Telstra (Transition to Full Private Ownership) Act 2005 (Cth)

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Telstra (Transition to Full Private Ownership) Act 2005

Act No. 118 of 2005 as amended

This compilation was prepared on 24 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 the Telstra Corporation Act 1991, and for other purposes

1Short title [see Note 1]

This Act may be cited as the Telstra (Transition to Full Private Ownership) Act 2005.

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 5 and anything in this Act not elsewhere covered by this table	The day on which this Act receives the Royal Assent.	23 September 2005
2. Schedule 1, Part 1	The day on which this Act receives the Royal Assent.	23 September 2005
3. Schedule 1, items 41 to 51	The designated day declared under section 3.	24 November 2006 (see F2006L03997)
3B. Schedule 1, items 53 to 65	The designated day declared under section 3.	24 November 2006 (see F2006L03997)
4. Schedule 1, Part 3	The 85% sale day declared under section 4.	28 February 2007 (see F2007L00883)

Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2)
Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3Designated day

(1)
If, in the opinion of the Minister, a particular day is the first day after the commencement of Part 1 of Schedule 1 on which a majority of the voting shares in Telstra are held by a person, or persons, other than the Commonwealth, the Minister must, by written instrument, declare the day to be the designated day for Telstra.
(2)
The declaration has effect accordingly.
Future Fund and Communications Fund
(3)
For the purposes of this section, if a share in Telstra is an investment of the Future Fund or the Communications Fund, the share is taken to be held by a person other than the Commonwealth.
Securities lending arrangements
(4)
For the purposes of this section, if, under an agreement of the kind known as a securities lending arrangement:
(a)
at a particular time (the disposal time), the Commonwealth disposed of a share in Telstra (the borrowed share) to another person (the borrower); and
(b)
the Commonwealth may come under an obligation to:
(i)
re‑acquire the borrowed share from the borrower at a later time; or
(ii)
acquire an identical share from the borrower at a later time;
the borrowed share is taken to be held by the Commonwealth during the period:
(c)
beginning at the disposal time; and
(d)
ending when the obligation mentioned in paragraph (b) is discharged or can no longer arise.
Declaration
(5)
The declaration under subsection (1) is a legislative instrument for the purposes of the Legislative Instruments Act 2003, but section 42 of that Act does not apply to the declaration.
(6)
The designated day may be earlier than the day on which the declaration under subsection (1) is registered under the Legislative Instruments Act 2003.
Definitions
(7)
In this section:
category A hybrid‑security issuer company has the same meaning as in the Telstra Corporation Act 1991.
Communications Fund has the same meaning as in the Telstra Corporation Act 1991.
Future Fund has the same meaning as in the Telstra Corporation Act 1991.
Telstra has the same meaning as in the Telstra Corporation Act 1991.
the Commonwealth includes a category A hybrid‑security issuer company.
voting share has the same meaning as in the Telstra Corporation Act 1991.

485% sale day

(1)
If, in the opinion of the Minister, a particular day is the first day after the commencement of Part 1 of Schedule 1 on which 85% of the voting shares in Telstra are held by a person, or persons, other than the Commonwealth, the Minister must, by written instrument, declare the day to be the 85% sale day for Telstra.
(2)
The declaration has effect accordingly.
Future Fund and Communications Fund
(3)
For the purposes of this section, if a share in Telstra is an investment of the Future Fund or the Communications Fund, the share is taken to be held by a person other than the Commonwealth.
Securities lending arrangements
(4)
For the purposes of this section, if, under an agreement of the kind known as a securities lending arrangement:
(a)
at a particular time (the disposal time), the Commonwealth disposed of a share in Telstra (the borrowed share) to another person (the borrower); and
(b)
the Commonwealth may come under an obligation to:
(i)
re‑acquire the borrowed share from the borrower at a later time; or
(ii)
acquire an identical share from the borrower at a later time;
the borrowed share is taken to be held by the Commonwealth during the period:
(c)
beginning at the disposal time; and
(d)
ending when the obligation mentioned in paragraph (b) is discharged or can no longer arise.
Declaration
(5)
The declaration under subsection (1) is a legislative instrument for the purposes of the Legislative Instruments Act 2003, but section 42 of that Act does not apply to the declaration.
(6)
The 85% sale day may be earlier than the day on which the declaration under subsection (1) is registered under the Legislative Instruments Act 2003.
Definitions
(7)
In this section:
category A hybrid‑security issuer company has the same meaning as in the Telstra Corporation Act 1991.
Communications Fund has the same meaning as in the Telstra Corporation Act 1991.
Future Fund has the same meaning as in the Telstra Corporation Act 1991.
Telstra has the same meaning as in the Telstra Corporation Act 1991.
the Commonwealth includes a category A hybrid‑security issuer company.
voting share has the same meaning as in the Telstra Corporation Act 1991.

5Schedule(s)

(1)
Each Act, and each set of regulations, that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
(2)
The amendment of any regulation under subsection (1) does not prevent the regulation, as so amended, from being amended or repealed by the Governor‑General.

Schedule 1AmendmentsPart 1Amendments commencing on Royal Assent

Telstra Corporation Act 1991

1

Section 3

Insert:
category A hybrid‑security issuer company means a hybrid‑security issuer company other than a category B hybrid‑security issuer company.

2

Section 3

Insert:
category B hybrid‑security issuer company has the meaning given by subsection 8AJ(6B).

3

Section 3

Insert:
Communications Fund means the Communications Fund established by a law of the Commonwealth.

4

Section 3

Insert:
Future Fund means the Future Fund established by a law of the Commonwealth.

5

Section 3

Insert:
hybrid‑security issuer company has the meaning given by section 8AJ.

6

Section 3

Insert:
sale‑scheme hybrid security has the meaning given by section 8AJA.

7

Section 8AA

Omit:
• The Commonwealth may sell 49.9% of its original equity interest in Telstra, but must retain the remaining 50.1%.

substitute:
• The Commonwealth may sell its remaining equity interest in Telstra.

8

Division 2 of Part 2

Repeal the Division.

9

Subsection 8AJ(1)

Omit “and sale‑scheme trust deed”, substitute “, sale‑scheme trust deed and hybrid‑security issuer company”.

10

Subsection 8AJ(2)

Omit “a part”, substitute “the whole or a part”.

11

Subsection 8AJ(3)

Repeal the subsection, substitute:
(3)
A Telstra sale scheme must comply with any rules set out in a determination in force under subsection (3A).
(3A)
The Minister for Finance may make a written determination setting out rules that are to be complied with by a Telstra sale scheme.
(3B)
A determination under subsection (3A) is a legislative instrument for the purposes of the Legislative Instruments Act 2003, but section 42 of that Act does not apply to the determination.

12

At the end of subsection 8AJ(4)

Add:
; (k)
the issue by the Commonwealth or Telstra of sale‑scheme hybrid securities;
(l)
an arrangement under which one or more designated companies (each of which is called a hybrid‑security issuer company) issue sale‑scheme hybrid securities;
(m)
the guarantee by the Commonwealth of obligations of a hybrid‑security issuer company in relation to sale‑scheme hybrid securities (for example, obligations to make payments of interest or dividends);
(n)
an agreement of the kind known as a securities lending arrangement, where the securities lending arrangement relates to shares in Telstra.

13

After subsection 8AJ(6)

Insert:
(6A)
For the purposes of this section, a designated company is:
(a)
a wholly‑owned Commonwealth company; or
(b)
a body corporate specified in a written declaration made by the Minister for Finance under this paragraph.
(6B)
A category B hybrid‑security issuer company is a hybrid‑security issuer company (other than a wholly‑owned Commonwealth company) specified in a written declaration made by the Minister for Finance under this subsection.
(6C)
A declaration under paragraph (6A)(b) or subsection (6B) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.
(6D)
For the purposes of this section, if a share in Telstra is an investment of the Future Fund or the Communications Fund, the share is taken to be held by a person other than the Commonwealth.

14

Subsection 8AJ(7)

Insert:
designated company has the meaning given by subsection (6A).

15

Subsection 8AJ(7)

Insert:
wholly‑ownedCommonwealth company has the same meaning as in the Commonwealth Authorities and Companies Act 1997 (in working out whether a company is covered by this definition, ignore any sale‑scheme hybrid securities issued by the company).

16

After section 8AJ

Insert:

8AJASale‑scheme hybrid securities

(1)
For the purposes of this Act, a sale‑scheme hybrid security is:
(a)
an interest‑bearing security that is issued on the basis that it will or may be redeemed in exchange for a share or shares in Telstra; or
(b)
a share that is issued on the basis that it will or may be redeemed in exchange for a share or shares in Telstra; or
(c)
any other security or financial product that is issued on the basis that it will or may be redeemed in exchange for a share or shares in Telstra; or
(d)
an option to acquire a share or shares in Telstra; or
(e)
an interest‑bearing security that is issued on the basis that it will or may be converted to a share or shares in Telstra; or
(f)
any other security or financial product that is issued on the basis that it will or may be converted to a share or shares in Telstra; or
(g)
an interest‑bearing security that is issued on the basis that it will or may be exchanged for a share or shares in Telstra; or
(h)
any other security or financial product that is issued on the basis that it will or may be exchanged for a share or shares in Telstra; or
(i)
a security, or a financial product, that:
(i)
is specified in a written declaration made by the Minister for Finance under this subparagraph; and
(ii)
relates directly or indirectly to Telstra.
(2)
A security or financial product covered by a paragraph of subsection (1) may (but need not) include a charge, pledge or lien.
(3)
A security covered by paragraph (1)(a), (e) or (g) may be issued in or outside Australia, and may be denominated in:
(a)
Australian currency; or
(b)
a currency other than Australian currency.
(4)
A share covered by paragraph (1)(b) may be issued in or outside Australia, and any rights or obligations may be denominated in:
(a)
Australian currency; or
(b)
a currency other than Australian currency.
(5)
A security or financial product covered by paragraph (1)(c), (f), (h) or (i) may be issued in or outside Australia, and any rights or obligations may be denominated in:
(a)
Australian currency; or
(b)
a currency other than Australian currency.
(6)
An option covered by paragraph (1)(d) may be issued in or outside Australia, and the exercise price may be denominated in:
(a)
Australian currency; or
(b)
a currency other than Australian currency.
(7)
A declaration under subparagraph (1)(i)(i) is a legislative instrument for the purposes of the Legislative Instruments Act 2003, but section 42 of that Act does not apply to the declaration.
(8)
In this section:
charge has the same meaning as in the Corporations Act 2001.
financial product has the same meaning as in Chapter 7 of the Corporations Act 2001.
security has the same meaning as in Chapter 7 of the Corporations Act 2001.

17

Subsection 8AK(1)

Insert:
charge has the same meaning as in the Corporations Act 2001.
18
Subsection 8AK(1) (after paragraph (k) of the definition of designated matter)
Insert:
(ka)
the issue of sale‑scheme hybrid securities;
(kb)
the receipt of money by the Commonwealth, or by a person acting on behalf of the Commonwealth, in respect of the issue of sale‑scheme hybrid securities;
(kc)
the receipt of money by a hybrid‑security issuer company, or by a person acting on behalf of a hybrid‑security issuer company, in respect of the issue of sale‑scheme hybrid securities;
(kd)
the redemption, exchange or conversion of sale‑scheme hybrid securities;
(ke)
the transfer by a hybrid‑security issuer company of a share in Telstra held by the company;
(kf)
the grant of a charge, pledge or lien (whether in connection with sale‑scheme hybrid securities or otherwise);
(kg)
an agreement relating to a matter covered by paragraph (c), (f), (g), (h), (i), (j), (k), (ka), (kb), (kc), (kd), (ke) or (kf);
(kh)
an agreement of the kind known as a securities lending arrangement, where the securities lending arrangement relates to shares in Telstra;

19

At the end of section 8AL

Add:
(3)
Subsection (1) does not authorise the appropriation of the Consolidated Revenue Fund at any time after the commencement of this subsection.

20

Paragraph 8AR(1)(b)

Omit “section 205”, substitute “Part 2J.3”.

21

Paragraph 8AR(1)(c)

Omit “Part 3.2A”, substitute “Chapter 2E”.

22

Subsections 8AR(2) and (3)

Repeal the subsections.

23

At the end of section 8AS

Add:
(5)
Subsection (3) does not authorise the appropriation of the Consolidated Revenue Fund at any time after the commencement of this subsection.

24

At the end of section 8AT

Add:
Chinese wall arrangements
(5)
The Commonwealth does not contravene subsection 1043A(1) of the Corporations Act 2001 by entering into a transaction or agreement at any time in relation to:
(a)
shares in Telstra; or
(b)
sale‑scheme hybrid securities; or
(c)
a Telstra sale scheme;
merely because of information in the possession of an officer or employee of the Commonwealth if:
(d)
the decision to enter into the transaction or agreement was taken on its behalf by a person or persons other than that officer or employee; and
(e)
it had in operation at that time arrangements that could reasonably be expected to ensure that:
(i)
the information was not communicated to the person or persons who made the decision; and
(ii)
no advice with respect to the transaction or agreement was given to that person or any of those persons by a person in possession of the information; and
(f)
the information was not so communicated and no such advice was given.
(6)
A reference in subsection (5) to an officer of the Commonwealth includes a reference to the holder of an office under a law of the Commonwealth.

25

Subsection 8AV(5)

Omit “section 195”, substitute “Part 2J.1”.

26

Subsection 8AV(6)

Repeal the subsection.

27

After section 8AY

Insert:

8AYAMinister for Finance may direct Telstra not to dilute the Commonwealth’s equity in Telstra etc.

Equity‑dilution conduct
(1)
For the purposes of this section, equity‑dilution conduct is conduct that:
(a)
will result, or is likely to result, in a dilution of the Commonwealth’s equity in Telstra; and
(b)
is not carried out under a Telstra sale scheme.
(2)
In determining whether conduct is equity‑dilution conduct, regard must be had to the economic and commercial substance of the conduct.
(3)
Subsection (2) does not, by implication, limit subsection (1).
Security‑issue conduct
(4)
For the purposes of this section, security‑issue conduct is conduct that consists of the issue of a security or a financial product.
Notification of proposal to engage in equity‑dilution conduct or security‑issue conduct
(5)
Before engaging in particular equity‑dilution conduct or security‑issue conduct, Telstra must give the Minister for Finance a written notice:
(a)
setting out details of Telstra’s proposal to engage in that conduct; and
(b)
giving Telstra’s reasons for that proposal.
(6)
A notice under subsection (5) must be given to the Minister for Finance not later than:
(a)
30 days before engaging in the equity‑dilution conduct or security‑issue conduct; or
(b)
if the Minister for Finance allows a shorter period—the beginning of that shorter period.
Direction not to engage in equity‑dilution conduct or security‑issue conduct
(7)
The Minister for Finance may, by written notice given to Telstra, direct Telstra not to engage in specified equity‑dilution conduct or specified security‑issue conduct.
Note: For specification by class, see subsection 46(3) of the Acts Interpretation Act 1901.
(8)
Telstra must comply with a direction under subsection (7).
Sanction
(9)
A breach of this section is not an offence. However, a breach of this section is a ground for obtaining an injunction under Division 1 of Part 2B.
Future Fund and Communications Fund
(10)
For the purposes of this section, if a share in Telstra is an investment of the Future Fund or the Communications Fund, the share is taken to be held by a person other than the Commonwealth.
Direction
(11)
A direction under subsection (7) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Definitions
(12)
In this section:
financial product has the same meaning as in Chapter 7 of the Corporations Act 2001.
security has the same meaning as in Chapter 7 of the Corporations Act 2001.
the Commonwealth includes a category A hybrid‑security issuer company.

8AYBTelstra to give information to the Minister about the level of non‑Commonwealth ownership of shares in Telstra

Direction to give information
(1)
The Minister may, by written notice given to Telstra, direct Telstra to give to the Minister, within the period specified in the notice, specified information that is relevant to determining either or both of the following:
(a)
whether or not a particular day is the first day after the commencement of this section on which a majority of the voting shares in Telstra are held by a person, or persons, other than the Commonwealth;
(b)
whether or not a particular day is the first day after the commencement of this section on which 85% of the voting shares in Telstra are held by a person, or persons, other than the Commonwealth.
(2)
Telstra must comply with a direction under subsection (1).
Sanction
(3)
A breach of this section is not an offence. However, a breach of this section is a ground for obtaining an injunction under Division 1 of Part 2B.
Future Fund and Communications Fund
(4)
For the purposes of this section, if a share in Telstra is an investment of the Future Fund or the Communications Fund, the share is taken to be held by a person other than the Commonwealth.
Securities lending arrangements
(5)
For the purposes of this section, if, under an agreement of the kind known as a securities lending arrangement:
(a)
at a particular time (the disposal time), the Commonwealth disposed of a share in Telstra (the borrowed share) to another person (the borrower); and
(b)
the Commonwealth may come under an obligation to:
(i)
re‑acquire the borrowed share from the borrower at a later time; or
(ii)
acquire an identical share from the borrower at a later time;
the borrowed share is taken to be held by the Commonwealth during the period:
(c)
beginning at the disposal time; and

(d)
ending when the obligation mentioned in paragraph (b) is discharged or can no longer arise.
Direction
(6)
A direction under subsection (1) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Definition
(7)
In this section:
the Commonwealth includes a category A hybrid‑security issuer company.

8AYCApplication of the Ombudsman Act 1976 to Telstra

In determining whether Telstra is a prescribed authority for the purposes of the Ombudsman Act 1976, assume that each reference to the Commonwealth in the definition of Commonwealth‑controlled company in subsection 3(1) of that Act includes a reference to a category A hybrid‑security issuer company.

8AYDControlling interest in Telstra

In determining, for the purposes of a law of the Commonwealth (other than this Act), whether the Commonwealth has a controlling interest in Telstra, if a share in Telstra is an investment of the Future Fund or the Communications Fund, assume that any voting rights associated with the share were held by a person other than the Commonwealth.

28

At the end of section 8BA

Add:
(4)
Subsection (3) does not authorise the appropriation of the Consolidated Revenue Fund at any time after the commencement of this subsection.

29

Section 8CI

Omit “Part 2 or 2A” (wherever occurring), substitute “Part 2A”.

30

Subsection 8CI(6)

Omit “Part 2 or 2A”, substitute “Part 2A”.
Note: The heading to subsection 8CI(6) is altered by omitting “Part 2 or 2A” and substituting “Part 2A”.

31

Section 8CJ

Omit “Part 2 or 2A” (wherever occurring), substitute “Part 2A”.

32

Subsection 8CJ(6)

Omit “Part 2 or 2A”, substitute “Part 2A”.
Note: The heading to subsection 8CJ(6) is altered by omitting “Part 2 or 2A” and substituting “Part 2A”.

33

Subsection 8CK(1)

Omit “Part 2 or 2A”, substitute “Part 2A”.

34

Section 8CL

Omit “Part 2 or”.

35

Paragraph 26(b)

After “Crown”, insert “(however described)”.

36

After Part 2B

Insert:

Part 2C—Re‑affirmation of the universal service obligation, the digital data service obligation and the customer service guarantee

8CMRe‑affirmation of universal service obligation and digital data service obligation

(1)
The Parliament re‑affirms its intention:
(a)
that all people in Australia, wherever they reside or carry on business, will continue to have reasonable access, on an equitable basis, to standard telephone services, payphones and digital data services; and
(b)
that:
(i)
the universal service obligation described in section 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999; and
(ii)
the digital data service obligation described in section 10 of that Act;
should be fulfilled as efficiently and economically as practicable.
(2)
An expression used in this section and in Part 2 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 has the same meaning in this section as it has in that Part.

8CNRe‑affirmation of the customer service guarantee

(1)
The Parliament re‑affirms its intention that the Minister will take all reasonable steps to ensure that:
(a)
the ACMA continues to make performance standards to be complied with by carriage service providers in relation to customer service; and
(b)
if a carriage service provider contravenes a performance standard, the carriage service provider will continue to be liable to pay damages to the customer for the contravention.
(2)
An expression used in this section and in Part 5 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 has the same meaning in this section as it has in that Part.

37

Paragraph 9(3)(b) of the Schedule

Omit “in relation to an issue of shares in Telstra”.

38

After subclause 12(4A) of the Schedule

Insert:
(4AA)
For the purposes of subclause (4A), if a share in Telstra is an investment of the Future Fund or the Communications Fund, the share is taken to be held by a person other than the Commonwealth.
(4AB)
For the purposes of subclause (4A), if:
(a)
a share in Telstra is held by the Commonwealth; and
(b)
the share is specified in a written declaration made by the Minister for Finance under this paragraph;
the share is taken to be held by a person other than the Commonwealth.
Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.

39

Subclause 12(4B) of the Schedule

Omit “subclause (4A)”, substitute “subclauses (4A), (4AA) and (4AB)”.

40

At the end of clause 12 of the Schedule

Add:
(8)
A declaration under paragraph (4AB)(b) is a legislative instrument for the purposes of the Legislative Instruments Act 2003, but section 42 of that Act does not apply to the declaration.

Part 2Amendments commencing on the designated day

Administrative Decisions (Judicial Review) Act 1977

41

After paragraph (v) of Schedule 1

Insert:
(va)
decisions of Telstra Corporation Limited or a company that is a subsidiary of that company;

Archives Regulations

42

Regulation 2A

Repeal the regulation.

Australian Security Intelligence Organisation Act 1979

43

Section 4

Insert:
carriage service provider has the same meaning as in the Telecommunications Act 1997.

44

Section 4

Insert:
carrier has the same meaning as in the Telecommunications Act 1997.

45

Subsection 26(8)

Omit “controlled by Telstra Corporation Limited”, substitute “operated by a carrier or a carriage service provider”.

46

Subsection 27A(5)

Omit “controlled by Telstra Corporation Limited”, substitute “operated by a carrier or a carriage service provider”.

Freedom of Information Act 1982

47

Division 1 of Part II of Schedule 2

Omit “Telstra Corporation Limited in relation to documents in respect of its commercial activities”.

Freedom of Information (Miscellaneous Provisions) Regulations 1982

48

Schedule 1

Omit “Telstra Corporation Limited”.

49

Schedule 2 (table item 125A)

Repeal the item.

50

Schedule 3 (table item 12)

Repeal the item.
51
Transitional—requests under the Freedom of Information Act 1982

(1) If:

(a)
before the commencement of this item, a request was made under the Freedom of Information Act 1982 (the FOI Act) for access to a document in the possession of Telstra; and
(b)
the request had not been finally disposed of under the FOI Act immediately before the commencement of this item;
then:
(c)
the FOI Act and the regulations under the FOI Act have effect after the commencement of this item, in relation to the request, as if:
(i)
Telstra were an agency (within the meaning of the FOI Act); and
(ii)
the FOI Act and the Freedom of Information (Miscellaneous Provisions) Regulations had not been amended by this Part; and
(d)
the Administrative Appeals Tribunal Act 1975 has effect after the commencement of this item, in relation to a decision in connection with the request, as if:
(i)
Telstra were an agency (within the meaning of the FOI Act); and
(ii)
the FOI Act and the Freedom of Information (Miscellaneous Provisions) Regulations had not been amended by this Part.

(2) If:

(a)
before the commencement of this item, a person had:
(i)
applied under the Administrative Appeals Tribunal Act 1975 (the AAT Act) for a review of a decision of Telstra made under the Freedom of Information Act 1982 in relation to a particular document; or
(ii)
requested under the AAT Act a statement of reasons for such a decision; and
(b)
the application or request had not been finally disposed of under the AAT Act before the commencement of this item;
the AAT Act has effect after the commencement of this item, in relation to the application or request, as if:
(c)
Telstra were an agency (within the meaning of the Freedom of Information Act 1982); and
(d)
the Freedom of Information Act 1982 and the Freedom of Information (Miscellaneous Provisions) Regulations had not been amended by this Part.

Maternity Leave (Commonwealth Employees) Regulations

53

Item 2 of Schedule 2A

Repeal the item.

Ombudsman Regulations 1977

54

Schedule 2 (table item 15)

Repeal the item.

55

Schedule 4 (table item 17)

Repeal the item.
56
Transitional—complaints and investigations under the Ombudsman Act 1976

(1) If:

(a)
before the commencement of this item, a complaint was made to the Ombudsman under the Ombudsman Act 1976 in relation to action taken by Telstra; and
(b)
immediately before the commencement of this item, the Ombudsman had not finally disposed of the matter in accordance with that Act;
the Ombudsman Act 1976 and the regulations under the Ombudsman Act 1976 have effect after the commencement of this item, in relation to the complaint, as if:
(c)
Telstra were a prescribed authority (within the meaning of the Ombudsman Act 1976); and
(d)
the Ombudsman Regulations 1977 had not been amended by this Part.

(2) If:

(a)
before the commencement of this item, the Ombudsman commenced an investigation under the Ombudsman Act 1976 in relation to action taken by Telstra; and
(b)
immediately before the commencement of this item, the Ombudsman had not finally disposed of the matter in accordance with that Act;
the Ombudsman Act 1976 and the regulations under the Ombudsman Act 1976 have effect after the commencement of this item, in relation to the investigation, as if:
(c)
Telstra were a prescribed authority (within the meaning of the Ombudsman Act 1976); and
(d)
the Ombudsman Regulations 1977 had not been amended by this Part.

Telstra Corporation Act 1991

57

Section 3

Insert:
designated day means the day declared under section 3 of the Telstra (Transition to Full Private Ownership) Act 2005.

58

Section 3

Insert:
employee includes apprentice.

59

Section 3

Insert:
Long Service Leave Act means the Long Service Leave (Commonwealth Employees) Act 1976 as in force immediately before the third anniversary of the designated day.

60

Section 3

Insert:
Maternity Leave Act means the Maternity Leave (Commonwealth Employees) Act 1973 as in force immediately before the designated day.

61

Section 3

Insert:
SRC Act means the Safety, Rehabilitation and Compensation Act 1988.

62

Section 3

Insert:
Telstra body:
(a)
in Divisions 1, 2 and 3 of Part 3A—has the meaning given by subsection 3B(1); and
(b)
in the remaining provisions of this Act—has the meaning given by subsection 3B(2).

63

After section 3A

Insert:

3BTelstra body

Divisions 1, 2 and 3 of Part 3A
(1)
A reference in Divisions 1, 2 and 3 of Part 3A to a Telstra body is a reference to:
(a)
Telstra; or
(b)
a body corporate that is a subsidiary of Telstra immediately before the day that is the first day after the commencement of Part 1 of Schedule 1 to the Telstra (Transition to Full Private Ownership) Act 2005 on which a majority of the voting shares in Telstra are held by a person, or persons, other than the Commonwealth.
Remaining provisions
(2)
A reference in any of the remaining provisions of this Act to a Telstra body is a reference to:
(a)
Telstra; or
(b)
a body corporate that is a subsidiary of Telstra.
Future Fund and Communications Fund
(3)
For the purposes of subsection (1), if a share in Telstra is an investment of the Future Fund or the Communications Fund, the share is taken to be held by a person other than the Commonwealth.
Securities lending arrangements
(4)
For the purposes of subsection (1), if, under an agreement of the kind known as a securities lending arrangement:
(a)
at a particular time (the disposal time), the Commonwealth disposed of a share in Telstra (the borrowed share) to another person (the borrower); and
(b)
the Commonwealth may come under an obligation to:
(i)
re‑acquire the borrowed share from the borrower at a later time; or
(ii)
acquire an identical share from the borrower at a later time;
the borrowed share is taken to be held by the Commonwealth during the period:
(c)
beginning at the disposal time; and
(d)
ending when the obligation mentioned in paragraph (b) is discharged or can no longer arise.
Definition
(5)
In this section:
the Commonwealth includes a category A hybrid‑security issuer company.

64

Before Part 4

Insert:

Part 3A—Transitional provisions relating to the sale by the Commonwealth of its remaining equity interest in Telstra

Division 1—Long service leave

9AInterpretation

(1)
Unless the contrary intention appears, expressions used in this Division that are also used in the Long Service Leave Act have the same meanings in this Division as in that Act.
(2)
In this Division:
combined service period, in relation to an employee, means the total of:
(a)
the period that is, immediately before the third anniversary of the designated day, the employee’s period of service for the purposes of the Long Service Leave Act; and
(b)
the period starting on the third anniversary of the designated day during which the employee continues to be an employee of a Telstra body.
employee includes a person employed in a full‑time or a part‑time capacity.
industrial instrument means any of the following (within the meanings given by the Workplace Relations Act 1996):
(a)
a workplace agreement;
(b)
an award or a variation or order affecting an award;
(c)
a transitional award or a variation or order affecting a transitional award;
(d)
a pre‑reform AWA;
(e)
a pre‑reform certified agreement;
(f)
a preserved State agreement;
(g)
a notional agreement preserving State awards.
law means:
(a)
a law of the Commonwealth, a State or a Territory; or
(b)
regulations or any other instrument (other than a determination or industrial instrument) made under such a law.
post‑sale long service leave rights, in relation to an employee, means any long service leave rights the employee acquires under a determination or industrial instrument or law (other than this Act) on or after the third anniversary of the designated day in relation to service on or after that anniversary.

9BLong service leave for employees with less than 10 years service

(1)
This section provides that, in certain circumstances, a Telstra body may grant long service leave to an employee whose period of service for the purposes of the Long Service Leave Act is less than 10 years.
(2)
This section applies in relation to a person who is an employee of Telstra immediately before the third anniversary of the designated day if, at that time, the employee’s period of service for the purposes of the Long Service Leave Act is less than 10 years.
(3)
This section does not apply in relation to an employee who dies while in the employment of a Telstra body. Section 9D applies to such employees.
(4)
If the employee continues to be employed by a Telstra body on and after the third anniversary of the designated day until his or her combined service period is at least 10 years, the Telstra body may grant the employee long service leave on full salary for a period of up to the employee’s long service leave credit under subsection 9E(1).
(5)
If:
(a)
the employee ceases to be an employee of a Telstra body, on or after reaching the minimum retirement age, or because of retrenchment; and
(b)
the employee’s combined service period at the time when he or she ceases to be an employee of the Telstra body is at least one year;
the Telstra body may grant the employee long service leave on full salary for a period of up to the employee’s long service leave credit under subsection 9E(1).
(6)
If a period of long service leave may be granted to an employee under subsection (4) or (5), the Telstra body may, if the employee asks in writing, grant the employee long service leave on half salary for a period that is not more than twice the first‑mentioned period.
(7)
Long service leave granted in the circumstances set out in subsection (5) is to be taken so as to end immediately before the employee ceases to be an employee.
(8)
For the purposes of this section, the rate of salary to be used in working out the full salary of an employee is the rate that would be applicable to the employee under section 20 of the Long Service Leave Act if:
(a)
that section applied to the employee; and
(b)
for the expression “section 16 or 17” in that section there were substituted the expression “section 9C of the Telstra Corporation Act 1991”.

9CPayments in lieu of long service leave for employees with less than 10 years service

(1)
This section provides that, in certain circumstances, a Telstra body must pay an amount in respect of long service leave to an employee who has not used all of his or her long service leave credit by taking long service leave under section 9B.
(2)
This section applies in relation to a person who is an employee of Telstra immediately before the third anniversary of the designated day if, at that time, the employee’s period of service for the purposes of the Long Service Leave Act is less than 10 years.
(3)
This section does not apply in relation to an employee who dies while in the employment of a Telstra body. Section 9D applies to such employees.
(4)
Subject to subsection (7), if the employee ceases to be an employee of a Telstra body on or after the day on which his or her combined service period reaches 10 years, the Telstra body must pay him or her an amount equal to full salary in respect of his or her long service leave credit under subsection 9E(2).
(5)
Subject to subsection (7), if:
(a)
the employee ceases to be an employee of a Telstra body, on or after reaching the minimum retiring age, or because of retrenchment; and
(b)
the employee’s combined service period at the time when he or she ceases to be an employee of the Telstra body is at least one year;
the Telstra body must pay him or her an amount equal to full salary in respect of his or her long service leave credit under subsection 9E(2).
(6)
Subject to subsection (7), if:
(a)
the employee ceases to be an employee of a Telstra body; and
(b)
the Telstra body is satisfied that the employee left the Telstra body because of ill‑health that justified his or her so leaving; and
(c)
when the employee left, his or her combined service period was at least one year;
the Telstra body must pay him or her an amount equal to full salary in respect of his or her long service leave credit under subsection 9E(2).
(7)
An employee may, by written notice given to a Telstra body before the employee ceases to be an employee of the Telstra body:
(a)
request the Telstra body not to make a payment to the employee under this section; or
(b)
request the Telstra body to make a payment under subsection (4), (5) or (6) of a stated amount that is less than the amount that would otherwise be payable under that subsection.
(8)
The Telstra body must comply with a request made under subsection (7).
(9)
For the purposes of this section, the rate of salary to be used in working out the full salary of an employee is the rate that would be applicable to the employee under section 21 of the Long Service Leave Act if:
(a)
that section applied to the employee; and
(b)
for the expression “sections 16 and 17” in that section there were substituted the expression “section 9C of the Telstra Corporation Act 1991”.

9DPayments on the death of an employee

(1)
This section applies in relation to a person who is an employee of Telstra immediately before the third anniversary of the designated day if, at that time, the employee’s period of service for the purposes of the Long Service Leave Act is less than 10 years.
(2)
If, on or after the third anniversary of the designated day, the employee dies and, immediately before his or her death:
(a)
the employee was an employee of a Telstra body; and
(b)
the employee’s combined service period was at least one year; and
(c)
the employee had one or more dependants;
the Telstra body must make a payment to a dependant, or to 2 or more dependants, of the employee.
(3)
The total amount of the payment or payments is the amount that would have been payable to the employee under section 9C if, on the day of his or her death, the employee had ceased to be an employee of the Telstra body on or after reaching the minimum retiring age.
(4)
If subsection (2) applies, section 23 of the Long Service Leave Act has effect as if:
(a)
that section applied to an employee of a Telstra body; and
(b)
a reference in that section to the approving authority were a reference to the Telstra body; and
(c)
for the expression “this Act” in that section there were substituted the expression “section 9D of the Telstra Corporation Act 1991”; and
(d)
for the expression “subsection 16(7) or 17(5)” in that section there were substituted the expression “section 9D of the Telstra Corporation Act 1991”.

9EEmployee’s long service leave credit for the purposes of sections 9B and 9C

(1)
For the purposes of section 9B, an employee’s long service leave credit is equal to the long service leave credit that the employee would have under the Long Service Leave Act for the period:
(a)
starting when the employee started his or her period of service; and
(b)
ending on the third anniversary of the designated day;
if the employee had been retrenched on the third anniversary of the designated day.
(2)
For the purposes of section 9C, an employee’s long service leave credit is the employee’s long service leave credit worked out under subsection (1) of this section reduced by any long service leave credit used under section 9B.

9FDivision not to affect an employee’s post‑sale long service leave rights

To avoid doubt, this Division does not affect an employee’s post‑sale long service leave rights.

9GSaving—Long Service Leave Act

If, immediately before the third anniversary of the designated day, the period of service under the Long Service Leave Act of an employee of Telstra is at least 10 years, then:
(a)
the employee’s accrued rights under the Long Service Leave Act continue; and
(b)
the Long Service Leave Act has effect on and after the third anniversary of the designated day in relation to the employee as if Telstra were an approving authority for the purposes of that Act.

Division 2—Operation of the Safety, Rehabilitation and Compensation Act 1988

9HOperation of section 128A of the SRC Act

On and after the designated day, section 128A of the SRC Act continues to apply to Telstra as if Telstra were still a prescribed Commonwealth authority for the purposes of that section.

Division 3—Retirement benefits

9JDeferred benefits under the Defence Force Retirement and Death Benefits Act 1973

(1)
This section applies if, immediately before the designated day, an employee of a Telstra body was a person to whom deferred benefits were applicable under section 78 of the Defence Force Retirement and Death Benefits Act 1973.
(2)
For the purposes of Division 3 of Part IX of the Defence Force Retirement and Death Benefits Act 1973, the employee is taken to continue in public employment, on and after the designated day, while the employee continues to be employed by a Telstra body.
(3)
This section is subject to Division 3 of Part IX of the Defence Force Retirement and Death Benefits Act 1973.

9KPeriod of eligible employment for the purposes of Division 3 of Part IX of the Defence Force Retirement and Death Benefits Act 1973

(1)
This section applies if, immediately before the designated day, a particular period of employment of a person by a Telstra body was a period of eligible employment for the purposes of Division 3 of Part IX of the Defence Force Retirement and Death Benefits Act 1973.
(2)
If employment by the Telstra body ceases to be eligible employment for the purposes of Division 3 of Part IX of the Defence Force Retirement and Death Benefits Act 1973 on the designated day, then, despite that cessation, the period of employment continues to be a period of eligible employment for the purposes of that Division.

9LApplication of the Superannuation Act 1976

If an employee of a Telstra body was an eligible employee for the purposes of the Superannuation Act 1976 immediately before the designated day, the employee is taken to have ceased to be an eligible employee for the purposes of that Act on the designated day.

Division 4—Other transitional and saving provisions

9MTelstra employees not on maternity leave immediately before the designated day

(1)
This section applies if:
(a)
immediately before the designated day, a woman was an employee of Telstra; and
(b)
within 12 months after the designated day, the woman would have been entitled to begin leave granted under the Maternity Leave Act if Telstra had continued to be a prescribed authority for the purposes of that Act.
(2)
On and after the designated day, the Maternity Leave Act continues to apply to the woman in relation to the confinement in respect of which she would have been entitled to leave as if Telstra continued to be a prescribed authority for the purposes of that Act.

9NTelstra employees on maternity leave on the designated day

(1)
This section applies if:
(a)
immediately before the designated day, a woman was an employee of Telstra; and
(b)
on the designated day, the woman is on leave granted under the Maternity Leave Act.
(2)
On and after the designated day, the Maternity Leave Act continues to apply to the woman in relation to the confinement in respect of which the leave was granted as if Telstra continued to be a prescribed authority for the purposes of that Act.

9PSaving—Crimes (Superannuation Benefits) Act 1989

(1)
Subject to this section, if a person who was an employee of a Telstra body before the designated day committed a corruption offence while such an employee, then, on and after the designated day, the Crimes (Superannuation Benefits) Act 1989 continues to apply in relation to the person in respect of the offence as if the Telstra body continued to be a Commonwealth authority.
(2)
A superannuation order may not be made under the Crimes (Superannuation Benefits) Act 1989 in relation to employer contributions or benefits paid or payable to a superannuation scheme by a Telstra body on or after the designated day.
(3)
A superannuation scheme in relation to which employer contributions or benefits are paid or payable by a Telstra body is not a superannuation scheme for the purposes of the Crimes (Superannuation Benefits) Act 1989 in respect of a corruption offence committed by a person on or after the designated day.
(4)
Despite paragraph 19(3)(d) of the Crimes (Superannuation Benefits) Act 1989, an order under that paragraph may only order that an amount be paid to the Commonwealth.
(5)
If:
(a)
a person who was an employee of Telstra before the designated day committed a corruption offence while such an employee; and
(b)
the person was paid benefits before, on or after that day out of the Consolidated Revenue Fund;
then, despite paragraph 19(4)(b) of the Crimes (Superannuation Benefits) Act 1989, an order under that paragraph may only order that an amount be paid to the Commonwealth.
(6)
Unless the contrary intention appears, expressions used in this section that are also used in the Crimes (Superannuation Benefits) Act 1989 have the same meanings in this section as in that Act.

9QSaving—Director of Public Prosecutions Act 1983

Even though the Director of Public Prosecutions Act 1983 ceases to apply to certain acts, omissions or proceedings in connection with a Telstra body because the Telstra body ceases to be an authority of the Commonwealth for the purposes of that Act, that Act continues on and after the designated day to apply in relation to:
(a)
acts or omissions in connection with a Telstra body that occurred before the designated day; and
(b)
the taking of civil remedies connected with or arising out of a prosecution that relates to acts or omissions referred to in paragraph (a).

9RRefund of part of fee paid under section 104A of the SRC Act

(1)
If:
(a)
Telstra has paid a licence fee under section 104A of the SRC Act; and
(b)
part of the fee is attributable to the application of paragraph 104A(2)(b) of that Act to the relevant period in which the designated day occurs;
Comcare must pay Telstra the amount worked out using the following formula:
where:
applicable part of the fee means the part of the fee mentioned in paragraph (b).
number of refund days means the total number of days in the period beginning on the designated day and ending on the last day of the relevant period in which the designated day occurs.
(2)
In this section:
relevant period has the same meaning as in section 104A of the SRC Act.

65

Before subsection 36(3)

Insert:
(1)
The Auditor‑General may, by written notice given to Telstra, resign as auditor of Telstra.
(2)
Subsections (3), (3A) and (4) are repealed at whichever is the earlier of the following times:
(a)
the time when the Auditor‑General resigns in accordance with subsection (1);
(b)
the end of the first annual general meeting of Telstra held after the designated day.
(2A)
Even if subsections (3), (3A) and (4) remain in effect until the end of the first annual general meeting of Telstra held after the designated day, a replacement auditor may be appointed at the meeting, in accordance with the Corporations Act 2001, as if a vacancy in the office of auditor had arisen at the start of the meeting.

Part 3Amendments commencing on the 85% sale day

Telstra Corporation Act 1991

66

Section 8AA

Omit:
• This Part imposes reporting obligations on Telstra.

67

Division 3 of Part 2

Repeal the Division.

68

Subsection 8AW(1)

Omit “Division 3 or”, substitute “repealed Division 3 or under”.

69

Paragraph 8AX(1)(a)

Omit “Division 3 or”, substitute “repealed Division 3 or under”.

70

Subsection 8AY(1)

Omit “Division 3 or”, substitute “repealed Division 3 or under”.

71

Section 8AYA

Repeal the section.

72

Part 3

Repeal the Part.

Notes to the Telstra (Transition to Full Private Ownership) Act 2005

Note 1

The Telstra (Transition to Full Private Ownership) Act 2005 as shown in this compilation comprises Act No. 118, 2005 amended as indicated in the Tables below.

The Telstra (Transition to Full Private Ownership) Act 2005 was amended by the Workplace Relations Amendment (Work Choices) (Consequential Amendments) Regulations 2006 (No. 1) (SLI 2006 No. 50). The amendments are incorporated in this compilation.

Table of Acts

Act	Number and year	Date of Assent	Date of commencement	Application, saving or transitional provisions
Telstra (Transition to Full Private Ownership) Act 2005	118, 2005	23 Sept 2005	See s. 2(1)	S. 2(1) (am. by 192, 1976) (am. by 122, 2006, Sch. 1 [item 2])
Long Service Leave (Commonwealth Employees) Act 1976	192, 1976	20 Dec 1976	Schedule 1: 5 Nov 2006	—
as amended by
Long Service Leave (Commonwealth Employees) Amendment Act 2006	122, 2006	4 Nov 2006	5 Nov 2006	—
Long Service Leave Legislation Amendment (Telstra) Act 2009	110, 2009	16 Nov 2009	Schedule 1 (items 8, 9): 23 Nov 2009	—
Statute Law Revision Act 2012	136, 2012	22 Sept 2012	Schedule 2 (item 41): 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. 192, 1976 (as am. by No. 122, 2006); No. 110, 2009
Schedule 1
Schedule 1.............................	am. No. 192, 1976 (as am. by No. 122, 2006); SLI 2006 No. 50; No. 110, 2009; No. 136, 2012

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Citations

Telstra (Transition to Full Private Ownership) Act 2005 (Cth)

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