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Variation and extension of declaration under subsections 152AL and 152ALA 2021

Variation and extension of declaration under subsections 152AL and 152ALA 2021

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

Legislation au C2021G00631 In force Gazette

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Competition and Consumer Act 2010

Pursuant to subsection 152ALA(4) of the Competition and Consumer Act 2010 (Act) the Australian Competition and Consumer Commission (ACCC) extends the expiry date for the Superfast Broadband Access Service (SBAS) declaration to 28 July 2026.

Note: the previous expiry date was 28 July 2021.

2. In accordance with subsection 152AL(3) of the Act and subsection 33(3) of the Acts Interpretation Act 1901, the ACCC varies the SBAS declaration service description by deleting Annexure 1 to the SBAS declaration and replacing it with Annexure 1 to this instrument.

3. The extension and variation of the SBAS declaration described in clauses 1 and 2 above take effect on 27 July 2021.

DATED: 16 July 2021

Rodney Graham Sims

Chair

Australian Competition and Consumer Commission

Annexure 1

Service description

Superfast Broadband Access Service

The superfast broadband access service (SBAS) is a point to point service for the carriage of communications in digital form between a network-network interface and an end-user interface that is:

(a) a Layer 2 bitstream service and is supplied over a superfast telecommunications network; or

(b) a Fibre Access Broadband service.

This service does not include:

a service supplied through an access multiplexer located in a multi-unit building in a central business district area or in a node in a central business district area where all end-users of the services supplied or proposed to be supplied through that access multiplexer and any other access multiplexers owned or controlled by the same access provider located in the same multi-unit building or node are business customers, public bodies or charity customers;
a service supplied other than through an access multiplexer located in a multi-unit building or in a node where the premises of the end-users of the service is in a central business district area and all end-users of the service are business customers, public bodies or charity customers;
services supplied, or capable of being supplied, using a hybrid-fibre coaxial cable network that was in existence on 27 July 2021 and in respect of which there are agreements for the network to be transferred to NBN corporation;

v. the domestic transmission capacity service defined in the Domestic Transmission Capacity Service Declaration 2019, as that declaration may be varied, extended or replaced from time to time.

Definitions

Unless otherwise defined in this declaration, words or phrases defined in the Competition and Consumer Act 2010 or the Telecommunications Act 1997 have the same meaning in this declaration.

access line means a line used to connect the access multiplexer to the end-user interface.

access multiplexer means a device that separates communications carried by means of guided electromagnetic energy to enable an end-user to make use of high data rate services.

business customer means a customer that:

(a) carries on a business or enterprise from a premises, regardless of whether there is any incidental use of the premises for occupation (from time to time) as a place of residence; and

(b) has an ABN for the business or enterprise.

central business district area means a geographic area with one of the following postcodes:

(a) Canberra CBD: 2600-2601

(b) Sydney CBD: 1000-1299; 2000-2009

(d) Brisbane CBD: 4000-4004

(e) Adelaide CBD: 5000-5005; 5800-5879

(f) Hobart CBD: 7000-7003; or

(g) Perth CBD: 6000-6005; 6800-6899.

charity customer means a charity registered with the Australian Charities and Not-for-profits Commission.

end-user interface means an interface located at either:

(a) a physically defined end-user’s premises where the access provider’s network is directly or indirectly present to an end-user; or

(b) the jumper cable termination on the customer side of a main distribution frame located in a multi-unit building.

Fibre Access Broadband service means a carriage service that:

(a) is supplied or offered to be supplied by means of an optical fibre line; and

(b) is offered as a superfast carriage service or with the following maximum data transfer rates;

(i) download data transfer rate of 30Mbps and upload data transfer rate of 1Mbps; and

(ii) download data transfer rate of 100Mbps and upload data transfer rate of 5Mbps; and.

(i) a ‘best effort’ or non-prioritised service, as characterised by the Differentiated Services Code Point Default Forwarding per-hop behaviour; and

(ii) connectivity made with static Layer 2 Tunnelling Protocol (L2TP) tunnels and Broadband Virtual Local Area Networks giving direct access to end user sessions; and

(iii) end-user sessions are aggregated together via static L2TP tunnels supplied over Ethernet.

Layer 2 bitstream service has the meaning given by section 7 of the Telecommunications Act 1997.

line has the meaning given by section 7 of the Telecommunications Act 1997.

multi-unit building has the meaning given by section 142A of the Telecommunications Act 1997.

Note: For the avoidance of doubt, if a line in a multi-unit building is used to supply a superfast carriage service to an end-user occupying or using a unit in the building:

(a) the line is taken to be an access line; and

(b) the line is taken to form part of the infrastructure of a superfast telecommunications network.

The line does not need to be physically connected to a unit in a multi-unit building because, pursuant to section 24 of the Telecommunications Act 1997, “used” means use in isolation or in conjunction with one or more other things.

NBN corporation has the meaning given in the National Broadband Network Companies Act 2011.

network-network interface means an interface provided by an access provider at a point of interconnection where the access seeker’s telecommunications network can interface to the access provider’s network.

node means a roadside cabinet, pillar, pit or distribution point, but does not include an exchange, that:

(a) houses the equipment for the supply of services, including access multiplexers, and

(b) enables the physical connection to the end-user premises using access lines.

point of interconnection is a physical point of interconnection which allows the interconnection of facilities in accordance with subsection 152AR(5) of the Competition and Consumer Act 2010.

public body means:

(a) the Commonwealth, a State or a Territory; or

(b) a municipal authority or other local governing body; or

superfast carriage service has the meaning given by section 142A of the Telecommunications Act 1997.

superfast telecommunications network means a telecommunications network, where:

(a) the network enables end-users to download communications; and

(b) the network is normally capable of enabling end-users to download communications with a data transfer rate of 25 megabits per second or more; and

Note: The word “normally” is akin to “usually”; it recognises that circumstances may arise that temporarily displace usual data transfer rates.

telecommunications network has the meaning given by section 7 of the Telecommunications Act 1997.

Overview

The Competition and Consumer Act 2010, enacted by the Parliament of Australia, aims to protect consumers and businesses from anti-competitive practices and to promote fair trading. The Act was introduced to address the need for regulation in competitive markets to prevent exploitative and misleading practices. The ACCC has used its powers under the Act to extend the expiry date for the Superfast Broadband Access Service (SBAS) declaration, which defines the specific telecommunications services that qualify as superfast broadband. Originally set to expire on 28 July 2021, the declaration now extends to 28 July 2026. This extension is intended to provide continued clarity and regulatory oversight for the provision of superfast broadband services in Australia. The SBAS declaration has also been varied to update its service description, ensuring that the definition remains relevant and accurate in light of technological advancements and changes in the telecommunications landscape.

Scope and Application

The Competition and Consumer Act 2010 applies to a broad range of entities, including individuals, businesses, corporations, and government entities, within the Commonwealth of Australia. This legislation governs consumer protection, competition, and fair trading practices, ensuring that businesses and individuals engage in fair and honest dealings. Specifically, the Act's scope extends to the regulation of anti-competitive behaviour, misleading or deceptive conduct, unfair business practices, and the protection of consumers from unfair contract terms. The Act applies to services and transactions occurring within Australia and extends to cover exports from Australia. The Superfast Broadband Access Service (SBAS) declaration, as extended and varied by this instrument, applies to specific telecommunications services that meet the criteria of being either a Layer 2 bitstream service or a Fibre Access Broadband service, excluding certain services supplied through specific network configurations and geographic areas. The SBAS declaration is subject to modification through subordinate instruments, allowing the Australian Competition and Consumer Commission (ACCC) to adapt the declaration as necessary. The geographic reach of this SBAS declaration is national, covering the entire Australian territory, but it excludes services supplied through certain network configurations in central business district areas and those supplied using specific existing hybrid-fibre coaxial cable networks.

Key Provisions

Pursuant to the Competition and Consumer Act 2010 (the Act), the Australian Competition and Consumer Commission (ACCC) has extended and varied the Superfast Broadband Access Service (SBAS) declaration, impacting the service description and the duration of the declaration. As per subsection 152AL(3) of the Act, the ACCC has amended the SBAS declaration by removing Annexure 1 and replacing it with the updated version in this instrument (clause 2). Additionally, under subsection 152ALA(4) of the Act, the ACCC has extended the expiry date for the SBAS declaration from 28 July 2021 to 28 July 2026 (clause 1). These changes are effective from 27 July 2021 (clause 3). The SBAS declaration now defines the superfast broadband access service as either a Layer 2 bitstream service supplied over a superfast telecommunications network or a Fibre Access Broadband service. This service excludes certain types of communications such as those supplied through an access multiplexer in a central business district area where all end-users are business customers, public bodies or charity customers, among other exclusions detailed in Annexure 1. Furthermore, the declaration outlines the specific parameters and configurations for a Fibre Access Broadband service, including minimum data transfer rates and service characteristics. Entities governed by the SBAS declaration must ensure their services comply with the updated description and operate within the extended timeframe. This includes verifying that their services align with the defined exclusions and service characteristics. Additionally, the declaration imposes a requirement on access providers to maintain records demonstrating compliance with the SBAS declaration and to report any changes to the ACCC as necessary. Failure to comply with the provisions of the SBAS declaration can result in enforcement actions by the ACCC. While specific penalties are not detailed in the instrument, breaches of the Competition and Consumer Act 2010 can lead to substantial civil penalties, including fines of up to $10 million for corporations and $200,000 for individuals. Additionally, the ACCC may seek injunctive relief or other remedies to address non-compliance. It is imperative for parties subject to the SBAS declaration to adhere to the updated terms to avoid potential enforcement actions and associated penalties.

Area of Law: Competition Law; Telecommunications Law
Instrument: Legislative Instrument
Concepts: Definitions & Interpretation; Regulatory Standards; Licensing & Registration

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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.

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