Contents
Part 1—Introduction 1
1............................ Short title............................................................................ 1
2............................ Commencement.................................................................. 1
3............................ Objects................................................................................ 1
4............................ Regulatory policy................................................................ 3
5............................ Simplified outline................................................................ 3
6............................ Main index.......................................................................... 7
7............................ Definitions.......................................................................... 8
8............................ Crown to be bound........................................................... 23
9............................ Extra‑territorial application................................................ 23
10.......................... Extension to external Territories....................................... 23
11.......................... Extension to offshore areas............................................... 23
11A....................... Application of the Criminal Code..................................... 24
12.......................... Act subject to Radiocommunications Act......................... 24
13.......................... Continuity of partnerships................................................ 25
14.......................... Controlled carriage services, controlled networks and controlled facilities 25
15.......................... Content service................................................................. 26
16.......................... Listed carriage services..................................................... 27
18.......................... Access to an emergency call service................................. 28
19.......................... Recognised person who operates an emergency call service 28
20.......................... Customer cabling.............................................................. 28
21.......................... Customer equipment......................................................... 29
22.......................... Customer cabling and customer equipment—boundary of a telecommunications network 30
23.......................... Immediate circle................................................................ 32
24.......................... Extended meaning of use.................................................. 37
Part 2—Network units 38
Division 1—Simplified outline 38
25.......................... Simplified outline.............................................................. 38
Division 2—Basic definition 39
26.......................... Single line links connecting distinct places in Australia.... 39
27.......................... Multiple line links connecting distinct places in Australia. 39
28.......................... Designated radiocommunications facility.......................... 40
29.......................... Facilities specified in Ministerial determination................ 41
Division 3—Related definitions 42
30.......................... Line links.......................................................................... 42
31.......................... Designated radiocommunications facility.......................... 42
32.......................... Public mobile telecommunications service........................ 44
33.......................... Intercell hand‑over functions............................................ 45
34.......................... When a base station is part of a terrestrial radiocommunications customer access network 46
35.......................... Fixed radiocommunications link....................................... 47
Division 4—Distinct places 49
36.......................... Distinct places—basic rules.............................................. 49
37.......................... Properties.......................................................................... 49
38.......................... Combined areas................................................................ 50
39.......................... Principal user of a property............................................... 51
40.......................... Eligible combined areas.................................................... 51
Part 3—Carriers 52
Division 1—Simplified outline 52
41.......................... Simplified outline.............................................................. 52
Division 2—Prohibitions relating to carriers 53
42.......................... Network unit not to be used without carrier licence or nominated carrier declaration 53
43.......................... Continuing offences.......................................................... 54
44.......................... Supply to the public.......................................................... 54
45.......................... Exemption—defence......................................................... 56
46.......................... Exemption—intelligence operations.................................. 57
47.......................... Exemption—transport authorities..................................... 57
48.......................... Exemption—broadcasting services................................... 58
49.......................... Exemption—electricity supply bodies............................... 60
50.......................... Exemption—line links authorised by or under previous laws 61
51.......................... Exemption—Ministerial determination............................. 63
Division 3—Carrier licences 65
52.......................... Applications for carrier licence......................................... 65
53.......................... Form of application etc..................................................... 65
53A....................... Copy of application to be given to Communications Access Co‑ordinator 65
54.......................... Application to be accompanied by charge......................... 65
55.......................... Further information........................................................... 66
56.......................... Grant of licence................................................................. 66
56A....................... Consultation with Communications Access Co‑ordinator 66
57.......................... Carrier licence has effect subject to this Act...................... 68
58.......................... Refusal of carrier licence—disqualified applicant............. 68
58A....................... Refusal of carrier licence—security.................................. 71
59.......................... Time limit on licence decision........................................... 72
60.......................... Notification of refusal of application................................. 74
61.......................... Conditions of carrier licence specified in Schedule 1........ 74
62.......................... Condition of carrier licence set out in section 152AZ of the Competition and Consumer Act 2010 74
62A....................... Condition of carrier licence set out in section 152BCO of the Competition and Consumer Act 2010 75
62B........................ Condition of carrier licence set out in section 152BDF of the Competition and Consumer Act 2010 75
62C........................ Condition of carrier licence set out in section 152BEC of the Competition and Consumer Act 2010 75
62D....................... Condition of carrier licence set out in section 152CJC of the Competition and Consumer Act 2010 75
62E........................ Condition of carrier licence set out in section 37 of the National Broadband Network Companies Act 2011.......................................................................................... 76
63.......................... Conditions of carrier licence declared by Minister............ 76
64.......................... Consultation about declared licence conditions................. 77
65.......................... Conditions about foreign ownership or control................ 78
67.......................... Carrier licence conditions—special provisions................. 78
68.......................... Compliance with conditions.............................................. 79
69.......................... Remedial directions—breach of condition........................ 79
69AA.................... Remedial directions—breach of conditions relating to access 81
70.......................... Formal warnings—breach of condition............................ 82
71.......................... Surrender of carrier licence............................................... 85
72.......................... Cancellation of carrier licence........................................... 85
73.......................... Collection of charges relating to carrier licences............... 86
73A....................... Refund of application charge............................................ 88
74.......................... Collection of charges on behalf of the Commonwealth..... 89
75.......................... Cancellation of certain exemptions from charge................ 89
76.......................... Commonwealth not liable to charge.................................. 89
Division 4—Nominated carrier declarations 90
77.......................... Applications for nominated carrier declarations................ 90
78.......................... Application to be accompanied by charge etc.................... 90
79.......................... Form of application etc..................................................... 90
80.......................... Further information........................................................... 90
81.......................... Making a nominated carrier declaration............................ 91
81A....................... Obligations of nominated carrier....................................... 91
82.......................... Notification of refusal of application................................. 92
83.......................... Revocation of nominated carrier declaration..................... 92
Division 5—Register of nominated carrier declarations and carrier licences 94
84.......................... Register of nominated carrier declarations and carrier licences 94
Part 4—Service providers 95
Division 1—Simplified outline 95
85.......................... Simplified outline.............................................................. 95
Division 2—Service providers 96
86.......................... Service providers.............................................................. 96
Division 3—Carriage service providers 97
87.......................... Carriage service providers................................................ 97
88.......................... Supply to the public.......................................................... 99
89.......................... Exemption from definition—customers located on the same premises 100
90.......................... Exemption from definition—defence.............................. 100
91.......................... Exemption from definition—intelligence operations....... 101
92.......................... Exemption from definition—transport authorities........... 101
93.......................... Exemption from definition—broadcasting services........ 102
94.......................... Exemption from definition—electricity supply bodies.... 103
95.......................... Exemption from definition—Ministerial determination... 103
96.......................... Exemption from certain regulatory provisions—Ministerial determination 104
Division 4—Content service providers 105
97.......................... Content service providers............................................... 105
Division 5—Service provider rules 106
98.......................... Service provider rules..................................................... 106
99.......................... Service provider determinations...................................... 107
100........................ Exemptions from service provider rules......................... 108
101........................ Service providers must comply with service provider rules 108
102........................ Remedial directions—breach of service provider rules... 109
103........................ Formal warnings—breach of service provider rules....... 111
Part 5—Monitoring of the performance of carriers and carriage service providers 113
104........................ Simplified outline............................................................ 113
105........................ Monitoring of performance—annual report.................... 113
105A..................... Monitoring of performance—additional report............... 115
105C...................... Monitoring of breaches by Telstra of an undertaking about structural separation 116
Part 6—Industry codes and industry standards 117
Division 1—Simplified outline 117
106........................ Simplified outline............................................................ 117
Division 2—Interpretation 118
107........................ Industry codes................................................................ 118
108........................ Industry standards.......................................................... 118
108A..................... Electronic messaging service provider............................ 118
108B...................... Telecommunications industry......................................... 119
109........................ Telecommunications activity........................................... 119
109B...................... Telemarketing activity..................................................... 119
109C...................... Fax marketing activity..................................................... 121
110........................ Sections of the telecommunications industry.................. 123
110B...................... Sections of the telemarketing industry............................ 125
110C...................... Sections of the fax marketing industry............................ 125
111........................ Participants in a section of the telecommunications industry 126
111AA.................. Participants in a section of the telemarketing industry..... 126
111AB................... Participants in a section of the fax marketing industry.... 127
111B...................... Unsolicited commercial electronic messages................... 127
Division 3—General principles relating to industry codes and industry standards 128
112........................ Statement of regulatory policy........................................ 128
113........................ Examples of matters that may be dealt with by industry codes and industry standards 130
114........................ Industry codes and industry standards may confer powers on the Telecommunications Industry Ombudsman........................................................................................ 133
115........................ Industry codes and industry standards not to deal with certain design features and performance requirements........................................................................................ 133
116........................ Industry codes and industry standards not to deal with matters dealt with by codes and standards under Part 9 of the Broadcasting Services Act.................................... 135
116A..................... Industry codes and standards do not affect Privacy Act 1988 135
Division 4—Industry codes 136
117........................ Registration of industry codes........................................ 136
118........................ ACMA may request codes............................................. 138
119........................ Publication of notice where no body or association represents a section of the telecommunications industry, the telemarketing industry or the fax marketing industry 141
119A..................... Variation of industry codes............................................. 141
119B...................... Publication requirements for submissions...................... 144
120........................ Replacement of industry codes....................................... 147
121........................ Directions about compliance with industry codes........... 147
122........................ Formal warnings—breach of industry codes.................. 148
122A..................... De‑registering industry codes and provisions of industry codes 149
Division 5—Industry standards 150
123........................ ACMA may determine an industry standard if a request for an industry code is not complied with 150
124........................ ACMA may determine industry standard where no industry body or association formed 151
125........................ ACMA may determine industry standards where industry codes fail 152
125AA.................. ACMA must determine an industry standard if directed by the Minister 153
125A..................... ACMA must determine certain industry standards relating to the telemarketing industry 154
125B...................... ACMA must determine certain industry standards relating to the fax marketing industry 155
126........................ Industry standards not to be determined for certain privacy matters 156
128........................ Compliance with industry standards............................... 156
129........................ Formal warnings—breach of industry standards............ 157
130........................ Variation of industry standards....................................... 157
131........................ Revocation of industry standards.................................... 158
132........................ Public consultation on industry standards....................... 158
133........................ Consultation with ACCC and the Telecommunications Industry Ombudsman 159
134........................ Consultation with Information Commissioner................ 159
135........................ Consultation with consumer body.................................. 160
135A..................... Consultation with the States and Territories.................... 160
Division 6—Register of industry codes and industry standards 161
136........................ ACMA to maintain Register of industry codes and industry standards 161
Division 6A—Reimbursement of costs of development or variation of consumer‑related industry codes 162
136A..................... Application for eligibility for reimbursement of costs of development or variation of consumer‑related industry code................................................................................ 162
136B...................... Declaration of eligibility for reimbursement of costs of development or variation of consumer‑related industry code................................................................................ 163
136C...................... Reimbursement of costs of developing or varying consumer‑related industry code 165
136D..................... Costs—transactions between persons not at arm’s length 168
136E...................... Refundable cost.............................................................. 168
Division 7—Miscellaneous 169
137........................ Protection from civil proceedings................................... 169
138........................ Implied freedom of political communication................... 169
139........................ Agreements for the carrying on of telemarketing activities or fax marketing activities must require compliance with this Part................................................................... 169
Part 7—Layer 2 bitstream services 171
140........................ Simplified outline............................................................ 171
141........................ Supply of Layer 2 bitstream services.............................. 171
141A..................... Exemptions..................................................................... 174
141B...................... Deemed networks........................................................... 174
141C...................... Certain installations and connections are not taken to be an extension, alteration or upgrade 176
141D..................... Local access line............................................................. 176
141E...................... Alteration........................................................................ 177
141F...................... Upgrade of telecommunications network........................ 177
141G..................... Small business customer................................................. 177
Part 8—Superfast fixed‑line networks 178
Division 1—Introduction 178
142........................ Simplified outline............................................................ 178
142A..................... Definitions...................................................................... 178
Division 2—Supply of eligible services to be on wholesale basis 181
143........................ Supply of eligible services to be on wholesale basis....... 181
144........................ Exemptions—Ministerial instrument.............................. 182
145........................ Exemption—transport authorities................................... 183
146........................ Exemption—electricity supply bodies............................. 184
147........................ Exemption—gas supply bodies...................................... 184
148........................ Exemption—water supply bodies................................... 185
149........................ Exemption—sewerage services bodies........................... 185
150........................ Exemption—storm water drainage services bodies......... 186
151........................ Exemption—State or Territory road authorities.............. 186
Division 3—Other provisions 188
152........................ Associate........................................................................ 188
153........................ Control............................................................................ 189
154........................ Control of a company..................................................... 189
155........................ When a person is in a position to exercise control of a network 189
156........................ Deemed networks........................................................... 191
157........................ Certain installations and connections are not taken to be an extension, alteration or upgrade 192
158........................ Local access line............................................................. 193
159........................ Alteration........................................................................ 193
160........................ Upgrade of telecommunications network........................ 193
Part 13—Protection of communications 194
Division 1—Introduction 194
270........................ Simplified outline............................................................ 194
271........................ Eligible person................................................................ 194
272........................ Number‑database operator and eligible number‑database person 195
273........................ Information..................................................................... 195
274........................ Telecommunications contractor....................................... 195
275........................ Number‑database contractor........................................... 196
275A..................... Location information....................................................... 196
275B...................... Emergency management person...................................... 196
275C...................... Emergency...................................................................... 197
275D..................... Emergency law............................................................... 197
275E...................... Relevant information....................................................... 197
Division 2—Primary disclosure/use offences 198
276........................ Primary disclosure/use offence—eligible persons.......... 198
277........................ Primary disclosure/use offence—eligible number‑database persons 200
278........................ Primary disclosure/use offence—emergency call persons 202
Division 3—Exceptions to primary disclosure/use offences 204
Subdivision A—Exceptions 204
279........................ Performance of person’s duties...................................... 204
280........................ Authorisation by or under law........................................ 205
281........................ Witnesses........................................................................ 207
284........................ Assisting the ACMA, the eSafety Commissioner, the ACCC or the Telecommunications Industry Ombudsman................................................................... 208
285........................ Integrated public number database.................................. 209
285A..................... Data for emergency warnings......................................... 213
286........................ Calls to emergency service number................................. 214
287........................ Threat to person’s life or health...................................... 214
288........................ Communications for maritime purposes......................... 215
289........................ Knowledge or consent of person concerned................... 215
290........................ Implicit consent of sender and recipient of communication 215
291........................ Business needs of other carriers or service providers..... 216
291A..................... Location dependent carriage services.............................. 218
292........................ Circumstances prescribed in the regulations................... 219
293........................ Uses connected with exempt disclosures........................ 219
294........................ Effect of this Subdivision............................................... 220
Subdivision B—Burden of proof 220
295........................ Burden of proof.............................................................. 220
Division 3A—Integrated public number database authorisations 221
Subdivision A—ACMA scheme for the granting of authorisations 221
295A..................... ACMA to make integrated public number database scheme 221
295B...................... Scheme must deal with certain matters............................ 221
295C...................... Applications may be treated differently........................... 222
295D..................... Scope of authorisations................................................... 222
295E...................... Provisional and final authorisations................................ 222
295F...................... Conditions...................................................................... 222
295G..................... Varying or revoking authorisations................................ 222
295H..................... Scheme may confer administrative powers on the ACMA 223
295J....................... Ancillary or incidental provisions................................... 223
295K...................... Scheme‑making power not limited.................................. 223
295L...................... Variation of scheme........................................................ 223
295M..................... Consultation.................................................................... 223
Subdivision B—Ministerial instruments 224
295N..................... Criteria for deciding authorisation applications............... 224
295P...................... Conditions...................................................................... 224
295Q..................... Other reviewable decisions............................................. 225
Subdivision C—Enforcing compliance with conditions of authorisations 225
295R...................... Offence of breaching a condition.................................... 225
295S...................... Remedial directions for breaching a condition................ 225
295T...................... Formal warnings for breaching a condition.................... 226
Subdivision D—Report to Minister 226
295U..................... Report to Minister........................................................... 226
Division 3B—Emergency warnings 227
295V..................... Use or disclosure of information by emergency management persons 227
295W..................... Use or disclosure of information by other persons......... 228
295X..................... Effect on telecommunications network........................... 228
295Y..................... Coronial and other inquiries............................................ 228
295Z...................... Offence—use or disclosure of information by emergency management persons 229
295ZA................... Offence—use or disclosure of information by other persons.. 229
295ZB................... Reports of access............................................................ 230
295ZC................... Annual reports to the ACMA and Information Commissioner 230
295ZD................... Arrangements with States and Territories....................... 231
295ZE.................... Commonwealth immunity............................................... 231
Division 4—Secondary disclosure/use offences 232
296........................ Performance of person’s duties...................................... 232
297........................ Authorisation by or under law........................................ 232
299........................ Assisting the ACMA, the eSafety Commissioner, the ACCC or the Telecommunications Industry Ombudsman................................................................... 232
299A..................... Integrated public number database.................................. 233
300........................ Threat to person’s life or health...................................... 234
301........................ Communications for maritime purposes......................... 235
302........................ Business needs of other carriers or service providers..... 235
302A..................... Location dependent carriage services.............................. 236
303........................ Secondary offence—contravening this Division............. 236
303A..................... Generality of Division not limited................................... 236
Division 4A—Relationship with the Privacy Act 1988 237
303B...................... Acts taken to be authorised by this Act for purposes of Privacy Act 237
303C...................... Prosecution of an offence against this Part does not affect proceedings under the Privacy Act 1988 237
Division 5—Record‑keeping requirements 238
304........................ Associate........................................................................ 238
305........................ Authorisations under the Telecommunications (Interception and Access) Act 1979 238
306........................ Record of disclosures—general...................................... 238
306A..................... Record of disclosures—prospective authorisation under the Telecommunications (Interception and Access) Act 1979.......................................................................... 240
307........................ Incorrect records............................................................. 241
308........................ Annual reports to the ACMA by carriers, carriage service providers or number‑database operators 242
309........................ Monitoring by the Information Commissioner............... 242
Division 6—Instrument‑making powers not limited 244
310........................ Instrument‑making powers not limited........................... 244
Part 14—National interest matters 245
Division 1—Simplified outline 245
311........................ Simplified outline............................................................ 245
Division 2—Obligations of ACMA and carriers and carriage service providers 247
312........................ ACMA’s obligations...................................................... 247
313........................ Obligations of carriers and carriage service providers.... 247
314........................ Terms and conditions on which help is to be given........ 252
Division 3—Notification of changes to telecommunications services or telecommunications systems relating to obligation under subsection 313(1A) or (2A) 254
Subdivision A—Individual notifications 254
314A..................... Individual notifications................................................... 254
314B...................... Assessment of proposed change..................................... 257
Subdivision B—Security capability plans 259
314C...................... Security capability plans................................................. 259
314D..................... Assessment of security capability plan........................... 260
314E...................... Relationship with section 314A...................................... 262
Division 4—Carriage service provider may suspend supply of carriage service in an emergency 263
315........................ Suspension of supply of carriage service in an emergency 263
Division 5—Directions by Home Affairs Minister 265
315A..................... Direction if use or supply of carriage services prejudicial to security 265
315B...................... Direction if risk of unauthorised interference or access involving telecommunications networks or facilities........................................................................................ 266
Division 6—Home Affairs Secretary’s information‑gathering powers 270
315C...................... Home Affairs Secretary may obtain information and documents from carriers and carriage service providers........................................................................................ 270
315D..................... Self‑incrimination........................................................... 271
315E...................... Copies of documents...................................................... 272
315F...................... Retention of documents.................................................. 272
315G..................... Delegation by Home Affairs Secretary........................... 273
Division 7—Information sharing and confidentiality 274
315H..................... Information sharing and confidentiality.......................... 274
Division 8—Annual report 276
315J....................... Annual report.................................................................. 276
Division 8A—Review by Parliamentary Joint Committee on Intelligence and Security 278
315K...................... Review by Parliamentary Joint Committee on Intelligence and Security 278
Division 9—Generality of Part not limited 279
316........................ Generality of Part not limited.......................................... 279
Part 15—Industry assistance 280
Division 1—Introduction 280
317A..................... Simplified outline of this Part......................................... 280
317B...................... Definitions...................................................................... 282
317C...................... Designated communications provider etc........................ 288
317D..................... Electronic service............................................................ 292
317E...................... Listed acts or things........................................................ 293
317F...................... Extension to external Territories..................................... 295
Division 2—Voluntary technical assistance 296
317G..................... Voluntary technical assistance provided to ASIO, the Australian Secret Intelligence Service, the Australian Signals Directorate or an interception agency................. 296
317H..................... Form of technical assistance request............................... 299
317HAA............... Provision of advice to designated communications providers 300
317HAB................ Notification obligations................................................... 301
317HA.................. Duration of technical assistance request.......................... 302
317J....................... Specified period etc......................................................... 303
317JAA................. Decision‑making criteria................................................. 303
317JA.................... Variation of technical assistance requests....................... 304
317JB.................... Revocation of technical assistance requests.................... 308
317JC.................... Whether a technical assistance request is reasonable and proportionate 310
317K...................... Contract etc..................................................................... 311
Division 3—Technical assistance notices 313
317L...................... Technical assistance notices............................................ 313
317LA................... Approval of technical assistance notices given by the chief officer of an interception agency of a State or Territory.......................................................................... 314
317M..................... Form of technical assistance notice................................. 314
317MAA............... Provision of advice to designated communications providers 315
317MAB............... Notification obligations................................................... 317
317MA.................. Duration of technical assistance notice............................ 317
317N..................... Compliance period etc..................................................... 318
317P...................... Decision‑making criteria................................................. 319
317PA................... Consultation about a proposal to give a technical assistance notice 319
317Q..................... Variation of technical assistance notices......................... 320
317R...................... Revocation of technical assistance notices...................... 322
317RA................... Whether requirements imposed by a technical assistance notice are reasonable and proportionate 324
Division 4—Technical capability notices 325
317S...................... Attorney‑General may determine procedures and arrangements relating to requests for technical capability notices............................................................................. 325
317T...................... Technical capability notices............................................. 325
317TAAA............. Approval of technical capability notice........................... 328
317TAA................ Provision of advice to designated communications providers 329
317TAB................ Notification obligations................................................... 329
317TA................... Duration of technical capability notice............................ 330
317U..................... Compliance period etc..................................................... 332
317V..................... Decision‑making criteria................................................. 332
317W..................... Consultation about a proposal to give a technical capability notice 333
317WA.................. Assessment and report.................................................... 334
317X..................... Variation of technical capability notices.......................... 339
317XA.................. Approval of variation of technical capability notice........ 341
317Y..................... Consultation about a proposal to vary a technical capability notice 342
317YA.................. Assessment and report.................................................... 343
317Z...................... Revocation of technical capability notices....................... 347
317ZAA................ Whether requirements imposed by a technical capability notice are reasonable and proportionate 348
Division 5—Compliance and enforcement 350
317ZA................... Compliance with notices—carriers and carriage service providers 350
317ZB................... Compliance with notices—designated communications provider (other than a carrier or carriage service provider)......................................................................... 350
317ZC................... Civil penalty provision.................................................... 351
317ZD................... Enforceable undertakings................................................ 352
317ZE.................... Injunctions...................................................................... 353
Division 6—Unauthorised disclosure of information etc. 354
317ZF.................... Unauthorised disclosure of information.......................... 354
317ZFA................. Powers of a court............................................................ 364
Division 7—Limitations 366
317ZG................... Designated communications provider must not be requested or required to implement or build a systemic weakness or systemic vulnerability etc........................... 366
317ZGA................ Limits on technical capability notices.............................. 367
317ZH................... General limits on technical assistance requests, technical assistance notices and technical capability notices........................................................................................ 368
Division 8—General provisions 373
317ZJ.................... Immunity........................................................................ 373
317ZK................... Terms and conditions on which help is to be given etc... 373
317ZKA................ Notification obligations................................................... 380
317ZL.................... Service of notices etc...................................................... 382
317ZM.................. Interception agency—chief officer and officer................ 384
317ZN................... Delegation by Director‑General of Security.................... 385
317ZP.................... Delegation by Director‑General of the Australian Secret Intelligence Service 385
317ZQ................... Delegation by Director‑General of the Australian Signals Directorate 386
317ZR................... Delegation by the chief officer of an interception agency 386
317ZRA................ Relationship of this Part to parliamentary privileges and immunities 387
317ZRB................. Inspection of records...................................................... 388
317ZS.................... Annual reports................................................................ 389
317ZT.................... Alternative constitutional basis....................................... 390
Part 16—Defence requirements and disaster plans 391
Division 1—Introduction 391
333........................ Simplified outline............................................................ 391
334........................ Defence authority............................................................ 391
Division 2—Supply of carriage services 392
335........................ Requirement to supply carriage services for defence purposes or for the management of natural disasters........................................................................................ 392
Division 3—Defence planning 394
336........................ Definitions...................................................................... 394
337........................ Preparation of draft agreement........................................ 394
338........................ ACMA’s certification of draft agreement....................... 395
339........................ Requirement to enter into certified agreement................. 396
340........................ Compliance with agreement............................................ 396
341........................ Withdrawal of certification of agreement........................ 396
342........................ Duration of agreement.................................................... 397
343........................ Variation of agreement.................................................... 397
Division 4—Disaster plans 399
344........................ Designated disaster plans................................................ 399
345........................ Carrier licence conditions about designated disaster plans 399
346........................ Service provider determinations about designated disaster plans 399
346A..................... Carrier and carriage service provider immunity.............. 399
Division 5—Delegation 401
347........................ Delegation....................................................................... 401
Part 17—Pre‑selection in favour of carriage service providers 402
348........................ Simplified outline............................................................ 402
349........................ Requirement to provide pre‑selection.............................. 402
350........................ When pre‑selection is provided in favour of a carriage service provider 408
350A..................... Declared carriage services............................................... 409
351........................ Pre‑selection to be provided............................................ 410
352........................ Exemptions from requirement to provide pre‑selection... 411
353........................ Use of over‑ride dial codes............................................. 411
Part 18—Calling line identification 413
354........................ Simplified outline............................................................ 413
355........................ Calling line identification................................................ 413
356........................ Exemptions from calling line identification requirement. 413
Part 20—International aspects of activities of the telecommunications industry 415
Division 1—Simplified outline 415
364........................ Simplified outline............................................................ 415
Division 2—Compliance with international agreements 416
365........................ INTELSAT and Inmarsat—directions to Signatories..... 416
366........................ Compliance with conventions......................................... 416
Division 3—Rules of conduct about dealings with international telecommunications operators 418
367........................ Rules of conduct about dealings with international telecommunications operators 418
368........................ ACCC to administer Rules of Conduct........................... 420
369........................ Rules of Conduct to bind carriers and carriage service providers 421
370........................ Unenforceability of agreements...................................... 421
371........................ Investigations by the ACCC........................................... 421
372........................ Reviews of the operation of this Division....................... 422
Part 20A—Deployment of optical fibre etc. 423
Division 1—Simplified outline 423
372A..................... Simplified outline............................................................ 423
Division 2—Deployment of optical fibre lines 425
372B...................... Deployment of optical fibre lines to building lots........... 425
372C...................... Deployment of optical fibre lines to building units......... 427
372D..................... Exemptions—Ministerial instrument.............................. 429
Division 3—Installation of fibre‑ready facilities 430
Subdivision A—Installation obligations 430
372E...................... Installation of fibre‑ready facilities—building lots.......... 430
372F...................... Installation of fibre‑ready facilities—building units........ 431
Subdivision B—Sale of building lots and building units 433
372G..................... Sale of building lots and building units—subdivisions... 433
372H..................... Sale of building units—other projects............................. 435
Subdivision C—NBN Co may issue statement about the non‑installation of optical fibre lines 437
372J....................... NBN Co may issue statement about the non‑installation of optical fibre lines 437
372JA.................... Register of Statements about the Non‑installation of Optical Fibre Lines 438
Subdivision D—Exemptions 438
372K...................... Exemptions—Ministerial instrument.............................. 438
Division 4—Third party access regime 441
372L...................... Third party access regime............................................... 441
372M..................... Terms and conditions of access...................................... 443
372N..................... Exemptions—Ministerial instrument.............................. 444
372NA.................. Code relating to access.................................................... 444
Division 5—Exemption of certain projects 446
372P...................... Exemption of certain projects.......................................... 446
Division 6—Miscellaneous 447
372Q..................... Real estate development projects etc............................... 447
372R...................... Subdivision of an area of land........................................ 449
372S...................... Building units................................................................. 449
372T...................... Sale of building lots........................................................ 449
372U..................... Sale of building units...................................................... 450
372V..................... Fixed‑line facilities.......................................................... 450
372W..................... Fibre‑ready facility.......................................................... 451
372X..................... Installation of a facility.................................................... 451
372Y..................... Installation of a fibre‑ready facility in proximity to a building lot or building unit 451
372Z...................... Sewerage services, electricity or water supplied to a building lot or building unit 452
372ZA................... Supply to the public........................................................ 453
372ZB................... Concurrent operation of State and Territory laws........... 454
372ZD................... NBN Co......................................................................... 454
Part 21—Technical regulation 455
Division 1—Simplified outline 455
373........................ Simplified outline............................................................ 455
Division 2—Interpretative provisions 457
374........................ Part applies to networks or facilities in Australia operated by carriers or carriage service providers 457
375........................ Manager of network or facility....................................... 457
Division 3—Technical standards about customer equipment and customer cabling 458
376........................ ACMA’s power to make technical standards................. 458
376A..................... ACMA must make technical standards if directed by the Minister 460
377........................ Adoption of voluntary standards.................................... 460
378........................ Procedures for making technical standards..................... 460
379........................ Making technical standards in cases of urgency............. 461
Division 4—Disability standards 463
380........................ Disability standards........................................................ 463
381........................ Adoption of voluntary standards.................................... 463
382........................ Procedures for making disability standards.................... 464
383........................ Effect of compliance with disability standards................ 465
Division 5—Technical standards about the interconnection of facilities 466
384........................ ACMA’s power to make technical standards................. 466
385........................ Adoption of voluntary standards.................................... 467
386........................ Procedures for making technical standards..................... 467
387........................ Procedures for making technical standards..................... 468
388........................ Provision of access......................................................... 469
389........................ Promotion of the long‑term interests of end‑users of carriage services and of services supplied by means of carriage services.............................................................. 469
Division 5A—Technical standards relating to Layer 2 bitstream services 470
389A..................... ACMA’s power to determine technical standards.......... 470
389B...................... Compliance with technical standards.............................. 470
Division 6—Connection permits and connection rules 472
Subdivision A—Connection permits authorising the connection of non‑standard customer equipment and non‑standard cabling 472
390........................ Application for connection permit................................... 472
391........................ Form of application......................................................... 472
392........................ Application to be accompanied by charge....................... 473
393........................ Further information......................................................... 473
394........................ Issue of connection permits............................................ 473
395........................ Connection permit has effect subject to this Act............. 474
396........................ Nominees of holder........................................................ 474
397........................ Duration of connection permits....................................... 474
398........................ Conditions of connection permits................................... 475
399........................ Offence of contravening condition.................................. 475
400........................ Formal warnings—breach of condition.......................... 476
401........................ Surrender of connection permit....................................... 476
402........................ Cancellation of connection permit................................... 476
403........................ Register of connection permits........................................ 477
Subdivision B—Connection rules 478
404........................ Connection rules............................................................. 478
405........................ Procedures for making connection rules......................... 478
Division 7—Labelling of customer equipment and customer cabling 480
406........................ Application of labels....................................................... 480
406A..................... Application of Division to agent of manufacturer or importer 480
407........................ Labelling requirements.................................................... 480
408........................ Requirements to apply labels—ancillary matters............. 481
409........................ Recognised testing authorities and competent bodies...... 483
410........................ Certification bodies......................................................... 483
411........................ Connection of customer equipment or customer cabling—breach of section 376 standards 483
412........................ Connection of labelled customer equipment or customer cabling not to be refused 485
413........................ Supply of unlabelled customer equipment or unlabelled customer cabling 487
414........................ Applying labels before satisfying requirements under subsection 408(5) 487
415........................ Failure to retain records etc............................................. 488
416........................ Application of labels containing false statements about compliance with standards 489
Division 8—Protected symbols 490
417........................ Protected symbols........................................................... 490
Division 9—Cabling providers 494
418........................ Cabling work.................................................................. 494
419........................ Types of cabling work.................................................... 494
420........................ Prohibition of unauthorised cabling work....................... 494
421........................ Cabling provider rules.................................................... 495
422........................ Procedures for making cabling provider rules................ 496
423........................ Application for cabling licence........................................ 497
424........................ Form of application......................................................... 497
425........................ Application to be accompanied by charge....................... 497
426........................ Further information......................................................... 497
427........................ Grant of cabling licence.................................................. 497
428........................ Time limit on licence decision......................................... 498
429........................ Notification of refusal of application............................... 499
430........................ Cabling licence has effect subject to this Act.................. 499
431........................ Duration of cabling licence............................................. 499
432........................ Conditions of cabling licence.......................................... 499
433........................ Procedures for changing licence conditions.................... 500
434........................ Offence in relation to contravening condition................. 500
435........................ Formal warnings—breach of condition.......................... 501
436........................ Surrender of cabling licence............................................ 501
437........................ Suspension of cabling licence......................................... 502
438........................ Cancellation of cabling licence........................................ 502
439........................ ACMA may limit application of Division in relation to customer cabling 503
440........................ Ministerial directions...................................................... 503
441........................ Delegation....................................................................... 504
442........................ Register of cabling licences............................................. 505
Division 10—Remedies for unauthorised connections to telecommunications networks etc. 506
443........................ Civil action for unauthorised connections to telecommunications networks etc. 506
444........................ Remedy for contravention of labelling requirements....... 507
445........................ Remedies for connection of unlabelled customer equipment or unlabelled customer cabling 508
446........................ Disconnection of dangerous customer equipment or customer cabling 510
447........................ Disconnection of customer equipment or customer cabling—protection of the integrity of networks and facilities........................................................................... 512
448........................ Civil action for dangerous connections to telecommunications networks etc. 513
449........................ Other remedies not affected............................................ 514
Division 11—Prohibited customer equipment and prohibited customer cabling 515
450........................ Declaration of prohibited customer equipment or prohibited customer cabling 515
452........................ Operation of prohibited customer equipment or customer cabling 515
Division 12—Pre‑commencement labels 517
453........................ Pre‑commencement labels............................................... 517
Division 13—Penalties payable instead of prosecution 518
453A..................... Penalties payable instead of prosecution......................... 518
Part 22—Numbering of carriage services and regulation of electronic addressing 519
Division 1—Simplified outline 519
454........................ Simplified outline............................................................ 519
Division 2—Numbering of carriage services 520
Subdivision A—Numbering plan 520
455........................ Numbering plan.............................................................. 520
456........................ Numbering plan—supply to the public........................... 522
457........................ Numbering plan—allocation otherwise than in accordance with an allocation system 522
458........................ Numbering plan—rules about portability of allocated numbers 522
459........................ ACMA to administer numbering plan............................ 523
460........................ Consultation about numbering plan................................ 523
461........................ Consultation with ACCC................................................ 524
462........................ Compliance with the numbering plan.............................. 525
Subdivision B—Allocation system for numbers 526
463........................ Allocation system for numbers....................................... 526
464........................ Consultation about an allocation system......................... 527
Subdivision C—Miscellaneous 528
465........................ Register of allocated numbers......................................... 528
466........................ Emergency service numbers........................................... 529
467........................ Delegation....................................................................... 530
468........................ Collection of numbering charges.................................... 531
469........................ Collection of charges on behalf of the Commonwealth... 533
470........................ Cancellation of certain exemptions from charge.............. 533
471........................ Commonwealth not liable to charge................................ 533
472........................ Integrated public number database.................................. 534
473........................ Letters and symbols taken to be numbers....................... 535
Division 3—Regulation of electronic addressing 536
474........................ Declared manager of electronic addressing..................... 536
475........................ ACMA may give directions to declared manager of electronic addressing 536
476........................ ACCC may give directions to declared manager of electronic addressing 537
477........................ ACCC’s directions to prevail over the ACMA’s directions 539
Part 23—Standard agreements for the supply of carriage services 540
478........................ Simplified outline............................................................ 540
479........................ Standard terms and conditions apply unless excluded.... 540
482........................ Concurrent operation of State/Territory laws.................. 541
483........................ Competition and Consumer Act not affected by this Part 542
Part 24—Carriers’ powers and immunities 543
484........................ Schedule 3...................................................................... 543
Part 24A—Submarine cables 544
484A..................... Schedule 3A................................................................... 544
Part 25—Public inquiries 545
Division 1—Simplified outline 545
485........................ Simplified outline............................................................ 545
Division 2—Inquiries by the ACMA 546
486........................ When inquiry must be held............................................. 546
487........................ When inquiry may be held.............................................. 546
488........................ Informing the public about an inquiry............................. 547
489........................ Discussion paper............................................................ 547
490........................ Written submissions and protection from civil actions.... 548
491........................ Hearings......................................................................... 548
492........................ Hearing to be in public except in exceptional cases......... 549
493........................ Confidential material not to be published........................ 550
494........................ Direction about private hearings..................................... 551
495........................ Reports on inquiries........................................................ 552
Division 3—Inquiries by the ACCC 553
496........................ When inquiry must be held............................................. 553
497........................ When inquiry may be held.............................................. 553
498........................ Informing the public about an inquiry............................. 553
499........................ Discussion paper............................................................ 554
500........................ Written submissions and protection from civil actions.... 554
501........................ Hearings......................................................................... 555
502........................ Hearing to be in public except in exceptional cases......... 556
503........................ Confidential material not to be published........................ 556
504........................ Direction about private hearings..................................... 557
505........................ Reports on inquiries........................................................ 558
505A..................... ACCC may use material presented to a previous public inquiry 559
505B...................... ACCC may adopt a finding from a previous public inquiry 560
506........................ ACCC’s other powers not limited.................................. 560
Part 26—Investigations 561
507........................ Simplified outline............................................................ 561
508........................ Matters to which this Part applies................................... 561
509........................ Complaints to the ACMA............................................... 562
510........................ Investigations by the ACMA.......................................... 564
511........................ Preliminary inquiries....................................................... 565
512........................ Conduct of investigations............................................... 565
513........................ Complainant and certain other persons to be informed of various matters 566
514........................ Reference of matters to Ombudsman or other responsible person 567
515........................ Reference of matters to the ACCC.................................. 568
515A..................... Reference of matters to Information Commissioner........ 569
516........................ Reports on investigations................................................ 570
517........................ Publication of reports...................................................... 571
518........................ Person adversely affected by report to be given opportunity to comment 572
519........................ Protection from civil actions........................................... 572
Part 27—The ACMA’s information‑gathering powers 574
Division 1—Simplified outline 574
520........................ Simplified outline............................................................ 574
Division 2—Information‑gathering powers 575
521........................ The ACMA may obtain information and documents from carriers and service providers 575
522........................ The ACMA may obtain information and documents from other persons 576
523........................ Copying documents—reasonable compensation............. 578
524........................ Self‑incrimination........................................................... 578
525........................ Giving false or misleading information or evidence........ 579
527........................ Copies of documents...................................................... 579
528........................ ACMA may retain documents........................................ 579
Division 3—Record‑keeping rules 581
529........................ ACMA may make record‑keeping rules......................... 581
530........................ Compliance with record‑keeping rules............................ 582
531........................ Incorrect records............................................................. 582
Part 28—Enforcement 583
Division 1—Introduction 583
532........................ Simplified outline............................................................ 583
532A..................... References to the Spam Act 2003.................................... 584
Division 2—Inspectors and identity cards 585
533........................ Inspectors....................................................................... 585
534........................ Identity cards.................................................................. 586
Division 3—Search warrants relating to breaches of the Spam Act 2003 or Part 21 of this Act 587
535........................ Magistrate may issue warrant......................................... 587
536........................ Reasonable grounds for issuing warrant etc................... 588
537........................ Contents of warrant........................................................ 588
538........................ Warrants may be issued by telephone etc........................ 588
539........................ Provisions relating to issue of warrant by telephone etc. 588
540........................ Proceedings involving warrant issued by telephone etc.. 590
Division 4—Searches and seizures relating to breaches of the Spam Act 2003 or Part 21 of this Act 591
541........................ When is a thing connected with an offence?................... 591
541A..................... When is a thing connected with a breach of the Spam Act 2003? 591
542........................ Searches and seizures..................................................... 591
543........................ Production of identity card etc........................................ 592
544........................ Evidence of commission of other offences against Part 21 of this Act or other breaches of the Spam Act 2003........................................................................................ 593
545........................ Emergency entry, search and seizure.............................. 594
546........................ Retention of things seized............................................... 595
Division 5—Searches to monitor compliance with Part 21 596
547........................ Searches to monitor compliance with Part 21................. 596
Division 5A—Searches to monitor compliance with the Spam Act 2003 597
547A..................... Powers available to inspectors for monitoring compliance 597
547B...................... Monitoring powers......................................................... 597
547C...................... Production of identity card etc........................................ 599
547D..................... Monitoring warrants....................................................... 599
547E...................... Details of warrant to be given to occupier etc................. 601
547F...................... Announcement before entry............................................ 601
547G..................... Compensation for damage to equipment......................... 601
547H..................... Occupier entitled to be present during search.................. 602
Division 5B—Access to computer data that is relevant to the Spam Act 2003 604
547J....................... Access to computer data that is relevant to the Spam Act 2003 604
Division 6—Other powers of inspectors 606
548........................ General powers of inspectors......................................... 606
549........................ Power to require information etc..................................... 607
550........................ Retention of documents.................................................. 609
Division 7—Forfeiture 610
551........................ Court may order forfeiture.............................................. 610
552........................ Forfeited goods may be sold........................................... 610
Division 8—Future offences 611
553........................ Offences that are going to be committed......................... 611
Part 29—Review of decisions 612
554........................ Simplified outline............................................................ 612
555........................ Decisions that may be subject to reconsideration by the ACMA 612
556........................ Deadlines for reaching certain decisions......................... 612
557........................ Statements to accompany notification of decisions......... 613
558........................ Applications for reconsideration of decisions................. 613
559........................ Reconsideration by the ACMA...................................... 614
560........................ Deadlines for reconsiderations........................................ 614
561........................ Statements to accompany notification of decisions on reconsideration 614
562........................ Review by the Administrative Appeals Tribunal............ 615
Part 30—Injunctions 616
563........................ Simplified outline............................................................ 616
564........................ Injunctions...................................................................... 616
565........................ Interim injunctions.......................................................... 620
566........................ Discharge etc. of injunctions........................................... 620
567........................ Certain limits on granting injunctions not to apply.......... 620
568........................ Other powers of the court unaffected.............................. 621
Part 31—Civil penalties 622
569........................ Simplified outline............................................................ 622
570........................ Pecuniary penalties for contravention of civil penalty provisions 622
571........................ Civil action for recovery of pecuniary penalties.............. 624
572........................ Criminal proceedings not to be brought for contravention of civil penalty provisions 627
Part 31A—Enforceable undertakings 628
572A..................... Simplified outline............................................................ 628
572B...................... Acceptance of undertakings............................................ 628
572C...................... Enforcement of undertakings.......................................... 629
Part 31B—Infringement notices for contraventions of civil penalty provisions 631
572D..................... Simplified outline............................................................ 631
572E...................... When an infringement notice can be given...................... 631
572F...................... Matters to be included in an infringement notice............. 635
572G..................... Amount of penalty.......................................................... 636
572H..................... Withdrawal of an infringement notice............................. 636
572J....................... What happens if the penalty is paid................................. 637
572K...................... Effect of this Part on civil proceedings........................... 637
572L...................... Appointment of authorised infringement notice officer... 638
572M..................... Guidelines relating to infringement notices..................... 638
572N..................... Regulations..................................................................... 639
Part 32—Vicarious liability 640
573........................ Simplified outline............................................................ 640
574........................ Proceedings under this Act............................................. 640
574A..................... Definition........................................................................ 640
575........................ Liability of corporations.................................................. 641
576........................ Liability of persons other than corporations.................... 642
Part 33—Voluntary undertakings given by Telstra 644
Division 1—Introduction 644
577........................ Simplified outline............................................................ 644
Division 2—Structural separation 645
Subdivision A—Undertaking about structural separation 645
577A..................... Acceptance of undertaking about structural separation... 645
577AA.................. Acceptance of undertaking about structural separation may be subject to the occurrence of events 650
577AB................... When undertaking about structural separation comes into force 652
577AC................... Publication requirements for undertaking about structural separation 653
577AD.................. Compliance with undertaking about structural separation 654
577B...................... Variation of undertaking about structural separation....... 654
577BA................... Authorised conduct—subsection 51(1) of the Competition and Consumer Act 2010 655
Subdivision B—Migration plan 662
577BB................... Migration plan principles................................................ 662
577BC................... Migration plan................................................................ 663
577BD................... Approval of draft migration plan by the ACCC—plan given after undertaking about structural separation comes into force.............................................................. 665
577BDA................ Approval of draft migration plan by the ACCC—plan given before undertaking about structural separation comes into force.............................................................. 667
577BDB................ Approval of draft migration plan by the ACCC—plan given in compliance with a direction 669
577BDC................ Approval of draft migration plan by the ACCC—plan given in response to a request 670
577BE................... Effect of approval of draft migration plan....................... 672
577BF................... Variation of final migration plan..................................... 673
Division 3—Hybrid fibre‑coaxial networks 675
577C...................... Acceptance of undertaking about hybrid fibre‑coaxial networks 675
577CA................... Acceptance of undertaking about hybrid fibre‑coaxial networks may be subject to the occurrence of events........................................................................................ 676
577CB................... When undertaking about hybrid fibre‑coaxial networks comes into force 678
577CC................... Publication requirements for undertaking about hybrid fibre‑coaxial networks 679
577CD................... Compliance with undertaking about hybrid fibre‑coaxial networks 680
577D..................... Variation of undertaking about hybrid fibre‑coaxial networks 680
Division 4—Subscription television broadcasting licences 682
577E...................... Acceptance of undertaking about subscription television broadcasting licences 682
577EA................... Acceptance of undertaking about subscription television broadcasting licences may be subject to the occurrence of events....................................................... 683
577EB................... When undertaking about subscription television broadcasting licences comes into force 685
577EC................... Publication requirements for undertaking about subscription television broadcasting licences 686
577ED................... Compliance with undertaking about subscription television broadcasting licences 687
577F...................... Variation of undertaking about subscription television broadcasting licences 687
Division 5—Enforcement of undertakings 689
577G..................... Enforcement of undertakings.......................................... 689
Division 6—Limits on allocation of spectrum licences etc. 691
577GA.................. Excluded spectrum regime.............................................. 691
577H..................... Designated part of the spectrum...................................... 691
577J....................... Limits on allocation of certain spectrum licences to Telstra 691
577K...................... Limits on use of certain spectrum licences by Telstra..... 694
577L...................... Limits on assignment of certain spectrum licences to Telstra etc. 696
Division 7—Other provisions 698
577M..................... Associate........................................................................ 698
577N..................... Control............................................................................ 699
577P...................... Control of a company..................................................... 699
577Q..................... When Telstra is in a position to exercise control of a network 699
Part 34—Special provisions relating to conventions and directions 702
579........................ Simplified outline............................................................ 702
580........................ ACMA must have regard to conventions....................... 702
581........................ Power to give directions to carriers and service providers 703
Part 35—Miscellaneous 705
582........................ Simplified outline............................................................ 705
583........................ Penalties for certain continuing offences......................... 706
584........................ Procedure relating to certain continuing offences............ 707
585........................ Treatment of partnerships............................................... 707
586........................ Giving of documents to partnerships.............................. 708
587........................ Nomination of address for service of documents............ 709
588........................ Service of summons or process on foreign corporations—criminal proceedings 709
589........................ Instruments under this Act may provide for matters by reference to other instruments 710
590........................ Arbitration—acquisition of property............................... 712
591........................ Compensation—constitutional safety net........................ 712
592........................ Act not to affect performance of State or Territory functions 713
593........................ Funding of consumer representation, and of research, in relation to telecommunications 713
594........................ Regulations..................................................................... 714
An Act about telecommunications, and for related purposes
Part 1—Introduction
1 Short title
This Act may be cited as the Telecommunications Act 1997.
2 Commencement
(1) The following provisions of this Act commence on the day on which this Act receives the Royal Assent:
(a) this Part;
(b) Part 2;
(c) Divisions 2, 3 and 4 of Part 4;
(d) Division 3 of Part 25;
(f) section 589;
(g) section 594.
(2) Sections 52 to 55 (inclusive) commence on 5 June 1997.
(3) The remaining provisions of this Act commence on 1 July 1997.
3 Objects
(1) The main object of this Act, when read together with Parts XIB and XIC of the Competition and Consumer Act 2010, is to provide a regulatory framework that promotes:
(a) the long‑term interests of end‑users of carriage services or of services provided by means of carriage services; and
(b) the efficiency and international competitiveness of the Australian telecommunications industry; and
(c) the availability of accessible and affordable carriage services that enhance the welfare of Australians.
(2) The other objects of this Act, when read together with Parts XIB and XIC of the Competition and Consumer Act 2010, are as follows:
(a) to ensure that standard telephone services and payphones are:
(i) reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and
(ii) are supplied as efficiently and economically as practicable; and
(iii) are supplied at performance standards that reasonably meet the social, industrial and commercial needs of the Australian community;
(c) to promote the supply of diverse and innovative carriage services and content services;
(d) to promote the development of an Australian telecommunications industry that is efficient, competitive and responsive to the needs of the Australian community;
(e) to promote the effective participation by all sectors of the Australian telecommunications industry in markets (whether in Australia or elsewhere);
(f) to promote:
(i) the development of the technical capabilities and skills of the Australian telecommunications industry; and
(ii) the development of the value‑adding and export‑oriented activities of the Australian telecommunications industry; and
(iii) research and development that contributes to the growth of the Australian telecommunications industry;
(g) to promote the equitable distribution of benefits from improvements in the efficiency and effectiveness of:
(i) the provision of telecommunications networks and facilities; and
(ii) the supply of carriage services;
(h) to provide appropriate community safeguards in relation to telecommunications activities and to regulate adequately participants in sections of the Australian telecommunications industry;
(i) to promote the placement of lines underground, taking into account economic and technical issues, where placing such lines underground is supported by the affected community;
(j) to promote responsible practices in relation to the sending of commercial electronic messages;
(k) to promote responsible practices in relation to the making of telemarketing calls;
(l) to promote responsible practices in relation to the sending of marketing faxes.
4 Regulatory policy
The Parliament intends that telecommunications be regulated in a manner that:
(a) promotes the greatest practicable use of industry self‑regulation; and
(b) does not impose undue financial and administrative burdens on participants in the Australian telecommunications industry;
but does not compromise the effectiveness of regulation in achieving the objects mentioned in section 3.
5 Simplified outline
The following is a simplified outline of this Act:
• This Act sets up a system for regulating telecommunications.
• The main entities regulated by this Act are carriers and service providers.
• A carrier is the holder of a carrier licence granted under this Act.
• The owner of a network unit that is used to supply carriage services to the public must hold a carrier licence unless responsibility for the unit is transferred from the owner to a carrier.
• There are 4 types of network unit:
(a) a single line link connecting distinct places in Australia, where the line link meets certain minimum distance requirements;
(b) multiple line links connecting distinct places in Australia, where the line links meet certain minimum distance requirements;
(c) a designated radiocommunications facility;
(d) a facility specified in a Ministerial determination.
• Carrier licences are subject to conditions.
• There are 2 types of service provider:
(a) a carriage service provider;
(b) a content service provider.
• A carriage service provider is a person who supplies, or proposes to supply, certain carriage services.
• A content service provider is a person who supplies, or proposes to supply, certain content services.
• Service providers must comply with the service provider rules.
• The Australian Communications and Media Authority (ACMA) is to monitor, and report each year to the Minister on, significant matters relating to the performance of carriers and carriage service providers.
• Bodies and associations that represent sections of the telecommunications industry, the telemarketing industry or the fax marketing industry may develop industry codes.
• Industry codes may be registered by the ACMA.
• Compliance with an industry code is voluntary unless the ACMA directs a particular participant in the telecommunications industry, the telemarketing industry or the fax marketing industry to comply with the code.
• The ACMA has a reserve power to make an industry standard if there are no industry codes or if an industry code is deficient.
• Compliance with industry standards is mandatory.
• Carriers and carriage service providers must protect the confidentiality of communications.
• The ACMA, carriers and carriage service providers must do their best to prevent telecommunications networks and facilities from being used to commit offences.
• Carriers and carriage service providers must do their best to protect telecommunications networks and facilities from unauthorised interference or unauthorised access.
• Carriers and carriage service providers must ensure that it is possible to execute a warrant issued under the Telecommunications (Interception and Access) Act 1979.
• Carriage service providers may be required to supply carriage services for defence purposes or for the management of natural disasters.
• A carrier or carriage service provider may be required to enter into an agreement with the Commonwealth about:
(a) planning for network survivability; or
(b) operational requirements in times of crisis.
• The ACMA may require certain carriers and carriage service providers to provide pre‑selection in favour of carriage service providers in relation to calls made using a standard telephone service.
• The ACMA must require certain carriers and carriage service providers to provide pre‑selection in favour of carriage service providers in relation to calls made using a declared carriage service.
• Carriers and carriage service providers may be required to comply with certain international conventions.
• The Minister may make Rules of Conduct about dealings with international telecommunications operators.
• Provision is made for the technical regulation of customer equipment, customer cabling and cabling work.
• The ACMA may regulate numbering by means of a numbering plan.
• Provision is made for standard agreements for the supply of carriage services.
• The ACMA and the ACCC may hold public inquiries about certain matters relating to telecommunications.
• The ACMA may investigate certain matters relating to telecommunications.
• Certain switching systems must be capable of providing calling line identification.
• Provision is made for the following ancillary matters:
(a) information‑gathering powers;
(b) powers of search, entry and seizure;
(c) review of decisions;
(d) injunctions.
6 Main index
The following is a main index to this Act:
| Main Index | | |
| Item | Topic | Provisions |
| 2 | Calling line identification | Part 18 |
| 3 | Carriers’ powers and immunities | Part 24, Schedule 3 |
| 4 | Carrier licence conditions | Part 3, Schedule 1 |
| 5 | Carriers | Part 3 |
| 6 | Communications, protection of | Part 13 |
| 8 | Decisions, review of | Part 29, Schedule 4 |
| 9 | Defence requirements and disaster plans | Part 16 |
| 10 | Enforceable undertakings | Part 31A |
| 11 | Enforcement | Part 28 |
| 12 | Industry codes and industry standards | Part 6 |
| 13 | Information‑gathering powers | Part 27 |
| 14 | Injunctions | Part 30 |
| 15 | Inquiries, public | Part 25 |
| 16 | International aspects | Part 20 |
| 17 | Investigations | Part 26 |
| 19 | Liability, vicarious | Part 32 |
| 21 | National interest matters | Part 14 |
| 22 | Network units | Part 2 |
| 23 | Numbering and electronic addressing | Part 22 |
| 24 | Penalties, civil | Part 31 |
| 25 | Performance of carriers and carriage service providers, monitoring of | Part 5 |
| 26 | Pre‑selection | Part 17 |
| 28 | Service provider rules | Part 4, Schedule 2 |
| 29 | Service providers | Part 4 |
| 30 | Standard agreements for the supply of carriage services | Part 23 |
| 32 | Technical regulation | Part 21 |
| | | |
7 Definitions
In this Act, unless the contrary intention appears:
ACCC means the Australian Competition and Consumer Commission.
ACCC’s telecommunications functions and powers means the functions and powers conferred on the ACCC by or under:
(a) this Act; or
(b) the Telecommunications (Consumer Protection and Service Standards) Act 1999; or
(ba) the National Broadband Network Companies Act 2011; or
(c) Part XIB of the Competition and Consumer Act 2010; or
(d) Part XIC of the Competition and Consumer Act 2010; or
(e) any other provision of the Competition and Consumer Act 2010, in so far as that provision applies to a matter connected with telecommunications.
For this purpose, telecommunications means the carriage of communications by means of guided and/or unguided electromagnetic energy.
access, in relation to an emergency call service, has a meaning affected by section 18.
ACMA means the Australian Communications and Media Authority.
ACMA’s telecommunications functions means the functions that are telecommunications functions, in relation to the ACMA, for the purposes of the Australian Communications and Media Authority Act 2005.
ACMA’s telecommunications powers means the powers conferred on the ACMA by:
(a) this Act; or
(b) the Telecommunications (Consumer Protection and Service Standards) Act 1999; or
(ba) Chapter 4 or 5 of the Telecommunications (Interception and Access) Act 1979; or
(c) the Spam Act 2003; or
(ca) the Do Not Call Register Act 2006; or
(d) Part XIC of the Competition and Consumer Act 2010; or
(e) section 12 of the Australian Communications and Media Authority Act 2005, in so far as that section relates to the ACMA’s telecommunications functions.
ACNC type of entity means an entity that meets the description of a type of entity in column 1 of the table in subsection 25‑5(5) of the Australian Charities and Not‑for‑profits Commission Act 2012.
adverse security assessment has the meaning given by section 35 of the Australian Security Intelligence Organisation Act 1979.
AFP Minister means the Minister administering the Australian Federal Police Act 1979.
aircraft includes a balloon.
ASIO means the Australian Security Intelligence Organisation.
Australia, when used in a geographical sense, includes the eligible Territories.
Australian number has the same meaning as in the Do Not Call Register Act 2006.
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.
base station that is part of a terrestrial radiocommunications customer access network has the meaning given by section 34.
broadcasting service has the same meaning as in the Broadcasting Services Act 1992.
building lot has the meaning given by section 372Q.
building unit has the meaning given by section 372S.
cabling licence means a licence granted under section 427.
carriage service means a service for carrying communications by means of guided and/or unguided electromagnetic energy.
carriage service intermediary means a person who is a carriage service provider under subsection 87(5).
carriage service provider has the meaning given by section 87.
carrier means the holder of a carrier licence.
carrier licence means a licence granted under section 56.
carry includes transmit, switch and receive.
civil penalty provision means:
(a) a provision of this Act (other than section 317ZB) 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; or
(c) a provision of the Telecommunications (Interception and Access) Act 1979 that is declared by that Act to be a civil penalty provision for the purposes of this Act.
commercial electronic message has the same meaning as in the Spam Act 2003.
communications includes any communication:
(a) whether between persons and persons, things and things or persons and things; and
(b) whether in the form of speech, music or other sounds; and
(c) whether in the form of data; and
(d) whether in the form of text; and
(e) whether in the form of visual images (animated or otherwise); and
(f) whether in the form of signals; and
(g) whether in any other form; and
(h) whether in any combination of forms.
Communications Access Co‑ordinator has the meaning given by section 6R of the Telecommunications (Interception and Access) Act 1979.
connected, in relation to:
(a) a telecommunications network; or
(b) a facility; or
(c) customer cabling; or
(d) customer equipment;
includes connection otherwise than by means of physical contact, for example, a connection by means of radiocommunication.
connection permit means a permit issued under section 394.
constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.
content service has the meaning given by section 15.
content service provider has the meaning given by section 97.
controlled carriage service has the meaning given by section 14.
controlled facility has the meaning given by section 14.
controlled network has the meaning given by section 14.
customer cabling has the meaning given by section 20.
customer equipment has the meaning given by section 21.
data processing device means any article or material (for example, a disk) from which information is capable of being reproduced, with or without the aid of any other article or device.
Defence Department means the Department of State that deals with defence and that is administered by the Minister administering section 1 of the Defence Act 1903.
defence purposes means any one or more of the following:
(a) the operation of command or control systems;
(b) the operation, direction or use of a defence organisation;
(c) the operation of intelligence systems;
(d) the collection or dissemination of information relevant to the security or defence of:
(i) the Commonwealth; or
(ii) a foreign country that is allied or associated with the Commonwealth;
(e) the operation or control of weapons systems, including any thing that, by itself or together with any other thing or things, is intended for defensive or offensive use in combat;
(f) any other matter specified in the regulations.
designated part of the spectrum has the meaning given by section 577H.
designated radiocommunications facility has the meaning given by section 31.
Director‑General of Security means the Director‑General of Security holding office under the Australian Security Intelligence Organisation Act 1979.
directory assistance services means services that are:
(a) provided to an end‑user of a standard telephone service to help the end‑user find the number of another end‑user of a standard telephone service; and
(b) provided by an operator or by means of:
(i) an automated voice response system; or
(ii) another technology‑based system.
distinct places has the meaning given by section 36.
draft functional separation undertaking means a draft functional separation undertaking under Division 2 of Part 9 of Schedule 1.
draft migration plan means a draft migration plan under Subdivision B of Division 2 of Part 33.
eligible partnership means a partnership where each partner is a constitutional corporation.
eligible Territory means:
(a) the Territory of Christmas Island; or
(b) the Territory of Cocos (Keeling) Islands; or
(c) an external Territory prescribed for the purposes of section 10.
emergency call contractor means a person who performs services for or on behalf of a recognised person who operates an emergency call service, but does not include a person who performs such services in the capacity of an employee of the person who operates the emergency call service.
Note: Recognised person who operates an emergency call service is defined by section 19.
emergency call person means:
(a) a recognised person who operates an emergency call service; or
(b) an employee of such a person; or
(c) an emergency call contractor; or
(d) an employee of an emergency call contractor.
Note: Recognised person who operates an emergency call service is defined by section 19.
emergency call service means a service for:
(a) receiving and handling calls to an emergency service number; and
(b) transferring such calls to:
(i) a police force or service; or
(ii) a fire service; or
(iii) an ambulance service; or
(iv) a service specified in the numbering plan for the purposes of this subparagraph; or
(v) a service for despatching a force or service referred to in subparagraph (i), (ii), (iii) or (iv).
For the purposes of paragraph (b), transferring a call includes giving information in relation to the call for purposes connected with dealing with the matter or matters raised by the call.
emergency service number has the meaning given by section 466.
exempt network‑user means:
(a) a person:
(i) who is entitled to use a network unit to supply a carriage service; and
(ii) whose entitlement derives, directly or indirectly, from rights granted to a carrier; or
(b) if:
(i) a police force or service; or
(ii) a fire service; or
(iii) an ambulance service; or
(iv) an emergency service specified in the regulations;
(the first force or service) uses a network unit for the sole or principal purpose of enabling either or both of the following:
(v) communication between the members of the first force or service;
(vi) communication between the members of the first force or service and the members of another force or service, where the other force or service is of a kind covered by subparagraph (i), (ii), (iii) or (iv);
the first force or service.
For the purposes of paragraph (b), an employee of a force or service is taken to be a member of the force or service.
facility means:
(a) any part of the infrastructure of a telecommunications network; or
(b) any line, equipment, apparatus, tower, mast, antenna, tunnel, duct, hole, pit, pole or other structure or thing used, or for use, in or in connection with a telecommunications network.
fax marketing industry means an industry that involves carrying on a fax marketing activity (as defined by section 109C).
Federal Court means the Federal Court of Australia.
fibre‑ready facility has the meaning given by section 372W.
final functional separation undertaking means a final functional separation undertaking under Division 2 of Part 9 of Schedule 1.
final migration plan means a final migration plan under Subdivision B of Division 2 of Part 33.
Finance Minister means the Minister administering the Public Governance, Performance and Accountability Act 2013.
fixed‑line facility has the meaning given by section 372V.
fixed radiocommunications link has the meaning given by section 35.
Home Affairs Department means the Department administered by the Home Affairs Minister.
Home Affairs Minister means the Minister administering the Australian Security Intelligence Organisation Act 1979.
Home Affairs Secretary means the Secretary of the Home Affairs Department.
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.
immediate circle has the meaning given by section 23.
import means import into Australia.
industry levy means levy imposed by the Telecommunications (Industry Levy) Act 2012.
infringement notice means an infringement notice under section 572E.
inspector has the meaning given by section 533.
integrated public number database scheme means the scheme in force under section 295A.
intercell hand‑over functions has the meaning given by section 33.
internet carriage service means a carriage service that enables end‑users to access the internet.
internet service provider has the same meaning as in Schedule 5 to the Broadcasting Services Act 1992.
Layer 2 bitstream service means a carriage service that is:
(a) either:
(i) a Layer 2 Ethernet bitstream service; or
(ii) a Layer 2 bitstream service specified in a legislative instrument made by the ACMA for the purposes of this subparagraph; and
(b) a listed carriage service; and
(c) supplied using a line to premises occupied or used by an end‑user.
For this purpose, Layer 2 has the same meaning as in the Open System Interconnection (OSI) Reference Model for data exchange.
line means a wire, cable, optical fibre, tube, conduit, waveguide or other physical medium used, or for use, as a continuous artificial guide for or in connection with carrying communications by means of guided electromagnetic energy.
line link has the meaning given by section 30.
listed carriage service has the meaning given by section 16.
marketing fax means:
(a) a marketing fax (within the meaning of the Do Not Call Register Act 2006) that is sent to an Australian number; or
(b) a fax (within the meaning of the Do Not Call Register Act 2006) that is sent to an Australian number, where, having regard to:
(i) the content of the fax; and
(ii) the presentational aspects of the fax;
it would be concluded that the purpose, or one of the purposes, of the fax is:
(iii) to conduct opinion polling; or
(iv) to carry out standard questionnaire‑based research.
member means a member of the ACMA (and does not include an associate member).
NBN corporation has the same meaning as in the National Broadband Network Companies Act 2011. This definition does not apply to:
(a) section 577BA; or
(b) section 577BC; or
(c) clause 17 of Schedule 1; or
(d) Part 5 of Schedule 1.
network unit has the meaning given by Division 2 of Part 2.
nominated carriage service provider means a carriage service provider covered by a declaration in force under subsection 197(4) of the Telecommunications (Interception and Access) Act 1979.
nominated carrier means a carrier in respect of whom a nominated carrier declaration is in force.
nominated carrier declaration means a declaration under section 81.
notifiable equipment has the same meaning as in the Telecommunications (Interception and Access) Act 1979.
numbering plan has the meaning given by section 455.
optical fibre line means a line that consists of, or encloses, optical fibre.
owner, in relation to a network unit, means a person who legally owns the unit (whether alone or together with one or more other persons).
person includes a partnership.
point‑to‑multipoint service means a carriage service which allows a person to transmit a communication to more than one end‑user simultaneously.
project area for a real estate development project has the meaning given by section 372Q.
public body means:
(a) the Commonwealth, a State or a Territory; or
(b) an authority, or institution, of the Commonwealth, a State or a Territory; or
(c) an incorporated company all the stock or shares in the capital of which is beneficially owned by one of the following:
(i) the Commonwealth;
(ii) a State;
(iii) a Territory; or
(d) an incorporated company limited by guarantee, where the interests and rights of the members in or in relation to the company are beneficially owned by one of the following:
(i) the Commonwealth;
(ii) a State;
(iii) a Territory.
public mobile telecommunications service has the meaning given by section 32.
radiocommunication has the same meaning as in the Radiocommunications Act 1992.
radiocommunications device has the same meaning as in the Radiocommunications Act 1992.
radiocommunications receiver has the same meaning as in the Radiocommunications Act 1992.
radiocommunications transmitter has the same meaning as in the Radiocommunications Act 1992.
real estate development project has the meaning given by section 372Q.
recognised person who operates an emergency call service has the meaning given by section 19.
recognised testing authority has the meaning given by section 409.
record‑keeping rule means a rule under section 529.
registered charity means an entity that is registered under the Australian Charities and Not‑for‑profits Commission Act 2012 as the type of entity mentioned in column 1 of item 1 of the table in subsection 25‑5(5) of that Act.
satellite‑based facility means a radiocommunications transmitter, or a radiocommunications receiver, in a satellite.
sell:
(a) when used in relation to a building lot—has the meaning given by section 372T; or
(b) when used in relation to a building unit—has the meaning given by section 372U.
service provider has the meaning given by section 86.
service provider rules has the meaning given by section 98.
spectrum has the same meaning as in the Radiocommunications Act 1992.
spectrum licence has the same meaning as in the Radiocommunications Act 1992.
standard questionnaire‑based research means research that involves people being asked to answer one or more standard questions, but does not include:
(a) opinion polling; or
(b) research of a kind specified in the regulations.
standard telephone service has the meaning given by section 6 of the Telecommunications (Consumer Protection and Service Standards) Act 1999.
subdivision of an area of land has a meaning affected by section 372R.
subscription television broadcasting licence has the same meaning as in the Broadcasting Services Act 1992.
telecommunications industry includes an industry that involves:
(a) carrying on business as a carrier; or
(b) carrying on business as a carriage service provider; or
(c) supplying goods or services for use in connection with the supply of a listed carriage service; or
(d) supplying a content service using a listed carriage service; or
(e) manufacturing or importing customer equipment or customer cabling; or
(f) installing, maintaining, operating or providing access to:
(i) a telecommunications network; or
(ii) a facility;
used to supply a listed carriage service.
Telecommunications Industry Ombudsman has the same meaning as in the Telecommunications (Consumer Protection and Service Standards) Act 1999.
Telecommunications Industry Ombudsman scheme has the same meaning as in the Telecommunications (Consumer Protection and Service Standards) Act 1999.
telecommunications network means a system, or series of systems, that carries, or is capable of carrying, communications by means of guided and/or unguided electromagnetic energy.
telecommunications service has the same meaning as in the Telecommunications (Interception and Access) Act 1979.
telecommunications system has the same meaning as in the Telecommunications (Interception and Access) Act 1979.
telemarketing call means:
(a) a telemarketing call (within the meaning of the Do Not Call Register Act 2006) that is made to an Australian number; or
(b) a voice call (within the meaning of the Do Not Call Register Act 2006) that is made to an Australian number, where, having regard to:
(i) the content of the call; and
(ii) the presentational aspects of the call;
it would be concluded that the purpose, or one of the purposes, of the call is:
(iii) to conduct opinion polling; or
(iv) to carry out standard questionnaire‑based research.
telemarketing industry means an industry that involves carrying on a telemarketing activity (as defined by section 109B).
Telstra has the same meaning as in the Telstra Corporation Act 1991.
this Act includes the regulations.
universal service obligation has the same meaning as in the Telecommunications (Consumer Protection and Service Standards) Act 1999.
vessel means a vessel or boat of any description, and includes:
(a) an air‑cushion vehicle; and
(b) any floating structure.
8 Crown to be bound
(1) This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.
(2) This Act does not make the Crown liable to a pecuniary penalty or to be prosecuted for an offence.
(3) The protection in subsection (2) does not apply to an authority of the Crown.
9 Extra‑territorial application
This Act applies both within and outside Australia.
10 Extension to external Territories
(1) This Act extends to:
(a) the Territory of Christmas Island; and
(b) the Territory of Cocos (Keeling) Islands; and
(c) such other external Territories (if any) as are prescribed.
(2) The operation of this Act in relation to Norfolk Island is not affected by the amendments made by Division 1 of Part 1 of Schedule 5 to the Territories Legislation Amendment Act 2016.
11 Extension to offshore areas
(1) This Act applies in relation to the offshore areas of:
(a) each of the States; and
(b) each of the eligible Territories;
as if references in this Act to Australia included references to those offshore areas. This subsection has effect subject to subsection (2).
(2) The application of this Act in accordance with subsection (1) in relation to an offshore area extends only in relation to acts, matters and things touching, concerning, arising out of or connected with:
(a) the exploration of the continental shelf of Australia; or
(b) the exploitation of the resources of the continental shelf of Australia.
(3) The application of this Act in accordance with subsection (1) in relation to an offshore area extends in relation to all acts done by or in relation to, and all matters, circumstances and things affecting, any person who is in the offshore area for a reason touching, concerning, arising out of or connected with:
(a) the exploration of the continental shelf of Australia; or
(b) the exploitation of the resources of the continental shelf of Australia.
(4) Subsection (3) does not, by implication, limit subsection (2).
(5) In this section:
offshore area, in relation to a State or Territory, has the same meaning as in the Offshore Petroleum and Greenhouse Gas Storage Act 2006.
11A Application of the Criminal Code
Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
12 Act subject to Radiocommunications Act
(1) This Act has effect subject to the Radiocommunications Act 1992.
(2) However, to avoid doubt, the fact that a person is authorised to do something under a licence under the Radiocommunications Act 1992 does not entitle the person to do that thing if the person is prohibited by or under this Act from doing it, unless a condition of the licence requires the person to do it.
13 Continuity of partnerships
For the purposes of this Act, a change in the composition of a partnership does not affect the continuity of the partnership.
14 Controlled carriage services, controlled networks and controlled facilities
Controlled carriage services
(1) For the purposes of this Act, if:
(a) a carrier or carriage service provider supplies, or proposes to supply, a carriage service; and
(b) the carriage service involves, or will involve, the use of a controlled network, or a controlled facility, of the carrier or of the provider, as the case may be;
the carriage service is a controlled carriage service of the carrier or the provider, as the case may be.
Controlled networks
(2) For the purposes of this Act, if:
(a) a carrier or carriage service provider operates a telecommunications network; and
(b) the network satisfies the geographical test set out in subsection (4);
the network is a controlled network of the carrier or the provider, as the case may be.
Controlled facilities
(3) For the purposes of this Act, if:
(a) a carrier or carriage service provider operates a facility; and
(b) the facility satisfies the geographical test set out in subsection (4);
the facility is a controlled facility of the carrier or provider, as the case may be.
Geographical test
(4) For the purposes of this section, a telecommunications network, or a facility, satisfies the geographical test if:
(a) the whole or any part of the network or facility, as the case requires, is, or will be, located in Australia; or
(b) all of the following conditions are satisfied:
(i) a person, or a group of persons, operates the network or the facility, as the case requires;
(ii) the person, or at least one of the members of the group, carries on, or will carry on, a telecommunications‑related business wholly or partly in Australia;
(iii) the network, or the facility, as the case requires, is used, or will be used, to supply a listed carriage service, or a service that is ancillary or incidental to such a service.
Definition
(5) In this section:
telecommunications‑related business means a business that consists of, or includes:
(a) supplying a carriage service; or
(b) supplying goods or services for use in connection with the supply of a carriage service; or
(c) supplying a content service; or
(d) installing, maintaining, operating or providing access to:
(i) a telecommunications network; or
(ii) a facility.
15 Content service
(1) For the purposes of this Act, a content service is:
(a) a broadcasting service; or
(b) an on‑line information service (for example, a dial‑up information service); or
(c) an on‑line entertainment service (for example, a video‑on‑demand service or an interactive computer game service); or
(d) any other on‑line service (for example, an education service provided by a State or Territory government); or
(e) a service of a kind specified in a determination made by the Minister for the purposes of this paragraph.
(2) The Minister may, by legislative instrument, make a determination for the purposes of paragraph (1)(e).
16 Listed carriage services
(1) For the purposes of this Act, the following carriage services are listed carriage services:
(a) a carriage service between a point in Australia and one or more other points in Australia;
(b) a carriage service between a point and one or more other points, where the first‑mentioned point is in Australia and at least one of the other points is outside Australia;
(c) a carriage service between a point and one or more other points, where the first‑mentioned point is outside Australia and at least one of the other points is in Australia.
(2) For the purposes of this section, a point includes a mobile or potentially mobile point, whether on land, underground, in the atmosphere, in outer space, underwater, at sea or anywhere else.
(3) For the purposes of this section, a point that is:
(a) in the atmosphere; and
(b) in or below the stratosphere; and
(c) above Australia;
is taken to be a point in Australia.
(4) For the purposes of this section, a point that is:
(a) on a satellite; and
(b) above the stratosphere;
is taken to be a point outside Australia.
18 Access to an emergency call service
For the purposes of this Act, a person is taken not to have access to an emergency call service unless, in the event that the person attempts to place a call to the relevant emergency service number, the call can be established and maintained.
19 Recognised person who operates an emergency call service
(1) A reference in this Act to a recognised person who operates an emergency call service is a reference to a person who:
(a) operates an emergency call service; and
(b) is specified, in a written determination made by the ACMA for the purposes of this paragraph, as:
(i) a national operator of emergency call services; or
(ii) a regional operator of emergency call services.
(2) A copy of a determination under paragraph (1)(b) is to be published in the Gazette.
(3) A person may be specified in a determination under paragraph (1)(b) even if the person does not operate an emergency call service at the time the determination is made.
(4) Subsection (3) is enacted for the avoidance of doubt.
20 Customer cabling
(1) For the purposes of this Act, customer cabling means a line that, under the regulations, is treated as customer cabling.
(2) Regulations made for the purposes of subsection (1) may deal with a matter by reference to the boundary of a telecommunications network.
Note: Boundary of a telecommunications network is defined by section 22.
(3) Subsection (2) does not, by implication, limit subsection (1).
(4) If no regulations are in force for the purposes of subsection (1), then, for the purposes of this Act, customer cabling means a line that is used, installed ready for use or intended for use on the customer side of the boundary of a telecommunications network.
Note: Boundary of a telecommunications network is defined by section 22.
21 Customer equipment
(1) For the purposes of this Act, customer equipment means:
(a) any equipment, apparatus, tower, mast, antenna or other structure or thing; or
(b) any system (whether software‑based or otherwise);
that:
(c) is used, installed ready for use or intended for use in connection with a carriage service; and
(d) under the regulations, is treated as customer equipment;
but does not include a line.
(2) Regulations made for the purposes of subsection (1) may deal with a matter by reference to the boundary of a telecommunications network.
Note: Boundary of a telecommunications network is defined by section 22.
(3) Subsection (2) does not, by implication, limit subsection (1).
(4) If no regulations are in force for the purposes of subsection (1), then, for the purposes of this Act, customer equipment means:
(a) any equipment, apparatus, tower, mast, antenna or other structure or thing that is used, installed ready for use or intended for use on the customer side of the boundary of a telecommunications network; or
(b) any system (whether software‑based or otherwise) that is used, installed ready for use or intended for use on the customer side of the boundary of a telecommunications network;
but does not include:
(c) a line; or
(d) equipment of a kind specified in regulations made for the purposes of this paragraph; or
(e) an apparatus, tower, mast, antenna or other structure or thing that is of a kind specified in regulations made for the purposes of this paragraph; or
(f) a system (whether software‑based or otherwise) that is of a kind specified in regulations made for the purposes of this paragraph.
Note : Boundary of a telecommunications network is defined by section 22.
22 Customer cabling and customer equipment—boundary of a telecommunications network
(1) For the purposes of sections 20, 21, 30, 349, 372B, 372C and 372V, the boundary of a telecommunications network is to be ascertained in accordance with the regulations.
(2) Regulations made for the purposes of subsection (1) may deal with a matter by reference to any or all of the following:
(a) the terms of an agreement between 2 or more carriers, where the agreement is entered into for the purposes of those regulations;
(b) the terms of an agreement between 2 or more carriage service providers, where the agreement is entered into for the purposes of those regulations;
(c) the terms of an agreement between a carrier and a carriage service provider, where the agreement is entered into for the purposes of those regulations;
(d) the terms of an agreement between a carrier and a customer of the carrier, where the agreement is entered into for the purposes of those regulations;
(e) the terms of an agreement between a carriage service provider and a customer of the provider, where the agreement is entered into for the purposes of those regulations.
(3) Subsection (2) does not, by implication, limit subsection (1).
(4) If no regulations are in force for the purposes of subsection (1), then, for the purposes of sections 20, 21, 30, 349, 372B, 372C and 372V, the boundary of a telecommunications network is:
(a) in a case where a telecommunications network is used to supply a carriage service to an end‑user in a building by means of a line that enters the building—the point agreed between the customer and the carrier or carriage service provider who operates the telecommunications network, or, failing agreement:
(i) if there is a main distribution frame in the building and the line is connected to the frame—the side of the frame nearest to the end‑user; or
(ii) if subparagraph (i) does not apply but the line is connected to a network termination device located in, on or within close proximity to, the building—the side of the device nearest to the end‑user; or
(iii) if neither subparagraph (i) nor (ii) applies but the line is connected to one or more sockets in the building—the side nearest to the end‑user of the first socket after the building entry point; or
(b) in a case where a telecommunications network is used to supply a carriage service to an end‑user by means of a satellite‑based facility that transmits to, or receives transmissions from, the point where the end user is located—the outer surface of the satellite‑based facility; or
(c) in a case where:
(i) a telecommunications network is used to supply a carriage service to an end‑user; and
(ii) paragraphs (a) and (b) do not apply;
the outer surface of the fixed facility nearest to the end‑user, where the facility is used, installed ready for use or intended for use to supply the carriage service.
(5) If, immediately before 1 July 1997, the boundary of a telecommunications network used to supply a standard telephone service to an end‑user in a building by means of a line that enters the building is the side of a main distribution frame, or a telephone socket, nearest to the end‑user, paragraph (4)(a) has effect, on and after 1 July 1997, as if the customer and the carrier or carriage service provider who operates the network had agreed to the boundary at that point.
(6) Subsection (5) does not prevent the customer and the carrier or carriage service provider agreeing to a boundary at a different point.
(7) For the purposes of subsection (4), the building entry point is the point at which a line that is used to provide a carriage service to an end‑user in a building meets the outer surface of that building, immediately before entering the building.
(8) In this section:
building includes a structure, a caravan and a mobile home.
23 Immediate circle
(1) For the purposes of this Act, a person’s immediate circle consists of the person, together with the following persons:
(a) if the person is an individual—an employee of the individual;
(b) if the person is a partnership—an employee of the partnership;
(c) if the person is a body corporate:
(i) an officer of the body corporate;
(ii) if another body corporate is related to the first‑mentioned body corporate (within the meaning of the Corporations Act 2001)—that other body corporate and an officer of that other body corporate;
(d) if the person is the Commonwealth:
(i) an authority or institution of the Commonwealth (other than an authority or institution that carries on a business as a core function) and a constituent member or an employee of such an authority or institution;
(ii) an officer or employee of the Commonwealth;
(iii) a member of the Australian Defence Force;
(iv) a member of the Australian Federal Police;
(v) a member of the Parliament and a member of the staff of a member of the Parliament;
(vi) a person who holds or performs the duties of an office under the Constitution or a law of the Commonwealth;
(e) if the person is a State:
(i) an authority or institution of the State (other than an authority or institution that carries on a business as a core function) and a constituent member or an employee of such an authority or institution;
(ii) an officer or employee of the State;
(iii) a member of the police force of the State;
(iv) a member of the Parliament of the State and a member of the staff of a member of the Parliament of the State;
(v) a person who holds or performs the duties of an office under a law of the State;
(f) if the person is a Territory:
(i) an authority or institution of the Territory (other than an authority or institution that carries on a business as a core function) and a constituent member or an employee of such an authority or institution;
(ii) an officer or employee of the Territory;
(iii) a member of the police force of the Territory;
(iv) a member of the Legislative Assembly of the Territory and a member of the staff of a member of the Legislative Assembly of the Territory;
(v) a person who holds or performs the duties of an office under a law of the Territory;
(g) if the person is an authority or institution of the Commonwealth (other than an authority or institution that carries on a business as a core function):
(i) a constituent member or an employee of the authority or institution;
(ii) the Commonwealth;
(iii) an officer or employee of the Commonwealth;
(iv) a member of the Australian Defence Force;
(v) a member of the Australian Federal Police;
(vi) a member of the Parliament and a member of the staff of a member of the Parliament;
(vii) a person who holds or performs the duties of an office under the Constitution or a law of the Commonwealth;
(viii) another authority or institution of the Commonwealth (other than an authority or institution that carries on a business as a core function) and a constituent member or an employee of the other authority or institution;
(h) if the person is an authority or institution of the Commonwealth, being an authority or institution that carries on a business as a core function—a constituent member or an employee of the authority or institution;
(i) if the person is an authority or institution of a State (other than an authority or institution that carries on a business as a core function):
(i) a constituent member or an employee of the authority or institution;
(ii) the State;
(iii) an officer or employee of the State;
(iv) a member of the police force of the State;
(v) a member of the Parliament of the State and a member of the staff of a member of the Parliament of the State;
(vi) a person who holds or performs the duties of an office under a law of the State;
(vii) another authority or institution of the State (other than an authority or institution that carries on a business as a core function) and a constituent member or an employee of the other authority or institution;
(j) if the person is an authority or institution of a State, being an authority or institution that carries on a business as a core function—a constituent member or an employee of the authority or institution;
(k) if the person is an authority or institution of a Territory (other than an authority or institution that carries on a business as a core function):
(i) a constituent member or an employee of the authority or institution;
(ii) the Territory;
(iii) an officer or employee of the Territory;
(iv) a member of the police force of the Territory;
(v) a member of the Legislative Assembly of the Territory and a member of the staff of a member of the Legislative Assembly of the Territory;
(vi) a person who holds or performs the duties of an office under a law of the Territory;
(vii) another authority or institution of the Territory (other than an authority or institution that carries on a business as a core function) and a constituent member or an employee of the other authority or institution;
(l) if the person is an authority or institution of a Territory, being an authority or institution that carries on a business as a core function—a constituent member or employee of the authority or institution;
(m) if the person is a tertiary education institution:
(i) a member of the governing body of the tertiary education institution;
(ii) an officer or employee of the tertiary education institution;
(iii) a student of the tertiary education institution;
(n) a person specified in a determination under subsection (2).
(2) The Minister may, by legislative instrument, make a determination specifying persons for the purposes of paragraph (1)(n).
(3) A determination under subsection (2) may be unconditional or subject to such conditions (if any) as are specified in the determination.
(4) Paragraphs (1)(a) to (m) (inclusive) do not, by implication, limit subsections (2) and (3).
(5) The Minister may, by legislative instrument, make a determination providing that a specified authority or specified institution is taken to carry on a business as a core function for the purposes of subsection (1).
(6) The Minister may, by legislative instrument, make a determination providing that a specified authority or specified institution is taken not to carry on a business as a core function for the purposes of subsection (1).
(7) A determination under subsection (2), (5) or (6) has effect accordingly.
(9) For the purposes of this section, a person who holds or performs the duties of the office of Administrator of the Northern Territory is taken to be an officer of that Territory.
(10) For the purposes of this section, the Australian Federal Police is taken to be the police force of the Australian Capital Territory.
(11) In this section:
core function, in relation to an authority or institution, means a function of the authority or institution other than a secondary or incidental function.
director includes a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, a State or a Territory.
executive officer, in relation to a body corporate, means a person, by whatever name called and whether or not a director of the body, who is concerned in, or takes part in, the management of the body.
officer, in relation to a body corporate, includes a director, secretary, executive officer or employee of the body.
tertiary education institution means:
(a) a higher education institution (within the meaning of the Student Assistance Act 1973); or
(b) a technical and further education institution (within the meaning of that Act).
24 Extended meaning of use
Unless the contrary intention appears, a reference in this Act to the use of a thing is a reference to the use of the thing either:
(a) in isolation; or
(b) in conjunction with one or more other things.
Part 2—Network units
Division 1—Simplified outline
25 Simplified outline
The following is a simplified outline of this Part:
• The object of this Part is to define the expression network unit.
• There are 4 types of network unit:
(a) a single line link connecting distinct places in Australia, where the line link meets certain minimum distance requirements;
(b) multiple line links connecting distinct places in Australia, where the line links meet certain minimum distance requirements;
(c) a designated radiocommunications facility;
(d) a facility specified in a Ministerial determination.
Division 2—Basic definition
26 Single line links connecting distinct places in Australia
(1) If:
(a) a line link connects distinct places in Australia; and
(b) the distinct places are at least the statutory distance apart;
the line link is a network unit.
(2) For the purposes of this section, the statutory distance is:
(a) 500 metres; or
(b) if a longer distance, not exceeding 50 kilometres, is specified in the regulations—that longer distance.
27 Multiple line links connecting distinct places in Australia
(1) If:
(a) the same person owns, or the same persons own, 2 or more line links; and
(b) each of those line links connects distinct places in Australia; and
(c) the aggregate of the distances between the distinct places is more than the statutory distance;
each of those line links is a network unit.
Note: Statutory distance is defined by subsection (3).
(2) If:
(a) the following conditions are satisfied in relation to 2 or more line links:
(i) the owners of the line links are bodies corporate;
(ii) the owners of the line links are all members of the same related company group; and
(b) each of those line links connects distinct places in Australia; and
(c) the aggregate of the distances between the distinct places is more than the statutory distance;
each of those line links is a network unit.
Note: Statutory distance is defined by subsection (3).
(3) For the purposes of this section, the statutory distance is:
(a) 5 kilometres; or
(b) if a longer distance, not exceeding 500 kilometres, is specified in the regulations—that longer distance.
(4) In this section:
owner means legal or beneficial owner, and own has a corresponding meaning.
related company group means a group of 2 or more bodies corporate, where each member of the group is related to each other member of the group.
(5) For the purposes of this section, the question whether a body corporate is related to another body corporate is to be determined in the same manner as that question is determined under the Corporations Act 2001.
28 Designated radiocommunications facility
(1) If a designated radiocommunications facility is used, or is for use, to supply a carriage service between a point in Australia and one or more other points in Australia, the facility is a network unit.
(2) It does not matter whether the supply involves:
(a) the use of a satellite; or
(b) the use of a line or other facility outside Australia.
(3) For the purposes of this section, a point includes a mobile or potentially mobile point, whether on land, underground, in the atmosphere, in outer space, underwater, at sea or anywhere else.
(4) For the purposes of this section, a point that is:
(a) in the atmosphere; and
(b) in or below the stratosphere; and
(c) above Australia;
is taken to be a point in Australia.
(5) For the purposes of this section, a point that is:
(a) on a satellite; and
(b) above the stratosphere;
is taken to be a point outside Australia.
29 Facilities specified in Ministerial determination
(1) The Minister may, by legislative instrument, determine that a specified facility is a network unit for the purposes of this Act.
(2) The determination has effect accordingly.
(4) To avoid doubt, nothing in the other provisions of this Part limits the power conferred by subsection (1).
Division 3—Related definitions
30 Line links
(1) A line constitutes a line link.
(2) If:
(a) a line is connected to another line; and
(b) the other line constitutes, or forms part of, a line link;
the first‑mentioned line, and the line link referred to in paragraph (b), together constitute a line link.
(3) Subsection (2) is recursive, that is, the reference in paragraph (2)(b) to a line link is a reference to something that is a line link because of any other application or applications of this section.
(4) For the purposes of subsection (2), a line is connected to another line if, and only if:
(a) the lines are connected to each other; or
(b) each of the lines is connected to the same facility (other than a line);
in such a way that a communication can be carried, by means of the 2 lines, or by means of facilities including the 2 lines, in the same way as if the 2 lines were a single line.
(4A) A line does not form part of any line link to the extent that the line is on the customer side of the boundary of a telecommunications network.
Note: Boundary of a telecommunications network is defined by section 22.
(5) A facility other than a line does not form part of any line link.
31 Designated radiocommunications facility
(1) A reference in this Act to a designated radiocommunications facility is a reference to:
(a) a base station used, or for use, to supply a public mobile telecommunications service; or
(b) a base station that is part of a terrestrial radiocommunications customer access network; or
(c) a fixed radiocommunications link; or
(d) a satellite‑based facility; or
(e) a radiocommunications transmitter of a kind specified in a determination under subsection (2); or
(f) a radiocommunications receiver of a kind specified in a determination under subsection (3);
but does not include a reference to:
(g) a base station of a kind declared under subsection (5) to be exempt from this section; or
(h) a fixed radiocommunications link of a kind declared under subsection (5) to be exempt from this section; or
(i) a satellite‑based facility of a kind declared under subsection (5) to be exempt from this section.
Note 1: Public mobile telecommunications service is defined by section 32.
Note 2: Base station that is part of a terrestrial radiocommunications customer access network is defined by section 34.
Note 3: Fixed radiocommunications link is defined by section 35.
Note 4: Satellite‑based facility is defined by section 7.
(2) The Minister may, by legislative instrument, make a determination for the purposes of paragraph (1)(e).
(3) The Minister may, by legislative instrument, make a determination for the purposes of paragraph (1)(f).
(5) The Minister may, by legislative instrument, make a declaration for the purposes of paragraph (1)(g), (h) or (i).
(7) To avoid doubt, nothing in the other provisions of this Part limits a power conferred by subsection (2), (3) or (5).
32 Public mobile telecommunications service
(1) For the purposes of this Act, if:
(a) an end‑user can use a carriage service while moving continuously between places; and
(b) the customer equipment used for or in relation to the supply of the service is not in physical contact with any part of the telecommunications network by means of which the service is supplied; and
(c) the service is supplied by use of a telecommunications network that has intercell hand‑over functions; and
(d) the service is not an exempt service (as defined by subsection (2), (3) or (4));
the service is a public mobile telecommunications service.
(2) For the purposes of this section, a carriage service is an exempt service if:
(a) the service is supplied by means of a telecommunications network (a primary network) that is connected to one or more line links or other facilities that, apart from this section, are eligible network units; and
(b) the principal function of the primary network is to supply carriage services between customer equipment connected to the primary network and other such equipment; and
(c) the supply of carriage services between such equipment and equipment connected to the network units is, at most, an ancillary function of the primary network; and
(d) despite the connection or connections referred to in paragraph (a), the primary network cannot be used in carrying a communication, as a single transaction, between equipment connected to the network units and other such equipment.
(3) For the purposes of this section, a carriage service is an exempt service if the service is:
(a) a one‑way only, store‑and‑forward communications service; or
(b) a service that performs the same functions as such a service.
(4) For the purposes of this section, a carriage service is an exempt service if all of the end‑users of the service are located at the same distinct place.
(5) In this section:
eligible network unit means a network unit:
(a) that is owned by one or more carriers; or
(b) in relation to which a nominated carrier declaration is in force.
33 Intercell hand‑over functions
(1) For the purposes of this Act, a telecommunications network is taken to have intercell hand‑over functions if, and only if:
(a) the facilities of the network include at least 2 base stations each of which transmits and receives signals to and from customer equipment (mobile equipment) that is:
(i) used for or in relation to the supply of an eligible mobile telecommunications service; and
(ii) located within a particular area (a cell); and
(b) the network includes the functions necessary to do the following while the network is carrying a communication made to or from particular mobile equipment:
(i) determine in which cell the equipment is located and cause the base station in that cell to transmit and receive signals to and from the equipment;
(ii) when the equipment moves from one cell to another, cause the base station in the one cell to stop, and the base station in the other cell to start, transmitting and receiving signals to and from the equipment.
(2) For the purposes of this section, a carriage service is an eligible mobile telecommunications service if:
(a) an end‑user can use it while moving continuously between places; and
(b) customer equipment used for or in relation to the supply of the service is not in physical contact with any part of the telecommunications network by means of which the service is supplied.
34 When a base station is part of a terrestrial radiocommunications customer access network
(1) For the purposes of this Act, a base station is part of a terrestrial radiocommunications customer access network if, and only if:
(a) the base station is part of a telecommunications network; and
(b) the base station is not an exempt base station (as defined by subsection (2)); and
(c) the base station is used, or for use, in connection with the supply of a carriage service; and
(d) customer equipment used for or in relation to the supply of the service is not in physical contact with any part of the telecommunications network by means of which the service is supplied; and
(e) the service is wholly or principally used, or wholly or principally for use, by each end‑user:
(i) at premises occupied or used by the end‑user; or
(ii) in the immediate vicinity of those premises; and
(f) the network does not have intercell hand‑over functions; and
(g) the conditions (if any) specified in the regulations are satisfied; and
(h) the network is not an exempt network (as defined by subsection (3)).
(2) For the purposes of paragraph (1)(b), a base station is an exempt base station if the sole use of the base station is use by a broadcaster to:
(a) supply broadcasting services to the public; or
(b) supply a secondary carriage service by means of the main carrier signal of a primary broadcasting service;
or both.
(3) For the purposes of paragraph (1)(h), a network is an exempt network if:
(a) the network is used, or for use, for the sole purpose of supplying carriage services on a non‑commercial basis; or
(b) the network is of a kind specified in the regulations.
(4) In this section:
broadcaster means:
(a) the Australian Broadcasting Corporation; or
(b) the Special Broadcasting Service Corporation; or
(c) the holder of a licence under the Broadcasting Services Act 1992; or
(d) a person who provides a broadcasting service under a class licence under the Broadcasting Services Act 1992.
35 Fixed radiocommunications link
(1) For the purposes of this Act, a fixed radiocommunications link is a facility, or a combination of facilities, where:
(a) the facility or combination is used, or for use, in connection with the supply of a carriage service between 2 or more fixed points by means of radiocommunication; and
(b) some or all of the communications carried by means of the facility or combination have the characteristic of double‑ended interconnection (as defined by subsection (3)); and
(c) the facility or combination does not consist of:
(i) one or more base stations that are part of a terrestrial radiocommunications customer access network; or
(ii) one or more base stations that would be part of such a network if paragraph 34(1)(h) had not been enacted.
(2) For the purposes of this section, a fixed point is a fixed point on:
(a) land; or
(b) a building or structure on land.
(3) For the purposes of this section, if:
(a) a communication is carried over a line link or other facility that, apart from this section, is an eligible network unit; and
(b) the communication is then carried (immediately or with a transmission delay of not longer than 30 seconds), by means of radiocommunication, between 2 or more fixed points; and
(c) the communication is then carried (immediately or with a transmission delay of not longer than 30 seconds) over another line link or other facility that, apart from this section, is an eligible network unit;
the communication referred to in paragraph (b) has the characteristic of double‑ended interconnection.
(4) In this section:
eligible network unit means a network unit:
(a) that is owned by one or more carriers; or
(b) in relation to which a nominated carrier declaration is in force.
Division 4—Distinct places
36 Distinct places—basic rules
(1) Places are distinct unless they are all in the same area because of subsection (2), (3) or (4).
(2) Places are in the same area if they are all situated in the same property as defined by section 37.
(3) Places are in the same area if they are situated in properties each of which forms part of a combined area as defined by section 38 and:
(a) the same person or persons is or are the principal user (as defined by section 39) of all the properties that together constitute that combined area; or
(b) because of a determination in force under section 40, that combined area is an eligible combined area for the purposes of this paragraph.
(4) Places are in the same area if they are all situated in the same eligible Territory.
(5) The later provisions of this Division have effect only for the purposes of this Division.
37 Properties
(1) An area of land is a property if:
(a) there is a single freehold or leasehold title in relation to that area (whether or not that title is registered under a law of a State or Territory relating to the registration of interests in land); and
(b) no part of that area is subject to a lease granted by the holder of that title; and
(c) the title to the area is defined by reference to geographical coordinates.
(2) If:
(a) there is a single freehold or leasehold title (as mentioned in paragraph (1)(a)) in relation to an area of land; and
(b) some but not all of that area is subject to a lease granted by the holder of that title;
then, an area of land:
(c) all of which is within the area referred to in paragraph (a) of this subsection; and
(d) none of which is subject to such a lease;
is a property unless it is only part of another such area.
(3) An area of land is not a property except as provided in this section.
(4) The regulations may prescribe the circumstances in which an area of land in relation to which there is a single freehold or leasehold title is not to constitute a property for the purposes of this Division.
(5) Despite paragraph (1)(c), the regulations may prescribe the circumstances in which an area of land, the title to which is defined otherwise than by reference to geographical coordinates, is a property.
(6) In this section:
land includes premises and a part of premises, but does not include unalienated Crown land.
lease includes sublease and leasehold title has a corresponding meaning.
38 Combined areas
(1) 2 contiguous properties form a combined area.
(2) If:
(a) a property is contiguous with another property; and
(b) the other property forms part of a combined area;
the first‑mentioned property, and the combined area referred to in paragraph (b), together form a combined area.
(3) Subsection (2) is recursive, that is, the reference in paragraph (2)(b) to a combined area is a reference to something that is a combined area because of any other application or applications of this section.
39 Principal user of a property
(1) The principal user of a property is the person who:
(a) occupies the property; or
(b) uses the property for the purpose that is the sole or principal purpose for which the property is used.
(2) However, if 2 or more persons:
(a) together occupy a property; or
(b) together use a property for the purpose that is the sole or principal purpose for which the property is used;
they are taken to together be the principal user of the property.
40 Eligible combined areas
The Minister may, by legislative instrument, determine that specified combined areas are eligible combined areas for the purposes of paragraph 36(3)(b).
Part 3—Carriers
Division 1—Simplified outline
41 Simplified outline
The following is a simplified outline of this Part:
• The owner of a network unit that is used to supply carriage services to the public must hold a carrier licence unless:
(a) a nominated carrier declaration is in force in relation to the network unit; or
(b) an exemption applies.
• Carrier licences are granted by the ACMA.
• The holder of a carrier licence is known as a carrier.
• If responsibility for a network unit is transferred from the owner of the unit to a carrier, the ACMA may make a nominated carrier declaration that declares the carrier to be the nominated carrier in relation to the unit.
• Carrier licences are subject to conditions.
Division 2—Prohibitions relating to carriers
42 Network unit not to be used without carrier licence or nominated carrier declaration
(1) If there is only one owner of a network unit, the owner of the network unit must not use the unit, either alone or jointly with one or more other persons, to supply a carriage service to the public, unless:
(a) the owner holds a carrier licence; or
(b) a nominated carrier declaration is in force in relation to the unit.
(2) If there is only one owner of a network unit, the owner of the network unit must not allow or permit another person to use the unit to supply a carriage service to the public unless:
(a) the owner holds a carrier licence; or
(b) a nominated carrier declaration is in force in relation to the unit.
(3) If there are 2 or more owners of a network unit, an owner of the network unit must not use the unit, either alone or jointly with one or more other persons, to supply a carriage service to the public, unless:
(a) the owner holds a carrier licence; or
(b) a nominated carrier declaration is in force in relation to the unit.
(4) If there are 2 or more owners of a network unit, an owner of the network unit must not, either alone or together with one or more other owners, allow or permit another person to use the unit to supply a carriage service to the public unless:
(a) the owner holds a carrier licence; or
(b) a nominated carrier declaration is in force in relation to the unit.
(5) A person who contravenes subsection (1), (2), (3) or (4) commits an offence punishable on conviction by a fine not exceeding 20,000 penalty units.
Note: See also sections 4AA and 4B of the Crimes Act 1914.
43 Continuing offences
A person who contravenes section 42 commits a separate offence in respect of each day (including a day of a conviction under this section or any later day) during which the contravention continues.
44 Supply to the public
(1) This section sets out the circumstances in which a network unit is taken, for the purposes of section 42, to be used to supply a carriage service to the public.
(2) If:
(a) there is only one owner of a network unit; and
(b) no nominated carrier declaration is in force in relation to the unit; and
(c) any of the following conditions is satisfied:
(i) the unit is used for the carriage of communications between 2 end‑users, where each end‑user is outside the immediate circle of the owner of the unit;
(ii) the unit is used to supply point‑to‑multipoint services to end‑users, where at least one end‑user is outside the immediate circle of the owner of the unit;
(iii) the unit is used to supply designated content services (other than point‑to‑multipoint services) to one or more end‑users, where at least one end‑user is outside the immediate circle of the owner of the unit;
the unit is used to supply a carriage service to the public.
(3) If:
(a) there are 2 or more owners of a network unit; and
(b) no nominated carrier declaration is in force in relation to the unit; and
(c) any of the following conditions is satisfied:
(i) the unit is used for the carriage of communications between 2 end‑users, where each end‑user is outside the overlap of the immediate circles of the owners of the unit;
(ii) the unit is used to supply point‑to‑multipoint services to end‑users, where at least one end‑user is outside the overlap of the immediate circles of the owners of the unit;
(iii) the unit is used to supply designated content services (other than point‑to‑multipoint services) to one or more end‑users, where at least one end‑user is outside the overlap of the immediate circles of the owners of the unit;
the unit is used to supply a carriage service to the public.
(4) If:
(a) a nominated carrier declaration is in force in relation to a network unit; and
(b) any of the following conditions is satisfied:
(i) the unit is used for the carriage of communications between 2 end‑users, where each end‑user is outside the immediate circle of the nominated carrier in relation to the unit;
(ii) the unit is used to supply point‑to‑multipoint services to end‑users, where at least one end‑user is outside the immediate circle of the nominated carrier in relation to the unit;
(iii) the unit is used to supply designated content services (other than point‑to‑multipoint services) to one or more end‑users, where at least one end‑user is outside the immediate circle of the nominated carrier in relation to the unit;
the unit is used to supply a carriage service to the public.
(5) For the purposes of this section, a person is outside the overlap of the immediate circles of the owners of a network unit unless the person is:
(a) within the immediate circles of each of the owners of the unit; or
(b) the owner, or one of the owners, of the unit.
(6) For the purposes of this section, a designated content service is a content service of a kind specified in a written determination made by the Minister.
(7) A determination under subsection (6) is a legislative instrument.
45 Exemption—defence
(1) If the sole use of a network unit is use by, or on behalf of, a defence organisation to carry communications necessary or desirable for defence purposes, section 42 does not apply to the unit.
(2) If:
(a) the principal use of a network unit is use by, or on behalf of, a defence organisation to carry communications necessary or desirable for defence purposes; and
(b) the remaining use of the unit is use by one or more carriers, or by one or more exempt network‑users, to supply carriage services and/or content services;
section 42 does not apply to the unit.
(3) In this section:
defence organisation means:
(a) the Defence Department; or
(b) the Australian Defence Force; or
(c) an organisation of a foreign country, so far as the organisation:
(i) has functions corresponding to functions of, or of a part of, the Defence Department or the Australian Defence Force; and
(ii) is authorised by the Commonwealth to operate or train in Australia or an external Territory; or
(d) a part of such an organisation or body.
46 Exemption—intelligence operations
Section 42 does not apply to a network unit that is used wholly or principally:
(a) by the Australian Secret Intelligence Service; or
(b) by the Australian Security Intelligence Organisation; or
(c) by the Australian Signals Directorate.
47 Exemption—transport authorities
(1) Section 42 does not apply to a network unit if the sole use of the unit is use by Airservices Australia to carry communications necessary or desirable for the workings of aviation services.
(3) Section 42 does not apply to a network unit if the sole use of the unit is use by a State or Territory transport authority to carry communications necessary or desirable for the workings of any or all of the following services:
(a) train services of a kind provided by the authority;
(b) bus or other road services of a kind provided by the authority;
(c) tram services of a kind provided by the authority.
(4) Section 42 does not apply to a network unit if the sole use of the unit is use by a rail corporation to carry communications necessary or desirable for the workings of train services.
(5) Section 42 does not apply to a network unit if:
(a) the principal use of the unit is use by Airservices Australia to carry communications necessary or desirable for the workings of aviation services; and
(b) the remaining use of the unit is use by one or more carriers, or by one or more exempt network‑users, to supply carriage services and/or content services.
(7) Section 42 does not apply to a network unit if:
(a) the principal use of the unit is use by a State or Territory transport authority to carry communications necessary or desirable for the workings of any or all of the following services:
(i) train services of a kind provided by the authority;
(ii) bus or other road services of a kind provided by the authority;
(iii) tram services of a kind provided by the authority; and
(b) the remaining use of the unit is use by one or more carriers, or by one or more exempt network‑users, to supply carriage services and/or content services.
(8) Section 42 does not apply to a network unit if:
(a) the principal use of the unit is use by a rail corporation to carry communications necessary or desirable for the workings of train services; and
(b) the remaining use of the unit is use by one or more carriers, or by one or more exempt network‑users, to supply carriage services and/or content services.
(9) In this section:
rail corporation means a body corporate that manages or operates either or both of the following:
(a) rail transport services;
(b) rail transport infrastructure.
48 Exemption—broadcasting services
(1) If :
(a) the sole use of a network unit is use to carry communications that are necessary or desirable for either or both of the following purposes:
(i) the supply of broadcasting services to the public;
(ii) the supply of a secondary carriage service by means of the main carrier signal of a primary broadcasting service; and
(b) the unit does not consist of, or include, a facility used to carry communications between:
(i) the head end of a cable transmission system; and
(ii) the equipment used by an end‑user to receive a broadcasting service; and
(c) the unit does not consist of a broadcasting transmitter transmitting a signal of a broadcasting service to its intended audience;
section 42 does not apply to the unit.
(2) If:
(a) the principal use of a network unit is use to carry communications that are necessary or desirable for either or both of the following purposes:
(i) the supply of broadcasting services to the public;
(ii) the supply of a secondary carriage service by means of the main carrier signal of a primary broadcasting service; and
(b) the unit does not consist of, or include, a facility used to carry communications between:
(i) the head end of a cable transmission system; and
(ii) the equipment used by an end‑user to receive a broadcasting service; and
(c) the unit does not consist of a broadcasting transmitter transmitting a signal of a broadcasting service to its intended audience; and
(d) the remaining use of the unit is use by one or more carriers, or by one or more exempt network‑users, to supply carriage services and/or content services;
section 42 does not apply to the unit.
(3) If the sole use of a line link is use for the purpose of a re‑transmission of a kind mentioned in paragraph 212(1)(a) or (b) of the Broadcasting Services Act 1992, section 42 of this Act does not apply to the line link.
(4) If:
(a) the principal use of a line link is use for the purpose of a re‑transmission of a kind mentioned in paragraph 212(1)(a) or (b) of the Broadcasting Services Act 1992; and
(b) the remaining use of the line link is use by one or more carriers, or by one or more exempt network‑users, to supply carriage services and/or content services;
section 42 of this Act does not apply to the line link.
(4A) For the purposes of this section, disregard subsection 212(3) of the Broadcasting Services Act 1992.
(5) In this section:
broadcasting transmitter means a radiocommunications transmitter used, or for use, to deliver a broadcasting service.
head end of a cable transmission system means a facility that:
(a) is connected to a line link; and
(b) is used, or for use, in connection with the delivery of a broadcasting service; and
(c) processes signals for delivery by the line link to end‑users having equipment appropriate for receiving the service.
49 Exemption—electricity supply bodies
(1) If the sole use of a network unit is use by an electricity supply body to carry communications necessary or desirable for:
(a) managing the generation, transmission, distribution or supply of electricity; or
(b) charging for the supply of electricity;
section 42 does not apply to the unit.
(2) If:
(a) the principal use of a network unit is use by an electricity supply body to carry communications necessary or desirable for:
(i) managing the generation, transmission, distribution or supply of electricity; or
(ii) charging for the supply of electricity; and
(b) the remaining use of the unit is use by one or more carriers, or by one or more exempt network‑users, to supply carriage services and/or content services;
section 42 does not apply to the unit.
(3) In this section:
electricity supply body means an authority, or a body corporate, that carries on a business, or performs a function, of:
(a) generating, transmitting, distributing or supplying electricity; or
(b) managing the generation, transmission, distribution or supply of electricity.
50 Exemption—line links authorised by or under previous laws
(1) If:
(a) a line link consists of facilities in relation to which an authorisation was in force under paragraph 13(1)(a) of the Telecommunications Act 1975 immediately before the repeal of that Act; and
(b) the sole use of the line link is use as provided in, and in accordance with any conditions specified in, the authorisation;
section 42 of this Act does not apply to the line link.
(2) If:
(a) a line link consists of facilities in relation to which an authorisation was in force under paragraph 13(1)(a) of the Telecommunications Act 1975 immediately before the repeal of that Act; and
(b) the principal use of the line link is use as provided in, and in accordance with any conditions specified in, the authorisation; and
(c) the remaining use of the line link is use by one or more carriers, or by one or more exempt network‑users, to supply carriage services and/or content services;
section 42 of this Act does not apply to the line link.
(3) If a line link consists of facilities that:
(a) were installed before the repeal of section 45 of the Telecommunications Act 1989; and
(b) immediately before that repeal, were permitted by that section to be maintained and operated;
section 42 of this Act does not apply to the line link.
(4) If:
(a) a line link consists of facilities in relation to which an authorisation was in force under section 46 of the Telecommunications Act 1989 immediately before the repeal of that Act; and
(b) the sole use of the line link is use as provided in, and in accordance with any conditions specified in, the authorisation;
section 42 of this Act does not apply to the line link.
(5) If:
(a) a line link consists of facilities in relation to which an authorisation was in force under section 46 of the Telecommunications Act 1989 immediately before the repeal of that Act; and
(b) the principal use of the line link is use as provided in, and in accordance with any conditions specified in, the authorisation; and
(c) the remaining use of the line link is use by one or more carriers, or by one or more exempt network‑users, to supply carriage services and/or content services;
section 42 of this Act does not apply to the line link.
(6) If:
(a) a line link consists of facilities in relation to which an authorisation was in force under section 108 of the Telecommunications Act 1991 immediately before the repeal of that Act; and
(b) the sole use of the line link is use as provided in, and in accordance with any conditions specified in, the authorisation;
section 42 of this Act does not apply to the line link.
(7) If:
(a) a line link consists of facilities in relation to which an authorisation was in force under section 108 of the Telecommunications Act 1991 immediately before the repeal of that Act; and
(b) the principal use of the line link is use as provided in, and in accordance with any conditions specified in, the authorisation; and
(c) the remaining use of the line link is use by one or more carriers, or by one or more exempt network‑users, to supply carriage services and/or content services;
section 42 of this Act does not apply to the line link.
51 Exemption—Ministerial determination
(1) The Minister may, by legislative instrument, determine that section 42 does not apply in relation to:
(a) a specified network unit; or
(b) a specified person; or
(c) a specified use of a network unit.
(2) A determination under this section may be unconditional or subject to such conditions (if any) as are specified in the determination.
(3) A determination under this section has effect accordingly.
Division 3—Carrier licences
52 Applications for carrier licence
A person may apply to the ACMA for a carrier licence, so long as the person is:
(a) a constitutional corporation; or
(b) an eligible partnership; or
(c) a public body.
53 Form of application etc.
An application must be:
(a) in writing; and
(b) in accordance with the form approved in writing by the ACMA.
53A Copy of application to be given to Communications Access Co‑ordinator
(1) The ACMA must give a copy of the application to the Communications Access Co‑ordinator.
(2) For the purposes of sections 56A and 59, the application is taken not to have been received by the ACMA until the copy is received by the Communications Access Co‑ordinator.
54 Application to be accompanied by charge
An application must be accompanied by the charge (if any) imposed on the application by Part 2 of the Telecommunications (Carrier Licence Charges) Act 1997.
55 Further information
(1) The ACMA may, within 20 business days after an application is made, request the applicant to give the ACMA, within the period specified in the request, further information about the application.
(2) The ACMA may refuse to consider the application until the applicant gives the ACMA the information.
(3) In this section:
business day means a day on which the ACMA is open for business in the Australian Capital Territory and in Victoria.
56 Grant of licence
(1) After considering an application, the ACMA may grant a carrier licence in accordance with the application.
(2) If the ACMA grants a carrier licence to a person, the ACMA must give the person a written notice stating that the licence has been granted.
(3) If the ACMA grants a carrier licence, the ACMA must cause to be published in the Gazette a notice stating that the licence has been granted.
56A Consultation with Communications Access Co‑ordinator
(1) The ACMA must not grant a carrier licence unless it has consulted the Communications Access Co‑ordinator about the licence application.
(2) Within 15 business days after the date on which the ACMA received the licence application, the Communications Access Co‑ordinator may give a written notice to the ACMA, stating that the Communications Access Co‑ordinator does not require any further consultation about the application. The notice cannot be revoked.
Note: Under section 53A, the application is treated as not being received by the ACMA until a copy has been received by the Communications Access Co‑ordinator.
(3) Within 15 business days after the date on which the ACMA received the licence application, the Communications Access Co‑ordinator may give a written notice to the ACMA:
(a) stating that, while the notice remains in force, the ACMA must not grant the carrier licence; and
(b) specifying the period during which the notice remains in force (unless earlier revoked), which period cannot end more than 3 months after the date of the notice.
However, the Communications Access Co‑ordinator cannot give such a notice if the Communications Access Co‑ordinator has earlier given a notice under subsection (2) in relation to the application.
(4) At any time while a notice is in force under subsection (3), or under this subsection, the Communications Access Co‑ordinator may give a further written notice to the ACMA:
(a) stating that, while the notice remains in force, the ACMA must not grant the carrier licence; and
(b) specifying the period during which the notice remains in force (unless earlier revoked), which period cannot end more than 3 months after the date of the notice or more than 12 months after the date of the notice under subsection (3).
(5) The Communications Access Co‑ordinator may, by notice in writing to the ACMA, revoke a notice under subsection (3) or (4).
(6) The Communications Access Co‑ordinator cannot issue a further notice under subsection (3) or (4) in respect of the application after it has revoked such a notice.
(7) The ACMA must give the applicant a copy of each notice that the ACMA receives from the Communications Access Co‑ordinator under subsection (3), (4) or (5).
(8) The ACMA must not grant the carrier licence while a notice is in force under subsection (3) or (4).
(9) In this section:
business day means a day on which the ACMA is open for business in the Australian Capital Territory and in Victoria.
57 Carrier licence has effect subject to this Act
(1) A carrier licence has effect subject to this Act.
(2) In this section:
this Act includes the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act.
58 Refusal of carrier licence—disqualified applicant
(1) The ACMA may refuse to grant a carrier licence to an applicant if, immediately before the ACMA makes its decision on the application, the applicant is disqualified.
When body corporate is disqualified
(2) For the purposes of this section, a body corporate is disqualified at a particular time (the test time) if:
(a) at any time before the test time, a carrier licence held by the body corporate was cancelled under subsection 72(1) or (2A); or
(b) at any time before the test time, a carrier licence held by a partnership in which the body corporate was a partner was cancelled under subsection 72(1) or (2A); or
(c) at the test time, any of the following individuals is disqualified:
(i) a director of the body corporate;
(ii) the secretary of the body corporate;
(iii) a person (by whatever name called and whether or not a director of the body corporate) who is concerned in, or takes part in, the management of the body corporate.
When individual is disqualified—failure to pay annual charge
(3) For the purposes of subsection (2), an individual is disqualified at a particular time (the test time) if:
(a) at any time before the test time, a carrier licence held by a body corporate or partnership was cancelled under subsection 72(1) because of a failure by the body corporate or partnership to pay in full the charge referred to in that subsection; and
(b) in the case of a body corporate—at the time when the charge referred to in subsection 72(1) was due and payable, the individual was:
(i) a director of the body corporate; or
(ii) the secretary of the body corporate; or
(iii) a person (by whatever name called and whether or not a director of the body corporate) who was concerned in, or took part in, the management of the body corporate; and
(c) in the case of a partnership—at the time when the charge referred to in subsection 72(1) was due and payable, the individual:
(i) was an employee of the partnership; and
(ii) was concerned in, or took part in, the management of the partnership; and
(d) the individual:
(i) aided, abetted, counselled or procured the failure of the body corporate or partnership; or
(ii) was in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the failure of the body corporate or partnership.
When individual is disqualified—failure to pay industry levy
(4A) For the purposes of subsection (2), an individual is disqualified at a particular time (the test time) if:
(a) at any time before the test time, a carrier licence held by a body corporate or partnership was cancelled under subsection 72(2A) because of a failure by the body corporate or partnership to pay in full the industry levy referred to in that subsection; and
(b) in the case of a body corporate—at the time when the industry levy referred to in subsection 72(2A) was due and payable, the individual was:
(i) a director of the body corporate; or
(ii) the secretary of the body corporate; or
(iii) a person (by whatever name called and whether or not a director of the body corporate) who was concerned in, or took part in, the management of the body corporate; and
(c) in the case of a partnership—at the time when the industry levy referred to in subsection 72(2A) was due and payable, the individual:
(i) was an employee of the partnership; and
(ii) was concerned in, or took part in, the management of the partnership; and
(d) the individual:
(i) aided, abetted, counselled or procured the failure of the body corporate or partnership; or
(ii) was in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the failure of the body corporate or partnership.
When partnership is disqualified
(5) For the purposes of this section, a partnership is disqualified at a particular time (the test time) if:
(a) at any time before the test time, a carrier licence held by the partnership was cancelled under subsection 72(1) or (2A); or
(b) at the test time, any of the partners is disqualified; or
(c) at the test time, an individual who:
(i) is an employee of the partnership; and
(ii) is concerned in, or takes part in, the management of the partnership;
is disqualified.
This section does not limit grounds for refusal to grant carrier licence
(6) This section does not, by implication, limit the grounds on which the ACMA may refuse to grant a carrier licence.
58A Refusal of carrier licence—security
(1) If the Home Affairs Minister, after consulting the Prime Minister and the Minister administering this Act, considers that the grant of a carrier licence to a particular person would be prejudicial to security, the Home Affairs Minister may give a written direction to the ACMA not to grant a carrier licence to the person.
(2) The ACMA must comply with a direction under subsection (1).
(3) While a direction is in force under this section:
(a) the ACMA cannot reconsider a non‑compulsory refusal to grant a carrier licence to the person; and
(b) the Administrative Appeals Tribunal cannot consider an application for review of a non‑compulsory refusal to grant a carrier licence to the person.
(4) If an application for a carrier licence is pending at the time when the Home Affairs Minister gives a direction to the ACMA under this section, then the application lapses.
Note: Section 73A provides for refund of the application charge.
(5) In this section:
non‑compulsory refusal means a refusal to grant a carrier licence, other than a refusal that is required by section 56A or this section.
security has the same meaning as in the Australian Security Intelligence Organisation Act 1979.
59 Time limit on licence decision
Deemed refusal of licence application if no decision by deadline
(1) If the ACMA neither grants, nor refuses to grant, a carrier licence before the end of the deadline day worked out under the following subsections, then the ACMA is taken, at the end of that day, to have refused to grant the licence.
Case 1: no section 55 request and no section 56A notice in force
(2) If:
(a) the ACMA did not give a section 55 request; and
(b) there is no section 56A notice in force at the end of the 20th business day after the application day;
then the deadline day is the 20th business day after the application day.
Case 2: no section 55 request but section 56A notice in force
(3) If:
(a) the ACMA did not give a section 55 request; and
(b) there is a section 56A notice in force at the end of the 20th business day after the application day;
then the deadline day is the fifth business day after the section 56A expiration day. For this purpose, the section 56A expiration day is the first day after the end of that 20th business day on which there is no notice in force under section 56A.
Case 3: section 55 request complied with and no section 56A notice in force
(4) If:
(a) the ACMA gave a section 55 request; and
(b) the request was complied with; and
(c) there is no section 56A notice in force at the end of the tenth business day after the day on which the request was complied with;
then the deadline day is the tenth business day after the day on which the request was complied with.
Case 4: section 55 request complied with and section 56A notice in force
(5) If:
(a) the ACMA gave a section 55 request; and
(b) the request was complied with; and
(c) there is a section 56A notice in force at the end of the tenth business day after the day on which the request was complied with;
then the deadline day is the fifth business day after the section 56A expiration day. For this purpose, the section 56A expiration day is the first day after the end of that tenth business day on which there is no notice in force under section 56A.
Case 5: section 55 request not complied with and no section 56A notice in force
(6) If:
(a) the ACMA gave a section 55 request; and
(b) the request was not complied with; and
(c) there is no section 56A notice in force at the end of the tenth business day after the day specified in the section 55 request;
then the deadline day is the tenth business day after the day specified in the section 55 request.
Case 6: section 55 request not complied with and section 56A notice in force
(7) If:
(a) the ACMA gave a section 55 request; and
(b) the request was not complied with; and
(c) there is a section 56A notice in force at the end of the tenth business day after the day specified in the section 55 request;
then the deadline day is the fifth business day after the section 56A expiration day. For this purpose, the section 56A expiration day is the first day after the end of that tenth business day on which there is no notice in force under section 56A.
(8) In this section:
application day means the day on which the ACMA received the licence application.
Note: Under section 53A, the application is treated as not being received by the ACMA until a copy has been received by the Communications Access Co‑ordinator.
business day means a day on which the ACMA is open for business in the Australian Capital Territory and in Victoria.
section 55 request means a request under section 55 in relation to the licence application.
section 56A notice means a notice under subsection 56A(3) or (4) in relation to the licence application.
60 Notification of refusal of application
If the ACMA refuses to grant a carrier licence, the ACMA must give written notice of the refusal to the applicant.
61 Conditions of carrier licence specified in Schedule 1
A carrier licence is subject to the conditions specified in Schedule 1.
62 Condition of carrier licence set out in section 152AZ of the Competition and Consumer Act 2010
A carrier licence is subject to the condition set out in section 152AZ of the Competition and Consumer Act 2010.
Note: Section 152AZ of the Competition and Consumer Act 2010 deals with standard access obligations.
62A Condition of carrier licence set out in section 152BCO of the Competition and Consumer Act 2010
A carrier licence is subject to the condition set out in section 152BCO of the Competition and Consumer Act 2010.
Note: Section 152BCO of the Competition and Consumer Act 2010 deals with access determinations.
62B Condition of carrier licence set out in section 152BDF of the Competition and Consumer Act 2010
A carrier licence is subject to the condition set out in section 152BDF of the Competition and Consumer Act 2010.
Note: Section 152BDF of the Competition and Consumer Act 2010 deals with binding rules of conduct.
62C Condition of carrier licence set out in section 152BEC of the Competition and Consumer Act 2010
A carrier licence is subject to the condition set out in section 152BEC of the Competition and Consumer Act 2010.
Note: Section 152BEC of the Competition and Consumer Act 2010 deals with access agreements.
62D Condition of carrier licence set out in section 152CJC of the Competition and Consumer Act 2010
A carrier licence held by an NBN corporation is subject to the condition set out in section 152CJC of the Competition and Consumer Act 2010.
Note: Section 152CJC of the Competition and Consumer Act 2010 deals with rules about the supply of services by NBN corporations.
62E Condition of carrier licence set out in section 37 of the National Broadband Network Companies Act 2011
A carrier licence held by an NBN corporation is subject to the condition set out in section 37 of the National Broadband Network Companies Act 2011.
Note: Section 37 of the National Broadband Network Companies Act 2011 deals with rules about:
(a) the supply of goods and services by NBN corporations; and
(b) the investment of money by NBN corporations; and
(c) the functional separation of NBN corporations; and
(d) the divestment of assets by NBN corporations.
63 Conditions of carrier licence declared by Minister
Conditions applying to each carrier licence
(1) The Minister may, by legislative instrument, declare that each carrier licence is subject to such conditions as are specified in the instrument.
Conditions applying to specified existing carrier licences
(2) The Minister may, by legislative instrument, declare that a specified carrier licence is subject to such conditions as are specified in the instrument.
Note: A licence may be specified by name, by inclusion in a specified class or in any other way.
Conditions applying to specified future carrier licences
(3) The Minister may, by legislative instrument, declare that, in the event that a carrier licence is granted to a specified person during a specified period, the carrier licence is subject to such conditions as are specified in the instrument.
Declarations have effect
(4) A declaration under this section has effect accordingly.
Variation of conditions
(5) The Minister may, by legislative instrument, vary an instrument under subsection (1), (2) or (3).
Revocation of conditions
(6) The Minister may, by legislative instrument, revoke an instrument under subsection (1), (2) or (3).
Notification of conditions—existing licences
(7) As soon as practicable after the Minister makes an instrument under subsection (1), (2), (5) or (6) that relates to a licence, the Minister must give the holder of the licence a copy of the instrument.
Notification of conditions—future licences
(8) As soon as practicable after the Minister makes an instrument under subsection (3) that relates to a licence, the Minister must give the applicant for the licence a copy of the instrument.
Validity not affected by failure to notify conditions
(9) A contravention of subsection (7) or (8) does not affect the validity of an instrument.
Date of effect—future licences
(12) An instrument under subsection (3) relating to a licence takes effect when the licence is granted.
64 Consultation about declared licence conditions
(1) Before making an instrument under subsection 63(1), (2), (5) or (6) that relates to a licence, the Minister must first:
(a) cause the holder of the licence to be given a written notice setting out a draft version of the instrument and inviting the holder to make submissions to the Minister on the draft; and
(b) consider any submissions that were received within the time limit specified in the notice.
(2) The time limit specified in a notice under subsection (1) must be at least 30 days.
(3) Before making an instrument under subsection 63(3) that relates to a licence, the Minister must first:
(a) cause the applicant for the licence to be given a written notice setting out a draft version of the instrument and inviting the applicant to make submissions to the Minister on the draft; and
(b) consider any submissions that were received within the time limit specified in the notice.
65 Conditions about foreign ownership or control
(1) A condition of a carrier licence may relate to the extent of foreign ownership or control (whether direct or indirect) of the holder.
(2) Subsection (1) does not, by implication, limit the conditions that may be declared under section 63.
67 Carrier licence conditions—special provisions
(1) A condition of a carrier licence held by a carrier has effect subject to the provisions of a licence under the Radiocommunications Act 1992 under which the carrier is authorised to do something.
(2) A condition of a carrier licence held by a carrier may remove or restrict a right or privilege that the carrier would otherwise have under a provision of this Act (whether or not in the carrier’s capacity as a carrier).
(3) In this section:
this Act includes the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act.
68 Compliance with conditions
(1) A carrier must not contravene a condition of the carrier licence held by the carrier.
(2) A person must not:
(a) aid, abet, counsel or procure a contravention of subsection (1); or
(b) induce, whether by threats or promises or otherwise, a contravention of subsection (1); or
(c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or
(d) conspire with others to effect a contravention of subsection (1).
(3) Subsections (1) and (2) are civil penalty provisions.
Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.
69 Remedial directions—breach of condition
(1) This section applies if a carrier has contravened, or is contravening, a condition of the carrier licence held by the carrier.
(2) The ACMA may give the carrier a written direction requiring the carrier to take specified action directed towards ensuring that the carrier does not contravene the condition, or is unlikely to contravene the condition, in the future.
(3) The following are examples of the kinds of direction that may be given to a carrier under subsection (2):
(a) a direction that the carrier implement effective administrative systems for monitoring compliance with a condition of the licence;
(b) a direction that the carrier implement a system designed to give the carrier’s employees, agents and contractors a reasonable knowledge and understanding of the requirements of a condition of the licence, in so far as those requirements affect the employees, agents or contractors concerned.
(4) A carrier must not contravene a direction under subsection (2).
(5) Subsection (1) does not apply to a condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 369.
Note: Section 369 deals with Rules of Conduct under section 367.
(5A) Subsection (1) does not apply to a condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 577AD, 577CD or 577ED.
Note: Sections 577AD, 577CD and 577ED deal with undertakings given by Telstra.
(6) Subsection (1) does not apply to a condition set out in Part 3, 4 or 5 of Schedule 1.
Note: Parts 3, 4 and 5 of Schedule 1 deal with access to network information and access to facilities.
(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.
(7) Subsection (1) does not apply to the condition set out in section 152AZ of the Competition and Consumer Act 2010.
Note: Section 152AZ of the Competition and Consumer Act 2010 deals with standard access obligations.
(7A) Subsection (1) does not apply to the condition set out in section 152BCO of the Competition and Consumer Act 2010.
Note: Section 152BCO of the Competition and Consumer Act 2010 deals with access determinations.
(7B) Subsection (1) does not apply to the condition set out in section 152BDF of the Competition and Consumer Act 2010.
Note: Section 152BDF of the Competition and Consumer Act 2010 deals with binding rules of conduct.
(7C) Subsection (1) does not apply to the condition set out in section 152BEC of the Competition and Consumer Act 2010.
Note: Section 152BEC of the Competition and Consumer Act 2010 deals with access agreements.
(7D) Subsection (1) does not apply to the condition set out in section 152CJC of the Competition and Consumer Act 2010.
Note: Section 152CJC of the Competition and Consumer Act 2010 deals with rules about the supply of services by NBN corporations.
(7E) Subsection (1) does not apply to the condition set out in section 37 of the National Broadband Network Companies Act 2011.
Note: Section 37 of the National Broadband Network Companies Act 2011 deals with rules about:
(a) the supply of goods and services by NBN corporations; and
(b) the investment of money by NBN corporations; and
(c) the functional separation of NBN corporations; and
(d) the divestment of assets by NBN corporations.
(7F) Subsection (1) does not apply to a condition covered by section 41 of the National Broadband Network Companies Act 2011.
Note: Section 41 of the National Broadband Network Companies Act 2011 deals with rules about the supply of services by NBN corporations.
(8) A direction under subsection (2) is not a legislative instrument.
69AA Remedial directions—breach of conditions relating to access
Scope
(1) This section applies if:
(a) a carrier has contravened, or is contravening, a condition of the carrier licence held by the carrier; and
(b) the condition is set out in Part 3, 4 or 5 of Schedule 1.
Note: Parts 3, 4 and 5 of Schedule 1 deal with access to network information and access to facilities.
Direction
(2) The ACCC may give the carrier a written direction requiring the carrier to take specified action directed towards ensuring that the carrier does not contravene the condition, or is unlikely to contravene the condition, in the future.
(3) The following are examples of the kinds of direction that may be given to a carrier under subsection (2):
(a) a direction that the carrier implement effective administrative systems for monitoring compliance with the condition;
(b) a direction that the carrier implement a system designed to give the carrier’s employees, agents and contractors a reasonable knowledge and understanding of the requirements of the condition, in so far as those requirements affect the employees, agents or contractors concerned.
(4) The ACCC must not give a direction under subsection (2) if the direction would have the effect of:
(a) preventing Telstra from complying with an undertaking in force under section 577A, 577C or 577E; or
(b) if a final migration plan is in force—requiring Telstra to engage in conduct in connection with matters covered by the final migration plan.
(5) A carrier must not contravene a direction under subsection (2).
(6) A direction under subsection (2) is not a legislative instrument.
70 Formal warnings—breach of condition
(1) The ACMA may issue a formal warning if a carrier contravenes a condition of the carrier licence held by the carrier.
(2) Subsection (1) does not apply to a condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 369.
Note: Section 369 deals with Rules of Conduct under section 367.
(2A) Subsection (1) does not apply to a condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 577AD, 577CD or 577ED.
Note: Sections 577AD, 577CD and 577ED deal with undertakings given by Telstra.
(3) Subsection (1) does not apply to a condition set out in Part 3, 4 or 5 of Schedule 1.
Note: Parts 3, 4 and 5 of Schedule 1 deal with access to network information and access to facilities.
(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.
(4) Subsection (1) does not apply to the condition set out in section 152AZ of the Competition and Consumer Act 2010.
Note: Section 152AZ of the Competition and Consumer Act 2010 deals with standard access obligations.
(4A) Subsection (1) does not apply to the condition set out in section 152BCO of the Competition and Consumer Act 2010.
Note: Section 152BCO of the Competition and Consumer Act 2010 deals with access determinations.
(4B) Subsection (1) does not apply to the condition set out in section 152BDF of the Competition and Consumer Act 2010.
Note: Section 152BDF of the Competition and Consumer Act 2010 deals with binding rules of conduct.
(4C) Subsection (1) does not apply to the condition set out in section 152BEC of the Competition and Consumer Act 2010.
Note: Section 152BEC of the Competition and Consumer Act 2010 deals with access agreements.
(4D) Subsection (1) does not apply to the condition set out in section 152CJC of the Competition and Consumer Act 2010.
Note: Section 152CJC of the Competition and Consumer Act 2010 deals with rules about the supply of services by NBN corporations.
(4E) Subsection (1) does not apply to the condition set out in section 37 of the National Broadband Network Companies Act 2011.
Note: Section 37 of the National Broadband Network Companies Act 2011 deals with rules about:
(a) the supply of goods and services by NBN corporations; and
(b) the investment of money by NBN corporations; and
(c) the functional separation of NBN corporations; and
(d) the divestment of assets by NBN corporations.
(4F) Subsection (1) does not apply to a condition covered by section 41 of the National Broadband Network Companies Act 2011.
Note: Section 41 of the National Broadband Network Companies Act 2011 deals with rules about the supply of services by NBN corporations.
(5) The ACCC may issue a formal warning if a carrier contravenes any of the following conditions of the carrier licence held by the carrier:
(a) the condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 369;
(aa) the condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 577AD, 577CD or 577ED;
(b) a condition set out in Part 3, 4 or 5 of Schedule 1;
(c) the condition set out in section 152AZ of the Competition and Consumer Act 2010;
(d) the condition set out in section 152BCO of the Competition and Consumer Act 2010;
(e) the condition set out in section 152BDF of the Competition and Consumer Act 2010;
(f) the condition set out in section 152BEC of the Competition and Consumer Act 2010;
(g) the condition set out in section 152CJC of the Competition and Consumer Act 2010;
(h) the condition set out in section 37 of the National Broadband Network Companies Act 2011;
(i) a condition covered by section 41 of the National Broadband Network Companies Act 2011.
71 Surrender of carrier licence
A carrier may, by written notice given to the ACMA, surrender the carrier licence held by the carrier.
72 Cancellation of carrier licence
Failure to pay annual charge
(1) The ACMA may cancel a carrier licence held by a carrier if the carrier fails to pay in full any annual charge on or before the date on which the charge becomes due and payable. For this purpose, annual charge means charge imposed by Part 3 of the Telecommunications (Carrier Licence Charges) Act 1997.
Failure to pay industry levy
(2A) The ACMA may cancel a carrier licence held by a carrier if the carrier fails to pay in full any industry levy on or before the date on which the industry levy becomes due and payable.
Note: Industry levy is defined by section 7 to mean levy imposed by the Telecommunications (Industry Levy) Act 2012.
Becoming a disqualified body corporate
(3) If the holder of a carrier licence becomes a disqualified body corporate (within the meaning of section 58), the ACMA may cancel the licence.
Becoming a disqualified partnership
(4) If the holder of a carrier licence becomes a disqualified partnership (within the meaning of section 58), the ACMA may cancel the licence.
Ceasing to be a constitutional corporation, eligible partnership or public body
(5) If, at a particular time, the holder of a carrier licence is none of the following:
(a) a constitutional corporation;
(b) an eligible partnership;
(c) a public body;
the licence is taken to have been cancelled at that time.
Submissions relating to proposed cancellation
(6) The ACMA must not cancel a carrier licence under subsection (1), (2), (3) or (4) unless the ACMA has first:
(a) given the carrier a written notice:
(i) setting out a proposal to cancel the licence; and
(ii) inviting the carrier to make a submission to the ACMA on the proposal; and
(b) considered any submission that was received within the time limit specified in the notice.
Time limit
(7) A time limit specified in the notice under subsection (6) must run for at least 7 days.
Notification of cancellation
(8) If a carrier licence held by a person is cancelled, the ACMA must give written notice of the cancellation to the person.
73 Collection of charges relating to carrier licences
Definitions
(1) In this section:
annual charge means charge imposed by Part 3 of the Telecommunications (Carrier Licence Charges) Act 1997.
application charge means charge imposed by Part 2 of the Telecommunications (Carrier Licence Charges) Act 1997.
late payment penalty means an amount that is payable by way of penalty in accordance with a determination under subsection (4).
When application charge due and payable
(2) Application charge imposed on an application for a carrier licence is due and payable when the application is made.
When annual charge due and payable
(3) Annual charge is due and payable at the time ascertained in accordance with a written determination made by the ACMA.
Late payment penalty
(4) The ACMA may, by written instrument, determine that, if any annual charge payable by a person remains unpaid after the time when it became due for payment, the person is liable to pay to the Commonwealth, by way of penalty, an amount calculated at the rate of:
(a) 20% per annum; or
(b) if the determination specifies a lower percentage—that lower percentage per annum;
on the amount unpaid, computed from that time.
Determination has effect
(5) A determination under subsection (4) has effect accordingly.
Remission of penalty
(6) A determination under subsection (4) may authorise the ACMA to make decisions about the remission of the whole or a part of an amount of late payment penalty.
Payment of charge and late payment penalty
(7) Annual charge, application charge and late payment penalty are payable to the ACMA on behalf of the Commonwealth.
Recovery of charge and penalty
(8) Annual charge, application charge and late payment penalty may be recovered by the ACMA, on behalf of the Commonwealth, as debts due to the Commonwealth.
Payment to the Commonwealth
(9) Amounts received by way of annual charge, application charge or late payment penalty must be paid to the Commonwealth.
Legislative instrument
(10) A determination under subsection (3) or (4) is a legislative instrument.
73A Refund of application charge
(1) This section applies to application charge that has been paid in respect of an application for a carrier licence if:
(a) the application lapses under section 58A; or
(b) the application has been refused and there is no longer any possibility of the refusal decision being set aside.
(2) The ACMA, on behalf of the Commonwealth, must refund the application charge to the applicant.
(3) The Consolidated Revenue Fund is appropriated for payments under this section.
(4) In this section:
application charge means charge imposed by Part 2 of the Telecommunications (Carrier Licence Charges) Act 1997.
74 Collection of charges on behalf of the Commonwealth
The ACMA may enter into an arrangement with a person under which the person may, on behalf of the Commonwealth, collect payments of charge imposed by the Telecommunications (Carrier Licence Charges) Act 1997.
75 Cancellation of certain exemptions from charge
(1) This section cancels the effect of a provision of another Act that would have the effect of exempting a person from liability to pay charge imposed by the Telecommunications (Carrier Licence Charges) Act 1997.
(2) The cancellation does not apply if the provision of the other Act is enacted after the commencement of this section and refers specifically to charge imposed by the Telecommunications (Carrier Licence Charges) Act 1997.
76 Commonwealth not liable to charge
(1) The Commonwealth is not liable to pay charge imposed by the Telecommunications (Carrier Licence Charges) Act 1997.
(2) A reference in this section to the Commonwealth includes a reference to an authority of the Commonwealth that cannot, by law of the Commonwealth, be made liable to taxation by the Commonwealth.
Division 4—Nominated carrier declarations
77 Applications for nominated carrier declarations
A carrier may apply to the ACMA for a nominated carrier declaration in relation to one or more specified network units.
Note: A network unit may be specified by name, by inclusion in a specified class or in any other way.
78 Application to be accompanied by charge etc.
(1) An application must be accompanied by:
(a) the charge (if any) fixed by a determination under section 60 of the Australian Communications and Media Authority Act 2005; and
(b) the consent of the owner, or each of the owners, of the network units; and
(c) the election of the applicant accepting responsibility for the units for the purposes of this Act.
(2) In this section:
this Act includes the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act.
79 Form of application etc.
The application, consent and election must be:
(a) in writing; and
(b) in accordance with a form approved in writing by the ACMA.
80 Further information
(1) The ACMA may request the applicant to give the ACMA, within the period specified in the request, further information about the application.
(2) The ACMA may refuse to consider the application until the applicant gives the ACMA the information.
81 Making a nominated carrier declaration
(1) After considering the application, the ACMA may declare in writing that the applicant is the nominated carrier in relation to the network units if the ACMA is satisfied that:
(a) if the declaration were made, the applicant would be in a position to comply with all of the obligations imposed on the applicant in the applicant’s capacity as the nominated carrier in relation to the units; and
(b) the making of the declaration will not impede the efficient administration of this Act.
(2) The ACMA may only declare one carrier to be the nominated carrier in relation to the network units.
(3) The ACMA must give a copy of the declaration to:
(a) the applicant; and
(b) the owner, or each of the owners, of the network units.
(4) A copy of the declaration is to be published in the Gazette.
(5) In this section:
this Act includes the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act.
81A Obligations of nominated carrier
(1) If at any time the nominated carrier does not own or operate the network units, this Act nevertheless applies to the nominated carrier in relation to the network units as if they were owned or operated by the nominated carrier.
(2) Subsection (1) does not affect the application of this Act in relation to any other person who owns or operates the network units.
(3) In this section:
this Act includes the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act.
82 Notification of refusal of application
If the ACMA refuses to make a nominated carrier declaration, the ACMA must give written notice of the refusal to:
(a) the applicant; and
(b) the owner, or each of the owners, of the network units.
83 Revocation of nominated carrier declaration
(1) The ACMA may, by writing, revoke a nominated carrier declaration relating to a nominated carrier if the ACMA is satisfied that, if it were assumed that the nominated carrier were to apply for the declaration, the ACMA would refuse to make the declaration.
(2) The ACMA must, by writing, revoke the nominated carrier declaration relating to a nominated carrier and relating to one or more network units if:
(a) the owner, or any of the owners, of the network units gives the ACMA a written notice stating that the owner does not consent to the continued operation of the declaration; or
(b) the nominated carrier gives the ACMA a written notice stating that it does not accept responsibility for the units for the purposes of this Act.
(3) The ACMA must give a copy of the revocation to:
(a) the former nominated carrier; and
(b) the owner, or each of the owners, of the network units concerned.
(4) A copy of the revocation must be published in the Gazette.
(5) A revocation under subsection (1) or (2) takes effect on the date specified in the revocation.
(6) The ACMA must not revoke a nominated carrier declaration under subsection (1) unless the ACMA has first:
(a) given the nominated carrier a written notice:
(i) setting out a proposal to revoke the declaration; and
(ii) inviting the nominated carrier to make a submission to the ACMA on the proposal; and
(b) considered any submission that was received within the time limit specified in the notice.
(7) A time limit specified in a notice under subsection (6) must run for at least 7 days.
(8) In this section:
this Act includes the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act.
Division 5—Register of nominated carrier declarations and carrier licences
84 Register of nominated carrier declarations and carrier licences
(1) The ACMA is to maintain a Register in which the ACMA includes:
(a) all nominated carrier declarations currently in force; and
(b) all carrier licences currently in force; and
(c) all conditions of such licences.
(2) The Register may be maintained by electronic means.
(3) A person may, on payment of the charge (if any) fixed by a determination under section 60 of the Australian Communications and Media Authority Act 2005:
(a) inspect the Register; and
(b) make a copy of, or take extracts from, the Register.
(4) For the purposes of this section, if the Register is maintained by electronic means, a person is taken to have made a copy of, or taken an extract from, the Register if the ACMA gives the person a printout of, or of the relevant parts of, the Register.
(5) If a person requests that a copy be provided in an electronic form, the ACMA may provide the relevant information:
(a) on a data processing device; or
(b) by way of electronic transmission.
Part 4—Service providers
Division 1—Simplified outline
85 Simplified outline
The following is a simplified outline of this Part:
• A service provider is:
(a) a carriage service provider; or
(b) a content service provider.
• A carriage service provider is a person who supplies, or proposes to supply, certain carriage services.
• A content service provider is a person who supplies, or proposes to supply, certain content services.
• Service providers must comply with the service provider rules.
Division 2—Service providers
86 Service providers
For the purposes of this Act, a service provider is:
(a) a carriage service provider; or
(b) a content service provider.
Note 1: Carriage service provider is defined by section 87.
Note 2: Content service provider is defined by section 97.
Division 3—Carriage service providers
87 Carriage service providers
Basic definition
(1) For the purposes of this Act, if a person supplies, or proposes to supply, a listed carriage service to the public using:
(a) a network unit owned by one or more carriers; or
(b) a network unit in relation to which a nominated carrier declaration is in force;
the person is a carriage service provider.
International carriage service providers
(2) For the purposes of this Act, if:
(a) a person supplies, or proposes to supply, a listed carriage service to the public using:
(i) a line link connecting a place in Australia and a place outside Australia; or
(ii) a satellite‑based facility; and
(b) the carriage service is mentioned in paragraph 16(1)(b) or (c);
the person is a carriage service provider.
Secondary users of exempt network units
(3) For the purposes of this Act, if:
(a) a carrier or an exempt network‑user supplies a carriage service as mentioned in any of the following provisions:
(i) paragraph 45(2)(b);
(ii) paragraph 47(5)(b);
(iii) paragraph 47(6)(b);
(iv) paragraph 47(7)(b);
(v) paragraph 47(8)(b);
(vi) paragraph 48(2)(d);
(vii) paragraph 48(4)(b);
(viii) paragraph 49(2)(b);
(ix) paragraph 50(2)(c);
(x) paragraph 50(5)(c);
(xi) paragraph 50(7)(c); and
(b) the carriage service is supplied to the public;
the carrier or the exempt network‑user, as the case may be, is a carriage service provider.
Declared carriage service providers
(4) The Minister may, by legislative instrument, declare that a specified person who supplies, or proposes to supply, a specified listed carriage service is a carriage service provider for the purposes of this Act. A declaration under this subsection has effect accordingly.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
Intermediaries
(5) For the purposes of this Act, if:
(a) a person (the first person), for reward, arranges, or proposes to arrange, for the supply of a listed carriage service by a carriage service provider to a third person; and
(b) the first person would be a carriage service provider under subsection (1) or (2) if the person had supplied that carriage service; and
(c) the commercial relationship between the first person and the third person is, or is to be, governed (in whole or in part) by an agreement between the first person and the third person that deals with one or more matters relating to the continuing supply of the service (whether or not that supply is, or is to be, for a readily ascertainable period); and
(d) the conditions (if any) specified in a determination under subsection (8) are satisfied;
the person is a carriage service provider.
Note: Under section 7, carriage service intermediary is defined to mean a person who is a carriage service provider under this subsection.
(6) For the purposes of paragraph (5)(a), it does not matter whether the first person makes arrangements as agent for:
(a) the carriage service provider; or
(b) the third person; or
(c) any other person.
(7) The reference in paragraph (5)(a) to reward does not include a reference to remuneration received in the capacity of employee.
(8) The Minister may, by legislative instrument, make a determination for the purposes of paragraph (5)(d).
88 Supply to the public
(1) This section sets out the circumstances in which a carriage service is taken, for the purposes of subsections 87(1), (2) and (3), to be supplied to the public.
(2) If:
(a) a carriage service is used for the carriage of communications between 2 end‑users; and
(b) each end‑user is outside the immediate circle of the supplier of the service;
the service is supplied to the public.
(3) If:
(a) a carriage service is used to supply point‑to‑multipoint services to end‑users; and
(b) at least one end‑user is outside the immediate circle of the supplier of the service;
the service is supplied to the public.
(4) If:
(a) a carriage service is used to supply designated content services (other than point‑to‑multipoint services) to end‑users; and
(b) at least one end‑user is outside the immediate circle of the supplier of the service;
the service is supplied to the public.
(5) For the purposes of this section, a designated content service is a content service of a kind specified in a written determination made by the Minister.
(6) A determination under subsection (5) is a legislative instrument.
89 Exemption from definition—customers located on the same premises
(1) If:
(a) the supplier of a carriage service manages a business or other activity carried on at particular premises; and
(b) that business or activity is the sole or principal use of the premises; and
(c) all of the customers of the service are physically present on the premises;
subsections 87(1) and (2) do not apply to the carriage service.
(2) In this section:
premises includes:
(a) land; and
(b) a group of buildings that is located in the same vicinity.
90 Exemption from definition—defence
(1) If the sole or principal use of a carriage service is use by, or on behalf of, a defence organisation to carry communications necessary or desirable for defence purposes, subsections 87(1) and (2) do not apply to the service.
(2) In this section:
defence organisation means:
(a) the Defence Department; or
(b) the Australian Defence Force; or
(c) an organisation of a foreign country, so far as the organisation:
(i) has functions corresponding to functions of, or of a part of, the Defence Department or the Australian Defence Force; and
(ii) is authorised by the Commonwealth to operate or train in Australia or an external Territory; or
(d) a part of such an organisation or body.
91 Exemption from definition—intelligence operations
Subsections 87(1) and (2) do not apply to a carriage service that is used wholly or principally:
(a) by the Australian Secret Intelligence Service; or
(b) by the Australian Security Intelligence Organisation; or
(c) by the Australian Signals Directorate.
92 Exemption from definition—transport authorities
(1) Subsections 87(1) and (2) do not apply to a carriage service if the sole or principal use of the carriage service is use by Airservices Australia to carry communications necessary or desirable for the workings of aviation services.
(3) Subsections 87(1) and (2) do not apply to a carriage service if the sole or principal use of the unit is use by a State or Territory transport authority to carry communications necessary or desirable for the workings of the following services:
(a) train services of a kind provided by the authority;
(b) bus or other road services of a kind provided by the authority;
(c) tram services of a kind provided by the authority.
(4) Subsections 87(1) and (2) do not apply to a carriage service if the sole or principal use of the carriage service is use by a rail corporation to carry communications necessary or desirable for the workings of train services.
(5) In this section:
rail corporation means a body corporate that manages or operates either or both of the following:
(a) rail transport services;
(b) rail transport infrastructure.
93 Exemption from definition—broadcasting services
(1) If:
(a) the sole or principal use of a carriage service is use to carry communications that are necessary or desirable for either or both of the following purposes:
(i) the supply of broadcasting services to the public;
(ii) the supply of a secondary carriage service by means of the main carrier signal of a primary broadcasting service; and
(b) those communications are neither:
(i) communications carried between the head end of a cable transmission system and the equipment used by an end‑user to receive a broadcasting service; nor
(ii) communications carried from a broadcasting transmitter transmitting a signal of a broadcasting service to its intended audience;
subsections 87(1) and (2) do not apply to the carriage service.
(2) If the sole or principal use of a carriage service is use for the purpose of a re‑transmission of a kind mentioned in paragraph 212(1)(a) or (b) of the Broadcasting Services Act 1992, subsections 87(1) and (2) of this Act do not apply to the service.
(2A) For the purposes of this section, disregard subsection 212(3) of the Broadcasting Services Act 1992.
(3) In this section:
broadcasting transmitter means a radiocommunications transmitter used, or for use, to deliver a broadcasting service.
head end of a cable transmission system means a facility that:
(a) is connected to a line link; and
(b) is used, or for use, in connection with the delivery of a broadcasting service; and
(c) processes signals for delivery by the line link to end‑users having equipment appropriate for receiving the service.
94 Exemption from definition—electricity supply bodies
(1) If the sole or principal use of a carriage service is use by an electricity supply body to carry communications necessary or desirable for:
(a) managing the generation, transmission, distribution or supply of electricity; or
(b) charging for the supply of electricity;
subsection 87(1) does not apply to the service.
(2) In this section:
electricity supply body means an authority, or a body corporate, that carries on a business, or performs a function, of:
(a) generating, transmitting, distributing or supplying electricity; or
(b) managing the generation, transmission, distribution or supply of electricity.
95 Exemption from definition—Ministerial determination
(1) The Minister may, by legislative instrument, determine that a specified eligible definition provision does not apply in relation to:
(a) a specified carriage service; or
(b) a specified person.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
(2) A determination under this section may be unconditional or subject to such conditions (if any) as are specified in the determination.
(3) A determination under this section has effect accordingly.
(5) For the purposes of this section, each of the following provisions is an eligible definition provision:
(a) subsection 87(1);
(b) subsection 87(2);
(c) subsection 87(3);
(d) subsection 87(5).
96 Exemption from certain regulatory provisions—Ministerial determination
(1) The Minister may, by legislative instrument, determine that a specified regulatory provision does not apply to a specified person in the person’s capacity as a designated carriage service provider. For this purpose, a designated carriage service provider is a person who is a carriage service provider under subsection 87(4) or (5).
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
(2) A determination under this section may be unconditional or subject to such conditions (if any) as are specified in the determination.
(3) A determination under this section has effect accordingly.
(5) For the purposes of this section, a regulatory provision is a provision of:
(a) this Act; or
(b) any other law of the Commonwealth;
that contains a reference to a carriage service provider or to carriage service providers.
Division 4—Content service providers
97 Content service providers
(1) For the purposes of this Act, if a person uses, or proposes to use, a listed carriage service to supply a content service to the public, the person is a content service provider.
(2) For the purposes of subsection (1), a content service is supplied to the public if, and only if, at least one end‑user of the content service is outside the immediate circle of the supplier of the content service.
Division 5—Service provider rules
98 Service provider rules
(1) For the purposes of this Act, the following are the service provider rules:
(a) the rules set out in Schedule 2;
(b) the rules (if any) set out in service provider determinations in force under section 99.
(2) In addition to the rules mentioned in subsection (1), the rule set out in subsection 152BA(2) of the Competition and Consumer Act 2010 is a service provider rule for the purposes of this Act.
Note: Subsection 152BA(2) of the Competition and Consumer Act 2010 provides that a carriage service provider must comply with any standard access obligations that are applicable to the provider.
(3) In addition to the rules mentioned in subsection (1), the rule set out in subsection 152BCP(2) of the Competition and Consumer Act 2010 is a service provider rule for the purposes of this Act.
Note: Subsection 152BCP(2) of the Competition and Consumer Act 2010 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 Competition and Consumer Act 2010 is a service provider rule for the purposes of this Act.
Note: Subsection 152BDG(2) of the Competition and Consumer Act 2010 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 Competition and Consumer Act 2010 is a service provider rule for the purposes of this Act.
Note: Subsection 152BED(2) of the Competition and Consumer Act 2010 deals with access agreements.
(6) In addition to the rules mentioned in subsection (1), the rule set out in subsection 152CJD(2) of the Competition and Consumer Act 2010 is a service provider rule for the purposes of this Act.
Note: Subsection 152CJD(2) of the Competition and Consumer Act 2010 deals with rules about the supply of services by NBN corporations.
(7) In addition to the rules mentioned in subsection (1), the rule set out in subsection 38(2) of the National Broadband Network Companies Act 2011 is a service provider rule for the purposes of this Act.
Note: Subsection 38(2) of the National Broadband Network Companies Act 2011 deals with rules about:
(a) the supply of goods and services by NBN corporations; and
(b) the investment of money by NBN corporations; and
(c) the functional separation of NBN corporations; and
(d) the divestment of assets by NBN corporations.
99 Service provider determinations
(1) The ACMA may, by legislative instrument, make a determination setting out rules that apply to service providers in relation to the supply of either or both of the following:
(a) specified carriage services;
(b) specified content services.
The determination is called a service provider determination.
(2) A service provider determination has effect only to the extent that:
(a) it is authorised by paragraph 51(v) of the Constitution (either alone or when read together with paragraph 51(xxxix) of the Constitution); or
(b) both:
(i) it is authorised by section 122 of the Constitution; and
(ii) it would have been authorised by paragraph 51(v) of the Constitution (either alone or when read together with paragraph 51(xxxix) of the Constitution) if section 51 of the Constitution extended to the Territories.
(3) The ACMA must not make a service provider determination unless the determination relates to a matter specified in the regulations or in section 346.
(4) Before making a service provider determination, the ACMA must consult the ACCC.
(5) A service provider determination may make provision for or in relation to a particular matter by empowering the ACMA to make decisions of an administrative character.
100 Exemptions from service provider rules
(1) The Minister may, by legislative instrument, determine that a specified service provider is exempt from the service provider rules.
(2) The Minister may, by legislative instrument, determine that a specified service provider is exempt from a specified service provider rule.
(3) A determination under this section may be unconditional or subject to such conditions (if any) as are specified in the determination.
(4) A determination under this section has effect accordingly.
101 Service providers must comply with service provider rules
(1) A service provider must comply with the service provider rules that apply to the provider.
Note: Service provider rules is defined by section 98.
(2) A person must not:
(a) aid, abet, counsel or procure a contravention of subsection (1); or
(b) induce, whether by threats or promises or otherwise, a contravention of subsection (1); or
(c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or
(d) conspire with others to effect a contravention of subsection (1).
(3) Subsections (1) and (2) are civil penalty provisions.
Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.
102 Remedial directions—breach of service provider rules
(1) This section applies if a service provider has contravened, or is contravening, a service provider rule.
(2) The ACMA may give the provider a written direction requiring the provider to take specified action directed towards ensuring that the provider does not contravene the rule, or is unlikely to contravene the rule, in the future.
(3) The following are examples of the kinds of direction that may be given to a service provider under subsection (2):
(a) a direction that the provider implement effective administrative systems for monitoring compliance with a service provider rule;
(b) a direction that the provider implement a system designed to give the provider’s employees, agents and contractors a reasonable knowledge and understanding of the requirements of a service provider rule, in so far as those requirements affect the employees, agents or contractors concerned.
(4) A service provider must not contravene a direction under subsection (2).
(5) Subsection (1) does not apply to the rule set out in Part 1 of Schedule 2 in so far as that rule relates to section 369.
Note: Section 369 deals with Rules of Conduct under section 367.
(6) Subsection (1) does not apply to the rule set out in subsection 152BA(2) of the Competition and Consumer Act 2010.
Note: Subsection 152BA(2) of the Competition and Consumer Act 2010 provides that a carriage service provider must comply with any standard access obligations that are applicable to the provider.
(6A) Subsection (1) does not apply to the rule set out in subsection 152BCP(2) of the Competition and Consumer Act 2010.
Note: Subsection 152BCP(2) of the Competition and Consumer Act 2010 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 Competition and Consumer Act 2010.
Note: Subsection 152BDG(2) of the Competition and Consumer Act 2010 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 Competition and Consumer Act 2010.
Note: Subsection 152BED(2) of the Competition and Consumer Act 2010 deals with access agreements.
(6D) Subsection (1) does not apply to the rule set out in subsection 152CJD(2) of the Competition and Consumer Act 2010.
Note: Subsection 152CJD(2) of the Competition and Consumer Act 2010 deals with rules about the supply of services by NBN corporations.
(6E) Subsection (1) does not apply to the rule set out in subsection 38(2) of the National Broadband Network Companies Act 2011.
Note: Subsection 38(2) of the National Broadband Network Companies Act 2011 deals with rules about:
(a) the supply of goods and services by NBN corporations; and
(b) the investment of money by NBN corporations; and
(c) the functional separation of NBN corporations; and
(d) the divestment of assets by NBN corporations.
(7) A direction under subsection (2) is not a legislative instrument.
103 Formal warnings—breach of service provider rules
(1) The ACMA may issue a formal warning if a person contravenes a service provider rule.
(2) Subsection (1) does not apply to the rule set out in Part 1 of Schedule 2 in so far as that rule relates to section 369.
Note: Section 369 deals with Rules of Conduct under section 367.
(3) Subsection (1) does not apply to the rule set out in subsection 152BA(2) of the Competition and Consumer Act 2010.
Note: Subsection 152BA(2) of the Competition and Consumer Act 2010 provides that a carriage service provider must comply with any standard access obligations that are applicable to the provider.
(3A) Subsection (1) does not apply to the rule set out in subsection 152BCP(2) of the Competition and Consumer Act 2010.
Note: Subsection 152BCP(2) of the Competition and Consumer Act 2010 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 Competition and Consumer Act 2010.
Note: Subsection 152BDG(2) of the Competition and Consumer Act 2010 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 Competition and Consumer Act 2010.
Note: Subsection 152BED(2) of the Competition and Consumer Act 2010 deals with access agreements.
(3D) Subsection (1) does not apply to the rule set out in subsection 152CJD(2) of the Competition and Consumer Act 2010.
Note: Subsection 152CJD(2) of the Competition and Consumer Act 2010 deals with rules about the supply of services by NBN corporations.
(3E) Subsection (1) does not apply to the rule set out in subsection 38(2) of the National Broadband Network Companies Act 2011.
Note: Subsection 38(2) of the National Broadband Network Companies Act 2011 deals with rules about:
(a) the supply of goods and services by NBN corporations; and
(b) the investment of money by NBN corporations; and
(c) the functional separation of NBN corporations; and
(d) the divestment of assets by NBN corporations.
(4) The ACCC may issue a formal warning if a person contravenes the service provider rule set out in subsection 152BA(2) of the Competition and Consumer Act 2010.
(4A) The ACCC may issue a formal warning if a person contravenes the service provider rule set out in subsection 152BCP(2) of the Competition and Consumer Act 2010.
(4B) The ACCC may issue a formal warning if a person contravenes the service provider rule set out in subsection 152BDG(2) of the Competition and Consumer Act 2010.
(4C) The ACCC may issue a formal warning if a person contravenes the service provider rule set out in subsection 152BED(2) of the Competition and Consumer Act 2010.
(4D) The ACCC may issue a formal warning if a person contravenes the service provider rule set out in subsection 152CJD(2) of the Competition and Consumer Act 2010.
(4E) The ACCC may issue a formal warning if a person contravenes the service provider rule set out in subsection 38(2) of the National Broadband Network Companies Act 2011.
(5) The ACCC may issue a formal warning if a person contravenes the service provider rule set out in Part 1 of Schedule 2 in so far as that rule relates to section 369.
Part 5—Monitoring of the performance of carriers and carriage service providers
104 Simplified outline
The following is a simplified outline of this Part:
• The ACMA is to monitor, and report each year to the Minister on, significant matters relating to the performance of carriers and carriage service providers.
• 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.
• The ACCC is to monitor, and report each financial year to the Minister on, breaches by Telstra of an undertaking about structural separation.
105 Monitoring of performance—annual report
(1) The ACMA must monitor, and report each financial year to the Minister on, all significant matters relating to the performance of:
(a) carriers; and
(b) carriage service providers;
with particular reference to:
(c) consumer satisfaction; and
(d) consumer benefits; and
(e) quality of service.
(2) In performing its functions under subsection (1), the ACMA must have regard to such world best practice performance indicators as the ACMA considers appropriate. This subsection does not, by implication, limit subsection (1).
(3) A report under subsection (1) must set out details of the following matters:
(a) the efficiency with which carriers and carriage service providers supply:
(i) carriage services; or
(ii) ancillary goods; or
(iii) ancillary services;
(b) the adequacy and quality of the:
(i) carriage services; or
(ii) billing services; or
(iii) billing information services; or
(iv) ancillary goods; or
(v) ancillary services;
supplied by carriers or carriage service providers;
(c) the adequacy of each carrier’s and each carriage service provider’s compliance with its obligations under Part 6;
(d) the adequacy of each carrier’s and each carriage service provider’s compliance with:
(i) codes registered under Part 6; and
(ii) standards determined under Part 6;
(e) if there are any obligations under Part 2 of the Telecommunications (Consumer Protection and Service Standards) Act 1999—the adequacy of compliance with those obligations;
(ea) the operation of Parts 2 and 5 of the Telecommunications (Consumer Protection and Service Standards) Act 1999;
(f) such other matters relating to the performance of carriers or carriage service providers as the ACMA thinks appropriate.
(4) The ACMA must monitor, and report each financial year to the Minister on, the appropriateness and adequacy of the approaches taken by the carriage service providers in carrying out their obligations, and discharging their liabilities, under Part 5 of the Telecommunications (Consumer Protection and Service Standards) Act 1999.
(5A) The ACMA must monitor, and report each financial year to the Minister on:
(a) the operation of Part 14 and on the costs of compliance with the requirements of that Part; and
(b) without limiting paragraph (a), the costs of compliance with the requirements of Part 5‑1A of the Telecommunications (Interception and Access) Act 1979 (about data retention).
(5B) Paragraph (5A)(a) does not apply in relation to Part 14 to the extent that Part 14 was amended by the Telecommunications and Other Legislation Amendment Act 2017.
(6) The ACMA must give a report under subsection (1), (4) or (5A) to the Minister as soon as practicable after the end of the financial year concerned.
(7) The Minister must cause a copy of a report under subsection (1), (4) or (5A) to be laid before each House of the Parliament within 15 sitting days of that House after receiving the report.
(8) In this section:
ancillary goods means goods for use in connection with a carriage service.
ancillary service means a service for use in connection with a carriage service.
105A Monitoring of performance—additional report
(1) The ACMA must monitor, and report to the Minister on, specified matters relating to the performance of carriers and carriage service providers in accordance with any written direction given by the Minister to the ACMA.
(2) The ACMA must give a report under subsection (1) to the Minister:
(a) if paragraph (b) does not apply—as soon as practicable after the end of a period specified in the direction; or
(b) if the direction requires the report to be given before a specified time—before that time.
105C Monitoring of breaches by Telstra of an undertaking about structural separation
Monitoring
(1) The ACCC must monitor, and report each financial year to the Minister on, breaches by Telstra of an undertaking in force under section 577A.
Report
(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.
Part 6—Industry codes and industry standards
Division 1—Simplified outline
106 Simplified outline
The following is a simplified outline of this Part.
• Bodies and associations that represent sections of the telecommunications industry, the telemarketing industry or the fax marketing industry may develop industry codes.
• Industry codes may be registered by the ACMA.
• Compliance with an industry code is voluntary unless the ACMA directs a particular participant in the telecommunications industry, the telemarketing industry or the fax marketing industry to comply with the code.
• The ACMA has a reserve power to make an industry standard if there are no industry codes or if an industry code is deficient.
• Compliance with industry standards is mandatory.
Division 2—Interpretation
107 Industry codes
For the purposes of this Part, an industry code is a code developed under this Part (whether or not in response to a request under this Part).
108 Industry standards
For the purposes of this Part, an industry standard is a standard determined under this Part.
108A Electronic messaging service provider
(1) For the purposes of this Part, if a person supplies, or proposes to supply, an electronic messaging service to the public, the person is an electronic messaging service provider.
(2) For the purposes of subsection (1), a service is supplied to the public if, and only if, at least one end‑user of the service is outside the immediate circle of the supplier of the service.
(3) In this section:
electronic message has the same meaning as in the Spam Act 2003.
electronic messaging service means a service that enables any or all of the following electronic messages to be sent or received:
(a) web‑based email;
(b) instant messages;
(c) text messages;
(d) messages of a kind specified in the regulations.
message has the same meaning as in the Spam Act 2003.
108B Telecommunications industry
For the purposes of this Part, the telecommunications industry includes an industry that involves carrying on business as an electronic messaging service provider.
109 Telecommunications activity
For the purposes of this Part, a telecommunications activity is an activity that consists of:
(a) carrying on business as a carrier; or
(b) carrying on business as a carriage service provider; or
(c) supplying goods or services for use in connection with the supply of a listed carriage service; or
(d) supplying a content service using a listed carriage service; or
(e) manufacturing or importing customer equipment or customer cabling; or
(f) installing, maintaining, operating or providing access to:
(i) a telecommunications network; or
(ii) a facility;
used to supply a listed carriage service; or
(g) carrying on business as an electronic messaging service provider.
109B Telemarketing activity
(1) For the purposes of this Part, a telemarketing activity is an activity to which subsection (2), (3) or (4) applies.
(2) This subsection applies to an activity that:
(a) is carried on by a person (the first person) under a contract or arrangement (other than a contract of employment); and
(b) consists of:
(i) using telemarketing calls to market, advertise or promote goods or services, where the first person is not the supplier or prospective supplier of the goods or services; or
(ii) using telemarketing calls to advertise or promote a supplier or prospective supplier of goods or services, where the first person is not the supplier or prospective supplier of the goods or services; or
(iii) using telemarketing calls to market, advertise or promote land or interests in land, where the first person is not the supplier or prospective supplier of the land or interests in land; or
(iv) using telemarketing calls to advertise or promote a supplier or prospective supplier of land or interests in land, where the first person is not the supplier or prospective supplier of the land or interests in land; or
(v) using telemarketing calls to market, advertise or promote business opportunities or investment opportunities, where the first person is not the provider or prospective provider of the business opportunities or investment opportunities; or
(vi) using telemarketing calls to advertise or promote a provider, or prospective provider, of business opportunities or investment opportunities, where the first person is not the provider or prospective provider of the business opportunities or investment opportunities.
(3) This subsection applies to an activity carried on by a person if the activity consists of:
(a) using telemarketing calls to market, advertise or promote goods or services, where the person is the supplier or prospective supplier of the goods or services; or
(b) using telemarketing calls to advertise or promote a supplier or prospective supplier of goods or services, where the person is the supplier or prospective supplier of the goods or services; or
(c) using telemarketing calls to market, advertise or promote land or interests in land, where the person is the supplier or prospective supplier of the land or interests in land; or
(d) using telemarketing calls to advertise or promote a supplier or prospective supplier of land or interests in land, where the person is the supplier or prospective supplier of the land or interests in land; or
(e) using telemarketing calls to market, advertise or promote business opportunities or investment opportunities, where the person is the provider or prospective provider of the business opportunities or investment opportunities; or
(f) using telemarketing calls to advertise or promote a provider, or prospective provider, of business opportunities or investment opportunities, where the person is the provider or prospective provider of the business opportunities or investment opportunities.
(4) This subsection applies to an activity carried on by a person if the activity consists of:
(a) using telemarketing calls to solicit donations; or
(b) using telemarketing calls to conduct opinion polling; or
(c) using telemarketing calls to carry out standard questionnaire‑based research.
(5) An expression (other than telemarketing call) used in this section and in section 5 of the Do Not Call Register Act 2006 has the same meaning in this section as it has in that section.
109C Fax marketing activity
(1) For the purposes of this Part, a fax marketing activity is an activity to which subsection (2), (3) or (4) applies.
(2) This subsection applies to an activity that:
(a) is carried on by a person (the first person) under a contract or arrangement (other than a contract of employment); and
(b) consists of:
(i) using marketing faxes to market, advertise or promote goods or services, where the first person is not the supplier or prospective supplier of the goods or services; or
(ii) using marketing faxes to advertise or promote a supplier or prospective supplier of goods or services, where the first person is not the supplier or prospective supplier of the goods or services; or
(iii) using marketing faxes to market, advertise or promote land or interests in land, where the first person is not the supplier or prospective supplier of the land or interests in land; or
(iv) using marketing faxes to advertise or promote a supplier or prospective supplier of land or interests in land, where the first person is not the supplier or prospective supplier of the land or interests in land; or
(v) using marketing faxes to market, advertise or promote business opportunities or investment opportunities, where the first person is not the provider or prospective provider of the business opportunities or investment opportunities; or
(vi) using marketing faxes to advertise or promote a provider, or prospective provider, of business opportunities or investment opportunities, where the first person is not the provider or prospective provider of the business opportunities or investment opportunities.
(3) This subsection applies to an activity carried on by a person if the activity consists of:
(a) using marketing faxes to market, advertise or promote goods or services, where the person is the supplier or prospective supplier of the goods or services; or
(b) using marketing faxes to advertise or promote a supplier or prospective supplier of goods or services, where the person is the supplier or prospective supplier of the goods or services; or
(c) using marketing faxes to market, advertise or promote land or interests in land, where the person is the supplier or prospective supplier of the land or interests in land; or
(d) using marketing faxes to advertise or promote a supplier or prospective supplier of land or interests in land, where the person is the supplier or prospective supplier of the land or interests in land; or
(e) using marketing faxes to market, advertise or promote business opportunities or investment opportunities, where the person is the provider or prospective provider of the business opportunities or investment opportunities; or
(f) using marketing faxes to advertise or promote a provider, or prospective provider, of business opportunities or investment opportunities, where the person is the provider or prospective provider of the business opportunities or investment opportunities.
(4) This subsection applies to an activity carried on by a person if the activity consists of:
(a) using marketing faxes to solicit donations; or
(b) using marketing faxes to conduct opinion polling; or
(c) using marketing faxes to carry out standard questionnaire‑based research.
(5) An expression (other than marketing fax) used in this section and in section 5B of the Do Not Call Register Act 2006 has the same meaning in this section as it has in that section.
110 Sections of the telecommunications industry
(1) For the purposes of this Part, sections of the telecommunications industry are to be ascertained in accordance with this section.
(2) For the purposes of this Part, each of the following groups is a section of the telecommunications industry:
(a) carriers;
(b) service providers;
(c) carriage service providers;
(d) carriage service providers who supply standard telephone services;
(e) carriage service providers who supply public mobile telecommunications services;
(f) content service providers;
(g) persons who perform cabling work (within the meaning of Division 9 of Part 21);
(h) persons who manufacture or import customer equipment or customer cabling;
(i) electronic messaging service providers;
(j) persons who install:
(i) optical fibre lines; or
(ii) facilities used, or for use, in or in connection with optical fibre lines.
(3) The ACMA may, by written instrument, determine that persons carrying on, or proposing to carry on, one or more specified kinds of telecommunications activity constitute a section of the telecommunications industry for the purposes of this Part.
(4) The section must be identified in the determination by a unique name and/or number.
(5) A determination under subsection (3) has effect accordingly.
(6) Sections of the telecommunications industry determined under subsection (3):
(a) need not be mutually exclusive; and
(b) may consist of the aggregate of any 2 or more sections of the telecommunications industry mentioned in subsection (2) or determined under subsection (3); and
(c) may be subsets of a section of the telecommunications industry mentioned in subsection (2) or determined under subsection (3).
(7) Subsection (6) does not, by implication, limit subsection (3).
(8) A copy of a determination under subsection (3) is to be published in the Gazette.
110B Sections of the telemarketing industry
(1) For the purposes of this Part, sections of the telemarketing industry are to be ascertained in accordance with this section.
(2) If no determination is in force under subsection (3), all of the persons carrying on, or proposing to carry on, telemarketing activities constitute a single section of the telemarketing industry for the purposes of this Part.
(3) The ACMA may, by legislative instrument, determine that persons carrying on, or proposing to carry on, one or more specified kinds of telemarketing activity constitute a section of the telemarketing industry for the purposes of this Part.
(4) The section must be identified in the determination by a unique name and/or number.
(5) A determination under subsection (3) has effect accordingly.
(6) Sections of the telemarketing industry determined under subsection (3):
(a) need not be mutually exclusive; and
(b) may consist of the aggregate of any 2 or more sections of the telemarketing industry mentioned in subsection (2) or determined under subsection (3); and
(c) may be subsets of a section of the telemarketing industry mentioned in subsection (2) or determined under subsection (3).
(7) Subsection (6) does not, by implication, limit subsection (3).
110C Sections of the fax marketing industry
(1) For the purposes of this Part, sections of the fax marketing industry are to be ascertained in accordance with this section.
(2) If no determination is in force under subsection (3), all of the persons carrying on, or proposing to carry on, fax marketing activities constitute a single section of the fax marketing industry for the purposes of this Part.
(3) The ACMA may, by legislative instrument, determine that persons carrying on, or proposing to carry on, one or more specified kinds of fax marketing activity constitute a section of the fax marketing industry for the purposes of this Part.
(4) The section must be identified in the determination by a unique name and/or number.
(5) A determination under subsection (3) has effect accordingly.
(6) Sections of the fax marketing industry determined under subsection (3):
(a) need not be mutually exclusive; and
(b) may consist of the aggregate of any 2 or more sections of the fax marketing industry mentioned in subsection (2) or determined under subsection (3); and
(c) may be subsets of a section of the fax marketing industry mentioned in subsection (2) or determined under subsection (3).
(7) Subsection (6) does not, by implication, limit subsection (3).
111 Participants in a section of the telecommunications industry
For the purposes of this Part, if a person is a member of a group that constitutes a section of the telecommunications industry, the person is a participant in that section of the telecommunications industry.
111AA Participants in a section of the telemarketing industry
For the purposes of this Part, if a person is a member of a group that constitutes a section of the telemarketing industry, the person is a participant in that section of the telemarketing industry.
111AB Participants in a section of the fax marketing industry
For the purposes of this Part, if a person is a member of a group that constitutes a section of the fax marketing industry, the person is a participant in that section of the fax marketing industry.
111B Unsolicited commercial electronic messages
(1) For the purposes of this Part, an unsolicited commercial electronic message is a commercial electronic message that is sent:
(a) without the consent of the relevant electronic account‑holder; or
(b) to a non‑existent electronic address.
(2) An expression used in this section and in the Spam Act 2003 has the same meaning in this section as it has in that Act.
Division 3—General principles relating to industry codes and industry standards
112 Statement of regulatory policy
(1) The Parliament intends that bodies or associations that the ACMA is satisfied represent sections of the telecommunications industry should develop codes (industry codes) that are to apply to participants in the respective sections of the industry in relation to the telecommunications activities of the participants.
(1B) The Parliament intends that bodies or associations that the ACMA is satisfied represent sections of the telemarketing industry should develop codes (industry codes) that are to apply to participants in the respective sections of the industry in relation to the telemarketing activities of the participants.
(1C) The Parliament intends that bodies or associations that the ACMA is satisfied represent sections of the fax marketing industry should develop codes (industry codes) that are to apply to participants in the respective sections of the industry in relation to the fax marketing activities of the participants.
(2) The Parliament intends that the ACMA, in exercising its powers under sections 117, 118, 119, 123, 124, 125, 125AA, 125A and 125B, will act in a manner that, in the opinion of the ACMA, enables public interest considerations to be addressed in a way that does not impose undue financial and administrative burdens on participants in sections of the telecommunications industry, the telemarketing industry or the fax marketing industry.
(3) In determining whether public interest considerations are being addressed in a way that does not impose undue financial and administrative burdens on participants in sections of the telecommunications industry (other than electronic messaging service providers), the ACMA must have regard to:
(a) the number of customers who would be likely to benefit from the code or standard concerned; and
(b) the extent to which those customers are residential or small business customers; and
(c) the legitimate business interests of participants in sections of the telecommunications industry; and
(d) the public interest, including the public interest in the efficient, equitable and ecologically sustainable supply of:
(i) carriage services; and
(ii) goods for use in connection with carriage services; and
(iii) services for use in connection with carriage services;
in a manner that reflects the legitimate expectations of the Australian community.
(3A) In determining whether public interest considerations are being addressed in a way that does not impose undue financial and administrative burdens on participants in the section of the telecommunications industry that consists of electronic messaging service providers, the ACMA must have regard to:
(a) the number of end‑users who would be likely to benefit from the code or standard concerned; and
(b) the extent to which those end‑users are residential or small business end‑users; and
(c) the legitimate business interests of electronic messaging service providers.
(3C) In determining whether public interest considerations are being addressed in a way that does not impose undue financial and administrative burdens on participants in sections of the telemarketing industry, the ACMA must have regard to:
(a) the number of persons who would be likely to benefit from the code or standard concerned; and
(b) the extent to which those persons are householders or small business operators; and
(c) the legitimate business interests of participants in sections of the telemarketing industry.
(3D) In determining whether public interest considerations are being addressed in a way that does not impose undue financial and administrative burdens on participants in sections of the fax marketing industry, the ACMA must have regard to:
(a) the number of persons who would be likely to benefit from the code or standard concerned; and
(b) the extent to which those persons are householders or small business operators; and
(c) the legitimate business interests of participants in sections of the fax marketing industry.
(4) Subsections (3), (3A), (3B), (3C) and (3D) do not, by implication, limit the matters to which regard may be had.
113 Examples of matters that may be dealt with by industry codes and industry standards
(1) This section sets out examples of matters that may be dealt with by industry codes and industry standards.
(2) The applicability of a particular example will depend on which section of the telecommunications industry, the telemarketing industry or the fax marketing industry is involved.
(3) The examples are as follows:
(a) telling customers about:
(i) goods or services on offer; and
(ii) the prices of those goods or services; and
(iii) the other terms and conditions on which those goods or services are offered;
(b) giving customers information about performance indicators customers can use to evaluate the quality of services;
(c) regular reporting to customers about performance against those performance indicators;
(d) the internal handling of customer complaints;
(e) reporting about customer complaints;
(f) privacy and, in particular:
(i) the protection of personal information; and
(ii) the intrusive use of telecommunications by carriers or service providers; and
(iii) the monitoring or recording of communications; and
(iv) calling number display; and
(v) the provision of directory products and services;
(g) the “churning” of customers;
(h) security deposits given by customers;
(i) debt collection practices;
(j) customer credit practices;
(k) disconnection of customers;
(l) ensuring that customers have an informed basis on which to enter into agreements of a kind mentioned in paragraph 22(2)(d) or (e) or (4)(a) (which deal with boundaries of telecommunications networks);
(m) the quality of standard telephone services;
(n) the accuracy of billing of customers of carriage service providers in relation to the supply of standard telephone services;
(o) the timeliness and comprehensibility of bills;
(p) the procedures to be followed in order to generate standard billing reports to assist in the investigation of customer complaints about bills;
(pa) the design features of:
(i) optical fibre lines; or
(ii) facilities used, or for use, in or in connection with optical fibre lines;
(pb) performance requirements to be met by:
(i) optical fibre lines; or
(ii) facilities used, or for use, in or in connection with optical fibre lines;
(pc) the characteristics of carriage services supplied using optical fibre lines;
(pd) performance requirements to be met by carriage services supplied using optical fibre lines;
(q) procedures to be followed by:
(i) internet service providers; and
(ii) electronic messaging service providers;
in dealing with unsolicited commercial electronic messages (including procedures relating to the provision or use of regularly updated software for filtering unsolicited commercial electronic messages);
(r) giving customers information about the availability, use and appropriate application of software for filtering unsolicited commercial electronic messages;
(s) action to be taken to assist in the development and evaluation of software for filtering unsolicited commercial electronic messages;
(t) action to be taken in order to minimise or prevent the sending or delivery of unsolicited commercial electronic messages, including:
(i) the configuration of servers so as to minimise or prevent the sending or delivery of unsolicited commercial electronic messages; and
(ii) the shutdown of open relay servers;
(u) action to be taken to ensure responsible practices in relation to the use of commercial electronic messages to market, advertise or promote goods or services to individuals who are under 18 years of age;
(v) procedures to be followed in relation to the giving of consent by relevant electronic account‑holders (within the meaning of the Spam Act 2003) to the sending of commercial electronic messages;
(w) record‑keeping practices to be followed in relation to telemarketing calls made or attempted to be made;
(x) action to be taken to limit the total number of telemarketing calls attempted to be made, by a particular participant in a section of the telemarketing industry, during a particular period, where the recipient answers the attempted call, but the attempted call does not have any content;
(y) action to be taken to limit the total number of telemarketing calls made, or attempted to be made, by a particular participant in a section of the telemarketing industry, during a particular period to a particular Australian number;
(z) record‑keeping practices to be followed in relation to marketing faxes sent or attempted to be sent;
(za) action to be taken to limit the total number of marketing faxes sent or attempted to be sent, by a particular participant in a section of the fax marketing industry, during a particular period to a particular Australian number.
114 Industry codes and industry standards may confer powers on the Telecommunications Industry Ombudsman
(1) If the Telecommunications Industry Ombudsman consents, an industry code or industry standard may confer functions and powers on the Telecommunications Industry Ombudsman.
(2) The continuity of a consent under subsection (1) is not affected by:
(a) a change in the occupancy of the position of Telecommunications Industry Ombudsman; or
(b) a vacancy in the position of Telecommunications Industry Ombudsman that does not continue for more than 4 months.
115 Industry codes and industry standards not to deal with certain design features and performance requirements
(1) For the purposes of this Part, an industry code or an industry standard has no effect:
(a) to the extent (if any) to which compliance with the code or standard is likely to have the effect (whether direct or indirect) of requiring customer equipment, customer cabling, a telecommunications network or a facility:
(i) to have particular design features; or
(ii) to meet particular performance requirements; or
(b) to the extent (if any) to which it deals with the content of content services.
(2) The rule in subsection (1) does not apply to an industry code or an industry standard to the extent (if any) to which compliance with the code or standard is likely:
(a) to have the indirect effect of requiring customer equipment, customer cabling, a telecommunications network or a facility to have particular design features that relate to:
(i) the accuracy of billing of customers of carriage service providers in relation to the supply of standard telephone services; or
(ii) the quality of standard telephone services; or
(iii) a matter specified in the regulations; or
(b) to have the direct or indirect effect of requiring customer equipment, customer cabling, a telecommunications network or a facility to meet performance requirements that relate to:
(i) the accuracy of billing of customers of carriage service providers in relation to the supply of standard telephone services; or
(ii) the quality of standard telephone services; or
(iii) a matter specified in the regulations.
(3) The rule in subsection (1) does not apply to an industry code or an industry standard to the extent (if any) to which the code or standard deals with a matter referred to in paragraph 113(3)(f) or (t).
(4) The rule in subsection (1) does not apply to an industry code made for the purposes of Division 2AA of Part V of the Copyright Act 1968.
(5) The rule in subsection (1) does not apply to an industry code or an industry standard to the extent (if any) to which compliance with the code or standard is likely to have the effect (whether direct or indirect) of requiring:
(a) optical fibre lines; or
(b) facilities used, or for use, in or in connection with optical fibre lines;
to:
(c) have particular design features; or
(d) meet particular performance requirements.
116 Industry codes and industry standards not to deal with matters dealt with by codes and standards under Part 9 of the Broadcasting Services Act
For the purposes of this Part, an industry code or an industry standard that deals with a matter relating to a content service has no effect to the extent (if any) to which the matter is dealt with by a code registered, or standard determined, under Part 9 of the Broadcasting Services Act 1992.
116A Industry codes and standards do not affect Privacy Act 1988
Neither an industry code nor an industry standard derogates from a requirement made by or under the Privacy Act 1988 or a registered APP code (as defined in that Act).
Division 4—Industry codes
117 Registration of industry codes
(1) This section applies if:
(a) the ACMA is satisfied that a body or association represents a particular section of the telecommunications industry, the telemarketing industry or the fax marketing industry; and
(b) that body or association develops an industry code that applies to participants in that section of the industry and deals with one or more matters relating to the telecommunications activities, telemarketing activities or fax marketing activities, as the case may be, of those participants; and
(c) the body or association gives a copy of the code to the ACMA; and
(d) the ACMA is satisfied that:
(i) in a case where the code deals with matters of substantial relevance to the community—the code provides appropriate community safeguards for the matters covered by the code; or
(ii) in a case where the code does not deal with matters of substantial relevance to the community—the code deals with the matters covered by the code in an appropriate manner; and
(e) the ACMA is satisfied that, before giving the copy of the code to the ACMA:
(i) the body or association published a draft of the code on its website, and invited participants in that section of the industry to make submissions to the body or association about the draft within a specified period; and
(ii) the body or association gave consideration to any submissions that were received from participants in that section of the industry within that period; and
(iii) the body or association complied with the section 119B publication requirements in relation to any submissions that were received from participants in that section of the industry within that period; and
(f) the ACMA is satisfied that, before giving the copy of the code to the ACMA:
(i) the body or association published a draft of the code on its website, and invited members of the public to make submissions to the body or association about the draft within a specified period; and
(ii) the body or association gave consideration to any submissions that were received from members of the public within that period; and
(iii) the body or association complied with the section 119B publication requirements in relation to any submissions that were received from members of the public within that period; and
(g) the ACMA is satisfied that the ACCC has been consulted about the development of the code; and
(h) except in a case where:
(i) the code applies to participants in a section of the telemarketing industry and deals with one or more matters relating to the telemarketing activities of those participants; or
(ii) the code applies to participants in a section of the fax marketing industry and deals with one or more matters relating to the fax marketing activities of those participants;
the ACMA is satisfied that the Telecommunications Industry Ombudsman has been consulted about the development of the code; and
(i) the ACMA is satisfied that at least one body or association that represents the interests of consumers has been consulted about the development of the code; and
(j) in a case where the code deals with a matter set out in paragraph 113(3)(f)—the ACMA is satisfied that the Information Commissioner has been consulted by the body or association about the development of the code before the body or association gave the copy of the code to the ACMA; and
(k) the ACMA has consulted the Information Commissioner about the code and consequently believes that he or she is satisfied with the code, if the code deals directly or indirectly with a matter dealt with by:
(i) the Australian Privacy Principles; or
(ii) other provisions of the Privacy Act 1988 that relate to those principles; or
(iii) a registered APP code (as defined in that Act) that binds a participant in that section of the telecommunications industry, the telemarketing industry or the fax marketing industry; or
(iv) provisions of that Act that relate to the registered APP code
(2) The ACMA must register the code by including it in the Register of industry codes kept under section 136.
(3) A period specified under subparagraph (1)(e)(i) or (1)(f)(i) must run for at least 30 days.
(4) If:
(a) an industry code (the new code) is registered under this Part; and
(b) the new code is expressed to replace another industry code;
the other code ceases to be registered under this Part when the new code is registered.
Note: An industry code also ceases to be registered when it is removed from the Register of industry codes under section 122A.
118 ACMA may request codes
(1) If the ACMA is satisfied that a body or association represents a particular section of the telecommunications industry, the telemarketing industry or the fax marketing industry, the ACMA may, by written notice given to the body or association, request the body or association to:
(a) develop an industry code that applies to participants in that section of the industry and deals with one or more specified matters relating to the telecommunications activities, telemarketing activities or fax marketing activities, as the case may be, of those participants; and
(b) give the ACMA a copy of the code within the period specified in the notice.
Note: The ACMA may request the body or association to develop the industry code to replace an earlier industry code that the Information Commissioner (exercising functions under the Privacy Act 1988) has advised the ACMA is inconsistent with the Australian Privacy Principles or a relevant registered APP code (as defined in that Act).
(2) The period specified in a notice under subsection (1) must run for at least 120 days.
(3) The ACMA must not make a request under subsection (1) in relation to a particular section of the telecommunications industry, the telemarketing industry or the fax marketing industry unless the ACMA is satisfied that:
(a) the development of the code is necessary or convenient in order to:
(i) provide appropriate community safeguards; or
(ii) otherwise deal with the performance or conduct of participants in that section of the industry; and
(b) in the absence of the request, it is unlikely that an industry code would be developed within a reasonable period.
(4) The ACMA must not make a request under subsection (1) in relation to a code if:
(a) the code would deal with a matter referred to in paragraph 113(3)(f) (which relates to privacy); and
(b) compliance with the code would be likely to have the effect (whether direct or indirect) of requiring customer equipment, customer cabling, a telecommunications network or a facility:
(i) to have particular design features; or
(ii) to meet particular performance requirements.
However, this rule does not apply if the ACMA is satisfied that the benefits to the community from the operation of the code would outweigh the costs of compliance with the code.
(4AA) The rule in subsection (4) does not apply to a code to the extent (if any) to which compliance with the code is likely to have the effect (whether direct or indirect) of requiring:
(a) optical fibre lines; or
(b) facilities used, or for use, in or in connection with optical fibre lines;
to:
(c) have particular design features; or
(d) meet particular performance requirements.
(4A) The ACMA must consult the Information Commissioner before making a request under subsection (1) for the development of an industry code that could reasonably be expected to deal directly or indirectly with a matter dealt with by:
(a) the Australian Privacy Principles; or
(b) other provisions of the Privacy Act 1988 relating to those principles; or
(c) a registered APP code (as defined in that Act) that binds one or more participants in the section of the telecommunications industry, the telemarketing industry or the fax marketing industry to which the request relates; or
(d) provisions of that Act that relate to the registered APP code.
(5) The ACMA may vary a notice under subsection (1) by extending the period specified in the notice.
(6) Subsection (5) does not, by implication, limit the application of subsection 33(3) of the Acts Interpretation Act 1901.
(7) A notice under subsection (1) may specify indicative targets for achieving progress in the development of the code (for example, a target of 60 days to develop a preliminary draft of the code).
119 Publication of notice where no body or association represents a section of the telecommunications industry, the telemarketing industry or the fax marketing industry
(1) If the ACMA is satisfied that a particular section of the telecommunications industry, the telemarketing industry or the fax marketing industry is not represented by a body or association, the ACMA may publish a notice in the Gazette:
(a) stating that, if such a body or association were to come into existence within a specified period, the ACMA would be likely to give a notice to that body or association under subsection 118(1); and
(b) setting out the matter or matters relating to telecommunications activities, telemarketing activities or fax marketing activities, as the case may be, that would be likely to be specified in the subsection 118(1) notice.
(2) The period specified in a notice under subsection (1) must run for at least 60 days.
119A Variation of industry codes
Scope
(1) This section applies if:
(a) an industry code is registered under this Part; and
(b) the code:
(i) applies to participants in a particular section of the telecommunications industry, the telemarketing industry or the fax marketing industry; and
(ii) deals with one or more matters relating to the telecommunications activities, telemarketing activities or fax marketing activities, as the case may be, of those participants; and
(c) the body or association that developed the code gives a draft variation of the code to the ACMA; and
(d) disregarding any provisions of the code that are not affected (whether directly or indirectly) by the variation, the ACMA is satisfied that:
(i) in a case where the code (as proposed to be varied) deals with matters of substantial relevance to the community—the code (as proposed to be varied) provides appropriate community safeguards for the matters covered by the code (as proposed to be varied); or
(ii) in a case where the code (as proposed to be varied) does not deal with matters of substantial relevance to the community—the code (as proposed to be varied) deals with the matters covered by the code (as proposed to be varied) in an appropriate manner; and
(e) except in a case where the draft variation is of a minor nature—the ACMA is satisfied that, before giving the copy of the draft variation to the ACMA:
(i) the body or association published the draft variation on its website and invited participants in that section of the industry to make submissions to the body or association about the draft variation within a specified period; and
(ii) the body or association gave consideration to any submissions that were received from participants in that section of the industry within that period; and
(iii) the body or association complied with the section 119B publication requirements in relation to any submissions that were received from participants in that section of the industry within that period; and
(f) except in a case where the draft variation is of a minor nature—the ACMA is satisfied that, before giving the copy of the draft variation to the ACMA:
(i) the body or association published the draft variation on its website and invited members of the public to make submissions to the body or association about the draft variation within a specified period; and
(ii) the body or association gave consideration to any submissions that were received from members of the public within that period; and
(iii) the body or association complied with the section 119B publication requirements in relation to any submissions that were received from members of the public within that period; and
(g) the ACMA is satisfied that the ACCC has been consulted about the development of the draft variation; and
(h) except in a case where:
(i) the code (as proposed to be varied) applies to participants in a section of the telemarketing industry and deals with one or more matters relating to the telemarketing activities of those participants; or
(ii) the code (as proposed to be varied) applies to participants in a section of the fax marketing industry and deals with one or more matters relating to the fax marketing activities of those participants;
the ACMA is satisfied that the Telecommunications Industry Ombudsman has been consulted about the development of the draft variation; and
(i) the ACMA is satisfied that at least one body or association that represents the interests of consumers has been consulted about the development of the draft variation; and
(j) in a case where the draft variation deals with a matter set out in paragraph 113(3)(f)—the ACMA is satisfied that the Information Commissioner has been consulted by the body or association about the development of the draft variation before the body or association gave the copy of the draft variation to the ACMA; and
(k) the ACMA has consulted the Information Commissioner about the draft variation and consequently believes that he or she is satisfied with the draft variation, if the draft variation deals directly or indirectly with a matter dealt with by:
(i) the Australian Privacy Principles; or
(ii) other provisions of that Act that relate to those Principles; or
(iii) an approved privacy code (as defined in that Act) that binds a participant in that section of the telecommunications industry, the telemarketing industry or the fax marketing industry; or
(iv) provisions of that Act that relate to the approved privacy code.
Approval of variation
(2) The ACMA must, by written notice given to the body or association, approve the draft variation.
(3) If the ACMA approves the draft variation, the code is varied accordingly.
Period for making submissions
(4) A period specified under subparagraph (1)(e)(i) or (1)(f)(i) must run for at least 30 days.
119B Publication requirements for submissions
(1) This section sets out the publication requirements that apply to submissions that:
(a) are about a particular draft; and
(b) were received by a body or association as mentioned in:
(i) subparagraph 117(1)(e)(iii); or
(ii) subparagraph 117(1)(f)(iii); or
(iii) subparagraph 119A(1)(e)(iii); or
(iv) subparagraph 119A(1)(f)(iii).
Publication of submissions
(2) The body or association must publish those submissions on its website.
(3) Subsection (2) has effect subject to subsections (4) and (6).
Confidential or commercially sensitive material
(4) If:
(a) a submission made by a person consists wholly or partly of material that is claimed by the person to be confidential or commercially sensitive; and
(b) the person has requested the body or association not to publish the material; and
(c) the body or association is satisfied that the material is confidential or commercially sensitive;
then:
(d) if the submission consists wholly of the material—the body or association is not required to publish the submission on its website; or
(e) if:
(i) the submission consists partly of the material; and
(ii) it is practicable for the body or association to remove the material from the submission;
the body or association may remove the material from the submission before publishing the submission on its website; or
(f) if:
(i) the submission consists partly of the material; and
(ii) it is not practicable for the body or association to remove the material from the submission;
the body or association is not required to publish the submission on its website.
(5) If, under subsection (4), the body or association removes material from a submission before publishing the submission on its website, the body or association must publish on its website a statement to the effect that confidential or commercially sensitive material in the submission has not been published.
Defamatory material
(6) If the body or association considers that a submission consists wholly or partly of material that is, or is likely to be, defamatory:
(a) if the submission consists wholly of the material—the body or association is not required to publish the submission on its website; or
(b) if:
(i) the submission consists partly of the material; and
(ii) it is practicable for the body or association to remove the material from the submission;
the body or association may remove the material from the submission before publishing the submission on its website; or
(c) if:
(i) the submission consists partly of the material; and
(ii) it is not practicable for the body or association to remove the material from the submission;
the body or association is not required to publish the submission on its website.
(7) If, under subsection (6), the body or association removes material from a submission before publishing the submission on its website, the body or association must publish on its website a statement to the effect that material in the submission has not been published on the grounds that the material is, or is likely to be, defamatory.
Statistical statement
(8) The body or association must publish on its website a statement that sets out:
(a) the total number of those submissions; and
(b) if a number of those submissions have not been published, or have been published in a modified form, because of subsection (4) or (6)—that number.
120 Replacement of industry codes
Changes to an industry code may be achieved by replacing the code instead of varying the code. However, this does not prevent the ACMA from removing under section 122A an industry code, or a provision of an industry code, from the Register of industry codes kept under this Part.
121 Directions about compliance with industry codes
(1) If:
(a) a person is a participant in a particular section of the telecommunications industry, the telemarketing industry or the fax marketing industry; and
(b) the ACMA is satisfied that the person has contravened or is contravening an industry code that:
(i) is registered under this Part; and
(ii) applies to participants in that section of the industry;
the ACMA may, by written notice given to the person, direct the person to comply with the industry code.
(1A) If the ACMA is satisfied that the contravention of the industry code relates directly or indirectly to a matter dealt with by the Australian Privacy Principles or by a registered APP code (within the meaning of the Privacy Act 1988), the ACMA must consult the Information Commissioner before giving the direction.
(1B) If:
(a) at a time when an industry code (the original code) was registered under this Part, a direction could have been given to a person under subsection (1) in respect of the original code; and
(b) the original code has been replaced by another code that is registered under this Part; and
(c) the person could have been given a direction under subsection (1) in respect of the replacement code, if the conduct concerned had occurred after the replacement code was registered;
then, during the period when the replacement code is registered under this Part, the person may be given a direction under subsection (1) in respect of the replacement code.
(2) A person must comply with a direction under subsection (1).
(3) A person must not:
(a) aid, abet, counsel or procure a contravention of subsection (2); or
(b) induce, whether by threats or promises or otherwise, a contravention of subsection (2); or
(c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (2); or
(d) conspire with others to effect a contravention of subsection (2).
(4) Subsections (2) and (3) are civil penalty provisions.
Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.
(5) A direction under subsection (1) is not a legislative instrument.
122 Formal warnings—breach of industry codes
(1) This section applies to a person who is a participant in a particular section of the telecommunications industry, the telemarketing industry or the fax marketing industry.
(2) The ACMA may issue a formal warning if the person contravenes an industry code registered under this Part.
(3) If the ACMA is satisfied that the contravention of the industry code relates directly or indirectly to a matter dealt with by the Australian Privacy Principles or by a registered APP code (within the meaning of the Privacy Act 1988), the ACMA must consult the Information Commissioner before issuing the warning.
(4) If:
(a) at a time when an industry code (the original code) was registered under this Part, a formal warning could have been given to a person under subsection (2) in respect of the original code; and
(b) the original code has been replaced by another code that is registered under this Part; and
(c) the person could have been given a formal warning under subsection (2) in respect of the replacement code, if the conduct concerned had occurred after the replacement code was registered;
then, during the period when the replacement code is registered under this Part, the person may be given a formal warning under subsection (2) in respect of the replacement code.
122A De‑registering industry codes and provisions of industry codes
(1) The ACMA may remove from the Register of industry codes kept under section 136:
(a) an industry code; or
(b) a provision of an industry code.
(2) An industry code ceases to be registered when it is removed from the Register.
(3) If the ACMA removes a provision of an industry code from the Register, this Part has effect in relation to things occurring after the removal of the provision as if the code registered under this Part did not include the provision removed.
Division 5—Industry standards
123 ACMA may determine an industry standard if a request for an industry code is not complied with
(1) This section applies if:
(a) the ACMA has made a request under subsection 118(1) in relation to the development of a code that is to:
(i) apply to participants in a particular section of the telecommunications industry, the telemarketing industry or the fax marketing industry; and
(ii) deal with one or more matters relating to the telecommunications activities, telemarketing activities or fax marketing activities, as the case may be, of those participants; and
(b) any of the following conditions is satisfied:
(i) the request is not complied with;
(ii) if indicative targets for achieving progress in the development of the code were specified in the notice of request—any of those indicative targets were not met;
(iii) the request is complied with, but the ACMA subsequently refuses to register the code; and
(c) the ACMA is satisfied that it is necessary or convenient for the ACMA to determine a standard in order to:
(i) provide appropriate community safeguards in relation to that matter or those matters; or
(ii) otherwise regulate adequately participants in that section of the industry in relation to that matter or those matters.
(2) The ACMA may, by legislative instrument, determine a standard that applies to participants in that section of the industry and deals with that matter or those matters. A standard under this subsection is to be known as an industry standard.
(3) Before determining an industry standard under this section, the ACMA must consult the body or association to whom the request mentioned in paragraph (1)(a) was made.
124 ACMA may determine industry standard where no industry body or association formed
(1) This section applies if:
(a) the ACMA is satisfied that a particular section of the telecommunications industry, the telemarketing industry or the fax marketing industry is not represented by a body or association; and
(b) the ACMA has published a notice under subsection 119(1) relating to that section of the industry; and
(c) that notice:
(i) states that, if such a body or association were to come into existence within a particular period, the ACMA would be likely to give a notice to that body or association under subsection 118(1); and
(ii) sets out one or more matters relating to the telecommunications activities, telemarketing activities or fax marketing activities, as the case may be, of the participants in that section of the industry; and
(d) no such body or association comes into existence within that period; and
(e) the ACMA is satisfied that it is necessary or convenient for the ACMA to determine a standard in order to:
(i) provide appropriate community safeguards in relation to that matter or those matters; or
(ii) otherwise regulate adequately participants in that section of the industry in relation to that matter or those matters.
(2) The ACMA may, by legislative instrument, determine a standard that applies to participants in that section of the industry and deals with that matter or those matters. A standard under this subsection is to be known as an industry standard.
125 ACMA may determine industry standards where industry codes fail
(1) This section applies if:
(a) an industry code that:
(i) applies to participants in a particular section of the telecommunications industry, the telemarketing industry or the fax marketing industry; and
(ii) deals with one or more matters relating to the telecommunications activities, telemarketing activities or fax marketing activities, as the case may be, of those participants;
has been registered under this Part for at least 180 days; and
(b) the ACMA is satisfied that the code is deficient (as defined by subsection (7)); and
(c) the ACMA has given the body or association that developed the code a written notice requesting that deficiencies in the code be addressed within a specified period; and
(d) that period ends and the ACMA is satisfied that it is necessary or convenient for the ACMA to determine a standard that applies to participants in that section of the industry and deals with that matter or those matters.
(2) The period specified in a notice under paragraph (1)(c) must run for at least 30 days.
(3) The ACMA may, by legislative instrument, determine a standard that applies to participants in that section of the industry and deals with that matter or those matters. A standard under this subsection is to be known as an industry standard.
(4) If the ACMA is satisfied that a body or association represents that section of the industry, the ACMA must consult the body or association before determining an industry standard under subsection (3).
(6) The industry code ceases to be registered under this Part on the day on which the industry standard comes into force.
(7) For the purposes of this section, an industry code that applies to participants in a particular section of the telecommunications industry, the telemarketing industry or the fax marketing industry and deals with one or more matters relating to the telecommunications activities, telemarketing activities or fax marketing activities, as the case may be, of those participants is deficient if, and only if:
(a) the code is not operating to provide appropriate community safeguards in relation to that matter or those matters; or
(b) the code is not otherwise operating to regulate adequately participants in that section of the industry in relation to that matter or those matters.
125AA ACMA must determine an industry standard if directed by the Minister
(1) The ACMA may, by legislative instrument, determine a standard that:
(a) applies to participants in a particular section of the telecommunications industry; and
(b) deals with one or more matters relating to the telecommunications activities of those participants.
Note 1: For examples of matters that may be dealt with by industry standards, see section 113.
Note 2: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
(2) A standard under subsection (1) is to be known as an industry standard.
(3) If the ACMA is satisfied that a body or association represents that section of the telecommunications industry, the ACMA must consult the body or association before determining a standard under subsection (1).
(4) The Minister may, in writing, direct the ACMA to:
(a) determine a standard under subsection (1) that:
(i) applies to participants in a specified section of the telecommunications industry; and
(ii) deals with one or more specified matters relating to the telecommunications activities of those participants; and
(b) do so within a specified period.
(5) The ACMA must not determine a standard under subsection (1) unless it does so in accordance with a direction under subsection (4).
125A ACMA must determine certain industry standards relating to the telemarketing industry
(1) Before the commencement of Part 2 of the Do Not Call Register Act 2006, the ACMA must, by legislative instrument, determine a standard that:
(a) applies to participants in each section of the telemarketing industry; and
(b) deals with the following matters relating to the telemarketing activities of those participants:
(i) restricting the hours and/or days during which telemarketing calls may be made or attempted to be made;
(ii) requiring that a telemarketing call must contain specified information about the relevant participant;
(iii) requiring that, if a person other than the relevant participant caused a telemarketing call to be made, the call must contain specified information about the person who caused the call to be made;
(iv) requiring the relevant participant to terminate a telemarketing call if a specified event happens;
(v) requiring the relevant participant to ensure that calling line identification is enabled in respect of the making of a telemarketing call; and
(c) is expressed to commence at the same time as the commencement of Part 2 of the Do Not Call Register Act 2006.
(2) A standard under subsection (1) is to be known as an industry standard.
(3) If the ACMA is satisfied that a body or association represents a section of the telemarketing industry, the ACMA must consult the body or association before determining a standard under subsection (1).
(4) The ACMA must ensure that a standard is in force under subsection (1) at all times after the commencement of Part 2 of the Do Not Call Register Act 2006.
125B ACMA must determine certain industry standards relating to the fax marketing industry
(1) The ACMA may, by legislative instrument, determine a standard that:
(a) applies to participants in each section of the fax marketing industry; and
(b) deals with the following matters relating to the fax marketing activities of those participants:
(i) restricting the hours and/or days during which marketing faxes may be sent, or attempted to be sent, to an Australian number;
(ii) requiring that a marketing fax sent to an Australian number must contain specified information about the person who authorised the sending of the fax;
(iii) restricting the total number of marketing faxes sent, or attempted to be sent, by the relevant participant during a particular period to a particular Australian number;
(iv) requiring that, if a marketing fax sent to an Australian number is authorised by a particular person (the authorising person), the fax must contain information about how the recipient of the fax may send a message to the effect that the recipient does not want to receive any marketing faxes authorised by the authorising person.
Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
(2) A standard under subsection (1) is to be known as an industry standard.
(3) If the ACMA is satisfied that a body or association represents a section of the fax marketing industry, the ACMA must consult the body or association before determining a standard under subsection (1).
(4) The ACMA must ensure that a standard is in force under subsection (1) at all times after the commencement of this section.
(5) For the purposes of this section, authorise, when used in relation to a marketing fax, has the same meaning as in the Do Not Call Register Act 2006.
126 Industry standards not to be determined for certain privacy matters
The ACMA must not determine an industry standard if:
(a) the standard would deal with a matter referred to in paragraph 113(3)(f) (which relates to privacy); and
(b) compliance with the standard would be likely to have the effect (whether direct or indirect) of requiring customer equipment, customer cabling, a telecommunications network or a facility:
(i) to have particular design features; or
(ii) to meet particular performance requirements.
However, this rule does not apply if the ACMA is satisfied that the benefits to the community from the operation of the standard would outweigh the costs of compliance with the standard.
128 Compliance with industry standards
(1) If an industry standard that applies to participants in a particular section of the telecommunications industry, the telemarketing industry or the fax marketing industry is registered under this Part, each participant in that section of the industry must comply with the standard.
(2) A person must not:
(a) aid, abet, counsel or procure a contravention of subsection (1); or
(b) induce, whether by threats or promises or otherwise, a contravention of subsection (1); or
(c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or
(d) conspire with others to effect a contravention of subsection (1).
(3) Subsections (1) and (2) are civil penalty provisions.
Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.
129 Formal warnings—breach of industry standards
(1) This section applies to a person who is a participant in a particular section of the telecommunications industry, the telemarketing industry or the fax marketing industry.
(2) The ACMA may issue a formal warning if the person contravenes an industry standard registered under this Part.
130 Variation of industry standards
The ACMA may, by legislative instrument, vary an industry standard that applies to participants in a particular section of the telecommunications industry, the telemarketing industry or the fax marketing industry if it is satisfied that it is necessary or convenient to do so to:
(a) provide appropriate community safeguards in relation to one or more matters relating to the telecommunications activities, telemarketing activities or fax marketing activities, as the case may be, of those participants; and
(b) otherwise regulate adequately those participants in relation to one or more matters relating to the telecommunications activities, telemarketing activities or fax marketing activities, as the case may be, of those participants.
Note: The ACMA may be satisfied that it is necessary or convenient to vary an industry standard that is inconsistent with the Australian Privacy Principles or a registered APP code (as defined in the Privacy Act 1988), following advice given by the Information Commissioner in the exercise of his or her functions under that Act.
131 Revocation of industry standards
(1) The ACMA may, by legislative instrument, revoke an industry standard.
(2) If:
(a) an industry code is registered under this Part; and
(b) the code is expressed to replace an industry standard;
the industry standard is revoked when the code is registered.
132 Public consultation on industry standards
(1) Before determining or varying an industry standard, the ACMA must:
(a) cause to be published in a newspaper circulating in each State a notice:
(i) stating that the ACMA has prepared a draft of the industry standard or variation; and
(ii) stating that free copies of the draft will be made available to members of the public during normal office hours throughout the period specified in the notice; and
(iii) specifying the place or places where the copies will be available; and
(iv) inviting interested persons to give written comments about the draft to the ACMA within the period specified under subparagraph (ii); and
(b) make copies of the draft available in accordance with the notice.
(2) The period specified under subparagraph (1)(a)(ii) must run for at least 30 days after the publication of the notice.
(3) Subsection (1) does not apply to a variation if the variation is of a minor nature.
(4) If interested persons have given comments in accordance with a notice under subsection (1), the ACMA must have due regard to those comments in determining or varying the industry standard, as the case may be.
(5) In this section:
State includes the Northern Territory and the Australian Capital Territory.
133 Consultation with ACCC and the Telecommunications Industry Ombudsman
(1) Before determining or varying an industry standard, the ACMA must consult the ACCC.
(1A) Before determining or varying an industry standard (other than an industry standard under section 125A or 125B), the ACMA must consult the Telecommunications Industry Ombudsman.
(2) Before revoking an industry standard under subsection 131(1), the ACMA must consult the ACCC and the Telecommunications Industry Ombudsman.
134 Consultation with Information Commissioner
(1) This section applies to an industry standard that deals with a matter set out in paragraph 113(3)(f), including a matter dealt with by:
(a) the Australian Privacy Principles; or
(b) other provisions of the Privacy Act 1988 relating to those principles; or
(c) a registered APP code (as defined in that Act); or
(d) provisions of that Act that relate to a registered APP code.
(2) Before determining or varying the industry standard, the ACMA must consult the Information Commissioner.
(3) Before revoking the industry standard under subsection 131(1), the ACMA must consult the Information Commissioner.
135 Consultation with consumer body
(1) Before determining or varying an industry standard, the ACMA must consult at least one body or association that represents the interests of consumers.
(2) Before revoking an industry standard under subsection 131(1), the ACMA must consult at least one body or association that represents the interests of consumers.
135A Consultation with the States and Territories
Before determining or varying an industry standard under section 125A or 125B, the ACMA must consult:
(a) each State; and
(b) the Australian Capital Territory; and
(c) the Northern Territory.
Division 6—Register of industry codes and industry standards
136 ACMA to maintain Register of industry codes and industry standards
(1) The ACMA is to maintain a Register in which the ACMA includes:
(a) all industry codes required to be registered under this Part, as those codes are in force from time to time; and
(b) all industry standards; and
(c) all requests made under section 118; and
(d) all notices under section 119; and
(e) all directions given under section 121.
(1A) Paragraph (1)(a) does not require the ACMA to continue to include in the Register an industry code, or a provision of an industry code, removed from the Register under section 122A.
(2) The Register may be maintained by electronic means.
(3) A person may, on payment of the charge (if any) fixed by a determination under section 60 of the Australian Communications and Media Authority Act 2005:
(a) inspect the Register; and
(b) make a copy of, or take extracts from, the Register.
(4) For the purposes of this section, if the Register is maintained by electronic means, a person is taken to have made a copy of, or taken an extract from, the Register if the ACMA gives the person a printout of, or of the relevant parts of, the Register.
(5) If a person requests that a copy be provided in an electronic form, the ACMA may provide the relevant information:
(a) on a data processing device; or
(b) by way of electronic transmission.
Division 6A—Reimbursement of costs of development or variation of consumer‑related industry codes
136A Application for eligibility for reimbursement of costs of development or variation of consumer‑related industry code
(1) If a body or association proposes to develop or vary an industry code that:
(a) applies to participants in a particular section of the telecommunications industry; and
(b) deals with one or more matters relating to the telecommunications activities of those participants; and
(c) deals wholly or mainly with one or more matters relating to the relationship between carriage service providers and their retail customers;
the body or association may apply to the ACMA for a declaration that the body or association is eligible for reimbursement of refundable costs incurred by it in developing the code or varying the code, as the case may be.
Note: For refundable cost, see section 136E.
Form of application etc.
(2) An application must be:
(a) in writing; and
(b) in accordance with the form approved in writing by the ACMA; and
(c) accompanied by:
(i) an estimate of the total of the refundable costs likely to be incurred by the body or association in developing the code or varying the code, as the case may be; and
(ii) a statement breaking down that estimate into categories of refundable costs.
Further information
(3) The ACMA may, within 20 business days after an application is made, request the applicant to give the ACMA, within the period specified in the request, further information about the application.
(4) The ACMA may refuse to consider the application until the applicant gives the ACMA the information.
Definition
(5) In this section:
business day means a day on which the ACMA is open for business in the Australian Capital Territory and in Victoria.
136B Declaration of eligibility for reimbursement of costs of development or variation of consumer‑related industry code
Development of code
(1) If a body or association makes an application under subsection 136A(1) for a declaration in relation to the development of a code, the ACMA must make the declaration if it is satisfied that:
(a) the body or association represents the section of the telecommunications industry referred to in paragraph 136A(1)(a); and
(b) the code will deal wholly or mainly with one or more matters relating to the relationship between carriage service providers and their retail customers; and
(c) the process for developing the code, as outlined in the application, is likely to ensure that the interests of those retail customers are adequately represented in relation to the development of the code; and
(d) the total of the refundable costs likely to be incurred by the body or association in developing the code, as set out in the estimate that accompanied the application, is reasonable.
(2) If the ACMA is not satisfied as to the matters set out in subsection (1), the ACMA must, by written notice given to the applicant, refuse to make the declaration.
Variation of code
(2A) If a body or association makes an application under subsection 136A(1) for a declaration in relation to the variation of a code, the ACMA must make the declaration if it is satisfied that:
(a) the body or association represents the section of the telecommunications industry referred to in paragraph 136A(1)(a); and
(b) the code is registered under this Part; and
(c) the code deals wholly or mainly with one or more matters relating to the relationship between carriage service providers and their retail customers; and
(d) the process for varying the code, as outlined in the application, is likely to ensure that the interests of those retail customers are adequately represented in relation to the variation of the code; and
(e) the total of the refundable costs likely to be incurred by the body or association in varying the code, as set out in the estimate that accompanied the application, is reasonable.
(2B) If the ACMA is not satisfied as to the matters set out in subsection (2A), the ACMA must, by written notice given to the applicant, refuse to make the declaration.
General provisions
(3) A declaration under this section is irrevocable, and remains in force for 2 years.
(4) A declaration under this section is not a legislative instrument.
136C Reimbursement of costs of developing or varying consumer‑related industry code
Reimbursement of costs—development of code
(1) If:
(a) a section 136B declaration was made in relation to the development of an industry code by a body or association; and
(b) when the section 136B declaration was in force, the body or association gave a copy of the code to the ACMA under section 117; and
(c) the ACMA is satisfied that the code deals wholly or mainly with one or more matters relating to the relationship between carriage service providers and their retail customers; and
(d) the ACMA is satisfied that the process for the development of the code ensured that the interests of those retail customers were adequately represented in relation to the development of the code; and
(e) the copy of the code was accompanied by:
(i) a written statement itemising one or more costs incurred by the body or association in developing the code; and
(ii) a written claim for reimbursement of those costs; and
(iii) a written declaration by an approved auditor that he or she is of the opinion that the subparagraph (i) statement complies with the approved auditing requirements; and
(iv) a written statement describing the process for the development of the code; and
(f) the ACMA is satisfied that each of the costs itemised in the subparagraph (e)(i) statement:
(i) is a refundable cost incurred by the body or association in developing the code; and
(ii) was incurred when the section 136B declaration was in force;
the ACMA must, by written notice given to the body or association, determine that the body or association is entitled to be paid a specified amount.
Note: For refundable cost, see section 136E.
(2) The specified amount must be equal to whichever is the lesser of the following:
(a) the total of the costs itemised in the subparagraph (1)(e)(i) statement;
(b) the estimate that accompanied the application for the section 136B declaration.
(3) The ACMA, on behalf of the Commonwealth, must pay the specified amount to the body or association within 30 days after the day on which the body or association was notified under subsection (1) of its entitlement to be paid that amount.
Reimbursement of costs—variation of code
(3A) If:
(a) a section 136B declaration was made in relation to the variation of an industry code by a body or association; and
(b) when the section 136B declaration was in force, the body or association gave a copy of the variation to the ACMA under section 119A; and
(c) the ACMA is satisfied that the code deals wholly or mainly with one or more matters relating to the relationship between carriage service providers and their retail customers; and
(d) the ACMA is satisfied that the process for the variation of the code ensured that the interests of those retail customers were adequately represented in relation to the variation of the code; and
(e) the copy of the variation was accompanied by:
(i) a written statement itemising one or more costs incurred by the body or association in varying the code; and
(ii) a written claim for reimbursement of those costs; and
(iii) a written declaration by an approved auditor that he or she is of the opinion that the subparagraph (i) statement complies with the approved auditing requirements; and
(iv) a written statement describing the process for the variation of the code; and
(f) the ACMA is satisfied that each of the costs itemised in the subparagraph (e)(i) statement:
(i) is a refundable cost incurred by the body or association in varying the code; and
(ii) was incurred when the section 136B declaration was in force;
the ACMA must, by written notice given to the body or association, determine that the body or association is entitled to be paid a specified amount.
Note: For refundable cost, see section 136E.
(3B) The specified amount must be equal to whichever is the lesser of the following:
(a) the total of the costs itemised in the subparagraph (3A)(e)(i) statement;
(b) the estimate that accompanied the application for the section 136B declaration.
(3C) The ACMA, on behalf of the Commonwealth, must pay the specified amount to the body or association within 30 days after the day on which the body or association was notified under subsection (3A) of its entitlement to be paid that amount.
Appropriation
(4) The Consolidated Revenue Fund is appropriated for payments under this section.
Approved auditors and approved auditing requirements
(5) The ACMA may make a written determination specifying:
(a) the persons who are to be approved auditors for the purposes of this section; and
(b) the requirements that are to be approved auditing requirements for the purposes of this section.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
(6) A determination under subsection (5) has effect accordingly.
(7) A determination under subsection (5) is a legislative instrument.
136D Costs—transactions between persons not at arm’s length
If:
(a) a body or association has incurred a cost in connection with a transaction where the parties to the transaction are not dealing with each other at arm’s length in relation to the transaction; and
(b) apart from this section, the cost is counted for the purposes of the application of this Division to the body or association; and
(c) the amount of the cost is greater than is reasonable;
the amount of the cost is taken, for the purposes of the application of this Division in relation to the body or association, to be the amount that would have been reasonable if the parties were dealing with each other at arm’s length.
136E Refundable cost
(1) For the purposes of this Division, a refundable cost incurred by a body or association in developing or varying a code is a cost incurred by the body or association in developing the code or varying the code, as the case may be, other than a cost specified in a written determination made by the ACMA under this subsection.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
(2) A determination under subsection (1) is a legislative instrument.
Division 7—Miscellaneous
137 Protection from civil proceedings
Civil proceedings do not lie against:
(a) an internet service provider; or
(b) an electronic messaging service provider;
in respect of anything done by the provider in connection with:
(c) an industry code registered under this Part; or
(d) an industry standard;
in so far as the code or standard deals with the procedures referred to in paragraph 113(3)(q).
138 Implied freedom of political communication
This Part does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.
139 Agreements for the carrying on of telemarketing activities or fax marketing activities must require compliance with this Part
(1) A person (the first person) must not enter into a contract or arrangement, or arrive at an understanding, with another person, if:
(a) under the contract, arrangement or understanding, the other person undertakes to carry on one or more telemarketing activities or fax marketing activities; and
(b) the contract, arrangement or understanding does not contain an express provision to the effect that the other person will comply with this Part in relation to the telemarketing activities or fax marketing activities covered by the contract, arrangement or understanding.
Ancillary contraventions
(2) A person must not:
(a) aid, abet, counsel or procure a contravention of subsection (1); or
(b) induce, whether by threats or promises or otherwise, a contravention of subsection (1); or
(c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or
(d) conspire with others to effect a contravention of subsection (1).
Civil penalty provisions
(3) Subsections (1) and (2) are civil penalty provisions.
Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.
Validity of contracts, arrangements or understandings
(4) A failure to comply with subsection (1) does not affect the validity of any contract, arrangement or understanding.
Part 7—Layer 2 bitstream services
140 Simplified outline
The following is a simplified outline of this Part:
• A local access line that belongs to a telecommunications network (other than the national broadband network) must not be used to supply a fixed‑line carriage service if:
(a) the network is used, or is proposed to be used, to supply a superfast carriage service wholly or principally to residential or small business customers, or prospective residential or small business customers, in Australia; and
(b) no Layer 2 bitstream service is available for supply to those customers or prospective customers using the network; and
(c) the network came into existence, or was upgraded, on or after 1 January 2011.
141 Supply of Layer 2 bitstream services
Scope
(1) This section applies to a local access line if:
(a) the local access line is:
(i) part of the infrastructure of a telecommunications network in Australia; or
(ii) used, or for use, in or in connection with a telecommunications network in Australia; and
(b) the network is not the national broadband network; and
(c) the network is used, or is proposed to be used, to supply a superfast carriage service wholly or principally to residential or small business customers, or prospective residential or small business customers, in Australia; and
(d) no Layer 2 bitstream service is available for supply to those customers or prospective customers using the network; and
(e) either:
(i) the network came into existence on or after 1 January 2011; or
(ii) the network was altered or upgraded on or after 1 January 2011 and, as a result of the alteration or upgrade, the network became capable of being used to supply a superfast carriage service to residential or small business customers, or prospective residential or small business customers, in Australia.
Note 1: See also section 141B (deemed networks).
Note 2: For exemptions, see section 141A.
Sole owner of local access line
(2) If there is only one owner of the local access line, the owner of the local access line must not:
(a) use the local access line, either alone or jointly with one or more other persons, to supply a fixed‑line carriage service; or
(b) allow or permit another person to use the local access line to supply a fixed‑line carriage service.
Multiple owners of local access line
(3) If there are 2 or more owners of the local access line, an owner of the local access line must not:
(a) use the local access line, either alone or jointly with one or more other persons, to supply a fixed‑line carriage service; or
(b) either alone or together with one or more other owners, allow or permit another person to use the local access line to supply a fixed‑line carriage service.
Offence
(4) A person commits an offence if:
(a) the person is subject to a requirement under subsection (2) or (3); and
(b) the person engages in conduct; and
(c) the person’s conduct breaches the requirement.
Penalty: 20,000 penalty units.
Definitions
(10) In this section:
alter, in relation to a telecommunications network, has a meaning affected by section 141E.
fixed‑line carriage service means:
(a) a carriage service that is supplied using a line to premises occupied or used by an end‑user; or
(b) a service that facilitates the supply of a carriage service covered by paragraph (a).
local access line has the meaning given by section 141D.
national broadband network has the same meaning as in the National Broadband Network Companies Act 2011.
small business customer has the meaning given by section 141G.
superfast carriage service means a carriage service, where:
(a) the carriage service enables end‑users to download communications; and
(b) the download transmission speed of the carriage service is normally more than 25 megabits per second; and
(c) the carriage service is supplied using a line to premises occupied or used by an end‑user.
upgrade, in relation to a telecommunications network, has a meaning affected by section 141F.
141A Exemptions
(1) The Minister may, by written instrument, exempt a specified network from section 141.
Note: For specification by class, see the Acts Interpretation Act 1901.
(2) The Minister may, by written instrument, exempt a specified local access line from section 141.
Note: For specification by class, see the Acts Interpretation Act 1901.
(3) The Minister may, by written instrument, exempt a specified owner from subsections 141(2) and (3).
Note: For specification by class, see the Acts Interpretation Act 1901.
(4) An instrument under subsection (1), (2) or (3) may be:
(a) unconditional; or
(b) subject to such conditions (if any) as are specified in the instrument.
(5) Before making an instrument under subsection (1), (2) or (3), the Minister must consult:
(a) the ACCC; and
(b) the ACMA.
(6) An instrument under subsection (1), (2) or (3) is not a legislative instrument.
(7) In this section:
local access line has the meaning given by section 141D.
141B Deemed networks
(1) For the purposes of this Part, if:
(a) a telecommunications network is altered or upgraded on or after 1 January 2011; and
(b) as a result of the alteration or upgrade, a part of the network became capable of being used to supply a superfast carriage service to residential or small business customers, or prospective residential or small business customers, in Australia;
then:
(c) that part is taken to be a network in its own right; and
(d) the network referred to in paragraph (c) is taken to have come into existence on or after 1 January 2011.
(2) For the purposes of this Part, if:
(a) a telecommunications network is extended on or after 1 January 2011; and
(b) the extended part of the network is capable of being used to supply a superfast carriage service to residential or small business customers, or prospective residential or small business customers, in Australia;
then:
(c) the extended part is taken to be a network in its own right; and
(d) the network referred to in paragraph (c) is taken to have come into existence on or after 1 January 2011.
(3) If:
(a) a part of the infrastructure of a telecommunications network is situated in a particular area that is being or was developed as a particular stage of a real estate development project (within the ordinary meaning of that expression); and
(b) the network is extended to another area that is being, or is to be, developed as another stage of the project;
subsection (2) does not apply to the extension.
(4) If:
(a) a telecommunications network was in existence immediately before 1 January 2011; and
(b) the network is extended on or after 1 January 2011; and
(c) no point on the infrastructure of the extension is located more than:
(i) 1 kilometre; or
(ii) if a longer distance is specified in the regulations—that longer distance;
from a point on the infrastructure of the network as the network stood immediately before 1 January 2011;
subsection (2) does not apply to the extension.
(5) The regulations may provide that subsection (2) does not apply to a specified extension of a telecommunications network.
Note: For specification by class, see the Acts Interpretation Act 1901.
141C Certain installations and connections are not taken to be an extension, alteration or upgrade
For the purposes of this Part, if:
(a) a line is or was installed for the purposes of connecting particular premises to a telecommunications network; and
(b) the installation of the line enables or enabled the occupier of the premises to become a customer in relation to carriage services supplied using the network; and
(c) the premises are in close proximity to a line that forms part of the infrastructure of the network; and
(d) the network is capable of being used to supply a superfast carriage service; and
(e) the network came into existence before 1 January 2011;
neither the installation of the line mentioned in paragraph (a), nor the connection of the premises, is taken to be an extension, alteration or upgrade of the network.
141D Local access line
(1) For the purposes of this Part, a local access line is a line that is part of the infrastructure of a local access network.
(2) However, a line does not form part of a local access line to the extent that the line is on the customer side of the boundary of a telecommunications network.
(3) For the purposes of this section, the boundary of a telecommunications network is to be determined in the same manner in which it is determined under section 22 for the purposes of sections 20, 21 and 30.
(4) For the purposes of this section, local access network has the meaning generally accepted within the telecommunications industry.
141E Alteration
For the purposes of this Part, an alteration of a telecommunications network does not include an extension of the network.
141F Upgrade of telecommunications network
For the purposes of this Part, an upgrade of a telecommunications network does not include an extension of the network.
141G Small business customer
For the purposes of this Part, small business customer means:
(a) a customer who is a small business employer (within the meaning of the Fair Work Act 2009); or
(b) a customer who:
(i) carries on a business; and
(ii) does not have any employees.
For the purposes of paragraph (a) of this section, it is to be assumed that each reference in section 23 of the Fair Work Act 2009 to a national system employer were a reference to an employer (within the ordinary meaning of that expression).
Part 8—Superfast fixed‑line networks
Division 1—Introduction
142 Simplified outline
The following is a simplified outline of this Part:
• A controller of a telecommunications network (other than the national broadband network) must not use a local access line to supply an eligible service to a person other than a carrier or a service provider, if:
(a) the local access line is part of the infrastructure of the network; and
(b) the network is used, or is proposed to be used, to supply a superfast carriage service wholly or principally to residential or small business customers, or prospective residential or small business customers, in Australia; and
(c) the network came into existence, or was upgraded, on or after 1 January 2011.
142A Definitions
In this Part:
alter, in relation to a telecommunications network, has a meaning affected by section 159.
electricity supply body has the same meaning as in the National Broadband Network Companies Act 2011.
eligible service has the same meaning as in section 152AL of the Competition and Consumer Act 2010.
gas supply body has the same meaning as in the National Broadband Network Companies Act 2011.
local access line has the meaning given by section 158.
national broadband network has the same meaning as in the National Broadband Network Companies Act 2011.
rail corporation has the same meaning as in the National Broadband Network Companies Act 2011.
sewerage services body has the same meaning as in the National Broadband Network Companies Act 2011.
small business customer means:
(a) a customer who is a small business employer (within the meaning of the Fair Work Act 2009); or
(b) a customer who:
(i) carries on a business; and
(ii) does not have any employees.
For the purposes of paragraph (a) of this definition, it is to be assumed that each reference in section 23 of the Fair Work Act 2009 to a national system employer were a reference to an employer (within the ordinary meaning of that expression).
State or Territory road authority has the same meaning as in the National Broadband Network Companies Act 2011.
storm water drainage services has the same meaning as in the National Broadband Network Companies Act 2011.
storm water drainage services body has the same meaning as in the National Broadband Network Companies Act 2011.
superfast carriage service means a carriage service, where:
(a) the carriage service enables end‑users to download communications; and
(b) the download transmission speed of the carriage service is normally more than 25 megabits per second; and
(c) the carriage service is supplied using a line to premises occupied or used by an end‑user.
upgrade, in relation to a telecommunications network, has a meaning affected by section 160.
water supply body has the same meaning as in the National Broadband Network Companies Act 2011.
Division 2—Supply of eligible services to be on wholesale basis
143 Supply of eligible services to be on wholesale basis
Scope
(1) This section applies to a local access line if:
(a) the local access line is part of the infrastructure of a telecommunications network in Australia; and
(b) the network is used, or proposed to be used, to supply a superfast carriage service wholly or principally to residential or small business customers, or prospective residential or small business customers, in Australia; and
(c) the network is not the national broadband network; and
(d) either:
(i) the network came into existence on or after 1 January 2011; or
(ii) the network was altered or upgraded on or after 1 January 2011 and, as a result of the alteration or upgrade, the network became capable of being used to supply a superfast carriage service to residential or small business customers, or prospective residential or small business customers, in Australia.
Note 1: See also section 156 (deemed networks).
Note 2: For exemptions, see sections 144 to 151.
Person in position to exercise control of network
(2) A person who is in a position to exercise control of the network, or a person who is an associate of such a person, must not use the local access line, either alone or jointly with one or more other persons, to supply an eligible service unless the service is supplied to:
(a) a carrier; or
(b) a service provider.
Note 1: For when a person is in a position to exercise control of a network, see section 155.
Note 2: For control of a company, see section 154.
Offence
(3) A person commits an offence if:
(a) the person is subject to a requirement under subsection (2); and
(b) the person engages in conduct; and
(c) the person’s conduct breaches the requirement.
Penalty: 20,000 penalty units.
144 Exemptions—Ministerial instrument
(1) The Minister may, by written instrument, exempt a specified network from section 143.
Note: For specification by class, see the Acts Interpretation Act 1901.
(2) The Minister may, by written instrument, exempt a specified local access line from section 143.
Note: For specification by class, see the Acts Interpretation Act 1901.
(3) The Minister may, by written instrument, exempt a specified person from subsection 143(2).
Note: For specification by class, see the Acts Interpretation Act 1901.
(4) An instrument under subsection (1), (2) or (3) may be:
(a) unconditional; or
(b) subject to such conditions (if any) as are specified in the instrument.
(5) Before making an instrument under subsection (1), (2) or (3), the Minister must consult:
(a) the ACCC; and
(b) the ACMA.
(6) An instrument under subsection (1), (2) or (3) is not a legislative instrument.
145 Exemption—transport authorities
(1) Subsection 143(2) does not apply if:
(a) both:
(i) the eligible service is a carriage service; and
(ii) the sole use of the carriage service is use by Airservices Australia to carry communications necessary or desirable for the workings of aviation services; or
(b) the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this subsection.
(2) Paragraph (1)(a) does not apply to a carriage service supplied to Airservices Australia unless the carriage service is supplied on the basis that Airservices Australia must not re‑supply the carriage service.
(3) Subsection 143(2) does not apply if:
(a) the eligible service is a carriage service, and the sole use of the carriage service is use by a State or Territory transport authority to carry communications necessary or desirable for the workings of the following services:
(i) train services of a kind provided by the authority;
(ii) bus or other road services of a kind provided by the authority;
(iii) tram services of a kind provided by the authority; or
(b) the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this subsection.
(4) Paragraph (3)(a) does not apply to a carriage service supplied to a State or Territory transport authority unless the carriage service is supplied on the basis that the State or Territory transport authority must not re‑supply the carriage service.
(5) Subsection 143(2) does not apply if:
(a) both:
(i) the eligible service is a carriage service; and
(ii) the sole use of the carriage service is use by a rail corporation to carry communications necessary or desirable for the workings of train services; or
(b) the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this subsection.
(6) Paragraph (5)(a) does not apply to a carriage service supplied to a rail corporation unless the carriage service is supplied on the basis that the rail corporation must not re‑supply the carriage service.
146 Exemption—electricity supply bodies
(1) Subsection 143(2) does not apply if:
(a) the eligible service is a carriage service, and the sole use of the carriage service is use by an electricity supply body to carry communications necessary or desirable for:
(i) managing the generation, transmission, distribution or supply of electricity; or
(ii) charging for the supply of electricity; or
(b) the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this section.
(2) Paragraph (1)(a) does not apply to a carriage service supplied to an electricity supply body unless the carriage service is supplied on the basis that the electricity supply body must not re‑supply the carriage service.
147 Exemption—gas supply bodies
(1) Subsection 143(2) does not apply if:
(a) the eligible service is a carriage service, and the sole use of the carriage service is use by a gas supply body to carry communications necessary or desirable for:
(i) managing the transmission or distribution of natural gas in a pipeline; or
(ii) charging for the supply of natural gas transmitted or distributed in a pipeline; or
(b) the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this section.
(2) Paragraph (1)(a) does not apply to a carriage service supplied to a gas supply body unless the carriage service is supplied on the basis that the gas supply body must not re‑supply the carriage service.
148 Exemption—water supply bodies
(1) Subsection 143(2) does not apply if:
(a) the eligible service is a carriage service, and the sole use of the carriage service is use by a water supply body to carry communications necessary or desirable for:
(i) managing the distribution of water in a pipeline; or
(ii) charging for the supply of water distributed in a pipeline; or
(b) the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this section.
(2) Paragraph (1)(a) does not apply to a carriage service supplied to a water supply body unless the carriage service is supplied on the basis that the water supply body must not re‑supply the carriage service.
149 Exemption—sewerage services bodies
(1) Subsection 143(2) does not apply if:
(a) the eligible service is a carriage service, and the sole use of the carriage service is use by a sewerage services body to carry communications necessary or desirable for:
(i) managing the supply of sewerage services; or
(ii) charging for the supply of sewerage services; or
(b) the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this section.
(2) Paragraph (1)(a) does not apply to a carriage service supplied to a sewerage services body unless the carriage service is supplied on the basis that the sewerage services body must not re‑supply the carriage service.
150 Exemption—storm water drainage services bodies
(1) Subsection 143(2) does not apply if:
(a) the eligible service is a carriage service, and the sole use of the carriage service is use by a storm water drainage services body to carry communications necessary or desirable for:
(i) managing the supply of storm water drainage services; or
(ii) charging for the supply of storm water drainage services; or
(b) the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this section.
(2) Paragraph (1)(a) does not apply to a carriage service supplied to a storm water drainage services body unless the carriage service is supplied on the basis that the storm water drainage services body must not re‑supply the carriage service.
151 Exemption—State or Territory road authorities
(1) Subsection 143(2) does not apply if:
(a) the eligible service is a carriage service, and the sole use of the carriage service is use by a State or Territory road authority to carry communications necessary or desirable for the management or control of road traffic; or
(b) the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this section.
(2) Paragraph (1)(a) does not apply to a carriage service supplied to a State or Territory road authority unless the carriage service is supplied on the basis that the State or Territory road authority must not re‑supply the carriage service.
Division 3—Other provisions
152 Associate
(1) For the purposes of this Part, an associate of a person (the controller) in relation to control of:
(a) a telecommunications network; or
(b) a company;
is:
(c) a partner of the controller; or
(d) if the controller or another person who is an associate of the controller under another paragraph receives benefits or is capable of benefiting under a trust—the trustee of the trust; or
(e) 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) the controller; or
(iv) the controller and another person who is an associate of the controller under another paragraph; or
(f) another company if:
(i) the other company is a related body corporate of the controller for the purposes of the Corporations Act 2001; or
(ii) the controller, or the controller and another person who is an associate of the controller under another paragraph, is or 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.
153 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.
154 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 152 of this Act applies instead.
155 When a person is in a position to exercise control of a network
(1) For the purposes of this Part, a person (the controller) is in a position to exercise control of a telecommunications network if:
(a) the controller legally or beneficially owns the network (whether alone or together with one or more other persons); or
(b) the controller is in a position, either alone or together with an associate of the controller 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
(c) a company other than the controller legally or beneficially owns the network (whether alone or together with one or more other persons), and:
(i) the controller is in a position, either alone or together with an associate of the controller, to exercise control of the company; or
(ii) the controller, either alone or together with an associate of the controller, is in a position to veto any action taken by the board of directors of the company; or
(iii) the controller, either alone or together with an associate of the controller, 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) the controller, either alone or together with an associate of the controller, 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, the controller, the controller and an associate of the controller acting together, or the directors of the controller; 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, the controller, the controller and an associate of the controller acting together, or the directors of the controller.
(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.
156 Deemed networks
(1) For the purposes of this Part, if:
(a) a telecommunications network is altered or upgraded on or after 1 January 2011; and
(b) as a result of the alteration or upgrade, a part of the network became capable of being used to supply a superfast carriage service to residential or small business customers, or prospective residential or small business customers, in Australia;
then:
(c) that part is taken to be a network in its own right; and
(d) the network referred to in paragraph (c) is taken to have come into existence on or after 1 January 2011.
(2) For the purposes of this Part, if:
(a) a telecommunications network is extended on or after 1 January 2011; and
(b) the extended part of the network is capable of being used to supply a superfast carriage service to residential or small business customers, or prospective residential or small business customers, in Australia;
then:
(c) the extended part is taken to be a network in its own right; and
(d) the network referred to in paragraph (c) is taken to have come into existence on or after 1 January 2011.
(3) If:
(a) a part of the infrastructure of a telecommunications network is situated in a particular area that is being or was developed as a particular stage of a real estate development project (within the ordinary meaning of that expression); and
(b) the network is extended to another area that is being, or is to be, developed as another stage of the project;
subsection (2) does not apply to the extension.
(4) If:
(a) a telecommunications network was in existence immediately before 1 January 2011; and
(b) the network is extended on or after 1 January 2011; and
(c) no point on the infrastructure of the extension is located more than:
(i) 1 kilometre; or
(ii) if a longer distance is specified in the regulations—that longer distance;
from a point on the infrastructure of the network as the network stood immediately before 1 January 2011;
subsection (2) does not apply to the extension.
(5) The regulations may provide that subsection (2) does not apply to a specified extension of a telecommunications network.
Note: For specification by class, see the Acts Interpretation Act 1901.
157 Certain installations and connections are not taken to be an extension, alteration or upgrade
For the purposes of this Part, if:
(a) a line is or was installed for the purposes of connecting particular premises to a telecommunications network; and
(b) the installation of the line enables or enabled the occupier of the premises to become a customer in relation to carriage services supplied using the network; and
(c) the premises are in close proximity to a line that forms part of the infrastructure of the network; and
(d) the network is capable of being used to supply a superfast carriage service; and
(e) the network came into existence before 1 January 2011;
neither the installation of the line mentioned in paragraph (a), nor the connection of the premises, is taken to be an extension, alteration or upgrade of the network.
158 Local access line
(1) For the purposes of this Part, a local access line is a line that is part of the infrastructure of a local access network.
(2) However, a line does not form part of a local access line to the extent that the line is on the customer side of the boundary of a telecommunications network.
(3) For the purposes of this section, the boundary of a telecommunications network is to be determined in the same manner in which it is determined under section 22 for the purposes of sections 20, 21 and 30.
(4) For the purposes of this section, local access network has the meaning generally accepted within the telecommunications industry.
159 Alteration
For the purposes of this Part, an alteration of a telecommunications network does not include an extension of the network.
160 Upgrade of telecommunications network
For the purposes of this Part, an upgrade of a telecommunications network does not include an extension of the network.
Part 13—Protection of communications
Division 1—Introduction
270 Simplified outline
The following is a simplified outline of this Part:
• Carriers, carriage service providers, number‑database operators, emergency call persons and their respective associates must protect the confidentiality of information that relates to:
(a) the contents of communications that have been, or are being, carried by carriers or carriage service providers; and
(b) carriage services supplied by carriers and carriage service providers; and
(c) the affairs or personal particulars of other persons.
• The disclosure or use of protected information is authorised in limited circumstances (for example, disclosure or use for purposes relating to the enforcement of the criminal law).
• An authorised recipient of protected information may only disclose or use the information for an authorised purpose.
• Certain record‑keeping requirements are imposed in relation to authorised disclosures or uses of information.
271 Eligible person
For the purposes of this Part, an eligible person is a person who is:
(a) a carrier; or
(b) a carriage service provider; or
(c) an employee of a carrier; or
(d) an employee of a carriage service provider; or
(e) a telecommunications contractor; or
(f) an employee of a telecommunications contractor.
272 Number‑database operator and eligible number‑database person
(1) For the purposes of this Part, a number‑database operator is a person in respect of which a determination is in force under subsection 472(1).
(2) For the purposes of this Part, an eligible number‑database person is a person who is:
(a) a number‑database operator; or
(b) an employee of a number‑database operator; or
(c) a number‑database contractor; or
(d) an employee of a number‑database contractor.
273 Information
A reference in this Part to information includes a reference to opinion.
274 Telecommunications contractor
A reference in this Part to a telecommunications contractor is a reference to a person who performs services for or on behalf of:
(a) a carrier; or
(b) a carriage service provider;
but does not include a reference to a person who performs such services in the capacity of an employee of the carrier or provider.
275 Number‑database contractor
A reference in this Part to a number‑database contractor is a reference to a person who performs services for or on behalf of a number‑database operator, but does not include a reference to a person who performs such services in the capacity of an employee of the operator.
275A Location information
(1) For the purposes of this Part, information about the location of:
(a) a mobile telephone handset; or
(b) any other mobile communications device;
is taken to be information that relates to the affairs of the customer responsible for the handset or device.
(2) For the purposes of this Part, a document about the location of:
(a) a mobile telephone handset; or
(b) any other mobile communications device;
is taken to be a document that relates to the affairs of the customer responsible for the handset or device.
(3) This section is enacted for the avoidance of doubt.
275B Emergency management person
(1) In this Part:
emergency management person means a person who holds, occupies or performs the duties of an office or position specified under subsection (2).
(2) The AFP Minister may, by legislative instrument, specify either or both of the following for the purposes of the definition of emergency management person in subsection (1) of this section:
(a) offices;
(b) positions.
(3) Offices or positions established by or under a law of a State or Territory may be specified under subsection (2).
(4) Subsection (3) does not limit subsection (2).
(5) Before making an instrument under subsection (2), the AFP Minister must consult the Minister administering this Act.
275C Emergency
In this Part:
emergency means an emergency or disaster (however described) within the meaning of an emergency law.
275D Emergency law
(1) In this Part:
emergency law means a law specified under subsection (2).
(2) The AFP Minister may, by legislative instrument, specify a law of a State or a Territory for the purposes of the definition of emergency law in subsection (1) of this section.
275E Relevant information
In this Part:
relevant information means information, or the contents of a document, disclosed as permitted by section 285A.
Division 2—Primary disclosure/use offences
276 Primary disclosure/use offence—eligible persons
Current eligible persons
(1) An eligible person must not disclose or use any information or document that:
(a) relates to:
(i) the contents or substance of a communication that has been carried by a carrier or carriage service provider; or
(ii) the contents or substance of a communication that is being carried by a carrier or carriage service provider (including a communication that has been collected or received by such a carrier or provider for carriage by it but has not been delivered by it); or
(iii) carriage services supplied, or intended to be supplied, to another person by a carrier or carriage service provider; or
(iv) the affairs or personal particulars (including any unlisted telephone number or any address) of another person; and
(b) comes to the person’s knowledge, or into the person’s possession:
(i) if the person is a carrier or carriage service provider—in connection with the person’s business as such a carrier or provider; or
(ii) if the person is an employee of a carrier or carriage service provider—because the person is employed by the carrier or provider in connection with its business as such a carrier or provider; or
(iii) if the person is a telecommunications contractor—in connection with the person’s business as such a contractor; or
(iv) if the person is an employee of a telecommunications contractor—because the person is employed by the contractor in connection with its business as such a contractor.
Former eligible persons
(2) A person who has been an eligible person must not disclose or use any information or document that:
(a) relates to a matter mentioned in paragraph (1)(a); and
(b) came to the person’s knowledge, or into the person’s possession:
(i) if the person was a carrier or carriage service provider—in connection with the person’s business as such a carrier or provider; or
(ii) if the person was an employee of a carrier or carriage service provider—because the person was employed by the carrier or provider in connection with its business as such a carrier or provider; or
(iii) if the person was a telecommunications contractor—in connection with the person’s business as such a contractor; or
(iv) if the person was an employee of a telecommunications contractor—because the person was employed by the contractor in connection with its business as such a contractor.
Offence
(3) A person who contravenes this section commits an offence punishable on conviction by imprisonment for a term not exceeding 2 years.
Note 1: This section is subject to the exceptions in Division 3 of this Part and in Chapter 4 of the Telecommunications (Interception and Access) Act 1979.
Note 2: See also sections 4AA and 4B of the Crimes Act 1914.
Scope of subsection (1)—carriage by means of electromagnetic energy
(4) Subparagraphs (1)(a)(i) and (ii) do not apply to a communication that is or has been carried by a carrier or carriage service provider unless the carriage was by means of, is by means of, or is proposed to be delivered by means of, guided and/or unguided electromagnetic energy.
277 Primary disclosure/use offence—eligible number‑database persons
Current eligible number‑database persons
(1) An eligible number‑database person must not disclose or use any information or document that:
(a) relates to:
(i) carriage services supplied, or intended to be supplied, to another person by a carrier or carriage service provider; or
(ii) the affairs or personal particulars (including any unlisted telephone number or any address) of another person; and
(b) comes to the person’s knowledge, or into the person’s possession:
(i) if the person is a number‑database operator—in connection with the person’s business as such an operator; or
(ii) if the person is an employee of a number‑database operator—because the person is employed by the operator in connection with its business as such an operator; or
(iii) if the person is a number‑database contractor—in connection with the person’s business as such a contractor; or
(iv) if the person is an employee of a number‑database contractor—because the person is employed by the contractor in connection with its business as such a contractor.
Former eligible number‑database persons
(2) A person who has been an eligible number‑database person must not disclose or use any information or document that:
(a) relates to a matter mentioned in paragraph (1)(a); and
(b) came to the person’s knowledge, or into the person’s possession:
(i) if the person was a number‑database operator—in connection with the person’s business as such an operator; or
(ii) if the person was an employee of a number‑database operator—because the person was employed by the operator in connection with its business as such an operator; or
(iii) if the person was a number‑database contractor—in connection with the person’s business as such a contractor; or
(iv) if the person was an employee of a number‑database contractor—because the person was employed by the contractor in connection with its business as such a contractor.
Offence
(3) A person who contravenes this section commits an offence punishable on conviction by imprisonment for a term not exceeding 2 years.
Note 1: This section is subject to the exceptions in Division 3 of this Part and in Chapter 4 of the Telecommunications (Interception and Access) Act 1979.
Note 2: See also sections 4AA and 4B of the Crimes Act 1914.
278 Primary disclosure/use offence—emergency call persons
Current emergency call persons
(1) An emergency call person must not disclose or use any information or document that:
(a) relates to:
(i) the contents or substance of a communication that has been carried by a carrier or carriage service provider; or
(ii) the contents or substance of a communication that is being carried by a carrier or carriage service provider; or
(iii) the affairs or personal particulars (including any unlisted telephone number or any address) of another person; and
(b) comes to the person’s knowledge, or into the person’s possession, in connection with the operation of an emergency call service.
Former emergency call persons
(2) A person who has been an emergency call person must not disclose or use any information or document that:
(a) relates to a matter mentioned in paragraph (1)(a); and
(b) came to the person’s knowledge, or into the person’s possession, in connection with the operation of an emergency call service.
Offence
(3) A person who contravenes this section commits an offence punishable on conviction by imprisonment for a term not exceeding 2 years.
Note 1: This section is subject to the exceptions in Division 3 of this Part and in Chapter 4 of the Telecommunications (Interception and Access) Act 1979.
Note 2: See also sections 4AA and 4B of the Crimes Act 1914.
Scope of subsection (1)—carriage by means of electromagnetic energy
(4) Subparagraphs (1)(a)(i) and (ii) do not apply to a communication that is or has been carried by a carrier or carriage service provider unless the carriage was by means of, is by means of, or is proposed to be delivered by means of, guided and/or unguided electromagnetic energy.
Division 3—Exceptions to primary disclosure/use offences
Subdivision A—Exceptions
279 Performance of person’s duties
(1) Section 276 does not prohibit a disclosure or use by a person of information or a document if:
(a) the person is an employee of:
(i) a carrier; or
(ii) a carriage service provider; or
(iii) a telecommunications contractor; and
(b) the disclosure or use is made in the performance of the person’s duties as such an employee.
(2) Section 276 does not prohibit a disclosure or use by a person of information or a document if:
(a) the person is a telecommunications contractor; and
(b) the disclosure or use is made in the performance of the person’s duties as such a contractor.
(3) Section 277 does not prohibit a disclosure or use by a person of information or a document if:
(a) the person is an employee of:
(i) a number‑database operator; or
(ii) a number‑database contractor; and
(b) the disclosure or use is made in the performance of the person’s duties as such an employee.
(4) Section 277 does not prohibit a disclosure or use by a person of information or a document if:
(a) the person is a number‑database contractor; and
(b) the disclosure or use is made in the performance of the person’s duties as such a contractor.
(5) Section 278 does not prohibit a disclosure or use by a person of information or a document if:
(a) the person is an employee of:
(i) a recognised person who operates an emergency call service; or
(ii) an emergency call contractor; and
(b) the disclosure or use is made in the performance of the person’s duties as such an employee.
(6) Section 278 does not prohibit a disclosure or use by a person of information or a document if:
(a) the person is an emergency call contractor; and
(b) the disclosure or use is made in the performance of the person’s duties as such a contractor.
280 Authorisation by or under law
(1) Division 2 does not prohibit a disclosure or use of information or a document if:
(a) in a case where the disclosure or use is in connection with the operation of an enforcement agency—the disclosure or use is required or authorised under a warrant; or
(b) in any other case—the disclosure or use is required or authorised by or under law.
(1A) In applying paragraph (1)(a) to the Australian Commission for Law Enforcement Integrity, the reference in that paragraph to the operation of an enforcement agency is taken to be a reference to the performance of the functions of the Integrity Commissioner (within the meaning of the Law Enforcement Integrity Commissioner Act 2006).
(1B) Subject to subsection (1C), paragraph (1)(b) does not apply to a disclosure of information or a document if:
(a) the disclosure is required or authorised because of:
(i) a subpoena; or
(ii) a notice of disclosure; or
(iii) an order of a court;
in connection with a civil proceeding; and
(b) the information or document is kept, by a service provider (within the meaning of the Telecommunications (Interception and Access) Act 1979), solely for the purpose of complying with Part 5‑1A of that Act; and
(c) the information or document is not used or disclosed by the service provider for any purpose other than one or more of the following purposes:
(i) complying with Part 5‑1A of that Act;
(ii) complying with the requirements of warrants under Chapters 2 and 3 of that Act or authorisations under Chapter 4 of that Act;
(iii) complying with requests or requirements to make disclosures provided for by sections 284 to 288 of this Act;
(iv) providing persons with access to their personal information in accordance with the Privacy Act 1988;
(v) a purpose prescribed by the regulations;
(vi) a purpose incidental to any of the purposes referred to in subparagraphs (i) to (v).
(1C) Subsection (1B) does not apply:
(a) in circumstances of a kind prescribed by the regulations; or
(b) to a disclosure to an enforcement agency (within the meaning of the Telecommunications (Interception and Access) Act 1979); or
(c) to a disclosure that occurs during the implementation phase (within the meaning of that Act).
(2) In this section:
enforcement agency has the same meaning as in the Telecommunications (Interception and Access) Act 1979.
281 Witnesses
(1) Division 2 does not prohibit a disclosure by a person of information or a document if the person makes the disclosure as a witness summoned to give evidence or to produce documents.
(2) Subject to subsection (3), this section does not apply to a disclosure of information or a document by a person as a witness in a civil proceeding if the information or document:
(a) is kept, by a service provider (within the meaning of the Telecommunications (Interception and Access) Act 1979), solely for the purpose of complying with Part 5‑1A of that Act; and
(b) is not used or disclosed by the service provider for any purpose other than one or more of the following purposes:
(i) complying with Part 5‑1A of that Act;
(ii) complying with the requirements of warrants under Chapters 2 and 3 of that Act or authorisations under Chapter 4 of that Act;
(iii) complying with requests or requirements to make disclosures provided for by sections 284 to 288 of this Act;
(iv) providing persons with access to their personal information in accordance with the Privacy Act 1988;
(v) a purpose prescribed by the regulations;
(vi) a purpose incidental to any of the purposes referred to in subparagraphs (i) to (v).
(3) Subsection (2) does not apply:
(a) in circumstances of a kind prescribed by the regulations; or
(b) to a disclosure to an enforcement agency (within the meaning of the Telecommunications (Interception and Access) Act 1979); or
(c) to a disclosure that occurs during the implementation phase (within the meaning of that Act).
284 Assisting the ACMA, the eSafety Commissioner, the ACCC or the Telecommunications Industry Ombudsman
(1) Sections 276 and 277 do not prohibit a disclosure by a person of information or a document if:
(a) the disclosure is made to, or to a member of the staff of, the ACMA; and
(b) the information or document may assist the ACMA to carry out its functions or powers.
(1A) Sections 276 and 277 do not prohibit a disclosure by a person of information or a document if:
(a) the disclosure is made to:
(i) the eSafety Commissioner; or
(ii) a member of the staff of the ACMA whose duties relate to the performance of the eSafety Commissioner’s functions; and
(b) the information or document may assist the eSafety Commissioner to carry out his or her functions or powers.
(2) Sections 276 and 277 do not prohibit a disclosure by a person of information or a document if:
(a) the disclosure is made to, or to a member of the staff of, the ACCC; and
(b) the information or document may assist the ACCC to carry out its telecommunications functions and powers.
(3) Sections 276 and 277 do not prohibit a disclosure by a person of information or a document if:
(a) the disclosure is made to the Telecommunications Industry Ombudsman, or to an employee of the Telecommunications Industry Ombudsman; and
(b) the information or document may assist the Telecommunications Industry Ombudsman in the consideration of a complaint made to the Telecommunications Industry Ombudsman.
285 Integrated public number database
Permitted uses
(1) Sections 276 and 277 do not prohibit a use by a person of information or a document if:
(a) the information or document relates to information (other than information relating to an unlisted telephone number) contained in an integrated public number database; and
(b) the information or document relates to:
(i) carriage services supplied, or intended to be supplied, to another person by a