Telecommunications (Regional Broadband Scheme–Contracts and Grants Rules) Determination 2022 (Cth)

Telecommunications (Regional Broadband Scheme–Contracts and Grants Rules) Determination 2022

I, Paul Fletcher, Minister for Communications, Urban Infrastructure, Cities and the Arts, make the following determination.

Dated   19 March 2022.

Paul Fletcher

Minister for Communications, Urban Infrastructure, Cities and the Arts

Contents

Part 1—Preliminary  1

1  Name........................................................................................................................................ 1

2  Commencement........................................................................................................................ 1

3  Authority.................................................................................................................................. 1

4  Cessation.................................................................................................................................. 1

5  Simplified outline of this instrument......................................................................................... 2

6  Interpretation............................................................................................................................ 2

Part 2—Rules  4

Division 1—Preliminary  4

7  Simplified outline of this Part................................................................................................... 4

Division 2— Required terms and conditions  5

8 Terms and conditions to be included in a section 80 contract or grant of financial assistance.... 5

Part 1—Preliminary

1  Name

This instrument is the Telecommunications (Regional Broadband Scheme–Contracts and Grants Rules) Determination 2022.

2  Commencement

(1)  Each provision of this instrument 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
Provisions	Commencement	Date/Details
1.  The whole of this instrument	The day after this instrument is registered.

Note:          This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

(2)  Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.

3  Authority

This instrument is made under subsection 87 (1) of the Telecommunications (Consumer Protection and Service Standards) Act 1999.

Note 1: Subsection 87 (1) of the Act provides that the Minister may, by legislative instrument, make rules to be complied with by the Secretary in relation to the performance of the Secretary's functions, or the exercise of the Secretary's powers, under Division 2 of Part 3 of the Act. One of the powers relates to entering into a contract with an eligible funding recipient for various purposes: refer section 80 of the Act.

Note 2:       Subsection 87 (2) of the Act provides that the Secretary must comply with any rules in force under subsection (1).

4  Cessation

  This instrument ceases to have effect on the third anniversary of the day this instrument commences.

5  Simplified outline of this instrument

•      This instrument sets out rules for compliance by the Secretary of the Department in relation to the performance of the Secretary’s functions, or the exercise of the Secretary’s powers, under Division 2 of Part 3 of the Act.

•      Part 2 of this instrument sets out rules requiring the Secretary to include specific terms and conditions in any written agreement entered into under section 80 between the Secretary (on behalf of the Commonwealth) and an eligible funding recipient.

•      The rules in Part 2 make provision in relation to required terms and conditions relating to:

(a)     the publication of amounts received by the eligible funding recipient, NBN Co, through the Regional Broadband Scheme;  

(b)     enhanced transparency regarding how money was accrued, expended and to be expended, on the NBN fixed wireless network and NBN satellite network;

(c)     the provision of consistent and up-to-date information on the size of the NBN fixed wireless network and NBN satellite network footprints; and

(d)     the provision of information about the performance of the NBN fixed wireless network and NBN satellite network.

6  Interpretation

Note 1:       A number of expressions used in this instrument are defined in the Act, including the following:            

(a)   charge offset certificate (section 98);

(b)   eligible funding recipient (section 78);

(c)   financial year (section 78A);

(d)   fixed wireless broadband service (section 76AB);

(e)   NBN Co (section 76);

(f)    nominal funding entitlement certificate (section 86); and

(g)   satellite broadband service (section 77).

Note 2: The expression ‘business day’ is defined in section 2B of the Acts Interpretation Act 1901, which applies to this instrument because of section 13 of the Legislation Act 2003.

In this instrument:

Act means the Telecommunications (Consumer Protection and Service Standards) Act 1999.

active service means an eligible service supplied by NBN Co to a carriage service provider in order that the carriage service provider can provide indirectly or directly, a retail fixed wireless broadband service or a satellite broadband service to an end-user.

Annual Report means the report that NBN Co is required to prepare in accordance with section 97 of the Public Governance Public Governance, Performance and Accountability Act 2013.

eligible service has the same meaning as given by section 152AL of the Competition and Consumer Act 2010.

NBN corporation has the same meaning given by section 5 of the National Broadband Network Companies Act 2011.

NBN fixed wireless footprint means the areas of Australia where eligible services are available to be supplied, or supplied to, premises using the NBN fixed wireless network.

NBN fixed wireless network means any telecommunications network that is owned or controlled by, or operated by or on behalf of, NBN Co or any other NBN corporation using a fixed wireless access technology.

NBN satellite footprint means the areas of Australia where eligible services are available to be supplied, or supplied to, premises using the NBN satellite network.

NBN satellite network means any telecommunications network that is owned or controlled by, or operated by or on behalf of, NBN Co or another NBN corporation using a satellite.

national broadband network has the meaning given by section 5 of the National Broadband Network Companies Act 2011.

prescribed report means the report published by NBN Co in accordance with the contractual term required by paragraph 8(1)(a) of this instrument.

reporting year has the meaning given by paragraph 8(1)(b) of this instrument.

RBS net money, in relation to a reporting year, means the amount equal to the total amount specified in a nominal funding entitlement certificate issued to NBN Co in the reporting year less the total amount specified in a charge offset certificate issued to NBN Co in that same year.

Part 2—Rules

Division 1—Preliminary

7  Simplified outline of this Part

•      This Part of the instrument sets out the required terms and conditions that must be included in a written agreement which the Secretary enters into with the eligible funding recipient, NBN Co.

Division 2—Required terms and conditions

8 Terms and conditions to be included in a section 80 contract or grant of financial assistance

(1)The terms and conditions of a contract or grant which the Secretary enters into with the eligible funding recipient, NBN Co, pursuant to section 80 of the Act, must include:

(a)a term requiring NBN Co to publish:

(i)     by 31 October of each year during which the contract or grant is in force; and

(ii)   on the same website page where NBN Co publishes its Annual Reports;

   a report covering the immediately prior financial year (reporting year) containing:

(iii) the information specified in subsection (2) below; and

(iv) information about the performance of the NBN fixed wireless network and NBN satellite network; and

(v)   information about cell and tower upgrades on the NBN fixed wireless network;

(b)a term requiring NBN Co to ensure that the information contained in each prescribed report, covering the matters specified in paragraphs 8(2)(a)-(d), has been independently assured;

(c)a term requiring NBN Co to ensure that the information contained in each prescribed report, covering the matters specified in paragraphs 8(1)(iv) –(v) and paragraphs 8(2)(e) and (f), has been verified for accuracy by either NBN Co’s Chief Financial Officer or Chief Executive Officer;

(d)a term requiring NBN Co to take all reasonable steps to ensure that each prescribed report remains available on NBN Co’s website for at least 5 years after each prescribed report was first published; and

(e)a term requiring NBN Co to provide to the Commonwealth a copy of the prescribed report, and the relevant independent assurance statement and verification statement at least 20 business days prior to publishing the prescribed report on its website.

(2)For the purposes of subsection (1), the following information is specified:

(a)the total amount set out in the nominal funding entitlement certificate issued to NBN Co in the reporting year;

(b)the total amount set out in the charge offset certificate issued to NBN Co in the reporting year;

(c)a high level summary given by NBN Co’s Chief Financial Officer or Chief Executive Officer in respect of how the RBS net money relating to the financial year being reported on was spent or accounted for during the reporting year;

(d)for the reporting year, and the financial year immediately prior to that year, the information specified in subparagraphs (i) to (vi) below:

(i)     the total gross revenue received by NBN Co in the reporting year directly derived from the supply of eligible services by NBN Co using the NBN fixed wireless network;

(ii)   the total gross revenue received by NBN Co in the reporting year  directly derived from the supply of eligible services by NBN Co using the NBN satellite network;

(iii) the total direct operating expenditure incurred by NBN Co in the reporting year on the NBN fixed wireless network;

(iv) the total direct operating expenditure incurred by NBN Co in the reporting year on the NBN satellite network;

(v)   the total direct capital expenditure incurred by NBN Co in the reporting year on the NBN fixed wireless network;

(vi) the total direct capital expenditure incurred by NBN Co in the reporting year on the NBN satellite network;

(e)for the reporting year, and the three financial years immediately prior to that year (collectively, the four years), the information specified in subparagraphs (i) to (vi) below, and details of any materially significant change to the information series across each of the four years, an explanation for the changes:

(i)     the number of premises situated in the NBN fixed wireless footprint that are identified by NBN Co as ‘ready to connect’ as at 30 June of each year;

(ii)   the number of premises situated in the NBN satellite footprint that are identified by NBN Co as ‘ready to connect’ as at 30 June of each year;

(iii) the number of premises identified by NBN Co as ‘activated premises’ situated in the NBN fixed wireless footprint supplied with one or more active services by NBN Co as at 30 June of each year;

(iv) the number of premises identified by NBN Co as ‘activated premises’ situated in the NBN satellite footprint supplied with one or more active services by NBN Co as at 30 June of each year;  

(v)   the total estimated number of square kilometres covered by the NBN fixed wireless network footprint as at 30 June of each year;  and

(vi) the total estimated number of square kilometres covered by the NBN satellite network footprint as at 30 June of each year; and

(f)information about any material changes to NBN Co's wholesale services and product offerings implemented by NBN Co in the reporting year that has materially improved the service characteristics of eligible services supplied using the NBN fixed wireless network or the NBN satellite network.

(3)For the avoidance of doubt, nothing in subsections (1) or (2) either expressly or by implication limits the subject matter of, or inclusion of, other terms and conditions that may be included in respect of a prescribed report (including any descriptors that apply to the information in a prescribed report), a contract or grant made in accordance with section 80 of the Act.