EXPLANATORY STATEMENT
Issued by the Authority of the Minister for Communications, Information Technology and the Arts
Telecommunications Legislation Amendment (Competition and Consumer Issues)
Act 2005
Proclamation
Subsection 2(1) of the Telecommunications Legislation Amendment (Competition and Consumer Issues) Act 2005 (the Act) provides that the provisions in Schedule 11 to the Act commence on a day to be fixed by proclamation subject to the proviso that if any of the provisions do not commence within the period of 6 months beginning on the day on which the Act receives the Royal Assent, they shall commence on the first day after the end of that period.
The Act received the Royal Assent on 23 September 2005.
The purpose of the accompanying Proclamation is to fix 1 January 2006 as the day on which Schedule 11 to the Act commences.
Schedule 11 to the Act provides for the implementation of operational separation of Telstra Corporation Limited by way of a standard carrier licence condition through amendments to Schedule 1 to the Telecommunications Act 1997.
The aim of operational separation is to promote the principles of transparency and equivalence in relation to the supply by Telstra of wholesale and retail services. To achieve this aim, Item 7 of Schedule 11 to the Act inserts a new Part 8 of Schedule 1 to the Telecommunications Act. Schedule 1 to the Telecommunications Act specifies standard licence conditions that apply to telecommunications carriers. Part 8 of Schedule 1 to the Act provides for carrier licence conditions that apply specifically to Telstra and relate to operational separation. These conditions require Telstra to prepare, and to give to the Minister for Communications, Information Technology and the Arts (the Minister), a draft operational separation plan which must be directed towards the achievement of the aim and objects of Part 8, and which must deal with such matters as are specified by the Minister in a determination. Such a determination made by the Minister is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
One of the objects of Part 8 of Schedule 1 to the Telecommunications Act is to promote a principle of equivalence in relation to the supply by Telstra of “designated services” to Telstra’s wholesale customers, and Telstra’s retail business units. The Minister may specify, in a written determination, an eligible service that is a “designated service” for the purpose of this provision. A determination made by the Minister setting out the relevant eligible services is a legislative instrument for the purposes of the Legislative Instruments Act.
If the Minister approves the draft operational separation plan, it will become a final operational separation plan. If Telstra has contravened, or is contravening, a final operational separation plan, the Minister can require Telstra to prepare, and give to the Minister for approval, a draft rectification plan. If the Minister approves the draft rectification plan, it then becomes a final rectification plan. Telstra is required to comply with a final rectification plan.
Schedule 11 to the Act also makes amendments to the Telecommunications Act that enable the Australian Competition and Consumer Commission (ACCC), in addition to the Australian Communications and Media Authority (ACMA), to give Telstra a direction to comply with the rectification plan if Telstra has contravened, or is contravening, the rectification plan. Alternatively, or after having issued a remedial direction, the ACCC, the ACMA or the Minister would be able to commence proceedings in the Federal Court seeking recovery of a civil penalty in relation to Telstra’s failure to comply with a condition of its carrier licence.
A further amendment made by Schedule 11 to the Act requires the Minister to cause a review of the operation of Part 8 of Schedule 1 of the Telecommunications Act to be conducted before 1 July 2009. A report of the review must be tabled in both Houses of Parliament. At any time after the review is tabled in both Houses, the Minister may declare by written instrument that Part 8 of Schedule 1 to the Telecommunications Act ceases to have effect on a specified day.
Schedule 11 also amends Parts XIB and XIC of the Trade Practices Act 1974 to insert provisions that would require the ACCC, when performing its functions or exercising its powers under either Part XIB or XIC, to have regard to Telstra’s conduct engaged in order to comply with a final operational separation plan, to the extent that that conduct is relevant to the functions being performed or the power being exercised. These amendments would provide a linkage between the operational separation plan and Parts XIB and XIC where relevant.
The commencement of the provisions in Schedule 11 to the Act was delayed so that, relying on subsection 4(1) of the Acts Interpretation Act 1901, the necessary legislative instruments discussed above could be made before, and commence at the same time as, the provisions in Schedule 11 to the Act commence.
The accompanying Proclamation fixes 1 January 2006 as the day for the commencement of the provisions in Schedule 11 to the Act because it is anticipated that the necessary legislative instruments could be made by that date.
The accompanying Proclamation is a legislative instrument for the purposes of the Legislative Instruments Act (see paragraph 6(e) of that Act), but is not subject to disallowance (see item 42 in the table in subsection 44(2) of that Act). Consultation was considered unnecessary due to the minor and machinery nature of the accompanying Proclamation (see paragraph 18(2)(a) of the Legislative Instruments Act).