TELECOMMUNICATIONS LEGISLATION AMENDMENT (COMPETITION AND CONSUMER SAFEGUARDS) BILL 2010

i Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill

2010 No. , 2010

Contents

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

3 Schedule(s)

........................................................................................

Schedule 1--Amendments

Part 1--Amendments relating to Telstra

Division 1--Amendments commencing on the day after this Act

receives the Royal Assent

Radiocommunications Act 1992

Telecommunications Act 1997

Competition and Consumer Act 2010

Division 2--Amendments commencing immediately after a final

functional separation undertaking comes into force

Telecommunications Act 1997

Competition and Consumer Act 2010

Division 3--Amendments commencing immediately after an

undertaking about structural separation comes into force

Telecommunications Act 1997

Competition and Consumer Act 2010

Part 2--Telecommunications access regime

Division 1--Amendments

National Transmission Network Sale Act 1998

Telecommunications Act 1997

Competition and Consumer Act 2010

100

Division 2--Transitional provisions

155

Part 3--Anti-competitive conduct

167

Division 1--Amendments

167

Competition and Consumer Act 2010

167

Division 2--Application

167

Part 4--Universal service regime

168

Telecommunications (Consumer Protection and Service Standards)

Act 1999

168

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 ii

Part 5--Customer service guarantee

182

Telecommunications (Consumer Protection and Service Standards)

Act 1999

182

Part 5A--Record-keeping rules

188

Telecommunications Act 1997

188

Part 6--Priority assistance

190

Telecommunications Act 1997

190

Part 7--Infringement notices etc.

193

Division 1--Amendments

193

Telecommunications Act 1997

193

Division 2--Application

201

Part 8--Civil penalty provisions

202

Telecommunications Act 1997

202

Part 9--Industry standards

203

Telecommunications Act 1997

203

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 1

A Bill for an Act to amend legislation relating to

telecommunications, and for other purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Telecommunications Legislation

Amendment (Competition and Consumer Safeguards) Act 2010.

2 Commencement

(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.

2 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

Bill 2010 No. , 2010

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1,

Part 1, Division 1

The later of:

(a) the start of the day after this Act receives

the Royal Assent; and

(b) immediately after the commencement of

item 2 of Schedule 5 to the Trade

Practices Amendment (Australian

Consumer Law) Act (No. 2) 2010.

3. Schedule 1,

Part 1, Division 2

Immediately after a final functional

separation undertaking comes into force

under Part 9 of Schedule 1 to the

Telecommunications Act 1997.

The Minister must announce by notice in the

Gazette the time when a final functional

separation undertaking comes into force

under Part 9 of Schedule 1 to the

Telecommunications Act 1997.

4. Schedule 1,

Part 1, Division 3

Immediately after an undertaking comes into

force under section 577A of the

Telecommunications Act 1997.

The Minister must announce by notice in the

Gazette the time when an undertaking comes

into force under section 577A of the

Telecommunications Act 1997.

5. Schedule 1,

Parts 2 and 3

The later of:

(a) the start of the day after this Act receives

the Royal Assent; and

(b) immediately after the commencement of

item 2 of Schedule 5 to the Trade

Practices Amendment (Australian

Consumer Law) Act (No. 2) 2010.

6. Schedule 1,

Part 4

The day after the end of the period of 3

months beginning on the day this Act

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 3

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

receives the Royal Assent.

7. Schedule 1,

Part 5

The day after the end of the period of 6

months beginning on the day this Act

receives the Royal Assent.

8. Schedule 1,

Part 5A

The day after this Act receives the Royal

Assent.

9. Schedule 1,

Part 6

The day after the end of the period of 3

months beginning on the day this Act

receives the Royal Assent.

10. Schedule 1,

Part 7

The later of:

(a) the start of the day after this Act receives

the Royal Assent; and

(b) immediately after the commencement of

item 2 of Schedule 5 to the Trade

Practices Amendment (Australian

Consumer Law) Act (No. 2) 2010.

11. Schedule 1,

Part 8

The day after this Act receives the Royal

Assent.

12. Schedule 1,

Part 9

The day after this Act receives the Royal

Assent.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in Column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Schedule(s)

Each Act 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.

Note:

On 1 January 2011, the short title of the Trade Practices Act 1974 was

changed to the Competition and Consumer Act 2010 by the Trade

Practices Amendment (Australian Consumer Law) Act (No. 2) 2010.

Schedule 1 Amendments

Part 1 Amendments relating to Telstra

4 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

Bill 2010 No. , 2010

Schedule 1--Amendments

Part 1--Amendments relating to Telstra

Division 1--Amendments commencing on the day after

this Act receives the Royal Assent

Radiocommunications Act 1992

1 After subsection 58(1)

Insert:

(1A) Subsection (1) has effect subject to section 577J of the

Telecommunications Act 1997.

2 At the end of section 60

Add:

(15) This section has effect subject to section 577J of the

Telecommunications Act 1997.

3 At the end of section 62

Add:

(4) This section has effect subject to section 577J of the

Telecommunications Act 1997.

4 At the end of section 68

Add:

(5) This section has effect subject to section 577K of the

Telecommunications Act 1997.

5 Subsection 85(1)

After "section 86", substitute "of this Act and section 577L of the

Telecommunications Act 1997".

Amendments Schedule 1

Amendments relating to Telstra Part 1

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 5

Telecommunications Act 1997

6 Section 7

Insert:

designated part of the spectrum has the meaning given by

section 577H.

7 Section 7

Insert:

draft functional separation undertaking means a draft functional

separation undertaking under Division 2 of Part 9 of Schedule 1.

8 Section 7

Insert:

draft migration plan means a draft migration plan under

Subdivision B of Division 2 of Part 33.

9 Section 7

Insert:

final functional separation undertaking means a final functional

separation undertaking under Division 2 of Part 9 of Schedule 1.

10 Section 7

Insert:

final migration plan means a final migration plan under

Subdivision B of Division 2 of Part 33.

11 Section 7

Insert:

hybrid fibre-coaxial network means a telecommunications

network:

(a) that is for use for the transmission of any broadcasting

service; and

(b) that is also capable of being used to supply an internet

carriage service; and

Schedule 1 Amendments

Part 1 Amendments relating to Telstra

6 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

Bill 2010 No. , 2010

connecting nodes, supplemented by coaxial cable

connections from the nodes to the premises of end-users.

12 Section 7

Insert:

internet carriage service means a carriage service that enables

end-users to access the internet.

13 Section 7

Insert:

radiocommunications device has the same meaning as in the

Radiocommunications Act 1992.

14 Section 7

Insert:

spectrum has the same meaning as in the Radiocommunications

Act 1992.

15 Section 7

Insert:

spectrum licence has the same meaning as in the

Radiocommunications Act 1992.

16 Section 7

Insert:

subscription television broadcasting licence has the same meaning

as in the Broadcasting Services Act 1992.

17 After subsection 69(5)

Insert:

(5A) Subsection (1) does not apply to a condition set out in Part 1 of

Schedule 1 in so far as that condition relates to section 577AD,

577CD or 577ED.

Note:

Sections 577AD, 577CD and 577ED deal with undertakings given by

Telstra.

Amendments Schedule 1

Amendments relating to Telstra Part 1

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 7

18 Before subsection 69(7)

Insert:

(6B) Subsection (1) does not apply to the condition set out in clause 84

of Schedule 1.

Note:

Clause 84 of Schedule 1 deals with control by Telstra of certain

spectrum licences.

19 After subsection 70(2)

Insert:

(2A) Subsection (1) does not apply to a condition set out in Part 1 of

Schedule 1 in so far as that condition relates to section 577AD,

577CD or 577ED.

Note:

Sections 577AD, 577CD and 577ED deal with undertakings given by

Telstra.

20 After paragraph 70(5)(a)

Insert:

(aa) the condition set out in Part 1 of Schedule 1 in so far as that

condition relates to section 577AD, 577CD or 577ED;

21 Before subsection 70(4)

Insert:

(3B) Subsection (1) does not apply to the condition set out in clause 84

of Schedule 1.

Note:

Clause 84 of Schedule 1 deals with control by Telstra of certain

spectrum licences.

22 After paragraph 564(3)(a)

Insert:

(aa) the carrier licence condition set out in Part 1 of Schedule 1 in

so far as that condition relates to section 577AD, 577CD or

577ED; or

23 Subsection 564(3) (after note 1)

Insert:

Note 1A: Sections 577AD, 577CD and 577ED deal with undertakings given by

Telstra.

Schedule 1 Amendments

Part 1 Amendments relating to Telstra

8 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

Bill 2010 No. , 2010

24 After paragraph 564(3)(b)

Insert:

(ba) the carrier licence condition set out in clause 84 of

Schedule 1; or

25 Subsection 564(3) (after note 2)

Insert:

Note 2A: Clause 84 of Schedule 1 deals with control by Telstra of certain

spectrum licences.

26 After paragraph 571(3)(a)

Insert:

(aa) the carrier licence condition set out in Part 1 of Schedule 1 in

so far as that condition relates to section 577AD, 577CD or

577ED; or

27 Subsection 571(3) (after note 1)

Insert:

Note 1A: Sections 577AD, 577CD and 577ED deal with undertakings given by

Telstra.

28 After paragraph 571(3)(b)

Insert:

(ba) the carrier licence condition set out in clause 84 of

Schedule 1; or

29 Subsection 571(3) (after note 2)

Insert:

Note 2A: Clause 84 of Schedule 1 deals with control by Telstra of certain

spectrum licences.

30 After Part 32

Insert:

Amendments Schedule 1

Amendments relating to Telstra Part 1

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 9

Part 33--Voluntary undertakings given by Telstra

Division 1--Introduction

577 Simplified outline

The following is a simplified outline of this Part:

�

Telstra may give the following undertakings:

(a)

an undertaking about structural separation;

(b)

an undertaking about hybrid fibre-coaxial

networks;

(c)

an undertaking about subscription television

broadcasting licences.

�

An undertaking comes into force when it is accepted by the

ACCC.

�

The Minister may, by legislative instrument, determine that

the excluded spectrum regime applies to Telstra. If the

Minister does so, Telstra will not be allowed to supply

services using a designated part of the spectrum unless all 3

undertakings given by Telstra are in force.

�

However, the Minister may exempt Telstra from the

requirement to have an undertaking about hybrid

fibre-coaxial networks or subscription television

broadcasting licences if the Minister is satisfied that

Telstra's undertaking about structural separation is sufficient

to address concerns about the degree of Telstra's power in

telecommunications markets.

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Part 1 Amendments relating to Telstra

10 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

Bill 2010 No. , 2010

Division 2--Structural separation

Subdivision A--Undertaking about structural separation

577A Acceptance of undertaking about structural separation

(1) The ACCC may accept a written undertaking given by Telstra that:

(a) at all times after the designated day:

(i) Telstra will not supply fixed-line carriage services to

retail customers in Australia using a

telecommunications network over which Telstra is in a

position to exercise control; and

(ii) Telstra will not be in a position to exercise control of a

company that supplies fixed-line carriage services to

retail customers in Australia using a

telecommunications network over which Telstra is in a

position to exercise control; and

(b) Telstra will, in connection with paragraph (a), take specified

action and/or refrain from taking specified action.

Note 1:

For when Telstra is in a position to exercise control of a network, see

section 577Q.

Note 2:

For control of a company, see section 577P.

Equivalence

(2) For the purposes of paragraph (1)(b), a matter relating to

equivalence in relation to the supply by Telstra of regulated

services to:

(a) Telstra's wholesale customers; and

(b) Telstra's retail business units;

during the period:

(d) ending at the start of the designated day;

is taken to be a matter that is in connection with paragraph (1)(a).

(3) The ACCC must not accept an undertaking under this section

unless the ACCC is satisfied that:

(a) the undertaking provides for equivalence in relation to the

supply by Telstra of regulated services to:

(i) Telstra's wholesale customers; and

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Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 11

(ii) Telstra's retail business units;

during the period:

(iii) beginning when the undertaking comes into force; and

(iv) ending at the start of the designated day; and

(b) the undertaking does so in an appropriate and effective

manner.

(4) In subsections (2) and (3), equivalence, supply, regulated service

and retail business unit have the same meaning as in Part 9 of

Schedule 1.

Monitoring of compliance

(5) The ACCC must not accept an undertaking under this section

unless the ACCC is satisfied that:

(a) the undertaking provides for:

(i) the ACCC to monitor Telstra's compliance with the

undertaking; and

(ii) Telstra to have systems, procedures and processes that

promote and facilitate the ACCC's monitoring of

Telstra's compliance with the undertaking; and

(b) the undertaking does so in an appropriate and effective

manner.

Matters to which ACCC must have regard

(6) In deciding whether to accept an undertaking under this section,

the ACCC must have regard to:

(a) the matters set out in an instrument in force under

subsection (7); and

(b) such other matters (if any) as the ACCC considers relevant.

(7) The Minister may, by writing, set out matters for the purposes of

paragraph (6)(a).

(8) The Minister must take all reasonable steps to ensure that an

instrument comes into force under subsection (7) as soon as

practicable after the commencement of this section.

(9) Telstra is not entitled to give an undertaking under this section

unless an instrument is in force under subsection (7).

Schedule 1 Amendments

Part 1 Amendments relating to Telstra

12 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

Bill 2010 No. , 2010

Designated day

(10) For the purposes of this section, the designated day is:

(a) 1 July 2018; or

(b) if the Minister, by written instrument, specifies another

day--that other day.

(11) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a

power conferred on the Minister by paragraph (10)(b), but it

applies with the following changes:

(a) an instrument made under paragraph (10)(b) cannot be

varied;

(b) an instrument made under paragraph (10)(b) must not be

revoked unless:

(i) a fresh instrument is made under that paragraph; and

(ii) the fresh instrument specifies a day that is later than the

day specified in the revoked instrument.

(12)

If:

(a) the ACCC has accepted an undertaking given by Telstra

under subsection (1); and

(b) when the undertaking was accepted, a particular day (the

relevant day) was the designated day;

the Minister must not make an instrument under paragraph (10)(b)

specifying a day earlier than the relevant day.

(13) Telstra may, before the designated day, request the Minister to:

(a) if no instrument is in force under paragraph (10)(b)--make

an instrument under that paragraph specifying a particular

day; or

(b) if an instrument is in force under paragraph (10)(b):

(i) revoke that instrument; and

(ii) make a fresh instrument under that paragraph specifying

a particular day that is later than the day specified in the

revoked instrument.

(14) If Telstra gives the Minister a request under subsection (13), the

Minister must consider the request.

(15) However, the Minister is not required to consider the request if the

Minister is satisfied that the request:

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Amendments relating to Telstra Part 1

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 13

(a) is frivolous or vexatious; or

(b) was not made in good faith.

General provisions

(16) An undertaking under this section must be expressed to be an

undertaking under this section.

(17) An undertaking under this section may not be withdrawn after it

has been accepted by the ACCC.

(18) If an undertaking under this section provides for the ACCC to

perform functions or exercise powers in relation to the undertaking,

the ACCC may perform those functions, and exercise those

powers, in accordance with the undertaking.

(19) Part 9 of Schedule 1 does not, by implication, limit the matters that

may be included in an undertaking under this section.

Note:

Part 9 of Schedule 1 deals with the functional separation of Telstra.

Exemptions

(20) The Minister may, by legislative instrument, exempt a specified

fixed-line carriage service from the scope of subsection (1) and the

associated provisions, either:

(a)

unconditionally;

(b) subject to such conditions or limitations as are specified in

the instrument.

(21) The Minister may, by legislative instrument, exempt a specified

telecommunications network from the scope of subsection (1) and

the associated provisions, either:

(a)

unconditionally;

(b) subject to such conditions or limitations as are specified in

the instrument.

(22) The Minister must cause a copy of an instrument under

subsection (7) or paragraph (10)(b) to be published on the

Department's website.

(23) An instrument under subsection (7) or paragraph (10)(b) is not a

legislative instrument.

Schedule 1 Amendments

Part 1 Amendments relating to Telstra

14 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

Bill 2010 No. , 2010

Definitions

(24) In this section:

associated provision means:

(a) subsection 577BA(11); or

(b)

subsection

577BC(2).

fixed-line carriage service means:

(a) a carriage service that is supplied using a line to premises

occupied or used by an end-user; or

(b) a service that facilitates the supply of a carriage service

covered by paragraph (a).

577AA Acceptance of undertaking about structural separation may

be subject to the occurrence of events

(1)

If:

(a) Telstra has, in a document accompanying an undertaking

under section 577A, nominated one or more events; and

(b) the nomination is expressed to be a nomination under this

subsection; and

(i) the passage of a resolution covered by subparagraph

411(4)(a)(ii) of the Corporations Act 2001; or

(ii) an approval covered by paragraph 411(4)(b) of that Act;

(iii) the passage of a resolution, where Telstra's members

(within the meaning of that Act) were entitled to vote on

the resolution; or

(iv) an approval covered by Chapter 11 of the ASX Listing

Rules; or

(v) the granting of a waiver under rule 18.1 of the ASX

Listing Rules; or

(vi) the approval of a draft migration plan by the ACCC

under section 577BDA or 577BDC; or

(vii) the making of a declaration under subsection 577J(3); or

(viii) the making of a declaration under subsection 577J(5); or

(ix) an event specified in an instrument in force under

subsection (3); and

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Amendments relating to Telstra Part 1

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 15

(d) the ACCC decides to accept the undertaking;

the decision to accept the undertaking must be expressed to be

subject to the occurrence of those events within a specified period

after the undertaking is accepted.

(2) A nomination under subsection (1) must not specify an event by

reference to the timing of the event.

(3) The Minister may, by writing, specify events for the purposes of

subparagraph (1)(c)(ix).

(4) A period specified by the ACCC under subsection (1) must be:

(a) 6 months; or

(b) if another period is specified in an instrument under

subsection (5)--that period.

(5) The Minister may, by writing, specify a period for the purposes of

paragraph (4)(b).

Notification requirement

(6)

If:

(a) a decision to accept an undertaking under section 577A is

expressed to be subject to the occurrence of one or more

specified events within a specified period; and

(b) such an event occurs within that period;

Telstra must notify the ACCC in writing of the occurrence of the

event as soon as practicable after the occurrence.

(6A) Subsection (6) does not apply to an event mentioned in

subparagraph (1)(a)(vi).

If event does not occur

(7)

If:

(a) a decision to accept an undertaking under section 577A is

expressed to be subject to the occurrence of a single specified

event within a specified period; and

(b) the event does not occur within that period;

this Act (other than subclause 76(4) of Schedule 1) has effect as if

the undertaking had never been accepted by the ACCC.

(8)

If:

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Part 1 Amendments relating to Telstra

16 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

Bill 2010 No. , 2010

(a) a decision to accept an undertaking under section 577A is

expressed to be subject to the occurrence of 2 or more

specified events within a specified period; and

(b) one or more of those events do not occur within that period;

this Act (other than subclause 76(4) of Schedule 1) has effect as if

the undertaking had never been accepted by the ACCC.

Publication requirement

(9) The Minister must cause a copy of an instrument under

subsection (3) or (5) to be published on the Department's website.

Instruments are not legislative instruments

(10) An instrument under subsection (3) or (5) is not a legislative

instrument.

577AB When undertaking about structural separation comes into

force

An undertaking under section 577A comes into force:

(a)

if:

(i) the decision to accept the undertaking is expressed to be

subject to the occurrence of a single specified event

within a specified period; and

(ii) the event occurs within that period;

when the event occurs; or

(b)

if:

(i) the decision to accept the undertaking is expressed to be

subject to the occurrence of 2 or more specified events

within a specified period; and

(ii) each of those events occur at the same time; and

(iii) that time occurs within that period;

at that time; or

(c)

if:

(i) the decision to accept the undertaking is expressed to be

subject to the occurrence of 2 or more specified events

within a specified period; and

(ii) each of those events occur at different times; and

(iii) each of those times occur within that period;

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Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 17

at the last of those times; or

(d) if the decision to accept the undertaking is not expressed to

be subject to the occurrence of one or more specified events

within a specified period--when the undertaking is accepted

by the ACCC.

577AC Publication requirements for undertaking about structural

separation

(1) If a decision to accept an undertaking under section 577A is

expressed to be subject to the occurrence of one or more specified

events within a specified period, the ACCC must:

(a) as soon as practicable after making the decision, publish on

its website:

(i) the undertaking; and

(ii) the terms of the decision; and

(b) as soon as practicable after the ACCC becomes aware that

the undertaking has come into force, publish on its website a

notice announcing that the undertaking has come into force.

(2) If a decision to accept an undertaking under section 577A is not

expressed to be subject to the occurrence of one or more specified

events within a specified period, the ACCC must, as soon as

practicable after accepting the undertaking, publish the undertaking

on its website.

577AD Compliance with undertaking about structural separation

If an undertaking given by Telstra is in force under section 577A,

Telstra must comply with the undertaking.

577B Variation of undertaking about structural separation

(1) This section applies if an undertaking given by Telstra is in force

under section 577A.

(2) Telstra may give the ACCC a variation of the undertaking, in so far

as the undertaking:

(a) is covered by paragraph 577A(1)(b); and

(b) does not consist of provisions of a final migration plan.

Note:

For variation of a final migration plan, see section 577BF.

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Part 1 Amendments relating to Telstra

18 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

Bill 2010 No. , 2010

(3) After considering the variation, the ACCC must decide to:

(a) accept the variation; or

(b)

reject

the

variation.

(4) In deciding whether to accept the variation, the ACCC must have

regard to:

(a) the matters (if any) set out in an instrument in force under

subsection (5); and

(b) such other matters (if any) as the ACCC considers relevant.

(5) The Minister may, by writing, set out matters for the purposes of

paragraph (4)(a).

(6) The variation takes effect when it is accepted by the ACCC.

(7) As soon as practicable after the variation takes effect, the ACCC

must publish the variation on its website.

(8) The Minister must cause a copy of an instrument under

subsection (5) to be published on the Department's website.

(9) An instrument under subsection (5) is not a legislative instrument.

577BA Authorised conduct--subsection 51(1) of the Competition and

Consumer Act 2010

Object

(1) The object of this section is to promote the national interest in

structural reform of the telecommunications industry by

authorising, for the purposes of subsection 51(1) of the

Competition and Consumer Act 2010, certain conduct engaged in

by:

(a)

Telstra;

and

(b) NBN corporations; and

Note:

If conduct is authorised for the purposes of subsection 51(1) of the

Competition and Consumer Act 2010, the conduct is disregarded in

deciding whether a person has contravened Part IV of that Act.

Authorised conduct

(2) The giving by Telstra of:

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Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 19

(a) an undertaking under section 577A; or

(b) a variation of an undertaking in force under section 577A; or

force under section 577A; or

(d) a variation of a final migration plan;

is authorised for the purposes of subsection 51(1) of the

Competition and Consumer Act 2010.

(3)

If:

(a) Telstra enters into a contract, arrangement or understanding

with an NBN corporation; and

(b) when the contract, arrangement or understanding is entered

into, no undertaking is in force under section 577A; and

understanding are subject to a condition precedent, namely,

the coming into force of an undertaking under section 577A;

then:

(d) the entering into of the contract, arrangement or

understanding by Telstra is authorised for the purposes of

subsection 51(1) of the Competition and Consumer Act 2010;

and

(e) the entering into of the contract, arrangement or

understanding by the NBN corporation is authorised for the

purposes of subsection 51(1) of the Competition and

Consumer Act 2010; and

(f)

if:

(i) the undertaking under section 577A comes into force;

and

(ii) if the contract, arrangement or understanding was in

writing--before the undertaking was accepted by the

ACCC, Telstra or the NBN corporation gave the ACCC

a copy of the contract, arrangement or understanding;

and

(iii) if the contract, arrangement or understanding was not in

writing--before the undertaking was accepted by the

ACCC, the contract, arrangement or understanding was

reduced to writing and Telstra or the NBN corporation

gave the ACCC a copy of the contract, arrangement or

understanding;

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Part 1 Amendments relating to Telstra

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then:

(iv) conduct engaged in by Telstra or the NBN corporation

after the undertaking comes into force in order to give

effect to a provision of the contract, arrangement or

understanding is authorised for the purposes of

subsection 51(1) of the Competition and Consumer Act

2010; and

(v) conduct engaged in by another NBN corporation after

the undertaking comes into force in order to facilitate

the first-mentioned NBN corporation giving effect to a

provision of the contract, arrangement or understanding

is authorised for the purposes of subsection 51(1) of the

Competition and Consumer Act 2010.

(4)

If:

(a) Telstra enters into a contract, arrangement or understanding

with an NBN corporation; and

(b) the contract, arrangement or understanding contains a

migration provision; and

into, no undertaking is in force under section 577A;

then:

(d) the entering into of the contract, arrangement or

understanding by Telstra is authorised for the purposes of

subsection 51(1) of the Competition and Consumer Act 2010,

to the extent to which the contract, arrangement or

understanding contains the migration provision; and

(e) the entering into of the contract, arrangement or

understanding by the NBN corporation is authorised for the

purposes of subsection 51(1) of the Competition and

Consumer Act 2010, to the extent to which the contract,

arrangement or understanding contains the migration

provision.

(5)

If:

(a) Telstra enters into a contract, arrangement or understanding

with an NBN corporation; and

(b) the contract, arrangement or understanding contains a

migration provision; and

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to give effect to the migration provision; and

(d) when the conduct is engaged in, no undertaking is in force

under section 577A;

the conduct is authorised for the purposes of subsection 51(1) of

the Competition and Consumer Act 2010 unless, before the conduct

was engaged in:

(e) the ACCC refused to accept the most recent undertaking

given by Telstra under section 577A; or

(f) as a result of subsection 577AA(7) or (8), this Act (other than

subclause 76(4) of Schedule 1) had effect as if the most

recent undertaking given by Telstra under section 577A had

never been accepted by the ACCC; or

(g) a final functional separation undertaking came into force.

(6) If Telstra is required to engage in conduct in order to comply with

an undertaking in force under section 577A, the conduct is

authorised for the purposes of subsection 51(1) of the Competition

and Consumer Act 2010.

(7)

If:

(a) a person directly or indirectly acquires an asset from Telstra;

and

(b) the disposal of the asset by Telstra is required for the

compliance by Telstra with an undertaking in force under

section 577A; and

whom the asset is to be directly or indirectly acquired;

the acquisition of the asset is authorised for the purposes of

subsection 51(1) of the Competition and Consumer Act 2010.

(8)

If:

(a) Telstra enters into a contract, arrangement or understanding

with an NBN corporation; and

(b) Telstra enters into the contract, arrangement or understanding

in order to comply with an undertaking in force under

section 577A;

then:

understanding by Telstra; and

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(d) the entering into of the contract, arrangement or

understanding by the NBN corporation; and

(e) conduct engaged in by Telstra or the NBN corporation in

order to give effect to a provision of the contract,

arrangement or understanding; and

(f) conduct engaged in by another NBN corporation in order to

facilitate the first-mentioned NBN corporation giving effect

to a provision of the contract, arrangement or understanding;

is authorised for the purposes of subsection 51(1) of the

Competition and Consumer Act 2010.

(9)

If:

(a) an undertaking given by Telstra is in force under

section 577A; and

(b) Telstra enters into a contract, arrangement or understanding

with an NBN corporation;

the Minister may, by legislative instrument, determine that

subsection (8) applies, and is taken to have always applied, as if

Telstra had entered into the contract, arrangement or understanding

in order to comply with the undertaking.

(10)

If:

(a) a final migration plan is in force; and

(b) the final migration plan sets out a method for determining a

timetable for the taking of the action specified in the plan in

accordance with paragraph 577BC(2)(a); and

purposes of determining the timetable; and

(d) the conduct is consistent with the method;

the conduct is authorised for the purposes of subsection 51(1) of

the Competition and Consumer Act 2010.

Migration provisions

(11)

If:

(a) Telstra enters into a contract, arrangement or understanding

with an NBN corporation; and

(b) the contract, arrangement or understanding contains one or

more provisions for:

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(i) Telstra to cease to supply fixed-line carriage services to

customers using a telecommunications network over

which Telstra is in a position to exercise control; or

(ii) Telstra to cease to supply one or more types of

fixed-line carriage services to customers using a

telecommunications network over which Telstra is in a

position to exercise control; or

(iii) Telstra to cease to supply, in particular circumstances,

one or more types of fixed-line carriage services to

customers using a telecommunications network over

which Telstra is in a position to exercise control; or

(iv) Telstra to commence to supply fixed-line carriage

services to customers using the national broadband

network;

then:

migration provision; and

(d) if the contract, arrangement or understanding contains one or

more provisions for Telstra to supply services to an NBN

corporation in connection with any or all of the matters

mentioned in paragraph (b)--each of those provisions is a

migration provision; and

(e) if the contract, arrangement or understanding contains one or

more provisions for an NBN corporation to supply services to

Telstra in connection with any or all of the matters mentioned

in paragraph (b)--each of those provisions is a migration

provision; and

(f) if the contract, arrangement or understanding contains one or

more provisions for Telstra to give information to an NBN

corporation in connection with any or all of the matters

mentioned in paragraph (b)--each of those provisions is a

migration provision; and

(g) if the contract, arrangement or understanding contains one or

more provisions for an NBN corporation to give information

to Telstra in connection with any or all of the matters

mentioned in paragraph (b)--each of those provisions is a

migration provision.

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Definitions

(12) In this section:

asset means:

(a) any legal or equitable estate or interest in real or personal

property, including a contingent or prospective one; and

(b) any right, privilege or immunity, including a contingent or

prospective one.

enter into:

(a) when used in relation to an arrangement--includes make; or

(b) when used in relation to an understanding--includes arrive at

or reach.

fixed-line carriage service means:

(a) a carriage service that is supplied using a line to premises

occupied or used by an end-user; or

(b) a service that facilitates the supply of a carriage service

covered by paragraph (a).

give effect to, in relation to a provision of a contract, arrangement

or understanding, has the same meaning as in the Competition and

Consumer Act 2010.

migration provision has the meaning given by subsection (11).

national broadband network means a telecommunications network

for the high-speed carriage of communications, where an NBN

corporation has been, is, or is to be, involved in the creation or

development of the network.

NBN Co means NBN Co Limited (ACN 136 533 741), as the

company exists from time to time (even if its name is later

changed).

NBN corporation means:

(a) NBN Co; or

(b) NBN Tasmania; or

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NBN Tasmania means NBN Tasmania Limited (ACN 138 338

271), as the company exists from time to time (even if its name is

later changed).

related body corporate has the same meaning as in the

Corporations Act 2001.

Subdivision B--Migration plan

577BB Migration plan principles

(1) The Minister may, by writing, determine that specified principles

are migration plan principles for the purposes of this Act.

Note:

For variation and revocation, see subsection 33(3) of the Acts

Interpretation Act 1901.

Consultation

(2) Before making or varying a determination under subsection (1), the

Minister must:

(a) cause to be published on the Department's website a notice:

(i) setting out the draft determination or variation; and

(ii) inviting persons to make submissions to the Minister

about the draft determination or variation within 14 days

after the notice is published; and

(b) consider any submissions received within the 14-day period

mentioned in paragraph (a).

Publication requirement

(3) The Minister must cause a copy of a determination under

subsection (1) to be published on the Department's website.

Determination is not a legislative instrument

(4) A determination under subsection (1) is not a legislative

instrument.

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577BC Migration plan

(1) The specified action first mentioned in paragraph 577A(1)(b) may

include giving the ACCC a draft migration plan after the relevant

undertaking has come into force.

(2) A draft or final migration plan must:

(a) specify the action to be taken by Telstra to:

(i) cease to supply fixed-line carriage services to customers

using a telecommunications network over which Telstra

is in a position to exercise control; and

(ii) commence to supply fixed-line carriage services to

customers using the national broadband network; and

(b)

either:

(i) set out a timetable for the taking of that action; or

(ii) set out a method for determining a timetable for the

taking of that action.

(3) A draft or final migration plan may contain provisions dealing with

such other matters (if any) as are specified in a written instrument

made by the Minister.

(4) A draft or final migration plan must not contain provisions dealing

with such matters (if any) as are specified in a written instrument

made by the Minister.

Migration plan principles

(5) A draft migration plan must not be given to the ACCC unless a

determination is in force under subsection 577BB(1).

Publication requirement

(6) The Minister must cause a copy of an instrument under

subsection (3) or (4) to be published on the Department's website.

Instrument is not a legislative instrument

(7) An instrument under subsection (3) or (4) is not a legislative

instrument.

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Definitions

(8) In this section:

fixed-line carriage service means:

(a) a carriage service that is supplied using a line to premises

occupied or used by an end-user; or

(b) a service that facilitates the supply of a carriage service

covered by paragraph (a).

national broadband network means a telecommunications network

for the high-speed carriage of communications, where an NBN

corporation has been, is, or is to be, involved in the creation or

development of the network.

NBN Co means NBN Co Limited (ACN 136 533 741), as the

company exists from time to time (even if its name is later

changed).

NBN corporation means:

(a) NBN Co; or

(b) NBN Tasmania; or

NBN Tasmania means NBN Tasmania Limited (ACN 138 338

271), as the company exists from time to time (even if its name is

later changed).

related body corporate has the same meaning as in the

Corporations Act 2001.

577BD Approval of draft migration plan by the ACCC--plan given

after undertaking about structural separation comes into

force

Scope

(1) This section applies if Telstra gives the ACCC a draft migration

plan (the original plan) in accordance with an undertaking in force

under section 577A.

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Decision

(2)

The

ACCC

must:

(a) if the ACCC is satisfied that the original plan complies with

the migration plan principles--approve the original plan; or

(b)

otherwise:

(i) refuse to approve the original plan; and

(ii) by written notice given to Telstra, direct Telstra to give

the ACCC, within 30 days after the notice is given, a

replacement draft migration plan that complies with the

migration plan principles.

Note:

For migration plan principles, see section 577BB.

Consultation

(3) Before making a decision under subsection (2), the ACCC must:

(a) cause to be published on the ACCC's website a notice:

(i) setting out the original plan; and

(ii) inviting persons to make submissions to the ACCC

about the original plan within 28 days after the notice is

published; and

(b) cause to be published on the ACCC's website a copy of each

submission received within the 28-day period mentioned in

paragraph (a); and

mentioned in paragraph (a).

Compliance with direction

(4) Telstra must comply with a direction under subparagraph (2)(b)(ii).

Note:

The ACCC will make a decision about the plan under

section 577BDB.

Replacement plan to be treated as if it had been given in

accordance with the undertaking

(5) A draft migration plan given by Telstra in compliance with a

direction under subparagraph (2)(b)(ii) is taken, for the purposes of

this Act (other than this section and section 577BDB), to be given

in accordance with the undertaking.

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Notification of decision

(6) As soon as practicable after making a decision under

subsection (2), the ACCC must notify Telstra in writing of the

decision.

577BDA Approval of draft migration plan by the ACCC--plan

given before undertaking about structural separation

comes into force

(1)

If:

(a) Telstra gives the ACCC an undertaking under section 577A;

and

(b) the specified action first mentioned in paragraph 577A(1)(b)

consists of, or includes, giving the ACCC a draft migration

plan after the undertaking has come into force; and

(i) Telstra has, in a document accompanying the

undertaking, nominated the event mentioned in

subparagraph 577AA(1)(c)(vi);

(ii) the nomination meets the requirements of paragraph

577AA(1)(b) and subsection 577AA(2);

Telstra may give the ACCC a draft migration plan (the original

plan) during the period:

(d) beginning when Telstra gives the ACCC the undertaking; and

(e) ending when the undertaking comes into force;

as if the undertaking had come into force.

Decision

(2)

The

ACCC

must:

(a) if the ACCC is satisfied that the original plan complies with

the migration plan principles--approve the original plan; or

(b)

otherwise:

(i) refuse to approve the original plan; and

(ii) by written notice given to Telstra, request Telstra to

give the ACCC, within 30 days after the notice is given,

a replacement draft migration plan that complies with

the migration plan principles.

Note 1:

For migration plan principles, see section 577BB.

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Note 2:

If Telstra gives the ACCC a replacement draft migration plan in

response to the request, the ACCC will make a decision about the plan

under section 577BDC.

(3) The ACCC must not make a decision under subsection (2) before it

accepts the undertaking.

(4) After the undertaking comes into force, this Act (other than

section 577BD and this section) has effect as if the original plan

had been given to the ACCC in accordance with the undertaking.

Consultation

(5) Before making a decision under subsection (2), the ACCC must:

(a) cause to be published on the ACCC's website a notice:

(i) setting out the original plan; and

(ii) inviting persons to make submissions to the ACCC

about the original plan within 28 days after the notice is

published; and

(b) cause to be published on the ACCC's website a copy of each

submission received within the 28-day period mentioned in

paragraph (a); and

mentioned in paragraph (a).

Replacement plan to be treated as if it had been given in

accordance with the undertaking

(6) A draft migration plan given by Telstra in response to a request

under subparagraph (2)(b)(ii) is taken, for the purposes of this Act

(other than sections 577BD, 577BDB and 577BDC and this

section), to be given in accordance with the undertaking.

Notification of decision

(7) As soon as practicable after making a decision under

subsection (2), the ACCC must notify Telstra in writing of the

decision.

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577BDB Approval of draft migration plan by the ACCC--plan

given in compliance with a direction

Scope

(1) This section applies if:

(a) Telstra has given the ACCC an undertaking under

section 577A; and

(b) Telstra gives the ACCC a draft migration plan (the original

plan) in compliance with a direction under:

(i) subparagraph 577BD(2)(b)(ii); or

(ii) subparagraph (2)(b)(ii) of this section.

Decision

(2)

The

ACCC

must:

(a) if the ACCC is satisfied that the original plan complies with

the migration plan principles--approve the original plan; or

(b)

otherwise:

(i) refuse to approve the original plan; and

(ii) by written notice given to Telstra, direct Telstra to give

the ACCC, within 30 days after the notice is given, a

replacement draft migration plan that complies with the

migration plan principles.

Note:

For migration plan principles, see section 577BB.

Consultation

(3) Before making a decision under subsection (2), the ACCC must:

(a) cause to be published on the ACCC's website a notice:

(i) setting out the original plan; and

(ii) inviting persons to make submissions to the ACCC

about the original plan within 28 days after the notice is

published; and

(b) cause to be published on the ACCC's website a copy of each

submission received within the 28-day period mentioned in

paragraph (a); and

mentioned in paragraph (a).

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Compliance with direction

(4) Telstra must comply with a direction under subparagraph (2)(b)(ii).

Note:

The ACCC will make a decision about the plan under subsection (2).

Replacement plan to be treated as if it had been given in

accordance with the undertaking

(5) A draft migration plan given by Telstra in compliance with a

direction under subparagraph (2)(b)(ii) is taken, for the purposes of

this Act (other than sections 577BD, 577BDA and 577BDC and

this section), to be given in accordance with the undertaking.

Notification of decision

(6) As soon as practicable after making a decision under

subsection (2), the ACCC must notify Telstra in writing of the

decision.

577BDC Approval of draft migration plan by the ACCC--plan

given in response to a request

Scope

(1) This section applies if:

(a) Telstra gives the ACCC an undertaking under section 577A;

and

(b) Telstra gives the ACCC a draft migration plan (the original

plan) in response to a request under:

(i) subparagraph 577BDA(2)(b)(ii); or

(ii) subparagraph (2)(b)(ii) of this section.

Decision

(2)

The

ACCC

must:

(a) if the ACCC is satisfied that the original plan complies with

the migration plan principles--approve the original plan; or

(b)

otherwise:

(i) refuse to approve the original plan; and

(ii) by written notice given to Telstra, request Telstra to

give the ACCC, within 30 days after the notice is given,

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a replacement draft migration plan that complies with

the migration plan principles.

Note 1:

For migration plan principles, see section 577BB.

Note 2:

If Telstra gives the ACCC a replacement draft migration plan in

response to the request, the ACCC will make a decision about the plan

under this section.

Consultation

(3) Before making a decision under subsection (2), the ACCC must:

(a) cause to be published on the ACCC's website a notice:

(i) setting out the original plan; and

(ii) inviting persons to make submissions to the ACCC

about the original plan within 28 days after the notice is

published; and

(b) cause to be published on the ACCC's website a copy of each

submission received within the 28-day period mentioned in

paragraph (a); and

mentioned in paragraph (a).

Plan to be treated as if it had been given in accordance with the

undertaking

(4) A draft migration plan given by Telstra in response to a request

under subparagraph (2)(b)(ii) is taken, for the purposes of this Act

(other than sections 577BD, 577BDA and 577BDB and this

section), to be given in accordance with the undertaking.

Notification of decision

(5) As soon as practicable after making a decision under

subsection (2), the ACCC must notify Telstra in writing of the

decision.

577BE Effect of approval of draft migration plan

(1) If the ACCC approves a draft migration plan, the plan becomes a

final migration plan.

(2) If the ACCC approves a draft migration plan under subsection

577BD(2), the plan comes into force at the start of the day after

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notice of the decision to approve the plan is given to Telstra in

accordance with subsection 577BD(6).

(3) If the ACCC approves a draft migration plan under subsection

577BDA(2), 577BDB(2) or 577BDC(2), the plan comes into force

at the later of:

(a) the start of the day after notice of the decision to approve the

plan is given to Telstra in accordance with subsection

577BDA(7), 577BDB(6) or 577BDC(5), as the case requires;

(b) when the relevant undertaking under section 577A comes

into force.

(4) A final migration plan may not be withdrawn.

(5) When a final migration plan comes into force, the relevant

undertaking under section 577A has effect as if the provisions of

the plan were provisions of the undertaking.

Publication requirement

(6) As soon as practicable after a final migration plan comes into

force, the ACCC must publish a copy of the plan on the ACCC's

website.

ACCC's functions and powers

(7) If a final migration plan provides for the ACCC to perform

functions or exercise powers in relation to the plan, the ACCC may

perform those functions, and exercise those powers, in accordance

with the plan.

Plan is not a legislative instrument

(8) A final migration plan is not a legislative instrument.

577BF Variation of final migration plan

(1) This section applies if a final migration plan is in force.

(2) Telstra may give the ACCC a variation of the final migration plan.

(3)

The

ACCC

must:

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(a) if the ACCC is satisfied that the final migration plan as

varied complies with the migration plan principles--approve

the variation; or

(b) otherwise--refuse to approve the variation.

Consultation

(4) Before making a decision under subsection (3), the ACCC must:

(a) cause to be published on the ACCC's website a notice:

(i) setting out the variation; and

(ii) inviting persons to make submissions to the ACCC

about the variation within 28 days after the notice is

published; and

(b) cause to be published on the ACCC's website a copy of each

submission received within the 28-day period mentioned in

paragraph (a); and

mentioned in paragraph (a).

(5) Subsection (4) does not apply to a variation if the variation is of a

minor nature.

When variation takes effect

(6) The variation takes effect when it is approved by the ACCC.

(7) When the variation takes effect, the relevant undertaking under

section 577A has effect as if the provisions of the final migration

plan as varied were provisions of the undertaking.

(8) As soon as practicable after the variation takes effect, the ACCC

must publish a copy of the variation on the ACCC's website.

Division 3--Hybrid fibre-coaxial networks

577C Acceptance of undertaking about hybrid fibre-coaxial

networks

(1) The ACCC may accept a written undertaking given by Telstra that:

(a) at all times after the end of the period specified in the

undertaking, Telstra will not be in a position to exercise

control of a hybrid fibre-coaxial network in Australia; and

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(b) Telstra will, in connection with paragraph (a), take specified

action and/or refrain from taking specified action.

Note:

For when Telstra is in a position to exercise control of a network, see

section 577Q.

(2) The period specified in the undertaking as mentioned in

paragraph (1)(a) must not be longer than 12 months.

(3) The undertaking must be expressed to be an undertaking under this

section.

(4) The undertaking may not be withdrawn after it has been accepted

by the ACCC.

(5) If the undertaking provides for the ACCC to perform functions or

exercise powers in relation to the undertaking, the ACCC may

perform those functions, and exercise those powers, in accordance

with the undertaking.

577CA Acceptance of undertaking about hybrid fibre-coaxial

networks may be subject to the occurrence of events

(1)

If:

(a) Telstra has, in a document accompanying an undertaking

under section 577C, nominated one or more events; and

(b) the nomination is expressed to be a nomination under this

subsection; and

(i) the passage of a resolution covered by subparagraph

411(4)(a)(ii) of the Corporations Act 2001; or

(ii) an approval covered by paragraph 411(4)(b) of that Act;

(iii) the passage of a resolution, where Telstra's members

(within the meaning of that Act) were entitled to vote on

the resolution; or

(iv) an approval covered by Chapter 11 of the ASX Listing

Rules; or

(v) the granting of a waiver under rule 18.1 of the ASX

Listing Rules; or

(vi) the making of a declaration under subsection 577J(5); or

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(vii) an event specified in an instrument in force under

subsection (3); and

(d) the ACCC decides to accept the undertaking;

the decision to accept the undertaking must be expressed to be

subject to the occurrence of those events within a specified period

after the undertaking is accepted.

(2) A nomination under subsection (1) must not specify an event by

reference to the timing of the event.

(3) The Minister may, by writing, specify events for the purposes of

subparagraph (1)(c)(vii).

(4) A period specified by the ACCC under subsection (1) must be:

(a) 6 months; or

(b) if another period is specified in an instrument under

subsection (5)--that period.

(5) The Minister may, by writing, specify a period for the purposes of

paragraph (4)(b).

Notification requirement

(6)

If:

(a) a decision to accept an undertaking under section 577C is

expressed to be subject to the occurrence of one or more

specified events within a specified period; and

(b) such an event occurs within that period;

Telstra must notify the ACCC in writing of the occurrence of the

event as soon as practicable after the occurrence.

If event does not occur

(7)

If:

(a) a decision to accept an undertaking under section 577C is

expressed to be subject to the occurrence of a single specified

event within a specified period; and

(b) the event does not occur within that period;

this Act has effect as if the undertaking had never been accepted by

the ACCC.

(8)

If:

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(a) a decision to accept an undertaking under section 577C is

expressed to be subject to the occurrence of 2 or more

specified events within a specified period; and

(b) one or more of those events do not occur within that period;

this Act has effect as if the undertaking had never been accepted by

the ACCC.

Publication requirement

(9) The Minister must cause a copy of an instrument under

subsection (3) or (5) to be published on the Department's website.

Instruments are not legislative instruments

(10) An instrument under subsection (3) or (5) is not a legislative

instrument.

577CB When undertaking about hybrid fibre-coaxial networks

comes into force

An undertaking under section 577C comes into force:

(a)

if:

(i) the decision to accept the undertaking is expressed to be

subject to the occurrence of a single specified event

within a specified period; and

(ii) the event occurs within that period;

when the event occurs; or

(b)

if:

(i) the decision to accept the undertaking is expressed to be

subject to the occurrence of 2 or more specified events

within a specified period; and

(ii) each of those events occur at the same time; and

(iii) that time occurs within that period;

at that time; or

(c)

if:

(i) the decision to accept the undertaking is expressed to be

subject to the occurrence of 2 or more specified events

within a specified period; and

(ii) each of those events occur at different times; and

(iii) each of those times occur within that period;

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at the last of those times; or

(d) if the decision to accept the undertaking is not expressed to

be subject to the occurrence of one or more specified events

within a specified period--when the undertaking is accepted

by the ACCC.

577CC Publication requirements for undertaking about hybrid

fibre-coaxial networks

(1) If a decision to accept an undertaking under section 577C is

expressed to be subject to the occurrence of one or more specified

events within a specified period, the ACCC must:

(a) as soon as practicable after making the decision, publish on

its website:

(i) the undertaking; and

(ii) the terms of the decision; and

(b) as soon as practicable after the ACCC becomes aware that

the undertaking has come into force, publish on its website a

notice announcing that the undertaking has come into force.

(2) If a decision to accept an undertaking under section 577C is not

expressed to be subject to the occurrence of one or more specified

events within a specified period, the ACCC must, as soon as

practicable after accepting the undertaking, publish the undertaking

on its website.

577CD Compliance with undertaking about hybrid fibre-coaxial

networks

If an undertaking given by Telstra is in force under section 577C,

Telstra must comply with the undertaking.

577D Variation of undertaking about hybrid fibre-coaxial networks

(1) This section applies if an undertaking given by Telstra is in force

under section 577C.

(2) Telstra may give the ACCC a variation of the undertaking in so far

as the undertaking is covered by paragraph 577C(1)(b).

(3) After considering the variation, the ACCC must decide to:

(a) accept the variation; or

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(b)

reject

the

variation.

(4) The variation takes effect when it is accepted by the ACCC.

(5) As soon as practicable after the variation takes effect, the ACCC

must publish the variation on its website.

Division 4--Subscription television broadcasting licences

577E Acceptance of undertaking about subscription television

broadcasting licences

(1) The ACCC may accept a written undertaking given by Telstra that:

(a) at all times after the end of the period specified in the

undertaking, Telstra will not be in a position to exercise

control of a subscription television broadcasting licence; and

(b) Telstra will, in connection with paragraph (a), take specified

action and/or refrain from taking specified action.

Note:

For when Telstra is in a position to exercise control of a subscription

television broadcasting licence, see subsection (7).

(2) The period specified in the undertaking as mentioned in

paragraph (1)(a) must not be longer than 12 months.

(3) The undertaking must be expressed to be an undertaking under this

section.

(4) The undertaking may not be withdrawn after it has been accepted

by the ACCC.

(5) If the undertaking provides for the ACCC to perform functions or

exercise powers in relation to the undertaking, the ACCC may

perform those functions, and exercise those powers, in accordance

with the undertaking.

(6) For the purposes of this section, the question of whether Telstra is

in a position to exercise control of a subscription television

broadcasting licence is to be determined under Schedule 1 to the

Broadcasting Services Act 1992.

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577EA Acceptance of undertaking about subscription television

broadcasting licences may be subject to the occurrence of

events

(1)

If:

(a) Telstra has, in a document accompanying an undertaking

under section 577E, nominated one or more events; and

(b) the nomination is expressed to be a nomination under this

subsection; and

(i) the passage of a resolution covered by subparagraph

411(4)(a)(ii) of the Corporations Act 2001; or

(ii) an approval covered by paragraph 411(4)(b) of that Act;

(iii) the passage of a resolution, where Telstra's members

(within the meaning of that Act) were entitled to vote on

the resolution; or

(iv) an approval covered by Chapter 11 of the ASX Listing

Rules; or

(v) the granting of a waiver under rule 18.1 of the ASX

Listing Rules; or

(vi) the making of a declaration under subsection 577J(3); or

(vii) an event specified in an instrument in force under

subsection (3); and

(d) the ACCC decides to accept the undertaking;

the decision to accept the undertaking must be expressed to be

subject to the occurrence of those events within a specified period

after the undertaking is accepted.

(2) A nomination under subsection (1) must not specify an event by

reference to the timing of the event.

(3) The Minister may, by writing, specify events for the purposes of

subparagraph (1)(c)(vii).

(4) A period specified by the ACCC under subsection (1) must be:

(a) 6 months; or

(b) if another period is specified in an instrument under

subsection (5)--that period.

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(5) The Minister may, by writing, specify a period for the purposes of

paragraph (4)(b).

Notification requirement

(6)

If:

(a) a decision to accept an undertaking under section 577E is

expressed to be subject to the occurrence of one or more

specified events within a specified period; and

(b) such an event occurs within that period;

Telstra must notify the ACCC in writing of the occurrence of the

event as soon as practicable after the occurrence.

If event does not occur

(7)

If:

(a) a decision to accept an undertaking under section 577E is

expressed to be subject to the occurrence of a single specified

event within a specified period; and

(b) the event does not occur within that period;

this Act has effect as if the undertaking had never been accepted by

the ACCC.

(8)

If:

(a) a decision to accept an undertaking under section 577E is

expressed to be subject to the occurrence of 2 or more

specified events within a specified period; and

(b) one or more of those events do not occur within that period;

this Act has effect as if the undertaking had never been accepted by

the ACCC.

Publication requirement

(9) The Minister must cause a copy of an instrument under

subsection (3) or (5) to be published on the Department's website.

Instruments are not legislative instruments

(10) An instrument under subsection (3) or (5) is not a legislative

instrument.

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577EB When undertaking about subscription television

broadcasting licences comes into force

An undertaking under section 577E comes into force:

(a)

if:

(i) the decision to accept the undertaking is expressed to be

subject to the occurrence of a single specified event

within a specified period; and

(ii) the event occurs within that period;

when the event occurs; or

(b)

if:

(i) the decision to accept the undertaking is expressed to be

subject to the occurrence of 2 or more specified events

within a specified period; and

(ii) each of those events occur at the same time; and

(iii) that time occurs within that period;

at that time; or

(c)

if:

(i) the decision to accept the undertaking is expressed to be

subject to the occurrence of 2 or more specified events

within a specified period; and

(ii) each of those events occur at different times; and

(iii) each of those times occur within that period;

at the last of those times; or

(d) if the decision to accept the undertaking is not expressed to

be subject to the occurrence of one or more specified events

within a specified period--when the undertaking is accepted

by the ACCC.

577EC Publication requirements for undertaking about subscription

television broadcasting licences

(1) If a decision to accept an undertaking under section 577E is

expressed to be subject to the occurrence of one or more specified

events within a specified period, the ACCC must:

(a) as soon as practicable after making the decision, publish on

its website:

(i) the undertaking; and

(ii) the terms of the decision; and

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(b) as soon as practicable after the ACCC becomes aware that

the undertaking has come into force, publish on its website a

notice announcing that the undertaking has come into force.

(2) If a decision to accept an undertaking under section 577E is not

expressed to be subject to the occurrence of one or more specified

events within a specified period, the ACCC must, as soon as

practicable after accepting the undertaking, publish the undertaking

on its website.

577ED Compliance with undertaking about subscription television

broadcasting licences

If an undertaking given by Telstra is in force under section 577E,

Telstra must comply with the undertaking.

577F Variation of undertaking about subscription television

broadcasting licences

(1) This section applies if an undertaking given by Telstra is in force

under section 577E.

(2) Telstra may give the ACCC a variation of the undertaking in so far

as the undertaking is covered by paragraph 577E(1)(b).

(3) After considering the variation, the ACCC must decide to:

(a) accept the variation; or

(b)

reject

the

variation.

(4) The variation takes effect when it is accepted by the ACCC.

(5) As soon as practicable after the variation takes effect, the ACCC

must publish the variation on its website.

Division 5--Enforcement of undertakings

577G Enforcement of undertakings

(1)

If:

(a) an undertaking given by Telstra is in force under

section 577A, 577C or 577E; and

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(b) the ACCC considers that Telstra has breached the

undertaking;

the ACCC may apply to the Federal Court for an order under

subsection (2).

(2) If the Federal Court is satisfied that Telstra has breached the

undertaking, the Court may make any or all of the following

orders:

(a) an order directing Telstra to comply with the undertaking;

(b) an order directing the disposal of network units, shares or

other assets;

shares;

(d) an order prohibiting or deferring the payment of any sums

due to a person in respect of shares held by Telstra;

(e) an order that any exercise of rights attached to shares be

disregarded;

(f) an order directing Telstra to pay to the Commonwealth an

amount up to the amount of any financial benefit that Telstra

has obtained directly or indirectly and that is reasonably

attributable to the breach;

(g) any order that the Court considers appropriate directing

Telstra to compensate any other person who has suffered loss

or damage as a result of the breach;

(h) any other order that the Court considers appropriate.

(3) In addition to the Federal Court's powers under subsection (2), the

court:

(a) has power, for the purpose of securing compliance with any

other order made under this section, to make an order

directing any person to do or refrain from doing a specified

act; and

(b) has power to make an order containing such ancillary or

consequential provisions as the court thinks just.

(4) The Federal Court may, before making an order under this section,

direct that notice of the application be given to such persons as it

thinks fit or be published in such manner as it thinks fit, or both.

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(5) The Federal Court may, by order, rescind, vary or discharge an

order made by it under this section or suspend the operation of

such an order.

Division 6--Limits on allocation of spectrum licences etc.

577GA Excluded spectrum regime

(1) The Minister may, by legislative instrument, determine that the

excluded spectrum regime applies to Telstra.

(2) A determination under subsection (1) has effect for the purposes

of:

(a) this Division; and

(b) Part 10 of Schedule 1.

577H Designated part of the spectrum

(1) For the purposes of this Act, each of the following parts of the

spectrum is a designated part of the spectrum:

(a) frequencies higher than 520 MHz, up to and including 820

MHz;

(b) frequencies higher than 2.5 GHz, up to and including 2.69

GHz.

(2) Subsection (1) has effect subject to subsection (3).

(3) The Minister may, by legislative instrument, determine that a

specified part of the spectrum is not a designated part of the

spectrum for the purposes of this Act.

(4) The Minister may, by legislative instrument, determine that a

specified part of the spectrum is a designated part of the spectrum

for the purposes of this Act.

577J Limits on allocation of certain spectrum licences to Telstra

(1) If the excluded spectrum regime applies to Telstra, the ACMA

must not allocate a spectrum licence to Telstra if the licence relates

to a designated part of the spectrum.

Note:

For excluded spectrum regime, see section 577GA.

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(2) However, the rule in subsection (1) does not apply if:

(a)

both:

(i) an undertaking given by Telstra is in force under

section 577A; and

(ii) the undertaking is covered by subsection (2A); and

(b)

either:

(i) an undertaking given by Telstra is in force under

section 577C; or

(ii) a declaration is in force under subsection (3); and

(c)

either:

(i) an undertaking given by Telstra is in force under

section 577E; or

(ii) a declaration is in force under subsection (5).

Note 1:

Section 577A deals with undertakings about structural separation.

Note 2:

Section 577C deals with undertakings about hybrid fibre-coaxial

networks.

Note 3:

Section 577E deals with undertakings about subscription television

broadcasting licences.

(2A) This subsection covers a section 577A undertaking if:

(a) the following conditions are satisfied:

(i) the undertaking requires Telstra to give the ACCC a

draft migration plan;

(ii) in accordance with the undertaking, Telstra has given

the ACCC a draft migration plan;

(iii) the ACCC has approved the draft migration plan under

section 577BD, 577BDA, 577BDB or 577BDC; or

(b) the undertaking does not require Telstra to give the ACCC a

draft migration plan.

(3) The Minister may declare, in writing, that Telstra is exempt from

the requirement to have an undertaking under section 577C.

(4) The Minister must not make a declaration under subsection (3)

unless the ACCC has made a decision to accept an undertaking

given by Telstra under section 577A, and:

(a) if the undertaking is in force--the Minister is satisfied that

the undertaking is sufficient to address concerns about the

degree of Telstra's power in telecommunications markets; or

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(b) if the undertaking is not in force--the Minister is satisfied

that, subject to the undertaking coming into force, the

undertaking is sufficient to address concerns about the degree

of Telstra's power in telecommunications markets.

(4A) A declaration under subsection (3) comes into force:

(a) if paragraph (4)(a) applies--when the declaration is made; or

(b) if paragraph (4)(b) applies--when the undertaking comes

into force.

(4B)

If:

(a) paragraph (4)(b) applies to a declaration; and

(b) as a result of subsection 577AA(7) or (8), this Act (other than

subclause 76(4) of Schedule 1) has effect as if the

undertaking had never been accepted by the ACCC;

this Act has effect as if the declaration had never been made by the

Minister.

(5) The Minister may declare, in writing, that Telstra is exempt from

the requirement to have an undertaking under section 577E.

(6) The Minister must not make a declaration under subsection (5)

unless the ACCC has made a decision to accept an undertaking

given by Telstra under section 577A, and:

(a) if the undertaking is in force--the Minister is satisfied that

the undertaking is sufficient to address concerns about the

degree of Telstra's power in telecommunications markets; or

(b) if the undertaking is not in force--the Minister is satisfied

that, subject to the undertaking coming into force, the

undertaking is sufficient to address concerns about the degree

of Telstra's power in telecommunications markets.

(6A) A declaration under subsection (5) comes into force:

(a) if paragraph (6)(a) applies--when the declaration is made; or

(b) if paragraph (6)(b) applies--when the undertaking comes

into force.

(6B)

If:

(a) paragraph (6)(b) applies to a declaration; and

(b) as a result of subsection 577AA(7) or (8), this Act (other than

subclause 76(4) of Schedule 1) has effect as if the

undertaking had never been accepted by the ACCC;

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this Act has effect as if the declaration had never been made by the

Minister.

(6C) A declaration made under subsection (3) or (5) cannot be revoked.

(7) A declaration made under subsection (3) or (5) is not a legislative

instrument.

(8) In this section:

telecommunications market has the same meaning as in Part XIB

of the Competition and Consumer Act 2010.

577K Limits on use of certain spectrum licences by Telstra

(1)

If:

(a) the excluded spectrum regime applies to Telstra; and

(b) a spectrum licence relates to a designated part of the

spectrum;

the licensee of the spectrum licence must not authorise Telstra to

operate radiocommunications devices under the licence.

Note:

For excluded spectrum regime, see section 577GA.

(2) However, the rule in subsection (1) does not apply if:

(a)

both:

(i) an undertaking given by Telstra is in force under

section 577A; and

(ii) the undertaking is covered by subsection (2A); and

(b)

either:

(i) an undertaking given by Telstra is in force under

section 577C; or

(ii) a declaration is in force under subsection 577J(3); and

(c)

either:

(i) an undertaking given by Telstra is in force under

section 577E; or

(ii) a declaration is in force under subsection 577J(5).

Note 1:

Section 577A deals with undertakings about structural separation.

Note 2:

Section 577C deals with undertakings about hybrid fibre-coaxial

networks.

Note 3:

Section 577E deals with undertakings about subscription television

broadcasting licences.

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(2A) This subsection covers a section 577A undertaking if:

(a) the following conditions are satisfied:

(i) the undertaking requires Telstra to give the ACCC a

draft migration plan;

(ii) in accordance with the undertaking, Telstra has given

the ACCC a draft migration plan;

(iii) the ACCC has approved the draft migration plan under

section 577BD, 577BDA, 577BDB or 577BDC; or

(b) the undertaking does not require Telstra to give the ACCC a

draft migration plan.

(3) A person must not:

(a) aid, abet, counsel or procure a contravention of

subsection (1); or

(b) induce, whether by threats or promises or otherwise, a

contravention of subsection (1); or

or party to, a contravention of subsection (1); or

(d) conspire with others to effect a contravention of

subsection (1).

(4) Subsections (1) and (3) are civil penalty provisions.

Note:

Part 31 provides for pecuniary penalties for breaches of civil penalty

provisions.

577L Limits on assignment of certain spectrum licences to Telstra

etc.

(1)

If:

(a) the excluded spectrum regime applies to Telstra; and

(b) a spectrum licence relates to a designated part of the

spectrum;

the licensee of the spectrum licence must not:

(d) otherwise deal with Telstra in relation to the whole or a part

of the licence.

Note:

For excluded spectrum regime, see section 577GA.

(2) However, the rule in subsection (1) does not apply if:

(a)

both:

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(i) an undertaking given by Telstra is in force under

section 577A; and

(ii) the undertaking is covered by subsection (2A); and

(b)

either:

(i) an undertaking given by Telstra is in force under

section 577C; or

(ii) a declaration is in force under subsection 577J(3); and

(c)

either:

(i) an undertaking given by Telstra is in force under

section 577E; or

(ii) a declaration is in force under subsection 577J(5).

Note 1:

Section 577A deals with undertakings about structural separation.

Note 2:

Section 577C deals with undertakings about hybrid fibre-coaxial

networks.

Note 3:

Section 577E deals with undertakings about subscription television

broadcasting licences.

(2A) This subsection covers a section 577A undertaking if:

(a) the following conditions are satisfied:

(i) the undertaking requires Telstra to give the ACCC a

draft migration plan;

(ii) in accordance with the undertaking, Telstra has given

the ACCC a draft migration plan;

(iii) the ACCC has approved the draft migration plan under

section 577BD, 577BDA, 577BDB or 577BDC; or

(b) the undertaking does not require Telstra to give the ACCC a

draft migration plan.

(3) A person must not:

(a) aid, abet, counsel or procure a contravention of

subsection (1); or

(b) induce, whether by threats or promises or otherwise, a

contravention of subsection (1); or

or party to, a contravention of subsection (1); or

(d) conspire with others to effect a contravention of

subsection (1).

(4) Subsections (1) and (3) are civil penalty provisions.

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Note:

Part 31 provides for pecuniary penalties for breaches of civil penalty

provisions.

Division 7--Other provisions

577M Associate

(1) For the purposes of this Part, an associate of Telstra in relation to

control of:

(a) a hybrid fibre-coaxial network; or

(b) another telecommunications network; or

(c)

company;

is:

(d) a partner of Telstra; or

(e) if Telstra or another person who is an associate of Telstra

under another paragraph receives benefits or is capable of

benefiting under a trust--the trustee of the trust; or

(f) a person (whether a company or not) who:

(i) acts, or is accustomed to act; or

(ii) under a contract or an arrangement or understanding

(whether formal or informal) is intended or expected to

act;

in accordance with the directions, instructions or wishes of,

or in concert with:

(iii)

Telstra;

(iv) Telstra and another person who is an associate of

Telstra under another paragraph; or

(g) another company if:

(i) the other company is a related body corporate of Telstra

for the purposes of the Corporations Act 2001; or

(ii) Telstra, or Telstra and another person who is an

associate of Telstra under another paragraph, are in a

position to exercise control of the other company.

(2) However, persons are not associates of each other if the ACCC is

satisfied that:

(a) they do not act together in any relevant dealings relating to

the network or company; and

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(b) neither of them is in a position to exert influence over the

business dealings of the other in relation to the network or

company.

577N Control

In this Part, control includes control as a result of, or by means of,

trusts, agreements, arrangements, understandings and practices,

whether or not having legal or equitable force and whether or not

based on legal or equitable rights.

577P Control of a company

(1) For the purposes of this Part, the question of whether a person is in

a position to exercise control of a company is to be determined

under Schedule 1 to the Broadcasting Services Act 1992.

(2) However, in determining that question:

(a) the definition of associate in subsection 6(1) of the

Broadcasting Services Act 1992 does not apply; and

(b) the definition of associate in section 577M of this Act applies

instead.

577Q When Telstra is in a position to exercise control of a network

(1) For the purposes of this Part, Telstra is in a position to exercise

control of:

(a) a hybrid fibre-coaxial network; or

(b) another telecommunications network;

if:

alone or together with one or more other persons); or

(d) Telstra is in a position, either alone or together with an

associate of Telstra and whether directly or indirectly:

(i) to exercise control of the operation of all or part of the

network; or

(ii) to exercise control of the selection of the kinds of

services that are supplied using the network; or

(iii) to exercise control of the supply of services using the

network; or

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(e) a company other than Telstra legally or beneficially owns the

network (whether alone or together with one or more other

persons), and:

(i) Telstra is in a position, either alone or together with an

associate of Telstra, to exercise control of the company;

(ii) Telstra, either alone or together with an associate of

Telstra, is in a position to veto any action taken by the

board of directors of the company; or

(iii) Telstra, either alone or together with an associate of

Telstra, is in a position to appoint or secure the

appointment of, or veto the appointment of, at least half

of the board of directors of the company; or

(iv) Telstra, either alone or together with an associate of

Telstra, is in a position to exercise, in any other manner,

whether directly or indirectly, direction or restraint over

any substantial issue affecting the management or

affairs of the company; or

(v) the company or more than 50% of its directors act, or

are accustomed to act in accordance with the directions,

instructions or wishes of, or in concert with, Telstra or

of Telstra and an associate of Telstra acting together or

of the directors of Telstra; or

(vi) the company or more than 50% of its directors, under a

contract or an arrangement or understanding (whether

formal or informal) are intended or expected to act, in

accordance with the directions, instructions or wishes

of, or in concert with, Telstra or of Telstra and an

associate of Telstra acting together or of the directors of

Telstra.

(2) An employee is not, except through an association with another

person, to be regarded as being in a position to exercise control of a

network under subsection (1) purely because of being an employee.

(3) More than one person may be in a position to exercise control of a

network.

31 At the end of Schedule 1

Add:

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Part 9--Functional separation of Telstra

Division 1--Introduction

68 Simplified outline

The following is a simplified outline of this Part:

�

Telstra must prepare a draft functional separation

undertaking.

�

A final functional separation undertaking is a draft

functional separation undertaking that has been approved by

the Minister.

�

Telstra must comply with a final functional separation

undertaking.

�

However, Telstra is not required to prepare a draft functional

separation undertaking if an undertaking about structural

separation is in force under section 577A.

69 Definitions

In this Part:

business unit means a part of Telstra.

declared network service has the meaning given by clause 70.

eligible service has the same meaning as in section 152AL of the

Competition and Consumer Act 2010.

equivalence means:

(a) equivalence in relation to terms and conditions relating to

price or a method of ascertaining price; and

(b) equivalence in relation to other terms and conditions.

functional includes organisational.

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functional separation principles means the principles set out in

clause 74.

functional separation requirements determination means a

determination under clause 75.

quarter means a period of 3 months beginning on 1 January,

1 April, 1 July or 1 October.

regulated service has the meaning given by clause 71.

retail business unit means a business unit by which Telstra deals

with its retail customers.

supply, in relation to a service, includes supply by Telstra of the

service to itself.

wholesale/network business unit means the business unit of

Telstra:

(a) that supplies the following:

(i) fault detection, handling and rectification;

(ii) service activation and provisioning;

(iii)

declared

network

services;

to Telstra's retail business units, and Telstra's wholesale

customers, in relation to eligible services; and

(b) by which Telstra deals with its wholesale customers.

70 Declared network services

For the purposes of this Part, a declared network service is a

service specified in a legislative instrument made by the Minister

for the purposes of this clause.

71 Regulated services

(1) For the purposes of this Part, a regulated service is a declared

service within the meaning of Part XIC of the Competition and

Consumer Act 2010.

(2) Subclause (1) has effect subject to subclause (3).

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(3) The Minister may, by legislative instrument, determine that a

specified service is not a regulated service for the purposes of this

Part.

(4) The Minister may, by legislative instrument, determine that a

specified eligible service is a regulated service for the purposes of

this Part.

72 Notional contracts

For the purposes of this Part:

(a) a notional contract (however described) between any of

Telstra's business units is to be treated as if it were an actual

contract; and

(b) any terms and conditions (whether or not relating to price or

a method of ascertaining price) in such a notional contract are

to be treated as if they were actual terms and conditions.

Division 2--Functional separation undertaking

73 Contents of draft or final functional separation undertaking

(1) A draft or final functional separation undertaking must:

(a) comply with the functional separation principles; and

(b) contain provisions requiring Telstra to establish and maintain

a committee to be known as the Oversight and Equivalence

Board; and

and Equivalence Board:

(i) within a specified period after the end of each quarter

during which a final functional separation undertaking

is in force, to prepare a report about the extent (if any)

to which Telstra complied with the undertaking during

that quarter; and

(ii) to give a copy of the report to the ACCC and to

Telstra's board of directors; and

(d) comply with such requirements (if any) as are specified in a

functional separation requirements determination.

Note 1:

For the functional separation principles, see clause 74.

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Note 2:

For the functional separation requirements determination, see

clause 75.

(2) For the purposes of subparagraph (1)(c)(i), if a final functional

separation undertaking is in force throughout a part, but not the

whole, of a particular quarter, that part is taken to be a quarter in its

own right.

(3) If a final functional separation undertaking provides for the ACCC

to perform functions or exercise powers in relation to the

undertaking, the ACCC may perform those functions, and exercise

those powers, in accordance with the undertaking.

74 Functional separation principles

The

functional separation principles are as follows:

(a) the principle that there should be equivalence in relation to

the supply by Telstra of regulated services to:

(i) Telstra's wholesale customers; and

(ii) Telstra's retail business units;

(b) the principle that Telstra should maintain:

(i) one or more retail business units; and

(ii) a wholesale/network business unit;

functional separation between:

(i) its wholesale/network business unit; and

(ii) its retail business units;

(d) the principle that Telstra should have systems, procedures

and practices that relate to:

(i) compliance with a final functional separation

undertaking; and

(ii) monitoring of, and reporting on, compliance with a final

functional separation undertaking; and

(iii) the development of performance measures relating to

compliance with a final functional separation

undertaking; and

(iv) independent audit, and other checks, of compliance with

a final functional separation undertaking;

(e) the principle that Telstra's wholesale/network business unit

should not consult Telstra's retail business units about:

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(i) proposed services to be supplied by Telstra's

wholesale/network business unit; or

(ii) proposed developments in connection with services

supplied by Telstra's wholesale/network business unit;

unless Telstra's wholesale/network business unit also

consults Telstra's wholesale customers at the same time and

in the same manner.

75 Functional separation requirements determination

(1) The Minister may make a written determination (a functional

separation requirements determination) specifying requirements

to be complied with by a draft or final functional separation

undertaking.

(2) A functional separation requirements determination may deal with

the manner in which the functional separation principles are to be

implemented.

(3) A functional separation requirements determination may deal with

the manner in which a requirement set out in paragraph 73(1)(b) or

Note:

Clause 73 deals with the contents of a draft or final functional

separation undertaking.

(4) Subclauses (2) and (3) do not limit subclause (1).

(5) The Minister must ensure that a functional separation requirements

determination comes into force within 90 days after the

commencement of this clause.

(5A) Subclause (5) does not apply if, before the end of the period

applicable under subclause (5):

(a) the following conditions are satisfied:

(i) an undertaking given by Telstra is in force under

section 577A;

(ii) the undertaking requires Telstra to give the ACCC a

draft migration plan;

(iii) in accordance with the undertaking, Telstra has given

the ACCC a draft migration plan;

(iv) the ACCC has approved the draft migration plan under

section 577BD, 577BDA, 577BDB or 577BDC; or

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(b)

both:

(i) an undertaking given by Telstra is in force under

section 577A; and

(ii) the undertaking does not require Telstra to give the

ACCC a draft migration plan.

Note:

Section 577A deals with undertakings about structural separation.

(5B) The Minister may, by writing, extend or further extend the 90-day

period referred to in subclause (5) so long as the extension, or the

total of the extensions, does not exceed 18 months.

(5C) The Minister must not make an instrument under subclause (5B)

unless:

(a) Telstra satisfies the Minister that Telstra is preparing an

undertaking under section 577A; or

(b)

both:

(i) Telstra has given the ACCC an undertaking under

section 577A; and

(ii) the ACCC has not decided whether to accept the

undertaking; or

(i) Telstra has given the ACCC an undertaking under

section 577A;

(ii) the ACCC has decided to accept the undertaking;

(iii) that decision is expressed to be subject to the occurrence

of one or more specified events within a specified

period;

(iv) the undertaking is not in force;

(v) that period has not ended; or

(d) the following conditions are satisfied:

(i) an undertaking given by Telstra is in force under

section 577A;

(ii) the undertaking requires Telstra to give the ACCC a

draft migration plan;

(iii) Telstra satisfies the Minister that Telstra is preparing a

draft migration plan to be given to the ACCC in

accordance with the undertaking; or

(e) the following conditions are satisfied:

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(i) an undertaking given by Telstra is in force under

section 577A;

(ii) the undertaking requires Telstra to give the ACCC a

draft migration plan;

(iii) Telstra has given the ACCC a draft migration plan in

accordance with the undertaking;

(iv) the ACCC has not decided whether to approve the draft

migration plan under section 577BD, 577BDA,

577BDB or 577BDC.

Note:

Section 577A deals with undertakings about structural separation.

(5D) The Minister must cause a copy of an instrument under

subclause (5B) to be tabled in each House of the Parliament within

15 sitting days of that House after making the instrument.

(5E)

If:

(a) before the end of the period applicable under subclause (5),

the ACCC accepts an undertaking given by Telstra under

section 577A; and

(b) the decision to accept the undertaking is expressed to be

subject to the occurrence of one of more specified events

within a specified period (the post-acceptance period) after

the undertaking is accepted; and

applicable under subclause (5); and

(d) the undertaking does not come into force before the end of

the post-acceptance period;

then:

(e) subclause (5) does not apply; and

(f) the Minister must ensure that a functional separation

requirements determination comes into force within 90 days

after the end of the post-acceptance period.

Note:

Section 577A deals with undertakings about structural separation.

(5EA)

If:

(a) before the end of the period applicable under subclause (5),

the ACCC accepts an undertaking given by Telstra under

section 577A; and

(b) the decision to accept the undertaking is expressed to be

subject to the occurrence of one of more specified events

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within a specified period (the post-acceptance period) after

the undertaking is accepted; and

applicable under subclause (5); and

(d) the undertaking comes into force before the end of the

post-acceptance period; and

(e) the undertaking requires Telstra to give the ACCC a draft

migration plan; and

(f) a final migration plan does not come into force before the end

of the post-acceptance period;

then:

(g) subclause (5) does not apply; and

(h) the Minister must ensure that a functional separation

requirements determination comes into force within 90 days

after the end of the post-acceptance period.

Note:

Section 577A deals with undertakings about structural separation.

(5EB) Subclause (5) does not apply if:

(a) before the end of the period applicable under subclause (5),

the ACCC accepts an undertaking given by Telstra under

section 577A; and

(b) the decision to accept the undertaking is expressed to be

subject to the occurrence of one of more specified events

within a specified period (the post-acceptance period) after

the undertaking is accepted; and

applicable under subclause (5); and

(d) the undertaking comes into force before the end of the

post-acceptance period; and

(e) the undertaking does not require Telstra to give the ACCC a

draft migration plan.

Note:

Section 577A deals with undertakings about structural separation.

(5EC) Subclause (5) does not apply if:

(a) before the end of the period applicable under subclause (5),

the ACCC accepts an undertaking given by Telstra under

section 577A; and

(b) the decision to accept the undertaking is expressed to be

subject to the occurrence of one of more specified events

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within a specified period (the post-acceptance period) after

the undertaking is accepted; and

applicable under subclause (5); and

(d) the undertaking comes into force before the end of the

post-acceptance period; and

(e) the undertaking requires Telstra to give the ACCC a draft

migration plan; and

(f) a final migration plan has come into force before the end of

the post-acceptance period.

Note:

Section 577A deals with undertakings about structural separation.

(5F) The Minister is not required to observe any requirements of

procedural fairness in relation to the making of an instrument under

subclause (5B).

(5G) The Minister does not have a duty to consider whether to make an

instrument under subclause (5B), whether at the request of a person

or in any other circumstances.

(6) A determination under subclause (1) is not a legislative instrument.

(7) An instrument under subclause (5B) is not a legislative instrument.

76 Draft functional separation undertaking to be given to Minister

(1) Telstra must give the Minister a draft functional separation

undertaking:

(a) within 90 days after the first functional separation

requirements determination comes into force; or

(b) if a longer period is specified in an instrument under

subclause (3)--within that longer period.

(2) However, subclause (1) does not apply if:

(a) the following conditions are satisfied:

(i) an undertaking given by Telstra is in force under

section 577A;

(ii) the undertaking requires Telstra to give the ACCC a

draft migration plan;

(iii) in accordance with the undertaking, Telstra has given

the ACCC a draft migration plan;

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(iv) the ACCC has approved the draft migration plan under

section 577BD, 577BDA, 577BDB or 577BDC; or

(b)

both:

(i) an undertaking given by Telstra is in force under

section 577A; and

(ii) the undertaking does not require Telstra to give the

ACCC a draft migration plan.

Note:

Section 577A deals with undertakings about structural separation.

(3) The Minister may, by writing, specify a period for the purposes of

paragraph (1)(b).

(4) The Minister must not specify a period under subclause (3) unless:

(a) Telstra satisfies the Minister that Telstra is preparing an

undertaking under section 577A; or

(b)

both:

(i) Telstra has given the ACCC an undertaking under

section 577A; and

(ii) the ACCC has not decided whether to accept the

undertaking; or

(i) Telstra has given the ACCC an undertaking under

section 577A;

(ii) the ACCC has decided to accept the undertaking;

(iii) that decision is expressed to be subject to the occurrence

of one or more specified events within a specified

period;

(iv) the undertaking is not in force;

(v) that period has not ended; or

(d) the following conditions are satisfied:

(i) an undertaking given by Telstra is in force under

section 577A;

(ii) the undertaking requires Telstra to give the ACCC a

draft migration plan;

(iii) Telstra satisfies the Minister that Telstra is preparing a

draft migration plan to be given to the ACCC in

accordance with the undertaking; or

(e) the following conditions are satisfied:

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(i) an undertaking given by Telstra is in force under

section 577A;

(ii) the undertaking requires Telstra to give the ACCC a

draft migration plan;

(iii) Telstra has given the ACCC a draft migration plan in

accordance with the undertaking;

(iv) the ACCC has not decided whether to approve the draft

migration plan under section 577BD, 577BDA,

577BDB or 577BDC.

Note:

Section 577A deals with undertakings about structural separation.

(5) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a

power conferred on the Minister by subclause (3). However, the

Minister must not revoke a subclause (3) instrument.

(6) A period specified in a subclause (3) instrument may be a period

ascertained wholly or partly by reference to the occurrence of a

specified event.

(6A) The Minister is not required to observe any requirements of

procedural fairness in relation to the making of a subclause (3)

instrument.

(7) The Minister does not have a duty to consider whether to exercise

the power to make a subclause (3) instrument, whether he or she is

requested to do so by Telstra or by any other person, or in any

other circumstances.

(8) The Minister must cause a copy of an instrument under

subclause (3) to be published on the Department's website.

(9) An instrument under subclause (3) is not a legislative instrument.

77 Approval of draft functional separation undertaking by Minister

(1) This clause applies if Telstra gives the Minister a draft functional

separation undertaking (the original undertaking).

(2) The Minister must, by writing:

(a) approve the original undertaking; or

(b)

both:

(i) vary the original undertaking; and

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(ii) approve the original undertaking as varied; or

(c)

both:

(i) determine that Telstra is taken to have given the

Minister another draft functional separation undertaking

(the replacement undertaking) in the terms specified in

the determination, instead of the original undertaking;

and

(ii) approve the replacement undertaking.

Consultation

(3) Before making a decision under subclause (2), the Minister must:

(a) cause to be published on the Department's website a notice:

(i) setting out the original undertaking; and

(ii) inviting persons to make submissions to the Minister

about the original undertaking within 14 days after the

notice is published; and

(b) give the ACCC a copy of the notice; and

each submission received within the 14-day period

mentioned in paragraph (a); and

(d) consider any submissions received within the 14-day period

mentioned in paragraph (a); and

(e) ask the ACCC to give advice to the Minister, within 44 days

after the notice is published, about the original undertaking;

and

(f) have regard to any advice given by the ACCC.

Consultation--variation of original undertaking

(4) Before making a decision under paragraph (2)(b) to approve the

original undertaking as varied, the Minister must:

(a) give Telstra a notice:

(i) setting out the original undertaking as proposed to be

varied; and

(ii) inviting Telstra to make submissions to the Minister,

within 14 days after the notice is given, about the

original undertaking as proposed to be varied; and

(b) consider any submissions received from Telstra within the

14-day period mentioned in paragraph (a).

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Consultation--replacement undertaking

(5) Before making a decision under paragraph (2)(c) to approve the

replacement undertaking, the Minister must:

(a) give Telstra a notice:

(i) setting out the proposed replacement undertaking; and

(ii) inviting Telstra to make submissions to the Minister

about the proposed replacement undertaking within 14

days after the notice is given; and

(b) consider any submissions received from Telstra within the

14-day period mentioned in paragraph (a).

Advice by the ACCC

(6) Subclause (3) does not, by implication, prevent the Minister from

asking the ACCC to give the Minister additional advice about a

matter arising under this clause.

Notification of decision

(7) As soon as practicable after making a decision under subclause (2),

the Minister must notify Telstra in writing of the decision.

Instrument is not a legislative instrument

(8) An instrument made under subclause (2) is not a legislative

instrument.

78 Time limit for making an approval decision

(1) This clause applies if Telstra gives the Minister a draft functional

separation undertaking (the original undertaking).

(2) The Minister must use his or her best endeavours to make a

decision under subclause 77(2) in relation to the original

undertaking within 6 months after the original undertaking was

given to the Minister.

79 Effect of approval

(1) If the Minister approves a draft functional separation undertaking

under subclause 77(2), the undertaking becomes a final functional

separation undertaking.

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(2) A final functional separation undertaking comes into force on the

day after notice of the relevant decision is given to Telstra in

accordance with subclause 77(7).

(3) A final functional separation undertaking may not be withdrawn.

Undertaking is not a legislative instrument

(4) A final functional separation undertaking is not a legislative

instrument.

80 Variation of final functional separation undertaking

(1) This clause applies if a final functional separation undertaking is in

force.

Variation

(2) The Minister may, in writing, vary the final functional separation

undertaking:

(a) at the request of Telstra or another person; or

(b) on the Minister's own initiative.

(3) The Minister does not have a duty to consider whether to exercise

the power to vary a final functional separation undertaking,

whether he or she is requested to do so by Telstra or by any other

person, or in any other circumstances.

Consultation

(4) Before varying a final functional separation undertaking, the

Minister must:

(a) cause to be published on the Department's website a notice:

(i) setting out the proposed variation; and

(ii) inviting persons to make submissions to the Minister

about the proposed variation within 14 days after the

notice is published; and

(b) give the ACCC a copy of the notice; and

each submission received within the 14-day period

mentioned in paragraph (a); and

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(d) consider any submissions received within the 14-day period

mentioned in paragraph (a); and

(e) ask the ACCC to give advice to the Minister, within 44 days

after the notice is published, about the proposed variation;

and

(f) have regard to any advice given by the ACCC.

Minor variation

(5) Subclause (4) does not apply to a proposed variation if the

variation is of a minor nature.

(6) If the proposed variation:

(a) is of a minor nature; and

(b) is not made at the request of Telstra;

then, before making the proposed variation, the Minister must:

(i) setting out the proposed variation; and

(ii) inviting Telstra to make submissions to the Minister

about the proposed variation within 14 days after the

notice is given; and

(d) consider any submissions received from Telstra within that

14-day period.

Advice by the ACCC

(7) Subclause (4) does not, by implication, prevent the Minister from

asking the ACCC to give the Minister additional advice about a

matter arising under this clause.

Notification of variation

(8) As soon as practicable after varying a final functional separation

undertaking, the Minister must notify Telstra in writing of the

variation.

When variation comes into force

(9) A variation of a final functional separation undertaking comes into

force on the day after the notice of the variation is given to Telstra

in accordance with subclause (8).

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Variation is not a legislative instrument

(10) A variation of a final functional separation undertaking is not a

legislative instrument.

81 Publication of final functional separation undertaking

(1) As soon as practicable after a final functional separation

undertaking comes into force, Telstra must make a copy of the

undertaking available on Telstra's website.

(2) As soon as practicable after a variation of a final functional

separation undertaking comes into force, Telstra must make a copy

of the varied final functional separation undertaking available on

Telstra's website.

82 Compliance with final functional separation undertaking

(1) If a final functional separation undertaking is in force, Telstra must

comply with the undertaking.

(2) However, subclause (1) does not apply if an undertaking given by

Telstra is in force under section 577A.

Note:

Section 577A deals with undertakings about structural separation.

Part 10--Control and use by Telstra of certain

spectrum licences

Division 1--Introduction

83 Simplified outline

The following is a simplified outline of this Part:

�

If the excluded spectrum regime applies to Telstra, and a

spectrum licence relates to a designated part of the spectrum,

Telstra must not be in a position to exercise control of the

licence unless the following undertakings given by Telstra

are in force:

(a)

an undertaking about structural separation;

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(b)

an undertaking about hybrid fibre-coaxial

networks;

(c)

an undertaking about subscription television

broadcasting licences.

�

However, the Minister may exempt Telstra from the

requirement to have an undertaking about hybrid

fibre-coaxial networks or subscription television

broadcasting licences if the Minister is satisfied that

Telstra's undertaking about structural separation is sufficient

to address concerns about the degree of Telstra's power in

telecommunications markets.

Division 2--Control and use by Telstra of certain spectrum

licences

84 Control by Telstra of certain spectrum licences

(1)

If:

(a) the excluded spectrum regime applies to Telstra; and

(b) a spectrum licence relates to a designated part of the

spectrum;

Telstra must not be in a position to exercise control of the licence.

Note 1:

For excluded spectrum regime, see section 577GA.

Note 2:

For when Telstra is in a position to exercise control of a spectrum

licence, see clause 88.

(2) However, the rule in subclause (1) does not apply if:

(a)

both:

(i) an undertaking given by Telstra is in force under

section 577A; and

(ii) the undertaking is covered by subclause (3); and

(b)

either:

(i) an undertaking given by Telstra is in force under

section 577C; or

(ii) a declaration is in force under subsection 577J(3); and

(c)

either:

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(i) an undertaking given by Telstra is in force under

section 577E; or

(ii) a declaration is in force under subsection 577J(5).

Note 1:

Section 577A deals with undertakings about structural separation.

Note 2:

Section 577C deals with undertakings about hybrid fibre-coaxial

networks.

Note 3:

Section 577E deals with undertakings about subscription television

broadcasting licences.

(3) This subclause covers a section 577A undertaking if:

(a) the following conditions are satisfied:

(i) the undertaking requires Telstra to give the ACCC a

draft migration plan;

(ii) in accordance with the undertaking, Telstra has given

the ACCC a draft migration plan;

(iii) the ACCC has approved the draft migration plan under

section 577BD, 577BDA, 577BDB or 577BDC; or

(b) the undertaking does not require Telstra to give the ACCC a

draft migration plan.

85 Use by Telstra of certain spectrum licences

(1)

If:

(a) the excluded spectrum regime applies to Telstra; and

(b) a spectrum licence relates to a designated part of the

spectrum;

Telstra must not supply a carriage service using a

radiocommunications device the operation of which is authorised

under the licence.

Note:

For excluded spectrum regime, see section 577GA.

(2) However, the rule in subclause (1) does not apply if:

(a)

both:

(i) an undertaking given by Telstra is in force under

section 577A; and

(ii) the undertaking is covered by subclause (3); and

(b)

either:

(i) an undertaking given by Telstra is in force under

section 577C; or

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(ii) a declaration is in force under subsection 577J(3); and

(c)

either:

(i) an undertaking given by Telstra is in force under

section 577E; or

(ii) a declaration is in force under subsection 577J(5).

Note 1:

Section 577A deals with undertakings about structural separation.

Note 2:

Section 577C deals with undertakings about hybrid fibre-coaxial

networks.

Note 3:

Section 577E deals with undertakings about subscription television

broadcasting licences.

(3) This subclause covers a section 577A undertaking if:

(a) the following conditions are satisfied:

(i) the undertaking requires Telstra to give the ACCC a

draft migration plan;

(ii) in accordance with the undertaking, Telstra has given

the ACCC a draft migration plan;

(iii) the ACCC has approved the draft migration plan under

section 577BD, 577BDA, 577BDB or 577BDC; or

(b) the undertaking does not require Telstra to give the ACCC a

draft migration plan.

Division 3--Other provisions

86 Associate

(1) In this Part, an associate of Telstra in relation to control of a

spectrum licence is:

(a) a partner of Telstra; or

(b) if Telstra or another person who is an associate of Telstra

under another paragraph receives benefits or is capable of

benefiting under a trust--the trustee of the trust; or

(i) acts, or is accustomed to act; or

(ii) under a contract or an arrangement or understanding

(whether formal or informal) is intended or expected to

act;

in accordance with the directions, instructions or wishes of,

or in concert with:

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(iii)

Telstra;

(iv) Telstra and another person who is an associate of

Telstra under another paragraph; or

(d) another company if:

(i) the other company is a related body corporate of Telstra

for the purposes of the Corporations Act 2001; or

(ii) Telstra, or Telstra and another person who is an

associate of Telstra under another paragraph, are in a

position to exercise control of the other company.

(2) However, persons are not associates of each other if the ACCC is

satisfied that:

(a) they do not act together in any relevant dealings relating to

the spectrum licence; and

(b) neither of them is in a position to exert influence over the

business dealings of the other in relation to the spectrum

licence.

87 Control

In this Part, control includes control as a result of, or by means of,

trusts, agreements, arrangements, understandings and practices,

whether or not having legal or equitable force and whether or not

based on legal or equitable rights.

88 When Telstra is in a position to exercise control of a spectrum

licence

(1) For the purposes of this Part, Telstra is in a position to exercise

control of a spectrum licence if:

(a) Telstra is the licensee; or

(b) Telstra, either alone or together with an associate of Telstra,

is in a position to exercise control of the spectrum licensee;

is in a position to exercise (whether directly or indirectly)

control of the selection of radiocommunications devices

authorised to operate under the licence; or

(d) Telstra, either alone or together with an associate of Telstra,

is in a position to exercise (whether directly or indirectly)

Amendments Schedule 1

Amendments relating to Telstra Part 1

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 75

control of a significant proportion of the operations of

radiocommunications devices authorised to operate under the

licence; or

(e) Telstra, either alone or together with an associate of Telstra,

is in a position to:

(i) veto any action taken by the board of directors of the

licensee; or

(ii) appoint or secure the appointment of, or veto the

appointment of, at least half of the board of directors of

the licensee; or

(iii) exercise, in any other manner, whether directly or

indirectly, direction or restraint over any substantial

issue affecting the management or affairs of the

licensee; or

(f) the licensee or more than 50% of its directors:

(i) act, or are accustomed to act; or

(ii) under a contract or an arrangement or understanding

(whether formal or informal) are intended or expected to

act;

in accordance with the directions, instructions or wishes of,

or in concert with, Telstra or of Telstra and an associate of

Telstra acting together or of the directors of Telstra.

(2) An employee of a licensee is not, except through an association

with another person, to be regarded as being in a position to

exercise control of a spectrum licence under subclause (1) purely

because of being an employee.

(3) More than one person may be in a position to exercise control of a

spectrum licence.

Competition and Consumer Act 2010

32 Subsection 4(1)

Insert:

Telstra has the same meaning as in the Telstra Corporation Act

1991.

33 At the end of section 151AJ

Schedule 1 Amendments

Part 1 Amendments relating to Telstra

76 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

Bill 2010 No. , 2010

Add:

(9) Despite anything in subsection (2) or (3) of this section, a person

does not engage in anti-competitive conduct if, under

section 577BA of the Telecommunications Act 1997, the conduct is

authorised for the purposes of subsection 51(1) of this Act.

34 Subsection 151BTA(13) (definition of Telstra)

Repeal the definition.

35 Section 151BUAAA

Repeal the section.

36 At the end of Part XIB

Add:

Division 15--Voluntary undertakings given by Telstra

151CQ Voluntary undertakings given by Telstra

Scope

(1) This section applies if an undertaking given by Telstra is in force

under section 577A, 577C or 577E of the Telecommunications Act

1997.

Note 1:

Section 577A of the Telecommunications Act 1997 deals with

undertakings about structural separation.

Note 2:

Section 577C of the Telecommunications Act 1997 deals with

undertakings about hybrid fibre-coaxial networks.

Note 3:

Section 577E of the Telecommunications Act 1997 deals with

undertakings about subscription television broadcasting licences.

Commission must have regard to Telstra's conduct

(2) If Telstra has engaged, or is required to engage, in conduct in order

to comply with the undertaking, then, in performing a function, or

exercising a power, under this Part in relation to Telstra, the

Commission must have regard to the conduct to the extent that the

conduct is relevant.

37 Section 152AC

Amendments Schedule 1

Amendments relating to Telstra Part 1

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 77

Insert:

final migration plan has the same meaning as in the

Telecommunications Act 1997.

38 At the end of subsection 152AR(4)

Add:

; (e) preventing Telstra from complying with an undertaking in

force under section 577A, 577C or 577E of the

Telecommunications Act 1997; or

(f) if a final migration plan is in force--requiring Telstra to

engage in conduct in connection with matters covered by the

final migration plan.

39 At the end of Part XIC

Add:

152ER Voluntary undertakings given by Telstra

Scope

(1) This section applies if an undertaking given by Telstra is in force

under section 577A, 577C or 577E of the Telecommunications Act

1997.

Note 1:

Section 577A of the Telecommunications Act 1997 deals with

undertakings about structural separation.

Note 2:

Section 577C of the Telecommunications Act 1997 deals with

undertakings about hybrid fibre-coaxial networks.

Note 3:

Section 577E of the Telecommunications Act 1997 deals with

undertakings about subscription television broadcasting licences.

Commission must have regard to Telstra's conduct

(2) If Telstra has engaged, or is required to engage, in conduct in order

to comply with the undertaking, then, in performing a function, or

exercising a power, under this Part in relation to Telstra, the

Commission must have regard to the conduct to the extent that the

conduct is relevant.

Schedule 1 Amendments

Part 1 Amendments relating to Telstra

78 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

Bill 2010 No. , 2010

Commission must not prevent Telstra from complying with the

undertaking

(3) The Commission must not perform a function, or exercise a power,

under this Part so as to prevent Telstra from complying with the

undertaking.

40 Transitional--continuity of special Telstra directions

The repeal of section 151BUAAA of the Competition and Consumer

Act 2010 effected by this Part does not affect the continuity of a special

Telstra direction (within the meaning of that section) that was in force

immediately before the commencement of this item.

Division 2--Amendments commencing immediately after

a final functional separation undertaking comes

into force

Telecommunications Act 1997

41 Subsection 61(1)

Omit "(1)".

42 Subsections 61(2), (3) and (4)

Repeal the subsections.

43 Section 61A

Repeal the section.

44 After subsection 69(6)

Insert:

(6A) Subsection (1) does not apply to a condition set out in Part 9 of

Schedule 1.

Note:

Part 9 of Schedule 1 deals with the functional separation of Telstra.

45 Subsection 69A(1)

Omit "Part 8", substitute "Part 9".

Note:

The heading to section 69A is altered by omitting "operational" and substituting

"functional".

Amendments Schedule 1

Amendments relating to Telstra Part 1

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 79

46 Section 69B

Repeal the section.

47 After subsection 70(3)

Insert:

(3A) Subsection (1) does not apply to a condition set out in Part 9 of

Schedule 1.

Note:

Part 9 of Schedule 1 deals with the functional separation of Telstra.

48 Paragraph 70(5)(ba)

Omit "Part 8", substitute "Part 9".

49 Subsection 70(6)

Repeal the subsection.

50 Section 104

After:

�

The ACMA may be directed by the Minister to monitor, and

report on, specified matters relating to the performance of

carriers and carriage service providers.

insert:

�

The ACCC is to monitor, and report each year to the Minister

on, the compliance by Telstra with a final functional

separation undertaking.

51 At the end of Part 5

Add:

105B Monitoring of compliance by Telstra with a final functional

separation undertaking

(1) The ACCC must monitor, and report each financial year to the

Minister on, the compliance by Telstra with a final functional

separation undertaking.

Schedule 1 Amendments

Part 1 Amendments relating to Telstra

80 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

Bill 2010 No. , 2010

(2) The ACCC must give a report under subsection (1) to the Minister

as soon as practicable after the end of the financial year concerned.

(3) The Minister must cause a copy of a report under subsection (1) to

be tabled in each House of the Parliament within 15 sitting days of

that House after receiving the report.

52 After paragraph 564(3)(b)

Insert:

(ba) a carrier licence condition set out in Part 9 of Schedule 1; or

53 Subsection 564(3) (after note 2)

Insert:

Note 2A: Part 9 of Schedule 1 deals with the functional separation of Telstra.

54 After paragraph 571(3)(b)

Insert:

(ba) a carrier licence condition set out in Part 9 of Schedule 1; or

55 Subsection 571(3) (after note 2)

Insert:

Note 2A: Part 9 of Schedule 1 deals with the functional separation of Telstra.

56 Part 8 of Schedule 1

Repeal the Part.

Competition and Consumer Act 2010

57 Division 14 of Part XIB

Repeal the Division, substitute:

Amendments Schedule 1

Amendments relating to Telstra Part 1

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 81

Division 14--Functional separation for Telstra

151CP Functional separation for Telstra

Scope

(1) This section applies if a final functional separation undertaking

given by Telstra is in force under Part 9 of Schedule 1 to the

Telecommunications Act 1997.

Commission must have regard to Telstra's conduct

(2) If Telstra has engaged, or is required to engage, in conduct in order

to comply with the undertaking, then, in performing a function, or

exercising a power, under this Part in relation to Telstra, the

Commission must have regard to the conduct to the extent that the

conduct is relevant.

Commission must not prevent Telstra from complying with the

undertaking

(3) The Commission must not perform a function, or exercise a power,

under this Part so as to prevent Telstra from complying with the

undertaking.

58 After section 152EP

Insert:

152EPA Assistance to independent telecommunications adjudicator

(1) For the purposes of this section, the independent

telecommunications adjudicator is a company that:

(a) is limited by guarantee; and

(b) is identified, in a final functional separation undertaking in

force under Part 9 of Schedule 1 to the Telecommunications

Act 1997, as the independent telecommunications adjudicator

for the purpose of this section.

(2) The Commission may assist the independent telecommunications

adjudicator.

(3) The assistance may include the following:

Schedule 1 Amendments

Part 1 Amendments relating to Telstra

82 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

Bill 2010 No. , 2010

(a) the provision of information (including protected information

within the meaning of section 155AAA);

(b) the provision of advice;

secretariat services and clerical assistance).

59 Section 152EQ

Repeal the section, substitute:

152EQ Functional separation for Telstra

Scope

(1) This section applies if a final functional separation undertaking

given by Telstra is in force under Part 9 of Schedule 1 to the

Telecommunications Act 1997.

Commission must have regard to Telstra's conduct

(2) If Telstra has engaged, or is required to engage, in conduct in order

to comply with the undertaking, then, in performing a function, or

exercising a power, under this Part in relation to Telstra, the

Commission must have regard to the conduct to the extent that the

conduct is relevant.

Commission must not prevent Telstra from complying with the

undertaking

(3) The Commission must not perform a function, or exercise a power,

under this Part so as to prevent Telstra from complying with the

undertaking.

Division 3--Amendments commencing immediately after

an undertaking about structural separation

comes into force

Telecommunications Act 1997

60 Subsection 61(1)

Omit "(1)".

Amendments Schedule 1

Amendments relating to Telstra Part 1

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 83

61 Subsections 61(2), (3) and (4)

Repeal the subsections.

62 Sections 61A, 69A and 69B

Repeal the sections.

63 Paragraph 70(5)(ba)

Repeal the paragraph.

64 Subsection 70(6)

Repeal the subsection.

65 Part 8 of Schedule 1

Repeal the Part.

Competition and Consumer Act 2010

66 Division 14 of Part XIB

Repeal the Division.

67 Section 152EQ

Repeal the section, substitute:

152EQ Assistance to independent telecommunications adjudicator

(1) For the purposes of this section, the independent

telecommunications adjudicator is a company that:

(a) is limited by guarantee; and

(b) is identified, in an undertaking in force under section 577A of

the Telecommunications Act 1997, as the independent

telecommunications adjudicator for the purpose of this

section.

(2) The Commission may assist the independent telecommunications

adjudicator.

(3) The assistance may include the following:

(a) the provision of information (including protected information

within the meaning of section 155AAA);

Amendments Schedule 1

Telecommunications access regime Part 2

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 85

Part 2--Telecommunications access regime

Division 1--Amendments

National Transmission Network Sale Act 1998

68 Section 3 (paragraphs (a) and (b) of the definition of

telecommunications access regime)

After "Competition and Consumer Act", insert "(as in force

immediately before the commencement of Division 1 of Part 2 of

Schedule 1 to the Telecommunications Legislation Amendment

(Competition and Consumer Safeguards) Act 2010)".

69 At the end of section 16

Add:

(6) A reference in this section to the Competition and Consumer Act

is a reference to that Act as in force immediately before the

commencement of Division 1 of Part 2 of Schedule 1 to the

Telecommunications Legislation Amendment (Competition and

Consumer Safeguards) Act 2010.

Telecommunications Act 1997

70 After section 62

Insert:

62A Condition of carrier licence set out in section 152BCO of the

Competition and Consumer Act 2010

A carrier licence is subject to the condition set out in

section 152BCO of the Competition and Consumer Act 2010.

Note:

Section 152BCO of the Competition and Consumer Act 2010 deals

with access determinations.

62B Condition of carrier licence set out in section 152BDF of the

Competition and Consumer Act 2010

A carrier licence is subject to the condition set out in

section 152BDF of the Competition and Consumer Act 2010.

Schedule 1 Amendments

Part 2 Telecommunications access regime

86 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

Bill 2010 No. , 2010

Note:

Section 152BDF of the Competition and Consumer Act 2010 deals

with binding rules of conduct.

62C Condition of carrier licence set out in section 152BEC of the

Competition and Consumer Act 2010

A carrier licence is subject to the condition set out in

section 152BEC of the Competition and Consumer Act 2010.

Note:

Section 152BEC of the Competition and Consumer Act 2010 deals

with access agreements.

71 Subsection 69(6)

Omit "or 4", substitute ", 4 or 5".

72 Subsection 69(6) (note)

Repeal the note, substitute:

Note:

Parts 3, 4 and 5 of Schedule 1 deal with access to network information

and access to facilities.

73 After subsection 69(7)

Insert:

(7A) Subsection (1) does not apply to the condition set out in

section 152BCO of the Competition and Consumer Act 2010.

Note:

Section 152BCO of the Competition and Consumer Act 2010 deals

with access determinations.

(7B) Subsection (1) does not apply to the condition set out in

section 152BDF of the Competition and Consumer Act 2010.

Note:

Section 152BDF of the Competition and Consumer Act 2010 deals

with binding rules of conduct.

(7C) Subsection (1) does not apply to the condition set out in

section 152BEC of the Competition and Consumer Act 2010.

Note:

Section 152BEC of the Competition and Consumer Act 2010 deals

with access agreements.

74 After section 69

Insert:

Amendments Schedule 1

Telecommunications access regime Part 2

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 87

69AA Remedial directions--breach of conditions relating to access

Scope

(1) This section applies if:

(a) a carrier has contravened, or is contravening, a condition of

the carrier licence held by the carrier; and

(b) the condition is set out in Part 3, 4 or 5 of Schedule 1.

Note:

Parts 3, 4 and 5 of Schedule 1 deal with access to network information

and access to facilities.

Direction

(2) The ACCC may give the carrier a written direction requiring the

carrier to take specified action directed towards ensuring that the

carrier does not contravene the condition, or is unlikely to

contravene the condition, in the future.

(3) The following are examples of the kinds of direction that may be

given to a carrier under subsection (2):

(a) a direction that the carrier implement effective administrative

systems for monitoring compliance with the condition;

(b) a direction that the carrier implement a system designed to

give the carrier's employees, agents and contractors a

reasonable knowledge and understanding of the requirements

of the condition, in so far as those requirements affect the

employees, agents or contractors concerned.

(4) The ACCC must not give a direction under subsection (2) if the

direction would have the effect of:

(a) preventing Telstra from complying with an undertaking in

force under section 577A, 577C or 577E; or

(b) if a final migration plan is in force--requiring Telstra to

engage in conduct in connection with matters covered by the

final migration plan.

(5) A carrier must not contravene a direction under subsection (2).

(6) A direction under subsection (2) is not a legislative instrument.

75 Subsection 70(3)

Omit "or 4", substitute ", 4 or 5".

Schedule 1 Amendments

Part 2 Telecommunications access regime

88 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

Bill 2010 No. , 2010

76 Subsection 70(3) (note)

Repeal the note, substitute:

Note:

Parts 3, 4 and 5 of Schedule 1 deal with access to network information

and access to facilities.

77 After subsection 70(4)

Insert:

(4A) Subsection (1) does not apply to the condition set out in

section 152BCO of the Competition and Consumer Act 2010.

Note:

Section 152BCO of the Competition and Consumer Act 2010 deals

with access determinations.

(4B) Subsection (1) does not apply to the condition set out in

section 152BDF of the Competition and Consumer Act 2010.

Note:

Section 152BDF of the Competition and Consumer Act 2010 deals

with binding rules of conduct.

(4C) Subsection (1) does not apply to the condition set out in

section 152BEC of the Competition and Consumer Act 2010.

Note:

Section 152BEC of the Competition and Consumer Act 2010 deals

with access agreements.

78 Paragraph 70(5)(b)

Omit "or 4", substitute ", 4 or 5".

79 At the end of subsection 70(5)

Add:

; (d) the condition set out in section 152BCO of the Competition

and Consumer Act 2010;

(e) the condition set out in section 152BDF of the Competition

and Consumer Act 2010;

(f) the condition set out in section 152BEC of the Competition

and Consumer Act 2010.

80 At the end of section 98

Add:

Amendments Schedule 1

Telecommunications access regime Part 2

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 89

(3) In addition to the rules mentioned in subsection (1), the rule set out

in subsection 152BCP(2) of the Competition and Consumer Act

2010 is a service provider rule for the purposes of this Act.

Note:

Subsection 152BCP(2) of the Competition and Consumer Act 2010

provides that a carriage service provider must comply with any access

determinations that are applicable to the provider.

(4) In addition to the rules mentioned in subsection (1), the rule set out

in subsection 152BDG(2) of the Competition and Consumer Act

2010 is a service provider rule for the purposes of this Act.

Note:

Subsection 152BDG(2) of the Competition and Consumer Act 2010

provides that a carriage service provider must comply with any

binding rules of conduct that are applicable to the provider.

(5) In addition to the rules mentioned in subsection (1), the rule set out

in subsection 152BED(2) of the Competition and Consumer Act

2010 is a service provider rule for the purposes of this Act.

Note:

Subsection 152BED(2) of the Competition and Consumer Act 2010

deals with access agreements.

81 After subsection 102(6)

Insert:

(6A) Subsection (1) does not apply to the rule set out in subsection

152BCP(2) of the Competition and Consumer Act 2010.

Note:

Subsection 152BCP(2) of the Competition and Consumer Act 2010

provides that a carriage service provider must comply with any access

determinations that are applicable to the provider.

(6B) Subsection (1) does not apply to the rule set out in subsection

152BDG(2) of the Competition and Consumer Act 2010.

Note:

Subsection 152BDG(2) of the Competition and Consumer Act 2010

provides that a carriage service provider must comply with any

binding rules of conduct that are applicable to the provider.

(6C) Subsection (1) does not apply to the rule set out in subsection

152BED(2) of the Competition and Consumer Act 2010.

Note:

Subsection 152BED(2) of the Competition and Consumer Act 2010

deals with access agreements.

82 After subsection 103(3)

Insert:

Schedule 1 Amendments

Part 2 Telecommunications access regime

90 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

Bill 2010 No. , 2010

(3A) Subsection (1) does not apply to the rule set out in subsection

152BCP(2) of the Competition and Consumer Act 2010.

Note:

Subsection 152BCP(2) of the Competition and Consumer Act 2010

provides that a carriage service provider must comply with any access

determinations that are applicable to the provider.

(3B) Subsection (1) does not apply to the rule set out in subsection

152BDG(2) of the Competition and Consumer Act 2010.

Note:

Subsection 152BDG(2) of the Competition and Consumer Act 2010

provides that a carriage service provider must comply with any

binding rules of conduct that are applicable to the provider.

(3C) Subsection (1) does not apply to the rule set out in subsection

152BED(2) of the Competition and Consumer Act 2010.

Note:

Subsection 152BED(2) of the Competition and Consumer Act 2010

deals with access agreements.

83 After subsection 103(4)

Insert:

(4A) The ACCC may issue a formal warning if a person contravenes the

service provider rule set out in subsection 152BCP(2) of the

Competition and Consumer Act 2010.

(4B) The ACCC may issue a formal warning if a person contravenes the

service provider rule set out in subsection 152BDG(2) of the

Competition and Consumer Act 2010.

(4C) The ACCC may issue a formal warning if a person contravenes the

service provider rule set out in subsection 152BED(2) of the

Competition and Consumer Act 2010.

84 After section 505

Insert:

505A ACCC may use material presented to a previous public

inquiry

(1) This section applies if:

(a) the ACCC has held a public inquiry (the original inquiry)

under this Part; and

(b) any of the following subparagraphs applies:

Amendments Schedule 1

Telecommunications access regime Part 2

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 91

(i) evidence or other material was presented to a hearing

for the purposes of the original inquiry;

(ii) a written submission was lodged with the ACCC for the

purposes of the original inquiry;

(iii) any other information obtained by the ACCC was used

by the ACCC for the purposes of the original inquiry;

and

(2)

The

ACCC

may:

(a) in the case of evidence or other material presented to a

hearing--treat the whole or a part of the evidence or other

material as if it had also been presented to a hearing for the

purposes of the other public inquiry; or

(b) in the case of a written submission lodged with the ACCC--

treat the whole or a part of the written submission as if it had

also been lodged with the ACCC for the purposes of the other

public inquiry; or

use the whole or a part of the information for the purposes of

the other public inquiry.

(3) This section does not, by implication, limit the information that

may be used by the ACCC for the purposes of a public inquiry

under this Part.

505B ACCC may adopt a finding from a previous public inquiry

If:

(a) the ACCC has held a public inquiry (the original inquiry)

under this Part; and

(b) the ACCC has prepared a report about the original inquiry

under section 505; and

the ACCC may, for the purposes of the other public inquiry, adopt

a finding set out in the report about the original inquiry.

85 Paragraph 564(3)(b)

Omit "or 4", substitute ", 4 or 5".

Schedule 1 Amendments

Part 2 Telecommunications access regime

92 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

Bill 2010 No. , 2010

86 At the end of subsection 564(3) (before the notes)

Add:

; or (f) the carrier licence condition set out in section 152BCO of the

Competition and Consumer Act 2010; or

(g) the service provider rule set out in subsection 152BCP(2) of

the Competition and Consumer Act 2010; or

(h) the carrier licence condition set out in section 152BDF of the

Competition and Consumer Act 2010; or

(i) the service provider rule set out in subsection 152BDG(2) of

the Competition and Consumer Act 2010; or

(j) the carrier licence condition set out in section 152BEC of the

Competition and Consumer Act 2010; or

(k) the service provider rule set out in subsection 152BED(2) of

the Competition and Consumer Act 2010.

87 Subsection 564(3) (note 2)

Repeal the note, substitute:

Note 2:

Parts 3, 4 and 5 of Schedule 1 deal with access to network information

and access to facilities.

88 At the end of subsection 564(3) (after the notes)

Add:

Note 5:

Section 152BCO of the Competition and Consumer Act 2010 deals

with access determinations.

Note 6:

Subsection 152BCP(2) of the Competition and Consumer Act 2010

provides that a carriage service provider must comply with any access

determinations that are applicable to the provider.

Note 7:

Section 152BDF of the Competition and Consumer Act 2010 deals

with binding rules of conduct.

Note 8:

Subsection 152BDG(2) of the Competition and Consumer Act 2010

provides that a carriage service provider must comply with any

binding rules of conduct that are applicable to the provider.

Note 9:

Section 152BEC of the Competition and Consumer Act 2010 deals

with access agreements.

Note 10:

Subsection 152BED(2) of the Competition and Consumer Act 2010

deals with access agreements.

89 Paragraph 571(3)(b)

Omit "or 4", substitute ", 4 or 5".

Amendments Schedule 1

Telecommunications access regime Part 2

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 93

90 At the end of subsection 571(3) (before the notes)

Add:

; or (f) the carrier licence condition set out in section 152BCO of the

Competition and Consumer Act 2010; or

(g) the service provider rule set out in subsection 152BCP(2) of

the Competition and Consumer Act 2010; or

(h) the carrier licence condition set out in section 152BDF of the

Competition and Consumer Act 2010; or

(i) the service provider rule set out in subsection 152BDG(2) of

the Competition and Consumer Act 2010; or

(j) the carrier licence condition set out in section 152BEC of the

Competition and Consumer Act 2010; or

(k) the service provider rule set out in subsection 152BED(2) of

the Competition and Consumer Act 2010.

91 Subsection 571(3) (note 2)

Repeal the note, substitute:

Note 2:

Parts 3, 4 and 5 of Schedule 1 deal with access to network information

and access to facilities.

92 At the end of subsection 571(3) (after the notes)

Add:

Note 5:

Section 152BCO of the Competition and Consumer Act 2010 deals

with access determinations.

Note 6:

Subsection 152BCP(2) of the Competition and Consumer Act 2010

provides that a carriage service provider must comply with any access

determinations that are applicable to the provider.

Note 7:

Section 152BDF of the Competition and Consumer Act 2010 deals

with binding rules of conduct.

Note 8:

Subsection 152BDG(2) of the Competition and Consumer Act 2010

provides that a carriage service provider must comply with any

binding rules of conduct that are applicable to the provider.

Note 9:

Section 152BEC of the Competition and Consumer Act 2010 deals

with access agreements.

Note 10:

Subsection 152BED(2) of the Competition and Consumer Act 2010

deals with access agreements.

93 After subclause 17(2) of Schedule 1

Insert:

Schedule 1 Amendments

Part 2 Telecommunications access regime

94 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

Bill 2010 No. , 2010

(2A) Subclause (1) does not impose an obligation to the extent (if any)

to which the imposition of the obligation would have any of the

following effects:

(a) depriving any person of a right under a contract that was in

force at the time the request was made;

(b) preventing Telstra from complying with an undertaking in

force under section 577A, 577C or 577E;

engage in conduct in connection with matters covered by the

final migration plan.

(2B) If, at the time the request was made:

(a) one or more provisions (the contingent provisions) of a

contract have not come into force because:

(i) the contingent provisions are subject to a condition

precedent; and

(ii) the condition precedent has not been satisfied; and

(b) there is a possibility that the condition precedent could

become satisfied; and

(i) the contingent provisions would come into force; and

(ii) the person would have a right under the contingent

provisions;

paragraph (2A)(a) has effect, in relation to the contract, as if, at the

time the request was made:

(d) the contract was in force; and

(e) the person had the right under the contract.

94 After subclause 17(4) of Schedule 1

Insert:

(4A) For the purposes of subclause (1), if:

(a) there is an agreement in force between Telstra and an NBN

corporation; and

(b) the agreement relates to the NBN corporation's access to

facilities owned or operated by Telstra; and

NBN corporation being the operator of the facilities;

Amendments Schedule 1

Telecommunications access regime Part 2

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 95

the NBN corporation is taken not to be the operator of the

facilities.

95 At the end of clause 17 of Schedule 1

Add:

(6) In this clause:

NBN corporation has the same meaning as in section 577BA.

96 At the end of clause 18 of Schedule 1

Add:

(6) An arbitrator must not make a determination under this clause if

the determination would have the effect of:

(a) preventing Telstra from complying with an undertaking in

force under section 577A, 577C or 577E; or

(b) if a final migration plan is in force--requiring Telstra to

engage in conduct in connection with matters covered by the

final migration plan.

(7)

If:

(a) an agreement mentioned in paragraph (1)(a) is in force; and

(b) the agreement is in writing;

a determination under this clause has no effect to the extent to

which it is inconsistent with the agreement.

97 Clause 31 of Schedule 1

Insert:

NBN corporation has the same meaning as in section 577BA.

98 Subclause 33(3) of Schedule 1

Omit "the ACMA stating that, in the ACMA's opinion,", substitute "the

ACCC stating that, in the ACCC's opinion,".

99 Subclause 33(4) of Schedule 1

Omit "ACMA" (wherever occurring), substitute "ACCC".

100 After subclause 33(4) of Schedule 1

Insert:

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(4A) Before issuing a certificate under subclause (3), the ACCC may

consult the ACMA.

101 Subclause 33(5) of Schedule 1

Omit "ACMA" (wherever occurring), substitute "ACCC".

102 At the end of clause 33 of Schedule 1

Add:

(6) Subclause (1) does not impose an obligation to the extent (if any)

to which the imposition of the obligation would have any of the

following effects:

(a) depriving any person of a right under a contract that was in

force at the time the request was made;

(b) preventing Telstra from complying with an undertaking in

force under section 577A, 577C or 577E;

engage in conduct in connection with matters covered by the

final migration plan.

(7) If, at the time the request was made:

(a) one or more provisions (the contingent provisions) of a

contract have not come into force because:

(i) the contingent provisions are subject to a condition

precedent; and

(ii) the condition precedent has not been satisfied; and

(b) there is a possibility that the condition precedent could

become satisfied; and

(i) the contingent provisions would come into force; and

(ii) the person would have a right under the contingent

provisions;

paragraph (6)(a) has effect, in relation to the contract, as if, at the

time the request was made:

(d) the contract was in force; and

(e) the person had the right under the contract.

(8) For the purposes of subclause (1), if:

(a) there is an agreement in force between Telstra and an NBN

corporation; and

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(b) the agreement relates to the NBN corporation's access to a

telecommunications transmission tower owned or operated

by Telstra; and

NBN corporation being the operator of the

telecommunications transmission tower;

the NBN corporation is taken not to be the operator of the

telecommunications transmission tower.

103 Subclause 34(3) of Schedule 1

Omit "the ACMA stating that, in the ACMA's opinion,", substitute "the

ACCC stating that, in the ACCC's opinion,".

104 Subclause 34(4) of Schedule 1

Omit "ACMA" (wherever occurring), substitute "ACCC".

105 After subclause 34(4) of Schedule 1

Insert:

(4A) Before issuing a certificate under subclause (3), the ACCC may

consult the ACMA.

106 Subclause 34(5) of Schedule 1

Omit "ACMA" (wherever occurring), substitute "ACCC".

107 At the end of clause 34 of Schedule 1

Add:

(6) Subclause (1) does not impose an obligation to the extent (if any)

to which the imposition of the obligation would have any of the

following effects:

(a) depriving any person of a right under a contract that was in

force at the time the request was made;

(b) preventing Telstra from complying with an undertaking in

force under section 577A, 577C or 577E;

engage in conduct in connection with matters covered by the

final migration plan.

(7) If, at the time the request was made:

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(a) one or more provisions (the contingent provisions) of a

contract have not come into force because:

(i) the contingent provisions are subject to a condition

precedent; and

(ii) the condition precedent has not been satisfied; and

(b) there is a possibility that the condition precedent could

become satisfied; and

(i) the contingent provisions would come into force; and

(ii) the person would have a right under the contingent

provisions;

paragraph (6)(a) has effect, in relation to the contract, as if, at the

time the request was made:

(d) the contract was in force; and

(e) the person had the right under the contract.

(8) For the purposes of subclause (1), if:

(a) there is an agreement in force between Telstra and an NBN

corporation; and

(b) the agreement relates to the NBN corporation's access to the

site of a telecommunications transmission tower, where:

(i) the site is owned, operated or controlled by Telstra; or

(ii) Telstra has a right (whether conditional or

unconditional) to use the site; and

NBN corporation:

(i) being the occupier or controller of the site; or

(ii) having a right (whether conditional or unconditional) to

use the site;

the NBN corporation is taken:

(d) not to be the occupier or controller of the site; and

(e) not to have a right (whether conditional or unconditional) to

use the site.

108 Subclause 35(3) of Schedule 1

Omit "the ACMA stating that, in the ACMA's opinion,", substitute "the

ACCC stating that, in the ACCC's opinion,".

109 Subclause 35(4) of Schedule 1

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Omit "ACMA" (wherever occurring), substitute "ACCC".

110 After subclause 35(4) of Schedule 1

Insert:

(4A) Before issuing a certificate under subclause (3), the ACCC may

consult the ACMA.

111 Subclause 35(5) of Schedule 1

Omit "ACMA" (wherever occurring), substitute "ACCC".

112 At the end of clause 35 of Schedule 1

Add:

(6) Subclause (1) does not impose an obligation to the extent (if any)

to which the imposition of the obligation would have any of the

following effects:

(a) depriving any person of a right under a contract that was in

force at the time the request was made;

(b) preventing Telstra from complying with an undertaking in

force under section 577A, 577C or 577E;

engage in conduct in connection with matters covered by the

final migration plan.

(7) If, at the time the request was made:

(a) one or more provisions (the contingent provisions) of a

contract have not come into force because:

(i) the contingent provisions are subject to a condition

precedent; and

(ii) the condition precedent has not been satisfied; and

(b) there is a possibility that the condition precedent could

become satisfied; and

(i) the contingent provisions would come into force; and

(ii) the person would have a right under the contingent

provisions;

paragraph (6)(a) has effect, in relation to the contract, as if, at the

time the request was made:

(d) the contract was in force; and

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(e) the person had the right under the contract.

(8) For the purposes of subclause (1), if:

(a) there is an agreement in force between Telstra and an NBN

corporation; and

(b) the agreement relates to the NBN corporation's access to an

eligible underground facility owned or operated by Telstra;

and

NBN corporation being the operator of the eligible

underground facility;

the NBN corporation is taken not to be the operator of the eligible

underground facility.

113 At the end of clause 36 of Schedule 1

Add:

(7) An arbitrator must not make a determination under this clause if

the determination would have the effect of:

(a) preventing Telstra from complying with an undertaking in

force under section 577A, 577C or 577E; or

(b) if a final migration plan is in force--requiring Telstra to

engage in conduct in connection with matters covered by the

final migration plan.

(8)

If:

(a) an agreement mentioned in paragraph (1)(a), (2)(a) or (3)(a)

is in force; and

(b) the agreement is in writing;

a determination under this clause has no effect to the extent to

which it is inconsistent with the agreement.

Competition and Consumer Act 2010

114 Section 152AA

Omit:

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�

If agreement cannot be reached, but no access undertaking is

in operation, the terms and conditions are to be determined

by the Commission acting as an arbitrator.

�

An access undertaking (other than a special access

undertaking) may adopt the terms and conditions set out in a

telecommunications access code.

�

The Commission may conduct an arbitration of a dispute

about access to declared services. The Commission's

determination on the arbitration must not be inconsistent

with the standard access obligations or an access

undertaking.

�

The Commission may register agreements about access to

declared services.

�

A carrier, carriage service provider or related body must not

prevent or hinder the fulfilment of a standard access

obligation.

substitute:

�

If agreement cannot be reached, no access undertaking is in

operation, but the Commission has made binding rules of

conduct, the terms and conditions are as specified in the

binding rules of conduct.

�

If agreement cannot be reached, no access undertaking is in

operation, and no binding rules of conduct have been made,

the terms and conditions are as specified in an access

determination made by the Commission.

�

A carrier, carriage service provider or related body must not

prevent or hinder the fulfilment of a standard access

obligation.

Note:

Even though this section mentions binding rules of conduct, binding

rules of conduct may only be made if the Commission considers that

there is an urgent need to do so.

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115 Section 152AC

Insert:

access agreement has the meaning given by section 152BE.

116 Section 152AC

Insert:

access determination means a determination under section 152BC.

117 Section 152AC (definition of access undertaking)

Omit "an ordinary access undertaking or".

118 Section 152AC

Insert:

binding rules of conduct means rules made under subsection

152BD(1).

119 Section 152AC

Insert:

final access determination means an access determination other

than an interim access determination.

120 Section 152AC

Insert:

fixed principles provision has the meaning given by

section 152BCD.

121 Section 152AC

Insert:

fixed principles term or condition has the meaning given by

section 152CBAA.

122 Section 152AC

Insert:

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interim access determination means an access determination that

is expressed to be an interim access determination.

123 Section 152AC (definition of ordinary access

undertaking)

Repeal the definition.

124 Section 152AC (definition of telecommunications access

code)

Repeal the definition.

125 Section 152AC

Insert:

variation agreement has the meaning given by subsection

152BE(3).

126 At the end of section 152AF

Add:

(3) For the purposes of this Part, if an access determination imposes a

requirement on a carrier or carriage service provider as mentioned

in paragraph 152BC(3)(e), anything done by the carrier or provider

in fulfilment of the requirement is taken to be an aspect of access

to a declared service.

127 After section 152AH

Insert:

152AI When public inquiry commences

For the purposes of this Part, a public inquiry held by the

Commission under Part 25 of the Telecommunications Act 1997

commences when the Commission publishes the notice under

section 498 of that Act about the inquiry.

128 Subsection 152ALA(2)

Repeal the subsection, substitute:

(2) In specifying an expiry date, the Commission must have regard to:

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(a) the principle that the expiry date for a declaration should

occur in the period:

(i) beginning 3 years after the declaration was made; and

(ii) ending 5 years after the declaration was made;

unless, in the Commission's opinion, there are circumstances

that warrant the expiry date occurring in a shorter or longer

period; and

(b) such other matters (if any) as the Commission considers

relevant.

129 After subsection 152ALA(6)

Insert:

(6A) If the fresh declaration comes into force immediately after the

expiry of the expired declaration, the fresh declaration is taken to

be a declaration that replaces the expired declaration.

130 Paragraph 152ALA(7)(a)

Omit "12-month", substitute "18-month".

Note:

The heading to subsection 152ALA(7) is altered by omitting "12-month" and

substituting "18-month".

131 After subparagraph 152ALA(7)(a)(v)

Insert:

(vi) whether to extend or further extend the expiry date of a

declaration by a period of not more than 12 months and

then to allow the declaration to expire without making a

new declaration under section 152AL; and

132 Subsection 152AM(3)

Repeal the subsection, substitute:

(3) The Commission does not have a duty to consider whether to hold

a public inquiry of a kind mentioned in paragraph 152AL(3)(a) if

the Commission is requested to do so by a person.

133 Subsection 152AQ(3)

Omit "may", substitute "is to".

134 Subsections 152AQ(4), (5) and (6)

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Repeal the subsections, substitute:

(4) The Register is to be made available for inspection on the

Commission's website.

(5) The Register is not a legislative instrument.

135 Sections 152AQA and 152AQB

Repeal the sections.

136 Subsection 152AR(12) (definition of pre-request right)

Omit ", or under a determination (within the meaning of Division 8),".

137 Section 152AS

Repeal the section.

138 After subsection 152ASA(1)

Insert:

(1A) A service or a proposed service must not be specified in a

determination under this section if, at the time when the

determination is made, the service or proposed service is a declared

service.

139 After subsection 152ASA(2)

Insert:

(2A) A determination under this section may:

(a) provide that the determination must not be varied; or

(b) provide that the determination must not be varied except in

such circumstances as are specified in the determination.

(2B) A determination under this section may:

(a) provide that the determination must not be revoked; or

(b) provide that the determination must be revoked except in

such circumstances as are specified in the determination.

140 Subsection 152ASA(8)

Omit all the words from and including "Commission", substitute

"Commission from making a fresh determination under this section in

the same terms as the expired determination".

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141 After subsection 152ASA(11)

Insert:

Variation or revocation of determination

(11A) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a

power conferred on the Commission by subsection (1), but it

applies with the following changes.

(11B) A provision referred to in paragraph (2A)(a) or (b) or (2B)(a) or (b)

cannot be varied or removed.

(11C) A determination under this section must not be varied or revoked

in a manner that is inconsistent with a provision referred to in

paragraph (2A)(a) or (b) or (2B)(a) or (b).

142 Subsection 152ASA(12)

Repeal the subsection, substitute:

Determination is not a legislative instrument

(12) A determination made under subsection (1) is not a legislative

instrument.

143 Subsection 152ASA(13) (note)

Repeal the note.

144 Section 152AT

Repeal the section.

145 After subsection 152ATA(3)

Insert:

(3A) A service or a proposed service must not be specified in an order

under paragraph (3)(a) if, at the time when the order is made, the

service or proposed service is a declared service.

146 After subsection 152ATA(4)

Insert:

(4A) An order under paragraph (3)(a) may:

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(a) provide that the order must not be varied; or

(b) provide that the order must not be varied except in such

circumstances as are specified in the order.

(4B) An order under paragraph (3)(a) may:

(a) provide that the order must not be revoked; or

(b) provide that the order must not be revoked except in such

circumstances as are specified in the order.

147 After subsection 152ATA(6)

Insert:

Serial applications

(7)

If:

(a) a person makes an application (the first application) under

subsection (1) for an order in relation to a service or proposed

service; and

(b) the Commission refuses the first application; and

subsection (1); and

(d) the Commission is satisfied that:

(i) the first application and the other application have

material similarities; or

(ii) the grounds on which the person made the first

application are materially similar to the grounds on

which the person has made the other application;

the Commission may refuse to consider the other application.

148 Subsection 152ATA(10)

Omit all the words from and including "Commission", substitute

"Commission from making a fresh order under paragraph (3)(a) in the

same terms as the expired order".

149 After subsection 152ATA(16)

Insert:

(16A) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a

power conferred on the Commission by paragraph (3)(a), but it

applies with the following changes.

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(16B) A provision referred to in paragraph (4A)(a) or (b) or (4B)(a) or (b)

cannot be varied or removed.

(16C) An order under paragraph (3)(a) must not be varied or revoked in a

manner that is inconsistent with a provision referred to in (4A)(a)

or (b) or (4B)(a) or (b).

150 Subsection 152ATA(18) (note)

Repeal the note.

151 Subsection 152AU(1)

Omit "152AT(1) or".

152 Sections 152AV to 152AX

Repeal the sections.

153 Subsection 152AXA(1)

Omit "(1)".

Note:

The heading to section 152AXA is altered by omitting "reviewable".

154 Paragraph 152AXA(1)(a)

Omit "152AT or".

155 Subsection 152AXA(2)

Repeal the subsection.

156 Section 152AY

Repeal the section, substitute:

152AY Compliance with standard access obligations

(1) This section applies if a carrier or carriage service provider is

required to comply with any or all of the standard access

obligations.

(2) The carrier or carriage service provider must comply with the

obligations:

(a) if an access agreement between:

(i) the carrier or carriage service provider, as the case

requires; and

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(ii) the access seeker;

is in operation and specifies terms and conditions about a

particular matter--on such terms and conditions relating to

that matter as are set out in the agreement; or

(b)

if:

(i) paragraph (a) does not apply in relation to terms and

conditions about a particular matter; and

(ii) a special access undertaking given by the carrier or

carriage service provider is in operation, and the

undertaking specifies terms and conditions about that

matter--on such terms and conditions relating to that

matter as are set out in the undertaking; or

(c)

if:

(i) neither paragraph (a) nor (b) applies to terms and

conditions about a particular matter; and

(ii) binding rules of conduct specify terms and conditions

about that matter;

on such terms and conditions relating to that matter as are set

out in the binding rules of conduct; or

(d)

if:

(i) none of the above paragraphs applies to terms and

conditions about a particular matter; and

(ii) an access determination specifies terms and conditions

about that matter;

on such terms and conditions relating to that matter as are set

out in the access determination.

Note 1:

Sections 152BCC, 152BDB, 152BDE, 152CBIA, 152CBIB and

152CBIC, which deal with inconsistency, should be read and applied

before this section is read and applied.

Note 2:

Even though subsection (2) mentions binding rules of conduct,

binding rules of conduct may only be made if the Commission

considers that there is an urgent need to do so.

Note 3:

For transitional provisions, see Division 2 of Part 2 of Schedule 1 to

the Telecommunications Legislation Amendment (Competition and

Consumer Safeguards) Act 2010.

157 Paragraph 152BBAA(1)(a)

Omit "152AS or".

158 Paragraph 152BBAA(1)(b)

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Omit "152AT or".

159 Subsection 152BBC(5)

Repeal the subsection.

160 Division 4 of Part XIC

Repeal the Division, substitute:

Division 4--Access determinations

Subdivision A--Commission may make access determinations

152BC Access determinations

(1) The Commission may make a written determination relating to

access to a declared service.

(2) A determination under subsection (1) is to be known as an access

determination.

(3) An access determination may:

(a) specify any or all of the terms and conditions on which a

carrier or carriage service provider is to comply with any or

all of the standard access obligations applicable to the carrier

or provider; or

(b) specify any other terms and conditions of an access seeker's

access to the declared service; or

any or all of the standard access obligations applicable to the

carrier or provider in a manner specified in the determination;

(d) require a carrier or carriage service provider to extend or

enhance the capability of a facility by means of which the

declared service is supplied; or

(e) impose other requirements on a carrier or carriage service

provider in relation to access to the declared service; or

(f) specify the terms and conditions on which a carrier or

carriage service provider is to comply with any or all of those

other requirements; or

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(g) require access seekers to accept, and pay for, access to the

declared service; or

(h) provide that any or all of the obligations referred to in

section 152AR are not applicable to a carrier or carriage

service provider, either:

(i)

unconditionally;

(ii) subject to such conditions or limitations as are specified

in the determination; or

(i) restrict or limit the application to a carrier or carriage service

provider of any or all of the obligations referred to in

section 152AR; or

(j) deal with any other matter relating to access to the declared

service.

(4) Subsection (3) does not limit subsection (1).

(5) An access determination may make different provision with respect

to:

(a) different carriers or carriage service providers; or

(b) different classes of carriers or carriage service providers; or

(d) different classes of access seekers.

(6) Subsection (5) does not, by implication, limit subsection 33(3A) of

the Acts Interpretation Act 1901.

(7) An access determination may provide for the Commission to

perform functions, and exercise powers, under the determination.

(8) Terms and conditions specified in an access determination as

mentioned in paragraph (3)(a), (b) or (f) must include terms and

conditions relating to price or a method of ascertaining price.

(9) An access determination is not a legislative instrument.

152BCA Matters that the Commission must take into account

(1) The Commission must take the following matters into account in

making an access determination:

(a) whether the determination will promote the long-term

interests of end-users of carriage services or of services

supplied by means of carriage services;

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(b) the legitimate business interests of a carrier or carriage

service provider who supplies, or is capable of supplying, the

declared service, and the carrier's or provider's investment in

facilities used to supply the declared service;

declared service;

(d) the direct costs of providing access to the declared service;

(e) the value to a person of extensions, or enhancement of

capability, whose cost is borne by someone else;

(f) the operational and technical requirements necessary for the

safe and reliable operation of a carriage service, a

telecommunications network or a facility;

(g) the economically efficient operation of a carriage service, a

telecommunications network or a facility.

(2) If a carrier or carriage service provider who supplies, or is capable

of supplying, the declared service supplies one or more other

eligible services, then, in making an access determination that is

applicable to the carrier or provider, as the case may be, the

Commission may take into account:

(a) the characteristics of those other eligible services; and

(b) the costs associated with those other eligible services; and

and

(d) the demand for those other eligible services.

(3) The Commission may take into account any other matters that it

thinks are relevant.

(4) This section does not apply to an interim access determination.

(5) In this section:

eligible service has the same meaning as in section 152AL.

152BCB Restrictions on access determinations

(1) The Commission must not make an access determination that

would have any of the following effects:

(a) preventing a service provider who already has access to the

declared service from obtaining a sufficient amount of the

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service to be able to meet the service provider's reasonably

anticipated requirements, measured at the time when the

access seeker made a request in relation to the service under

section 152AR;

(b) preventing a carrier or carriage service provider from

obtaining a sufficient amount of the service to be able to meet

the carrier's or provider's reasonably anticipated

requirements, measured at the time when the access seeker

made a request in relation to the service under

section 152AR;

pre-determination right, a sufficient level of access to the

declared service to be able to meet the person's actual

requirements;

(d) depriving any person of a protected contractual right;

(e) resulting in an access seeker becoming the owner (or one of

the owners) of any part of a facility without the consent of

the owner of the facility;

(f) requiring a person (other than an access seeker) to bear an

unreasonable amount of the costs of:

(i) extending or enhancing the capability of a facility; or

(ii) maintaining extensions to or enhancements of the

capability of a facility;

(g) requiring a carrier or carriage service provider to provide an

access seeker with access to a declared service if there are

reasonable grounds to believe that:

(i) the access seeker would fail, to a material extent, to

comply with the terms and conditions on which the

carrier or provider provides, or is reasonably likely to

provide, that access; or

(ii) the access seeker would fail, in connection with that

access, to protect the integrity of a telecommunications

network or to protect the safety of individuals working

on, or using services supplied by means of, a

telecommunications network or a facility.

(2) Examples of grounds for believing as mentioned in

subparagraph (1)(g)(i) include:

(a) evidence that the access seeker is not creditworthy; and

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(b) repeated failures by the access seeker to comply with the

terms and conditions on which the same or similar access has

been provided (whether or not by the carrier or carriage

service provider).

(3) The Commission must not make an access determination that is

inconsistent with any of the standard access obligations that are, or

will be, applicable to a carrier or carriage service provider.

(3A) If a final migration plan is in force, the Commission must not make

an access determination that would have the effect of requiring

Telstra to engage in conduct in connection with matters covered by

the final migration plan.

(4) If the Commission makes an access determination that has the

effect of depriving a person (the second person) of a

pre-determination right to require the carrier or provider to provide

access to the declared service to the second person, the

determination must also require the access seeker:

(a) to pay to the second person such amount (if any) as the

Commission considers is fair compensation for the

deprivation; and

(b) to reimburse the carrier or provider and the Commonwealth

for any compensation that the carrier or provider or the

Commonwealth agrees, or is required by a court order, to pay

to the second person as compensation for the deprivation.

(5) An access determination is of no effect to the extent to which it

contravenes subsection (1), (3) or (3A).

(6) In this section:

pre-determination right means a right under a contract that was in

force:

(a) if the access determination is one of a series of 2 or more

successive access determinations--immediately before the

first access determination came into force; or

(b) otherwise--immediately before the access determination

came into force.

protected contractual right means a right under a contract that was

in force at the beginning of 13 September 1996.

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152BCC Access agreements prevail over inconsistent access

determinations

If an access determination is applicable to the following parties:

(a) a carrier or carriage service provider;

(b) an access seeker;

the access determination has no effect to the extent to which it is

inconsistent with an access agreement that is applicable to those

parties.

152BCCA Final migration plan prevails over inconsistent access

determinations

If a final migration plan is in force, an access determination has no

effect to the extent to which it would have the effect of:

(a) preventing Telstra from complying with the final migration

plan; or

(b) requiring Telstra to engage in conduct in connection with

matters covered by the final migration plan.

152BCD Fixed principles provisions

(1) An access determination may include a provision that is specified

in the determination to be a fixed principles provision.

(2) If a fixed principles provision is included in an access

determination, the determination must provide that a specified date

is the nominal termination date for the fixed principles provision.

The nominal termination date may be later than the expiry date for

the determination.

(3)

If:

(a) an access determination (the replacement access

determination) is expressed to replace a previous access

determination; and

(b) the previous access determination included a fixed principles

provision; and

provision is later than the day on which the replacement

access determination comes into force;

then:

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(d) the replacement access determination must include a

provision in the same terms as the fixed principles provision;

and

(e) the provision must be specified in the replacement access

determination to be a fixed principles provision; and

(f) the nominal termination date for the fixed principles

provision so included in the replacement access

determination must be the same as, or later than, the nominal

termination date for the fixed principles provision included in

the previous access determination; and

(g) if the previous access determination provided that the

previous access determination must not be varied so as to

alter or remove the fixed principles provision--the

replacement access determination must provide that the

replacement access determination must not be varied so as to

alter or remove the fixed principles provision; and

(h) if the previous access determination provided that the

previous access determination must not be varied so as to

alter or remove the fixed principles provision except in such

circumstances as are specified in the previous access

determination:

(i) the replacement access determination must provide that

the replacement access determination must not be varied

so as to alter or remove the fixed principles provision

except in such circumstances as are specified in the

replacement access determination; and

(ii) those circumstances must be the same as the

circumstances specified in the previous access

determination.

(4)

If:

(a) a fixed principles provision is included in an access

determination; and

(b) the access determination ceases to be in force before the

nominal termination date for the fixed principles provision;

the fixed principles provision ceases to be in force when the access

determination ceases to be in force.

Note:

Even though a fixed principles provision ceases to be in force when

the access determination ceases to be in force, subsection (3) requires

that a replacement access determination include a provision in the

same terms as the fixed principles provision.

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(5) If a fixed principles provision is included in an access

determination, the access determination must:

(a) provide that the access determination must not be varied so

as to alter or remove the fixed principles provision; or

(b) provide that the access determination must not be varied so

as to alter or remove the fixed principles provision except in

such circumstances as are specified in the access

determination.

152BCE Access determinations may be set out in the same document

Two or more access determinations may be set out in the same

document.

152BCF Duration of access determination

(1) An access determination relating to access to a declared service:

(a) comes into force on the day specified in the determination as

the day on which the determination is to come into force; and

(b) unless sooner revoked, ceases to be in force on the expiry

date for the determination.

(2) The specified day may be earlier than the day on which the

determination was made.

(2A) The specified day must not be earlier than the date of

commencement of this section.

(3) If the declared service is covered by a declaration under

section 152AL, and the declaration is not a fresh declaration that

replaces a previous declaration, the specified day must not be

earlier than the day on which the declaration came into force.

(3A) If the declared service is covered by subsection 152AL(7), the

specified day must not be earlier than the day on which the service

became a declared service under that subsection.

(4)

If:

(a) an access determination is expressed to replace a previous

access determination relating to access to the declared

service; and

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(b) the previous access determination is not an interim access

determination;

the specified day must be the first day after the expiry of the

previous access determination.

(4A)

If:

(a) an access determination is expressed to replace a previous

access determination relating to access to the declared

service; and

(b) the previous access determination is an interim access

determination; and

section 152AL;

the specified day must not be earlier than the day on which the

declaration came into force.

Expiry date

(5) An access determination must specify an expiry date for the

determination.

(6) In specifying an expiry date for an access determination, the

Commission must have regard to:

(a) in a case where the declared service is covered by a

declaration under section 152AL--the principle that the

expiry date for the determination should be the same as the

expiry date for the declaration (as that declaration stood at

the time when the access determination was made) unless, in

the Commission's opinion, there are circumstances that

warrant the specification of another date as the expiry date

for the access determination; and

(b) such other matters (if any) as the Commission considers

relevant.

(7) If an access determination expires, this Part does not prevent the

Commission from making a fresh access determination under

section 152BC in the same terms as the expired access

determination.

Automatic revocation of access determination

(8)

If:

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(a) an access determination relating to access to a declared

service is in force; and

(b) the declared service is covered by a declaration under

section 152AL, and the declaration ceases to be in force; and

section 152AL that replaces the declaration referred to in

paragraph (b) of this subsection;

the access determination is taken to be revoked at the time of the

cessation.

(9)

If:

(a) an access determination relating to access to a declared

service is in force; and

(b) the declared service is covered by a declaration under

section 152AL, and the declaration is revoked; and

section 152AL that replaces the declaration referred to in

paragraph (b) of this subsection;

the access determination is taken to be revoked at the time of the

revocation of the declaration.

(9A)

If:

(a) an interim access determination relating to access to a

declared service is in force; and

(b) a final access determination relating to access to the declared

service comes into force;

the interim access determination is taken to be revoked at the time

when the final access determination comes into force.

Extension of access determination

(10)

If:

(a) an access determination (the original access determination)

relating to access to a declared service is in force; and

(b) the Commission has commenced to hold a public inquiry

under Part 25 of the Telecommunications Act 1997 about a

proposal to make another access determination in relation to

access to the service; and

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determination, but will not be in a position to do so before the

expiry date for the original access determination;

the Commission may, by writing, declare that the expiry date for

the original access determination is taken to be the day

immediately before the day on which the other access

determination comes into force.

(11) The Commission must publish a declaration under subsection (10)

on the Commission's website.

(12)

If:

(a) after holding a public inquiry under subsection 152ALA(7) in

relation to a section 152AL declaration, the Commission:

(i) extends or further extends the expiry date for the

declaration by a period of not more than 12 months; and

(ii) decides to allow the declaration to expire after the end

of that period; and

(b) an access determination is in force in relation to access to the

declared service;

the Commission may, by writing, extend the expiry date for the

access determination by the same period.

(13) The Commission must publish an instrument under subsection (12)

on the Commission's website.

(14) The Commission is not required to observe any requirements of

procedural fairness in relation to a decision under subsection (10)

or (12).

(15) A declaration under subsection (10) is not a legislative instrument.

(16) An instrument under subsection (12) is not a legislative instrument.

152BCG Interim access determinations

(1)

If:

(a) the Commission makes a declaration under section 152AL

after the commencement of this section; and

(b) the declaration is not a fresh declaration that replaces a

previous declaration; and

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under Part 25 of the Telecommunications Act 1997 about a

proposal to make an access determination in relation to

access to the declared service; and

(d)

either:

(i) the Commission considers that it is unlikely that a final

access determination in relation to access to the service

will be made within 6 months after the commencement

of the public inquiry; or

(ii) the Commission considers that there is an urgent need to

make an access determination in relation to access to the

service before the completion of the public inquiry;

the Commission must make an interim access determination in

relation to access to the service.

(2)

If:

(a) a declaration is in force under section 152AL; and

(b) no access determination has previously been made in relation

to access to the declared service;

the Commission may make an interim access determination in

relation to access to the service.

(3) The day specified in an interim access determination as the day on

which the determination is to come into force must not be earlier

than the day on which the declaration mentioned in

paragraph (1)(a) or (2)(a), as the case may be, came into force.

(4) The Commission is not required to observe any requirements of

procedural fairness in relation to the making of an interim access

determination.

(5) The Commission must not make an interim access determination

otherwise than in accordance with this section.

152BCGA Stay of access determinations

(1) Paragraphs 15(1)(a) and (b) and 15A(1)(a) and (b) of the

Administrative Decisions (Judicial Review) Act 1977 do not apply

to a decision of the Commission to make an access determination.

(2) If a person applies to the Federal Court under subsection 39B(1) of

the Judiciary Act 1903 for a writ or injunction in relation to a

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decision of the Commission to make an access determination, the

Court must not make any orders staying or otherwise affecting the

operation or implementation of the decision pending the

finalisation of the application.

Subdivision B--Public inquiries about proposals to make access

determinations

152BCH Access determination to be made after public inquiry

(1) The Commission must not make an access determination unless:

(a) the Commission has held a public inquiry under Part 25 of

the Telecommunications Act 1997 about a proposal to make

the determination; and

(b) the Commission has prepared a report about the inquiry

under section 505 of the Telecommunications Act 1997; and

when the determination was made.

(2) Subsection (1) does not apply to an interim access determination.

(3) Subsection (1) has effect subject to section 152BCI.

152BCI When public inquiry must be held

(1)

If:

(a) the Commission makes a declaration under section 152AL

after the commencement of this section; and

(b) no access determination has previously been made in relation

to access to the declared service;

the Commission must, within 30 days after the declaration is made,

commence to hold a public inquiry under Part 25 of the

Telecommunications Act 1997 about a proposal to make an access

determination relating to access to the declared service.

(2)

If:

(a) a declaration is in force under section 152AL immediately

after the commencement of this section; and

(b) no access determination has previously been made in relation

to access to the declared service;

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the Commission must, during the 12-month period beginning at the

commencement of this section, commence to hold a public inquiry

under Part 25 of the Telecommunications Act 1997 about a

proposal to make an access determination relating to access to the

declared service.

(3)

If:

(a) a declaration is in force under section 152AL; and

(b) an access determination has previously been made in relation

to access to the declared service;

the Commission must, during the period:

determination; and

(d) ending 6 months before the expiry date for the access

determination;

commence to hold a public inquiry under Part 25 of the

Telecommunications Act 1997 about a proposal to make an access

determination relating to access to the declared service.

(4) Subsection (3) has effect subject to subsections (5), (6) and (7).

(5)

If:

(a) a declaration (the current declaration) is in force under

section 152AL; and

(b) an access determination has previously been made in relation

to access to the declared service; and

further extended for a period of not more than 12 months;

and

(d) the Commission decides to allow the current declaration to

expire without making a new declaration under

section 152AL;

the Commission is not required to hold a public inquiry under

Part 25 of the Telecommunications Act 1997 about a proposal to

make an access determination relating to access to the declared

service.

(6)

If:

(a) a declaration is in force under section 152AL; and

(b) an access determination (the current determination) is in

force in relation to access to the declared service; and

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subsection 152ALA(7) in relation to the declaration;

then:

(d) the Commission may defer holding a public inquiry under

Part 25 of the Telecommunications Act 1997 about a proposal

to make an access determination relating to access to the

declared service until the Commission decides whether to

extend or further extend the expiry date for the declaration;

and

(e) if the Commission decides to extend or further extend the

expiry date for the declaration--the Commission must

commence to hold such a public inquiry before the expiry

date for the current access determination; and

(f) if the Commission decides not to extend or further extend the

expiry date for the declaration--the Commission is not

required to hold such a public inquiry.

(7)

If:

(a) a declaration is in force under section 152AL; and

(b) an access determination has previously been made in relation

to access to the declared service; and

relation to the declaration, the Commission decides to allow

the declaration to expire without making a new declaration

under section 152AL;

the Commission is not required to hold a public inquiry under

Part 25 of the Telecommunications Act 1997 about a proposal to

make an access determination relating to access to the declared

service.

Note:

If a service is a declared service under subsection 152AL(7) (which

deals with special access undertakings), there is no need for the

Commission to make a declaration of the service under

section 152AL.

(8) Despite anything else in this section, if:

(a) the Commission makes binding rules of conduct that relate to

access to a declared service; and

(b) no access determination is in force in relation to access to the

declared service;

the Commission must, within 30 days after the binding rules of

conduct are made, commence to hold a public inquiry under

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Part 25 of the Telecommunications Act 1997 about a proposal to

make an access determination relating to access to the declared

service.

152BCJ Combined inquiries about proposals to make access

determinations

(1) The Commission may decide to combine 2 or more public inquiries

of a kind mentioned in section 152BCH.

(2) If the Commission makes such a decision:

(a) the Commission may publish a single notice relating to the

combined inquiry under section 498 of the

Telecommunications Act 1997; and

(b) the Commission may prepare a single discussion paper about

the combined inquiry under section 499 of that Act; and

inquiry under section 501 of that Act; and

(d) the Commission must ensure that each inquiry is covered by

a report under section 505 of that Act, whether the report

relates:

(i) to a single one of those inquiries; or

(ii) to any 2 or more of those inquiries.

152BCK Time limit for making an access determination

(1) This section applies if the Commission commences to hold a public

inquiry under Part 25 of the Telecommunications Act 1997 about a

proposal to make an access determination.

(2) The Commission must make a final access determination within 6

months after that commencement.

Extension of decision-making period

(3) The Commission may, by written notice published on its website,

extend or further extend the 6-month period referred to in

subsection (2), so long as:

(a) the extension or further extension is for a period of not more

than 6 months; and

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(b) the notice includes a statement explaining why the

Commission has been unable to make a final access

determination within that 6-month period or that 6-month

period as previously extended, as the case may be.

Note:

The Commission may be required to make an interim access

determination--see section 152BCG.

Subdivision C--Variation or revocation of access

determinations

152BCN Variation or revocation of access determinations

(1) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a

power conferred on the Commission by section 152BC, but it

applies with the following changes.

(2) The Commission is not required to hold a public inquiry under

Part 25 the Telecommunications Act 1997 about a proposal to vary

an access determination if:

(a) the variation is of a minor nature; or

(b)

each:

(i) carrier or carriage service provider; and

(ii)

access

seeker;

whose interests are likely to be affected by the variation has

consented in writing to the variation.

(3) The Commission is not required to hold a public inquiry under

Part 25 of the Telecommunications Act 1997 about a proposal to

revoke an access determination if the Commission is satisfied that

each:

(a) carrier or service provider; and

(b)

access

seeker;

whose interests are likely to be affected by the revocation has

consented in writing to the revocation.

(4) If a fixed principles provision is included in an access

determination:

(a) a provision referred to in paragraph 152BCD(5)(a) or (b)

cannot be varied or removed; and

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(b) the access determination must not be varied in a manner that

is inconsistent with a provision referred to in paragraph

152BCD(5)(a) or (b).

(5) The Commission does not have a duty to consider whether to

exercise the power to vary or revoke an access determination,

whether the Commission is requested to do so by another person,

or in any other circumstances.

(6) If the Commission has commenced to hold a public inquiry under

Part 25 of the Telecommunications Act 1997 about a proposal to

vary an access determination, the Commission may alter the

proposed variation.

(7) Notice of the alteration is to be published in the same way in which

a notice relating to the public inquiry was published under

section 498 of the Telecommunications Act 1997.

(8) Subsection (7) does not apply in relation to an alteration if:

(a) the alteration is of a minor nature; or

(b)

each:

(i) carrier or carriage service provider; and

(ii)

access

seeker;

whose interests are likely to be affected by the alteration has

consented in writing to the alteration.

(9) Despite anything else in this section, if:

(a) the Commission makes binding rules of conduct that relate to

access to a declared service; and

(b) an access determination is in force in relation to access to the

declared service;

the Commission must, within 30 days after the binding rules of

conduct are made, commence to hold a public inquiry under

Part 25 of the Telecommunications Act 1997 about a proposal to

vary the access determination.

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Subdivision D--Compliance with access determinations

152BCO Carrier licence condition

A carrier licence held by a carrier is subject to a condition that the

carrier must comply with any access determinations that are

applicable to the carrier.

152BCP Service provider rule

(1) In addition to the rules mentioned in section 98 of the

Telecommunications Act 1997, the rule set out in subsection (2) of

this section is a service provider rule for the purposes of that Act.

(2) A carriage service provider must comply with any access

determinations that are applicable to the provider.

Subdivision E--Private enforcement of access determinations

152BCQ Private enforcement of access determinations

(1) If the Federal Court is satisfied, on the application of:

(a) an access seeker; or

(b) a carrier; or

that a person has engaged, is engaging, or is proposing to engage in

conduct that constitutes a contravention of an access determination,

the Court may make any or all of the following orders:

(d) an order granting an injunction on such terms as the Court

thinks appropriate:

(i) restraining the person from engaging in the conduct; or

(ii) if the conduct involves refusing or failing to do

something--requiring the person to do that thing;

(e) an order directing the person to compensate the applicant for

loss or damage suffered as a result of the contravention;

(f) any other order that the Court thinks appropriate.

(2) The revocation or expiry of an access determination does not affect

any remedy under subsection (1) in respect of a contravention of

the access determination that occurred when the access

determination was in force.

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(3) If the Federal Court has power under subsection (1) to grant an

injunction restraining a person from engaging in particular

conduct, or requiring a person to do anything, the Court may make

any other orders (including granting an injunction) that it thinks

appropriate against any other person who was involved in the

contravention concerned.

(4) A reference in this section to a person involved in the

contravention is a reference to a person who has:

(a) aided, abetted, counselled or procured the contravention; or

(b) induced the contravention, whether through threats or

promises or otherwise; or

in or a party to the contravention; or

(d) conspired with others to effect the contravention.

152BCR Consent injunctions

On an application for an injunction under section 152BCQ, the

Federal Court may grant an injunction by consent of all of the

parties to the proceedings, whether or not the Court is satisfied that

the section applies.

152BCS Interim injunctions

The Federal Court may grant an interim injunction pending

determination of an application under section 152BCQ.

152BCT Factors relevant to granting a restraining injunction

The power of the Federal Court to grant an injunction under

section 152BCQ restraining a person from engaging in conduct

may be exercised whether or not:

(a) it appears to the Court that the person intends to engage

again, or to continue to engage, in conduct of that kind; or

(b) the person has previously engaged in conduct of that kind; or

person if the first-mentioned person engages in conduct of

that kind.

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152BCU Factors relevant to granting a mandatory injunction

The power of the Federal Court to grant an injunction under

section 152BCQ requiring a person to do a thing may be exercised

whether or not:

(a) it appears to the Court that the person intends to refuse or fail

again, or to continue to refuse or fail, to do that thing; or

(b) the person has previously refused or failed to do that thing; or

person if the first-mentioned person refuses or fails to do that

thing.

152BCV Discharge or variation of injunction or other order

The Federal Court may discharge or vary an injunction or order

granted under this Subdivision.

Subdivision F--Register of Access Determinations

152BCW Register of Access Determinations

(1) The Commission is to maintain a register, to be known as the

includes all access determinations in force.

(2) The Register is to be maintained by electronic means.

(3) The Register is to be made available for inspection on the

Commission's website.

(4) The Register is not a legislative instrument.

(5) If the Commission is satisfied that:

(a) publication of a particular provision of an access

determination could reasonably be expected to prejudice

substantially the commercial interests of a person; and

(b) the prejudice outweighs the public interest in the publication

of the provision;

the Commission may remove the provision from the version of the

access determination that is included in the Register.

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(6) If the Commission does so, the Commission must include in the

Division 4A--Binding rules of conduct

Subdivision A--Commission may make binding rules of

conduct

152BD Binding rules of conduct

(1) The Commission may make written rules that:

(a) specify any or all of the terms and conditions on which a

carrier or carriage service provider is to comply with any or

all of the standard access obligations applicable to the carrier

or provider in relation to a specified declared service; or

(b) require a carrier or carriage service provider to comply with

any or all of the standard access obligations applicable to the

carrier or provider in relation to a specified declared service

in a manner specified in the rules;

if the Commission considers that there is an urgent need to do so.

Note:

For variation and revocation, see subsection 33(3) of the Acts

Interpretation Act 1901.

(2) Rules under subsection (1) are to be known as binding rules of

conduct.

(3) Binding rules of conduct may be of general application or may be

limited as provided in the rules.

(4) In particular, binding rules of conduct may be limited to:

(a) particular carriers or carriage service providers; or

(b) particular classes of carriers or carriage service providers; or

(d) particular classes of access seekers.

(5) Subsection (4) does not, by implication, limit subsection 33(3A) of

the Acts Interpretation Act 1901.

(6) The Commission is not required to observe any requirements of

procedural fairness in relation to the making of binding rules of

conduct.

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(7) The Commission does not have a duty to consider whether to make

binding rules of conduct, whether at the request of a person or in

any other circumstances.

(8) Binding rules of conduct may provide for the Commission to

perform functions, and exercise powers, under the rules.

(9) An instrument under subsection (1) is not a legislative instrument.

152BDAA Matters that the Commission must take into account

(1) The Commission must take the following matters into account in

making binding rules of conduct:

(a) whether the binding rules of conduct will promote the

long-term interests of end-users of carriage services or of

services supplied by means of carriage services;

(b) the legitimate business interests of a carrier or carriage

service provider who supplies, or is capable of supplying, the

declared service, and the carrier's or provider's investment in

facilities used to supply the declared service;

declared service;

(d) the direct costs of providing access to the declared service;

(e) the value to a person of extensions, or enhancement of

capability, whose cost is borne by someone else;

(f) the operational and technical requirements necessary for the

safe and reliable operation of a carriage service, a

telecommunications network or a facility;

(g) the economically efficient operation of a carriage service, a

telecommunications network or a facility.

(2) If a carrier or carriage service provider who supplies, or is capable

of supplying, the declared service supplies one or more other

eligible services, then, in making binding rules of conduct that are

applicable to the carrier or provider, as the case may be, the

Commission may take into account:

(a) the characteristics of those other eligible services; and

(b) the costs associated with those other eligible services; and

and

(d) the demand for those other eligible services.

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(3) The Commission may take into account any other matters that it

thinks are relevant.

(4) The Commission is not required by subsection (1) or (2) to take a

matter into account if it is not reasonably practicable for the

Commission to do so, having regard to the urgent need to make the

binding rules of conduct.

(5) For the purposes of taking a particular matter into account under

this section, the Commission is not required to obtain information,

or further information, that is not already in the possession of the

Commission if it is not reasonably practicable for the Commission

to do so, having regard to the urgent need to make the binding rules

of conduct.

(6) In this section:

eligible service has the same meaning as in section 152AL.

152BDA Restrictions on binding rules of conduct

(1) The Commission must not make binding rules of conduct that

would have any of the following effects:

(a) preventing a service provider who already has access to the

declared service from obtaining a sufficient amount of the

service to be able to meet the service provider's reasonably

anticipated requirements, measured at the time when the

access seeker made a request in relation to the service under

section 152AR;

(b) preventing a carrier or carriage service provider from

obtaining a sufficient amount of the service to be able to meet

the carrier's or provider's reasonably anticipated

requirements, measured at the time when the access seeker

made a request in relation to the service under

section 152AR;

pre-rules right, a sufficient level of access to the declared

service to be able to meet the person's actual requirements;

(d) depriving any person of a protected contractual right;

(e) resulting in an access seeker becoming the owner (or one of

the owners) of any part of a facility without the consent of

the owner of the facility;

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(f) requiring a person (other than an access seeker) to bear an

unreasonable amount of the costs of:

(i) extending or enhancing the capability of a facility; or

(ii) maintaining extensions to or enhancements of the

capability of a facility;

(g) requiring a carrier or carriage service provider to provide an

access seeker with access to a declared service if there are

reasonable grounds to believe that:

(i) the access seeker would fail, to a material extent, to

comply with the terms and conditions on which the

carrier or provider provides, or is reasonably likely to

provide, that access; or

(ii) the access seeker would fail, in connection with that

access, to protect the integrity of a telecommunications

network or to protect the safety of individuals working

on, or using services supplied by means of, a

telecommunications network or a facility.

(2) Examples of grounds for believing as mentioned in

subparagraph (1)(g)(i) include:

(a) evidence that the access seeker is not creditworthy; and

(b) repeated failures by the access seeker to comply with the

terms and conditions on which the same or similar access has

been provided (whether or not by the carrier or carriage

service provider).

(3) The Commission must not make binding rules of conduct that are

inconsistent with any of the standard access obligations that are, or

will be, applicable to a carrier or carriage service provider.

(3A) If a final migration plan is in force, the Commission must not make

binding rules of conduct that would have the effect of requiring

Telstra to engage in conduct in connection with matters covered by

the final migration plan.

(4) If the Commission makes binding rules of conduct that have the

effect of depriving a person (the second person) of a pre-rules right

to require the carrier or provider to provide access to the declared

service to the second person, the rules must also require the access

seeker:

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(a) to pay to the second person such amount (if any) as the

Commission considers is fair compensation for the

deprivation; and

(b) to reimburse the carrier or provider and the Commonwealth

for any compensation that the carrier or provider or the

Commonwealth agrees, or is required by a court order, to pay

to the second person as compensation for the deprivation.

(5) Binding rules of conduct are of no effect to the extent to which

they contravene subsection (1), (3) or (3A).

(6) In this section:

pre-rules right means a right under a contract that was in force

immediately before the binding rules of conduct came into force.

protected contractual right means a right under a contract that was

in force at the beginning of 13 September 1996.

152BDB Access agreements prevail over inconsistent binding rules

of conduct

If binding rules of conduct are applicable to the following parties:

(a) a carrier or carriage service provider;

(b) an access seeker;

the binding rules of conduct have no effect to the extent to which

they are inconsistent with an access agreement that is applicable to

those parties.

152BDC Duration of binding rules of conduct

(1) Binding rules of conduct come into force on the day specified in

the rules as the day on which the rules are to come into force.

(2) Binding rules of conduct must specify an expiry date for the rules.

(3) An expiry date must occur in the 12-month period beginning when

the rules were made.

(4) Unless sooner revoked, binding rules of conduct cease to be in

force on the expiry date for the rules.

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152BDCA Final migration plan prevails over inconsistent binding

rules of conduct

If a final migration plan is in force, binding rules of conduct have

no effect to the extent to which they would have the effect of:

(a) preventing Telstra from complying with the final migration

plan; or

(b) requiring Telstra to engage in conduct in connection with

matters covered by the final migration plan.

152BDD Commission must give copy of binding rules of conduct to

carrier etc.

If binding rules of conduct are limited to a particular carrier,

carriage service provider or access seeker, as soon as practicable

after making the rules, the Commission must give a copy of the

rules to the carrier, carriage service provider or access seeker, as

the case may be.

152BDE Access determinations that are inconsistent with binding

rules of conduct

If a provision of an access determination (other than a fixed

principles provision) is inconsistent with binding rules of conduct,

the provision has no effect to the extent of the inconsistency.

152BDEA Stay of binding rules of conduct

(1) Paragraphs 15(1)(a) and (b) and 15A(1)(a) and (b) of the

Administrative Decisions (Judicial Review) Act 1977 do not apply

to a decision of the Commission to make binding rules of conduct.

(2) If a person applies to the Federal Court under subsection 39B(1) of

the Judiciary Act 1903 for a writ or injunction in relation to a

decision of the Commission to make binding rules of conduct, the

Court must not make any orders staying or otherwise affecting the

operation or implementation of the decision pending the

finalisation of the application.

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Subdivision B--Compliance with binding rules of conduct

152BDF Carrier licence condition

A carrier licence held by a carrier is subject to a condition that the

carrier must comply with any binding rules of conduct that are

applicable to the carrier.

152BDG Service provider rule

(1) In addition to the rules mentioned in section 98 of the

Telecommunications Act 1997, the rule set out in subsection (2) of

this section is a service provider rule for the purposes of that Act.

(2) A carriage service provider must comply with any binding rules of

conduct that are applicable to the provider.

Subdivision C--Private enforcement of binding rules of

conduct

152BDH Private enforcement of binding rules of conduct

(1) If the Federal Court is satisfied, on the application of:

(a) an access seeker; or

(b) a carrier; or

that a person has engaged, is engaging, or is proposing to engage in

conduct that constitutes a contravention of binding rules of

conduct, the Court may make any or all of the following orders:

(d) an order granting an injunction on such terms as the Court

thinks appropriate:

(i) restraining the person from engaging in the conduct; or

(ii) if the conduct involves refusing or failing to do

something--requiring the person to do that thing;

(e) an order directing the person to compensate the applicant for

loss or damage suffered as a result of the contravention;

(f) any other order that the Court thinks appropriate.

(2) The revocation or expiry of binding rules of conduct does not

affect any remedy under subsection (1) in respect of a

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contravention of the rules that occurred when the rules were in

force.

(3) If the Federal Court has power under subsection (1) to grant an

injunction restraining a person from engaging in particular

conduct, or requiring a person to do anything, the Court may make

any other orders (including granting an injunction) that it thinks

appropriate against any other person who was involved in the

contravention concerned.

(4) A reference in this section to a person involved in the

contravention is a reference to a person who has:

(a) aided, abetted, counselled or procured the contravention; or

(b) induced the contravention, whether through threats or

promises or otherwise; or

in or a party to the contravention; or

(d) conspired with others to effect the contravention.

152BDI Consent injunctions

On an application for an injunction under section 152BDH, the

Federal Court may grant an injunction by consent of all of the

parties to the proceedings, whether or not the Court is satisfied that

the section applies.

152BDJ Interim injunctions

The Federal Court may grant an interim injunction pending

determination of an application under section 152BDH.

152BDK Factors relevant to granting a restraining injunction

The power of the Federal Court to grant an injunction under

section 152BDH restraining a person from engaging in conduct

may be exercised whether or not:

(a) it appears to the Court that the person intends to engage

again, or to continue to engage, in conduct of that kind; or

(b) the person has previously engaged in conduct of that kind; or

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person if the first-mentioned person engages in conduct of

that kind.

152BDL Factors relevant to granting a mandatory injunction

The power of the Federal Court to grant an injunction under

section 152BDH requiring a person to do a thing may be exercised

whether or not:

(a) it appears to the Court that the person intends to refuse or fail

again, or to continue to refuse or fail, to do that thing; or

(b) the person has previously refused or failed to do that thing; or

person if the first-mentioned person refuses or fails to do that

thing.

152BDM Discharge or variation of injunction or other order

The Federal Court may discharge or vary an injunction or order

granted under this Subdivision.

Subdivision D--Register of Binding Rules of Conduct

152BDN Register of Binding Rules of Conduct

(1) The Commission is to maintain a register, to be known as the

includes all binding rules of conduct in force.

(2) The Register is to be maintained by electronic means.

(3) The Register is to be made available for inspection on the

Commission's website.

(4) The Register is not a legislative instrument.

(5) If the Commission is satisfied that:

(a) publication of a particular provision of binding rules of

conduct could reasonably be expected to prejudice

substantially the commercial interests of a person; and

(b) the prejudice outweighs the public interest in the publication

of the provision;

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the Commission may remove the provision from the version of the

rules that is included in the Register.

(6) If the Commission does so, the Commission must include in the

Division 4B--Access agreements

152BE Access agreements

(1) For the purposes of this Part, an access agreement is an agreement,

where:

(a) the agreement is in writing; and

(b) the agreement is legally enforceable; and

(d) the parties to the agreement are:

(i) an access seeker; and

(ii) the carrier or carriage service provider who supplies, or

proposes to supply, the declared service; and

(e) any of the following subparagraphs applies:

(i) the agreement embodies any or all of the terms and

conditions on which the carrier or carriage service

provider is to comply with any or all of the standard

access obligations applicable to the carrier or provider;

(ii) if an access determination imposes requirements on a

carrier or carriage service provider in relation to access

to the declared service, as mentioned in paragraph

152BC(3)(e)--the agreement embodies any or all of the

terms and conditions on which the carrier or carriage

service provider is to comply with any or all of those

requirements;

(iii) the agreement embodies any other terms and conditions

of the access seeker's access to the declared service;

(iv) the agreement requires the carrier or carriage service

provider to comply with any or all of the standard

access obligations applicable to the carrier or provider

in a manner specified in the agreement;

(v) the agreement requires the carrier or carriage service

provider to extend or enhance the capability of a facility

by means of which the declared service is supplied;

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(vi) the agreement imposes other requirements on the carrier

or carriage service provider in relation to access to the

declared service;

(vii) the agreement specifies the terms and conditions on

which the carrier or carriage service provider is to

comply with any or all of those other requirements;

(viii) the agreement requires the access seeker to accept, and

pay for, access to the declared service;

(ix) the agreement provides that any or all of the obligations

referred to in section 152AR are not applicable to the

carrier or carriage service provider, either

unconditionally or subject to such conditions or

limitations as are specified in the agreement;

(x) the agreement restricts or limits the application to the

carrier or carriage service provider of any or all of the

obligations referred to in section 152AR;

(xi) the agreement deals with any other matter relating to

access to the declared service.

(1A) Paragraph (1)(b) does not apply to the agreement to the extent (if

any) to which the agreement is covered by subparagraph (1)(e)(ix)

or (x).

(2)

If:

(a) an agreement relates to access to an eligible service (within

the meaning of section 152AL); and

(b) at the time the agreement was entered into to, the eligible

service was a not a declared service; and

becomes a declared service; and

(d) if the agreement had been entered into immediately after the

declaration time, the agreement would have been an access

agreement;

the agreement becomes an access agreement immediately after the

declaration time.

(3)

If:

(a) an access agreement is varied by another agreement (the

variation agreement); and

(b) the variation agreement is in writing; and

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a reference in this Part to the access agreement is a reference to the

access agreement as varied by the variation agreement.

(4) It is immaterial whether an access agreement or variation

agreement was entered into before or after the commencement of

this section.

(5) An access agreement is not a legislative instrument.

(6) A variation agreement is not a legislative instrument.

152BEA Lodgment of access agreements with the Commission

(1)

If:

(a) an access agreement is covered by subsection 152BE(1); and

(b) the agreement was entered into after the commencement of

this section;

the carrier or carriage service provider who supplies, or proposes to

supply, the service to which the agreement relates must, within 28

days after the day on which the agreement was entered into, give

the Commission:

(d) a written statement setting out such information (if any)

about the agreement as is specified in an instrument in force

under subsection (4).

(2)

If:

(a) under subsection 152BE(2), an agreement becomes an access

agreement after the commencement of this section; and

(b) the agreement was entered into after the commencement of

this section;

the carrier or carriage service provider who supplies, or proposes to

supply, the service to which the agreement relates must, within 28

days after the day on which the agreement became an access

agreement, give the Commission:

(d) a written statement setting out such information (if any)

about the agreement as is specified in an instrument in force

under subsection (5).

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(3) If a variation agreement is entered into after the commencement of

this section, the carrier or carriage service provider who supplies,

or proposes to supply, the service to which the relevant access

agreement relates must, within 28 days after the day on which the

variation agreement was entered into, give the Commission:

(a) a copy of the variation agreement; and

(b) a written statement setting out such information (if any)

about the variation agreement as is specified in an instrument

in force under subsection (6).

(4) The Commission may, by writing, specify information for the

purposes of paragraph (1)(d).

(5) The Commission may, by writing, specify information for the

purposes of paragraph (2)(d).

(6) The Commission may, by writing, specify information for the

purposes of paragraph (3)(b).

(7) The Commission may, by writing, require information in a

statement given to the Commission under subsection (1), (2) or (3)

to be verified by statutory declaration.

(8) The Commission must publish an instrument under subsection (4),

(5), (6) or (7) on the Commission's website.

(9) The Commission may, before the end of the 28-day period referred

to in subsection (1), (2) or (3), extend that period.

(10) An instrument under subsection (4), (5), (6) or (7) is not a

legislative instrument.

(11) This section does not limit section 155.

152BEB Notification of termination of access agreement

(1) This section applies if:

(a) a copy of an access agreement has been given to the

Commission under section 152BEA; and

(b) the agreement is terminated, rescinded or cancelled before

the expiry of the agreement.

(2) The carrier or carriage service provider who supplied, or proposed

to supply, the service to which the agreement relates must, within

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28 days after the termination, rescission or cancellation, as the case

may be, notify the Commission, in writing, of the termination,

rescission or cancellation.

152BEC Carrier licence condition

A carrier licence held by a carrier is subject to a condition that the

carrier must comply with sections 152BEA and 152BEB.

152BED Service provider rule

(1) In addition to the rules mentioned in section 98 of the

Telecommunications Act 1997, the rule set out in subsection (2) of

this section is a service provider rule for the purposes of that Act.

(2) A carriage service provider must comply with sections 152BEA

and 152BEB.

161 Subdivision A of Division 5 of Part XIC

Repeal the Subdivision.

162 Subsection 152CBA(1)

Omit "an active", substitute "a".

163 Before subsection 152CBA(4)

Insert:

(3B) The undertaking may also state, in the event that the person

supplies the service (whether to itself or to other persons), the

person:

(a) will engage in specified conduct in relation to access to the

service; and

(b) will do so on such terms and conditions as are specified in

the undertaking.

164 Subsection 152CBA(10)

Repeal the subsection, substitute:

(10) If the undertaking expires, this Part does not prevent the person

from giving a fresh special access undertaking in the same terms as

the expired undertaking.

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165 Before subsection 152CBA(11)

Insert:

Commission may perform functions or exercise powers

(10A) If the undertaking provides for the Commission to perform

functions or exercise powers in relation to the undertaking, the

Commission may perform those functions, and exercise those

powers, in accordance with the undertaking.

166 After section 152CBA

Insert:

152CBAA Fixed principles terms and conditions

(1) A special access undertaking may provide that a term or condition

specified in the undertaking is a fixed principles term or condition

for a period that, under the undertaking, is expressed to be the

notional fixed period for the fixed principles term or condition.

(2) If the undertaking does so, the undertaking may also provide that

one or more specified circumstances are qualifying circumstances

in relation to the fixed principles term or condition.

(3) The notional fixed period for a fixed principles term or condition

must:

(a) begin when the undertaking comes into operation; and

(b)

end:

(i) at the expiry time of the undertaking; or

(ii) if an earlier time is ascertained in accordance with the

undertaking--at that earlier time; or

(iii) if a later time is ascertained in accordance with the

undertaking--at that later time.

(4)

If:

(a) a fixed principles term or condition is specified in a special

access undertaking; and

(b) the undertaking ceases to be in operation before the end of

the notional fixed period for the fixed principles term or

condition;

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the fixed principles term or condition ceases to be in operation

when the undertaking ceases to be in operation.

Note:

Even though the fixed principles term or condition ceases to be in

operation when the undertaking ceases to be in operation,

subsection (5) ensures that a fresh undertaking can include an identical

fixed principles term or condition.

Consequences--acceptance of other undertaking

(5)

If:

(a) a special access undertaking (the original undertaking) given

by a person in relation to a particular service contained a

fixed principles term or condition (the original fixed

principles term or condition); and

(b)

the

original undertaking was accepted by the Commission;

and

principles term or condition, the person gives the

Commission another special access undertaking (the other

undertaking) in relation to the service; and

(d) the other undertaking contains a fixed principles term or

condition (the corresponding fixed principles term or

condition) that is identical to the original fixed principles

term or condition; and

(e) the notional fixed period for the corresponding fixed

principles term or condition ends at or before the end of the

notional fixed period for the original fixed principles term or

condition; and

(f) if there are qualifying circumstances in relation to the

original fixed principles term or condition:

(i) there are qualifying circumstances in relation to the

corresponding fixed principles term or condition; and

(ii) those qualifying circumstances are identical to the

qualifying circumstances in relation to the original fixed

principles term or condition; and

(g) if there are qualifying circumstances in relation to the

original fixed principles term or condition--none of those

circumstances exist;

then:

(h) the Commission must not reject the other undertaking for a

reason that concerns:

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(i) the corresponding fixed principles term or condition; or

(ii) the notional fixed period for the corresponding fixed

principles term or condition; or

(iii) if there are qualifying circumstances in relation to the

corresponding fixed principles term or condition--the

specification of those circumstances; and

(i) paragraphs 152CBD(2)(a), (b), (c) and (ca) do not apply to:

(i) the corresponding fixed principles term or condition; or

(ii) the notional fixed period for the corresponding fixed

principles term or condition; or

(iii) if there are qualifying circumstances in relation to the

corresponding fixed principles term or condition--those

circumstances; and

(j) if the corresponding fixed principles term or condition is the

only term or condition contained in the other undertaking--

paragraph 152CBD(2)(d) does not apply to the other

undertaking; and

(k) if the corresponding fixed principles term or condition is not

the only term or condition contained in the other

undertaking--subparagraph 152CBD(2)(d)(ii) does not

require the Commission to consider any submissions to the

extent to which they relate to:

(i) the corresponding fixed principles term or condition; or

(ii) the notional fixed period for the corresponding fixed

principles term or condition; or

(iii) if there are qualifying circumstances in relation to the

corresponding fixed principles term or condition--those

circumstances.

Consequences--variation of undertaking

(6)

If:

(a) a special access undertaking given by a person in relation to a

particular service contains a fixed principles term or

condition (the original fixed principles term or condition);

and

(b) the undertaking has been accepted by the Commission; and

principles term or condition, the person gives the

Commission a variation of the undertaking; and

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(d) the varied undertaking contains a fixed principles term or

condition (the corresponding fixed principles term or

condition) that is identical to the original fixed principles

term or condition; and

(e) the notional fixed period for the corresponding fixed

principles term or condition is identical to the notional fixed

period for the original fixed principles term or condition; and

(f) if there are qualifying circumstances in relation to the

original fixed principles term or condition:

(i) there are qualifying circumstances in relation to the

corresponding fixed principles term or condition; and

(ii) those qualifying circumstances are identical to the

qualifying circumstances in relation to the original fixed

principles term or condition; and

(g) if there are qualifying circumstances in relation to the

original fixed principles term or condition--none of those

circumstances exist;

the Commission must not reject the variation for a reason that

concerns:

(h) the corresponding fixed principles term or condition; or

(i) the notional fixed period for the corresponding fixed

principles term or condition; or

(j) if there are qualifying circumstances in relation to the

corresponding fixed principles term or condition--the

specification of those circumstances.

167 Before paragraph 152CBC(6)(a)

Insert:

(aa)

if:

(i) the Commission has given a notice under

section 152CBDA in relation to the undertaking; and

(ii) no varied undertaking was given to the Commission in

response to the notice;

a day in the period specified in the notice; and

(ab)

if:

(i) the Commission has given a notice under

section 152CBDA in relation to the undertaking; and

(ii) a varied undertaking was given to the Commission in

response to the notice; and

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(iii) the Commission did not publish the varied undertaking

under paragraph 152CBD(2)(d);

a day in the period:

(iv) beginning on the day in which the notice was given; and

(v) ending when the varied undertaking was given to the

Commission in response to the notice; and

(ac)

if:

(i) the Commission has given a notice under

section 152CBDA in relation to the undertaking; and

(ii) a varied undertaking was given to the Commission in

response to the notice; and

(iii) the varied undertaking was published under paragraph

152CBD(2)(d);

a day in the period:

(iv) beginning on the day on which the notice was given;

and

(v) ending at the end of the time specified by the

Commission when it published the varied undertaking;

and

168 Paragraph 152CBC(6)(a)

After "if", insert "paragraph (ac) does not apply and".

169 After section 152CBC

Insert:

152CBCA Serial undertakings

If:

(a) a person gives a special access undertaking (the first special

access undertaking) to the Commission; and

(b) the Commission rejects the first special access undertaking;

and

undertaking to the Commission; and

(d) the Commission is satisfied that any or all of the provisions

of the first special access application are materially similar to

any or all of the provisions of the other special access

undertaking;

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the Commission may refuse to consider the other special access

undertaking.

170 After paragraph 152CBD(2)(c)

Insert:

(ca) if subsection 152CBA(3B) applies--the Commission is

satisfied that:

(i) the conduct referred to in paragraph 152CBA(3B)(a)

will promote the long-term interests of end-users of

carriage services or of services supplied by means of

carriage services; and

(ii) the terms and conditions referred to in paragraph

152CBA(3B)(b) are reasonable; and

171 At the end of section 152CBD

Add:

(3) Subsection (2) has effect subject to subsection 152CBAA(5) (fixed

principles terms and conditions).

(4) If the undertaking provides that a term or condition specified in the

undertaking is a fixed principles term or condition for a period

that, under the undertaking, is expressed to be the notional fixed

period for the fixed principles term or condition, the Commission

must refuse to accept the undertaking if the Commission considers

that:

(a) the fixed principles term or condition should not be a fixed

principles term or condition; or

(b) that notional fixed period should not be the notional fixed

period for the fixed principles term or condition; or

circumstances are qualifying circumstances in relation to the

fixed principles term or condition--any of the qualifying

circumstances should not be qualifying circumstances in

relation to the fixed principles term or condition; or

(d) if the undertaking does not provide that particular

circumstances are qualifying circumstances in relation to the

fixed principles term or condition--those circumstances

should be qualifying circumstances in relation to the fixed

principles term or condition.

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(5) Subsection (4) has effect subject to subsection 152CBAA(5) (fixed

principles terms and conditions).

(6) If a special access undertaking is given to the Commission in

response to a notice under section 152CBDA, the Commission is

not required to publish the undertaking under paragraph (2)(d) of

this section unless the Commission is satisfied that:

(a) the variations specified in the notice are not of a minor

nature; or

(b) the variations specified in the notice are likely to have a

material adverse effect on the legitimate commercial interests

of any person.

172 After section 152CBD

Insert:

152CBDA Variation of special access undertaking

(1) This section applies if a person gives a special access undertaking

(the original undertaking) to the Commission.

(2) The Commission may give the person a written notice stating that,

if the person:

(a) makes such variations to the original undertaking as are

specified in the notice; and

(b) gives the varied undertaking to the Commission within the

period specified in the notice;

the Commission will consider the varied undertaking under

section 152CBC as if the varied undertaking had been given to the

Commission instead of the original undertaking.

(3) If the person gives the Commission a varied undertaking in

response to the notice, the Commission must consider the varied

undertaking under section 152CBC as if the varied undertaking had

been given to the Commission instead of the original undertaking.

(4) The Commission does not have a duty to consider whether to give

a notice under subsection (2).

173 After subsection 152CBG(4)

Insert:

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152 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

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(4A) Subsection (4) has effect subject to subsection 152CBAA(6) (fixed

principles terms and conditions).

174 After section 152CBI

Insert:

152CBIA Special access undertakings prevail over inconsistent

access determinations

An access determination has no effect to the extent to which it is

inconsistent with a special access undertaking that is in operation.

152CBIB Special access undertakings prevail over inconsistent

binding rules of conduct

Binding rules of conduct have no effect to the extent to which they

are inconsistent with a special access undertaking that is in

operation.

152CBIC Access agreements prevail over special access

undertakings

A special access undertaking has no effect to the extent to which it

is inconsistent with an access agreement.

175 Subsection 152CC(2)

Omit "may", substitute "is to".

176 Subsections 152CC(3), (4) and (5)

Repeal the subsections, substitute:

(3) The Register is to be made available for inspection on the

Commission's website.

(4) The Register is not a legislative instrument.

177 Sections 152CE, 152CF, 152CG and 152CGA

Repeal the sections.

178 Section 152CGB

Repeal the section.

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No. , 2010 153

179 Subsection 152CH(1) (notes 1A, 1B, 2 and 3)

Repeal the notes.

180 Subsection 152CH(1) (note 5)

Repeal the note, substitute:

Note 5:

Subsection 152CI(2) provides that a provision of an access

determination has no effect to the extent that the provision is

inconsistent with any Ministerial pricing determination.

Note 5A: Subsection 152CI(3) provides that a provision of binding rules of

conduct have no effect to the extent that the provision is inconsistent

with any Ministerial pricing determination.

181 Subsection 152CH(1) (note 6)

Repeal the note.

182 Subsection 152CI(2)

Repeal the subsection, substitute:

(2) If a provision of an access determination is inconsistent with any

Ministerial pricing determination, the provision has no effect to the

extent of the inconsistency.

(3) If a provision of binding rules of conduct is inconsistent with any

Ministerial pricing determination, the provision has no effect to the

extent of the inconsistency.

Note:

The heading to section 152CI is altered by omitting "and codes" and substituting ",

access determinations and binding rules of conduct".

183 Subsection 152CJ(2)

Omit "may", substitute "is to".

184 Subsections 152CJ(3), (4) and (5)

Repeal the subsections, substitute:

(3) The Register is to be made available for inspection on the

Commission's website.

(4) The Register is not a legislative instrument.

185 Division 8 of Part XIC

Repeal the Division.

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154 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

Bill 2010 No. , 2010

186 Division 9 of Part XIC

Repeal the Division.

187 Paragraph 152EF(1)(b)

Repeal the paragraph, substitute:

(b) a requirement imposed by an access determination; or

(ba) a requirement imposed by binding rules of conduct;

188 Subparagraph 152ELA(3)(a)(i)

Omit "152AT(1) or".

189 Subparagraph 152ELA(3)(a)(ii)

Omit "or" (last occurring).

190 Subparagraph 152ELA(3)(a)(iii)

Repeal the subparagraph.

191 Paragraph 152ELA(3)(b)

Repeal the paragraph.

192 Paragraph 152ELA(3)(c)

Omit "this Part;", substitute "this Part.".

193 Paragraph 152ELA(3)(d)

Repeal the paragraph.

194 Subsections 152ELA(6) and (7)

Repeal the subsections, substitute:

(6) Subsection (5) does not limit subsection (1).

195 Before section 152EM

Insert:

152ELD Compensation for acquisition of property

(1) If the operation of this Part would result in an acquisition of

property from a person otherwise than on just terms, the

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No. , 2010 155

Commonwealth is liable to pay a reasonable amount of

compensation to the person.

(2) If the Commonwealth and the person do not agree on the amount

of the compensation, the person may institute proceedings in a

court of competent jurisdiction for the recovery from the

Commonwealth of such reasonable amount of compensation as the

court determines.

(3) In this section:

acquisition of property has the same meaning as in paragraph

51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the

Constitution.

this Part includes Division 2 of Part 2 of Schedule 1 to the

Telecommunications Legislation Amendment (Competition and

Consumer Safeguards) Act 2010.

196 Subsection 155AAA(21) (subparagraph (c)(i) of the

definition of protected information)

Omit "152BT, 152BZ,".

197 Subsection 171B(1)

Omit "and Division 8 of Part XIC have no effect to the extent (if any) to

which they purport", substitute "has no effect to the extent (if any) to

which it purports".

Note:

The heading to section 171B is altered by omitting "and Division 8 of Part XIC do"

and substituting "does".

Division 2--Transitional provisions

198 Definitions

In this Division:

access agreement has the same meaning as in Part XIC of the

Competition and Consumer Act 2010 as amended by this Part.

access determination has the same meaning as in Part XIC of the

Competition and Consumer Act 2010 as amended by this Part.

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156 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

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binding rules of conduct has the same meaning as in Part XIC of the

Competition and Consumer Act 2010 as amended by this Part.

199 Transitional--certificates under subclause 33(3) of

Schedule 1 to the Telecommunications Act 1997

(1)

This item applies to a certificate if:

(a) the certificate was issued under subclause 33(3) of

Schedule 1 to the Telecommunications Act 1997 before the

commencement of this item; and

(b) the certificate was in force immediately before that

commencement.

(2)

The certificate has effect, after the commencement of this item, as if it

had been issued by the ACCC under subclause 33(3) of Schedule 1 to

the Telecommunications Act 1997 as amended by this Part.

200 Transitional--certificates under subclause 34(3) of

Schedule 1 to the Telecommunications Act 1997

(1)

This item applies to a certificate if:

(a) the certificate was issued under subclause 34(3) of

Schedule 1 to the Telecommunications Act 1997 before the

commencement of this item; and

(b) the certificate was in force immediately before that

commencement.

(2)

The certificate has effect, after the commencement of this item, as if it

had been issued by the ACCC under subclause 34(3) of Schedule 1 to

the Telecommunications Act 1997 as amended by this Part.

201 Transitional--certificates under subclause 35(3) of

Schedule 1 to the Telecommunications Act 1997

(1)

This item applies to a certificate if:

(a) the certificate was issued under subclause 35(3) of

Schedule 1 to the Telecommunications Act 1997 before the

commencement of this item; and

(b) the certificate was in force immediately before that

commencement.

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Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 157

(2)

The certificate has effect, after the commencement of this item, as if it

had been issued by the ACCC under subclause 35(3) of Schedule 1 to

the Telecommunications Act 1997 as amended by this Part.

202 Transitional--ordinary class exemptions from standard

access obligations

(1)

This item applies to a determination that:

(a) was made under section 152AS of the Competition and

Consumer Act 2010; and

(b) was in force immediately before the commencement of this

item.

(2) Despite:

(a) the repeal of section 152AS of the Competition and

Consumer Act 2010 effected by this Part; and

(b) the amendment of paragraph 152BBAA(1)(a) of that Act

made by this Part;

that section and that paragraph continue to apply, in relation to the

determination, as if that repeal had not happened and that amendment

had not been made. This subitem has effect subject to the following

subitem.

(3)

The determination ceases to have effect, to the extent to which it relates

to a particular declared service, when the first access determination

relating to access to the declared service comes into force.

203 Transitional--ordinary individual exemptions from

standard access obligations

(1)

This item applies to a determination that:

(a) was made under section 152AT of the Competition and

Consumer Act 2010; and

(b) was in force immediately before the commencement of this

item.

(2) Despite:

(a) the repeal of section 152AT of the Competition and

Consumer Act 2010 effected by this Part; and

(b) the amendment of paragraph 152BBAA(1)(b) of that Act

made by this Part;

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Part 2 Telecommunications access regime

158 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

Bill 2010 No. , 2010

that section and that paragraph continue to apply, in relation to the

determination, as if that repeal had not happened and that amendment

had not been made. This subitem has effect subject to the following

subitem.

(3)

The determination ceases to have effect, to the extent to which it relates

to a particular declared service, when the first access determination

relating to access to the declared service comes into force.

204 Transitional--ordinary access undertakings given to the

Commission before 15 September 2009

(1)

This item applies to an ordinary access undertaking that:

(a) was given by a carrier or carriage service provider to the

Commission under section 152BS of the Competition and

Consumer Act 2010 before 15 September 2009; and

(b) was accepted by the Commission under section 152BU of

that Act before the commencement of this item; and

this item.

(2)

Despite the following repeals effected, and amendments made, by this

Part:

(a) the repeal of Subdivision A of Division 5 of Part XIC of the

Competition and Consumer Act 2010;

(b) the amendment of the definition of access undertaking in

section 152AC of that Act;

(d) the amendment of subparagraph (c)(i) of the definition of

protected information in subsection 155AAA(21) of that

Act;

that Subdivision and those definitions continue to apply, in relation to

the undertaking, as if those repeals had not happened and those

amendments had not been made. This subitem has effect subject to the

following subitems.

(3)

The undertaking cannot be varied so as to extend its duration.

(4)

If the undertaking adopts a set of model terms and conditions set out in

the telecommunications access code, then, despite the repeal of

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No. , 2010 159

sections 152BJ and 152BK of the Competition and Consumer Act 2010,

those sections continue to apply, in relation to the undertaking, as if

those repeals had not happened.

(5)

If the undertaking is inconsistent with an access agreement, the

undertaking has no effect to the extent of the inconsistency.

205 Transitional--ordinary access undertakings given to the

Commission on or after 15 September 2009

(1)

This item applies to an ordinary access undertaking that:

(a) was given to the Commission under section 152BS of the

Competition and Consumer Act 2010 on or after

15 September 2009; and

(b) was accepted by the Commission under section 152BU of

that Act before the commencement of this item; and

this item.

(2)

Despite the following repeals effected, and amendments made, by this

Part:

(a) the repeal of Subdivision A of Division 5 of Part XIC of the

Competition and Consumer Act 2010;

(b) the amendment of the definition of access undertaking in

section 152AC of that Act;

(d) the amendment of subparagraph (c)(i) of the definition of

protected information in subsection 155AAA(21) of that

Act;

that Subdivision and those definitions continue to apply, in relation to

the undertaking, as if those repeals had not happened and those

amendments had not been made. This subitem has effect subject to the

following subitems.

(3)

The undertaking cannot be varied so as to extend its duration.

(4)

The undertaking ceases to have effect, to the extent to which it relates to

a particular declared service, when the first access determination

relating to access to the declared service comes into force.

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160 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

Bill 2010 No. , 2010

(5)

If the undertaking adopts a set of model terms and conditions set out in

the telecommunications access code, then, despite the repeal of

sections 152BJ and 152BK of the Competition and Consumer Act 2010,

those sections continue to apply, in relation to the undertaking, as if

those repeals had not happened.

(6)

If the undertaking is inconsistent with an access agreement, the

undertaking has no effect to the extent of the inconsistency.

206 Transitional--continuity of special access undertakings

The amendment of subsection 152CBA(1) of the Competition and

Consumer Act 2010 made by this Part does not affect the continuity of a

special access undertaking that was in operation immediately before the

commencement of this item.

207 Transitional--arbitration of access disputes

(1)

Despite the following repeals effected, and amendments made, by this

Part:

(a) the repeal of Division 8 of Part XIC of the Competition and

Consumer Act 2010;

(b) the amendment of the definition of pre-request right in

subsection 152AR(12) of that Act;

(d) the repeal of section 152CGB of that Act;

(e) the amendments of section 152ELA of that Act;

(f) the amendment of subsection 171B(1) of that Act;

that Division, that definition, and those sections and subsections

continue to apply as if those repeals had not happened and those

amendments had not been made. This subitem has effect subject to the

following subitems.

(2) If:

(a) a declared service is supplied, or proposed to be supplied, by

a carrier or a carriage service provider; and

(b) one or more standard access obligations apply, or will apply,

to the carrier or provider in relation to the declared service;

and

Amendments Schedule 1

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Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 161

provider about one or more aspects of access to the declared

service;

then:

(d) if the declared service was a declared service immediately

before the commencement of this item--a person is not

entitled to notify an access dispute to the Commission under

section 152CM of the Competition and Consumer Act 2010

at any time after the first final access determination relating

to access to the declared service has come into force; or

(e) otherwise--a person is not entitled to notify an access dispute

to the Commission under section 152CM of the Competition

and Consumer Act 2010.

(3) If:

(a) a declared service is supplied, or proposed to be supplied, by

a carrier or a carriage service provider; and

(b) one or more standard access obligations apply, or will apply,

to the carrier or provider in relation to the declared service;

and

provider about the terms and conditions on which the carrier

or provider is to comply with those obligations;

then:

(d) if the declared service was a declared service immediately

before the commencement of this item--a person is not

entitled to notify an access dispute to the Commission under

section 152CM of the Competition and Consumer Act 2010

at any time after the first final access determination relating

to access to the declared service has come into force; or

(e) otherwise--a person is not entitled to notify an access dispute

to the Commission under section 152CM of the Competition

and Consumer Act 2010.

(3A) If:

(a) a declared service is supplied, or proposed to be supplied, by

Telstra; and

(b) one or more standard access obligations apply, or will apply,

to Telstra in relation to the declared service; and

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162 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

Bill 2010 No. , 2010

service:

(i) is in force between an NBN corporation (within the

meaning of section 577BA of the Telecommunications

Act 1997) and Telstra; and

(ii) is specified in an undertaking in force under

section 577A of the Telecommunications Act 1997; and

(d) the access agreement was entered into before the first final

access determination relating to access to the declared service

has come into force;

neither Telstra nor the NBN corporation is entitled to notify an access

dispute to the Commission under section 152CM of the Competition

and Consumer Act 2010 in relation to the declared service.

(4)

A final determination made by the Commission under Division 8 of

Part XIC of the Competition and Consumer Act 2010 after the

commencement of this item must specify an expiry date for the

determination. Unless sooner revoked, the determination ceases to be in

force on the expiry date for the determination.

(5) If:

(a) an access agreement relating to access to a declared service is

entered into before the first final access determination

relating to access to the declared service has come into force;

and

(b) the access agreement is inconsistent with a determination

under Division 8 of Part XIC of the Competition and

Consumer Act 2010;

the access agreement has no effect to the extent of the

inconsistency.

(6)

If a determination under Division 8 of Part XIC of the Competition and

Consumer Act 2010:

(a) does not have an expiry date; and

(b) is inconsistent with a final access determination;

the first-mentioned determination has no effect to the extent of the

inconsistency.

(7) If:

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Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 163

(a) a final access determination is inconsistent with a

determination under Division 8 of Part XIC of the

Competition and Consumer Act 2010; and

(b) the determination under Division 8 of Part XIC of the

Competition and Consumer Act 2010 has an expiry date;

the final access determination has no effect to the extent of the

inconsistency.

(8)

If an interim access determination is inconsistent with a determination

under Division 8 of Part XIC of the Competition and Consumer Act

2010, the interim access determination has no effect to the extent of the

inconsistency.

(9)

If a determination under Division 8 of Part XIC of the Competition and

Consumer Act 2010:

(a) does not have an expiry date; and

(b) is inconsistent with binding rules of conduct;

the determination has no effect to the extent of the inconsistency.

(10) If:

(a) binding rules of conduct are inconsistent with a

determination under Division 8 of Part XIC of the

Competition and Consumer Act 2010; and

(b) the determination under Division 8 of Part XIC of the

Competition and Consumer Act 2010 has an expiry date;

the binding rules of conduct have no effect to the extent of the

inconsistency.

(11)

If a determination under Division 8 of Part XIC of the Competition and

Consumer Act 2010 relating to access to a declared service is

inconsistent with an access agreement that was entered into after the

first final access determination relating to access to the declared service

has come into force, the first-mentioned determination has no effect to

the extent of the inconsistency.

(12)

The Commission may, at any time, terminate an arbitration under

Division 8 of Part XIC of the Competition and Consumer Act 2010

(without making a determination under that Division) if the

Commission commences to hold a public inquiry under Part 25 of the

Telecommunications Act 1997 about a proposal to make an access

determination relating to access to the declared service concerned.

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Part 2 Telecommunications access regime

164 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

Bill 2010 No. , 2010

208 Transitional--compliance with standard access

obligations

(1)

This item applies if:

(a) a carrier or carriage service provider is required to comply

with any or all of the standard access obligations; and

(b)

either:

(i) an ordinary access undertaking given by the carrier or

carriage service provider is in operation, and the

undertaking specifies any or all of the terms and

conditions on which the carrier or carriage service

provider is to comply with any of the standard

obligations; or

(ii) a determination made by the Commission under

Division 8 of Part XIC of the Competition and

Consumer Act 2010 is in force, and the determination

specifies any or all of the terms and conditions on which

the carrier or carriage service provider is to comply with

any of the standard obligations.

(2)

The carrier or carriage service provider must comply with the

obligations mentioned in paragraph (1)(a):

(a) if an access agreement between:

(i) the carrier or carriage service provider, as the case

requires; and

(ii) the access seeker;

is in operation and specifies terms and conditions about a

particular matter--on such terms conditions relating to that

matter as are set out in the agreement; or

(b)

if:

(i) paragraph (a) does not apply in relation to terms and

conditions about a particular matter; and

(ii) an access undertaking given by the carrier or carriage

service provider is in operation, and the undertaking

specifies terms and conditions about that matter--on

such terms and conditions relating to that matter as are

set out in the undertaking; or

(c)

if:

(i) neither paragraph (a) nor (b) applies to terms and

conditions about a particular matter; and

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Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 165

(ii) binding rules of conduct specify terms and conditions

about that matter;

on such terms and conditions relating to that matter as are set

out in the binding rules of conduct; or

(d)

if:

(i) none of the above paragraphs applies to terms and

conditions about a particular matter; and

(ii) a determination made by the Commission under

Division 8 of Part XIC of the Competition and

Consumer Act 2010 specifies terms and conditions

about that matter;

on such terms and conditions relating to that matter as are set

out in the determination; or

(e)

if:

(i) none of the above paragraphs applies to terms and

conditions about a particular matter; and

(ii) an access determination specifies terms and conditions

about that matter;

on such terms and conditions relating to that matter as are set

out in the access determination.

Note 1: Subitems 204(5), 205(6) and 207(5) to (11) of this Schedule, and sections 152BCC,

152BDB, 152BDE, 152CBIA, 152CBIB, 152CBIC and 152CGB of the Competition

and Consumer Act 2010, which deal with inconsistency, should be read and applied

before this item is read and applied.

Note 2: Even though subitem (2) mentions binding rules of conduct, binding rules of conduct

may only be made if the Commission considers that there is an urgent need to do so.

(3)

Section 152AY of the Competition and Consumer Act 2010 as amended

by this Part does not apply in relation to compliance by the carrier or

carriage service provider with the standard access obligations.

209 Transitional--hindering the fulfilment of an obligation

imposed by an arbitration determination

In addition to its effect apart from this item, section 152EF of the

Competition and Consumer Act 2010 as amended by this Part also has

the effect it would have if the reference in paragraph (1)(a) of that

section to a standard access obligation included a reference to an

obligation imposed by a determination made by the Commission under

Division 8 of Part XIC of the Competition and Consumer Act 2010.

Amendments Schedule 1

Anti-competitive conduct Part 3

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 167

Part 3--Anti-competitive conduct

Division 1--Amendments

Competition and Consumer Act 2010

211 At the end of section 151AF (before the note)

Add:

; (d) content services.

212 Subsections 151AKA(9) and (10)

Repeal the subsections (including the note), substitute:

Procedural fairness

(9) The Commission is not required to observe any requirements of

procedural fairness in relation to the issue of a Part A competition

notice.

Note:

For the effect of a Part A competition notice, see subsections

151BY(3), 151CB(3), 151CC(3) and 151CE(5).

Division 2--Application

213 Application--competition notices

The amendment of section 151AKA of the Competition and Consumer

Act 2010 made by this Part applies in relation to Part A competition

notices issued after the commencement of this item.

Schedule 1 Amendments

Part 4 Universal service regime

168 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

Bill 2010 No. , 2010

Part 4--Universal service regime

Telecommunications (Consumer Protection and Service

Standards) Act 1999

214 Subsection 5(2)

Insert:

payphone carriage service means a carriage service supplied by

means of a payphone.

215 Subsection 5(2)

Insert:

price-related terms and conditions means terms and conditions

relating to price or a method of ascertaining price.

216 Subsection 5(2)

Insert:

VOIP service means a carriage service that enables a voice call to

originate on customer equipment by means of the internet protocol.

217 After section 6

Insert:

6A When a standard telephone service is supplied in fulfilment of

the universal service obligation

Mobile and VOIP services

(1) For the purposes of this Act, if:

(a) a standard telephone service is supplied, or proposed to be

supplied, to a customer by a primary universal service

provider; and

(b) the service is:

(i) a public mobile telecommunications service; or

(ii) a VOIP service;

the service is taken not to be supplied in fulfilment of the universal

service obligation unless, before the customer entered into an

Amendments Schedule 1

Universal service regime Part 4

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 169

agreement with the primary universal service provider for the

supply of the service:

is supplied in fulfilment of the universal service obligation;

and

(d) the notice complied with such requirements (if any) as are

specified in a determination under subsection (2).

(2) The ACMA may, by legislative instrument, determine

requirements for the purposes of paragraph (1)(d).

Other services

(3) For the purposes of this Act, if:

(a) a standard telephone service (the relevant service) is

supplied, or proposed to be supplied, to a customer by a

primary universal service provider; and

(b) the relevant service is not:

(i) a public mobile telecommunications service; or

(ii) a VOIP service;

the relevant service is taken not to be supplied in fulfilment of the

universal service obligation if, before the customer entered into an

agreement with the primary universal service provider for the

supply of the relevant service:

another standard telephone service by the provider on the

basis that the other standard telephone service would be

supplied in fulfilment of the universal service obligation; and

(d) the customer has, by written notice given to the provider,

acknowledged that the relevant service is not supplied in

fulfilment of the universal service obligation; and

(e) the notice complied with such requirements (if any) as are

specified in a determination under subsection (4).

(4) The ACMA may, by legislative instrument, determine

requirements for the purposes of paragraph (3)(e).

218 After section 8B

Insert:

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Part 4 Universal service regime

170 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

Bill 2010 No. , 2010

8BA Special meaning of standard telephone service

(1) A reference in this Part to a standard telephone service is a

reference to a standard telephone service (within the meaning of

section 6) that has the characteristics (if any) specified in a

determination under subsection (2).

(2) The Minister may, by legislative instrument, determine specified

characteristics for the purposes of subsection (1).

219 Subsections 9(2) and (3)

Repeal the subsections, substitute:

(2) The obligation mentioned in paragraph (1)(a) includes the

obligation to supply standard telephone services to people in

Australia on request.

(2A) The obligation mentioned in paragraph (1)(b) includes the

obligation to supply, install and maintain payphones in Australia.

(2B) The obligation mentioned in paragraph (1)(c) includes the

obligation to supply prescribed carriage services to people in

Australia on request.

(2C) An obligation does not arise under paragraph (1)(a) or

subsection (2) in relation to the supply of a standard telephone

service to a person on request unless the request complies with the

requirements (if any) set out in a determination under

subsection (2D).

(2D) The Minister may, by legislative instrument, determine

requirements for the purposes of subsection (2C).

(2E) An obligation does not arise under paragraph (1)(a) or

subsection (2) in relation to the supply of a standard telephone

service in the circumstances (if any) specified in a determination

under subsection (3).

(3) The Minister may, by legislative instrument, determine

circumstances for the purposes of subsection (2E).

220 Subsection 9(4)

Omit "(2)(a)", substitute "(1)(a) or subsection (2)".

Amendments Schedule 1

Universal service regime Part 4

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 171

221 Subsection 9(5)

Omit "(2)(c)", substitute "(1)(c) or subsection (2B)".

222 Subsection 9(6)

Omit "(2)(a)", substitute "(1)(a) or subsection (2)".

223 Section 9A

Repeal the section, substitute:

9A Reasonable accessibility of prescribed carriage services

(1) The Minister may determine in writing, for the purpose of

paragraph 9(1)(c), what is, or is not, necessary to ensure that

prescribed carriage services are reasonably accessible as mentioned

in that paragraph.

(2) A determination under subsection (1) is a legislative instrument.

224 Subsection 12C(1)

Omit "take all reasonable steps to".

225 After Subdivision B of Division 5 of Part 2

Insert:

Subdivision BA--Standard telephone service requirements

12EB Performance standards

Determination

(1) The Minister may make a written determination setting out

standards to be complied with by a primary universal service

provider in relation to any or all of the following matters:

(a) the terms and conditions of the supply of a standard

telephone service to a customer, other than price-related

terms and conditions;

(b) the reliability of a standard telephone service supplied to a

customer;

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172 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

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(d) the maximum period within which a primary universal

service provider must supply a standard telephone service

following the making of a request by a prospective customer;

(e) the maximum period within which a primary universal

service provider must rectify a fault or service difficulty

relating to a standard telephone service following the making

of a report by a customer about the fault or service difficulty;

(f) any other matter concerning the supply, or proposed supply,

of a standard telephone service to a customer or prospective

customer.

(2) A determination under subsection (1) may be of general

application or may be limited as provided in the determination.

(3) Subsection (2) does not, by implication, limit subsection 33(3A) of

the Acts Interpretation Act 1901.

Compliance

(4) A primary universal service provider must comply with a standard

in force under subsection (1).

Determination prevails over inconsistent instruments

(5) Each of the following instruments:

(a) an approved policy statement for a primary universal service

provider;

(b) an approved standard marketing plan for a primary universal

service provider;

has no effect to the extent to which the instrument is inconsistent

with a determination in force under subsection (1).

Service supplied in fulfilment of the universal service obligation

(6) This section does not apply to a standard telephone service unless

the service is supplied, or proposed to be supplied, in fulfilment of

the universal service obligation.

Note:

See also section 6A (when a standard telephone service is supplied in

fulfilment of the universal service obligation).

Determination is a legislative instrument

(7) A determination under subsection (1) is a legislative instrument.

Amendments Schedule 1

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Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 173

12EC Performance benchmarks

Determination

(1) The Minister may make a written determination setting out

standards to be complied with by a primary universal service

provider in relation to any or all of the following matters:

(a) the terms and conditions of the supply of a standard

telephone service to a customer, other than price-related

terms and conditions;

(b) the reliability of a standard telephone service supplied to a

customer;

(d) the maximum period within which a primary universal

service provider must supply a standard telephone service

following the making of a request by a prospective customer;

(e) the maximum period within which a primary universal

service provider must rectify a fault or service difficulty

relating to a standard telephone service following the making

of a report by a customer about the fault or service difficulty;

(f) any other matter concerning the supply, or proposed supply,

of a standard telephone service to a customer or prospective

customer.

(2) A determination under subsection (1) may be of general

application or may be limited as provided in the instrument.

(3) Subsection (2) does not, by implication, limit subsection 33(3A) of

the Acts Interpretation Act 1901.

Determination prevails over inconsistent instruments

(4) Each of the following instruments:

(a) an approved policy statement for a primary universal service

provider;

(b) an approved standard marketing plan for a primary universal

service provider;

has no effect to the extent to which the instrument is inconsistent

with a determination in force under subsection (1).

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Part 4 Universal service regime

174 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

Bill 2010 No. , 2010

Determination is a legislative instrument

(5) A determination under subsection (1) is a legislative instrument.

Performance benchmarks

(6) The Minister may, by legislative instrument, set minimum

benchmarks in relation to compliance by a primary universal

service provider with a standard in force under subsection (1).

(7) An instrument under subsection (6) may be of general application

or may be limited as provided in the instrument.

(8) Subsection (7) does not, by implication, limit subsection 33(3A) of

the Acts Interpretation Act 1901.

Provider must meet or exceed minimum benchmarks

(9) A primary universal service provider must meet or exceed a

minimum benchmark set by an instrument under subsection (6).

Clause 1 of Schedule 1 to the Telecommunications Act 1997 does

not apply to a breach of a standard

(10) Clause 1 of Schedule 1 to the Telecommunications Act 1997 does

not apply to a contravention of a standard in force under

subsection (1).

Note:

Clause 1 of Schedule 1 to the Telecommunications Act 1997 requires

carriers to comply with this Act.

Clause 1 of Schedule 2 to the Telecommunications Act 1997 does

not apply to a breach of a standard

(11) Clause 1 of Schedule 2 to the Telecommunications Act 1997 does

not apply to a contravention of a standard in force under

subsection (1).

Note:

Clause 1 of Schedule 2 to the Telecommunications Act 1997 requires

carriage service providers to comply with this Act.

Amendments Schedule 1

Universal service regime Part 4

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 175

Subdivision BB--Payphone requirements

12ED Performance standards

Determination

(1) The Minister may make a written determination setting out

standards to be complied with by a primary universal service

provider in relation to any or all of the following matters:

(a) the characteristics of a payphone carriage service;

(b) the supply, installation or maintenance of a payphone;

(d) the reliability of a payphone;

(e) the reliability of a payphone carriage service;

(f) the maximum period within which a primary universal

service provider must rectify a fault or service difficulty

relating to a payphone following the making of a report about

a fault or service difficulty;

(g) the maximum period within which a primary universal

service provider must rectify a fault or service difficulty

relating to a payphone carriage service following the making

of a report about a fault or service difficulty;

(h) the handling of requests for the removal of a payphone;

(i) any other matter concerning:

(i) the supply, installation or maintenance of a payphone;

(ii) the supply of a payphone carriage service.

(2) A determination under subsection (1) may be of general

application or may be limited as provided in the determination.

(3) Subsection (2) does not, by implication, limit subsection 33(3A) of

the Acts Interpretation Act 1901.

Compliance

(4) A primary universal service provider must comply with a

determination under subsection (1).

Schedule 1 Amendments

Part 4 Universal service regime

176 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

Bill 2010 No. , 2010

Determination prevails over inconsistent instruments

(5) Each of the following instruments:

(a) an approved policy statement for a primary universal service

provider;

(b) an approved standard marketing plan for a primary universal

service provider;

has no effect to the extent to which the instrument is inconsistent

with a determination in force under subsection (1).

Determination is a legislative instrument

(6) A determination under subsection (1) is a legislative instrument.

12EE Performance benchmarks

Determination

(1) The Minister may make a written determination setting out

standards to be complied with by a primary universal service

provider in relation to any or all of the following matters:

(a) the characteristics of a payphone carriage service;

(b) the supply, installation or maintenance of a payphone;

(d) the reliability of a payphone;

(e) the reliability of a payphone carriage service;

(f) the maximum period within which a primary universal

service provider must rectify a fault or service difficulty

relating to a payphone following the making of a report about

a fault or service difficulty;

(g) the maximum period within which a primary universal

service provider must rectify a fault or service difficulty

relating to a payphone carriage service following the making

of a report about a fault or service difficulty;

(h) the handling of requests for the removal of a payphone;

(i) any other matter concerning:

(i) the supply, installation or maintenance of a payphone;

(ii) the supply of a payphone carriage service.

Amendments Schedule 1

Universal service regime Part 4

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 177

(2) A determination under subsection (1) may be of general

application or may be limited as provided in the determination.

(3) Subsection (2) does not, by implication, limit subsection 33(3A) of

the Acts Interpretation Act 1901.

Determination prevails over inconsistent instruments

(4) Each of the following instruments:

(a) an approved policy statement for a primary universal service

provider;

(b) an approved standard marketing plan for a primary universal

service provider;

has no effect to the extent to which the instrument is inconsistent

with a determination in force under subsection (1).

Determination is a legislative instrument

(5) A determination under subsection (1) is a legislative instrument.

Performance benchmarks

(6) The Minister may, by legislative instrument, set minimum

benchmarks in relation to compliance by a primary universal

service provider with a standard in force under subsection (1).

(7) An instrument under subsection (6) may be of general application

or may be limited as provided in the instrument.

(8) Subsection (7) does not, by implication, limit subsection 33(3A) of

the Acts Interpretation Act 1901.

Provider must meet or exceed minimum benchmarks

(9) A primary universal service provider must meet or exceed a

minimum benchmark set by an instrument under subsection (6).

Clause 1 of Schedule 1 to the Telecommunications Act 1997 does

not apply to a breach of a standard

(10) Clause 1 of Schedule 1 to the Telecommunications Act 1997 does

not apply to a contravention of a standard in force under

subsection (1).

Schedule 1 Amendments

Part 4 Universal service regime

178 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

Bill 2010 No. , 2010

Note:

Clause 1 of Schedule 1 to the Telecommunications Act 1997 requires

carriers to comply with this Act.

Clause 1 of Schedule 2 to the Telecommunications Act 1997 does

not apply to a breach of a standard

(11) Clause 1 of Schedule 2 to the Telecommunications Act 1997 does

not apply to a contravention of a standard in force under

subsection (1).

Note:

Clause 1 of Schedule 2 to the Telecommunications Act 1997 requires

carriage service providers to comply with this Act.

12EF Rules about the location of payphones

(1) The Minister may make a determination setting out rules to be

complied with by a primary universal service provider in relation

to the places or areas in which payphones are to be located.

Compliance

(2) A primary universal service provider must comply with a

determination under subsection (1).

(3) If a primary universal service provider complies with a

determination under subsection (1), the provider is taken to have

complied with an obligation under paragraph 9(1)(b) or subsection

9(2A), to the extent to which the obligation relates to the location

of payphones.

Determination prevails over inconsistent instruments

(4) Each of the following instruments:

(a) an approved policy statement for a primary universal service

provider;

(b) an approved standard marketing plan for a primary universal

service provider;

has no effect to the extent to which the instrument is inconsistent

with a determination in force under subsection (1).

Determination is a legislative instrument

(5) A determination under subsection (1) is a legislative instrument.

Amendments Schedule 1

Universal service regime Part 4

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 179

12EG Rules about the process for public consultation on the location

or removal of payphones

(1) The Minister may make a determination setting out rules to be

complied with by a primary universal service provider in relation

to the process for public consultation on the location or removal of

payphones.

(2) The Minister must ensure that a determination under subsection (1)

provides that, if:

(a) a primary universal service provider makes a decision to

remove a payphone from a particular location; and

(b) that payphone is the only payphone at that location;

then:

on the removal of that payphone; and

(d) if, in accordance with that process, a person makes a

submission to the provider--the provider must notify the

person, in writing, of the outcome of that process.

Compliance

(3) A primary universal service provider must comply with a

determination under subsection (1).

Determination prevails over inconsistent instruments

(4) Each of the following instruments:

(a) an approved policy statement for a primary universal service

provider;

(b) an approved standard marketing plan for a primary universal

service provider;

has no effect to the extent to which the instrument is inconsistent

with a determination in force under subsection (1).

Determination is a legislative instrument

(5) A determination under subsection (1) is a legislative instrument.

Schedule 1 Amendments

Part 4 Universal service regime

180 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

Bill 2010 No. , 2010

12EH Rules about the process for resolution of complaints about the

location or removal of payphones

(1) The Minister may make a determination setting out rules to be

complied with by a primary universal service provider in relation

to the process for resolution of complaints about the location or

removal of payphones.

Compliance

(2) A primary universal service provider must comply with a

determination under subsection (1).

Determination prevails over inconsistent instruments

(3) Each of the following instruments:

(a) an approved policy statement for a primary universal service

provider;

(b) an approved standard marketing plan for a primary universal

service provider;

has no effect to the extent to which the instrument is inconsistent

with a determination in force under subsection (1).

Determination is a legislative instrument

(4) A determination under subsection (1) is a legislative instrument.

12EI Directions by the ACMA about the removal of payphones

Scope

(1) This section applies if:

(a) a primary universal service provider has made a decision to

remove a payphone from a particular location; and

(b) a person notifies the ACMA, in writing, that the person

objects to the removal; and

(i) the removal would breach, or has breached, a

determination under subsection 12EF(1); or

(ii) the provider has breached a determination under

subsection 12EG(1) in relation to the removal.

Amendments Schedule 1

Universal service regime Part 4

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 181

Direction

(2) If the payphone has not been removed, the ACMA may, by written

notice given to the provider, direct the provider not to remove the

payphone from that location.

(3) If the payphone has been removed, the ACMA may, by written

notice given to the provider, direct the provider:

(a) to supply and install a payphone at that location; and

(b) to do so within the period specified in the notice.

(4) A period specified under paragraph (3)(b) must not be shorter than

30 days after the notice is given.

(5) A direction under subsection (2) or (3) must not be inconsistent

with a determination under subsection 12EF(1).

Compliance

(6) A primary universal service provider must comply with a direction

under subsection (2) or (3).

Direction is not a legislative instrument

(7) A direction under subsection (2) or (3) is not a legislative

instrument.

226 Subsection 150(3)

Repeal the subsection.

Schedule 1 Amendments

Part 5 Customer service guarantee

182 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

Bill 2010 No. , 2010

Part 5--Customer service guarantee

Telecommunications (Consumer Protection and Service

Standards) Act 1999

227 Before section 113

Insert:

Division 1--Introduction

228 Section 113

Before:

�

The Telecommunications Industry Ombudsman may issue an

evidentiary certificate in relation to a contravention of a

performance standard.

insert:

�

The Minister may make performance standards to be complied

with by carriage service providers in relation to the supply of

wholesale carriage services.

�

The Minister may set minimum benchmarks in relation to

compliance by carriage service providers with performance

standards.

229 After section 114

Insert:

114A Wholesale carriage service and wholesale customer

For the purposes of this Part, if:

(a) a carriage service provider (the first provider) supplies, or

proposes to supply, a carriage service to another carriage

service provider (the second provider); and

Amendments Schedule 1

Customer service guarantee Part 5

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 183

(b) the carriage service is, or is to be, supplied to the second

provider in order that the second provider can provide a

carriage service;

then:

provider is a wholesale carriage service; and

(d) the second provider is a wholesale customer of the first

provider.

Division 2--Retail performance standards and

benchmarks

230 After subsection 115(2)

Insert:

(2A) A standard under this section does not apply in relation to matter

concerning the supply, or proposed supply, of a wholesale carriage

service.

231 Subsections 115(5) and (6)

Repeal the subsections, substitute:

(5) An instrument under subsection (1) is a legislative instrument.

232 After section 117A

Insert:

117B Performance benchmarks

(1) The Minister may, by legislative instrument, set minimum

benchmarks in relation to compliance by carriage service providers

with a standard in force under section 115.

(2) An instrument under this section may be of general application or

may be limited as provided in the instrument.

(3) Subsection (2) does not, by implication, limit subsection 33(3A) of

the Acts Interpretation Act 1901.

Schedule 1 Amendments

Part 5 Customer service guarantee

184 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

Bill 2010 No. , 2010

117C Compliance with performance benchmarks

Scope

(1) This section applies if an instrument under section 117B is

applicable to a carriage service provider (the first provider).

Provider must meet or exceed minimum benchmark

(2) The first provider must meet or exceed a minimum benchmark set

by the instrument.

Contravention caused by another provider

(3) For the purposes of determining whether the first provider has met

or exceeded a minimum benchmark set by the instrument, if:

(a) the first provider has contravened a standard in force under

section 115; and

(b) the contravention is wholly or partly attributable to one or

more acts or omissions of another carriage service provider;

the first provider is taken not to have contravened the standard.

Division 3--Wholesale performance standards and

benchmarks

117D Performance standards

(1) The Minister may, by legislative instrument, make standards to be

complied with by carriage service providers in relation to a matter

that:

(a) concerns the supply, or proposed supply, of wholesale

carriage services to a wholesale customer; and

(b) is capable of affecting the capacity or ability of a wholesale

customer to comply with a standard in force under

section 115 in relation to a matter concerning the supply, or

proposed supply, of a carriage service by the wholesale

customer.

(2) A standard under this section may be of general application or may

be limited as provided in the standard.

Amendments Schedule 1

Customer service guarantee Part 5

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 185

(3) Subsection (2) does not, by implication, limit subsection 33(3A) of

the Acts Interpretation Act 1901.

117E Performance benchmarks

(1) The Minister may, by legislative instrument, set minimum

benchmarks in relation to compliance by carriage service providers

with a standard in force under section 117D.

(2) An instrument under this section may be of general application or

may be limited as provided in the instrument.

(3) Subsection (2) does not, by implication, limit subsection 33(3A) of

the Acts Interpretation Act 1901.

117F Compliance with performance benchmarks

Scope

(1) This section applies if an instrument under section 117E is

applicable to a carriage service provider (the first provider).

Provider must meet or exceed minimum benchmark

(2) The first provider must meet or exceed a minimum benchmark set

by the instrument.

Contravention caused by another provider

(3) For the purposes of determining whether the first provider has met

or exceeded a minimum benchmark set by the instrument, if:

(a) the first provider has contravened a standard in force under

section 117D; and

(b) the contravention is wholly or partly attributable to one or

more acts or omissions of another carriage service provider;

the first provider is taken not to have contravened the standard.

Division 4--Other provisions

233 At the end of subsection 118(1)

Add "or 117D".

Schedule 1 Amendments

Part 5 Customer service guarantee

186 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

Bill 2010 No. , 2010

234 At the end of paragraph 118(3)(a)

Add "or 117D".

235 Subsection 120(4)

Repeal the subsection, substitute:

(4) A waiver must be in the form specified in the instrument.

(5) The form must include a statement that summarises the

consequences of the waiver.

(6) A waiver must not be set out in a standard form of agreement

formulated by a carriage service provider for the purposes of

section 479 of the Telecommunications Act 1997.

(7) A customer is not entitled to waive, in whole or in part, the

customer's protection and rights under this Part in relation to a

particular standard telephone service supplied, or proposed to be

supplied, by the carriage service provider concerned if the service

is supplied, or proposed to be supplied, in fulfilment of the

universal service obligation.

(8) An instrument under subsection (1) is a legislative instrument.

236 After section 120

Insert:

120A Carriage service may be supplied on condition that the

customer waives the customer service guarantee

This Act does not prevent, and is taken never to have prevented, a

carriage service provider from supplying, or proposing to supply, a

particular carriage service to a customer on condition that the

customer waives, in accordance with section 120, the customer's

protection and rights under this Part in relation to the carriage

service.

237 Section 122

After "115", insert "or 117D".

238 After section 122

Amendments Schedule 1

Customer service guarantee Part 5

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 187

Insert:

122A Failure to meet or exceed a minimum benchmark is not an

offence

A contravention of section 117C or 117F is not an offence.

239 At the end of section 123 (before the note)

Add "or 117D".

240 Application--waiver

The amendments of section 120 of the Telecommunications (Consumer

Protection and Service Standards) Act 1999 made by this Part apply in

relation to a waiver given after the commencement of this item.

Schedule 1 Amendments

Part 5A Record-keeping rules

188 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

Bill 2010 No. , 2010

Part 5A--Record-keeping rules

Telecommunications Act 1997

241 After subsection 529(2)

Insert:

(2A) The rules may also require those carriers or carriage service

providers to prepare reports consisting of information contained in

those records.

(2B) The rules may also require those carriers or carriage service

providers to give any or all of the reports to the ACMA.

(2C) The rules may specify the manner and form in which reports are to

be prepared.

(2D) The rules may provide for:

(a) the preparation of reports as and when required by the

ACMA; or

(b) the preparation of periodic reports relating to such regular

intervals as are specified in the rules.

(2E) The rules may require or permit a report prepared in accordance

with the rules to be given to the ACMA, in accordance with

specified software requirements and specified authentication

requirements:

(a) on a specified kind of data processing device; or

(b) by way of a specified kind of electronic transmission.

(2F) Subsections (2) to (2E) do not limit subsection (1).

242 Paragraphs 529(4)(a) and (b)

Repeal the paragraphs, substitute:

(a) the performance by the ACMA of any of the ACMA's

telecommunications functions; or

(b) the exercise by the ACMA of any of the ACMA's

telecommunications powers.

243 At the end of section 529

Add:

Schedule 1 Amendments

Part 6 Priority assistance

190 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

Bill 2010 No. , 2010

Part 6--Priority assistance

Telecommunications Act 1997

245 At the end of Schedule 2

Add:

Part 6--Priority assistance

16 Simplified outline

The following is a simplified outline of this Part:

�

This Part deals with priority assistance for people with

life-threatening medical conditions.

�

A carriage service provider must comply with the priority

assistance industry code.

�

If a carriage service provider receives an inquiry from a

prospective residential customer about the supply of a

standard telephone service, and the provider does not offer

priority assistance, the provider must:

(a)

inform the prospective residential customer that the

provider does not offer priority assistance in

connection with the service; and

(b)

inform the prospective residential customer of the

names of one or more carriage service providers

from whom the prospective residential customer

can obtain priority assistance.

17 Priority assistance industry code

For the purposes of this Part, the priority assistance industry code

is:

(a) the code that is:

Amendments Schedule 1

Priority assistance Part 6

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 191

(i)

entitled

Priority Assistance for Life Threatening

Medical Conditions; and

(ii) registered under Part 6; or

(b) if that code is replaced by another code registered under

Part 6--the replacement code.

18 Compliance with the priority assistance industry code

A carriage service provider must comply with the priority

assistance industry code to the extent (if any) to which the code is

applicable to the provider.

19 Information for prospective residential customers of a carriage

service provider who does not offer priority assistance

Scope

(1) This clause applies to a carriage service provider if:

(a) the provider receives an inquiry from a prospective

residential customer about the supply of a standard telephone

service; and

(b) the provider does not offer priority assistance in connection

with the service.

Requirement

(2) The provider must:

(a) inform the prospective residential customer that the provider

does not offer priority assistance in connection with the

service; and

(b) inform the prospective residential customer of the names of

one or more carriage service providers from whom the

prospective residential customer can obtain priority

assistance in connection with a standard telephone service.

Definition

(3) In this clause:

priority assistance has the same meaning as in the priority

assistance industry code.

Schedule 1 Amendments

Part 6 Priority assistance

192 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

Bill 2010 No. , 2010

20 Requirements for Telstra

This Part does not impose a requirement on Telstra if clause 19 of

the Carrier Licence Conditions (Telstra Corporation Limited)

Declaration 1997 is in force.

Note:

Clause 19 of the Carrier Licence Conditions (Telstra Corporation

Limited) Declaration 1997 is about Telstra's priority assistance

obligations.

Amendments Schedule 1

Infringement notices etc. Part 7

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

No. , 2010 193

Part 7--Infringement notices etc.

Division 1--Amendments

Telecommunications Act 1997

246 Section 7

Insert:

authorised infringement notice officer means:

(a) the Chair of the ACMA; or

(b) a member of the staff of the ACMA appointed under

section 572L.

247 Section 7

Insert:

infringement notice means an infringement notice under

section 572E.

248 Section 7

Insert:

penalty unit has the meaning given by section 4AA of the Crimes

Act 1914.

249 After Part 31A

Insert:

Part 31B--Infringement notices for contraventions

of civil penalty provisions

572D Simplified outline

The following is a simplified outline of this Part:

Schedule 1 Amendments

Part 7 Infringement notices etc.

194 Telecommunications Legislation Amendment (Competition and Consumer Safeguards)

Bill 2010 No. , 2010

�

This Part sets up a system of infringement notices for

contraventions of civil penalty provisions as an alternative to

the institution of court proceedings.

572E When an infringement notice can be given

(1) If an authorised infringement notice officer has reasonable grounds

to believe that a person has contravened a particular civil penalty

provision, the authorised infringement notice officer may give to

the person an infringement notice relating to the contravention.

Note:

Commonwealth of Australia Bills

TELECOMMUNICATIONS LEGISLATION AMENDMENT (COMPETITION AND CONSUMER SAFEGUARDS) BILL 2010