Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2010 (Cth)

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2010

Act No. 140 of 2010 as amended

This compilation was prepared on 7 December 2012

taking into account amendments up to Act No. 136 of 2012

The text of any of those amendments not in force

on that date is appended in the Notes section

The operation of amendments that have been incorporated may be

affected by application provisions that are set out in the Notes section

Prepared by the Office of Parliamentary Counsel, Canberra

Contents

An Act to amend legislation relating to telecommunications, and for other purposes

1Short title [see Note 1]

This Act may be cited as the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2010.

2Commencement

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

Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table	The day this Act receives the Royal Assent.	15 December 2010
1A. Schedule 1, Part 1A	The day after this Act receives the Royal Assent.	16 December 2010
2. Schedule 1, Part 1, Division 1	The later of: (a) the start of the day after this Act receives the Royal Assent; and (b) immediately after the commencement of item 2 of Schedule 5 to the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010.	start of 1 January 2011 (paragraph (b) applies)
3. Schedule 1, Part 1, Division 2	Immediately after a final functional separation undertaking comes into force under Part 9 of Schedule 1 to the Telecommunications Act 1997. The Minister must announce by notice in the Gazette the time when a final functional separation undertaking comes into force under Part 9 of Schedule 1 to the Telecommunications Act 1997.
4. Schedule 1, Part 1, Division 3	Immediately after an undertaking comes into force under section 577A of the Telecommunications Act 1997. The Minister must announce by notice in the Gazette the time when an undertaking comes into force under section 577A of the Telecommunications Act 1997.	6 March 2012 (see Gazette 2012, No. S23)
5. Schedule 1, Parts 2 and 3	The later of: (a) the start of the day after this Act receives the Royal Assent; and (b) immediately after the commencement of item 2 of Schedule 5 to the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010.	start of 1 January 2011 (paragraph (b) applies)
6. Schedule 1, Part 4	The day after the end of the period of 3 months beginning on the day this Act receives the Royal Assent.	15 March 2011
7. Schedule 1, Part 5	The day after the end of the period of 6 months beginning on the day this Act receives the Royal Assent.	15 June 2011
8. Schedule 1, Part 5A	The day after this Act receives the Royal Assent.	16 December 2010
9. Schedule 1, Part 6	The day after the end of the period of 3 months beginning on the day this Act receives the Royal Assent.	15 March 2011
10. Schedule 1, Part 7	The later of: (a) the start of the day after this Act receives the Royal Assent; and (b) immediately after the commencement of item 2 of Schedule 5 to the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010.	start of 1 January 2011 (paragraph (b) applies)
11. Schedule 1, Part 8	The day after this Act receives the Royal Assent.	16 December 2010
12. Schedule 1, Part 9	The day after this Act receives the Royal Assent.	16 December 2010

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.

3Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Note: On 1 January 2011, the short title of the Trade Practices Act 1974 was changed to the Competition and Consumer Act 2010 by the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010.

Schedule 1AmendmentsPart 1AObjects

Telecommunications Act 1997

At the end of subsection 3(1)

Add:
; and (c)
the availability of accessible and affordable carriage services that enhance the welfare of Australians.

Part 1Amendments relating to TelstraDivision 1Amendments commencing on the day after this Act receives the Royal Assent

Radiocommunications Act 1992

After subsection 58(1)

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

At the end of section 60

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

At the end of section 62

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

At the end of section 68

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

Subsection 85(1)

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

Telecommunications Act 1997

Section 7

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

Section 7

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

Section 7

Insert:
draft migration plan means a draft migration plan under Subdivision B of Division 2 of Part 33.

Section 7

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

Section 7

Insert:
final migration plan means a final migration plan under Subdivision B of Division 2 of Part 33.

Section 7

Insert:
hybrid fibre‑coaxial network means a telecommunications network:
(a)
that is for use for the transmission of any broadcasting service; and
(b)
that is also capable of being used to supply an internet carriage service; and
(c)
the line component of which consists of optical fibre to connecting nodes, supplemented by coaxial cable connections from the nodes to the premises of end‑users.

Section 7

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

Section 7

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

Section 7

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

Section 7

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

Section 7

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

After subsection 69(5)

Insert:
(5A)
Subsection (1) does not apply to a condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 577AD, 577CD or 577ED.
Note: Sections 577AD, 577CD and 577ED deal with undertakings given by Telstra.

Before subsection 69(7)

Insert:
(6B)
Subsection (1) does not apply to the condition set out in clause 84 of Schedule 1.
Note: Clause 84 of Schedule 1 deals with control by Telstra of certain spectrum licences.

After subsection 70(2)

Insert:
(2A)
Subsection (1) does not apply to a condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 577AD, 577CD or 577ED.
Note: Sections 577AD, 577CD and 577ED deal with undertakings given by Telstra.

After paragraph 70(5)(a)

Insert:
(aa)
the condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 577AD, 577CD or 577ED;

Before subsection 70(4)

Insert:
(3B)
Subsection (1) does not apply to the condition set out in clause 84 of Schedule 1.
Note: Clause 84 of Schedule 1 deals with control by Telstra of certain spectrum licences.

After paragraph 564(3)(a)

Insert:
(aa)
the carrier licence condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 577AD, 577CD or 577ED; or

Subsection 564(3) (after note 1)

Insert:
Note 1A: Sections 577AD, 577CD and 577ED deal with undertakings given by Telstra.

After paragraph 564(3)(b)

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

Subsection 564(3) (after note 2)

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

After paragraph 571(3)(a)

Insert:
(aa)
the carrier licence condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 577AD, 577CD or 577ED; or

Subsection 571(3) (after note 1)

Insert:
Note 1A: Sections 577AD, 577CD and 577ED deal with undertakings given by Telstra.

After paragraph 571(3)(b)

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

Subsection 571(3) (after note 2)

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

After Part 32

Insert:

Part 33—Voluntary undertakings given by Telstra

Division 1—Introduction

577Simplified outline

The following is a simplified outline of this Part:
• Telstra may give the following undertakings:
(a)
an undertaking about structural separation;
(b)
an undertaking about hybrid fibre‑coaxial networks;
(c)
an undertaking about subscription television broadcasting licences.
• An undertaking comes into force when it is accepted by the ACCC.
• The Minister may, by legislative instrument, determine that the excluded spectrum regime applies to Telstra. If the Minister does so, Telstra will not be allowed to supply services using a designated part of the spectrum unless all 3 undertakings given by Telstra are in force.
• However, the Minister may exempt Telstra from the requirement to have an undertaking about hybrid fibre‑coaxial networks or subscription television broadcasting licences if the Minister is satisfied that Telstra’s undertaking about structural separation is sufficient to address concerns about the degree of Telstra’s power in telecommunications markets.

Division 2—Structural separation

Subdivision A—Undertaking about structural separation

577AAcceptance of undertaking about structural separation

(1)
The ACCC may accept a written undertaking given by Telstra that:
(a)
at all times after the designated day:
(i)
Telstra will not supply fixed‑line carriage services to retail customers in Australia using a telecommunications network over which Telstra is in a position to exercise control; and
(ii)
Telstra will not be in a position to exercise control of a company that supplies fixed‑line carriage services to retail customers in Australia using a telecommunications network over which Telstra is in a position to exercise control; and
(b)
Telstra will, in connection with paragraph (a), take specified action and/or refrain from taking specified action.
Note 1: For when Telstra is in a position to exercise control of a network, see section 577Q.
Note 2: For control of a company, see section 577P.
Transparency and equivalence
(2)
For the purposes of paragraph (1)(b), a matter relating to transparency and equivalence in relation to the supply by Telstra of regulated services to:
(a)
Telstra’s wholesale customers; and
(b)
Telstra’s retail business units;
during the period:
(c)
beginning when the undertaking comes into force; and
(d)
ending at the start of the designated day;
is taken to be a matter that is in connection with paragraph (1)(a).
(3)
The ACCC must not accept an undertaking under this section unless the ACCC is satisfied that:
(a)
the undertaking provides for transparency and equivalence in relation to the supply by Telstra of regulated services to:
(i)
Telstra’s wholesale customers; and
(ii)
Telstra’s retail business units;
during the period:
(iii)
beginning when the undertaking comes into force; and
(iv)
ending at the start of the designated day; and
(b)
the undertaking does so in an appropriate and effective manner.
(4)
In subsections (2) and (3), equivalence, supply, regulated service and retail business unit have the same meaning as in Part 9 of Schedule 1.
Monitoring of compliance
(5)
The ACCC must not accept an undertaking under this section unless the ACCC is satisfied that:
(a)
the undertaking provides for:
(i)
the ACCC to monitor Telstra’s compliance with the undertaking; and
(ii)
Telstra to have systems, procedures and processes that promote and facilitate the ACCC’s monitoring of Telstra’s compliance with the undertaking; and
(b)
the undertaking does so in an appropriate and effective manner.
Matters to which ACCC must have regard
(6)
In deciding whether to accept an undertaking under this section, the ACCC must have regard to:
(a)
the matters set out in an instrument in force under subsection (7); and
(aa)
the national interest in structural reform of the telecommunications industry; and
(ab)
the impact of that structural reform on:
(i)
consumers; and
(ii)
competition in telecommunications markets; and
(b)
such other matters (if any) as the ACCC considers relevant.
(7)
The Minister may, by writing, set out matters for the purposes of paragraph (6)(a).
(7A)
Before making or varying an instrument under subsection (7), the Minister must:
(a)
cause to be published on the Department’s website a notice:
(i)
setting out the draft instrument or variation; and
(ii)
inviting persons to make submissions to the Minister about the draft instrument or variation within 14 days after the notice is published; and
(b)
consider any submissions received within the 14‑day period mentioned in paragraph (a).
(8)
The Minister must take all reasonable steps to ensure that an instrument comes into force under subsection (7) as soon as practicable after the commencement of this section.
(9)
Telstra is not entitled to give an undertaking under this section unless an instrument is in force under subsection (7).
Designated day
(10)
For the purposes of this section, the designated day is:
(a)
1 July 2018; or
(b)
if the Minister, by written instrument, specifies another day—that other day.
(11)
Subsection 33(3) of the Acts Interpretation Act 1901 applies to a power conferred on the Minister by paragraph (10)(b), but it applies with the following changes:
(a)
an instrument made under paragraph (10)(b) cannot be varied;
(b)
an instrument made under paragraph (10)(b) must not be revoked unless:
(i)
a fresh instrument is made under that paragraph; and
(ii)
the fresh instrument specifies a day that is later than the day specified in the revoked instrument.
(12)
If:
(a)
the ACCC has accepted an undertaking given by Telstra under subsection (1); and
(b)
when the undertaking was accepted, a particular day (the relevant day) was the designated day;
the Minister must not make an instrument under paragraph (10)(b) specifying a day earlier than the relevant day.
(13)
Telstra may, before the designated day, request the Minister to:
(a)
if no instrument is in force under paragraph (10)(b)—make an instrument under that paragraph specifying a particular day; or
(b)
if an instrument is in force under paragraph (10)(b):
(i)
revoke that instrument; and
(ii)
make a fresh instrument under that paragraph specifying a particular day that is later than the day specified in the revoked instrument.
(14)
If Telstra gives the Minister a request under subsection (13), the Minister must consider the request.
(15)
However, the Minister is not required to consider the request if the Minister is satisfied that the request:
(a)
is frivolous or vexatious; or
(b)
was not made in good faith.
General provisions
(16)
An undertaking under this section must be expressed to be an undertaking under this section.
(17)
An undertaking under this section may not be withdrawn after it has been accepted by the ACCC.
(18)
If an undertaking under this section 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.
(19)
Part 9 of Schedule 1 does not, by implication, limit the matters that may be included in an undertaking under this section.
Note: Part 9 of Schedule 1 deals with the functional separation of Telstra.
Exemptions
(20)
The Minister may, by legislative instrument, exempt a specified fixed‑line carriage service from the scope of subsection (1) and the associated provisions, either:
(a)
unconditionally; or
(b)
subject to such conditions or limitations as are specified in the instrument.
(21)
The Minister may, by legislative instrument, exempt a specified telecommunications network from the scope of subsection (1) and the associated provisions, either:
(a)
unconditionally; or
(b)
subject to such conditions or limitations as are specified in the instrument.
(22)
The Minister must cause a copy of an instrument under subsection (7) or paragraph (10)(b) to be published on the Department’s website.
(23)
An instrument under subsection (7) or paragraph (10)(b) is not a legislative instrument.
Definitions
(24)
In this section:
associated provision means:
(a)
subsection 577BA(11); or
(b)
subsection 577BC(2).
fixed‑line carriage service means:
(a)
a carriage service that is supplied using a line to premises occupied or used by an end‑user; or
(b)
a service that facilitates the supply of a carriage service covered by paragraph (a).
telecommunications market has the same meaning as in Part XIB of the Competition and Consumer Act 2010.

577AAAcceptance of undertaking about structural separation may be subject to the occurrence of events

(1)
If:
(a)
Telstra has, in a document accompanying an undertaking under section 577A, nominated one or more events; and
(b)
the nomination is expressed to be a nomination under this subsection; and
(c)
each of those events is:
(i)
the passage of a resolution covered by subparagraph 411(4)(a)(ii) of the Corporations Act 2001; or
(ii)
an approval covered by paragraph 411(4)(b) of that Act; or
(iii)
the passage of a resolution, where Telstra’s members (within the meaning of that Act) were entitled to vote on the resolution; or
(iv)
an approval covered by Chapter 11 of the ASX Listing Rules; or
(v)
the granting of a waiver under rule 18.1 of the ASX Listing Rules; or
(vi)
the approval of a draft migration plan by the ACCC under section 577BDA or 577BDC; or
(vii)
the making of a declaration under subsection 577J(3); or
(viii)
the making of a declaration under subsection 577J(5); or
(ix)
an event specified in an instrument in force under subsection (3); and
(d)
the ACCC decides to accept the undertaking;
the decision to accept the undertaking must be expressed to be subject to the occurrence of those events within a specified period after the undertaking is accepted.
(2)
A nomination under subsection (1) must not specify an event by reference to the timing of the event.
(3)
The Minister may, by writing, specify events for the purposes of subparagraph (1)(c)(ix).
(4)
A period specified by the ACCC under subsection (1) must be:
(a)
6 months; or
(b)
if another period is specified in an instrument under subsection (5)—that period.
(5)
The Minister may, by writing, specify a period for the purposes of paragraph (4)(b).
Notification requirement
(6)
If:
(a)
a decision to accept an undertaking under section 577A is expressed to be subject to the occurrence of one or more specified events within a specified period; and
(b)
such an event occurs within that period;
Telstra must notify the ACCC in writing of the occurrence of the event as soon as practicable after the occurrence.
(6A)
Subsection (6) does not apply to an event mentioned in subparagraph (1)(c)(vi).
If event does not occur
(7)
If:
(a)
a decision to accept an undertaking under section 577A is expressed to be subject to the occurrence of a single specified event within a specified period; and
(b)
the event does not occur within that period;
this Act (other than subclause 76(4) of Schedule 1) has effect as if the undertaking had never been accepted by the ACCC.
(8)
If:
(a)
a decision to accept an undertaking under section 577A is expressed to be subject to the occurrence of 2 or more specified events within a specified period; and
(b)
one or more of those events do not occur within that period;

this Act (other than subclause 76(4) of Schedule 1) has effect as if the undertaking had never been accepted by the ACCC.
Publication requirement
(9)
The Minister must cause a copy of an instrument under subsection (3) or (5) to be published on the Department’s website.
Instruments are not legislative instruments
(10)
An instrument under subsection (3) or (5) is not a legislative instrument.

577ABWhen undertaking about structural separation comes into force

An undertaking under section 577A comes into force:
(a)
if:
(i)
the decision to accept the undertaking is expressed to be subject to the occurrence of a single specified event within a specified period; and
(ii)
the event occurs within that period;
when the event occurs; or
(b)
if:
(i)
the decision to accept the undertaking is expressed to be subject to the occurrence of 2 or more specified events within a specified period; and
(ii)
each of those events occur at the same time; and
(iii)
that time occurs within that period;
at that time; or
(c)
if:
(i)
the decision to accept the undertaking is expressed to be subject to the occurrence of 2 or more specified events within a specified period; and
(ii)
each of those events occur at different times; and
(iii)
each of those times occur within that period;
at the last of those times; or
(d)
if the decision to accept the undertaking is not expressed to be subject to the occurrence of one or more specified events within a specified period—when the undertaking is accepted by the ACCC.

577ACPublication requirements for undertaking about structural separation

(1)
If a decision to accept an undertaking under section 577A is expressed to be subject to the occurrence of one or more specified events within a specified period, the ACCC must:
(a)
as soon as practicable after making the decision, publish on its website:
(i)
the undertaking; and
(ii)
the terms of the decision; and
(b)
as soon as practicable after the ACCC becomes aware that the undertaking has come into force, publish on its website a notice announcing that the undertaking has come into force.
(2)
If a decision to accept an undertaking under section 577A is not expressed to be subject to the occurrence of one or more specified events within a specified period, the ACCC must, as soon as practicable after accepting the undertaking, publish the undertaking on its website.

577ADCompliance with undertaking about structural separation

If an undertaking given by Telstra is in force under section 577A, Telstra must comply with the undertaking.

577BVariation of undertaking about structural separation

(1)
This section applies if an undertaking given by Telstra is in force under section 577A.
(2)
Telstra may give the ACCC a variation of the undertaking, in so far as the undertaking:
(a)
is covered by paragraph 577A(1)(b); and
(b)
does not consist of provisions of a final migration plan.
Note: For variation of a final migration plan, see section 577BF.
(3)
After considering the variation, the ACCC must decide to:
(a)
accept the variation; or
(b)
reject the variation.
(4)
In deciding whether to accept the variation, the ACCC must have regard to:
(a)
the matters (if any) set out in an instrument in force under subsection (5); and
(b)
such other matters (if any) as the ACCC considers relevant.
(5)
The Minister may, by writing, set out matters for the purposes of paragraph (4)(a).
(5A)
Before making or varying an instrument under subsection (5), the Minister must:
(a)
cause to be published on the Department’s website a notice:
(i)
setting out the draft instrument or variation; and
(ii)
inviting persons to make submissions to the Minister about the draft instrument or variation within 14 days after the notice is published; and
(b)
consider any submissions received within the 14‑day period mentioned in paragraph (a).
(6)
The variation takes effect when it is accepted by the ACCC.
(7)
As soon as practicable after the variation takes effect, the ACCC must publish the variation on its website.
(8)
The Minister must cause a copy of an instrument under subsection (5) to be published on the Department’s website.
(9)
An instrument under subsection (5) is not a legislative instrument.

577BAAuthorised conduct—subsection 51(1) of the Competition and Consumer Act 2010

Object
(1)
The object of this section is to promote the national interest in structural reform of the telecommunications industry by authorising, for the purposes of subsection 51(1) of the Competition and Consumer Act 2010, certain conduct engaged in by:
(a)
Telstra; and
(b)
NBN corporations; and
(c)
certain other persons.
Note: If conduct is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010, the conduct is disregarded in deciding whether a person has contravened Part IV of that Act.
Authorised conduct
(2)
The giving by Telstra of:
(a)
an undertaking under section 577A; or
(b)
a variation of an undertaking in force under section 577A; or
(c)
a draft migration plan in accordance with an undertaking in force under section 577A; or
(d)
a variation of a final migration plan;
is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010.
(3)
If:
(a)
Telstra enters into a contract, arrangement or understanding with an NBN corporation; and
(b)
when the contract, arrangement or understanding is entered into, no undertaking is in force under section 577A; and
(c)
the operative provisions of the contract, arrangement or understanding are subject to a condition precedent, namely, the coming into force of an undertaking under section 577A;
then:
(d)
the entering into of the contract, arrangement or understanding by Telstra is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010; and
(e)
the entering into of the contract, arrangement or understanding by the NBN corporation is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010; and
(f)
if:
(i)
the undertaking under section 577A comes into force; and
(ii)
if the contract, arrangement or understanding was in writing—before the undertaking was accepted by the ACCC, Telstra or the NBN corporation gave the ACCC a copy of the contract, arrangement or understanding; and
(iii)
if the contract, arrangement or understanding was not in writing—before the undertaking was accepted by the ACCC, the contract, arrangement or understanding was reduced to writing and Telstra or the NBN corporation gave the ACCC a copy of the contract, arrangement or understanding;
then:
(iv)
conduct engaged in by Telstra or the NBN corporation after the undertaking comes into force in order to give effect to a provision of the contract, arrangement or understanding is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010; and
(v)
conduct engaged in by another NBN corporation after the undertaking comes into force in order to facilitate the first‑mentioned NBN corporation giving effect to a provision of the contract, arrangement or understanding is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010.
(4)
If:
(a)
Telstra enters into a contract, arrangement or understanding with an NBN corporation; and
(b)
the contract, arrangement or understanding contains a migration provision; and
(c)
when the contract, arrangement or understanding is entered into, no undertaking is in force under section 577A;
then:
(d)
the entering into of the contract, arrangement or understanding by Telstra is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010, to the extent to which the contract, arrangement or understanding contains the migration provision; and
(e)
the entering into of the contract, arrangement or understanding by the NBN corporation is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010, to the extent to which the contract, arrangement or understanding contains the migration provision.
(5)
If:
(a)
Telstra enters into a contract, arrangement or understanding with an NBN corporation; and
(b)
the contract, arrangement or understanding contains a migration provision; and
(c)
Telstra or the NBN corporation engages in conduct in order to give effect to the migration provision; and
(d)
when the conduct is engaged in, no undertaking is in force under section 577A;
the conduct is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010 unless, before the conduct was engaged in:
(e)
the ACCC refused to accept the most recent undertaking given by Telstra under section 577A; or
(f)
as a result of subsection 577AA(7) or (8), this Act (other than subclause 76(4) of Schedule 1) had effect as if the most recent undertaking given by Telstra under section 577A had never been accepted by the ACCC; or
(g)
a final functional separation undertaking came into force.
(6)
If Telstra is required to engage in conduct in order to comply with an undertaking in force under section 577A, the conduct is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010.
(7)
If:
(a)
a person directly or indirectly acquires an asset from Telstra; and
(b)
the disposal of the asset by Telstra is required for the compliance by Telstra with an undertaking in force under section 577A; and
(c)
the person is identified in the undertaking as the person by whom the asset is to be directly or indirectly acquired;
the acquisition of the asset is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010.
(8)
If:
(a)
Telstra enters into a contract, arrangement or understanding with an NBN corporation; and
(b)
Telstra enters into the contract, arrangement or understanding in order to comply with an undertaking in force under section 577A;
then:
(c)
the entering into of the contract, arrangement or understanding by Telstra; and
(d)
the entering into of the contract, arrangement or understanding by the NBN corporation; and
(e)
conduct engaged in by Telstra or the NBN corporation in order to give effect to a provision of the contract, arrangement or understanding; and
(f)
conduct engaged in by another NBN corporation in order to facilitate the first‑mentioned NBN corporation giving effect to a provision of the contract, arrangement or understanding;
is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010.
(9)
If:
(a)
an undertaking given by Telstra is in force under section 577A; and
(b)
Telstra enters into a contract, arrangement or understanding with an NBN corporation;
the Minister may, by legislative instrument, determine that subsection (8) applies, and is taken to have always applied, as if Telstra had entered into the contract, arrangement or understanding in order to comply with the undertaking.
(10)
If:
(a)
a final migration plan is in force; and
(b)
the final migration plan sets out a method for determining a timetable for the taking of the action specified in the plan in accordance with paragraph 577BC(2)(a); and
(c)
Telstra or an NBN corporation engages in conduct for the purposes of determining the timetable; and
(d)
the conduct is consistent with the method;
the conduct is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010.
Migration provisions
(11)
If:
(a)
Telstra enters into a contract, arrangement or understanding with an NBN corporation; and
(b)
the contract, arrangement or understanding contains one or more provisions for:
(i)
Telstra to cease to supply fixed‑line carriage services to customers using a telecommunications network over which Telstra is in a position to exercise control; or
(ii)
Telstra to cease to supply one or more types of fixed‑line carriage services to customers using a telecommunications network over which Telstra is in a position to exercise control; or
(iii)
Telstra to cease to supply, in particular circumstances, one or more types of fixed‑line carriage services to customers using a telecommunications network over which Telstra is in a position to exercise control; or
(iv)
Telstra to commence to supply fixed‑line carriage services to customers using the national broadband network;
then:
(c)
each of the provisions mentioned in paragraph (b) is a migration provision; and
(d)
if the contract, arrangement or understanding contains one or more provisions for Telstra to supply services to an NBN corporation in connection with any or all of the matters mentioned in paragraph (b)—each of those provisions is a migration provision; and
(e)
if the contract, arrangement or understanding contains one or more provisions for an NBN corporation to supply services to Telstra in connection with any or all of the matters mentioned in paragraph (b)—each of those provisions is a migration provision; and
(f)
if the contract, arrangement or understanding contains one or more provisions for Telstra to give information to an NBN corporation in connection with any or all of the matters mentioned in paragraph (b)—each of those provisions is a migration provision; and
(g)
if the contract, arrangement or understanding contains one or more provisions for an NBN corporation to give information to Telstra in connection with any or all of the matters mentioned in paragraph (b)—each of those provisions is a migration provision.
Definitions
(12)
In this section:
asset means:
(a)
any legal or equitable estate or interest in real or personal property, including a contingent or prospective one; and
(b)
any right, privilege or immunity, including a contingent or prospective one.
enter into:
(a)
when used in relation to an arrangement—includes make; or
(b)
when used in relation to an understanding—includes arrive at or reach.
fixed‑line carriage service means:
(a)
a carriage service that is supplied using a line to premises occupied or used by an end‑user; or
(b)
a service that facilitates the supply of a carriage service covered by paragraph (a).
give effect to, in relation to a provision of a contract, arrangement or understanding, has the same meaning as in the Competition and Consumer Act 2010.
migration provision has the meaning given by subsection (11).
national broadband network means a telecommunications network for the high‑speed carriage of communications, where an NBN corporation has been, is, or is to be, involved in the creation or development of the network.
NBN Co means NBN Co Limited (ACN 136 533 741), as the company exists from time to time (even if its name is later changed).
NBN corporation means:
(a)
NBN Co; or
(b)
NBN Tasmania; or
(c)
a company that is a related body corporate of NBN Co.
NBN Tasmania means NBN Tasmania Limited (ACN 138 338 271), as the company exists from time to time (even if its name is later changed).
related body corporate has the same meaning as in the Corporations Act 2001.

Subdivision B—Migration plan

577BBMigration plan principles

(1)
The Minister may, by writing, determine that specified principles are migration plan principles for the purposes of this Act.
Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
Consultation
(2)
Before making or varying a determination under subsection (1), the Minister must:
(a)
cause to be published on the Department’s website a notice:
(i)
setting out the draft determination or variation; and
(ii)
inviting persons to make submissions to the Minister about the draft determination or variation within 14 days after the notice is published; and
(b)
consider any submissions received within the 14‑day period mentioned in paragraph (a).
Publication requirement
(3)
The Minister must cause a copy of a determination under subsection (1) to be published on the Department’s website.
Determination is not a legislative instrument
(4)
A determination under subsection (1) is not a legislative instrument.

577BCMigration plan

(1)
The specified action first mentioned in paragraph 577A(1)(b) may include giving the ACCC a draft migration plan after the relevant undertaking has come into force.
(2)
A draft or final migration plan must:
(a)
specify the action to be taken by Telstra to:
(i)
cease to supply fixed‑line carriage services to customers using a telecommunications network over which Telstra is in a position to exercise control; and
(ii)
commence to supply fixed‑line carriage services to customers using the national broadband network; and
(b)
either:
(i)
set out a timetable for the taking of that action; or
(ii)
set out a method for determining a timetable for the taking of that action.
(3)
A draft or final migration plan may contain provisions dealing with such other matters (if any) as are specified in a written instrument made by the Minister.
(4)
A draft or final migration plan must not contain provisions dealing with such matters (if any) as are specified in a written instrument made by the Minister.
Migration plan principles
(5)
A draft migration plan must not be given to the ACCC unless a determination is in force under subsection 577BB(1).
Publication requirement
(6)
The Minister must cause a copy of an instrument under subsection (3) or (4) to be published on the Department’s website.
Instrument is not a legislative instrument
(7)
An instrument under subsection (3) or (4) is not a legislative instrument.
Definitions
(8)
In this section:
fixed‑line carriage service means:
(a)
a carriage service that is supplied using a line to premises occupied or used by an end‑user; or
(b)
a service that facilitates the supply of a carriage service covered by paragraph (a).
national broadband network means a telecommunications network for the high‑speed carriage of communications, where an NBN corporation has been, is, or is to be, involved in the creation or development of the network.
NBN Co means NBN Co Limited (ACN 136 533 741), as the company exists from time to time (even if its name is later changed).
NBN corporation means:
(a)
NBN Co; or
(b)
NBN Tasmania; or
(c)
a company that is a related body corporate of NBN Co.
NBN Tasmania means NBN Tasmania Limited (ACN 138 338 271), as the company exists from time to time (even if its name is later changed).
related body corporate has the same meaning as in the Corporations Act 2001.

577BDApproval of draft migration plan by the ACCC—plan given after undertaking about structural separation comes into force

Scope
(1)
This section applies if Telstra gives the ACCC a draft migration plan (the original plan) in accordance with an undertaking in force under section 577A.
Decision
(2)
The ACCC must:
(a)
if the ACCC is satisfied that the original plan complies with the migration plan principles—approve the original plan; or
(b)
otherwise:
(i)
refuse to approve the original plan; and
(ii)
by written notice given to Telstra, direct Telstra to give the ACCC, within 30 days after the notice is given, a replacement draft migration plan that complies with the migration plan principles.
Note: For migration plan principles, see section 577BB.
Consultation
(3)
Before making a decision under subsection (2), the ACCC must:
(a)
cause to be published on the ACCC’s website a notice:
(i)
setting out the original plan; and
(ii)
inviting persons to make submissions to the ACCC about the original plan within 28 days after the notice is published; and
(b)
cause to be published on the ACCC’s website a copy of each submission received within the 28‑day period mentioned in paragraph (a); and
(c)
consider any submissions received within the 28‑day period mentioned in paragraph (a).
Compliance with direction
(4)
Telstra must comply with a direction under subparagraph (2)(b)(ii).
Note: The ACCC will make a decision about the plan under section 577BDB.
Replacement plan to be treated as if it had been given in accordance with the undertaking
(5)
A draft migration plan given by Telstra in compliance with a direction under subparagraph (2)(b)(ii) is taken, for the purposes of this Act (other than this section and section 577BDB), to be given in accordance with the undertaking.
Notification of decision
(6)
As soon as practicable after making a decision under subsection (2), the ACCC must notify Telstra in writing of the decision.

577BDAApproval of draft migration plan by the ACCC—plan given before undertaking about structural separation comes into force

(1)
If:
(a)
Telstra gives the ACCC an undertaking under section 577A; and

(b)
the specified action first mentioned in paragraph 577A(1)(b) consists of, or includes, giving the ACCC a draft migration plan after the undertaking has come into force; and
(c)
the following conditions are satisfied:
(i)
Telstra has, in a document accompanying the undertaking, nominated the event mentioned in subparagraph 577AA(1)(c)(vi);
(ii)
the nomination meets the requirements of paragraph 577AA(1)(b) and subsection 577AA(2);
Telstra may give the ACCC a draft migration plan (the original plan) during the period:
(d)
beginning when Telstra gives the ACCC the undertaking; and
(e)
ending when the undertaking comes into force;
as if the undertaking had come into force.
Decision
(2)
The ACCC must:
(a)
if the ACCC is satisfied that the original plan complies with the migration plan principles—approve the original plan; or
(b)
otherwise:
(i)
refuse to approve the original plan; and
(ii)
by written notice given to Telstra, request Telstra to give the ACCC, within 30 days after the notice is given, a replacement draft migration plan that complies with the migration plan principles.
Note 1: For migration plan principles, see section 577BB.
Note 2: If Telstra gives the ACCC a replacement draft migration plan in response to the request, the ACCC will make a decision about the plan under section 577BDC.
(3)
The ACCC must not make a decision under subsection (2) before it accepts the undertaking.
(4)
After the undertaking comes into force, this Act (other than section 577BD and this section) has effect as if the original plan had been given to the ACCC in accordance with the undertaking.
Consultation
(5)
Before making a decision under subsection (2), the ACCC must:
(a)
cause to be published on the ACCC’s website a notice:
(i)
setting out the original plan; and
(ii)
inviting persons to make submissions to the ACCC about the original plan within 28 days after the notice is published; and
(b)
cause to be published on the ACCC’s website a copy of each submission received within the 28‑day period mentioned in paragraph (a); and
(c)
consider any submissions received within the 28‑day period mentioned in paragraph (a).
Replacement plan to be treated as if it had been given in accordance with the undertaking
(6)
A draft migration plan given by Telstra in response to a request under subparagraph (2)(b)(ii) is taken, for the purposes of this Act (other than sections 577BD, 577BDB and 577BDC and this section), to be given in accordance with the undertaking.
Notification of decision
(7)
As soon as practicable after making a decision under subsection (2), the ACCC must notify Telstra in writing of the decision.

577BDBApproval of draft migration plan by the ACCC—plan given in compliance with a direction

Scope
(1)
This section applies if:
(a)
Telstra has given the ACCC an undertaking under section 577A; and
(b)
Telstra gives the ACCC a draft migration plan (the original plan) in compliance with a direction under:
(i)
subparagraph 577BD(2)(b)(ii); or
(ii)
subparagraph (2)(b)(ii) of this section.
Decision
(2)
The ACCC must:
(a)
if the ACCC is satisfied that the original plan complies with the migration plan principles—approve the original plan; or
(b)
otherwise:
(i)
refuse to approve the original plan; and
(ii)
by written notice given to Telstra, direct Telstra to give the ACCC, within 30 days after the notice is given, a replacement draft migration plan that complies with the migration plan principles.
Note: For migration plan principles, see section 577BB.
Consultation
(3)
Before making a decision under subsection (2), the ACCC must:
(a)
cause to be published on the ACCC’s website a notice:
(i)
setting out the original plan; and
(ii)
inviting persons to make submissions to the ACCC about the original plan within 28 days after the notice is published; and
(b)
cause to be published on the ACCC’s website a copy of each submission received within the 28‑day period mentioned in paragraph (a); and
(c)
consider any submissions received within the 28‑day period mentioned in paragraph (a).
Compliance with direction
(4)
Telstra must comply with a direction under subparagraph (2)(b)(ii).
Note: The ACCC will make a decision about the plan under subsection (2).
Replacement plan to be treated as if it had been given in accordance with the undertaking
(5)
A draft migration plan given by Telstra in compliance with a direction under subparagraph (2)(b)(ii) is taken, for the purposes of this Act (other than sections 577BD, 577BDA and 577BDC and this section), to be given in accordance with the undertaking.
Notification of decision
(6)
As soon as practicable after making a decision under subsection (2), the ACCC must notify Telstra in writing of the decision.

577BDCApproval of draft migration plan by the ACCC—plan given in response to a request

Scope
(1)
This section applies if:
(a)
Telstra gives the ACCC an undertaking under section 577A; and
(b)
Telstra gives the ACCC a draft migration plan (the original plan) in response to a request under:
(i)
subparagraph 577BDA(2)(b)(ii); or
(ii)
subparagraph (2)(b)(ii) of this section.
Decision
(2)
The ACCC must:
(a)
if the ACCC is satisfied that the original plan complies with the migration plan principles—approve the original plan; or
(b)
otherwise:
(i)
refuse to approve the original plan; and
(ii)
by written notice given to Telstra, request Telstra to give the ACCC, within 30 days after the notice is given, a replacement draft migration plan that complies with the migration plan principles.
Note 1: For migration plan principles, see section 577BB.
Note 2: If Telstra gives the ACCC a replacement draft migration plan in response to the request, the ACCC will make a decision about the plan under this section.
Consultation
(3)
Before making a decision under subsection (2), the ACCC must:
(a)
cause to be published on the ACCC’s website a notice:
(i)
setting out the original plan; and
(ii)
inviting persons to make submissions to the ACCC about the original plan within 28 days after the notice is published; and
(b)
cause to be published on the ACCC’s website a copy of each submission received within the 28‑day period mentioned in paragraph (a); and
(c)
consider any submissions received within the 28‑day period mentioned in paragraph (a).
Plan to be treated as if it had been given in accordance with the undertaking
(4)
A draft migration plan given by Telstra in response to a request under subparagraph (2)(b)(ii) is taken, for the purposes of this Act (other than sections 577BD, 577BDA and 577BDB and this section), to be given in accordance with the undertaking.
Notification of decision
(5)
As soon as practicable after making a decision under subsection (2), the ACCC must notify Telstra in writing of the decision.

577BEEffect of approval of draft migration plan

(1)
If the ACCC approves a draft migration plan, the plan becomes a final migration plan.
(2)
If the ACCC approves a draft migration plan under subsection 577BD(2), the plan comes into force at the start of the day after notice of the decision to approve the plan is given to Telstra in accordance with subsection 577BD(6).
(3)
If the ACCC approves a draft migration plan under subsection 577BDA(2), 577BDB(2) or 577BDC(2), the plan comes into force at the later of:
(a)
the start of the day after notice of the decision to approve the plan is given to Telstra in accordance with subsection 577BDA(7), 577BDB(6) or 577BDC(5), as the case requires; or
(b)
when the relevant undertaking under section 577A comes into force.
(4)
A final migration plan may not be withdrawn.
(5)
When a final migration plan comes into force, the relevant undertaking under section 577A has effect as if the provisions of the plan were provisions of the undertaking.
Publication requirement
(6)
As soon as practicable after a final migration plan comes into force, the ACCC must publish a copy of the plan on the ACCC’s website.
ACCC’s functions and powers
(7)
If a final migration plan provides for the ACCC to perform functions or exercise powers in relation to the plan, the ACCC may perform those functions, and exercise those powers, in accordance with the plan.
Plan is not a legislative instrument
(8)
A final migration plan is not a legislative instrument.

577BFVariation of final migration plan

(1)
This section applies if a final migration plan is in force.
(2)
Telstra may give the ACCC a variation of the final migration plan.
(3)
The ACCC must:
(a)
if the ACCC is satisfied that the final migration plan as varied complies with the migration plan principles—approve the variation; or
(b)
otherwise—refuse to approve the variation.
Consultation
(4)
Before making a decision under subsection (3), the ACCC must:
(a)
cause to be published on the ACCC’s website a notice:
(i)
setting out the variation; and
(ii)
inviting persons to make submissions to the ACCC about the variation within 28 days after the notice is published; and
(b)
cause to be published on the ACCC’s website a copy of each submission received within the 28‑day period mentioned in paragraph (a); and
(c)
consider any submissions received within the 28‑day period mentioned in paragraph (a).
(5)
Subsection (4) does not apply to a variation if the variation is of a minor nature.
When variation takes effect
(6)
The variation takes effect when it is approved by the ACCC.
(7)
When the variation takes effect, the relevant undertaking under section 577A has effect as if the provisions of the final migration plan as varied were provisions of the undertaking.
(8)
As soon as practicable after the variation takes effect, the ACCC must publish a copy of the variation on the ACCC’s website.

Division 3—Hybrid fibre‑coaxial networks

577CAcceptance of undertaking about hybrid fibre‑coaxial networks

(1)
The ACCC may accept a written undertaking given by Telstra that:
(a)
at all times after the end of the period specified in the undertaking, Telstra will not be in a position to exercise control of a hybrid fibre‑coaxial network in Australia; and
(b)
Telstra will, in connection with paragraph (a), take specified action and/or refrain from taking specified action.
Note: For when Telstra is in a position to exercise control of a network, see section 577Q.
(1A)
In deciding whether to accept an undertaking under subsection (1), the ACCC must have regard to:
(a)
the matters (if any) set out in an instrument in force under subsection (1B); and
(b)
such other matters (if any) as the ACCC considers relevant.
(1B)
The Minister may, by writing, set out matters for the purposes of paragraph (1A)(a).
(1C)
Before making or varying an instrument under subsection (1B), the Minister must:
(a)
cause to be published on the Department’s website a notice:
(i)
setting out the draft instrument or variation; and
(ii)
inviting persons to make submissions to the Minister about the draft instrument or variation within 14 days after the notice is published; and
(b)
consider any submissions received within the 14‑day period mentioned in paragraph (a).
(2)
The period specified in the undertaking as mentioned in paragraph (1)(a) must not be longer than 12 months.
(3)
The undertaking must be expressed to be an undertaking under this section.
(4)
The undertaking may not be withdrawn after it has been accepted by the ACCC.
(5)
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.
(6)
The Minister must cause a copy of an instrument under subsection (1B) to be published on the Department’s website.
(7)
An instrument under subsection (1B) is not a legislative instrument.

577CAAcceptance of undertaking about hybrid fibre‑coaxial networks may be subject to the occurrence of events

(1)
If:
(a)
Telstra has, in a document accompanying an undertaking under section 577C, nominated one or more events; and
(b)
the nomination is expressed to be a nomination under this subsection; and
(c)
each of those events is:
(i)
the passage of a resolution covered by subparagraph 411(4)(a)(ii) of the Corporations Act 2001; or
(ii)
an approval covered by paragraph 411(4)(b) of that Act; or
(iii)
the passage of a resolution, where Telstra’s members (within the meaning of that Act) were entitled to vote on the resolution; or
(iv)
an approval covered by Chapter 11 of the ASX Listing Rules; or
(v)
the granting of a waiver under rule 18.1 of the ASX Listing Rules; or
(vi)
the making of a declaration under subsection 577J(5); or
(vii)
an event specified in an instrument in force under subsection (3); and
(d)
the ACCC decides to accept the undertaking;
the decision to accept the undertaking must be expressed to be subject to the occurrence of those events within a specified period after the undertaking is accepted.
(2)
A nomination under subsection (1) must not specify an event by reference to the timing of the event.
(3)
The Minister may, by writing, specify events for the purposes of subparagraph (1)(c)(vii).
(4)
A period specified by the ACCC under subsection (1) must be:
(a)
6 months; or
(b)
if another period is specified in an instrument under subsection (5)—that period.
(5)
The Minister may, by writing, specify a period for the purposes of paragraph (4)(b).
Notification requirement
(6)
If:
(a)
a decision to accept an undertaking under section 577C is expressed to be subject to the occurrence of one or more specified events within a specified period; and
(b)
such an event occurs within that period;
Telstra must notify the ACCC in writing of the occurrence of the event as soon as practicable after the occurrence.
If event does not occur
(7)
If:
(a)
a decision to accept an undertaking under section 577C is expressed to be subject to the occurrence of a single specified event within a specified period; and
(b)
the event does not occur within that period;
this Act has effect as if the undertaking had never been accepted by the ACCC.
(8)
If:
(a)
a decision to accept an undertaking under section 577C is expressed to be subject to the occurrence of 2 or more specified events within a specified period; and
(b)
one or more of those events do not occur within that period;
this Act has effect as if the undertaking had never been accepted by the ACCC.
Publication requirement
(9)
The Minister must cause a copy of an instrument under subsection (3) or (5) to be published on the Department’s website.
Instruments are not legislative instruments
(10)
An instrument under subsection (3) or (5) is not a legislative instrument.

577CBWhen undertaking about hybrid fibre‑coaxial networks comes into force

An undertaking under section 577C comes into force:
(a)
if:
(i)
the decision to accept the undertaking is expressed to be subject to the occurrence of a single specified event within a specified period; and
(ii)
the event occurs within that period;
when the event occurs; or
(b)
if:
(i)
the decision to accept the undertaking is expressed to be subject to the occurrence of 2 or more specified events within a specified period; and
(ii)
each of those events occur at the same time; and
(iii)
that time occurs within that period;
at that time; or
(c)
if:
(i)
the decision to accept the undertaking is expressed to be subject to the occurrence of 2 or more specified events within a specified period; and
(ii)
each of those events occur at different times; and
(iii)
each of those times occur within that period;
at the last of those times; or
(d)
if the decision to accept the undertaking is not expressed to be subject to the occurrence of one or more specified events within a specified period—when the undertaking is accepted by the ACCC.

577CCPublication requirements for undertaking about hybrid fibre‑coaxial networks

(1)
If a decision to accept an undertaking under section 577C is expressed to be subject to the occurrence of one or more specified events within a specified period, the ACCC must:
(a)
as soon as practicable after making the decision, publish on its website:
(i)
the undertaking; and
(ii)
the terms of the decision; and
(b)
as soon as practicable after the ACCC becomes aware that the undertaking has come into force, publish on its website a notice announcing that the undertaking has come into force.
(2)
If a decision to accept an undertaking under section 577C is not expressed to be subject to the occurrence of one or more specified events within a specified period, the ACCC must, as soon as practicable after accepting the undertaking, publish the undertaking on its website.

577CDCompliance with undertaking about hybrid fibre‑coaxial networks

If an undertaking given by Telstra is in force under section 577C, Telstra must comply with the undertaking.

577DVariation of undertaking about hybrid fibre‑coaxial networks

(1)
This section applies if an undertaking given by Telstra is in force under section 577C.
(2)
Telstra may give the ACCC a variation of the undertaking in so far as the undertaking is covered by paragraph 577C(1)(b).
(3)
After considering the variation, the ACCC must decide to:
(a)
accept the variation; or
(b)
reject the variation.
(3A)
In deciding whether to accept the variation, the ACCC must have regard to:
(a)
the matters (if any) set out in an instrument in force under subsection (3B); and
(b)
such other matters (if any) as the ACCC considers relevant.
(3B)
The Minister may, by writing, set out matters for the purposes of paragraph (3A)(a).
(3C)
Before making or varying an instrument under subsection (3B), the Minister must:
(a)
cause to be published on the Department’s website a notice:
(i)
setting out the draft instrument or variation; and
(ii)
inviting persons to make submissions to the Minister about the draft instrument or variation within 14 days after the notice is published; and
(b)
consider any submissions received within the 14‑day period mentioned in paragraph (a).
(4)
The variation takes effect when it is accepted by the ACCC.
(5)
As soon as practicable after the variation takes effect, the ACCC must publish the variation on its website.
(6)
The Minister must cause a copy of an instrument under subsection (3B) to be published on the Department’s website.
(7)
An instrument under subsection (3B) is not a legislative instrument.

Division 4—Subscription television broadcasting licences

577EAcceptance of undertaking about subscription television broadcasting licences

(1)
The ACCC may accept a written undertaking given by Telstra that:
(a)
at all times after the end of the period specified in the undertaking, Telstra will not be in a position to exercise control of a subscription television broadcasting licence; and
(b)
Telstra will, in connection with paragraph (a), take specified action and/or refrain from taking specified action.
Note: For when Telstra is in a position to exercise control of a subscription television broadcasting licence, see subsection (7).
(1A)
In deciding whether to accept an undertaking under subsection (1), the ACCC must have regard to:
(a)
the matters (if any) set out in an instrument in force under subsection (1B); and
(b)
such other matters (if any) as the ACCC considers relevant.
(1B)
The Minister may, by writing, set out matters for the purposes of paragraph (1A)(a).
(1C)
Before making or varying an instrument under subsection (1B), the Minister must:
(a)
cause to be published on the Department’s website a notice:
(i)
setting out the draft instrument or variation; and
(ii)
inviting persons to make submissions to the Minister about the draft instrument or variation within 14 days after the notice is published; and
(b)
consider any submissions received within the 14‑day period mentioned in paragraph (a).
(2)
The period specified in the undertaking as mentioned in paragraph (1)(a) must not be longer than 12 months.
(3)
The undertaking must be expressed to be an undertaking under this section.
(4)
The undertaking may not be withdrawn after it has been accepted by the ACCC.
(5)
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.
(6)
For the purposes of this section, the question of whether Telstra is in a position to exercise control of a subscription television broadcasting licence is to be determined under Schedule 1 to the Broadcasting Services Act 1992.
(7)
The Minister must cause a copy of an instrument under subsection (1B) to be published on the Department’s website.

(8)
An instrument under subsection (1B) is not a legislative instrument.

577EAAcceptance of undertaking about subscription television broadcasting licences may be subject to the occurrence of events

(1)
If:
(a)
Telstra has, in a document accompanying an undertaking under section 577E, nominated one or more events; and
(b)
the nomination is expressed to be a nomination under this subsection; and
(c)
each of those events is:
(i)
the passage of a resolution covered by subparagraph 411(4)(a)(ii) of the Corporations Act 2001; or
(ii)
an approval covered by paragraph 411(4)(b) of that Act; or
(iii)
the passage of a resolution, where Telstra’s members (within the meaning of that Act) were entitled to vote on the resolution; or
(iv)
an approval covered by Chapter 11 of the ASX Listing Rules; or
(v)
the granting of a waiver under rule 18.1 of the ASX Listing Rules; or
(vi)
the making of a declaration under subsection 577J(3); or
(vii)
an event specified in an instrument in force under subsection (3); and
(d)
the ACCC decides to accept the undertaking;
the decision to accept the undertaking must be expressed to be subject to the occurrence of those events within a specified period after the undertaking is accepted.
(2)
A nomination under subsection (1) must not specify an event by reference to the timing of the event.
(3)
The Minister may, by writing, specify events for the purposes of subparagraph (1)(c)(vii).
(4)
A period specified by the ACCC under subsection (1) must be:
(a)
6 months; or
(b)
if another period is specified in an instrument under subsection (5)—that period.
(5)
The Minister may, by writing, specify a period for the purposes of paragraph (4)(b).
Notification requirement
(6)
If:
(a)
a decision to accept an undertaking under section 577E is expressed to be subject to the occurrence of one or more specified events within a specified period; and
(b)
such an event occurs within that period;
Telstra must notify the ACCC in writing of the occurrence of the event as soon as practicable after the occurrence.
If event does not occur
(7)
If:
(a)
a decision to accept an undertaking under section 577E is expressed to be subject to the occurrence of a single specified event within a specified period; and
(b)
the event does not occur within that period;
this Act has effect as if the undertaking had never been accepted by the ACCC.
(8)
If:
(a)
a decision to accept an undertaking under section 577E is expressed to be subject to the occurrence of 2 or more specified events within a specified period; and
(b)
one or more of those events do not occur within that period;
this Act has effect as if the undertaking had never been accepted by the ACCC.
Publication requirement
(9)
The Minister must cause a copy of an instrument under subsection (3) or (5) to be published on the Department’s website.
Instruments are not legislative instruments
(10)
An instrument under subsection (3) or (5) is not a legislative instrument.

577EBWhen undertaking about subscription television broadcasting licences comes into force

An undertaking under section 577E comes into force:
(a)
if:
(i)
the decision to accept the undertaking is expressed to be subject to the occurrence of a single specified event within a specified period; and
(ii)
the event occurs within that period;
when the event occurs; or
(b)
if:
(i)
the decision to accept the undertaking is expressed to be subject to the occurrence of 2 or more specified events within a specified period; and
(ii)
each of those events occur at the same time; and
(iii)
that time occurs within that period;
at that time; or
(c)
if:
(i)
the decision to accept the undertaking is expressed to be subject to the occurrence of 2 or more specified events within a specified period; and
(ii)
each of those events occur at different times; and
(iii)
each of those times occur within that period;
at the last of those times; or
(d)
if the decision to accept the undertaking is not expressed to be subject to the occurrence of one or more specified events within a specified period—when the undertaking is accepted by the ACCC.

577ECPublication requirements for undertaking about subscription television broadcasting licences

(1)
If a decision to accept an undertaking under section 577E is expressed to be subject to the occurrence of one or more specified events within a specified period, the ACCC must:
(a)
as soon as practicable after making the decision, publish on its website:
(i)
the undertaking; and
(ii)
the terms of the decision; and
(b)
as soon as practicable after the ACCC becomes aware that the undertaking has come into force, publish on its website a notice announcing that the undertaking has come into force.
(2)
If a decision to accept an undertaking under section 577E is not expressed to be subject to the occurrence of one or more specified events within a specified period, the ACCC must, as soon as practicable after accepting the undertaking, publish the undertaking on its website.

577EDCompliance with undertaking about subscription television broadcasting licences

If an undertaking given by Telstra is in force under section 577E, Telstra must comply with the undertaking.

577FVariation of undertaking about subscription television broadcasting licences

(1)
This section applies if an undertaking given by Telstra is in force under section 577E.
(2)
Telstra may give the ACCC a variation of the undertaking in so far as the undertaking is covered by paragraph 577E(1)(b).
(3)
After considering the variation, the ACCC must decide to:
(a)
accept the variation; or
(b)
reject the variation.
(3A)
In deciding whether to accept the variation, the ACCC must have regard to:
(a)
the matters (if any) set out in an instrument in force under subsection (3B); and
(b)
such other matters (if any) as the ACCC considers relevant.
(3B)
The Minister may, by writing, set out matters for the purposes of paragraph (3A)(a).
(3C)
Before making or varying an instrument under subsection (3B), the Minister must:
(a)
cause to be published on the Department’s website a notice:
(i)
setting out the draft instrument or variation; and
(ii)
inviting persons to make submissions to the Minister about the draft instrument or variation within 14 days after the notice is published; and
(b)
consider any submissions received within the 14‑day period mentioned in paragraph (a).
(4)
The variation takes effect when it is accepted by the ACCC.
(5)
As soon as practicable after the variation takes effect, the ACCC must publish the variation on its website.
(6)
The Minister must cause a copy of an instrument under subsection (3B) to be published on the Department’s website.
(7)
An instrument under subsection (3B) is not a legislative instrument.

Division 5—Enforcement of undertakings

577GEnforcement of undertakings

(1)
If:
(a)
an undertaking given by Telstra is in force under section 577A, 577C or 577E; and
(b)
the ACCC considers that Telstra has breached the undertaking;
the ACCC may apply to the Federal Court for an order under subsection (2).
(2)
If the Federal Court is satisfied that Telstra has breached the undertaking, the Court may make any or all of the following orders:
(a)
an order directing Telstra to comply with the undertaking;
(b)
an order directing the disposal of network units, shares or other assets;
(c)
an order restraining the exercise of any rights attached to shares;
(d)
an order prohibiting or deferring the payment of any sums due to a person in respect of shares held by Telstra;
(e)
an order that any exercise of rights attached to shares be disregarded;
(f)
an order directing Telstra to pay to the Commonwealth an amount up to the amount of any financial benefit that Telstra has obtained directly or indirectly and that is reasonably attributable to the breach;
(g)
any order that the Court considers appropriate directing Telstra to compensate any other person who has suffered loss or damage as a result of the breach;
(h)
any other order that the Court considers appropriate.
(3)
In addition to the Federal Court’s powers under subsection (2), the court:
(a)
has power, for the purpose of securing compliance with any other order made under this section, to make an order directing any person to do or refrain from doing a specified act; and
(b)
has power to make an order containing such ancillary or consequential provisions as the court thinks just.
(4)
The Federal Court may, before making an order under this section, direct that notice of the application be given to such persons as it thinks fit or be published in such manner as it thinks fit, or both.
(5)
The Federal Court may, by order, rescind, vary or discharge an order made by it under this section or suspend the operation of such an order.

Division 6—Limits on allocation of spectrum licences etc.

577GAExcluded spectrum regime

(1)
The Minister may, by legislative instrument, determine that the excluded spectrum regime applies to Telstra.
(2)
A determination under subsection (1) has effect for the purposes of:
(a)
this Division; and
(b)
Part 10 of Schedule 1.

577HDesignated part of the spectrum

(1)
For the purposes of this Act, each of the following parts of the spectrum is a designated part of the spectrum:
(a)
frequencies higher than 520 MHz, up to and including 820 MHz;
(b)
frequencies higher than 2.5 GHz, up to and including 2.69 GHz.
(2)
Subsection (1) has effect subject to subsection (3).
(3)
The Minister may, by legislative instrument, determine that a specified part of the spectrum is not a designated part of the spectrum for the purposes of this Act.
(4)
The Minister may, by legislative instrument, determine that a specified part of the spectrum is a designated part of the spectrum for the purposes of this Act.

577JLimits on allocation of certain spectrum licences to Telstra

(1)
If the excluded spectrum regime applies to Telstra, the ACMA must not allocate a spectrum licence to Telstra if the licence relates to a designated part of the spectrum.
Note: For excluded spectrum regime, see section 577GA.
(2)
However, the rule in subsection (1) does not apply if:
(a)
both:
(i)
an undertaking given by Telstra is in force under section 577A; and
(ii)
the undertaking is covered by subsection (2A); and
(b)
either:
(i)
an undertaking given by Telstra is in force under section 577C; or
(ii)
a declaration is in force under subsection (3); and
(c)
either:
(i)
an undertaking given by Telstra is in force under section 577E; or
(ii)
a declaration is in force under subsection (5).
Note 1: Section 577A deals with undertakings about structural separation.
Note 2: Section 577C deals with undertakings about hybrid fibre‑coaxial networks.
Note 3: Section 577E deals with undertakings about subscription television broadcasting licences.
(2A)
This subsection covers a section 577A undertaking if:
(a)
the following conditions are satisfied:
(i)
the undertaking requires Telstra to give the ACCC a draft migration plan;
(ii)
in accordance with the undertaking, Telstra has given the ACCC a draft migration plan;
(iii)
the ACCC has approved the draft migration plan under section 577BD, 577BDA, 577BDB or 577BDC; or
(b)
the undertaking does not require Telstra to give the ACCC a draft migration plan.
(3)
The Minister may declare, in writing, that Telstra is exempt from the requirement to have an undertaking under section 577C.
(4)
The Minister must not make a declaration under subsection (3) unless the ACCC has made a decision to accept an undertaking given by Telstra under section 577A, and:
(a)
if the undertaking is in force—the Minister is satisfied that the undertaking is sufficient to address concerns about the degree of Telstra’s power in telecommunications markets; or
(b)
if the undertaking is not in force—the Minister is satisfied that, subject to the undertaking coming into force, the undertaking is sufficient to address concerns about the degree of Telstra’s power in telecommunications markets.
(4A)
A declaration under subsection (3) comes into force:
(a)
if paragraph (4)(a) applies—when the declaration is made; or
(b)
if paragraph (4)(b) applies—when the undertaking comes into force.
(4B)
If:
(a)
paragraph (4)(b) applies to a declaration; and
(b)
as a result of subsection 577AA(7) or (8), this Act (other than subclause 76(4) of Schedule 1) has effect as if the undertaking had never been accepted by the ACCC;
this Act has effect as if the declaration had never been made by the Minister.
(5)
The Minister may declare, in writing, that Telstra is exempt from the requirement to have an undertaking under section 577E.
(6)
The Minister must not make a declaration under subsection (5) unless the ACCC has made a decision to accept an undertaking given by Telstra under section 577A, and:
(a)
if the undertaking is in force—the Minister is satisfied that the undertaking is sufficient to address concerns about the degree of Telstra’s power in telecommunications markets; or
(b)
if the undertaking is not in force—the Minister is satisfied that, subject to the undertaking coming into force, the undertaking is sufficient to address concerns about the degree of Telstra’s power in telecommunications markets.
(6A)
A declaration under subsection (5) comes into force:
(a)
if paragraph (6)(a) applies—when the declaration is made; or
(b)
if paragraph (6)(b) applies—when the undertaking comes into force.
(6B)
If:
(a)
paragraph (6)(b) applies to a declaration; and
(b)
as a result of subsection 577AA(7) or (8), this Act (other than subclause 76(4) of Schedule 1) has effect as if the undertaking had never been accepted by the ACCC;
this Act has effect as if the declaration had never been made by the Minister.
(6C)
A declaration made under subsection (3) or (5) cannot be revoked.
(7)
A declaration made under subsection (3) or (5) is not a legislative instrument.
(8)
In this section:
telecommunications market has the same meaning as in Part XIB of the Competition and Consumer Act 2010.

577KLimits on use of certain spectrum licences by Telstra

(1)
If:
(a)
the excluded spectrum regime applies to Telstra; and
(b)
a spectrum licence relates to a designated part of the spectrum;
the licensee of the spectrum licence must not authorise Telstra to operate radiocommunications devices under the licence.
Note: For excluded spectrum regime, see section 577GA.
(2)
However, the rule in subsection (1) does not apply if:
(a)
both:
(i)
an undertaking given by Telstra is in force under section 577A; and
(ii)
the undertaking is covered by subsection (2A); and
(b)
either:
(i)
an undertaking given by Telstra is in force under section 577C; or
(ii)
a declaration is in force under subsection 577J(3); and
(c)
either:
(i)
an undertaking given by Telstra is in force under section 577E; or
(ii)
a declaration is in force under subsection 577J(5).
Note 1: Section 577A deals with undertakings about structural separation.
Note 2: Section 577C deals with undertakings about hybrid fibre‑coaxial networks.
Note 3: Section 577E deals with undertakings about subscription television broadcasting licences.
(2A)
This subsection covers a section 577A undertaking if:
(a)
the following conditions are satisfied:
(i)
the undertaking requires Telstra to give the ACCC a draft migration plan;
(ii)
in accordance with the undertaking, Telstra has given the ACCC a draft migration plan;
(iii)
the ACCC has approved the draft migration plan under section 577BD, 577BDA, 577BDB or 577BDC; or
(b)
the undertaking does not require Telstra to give the ACCC a draft migration plan.
(3)
A person must not:
(a)
aid, abet, counsel or procure a contravention of subsection (1); or
(b)
induce, whether by threats or promises or otherwise, a contravention of subsection (1); or
(c)
be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or
(d)
conspire with others to effect a contravention of subsection (1).
(4)
Subsections (1) and (3) are civil penalty provisions.
Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

577LLimits on assignment of certain spectrum licences to Telstra etc.

(1)
If:
(a)
the excluded spectrum regime applies to Telstra; and
(b)
a spectrum licence relates to a designated part of the spectrum;
the licensee of the spectrum licence must not:
(c)
assign the whole or a part of the licence to Telstra; or
(d)
otherwise deal with Telstra in relation to the whole or a part of the licence.
Note: For excluded spectrum regime, see section 577GA.
(2)
However, the rule in subsection (1) does not apply if:
(a)
both:
(i)
an undertaking given by Telstra is in force under section 577A; and
(ii)
the undertaking is covered by subsection (2A); and
(b)
either:
(i)
an undertaking given by Telstra is in force under section 577C; or
(ii)
a declaration is in force under subsection 577J(3); and
(c)
either:
(i)
an undertaking given by Telstra is in force under section 577E; or
(ii)
a declaration is in force under subsection 577J(5).
Note 1: Section 577A deals with undertakings about structural separation.
Note 2: Section 577C deals with undertakings about hybrid fibre‑coaxial networks.
Note 3: Section 577E deals with undertakings about subscription television broadcasting licences.
(2A)
This subsection covers a section 577A undertaking if:
(a)
the following conditions are satisfied:
(i)
the undertaking requires Telstra to give the ACCC a draft migration plan;
(ii)
in accordance with the undertaking, Telstra has given the ACCC a draft migration plan;
(iii)
the ACCC has approved the draft migration plan under section 577BD, 577BDA, 577BDB or 577BDC; or
(b)
the undertaking does not require Telstra to give the ACCC a draft migration plan.
(3)
A person must not:
(a)
aid, abet, counsel or procure a contravention of subsection (1); or
(b)
induce, whether by threats or promises or otherwise, a contravention of subsection (1); or
(c)
be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or
(d)
conspire with others to effect a contravention of subsection (1).
(4)
Subsections (1) and (3) are civil penalty provisions.
Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

Division 7—Other provisions

577MAssociate

(1)
For the purposes of this Part, an associate of Telstra in relation to control of:
(a)
a hybrid fibre‑coaxial network; or
(b)
another telecommunications network; or
(c)
a company;
is:
(d)
a partner of Telstra; or
(e)
if Telstra or another person who is an associate of Telstra under another paragraph receives benefits or is capable of benefiting under a trust—the trustee of the trust; or
(f)
a person (whether a company or not) who:
(i)
acts, or is accustomed to act; or
(ii)
under a contract or an arrangement or understanding (whether formal or informal) is intended or expected to act;
in accordance with the directions, instructions or wishes of, or in concert with:
(iii)
Telstra; or
(iv)
Telstra and another person who is an associate of Telstra under another paragraph; or
(g)
another company if:
(i)
the other company is a related body corporate of Telstra for the purposes of the Corporations Act 2001; or
(ii)
Telstra, or Telstra and another person who is an associate of Telstra under another paragraph, are in a position to exercise control of the other company.
(2)
However, persons are not associates of each other if the ACCC is satisfied that:
(a)
they do not act together in any relevant dealings relating to the network or company; and
(b)
neither of them is in a position to exert influence over the business dealings of the other in relation to the network or company.

577NControl

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

577PControl of a company

(1)
For the purposes of this Part, the question of whether a person is in a position to exercise control of a company is to be determined under Schedule 1 to the Broadcasting Services Act 1992.
(2)
However, in determining that question:
(a)
the definition of associate in subsection 6(1) of the Broadcasting Services Act 1992 does not apply; and
(b)
the definition of associate in section 577M of this Act applies instead.

577QWhen Telstra is in a position to exercise control of a network

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

12ECPerformance benchmarks

Determination
(1)
The Minister may make a written determination setting out standards to be complied with by a primary universal service provider in relation to any or all of the following matters:
(a)
the terms and conditions of the supply of a standard telephone service to a customer, other than price‑related terms and conditions;
(b)
the reliability of a standard telephone service supplied to a customer;
(c)
the supply of a temporary standard telephone service to a customer;
(d)
the maximum period within which a primary universal service provider must supply a standard telephone service following the making of a request by a prospective customer;
(e)
the maximum period within which a primary universal service provider must rectify a fault or service difficulty relating to a standard telephone service following the making of a report by a customer about the fault or service difficulty;
(f)
any other matter concerning the supply, or proposed supply, of a standard telephone service to a customer or prospective customer.
(2)
A determination under subsection (1) may be of general application or may be limited as provided in the instrument.
(3)
Subsection (2) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.
Determination prevails over inconsistent instruments
(4)
Each of the following instruments:
(a)
an approved policy statement for a primary universal service provider;
(b)
an approved standard marketing plan for a primary universal service provider;
has no effect to the extent to which the instrument is inconsistent with a determination in force under subsection (1).
Determination is a legislative instrument
(5)
A determination under subsection (1) is a legislative instrument.
Performance benchmarks
(6)
The Minister may, by legislative instrument, set minimum benchmarks in relation to compliance by a primary universal service provider with a standard in force under subsection (1).
(7)
An instrument under subsection (6) may be of general application or may be limited as provided in the instrument.
(8)
Subsection (7) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.
Provider must meet or exceed minimum benchmarks
(9)
A primary universal service provider must meet or exceed a minimum benchmark set by an instrument under subsection (6).
Clause 1 of Schedule 1 to the Telecommunications Act 1997 does not apply to a breach of a standard
(10)
Clause 1 of Schedule 1 to the Telecommunications Act 1997 does not apply to a contravention of a standard in force under subsection (1).
Note: Clause 1 of Schedule 1 to the Telecommunications Act 1997 requires carriers to comply with this Act.
Clause 1 of Schedule 2 to the Telecommunications Act 1997 does not apply to a breach of a standard
(11)
Clause 1 of Schedule 2 to the Telecommunications Act 1997 does not apply to a contravention of a standard in force under subsection (1).
Note: Clause 1 of Schedule 2 to the Telecommunications Act 1997 requires carriage service providers to comply with this Act.

Subdivision BB—Payphone requirements

12EDPerformance standards

Determination
(1)
The Minister may make a written determination setting out standards to be complied with by a primary universal service provider in relation to any or all of the following matters:
(a)
the characteristics of a payphone carriage service;
(b)
the supply, installation or maintenance of a payphone;
(c)
the supply of a payphone carriage service;
(d)
the reliability of a payphone;
(e)
the reliability of a payphone carriage service;
(f)
the maximum period within which a primary universal service provider must rectify a fault or service difficulty relating to a payphone following the making of a report about a fault or service difficulty;
(g)
the maximum period within which a primary universal service provider must rectify a fault or service difficulty relating to a payphone carriage service following the making of a report about a fault or service difficulty;
(h)
the handling of requests for the removal of a payphone;
(i)
any other matter concerning:
(i)
the supply, installation or maintenance of a payphone; or
(ii)
the supply of a payphone carriage service.
(2)
A determination under subsection (1) may be of general application or may be limited as provided in the determination.
(3)
Subsection (2) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.
Compliance
(4)
A primary universal service provider must comply with a determination under subsection (1).
Determination prevails over inconsistent instruments
(5)
Each of the following instruments:
(a)
an approved policy statement for a primary universal service provider;
(b)
an approved standard marketing plan for a primary universal service provider;
has no effect to the extent to which the instrument is inconsistent with a determination in force under subsection (1).
Determination is a legislative instrument
(6)
A determination under subsection (1) is a legislative instrument.

12EEPerformance benchmarks

Determination
(1)
The Minister may make a written determination setting out standards to be complied with by a primary universal service provider in relation to any or all of the following matters:
(a)
the characteristics of a payphone carriage service;
(b)
the supply, installation or maintenance of a payphone;
(c)
the supply of a payphone carriage service;
(d)
the reliability of a payphone;
(e)
the reliability of a payphone carriage service;
(f)
the maximum period within which a primary universal service provider must rectify a fault or service difficulty relating to a payphone following the making of a report about a fault or service difficulty;
(g)
the maximum period within which a primary universal service provider must rectify a fault or service difficulty relating to a payphone carriage service following the making of a report about a fault or service difficulty;
(h)
the handling of requests for the removal of a payphone;
(i)
any other matter concerning:
(i)
the supply, installation or maintenance of a payphone; or
(ii)
the supply of a payphone carriage service.
(2)
A determination under subsection (1) may be of general application or may be limited as provided in the determination.
(3)
Subsection (2) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.
Determination prevails over inconsistent instruments
(4)
Each of the following instruments:
(a)
an approved policy statement for a primary universal service provider;
(b)
an approved standard marketing plan for a primary universal service provider;
has no effect to the extent to which the instrument is inconsistent with a determination in force under subsection (1).
Determination is a legislative instrument
(5)
A determination under subsection (1) is a legislative instrument.
Performance benchmarks
(6)
The Minister may, by legislative instrument, set minimum benchmarks in relation to compliance by a primary universal service provider with a standard in force under subsection (1).
(7)
An instrument under subsection (6) may be of general application or may be limited as provided in the instrument.
(8)
Subsection (7) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.
Provider must meet or exceed minimum benchmarks
(9)
A primary universal service provider must meet or exceed a minimum benchmark set by an instrument under subsection (6).
Clause 1 of Schedule 1 to the Telecommunications Act 1997 does not apply to a breach of a standard
(10)
Clause 1 of Schedule 1 to the Telecommunications Act 1997 does not apply to a contravention of a standard in force under subsection (1).
Note: Clause 1 of Schedule 1 to the Telecommunications Act 1997 requires carriers to comply with this Act.
Clause 1 of Schedule 2 to the Telecommunications Act 1997 does not apply to a breach of a standard
(11)
Clause 1 of Schedule 2 to the Telecommunications Act 1997 does not apply to a contravention of a standard in force under subsection (1).
Note: Clause 1 of Schedule 2 to the Telecommunications Act 1997 requires carriage service providers to comply with this Act.

12EFRules about the location of payphones

(1)
The Minister may make a determination setting out rules to be complied with by a primary universal service provider in relation to the places or areas in which payphones are to be located.
Compliance
(2)
A primary universal service provider must comply with a determination under subsection (1).
(3)
If a primary universal service provider complies with a determination under subsection (1), the provider is taken to have complied with an obligation under paragraph 9(1)(b) or subsection 9(2A), to the extent to which the obligation relates to the location of payphones.
Determination prevails over inconsistent instruments
(4)
Each of the following instruments:
(a)
an approved policy statement for a primary universal service provider;
(b)
an approved standard marketing plan for a primary universal service provider;
has no effect to the extent to which the instrument is inconsistent with a determination in force under subsection (1).
Determination is a legislative instrument
(5)
A determination under subsection (1) is a legislative instrument.

12EGRules about the process for public consultation on the location or removal of payphones

(1)
The Minister may make a determination setting out rules to be complied with by a primary universal service provider in relation to the process for public consultation on the location or removal of payphones.
(2)
The Minister must ensure that a determination under subsection (1) provides that, if:
(a)
a primary universal service provider makes a decision to remove a payphone from a particular location; and
(b)
that payphone is the only payphone at that location;
then:
(c)
the provider must undertake a process for public consultation on the removal of that payphone; and
(d)
if, in accordance with that process, a person makes a submission to the provider—the provider must notify the person, in writing, of the outcome of that process.
Compliance
(3)
A primary universal service provider must comply with a determination under subsection (1).
Determination prevails over inconsistent instruments
(4)
Each of the following instruments:
(a)
an approved policy statement for a primary universal service provider;
(b)
an approved standard marketing plan for a primary universal service provider;
has no effect to the extent to which the instrument is inconsistent with a determination in force under subsection (1).
Determination is a legislative instrument
(5)
A determination under subsection (1) is a legislative instrument.

12EHRules about the process for resolution of complaints about the location or removal of payphones

(1)
The Minister may make a determination setting out rules to be complied with by a primary universal service provider in relation to the process for resolution of complaints about the location or removal of payphones.
Compliance
(2)
A primary universal service provider must comply with a determination under subsection (1).
Determination prevails over inconsistent instruments
(3)
Each of the following instruments:
(a)
an approved policy statement for a primary universal service provider;
(b)
an approved standard marketing plan for a primary universal service provider;
has no effect to the extent to which the instrument is inconsistent with a determination in force under subsection (1).
Determination is a legislative instrument
(4)
A determination under subsection (1) is a legislative instrument.

12EIDirections by the ACMA about the removal of payphones

Scope
(1)
This section applies if:
(a)
a primary universal service provider has made a decision to remove a payphone from a particular location; and
(b)
a person notifies the ACMA, in writing, that the person objects to the removal; and
(c)
the ACMA is satisfied that:
(i)
the removal would breach, or has breached, a determination under subsection 12EF(1); or
(ii)
the provider has breached a determination under subsection 12EG(1) in relation to the removal.
Direction
(2)
If the payphone has not been removed, the ACMA may, by written notice given to the provider, direct the provider not to remove the payphone from that location.
(3)
If the payphone has been removed, the ACMA may, by written notice given to the provider, direct the provider:
(a)
to supply and install a payphone at that location; and
(b)
to do so within the period specified in the notice.
(4)
A period specified under paragraph (3)(b) must not be shorter than 30 days after the notice is given.
(5)
A direction under subsection (2) or (3) must not be inconsistent with a determination under subsection 12EF(1).
Compliance
(6)
A primary universal service provider must comply with a direction under subsection (2) or (3).
Direction is not a legislative instrument
(7)
A direction under subsection (2) or (3) is not a legislative instrument.

226

Subsection 150(3)

Repeal the subsection.

Part 5Customer service guarantee

Telecommunications (Consumer Protection and Service Standards) Act 1999

227

Before section 113

Insert:

Division 1—Introduction

228

Section 113

Before:
• The Telecommunications Industry Ombudsman may issue an evidentiary certificate in relation to a contravention of a performance standard.

insert:
• The Minister may make performance standards to be complied with by carriage service providers in relation to the supply of wholesale carriage services.
• The Minister may set minimum benchmarks in relation to compliance by carriage service providers with performance standards.

229

After section 114

Insert:

114AWholesale carriage service and wholesale customer

For the purposes of this Part, if:
(a)
a carriage service provider (the first provider) supplies, or proposes to supply, a carriage service to another carriage service provider (the second provider); and
(b)
the carriage service is, or is to be, supplied to the second provider in order that the second provider can provide a carriage service;
then:
(c)
the carriage service that is, or is to be, supplied to the second provider is a wholesale carriage service; and
(d)
the second provider is a wholesale customer of the first provider.

Division 2—Retail performance standards and benchmarks

230

After subsection 115(2)

Insert:
(2A)
A standard under this section does not apply in relation to matter concerning the supply, or proposed supply, of a wholesale carriage service.

231

Subsections 115(5) and (6)

Repeal the subsections, substitute:
(5)
An instrument under subsection (1) is a legislative instrument.

232

After section 117A

Insert:

117BPerformance benchmarks

(1)
The Minister may, by legislative instrument, set minimum benchmarks in relation to compliance by carriage service providers with a standard in force under section 115.
(2)
An instrument under this section may be of general application or may be limited as provided in the instrument.
(3)
Subsection (2) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

117CCompliance with performance benchmarks

Scope
(1)
This section applies if an instrument under section 117B is applicable to a carriage service provider (the first provider).
Provider must meet or exceed minimum benchmark
(2)
The first provider must meet or exceed a minimum benchmark set by the instrument.
Contravention caused by another provider
(3)
For the purposes of determining whether the first provider has met or exceeded a minimum benchmark set by the instrument, if:
(a)
the first provider has contravened a standard in force under section 115; and
(b)
the contravention is wholly or partly attributable to one or more acts or omissions of another carriage service provider;
the first provider is taken not to have contravened the standard.

Division 3—Wholesale performance standards and benchmarks

117DPerformance standards

(1)
The Minister may, by legislative instrument, make standards to be complied with by carriage service providers in relation to a matter that:
(a)
concerns the supply, or proposed supply, of wholesale carriage services to a wholesale customer; and
(b)
is capable of affecting the capacity or ability of a wholesale customer to comply with a standard in force under section 115 in relation to a matter concerning the supply, or proposed supply, of a carriage service by the wholesale customer.
(2)
A standard under this section may be of general application or may be limited as provided in the standard.
(3)
Subsection (2) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

117EPerformance benchmarks

(1)
The Minister may, by legislative instrument, set minimum benchmarks in relation to compliance by carriage service providers with a standard in force under section 117D.
(2)
An instrument under this section may be of general application or may be limited as provided in the instrument.
(3)
Subsection (2) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

117FCompliance with performance benchmarks

Scope
(1)
This section applies if an instrument under section 117E is applicable to a carriage service provider (the first provider).
Provider must meet or exceed minimum benchmark
(2)
The first provider must meet or exceed a minimum benchmark set by the instrument.
Contravention caused by another provider
(3)
For the purposes of determining whether the first provider has met or exceeded a minimum benchmark set by the instrument, if:
(a)
the first provider has contravened a standard in force under section 117D; and
(b)
the contravention is wholly or partly attributable to one or more acts or omissions of another carriage service provider;
the first provider is taken not to have contravened the standard.

Division 4—Other provisions

233

At the end of subsection 118(1)

Add “or 117D”.

234

At the end of paragraph 118(3)(a)

Add “or 117D”.

235

Subsection 120(4)

Repeal the subsection, substitute:
(4)
A waiver must be in the form specified in the instrument.
(5)
The form must include a statement that summarises the consequences of the waiver.
(6)
A waiver must not be set out in a standard form of agreement formulated by a carriage service provider for the purposes of section 479 of the Telecommunications Act 1997.
(7)
A customer is not entitled to waive, in whole or in part, the customer’s protection and rights under this Part in relation to a particular standard telephone service supplied, or proposed to be supplied, by the carriage service provider concerned if the service is supplied, or proposed to be supplied, in fulfilment of the universal service obligation.
(8)
An instrument under subsection (1) is a legislative instrument.

236

After section 120

Insert:

120ACarriage service may be supplied on condition that the customer waives the customer service guarantee

This Act does not prevent, and is taken never to have prevented, a carriage service provider from supplying, or proposing to supply, a particular carriage service to a customer on condition that the customer waives, in accordance with section 120, the customer’s protection and rights under this Part in relation to the carriage service.

237

Section 122

After “115”, insert “or 117D”.

238

After section 122

Insert:

122AFailure to meet or exceed a minimum benchmark is not an offence

A contravention of section 117C or 117F is not an offence.

239

At the end of section 123 (before the note)

Add “or 117D”.

240

Application—waiver

The amendments of section 120 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 made by this Part apply in relation to a waiver given after the commencement of this item.

Part 5ARecord‑keeping rules

Telecommunications Act 1997

241

After subsection 529(2)

Insert:
(2A)
The rules may also require those carriers or carriage service providers to prepare reports consisting of information contained in those records.
(2B)
The rules may also require those carriers or carriage service providers to give any or all of the reports to the ACMA.
(2C)
The rules may specify the manner and form in which reports are to be prepared.
(2D)
The rules may provide for:
(a)
the preparation of reports as and when required by the ACMA; or
(b)
the preparation of periodic reports relating to such regular intervals as are specified in the rules.

(2E)
The rules may require or permit a report prepared in accordance with the rules to be given to the ACMA, in accordance with specified software requirements and specified authentication requirements:
(a)
on a specified kind of data processing device; or
(b)
by way of a specified kind of electronic transmission.
(2F)
Subsections (2) to (2E) do not limit subsection (1).

242

Paragraphs 529(4)(a) and (b)

Repeal the paragraphs, substitute:
(a)
the performance by the ACMA of any of the ACMA’s telecommunications functions; or
(b)
the exercise by the ACMA of any of the ACMA’s telecommunications powers.

243

At the end of section 529

Add:
(5)
This section does not limit section 521 (which is about the general information‑gathering powers of the ACMA).

244

Transitional—record‑keeping rules

The amendments made by this Part do not affect the continuity of the record‑keeping rules.

Part 6Priority assistance

Telecommunications Act 1997

245

At the end of Schedule 2

Add:

Part 6—Priority assistance

16Simplified outline

The following is a simplified outline of this Part:
• This Part deals with priority assistance for people with life‑threatening medical conditions.
• A carriage service provider must comply with the priority assistance industry code.
• If a carriage service provider receives an inquiry from a prospective residential customer about the supply of a standard telephone service, and the provider does not offer priority assistance, the provider must:
(a)
inform the prospective residential customer that the provider does not offer priority assistance in connection with the service; and
(b)
inform the prospective residential customer of the names of one or more carriage service providers from whom the prospective residential customer can obtain priority assistance.

17Priority assistance industry code

For the purposes of this Part, the priority assistance industry code is:
(a)
the code that is:
(i)
entitled Priority Assistance for Life Threatening Medical Conditions; and
(ii)
registered under Part 6; or
(b)
if that code is replaced by another code registered under Part 6—the replacement code.

18Compliance with the priority assistance industry code

A carriage service provider must comply with the priority assistance industry code to the extent (if any) to which the code is applicable to the provider.

19Information for prospective residential customers of a carriage service provider who does not offer priority assistance

Scope
(1)
This clause applies to a carriage service provider if:
(a)
the provider receives an inquiry from a prospective residential customer about the supply of a standard telephone service; and
(b)
the provider does not offer priority assistance in connection with the service.
Requirement
(2)
The provider must:
(a)
inform the prospective residential customer that the provider does not offer priority assistance in connection with the service; and
(b)
inform the prospective residential customer of the names of one or more carriage service providers from whom the prospective residential customer can obtain priority assistance in connection with a standard telephone service.
Definition
(3)
In this clause:
priority assistance has the same meaning as in the priority assistance industry code.

20Requirements for Telstra

This Part does not impose a requirement on Telstra if clause 19 of the Carrier Licence Conditions (Telstra Corporation Limited) Declaration 1997 is in force.
Note: Clause 19 of the Carrier Licence Conditions (Telstra Corporation Limited) Declaration 1997 is about Telstra’s priority assistance obligations.

Part 7Infringement notices etc.Division 1Amendments

Telecommunications Act 1997

246

Section 7

Insert:
authorised infringement notice officer means:
(a)
the Chair of the ACMA; or
(b)
a member of the staff of the ACMA appointed under section 572L.

247

Section 7

Insert:
infringement notice means an infringement notice under section 572E.

248

Section 7

Insert:
penalty unit has the meaning given by section 4AA of the Crimes Act 1914.

249

After Part 31A

Insert:

Part 31B—Infringement notices for contraventions of civil penalty provisions

572DSimplified outline

The following is a simplified outline of this Part:
• This Part sets up a system of infringement notices for contraventions of civil penalty provisions as an alternative to the institution of court proceedings.

572EWhen an infringement notice can be given

(1)
If an authorised infringement notice officer has reasonable grounds to believe that a person has contravened a particular civil penalty provision, the authorised infringement notice officer may give to the person an infringement notice relating to the contravention.
Note: See also section 572M (guidelines).
Time limit
(2)
An infringement notice must be given within 12 months after the day on which the contravention is alleged to have taken place.
Carrier licence conditions and service provider rules
(3)
If a person’s conduct constitutes a contravention of:
(a)
section 68 or 101; and
(b)
one or more other civil penalty provisions;
an infringement notice must not be given to the person in relation to the contravention of section 68 or 101, as the case may be.
(4)
If:
(a)
a person’s conduct constitutes a contravention of section 68 or 101; and
(b)
the contravention consists of a breach of:
(i)
the carrier licence condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 369; or
(ia)
the carrier licence condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 577AD, 577CD or 577ED; or
(ii)
a carrier licence condition set out in Part 3, 4 or 5 of Schedule 1; or
(iii)
a carrier licence condition set out in Part 9 of Schedule 1; or
(iv)
the carrier licence condition set out in clause 84 of Schedule 1; or
(v)
the service provider rule set out in Part 1 of Schedule 2 in so far as that rule relates to section 369; or
(vi)
the carrier licence condition set out in section 152AZ of the Competition and Consumer Act 2010; or
(vii)
the service provider rule set out in subsection 152BA(2) of the Competition and Consumer Act 2010; or
(viii)
the carrier licence condition set out in section 152BCO of the Competition and Consumer Act 2010; or
(ix)
the service provider rule set out in subsection 152BCP(2) of the Competition and Consumer Act 2010; or
(x)
the carrier licence condition set out in section 152BDF of the Competition and Consumer Act 2010; or
(xi)
the service provider rule set out in subsection 152BDG(2) of the Competition and Consumer Act 2010; or
(xii)
the carrier licence condition set out in section 152BEC of the Competition and Consumer Act 2010; or
(xiii)
the service provider rule set out in subsection 152BED(2) of the Competition and Consumer Act 2010;
an infringement notice must not be given to the person in relation to the contravention of section 68 or 101, as the case may be.
(5)
If:
(a)
a person’s conduct constitutes a contravention of section 68 or 101; and
(b)
the contravention consists of a breach of:
(i)
a carrier licence condition set out in a provision of this Act other than Part 1 of Schedule 1; or
(ii)
a carrier licence condition set out in a provision of a declaration in force under section 63; or
(iii)
a service provider rule set out in a provision of this Act other than Part 1 of Schedule 2; or
(iv)
a service provider rule set out in a provision of a determination in force under section 99;
an infringement notice must not be given to the person in relation to the contravention of section 68 or 101, as the case may be, unless the provision mentioned in subparagraph (b)(i), (ii), (iii) or (iv), as the case may be:
(c)
is a listed infringement notice provision; and
(d)
has been a listed infringement notice provision for at least 3 months before the day on which the contravention is alleged to have taken place.
Note: For listed infringement notice provision, see subsection (7).
(6)
If:
(a)
a person’s conduct constitutes a contravention of section 68 or 101; and
(b)
the contravention consists of a breach of:
(i)
the carrier licence condition set out in Part 1 of Schedule 1; or
(ii)
the service provider rule set out in Part 1 of Schedule 2; and
(c)
the contravention consists of a breach of another provision of this Act;
an infringement notice must not be given to the person in relation to the contravention of section 68 or 101, as the case may be, unless:
(d)
the other provision is a listed infringement notice provision; and
(e)
the other provision has been a listed infringement notice provision for at least 3 months before the day on which the contravention is alleged to have taken place.
Note: For listed infringement notice provision, see subsection (7).
Listed infringement notice provision
(7)
The ACMA may, by legislative instrument, declare that:
(a)
a specified provision of this Act; or
(b)
a specified provision of a declaration in force under section 63; or
(c)
a specified provision of a determination in force under section 99;
is a listed infringement notice provision for the purposes of this section.
Consultation
(8)
Before making or varying a declaration under subsection (7), the ACMA must:
(a)
cause to be published on the ACMA’s website a notice:
(i)
setting out the draft declaration or variation; and
(ii)
inviting persons to make submissions to the ACMA about the draft declaration or variation within 14 days after the notice is published; and
(b)
consider any submissions received within the 14‑day period mentioned in paragraph (a).
Definition
(9)
In this section:
this Act includes:
(a)
the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act; and
(b)
Chapter 5 of the Telecommunications (Interception and Access) Act 1979.

572FMatters to be included in an infringement notice

(1)
An infringement notice must:
(a)
set out the name of the person to whom the notice is given; and
(b)
set out the name of the authorised infringement notice officer who gave the notice; and
(c)
set out brief details of the alleged contravention; and
(d)
contain a statement to the effect that the matter will not be dealt with by the Federal Court if the penalty specified in the notice is paid to the ACMA, on behalf of the Commonwealth, within:
(i)
28 days after the notice is given; or
(ii)
if the ACMA allows a longer period—that longer period; and
(e)
give an explanation of how payment of the penalty is to be made; and
(f)
set out such other matters (if any) as are specified by the regulations.
Note: For the amount of penalty, see section 572G.
(2)
For the purposes of paragraph (1)(c), the brief details must include the following information in relation to the alleged contravention:
(a)
the date of the alleged contravention;
(b)
the civil penalty provision that was allegedly contravened.

572GAmount of penalty

Infringement notice given to a body corporate
(1)
The penalty to be specified in an infringement notice given to a body corporate must be a pecuniary penalty equal to:
(a)
if the alleged contravention is of a kind specified in a determination under subsection (2)—the number of penalty units specified in the determination in relation to that kind of contravention; or
(b)
otherwise—60 penalty units.
(2)
For the purposes of paragraph (1)(a), the Minister may, by legislative instrument, make a determination that:
(a)
sets out one or more kinds of contraventions of section 68 or 101; and
(b)
for each kind of contravention set out in the determination, specifies a particular number of penalty units.
(3)
The number of penalty units specified in a determination for a particular kind of contravention must not exceed 18,000.
Infringement notice given to a person other than a body corporate
(4)
The penalty to be specified in an infringement notice given to a person other than a body corporate must be a pecuniary penalty equal to 12 penalty units.

572HWithdrawal of an infringement notice

Scope
(1)
This section applies if an infringement notice is given to a person.
Withdrawal
(2)
An authorised infringement notice officer may, by written notice (the withdrawal notice) given to the person, withdraw the infringement notice.
(3)
To be effective, the withdrawal notice must be given to the person within 28 days after the infringement notice was given.
Refund of penalty if infringement notice withdrawn
(4)
If:
(a)
the penalty specified in the infringement notice is paid; and
(b)
the infringement notice is withdrawn after the penalty is paid;
the Commonwealth is liable to refund the penalty.

572JWhat happens if the penalty is paid

Scope
(1)
This section applies if:
(a)
an infringement notice relating to an alleged contravention is given to a person; and
(b)
the penalty is paid in accordance with the infringement notice; and
(c)
the infringement notice is not withdrawn.
What happens
(2)
Any liability of the person for the alleged contravention is discharged.
(3)
Proceedings under Part 31 may not be brought against the person for the alleged contravention.

572KEffect of this Part on civil proceedings

This Part does not:
(a)
require an infringement notice to be given in relation to an alleged contravention; or
(b)
affect the liability of a person to have proceedings under Part 31 brought against the person for an alleged contravention if:
(i)
the person does not comply with an infringement notice relating to the contravention; or
(ii)
an infringement notice relating to the contravention is not given to the person; or
(iii)
an infringement notice relating to the contravention is given to the person and subsequently withdrawn; or
(c)
limit the Federal Court’s discretion to determine the amount of a penalty to be imposed on a person who is found in proceedings under Part 31 to have contravened a civil penalty provision.

572LAppointment of authorised infringement notice officer

(1)
The ACMA may, by writing, appoint a member of the staff of the ACMA as an authorised infringement notice officer for the purposes of this Part.
(2)
The ACMA must not appoint a person under subsection (1) unless the person:
(a)
is an SES employee or acting SES employee; or
(b)
holds, or is acting in, an Executive Level 1 or 2 position or an equivalent position.
Note: SES employee is defined in the Acts Interpretation Act 1901.

572MGuidelines relating to infringement notices

(1)
In exercising a power conferred on an authorised infringement notice officer by this Part, the officer must have regard to any relevant guidelines in force under subsection (2).
Formulation of guidelines
(2)
The ACMA may, by legislative instrument, formulate guidelines for the purposes of subsection (1).
Note: For consultation requirements, see Part 3 of the Legislative Instruments Act 2003.
(3)
An authorised infringement notice officer must not give an infringement notice to a person unless guidelines are in force under subsection (2).

572NRegulations

The regulations may make further provision in relation to infringement notices.

Division 2Application

250

Application—infringement notices

Section 572E of the Telecommunications Act 1997 as amended by this Part applies in relation to an alleged contravention of a civil penalty provision that occurs after the commencement of this item.

Part 8Civil penalty provisions

Telecommunications Act 1997

251
Section 7 (definition of civil penalty provision)
Repeal the definition, substitute:
civil penalty provision means:
(a)
a provision of this Act that is declared by this Act to be a civil penalty provision; or
(b)
a provision of the Telecommunications (Consumer Protection and Service Standards) Act 1999 that is declared by that Act to be a civil penalty provision.

Part 9Industry standards

Telecommunications Act 1997

252

Subsection 112(2)

After “124, 125”, insert “, 125AA”.

253

After section 125

Insert:

125AAACMA must determine an industry standard if directed by the Minister

(1)
The ACMA may, by legislative instrument, determine a standard that:
(a)
applies to participants in a particular section of the telecommunications industry; and
(b)
deals with one or more matters relating to the telecommunications activities of those participants.
Note 1: For examples of matters that may be dealt with by industry standards, see section 113.
Note 2: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.
(2)
A standard under subsection (1) is to be known as an industry standard.
(3)
If the ACMA is satisfied that a body or association represents that section of the telecommunications industry, the ACMA must consult the body or association before determining a standard under subsection (1).
(4)
The Minister may, in writing, direct the ACMA to determine a standard under subsection (1) that:
(a)
applies to participants in a specified section of the telecommunications industry; and
(b)
deals with one or more specified matters relating to the telecommunications activities of those participants.
(5)
The ACMA must not determine a standard under subsection (1) unless it does so in accordance with a direction under subsection (4).

Notes to the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2010

Note 1

The Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2010 as shown in this compilation comprises Act No. 140, 2010 amended as indicated in the Tables below.

Table of Acts

Act	Number and year	Date of Assent	Date of commencement	Application, saving or transitional provisions
Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2010	140, 2010	15 Dec 2010	See s. 2(1)
Statute Law Revision Act 2012	136, 2012	22 Sept 2012	Schedule 2 (item 38): Royal Assent	—

Act

Number

and year

Date

of Assent

Date of commencement

Application, saving or transitional provisions

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2010

140, 2010

15 Dec 2010

See s. 2(1)

Statute Law Revision Act 2012

136, 2012

22 Sept 2012

Schedule 2 (item 38): Royal Assent

—

Table of Amendments

ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
Provision affected	How affected
S. 2.........................................	am. No. 136, 2012