  Section 61A

Repeal the section.

32  After subsection 69(6)

Insert:

          (6A)  Subsection (1) does not apply to a condition set out in Part 9 of Schedule 1.

Note:          Part 9 of Schedule 1 deals with the functional separation of Telstra.

33  Subsection 69A(1)

Omit “Part 8”, substitute “Part 9”.

Note:       The heading to section 69A is altered by omitting “operational” and substituting “functional”.

34  Section 69B

Repeal the section.

35  After subsection 70(3)

Insert:

          (3A)  Subsection (1) does not apply to a condition set out in Part 9 of Schedule 1.

Note:          Part 9 of Schedule 1 deals with the functional separation of Telstra.

36  Paragraph 70(5)(ba)

Omit “Part 8”, substitute “Part 9”.

37  Subsection 70(6)

Repeal the subsection.

38  Section 104

After:

•      The ACMA may be directed by the Minister to monitor, and report on, specified matters relating to the performance of carriers and carriage service providers.

insert:

•      The ACCC is to monitor, and report each year to the Minister on, the compliance by Telstra with a final functional separation undertaking.

39  At the end of Part 5

Add:

105B  Monitoring of compliance by Telstra with a final functional separation undertaking

             (1)  The ACCC must monitor, and report each financial year to the Minister on, the compliance by Telstra with a final functional separation undertaking.

             (2)  The ACCC must give a report under subsection (1) to the Minister as soon as practicable after the end of the financial year concerned.

             (3)  The Minister must cause a copy of a report under subsection (1) to be tabled in each House of the Parliament within 15 sitting days of that House after receiving the report.

40  After paragraph 564(3)(b)

Insert:

                    (ba)  a carrier licence condition set out in Part 9 of Schedule 1; or

41  Subsection 564(3) (after note 2)

Insert:

Note 2A:    Part 9 of Schedule 1 deals with the functional separation of Telstra.

42  After paragraph 571(3)(b)

Insert:

                    (ba)  a carrier licence condition set out in Part 9 of Schedule 1; or

43  Subsection 571(3) (after note 2)

Insert:

Note 2A:    Part 9 of Schedule 1 deals with the functional separation of Telstra.

44  Part 8 of Schedule 1

Repeal the Part.

Trade Practices Act 1974

45  Division 14 of Part XIB

Repeal the Division, substitute:

Division 14Functional separation for Telstra

151CP  Functional separation for Telstra

Scope

             (1)  This section applies if Telstra has engaged in conduct in order to comply with a final functional separation undertaking in force under Part 9 of Schedule 1 to the Telecommunications Act 1997.

Commission must have regard to Telstra’s conduct

             (2)  In performing a function, or exercising a power, under this Part in relation to Telstra, the Commission must have regard to the conduct to the extent that the conduct is relevant.

46  After section 152EP

Insert:

152EPA  Assistance to independent telecommunications adjudicator

             (1)  For the purposes of this section, the independent telecommunications adjudicator is a company that:

                     (a)  is limited by guarantee; and

                     (b)  is identified, in a final functional separation undertaking in force under Part 9 of Schedule 1 to the Telecommunications Act 1997, as the independent telecommunications adjudicator for the purpose of this section.

             (2)  The Commission may assist the independent telecommunications adjudicator.

             (3)  The assistance may include the following:

                     (a)  the provision of information (including protected information within the meaning of section 155AAA);

                     (b)  the provision of advice;

                     (c)  the making available of resources and facilities (including secretariat services and clerical assistance).

47  Section 152EQ

Repeal the section, substitute:

152EQ  Functional separation for Telstra

Scope

             (1)  This section applies if Telstra has engaged in conduct in order to comply with a final functional separation undertaking in force under Part 9 of Schedule 1 to the Telecommunications Act 1997.

Commission must have regard to Telstra’s conduct

             (2)  In performing a function, or exercising a power, under this Part in relation to Telstra, the Commission must have regard to the conduct to the extent that the conduct is relevant.

48  After subsection 155(7B)

Insert:

          (7C)  Subsection (7B) does not apply in relation to the production by Telstra of a document if the document would disclose information that is relevant to the extent (if any) to which Telstra has complied, or is complying, with a final functional separation undertaking in force under Part 9 of Schedule 1 to the Telecommunications Act 1997.

Division 3—Amendments commencing immediately after an undertaking about structural separation comes into force

Telecommunications Act 1997

49  Subsection 61(1)

Omit “(1)”.

50  Subsections 61(2), (3) and (4)

Repeal the subsections.

51  Sections 61A, 69A and 69B

Repeal the sections.

52  Paragraph 70(5)(ba)

Repeal the paragraph.

53  Subsection 70(6)

Repeal the subsection.

54  Part 8 of Schedule 1

Repeal the Part.

Trade Practices Act 1974

55  Division 14 of Part XIB

Repeal the Division.

56  Section 152EQ

Repeal the section.


 

Part 2Telecommunications access regime

Division 1—Amendments

National Transmission Network Sale Act 1998

57  Section 3 (paragraphs (a) and (b) of the definition of telecommunications access regime)

After “Trade Practices Act”, insert “(as in force immediately before the commencement of Part 2 of Schedule 1 to the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2009)”.

58  At the end of section 16

Add:

             (6)  A reference in this section to the Trade Practices Act is a reference to that Act as in force immediately before the commencement of Part 2 of Schedule 1 to the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2009.

Telecommunications Act 1997

59  After section 62

Insert:

62A  Condition of carrier licence set out in section 152BCO of the Trade Practices Act 1974

                   A carrier licence is subject to the condition set out in section 152BCO of the Trade Practices Act 1974.

Note:          Section 152BCO of the Trade Practices Act 1974 deals with access determinations.

62B  Condition of carrier licence set out in section 152BDF of the Trade Practices Act 1974

                   A carrier licence is subject to the condition set out in section 152BDF of the Trade Practices Act 1974.

Note:          Section 152BDF of the Trade Practices Act 1974 deals with binding rules of conduct.

62C  Condition of carrier licence set out in section 152BEC of the Trade Practices Act 1974

                   A carrier licence is subject to the condition set out in section 152BEC of the Trade Practices Act 1974.

Note:          Section 152BEC of the Trade Practices Act 1974 deals with access agreements.

60  After subsection 69(7)

Insert:

          (7A)  Subsection (1) does not apply to the condition set out in section 152BCO of the Trade Practices Act 1974.

Note:          Section 152BCO of the Trade Practices Act 1974 deals with access determinations.

          (7B)  Subsection (1) does not apply to the condition set out in section 152BDF of the Trade Practices Act 1974.

Note:          Section 152BDF of the Trade Practices Act 1974 deals with binding rules of conduct.

          (7C)  Subsection (1) does not apply to the condition set out in section 152BEC of the Trade Practices Act 1974.

Note:          Section 152BEC of the Trade Practices Act 1974 deals with access agreements.

61  After subsection 70(4)

Insert:

          (4A)  Subsection (1) does not apply to the condition set out in section 152BCO of the Trade Practices Act 1974.

Note:          Section 152BCO of the Trade Practices Act 1974 deals with access determinations.

          (4B)  Subsection (1) does not apply to the condition set out in section 152BDF of the Trade Practices Act 1974.

Note:          Section 152BDF of the Trade Practices Act 1974 deals with binding rules of conduct.

          (4C)  Subsection (1) does not apply to the condition set out in section 152BEC of the Trade Practices Act 1974.

Note:          Section 152BEC of the Trade Practices Act 1974 deals with access agreements.

62  At the end of subsection 70(5)

Add:

                   ; (d)  the condition set out in section 152BCO of the Trade Practices Act 1974;

                     (e)  the condition set out in section 152BDF of the Trade Practices Act 1974;

                      (f)  the condition set out in section 152BEC of the Trade Practices Act 1974.

63  At the end of section 98

Add:

             (3)  In addition to the rules mentioned in subsection (1), the rule set out in subsection 152BCP(2) of the Trade Practices Act 1974 is a service provider rule for the purposes of this Act.

Note:          Subsection 152BCP(2) of the Trade Practices Act 1974 provides that a carriage service provider must comply with any access determinations that are applicable to the provider.

             (4)  In addition to the rules mentioned in subsection (1), the rule set out in subsection 152BDG(2) of the Trade Practices Act 1974 is a service provider rule for the purposes of this Act.

Note:          Subsection 152BDG(2) of the Trade Practices Act 1974 provides that a carriage service provider must comply with any binding rules of conduct that are applicable to the provider.

             (5)  In addition to the rules mentioned in subsection (1), the rule set out in subsection 152BED(2) of the Trade Practices Act 1974 is a service provider rule for the purposes of this Act.

Note:          Subsection 152BED(2) of the Trade Practices Act 1974 deals with access agreements.

64  After subsection 102(6)

Insert:

          (6A)  Subsection (1) does not apply to the rule set out in subsection 152BCP(2) of the Trade Practices Act 1974.

Note:          Subsection 152BCP(2) of the Trade Practices Act 1974 provides that a carriage service provider must comply with any access determinations that are applicable to the provider.

          (6B)  Subsection (1) does not apply to the rule set out in subsection 152BDG(2) of the Trade Practices Act 1974.

Note:          Subsection 152BDG(2) of the Trade Practices Act 1974 provides that a carriage service provider must comply with any binding rules of conduct that are applicable to the provider.

          (6C)  Subsection (1) does not apply to the rule set out in subsection 152BED(2) of the Trade Practices Act 1974.

Note:          Subsection 152BED(2) of the Trade Practices Act 1974 deals with access agreements.

65  After subsection 103(3)

Insert:

          (3A)  Subsection (1) does not apply to the rule set out in subsection 152BCP(2) of the Trade Practices Act 1974.

Note:          Subsection 152BCP(2) of the Trade Practices Act 1974 provides that a carriage service provider must comply with any access determinations that are applicable to the provider.

          (3B)  Subsection (1) does not apply to the rule set out in subsection 152BDG(2) of the Trade Practices Act 1974.

Note:          Subsection 152BDG(2) of the Trade Practices Act 1974 provides that a carriage service provider must comply with any binding rules of conduct that are applicable to the provider.

          (3C)  Subsection (1) does not apply to the rule set out in subsection 152BED(2) of the Trade Practices Act 1974.

Note:          Subsection 152BED(2) of the Trade Practices Act 1974 deals with access agreements.

66  After subsection 103(4)

Insert:

          (4A)  The ACCC may issue a formal warning if a person contravenes the service provider rule set out in subsection 152BCP(2) of the Trade Practices Act 1974.

          (4B)  The ACCC may issue a formal warning if a person contravenes the service provider rule set out in subsection 152BDG(2) of the Trade Practices Act 1974.

          (4C)  The ACCC may issue a formal warning if a person contravenes the service provider rule set out in subsection 152BED(2) of the Trade Practices Act 1974.

67  At the end of subsection 564(3) (before the notes)

Add:

                ; or (f)  the carrier licence condition set out in section 152BCO of the Trade Practices Act 1974; or

                     (g)  the service provider rule set out in subsection 152BCP(2) of the Trade Practices Act 1974; or

                     (h)  the carrier licence condition set out in section 152BDF of the Trade Practices Act 1974; or

                      (i)  the service provider rule set out in subsection 152BDG(2) of the Trade Practices Act 1974; or

                      (j)  the carrier licence condition set out in section 152BEC of the Trade Practices Act 1974; or

                     (k)  the service provider rule set out in subsection 152BED(2) of the Trade Practices Act 1974.

68  At the end of subsection 564(3) (after the notes)

Add:

Note 5:       Section 152BCO of the Trade Practices Act 1974 deals with access determinations.

Note 6:       Subsection 152BCP(2) of the Trade Practices Act 1974 provides that a carriage service provider must comply with any access determinations that are applicable to the provider.

Note 7:       Section 152BDF of the Trade Practices Act 1974 deals with binding rules of conduct.

Note 8:       Subsection 152BDG(2) of the Trade Practices Act 1974 provides that a carriage service provider must comply with any binding rules of conduct that are applicable to the provider.

Note 9:       Section 152BEC of the Trade Practices Act 1974 deals with access agreements.

Note 10:     Subsection 152BED(2) of the Trade Practices Act 1974 deals with access agreements.

69  At the end of subsection 571(3) (before the notes)

Add:

                ; or (f)  the carrier licence condition set out in section 152BCO of the Trade Practices Act 1974; or

                     (g)  the service provider rule set out in subsection 152BCP(2) of the Trade Practices Act 1974; or

                     (h)  the carrier licence condition set out in section 152BDF of the Trade Practices Act 1974; or

                      (i)  the service provider rule set out in subsection 152BDG(2) of the Trade Practices Act 1974; or

                      (j)  the carrier licence condition set out in section 152BEC of the Trade Practices Act 1974; or

                     (k)  the service provider rule set out in subsection 152BED(2) of the Trade Practices Act 1974.

70  At the end of subsection 571(3) (after the notes)

Add:

Note 5:       Section 152BCO of the Trade Practices Act 1974 deals with access determinations.

Note 6:       Subsection 152BCP(2) of the Trade Practices Act 1974 provides that a carriage service provider must comply with any access determinations that are applicable to the provider.

Note 7:       Section 152BDF of the Trade Practices Act 1974 deals with binding rules of conduct.

Note 8:       Subsection 152BDG(2) of the Trade Practices Act 1974 provides that a carriage service provider must comply with any binding rules of conduct that are applicable to the provider.

Note 9:       Section 152BEC of the Trade Practices Act 1974 deals with access agreements.

Note 10:     Subsection 152BED(2) of the Trade Practices Act 1974 deals with access agreements.

Trade Practices Act 1974

71  Section 152AA

Omit:

        If agreement cannot be reached, but no access undertaking is in operation, the terms and conditions are to be determined by the Commission acting as an arbitrator.

•      An access undertaking (other than a special access undertaking) may adopt the terms and conditions set out in a telecommunications access code.

        The Commission may conduct an arbitration of a dispute about access to declared services. The Commission’s determination on the arbitration must not be inconsistent with the standard access obligations or an access undertaking.

        The Commission may register agreements about access to declared services.

        A carrier, carriage service provider or related body must not prevent or hinder the fulfilment of a standard access obligation.

substitute:

        If agreement cannot be reached, no access undertaking is in operation, but the Commission has made binding rules of conduct, the terms and conditions are as specified in the binding rules of conduct.

        If agreement cannot be reached, no access undertaking is in operation, and no binding rules of conduct have been made, the terms and conditions are as specified in an access determination made by the Commission.

        A carrier, carriage service provider or related body must not prevent or hinder the fulfilment of a standard access obligation.

Note:          Even though this section mentions binding rules of conduct, it is expected that binding rules of conduct will only be made on an occasional basis.

72  Section 152AC

Insert:

access agreement has the meaning given by section 152BE.

73  Section 152AC

Insert:

access determination means a determination under section 152BC.

74  Section 152AC (definition of access undertaking)

Omit “an ordinary access undertaking or”.

75  Section 152AC

Insert:

binding rules of conduct means rules made under subsection 152BD(1).

76  Section 152AC

Insert:

final access determination means an access determination other than an interim access determination.

77  Section 152AC

Insert:

fixed principles provision has the meaning given by section 152BCD.

78  Section 152AC

Insert:

interim access determination means an access determination that is expressed to be an interim access determination.

79  Section 152AC (definition of ordinary access undertaking)

Repeal the definition.

80  Section 152AC (definition of telecommunications access code)

Repeal the definition.

81  Section 152AC

Insert:

variation agreement has the meaning given by subsection 152BE(3).

82  At the end of section 152AF

Add:

             (3)  For the purposes of this Part, if an access determination imposes a requirement on a carrier or carriage service provider as mentioned in paragraph 152BC(3)(e), anything done by the carrier or provider in fulfilment of the requirement is taken to be an aspect of access to a declared service.

             (4)  For the purposes of this Part, if binding rules of conduct impose a requirement on a carrier or carriage service provider as mentioned in paragraph 152BD(3)(e), anything done by the carrier or provider in fulfilment of the requirement is taken to be an aspect of access to a declared service.

83  After section 152AH

Insert:

152AI  When public inquiry commences

                   For the purposes of this Part, a public inquiry held by the Commission under Part 25 of the Telecommunications Act 1997 commences when the Commission publishes the notice under section 498 of that Act about the inquiry.

84  Subsection 152ALA(2)

Repeal the subsection, substitute:

             (2)  In specifying an expiry date, the Commission must have regard to:

                     (a)  the principle that the expiry date for a declaration should occur in the period:

                              (i)  beginning 3 years after the declaration was made; and

                             (ii)  ending 5 years after the declaration was made;

                            unless, in the Commission’s opinion, there are circumstances that warrant the expiry date occurring in a shorter or longer period; and

                     (b)  such other matters (if any) as the Commission considers relevant.

85  After subsection 152ALA(6)

Insert:

          (6A)  If the fresh declaration comes into force immediately after the expiry of the expired declaration, the fresh declaration is taken to be a declaration that replaces the expired declaration.

86  Paragraph 152ALA(7)(a)

Omit “12‑month”, substitute “18‑month”.

87  After subparagraph 152ALA(7)(a)(v)

Insert:

                            (vi)  whether to extend or further extend the expiry date of a declaration by a period of not more than 12 months and then to allow the declaration to expire without making a new declaration under section 152AL; and

88  Subsection 152AM(3)

Repeal the subsection, substitute:

             (3)  The Commission does not have a duty to consider whether to hold a public inquiry of a kind mentioned in paragraph 152AL(3)(a) if the Commission is requested to do so by a person.

89  Subsection 152AQ(3)

Omit “may”, substitute “is to”.

90  Subsections 152AQ(4), (5) and (6)

Repeal the subsections, substitute:

             (4)  The Register is to be made available for inspection on the Commission’s website.

             (5)  The Register is not a legislative instrument.

91  Sections 152AQA and 152AQB

Repeal the sections.

92  Subsection 152AR(12) (definition of pre‑request right)

Omit “, or under a determination (within the meaning of Division 8),”.

93  Section 152AS

Repeal the section.

94  After subsection 152ASA(1)

Insert:

          (1A)  A service or a proposed service must not be specified in a determination under this section if, at the time when the determination is made, the service or proposed service is a declared service.

95  After subsection 152ASA(2)

Insert:

          (2A)  A determination under this section may:

                     (a)  provide that the determination must not be varied; or

                     (b)  provide that the determination must not be varied except in such circumstances as are specified in the determination.

          (2B)  A determination under this section may:

                     (a)  provide that the determination must not be revoked; or

                     (b)  provide that the determination must be revoked except in such circumstances as are specified in the determination.

96  Subsection 152ASA(8)

Omit all the words from and including “Commission”, substitute “Commission from making a fresh determination under this section in the same terms as the expired determination”.

97  After subsection 152ASA(11)

Insert:

Variation or revocation of determination

        (11A)  Subsection 33(3) of the Acts Interpretation Act 1901 applies to a power conferred on the Commission by subsection (1), but it applies with the following changes.

         (11B)  A provision referred to in paragraph (2A)(a) or (b) or (2B)(a) or (b) cannot be varied or removed.

         (11C)  A determination under this section must not be varied or revoked in a manner that is inconsistent with a provision referred to in paragraph (2A)(a) or (b) or (2B)(a) or (b).

98  Subsection 152ASA(12)

Repeal the subsection, substitute:

Determination is not a legislative instrument

           (12)  A determination made under subsection (1) is not a legislative instrument.

99  Subsection 152ASA(13) (note)

Repeal the note.

100  Section 152AT

Repeal the section.

101  After subsection 152ATA(3)

Insert:

          (3A)  A service or a proposed service must not be specified in an order under paragraph (3)(a) if, at the time when the order is made, the service or proposed service is a declared service.

102  After subsection 152ATA(4)

Insert:

          (4A)  An order under paragraph (3)(a) may:

                     (a)  provide that the order must not be varied; or

                     (b)  provide that the order must not be varied except in such circumstances as are specified in the order.

          (4B)  An order under paragraph (3)(a) may:

                     (a)  provide that the order must not be revoked; or

                     (b)  provide that the order must not be revoked except in such circumstances as are specified in the order.

103  After subsection 152ATA(6)

Insert:

Serial applications

             (7)  If:

                     (a)  a person makes an application (the first application) under subsection (1) for an order in relation to a service or proposed service; and

                     (b)  the Commission refuses the first application; and

                     (c)  the person subsequently makes another application under subsection (1); and

                     (d)  the Commission is satisfied that:

                              (i)  the first application and the other application have material similarities; or

                             (ii)  the grounds on which the person made the first application are materially similar to the grounds on which the person has made the other application;

the Commission may refuse to consider the other application.

104  Subsection 152ATA(10)

Omit all the words from and including “Commission”, substitute “Commission from making a fresh order under paragraph (3)(a) in the same terms as the expired order”.

105  After subsection 152ATA(16)

Insert:

        (16A)  Subsection 33(3) of the Acts Interpretation Act 1901 applies to a power conferred on the Commission by paragraph (3)(a), but it applies with the following changes.

         (16B)  A provision referred to in paragraph (4A)(a) or (b) or (4B)(a) or (b) cannot be varied or removed.

         (16C)  An order under paragraph (3)(a) must not be varied or revoked in a manner that is inconsistent with a provision referred to in (4A)(a) or (b) or (4B)(a) or (b).

106  Subsection 152ATA(18) (note)

Repeal the note.

107  Subsection 152AU(1)

Omit “152AT(1) or”.

108  Sections 152AV to 152AX

Repeal the sections.

109  Subsection 152AXA(1)

Omit “(1)”.

Note:       The heading to section 152AXA is altered by omitting “reviewable”.

110  Paragraph 152AXA(1)(a)

Omit “152AT or”.

111  Subsection 152AXA(2)

Repeal the subsection.

112  Section 152AY

Repeal the section, substitute:

152AY  Compliance with standard access obligations

             (1)  This section applies if a carrier or carriage service provider is required to comply with any or all of the standard access obligations.

             (2)  The carrier or carriage service provider must comply with the obligations:

                     (a)  if an access agreement between:

                              (i)  the carrier or carriage service provider, as the case requires; and

                             (ii)  the access seeker;

                            is in operation and specifies terms and conditions about a particular matter—on such terms conditions relating to that matter as are set out in the agreement; or

                     (b)  if:

                              (i)  paragraph (a) does not apply in relation to terms and conditions about a particular matter; and

                             (ii)  a special access undertaking given by the carrier or carriage service provider is in operation, and the undertaking specifies terms and conditions about that matter—on such terms and conditions relating to that matter as are set out in the undertaking; or

                     (c)  if:

                              (i)  neither paragraph (a) nor (b) applies to terms and conditions about a particular matter; and

                             (ii)  binding rules of conduct specify terms and conditions about that matter;

                            on such terms and conditions relating to that matter as are set out in the binding rules of conduct; or

                     (d)  if:

                              (i)  none of the above paragraphs applies to terms and conditions about a particular matter; and

                             (ii)  an access determination specifies terms and conditions about that matter;

                            on such terms and conditions relating to that matter as are set out in the access determination.

Note 1:       Sections 152BCC, 152BDB, 152BDE, 152CBIA, 152CBIB and 152CBIC, which deal with inconsistency, should be read and applied before this section is read and applied.

Note 2:       Even though subsection (2) mentions binding rules of conduct, it is expected that binding rules of conduct will only be made on an occasional basis.

Note 3:       For transitional provisions, see Division 2 of Part 2 of Schedule 1 to the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2009.

113  Paragraph 152BBAA(1)(a)

Omit “152AS or”.

114  Paragraph 152BBAA(1)(b)

Omit “152AT or”.

115  Subsection 152BBC(5)

Repeal the subsection.

116  Division 4 of Part XIC

Repeal the Division, substitute:

Division 4Access determinations

Subdivision ACommission may make access determinations

152BC  Access determinations

             (1)  The Commission may make a written determination relating to access to a declared service.

             (2)  A determination under subsection (1) is to be known as an access determination.

             (3)  An access determination may:

                     (a)  specify the terms and conditions on which a carrier or carriage service provider is to comply with any or all of the standard access obligations applicable to the carrier or provider; or

                     (b)  specify any other terms and conditions of an access seeker’s access to the declared service; or

                     (c)  require a carrier or carriage service provider to comply with any or all of the standard access obligations applicable to the carrier or provider in a manner specified in the determination; or

                     (d)  require a carrier or carriage service provider to extend or enhance the capability of a facility by means of which the declared service is supplied; or

                     (e)  impose other requirements on a carrier or carriage service provider in relation to access to the declared service; or

                      (f)  specify the terms and conditions on which a carrier or carriage service provider is to comply with any or all of those other requirements; or

                     (g)  require access seekers to accept, and pay for, access to the declared service; or

                     (h)  provide that any or all of the obligations referred to in section 152AR are not applicable to a carrier or carriage service provider, either:

                              (i)  unconditionally; or

                             (ii)  subject to such conditions or limitations as are specified in the determination; or

                      (i)  restrict or limit the application to a carrier or carriage service provider of any or all of the obligations referred to in section 152AR.

             (4)  Subsection (3) does not limit subsection (1).

             (5)  An access determination may make different provision with respect to:

                     (a)  different carriers or carriage service providers; or

                     (b)  different classes of carriers or carriage service providers; or

                     (c)  different access seekers; or

                     (d)  different classes of access seekers.

             (6)  Subsection (5) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

             (7)  An access determination may provide for the Commission to perform functions, and exercise powers, under the determination.

             (8)  Terms and conditions specified in an access determination as mentioned in paragraph (3)(a), (b) or (f) must include terms and conditions relating to price or a method of ascertaining price.

             (9)  An access determination is not a legislative instrument.

152BCA  Matters that the Commission must take into account

             (1)  The Commission must take the following matters into account in making an access determination:

                     (a)  whether the determination will promote the long‑term interests of end‑users of carriage services or of services supplied by means of carriage services;

                     (b)  the legitimate business interests of a carrier or carriage service provider who supplies, or is capable of supplying, the declared service, and the carrier’s or provider’s investment in facilities used to supply the declared service;

                     (c)  the interests of all persons who have rights to use the declared service;

                     (d)  the direct costs of providing access to the declared service;

                     (e)  the value to a person of extensions, or enhancement of capability, whose cost is borne by someone else;

                      (f)  the operational and technical requirements necessary for the safe and reliable operation of a carriage service, a telecommunications network or a facility;

                     (g)  the economically efficient operation of a carriage service, a telecommunications network or a facility.

             (2)  If a carrier or carriage service provider who supplies, or is capable of supplying, the declared service supplies one or more other eligible services, then, in making an access determination that is applicable to the carrier or provider, as the case may be, the Commission may take into account:

                     (a)  the characteristics of those other eligible services; and

                     (b)  the costs associated with those other eligible services; and

                     (c)  the revenues associated with those other eligible services; and

                     (d)  the demand for those other eligible services.

             (3)  The Commission may take into account any other matters that it thinks are relevant.

             (4)  This section does not apply to an interim access determination.

             (5)  In this section:

eligible service has the same meaning as in section 152AL.

152BCB  Restrictions on access determinations

             (1)  The Commission must not make an access determination that would have any of the following effects:

                     (a)  preventing a service provider who already has access to the declared service from obtaining a sufficient amount of the service to be able to meet the service provider’s reasonably anticipated requirements, measured at the time when the access seeker made a request in relation to the service under section 152AR;

                     (b)  preventing a carrier or carriage service provider from obtaining a sufficient amount of the service to be able to meet the carrier’s or provider’s reasonably anticipated requirements, measured at the time when the access seeker made a request in relation to the service under section 152AR;

                     (c)  preventing a person from obtaining, by the exercise of a pre‑determination right, a sufficient level of access to the declared service to be able to meet the person’s actual requirements;

                     (d)  depriving any person of a protected contractual right;

                     (e)  resulting in an access seeker becoming the owner (or one of the owners) of any part of a facility without the consent of the owner of the facility;

                      (f)  requiring a person (other than an access seeker) to bear an unreasonable amount of the costs of:

                              (i)  extending or enhancing the capability of a facility; or

                             (ii)  maintaining extensions to or enhancements of the capability of a facility;

                     (g)  requiring a carrier or carriage service provider to provide an access seeker with access to a declared service if there are reasonable grounds to believe that:

                              (i)  the access seeker would fail, to a material extent, to comply with the terms and conditions on which the carrier or provider provides, or is reasonably likely to provide, that access; or

                             (ii)  the access seeker would fail, in connection with that access, to protect the integrity of a telecommunications network or to protect the safety of individuals working on, or using services supplied by means of, a telecommunications network or a facility.

             (2)  Examples of grounds for believing as mentioned in subparagraph (1)(g)(i) include:

                     (a)  evidence that the access seeker is not creditworthy; and

                     (b)  repeated failures by the access seeker to comply with the terms and conditions on which the same or similar access has been provided (whether or not by the carrier or carriage service provider).

             (3)  The Commission must not make an access determination that is inconsistent with any of the standard access obligations that are, or will be, applicable to a carrier or carriage service provider.

             (4)  If the Commission makes an access determination that has the effect of depriving a person (the second person) of a pre‑determination right to require the carrier or provider to provide access to the declared service to the second person, the determination must also require the access seeker:

                     (a)  to pay to the second person such amount (if any) as the Commission considers is fair compensation for the deprivation; and

                     (b)  to reimburse the carrier or provider and the Commonwealth for any compensation that the carrier or provider or the Commonwealth agrees, or is required by a court order, to pay to the second person as compensation for the deprivation.

             (5)  An access determination is of no effect to the extent to which it contravenes subsection (1) or (3).

             (6)  In this section:

pre‑determination right means a right under a contract that was in force:

                     (a)  if the access determination is one of a series of 2 or more successive access determinations—immediately before the first access determination came into force; or

                     (b)  otherwise—immediately before the access determination came into force.

protected contractual right means a right under a contract that was in force at the beginning of 13 September 1996.

152BCC  Access determinations that are inconsistent with access agreements

                   If:

                     (a)  an access determination specifies terms and conditions that, apart from this section, would be applicable to the following parties:

                              (i)  a carrier or carriage service provider;

                             (ii)  an access seeker; and

                     (b)  those terms and conditions are inconsistent with terms and conditions set out in an access agreement that is applicable to those parties;

the terms and conditions specified in the access determination have no effect to the extent of the inconsistency.

152BCD  Fixed principles provisions

             (1)  An access determination may include a provision that is specified in the determination to be a fixed principles provision.

             (2)  If a fixed principles provision is included in an access determination, the determination must provide that a specified date is the nominal termination date for the fixed principles provision. The nominal termination date may be later than the expiry date for the determination.

             (3)  If:

                     (a)  an access determination (the replacement access determination) is expressed to replace a previous access determination; and

                     (b)  the previous access determination included a fixed principles provision; and

                     (c)  the nominal termination date for the fixed principles provision is later than the day on which the replacement access determination comes into force;

then:

                     (d)  the replacement access determination must include a provision in the same terms as the fixed principles provision; and

                     (e)  the provision must be specified in the replacement access determination to be a fixed principles provision; and

                      (f)  the nominal termination date for the fixed principles provision so included in the replacement access determination must be the same as, or later than, the nominal termination date for the fixed principles provision included in the previous access determination; and

                     (g)  if the previous access determination provided that the previous access determination must not be varied so as to alter or remove the fixed principles provision—the replacement access determination must provide that the replacement access determination must not be varied so as to alter or remove the fixed principles provision; and

                     (h)  if the previous access determination provided that the previous access determination must not be varied so as to alter or remove the fixed principles provision except in such circumstances as are specified in the previous access determination:

                              (i)  the replacement access determination must provide that the replacement access determination must not be varied so as to alter or remove the fixed principles provision except in such circumstances as are specified in the replacement access determination; and

                             (ii)  those circumstances must be the same as the circumstances specified in the previous access determination.

             (4)  If:

                     (a)  a fixed principles provision is included in an access determination; and

                     (b)  the access determination ceases to be in force before the nominal termination date for the fixed principles provision;

the fixed principles provision ceases to be in force when the access determination ceases to be in force.

Note:          Even though a fixed principles provision ceases to be in force when the access determination ceases to be in force, subsection (3) requires that a replacement access determination include a provision in the same terms as the fixed principles provision.

             (5)  If a fixed principles provision is included in an access determination, the access determination must:

                     (a)  provide that the access determination must not be varied so as to alter or remove the fixed principles provision; or

                     (b)  provide that the access determination must not be varied so as to alter or remove the fixed principles provision except in such circumstances as are specified in the access determination.

152BCE  Access determinations may be set out in the same document

                   Two or more access determinations may be set out in the same document.

152BCF  Duration of access determination

             (1)  An access determination relating to access to a declared service:

                     (a)  comes into force on the day specified in the determination as the day on which the determination is to come into force; and

                     (b)  unless sooner revoked, ceases to be in force on the expiry date for the determination.

             (2)  The specified day may be earlier than the day on which the determination was made.

             (3)  If the relevant declaration under section 152AL is not a fresh declaration that replaces a previous declaration, the specified day must not be earlier than the day on which the declaration came into force.

             (4)  If an access determination is expressed to replace a previous access determination relating to access to the declared service, the specified day must be the first day after the expiry of the previous access determination.

Expiry date

             (5)  An access determination must specify an expiry date for the determination.

             (6)  In specifying an expiry date for an access determination, the Commission must have regard to:

                     (a)  the principle that the expiry date for the determination should be the same as the expiry date for the relevant declaration under section 152AL (as that declaration stood at the time when the access determination was made) unless, in the Commission’s opinion, there are circumstances that warrant the specification of another date as the expiry date for the access determination; and

                     (b)  such other matters (if any) as the Commission considers relevant.

             (7)  If an access determination expires, this Part does not prevent the Commission from making a fresh access determination under section 152BC in the same terms as the expired access determination.

Automatic revocation of access determination

             (8)  If:

                     (a)  an access determination relating to access to a declared service is in force; and

                     (b)  the relevant declaration under section 152AL ceases to be in force; and

                     (c)  the Commission does not make a fresh declaration under section 152AL that replaces the declaration referred to in paragraph (b) of this subsection;

the access determination is taken to be revoked at the time of the cessation.

             (9)  If:

                     (a)  an access determination relating to access to a declared service is in force; and

                     (b)  the relevant declaration under section 152AL is revoked; and

                     (c)  the Commission does not make a fresh declaration under section 152AL that replaces the declaration referred to in paragraph (b) of this subsection;

the access determination is taken to be revoked at the time of the revocation of the declaration.

Extension of access determination

           (10)  If:

                     (a)  an access determination (the original access determination) relating to access to a declared service is in force; and

                     (b)  the Commission has commenced to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make another access determination in relation to access to the service; and

                     (c)  the Commission considers that it will make the other access determination, but will not be in a position to do so before the expiry date for the original access determination;

the Commission may, by writing, declare that the expiry date for the original access determination is taken to be the day immediately before the day on which the other access determination comes into force.

           (11)  The Commission must publish a declaration under subsection (10) on the Commission’s website.

           (12)  If:

                     (a)  after holding a public inquiry under subsection 152ALA(7) in relation to a section 152AL declaration, the Commission:

                              (i)  extends or further extends the expiry date for the declaration by a period of not more than 12 months; and

                             (ii)  decides to allow the declaration to expire after the end of that period; and

                     (b)  an access determination is in force in relation to access to the declared service;

the Commission may, by writing, extend the expiry date for the access determination by the same period.

           (13)  The Commission must publish an instrument under subsection (12) on the Commission’s website.

           (14)  The Commission is not required to observe any requirements of procedural fairness in relation to a decision under subsection (10) or (12).

           (15)  A declaration under subsection (10) is not a legislative instrument.

           (16)  An instrument under subsection (12) is not a legislative instrument.

152BCG  Interim access determinations

             (1)  If:

                     (a)  the Commission makes a declaration under section 152AL after the commencement of this section; and

                     (b)  the declaration is not a fresh declaration that replaces a previous declaration; and

                     (c)  the Commission has commenced to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make an access determination in relation to access to the declared service; and

                     (d)  either:

                              (i)  the Commission considers that it is unlikely that a final access determination in relation to access to the service will be made within 6 months after the commencement of the public inquiry; or

                             (ii)  the Commission considers that there is an urgent need to make an access determination in relation to access to the service before the completion of the public inquiry;

the Commission must make an interim access determination in relation to access to the service.

             (2)  If:

                     (a)  a declaration is in force under section 152AL; and

                     (b)  no access determination has previously been made in relation to access to the declared service;

the Commission may make an interim access determination in relation to access to the service.

             (3)  The day specified in an interim access determination as the day on which the determination is to come into force must not be earlier than the day on which the declaration mentioned in paragraph (1)(a) or (2)(a), as the case may be, came into force.

             (4)  The Commission is not required to observe any requirements of procedural fairness in relation to the making of an interim access determination.

             (5)  The Commission must not make an interim access determination otherwise than in accordance with this section.

Subdivision BPublic inquiries about proposals to make access determinations

152BCH  Access determination to be made after public inquiry

             (1)  The Commission must not make an access determination unless:

                     (a)  the Commission has held a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make the determination; and

                     (b)  the Commission has prepared a report about the inquiry under section 505 of the Telecommunications Act 1997; and

                     (c)  the report was published during the 180‑day period ending when the determination was made.

             (2)  Subsection (1) does not apply to an interim access determination.

             (3)  Subsection (1) has effect subject to section 152BCI.

152BCI  When public inquiry must be held

             (1)  If:

                     (a)  the Commission makes a declaration under section 152AL after the commencement of this section; and

                     (b)  no access determination has previously been made in relation to access to the declared service;

the Commission must, within 30 days after the declaration is made, commence to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make an access determination relating to access to the declared service.

             (2)  If:

                     (a)  a declaration is in force under section 152AL immediately after the commencement of this section; and

                     (b)  no access determination has previously been made in relation to access to the declared service;

the Commission must, during the 12‑month period beginning at the commencement of this section, commence to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make an access determination relating to access to the declared service.

             (3)  If:

                     (a)  a declaration is in force under section 152AL; and

                     (b)  an access determination has previously been made in relation to access to the declared service;

the Commission must, during the period:

                     (c)  beginning 18 months before the expiry date for the access determination; and

                     (d)  ending 6 months before the expiry date for the access determination;

commence to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make an access determination relating to access to the declared service.

             (4)  Subsection (3) has effect subject to subsections (5), (6) and (7).

             (5)  If:

                     (a)  a declaration (the current declaration) is in force under section 152AL; and

                     (b)  an access determination has previously been made in relation to access to the declared service; and

                     (c)  the expiry date of the current declaration is extended or further extended for a period of not more than 12 months; and

                     (d)  the Commission decides to allow the current declaration to expire without making a new declaration under section 152AL;

the Commission is not required to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make an access determination relating to access to the declared service.

             (6)  If:

                     (a)  a declaration is in force under section 152AL; and

                     (b)  an access determination (the current determination) is in force in relation to access to the declared service; and

                     (c)  the Commission commences to hold a public inquiry under subsection 152ALA(7) in relation to the declaration;

then:

                     (d)  the Commission may defer holding a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make an access determination relating to access to the declared service until the Commission decides whether to extend or further extend the expiry date for the declaration; and

                     (e)  if the Commission decides to extend or further extend the expiry date for the declaration—the Commission must commence to hold such a public inquiry before the expiry date for the current access determination; and

                      (f)  if the Commission decides not to extend or further extend the expiry date for the declaration—the Commission is not required to hold such a public inquiry.

             (7)  If:

                     (a)  a declaration is in force under section 152AL; and

                     (b)  an access determination has previously been made in relation to access to the declared service; and

                     (c)  after holding a public inquiry under subsection 152ALA(7) in relation to the declaration, the Commission decides to allow the declaration to expire without making a new declaration under section 152AL;

the Commission is not required to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make an access determination relating to access to the declared service.

152BCJ  Combined inquiries about proposals to make access determinations

             (1)  The Commission may decide to combine 2 or more public inquiries of a kind mentioned in section 152BCH.

             (2)  If the Commission makes such a decision:

                     (a)  the Commission may publish a single notice relating to the combined inquiry under section 498 of the Telecommunications Act 1997; and

                     (b)  the Commission may prepare a single discussion paper about the combined inquiry under section 499 of that Act; and

                     (c)  the Commission may hold hearings relating to the combined inquiry under section 501 of that Act; and

                     (d)  the Commission must ensure that each inquiry is covered by a report under section 505 of that Act, whether the report relates:

                              (i)  to a single one of those inquiries; or

                             (ii)  to any 2 or more of those inquiries.

152BCK  Time limit for making an access determination

             (1)  This section applies if the Commission commences to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make an access determination.

             (2)  The Commission must make a final access determination within 6 months after that commencement.

Extension of decision‑making period

             (3)  The Commission may, by written notice published on its website, extend or further extend the 6‑month period referred to in subsection (2), so long as:

                     (a)  the extension or further extension is for a period of not more than 6 months; and

                     (b)  the notice includes a statement explaining why the Commission has been unable to make a final access determination within that 6‑month period or that 6‑month period as previously extended, as the case may be.

Note:          The Commission may be required to make an interim access determination—see section 152BCG.

152BCL  Commission may use material presented to a previous public inquiry etc.

             (1)  This section applies if:

                     (a)  the Commission has held a public inquiry (the original inquiry) under Part 25 of the Telecommunications Act 1997 about a proposal to make an access determination; and

                     (b)  any of the following subparagraphs applies:

                              (i)  evidence or other material was presented to a hearing for the purposes of the original inquiry;

                             (ii)  a written submission was lodged with the Commission for the purposes of the original inquiry;

                            (iii)  any other information obtained by the Commission was used by the Commission for the purposes of the original inquiry; and

                     (c)  the Commission holds another public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make another access determination.

             (2)  The Commission may:

                     (a)  in the case of evidence or other material presented to a hearing—treat the whole or a part of the evidence or other material as if it had also been presented to a hearing for the purposes of the other public inquiry; or

                     (b)  in the case of a written submission lodged with the Commission—treat the whole or a part of the written submission as if it had also been lodged with the Commission for the purposes of the other public inquiry; or

                     (c)  in the case of any other information obtained by the Commission—use the whole or a part of the information for the purposes of the other public inquiry.

             (3)  This section does not, by implication, limit the information that may be used by the Commission for the purposes of a public inquiry under Part 25 of the Telecommunications Act 1997.

152BCM  Commission may adopt a finding from a previous public inquiry

                   If:

                     (a)  the Commission has held a public inquiry (the original inquiry) under Part 25 of the Telecommunications Act 1997 about a proposal to make an access determination; and

                     (b)  the Commission has prepared a report about the original inquiry under section 505 of that Act; and

                     (c)  the Commission holds another public inquiry under Part 25 of that Act about a proposal to make another access determination;

the Commission may, for the purposes of the other public inquiry, adopt a finding set out in the report about the original inquiry.

Subdivision CVariation or revocation of access determinations

152BCN  Variation or revocation of access determinations

             (1)  Subsection 33(3) of the Acts Interpretation Act 1901 applies to a power conferred on the Commission by section 152BC, but it applies with the following changes.

             (2)  The Commission is not required to hold a public inquiry under Part 25 the Telecommunications Act 1997 about a proposal to vary an access determination if:

                     (a)  the variation is of a minor nature; or

                     (b)  each:

                              (i)  carrier or carriage service provider; and

                             (ii)  access seeker;

                            whose interests are likely to be affected by the variation has consented in writing to the variation.

             (3)  The Commission is not required to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to revoke an access determination if the Commission is satisfied that each:

                     (a)  carrier or service provider; and

                     (b)  access seeker;

whose interests are likely to be affected by the revocation has consented in writing to the revocation.

             (4)  If a fixed principles provision is included in an access determination:

                     (a)  a provision referred to in paragraph 152BCD(5)(a) or (b) cannot be varied or removed; and

                     (b)  the access determination must not be varied in a manner that is inconsistent with a provision referred to in paragraph 152BCD(5)(a) or (b).

             (5)  The Commission does not have a duty to consider whether to exercise the power to vary or revoke an access determination, whether the Commission is requested to do so by another person, or in any other circumstances.

             (6)  If the Commission has commenced to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to vary an access determination, the Commission may alter the proposed variation.

             (7)  Notice of the alteration is to be published in the same way in which a notice relating to the public inquiry was published under section 498 of the Telecommunications Act 1997.

             (8)  Subsection (7) does not apply in relation to an alteration if:

                     (a)  the alteration is of a minor nature; or

                     (b)  each:

                              (i)  carrier or carriage service provider; and

                             (ii)  access seeker;

                            whose interests are likely to be affected by the alteration has consented in writing to the alteration.

Subdivision DCompliance with access determinations

152BCO  Carrier licence condition

                   A carrier licence held by a carrier is subject to a condition that the carrier must comply with any access determinations that are applicable to the carrier.

152BCP  Service provider rule

             (1)  In addition to the rules mentioned in section 98 of the Telecommunications Act 1997, the rule set out in subsection (2) of this section is a service provider rule for the purposes of that Act.

             (2)  A carriage service provider must comply with any access determinations that are applicable to the provider.

Subdivision EPrivate enforcement of access determinations

152BCQ  Private enforcement of access determinations

             (1)  If the Federal Court is satisfied, on the application of:

                     (a)  an access seeker; or

                     (b)  a carrier; or

                     (c)  a carriage service provider;

that a person has engaged, is engaging, or is proposing to engage in conduct that constitutes a contravention of an access determination, the Court may make any or all of the following orders:

                     (d)  an order granting an injunction on such terms as the Court thinks appropriate:

                              (i)  restraining the person from engaging in the conduct; or

                             (ii)  if the conduct involves refusing or failing to do something—requiring the person to do that thing;

                     (e)  an order directing the person to compensate the applicant for loss or damage suffered as a result of the contravention;

                      (f)  any other order that the Court thinks appropriate.

             (2)  The revocation or expiry of an access determination does not affect any remedy under subsection (1) in respect of a contravention of the access determination that occurred when the access determination was in force.

             (3)  If the Federal Court has power under subsection (1) to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do anything, the Court may make any other orders (including granting an injunction) that it thinks appropriate against any other person who was involved in the contravention concerned.

             (4)  A reference in this section to a person involved in the contravention is a reference to a person who has:

                     (a)  aided, abetted, counselled or procured the contravention; or

                     (b)  induced the contravention, whether through threats or promises or otherwise; or

                     (c)  been in any way (directly or indirectly) knowingly concerned in or a party to the contravention; or

                     (d)  conspired with others to effect the contravention.

152BCR  Consent injunctions

                   On an application for an injunction under section 152BCQ, the Federal Court may grant an injunction by consent of all of the parties to the proceedings, whether or not the Court is satisfied that the section applies.

152BCS  Interim injunctions

                   The Federal Court may grant an interim injunction pending determination of an application under section 152BCQ.

152BCT  Factors relevant to granting a restraining injunction

                   The power of the Federal Court to grant an injunction under section 152BCQ restraining a person from engaging in conduct may be exercised whether or not:

                     (a)  it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; or

                     (b)  the person has previously engaged in conduct of that kind; or

                     (c)  there is an imminent danger of substantial damage to any person if the first‑mentioned person engages in conduct of that kind.

152BCU  Factors relevant to granting a mandatory injunction

                   The power of the Federal Court to grant an injunction under section 152BCQ requiring a person to do a thing may be exercised whether or not:

                     (a)  it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that thing; or

                     (b)  the person has previously refused or failed to do that thing; or

                     (c)  there is an imminent danger of substantial damage to any person if the first‑mentioned person refuses or fails to do that thing.

152BCV  Discharge or variation of injunction or other order

                   The Federal Court may discharge or vary an injunction or order granted under this Subdivision.

Subdivision FRegister of Access Determinations

152BCW  Register of Access Determinations

             (1)  The Commission is to maintain a register, to be known as the Register of Access Determinations, in which the Commission includes all access determinations in force.

             (2)  The Register is to be maintained by electronic means.

             (3)  The Register is to be made available for inspection on the Commission’s website.

             (4)  The Register is not a legislative instrument.

             (5)  If the Commission is satisfied that:

                     (a)  publication of a particular provision of an access determination could reasonably be expected to prejudice substantially the commercial interests of a person; and

                     (b)  the prejudice outweighs the public interest in the publication of the provision;

the Commission may remove the provision from the version of the access determination that is included in the Register.

             (6)  If the Commission does so, the Commission must include in the Register an annotation to that effect.

Division 4ABinding rules of conduct

Subdivision ACommission may make binding rules of conduct

152BD  Binding rules of conduct

             (1)  The Commission may make written rules relating to access to a declared service.

Note:          For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.

             (2)  Rules under subsection (1) are to be known as binding rules of conduct.

             (3)  Binding rules of conduct may:

                     (a)  specify the terms and conditions on which a carrier or carriage service provider is to comply with any or all of the standard access obligations applicable to the carrier or provider; or

                     (b)  specify any other terms and conditions of an access seeker’s access to the declared service; or

                     (c)  require a carrier or carriage service provider to comply with any or all of the standard access obligations applicable to the carrier or provider in a manner specified in the rules; or

                     (d)  require a carrier or carriage service provider to extend or enhance the capability of a facility by means of which the declared service is supplied; or

                     (e)  impose other requirements on a carrier or carriage service provider in relation to access to the declared service; or

                      (f)  specify the terms and conditions on which a carrier or carriage service provider is to comply with any or all of those other requirements; or

                     (g)  require access seekers to accept, and pay for, access to the declared service; or

                     (h)  provide that any or all of the obligations referred to in section 152AR are not applicable to a carrier or carriage service provider, either:

                              (i)  unconditionally; or

                             (ii)  subject to such conditions or limitations as are specified in the rules; or

                      (i)  restrict or limit the application to a carrier or carriage service provider of any or all of the obligations referred to in section 152AR.

             (4)  Subsection (3) does not limit subsection (1).

             (5)  Binding rules of conduct may be of general application or may be limited as provided in the rules.

             (6)  In particular, binding rules of conduct may be limited to:

                     (a)  particular carriers or carriage service providers; or

                     (b)  particular classes of carriers or carriage service providers; or

                     (c)  particular access seekers; or

                     (d)  particular classes of access seekers.

             (7)  Subsection (6) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

             (8)  The Commission is not required to observe any requirements of procedural fairness in relation to the making of binding rules of conduct.

             (9)  The Commission does not have a duty to consider whether to make binding rules of conduct, whether at the request of a person or in any other circumstances.

           (10)  Binding rules of conduct may provide for the Commission to perform functions, and exercise powers, under the rules.

           (11)  An instrument under subsection (1) is not a legislative instrument.

152BDA  Restrictions on binding rules of conduct

             (1)  The Commission must not make binding rules of conduct that would have any of the following effects:

                     (a)  preventing a service provider who already has access to the declared service from obtaining a sufficient amount of the service to be able to meet the service provider’s reasonably anticipated requirements, measured at the time when the access seeker made a request in relation to the service under section 152AR;

                     (b)  preventing a carrier or carriage service provider from obtaining a sufficient amount of the service to be able to meet the carrier’s or provider’s reasonably anticipated requirements, measured at the time when the access seeker made a request in relation to the service under section 152AR;

                     (c)  preventing a person from obtaining, by the exercise of a pre‑rules right, a sufficient level of access to the declared service to be able to meet the person’s actual requirements;

                     (d)  depriving any person of a protected contractual right;

                     (e)  resulting in an access seeker becoming the owner (or one of the owners) of any part of a facility without the consent of the owner of the facility;

                      (f)  requiring a person (other than an access seeker) to bear an unreasonable amount of the costs of:

                              (i)  extending or enhancing the capability of a facility; or

                             (ii)  maintaining extensions to or enhancements of the capability of a facility;

                     (g)  requiring a carrier or carriage service provider to provide an access seeker with access to a declared service if there are reasonable grounds to believe that:

                              (i)  the access seeker would fail, to a material extent, to comply with the terms and conditions on which the carrier or provider provides, or is reasonably likely to provide, that access; or

                             (ii)  the access seeker would fail, in connection with that access, to protect the integrity of a telecommunications network or to protect the safety of individuals working on, or using services supplied by means of, a telecommunications network or a facility.

             (2)  Examples of grounds for believing as mentioned in subparagraph (1)(g)(i) include:

                     (a)  evidence that the access seeker is not creditworthy; and

                     (b)  repeated failures by the access seeker to comply with the terms and conditions on which the same or similar access has been provided (whether or not by the carrier or carriage service provider).

             (3)  The Commission must not make binding rules of conduct that are inconsistent with any of the standard access obligations that are, or will be, applicable to a carrier or carriage service provider.

             (4)  If the Commission makes binding rules of conduct that have the effect of depriving a person (the second person) of a pre‑rules right to require the carrier or provider to provide access to the declared service to the second person, the rules must also require the access seeker:

                     (a)  to pay to the second person such amount (if any) as the Commission considers is fair compensation for the deprivation; and

                     (b)  to reimburse the carrier or provider and the Commonwealth for any compensation that the carrier or provider or the Commonwealth agrees, or is required by a court order, to pay to the second person as compensation for the deprivation.

             (5)  Binding rules of conduct are of no effect to the extent to which they contravene subsection (1) or (3).

             (6)  In this section:

pre‑rules right means a right under a contract that was in force immediately before the binding rules of conduct came into force.

protected contractual right means a right under a contract that was in force at the beginning of 13 September 1996.

152BDB  Binding rules of conduct that are inconsistent with access agreements

                   If:

                     (a)  binding rules of conduct specify terms and conditions that, apart from this section, would be applicable to the following parties:

                              (i)  a carrier or carriage service provider;

                             (ii)  an access seeker; and

                     (b)  those terms and conditions are inconsistent with terms and conditions set out in an access agreement that is applicable to those parties;

the terms and conditions specified in the binding rules of conduct have no effect to the extent of the inconsistency.

152BDC  Duration of binding rules of conduct

             (1)  Binding rules of conduct come into force on the day specified in the rules as the day on which the rules are to come into force.

             (2)  Binding rules of conduct must specify an expiry date for the rules.

             (3)  An expiry date must occur in the 12‑month period beginning when the rules were made.

             (4)  Unless sooner revoked, binding rules of conduct cease to be in force on the expiry date for the rules.

152BDD  Commission must give copy of binding rules of conduct to carrier etc.

                   If binding rules of conduct are limited to a particular carrier, carriage service provider or access seeker, as soon as practicable after making the rules, the Commission must give a copy of the rules to the carrier, carriage service provider or access seeker, as the case may be.

152BDE  Access determinations that are inconsistent with binding rules of conduct

                   If a provision of an access determination is inconsistent with binding rules of conduct, the provision has no effect to the extent of the inconsistency.

Subdivision BCompliance with binding rules of conduct

152BDF  Carrier licence condition

                   A carrier licence held by a carrier is subject to a condition that the carrier must comply with any binding rules of conduct that are applicable to the carrier.

152BDG  Service provider rule

             (1)  In addition to the rules mentioned in section 98 of the Telecommunications Act 1997, the rule set out in subsection (2) of this section is a service provider rule for the purposes of that Act.

             (2)  A carriage service provider must comply with any binding rules of conduct that are applicable to the provider.

Subdivision CPrivate enforcement of binding rules of conduct

152BDH  Private enforcement of binding rules of conduct

             (1)  If the Federal Court is satisfied, on the application of:

                     (a)  an access seeker; or

                     (b)  a carrier; or

                     (c)  a carriage service provider;

that a person has engaged, is engaging, or is proposing to engage in conduct that constitutes a contravention of binding rules of conduct, the Court may make any or all of the following orders:

                     (d)  an order granting an injunction on such terms as the Court thinks appropriate:

                              (i)  restraining the person from engaging in the conduct; or

                             (ii)  if the conduct involves refusing or failing to do something—requiring the person to do that thing;

                     (e)  an order directing the person to compensate the applicant for loss or damage suffered as a result of the contravention;

                      (f)  any other order that the Court thinks appropriate.

             (2)  The revocation or expiry of binding rules of conduct does not affect any remedy under subsection (1) in respect of a contravention of the rules that occurred when the rules were in force.

             (3)  If the Federal Court has power under subsection (1) to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do anything, the Court may make any other orders (including granting an injunction) that it thinks appropriate against any other person who was involved in the contravention concerned.

             (4)  A reference in this section to a person involved in the contravention is a reference to a person who has:

                     (a)  aided, abetted, counselled or procured the contravention; or

                     (b)  induced the contravention, whether through threats or promises or otherwise; or

                     (c)  been in any way (directly or indirectly) knowingly concerned in or a party to the contravention; or

                     (d)  conspired with others to effect the contravention.

152BDI  Consent injunctions

                   On an application for an injunction under section 152BDH, the Federal Court may grant an injunction by consent of all of the parties to the proceedings, whether or not the Court is satisfied that the section applies.

152BDJ  Interim injunctions

                   The Federal Court may grant an interim injunction pending determination of an application under section 152BDH.

152BDK  Factors relevant to granting a restraining injunction

                   The power of the Federal Court to grant an injunction under section 152BDH restraining a person from engaging in conduct may be exercised whether or not:

                     (a)  it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; or

                     (b)  the person has previously engaged in conduct of that kind; or

                     (c)  there is an imminent danger of substantial damage to any person if the first‑mentioned person engages in conduct of that kind.

152BDL  Factors relevant to granting a mandatory injunction

                   The power of the Federal Court to grant an injunction under section 152BDH requiring a person to do a thing may be exercised whether or not:

                     (a)  it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that thing; or

                     (b)  the person has previously refused or failed to do that thing; or

                     (c)  there is an imminent danger of substantial damage to any person if the first‑mentioned person refuses or fails to do that thing.

152BDM  Discharge or variation of injunction or other order

                   The Federal Court may discharge or vary an injunction or order granted under this Subdivision.

Subdivision DRegister of Binding Rules of Conduct

152BDN  Register of Binding Rules of Conduct

             (1)  The Commission is to maintain a register, to be known as the Register of Binding Rules of Conduct, in which the Commission includes all binding rules of conduct in force.

             (2)  The Register is to be maintained by electronic means.

             (3)  The Register is to be made available for inspection on the Commission’s website.

             (4)  The Register is not a legislative instrument.

             (5)  If the Commission is satisfied that:

                     (a)  publication of a particular provision of binding rules of conduct could reasonably be expected to prejudice substantially the commercial interests of a person; and

                     (b)  the prejudice outweighs the public interest in the publication of the provision;

the Commission may remove the provision from the version of the rules that is included in the Register.

             (6)  If the Commission does so, the Commission must include in the Register an annotation to that effect.

Division 4BAccess agreements

152BE  Access agreements

             (1)  For the purposes of this Part, an access agreement is an agreement, where:

                     (a)  the agreement is in writing; and

                     (b)  the agreement is legally enforceable; and

                     (c)  the agreement relates to access to a declared service; and

                     (d)  the parties to the agreement are:

                              (i)  an access seeker; and

                             (ii)  the carrier or carriage service provider who supplies, or proposes to supply, the declared service; and

                     (e)  any of the following subparagraphs applies:

                              (i)  the agreement embodies any or all of the terms and conditions on which the carrier or carriage service provider is to comply with any or all of the standard access obligations applicable to the carrier or provider;

                             (ii)  if an access determination imposes requirements on a carrier or carriage service provider in relation to access to the declared service, as mentioned in paragraph 152BC(3)(e)—the agreement embodies any or all of the terms and conditions on which the carrier or carriage service provider is to comply with any or all of those requirements;

                            (iii)  if binding rules of conduct impose requirements on the carrier or carriage service provider in relation to access to the declared service, as mentioned in paragraph 152BD(3)(e)—the agreement embodies any or all of the terms and conditions on which the carrier or carriage service provider is to comply with any or all of those requirements;

                            (iv)  the agreement embodies any other terms and conditions of the access seeker’s access to the declared service.

             (2)  If:

                     (a)  an agreement relates to access to an eligible service (within the meaning of section 152AL); and

                     (b)  at the time the agreement was entered into to, the eligible service was a not a declared service; and

                     (c)  at a later time (the declaration time), the eligible service becomes a declared service; and

                     (d)  if the agreement had been entered into immediately after the declaration time, the agreement would have been an access agreement;

the agreement becomes an access agreement immediately after the declaration time.

             (3)  If:

                     (a)  an access agreement is varied by another agreement (the variation agreement); and

                     (b)  the variation agreement is in writing; and

                     (c)  the variation agreement is legally enforceable;

a reference in this Part to the access agreement is a reference to the access agreement as varied by the variation agreement.

             (4)  It is immaterial whether an access agreement or variation agreement was entered into before or after the commencement of this section.

152BEA  Lodgment of access agreements with the Commission

             (1)  If:

                     (a)  an access agreement is covered by subsection 152BE(1); and

                     (b)  the agreement was entered into after the commencement of this section;

the carrier or carriage service provider who supplies, or proposes to supply, the service to which the agreement relates must, within 28 days after the day on which the agreement was entered into, give the Commission:

                     (c)  a copy of the agreement; and

                     (d)  a written statement setting out such information (if any) about the agreement as is specified in an instrument in force under subsection (6).

             (2)  If:

                     (a)  an access agreement is covered by subsection 152BE(1); and

                     (b)  the agreement was entered into before the commencement of this section; and

                     (c)  the agreement is in operation as at the commencement of this section;

the carrier or carriage service provider who supplies, or proposes to supply, the service to which the agreement relates must, within 28 days after the commencement of this section, give the Commission:

                     (d)  a copy of the agreement; and

                     (e)  a written statement setting out such information (if any) about the agreement as is specified in an instrument in force under subsection (7).

             (3)  If, under subsection 152BE(2), an agreement becomes an access agreement after the commencement of this section, the carrier or carriage service provider who supplies, or proposes to supply, the service to which the agreement relates must, within 28 days after the day on which the agreement became an access agreement, give the Commission:

                     (a)  a copy of the agreement; and

                     (b)  a written statement setting out such information (if any) about the agreement as is specified in an instrument in force under subsection (8).

             (4)  If:

                     (a)  under subsection 152BE(2), an agreement became an access agreement before the commencement of this section; and

                     (b)  the agreement is in operation as at the commencement of this section;

the carrier or carriage service provider who supplies, or proposes to supply, the service to which the agreement relates must, within 28 days after the commencement of this section, give the Commission:

                     (c)  a copy of the agreement (or, if the agreement has been varied, the varied agreement); and

                     (d)  a written statement setting out such information (if any) about the agreement, or varied agreement, as the case may be, as is specified in an instrument in force under subsection (9).

             (5)  If a variation agreement is entered into after the commencement of this section, the carrier or carriage service provider who supplies, or proposes to supply, the service to which the relevant access agreement relates must, within 28 days after the day on which the variation agreement was entered into, give the Commission:

                     (a)  a copy of the variation agreement; and

                     (b)  a written statement setting out such information (if any) about the variation agreement as is specified in an instrument in force under subsection (10).

             (6)  The Commission may, by writing, specify information for the purposes of paragraph (1)(d).

             (7)  The Commission may, by writing, specify information for the purposes of paragraph (2)(e).

             (8)  The Commission may, by writing, specify information for the purposes of paragraph (3)(b).

             (9)  The Commission may, by writing, specify information for the purposes of paragraph (4)(d).

           (10)  The Commission may, by writing, specify information for the purposes of paragraph (5)(b).

           (11)  The Commission may, by writing, require information in a statement given to the Commission under subsection (1), (2), (3), (4) or (5) to be verified by statutory declaration.

           (12)  The Commission must publish an instrument under subsection (6), (7), (8), (9), (10) or (11) on the Commission’s website.

           (13)  The Commission may, before the end of the 28‑day period referred to in subsection (1), (2), (3), (4) or (5), extend that period.

           (14)  An instrument under subsection (6), (7), (8), (9), (10) or (11) is not a legislative instrument.

152BEB  Notification of termination of access agreement

             (1)  This section applies if:

                     (a)  a copy of an access agreement has been given to the Commission under section 152BEA; and

                     (b)  the agreement is terminated, rescinded or cancelled before the expiry of the agreement.

             (2)  The carrier or carriage service provider who supplied, or proposed to supply, the service to which the agreement relates must, within 28 days after the termination, rescission or cancellation, as the case may be, notify the Commission, in writing, of the termination, rescission or cancellation.

152BEC  Carrier licence condition

                   A carrier licence held by a carrier is subject to a condition that the carrier must comply with sections 152BEA and 152BEB.

152BED  Service provider rule

             (1)  In addition to the rules mentioned in section 98 of the Telecommunications Act 1997, the rule set out in subsection (2) of this section is a service provider rule for the purposes of that Act.

             (2)  A carriage service provider must comply with sections 152BEA and 152BEB.

117  Subdivision A of Division 5 of Part XIC

Repeal the Subdivision.

118  Subsection 152CBA(1)

Omit “an active”, substitute “a”.

119  Subsection 152CBA(10)

Repeal the subsection, substitute:

           (10)  If the undertaking expires, this Part does not prevent the person from giving a fresh special access undertaking in the same terms as the expired undertaking.

120  Before paragraph 152CBC(6)(a)

Insert:

                    (aa)  if:

                              (i)  the Commission has given a notice under section 152CBDA in relation to the undertaking; and

                             (ii)  no varied undertaking was given to the Commission in response to the notice;

                            a day in the period specified in the notice; and

                    (ab)  if:

                              (i)  the Commission has given a notice under section 152CBDA in relation to the undertaking; and

                             (ii)  a varied undertaking was given to the Commission in response to the notice; and

                            (iii)  the Commission did not publish the varied undertaking under paragraph 152CBD(2)(d);

                            a day in the period:

                            (iv)  beginning on the day in which the notice was given; and

                             (v)  ending when the varied undertaking was given to the Commission in response to the notice; and

                    (ac)  if:

                              (i)  the Commission has given a notice under section 152CBDA in relation to the undertaking; and

                             (ii)  a varied undertaking was given to the Commission in response to the notice; and

                            (iii)  the varied undertaking was published under paragraph 152CBD(2)(d);

                            a day in the period:

                            (iv)  beginning on the day on which the notice was given; and

                             (v)  ending at the end of the time specified by the Commission when it published the varied undertaking; and

121  Paragraph 152CBC(6)(a)

After “if”, insert “paragraph (ac) does not apply and”.

122  After section 152CBC

Insert:

152CBCA  Serial undertakings

                   If:

                     (a)  a person gives a special access undertaking (the first special access undertaking) to the Commission; and

                     (b)  the Commission rejects the first special access undertaking; and

                     (c)  the person subsequently gives another special access undertaking to the Commission; and

                     (d)  the Commission is satisfied that any or all of the provisions of the first special access application are materially similar to any or all of the provisions of the other special access undertaking;

the Commission may refuse to consider the other special access undertaking.

123  At the end of section 152CBD

Add:

             (3)  If a special access undertaking is given to the Commission in response to a notice under section 152CBDA, the Commission is not required to publish the undertaking under paragraph (2)(d) of this section unless the Commission is satisfied that:

                     (a)  the variations specified in the notice are not of a minor nature; or

                     (b)  the variations specified in the notice are likely to have a material adverse effect on the legitimate commercial interests of any person.

124  After section 152CBD

Insert:

152CBDA  Variation of special access undertaking

             (1)  This section applies if a person gives a special access undertaking (the original undertaking) to the Commission.

             (2)  The Commission may give the person a written notice stating that, if the person:

                     (a)  makes such variations to the original undertaking as are specified in the notice; and

                     (b)  gives the varied undertaking to the Commission within the period specified in the notice;

the Commission will consider the varied undertaking under section 152CBC as if the varied undertaking had been given to the Commission instead of the original undertaking.

             (3)  If the person gives the Commission a varied undertaking in response to the notice, the Commission must consider the varied undertaking under section 152CBC as if the varied undertaking had been given to the Commission instead of the original undertaking.

             (4)  The Commission does not have a duty to consider whether to give a notice under subsection (2).

125  After section 152CBI

Insert:

152CBIA  Special access undertakings prevail over inconsistent access determinations

                   An access determination has no effect to the extent to which it is inconsistent with a special access undertaking that is in operation.

152CBIB  Special access undertakings prevail over inconsistent binding rules of conduct

                   Binding rules of conduct have no effect to the extent to which they are inconsistent with a special access undertaking that is in operation.

152CBIC  Access agreements prevail over special access undertakings

                   A special access undertaking has no effect to the extent to which it is inconsistent with an access agreement.

126  Subsection 152CC(2)

Omit “may”, substitute “is to”.

127  Subsections 152CC(3), (4) and (5)

Repeal the subsections, substitute:

             (3)  The Register is to be made available for inspection on the Commission’s website.

             (4)  The Register is not a legislative instrument.

128  Sections 152CE, 152CF, 152CG and 152CGA

Repeal the sections.

129  Section 152CGB

Repeal the section.

130  Subsection 152CH(1) (notes 1A, 1B, 2 and 3)

Repeal the notes.

131  Subsection 152CH(1) (note 5)

Repeal the note, substitute:

Note 5:       Subsection 152CI(2) provides that a provision of an access determination has no effect to the extent that the provision is inconsistent with any Ministerial pricing determination.

Note 5A:    Subsection 152CI(3) provides that a provision of binding rules of conduct have no effect to the extent that the provision is inconsistent with any Ministerial pricing determination.

132  Subsection 152CH(1) (note 6)

Repeal the note.

133  Subsection 152CI(2)

Repeal the subsection, substitute:

             (2)  If a provision of an access determination is inconsistent with any Ministerial pricing determination, the provision has no effect to the extent of the inconsistency.

             (3)  If a provision of binding rules of conduct is inconsistent with any Ministerial pricing determination, the provision has no effect to the extent of the inconsistency.

Note:       The heading to section 152CI is altered by omitting “and codes” and substituting “, access determinations and binding rules of conduct”.

134  Subsection 152CJ(2)

Omit “may”, substitute “is to”.

135  Subsections 152CJ(3), (4) and (5)

Repeal the subsections, substitute:

             (3)  The Register is to be made available for inspection on the Commission’s website.

             (4)  The Register is not a legislative instrument.

136  Division 8 of Part XIC

Repeal the Division.

137  Division 9 of Part XIC

Repeal the Division.

138  Paragraph 152EF(1)(b)

Repeal the paragraph, substitute:

                     (b)  a requirement imposed by an access determination; or

                    (ba)  a requirement imposed by binding rules of conduct;

139  Subparagraph 152ELA(3)(a)(i)

Omit “152AT(1) or”.

140  Subparagraph 152ELA(3)(a)(ii)

Omit “or” (last occurring).

141  Subparagraph 152ELA(3)(a)(iii)

Repeal the subparagraph.

142  Paragraph 152ELA(3)(b)

Repeal the paragraph.

143  Paragraph 152ELA(3)(c)

Omit “this Part;”, substitute “this Part.”.

144  Paragraph 152ELA(3)(d)

Repeal the paragraph.

145  Subsections 152ELA(6) and (7)

Repeal the subsections, substitute:

             (6)  Subsection (5) does not limit subsection (1).

146  Before section 152EM

Insert:

152ELD  Compensation for acquisition of property

             (1)  If the operation of this Part would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.

             (2)  If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

             (3)  In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

this Part includes Division 2 of Part 2 of Schedule 1 to the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2009.

147  Subsection 155AAA(21) (subparagraph (c)(i) of the definition of protected information)

Omit “152BT, 152BZ,”.

148  Subsection 171B(1)

Omit “and Division 8 of Part XIC have no effect to the extent (if any) to which they purport”, substitute “has no effect to the extent (if any) to which it purports”.

Note:       The heading to section 171B is altered by omitting “and Division 8 of Part XIC do” and substituting “does”.

Division 2—Transitional provisions

149  Definitions

In this Division:

access agreement has the same meaning as in Part XIC of the Trade Practices Act 1974 as amended by this Part.

access determination has the same meaning as in Part XIC of the Trade Practices Act 1974 as amended by this Part.

binding rules of conduct has the same meaning as in Part XIC of the Trade Practices Act 1974 as amended by this Part.

150  Transitional—ordinary class exemptions from standard access obligations

(1)        This item applies to a determination that:

                     (a)  was made under section 152AS of the Trade Practices Act 1974; and

                     (b)  was in force immediately before the commencement of this item.

(2)        Despite:

                     (a)  the repeal of section 152AS of the Trade Practices Act 1974 effected by this Part; and

                     (b)  the amendment of paragraph 152BBAA(1)(a) of that Act made by this Part;

that section and that paragraph continue to apply, in relation to the determination, as if that repeal had not happened and that amendment had not been made. This subitem has effect subject to the following subitem.

(3)        The determination ceases to have effect, to the extent to which it relates to a particular declared service, when the first access determination relating to access to the declared service comes into force.

151  Transitional—ordinary individual exemptions from standard access obligations

(1)        This item applies to a determination that:

                     (a)  was made under section 152AT of the Trade Practices Act 1974; and

                     (b)  was in force immediately before the commencement of this item.

(2)        Despite:

                     (a)  the repeal of section 152AT of the Trade Practices Act 1974 effected by this Part; and

                     (b)  the amendment of paragraph 152BBAA(1)(b) of that Act made by this Part;

that section and that paragraph continue to apply, in relation to the determination, as if that repeal had not happened and that amendment had not been made. This subitem has effect subject to the following subitem.

(3)        The determination ceases to have effect, to the extent to which it relates to a particular declared service, when the first access determination relating to access to the declared service comes into force.

152  Transitional—ordinary access undertakings given to the Commission before 15 September 2009

(1)        This item applies to an ordinary access undertaking that:

                     (a)  was given by a carrier or carriage service provider to the Commission under section 152BS of the Trade Practices Act 1974 before 15 September 2009; and

                     (b)  was accepted by the Commission under section 152BU of that Act before the commencement of this item; and

                     (c)  was in operation immediately before the commencement of this item.

(2)        Despite the following repeals effected, and amendments made, by this Part:

                     (a)  the repeal of Subdivision A of Division 5 of Part XIC of the Trade Practices Act 1974;

                     (b)  the amendment of the definition of access undertaking in section 152AC of that Act;

                     (c)  the repeal of the definition of ordinary access undertaking in section 152AC of that Act;

                     (d)  the amendment of subparagraph (c)(i) of the definition of protected information in subsection 155AAA(21) of that Act;

that Subdivision and those definitions continue to apply, in relation to the undertaking, as if those repeals had not happened and those amendments had not been made. This subitem has effect subject to the following subitems.

(3)        The undertaking cannot be varied so as to extend its duration.

(4)        If the undertaking adopts a set of model terms and conditions set out in the telecommunications access code, then, despite the repeal of sections 152BJ and 152BK of the Trade Practices Act 1974, those sections continue to apply, in relation to the undertaking, as if those repeals had not happened.

(5)        If the undertaking is inconsistent with an access agreement, the undertaking has no effect to the extent of the inconsistency.

153  Transitional—ordinary access undertakings given to the Commission on or after 15 September 2009

(1)        This item applies to an ordinary access undertaking that:

                     (a)  was given to the Commission under section 152BS of the Trade Practices Act 1974 on or after 15 September 2009; and

                     (b)  was accepted by the Commission under section 152BU of that Act before the commencement of this item; and

                     (c)  was in operation immediately before the commencement of this item.

(2)        Despite the following repeals effected, and amendments made, by this Part:

                     (a)  the repeal of Subdivision A of Division 5 of Part XIC of the Trade Practices Act 1974;

                     (b)  the amendment of the definition of access undertaking in section 152AC of that Act;

                     (c)  the repeal of the definition of ordinary access undertaking in section 152AC of that Act;

                     (d)  the amendment of subparagraph (c)(i) of the definition of protected information in subsection 155AAA(21) of that Act;

that Subdivision and those definitions continue to apply, in relation to the undertaking, as if those repeals had not happened and those amendments had not been made. This subitem has effect subject to the following subitems.

(3)        The undertaking cannot be varied so as to extend its duration.

(4)        The undertaking ceases to have effect, to the extent to which it relates to a particular declared service, when the first access determination relating to access to the declared service comes into force.

(5)        If the undertaking adopts a set of model terms and conditions set out in the telecommunications access code, then, despite the repeal of sections 152BJ and 152BK of the Trade Practices Act 1974, those sections continue to apply, in relation to the undertaking, as if those repeals had not happened.

(6)        If the undertaking is inconsistent with an access agreement, the undertaking has no effect to the extent of the inconsistency.

154  Transitional—arbitration of access disputes

(1)        Despite the following repeals effected, and amendments made, by this Part:

                     (a)  the repeal of Division 8 of Part XIC of the Trade Practices Act 1974;

                     (b)  the amendment of the definition of pre‑request right in subsection 152AR(12) of that Act;

                     (c)  the repeal of subsection 152BBC(5) of that Act;

                     (d)  the repeal of section 152CGB of that Act;

                     (e)  the amendments of section 152ELA of that Act;

                      (f)  the amendment of subsection 171B(1) of that Act;

that Division, that definition, and those sections and subsections continue to apply as if those repeals had not happened and those amendments had not been made. This subitem has effect subject to the following subitems.

(2)        If:

                     (a)  a declared service is supplied, or proposed to be supplied, by a carrier or a carriage service provider; and

                     (b)  one or more standard access obligations apply, or will apply, to the carrier or provider in relation to the declared service; and

                     (c)  an access seeker is unable to agree with the carrier or provider about one or more aspects of access to the declared service;

then:

                     (d)  if the declared service was a declared service immediately before the commencement of this item—a person is not entitled to notify an access dispute to the Commission under section 152CM of the Trade Practices Act 1974 at any time after the first final access determination relating to access to the declared service has come into force; or

                     (e)  otherwise—a person is not entitled to notify an access dispute to the Commission under section 152CM of the Trade Practices Act 1974.

(3)        If:

                     (a)  a declared service is supplied, or proposed to be supplied, by a carrier or a carriage service provider; and

                     (b)  one or more standard access obligations apply, or will apply, to the carrier or provider in relation to the declared service; and

                     (c)  an access seeker is unable to agree with the carrier or provider about the terms and conditions on which the carrier or provider is to comply with those obligations;

then:

                     (d)  if the declared service was a declared service immediately before the commencement of this item—a person is not entitled to notify an access dispute to the Commission under section 152CM of the Trade Practices Act 1974 at any time after the first final access determination relating to access to the declared service has come into force; or

                     (e)  otherwise—a person is not entitled to notify an access dispute to the Commission under section 152CM of the Trade Practices Act 1974.

(4)        A final determination made by the Commission under Division 8 of Part XIC of the Trade Practices Act 1974 after the commencement of this item must specify an expiry date for the determination. Unless sooner revoked, the determination ceases to be in force on the expiry date for the determination.

(5)        If a determination under Division 8 of Part XIC of the Trade Practices Act 1974 is inconsistent with a final access determination that was in force when the first‑mentioned determination was made or varied, the first‑mentioned determination has no effect to the extent of the inconsistency.

(6)        If a determination under Division 8 of Part XIC of the Trade Practices Act 1974:

                     (a)  does not have an expiry date; and

                     (b)  is inconsistent with a final access determination that came into force after the first‑mentioned determination was made or varied;

the first‑mentioned determination has no effect to the extent of the inconsistency.

(7)        If:

                     (a)  a final access determination is inconsistent with a determination under Division 8 of Part XIC of the Trade Practices Act 1974; and

                     (b)  the determination under Division 8 of Part XIC of the Trade Practices Act 1974 has an expiry date; and

                     (c)  the final access determination came into force after the determination under Division 8 of Part XIC of the Trade Practices Act 1974 was made or varied;

the final access determination has no effect to the extent of the inconsistency.

(8)        If an interim access determination is inconsistent with a determination under Division 8 of Part XIC of the Trade Practices Act 1974, the interim access determination has no effect to the extent of the inconsistency.

(9)        If a determination under Division 8 of Part XIC of the Trade Practices Act 1974:

                     (a)  does not have an expiry date; and

                     (b)  is inconsistent with binding rules of conduct;

the determination has no effect to the extent of the inconsistency.

(10)      If:

                     (a)  binding rules of conduct are inconsistent with a determination under Division 8 of Part XIC of the Trade Practices Act 1974; and

                     (b)  the determination under Division 8 of Part XIC of the Trade Practices Act 1974 has an expiry date;

the binding rules of conduct have no effect to the extent of the inconsistency.

(11)      If a determination under Division 8 of Part XIC of the Trade Practices Act 1974 is inconsistent with an access agreement, the determination has no effect to the extent of the inconsistency.

(12)      The Commission may, at any time, terminate an arbitration under Division 8 of Part XIC of the Trade Practices Act 1974 (without making a determination under that Division) if the Commission commences to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make an access determination relating to access to the declared service concerned.

155  Transitional—compliance with standard access obligations

(1)        This item applies if:

                     (a)  a carrier or carriage service provider is required to comply with any or all of the standard access obligations; and

                     (b)  either:

                              (i)  an ordinary access undertaking given by the carrier or carriage service provider is in operation, and the undertaking specifies any or all of the terms and conditions on which the carrier or carriage service provider is to comply with any of the standard obligations; or

                             (ii)  a determination made by the Commission under Division 8 of Part XIC of the Trade Practices Act 1974 is in force, and the determination specifies any or all of the terms and conditions on which the carrier or carriage service provider is to comply with any of the standard obligations.

(2)        The carrier or carriage service provider must comply with the obligations mentioned in paragraph (1)(a):

                     (a)  if an access agreement between:

                              (i)  the carrier or carriage service provider, as the case requires; and

                             (ii)  the access seeker;

                            is in operation and specifies terms and conditions about a particular matter—on such terms conditions relating to that matter as are set out in the agreement; or

                     (b)  if:

                              (i)  paragraph (a) does not apply in relation to terms and conditions about a particular matter; and

                             (ii)  an access undertaking given by the carrier or carriage service provider is in operation, and the undertaking specifies terms and conditions about that matter—on such terms and conditions relating to that matter as are set out in the undertaking; or

                     (c)  if:

                              (i)  neither paragraph (a) nor (b) applies to terms and conditions about a particular matter; and

                             (ii)  binding rules of conduct specify terms and conditions about that matter;

                            on such terms and conditions relating to that matter as are set out in the binding rules of conduct; or

                     (d)  if:

                              (i)  none of the above paragraphs applies to terms and conditions about a particular matter; and

                             (ii)  a determination made by the Commission under Division 8 of Part XIC of the Trade Practices Act 1974 specifies terms and conditions about that matter;

                            on such terms and conditions relating to that matter as are set out in the determination; or

                     (e)  if:

                              (i)  none of the above paragraphs applies to terms and conditions about a particular matter; and

                             (ii)  an access determination specifies terms and conditions about that matter;

                            on such terms and conditions relating to that matter as are set out in the access determination.

Note 1:    Subitems 152(5), 153(6) and 154(5) to (11) of this Schedule, and sections 152BCC, 152BDB, 152BDE, 152CBIA, 152CBIB, 152CBIC and 152CGB of the Trade Practices Act 1974, which deal with inconsistency, should be read and applied before this item is read and applied.

Note 2:    Even though subitem (2) mentions binding rules of conduct, it is expected that binding rules of conduct will only be made on an occasional basis.

(3)        Section 152AY of the Trade Practices Act 1974 as amended by this Part does not apply in relation to compliance by the carrier or carriage service provider with the standard access obligations.

156  Transitional—hindering the fulfilment of an obligation imposed by an arbitration determination

            In addition to its effect apart from this item, section 152EF of the Trade Practices Act 1974 as amended by this Part also has the effect it would have if the reference in paragraph (1)(a) of that section to a standard access obligation included a reference to an obligation imposed by a determination made by the Commission under Division 8 of Part XIC of the Trade Practices Act 1974.

157  Transitional—regulations

The Governor‑General may make regulations in relation to transitional matters arising out of the amendments made by this Part.


 

Part 3Anti‑competitive conduct

Division 1—Amendments

Trade Practices Act 1974

158  At the end of section 151AF (before the note)

Add:

                   ; (d)  content services.

159  Subsections 151AKA(9) and (10)

Repeal the subsections (including the note), substitute:

Procedural fairness

             (9)  The Commission is not required to observe any requirements of procedural fairness in relation to the issue of a Part A competition notice.

Note:          For the effect of a Part A competition notice, see subsections 151BY(3), 151CB(3), 151CC(3) and 151CE(5).

Division 2—Application

160  Application—competition notices

The amendment of section 151AKA of the Trade Practices Act 1974 made by this Part applies in relation to Part A competition notices issued after the commencement of this item.


 

Part 4Universal service regime

Telecommunications (Consumer Protection and Service Standards) Act 1999

161  Subsection 5(2)

Insert:

payphone carriage service means a carriage service supplied by means of a payphone.

162  Subsection 5(2)

Insert:

price‑related terms and conditions means terms and conditions relating to price or a method of ascertaining price.

163  Subsection 5(2)

Insert:

VOIP service means a carriage service that enables a voice call to originate on customer equipment by means of the internet protocol.

164  After section 6

Insert:

6A  When a standard telephone service is supplied in fulfilment of the universal service obligation

Mobile and VOIP services

             (1)  For the purposes of this Act, if:

                     (a)  a standard telephone service is supplied, or proposed to be supplied, to a customer by a primary universal service provider; and

                     (b)  the service is:

                              (i)  a public mobile telecommunications service; or

                             (ii)  a VOIP service;

the service is taken not to be supplied in fulfilment of the universal service obligation unless, before the customer entered into an agreement with the primary universal service provider for the supply of the service:

                     (c)  the provider notified the customer, in writing, that the service is supplied in fulfilment of the universal service obligation; and

                     (d)  the notice complied with such requirements (if any) as are specified in a determination under subsection (2).

             (2)  The ACMA may, by legislative instrument, determine requirements for the purposes of paragraph (1)(d).

Other services

             (3)  For the purposes of this Act, if:

                     (a)  a standard telephone service (the relevant service) is supplied, or proposed to be supplied, to a customer by a primary universal service provider; and

                     (b)  the relevant service is not:

                              (i)  a public mobile telecommunications service; or

                             (ii)  a VOIP service;

the relevant service is taken not to be supplied in fulfilment of the universal service obligation if, before the customer entered into an agreement with the primary universal service provider for the supply of the relevant service:

                     (c)  the customer was given the option of being supplied with another standard telephone service by the provider on the basis that the other standard telephone service would be supplied in fulfilment of the universal service obligation; and

                     (d)  the customer has, by written notice given to the provider, acknowledged that the relevant service is not supplied in fulfilment of the universal service obligation; and

                     (e)  the notice complied with such requirements (if any) as are specified in a determination under subsection (4).

             (4)  The ACMA may, by legislative instrument, determine requirements for the purposes of paragraph (3)(e).

165  After section 8B

Insert:

8BA  Special meaning of standard telephone service

             (1)  A reference in this Part to a standard telephone service is a reference to a standard telephone service (within the meaning of section 6) that has the characteristics (if any) specified in a determination under subsection (2).

             (2)  The Minister may, by legislative instrument, determine specified characteristics for the purposes of subsection (1).

166  Subsections 9(2) and (3)

Repeal the subsections, substitute:

             (2)  The obligation mentioned in paragraph (1)(a) includes the obligation to supply standard telephone services to people in Australia on request.

          (2A)  The obligation mentioned in paragraph (1)(b) includes the obligation to supply, install and maintain payphones in Australia.

          (2B)  The obligation mentioned in paragraph (1)(c) includes the obligation to supply prescribed carriage services to people in Australia on request.

          (2C)  An obligation does not arise under paragraph (1)(a) or subsection (2) in relation to the supply of a standard telephone service to a person on request unless the request complies with the requirements (if any) set out in a determination under subsection (2D).

          (2D)  The Minister may, by legislative instrument, determine requirements for the purposes of subsection (2C).

           (2E)  An obligation does not arise under paragraph (1)(a) or subsection (2) in relation to the supply of a standard telephone service in the circumstances (if any) specified in a determination under subsection (3).

             (3)  The Minister may, by legislative instrument, determine circumstances for the purposes of subsection (2E).

167  Subsection 9(4)

Omit “(2)(a)”, substitute “(1)(a) or subsection (2)”.

168  Subsection 9(5)

Omit “(2)(c)”, substitute “(1)(c) or subsection (2B)”.

169  Subsection 9(6)

Omit “(2)(a)”, substitute “(1)(a) or subsection (2)”.

170  Section 9A

Repeal the section, substitute:

9A  Reasonable accessibility of prescribed carriage services

             (1)  The Minister may determine in writing, for the purpose of paragraph 9(1)(c), what is, or is not, necessary to ensure that prescribed carriage services are reasonably accessible as mentioned in that paragraph.

             (2)  A determination under subsection (1) is a legislative instrument.

171  Subsection 9B(1)

Omit “(1)” (first occurring).

172  Subsection 9B(1)

Omit “Unless the Minister makes a determination under subsection (2), each”, substitute “Each”.

173  Subsections 9B(2), (3) and (4)

Repeal the subsections.

174  Subsection 12C(1)

Omit “take all reasonable steps to”.

175  After Subdivision B of Division 5 of Part 2

Insert:

Subdivision BAStandard telephone service requirements

12EB  Performance standards

Determination

             (1)  The Minister may make a written determination setting out standards to be complied with by a primary universal service provider in relation to any or all of the following matters:

                     (a)  the terms and conditions of the supply of a standard telephone service to a customer, other than price‑related terms and conditions;

                     (b)  the reliability of a standard telephone service supplied to a customer;

                     (c)  the supply of a temporary standard telephone service to a customer;

                     (d)  the maximum period within which a primary universal service provider must supply a standard telephone service following the making of a request by a prospective customer;

                     (e)  the maximum period within which a primary universal service provider must rectify a fault or service difficulty relating to a standard telephone service following the making of a report by a customer about the fault or service difficulty;

                      (f)  any other matter concerning the supply, or proposed supply, of a standard telephone service to a customer or prospective customer.

             (2)  A determination under subsection (1) may be of general application or may be limited as provided in the determination.

             (3)  Subsection (2) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

Compliance

             (4)  A primary universal service provider must comply with a standard in force under subsection (1).

Determination prevails over inconsistent instruments

             (5)  Each of the following instruments:

                     (a)  an approved policy statement for a primary universal service provider;

                     (b)  an approved standard marketing plan for a primary universal service provider;

has no effect to the extent to which the instrument is inconsistent with a determination in force under subsection (1).

Service supplied in fulfilment of the universal service obligation

             (6)  This section does not apply to a standard telephone service unless the service is supplied, or proposed to be supplied, in fulfilment of the universal service obligation.

Note:          See also section 6A (when a standard telephone service is supplied in fulfilment of the universal service obligation).

Determination is a legislative instrument

             (7)  A determination under subsection (1) is a legislative instrument.

12EC  Performance benchmarks

Determination

             (1)  The Minister may make a written determination setting out standards to be complied with by a primary universal service provider in relation to any or all of the following matters:

                     (a)  the terms and conditions of the supply of a standard telephone service to a customer, other than price‑related terms and conditions;

                     (b)  the reliability of a standard telephone service supplied to a customer;

                     (c)  the supply of a temporary standard telephone service to a customer;

                     (d)  the maximum period within which a primary universal service provider must supply a standard telephone service following the making of a request by a prospective customer;

                     (e)  the maximum period within which a primary universal service provider must rectify a fault or service difficulty relating to a standard telephone service following the making of a report by a customer about the fault or service difficulty;

                      (f)  any other matter concerning the supply, or proposed supply, of a standard telephone service to a customer or prospective customer.

             (2)  A determination under subsection (1) may be of general application or may be limited as provided in the instrument.

             (3)  Subsection (2) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

Determination prevails over inconsistent instruments

             (4)  Each of the following instruments:

                     (a)  an approved policy statement for a primary universal service provider;

                     (b)  an approved standard marketing plan for a primary universal service provider;

has no effect to the extent to which the instrument is inconsistent with a determination in force under subsection (1).

Determination is a legislative instrument

             (5)  A determination under subsection (1) is a legislative instrument.

Performance benchmarks

             (6)  The Minister may, by legislative instrument, set minimum benchmarks in relation to compliance by a primary universal service provider with a standard in force under subsection (1).

             (7)  An instrument under subsection (6) may be of general application or may be limited as provided in the instrument.

             (8)  Subsection (7) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

Provider must meet or exceed minimum benchmarks

             (9)  A primary universal service provider must meet or exceed a minimum benchmark set by an instrument under subsection (6).

Clause 1 of Schedule 1 to the Telecommunications Act 1997 does not apply to a breach of a standard

           (10)  Clause 1 of Schedule 1 to the Telecommunications Act 1997 does not apply to a contravention of a standard in force under subsection (1).

Note:          Clause 1 of Schedule 1 to the Telecommunications Act 1997 requires carriers to comply with this Act.

Clause 1 of Schedule 2 to the Telecommunications Act 1997 does not apply to a breach of a standard

           (11)  Clause 1 of Schedule 2 to the Telecommunications Act 1997 does not apply to a contravention of a standard in force under subsection (1).

Note:          Clause 1 of Schedule 2 to the Telecommunications Act 1997 requires carriage service providers to comply with this Act.

Subdivision BBPayphone requirements

12ED  Performance standards

Determination

             (1)  The Minister may make a written determination setting out standards to be complied with by a primary universal service provider in relation to any or all of the following matters:

                     (a)  the characteristics of a payphone carriage service;

                     (b)  the supply, installation or maintenance of a payphone;

                     (c)  the supply of a payphone carriage service;

                     (d)  the reliability of a payphone;

                     (e)  the reliability of a payphone carriage service;

                      (f)  the maximum period within which a primary universal service provider must rectify a fault or service difficulty relating to a payphone following the making of a report about a fault or service difficulty;

                     (g)  the maximum period within which a primary universal service provider must rectify a fault or service difficulty relating to a payphone carriage service following the making of a report about a fault or service difficulty;

                     (h)  the handling of requests for the removal of a payphone;

                      (i)  any other matter concerning:

                              (i)  the supply, installation or maintenance of a payphone; or

                             (ii)  the supply of a payphone carriage service.

             (2)  A determination under subsection (1) may be of general application or may be limited as provided in the determination.

             (3)  Subsection (2) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

Compliance

             (4)  A primary universal service provider must comply with a determination under subsection (1).

Determination prevails over inconsistent instruments

             (5)  Each of the following instruments:

                     (a)  an approved policy statement for a primary universal service provider;

                     (b)  an approved standard marketing plan for a primary universal service provider;

has no effect to the extent to which the instrument is inconsistent with a determination in force under subsection (1).

Determination is a legislative instrument

             (6)  A determination under subsection (1) is a legislative instrument.

12EE  Performance benchmarks

Determination

             (1)  The Minister may make a written determination setting out standards to be complied with by a primary universal service provider in relation to any or all of the following matters:

                     (a)  the characteristics of a payphone carriage service;

                     (b)  the supply, installation or maintenance of a payphone;

                     (c)  the supply of a payphone carriage service;

                     (d)  the reliability of a payphone;

                     (e)  the reliability of a payphone carriage service;

                      (f)  the maximum period within which a primary universal service provider must rectify a fault or service difficulty relating to a payphone following the making of a report about a fault or service difficulty;

                     (g)  the maximum period within which a primary universal service provider must rectify a fault or service difficulty relating to a payphone carriage service following the making of a report about a fault or service difficulty;

                     (h)  the handling of requests for the removal of a payphone;

                      (i)  any other matter concerning:

                              (i)  the supply, installation or maintenance of a payphone; or

                             (ii)  the supply of a payphone carriage service.

             (2)  A determination under subsection (1) may be of general application or may be limited as provided in the determination.

             (3)  Subsection (2) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

Determination prevails over inconsistent instruments

             (4)  Each of the following instruments:

                     (a)  an approved policy statement for a primary universal service provider;

                     (b)  an approved standard marketing plan for a primary universal service provider;

has no effect to the extent to which the instrument is inconsistent with a determination in force under subsection (1).

Determination is a legislative instrument

             (5)  A determination under subsection (1) is a legislative instrument.

Performance benchmarks

             (6)  The Minister may, by legislative instrument, set minimum benchmarks in relation to compliance by a primary universal service provider with a standard in force under subsection (1).

             (7)  An instrument under subsection (6) may be of general application or may be limited as provided in the instrument.

             (8)  Subsection (7) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

Provider must meet or exceed minimum benchmarks

             (9)  A primary universal service provider must meet or exceed a minimum benchmark set by an instrument under subsection (6).

Clause 1 of Schedule 1 to the Telecommunications Act 1997 does not apply to a breach of a standard

           (10)  Clause 1 of Schedule 1 to the Telecommunications Act 1997 does not apply to a contravention of a standard in force under subsection (1).

Note:          Clause 1 of Schedule 1 to the Telecommunications Act 1997 requires carriers to comply with this Act.

Clause 1 of Schedule 2 to the Telecommunications Act 1997 does not apply to a breach of a standard

           (11)  Clause 1 of Schedule 2 to the Telecommunications Act 1997 does not apply to a contravention of a standard in force under subsection (1).

Note:          Clause 1 of Schedule 2 to the Telecommunications Act 1997 requires carriage service providers to comply with this Act.

12EF  Rules about the location of payphones

             (1)  The Minister may make a determination setting out rules to be complied with by a primary universal service provider in relation to the places or areas in which payphones are to be located.

Compliance

             (2)  A primary universal service provider must comply with a determination under subsection (1).

             (3)  If a primary universal service provider complies with a determination under subsection (1), the provider is taken to have complied with an obligation under paragraph 9(1)(b) or subsection 9(2A), to the extent to which the obligation relates to the location of payphones.

Determination prevails over inconsistent instruments

             (4)  Each of the following instruments:

                     (a)  an approved policy statement for a primary universal service provider;

                     (b)  an approved standard marketing plan for a primary universal service provider;

has no effect to the extent to which the instrument is inconsistent with a determination in force under subsection (1).

Determination is a legislative instrument

             (5)  A determination under subsection (1) is a legislative instrument.

12EG  Rules about the process for public consultation on the location or removal of payphones

             (1)  The Minister may make a determination setting out rules to be complied with by a primary universal service provider in relation to the process for public consultation on the location or removal of payphones.

             (2)  The Minister must ensure that a determination under subsection (1) provides that, if:

                     (a)  a primary universal service provider makes a decision to remove a payphone from a particular location; and

                     (b)  that payphone is the only payphone at that location;

then:

                     (c)  the provider must undertake a process for public consultation on the removal of that payphone; and

                     (d)  if, in accordance with that process, a person makes a submission to the provider—the provider must notify the person, in writing, of the outcome of that process.

Compliance

             (3)  A primary universal service provider must comply with a determination under subsection (1).

Determination prevails over inconsistent instruments

             (4)  Each of the following instruments:

                     (a)  an approved policy statement for a primary universal service provider;

                     (b)  an approved standard marketing plan for a primary universal service provider;

has no effect to the extent to which the instrument is inconsistent with a determination in force under subsection (1).

Determination is a legislative instrument

             (5)  A determination under subsection (1) is a legislative instrument.

12EH  Rules about the process for resolution of complaints about the location or removal of payphones

             (1)  The Minister may make a determination setting out rules to be complied with by a primary universal service provider in relation to the process for resolution of complaints about the location or removal of payphones.

Compliance

             (2)  A primary universal service provider must comply with a determination under subsection (1).

Determination prevails over inconsistent instruments

             (3)  Each of the following instruments:

                     (a)  an approved policy statement for a primary universal service provider;

                     (b)  an approved standard marketing plan for a primary universal service provider;

has no effect to the extent to which the instrument is inconsistent with a determination in force under subsection (1).

Determination is a legislative instrument

             (4)  A determination under subsection (1) is a legislative instrument.

12EI  Directions by the ACMA about the removal of payphones

Scope

             (1)  This section applies if:

                     (a)  a primary universal service provider has made a decision to remove a payphone from a particular location; and

                     (b)  a person notifies the ACMA, in writing, that the person objects to the removal; and

                     (c)  the ACMA is satisfied that:

                              (i)  the removal would breach, or has breached, a determination under subsection 12EF(1); or

                             (ii)  the provider has breached a determination under subsection 12EG(1) in relation to the removal.

Direction

             (2)  If the payphone has not been removed, the ACMA may, by written notice given to the provider, direct the provider not to remove the payphone from that location.

             (3)  If the payphone has been removed, the ACMA may, by written notice given to the provider, direct the provider:

                     (a)  to supply and install a payphone at that location; and

                     (b)  to do so within the period specified in the notice.

             (4)  A period specified under paragraph (3)(b) must not be shorter than 30 days after the notice is given.

             (5)  A direction under subsection (2) or (3) must not be inconsistent with a determination under subsection 12EF(1).

Compliance

             (6)  A primary universal service provider must comply with a direction under subsection (2) or (3).

Direction is not a legislative instrument

             (7)  A direction under subsection (2) or (3) is not a legislative instrument.

176  Subsection 150(3)

Repeal the subsection.


 

Part 5Customer service guarantee

Telecommunications (Consumer Protection and Service Standards) Act 1999

177  Before section 113

Insert:

Division 1Introduction

178  Section 113

Before:

     The Telecommunications Industry Ombudsman may issue an evidentiary certificate in relation to a contravention of a performance standard.

insert:

     The Minister may make performance standards to be complied with by carriage service providers in relation to the supply of wholesale carriage services.

     The Minister may set minimum benchmarks in relation to compliance by carriage service providers with performance standards.

179  After section 114

Insert:

114A  Wholesale carriage service and wholesale customer

                   For the purposes of this Part, if:

                     (a)  a carriage service provider (the first provider) supplies, or proposes to supply, a carriage service to another carriage service provider (the second provider); and

                     (b)  the carriage service is, or is to be, supplied to the second provider in order that the second provider can provide a carriage service;

then:

                     (c)  the carriage service that is, or is to be, supplied to the second provider is a wholesale carriage service; and

                     (d)  the second provider is a wholesale customer of the first provider.

Division 2Retail performance standards and benchmarks

180  After subsection 115(2)

Insert:

          (2A)  A standard under this section does not apply in relation to matter concerning the supply, or proposed supply, of a wholesale carriage service.

181  Subsections 115(5) and (6)

Repeal the subsections, substitute:

             (5)  An instrument under subsection (1) is a legislative instrument.

182  After section 117A

Insert:

117B  Performance benchmarks

             (1)  The Minister may, by legislative instrument, set minimum benchmarks in relation to compliance by carriage service providers with a standard in force under section 115.

             (2)  An instrument under this section may be of general application or may be limited as provided in the instrument.

             (3)  Subsection (2) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

117C  Compliance with performance benchmarks

Scope

             (1)  This section applies to a carriage service provider if an instrument under section 117B is applicable to the provider.

Provider must meet or exceed minimum benchmark

             (2)  The carriage service provider must meet or exceed a minimum benchmark set by the instrument.

Division 3Wholesale performance standards and benchmarks

117D  Performance standards

             (1)  The Minister may, by legislative instrument, make standards to be complied with by carriage service providers in relation to a matter that:

                     (a)  concerns the supply, or proposed supply, of wholesale carriage services to a wholesale customer; and

                     (b)  is capable of affecting the capacity or ability of a wholesale customer to comply with a standard in force under section 115 in relation to a matter concerning the supply, or proposed supply, of a carriage service by the wholesale customer.

             (2)  A standard under this section may be of general application or may be limited as provided in the standard.

             (3)  Subsection (2) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

117E  Performance benchmarks

             (1)  The Minister may, by legislative instrument, set minimum benchmarks in relation to compliance by carriage service providers with a standard in force under section 117D.

             (2)  An instrument under this section may be of general application or may be limited as provided in the instrument.

             (3)  Subsection (2) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

117F  Compliance with performance benchmarks

Scope

             (1)  This section applies to a carriage service provider if an instrument under section 117E is applicable to the provider.

Provider must meet or exceed minimum benchmark

             (2)  The carriage service provider must meet or exceed a minimum benchmark set by the instrument.

Division 4Other provisions

183  At the end of subsection 118(1)

Add “or 117D”.

184  At the end of paragraph 118(3)(a)

Add “or 117D”.

185  Subsection 120(4)

Repeal the subsection, substitute:

             (4)  A waiver must be in the form specified in the instrument.

             (5)  The form must include a statement that summarises the consequences of the waiver.

             (6)  A waiver must not be set out in a standard form of agreement formulated by a carriage service provider for the purposes of section 479 of the Telecommunications Act 1997.

             (7)  A customer is not entitled to waive, in whole or in part, the customer’s protection and rights under this Part in relation to a particular standard telephone service supplied, or proposed to be supplied, by the carriage service provider concerned if the service is supplied, or proposed to be supplied, in fulfilment of the universal service obligation.

             (8)  An instrument under subsection (1) is a legislative instrument.

186  After section 120

Insert:

120A  Carriage service may be supplied on condition that the customer waives the customer service guarantee

                   This Act does not prevent, and is taken never to have prevented, a carriage service provider from supplying, or proposing to supply, a particular carriage service to a customer on condition that the customer waives, in accordance with section 120, the customer’s protection and rights under this Part in relation to the carriage service.

187  Section 122

After “115”, insert “or 117D”.

188  After section 122

Insert:

122A  Failure to meet or exceed a minimum benchmark is not an offence

                   A contravention of section 117C or 117F is not an offence.

189  At the end of section 123 (before the note)

Add “or 117D”.

190  Application—waiver

The amendments of section 120 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 made by this Part apply in relation to a waiver given after the commencement of this item.


 

Part 6Priority assistance

Telecommunications Act 1997

191  At the end of Schedule 2

Add:

Part 6Priority assistance

  

16  Simplified outline

                   The following is a simplified outline of this Part:

     This Part deals with priority assistance for people with life‑threatening medical conditions.

     A carriage service provider must comply with the priority assistance industry code.

     If a carriage service provider receives an inquiry from a prospective residential customer about the supply of a standard telephone service, and the provider does not offer priority assistance, the provider must:

               (a)     inform the prospective residential customer that the provider does not offer priority assistance in connection with the service; and

               (b)     inform the prospective residential customer of the names of one or more carriage service providers from whom the prospective residential customer can obtain priority assistance.

17  Priority assistance industry code

                   For the purposes of this Part, the priority assistance industry code is:

                     (a)  the code that is:

                              (i)  entitled Priority Assistance for Life Threatening Medical Conditions; and

                             (ii)  registered under Part 6; or

                     (b)  if that code is replaced by another code registered under Part 6—the replacement code.

18  Compliance with the priority assistance industry code

                   A carriage service provider must comply with the priority assistance industry code to the extent (if any) to which the code is applicable to the provider.

19  Information for prospective residential customers of a carriage service provider who does not offer priority assistance

Scope

             (1)  This clause applies to a carriage service provider if:

                     (a)  the provider receives an inquiry from a prospective residential customer about the supply of a standard telephone service; and

                     (b)  the provider does not offer priority assistance in connection with the service.

Requirement

             (2)  The provider must:

                     (a)  inform the prospective residential customer that the provider does not offer priority assistance in connection with the service; and

                     (b)  inform the prospective residential customer of the names of one or more carriage service providers from whom the prospective residential customer can obtain priority assistance in connection with a standard telephone service.

Definition

             (3)  In this clause:

priority assistance has the same meaning as in the priority assistance industry code.

20  Requirements for Telstra

                   This Part does not impose a requirement on Telstra if clause 19 of the Carrier Licence Conditions (Telstra Corporation Limited) Declaration 1997 is in force.

Note:          Clause 19 of the Carrier Licence Conditions (Telstra Corporation Limited) Declaration 1997 is about Telstra’s priority assistance obligations.


 

Part 7Infringement notices etc.

Division 1—Amendments

Telecommunications Act 1997

192  Section 7

Insert:

authorised infringement notice officer means:

                     (a)  the Chair of the ACMA; or

                     (b)  a member of the staff of the ACMA appointed under section 572L.

193  Section 7

Insert:

infringement notice means an infringement notice under section 572E.

194  Section 7

Insert:

penalty unit has the meaning given by section 4AA of the Crimes Act 1914.

195  After Part 31A

Insert:

Part 31BInfringement notices for contraventions of civil penalty provisions

  

572D  Simplified outline

                   The following is a simplified outline of this Part:

•      This Part sets up a system of infringement notices for contraventions of civil penalty provisions as an alternative to the institution of court proceedings.

572E  When an infringement notice can be given

             (1)  If an authorised infringement notice officer has reasonable grounds to believe that a person has contravened a particular civil penalty provision, the authorised infringement notice officer may give to the person an infringement notice relating to the contravention.

Note:          See also section 572M (guidelines).

Time limit

             (2)  An infringement notice must be given within 12 months after the day on which the contravention is alleged to have taken place.

Carrier licence conditions and service provider rules

             (3)  If a person’s conduct constitutes a contravention of:

                     (a)  section 68 or 101; and

                     (b)  one or more other civil penalty provisions;

an infringement notice must not be given to the person in relation to the contravention of section 68 or 101, as the case may be.

             (4)  If:

                     (a)  a person’s conduct constitutes a contravention of section 68 or 101; and

                     (b)  the contravention consists of a breach of:

                              (i)  the carrier licence condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 369; or

                             (ii)  a carrier licence condition set out in Part 3 or 4 of Schedule 1; or

                            (iii)  a carrier licence condition set out in Part 9 of Schedule 1; or

                            (iv)  the carrier licence condition set out in clause 84 of Schedule 1; or

                             (v)  the service provider rule set out in Part 1 of Schedule 2 in so far as that rule relates to section 369; or

                            (vi)  the carrier licence condition set out in section 152AZ of the Trade Practices Act 1974; or

                           (vii)  the service provider rule set out in subsection 152BA(2) of the Trade Practices Act 1974; or

                           (viii)  the carrier licence condition set out in section 152BCO of the Trade Practices Act 1974; or

                            (ix)  the service provider rule set out in subsection 152BCP(2) of the Trade Practices Act 1974; or

                             (x)  the carrier licence condition set out in section 152BDF of the Trade Practices Act 1974; or

                            (xi)  the service provider rule set out in subsection 152BDG(2) of the Trade Practices Act 1974; or

                           (xii)  the carrier licence condition set out in section 152BEC of the Trade Practices Act 1974; or

                           (xiii)  the service provider rule set out in subsection 152BED(2) of the Trade Practices Act 1974;

an infringement notice must not be given to the person in relation to the contravention of section 68 or 101, as the case may be.

             (5)  If:

                     (a)  a person’s conduct constitutes a contravention of section 68 or 101; and

                     (b)  the contravention consists of a breach of:

                              (i)  a carrier licence condition set out in a provision of this Act other than Part 1 of Schedule 1; or

                             (ii)  a carrier licence condition set out in a provision of a declaration in force under section 63; or

                            (iii)  a service provider rule set out in a provision of this Act other than Part 1 of Schedule 2; or

                            (iv)  a service provider rule set out in a provision of a determination in force under section 99;

an infringement notice must not be given to the person in relation to the contravention of section 68 or 101, as the case may be, unless the provision mentioned in subparagraph (b)(i), (ii), (iii) or (iv), as the case may be:

                     (c)  is a listed infringement notice provision; and

                     (d)  has been a listed infringement notice provision for at least 3 months before the day on which the contravention is alleged to have taken place.

Note:          For listed infringement notice provision, see subsection (7).

             (6)  If:

                     (a)  a person’s conduct constitutes a contravention of section 68 or 101; and

                     (b)  the contravention consists of a breach of:

                              (i)  the carrier licence condition set out in Part 1 of Schedule 1; or

                             (ii)  the service provider rule set out in Part 1 of Schedule 2; and

                     (c)  the contravention consists of a breach of another provision of this Act;

an infringement notice must not be given to the person in relation to the contravention of section 68 or 101, as the case may be, unless:

                     (d)  the other provision is a listed infringement notice provision; and

                     (e)  the other provision has been a listed infringement notice provision for at least 3 months before the day on which the contravention is alleged to have taken place.

Note:          For listed infringement notice provision, see subsection (7).

Listed infringement notice provision

             (7)  The ACMA may, by legislative instrument, declare that:

                     (a)  a specified provision of this Act; or

                     (b)  a specified provision of a declaration in force under section 63; or

                     (c)  a specified provision of a determination in force under section 99;

is a listed infringement notice provision for the purposes of this section.

Definition

             (8)  In this section:

this Act includes:

                     (a)  the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act; and

                     (b)  Chapter 5 of the Telecommunications (Interception and Access) Act 1979.

572F  Matters to be included in an infringement notice

             (1)  An infringement notice must:

                     (a)  set out the name of the person to whom the notice is given; and

                     (b)  set out the name of the authorised infringement notice officer who gave the notice; and

                     (c)  set out brief details of the alleged contravention; and

                     (d)  contain a statement to the effect that the matter will not be dealt with by the Federal Court if the penalty specified in the notice is paid to the ACMA, on behalf of the Commonwealth, within:

                              (i)  28 days after the notice is given; or

                             (ii)  if the ACMA allows a longer period—that longer period; and

                     (e)  give an explanation of how payment of the penalty is to be made; and

                      (f)  set out such other matters (if any) as are specified by the regulations.

Note:          For the amount of penalty, see section 572G.

             (2)  For the purposes of paragraph (1)(c), the brief details must include the following information in relation to the alleged contravention:

                     (a)  the date of the alleged contravention;

                     (b)  the civil penalty provision that was allegedly contravened.

572G  Amount of penalty

Infringement notice given to a body corporate

             (1)  The penalty to be specified in an infringement notice given to a body corporate must be a pecuniary penalty equal to:

                     (a)  if the alleged contravention is of a kind specified in a determination under subsection (2)—the number of penalty units specified in the determination in relation to that kind of contravention; or

                     (b)  otherwise—60 penalty units.

             (2)  For the purposes of paragraph (1)(a), the Minister may, by legislative instrument, make a determination that:

                     (a)  sets out one or more kinds of contraventions of section 68 or 101; and

                     (b)  for each kind of contravention set out in the determination, specifies a particular number of penalty units.

             (3)  The number of penalty units specified in a determination for a particular kind of contravention must not exceed 18,000.

Infringement notice given to a person other than a body corporate

             (4)  The penalty to be specified in an infringement notice given to a person other than a body corporate must be a pecuniary penalty equal to 12 penalty units.

572H  Withdrawal of an infringement notice

Scope

             (1)  This section applies if an infringement notice is given to a person.

Withdrawal

             (2)  An authorised infringement notice officer may, by written notice (the withdrawal notice) given to the person, withdraw the infringement notice.

             (3)  To be effective, the withdrawal notice must be given to the person within 28 days after the infringement notice was given.

Refund of penalty if infringement notice withdrawn

             (4)  If:

                     (a)  the penalty specified in the infringement notice is paid; and

                     (b)  the infringement notice is withdrawn after the penalty is paid;

the Commonwealth is liable to refund the penalty.

572J  What happens if the penalty is paid

Scope

             (1)  This section applies if:

                     (a)  an infringement notice relating to an alleged contravention is given to a person; and

                     (b)  the penalty is paid in accordance with the infringement notice; and

                     (c)  the infringement notice is not withdrawn.

What happens

             (2)  Any liability of the person for the alleged contravention is discharged.

             (3)  Proceedings under Part 31 may not be brought against the person for the alleged contravention.

572K  Effect of this Part on civil proceedings

                   This Part does not:

                     (a)  require an infringement notice to be given in relation to an alleged contravention; or

                     (b)  affect the liability of a person to have proceedings under Part 31 brought against the person for an alleged contravention if:

                              (i)  the person does not comply with an infringement notice relating to the contravention; or

                             (ii)  an infringement notice relating to the contravention is not given to the person; or

                            (iii)  an infringement notice relating to the contravention is given to the person and subsequently withdrawn; or

                     (c)  limit the Federal Court’s discretion to determine the amount of a penalty to be imposed on a person who is found in proceedings under Part 31 to have contravened a civil penalty provision.

572L  Appointment of authorised infringement notice officer

             (1)  The ACMA may, by writing, appoint a member of the staff of the ACMA as an authorised infringement notice officer for the purposes of this Part.

             (2)  The ACMA must not appoint a person under subsection (1) unless the person:

                     (a)  is an SES employee or acting SES employee; or

                     (b)  holds, or is acting in, an Executive Level 1 or 2 position or an equivalent position.

Note:          SES employee is defined in section 17AA of the Acts Interpretation Act 1901.

572M  Guidelines relating to infringement notices

             (1)  In exercising a power conferred on an authorised infringement notice officer by this Part, the officer must have regard to any relevant guidelines in force under subsection (2).

Formulation of guidelines

             (2)  The ACMA may, by legislative instrument, formulate guidelines for the purposes of subsection (1).

Note:          For consultation requirements, see Part 3 of the Legislative Instruments Act 2003.

             (3)  The ACMA must ensure that guidelines are in force under subsection (2) at all times after the commencement of this section.

572N  Regulations

                   The regulations may make further provision in relation to infringement notices.

Division 2—Application

196  Application—infringement notices

Section 572E of the Telecommunications Act 1997 as amended by this Part applies in relation to an alleged contravention of a civil penalty provision that occurs after the commencement of this item.


 

Part 8Civil penalty provisions

Telecommunications Act 1997

197  Section 7 (definition of civil penalty provision)

Repeal the definition, substitute:

civil penalty provision means:

                     (a)  a provision of this Act that is declared by this Act to be a civil penalty provision; or

                     (b)  a provision of the Telecommunications (Consumer Protection and Service Standards) Act 1999 that is declared by that Act to be a civil penalty provision.