Federal Register of Legislation - Australian Government

Primary content

Telecommunications Act 1997

Authoritative Version
Act No. 47 of 1997 as amended, taking into account amendments up to Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021
An Act about telecommunications, and for related purposes
Administered by: Infrastructure, Transport, Regional Development and Communications
Registered 24 Jun 2021
Start Date 17 Jun 2021

Commonwealth Coat of Arms of Australia

Telecommunications Act 1997

No. 47, 1997

Compilation No. 100

Compilation date:                              17 June 2021

Includes amendments up to:            Act No. 13, 2021

Registered:                                         24 June 2021

This compilation is in 2 volumes

Volume 1:       sections 1–310

Volume 2:       sections 311-594

Volume 3:       Schedules

                        Endnotes

Each volume has its own contents

This compilation includes commenced amendments made by Act No. 151, 2020. The amendment made by Act No. 13, 2021 has not commenced but is noted in the endnotes.

About this compilation

This compilation

This is a compilation of the Telecommunications Act 1997 that shows the text of the law as amended and in force on 17 June 2021 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

  

  

  


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............................................... 24

11A....................... Application of the Criminal Code..................................... 24

12.......................... Act subject to Radiocommunications Act......................... 25

13.......................... Continuity of partnerships................................................ 25

14.......................... Controlled carriage services, controlled networks and controlled facilities               25

15.......................... Content service................................................................. 27

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.............................................................. 29

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.................................. 72

59.......................... Time limit on licence decision........................................... 73

60.......................... Notification of refusal of application................................. 75

61.......................... Conditions of carrier licence specified in Schedule 1........ 75

62.......................... Condition of carrier licence set out in section 152AZ of the Competition and Consumer Act 2010         75

62A....................... Condition of carrier licence set out in section 152BCO of the Competition and Consumer Act 2010      76

62B........................ Condition of carrier licence set out in section 152BDF of the Competition and Consumer Act 2010      76

62C........................ Condition of carrier licence set out in section 152BEC of the Competition and Consumer Act 2010      76

62D....................... Condition of carrier licence set out in section 152CJC of the Competition and Consumer Act 2010       76

62E........................ Condition of carrier licence set out in section 37 of the National Broadband Network Companies Act 2011.......................................................................................... 77

63.......................... Conditions of carrier licence declared by Minister............ 77

64.......................... Consultation about declared licence conditions................. 78

65.......................... Conditions about foreign ownership or control................ 79

67.......................... Carrier licence conditions—special provisions................. 79

68.......................... Compliance with conditions.............................................. 80

69.......................... Remedial directions—breach of condition........................ 80

69AA.................... Remedial directions—breach of conditions relating to access  83

70.......................... Formal warnings—breach of condition............................ 84

71.......................... Surrender of carrier licence............................................... 86

72.......................... Cancellation of carrier licence........................................... 86

73.......................... Collection of charges relating to carrier licences............... 88

73A....................... Refund of application charge............................................ 90

74.......................... Collection of charges on behalf of the Commonwealth..... 90

75.......................... Cancellation of certain exemptions from charge................ 90

76.......................... Commonwealth not liable to charge.................................. 91

Division 4—Nominated carrier declarations                                                 92

77.......................... Applications for nominated carrier declarations................ 92

78.......................... Application to be accompanied by charge etc.................... 92

79.......................... Form of application etc..................................................... 92

80.......................... Further information........................................................... 92

81.......................... Making a nominated carrier declaration............................ 93

81A....................... Obligations of nominated carrier....................................... 93

82.......................... Notification of refusal of application................................. 94

83.......................... Revocation of nominated carrier declaration..................... 94

Division 5—Register of nominated carrier declarations and carrier licences   96

84.......................... Register of nominated carrier declarations and carrier licences 96

Part 4—Service providers                                                                                               97

Division 1—Simplified outline                                                                                97

85.......................... Simplified outline.............................................................. 97

Division 2—Service providers                                                                               98

86.......................... Service providers.............................................................. 98

Division 3—Carriage service providers                                                           99

87.......................... Carriage service providers................................................ 99

88.......................... Supply to the public........................................................ 101

89.......................... Exemption from definition—customers located on the same premises     102

90.......................... Exemption from definition—defence.............................. 102

91.......................... Exemption from definition—intelligence operations....... 103

92.......................... Exemption from definition—transport authorities........... 103

93.......................... Exemption from definition—broadcasting services........ 104

94.......................... Exemption from definition—electricity supply bodies.... 105

95.......................... Exemption from definition—Ministerial determination... 105

96.......................... Exemption from certain regulatory provisions—Ministerial determination              106

Division 4—Content service providers                                                           107

97.......................... Content service providers............................................... 107

Division 5—Service provider rules                                                                   108

98.......................... Service provider rules..................................................... 108

99.......................... Service provider determinations...................................... 109

100........................ Exemptions from service provider rules......................... 110

101........................ Service providers must comply with service provider rules 110

102........................ Remedial directions—breach of service provider rules... 111

103........................ Formal warnings—breach of service provider rules....... 113

Part 5—Monitoring of the performance of carriers and carriage service providers       116

104........................ Simplified outline............................................................ 116

105........................ Monitoring of performance—annual report.................... 116

105A..................... Monitoring of performance—additional report............... 117

105C...................... Monitoring of breaches by Telstra of an undertaking about structural separation    117

Part 6—Industry codes and industry standards                                             118

Division 1—Simplified outline                                                                              118

106........................ Simplified outline............................................................ 118

Division 2—Interpretation                                                                                     119

107........................ Industry codes................................................................ 119

108........................ Industry standards.......................................................... 119

108A..................... Electronic messaging service provider............................ 119

108B...................... Telecommunications industry......................................... 120

109........................ Telecommunications activity........................................... 120

109B...................... Telemarketing activity..................................................... 120

109C...................... Fax marketing activity..................................................... 122

110........................ Sections of the telecommunications industry.................. 124

110B...................... Sections of the telemarketing industry............................ 126

110C...................... Sections of the fax marketing industry............................ 126

111........................ Participants in a section of the telecommunications industry 127

111AA.................. Participants in a section of the telemarketing industry..... 127

111AB................... Participants in a section of the fax marketing industry.... 128

111B...................... Unsolicited commercial electronic messages................... 128

Division 3—General principles relating to industry codes and industry standards        129

112........................ Statement of regulatory policy........................................ 129

113........................ Examples of matters that may be dealt with by industry codes and industry standards            131

114........................ Industry codes and industry standards may confer powers on the Telecommunications Industry Ombudsman........................................................................................ 134

115........................ Industry codes and industry standards not to deal with certain design features and performance requirements........................................................................................ 134

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.................................... 136

116A..................... Industry codes and standards do not affect Privacy Act 1988  136

Division 4—Industry codes                                                                                    137

117........................ Registration of industry codes........................................ 137

118........................ ACMA may request codes............................................. 139

119........................ Publication of notice where no body or association represents a section of the telecommunications industry, the telemarketing industry or the fax marketing industry 142

119A..................... Variation of industry codes............................................. 142

119B...................... Publication requirements for submissions...................... 145

120........................ Replacement of industry codes....................................... 148

121........................ Directions about compliance with industry codes........... 148

122........................ Formal warnings—breach of industry codes.................. 149

122A..................... De‑registering industry codes and provisions of industry codes              150

Division 5—Industry standards                                                                          151

123........................ ACMA may determine an industry standard if a request for an industry code is not complied with        151

124........................ ACMA may determine industry standard where no industry body or association formed       152

125........................ ACMA may determine industry standards where industry codes fail      153

125AA.................. ACMA must determine an industry standard if directed by the Minister 154

125A..................... ACMA must determine certain industry standards relating to the telemarketing industry        155

125B...................... ACMA must determine certain industry standards relating to the fax marketing industry       156

126........................ Industry standards not to be determined for certain privacy matters         157

128........................ Compliance with industry standards............................... 157

129........................ Formal warnings—breach of industry standards............ 158

130........................ Variation of industry standards....................................... 158

131........................ Revocation of industry standards.................................... 159

132........................ Public consultation on industry standards....................... 159

133........................ Consultation with ACCC and the Telecommunications Industry Ombudsman        160

134........................ Consultation with Information Commissioner................ 160

135........................ Consultation with consumer body.................................. 161

135A..................... Consultation with the States and Territories.................... 161

Division 6—Register of industry codes and industry standards        162

136........................ ACMA to maintain Register of industry codes and industry standards   162

Division 6A—Reimbursement of costs of development or variation of consumer‑related industry codes                                                                                                                    163

136A..................... Application for eligibility for reimbursement of costs of development or variation of consumer‑related industry code................................................................................ 163

136B...................... Declaration of eligibility for reimbursement of costs of development or variation of consumer‑related industry code................................................................................ 164

136C...................... Reimbursement of costs of developing or varying consumer‑related industry code 166

136D..................... Costs—transactions between persons not at arm’s length 169

136E...................... Refundable cost.............................................................. 169

Division 7—Miscellaneous                                                                                     170

137........................ Protection from civil proceedings................................... 170

138........................ Implied freedom of political communication................... 170

139........................ Agreements for the carrying on of telemarketing activities or fax marketing activities must require compliance with this Part................................................................... 170

Part 8—Local access lines                                                                                             172

Division 1—Introduction                                                                                        172

142........................ Simplified outline of this Part......................................... 172

142A..................... Definitions...................................................................... 173

142B...................... Functional separation undertaking given by a person..... 176

142BA................... Promotion of the long‑term interests of end‑users of carriage services and of services supplied by means of carriage services.............................................................. 176

142BB................... Terms and conditions...................................................... 177

142BC................... Unsatisfactory compliance record................................... 177

142BD................... Designated carriage service............................................. 177

Division 2—Supply of eligible services to be on wholesale basis       179

142C...................... Supply of eligible services to be on wholesale basis—lines that come into existence on or after the designated commencement date etc................................................... 179

143........................ Supply of eligible services to be on wholesale basis—networks in existence before the designated commencement date etc................................................... 181

143AA.................. Judicial enforcement of prohibitions............................... 183

Division 2A—Exemptions                                                                                       184

143A..................... Class exemptions............................................................ 184

143B...................... Compliance with conditions and limitations of exemption determinations               188

143C...................... Judicial enforcement of conditions and limitations of exemption determinations     188

143D..................... Publication of list of persons who have elected to be bound by exemption determinations      189

143E...................... Exemptions—certain real estate development projects etc. 189

143F...................... Exemptions—lines installed in close proximity to other lines  192

143G..................... Exemptions—networks covered by exemption instruments 193

143H..................... Exemption—networks marketed as business networks.. 195

144........................ Exemptions—Ministerial instrument.............................. 196

145........................ Exemption—transport authorities................................... 197

146........................ Exemption—electricity supply bodies............................. 198

147........................ Exemption—gas supply bodies...................................... 199

148........................ Exemption—water supply bodies................................... 199

149........................ Exemption—sewerage services bodies........................... 199

150........................ Exemption—storm water drainage services bodies......... 200

151........................ Exemption—State or Territory road authorities.............. 200

Division 2B—Functional separation undertakings                                   202

151A..................... Standard functional separation undertaking.................... 202

151B...................... Deemed standard functional separation undertaking....... 206

151C...................... Joint functional separation undertaking........................... 209

151D..................... Further information about undertaking........................... 214

151E...................... Withdrawal of undertaking that is under consideration... 215

151F...................... ACCC to accept or reject functional separation undertaking 215

151G..................... Consultation—acceptance or rejection of undertaking.... 217

151H..................... Serial undertakings......................................................... 218

151J....................... Criteria for accepting functional separation undertaking. 219

151K...................... Variation of functional separation undertaking that is under consideration              220

151L...................... Replacement of functional separation undertaking that is under consideration         221

151M..................... Renewal of functional separation undertaking................ 221

151N..................... Variation of expiry time of certain functional separation undertakings     222

151P...................... Duration of functional separation undertaking................ 224

151Q..................... Variation of functional separation undertaking that is in force 225

151R...................... Further information about variation of functional separation undertaking                226

151S...................... Withdrawal of variation that is under consideration........ 227

151T...................... ACCC to accept or reject variation.................................. 227

151U..................... Consultation—acceptance or rejection of variation......... 229

151V..................... Criteria for accepting variation........................................ 230

151W..................... Revocation of functional separation undertaking............ 230

151X..................... Consultation—revocation of functional separation undertaking               233

151Y..................... Notification that a person is at risk of having an unsatisfactory compliance record in relation to functional separation........................................................................ 234

151Z...................... Variation of functional separation undertaking following giving of revocation notice             235

151ZA................... Reporting obligations following giving of revocation notice 236

151ZB................... Requirement to notify changes in control of person who gave undertaking             238

151ZC................... Register of functional separation undertakings............... 240

151ZD................... Compliance with functional separation undertaking........ 240

151ZE.................... Enforcement of functional separation undertaking.......... 241

Division 2C—Non‑discrimination rules                                                          243

151ZF.................... Eligible services to be supplied on a non‑discriminatory basis 243

151ZG................... Eligible services—related activities to be carried on on a non‑discriminatory basis 245

151ZH................... Statement about the differences between an access agreement and an offer etc.       247

151ZHA................ Judicial enforcement of non‑discrimination rules............ 250

Division 3—Other provisions                                                                               251

151ZI..................... Anti‑avoidance................................................................ 251

151ZJ.................... Self‑incrimination........................................................... 252

151ZK................... Delegation....................................................................... 252

151ZL.................... Review by the Australian Competition Tribunal............. 253

151ZM.................. Functions and powers of the Australian Competition Tribunal etc.          254

151ZN................... Provisions that do not apply in relation to an Australian Competition Tribunal review            255

152........................ Associate........................................................................ 255

153........................ Control............................................................................ 256

154........................ Control of a company..................................................... 257

155........................ When a person is in a position to exercise control of a network               257

155A..................... When a person is in a position to exercise control of a line 259

156........................ Deemed networks etc...................................................... 261

156A..................... Certain lines deemed to have come into existence on or after the designated commencement date           263

157........................ Certain installations and connections are not taken to be an extension, alteration or upgrade of a network........................................................................................ 264

158........................ Local access line............................................................. 265

158A..................... Deemed local access lines............................................... 266

159........................ Alteration........................................................................ 267

160........................ Upgrade of telecommunications network........................ 267

161........................ Extended meaning of residential customer..................... 267

162........................ Close proximity.............................................................. 269

Part 13—Protection of communications                                                              270

Division 1—Introduction                                                                                        270

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

271........................ Eligible person................................................................ 270

272........................ Number‑database operator and eligible number‑database person             271

273........................ Information..................................................................... 271

274........................ Telecommunications contractor....................................... 271

275........................ Number‑database contractor........................................... 272

275A..................... Location information....................................................... 272

275B...................... Emergency management person...................................... 272

275C...................... Emergency...................................................................... 273

275D..................... Emergency law............................................................... 273

275E...................... Relevant information....................................................... 273

Division 2—Primary disclosure/use offences                                               274

276........................ Primary disclosure/use offence—eligible persons.......... 274

277........................ Primary disclosure/use offence—eligible number‑database persons        276

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

Division 3—Exceptions to primary disclosure/use offences                 280

Subdivision A—Exceptions                                                                                  280

279........................ Performance of person’s duties...................................... 280

280........................ Authorisation by or under law........................................ 281

281........................ Witnesses........................................................................ 283

284........................ Assisting the ACMA, the eSafety Commissioner, the ACCC or the Telecommunications Industry Ombudsman................................................................... 284

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

285A..................... Data for emergency warnings......................................... 289

286........................ Calls to emergency service number................................. 290

287........................ Threat to person’s life or health...................................... 291

288........................ Communications for maritime purposes......................... 291

289........................ Knowledge or consent of person concerned................... 291

290........................ Implicit consent of sender and recipient of communication 292

291........................ Business needs of other carriers or service providers..... 292

291A..................... Location dependent carriage services.............................. 294

292........................ Circumstances prescribed in the regulations................... 295

293........................ Uses connected with exempt disclosures........................ 296

294........................ Effect of this Subdivision............................................... 296

Subdivision B—Burden of proof                                                                        296

295........................ Burden of proof.............................................................. 296

Division 3A—Integrated public number database authorisations    298

Subdivision A—ACMA scheme for the granting of authorisations           298

295A..................... ACMA to make integrated public number database scheme 298

295B...................... Scheme must deal with certain matters............................ 298

295C...................... Applications may be treated differently........................... 299

295D..................... Scope of authorisations................................................... 299

295E...................... Provisional and final authorisations................................ 299

295F...................... Conditions...................................................................... 299

295G..................... Varying or revoking authorisations................................ 299

295H..................... Scheme may confer administrative powers on the ACMA 300

295J....................... Ancillary or incidental provisions................................... 300

295K...................... Scheme‑making power not limited.................................. 300

295L...................... Variation of scheme........................................................ 300

295M..................... Consultation.................................................................... 300

Subdivision B—Ministerial instruments                                                          301

295N..................... Criteria for deciding authorisation applications............... 301

295P...................... Conditions...................................................................... 301

295Q..................... Other reviewable decisions............................................. 302

Subdivision C—Enforcing compliance with conditions of authorisations 302

295R...................... Offence of breaching a condition.................................... 302

295S...................... Remedial directions for breaching a condition................ 302

295T...................... Formal warnings for breaching a condition.................... 303

Subdivision D—Report to Minister                                                                    303

295U..................... Report to Minister........................................................... 303

Division 3B—Emergency warnings                                                                  304

295V..................... Use or disclosure of information by emergency management persons     304

295W..................... Use or disclosure of information by other persons......... 305

295X..................... Effect on telecommunications network........................... 305

295Y..................... Coronial and other inquiries............................................ 305

295Z...................... Offence—use or disclosure of information by emergency management persons     306

295ZA................... Offence—use or disclosure of information by other persons.. 306

295ZB................... Reports of access............................................................ 307

295ZC................... Annual reports to the ACMA and Information Commissioner                307

295ZD................... Arrangements with States and Territories....................... 308

295ZE.................... Commonwealth immunity............................................... 308

Division 4—Secondary disclosure/use offences                                          309

296........................ Performance of person’s duties...................................... 309

297........................ Authorisation by or under law........................................ 309

299........................ Assisting the ACMA, the eSafety Commissioner, the ACCC or the Telecommunications Industry Ombudsman................................................................... 309

299A..................... Integrated public number database.................................. 310

300........................ Threat to person’s life or health...................................... 311

301........................ Communications for maritime purposes......................... 312

302........................ Business needs of other carriers or service providers..... 312

302A..................... Location dependent carriage services.............................. 313

303........................ Secondary offence—contravening this Division............. 313

303A..................... Generality of Division not limited................................... 313

Division 4A—Relationship with the Privacy Act 1988                           314

303B...................... Acts taken to be authorised by this Act for purposes of Privacy Act       314

303C...................... Prosecution of an offence against this Part does not affect proceedings under the Privacy Act 1988       314

Division 5—Record‑keeping requirements                                                   315

304........................ Associate........................................................................ 315

305........................ Authorisations under the Telecommunications (Interception and Access) Act 1979                315

306........................ Record of disclosures—general...................................... 315

306A..................... Record of disclosures—prospective authorisation under the Telecommunications (Interception and Access) Act 1979.......................................................................... 317

307........................ Incorrect records............................................................. 318

308........................ Annual reports to the ACMA by carriers, carriage service providers or number‑database operators       319

309........................ Monitoring by the Information Commissioner............... 319

Division 6—Instrument‑making powers not limited                                 321

310........................ Instrument‑making powers not limited........................... 321


An Act about telecommunications, and for related purposes

Part 1Introduction

  

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.

•      Numbering may be administered by a numbering scheme manager or by the ACMA.

•      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)  if there is a numbering scheme manager—a service specified by the ACMA for the purposes of this subparagraph in a legislative instrument; or

                          (iva)  if there is no numbering scheme manager—a service specified for the purposes of this subparagraph in the numbering plan made by the ACMA; or

                             (v)  a service for despatching a force or service referred to in subparagraph (i), (ii), (iii), (iv) or (iva).

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 Circuit Court means the Federal Circuit Court of Australia.

Federal Court means the Federal Court of Australia.

fibre‑ready facility has the meaning given by subsection 372W(1).

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.

functional fibre‑ready facility has the meaning given by subsection 372W(2).

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)  a Layer 2 bitstream service (within the ordinary meaning of that expression); and

                     (b)  a listed carriage service; and

                     (c)  supplied using a line to premises occupied or used by an end‑user.

For the purposes of determining the ordinary meaning of the expression used in paragraph (a), assume that 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.

numbering scheme means the scheme for planning and managing:

                     (a)  the numbering of carriage services in Australia; and

                     (b)  the use of numbers in connection with the supply of such services; and

                     (c)  the specification, allocation and issuing of numbers for that use.

numbering scheme manager: see subsection 454A(2).

numbering scheme principles: see subsection 454C(2).

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 2Network units

Division 1Simplified 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 2Basic 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 3Related 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 4Distinct 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 3Carriers

Division 1Simplified 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 2Prohibitions 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 3Carrier 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), (2A) or (2B); 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), (2A) or (2B); or

                     (c)  at the test time, any of the following individuals is disqualified:

                              (i)  a director of the body corporate;

                             (ii)  the secretary of the body corporate;

                            (iii)  a person (by whatever name called and whether or not a director of the body corporate) who is concerned in, or takes part in, the management of the body corporate.

When individual is disqualifiedfailure to pay annual charge

             (3)  For the purposes of subsection (2), an individual is disqualified at a particular time (the test time) if:

                     (a)  at any time before the test time, a carrier licence held by a body corporate or partnership was cancelled under subsection 72(1) because of a failure by the body corporate or partnership to pay in full the charge referred to in that subsection; and

                     (b)  in the case of a body corporate—at the time when the charge referred to in subsection 72(1) was due and payable, the individual was:

                              (i)  a director of the body corporate; or

                             (ii)  the secretary of the body corporate; or

                            (iii)  a person (by whatever name called and whether or not a director of the body corporate) who was concerned in, or took part in, the management of the body corporate; and

                     (c)  in the case of a partnership—at the time when the charge referred to in subsection 72(1) was due and payable, the individual:

                              (i)  was an employee of the partnership; and

                             (ii)  was concerned in, or took part in, the management of the partnership; and

                     (d)  the individual:

                              (i)  aided, abetted, counselled or procured the failure of the body corporate or partnership; or

                             (ii)  was in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the failure of the body corporate or partnership.

When individual is 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 individual is disqualified—failure to pay funding charge

          (4B)  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(2B) 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(2B) 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(2B) 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), (2A) or (2B); 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).

          (4A)  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 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH or 151ZI.

Note:          Sections 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH and 151ZI are set out in Part 8 (local access lines).

             (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.

          (1A)  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 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH or 151ZI.

Note:          Sections 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH and 151ZI are set out in Part 8 (local access lines).

             (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:

                  (aaa)  the condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH or 151ZI;

                     (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.

Failure to pay funding charge

          (2B)  The ACMA may cancel a carrier licence held by a carrier if the carrier fails to pay in full any funding charge on or before the date on which the funding charge becomes due and payable. For this purpose, funding charge means charge imposed by the Telecommunications (Regional Broadband Scheme) Charge Act 2020.

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 4Nominated 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 5Register 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 4Service providers

Division 1Simplified 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 2Service 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 3Carriage 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)