Telecommunications Legislation Amendment (Competition and Consumer) Act 2020 (Cth)
Contents
[
The Parliament of Australia enacts:
This Act is the
Telecommunications Legislation Amendment (Competition and Consumer) Act 2020.
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Sections 1 to 5 and anything in this Act not elsewhere covered by this table | The day this Act receives the Royal Assent. | 25 May 2020 |
Schedule 1 | The day after this Act receives the Royal Assent. | 26 May 2020 |
Schedule 2 | The day after the end of the period of 3 months beginning on the day this Act receives the Royal Assent. | 25 August 2020 |
Schedule 3, Part 1, Division 1 | The day after this Act receives the Royal Assent. | 26 May 2020 |
Schedule 3, Part 1, Division 2 | The earlier of: (a) a single day to be fixed by Proclamation; and (b) 1 July 2020. | 1 July 2020 (paragraph (b) applies) |
Schedule 3, Part 2 | Immediately after the commencement of the provisions covered by table item 5. | 1 July 2020 |
Schedules 4 and 5 | The day after this Act receives the Royal Assent. | 26 May 2020 |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
(1) Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
(2) The provisions of the
Carrier Licence Conditions (Networks supplying Superfast Carriage Services to Residential Customers) Declaration 2014 amended or inserted by this Act, and any other provisions of that instrument, may be varied by an instrument made under subsection 63(5) of theTelecommunications Act 1997 , or revoked by an instrument made under subsection 63(6) of that Act (see subsection 13(5) of theLegislation Act 2003 ).(3) The provisions of the
Legislation (Exemptions and Other Matters) Regulation 2015 amended or inserted by this Act, and any other provisions of that instrument, may be amended or repealed by regulations made under section 62 of theLegislation Act 2003 (see subsection 13(5) of theLegislation Act 2003 ).
If:
(a) in accordance with section 4 of the
Acts Interpretation Act 1901 , a determination is made under subsection 151B(1) of theTelecommunications Act 1997 before the commencement of Schedule 2 to this Act; and(b) a corporation is included in a class of corporations specified in the determination;
the corporation may, before the commencement of that Schedule, give an election to be bound by the determination.
Report
(1) The Australian Competition and Consumer Commission (
ACCC ) must prepare a report in relation to the Regional Broadband Scheme that includes:
(a) the estimates referred to in subsection (3); and
(b) such other matters (if any) as the ACCC considers relevant.
(2) The purpose of the report is to provide updated costings in relation to the amount of the base component specified in paragraph 12(1)(a) of the Regional Broadband Scheme Charge Act, using the same model and methodology that was previously used to determine that amount but taking into account changes to inputs and assumptions that have occurred since that amount was first determined.
(3) The report must include an estimate of each of the following:
(a) the total losses that have been incurred by NBN Co in relation to fixed wireless broadband and satellite broadband matters during the period beginning on 1 July 2009 and ending on 30 June 2020;
(b) the total of the reasonable losses likely to be incurred by NBN Co in relation to fixed wireless broadband and satellite broadband matters during the period beginning on 1 July 2009 and ending on 30 June 2040 (the
total expected net losses );(c) the amount that the base component for a month (within the meaning of the Regional Broadband Scheme Charge Act) would be required to be in order for the Commonwealth to receive a total amount by way of charge imposed by that Act that would offset the total expected net losses, if it were assumed that paragraph 9(1)(b) of that Act had not been enacted;
(d) the total of the reasonable losses likely to be incurred by NBN Co in relation to fixed wireless broadband and satellite broadband matters during the period beginning on 1 July 2020 and ending on 30 June 2040 (the
total expected net forward facing losses );(e) the amount that the base component for a month (within the meaning of the Regional Broadband Scheme Charge Act) would be required to be in order for the Commonwealth to receive a total amount by way of charge imposed by that Act that would offset the total expected net forward facing losses, if it were assumed that paragraph 9(1)(b) of that Act had not been enacted;
(f) the total expected number of chargeable premises by reference to which charge is to be calculated under the Regional Broadband Scheme Charge Act during the financial year beginning on 1 July 2025;
(g) such other matters (if any) as the ACCC considers relevant.
Note: For paragraph (f), see section 11 of the Regional Broadband Scheme Charge Act in relation to how numbers of chargeable premises are used in calculating charge under that Act.
(4) The report must specify the aggregated data inputs and the modelling assumptions upon which the estimates referred to in subsection (3) were determined.
(5) In preparing the report, the ACCC:
(a) must use the methodology and model that was used by the Department of Communications and the Arts’ Bureau of Communications Research for the report entitled
NBN non‑commercial services funding options—Final report March 2016 ; but(b) must, in doing so, update the inputs and assumptions of the methodology and model to reflect changes that have occurred since the publication of that report.
(6) Without limiting paragraph (5)(b), the following are changes that must be taken into account in updating the inputs and assumptions:
(a) changes in the inputs for estimating the total number of chargeable premises by reference to which charge is imposed by the Regional Broadband Scheme Charge Act;
(b) changes in the inputs for build costs in relation to fixed wireless broadband and satellite broadband matters;
(c) changes in the inputs for estimating future capital expenditure requirements in relation to fixed wireless broadband and satellite broadband matters.
(7) In preparing the report, the ACCC must assume that Division 6 of Part 3 of the
Telecommunications (Consumer Protection and Service Standards) Act 1999 had not been enacted.Note: That Division deals with charge offset certificates.
(8) Before the end of the 150‑day period beginning when this section commences, the ACCC must:
(a) give the Minister the report; and
(b) make the report available on the ACCC’s website.
(9) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 5 sitting days of receiving it.
Use of the word “Regional”
(10) To avoid doubt, the use of the word “Regional” in this section does not limit:
(a) subsection 80(1) of the
Telecommunications (Consumer Protection and Service Standards) Act 1999 ; or(b) subsection 13(3) of the Regional Broadband Scheme Charge Act.
Definitions
(11) In this section:
fixed wireless broadband and satellite broadband matters means the matters referred to in paragraphs 13(3)(a) to (d) of the Regional Broadband Scheme Charge Act.
Minister means the Minister administering theTelecommunications Act 1997 .
NBN Co has the same meaning as in theNational Broadband Network Companies Act 2011 .
Regional Broadband Scheme means the scheme embodied in:
(a) Part 3 of the
Telecommunications (Consumer Protection and Service Standards) Act 1999 ; and(b) the Regional Broadband Scheme Charge Act.
Regional Broadband Scheme Charge Act means theTelecommunications (Regional Broadband Scheme) Charge Act 2020 .
Repeal the following definitions:
(a) definition of
designated superfast telecommunications network ;(b) definition of
Layer 2 bitstream service ;(c) definition of
national broadband network ;
(d) definition of
superfast carriage service .
Repeal the section.
Repeal the subsections.
Repeal the subsection.
Omit “(other than a declaration mentioned in subsection 152AL(3C))”.
Repeal the subsection.
Repeal the subsection (including the note).
Repeal the sections.
Omit “152ARA, 152ARB,”.
Omit “152ARA, 152ARB,”.
Repeal the subsection.
Repeal the subsection.
Repeal the subsections.
Omit “, (4A) or (4G)”, substitute “or (4A)”.
Repeal the subsections.
Omit “, (4A) or (4G)”, substitute “or (4A)”.
Repeal the subsection.
Repeal the sections.
Omit “, 152BEBC, 152BEBE and 152BEBF”, substitute “and 152BEBC”.
Omit “, 152BEBC, 152BEBE and 152BEBF”, substitute “and 152BEBC”.
Repeal the subparagraphs.
Omit “and (4G) to (4J)”.
Omit “and (4G) to (4J)”.
23A
Section 7 (paragraph (a) of the definition of Layer 2 bitstream service ) Repeal the paragraph, substitute:
(a) a Layer 2 bitstream service (within the ordinary meaning of that expression); and
23B
Section 7 (definition of Layer 2 bitstream service ) Omit “this purpose,
Layer 2 ”, substitute “the purposes of determining the ordinary meaning of the expression used in paragraph (a), assume thatLayer 2 ”.
Repeal the Part.
25
Subsection 349(16) (definition of local access line ) Repeal the definition, substitute:
local access line has the meaning given by section 349A.
Insert:
(1) For the purposes of this Part, a
local access line is a line that is part of the infrastructure of a local access network.(2) However, a line does not form part of a
local access line to the extent that the line is on the customer side of the boundary of a telecommunications network.(3) For the purposes of this section, the
boundary of a telecommunications network is to be determined in the same manner in which it is determined under section 22 for the purposes of sections 20, 21 and 30.(4) For the purposes of this section,
local access network has the meaning generally accepted within the telecommunications industry.
(1) If, immediately before the commencement of this item, an instrument was in force under subsection 141A(1) of the
Telecommunications Act 1997 , the instrument has effect, after the commencement of this item, as if:
(a) it had been made under subsection 144(1) of that Act; and
(b) each reference in the instrument to section 141 of that Act were a reference to section 143 of that Act.
(2) If, immediately before the commencement of this item, an instrument was in force under subsection 141A(2) of the
Telecommunications Act 1997 , the instrument has effect, after the commencement of this item, as if:
(a) it had been made under subsection 144(2) of that Act; and
(b) each reference in the instrument to section 141 of that Act were a reference to section 143 of that Act.
(3) If, immediately before the commencement of this item, an instrument was in force under subsection 141A(3) of the
Telecommunications Act 1997 , the instrument has effect, after the commencement of this item, as if:
(a) it had been made under subsection 144(3) of that Act; and
(b) each reference in the instrument to subsections 141(2) and (3) of that Act were a reference to subsection 143(2) of that Act.
Repeal the section.
Insert:
designated commencement date means the date on which Schedule 2 to theTelecommunications Legislation Amendment (Competition and Consumer) Act 2020 commences.
functional separation undertaking has the same meaning as in Part 8 of theTelecommunications Act 1997 .
3
Subsection 4(1) (at the end of the definition of local access line ) Add “(as that section stood immediately before the commencement of Schedule 2 to the
Telecommunications Legislation Amendment (Competition and Consumer) Act 2020 )”.
4
Subsection 4(1) (at the end of the definition of superfast carriage service ) Add “(as that section stood immediately before the commencement of Schedule 2 to the
Telecommunications Legislation Amendment (Competition and Consumer) Act 2020 )”.
Before “A carrier licence”, insert “(1)”.
Omit “residential customers.”, substitute:
residential customers, and:
(a) the network came into existence before the designated commencement date; and
(b) the network has not been altered, upgraded or extended on or after the designated commencement date; and
(c) no functional separation undertaking given by the carrier is in force.
Add:
(2) A reference in paragraph (1)(c) to a functional separation undertaking given by a carrier is a reference to a functional separation undertaking given by the carrier either:
(a) alone; or
(b) jointly with one or more other persons.
Insert:
(db) the operation of Part 8 of the
Telecommunications Act 1997 (which deals with local access lines); or
Insert:
(iib) the operation of Part 8 of the
Telecommunications Act 1997 (which deals with local access lines); or
Insert:
(iib) the operation of Part 8 of the
Telecommunications Act 1997 (which deals with local access lines); or
Insert:
(iib) the operation of Part 8 of the
Telecommunications Act 1997 (which deals with local access lines); or
15
Section 12 (table item 61, column headed “Legislative instrument”, after paragraph (a)) Insert:
(aa) the
Carrier Licence Conditions (Networks supplying Superfast Carriage Services to Residential Customers) Declaration 2014 made under subsection 63(2) of that Act;
Insert:
(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).
Insert:
(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).
Insert:
(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;
Insert:
(4A) Subsection (1) does not apply to the rule set out in Part 1 of Schedule 2 in so far as that rule relates to section 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).
Insert:
(1A) Subsection (1) does not apply to the rule set out in Part 1 of Schedule 2 in so far as that rule relates to section 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).
Insert:
(4F) The ACCC may issue a formal warning if a person contravenes the service provider rule set out in Part 1 of Schedule 2 in so far as that rule relates to section 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH or 151ZI.
Repeal the heading, substitute:
Repeal the section, substitute:
• A controller of a local access line (other than a line that is part of the infrastructure of the national broadband network) must not use the line to supply an eligible service to a person other than a carrier or a service provider, if:
(a) the line came into existence, or was upgraded, on or after the designated commencement date; and
(b) the line is used, or is proposed to be used, to supply a superfast carriage service wholly or principally to residential customers, or prospective residential customers, in Australia; and
(c) no functional separation undertaking is in force.
• A controller of a telecommunications network (other than the national broadband network) must not use a local access line to supply an eligible service to a person other than a carrier or a service provider, if:
(a) the line is part of the infrastructure of the network; and
(b) the network came into existence, or was upgraded, on or after 1 January 2011, but before the designated commencement date; and
(c) the network is used, or is proposed to be used, to supply a superfast carriage service wholly or principally to residential customers, or prospective residential customers, in Australia; and
(d) no functional separation undertaking is in force.
After “network”, insert “or line”.
Insert:
associate has the meaning given by section 152.
business unit means a part of a corporation.
close proximity has a meaning affected by section 162.
corporation means a body corporate.
customer interface means an interface for the purposes of:
(a) ordering; and
(b) provisioning; and
(c) billing; and
(d) service activation; and
(e) fault rectification;
in relation to the supply of local access line services.
declared service has the same meaning as in Part XIC of theCompetition and Consumer Act 2010 .
designated carriage service has the meaning given by section 142BD.
designated commencement date means the date on which Schedule 2 to theTelecommunications Legislation Amendment (Competition and Consumer) Act 2020 commences.
fixed‑line carriage service means a carriage service that is supplied using a line to premises occupied or used by an end‑user.
functional includes organisational.
functional separation undertaking means:
(a) a standard functional separation undertaking; or
(b) a joint functional separation undertaking.
fundamental provision of a functional separation undertaking has the meaning given by subsection 151A(9) or 151C(9).
joint functional separation undertaking means an undertaking under section 151C.
local access line service means an eligible service supplied using a local access line.
multi‑unit building means:
(a) a building that has 2 or more units for occupation as a place of residence or business; or
(b) a building in a complex, where each building has 2 or more units for occupation as a place of residence or business.
residential customer has a meaning affected by section 161.
retail business unit of a corporation means a business unit by which the corporation deals with the corporation’s retail customers in relation to the supply of local access line services.
retail customer means a customer other than a wholesale customer.
retailer , when used in relation to a joint functional separation undertaking, means a person identified in the undertaking as the retailer, or one of the retailers, for the purposes of the undertaking.Note: See paragraph 151C(2)(a).
27
Section 142A (definition of small business customer ) Repeal the definition.
Insert:
standard functional separation undertaking means an undertaking under section 151A.
29
Section 142A (paragraph (b) of the definition of superfast carriage service ) Omit “more than 25 megabits per second”, substitute “25 megabits per second or more”.
Insert:
supply , in relation to a service, includes supply of the service by a corporation to itself. This definition does not apply to subsection 142C(2) or 143(2).
unsatisfactory compliance record has a meaning affected by section 142BC.
After “network”, insert “or line”.
Insert:
wholesale business unit of a corporation means a business unit by which the corporation deals with its wholesale customers, and its retail business unit, in relation to the supply of local access line services.
wholesale customer means a customer that is:
(a) a carrier; or
(b) a service provider.
wholesaler , when used in relation to a joint functional separation undertaking, means a person identified in the undertaking as the wholesaler, or one of the wholesalers, for the purposes of the undertaking.Note: See paragraph 151C(2)(a).
worker means an individual who is:
(a) an employee; or
(b) a contractor or subcontractor; or
(c) an employee of a contractor or subcontractor.
Add:
A reference in this Part to a functional separation undertaking given by a person is a reference to a functional separation undertaking given by the person either:
(a) alone; or
(b) jointly with one or more other persons.
For the purposes of this Part, the question whether a particular thing promotes the long‑term interests of end‑users of carriage services or of services supplied by means of carriage services is to be determined in the same manner as it is determined for the purposes of Part XIC of the
Competition and Consumer Act 2010 .
For the purposes of this Part:
(a) a notional contract (however described) between a corporation’s business units is to be treated as if it were an actual contract; and
(b) any terms and conditions (whether or not relating to price or a method of ascertaining price) in such a notional contract are to be treated as if they were actual terms and conditions.
For the purposes of this Part, the question of whether a person has an unsatisfactory compliance record in relation to functional separation is to be determined having regard only to:
(a) any breaches by the person of functional separation undertakings given by the person, so long as the breaches occurred when the undertakings were in force; and
(b) any contraventions by the person of section 143B, 151ZA, 151ZB, 151ZF, 151ZG, 151ZH or 151ZI.
(1) For the purposes of this Part,
designated carriage service means:
(a) if a carriage service is specified in an instrument under subsection (2)—that carriage service; or
(b) otherwise—a Layer 2 bitstream service.
(2) The ACCC may, by legislative instrument, specify a carriage service for the purposes of paragraph (1)(a).
(3) The ACCC must not specify a carriage service under subsection (2) unless:
(a) the carriage service enables end‑users to download communications; and
(b) the download transmission speed of the carriage service is normally 25 megabits per second or more; and
(c) the carriage service is supplied using a line to premises occupied or used by an end‑user; and
(d) there is in force a declaration under subsection 152AL(3) of the
Competition and Consumer Act 2010 that relates to the carriage service.
Insert:
Scope
(1) This section applies to a local access line if:
(a) the line is part of the infrastructure of a telecommunications network in Australia; and
(b) the network is not the national broadband network; and
(c) the line is used, or proposed to be used, to supply a superfast carriage service wholly or principally to residential customers, or prospective residential customers, in Australia; and
(d) either:
(i) the line came into existence on or after the designated commencement date; or
(ii) the line was altered or upgraded on or after the designated commencement date, and as a result of the alteration or upgrade, the line became capable of being used to supply a superfast carriage service to residential customers in Australia.
Note 1: See also section 156A (certain lines deemed to have come into existence on or after the designated commencement date).
Note 2: See also section 158A (certain line extensions deemed to be local access lines in their own right, and to have come into existence on or after the designated commencement date).
Note 3: For exemptions, see sections 143A to 151.
Use of line
(2) If a person (the
first person ):
(a) is in a position to exercise control of the line; or
(b) is an associate of a person who is in a position to exercise control of the line;
the first person must not, on or after the designated commencement date, use the line, either alone or jointly with one or more other persons, to supply an eligible service unless the service is supplied to:
(c) a carrier; or
(d) a service provider.
Note: For when a person is in a position to exercise control of a line, see section 155A.
(3) Subsection (2) does not apply to the use of the line if a functional separation undertaking given by the first person is in force, unless:
(a) the ACCC has given a notice under section 151W revoking the undertaking; and
(b) the revocation has not taken effect; and
(c) the line came into existence after the notice was given.
Note 1: A functional separation undertaking relates to the supply of eligible services using a local access line, irrespective of when the line came into existence.
Note 2: See also section 142B.
Ancillary contraventions
(4) A person must not:
(a) aid, abet, counsel or procure a contravention of subsection (2); or
(b) induce, whether by threats or promises or otherwise, a contravention of subsection (2); or
(c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (2); or
(d) conspire with others to effect a contravention of subsection (2).
Civil penalty provisions
(5) Subsections (2) and (4) are
civil penalty provisions .Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.
Repeal the heading, substitute:
Omit “or small business” (wherever occurring).
After “2011”, insert “, but before the designated commencement date”.
After “2011”, insert “, but before the designated commencement date,”.
Omit “or small business” (wherever occurring).
Omit “144”, substitute “143A”.
Repeal the subsections (including the penalty), substitute:
Use of network
(2) If a person (the
first person ):
(a) is in a position to exercise control of the network; or
(b) is an associate of a person who is in a position to exercise control of the network;
the first person must not use the line, either alone or jointly with one or more other persons, to supply an eligible service unless the service is supplied to:
(c) a carrier; or
(d) a service provider.
Note: For when a person is in a position to exercise control of a network, see section 155.
(3) Subsection (2) does not apply to the use of the line if a functional separation undertaking given by the first person is in force, unless:
(a) the ACCC has given a notice under section 151W revoking the undertaking; and
(b) the revocation has not taken effect; and
(c) the line came into existence after the notice was given.
Note 1: A functional separation undertaking relates to the supply of eligible services using a local access line, irrespective of when the line came into existence.
Note 2: See also section 142B.
(4) Subsection (2) does not apply to the use of the line if:
(a) the
Carrier Licence Conditions (Networks supplying Superfast Carriage Services to Residential Customers) Declaration 2014 is in force; and(b) the line is part of the infrastructure of a designated telecommunications network (within the meaning of that declaration); and
(c) a carrier owns or operates the network; and
(d) as a result of the application of section 5 of that declaration to the network, the carrier licence held by the carrier is subject to the conditions set out in subsections 6(5), (5A), (6), (7) and (8) of that declaration.
Ancillary contraventions
(5) A person must not:
(a) aid, abet, counsel or procure a contravention of subsection (2); or
(b) induce, whether by threats or promises or otherwise, a contravention of subsection (2); or
(c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (2); or
(d) conspire with others to effect a contravention of subsection (2).
Civil penalty provisions
(6) Subsections (2) and (5) are
civil penalty provisions .Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.
Insert:
(1) If the Federal Court is satisfied that a person has, on or after the designated commencement date, contravened subsection 142C(2) or (4) or 143(2) or (5), the Court may, on the application of:
(a) the ACCC; or
(b) a carrier; or
(c) a carriage service provider;
make all or any of the following orders:
(d) an order directing the person to comply with that subsection;
(e) an order directing the person to compensate any other person (who may be the applicant) who has suffered loss or damage as a result of the contravention;
(f) any other order that the Court thinks appropriate.
(2) The Federal Court may discharge or vary an order granted under this section.
Determination providing for exemption
(1) The ACCC may, by legislative instrument, determine that, if:
(a) a person is included in a specified class of persons; and
(b) the person has, by written notice given to the ACCC, elected to be bound by the determination; and
(c) the person has not, by written notice given to the ACCC, cancelled the election; and
(d) in a case where the person is not a member of an associated group—the number of residential customers to whom the person supplies fixed‑line carriage services does not exceed:
(i) 2,000; or
(ii) if a higher number (not exceeding 12,000) is specified in the regulations—that higher number; and
(e) in a case where the person is a member of an associated group—the total number of residential customers to whom the members of the group supply fixed‑line carriage services does not exceed:
(i) 2,000; or
(ii) if a higher number (not exceeding 12,000) is specified in the regulations—that higher number;
the person is exempt from section 142C.
Note: For
associated group , see subsection (10) of this section.
(2) The ACCC may, by legislative instrument, determine that, if:
(a) a person is included in a specified class of persons; and
(b) the person has, by written notice given to the ACCC, elected to be bound by the determination; and
(c) the person has not, by written notice given to the ACCC, cancelled the election; and
(d) in a case where the person is not a member of an associated group—the number of residential customers to whom the person supplies fixed‑line carriage services does not exceed:
(i) 2,000; or
(ii) if a higher number (not exceeding 12,000) is specified in the regulations—that higher number; and
(e) in a case where the person is a member of an associated group—the total number of residential customers to whom the members of the group supply fixed‑line carriage services does not exceed:
(i) 2,000; or
(ii) if a higher number (not exceeding 12,000) is specified in the regulations—that higher number;
the person is exempt from section 143.
Note: For
associated group , see subsection (10) of this section.
(3) A determination under subsection (1) or (2) is subject to the following conditions and limitations:
(a) the person must ensure that a designated carriage service is available for supply to wholesale customers, or prospective wholesale customers, of the person;
(b) the person must not discriminate between the person’s wholesale customers, or the person’s prospective wholesale customers, in relation to the supply of designated carriage services;
(c) the person must not discriminate in favour of itself in relation to the supply of designated carriage services;
(d) the person must not, in carrying on any of the following activities, discriminate between the person’s wholesale customers or the person’s prospective wholesale customers:
(i) developing a new eligible service;
(ii) enhancing an eligible service;
(iii) extending or enhancing the capability of a facility or telecommunications network by means of which an eligible service is, or is to be, supplied;
(iv) planning for a facility or telecommunications network by means of which an eligible service is, or is to be, supplied;
(v) an activity that is preparatory to the supply of an eligible service;
(vi) an activity that is ancillary or incidental to the supply of an eligible service;
(vii) giving information to service providers about any of the above activities;
(e) the person must not discriminate in favour of itself in relation to the carrying on of any of the following activities:
(i) developing a new eligible service;
(ii) enhancing an eligible service;
(iii) extending or enhancing the capability of a facility or telecommunications network by means of which an eligible service is, or is to be, supplied;
(iv) planning for a facility or telecommunications network by means of which an eligible service is, or is to be, supplied;
(v) an activity that is preparatory to the supply of an eligible service;
(vi) an activity that is ancillary or incidental to the supply of an eligible service;
(vii) giving information to service providers about any of the above activities;
(f) such other conditions and limitations as are specified in the determination.
Note 1: For compliance with conditions and limitations, see section 143B.
Note 2: For judicial enforcement of conditions and limitations, see section 143C.
(4) The rule in paragraph (3)(b) does not prevent discrimination against a wholesale customer, or prospective wholesale customer, if the person has reasonable grounds to believe that the wholesale customer or prospective wholesale customer would fail, to a material extent, to comply with the terms and conditions on which the person supplies designated carriage services.
(5) Examples of grounds for believing as mentioned in subsection (4) include:
(a) evidence that the wholesale customer or prospective wholesale customer is not creditworthy; and
(b) repeated failures by the wholesale customer or prospective wholesale customer to comply with the terms and conditions on which the person supplied eligible services (whether or not using the line).
(6) A determination under subsection (1) or (2) must not specify a condition or limitation of a kind specified in a determination under subsection (7).
(7) The Minister may, by legislative instrument, determine one or more kinds of condition or limitation for the purposes of subsection (6).
Criteria for making determination
(8) In deciding whether to make a determination under subsection (1) or (2), the ACCC must have regard to:
(a) whether the determination promotes the long‑term interests of end‑users of carriage services or of services supplied by means of carriage services; and
(b) the matters (if any) specified in a determination under subsection (9); and
(c) such other matters (if any) as the ACCC considers relevant.
(9) The Minister may, by legislative instrument, determine one or more matters for the purposes of paragraph (8)(b).
Associated group
(10) For the purposes of this section, if:
(a) a person is in a position to exercise control of:
(i) a local access line; or
(ii) a telecommunications network; and
(b) the person has one or more associates;
then:
(c) the person is taken to belong to an associated group; and
(d) the associated group consists of the person and those associates.
(1) A person must, on or after the designated commencement date, comply with the conditions or limitations of a determination under subsection 143A(1) or (2).
Ancillary contraventions
(2) A person must not:
(a) aid, abet, counsel or procure a contravention of subsection (1); or
(b) induce, whether by threats or promises or otherwise, a contravention of subsection (1); or
(c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or
(d) conspire with others to effect a contravention of subsection (1).
Civil penalty provisions
(3) Subsections (1) and (2) are
civil penalty provisions .Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.
(1) If the Federal Court is satisfied that a person has, on or after the designated commencement date, contravened any of the conditions or limitations of a determination under subsection 143A(1) or (2), the Court may, on the application of:
(a) the ACCC; or
(b) a carrier; or
(c) a carriage service provider;
make all or any of the following orders:
(d) an order directing the person to comply with the condition or limitation;
(e) an order directing the person to compensate any other person (who may be the applicant) who has suffered loss or damage as a result of the contravention;
(f) any other order that the Court thinks appropriate.
(2) The Federal Court may discharge or vary an order granted under this section.
If a determination is in force under subsection 143A(1) or (2), the ACCC must publish on its website a list setting out the names of the persons who:
(a) have elected to be bound by the determination; and
(b) have not cancelled the election concerned.
(1) If:
(a) a part of the infrastructure of a telecommunications network is situated in a particular area that:
(i) on 1 January 2011, was being developed as a particular stage of a real estate development project; or
(ii) before 1 January 2011, was developed as a particular stage of a real estate development project; and
(b) on or after the designated commencement date, the network is extended to another area that is being, or is to be, developed as another stage of the project; and
(c) a carrier installs telecommunications network infrastructure; and
(d) the infrastructure mentioned in paragraph (c) is part of the extension;
the infrastructure mentioned in paragraph (c) is exempt from sections 142C and 143.
(2) If:
(a) a part of the infrastructure of a telecommunications network is situated in a particular area that:
(i) on 1 January 2011, was being developed as a particular stage of a real estate development project; or
(ii) before 1 January 2011, was developed as a particular stage of a real estate development project; and
(b) during the period:
(i) beginning at the start of the designated commencement date; and
(ii) ending when the Minister makes a declaration under section 48 of the
National Broadband Network Companies Act 2011 that, in the Minister’s opinion, the national broadband network should be treated as built and fully operational;the network is extended to an area that is:
(iii) the project area of a real estate development project specified under subsection (3); or
(iv) the project area of a real estate development project that belongs to a class of real estate development projects specified under subsection (5); or
(v) the project area of a building redevelopment project specified under subsection (6); or
(vi) the project area of a building redevelopment project that belongs to a class of building redevelopment projects specified under subsection (8); and
(c) a carrier installs telecommunications network infrastructure; and
(d) the infrastructure mentioned in paragraph (c) is part of the extension;
the infrastructure mentioned in paragraph (c) is exempt from sections 142C and 143.
(3) The Minister may, by notifiable instrument, specify one or more real estate development projects for the purposes of subparagraph (2)(b)(iii).
(4) Subsection 13(3) of the
Legislation Act 2003 does not apply to subsection (3) of this section.(5) The Minister may, by legislative instrument, specify one or more classes of real estate development projects for the purposes of subparagraph (2)(b)(iv).
(6) The Minister may, by notifiable instrument, specify one or more building redevelopment projects for the purposes of subparagraph (2)(b)(v).
(7) Subsection 13(3) of the
Legislation Act 2003 does not apply to subsection (6) of this section.(8) The Minister may, by legislative instrument, specify one or more classes of building redevelopment projects for the purposes of subparagraph (2)(b)(vi).
Building redevelopment project
(9) For the purposes of this section, a project is a
building redevelopment project if the project involves:
(a) the significant refurbishment or repurposing of one or more buildings so as to bring into existence one or more building units; and
(b) the making available of any or all of those building units for sale or lease.
(10) For the purposes of this section, the area or areas occupied by the building or buildings are the
project area for the building redevelopment project.(11) For the purposes of subsection (9), it is immaterial whether:
(a) the project has been, is being, or will be, implemented in stages; or
(b) different elements of the project have been, are being, or will be, carried out by different persons; or
(c) one or more approvals are given, are required, or will be required, under a law of the Commonwealth, a State or a Territory, for the project, or any element of the project.
(1) If:
(a) a telecommunications network came into existence on or after 1 January 2011; and
(b) a line came into existence on or after the designated commencement date for the purposes of connecting particular premises to the network; and
(c) the coming into existence of the line enables or enabled the occupier of the premises to become a customer in relation to carriage services supplied using the line; and
(d) the premises are in close proximity to a line that forms part of the infrastructure of the network as the network stood immediately before the designated commencement date; and
(e) the line mentioned in paragraph (b) is used to supply a superfast carriage service;
the line mentioned in paragraph (b) is exempt from section 142C.
Note 1: See also section 156A (certain lines deemed to have come into existence on or after the designated commencement date).
Note 2: See also section 158A (certain line extensions deemed to be local access lines in their own right, and to have come into existence on or after the designated commencement date).
(2) If:
(a) a designated telecommunications network (within the meaning of the
Carrier Licence Conditions (Networks supplying Superfast Carriage Services to Residential Customers) Declaration 2014 ) was in existence immediately before the designated commencement date; and(b) a line came into existence on or after the designated commencement date for the purposes of connecting particular premises to the network; and
(c) the coming into existence of the line enables or enabled the occupier of the premises to become a customer in relation to carriage services supplied using the line; and
(d) the premises are in close proximity to a line that forms part of the infrastructure of the network as the network stood immediately before the designated commencement date; and
(e) the line mentioned in paragraph (b) is used to supply a superfast carriage service;
the line mentioned in paragraph (b) is exempt from section 142C.
Note 1: See also section 156A (certain lines deemed to have come into existence on or after the designated commencement date).
Note 2: See also section 158A (certain line extensions deemed to be local access lines in their own right, and to have come into existence on or after the designated commencement date).
(1) If:
(a) the
Telecommunications (Network Exemption—TransACT Very Small Scale Networks) Instrument 2012 was in force at the start of the designated commencement date; and(b) a line came into existence on or after the designated commencement date; and
(c) the line forms part of the infrastructure of:
(i) an ACT Very Small Scale Network that is a FTTP network or a VDSL network (within the meaning of that instrument); or
(ii) a Victorian Very Small Scale Network that is a FTTP network, a VDSL network or a HFC network (within the meaning of that instrument); and
(d) that instrument has not ceased to be in force;
the line is exempt from section 142C.
Note 1: See also section 156A (certain lines deemed to have come into existence on or after the designated commencement date).
Note 2: See also section 158A (certain line extensions deemed to be local access lines in their own right, and to have come into existence on or after the designated commencement date).
(2) If:
(a) the
Telecommunications (Network Exemption—Telstra South Brisbane Network) Instrument 2012 was in force at the start of the designated commencement date; and(b) a line came into existence on or after the designated commencement date; and
(c) the line forms part of the infrastructure of the Telstra South Brisbane Network (within the meaning of that instrument); and
(d) that instrument has not ceased to be in force;
the line is exempt from section 142C.
Note 1: See also section 156A (certain lines deemed to have come into existence on or after the designated commencement date).
Note 2: See also section 158A (certain line extensions deemed to be local access lines in their own right, and to have come into existence on or after the designated commencement date).
(3) If:
(a) the
Telecommunications (Network Exemption—TransACT Upgraded VDSL Networks) Instrument 2012 was in force at the start of the designated commencement date; and(b) a line came into existence on or after the designated commencement date; and
(c) the line forms part of the infrastructure of a TransACT Upgraded VDSL Network (within the meaning of that instrument); and
(d) that instrument has not ceased to be in force;
the line is exempt from section 142C.
Note 1: See also section 156A (certain lines deemed to have come into existence on or after the designated commencement date).
Note 2: See also section 158A (certain line extensions deemed to be local access lines in their own right, and to have come into existence on or after the designated commencement date).
(4) If:
(a) the
Telecommunications (Network Exemption—Specified Velocity Networks) Instrument 2012 was in force at the start of the designated commencement date; and(b) a line came into existence on or after the designated commencement date; and
(c) the line forms part of the infrastructure of a Specified Velocity Network (within the meaning of that instrument); and
(d) that instrument has not ceased to be in force;
the line is exempt from section 142C.
Note 1: See also section 156A (certain lines deemed to have come into existence on or after the designated commencement date).
Note 2: See also section 158A (certain line extensions deemed to be local access lines in their own right, and to have come into existence on or after the designated commencement date).
(5) For the purposes of paragraph (4)(c) of this section, assume that paragraph (c) of the definition of
Specified Velocity Network in theTelecommunications (Network Exemption—Specified Velocity Networks) Instrument 2012 were modified by omitting all the words from and including “in accordance with” to and including “project”.
(1) If:
(a) a local access line is part of the infrastructure of a telecommunications network operated by a carrier; and
(b) the network is marketed by the carrier exclusively as a business network; and
(c) the line is used, or proposed to be used, to supply a superfast carriage service wholly or principally to residential customers, or prospective residential customers, in Australia; and
(d) that use or proposed use, when considered in relation to the use or proposed use of all of the local access lines that are part of the infrastructure of the network, is minor; and
(e) the other conditions (if any) determined under subsection (2) have been satisfied;
the line is exempt from section 142C.
(2) The Minister may, by legislative instrument, determine one or more conditions for the purposes of paragraph (1)(e).
Add:
(7) The Minister must not make an instrument under subsection (1), (2) or (3) on or after the designated commencement date.
(8) Subsection (7) does not prevent the Minister from varying an instrument that was in force immediately after the start of the designated commencement date.
Omit “Subsection 143(2) does”, substitute “Subsections 142C(2) and 143(2) do”.
Omit “Subsection 143(2) does”, substitute “Subsections 142C(2) and 143(2) do”.
Omit “Subsection 143(2) does”, substitute “Subsections 142C(2) and 143(2) do”.
Omit “Subsection 143(2) does”, substitute “Subsections 142C(2) and 143(2) do”.
Omit “Subsection 143(2) does”, substitute “Subsections 142C(2) and 143(2) do”.
Omit “Subsection 143(2) does”, substitute “Subsections 142C(2) and 143(2) do”.
Omit “Subsection 143(2) does”, substitute “Subsections 142C(2) and 143(2) do”.
Insert:
(1) If a person is a corporation, the person may give a written undertaking (a
standard functional separation undertaking ) to the ACCC.(2) The undertaking must:
(a) provide that the person will maintain:
(i) a single wholesale business unit; and
(ii) a single retail business unit; and
(b) provide that the person will maintain arm’s length functional separation between:
(i) the person’s wholesale business unit; and
(ii) the person’s retail business unit; and
(c) provide that the person will ensure that:
(i) the terms and conditions relating to price or a method of ascertaining price; and
(ii) other terms and conditions;
on which the person’s wholesale business unit supplies local access line services to the person’s retail business unit are documented; and
(d) provide that the person will, to the extent specified in the undertaking, ensure that the workers who perform their duties for the person’s wholesale business unit are different from the workers who perform their duties for the person’s retail business unit; and
(e) provide that the person will, to the extent specified in the undertaking, ensure that there are separate:
(i) operational support systems; and
(ii) business systems; and
(iii) communications systems; and
(iv) accounts;
for:
(v) the person’s wholesale business unit; and
(vi) the person’s retail business unit; and
(f) provide that the person will publish on the person’s website:
(i) the terms and conditions relating to price or a method of ascertaining price; and
(ii) other terms and conditions;
on which the person’s wholesale business unit offers to supply local access line services to the following:
(iii) the person’s retail business unit;
(iv) the person’s wholesale customers or prospective wholesale customers; and
(g) provide that the person will:
(i) if requested to do so by a wholesale customer or prospective wholesale customer, supply a local access line service to the wholesale customer or prospective wholesale customer; and
(ii) do so on the terms and conditions that were published on the person’s website at the time when the request was made; and
(h) provide that the person will ensure that information provided to the person’s wholesale business unit by the person’s wholesale customers is not disclosed to the person’s retail business unit; and
(i) provide that the person will ensure that the person’s retail business unit does not obtain, access or use information provided to the person’s wholesale business unit by the person’s wholesale customers; and
(j) provide that the person will ensure that information provided to the person’s retail business unit by a carrier or carriage service provider (other than information of a kind specified in a determination under subsection (13)) is not disclosed to the person’s wholesale business unit; and
(k) provide that the person will ensure that the person’s wholesale business unit does not obtain, access or use information provided to the person’s retail business unit by a carrier or carriage service provider (other than information of a kind specified in a determination under subsection (13)); and
(l) provide that the person will use the same customer interface for dealings between:
(i) the person’s wholesale business unit; and
(ii) the person’s wholesale customers;
as the person uses for dealings between:
(iii) the person’s wholesale business unit; and
(iv) the person’s retail business unit; and
(m) contain such other provisions (if any) as are specified in a determination under subsection (14); and
(n) not contain a provision of a kind specified in a determination under subsection (15).
Note: A standard functional separation undertaking is supplemented by section 151ZF (which requires eligible services to be supplied on a non‑discriminatory basis) and section 151ZG (which requires related activities to be carried on on a non‑discriminatory basis).
(3) An extent specified under paragraph (2)(d) or (e) may be a nil extent.
Form etc.
(4) The undertaking must:
(a) be in a form approved in writing by the ACCC; and
(b) be accompanied by such information as is reasonably likely to assist the ACCC to decide whether to accept or reject the undertaking; and
(c) be accompanied by the fee (if any) specified in, or ascertained in accordance with, a determination under subsection (16).
Expiry time
(5) The undertaking must specify the expiry time of the undertaking.
(6) The expiry time of the undertaking may be described by reference to the end of a period beginning when the undertaking comes into force.
(7) Subsection (6) does not, by implication, limit subsection (5).
(8) The expiry time of the undertaking must not be more than 10 years after the undertaking comes into force.
Fundamental provisions
(9) The undertaking:
(a) must state that the provisions of the undertaking covered by paragraphs (2)(a), (b), (c), (f), (g), (h), (i), (j) and (k) are fundamental provisions; and
(b) may state that one or more other provisions of the undertaking are fundamental provisions.
Compliance reports
(10) The undertaking must provide that the person will give the ACCC periodic reports (to be known as compliance reports) that:
(a) relate to the person’s compliance with the undertaking; and
(b) are in a form approved in writing by the ACCC.
Note: See section 151ZJ (self‑incrimination).
Compliance plans
(11) The undertaking must provide that the person will:
(a) prepare a plan (to be known as a compliance plan) setting out the actions to be taken by the person for the purpose of ensuring that the person complies with the undertaking; and
(b) give the ACCC:
(i) a copy of the compliance plan; and
(ii) a copy of any variation of the compliance plan.
ACCC may perform functions or exercise powers
(12) If the undertaking provides for the ACCC to perform functions or exercise powers in relation to the undertaking, the ACCC may perform those functions, and exercise those powers, in accordance with the undertaking.
Determinations
(13) The ACCC may, by legislative instrument, determine one or more kinds of information for the purposes of paragraphs (2)(j) and (k).
(14) The Minister may, by legislative instrument, determine one or more provisions for the purposes of paragraph (2)(m).
(15) The Minister may, by legislative instrument, determine one or more kinds of provisions for the purposes of paragraph (2)(n).
(16) The ACCC may, by legislative instrument, determine a fee, or a method of ascertaining a fee, for the purposes of paragraph (4)(c).
(17) A fee determined under, or ascertained in accordance with, subsection (16) must not be such as to amount to taxation.
(1) The ACCC may, by legislative instrument, determine that, if:
(a) a corporation is included in a specified class of corporations; and
(b) the corporation has, by written notice given to the ACCC, elected to be bound by the determination; and
(c) the corporation has not, by written notice given to the ACCC, cancelled the election; and
(d) the ACCC has not revoked the election under subsection (7);
this Act has effect as if:
(e) the corporation had given a standard functional separation undertaking in the terms set out in the determination; and
(f) the ACCC had accepted the undertaking; and
(g) if the election was given before the designated commencement date—the undertaking had come into force on the designated commencement date; and
(h) if the election was given on or after the designated commencement date—the undertaking had come into force when the election was given to the ACCC.
(1A) A functional separation undertaking covered by a determination under subsection (1) must comply with the following provisions:
(a) paragraphs 151A(2)(a) to (m);
(b) subsections 151A(9), (10) and (11).
(1B) A functional separation undertaking covered by a determination under subsection (1) must not contain a provision of a kind specified in a determination under subsection 151A(15).
(2) The following provisions do not apply to a functional separation undertaking covered by a determination under subsection (1):
(a) subsections 151A(4) to (8);
(b) section 151N;
(c) section 151P;
(d) section 151Q;
(e) section 151W.
(3) If, as a result of an election under a determination under subsection (1), a corporation is taken to have given a standard functional separation undertaking:
(a) this Act does not prevent the corporation from giving the ACCC another standard functional separation undertaking; and
(b) if the other standard functional separation undertaking comes into force—the corporation is taken to have cancelled the election immediately before the other standard functional separation undertaking comes into force.
(4) If, as a result of an election under a determination under subsection (1), a corporation is taken to have given a standard functional separation undertaking:
(a) this Act does not prevent the corporation, together with one or more other persons, from giving the ACCC a joint functional separation undertaking; and
(b) if the joint functional separation undertaking comes into force—the corporation is taken to have cancelled the election immediately before the joint functional separation undertaking comes into force.
(5) Before making a determination under subsection (1), the ACCC must:
(a) publish on the ACCC’s website a notice:
(i) setting out the draft determination; and
(ii) inviting persons to make submissions to the ACCC about the draft determination within the time limit specified in the notice; and
(b) consider any submissions received within the time limit specified in the notice.
(6) The time limit must not be shorter than 15 business days after the notice is published.
(7) If:
(a) a standard functional separation undertaking is in force as the result of an election made by a person as mentioned in paragraph (1)(b); and
(b) any of the following conditions is satisfied:
(i) the person has breached a fundamental provision of the undertaking;
(ii) the person has contravened section 151ZF or 151ZG;
(iii) the ACCC is satisfied that the person has an unsatisfactory compliance record in relation to functional separation;
the ACCC may, by written notice given to the person, revoke the election.
(1) If 2 or more persons are corporations, those persons may give a joint written undertaking (a
joint functional separation undertaking ) to the ACCC.(2) The undertaking must:
(a) identify:
(i) one or more (but not all) of those persons as the wholesaler or wholesalers for the purposes of the undertaking; and
(ii) the remaining person or persons as the retailer or retailers for the purposes of the undertaking; and
(b) provide that a wholesaler will not supply a local access line service to a person unless the person is a wholesale customer; and
(c) provide that a retailer will not supply a local access line service to a person unless the person is a retail customer; and
(d) provide that a wholesaler will, to the extent specified in the undertaking, ensure that the wholesaler’s workers will perform their duties exclusively for the wholesaler; and
(e) provide that a retailer will, to the extent specified in the undertaking, ensure that the retailer’s workers will perform their duties exclusively for the retailer; and
(f) provide that a wholesaler will, to the extent specified in the undertaking, ensure that the workers who:
(i) are engaged by persons other than the wholesaler; and
(ii) perform duties for the wholesaler;
are different from the workers who:
(iii) are engaged by persons other than the wholesaler; and
(iv) perform duties for a retailer; and
(g) provide that a retailer will, to the extent specified in the undertaking, ensure that the workers who:
(i) are engaged by persons other than the retailer; and
(ii) perform duties for the retailer;
are different from the workers who:
(iii) are engaged by persons other than the retailer; and
(iv) perform duties for a wholesaler; and
(h) provide that a wholesaler will ensure that no director of the wholesaler is a director of a retailer; and
(i) provide that a retailer will ensure that no director of the retailer is a director of a wholesaler; and
(j) provide that:
(i) the wholesaler or wholesalers; and
(ii) the retailer or retailers;
will, to the extent specified in the undertaking, have separate:
(iii) operational support systems; and
(iv) business systems; and
(v) communications systems; and
(vi) accounts; and
(k) provide that a wholesaler will publish on the wholesaler’s website:
(i) the terms and conditions relating to price or a method of ascertaining price; and
(ii) other terms and conditions;
on which the wholesaler offers to supply local access line services to the following:
(iii) a retailer;
(iv) its wholesale customers or prospective wholesale customers; and
(l) provide that a wholesaler will:
(i) if requested to do so by a wholesale customer or prospective wholesale customer, supply a local access line service to the wholesale customer or prospective wholesale customer; and
(ii) do so on the terms and conditions that were published on the wholesaler’s website at the time when the request was made; and
(m) provide that a wholesaler will ensure that information provided by its wholesale customers (other than the retailer or retailers) is not disclosed to any of the retailers; and
(n) provide that a retailer will ensure that it does not obtain, access or use information provided to any of the wholesalers by the wholesaler’s wholesale customers; and
(o) provide that a retailer will ensure that information provided to the retailer by a carrier or carriage service provider, other than:
(i) information provided by a wholesaler; or
(ii) information of a kind specified in a determination under subsection (15);
is not disclosed to any of the wholesalers; and
(p) provide that a wholesaler will ensure that it does not obtain, access or use information provided to any of the retailers by a carrier or carriage service provider, other than:
(i) information provided by a wholesaler; or
(ii) information of a kind specified in a determination under subsection (15); and
(q) provide that a wholesaler will use the same customer interface for dealings between:
(i) the wholesaler; and
(ii) the wholesaler’s wholesale customers (other than the retailer or retailers);
as the wholesaler uses for dealings between:
(iii) the wholesaler; and
(iv) a retailer; and
(r) contain such other provisions (if any) as are specified in a determination under subsection (16); and
(s) not contain a provision of a kind specified in a determination under subsection (17).
Note: A joint functional separation undertaking is supplemented by section 151ZF (which requires eligible services to be supplied on a non‑discriminatory basis) and section 151ZG (which requires related activities to be carried on on a non‑discriminatory basis).
(3) An extent specified under paragraph (2)(d), (e), (f), (g) or (j) may be a nil extent.
Form etc.
(4) The undertaking must:
(a) be in a form approved in writing by the ACCC; and
(b) be accompanied by such information as is reasonably likely to assist the ACCC to decide whether to accept or reject the undertaking; and
(c) be accompanied by the fee (if any) specified in, or ascertained in accordance with, a determination under subsection (18).
Expiry time
(5) The undertaking must specify the expiry time of the undertaking.
(6) The expiry time of the undertaking may be described by reference to the end of a period beginning when the undertaking comes into force.
(7) Subsection (6) does not, by implication, limit subsection (5).
(8) The expiry time of the undertaking must not be more than 10 years after the undertaking comes into force.
Fundamental provisions
(9) The undertaking:
(a) must state that the provisions of the undertaking covered by paragraphs (2)(a), (b), (c), (h), (i), (k), (l), (m), (n), (o) and (p) are fundamental provisions; and
(b) may state that one or more other provisions of the undertaking are fundamental provisions.
Compliance reports
(10) The undertaking must provide that a wholesaler will give the ACCC periodic reports (to be known as compliance reports) that:
(a) relate to the wholesaler’s compliance with the undertaking; and
(b) are in a form approved in writing by the ACCC.
Note: See section 151ZJ (self‑incrimination).
(11) The undertaking must provide that a retailer will give the ACCC periodic reports (to be known as compliance reports) that:
(a) relate to the retailer’s compliance with the undertaking; and
(b) are in a form approved in writing by the ACCC.
Note: See section 151ZJ (self‑incrimination).
Compliance plans
(12) The undertaking must provide that a wholesaler will:
(a) prepare a plan (to be known as a compliance plan) setting out the actions to be taken by the wholesaler for the purpose of ensuring that the wholesaler complies with the undertaking; and
(b) give the ACCC:
(i) a copy of the compliance plan; and
(ii) a copy of any variation of the compliance plan.
(13) The undertaking must provide that a retailer will:
(a) prepare a plan (to be known as a compliance plan) setting out the actions to be taken by the retailer for the purpose of ensuring that the retailer complies with the undertaking; and
(b) give the ACCC:
(i) a copy of the compliance plan; and
(ii) a copy of any variation of the compliance plan.
ACCC may perform functions or exercise powers
(14) If the undertaking provides for the ACCC to perform functions or exercise powers in relation to the undertaking, the ACCC may perform those functions, and exercise those powers, in accordance with the undertaking.
Determinations
(15) The ACCC may, by legislative instrument, determine one or more kinds of information for the purposes of paragraphs (2)(o) and (p).
(16) The Minister may, by legislative instrument, determine one or more provisions for the purposes of paragraph (2)(r).
(17) The Minister may, by legislative instrument, determine one or more kinds of provisions for the purposes of paragraph (2)(s).
(18) The ACCC may, by legislative instrument, determine a fee, or a method of ascertaining a fee, for the purposes of paragraph (4)(c).
(19) A fee determined under, or ascertained in accordance with, subsection (18) must not be such as to amount to taxation.
Scope
(1) This section applies if:
(a) a person gives the ACCC a standard functional separation undertaking; or
(b) 2 or more persons give the ACCC a joint functional separation undertaking.
Request for further information
(2) The ACCC may request the person or persons to give the ACCC further information about the undertaking.
(3) The ACCC may refuse to consider the undertaking until the person or persons give the ACCC the information.
(4) The ACCC may withdraw its request for further information, in whole or in part.
Scope
(1) This section applies if:
(a) a person gives the ACCC a standard functional separation undertaking; or
(b) 2 or more persons give the ACCC a joint functional separation undertaking.
Withdrawal
(2) The person or persons may withdraw the undertaking at any time before the ACCC makes a decision to accept or reject the undertaking.
(3) This Act does not prevent the person or persons from giving a fresh undertaking.
Refund of fee
(4) If:
(a) the person or persons withdraw the undertaking; and
(b) the person or persons have paid a fee in relation to the undertaking;
the ACCC may, on behalf of the Commonwealth, refund the whole or a part of the fee.
Scope
(1) This section applies if:
(a) a person gives the ACCC a standard functional separation undertaking; or
(b) 2 or more persons give the ACCC a joint functional separation undertaking.
Decision to accept or reject undertaking
(2) After considering the undertaking, the ACCC must:
(a) accept the undertaking; or
(b) reject the undertaking.
Notice of decision
(3) If the ACCC accepts the undertaking, the ACCC must give the person or persons a written notice stating that the undertaking has been accepted.
(4) If the ACCC rejects the undertaking, the ACCC must give the person or persons a written notice:
(a) stating that the undertaking has been rejected; and
(b) setting out the reasons for the rejection.
ACCC to make decision within 3 months
(5) The ACCC must take all reasonable steps to ensure that a decision about the undertaking is made under subsection (2) within 3 months after receiving the undertaking.
(6) In calculating the 3‑month period referred to in subsection (5), disregard:
(a) if:
(i) the ACCC has given a notice under section 151K in relation to the undertaking; and
(ii) no varied undertaking was given to the ACCC in response to the notice;
a day in the period specified in the notice; and
(b) if:
(i) the ACCC has given a notice under section 151K in relation to the undertaking; and
(ii) a varied undertaking was given to the ACCC in response to the notice;
a day in the period:
(iii) beginning on the day on which the notice was given; and
(iv) ending at the end of the time limit specified by the ACCC when it published the varied undertaking under section 151G; and
(c) if the ACCC has not given a notice under section 151K in relation to the undertaking—a day in the period:
(i) beginning on the day on which the ACCC published the undertaking under section 151G; and
(ii) ending at the end of the time limit specified by the ACCC when it published the undertaking under section 151G; and
(d) if the ACCC has requested further information under section 151D in relation to the undertaking—a day during any part of which the request, or any part of the request, remains unfulfilled.
Extension of decision‑making period
(7) The ACCC may, by written notice given to the person or persons, extend the 3‑month period referred to in subsection (5) (the
initial 3‑month period ), so long as:
(a) the extension is for a period of not more than 3 months; and
(b) the notice includes a statement explaining why the ACCC has been unable to make a decision on the undertaking within the initial 3‑month period.
(8) As soon as practicable after the ACCC gives a notice under subsection (7), the ACCC must publish a copy of the notice on the ACCC’s website.
Scope
(1) This section applies if:
(a) a person gives the ACCC a standard functional separation undertaking; or
(b) 2 or more persons give the ACCC a joint functional separation undertaking.
Consultation
(2) Before making a decision to accept or reject the undertaking, the ACCC must:
(a) publish on the ACCC’s website a notice:
(i) setting out the undertaking; and
(ii) inviting persons to make submissions to the ACCC about the undertaking within the time limit specified in the notice; and
(b) consider any submissions received within the time limit specified in the notice.
(3) The time limit must not be shorter than 15 business days after the notice is published.
(1) If:
(a) a person gives the ACCC a standard functional separation undertaking (the
first functional separation undertaking ); and(b) the ACCC rejects the first functional separation undertaking; and
(c) the person subsequently gives the ACCC another standard functional separation undertaking; and
(d) the ACCC is satisfied that any or all of the provisions of the first functional separation undertaking are materially similar to any or all of the provisions of the other functional separation undertaking;
the ACCC may refuse to consider the other functional separation undertaking.
(2) If:
(a) 2 or more persons give the ACCC a joint functional separation undertaking (the
first functional separation undertaking ); and(b) the ACCC rejects the first functional separation undertaking; and
(c) those persons subsequently give the ACCC another joint functional separation undertaking; and
(d) the ACCC is satisfied that any or all of the provisions of the first functional separation undertaking are materially similar to any or all of the provisions of the other functional separation undertaking;
the ACCC may refuse to consider the other functional separation undertaking.
Refund of fee
(3) If:
(a) the ACCC refuses to consider a functional separation undertaking under this section; and
(b) a person or persons have paid a fee in relation to the undertaking;
the ACCC must, on behalf of the Commonwealth, refund the fee.
Scope
(1) This section applies if:
(a) a person gives the ACCC a standard functional separation undertaking; or
(b) 2 or more persons give the ACCC a joint functional separation undertaking.
Criteria
(2) In deciding whether to accept the undertaking, the ACCC must have regard to:
(a) whether the undertaking promotes the long‑term interests of end‑users of carriage services or of services supplied by means of carriage services; and
(b) the matters (if any) specified in a determination that was in force under subsection (3) at the time the undertaking was given; and
(c) such other matters (if any) as the ACCC considers relevant.
(3) The Minister may, by legislative instrument, determine one or more matters for the purposes of paragraph (2)(b).
Scope
(1) This section applies if:
(a) a person gives the ACCC a standard functional separation undertaking (the
original undertaking ); or(b) 2 or more persons give the ACCC a joint functional separation undertaking (the
original undertaking ).
Notice
(2) The ACCC may give the person or persons a written notice stating that, if:
(a) the person makes, or the persons make, such variations to the original undertaking as are specified in the notice; and
(b) the person gives, or the persons give, the varied undertaking to the ACCC within the period specified in the notice;
the ACCC will consider the varied undertaking under section 151F as if the varied undertaking had been given to the ACCC instead of the original undertaking.
Treatment of varied undertaking
(3) If the person gives, or the persons give, the ACCC a varied undertaking in response to the notice, the ACCC must consider the varied undertaking under section 151F as if the varied undertaking had been given to the ACCC instead of the original undertaking.
No duty to consider whether to give a notice
(4) The ACCC does not have a duty to consider whether to give a notice under subsection (2).
Scope
(1) This section applies if a person gives the ACCC a standard functional separation undertaking (the
original undertaking ).
Notice
(2) The ACCC may give the person a written notice stating that, if:
(a) the person withdraws the original undertaking; and
(b) the person, together with one or more other persons specified in the notice, gives a joint functional separation undertaking in the terms specified in the notice; and
(c) the person does the things mentioned in paragraphs (a) and (b) within the time limit specified in the notice;
the ACCC would be inclined to accept the joint functional separation undertaking.
(3) The ACCC does not have a duty to consider whether to give a notice under subsection (2).
(1) If:
(a) a standard functional separation undertaking (the
existing undertaking ) given by a person is in force; and(b) at least 12 months before the expiry of the existing undertaking, the person gives the ACCC another standard functional separation undertaking;
the other undertaking may be expressed to be given by way of renewal of the existing undertaking.
Note: For acceptance or rejection of the other undertaking, see section 151F.
(2) If:
(a) a joint functional separation undertaking (the
existing undertaking ) given by 2 or more persons is in force; and(b) at least 12 months before the expiry of the existing undertaking, those persons give another joint functional separation undertaking to the ACCC;
the other undertaking may be expressed to be given by way of renewal of the existing undertaking.
Note 1: For acceptance or rejection of the other undertaking, see section 151F.
Note 2: For consultation on a decision to accept or reject the other undertaking, see section 151G.
Standard functional separation undertaking
(1) If:
(a) a standard functional separation undertaking (the
existing undertaking ) given by a person is in force; and(b) another functional separation undertaking is given to the ACCC by the person; and
(c) the ACCC rejects the other undertaking;
the ACCC may, by written notice given to the person, vary the existing undertaking by:
(d) omitting the expiry time specified in the existing undertaking; and
(e) substituting the expiry time specified in the notice.
Note: See also section 142B.
(2) The expiry time specified in the notice:
(a) must be later than the rejection of the other undertaking; and
(b) must not be later than 12 months after the rejection of the other undertaking.
(3) Subsection 151A(8) does not apply to an expiry time specified in a notice under subsection (1).
Joint functional separation undertaking
(4) If:
(a) a joint functional separation undertaking (the
existing undertaking ) given by 2 or more persons is in force; and(b) another functional separation undertaking is given to the ACCC by a person who is one of the persons mentioned in paragraph (a); and
(c) the ACCC rejects the other undertaking;
the ACCC may, by written notice given to each of the persons mentioned in paragraph (a), vary the existing undertaking by:
Compliance
(4) A carrier or carriage service provider must comply with a requirement under subsection (2) to the extent that the carrier or carriage service provider is capable of doing so.
(5) A carrier or carriage service provider commits an offence if:
(a) the ACMA has given a notice to the carrier or carriage service provider under subsection (2); and
(b) the carrier or carriage service provider engages in conduct; and
(c) the carrier’s conduct, or the carriage service provider’s conduct, contravenes a requirement in the notice.
Penalty for contravention of this subsection: 50 penalty units.
A carrier or carriage service provider is entitled to be paid by the ACMA reasonable compensation for complying with a requirement covered by paragraph 102P(2)(c).
(1) The ACMA may:
(a) inspect a document or copy produced under subsection 102P(2); and
(b) make and retain copies of, or take and retain extracts from, such a document.
(2) The ACMA may retain possession of a copy of a document produced in accordance with a requirement covered by paragraph 102P(2)(c).
(1) The ACMA may take, and retain for as long as is necessary, possession of a document produced under subsection 102P(2).
(2) The carrier or carriage service provider otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the ACMA to be a true copy.
(3) The certified copy must be received in all courts and tribunals as evidence as if it were the original.
(4) Until a certified copy is supplied, the ACMA must, at such times and places as the ACMA thinks appropriate, permit the carrier or carriage service provider otherwise entitled to possession of the document, or a person authorised by that carrier or carriage service provider, to inspect and make copies of, or take extracts from, the document.
This Subdivision does not affect the law relating to legal professional privilege.
Scope
(1) This section applies to an eligible funding recipient if the ACCC believes on reasonable grounds that the eligible funding recipient has information or a document that is relevant to the performance of any of the ACCC’s functions, or the exercise of any of the ACCC’s powers, under the
Telecommunications (Regional Broadband Scheme) Charge Act 2020 .
Requirement
(2) The ACCC may, by written notice given to the eligible funding recipient, require the eligible funding recipient:
(a) to give to the ACCC, within the period and in the manner and form specified in the notice, any such information; or
(b) to produce to the ACCC, within the period and in the manner specified in the notice, any such documents; or
(c) to make copies of any such documents and to produce to the ACCC, within the period and in the manner specified in the notice, those copies.
(3) A period specified under subsection (2) must not be shorter than 14 days after the notice is given.
Compliance
(4) An eligible funding recipient must comply with a requirement under subsection (2) to the extent that the eligible funding recipient is capable of doing so.
(5) An eligible funding recipient commits an offence if:
(a) the ACCC has given a notice to the eligible funding recipient under subsection (2); and
(b) the eligible funding recipient engages in conduct; and
(c) the eligible funding recipient’s conduct contravenes a requirement in the notice.
Penalty for contravention of this subsection: 50 penalty units.
An eligible funding recipient is entitled to be paid by the ACCC reasonable compensation for complying with a requirement covered by paragraph 102U(2)(c).
(1) The ACCC may:
(a) inspect a document or copy produced under subsection 102U(2); and
(b) make and retain copies of, or take and retain extracts from, such a document.
(2) The ACCC may retain possession of a copy of a document produced in accordance with a requirement covered by paragraph 102U(2)(c).
(1) The ACCC may take, and retain for as long as is necessary, possession of a document produced under subsection 102U(2).
(2) The eligible funding recipient otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the ACCC to be a true copy.
(3) The certified copy must be received in all courts and tribunals as evidence as if it were the original.
(4) Until a certified copy is supplied, the ACCC must, at such times and places as the ACCC thinks appropriate, permit the eligible funding recipient otherwise entitled to possession of the document, or a person authorised by that eligible funding recipient, to inspect and make copies of, or take extracts from, the document.
This Subdivision does not affect the law relating to legal professional privilege.
(1) The ACMA may disclose information to any of the following bodies:
(a) the Department;
(b) the ACCC;
(c) the Regional Telecommunications Independent Review Committee;
(d) the Department administered by the Minister administering the
Public Governance, Performance and Accountability Act 2013 ;(e) the Department administered by the Treasurer;
(f) an authorised government agency (see subsection (2));
if:
(g) the information was:
(i) obtained under, or for the purposes of, this Division; or
(ii) set out in a report under section 100; and
(h) the ACMA is satisfied that the information will enable or assist the body to perform or exercise any of the functions or powers of the body.
(2) The ACMA may, by notifiable instrument, declare that a specified department or authority of the Commonwealth, a State or a Territory is an
authorised government agency for the purposes of paragraph (1)(f).(3) The ACMA may, by writing, impose conditions to be complied with in relation to information disclosed under subsection (1).
(4) An instrument made under subsection (3) that imposes conditions relating to one particular disclosure identified in the instrument is a notifiable instrument.
(5) Otherwise, an instrument made under subsection (3) is a legislative instrument.
(1) The ACCC may disclose information to any of the following bodies:
(a) the Department;
(b) the ACMA;
(c) the Regional Telecommunications Independent Review Committee;
(d) the Department administered by the Minister administering the
Public Governance, Performance and Accountability Act 2013 ;(e) the Department administered by the Treasurer;
(f) an authorised government agency (see subsection (2));
if:
(g) the information was obtained under, or for the purposes of, this Division or section 102ZF; and
(h) the ACCC is satisfied that the information will enable or assist the body to perform or exercise any of the functions or powers of the body.
(2) The ACCC may, by notifiable instrument, declare that a specified department or authority of the Commonwealth, a State or a Territory is an
authorised government agency for the purposes of paragraph (1)(f).(3) The ACCC may, by writing, impose conditions to be complied with in relation to information disclosed under subsection (1).
(4) An instrument made under subsection (3) that imposes conditions relating to one particular disclosure identified in the instrument is a notifiable instrument.
(5) Otherwise, an instrument made under subsection (3) is a legislative instrument.
(1) The Secretary is to maintain a register, to be known as the Register of Contracts for the Funding of Fixed Wireless Broadband and Satellite Broadband, in which the Secretary includes the following for each section 80 contract that is in force:
(a) the name of the contractor;
(b) the duration of the contract;
(c) if the contract requires actions to be undertaken by the contractor—a summary of those actions;
(d) if the contract requires services, facilities or customer equipment to be supplied by the contractor—a description of those services, facilities or customer equipment;
(e) if the contract provides for the Commonwealth to reimburse, or partly reimburse, costs or expenses—a description of those costs or expenses;
(f) one of the following:
(i) the total amount paid or to be paid by the Commonwealth under the contract;
(ii) an estimate of the total amount paid or to be paid by the Commonwealth under the contract;
(iii) the method of working out the total amount paid or to be paid by the Commonwealth under the contract.
(2) The Register of Contracts for the Funding of Fixed Wireless Broadband and Satellite Broadband is to be maintained by electronic means.
(3) The Register of Contracts for the Funding of Fixed Wireless Broadband and Satellite Broadband is to be made available for inspection on the Department’s website.
(4) The Register of Contracts for the Funding of Fixed Wireless Broadband and Satellite Broadband is not a legislative instrument.
(1) The Secretary is to maintain a register, to be known as the Register of Grants for the Funding of Fixed Wireless Broadband and Satellite Broadband, in which the Secretary includes the following for each section 80 grant that has been made:
(a) the name of the grant recipient;
(b) if the terms and conditions of the grant require action to be undertaken by the grant recipient—a summary of those actions;
(c) if services, facilities or customer equipment are to be supplied by the grant recipient in accordance with the terms and conditions of the grant—a description of those services, facilities or customer equipment;
(d) if the grant is by way of the reimbursement, or partial reimbursement, of costs or expenses—a description of those costs or expenses;
(e) either:
(i) the amount of the grant; or
(ii) the method for working out the amount of the grant.
(2) The Register of Grants for the Funding of Fixed Wireless Broadband and Satellite Broadband is to be maintained by electronic means.
(3) The Register of Grants for the Funding of Fixed Wireless Broadband and Satellite Broadband is to be made available for inspection on the Department’s website.
(4) The Register of Grants for the Funding of Fixed Wireless Broadband and Satellite Broadband is not a legislative instrument.
The ACMA must publish on its website a statement, for each eligible financial year, that sets out:
(a) the total amount of charge paid by carriers in relation to the eligible financial year; and
(b) the total of the amounts specified in charge offset certificates issued to carriers in relation to the eligible financial year.
The ACMA may give the ACCC information that is relevant to the performance of any of the ACCC’s functions, or the exercise of any of the ACCC’s powers, under the
Telecommunications (Regional Broadband Scheme) Charge Act 2020 .
Reportable premises
(1) For the purposes of this section, if:
(a) a person is a carrier; and
(b) during a period comprising the whole or a part of the applicable reporting period, either:
(i) the person owns a local access line, but there is no nominated carrier declaration in force in relation to the line; or
(ii) under a nominated carrier declaration, the person is the nominated carrier in relation to a local access line; and
(c) during the whole or a part of the period, a carriage service provider (who may be the person) supplies a designated broadband service to particular premises in Australia using the line;
the premises are
reportable premises in relation to the person for the applicable reporting period.Note: The line does not need to be physically connected to the premises. This is because
using has an extended meaning—see subsection 5(1) of this Act and section 24 of theTelecommunications Act 1997 (when read together with section 18A of theActs Interpretation Act 1901 ).
Report
(2) If:
(a) a person is a carrier; and
(b) there are one or more reportable premises in relation to the person for the applicable reporting period;
the person must:
(c) give the ACCC a written report setting out:
(i) the number of those premises; and
(ii) the number of potentially chargeable premises (if any) in relation to the person for the applicable reporting period (assuming paragraph 79(a) referred to 1 July 2019 instead of the designated start date); and
(iii) the number of chargeable premises (if any) associated with a local access line of the person for the applicable reporting period (assuming paragraph 79(a) referred to 1 July 2019 instead of the designated start date); and
(iv) the number of exempt premises (if any) in relation to the person for the applicable reporting period (assuming paragraph 79(a) referred to 1 July 2019 instead of the designated start date); and
(v) the number of exempt lines (if any) in relation to the person for the applicable reporting period (assuming paragraph 79(a) referred to 1 July 2019 instead of the designated start date); and
(vi) the number of potentially concessional premises (if any) in relation to the person for the applicable reporting period (assuming paragraph 79(a) referred to 1 July 2019 instead of the designated start date); and
(vii) the number of recently connected greenfield premises (if any) in relation to the person for the applicable reporting period (assuming paragraph 79(a) referred to 1 July 2019 instead of the designated start date); and
(d) do so within 60 days after the commencement of this section.
(3) The report must be in a form approved, in writing, by the ACCC.
(4) The approved form may require verification, by a statutory declaration, of statements made in the report.
(4A) If, at any time during the applicable reporting period, the person had an associate in relation to control of:
(a) a telecommunications network; or
(b) a company; or
(c) a local access line;
the report must:
(d) set out the name of the associate; and
(e) set out the ACN (if any) of the associate; and
(f) identify the network, company or line, as the case requires; and
(g) identify which paragraph or paragraphs of subsection 152(1) of the
Telecommunications Act 1997 resulted in the person having the associate.
Offence of failing to lodge report
(5) A person commits a strict liability offence if:
(a) the person is subject to a requirement under subsection (2) or (4A); and
(b) the person omits to do an act; and
(c) the omission breaches the requirement.
Penalty: 50 penalty units.
(6) A person who contravenes subsection (5) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.
Applicable reporting period
(7) For the purposes of this section,
applicable reporting period means the month immediately preceding the month in which this section commenced.
(1) The Minister must cause to be conducted a review of the following matters:
(a) the operation of this Part;
(b) the operation of the remaining provisions of this Act to the extent to which they relate to this Part;
(c) the operation of the
Telecommunications Act 1997 to the extent to which that Act relates to this Part;(d) the operation of the
Telecommunications (Regional Broadband Scheme) Charge Act 2020 ;(e) whether this Part should be amended;
(f) whether the remaining provisions of this Act, to the extent to which they relate to this Part, should be amended;
(g) whether the
Telecommunications Act 1997 , to the extent to which that Act relates to this Part, should be amended;(h) whether the
Telecommunications (Regional Broadband Scheme) Charge Act 2020 should be amended.(2) A review under subsection (1) must make provision for public consultation.
(3) A review under subsection (1) must be conducted:
(a) before the end of the period of 4 years after the commencement of this section; or
(b) as soon as practicable after the end of that 4‑year period.
Direction to the ACMA
(4) The Minister may give the ACMA a written direction requiring the ACMA to make available specified information for the purposes of facilitating the conduct of a review under subsection (1).
(5) The ACMA must comply with a direction under subsection (4).
Direction to the ACCC
(6) The Minister may give the ACCC a written direction requiring the ACCC to make available specified information for the purposes of facilitating the conduct of a review under subsection (1).
(7) The ACCC must comply with a direction under subsection (6).
Report
(8) The Minister must cause to be prepared a report of a review under subsection (1).
(9) The Minister must cause copies of the report to be tabled in each House of the Parliament within 25 sittings days of that House after the completion of the preparation of the report.
Scope
(1) This section applies to a determination made under subsection 76AA(2), 79A(1) or (2).
Disallowance
(2) Either House of the Parliament may, following a motion upon notice, pass a resolution disallowing the determination. For the resolution to be effective:
(a) the notice must be given in that House within 15 sitting days of that House after the copy of the determination was tabled in the House under section 38 of the
Legislation Act 2003 ; and(b) the resolution must be passed, in pursuance of the motion, within 15 sitting days of that House after the giving of that notice.
(3) If neither House passes such a resolution, the determination takes effect on the day immediately after the last day upon which such a resolution could have been passed if it were assumed that notice of a motion to disallow the determination was given in each House on the last day of the 15 sitting day period of that House mentioned in paragraph (2)(a).
(3A) If:
(a) notice of a motion to disallow the determination is given in a House of the Parliament within 15 sitting days of that House after the copy of the determination was tabled in that House under section 38 of the
Legislation Act 2003 ; and(b) at the end of 15 sitting days of that House after the giving of that notice of motion:
(i) the notice has not been withdrawn and the motion has not been called on; or
(ii) the motion has been called on, moved and (where relevant) seconded and has not been withdrawn or otherwise disposed of;
the determination is then taken to have been disallowed, and subsection (3) does not apply to the determination.
(4) Section 42 (disallowance) of the
Legislation Act 2003 does not apply to the determination.Note 1: The 15 sitting day notice period mentioned in paragraph (2)(a) of this section is the same as the 15 sitting day notice period mentioned in paragraph 42(1)(a) of the
Legislation Act 2003 .Note 2: The 15 sitting day disallowance period mentioned in paragraph (2)(b) of this section is the same as the 15 sitting day disallowance period mentioned in paragraph 42(1)(b) of the
Legislation Act 2003 .
(1) The Secretary may, by writing, delegate any or all of the Secretary’s functions or powers under this Part to an SES employee, or acting SES employee, in the Department.
Note: The expressions
SES employee andacting SES employee are defined in theActs Interpretation Act 1901 .(2) A delegate must comply with any written directions of the Secretary.
In determining the meaning of the expression
capable when used in:
(a) a provision of this Act (other than this Part); or
(b) the
Telecommunications Act 1997 ;disregard the expression
technically capable when used in section 76AA.
Insert:
Initial provision of mapping data
(1) NBN Co must:
(a) provide to the Secretary the following mapping data about relevant premises connected, or due to be connected, to the national broadband network:
(i) the geographical location of the relevant premises;
(ii) the address of the relevant premises;
(iii) the technology type of the connection to the national broadband network of the relevant premises; and
(b) do so within 30 days after the Secretary gives a direction to NBN Co under subsection (4).
(1A) NBN Co must:
(a) provide to the Secretary the following mapping data about each national broadband network serving area module:
(i) the boundaries and identification code for the national broadband network serving area module;
(ii) the dominant technology type of connections to the national broadband network within the national broadband network serving area module;
(iii) the date on which the majority of premises within the national broadband network serving area module were declared ready for service by NBN Co; and
(b) do so within 150 days after the Secretary gives a direction to NBN Co under subsection (4).
Subsequent provision of mapping data
(2) The Secretary may, by written notice given to NBN Co, direct NBN Co to:
(a) provide to the Secretary the following mapping data about relevant premises connected, or due to be connected, to the national broadband network:
(i) the geographical location of the relevant premises;
(ii) the address of the relevant premises;
(iii) the technology type of the connection to the national broadband network of the relevant premises; and
(b) do so within 30 days after the Secretary gives the direction to NBN Co.
(2A) The Secretary may, by written notice given to NBN Co, direct NBN Co to:
(a) provide to the Secretary the following mapping data about each national broadband network serving area module:
(i) the boundaries and identification code for the national broadband network serving area module;
(ii) the dominant technology type of connections to the national broadband network within the national broadband network serving area module;
(iii) the date on which the majority of premises within the national broadband network serving area module were declared ready for service by NBN Co; and
(b) do so within 90 days after the Secretary gives the direction to NBN Co.
Form of mapping data etc.
(3) Mapping data provided under subsection (1), (1A), (2) or (2A) must be in a form that allows separate maps to be produced for each technology type of connection to the national broadband network.
(4) Within 14 days after the commencement of this section, the Secretary must, by written notice given to NBN Co, direct NBN Co to ensure that mapping data provided by NBN Co under subsection (1) or (1A) complies with specified requirements in relation to any or all of the following matters:
(a) file format or formats;
(b) mapping specifications;
(c) any other matter that relates to the form of the mapping data.
(5) The Secretary may, by written notice given to NBN Co, direct NBN Co to ensure that mapping data provided by NBN Co under subsection (2) or (2A) complies with specified requirements in relation to any or all of the following matters:
(a) file format or formats;
(b) mapping specifications;
(c) any other matter that relates to the form of the mapping data.
Compliance with directions
(6) NBN Co must comply with a direction given by the Secretary under subsection (2), (2A), (4) or (5).
National Map website
(7) Before the end of the 60‑day period beginning when this section commences, the Secretary must arrange for mapping data provided under subsection (1) to be made available on the National Map website ( in colour‑coded format.
(7A) Before the end of the 30‑day period beginning on the day on which the Secretary is provided the mapping data under subsection (1A), the Secretary must arrange for the mapping data to be made available on the National Map website ( in colour‑coded format.
Definitions
(8) In this section:
national broadband network serving area module means a geographical region within NBN Co’s fixed‑line footprint which includes premises that are:
(a) connected to the national broadband network; and
(b) served by any of the following technology types of connection to the national broadband network:
(i) fibre to the building;
(ii) fibre to the premises;
(iii) fibre to the node;
(iv) fibre to the curb;
(v) HFC.
relevant premises means:
(a) planned premises (whether or not construction of the planned premises has commenced); or
(b) existing premises.
Secretary means the Secretary of the Department.
technology type of a connection to the national broadband network means:
(a) fibre to the node; or
(b) fibre to the curb; or
(c) fibre to the premises; or
(d) HFC; or
(e) fixed wireless; or
(f) satellite; or
(g) any other type of technology.
[
(223/19) |
0
0
0