Telecommunications (Permitted Information Sharing for Standard Functional Separation Undertakings) Determination 2021

Administered by Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts

Legislation au F2021L00197 In force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

Approved by the Australian Competition and Consumer Commission

Telecommunications Act 1997

Telecommunications (Permitted Information Sharing for Standard Functional Separation Undertakings) Determination 2021

Authority

The Australian Competition and Consumer Commission (the ACCC) has made the Telecommunications (Permitted Information Sharing for Standard Functional Separation Undertakings) Determination 2021 (the Instrument) under subsection 151A(13) of the Telecommunications Act 1997 (the Telecommunications Act).

Purpose and operation of the Instrument

On 14 May 2020, the Parliament passed the Telecommunications Legislation Amendment (Competition and Consumer) Act 2020. This Act amended the Telecommunications Act including by giving superfast fixed line network operators the option of operating on a functionally separated basis, rather than a structurally separated basis, as had been previously required. This can be by way of an eligible network operator electing to be bound by a deemed functional separation undertaking or the network operator lodging a standard or joint functional separation undertaking for the ACCC’s approval.

Subsection 151A(13) of the Telecommunications Act empowers the ACCC to determine, by legislative instrument, for corporations bound by a standard functional separation undertaking, the kinds of information provided by a carrier or carriage service provider to a corporation’s retail business unit that may be disclosed to, or obtained, accessed or used by that corporation’s wholesale business unit for the purpose of paragraphs 151A(2)(j) and (k) of the Telecommunications Act.

The Instrument determines that information relating to the provision of a local access line service on a wholesale basis that constitutes:

  • terms and conditions relating to price or a method of ascertaining price;
  • other terms and conditions; or
  • current or proposed network coverage information including maps and network ownership information;

is specified for the purpose of paragraphs 151A(2)(j) and (k) of the Telecommunications Act, where that information is disclosed by a retail business unit to a wholesale business unit bound by the same standard functional separation undertaking for the purpose of obtaining an equivalent offer in respect of the provision of a local access line service on a wholesale basis.

The Instrument also determines that information that constitutes:

  • practices, procedures or other guidance relating to the maintenance and continuity of business operations in emergency scenarios;
  • a request to access the infrastructure of the corporation’s wholesale business unit for the purpose of maintaining network resilience or the continuity of business operations; or
  • practices, procedures or other guidance relating to compliance with relevant regulatory obligations;

is specified for the purpose of paragraphs 151A(2)(j) and (k) of the Telecommunications Act.

A provision-by-provision description of the Instrument is set out in the notes at Attachment A.

The Instrument is a disallowable legislative instrument for the purposes of the Legislation Act 2003.

Documents incorporated by reference

The Instrument incorporates the following Acts as in force from time to time, as permitted by subsection 589(1) of the Telecommunications Act (including by the adoption of definitions), or otherwise refers to them:

  • the Acts Interpretation Act 1901;
  • the Legislation Act 2003; and
  • the Telecommunications Act 1997.

These Acts are available free of charge at www.legislation.gov.au.

Consultation

Before the Instrument was made, the ACCC was satisfied that consultation was undertaken to the extent appropriate and reasonably practicable, in accordance with section 17 of the Legislation Act 2003.

Prior to making the Instrument, the ACCC published a notice on its website on 18 December 2020 setting out the proposed Instrument and seeking feedback from interested stakeholders. Interested stakeholders were invited to make submissions to the ACCC by 5 February 2021. The ACCC did not receive any submissions in response to the consultation notice.

Regulatory impact assessment

A preliminary assessment of proposals to make legislative instruments under Part 8 of the Telecommunications Act, as amended by the Telecommunications Legislation Amendment (Competition and Consumer) Act 2020, was conducted by the Office of Best Practice Regulation (OBPR) for the purpose of determining whether a Regulation Impact Statement (RIS) would be required. OBPR advised that a RIS would not be required because such instruments were machinery in nature (OBPR ID: 23957).

Statement of compatibility with human rights

This section of the explanatory statement is prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Instrument

The Telecommunications (Permitted Information Sharing for Standard Functional Separation Undertakings) Determination 2021 (the Instrument) has been made by the ACCC under subsection 151A(13) of the Telecommunications Act 1997. The Instrument specifies the kinds of information provided by a carrier or carriage service provider to the retail business unit of a corporation that is bound by a standard functional separation undertaking that may be disclosed to, or obtained, accessed or used by that corporation’s wholesale business unit, for the purpose of paragraphs 151A(2)(j) and (k) of the Telecommunications Act 1997. 

Human rights implications

The ACCC has assessed whether the Instrument is compatible with human rights, being the rights and freedoms recognised or declared by the international instruments listed in subsection 3(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 as they apply to Australia.

Having considered the likely impact of the Instrument and the nature of the applicable rights and freedoms, the ACCC has formed the view that the Instrument does not engage any of those rights or freedoms. 

Conclusion

The Instrument is compatible with human rights as it does not raise any human rights issues.

 

 


Attachment A

Notes to the Telecommunications (Permitted Information Sharing for Standard Functional Separation Undertakings) Determination 2021

Section 1 – Name

This section provides for the Instrument to be cited as the Telecommunications (Permitted Information Sharing for Standard Functional Separation Undertakings) Determination 2021.

Section 2 – Commencement

This section provides for the Instrument to commence on the day after it is registered on the Federal Register of Legislation.  

The Federal Register of Legislation may be accessed free of charge at www.legislation.gov.au.

Section 3 – Authority

This section provides that the Instrument is made under subsection 151A(13) of the Telecommunications Act 1997.  

Section 4 – Definitions

This section defines key terms used in the Instrument.

Section 5 – References to other instruments

This section provides that in the Instrument, unless the contrary intention appears:

  • a reference to any other legislative instrument is a reference to that other legislative instrument as in force from time to time; and
  • a reference to any other kind of instrument is a reference to that other instrument as in force from time to time.

Section 6 – Determination of kinds of information

This section specifies the kinds of information that are determined in accordance with subsection 151A(13) of the Telecommunications Act 1997 to be specified information for the purpose of paragraphs 151A(2)(j) and (k) of the Telecommunications Act 1997.

Overview

The Telecommunications (Permitted Information Sharing for Standard Functional Separation Undertakings) Determination 2021 was made by the Australian Competition and Consumer Commission (ACCC) under subsection 151A(13) of the Telecommunications Act 1997. This determination addresses the problem of defining the scope of information that can be shared between the retail and wholesale business units of corporations operating under a standard functional separation undertaking, introduced by the Telecommunications Legislation Amendment (Competition and Consumer) Act 2020. The objective of the determination is to enable superfast fixed line network operators to function on a separated basis, either through deemed functional separation or by lodging a standard or joint functional separation undertaking with the ACCC. This legislative instrument specifies that certain types of information, such as pricing terms, network coverage details, and emergency operational practices, can be disclosed from the retail to the wholesale unit for specified purposes, thereby facilitating the operation of these functionally separated entities within the telecommunications industry.

Scope and Application

The Telecommunications (Permitted Information Sharing for Standard Functional Separation Undertakings) Determination 2021 is a legislative instrument made by the Australian Competition and Consumer Commission (ACCC) under the authority of the Telecommunications Act 1997. This Determination applies specifically to corporations that have opted to operate under a standard functional separation undertaking, which allows superfast fixed line network operators to function in a manner that is functionally separated rather than structurally separated. It specifies the kinds of information that can be shared between the retail and wholesale business units of such corporations, thereby facilitating compliance with certain provisions of the Telecommunications Act. This information includes details about price terms, other conditions, network coverage, and practices related to business continuity and compliance in emergency scenarios. The Determination does not apply to entities that are not bound by a standard functional separation undertaking and excludes information that is not specified within its scope. The instrument is subject to the disallowance process as per the Legislation Act 2003 and was developed following consultation with relevant stakeholders, although no submissions were received in response to the ACCC's consultation notice.

Key Provisions

The Telecommunications (Permitted Information Sharing for Standard Functional Separation Undertakings) Determination 2021 (the Instrument) specifies the types of information that a carrier or carriage service provider can disclose to a corporation's retail business unit, which may subsequently be accessed or used by the corporation's wholesale business unit, provided the corporation is bound by a standard functional separation undertaking. This determination is made under subsection 151A(13) of the Telecommunications Act 1997 and applies to information that pertains to the provision of a local access line service on a wholesale basis. Specifically, the Instrument identifies information such as terms and conditions related to price, other terms and conditions, current or proposed network coverage information including maps and network ownership information (Section 6(1)). Additionally, it includes information relating to practices, procedures or other guidance concerning the maintenance and continuity of business operations in emergency scenarios, requests to access the infrastructure for maintaining network resilience or continuity of business operations, and compliance with relevant regulatory obligations (Section 6(2)). The Act imposes several obligations and requirements on the parties involved. Carriers and carriage service providers must ensure that the specified information is only disclosed to the retail business unit and subsequently accessed or used by the wholesale business unit for the purposes outlined in the Instrument. The corporation, which is bound by a standard functional separation undertaking, must use the shared information strictly for the purposes of obtaining an equivalent offer in respect of the provision of a local access line service on a wholesale basis. Furthermore, any information sharing must comply with the requirements set forth in the Instrument to maintain the functional separation between the retail and wholesale business units. Any deviation from these obligations could potentially undermine the functional separation framework established by the Act. Breaches of the provisions outlined in the Instrument can result in significant consequences. While the Instrument itself does not specify particular offences or penalties, violations of the Telecommunications Act 1997 can attract civil and criminal penalties. For instance, under section 151B of the Telecommunications Act, corporations found to be in breach of a functional separation undertaking can be subject to substantial financial penalties, with the maximum penalty varying based on the nature and severity of the breach. Additionally, directors or officers of corporations found guilty of breaches may face personal penalties, including fines and imprisonment, depending on the specific provisions of the Act that are contravened. It is essential for parties governed by the Instrument to adhere to the requirements to avoid these potential repercussions.

Legal classification tags

Area of Law
Commercial Law
Telecommunications Law
Instrument
Regulation
Concepts
Definitions & Interpretation
Regulatory Standards
Information Sharing

Interactions

Authorises

All Versions

Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.