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................................................ 24
10.......................... Extension to external Territories....................................... 24
11.......................... Extension to offshore areas............................................... 24
11A....................... Application of the Criminal Code..................................... 25
12.......................... Act subject to Radiocommunications Act......................... 25
13.......................... Continuity of partnerships................................................ 25
14.......................... Controlled carriage services, controlled networks and controlled facilities 26
15.......................... Content service................................................................. 27
16.......................... Listed carriage services..................................................... 28
18.......................... Access to an emergency call service................................. 29
19.......................... Recognised person who operates an emergency call service 29
20.......................... Customer cabling.............................................................. 29
21.......................... Customer equipment......................................................... 30
22.......................... Customer cabling and customer equipment—boundary of a telecommunications network 31
23.......................... Immediate circle................................................................ 33
24.......................... Extended meaning of use.................................................. 38
Part 2—Network units 39
Division 1—Simplified outline 39
25.......................... Simplified outline.............................................................. 39
Division 2—Basic definition 40
26.......................... Single line links connecting distinct places in Australia.... 40
27.......................... Multiple line links connecting distinct places in Australia. 40
28.......................... Designated radiocommunications facility.......................... 41
29.......................... Facilities specified in Ministerial determination................ 42
Division 3—Related definitions 43
30.......................... Line links.......................................................................... 43
31.......................... Designated radiocommunications facility.......................... 43
32.......................... Public mobile telecommunications service........................ 45
33.......................... Intercell hand‑over functions............................................ 46
34.......................... When a base station is part of a terrestrial radiocommunications customer access network 47
35.......................... Fixed radiocommunications link....................................... 48
Division 4—Distinct places 50
36.......................... Distinct places—basic rules.............................................. 50
37.......................... Properties.......................................................................... 50
38.......................... Combined areas................................................................ 51
39.......................... Principal user of a property............................................... 52
40.......................... Eligible combined areas.................................................... 52
Part 3—Carriers 53
Division 1—Simplified outline 53
41.......................... Simplified outline.............................................................. 53
Division 2—Prohibitions relating to carriers 54
42.......................... Network unit not to be used without carrier licence or nominated carrier declaration 54
43.......................... Continuing offences.......................................................... 55
44.......................... Supply to the public.......................................................... 55
45.......................... Exemption—defence......................................................... 57
46.......................... Exemption—intelligence operations.................................. 58
47.......................... Exemption—transport authorities..................................... 58
48.......................... Exemption—broadcasting services................................... 59
49.......................... Exemption—electricity supply bodies............................... 61
50.......................... Exemption—line links authorised by or under previous laws 62
51.......................... Exemption—Ministerial determination............................. 64
Division 3—Carrier licences 66
52.......................... Applications for carrier licence......................................... 66
53.......................... Form of application etc..................................................... 66
53A....................... Copy of application to be given to Communications Access Co‑ordinator 66
54.......................... Application to be accompanied by charge......................... 66
55.......................... Further information........................................................... 67
56.......................... Grant of licence................................................................. 67
56AA.................... Deemed carrier licence—designated Telstra successor company 67
56A....................... Consultation with Communications Access Co‑ordinator 69
57.......................... Carrier licence has effect subject to this Act...................... 71
58.......................... Refusal of carrier licence—disqualified applicant............. 71
58A....................... Refusal of carrier licence—security.................................. 75
59.......................... Time limit on licence decision........................................... 76
60.......................... Notification of refusal of application................................. 78
61.......................... Conditions of carrier licence specified in Schedule 1........ 78
62.......................... Condition of carrier licence set out in section 152AZ of the Competition and Consumer Act 2010 79
62A....................... Condition of carrier licence set out in section 152BCO of the Competition and Consumer Act 2010 79
62B........................ Condition of carrier licence set out in section 152BDF of the Competition and Consumer Act 2010 79
62C........................ Condition of carrier licence set out in section 152BEC of the Competition and Consumer Act 2010 79
62D....................... Condition of carrier licence set out in section 152CJC of the Competition and Consumer Act 2010 79
62E........................ Condition of carrier licence set out in section 37 of the National Broadband Network Companies Act 2011.......................................................................................... 80
63.......................... Conditions of carrier licence declared by Minister............ 80
63A....................... Conditions of a carrier licence held by Telstra Limited..... 82
64.......................... Consultation about declared licence conditions................. 84
65.......................... Conditions about foreign ownership or control................ 85
67.......................... Carrier licence conditions—special provisions................. 85
68.......................... Compliance with conditions.............................................. 86
69.......................... Remedial directions—breach of condition........................ 86
69AA.................... Remedial directions—breach of conditions relating to access 89
70.......................... Formal warnings—breach of condition............................ 90
71.......................... Surrender of carrier licence............................................... 92
72.......................... Cancellation of carrier licence........................................... 92
73.......................... Collection of charges relating to carrier licences............... 94
73A....................... Refund of application charge............................................ 96
74.......................... Collection of charges on behalf of the Commonwealth..... 96
75.......................... Cancellation of certain exemptions from charge................ 96
76.......................... Commonwealth not liable to charge.................................. 97
Division 4—Nominated carrier declarations 98
77.......................... Applications for nominated carrier declarations................ 98
78.......................... Application to be accompanied by charge etc.................... 98
79.......................... Form of application etc..................................................... 98
80.......................... Further information........................................................... 98
81.......................... Making a nominated carrier declaration............................ 99
81A....................... Obligations of nominated carrier....................................... 99
82.......................... Notification of refusal of application............................... 100
83.......................... Revocation of nominated carrier declaration................... 100
Division 5—Register of nominated carrier declarations and carrier licences 102
84.......................... Register of nominated carrier declarations and carrier licences 102
Part 4—Service providers 103
Division 1—Simplified outline 103
85.......................... Simplified outline............................................................ 103
Division 2—Service providers 104
86.......................... Service providers............................................................ 104
Division 3—Carriage service providers 105
87.......................... Carriage service providers.............................................. 105
88.......................... Supply to the public........................................................ 107
89.......................... Exemption from definition—customers located on the same premises 108
90.......................... Exemption from definition—defence.............................. 108
91.......................... Exemption from definition—intelligence operations....... 109
92.......................... Exemption from definition—transport authorities........... 109
93.......................... Exemption from definition—broadcasting services........ 110
94.......................... Exemption from definition—electricity supply bodies.... 111
95.......................... Exemption from definition—Ministerial determination... 111
96.......................... Exemption from certain regulatory provisions—Ministerial determination 112
Division 4—Content service providers 113
97.......................... Content service providers............................................... 113
Division 5—Service provider rules 114
98.......................... Service provider rules..................................................... 114
99.......................... Service provider determinations...................................... 115
100........................ Exemptions from service provider rules......................... 116
101........................ Service providers must comply with service provider rules 116
102........................ Remedial directions—breach of service provider rules... 117
103........................ Formal warnings—breach of service provider rules....... 119
Part 5—Monitoring of the performance of carriers and carriage service providers 122
104........................ Simplified outline............................................................ 122
105........................ Monitoring of performance—annual report.................... 122
105A..................... Monitoring of performance—additional report............... 123
105C...................... Monitoring of breaches by a designated Telstra successor company of an undertaking about structural separation........................................................................ 123
Part 6—Industry codes and industry standards 124
Division 1—Simplified outline 124
106........................ Simplified outline............................................................ 124
Division 2—Interpretation 125
107........................ Industry codes................................................................ 125
108........................ Industry standards.......................................................... 125
108A..................... Electronic messaging service provider............................ 125
108B...................... Telecommunications industry......................................... 126
109........................ Telecommunications activity........................................... 126
109B...................... Telemarketing activity..................................................... 126
109C...................... Fax marketing activity..................................................... 128
110........................ Sections of the telecommunications industry.................. 130
110B...................... Sections of the telemarketing industry............................ 132
110C...................... Sections of the fax marketing industry............................ 132
111........................ Participants in a section of the telecommunications industry 133
111AA.................. Participants in a section of the telemarketing industry..... 133
111AB................... Participants in a section of the fax marketing industry.... 134
111B...................... Unsolicited commercial electronic messages................... 134
Division 3—General principles relating to industry codes and industry standards 135
112........................ Statement of regulatory policy........................................ 135
113........................ Examples of matters that may be dealt with by industry codes and industry standards 137
114........................ Industry codes and industry standards may confer powers on the Telecommunications Industry Ombudsman........................................................................................ 140
115........................ Industry codes and industry standards not to deal with certain design features and performance requirements........................................................................................ 140
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.................................... 142
116A..................... Industry codes and standards do not affect Privacy Act 1988 142
Division 4—Industry codes 143
117........................ Registration of industry codes........................................ 143
118........................ ACMA may request codes............................................. 145
119........................ Publication of notice where no body or association represents a section of the telecommunications industry, the telemarketing industry or the fax marketing industry 148
119A..................... Variation of industry codes............................................. 148
119B...................... Publication requirements for submissions...................... 151
120........................ Replacement of industry codes....................................... 154
121........................ Directions about compliance with industry codes........... 154
122........................ Formal warnings—breach of industry codes.................. 155
122A..................... De‑registering industry codes and provisions of industry codes 156
Division 5—Industry standards 157
123........................ ACMA may determine an industry standard if a request for an industry code is not complied with 157
124........................ ACMA may determine industry standard where no industry body or association formed 158
125........................ ACMA may determine industry standards where industry codes fail 159
125AA.................. ACMA must determine an industry standard if directed by the Minister 160
125A..................... ACMA must determine certain industry standards relating to the telemarketing industry 161
125B...................... ACMA must determine certain industry standards relating to the fax marketing industry 162
126........................ Industry standards not to be determined for certain privacy matters 163
128........................ Compliance with industry standards............................... 163
129........................ Formal warnings—breach of industry standards............ 164
130........................ Variation of industry standards....................................... 164
131........................ Revocation of industry standards.................................... 165
132........................ Public consultation on industry standards....................... 165
133........................ Consultation with ACCC and the Telecommunications Industry Ombudsman 166
134........................ Consultation with Information Commissioner................ 166
135........................ Consultation with consumer body.................................. 167
135A..................... Consultation with the States and Territories.................... 167
Division 6—Register of industry codes and industry standards 168
136........................ ACMA to maintain Register of industry codes and industry standards 168
Division 6A—Reimbursement of costs of development or variation of consumer‑related industry codes 169
136A..................... Application for eligibility for reimbursement of costs of development or variation of consumer‑related industry code................................................................................ 169
136B...................... Declaration of eligibility for reimbursement of costs of development or variation of consumer‑related industry code................................................................................ 170
136C...................... Reimbursement of costs of developing or varying consumer‑related industry code 172
136D..................... Costs—transactions between persons not at arm’s length 175
136E...................... Refundable cost.............................................................. 175
Division 7—Miscellaneous 176
137........................ Protection from civil proceedings................................... 176
138........................ Implied freedom of political communication................... 176
139........................ Agreements for the carrying on of telemarketing activities or fax marketing activities must require compliance with this Part................................................................... 176
Part 8—Local access lines 178
Division 1—Introduction 178
142........................ Simplified outline of this Part......................................... 178
142A..................... Definitions...................................................................... 179
142B...................... Functional separation undertaking given by a person..... 182
142BA................... Promotion of the long‑term interests of end‑users of carriage services and of services supplied by means of carriage services.............................................................. 182
142BB................... Terms and conditions...................................................... 183
142BC................... Unsatisfactory compliance record................................... 183
142BD................... Designated carriage service............................................. 183
Division 2—Supply of eligible services to be on wholesale basis 185
142C...................... Supply of eligible services to be on wholesale basis—lines that come into existence on or after the designated commencement date etc................................................... 185
143........................ Supply of eligible services to be on wholesale basis—networks in existence before the designated commencement date etc................................................... 187
143AA.................. Judicial enforcement of prohibitions............................... 189
Division 2A—Exemptions 190
143A..................... Class exemptions............................................................ 190
143B...................... Compliance with conditions and limitations of exemption determinations 194
143C...................... Judicial enforcement of conditions and limitations of exemption determinations 194
143D..................... Publication of list of persons who have elected to be bound by exemption determinations 195
143E...................... Exemptions—certain real estate development projects etc. 195
143F...................... Exemptions—lines installed in close proximity to other lines 198
143G..................... Exemptions—networks covered by exemption instruments 199
143H..................... Exemption—networks marketed as business networks.. 201
144........................ Exemptions—Ministerial instrument.............................. 202
145........................ Exemption—transport authorities................................... 203
146........................ Exemption—electricity supply bodies............................. 204
147........................ Exemption—gas supply bodies...................................... 205
148........................ Exemption—water supply bodies................................... 205
149........................ Exemption—sewerage services bodies........................... 205
150........................ Exemption—storm water drainage services bodies......... 206
151........................ Exemption—State or Territory road authorities.............. 206
Division 2B—Functional separation undertakings 208
151A..................... Standard functional separation undertaking.................... 208
151B...................... Deemed standard functional separation undertaking....... 212
151C...................... Joint functional separation undertaking........................... 215
151D..................... Further information about undertaking........................... 220
151E...................... Withdrawal of undertaking that is under consideration... 221
151F...................... ACCC to accept or reject functional separation undertaking 221
151G..................... Consultation—acceptance or rejection of undertaking.... 223
151H..................... Serial undertakings......................................................... 224
151J....................... Criteria for accepting functional separation undertaking. 225
151K...................... Variation of functional separation undertaking that is under consideration 226
151L...................... Replacement of functional separation undertaking that is under consideration 227
151M..................... Renewal of functional separation undertaking................ 227
151N..................... Variation of expiry time of certain functional separation undertakings 228
151P...................... Duration of functional separation undertaking................ 230
151Q..................... Variation of functional separation undertaking that is in force 231
151R...................... Further information about variation of functional separation undertaking 232
151S...................... Withdrawal of variation that is under consideration........ 233
151T...................... ACCC to accept or reject variation.................................. 233
151U..................... Consultation—acceptance or rejection of variation......... 235
151V..................... Criteria for accepting variation........................................ 236
151W..................... Revocation of functional separation undertaking............ 236
151X..................... Consultation—revocation of functional separation undertaking 239
151Y..................... Notification that a person is at risk of having an unsatisfactory compliance record in relation to functional separation........................................................................ 240
151Z...................... Variation of functional separation undertaking following giving of revocation notice 241
151ZA................... Reporting obligations following giving of revocation notice 242
151ZB................... Requirement to notify changes in control of person who gave undertaking 244
151ZC................... Register of functional separation undertakings............... 246
151ZD................... Compliance with functional separation undertaking........ 246
151ZE.................... Enforcement of functional separation undertaking.......... 247
Division 2C—Non‑discrimination rules 249
151ZF.................... Eligible services to be supplied on a non‑discriminatory basis 249
151ZG................... Eligible services—related activities to be carried on on a non‑discriminatory basis 251
151ZH................... Statement about the differences between an access agreement and an offer etc. 253
151ZHA................ Judicial enforcement of non‑discrimination rules............ 256
Division 3—Other provisions 257
151ZI..................... Anti‑avoidance................................................................ 257
151ZJ.................... Self‑incrimination........................................................... 258
151ZK................... Delegation....................................................................... 258
151ZL.................... Review by the Australian Competition Tribunal............. 259
151ZM.................. Functions and powers of the Australian Competition Tribunal etc. 260
151ZN................... Provisions that do not apply in relation to an Australian Competition Tribunal review 261
152........................ Associate........................................................................ 261
153........................ Control............................................................................ 262
154........................ Control of a company..................................................... 263
155........................ When a person is in a position to exercise control of a network 263
155A..................... When a person is in a position to exercise control of a line 265
156........................ Deemed networks etc...................................................... 267
156A..................... Certain lines deemed to have come into existence on or after the designated commencement date 269
157........................ Certain installations and connections are not taken to be an extension, alteration or upgrade of a network........................................................................................ 270
158........................ Local access line............................................................. 271
158A..................... Deemed local access lines............................................... 272
159........................ Alteration........................................................................ 273
160........................ Upgrade of telecommunications network........................ 273
161........................ Extended meaning of residential customer..................... 273
162........................ Close proximity.............................................................. 275
Part 13—Protection of communications 276
Division 1—Introduction 276
270........................ Simplified outline............................................................ 276
271........................ Eligible person................................................................ 276
272........................ Number‑database operator and eligible number‑database person 277
273........................ Information..................................................................... 277
274........................ Telecommunications contractor....................................... 277
275........................ Number‑database contractor........................................... 278
275A..................... Location information....................................................... 278
275B...................... Emergency management person...................................... 278
275C...................... Emergency...................................................................... 279
275D..................... Emergency law............................................................... 279
275E...................... Relevant information....................................................... 279
Division 2—Primary disclosure/use offences 280
276........................ Primary disclosure/use offence—eligible persons.......... 280
277........................ Primary disclosure/use offence—eligible number‑database persons 282
278........................ Primary disclosure/use offence—emergency call persons 284
Division 3—Exceptions to primary disclosure/use offences 286
Subdivision A—Exceptions 286
279........................ Performance of person’s duties...................................... 286
280........................ Authorisation by or under law........................................ 287
281........................ Witnesses........................................................................ 289
284........................ Assisting the ACMA, the eSafety Commissioner, the ACCC or the Telecommunications Industry Ombudsman................................................................... 290
285........................ Integrated public number database.................................. 291
285A..................... Data for emergency warnings......................................... 295
286........................ Calls to emergency service number................................. 296
287........................ Threat to person’s life or health...................................... 297
288........................ Communications for maritime purposes......................... 297
289........................ Knowledge or consent of person concerned................... 298
290........................ Implicit consent of sender and recipient of communication 298
291........................ Business needs of other carriers or service providers..... 298
291A..................... Location dependent carriage services.............................. 301
292........................ Circumstances prescribed in the regulations................... 302
293........................ Uses connected with exempt disclosures........................ 302
294........................ Effect of this Subdivision............................................... 303
Subdivision B—Burden of proof 303
295........................ Burden of proof.............................................................. 303
Division 3A—Integrated public number database authorisations 304
Subdivision A—ACMA scheme for the granting of authorisations 304
295A..................... ACMA to make integrated public number database scheme 304
295B...................... Scheme must deal with certain matters............................ 304
295C...................... Applications may be treated differently........................... 305
295D..................... Scope of authorisations................................................... 305
295E...................... Provisional and final authorisations................................ 305
295F...................... Conditions...................................................................... 305
295G..................... Varying or revoking authorisations................................ 305
295H..................... Scheme may confer administrative powers on the ACMA 306
295J....................... Ancillary or incidental provisions................................... 306
295K...................... Scheme‑making power not limited.................................. 306
295L...................... Variation of scheme........................................................ 306
295M..................... Consultation.................................................................... 306
Subdivision B—Ministerial instruments 307
295N..................... Criteria for deciding authorisation applications............... 307
295P...................... Conditions...................................................................... 307
295Q..................... Other reviewable decisions............................................. 308
Subdivision C—Enforcing compliance with conditions of authorisations 308
295R...................... Offence of breaching a condition.................................... 308
295S...................... Remedial directions for breaching a condition................ 308
295T...................... Formal warnings for breaching a condition.................... 309
Subdivision D—Report to Minister 309
295U..................... Report to Minister........................................................... 309
Division 3B—Emergency warnings 310
295V..................... Use or disclosure of information by emergency management persons 310
295W..................... Use or disclosure of information by other persons......... 311
295X..................... Effect on telecommunications network........................... 311
295Y..................... Coronial and other inquiries............................................ 311
295Z...................... Offence—use or disclosure of information by emergency management persons 312
295ZA................... Offence—use or disclosure of information by other persons.. 312
295ZB................... Reports of access............................................................ 313
295ZC................... Annual reports to the ACMA and Information Commissioner 313
295ZD................... Arrangements with States and Territories....................... 314
295ZE.................... Commonwealth immunity............................................... 314
Division 4—Secondary disclosure/use offences 315
296........................ Performance of person’s duties...................................... 315
297........................ Authorisation by or under law........................................ 315
299........................ Assisting the ACMA, the eSafety Commissioner, the ACCC or the Telecommunications Industry Ombudsman................................................................... 315
299A..................... Integrated public number database.................................. 316
300........................ Threat to person’s life or health...................................... 317
301........................ Communications for maritime purposes......................... 318
302........................ Business needs of other carriers or service providers..... 318
302A..................... Location dependent carriage services.............................. 319
303........................ Secondary offence—contravening this Division............. 319
303A..................... Generality of Division not limited................................... 319
Division 4A—Relationship with the Privacy Act 1988 320
303B...................... Acts taken to be authorised by this Act for purposes of Privacy Act 320
303C...................... Prosecution of an offence against this Part does not affect proceedings under the Privacy Act 1988 320
Division 5—Record‑keeping requirements 321
304........................ Associate........................................................................ 321
305........................ Authorisations under the Telecommunications (Interception and Access) Act 1979 321
306........................ Record of disclosures—general...................................... 321
306A..................... Record of disclosures—prospective authorisation under the Telecommunications (Interception and Access) Act 1979.......................................................................... 323
307........................ Incorrect records............................................................. 324
308........................ Annual reports to the ACMA by carriers, carriage service providers or number‑database operators 325
309........................ Monitoring by the Information Commissioner............... 325
Division 6—Instrument‑making powers not limited 327
310........................ Instrument‑making powers not limited........................... 327
An Act about telecommunications, and for related purposes
Part 1—Introduction
1 Short title
This Act may be cited as the Telecommunications Act 1997.
2 Commencement
(1) The following provisions of this Act commence on the day on which this Act receives the Royal Assent:
(a) this Part;
(b) Part 2;
(c) Divisions 2, 3 and 4 of Part 4;
(d) Division 3 of Part 25;
(f) section 589;
(g) section 594.
(2) Sections 52 to 55 (inclusive) commence on 5 June 1997.
(3) The remaining provisions of this Act commence on 1 July 1997.
3 Objects
(1) The main object of this Act, when read together with Parts XIB and XIC of the Competition and Consumer Act 2010, is to provide a regulatory framework that promotes:
(a) the long‑term interests of end‑users of carriage services or of services provided by means of carriage services; and
(b) the efficiency and international competitiveness of the Australian telecommunications industry; and
(c) the availability of accessible and affordable carriage services that enhance the welfare of Australians.
(2) The other objects of this Act, when read together with Parts XIB and XIC of the Competition and Consumer Act 2010, are as follows:
(a) to ensure that standard telephone services and payphones are:
(i) reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and
(ii) are supplied as efficiently and economically as practicable; and
(iii) are supplied at performance standards that reasonably meet the social, industrial and commercial needs of the Australian community;
(c) to promote the supply of diverse and innovative carriage services and content services;
(d) to promote the development of an Australian telecommunications industry that is efficient, competitive and responsive to the needs of the Australian community;
(e) to promote the effective participation by all sectors of the Australian telecommunications industry in markets (whether in Australia or elsewhere);
(f) to promote:
(i) the development of the technical capabilities and skills of the Australian telecommunications industry; and
(ii) the development of the value‑adding and export‑oriented activities of the Australian telecommunications industry; and
(iii) research and development that contributes to the growth of the Australian telecommunications industry;
(g) to promote the equitable distribution of benefits from improvements in the efficiency and effectiveness of:
(i) the provision of telecommunications networks and facilities; and
(ii) the supply of carriage services;
(h) to provide appropriate community safeguards in relation to telecommunications activities and to regulate adequately participants in sections of the Australian telecommunications industry;
(i) to promote the placement of lines underground, taking into account economic and technical issues, where placing such lines underground is supported by the affected community;
(j) to promote responsible practices in relation to the sending of commercial electronic messages;
(k) to promote responsible practices in relation to the making of telemarketing calls;
(l) to promote responsible practices in relation to the sending of marketing faxes.
4 Regulatory policy
The Parliament intends that telecommunications be regulated in a manner that:
(a) promotes the greatest practicable use of industry self‑regulation; and
(b) does not impose undue financial and administrative burdens on participants in the Australian telecommunications industry;
but does not compromise the effectiveness of regulation in achieving the objects mentioned in section 3.
5 Simplified outline
The following is a simplified outline of this Act:
• This Act sets up a system for regulating telecommunications.
• The main entities regulated by this Act are carriers and service providers.
• A carrier is the holder of a carrier licence granted under this Act.
• The owner of a network unit that is used to supply carriage services to the public must hold a carrier licence unless responsibility for the unit is transferred from the owner to a carrier.
• There are 4 types of network unit:
(a) a single line link connecting distinct places in Australia, where the line link meets certain minimum distance requirements;
(b) multiple line links connecting distinct places in Australia, where the line links meet certain minimum distance requirements;
(c) a designated radiocommunications facility;
(d) a facility specified in a Ministerial determination.
• Carrier licences are subject to conditions.
• There are 2 types of service provider:
(a) a carriage service provider;
(b) a content service provider.
• A carriage service provider is a person who supplies, or proposes to supply, certain carriage services.
• A content service provider is a person who supplies, or proposes to supply, certain content services.
• Service providers must comply with the service provider rules.
• The Australian Communications and Media Authority (ACMA) is to monitor, and report each year to the Minister on, significant matters relating to the performance of carriers and carriage service providers.
• Bodies and associations that represent sections of the telecommunications industry, the telemarketing industry or the fax marketing industry may develop industry codes.
• Industry codes may be registered by the ACMA.
• Compliance with an industry code is voluntary unless the ACMA directs a particular participant in the telecommunications industry, the telemarketing industry or the fax marketing industry to comply with the code.
• The ACMA has a reserve power to make an industry standard if there are no industry codes or if an industry code is deficient.
• Compliance with industry standards is mandatory.
• Carriers and carriage service providers must protect the confidentiality of communications.
• The ACMA, carriers and carriage service providers must do their best to prevent telecommunications networks and facilities from being used to commit offences.
• Carriers and carriage service providers must do their best to protect telecommunications networks and facilities from unauthorised interference or unauthorised access.
• Carriers and carriage service providers must ensure that it is possible to execute a warrant issued under the Telecommunications (Interception and Access) Act 1979.
• Carriage service providers may be required to supply carriage services for defence purposes or for the management of natural disasters.
• A carrier or carriage service provider may be required to enter into an agreement with the Commonwealth about:
(a) planning for network survivability; or
(b) operational requirements in times of crisis.
• The ACMA may require certain carriers and carriage service providers to provide pre‑selection in favour of carriage service providers in relation to calls made using a standard telephone service.
• The ACMA must require certain carriers and carriage service providers to provide pre‑selection in favour of carriage service providers in relation to calls made using a declared carriage service.
• Carriers and carriage service providers may be required to comply with certain international conventions.
• The Minister may make Rules of Conduct about dealings with international telecommunications operators.
• Provision is made for the technical regulation of customer equipment, customer cabling and cabling work.
• 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.
demerged Telstra company has the meaning given by section 581J.
designated part of the spectrum has the meaning given by section 577H.
designated radiocommunications facility has the meaning given by section 31.
designated Telstra successor company: see section 581G.
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 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 the Online Safety Act 2021.
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.
Telstra Infraco Limited means Telstra Infraco Limited (ACN 051 775 556), as the company exists from time to time (even if its name is later changed).
Telstra Limited means Telstra Limited (ACN 086 174 781), as the company exists from time to time (even if its name is later changed).
Telstra successor company: see section 581F.
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.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
(2) A determination under paragraph (1)(b) is a notifiable instrument.
(3) A person may be specified in a determination under paragraph (1)(b) even if the person does not operate an emergency call service at the time the determination is made.
(4) Subsection (3) is enacted for the avoidance of doubt.
20 Customer cabling
(1) For the purposes of this Act, customer cabling means a line that, under the regulations, is treated as customer cabling.
(2) Regulations made for the purposes of subsection (1) may deal with a matter by reference to the boundary of a telecommunications network.
Note: Boundary of a telecommunications network is defined by section 22.
(3) Subsection (2) does not, by implication, limit subsection (1).
(4) If no regulations are in force for the purposes of subsection (1), then, for the purposes of this Act, customer cabling means a line that is used, installed ready for use or intended for use on the customer side of the boundary of a telecommunications network.
Note: Boundary of a telecommunications network is defined by section 22.
21 Customer equipment
(1) For the purposes of this Act, customer equipment means:
(a) any equipment, apparatus, tower, mast, antenna or other structure or thing; or
(b) any system (whether software‑based or otherwise);
that:
(c) is used, installed ready for use or intended for use in connection with a carriage service; and
(d) under the regulations, is treated as customer equipment;
but does not include a line.
(2) Regulations made for the purposes of subsection (1) may deal with a matter by reference to the boundary of a telecommunications network.
Note: Boundary of a telecommunications network is defined by section 22.
(3) Subsection (2) does not, by implication, limit subsection (1).
(4) If no regulations are in force for the purposes of subsection (1), then, for the purposes of this Act, customer equipment means:
(a) any equipment, apparatus, tower, mast, antenna or other structure or thing that is used, installed ready for use or intended for use on the customer side of the boundary of a telecommunications network; or
(b) any system (whether software‑based or otherwise) that is used, installed ready for use or intended for use on the customer side of the boundary of a telecommunications network;
but does not include:
(c) a line; or
(d) equipment of a kind specified in regulations made for the purposes of this paragraph; or
(e) an apparatus, tower, mast, antenna or other structure or thing that is of a kind specified in regulations made for the purposes of this paragraph; or
(f) a system (whether software‑based or otherwise) that is of a kind specified in regulations made for the purposes of this paragraph.
Note : Boundary of a telecommunications network is defined by section 22.
22 Customer cabling and customer equipment—boundary of a telecommunications network
(1) For the purposes of sections 20, 21, 30, 349, 372B, 372C and 372V, the boundary of a telecommunications network is to be ascertained in accordance with the regulations.
(2) Regulations made for the purposes of subsection (1) may deal with a matter by reference to any or all of the following:
(a) the terms of an agreement between 2 or more carriers, where the agreement is entered into for the purposes of those regulations;
(b) the terms of an agreement between 2 or more carriage service providers, where the agreement is entered into for the purposes of those regulations;
(c) the terms of an agreement between a carrier and a carriage service provider, where the agreement is entered into for the purposes of those regulations;
(d) the terms of an agreement between a carrier and a customer of the carrier, where the agreement is entered into for the purposes of those regulations;
(e) the terms of an agreement between a carriage service provider and a customer of the provider, where the agreement is entered into for the purposes of those regulations.
(3) Subsection (2) does not, by implication, limit subsection (1).
(4) If no regulations are in force for the purposes of subsection (1), then, for the purposes of sections 20, 21, 30, 349, 372B, 372C and 372V, the boundary of a telecommunications network is:
(a) in a case where a telecommunications network is used to supply a carriage service to an end‑user in a building by means of a line that enters the building—the point agreed between the customer and the carrier or carriage service provider who operates the telecommunications network, or, failing agreement:
(i) if there is a main distribution frame in the building and the line is connected to the frame—the side of the frame nearest to the end‑user; or
(ii) if subparagraph (i) does not apply but the line is connected to a network termination device located in, on or within close proximity to, the building—the side of the device nearest to the end‑user; or
(iii) if neither subparagraph (i) nor (ii) applies but the line is connected to one or more sockets in the building—the side nearest to the end‑user of the first socket after the building entry point; or
(b) in a case where a telecommunications network is used to supply a carriage service to an end‑user by means of a satellite‑based facility that transmits to, or receives transmissions from, the point where the end user is located—the outer surface of the satellite‑based facility; or
(c) in a case where:
(i) a telecommunications network is used to supply a carriage service to an end‑user; and
(ii) paragraphs (a) and (b) do not apply;
the outer surface of the fixed facility nearest to the end‑user, where the facility is used, installed ready for use or intended for use to supply the carriage service.
(5) If, immediately before 1 July 1997, the boundary of a telecommunications network used to supply a standard telephone service to an end‑user in a building by means of a line that enters the building is the side of a main distribution frame, or a telephone socket, nearest to the end‑user, paragraph (4)(a) has effect, on and after 1 July 1997, as if the customer and the carrier or carriage service provider who operates the network had agreed to the boundary at that point.
(6) Subsection (5) does not prevent the customer and the carrier or carriage service provider agreeing to a boundary at a different point.
(7) For the purposes of subsection (4), the building entry point is the point at which a line that is used to provide a carriage service to an end‑user in a building meets the outer surface of that building, immediately before entering the building.
(8) In this section:
building includes a structure, a caravan and a mobile home.
23 Immediate circle
(1) For the purposes of this Act, a person’s immediate circle consists of the person, together with the following persons:
(a) if the person is an individual—an employee of the individual;
(b) if the person is a partnership—an employee of the partnership;
(c) if the person is a body corporate:
(i) an officer of the body corporate;
(ii) if another body corporate is related to the first‑mentioned body corporate (within the meaning of the Corporations Act 2001)—that other body corporate and an officer of that other body corporate;
(d) if the person is the Commonwealth:
(i) an authority or institution of the Commonwealth (other than an authority or institution that carries on a business as a core function) and a constituent member or an employee of such an authority or institution;
(ii) an officer or employee of the Commonwealth;
(iii) a member of the Australian Defence Force;
(iv) a member of the Australian Federal Police;
(v) a member of the Parliament and a member of the staff of a member of the Parliament;
(vi) a person who holds or performs the duties of an office under the Constitution or a law of the Commonwealth;
(e) if the person is a State:
(i) an authority or institution of the State (other than an authority or institution that carries on a business as a core function) and a constituent member or an employee of such an authority or institution;
(ii) an officer or employee of the State;
(iii) a member of the police force of the State;
(iv) a member of the Parliament of the State and a member of the staff of a member of the Parliament of the State;
(v) a person who holds or performs the duties of an office under a law of the State;
(f) if the person is a Territory:
(i) an authority or institution of the Territory (other than an authority or institution that carries on a business as a core function) and a constituent member or an employee of such an authority or institution;
(ii) an officer or employee of the Territory;
(iii) a member of the police force of the Territory;
(iv) a member of the Legislative Assembly of the Territory and a member of the staff of a member of the Legislative Assembly of the Territory;
(v) a person who holds or performs the duties of an office under a law of the Territory;
(g) if the person is an authority or institution of the Commonwealth (other than an authority or institution that carries on a business as a core function):
(i) a constituent member or an employee of the authority or institution;
(ii) the Commonwealth;
(iii) an officer or employee of the Commonwealth;
(iv) a member of the Australian Defence Force;
(v) a member of the Australian Federal Police;
(vi) a member of the Parliament and a member of the staff of a member of the Parliament;
(vii) a person who holds or performs the duties of an office under the Constitution or a law of the Commonwealth;
(viii) another authority or institution of the Commonwealth (other than an authority or institution that carries on a business as a core function) and a constituent member or an employee of the other authority or institution;
(h) if the person is an authority or institution of the Commonwealth, being an authority or institution that carries on a business as a core function—a constituent member or an employee of the authority or institution;
(i) if the person is an authority or institution of a State (other than an authority or institution that carries on a business as a core function):
(i) a constituent member or an employee of the authority or institution;
(ii) the State;
(iii) an officer or employee of the State;
(iv) a member of the police force of the State;
(v) a member of the Parliament of the State and a member of the staff of a member of the Parliament of the State;
(vi) a person who holds or performs the duties of an office under a law of the State;
(vii) another authority or institution of the State (other than an authority or institution that carries on a business as a core function) and a constituent member or an employee of the other authority or institution;
(j) if the person is an authority or institution of a State, being an authority or institution that carries on a business as a core function—a constituent member or an employee of the authority or institution;
(k) if the person is an authority or institution of a Territory (other than an authority or institution that carries on a business as a core function):
(i) a constituent member or an employee of the authority or institution;
(ii) the Territory;
(iii) an officer or employee of the Territory;
(iv) a member of the police force of the Territory;
(v) a member of the Legislative Assembly of the Territory and a member of the staff of a member of the Legislative Assembly of the Territory;
(vi) a person who holds or performs the duties of an office under a law of the Territory;
(vii) another authority or institution of the Territory (other than an authority or institution that carries on a business as a core function) and a constituent member or an employee of the other authority or institution;
(l) if the person is an authority or institution of a Territory, being an authority or institution that carries on a business as a core function—a constituent member or employee of the authority or institution;
(m) if the person is a tertiary education institution:
(i) a member of the governing body of the tertiary education institution;
(ii) an officer or employee of the tertiary education institution;
(iii) a student of the tertiary education institution;
(n) a person specified in a determination under subsection (2).
(2) The Minister may, by legislative instrument, make a determination specifying persons for the purposes of paragraph (1)(n).
(3) A determination under subsection (2) may be unconditional or subject to such conditions (if any) as are specified in the determination.
(4) Paragraphs (1)(a) to (m) (inclusive) do not, by implication, limit subsections (2) and (3).
(5) The Minister may, by legislative instrument, make a determination providing that a specified authority or specified institution is taken to carry on a business as a core function for the purposes of subsection (1).
(6) The Minister may, by legislative instrument, make a determination providing that a specified authority or specified institution is taken not to carry on a business as a core function for the purposes of subsection (1).
(7) A determination under subsection (2), (5) or (6) has effect accordingly.
(9) For the purposes of this section, a person who holds or performs the duties of the office of Administrator of the Northern Territory is taken to be an officer of that Territory.
(10) For the purposes of this section, the Australian Federal Police is taken to be the police force of the Australian Capital Territory.
(11) In this section:
core function, in relation to an authority or institution, means a function of the authority or institution other than a secondary or incidental function.
director includes a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, a State or a Territory.
executive officer, in relation to a body corporate, means a person, by whatever name called and whether or not a director of the body, who is concerned in, or takes part in, the management of the body.
officer, in relation to a body corporate, includes a director, secretary, executive officer or employee of the body.
tertiary education institution means:
(a) a higher education institution (within the meaning of the Student Assistance Act 1973); or
(b) a technical and further education institution (within the meaning of that Act).
24 Extended meaning of use
Unless the contrary intention appears, a reference in this Act to the use of a thing is a reference to the use of the thing either:
(a) in isolation; or
(b) in conjunction with one or more other things.
Part 2—Network units
Division 1—Simplified outline
25 Simplified outline
The following is a simplified outline of this Part:
• The object of this Part is to define the expression network unit.
• There are 4 types of network unit:
(a) a single line link connecting distinct places in Australia, where the line link meets certain minimum distance requirements;
(b) multiple line links connecting distinct places in Australia, where the line links meet certain minimum distance requirements;
(c) a designated radiocommunications facility;
(d) a facility specified in a Ministerial determination.
Division 2—Basic definition
26 Single line links connecting distinct places in Australia
(1) If:
(a) a line link connects distinct places in Australia; and
(b) the distinct places are at least the statutory distance apart;
the line link is a network unit.
(2) For the purposes of this section, the statutory distance is:
(a) 500 metres; or
(b) if a longer distance, not exceeding 50 kilometres, is specified in the regulations—that longer distance.
27 Multiple line links connecting distinct places in Australia
(1) If:
(a) the same person owns, or the same persons own, 2 or more line links; and
(b) each of those line links connects distinct places in Australia; and
(c) the aggregate of the distances between the distinct places is more than the statutory distance;
each of those line links is a network unit.
Note: Statutory distance is defined by subsection (3).
(2) If:
(a) the following conditions are satisfied in relation to 2 or more line links:
(i) the owners of the line links are bodies corporate;
(ii) the owners of the line links are all members of the same related company group; and
(b) each of those line links connects distinct places in Australia; and
(c) the aggregate of the distances between the distinct places is more than the statutory distance;
each of those line links is a network unit.
Note: Statutory distance is defined by subsection (3).
(3) For the purposes of this section, the statutory distance is:
(a) 5 kilometres; or
(b) if a longer distance, not exceeding 500 kilometres, is specified in the regulations—that longer distance.
(4) In this section:
owner means legal or beneficial owner, and own has a corresponding meaning.
related company group means a group of 2 or more bodies corporate, where each member of the group is related to each other member of the group.
(5) For the purposes of this section, the question whether a body corporate is related to another body corporate is to be determined in the same manner as that question is determined under the Corporations Act 2001.
28 Designated radiocommunications facility
(1) If a designated radiocommunications facility is used, or is for use, to supply a carriage service between a point in Australia and one or more other points in Australia, the facility is a network unit.
(2) It does not matter whether the supply involves:
(a) the use of a satellite; or
(b) the use of a line or other facility outside Australia.
(3) For the purposes of this section, a point includes a mobile or potentially mobile point, whether on land, underground, in the atmosphere, in outer space, underwater, at sea or anywhere else.
(4) For the purposes of this section, a point that is:
(a) in the atmosphere; and
(b) in or below the stratosphere; and
(c) above Australia;
is taken to be a point in Australia.
(5) For the purposes of this section, a point that is:
(a) on a satellite; and
(b) above the stratosphere;
is taken to be a point outside Australia.
29 Facilities specified in Ministerial determination
(1) The Minister may, by legislative instrument, determine that a specified facility is a network unit for the purposes of this Act.
(2) The determination has effect accordingly.
(4) To avoid doubt, nothing in the other provisions of this Part limits the power conferred by subsection (1).
Division 3—Related definitions
30 Line links
(1) A line constitutes a line link.
(2) If:
(a) a line is connected to another line; and
(b) the other line constitutes, or forms part of, a line link;
the first‑mentioned line, and the line link referred to in paragraph (b), together constitute a line link.
(3) Subsection (2) is recursive, that is, the reference in paragraph (2)(b) to a line link is a reference to something that is a line link because of any other application or applications of this section.
(4) For the purposes of subsection (2), a line is connected to another line if, and only if:
(a) the lines are connected to each other; or
(b) each of the lines is connected to the same facility (other than a line);
in such a way that a communication can be carried, by means of the 2 lines, or by means of facilities including the 2 lines, in the same way as if the 2 lines were a single line.
(4A) A line does not form part of any line link to the extent that the line is on the customer side of the boundary of a telecommunications network.
Note: Boundary of a telecommunications network is defined by section 22.
(5) A facility other than a line does not form part of any line link.
31 Designated radiocommunications facility
(1) A reference in this Act to a designated radiocommunications facility is a reference to:
(a) a base station used, or for use, to supply a public mobile telecommunications service; or
(b) a base station that is part of a terrestrial radiocommunications customer access network; or
(c) a fixed radiocommunications link; or
(d) a satellite‑based facility; or
(e) a radiocommunications transmitter of a kind specified in a determination under subsection (2); or
(f) a radiocommunications receiver of a kind specified in a determination under subsection (3);
but does not include a reference to:
(g) a base station of a kind declared under subsection (5) to be exempt from this section; or
(h) a fixed radiocommunications link of a kind declared under subsection (5) to be exempt from this section; or
(i) a satellite‑based facility of a kind declared under subsection (5) to be exempt from this section.
Note 1: Public mobile telecommunications service is defined by section 32.
Note 2: Base station that is part of a terrestrial radiocommunications customer access network is defined by section 34.
Note 3: Fixed radiocommunications link is defined by section 35.
Note 4: Satellite‑based facility is defined by section 7.
(2) The Minister may, by legislative instrument, make a determination for the purposes of paragraph (1)(e).
(3) The Minister may, by legislative instrument, make a determination for the purposes of paragraph (1)(f).
(5) The Minister may, by legislative instrument, make a declaration for the purposes of paragraph (1)(g), (h) or (i).
(7) To avoid doubt, nothing in the other provisions of this Part limits a power conferred by subsection (2), (3) or (5).
32 Public mobile telecommunications service
(1) For the purposes of this Act, if:
(a) an end‑user can use a carriage service while moving continuously between places; and
(b) the customer equipment used for or in relation to the supply of the service is not in physical contact with any part of the telecommunications network by means of which the service is supplied; and
(c) the service is supplied by use of a telecommunications network that has intercell hand‑over functions; and
(d) the service is not an exempt service (as defined by subsection (2), (3) or (4));
the service is a public mobile telecommunications service.
(2) For the purposes of this section, a carriage service is an exempt service if:
(a) the service is supplied by means of a telecommunications network (a primary network) that is connected to one or more line links or other facilities that, apart from this section, are eligible network units; and
(b) the principal function of the primary network is to supply carriage services between customer equipment connected to the primary network and other such equipment; and
(c) the supply of carriage services between such equipment and equipment connected to the network units is, at most, an ancillary function of the primary network; and
(d) despite the connection or connections referred to in paragraph (a), the primary network cannot be used in carrying a communication, as a single transaction, between equipment connected to the network units and other such equipment.
(3) For the purposes of this section, a carriage service is an exempt service if the service is:
(a) a one‑way only, store‑and‑forward communications service; or
(b) a service that performs the same functions as such a service.
(4) For the purposes of this section, a carriage service is an exempt service if all of the end‑users of the service are located at the same distinct place.
(5) In this section:
eligible network unit means a network unit:
(a) that is owned by one or more carriers; or
(b) in relation to which a nominated carrier declaration is in force.
33 Intercell hand‑over functions
(1) For the purposes of this Act, a telecommunications network is taken to have intercell hand‑over functions if, and only if:
(a) the facilities of the network include at least 2 base stations each of which transmits and receives signals to and from customer equipment (mobile equipment) that is:
(i) used for or in relation to the supply of an eligible mobile telecommunications service; and
(ii) located within a particular area (a cell); and
(b) the network includes the functions necessary to do the following while the network is carrying a communication made to or from particular mobile equipment:
(i) determine in which cell the equipment is located and cause the base station in that cell to transmit and receive signals to and from the equipment;
(ii) when the equipment moves from one cell to another, cause the base station in the one cell to stop, and the base station in the other cell to start, transmitting and receiving signals to and from the equipment.
(2) For the purposes of this section, a carriage service is an eligible mobile telecommunications service if:
(a) an end‑user can use it while moving continuously between places; and
(b) customer equipment used for or in relation to the supply of the service is not in physical contact with any part of the telecommunications network by means of which the service is supplied.
34 When a base station is part of a terrestrial radiocommunications customer access network
(1) For the purposes of this Act, a base station is part of a terrestrial radiocommunications customer access network if, and only if:
(a) the base station is part of a telecommunications network; and
(b) the base station is not an exempt base station (as defined by subsection (2)); and
(c) the base station is used, or for use, in connection with the supply of a carriage service; and
(d) customer equipment used for or in relation to the supply of the service is not in physical contact with any part of the telecommunications network by means of which the service is supplied; and
(e) the service is wholly or principally used, or wholly or principally for use, by each end‑user:
(i) at premises occupied or used by the end‑user; or
(ii) in the immediate vicinity of those premises; and
(f) the network does not have intercell hand‑over functions; and
(g) the conditions (if any) specified in the regulations are satisfied; and
(h) the network is not an exempt network (as defined by subsection (3)).
(2) For the purposes of paragraph (1)(b), a base station is an exempt base station if the sole use of the base station is use by a broadcaster to:
(a) supply broadcasting services to the public; or
(b) supply a secondary carriage service by means of the main carrier signal of a primary broadcasting service;
or both.
(3) For the purposes of paragraph (1)(h), a network is an exempt network if:
(a) the network is used, or for use, for the sole purpose of supplying carriage services on a non‑commercial basis; or
(b) the network is of a kind specified in the regulations.
(4) In this section:
broadcaster means:
(a) the Australian Broadcasting Corporation; or
(b) the Special Broadcasting Service Corporation; or
(c) the holder of a licence under the Broadcasting Services Act 1992; or
(d) a person who provides a broadcasting service under a class licence under the Broadcasting Services Act 1992.
35 Fixed radiocommunications link
(1) For the purposes of this Act, a fixed radiocommunications link is a facility, or a combination of facilities, where:
(a) the facility or combination is used, or for use, in connection with the supply of a carriage service between 2 or more fixed points by means of radiocommunication; and
(b) some or all of the communications carried by means of the facility or combination have the characteristic of double‑ended interconnection (as defined by subsection (3)); and
(c) the facility or combination does not consist of:
(i) one or more base stations that are part of a terrestrial radiocommunications customer access network; or
(ii) one or more base stations that would be part of such a network if paragraph 34(1)(h) had not been enacted.
(2) For the purposes of this section, a fixed point is a fixed point on:
(a) land; or
(b) a building or structure on land.
(3) For the purposes of this section, if:
(a) a communication is carried over a line link or other facility that, apart from this section, is an eligible network unit; and
(b) the communication is then carried (immediately or with a transmission delay of not longer than 30 seconds), by means of radiocommunication, between 2 or more fixed points; and
(c) the communication is then carried (immediately or with a transmission delay of not longer than 30 seconds) over another line link or other facility that, apart from this section, is an eligible network unit;
the communication referred to in paragraph (b) has the characteristic of double‑ended interconnection.
(4) In this section:
eligible network unit means a network unit:
(a) that is owned by one or more carriers; or
(b) in relation to which a nominated carrier declaration is in force.
Division 4—Distinct places
36 Distinct places—basic rules
(1) Places are distinct unless they are all in the same area because of subsection (2), (3) or (4).
(2) Places are in the same area if they are all situated in the same property as defined by section 37.
(3) Places are in the same area if they are situated in properties each of which forms part of a combined area as defined by section 38 and:
(a) the same person or persons is or are the principal user (as defined by section 39) of all the properties that together constitute that combined area; or
(b) because of a determination in force under section 40, that combined area is an eligible combined area for the purposes of this paragraph.
(4) Places are in the same area if they are all situated in the same eligible Territory.
(5) The later provisions of this Division have effect only for the purposes of this Division.
37 Properties
(1) An area of land is a property if:
(a) there is a single freehold or leasehold title in relation to that area (whether or not that title is registered under a law of a State or Territory relating to the registration of interests in land); and
(b) no part of that area is subject to a lease granted by the holder of that title; and
(c) the title to the area is defined by reference to geographical coordinates.
(2) If:
(a) there is a single freehold or leasehold title (as mentioned in paragraph (1)(a)) in relation to an area of land; and
(b) some but not all of that area is subject to a lease granted by the holder of that title;
then, an area of land:
(c) all of which is within the area referred to in paragraph (a) of this subsection; and
(d) none of which is subject to such a lease;
is a property unless it is only part of another such area.
(3) An area of land is not a property except as provided in this section.
(4) The regulations may prescribe the circumstances in which an area of land in relation to which there is a single freehold or leasehold title is not to constitute a property for the purposes of this Division.
(5) Despite paragraph (1)(c), the regulations may prescribe the circumstances in which an area of land, the title to which is defined otherwise than by reference to geographical coordinates, is a property.
(6) In this section:
land includes premises and a part of premises, but does not include unalienated Crown land.
lease includes sublease and leasehold title has a corresponding meaning.
38 Combined areas
(1) 2 contiguous properties form a combined area.
(2) If:
(a) a property is contiguous with another property; and
(b) the other property forms part of a combined area;
the first‑mentioned property, and the combined area referred to in paragraph (b), together form a combined area.
(3) Subsection (2) is recursive, that is, the reference in paragraph (2)(b) to a combined area is a reference to something that is a combined area because of any other application or applications of this section.
39 Principal user of a property
(1) The principal user of a property is the person who:
(a) occupies the property; or
(b) uses the property for the purpose that is the sole or principal purpose for which the property is used.
(2) However, if 2 or more persons:
(a) together occupy a property; or
(b) together use a property for the purpose that is the sole or principal purpose for which the property is used;
they are taken to together be the principal user of the property.
40 Eligible combined areas
The Minister may, by legislative instrument, determine that specified combined areas are eligible combined areas for the purposes of paragraph 36(3)(b).
Part 3—Carriers
Division 1—Simplified outline
41 Simplified outline
The following is a simplified outline of this Part:
• The owner of a network unit that is used to supply carriage services to the public must hold a carrier licence unless:
(a) a nominated carrier declaration is in force in relation to the network unit; or
(b) an exemption applies.
• Carrier licences are granted by the ACMA.
• The holder of a carrier licence is known as a carrier.
• If responsibility for a network unit is transferred from the owner of the unit to a carrier, the ACMA may make a nominated carrier declaration that declares the carrier to be the nominated carrier in relation to the unit.
• Carrier licences are subject to conditions.
Division 2—Prohibitions relating to carriers
42 Network unit not to be used without carrier licence or nominated carrier declaration
(1) If there is only one owner of a network unit, the owner of the network unit must not use the unit, either alone or jointly with one or more other persons, to supply a carriage service to the public, unless:
(a) the owner holds a carrier licence; or
(b) a nominated carrier declaration is in force in relation to the unit.
(2) If there is only one owner of a network unit, the owner of the network unit must not allow or permit another person to use the unit to supply a carriage service to the public unless:
(a) the owner holds a carrier licence; or
(b) a nominated carrier declaration is in force in relation to the unit.
(3) If there are 2 or more owners of a network unit, an owner of the network unit must not use the unit, either alone or jointly with one or more other persons, to supply a carriage service to the public, unless:
(a) the owner holds a carrier licence; or
(b) a nominated carrier declaration is in force in relation to the unit.
(4) If there are 2 or more owners of a network unit, an owner of the network unit must not, either alone or together with one or more other owners, allow or permit another person to use the unit to supply a carriage service to the public unless:
(a) the owner holds a carrier licence; or
(b) a nominated carrier declaration is in force in relation to the unit.
(5) A person who contravenes subsection (1), (2), (3) or (4) commits an offence punishable on conviction by a fine not exceeding 20,000 penalty units.
Note: See also sections 4AA and 4B of the Crimes Act 1914.
43 Continuing offences
A person who contravenes section 42 commits a separate offence in respect of each day (including a day of a conviction under this section or any later day) during which the contravention continues.
44 Supply to the public
(1) This section sets out the circumstances in which a network unit is taken, for the purposes of section 42, to be used to supply a carriage service to the public.
(2) If:
(a) there is only one owner of a network unit; and
(b) no nominated carrier declaration is in force in relation to the unit; and
(c) any of the following conditions is satisfied:
(i) the unit is used for the carriage of communications between 2 end‑users, where each end‑user is outside the immediate circle of the owner of the unit;
(ii) the unit is used to supply point‑to‑multipoint services to end‑users, where at least one end‑user is outside the immediate circle of the owner of the unit;
(iii) the unit is used to supply designated content services (other than point‑to‑multipoint services) to one or more end‑users, where at least one end‑user is outside the immediate circle of the owner of the unit;
the unit is used to supply a carriage service to the public.
(3) If:
(a) there are 2 or more owners of a network unit; and
(b) no nominated carrier declaration is in force in relation to the unit; and
(c) any of the following conditions is satisfied:
(i) the unit is used for the carriage of communications between 2 end‑users, where each end‑user is outside the overlap of the immediate circles of the owners of the unit;
(ii) the unit is used to supply point‑to‑multipoint services to end‑users, where at least one end‑user is outside the overlap of the immediate circles of the owners of the unit;
(iii) the unit is used to supply designated content services (other than point‑to‑multipoint services) to one or more end‑users, where at least one end‑user is outside the overlap of the immediate circles of the owners of the unit;
the unit is used to supply a carriage service to the public.
(4) If:
(a) a nominated carrier declaration is in force in relation to a network unit; and
(b) any of the following conditions is satisfied:
(i) the unit is used for the carriage of communications between 2 end‑users, where each end‑user is outside the immediate circle of the nominated carrier in relation to the unit;
(ii) the unit is used to supply point‑to‑multipoint services to end‑users, where at least one end‑user is outside the immediate circle of the nominated carrier in relation to the unit;
(iii) the unit is used to supply designated content services (other than point‑to‑multipoint services) to one or more end‑users, where at least one end‑user is outside the immediate circle of the nominated carrier in relation to the unit;
the unit is used to supply a carriage service to the public.
(5) For the purposes of this section, a person is outside the overlap of the immediate circles of the owners of a network unit unless the person is:
(a) within the immediate circles of each of the owners of the unit; or
(b) the owner, or one of the owners, of the unit.
(6) For the purposes of this section, a designated content service is a content service of a kind specified in a written determination made by the Minister.
(7) A determination under subsection (6) is a legislative instrument.
45 Exemption—defence
(1) If the sole use of a network unit is use by, or on behalf of, a defence organisation to carry communications necessary or desirable for defence purposes, section 42 does not apply to the unit.
(2) If:
(a) the principal use of a network unit is use by, or on behalf of, a defence organisation to carry communications necessary or desirable for defence purposes; and
(b) the remaining use of the unit is use by one or more carriers, or by one or more exempt network‑users, to supply carriage services and/or content services;
section 42 does not apply to the unit.
(3) In this section:
defence organisation means:
(a) the Defence Department; or
(b) the Australian Defence Force; or
(c) an organisation of a foreign country, so far as the organisation:
(i) has functions corresponding to functions of, or of a part of, the Defence Department or the Australian Defence Force; and
(ii) is authorised by the Commonwealth to operate or train in Australia or an external Territory; or
(d) a part of such an organisation or body.
46 Exemption—intelligence operations
Section 42 does not apply to a network unit that is used wholly or principally:
(a) by the Australian Secret Intelligence Service; or
(b) by the Australian Security Intelligence Organisation; or
(c) by the Australian Signals Directorate.
47 Exemption—transport authorities
(1) Section 42 does not apply to a network unit if the sole use of the unit is use by Airservices Australia to carry communications necessary or desirable for the workings of aviation services.
(3) Section 42 does not apply to a network unit if the sole use of the unit is use by a State or Territory transport authority to carry communications necessary or desirable for the workings of any or all of the following services:
(a) train services of a kind provided by the authority;
(b) bus or other road services of a kind provided by the authority;
(c) tram services of a kind provided by the authority.
(4) Section 42 does not apply to a network unit if the sole use of the unit is use by a rail corporation to carry communications necessary or desirable for the workings of train services.
(5) Section 42 does not apply to a network unit if:
(a) the principal use of the unit is use by Airservices Australia to carry communications necessary or desirable for the workings of aviation services; and
(b) the remaining use of the unit is use by one or more carriers, or by one or more exempt network‑users, to supply carriage services and/or content services.
(7) Section 42 does not apply to a network unit if:
(a) the principal use of the unit is use by a State or Territory transport authority to carry communications necessary or desirable for the workings of any or all of the following services:
(i) train services of a kind provided by the authority;
(ii) bus or other road services of a kind provided by the authority;
(iii) tram services of a kind provided by the authority; and
(b) the remaining use of the unit is use by one or more carriers, or by one or more exempt network‑users, to supply carriage services and/or content services.
(8) Section 42 does not apply to a network unit if:
(a) the principal use of the unit is use by a rail corporation to carry communications necessary or desirable for the workings of train services; and
(b) the remaining use of the unit is use by one or more carriers, or by one or more exempt network‑users, to supply carriage services and/or content services.
(9) In this section:
rail corporation means a body corporate that manages or operates either or both of the following:
(a) rail transport services;
(b) rail transport infrastructure.
48 Exemption—broadcasting services
(1) If :
(a) the sole use of a network unit is use to carry communications that are necessary or desirable for either or both of the following purposes:
(i) the supply of broadcasting services to the public;
(ii) the supply of a secondary carriage service by means of the main carrier signal of a primary broadcasting service; and
(b) the unit does not consist of, or include, a facility used to carry communications between:
(i) the head end of a cable transmission system; and
(ii) the equipment used by an end‑user to receive a broadcasting service; and
(c) the unit does not consist of a broadcasting transmitter transmitting a signal of a broadcasting service to its intended audience;
section 42 does not apply to the unit.
(2) If:
(a) the principal use of a network unit is use to carry communications that are necessary or desirable for either or both of the following purposes:
(i) the supply of broadcasting services to the public;
(ii) the supply of a secondary carriage service by means of the main carrier signal of a primary broadcasting service; and
(b) the unit does not consist of, or include, a facility used to carry communications between:
(i) the head end of a cable transmission system; and
(ii) the equipment used by an end‑user to receive a broadcasting service; and
(c) the unit does not consist of a broadcasting transmitter transmitting a signal of a broadcasting service to its intended audience; and
(d) the remaining use of the unit is use by one or more carriers, or by one or more exempt network‑users, to supply carriage services and/or content services;
section 42 does not apply to the unit.
(3) If the sole use of a line link is use for the purpose of a re‑transmission of a kind mentioned in paragraph 212(1)(a) or (b) of the Broadcasting Services Act 1992, section 42 of this Act does not apply to the line link.
(4) If:
(a) the principal use of a line link is use for the purpose of a re‑transmission of a kind mentioned in paragraph 212(1)(a) or (b) of the Broadcasting Services Act 1992; and
(b) the remaining use of the line link is use by one or more carriers, or by one or more exempt network‑users, to supply carriage services and/or content services;
section 42 of this Act does not apply to the line link.
(4A) For the purposes of this section, disregard subsection 212(3) of the Broadcasting Services Act 1992.
(5) In this section:
broadcasting transmitter means a radiocommunications transmitter used, or for use, to deliver a broadcasting service.
head end of a cable transmission system means a facility that:
(a) is connected to a line link; and
(b) is used, or for use, in connection with the delivery of a broadcasting service; and
(c) processes signals for delivery by the line link to end‑users having equipment appropriate for receiving the service.
49 Exemption—electricity supply bodies
(1) If the sole use of a network unit is use by an electricity supply body to carry communications necessary or desirable for:
(a) managing the generation, transmission, distribution or supply of electricity; or
(b) charging for the supply of electricity;
section 42 does not apply to the unit.
(2) If:
(a) the principal use of a network unit is use by an electricity supply body to carry communications necessary or desirable for:
(i) managing the generation, transmission, distribution or supply of electricity; or
(ii) charging for the supply of electricity; and
(b) the remaining use of the unit is use by one or more carriers, or by one or more exempt network‑users, to supply carriage services and/or content services;
section 42 does not apply to the unit.
(3) In this section:
electricity supply body means an authority, or a body corporate, that carries on a business, or performs a function, of:
(a) generating, transmitting, distributing or supplying electricity; or
(b) managing the generation, transmission, distribution or supply of electricity.
50 Exemption—line links authorised by or under previous laws
(1) If:
(a) a line link consists of facilities in relation to which an authorisation was in force under paragraph 13(1)(a) of the Telecommunications Act 1975 immediately before the repeal of that Act; and
(b) the sole use of the line link is use as provided in, and in accordance with any conditions specified in, the authorisation;
section 42 of this Act does not apply to the line link.
(2) If:
(a) a line link consists of facilities in relation to which an authorisation was in force under paragraph 13(1)(a) of the Telecommunications Act 1975 immediately before the repeal of that Act; and
(b) the principal use of the line link is use as provided in, and in accordance with any conditions specified in, the authorisation; and
(c) the remaining use of the line link is use by one or more carriers, or by one or more exempt network‑users, to supply carriage services and/or content services;
section 42 of this Act does not apply to the line link.
(3) If a line link consists of facilities that:
(a) were installed before the repeal of section 45 of the Telecommunications Act 1989; and
(b) immediately before that repeal, were permitted by that section to be maintained and operated;
section 42 of this Act does not apply to the line link.
(4) If:
(a) a line link consists of facilities in relation to which an authorisation was in force under section 46 of the Telecommunications Act 1989 immediately before the repeal of that Act; and
(b) the sole use of the line link is use as provided in, and in accordance with any conditions specified in, the authorisation;
section 42 of this Act does not apply to the line link.
(5) If:
(a) a line link consists of facilities in relation to which an authorisation was in force under section 46 of the Telecommunications Act 1989 immediately before the repeal of that Act; and
(b) the principal use of the line link is use as provided in, and in accordance with any conditions specified in, the authorisation; and
(c) the remaining use of the line link is use by one or more carriers, or by one or more exempt network‑users, to supply carriage services and/or content services;
section 42 of this Act does not apply to the line link.
(6) If:
(a) a line link consists of facilities in relation to which an authorisation was in force under section 108 of the Telecommunications Act 1991 immediately before the repeal of that Act; and
(b) the sole use of the line link is use as provided in, and in accordance with any conditions specified in, the authorisation;
section 42 of this Act does not apply to the line link.
(7) If:
(a) a line link consists of facilities in relation to which an authorisation was in force under section 108 of the Telecommunications Act 1991 immediately before the repeal of that Act; and
(b) the principal use of the line link is use as provided in, and in accordance with any conditions specified in, the authorisation; and
(c) the remaining use of the line link is use by one or more carriers, or by one or more exempt network‑users, to supply carriage services and/or content services;
section 42 of this Act does not apply to the line link.
51 Exemption—Ministerial determination
(1) The Minister may, by legislative instrument, determine that section 42 does not apply in relation to:
(a) a specified network unit; or
(b) a specified person; or
(c) a specified use of a network unit.
(2) A determination under this section may be unconditional or subject to such conditions (if any) as are specified in the determination.
(3) A determination under this section has effect accordingly.
Division 3—Carrier licences
52 Applications for carrier licence
A person may apply to the ACMA for a carrier licence, so long as the person is:
(a) a constitutional corporation; or
(b) an eligible partnership; or
(c) a public body.
53 Form of application etc.
An application must be:
(a) in writing; and
(b) in accordance with the form approved in writing by the ACMA.
53A Copy of application to be given to Communications Access Co‑ordinator
(1) The ACMA must give a copy of the application to the Communications Access Co‑ordinator.
(2) For the purposes of sections 56A and 59, the application is taken not to have been received by the ACMA until the copy is received by the Communications Access Co‑ordinator.
54 Application to be accompanied by charge
An application must be accompanied by the charge (if any) imposed on the application by Part 2 of the Telecommunications (Carrier Licence Charges) Act 1997.
55 Further information
(1) The ACMA may, within 20 business days after an application is made, request the applicant to give the ACMA, within the period specified in the request, further information about the application.
(2) The ACMA may refuse to consider the application until the applicant gives the ACMA the information.
(3) In this section:
business day means a day on which the ACMA is open for business in the Australian Capital Territory and in Victoria.
56 Grant of licence
(1) After considering an application, the ACMA may grant a carrier licence in accordance with the application.
(2) If the ACMA grants a carrier licence to a person, the ACMA must give the person a written notice stating that the licence has been granted.
(3) If the ACMA grants a carrier licence, the ACMA must cause to be published in the Gazette a notice stating that the licence has been granted.
56AA Deemed carrier licence—designated Telstra successor company
Scope
(1) This section applies to a body corporate if:
(a) either of the following conditions are satisfied in relation to a particular time (the relevant time):
(i) the relevant time occurs immediately after the commencement of this section, and the body corporate is a designated Telstra successor company at the relevant time;
(ii) the relevant time occurs after the commencement of this section, and the body corporate becomes a designated Telstra successor company at the relevant time; and
(b) the body corporate does not hold a carrier licence at the relevant time; and
(c) the body corporate is a constitutional corporation at the relevant time; and
(d) the body corporate is the owner, or one of the owners, of a network unit at the relevant time; and
(e) no nominated carrier declaration is in force in relation to that network unit at the relevant time.
Deemed carrier licence
(2) The ACMA is taken to have granted a carrier licence (the deemed carrier licence) to the body corporate under section 56 immediately after the relevant time.
Application for carrier licence
(3) The body corporate must:
(a) apply under section 52 for a carrier licence; and
(b) do so within 5 business days after the relevant time.
(4) If the body corporate fails to comply with subsection (3), the body corporate is taken, at the end of the period of 5 business days, to have applied under section 52 for a carrier licence.
(5) The application mentioned in subsection (3) or (4) is exempt from charge imposed by Part 2 of the Telecommunications (Carrier Licence Charges) Act 1997.
(6) The ACMA must decide the application mentioned in subsection (3) or (4) as if the deemed carrier licence did not exist.
Duration of deemed carrier licence
(7) The deemed carrier licence remains in force until:
(a) the ACMA grants a carrier licence to the body corporate in response to the application mentioned in subsection (3) or (4); or
(b) if the ACMA refuses to grant a carrier licence to the body corporate in response to the application mentioned in subsection (3) or (4)—the latest of the following times:
(i) the end of the 28‑day period beginning when the body corporate is informed by the ACMA of the refusal;
(ii) if, during that 28‑day period, the body corporate applies under section 558 for the ACMA to reconsider the refusal—the end of the 28‑day period beginning when the ACMA makes its decision on reconsideration of the refusal;
(iii) if, during the 28‑day period last mentioned in subparagraph (ii), the body corporate makes an application under section 562 to the Administrative Appeals Tribunal for review of the refusal decision—the end of the 28‑day period beginning when the application is finally determined;
(iv) if, during the 28‑day period last mentioned in subparagraph (iii), the body corporate appeals to the Federal Court under section 44 of the Administrative Appeals Tribunal Act 1975 from the decision of the Administrative Appeals Tribunal on the application mentioned in subparagraph (iii)—when the appeal is determined.
Section 56A does not apply
(8) Section 56A does not apply to the deemed carrier licence.
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 disqualified—failure to pay annual charge
(3) For the purposes of subsection (2), an individual is disqualified at a particular time (the test time) if:
(a) at any time before the test time, a carrier licence held by a body corporate or partnership was cancelled under subsection 72(1) because of a failure by the body corporate or partnership to pay in full the charge referred to in that subsection; and
(b) in the case of a body corporate—at the time when the charge referred to in subsection 72(1) was due and payable, the individual was:
(i) a director of the body corporate; or
(ii) the secretary of the body corporate; or
(iii) a person (by whatever name called and whether or not a director of the body corporate) who was concerned in, or took part in, the management of the body corporate; and
(c) in the case of a partnership—at the time when the charge referred to in subsection 72(1) was due and payable, the individual:
(i) was an employee of the partnership; and
(ii) was concerned in, or took part in, the management of the partnership; and
(d) the individual:
(i) aided, abetted, counselled or procured the failure of the body corporate or partnership; or
(ii) was in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the failure of the body corporate or partnership.
When individual is disqualified—failure to pay industry levy
(4A) For the purposes of subsection (2), an individual is disqualified at a particular time (the test time) if:
(a) at any time before the test time, a carrier licence held by a body corporate or partnership was cancelled under subsection 72(2A) because of a failure by the body corporate or partnership to pay in full the industry levy referred to in that subsection; and
(b) in the case of a body corporate—at the time when the industry levy referred to in subsection 72(2A) was due and payable, the individual was:
(i) a director of the body corporate; or
(ii) the secretary of the body corporate; or
(iii) a person (by whatever name called and whether or not a director of the body corporate) who was concerned in, or took part in, the management of the body corporate; and
(c) in the case of a partnership—at the time when the industry levy referred to in subsection 72(2A) was due and payable, the individual:
(i) was an employee of the partnership; and
(ii) was concerned in, or took part in, the management of the partnership; and
(d) the individual:
(i) aided, abetted, counselled or procured the failure of the body corporate or partnership; or
(ii) was in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the failure of the body corporate or partnership.
When 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.
63A Conditions of a carrier licence held by Telstra Limited
(1) Until the first occasion after the commencement of this section on which a declaration under subsection 63(2) takes effect in relation to a carrier licence held by Telstra Limited:
(a) the carrier licence is subject to the conditions set out in sections 7, 8, 9, 10, 12, 13, 14, 15, 16, 17 and 18 of the Telecommunications (Carrier Licence Conditions ‑ Telstra Corporation Limited) Declaration 2019 as in force immediately before the commencement of this section; and
(b) for that purpose, a reference in those sections (and Schedule 1 to that declaration) to the licensee is to be read as a reference to Telstra Limited.
(2) Until the first occasion after the commencement of this section on which a declaration under subsection 63(2) takes effect in relation to a carrier licence held by Telstra Limited:
(a) the carrier licence is subject to the conditions set out in section 11 of the Telecommunications (Carrier Licence Conditions ‑ Telstra Infraco Limited) Declaration 2019; and
(b) for that purpose, a reference in that section to the licensee is to be read as a reference to Telstra Limited.
(3) If:
(a) a carrier licence held by a particular Telstra company (the first Telstra company) is (whether in accordance with subsection (2) of this section or otherwise) subject to a condition set out in section 11 of the Telecommunications (Carrier Licence Conditions ‑ Telstra Infraco Limited) Declaration 2019; and
(b) a carrier licence held by another Telstra company is also subject to the condition (whether in accordance with subsection (2) of this section or otherwise); and
(c) the other Telstra company complies with the condition;
the first Telstra company is taken to have complied with the condition.
(4) Until the first occasion after the commencement of this section on which a declaration under subsection 63(2) takes effect in relation to a carrier licence held by Telstra Limited:
(a) the carrier licence is subject to:
(i) the conditions set out in an interim Telstra carrier licence condition declaration; and
(ii) the interim conditions set out in the Telecommunications (Carrier Licence Conditions ‑ Telstra Infraco Limited) Declaration 2019; and
(b) for that purpose, a reference in those conditions to the licensee is to be read as a reference to Telstra Limited.
(5) If:
(a) a carrier licence held by a particular Telstra company (the first Telstra company) is (whether in accordance with subsection (4) of this section or otherwise) subject to:
(i) a condition set out in an interim Telstra carrier licence condition declaration; or
(ii) an interim condition set out in the Telecommunications (Carrier Licence Conditions ‑ Telstra Infraco Limited) Declaration 2019; and
(b) a carrier licence held by another Telstra company is also subject to the condition (whether in accordance with subsection (4) of this section or otherwise); and
(c) the other Telstra company complies with the condition;
the first Telstra company is taken to have complied with the condition.
(6) For the purposes of this section, Telstra company means:
(a) Telstra Infraco Limited; or
(b) Telstra Limited.
Note: See also section 581U (transitional—references in legislation to Telstra Infraco Limited).
(7) For the purposes of this section, interim Telstra carrier licence condition declaration means a declaration under subsection 63(2) that:
(a) relates to a carrier licence held by Telstra Infraco Limited; and
(b) came into force during the period:
(i) beginning at the start of the day on which the Bill for the Act that inserted this section was introduced into the Parliament; and
(ii) ending immediately before the commencement of this section.
Note: See also section 581U (transitional—references in legislation to Telstra Infraco Limited).
(8) For the purposes of this section, an interim condition set out in the Telecommunications (Carrier Licence Conditions ‑ Telstra Infraco Limited) Declaration 2019 means a condition inserted in that declaration (when the declaration was known as the Telecommunications (Carrier Licence Conditions ‑ Telstra Corporation Limited) Declaration 2019) during the period:
(a) beginning at the start of the day on which the Bill for the Act that inserted this section was introduced into the Parliament; and
(b) ending immediately before the commencement of this section.
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, or originally 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:
(aa) preventing a designated Telstra successor company from complying with an undertaking in force under section 577A; or
(a) preventing Telstra from complying with an undertaking in force under section 577C or 577E; or
(b) if a final migration plan is in force—requiring a designated Telstra successor company 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, or originally 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;