EXPLANATORY STATEMENT
Statutory Rules 1997 No: 322
Issued by the Authority of the Minister for Communications, the Information
Economy and the Arts
Trade Practices Act 1974
Trade Practices Regulations (Amendment)
Subsection 172(1) of the Trade Practices Act 1974 (the Act) provides that the Governor-General may make regulations for the purposes of the Act.
Paragraph 104(aa) of the Act provides that the regulations may make provision with respect to evidence in proceedings before the Australian Competition Tribunal (the Tribunal).
The purpose of the accompanying regulations is to amend the Trade Practices Regulations (the Regulations) to deal with a number of matters that arise in relation to the new telecommunications competition rules in Part XIB of the Act and telecommunications access regime in Part XIC of the Act. These matters include applications for, and participation in, reviews by the Tribunal of Australian Competition and Consumer Commission (ACCC) decisions, fees payable to the ACCC for the copying of registers and tariff information, provision of billing information to persons who are supplied with declared services under the telecommunications access regime, disputes about access to declared services, and access to and evidence of documents in registers held by the ACCC under Parts XIB and XIC of the Act.
Subsection 152AR(7) of the Act requires an "access provider" who supplies an "active declared service" to a "service provider" to, if requested, provide billing information in accordance with the regulations. An "active declared service" is a service that has been declared by the ACCC that a telecommunications carrier or carriage service provider supplies either to itself or a third party. Providers of active declared services are known as "access providers" and a "service provider" is a person who supplies or proposes to supply a carriage or content service by using the active declared service.
Section 152DM of the Act provides that regulations may be made providing for the ACCC to charge the parties to an arbitration in respect of an access dispute for its costs in conducting the arbitration and to apportion the charge between the parties.
Section 152EP of the Act provides that the regulations may make provision about the inspection of registers maintained under Part XIC of the Act (including provision about fees).
Subsections 151AR(4), 151BH(5), 151BR(4), 152AQ(4), 152BR(3), 152CC(3), 152C.J(3), 152EA(3) and 152ED(7) of the Act provide that persons may, on payment
of fees specified in the regulations, inspect registers kept by the ACCC under Parts XIB and XIC of the Act, and make copies of or take extracts from these registers. Paragraph 151AT(c) provides that an application for an exemption order must be accompanied by the fee specified in the regulations. Subsection 151BQ(3) provides that the ACCC must, in circumstances set out in subsection 151BQ(2), make copies of tariff information available for purchase by the public.
The Trade Practices Amendment (Telecommunication) Act 1997, which received the Royal Assent on 30 April 1997, inserted new Parts XIB and XIC into the Trade Practices Act to provide special rules in relation to anti-competitive conduct by telecommunications carriers and carriage service providers and deal with access to telecommunications services.
Part XIB of the Act establishes a special regime for regulating anti-competitive conduct in the telecommunications industry. This regime applies in addition to Part IV of the Act, which regulates restrictive trade practices in general.
Amongst other things, Part XIB provides that the ACCC may issue a competition notice stating that a carrier or carriage service provider has engaged in anti-competitive conduct (section 151AL). It also empowers the ACCC to make orders exempting specified conduct from the scope of the definition of anti-competitive conduct (section 151BA), and to direct carriers and carriage service providers to file tariff information with the ACCC (section 151BK).
Part XIC of the Act sets out an access regime for the telecommunications industry. This regime provides for the declaration of carriage services and related services by the ACCC either following a recommendation of the Telecommunications Access Forum or after a public inquiry. Once declared, standard access obligations apply to carriers or carriage service providers supplying those services (access providers), unless those persons are otherwise exempted. Standard access obligations require the supply of declared services and specified associated services in order that service providers can supply their own carriage services and/or content services.
The terms and conditions of access on which access providers comply with the standard access obligations are subject to commercial agreement, may be set out in an access undertaking or, failing agreement or the existence of a relevant access undertaking, determined by the ACCC in an arbitration. Access agreements reached commercially may be registered by the ACCC.
In general, the Trade Practices Regulations (Amendment) (the Amending Regulations) amend the Regulations to provide for:
(a) applications for, and participation in, reviews by the Tribunal of decisions or determinations of the ACCC under Parts XIB and XIC (amending regulations 3, 4, 5, 7 and 8);
(b) fees payable to the ACCC for copying of registers and tariff information held by the ACCC under Parts XIB and XIC, and for applications for exemption orders under section 151AT (amending regulation 6);
(c) provision of billing information, under subsection 152AR(7) (new regulation 28S);
(d) disputes about access to declared services under Part XIC (new regulations 28T, 28U, 28V, 28W and 28X); and
(e) access to and evidence of documents in registers held under Parts X1B and XIC (new regulations 28Y and 28Z).
Details of the accompanying Regulations are as follows:
Regulation 1 (Amendment)
Amending regulation 1 provides that the Regulations are amended as set out in the Amending Regulations. The Amending Regulations commence on Gazettal.
Regulation 2 (Interpretation)
Amending regulation 2 amends the interpretation provisions of the Regulations. Subregulation 2(2) of the Regulations provides that a reference to a Form by number shall be read as a reference to the Form so numbered in the Schedule. Amending regulation 2 omits this subregulation and substitutes a subregulation providing that a reference to a Form by by letter or letters, eg Forms JA or JAA, is a reference to a Form so lettered in Schedule 1.
Regulation (Regulation 20 (Applications for review))
Amending regulation 3 amends regulation 20 of the Regulations to set out the Form to be used for an application to the Tribunal under section 151CI of the Act for the review of a decision of the ACCC under section 151BA to refuse to make an exemption order, and to require the applicant to provide the ACCC with a copy of the application.
Reguation 4 (Regulation 20A (Applications for review of certain access decisions))
Amending regulation 4 amends regulation 20A of the Regulations to set out the Forms to be used for applications to the Tribunal under sections 152AV and 152CE of the Act for review of certain decisions of the ACCC (except access arbitration determinations) made under Part XIC of the Act.
Regulation 5 (Regulation 2213 (Participation in review of certain access decisions))
Amending regulation 5 amends regulation 2213 of the Regulations to set out who may participate in reviews by the Tribunal of certain access decisions of the ACCC.
New subregulation 22B(4) provides that in the case of a review by the Tribunal under section 152AV of the Act of a decision-by the ACCC under subsection 152AT(3) not to grant an exemption from standard access obligations, any person whose interests are affected by the decision may participate in the review, as well as the person who applied for the review.
New subregulation 22B(5) provides that in the case of a review by the Tribunal under section 152CE of the Act of a decision by the ACCC under subsection 152BU(2) not to accept an access undertaking or section 152BY(3) not to accept a variation in an access undertaking, any person whose interests are affected by the decision may participate in the review, as well as the person who applied for the review.
Regulation (Regulation 28 (Fees))
Amending regulation 6 inserts new subregulation 28(2A), 28(2B) and 28(2C) after existing subregulation 28(2) setting out fees payable to the ACCC for various things.
New subregulation 28(2A) sets out the fees for providing copies of documents in registers kept by the ACCC under Parts XIB and XIC of the Act. The fee is $1.00 per page for each copy, with an additional $10.00 payable for a certified copy.
New subregulation 28(2B) sets out the fee for processing an application for an exemption order under section 151AT of the Act. The fee is $7,500.
New subregulation 2R(2C) sets out the fees for copying of tariff information kept by the Commission under section 151BQ of the Act. The fee is $1.00 per page for each copy, with an additional $10.00 payable for a certified copy.
Regulation 7 (Regulation 28B (Definitions for Part 2A))
Part 2A of the existing regulations deals with the review by the Tribunal of access arbitration determinations of the ACCC under Part IIIA of the Act.
Amending regulation 7 amends the definition of the terms "determination" and "review" in existing regulation 28B, which sets out definitions for Part 2A. The purpose of the amendments is to broaden the application of Part 2A so that it also deals with review by the Tribunal of access arbitration determinations under Part XIC.
Subregulation 7.1 amends the meaning of "determination" to refer to a determination made by the Commission under section 44V or 152CP of the Act. Subregulation 7.2 amends the meaning of "review" to refer to a review by the Tribunal under section 44ZP or 152DO of the Act.
Regulation 8 (Regulation 28C (Applications for review))
Amending regulation 8 amends existing subregulation 28C(1) to require that an application for a review of a determination under section 44ZP of the Act be in accordance with Form L, and inserts new subregulation 28C(1A) requiting that an application for review of a determination under section 152DO of the Act be in accordance with Form LA.
Regulation 9 (New Part 2B)
Amending regulation 9 inserts a new Part 2B into the regulations. This new Part deals with telecommunications access disputes, and contains four divisions.
Division 1 sets out the meaning of terms used in Part 2B. All terms have the same meaning as given in section 152AC, the interpretation provision of Part XIC of the Act, or in other provisions of Part XIC.
Division 2 contains new regulation 28S, which is made for the purposes of subsection 152AR(7) of the Act.
New regulation 28S - Billing information
Section 152AR sets out "standard access obligations" that all carriers and carriage service providers must comply with regarding declared services that they supply either to themselves or to a third party ("active declared services"). These obligations are subject to any applicable exemptions under sections 152AS and 152AT. Subsection 152AR(6) requires an access provider supplying an active declared service to a service provider, if requested, to provide the service provider with billing information in connection with the supply of those active declared services. Subsection 152AR(7) requires that the timing and content of billing information be in accordance with the regulations.
The Explanatory Memorandum relating to clauses 152AR(6) and (7) of the Trade Practices Amendment (Telecommunications) Bill 1996 states that the obligation imposed by these provisions is based on subclauses 4.1 and 4.2 of the Telecommunications (General Telecommunications Licences) Declaration No. 1 of 1991.
New subregulation 28S(2) limits the application of regulation 28S to billing information that is not available to the service provider either from the signals used to deliver calls, ie calling line identification, or from other processes, such as preselection arrangements, agreed between the access provider and the service provider.
New paragraphs 28S(3)(a) and (b) require billing information to be provided by an access provider to a service provider at times, and in a manner and form, agreed between the parties. Agreement on manner and form may include whether billing information is provided in electronic or paper form. The intention is that the access provider and the service provider come to agreement on the timing, manner and form of billing reports, in view of the diversity of customers' preferences.
The timing, manner and form agreed may be that contained in an access undertaking given by an access provider to the ACCC under section 152BS of the Act.
New subregulations 28S(4), (5) and (6) set out particulars that must be included in billing reports. The requirement to provide some particulars is subject to the service provider making a request for the information and to the access provider knowing the information, as he or she may not know the relevant information in some circumstances.
New subregulations 28S(4) and (5) set out particulars that must be included in billing information provided by an access provider to a service provider in respect of the supply of an active declared service used for making a call using a relevant carriage
service, unless otherwise agreed by the access provider and the service provider. A relevant carriage service is defined in subregulation (7) as a standard telephone service or a public mobile telecommunications service for which the price-related terms and conditions of supply are determined, in whole or part, by the location where a call is orginated or terminated.
New subregulation 28S(6) provides that for supply of an active declared service for purposes other than making a call using a relevant carriage service, eg point to multipoint (broadcasting) services, billing information must include the types of information agreed by the access provider and the service provider.
Division 3 of Part 2B relates to disputes about access. It contains new regulations 28T to 28X (inclusive), which are similar to existing regulations 6C, 6D, 6E, 6F and 6G.
New regulation 28T - Notification of access disputes
Once a service is declared under Part XIC of the Act, the ACCC can arbitrate an access dispute in relation to that declared service. The arbitration process is triggered by notification under subsection 152CM(1) or (2) of the Act; either a carrier or provider of a "declared" service or a third party seeking access to the declared service may notify the ACCC in writing that an access dispute exists. Arbitration by the ACCC is only one of a variety of dispute resolution measures which the parties can employ to resolve an access dispute.
Once the ACCC receives notification of the dispute, it must give written notice of the dispute to the persons described in subsection 152CM(6) and, unless or until the notification is withdrawn (section 152CN) or the ACCC terminates the arbitration (section 152CS), it must commence arbitration and proceed to make a determination (section 152CP), taking into account the matters listed in section 152CR.
Subregulation 28T(1) is based on paragraphs 6C(1)(a) to (g) of the existing Regulations, for disputes under Part IIIA. This subregulation will require the party notifying the ACCC of the existence of an access dispute (either the carrier or provider or the access seeker) to provide the ACCC with preliminary information relevant to the access dispute. The information required relates to procedural matters and the matters which the ACCC must consider in conducting an access arbitration. It will assist the ACCC in commencing its consideration of the relevant issues and allow the ACCC to ascertain the persons who might want to become parties to the arbitration.
Subregulation 28T(2) provides that a fee of $2,750 is payable to the ACCC in respect of any notification. The fee is payable at the time that the notification is given (subrcgulation 28T(3)).
New regulation 28U - Withdrawal of notification
Subregulation 28U(1) provides that a withdrawal of a notification of an access dispute must be in writing and contain the name of the person withdrawing the notification, a short description of the matter to which the notification relates and the specific
paragraph or subparagraph of subsection 152CN(1) of the Act under which the access provider or the access seeker is withdrawing the notification.
Subregulation 28U(2) provides that the person withdrawing the notification of an access dispute must give a copy of the withdrawal notice to the carrier or provider, or the access seeker, who is not withdrawing the notification, at the same time as it is provided to the ACCC.
Subregulation 28U(3) provides that the withdrawal of a notification of an access dispute is taken to occur on the date that the ACCC receives its withdrawal notice.
Subregulation 28U(4) provides that the ACCC must give any person to whom it has given notice of the dispute under subsection 152CM(6) of the Act, other than the person who notified withdrawal of the dispute, a copy of the notice of withdrawal.
New regulation 28V - Summons to witnesses - arbitration
Under subsection 152DD(2) of the Act, the ACCC can issue a summons requiring a person to appear at an access arbitration conducted by the ACCC to give evidence and produce the documents (if any) referred to in the summons. New regulation 28V provides that the form of the summons must be in accordance with Form M. A summons must be served on a person by delivering a copy of the summons to the person and showing the original of the summons to the person when the copy is delivered.
New regulation 28W - cost of arbitration
This regulation is made for the purposes of section 152DM of the Act. Subregulation 28W(2) provides that the ACCC may charge the parties to an arbitration for certain costs of the ACCC in connection with the arbitration. In particular:
(a) The ACCC can require the notifier to pay a pre-hearing fee. The fee is $10,000 unless the dispute is in respect of the variation of an existing determination, when the fee is $2,000. This covers the cost of the likely minimum work of the ACCC in examining the issues and preparing for the arbitration hearing.
(b) The ACCC can also charge a fee in respect of arbitration hearings conducted by the Commission. The fee is $4,000 per day.
Subregulation 28W(3) provides that a pre-hearing fee must be paid by the person who notified the access dispute at or before the commencement of the arbitration hearing.
Subregulation 28W(4) provides that a hearing fee for each day or part of a day of an arbitration hearing must be paid by the parties who appear at the hearing on the day in amounts determined by the ACCC.
Subregulation 28W(5) provides that the Tribunal must not charge for its costs of conducting a review of a determination by the ACCC.
New regulation 28X - Applications for registration of agreements for access
Where the parties to an access agreement have reached that agreement without recourse to arbitration, section 152ED of the Act permits the parties to apply to the ACCC for registration of their access agreement. If the ACCC decides to register the agreement then, under section 152EE of the Act, the agreement is treated as an ACCC determination for the purposes of enforcement. Part XIC of the Act also requires the ACCC to deregister an agreement where it receives an application in writing from the parties.
New regulation 28X requires the parties applying to the ACCC for an access agreement to be registered to provide the ACCC with information relevant to the access agreement (which must be included in the application) and pay a fee of $5,000 to the ACCC. No fee applies in the case of an application for deregistration.
Division 4 of Part 213 deals with access to documents in registers kept under sections 151AR. 151BH, 151BR, 152AQ, 152BR, 152CC, 152EA and 152ED, in Parts XIB and XIC of the Act.
Subsections 151AR(4), 151BH(5), 151BR(4), 152AQ(4), 152BR(3), 152CC(3), 152EA(3) and 152ED(7) of the Act provide that a person may, on payment of the relevant fee (see new subregulations 28(2A)), inspect the relevant register and make a copy of, or take extracts from, the register.
New Regulation 28Y - Definitions
This regulation lists and describes the registers kept under Parts XIB and XIC, and also gives the meaning of a "certified copy". A "certified copy" is a copy of a document that is certified to be a true copy by a person authorised by the ACCC to certify copies of such documents.
New Regulation 28Z- Copies of documents in Part XIB or Part XIC register
Regulation 28Z provides that any person may request a certified copy of a document in a register kept under Parts XIB and XIC. Such a request must be made in person at the office of the ACCC where the register is kept or in writing to the ACCC at that office.
Regulation 10 (Schedule 1 (Forms))
Amending regulation 10 inserts Forms JAA, JD, JE and LA that should be used when making applications to the Tribunal for a review of a decision or determination of the ACCC, in accordance with subregulations 20(4), 20A(4), 20A(5) and 28C(2), respectively, and Form M that should be used by the ACCC when issuing a summons to a person to appear before the ACCC to give evidence, in accordance with subregulation 28V(1).