TELECOMMUNICATIONS LEGISLATION AMENDMENT (FIBRE DEPLOYMENT) BILL 2010

2008-2009-2010

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Telecommunications Legislation

Amendment (Fibre Deployment) Bill

2010

No. , 2010

(Broadband, Communications and the Digital Economy)

A Bill for an Act to amend legislation relating to

telecommunications, and for other purposes

i Telecommunications Legislation Amendment (Fibre Deployment) Bill 2010 No. , 2010

Contents

1 Short

title

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

2 Commencement

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

3 Schedule(s)

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

Schedule 1--Amendments

Part 1--General amendments

Telecommunications Act 1997

Trade Practices Act 1974

Part 2--Consequential amendment relating to civil penalty

provisions

Telecommunications Act 1997

Telecommunications Legislation Amendment (Fibre Deployment) Bill 2010 No. , 2010

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 (Fibre Deployment) 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 (Fibre Deployment) 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

1 July 2010.

1 July 2010

3. Schedule 1,

Part 2

1 July 2010.

However, if Part 8 of Schedule 1 to the

Telecommunications Legislation Amendment

(Competition and Consumer Safeguards) Act

2010 commences on or before that day, the

provision(s) do not commence at all.

Note:

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

passed by both Houses of the Parliament and assented to. It will not be

expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

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.

Amendments Schedule 1

General amendments Part 1

Telecommunications Legislation Amendment (Fibre Deployment) Bill 2010 No. , 2010

Schedule 1--Amendments

Part 1--General amendments

Telecommunications Act 1997

1 Section 7

Insert:

building lot has the meaning given by section 372D.

2 Section 7

Insert:

building unit has the meaning given by section 372F.

2A Section 7

Insert:

fibre-ready facility has the meaning given by section 372HB.

2B Section 7

Insert:

fixed-line facility has the meaning given by section 372HA.

3 Section 7

Insert:

optical fibre line means a line that consists of, or encloses, optical

fibre.

4 Section 7

Insert:

project area for a real estate development project has the meaning

given by section 372D.

5 Section 7

Insert:

Schedule 1 Amendments

Part 1 General amendments

4 Telecommunications Legislation Amendment (Fibre Deployment) Bill 2010 No. ,

2010

real estate development project has the meaning given by

section 372D.

6 Section 7

Insert:

sell:

(a) when used in relation to a building lot--has the meaning

given by section 372G; or

(b) when used in relation to a building unit--has the meaning

given by section 372H.

7 Section 7

Insert:

subdivision of an area of land has a meaning affected by

section 372E.

8 At the end of subsection 110(2)

Add:

; (j) persons who install:

(i) optical fibre lines; or

(ii) facilities used, or for use, in or in connection with

optical fibre lines;

in the project area, or any of the project areas, for a real estate

development project to which section 372B or 372C applies.

8A After paragraph 113(3)(p)

Insert:

(pa) the design features of:

(i) optical fibre lines; or

(ii) facilities used, or for use, in or in connection with

optical fibre lines;

in the project area, or any of the project areas, for a real estate

development project to which section 372B or 372C applies;

(pb) performance requirements to be met by:

(i) optical fibre lines; or

(ii) facilities used, or for use, in or in connection with

optical fibre lines;

Amendments Schedule 1

General amendments Part 1

Telecommunications Legislation Amendment (Fibre Deployment) Bill 2010 No. , 2010

in the project area, or any of the project areas, for a real estate

development project to which section 372B or 372C applies;

(pc) the characteristics of carriage services supplied using optical

fibre lines;

(pd) performance requirements to be met by carriage services

supplied using optical fibre lines;

9 At the end of section 115

Add:

(5) The rule in subsection (1) does not apply to an industry code or an

industry standard to the extent (if any) to which compliance with

the code or standard is likely to have the effect (whether direct or

indirect) of requiring:

(a) optical fibre lines; or

(b) facilities used, or for use, in or in connection with optical

fibre lines;

in the project area, or any of the project areas, for a real estate

development project to which section 372B or 372C applies:

(d) to meet particular performance requirements.

9A After subsection 118(4)

Insert:

(4AA) The rule in subsection (4) does not apply to a code to the extent (if

any) to which compliance with the code is likely to have the effect

(whether direct or indirect) of requiring:

(a) optical fibre lines; or

(b) facilities used, or for use, in or in connection with optical

fibre lines;

in the project area, or any of the project areas, for a real estate

development project to which section 372B or 372C applies:

(d) to meet particular performance requirements.

10 After Part 20

Insert:

Schedule 1 Amendments

Part 1 General amendments

6 Telecommunications Legislation Amendment (Fibre Deployment) Bill 2010 No. ,

2010

Part 20A--Deployment of optical fibre etc.

Division 1--Simplified outline

372A Simplified outline

The following is a simplified outline of this Part:

�

If a real estate development project is specified in a legislative

instrument made by the Minister, a person must not install a

line in the project area unless the line is an optical fibre line.

�

If a real estate development project is specified in a legislative

instrument made by the Minister, a person must not install or

construct a fixed-line facility in the project area unless the

facility is a fibre-ready facility.

�

These rules are subject to any exemptions specified in a

legislative instrument made by the Minister.

Division 2--Deployment of optical fibre

372B Deployment of optical fibre lines to building lots

Scope

(1) This section applies to the installation of a line in the project area,

or any of the project areas, for a real estate development project if:

(a) the project involves the subdivision of one or more areas of

land into building lots; and

(b) the project is specified in, or ascertained in accordance with,

a legislative instrument made by the Minister; and

for use, to supply one or more carriage services to either or

both of the following:

(i) one or more end-users in one or more building units;

(ii) one or more prospective end-users in one or more

building units; and

Amendments Schedule 1

General amendments Part 1

Telecommunications Legislation Amendment (Fibre Deployment) Bill 2010 No. , 2010

(d) those building units have been, are being, are to be, or may

be, constructed on any of those building lots; and

(e) the line is not on the customer side of the boundary of a

telecommunications network; and

(f) the line is used, or for use, to supply a carriage service to the

public; and

(g) the installation occurs after the commencement of this

section.

Note 1:

For real estate development project, see section 372D.

Note 2:

For subdivision of an area of land, see section 372E.

Note 3:

For building lot, see section 372D.

Note 4:

For specification by class, see subsection 13(3) of the Legislative

Instruments Act 2003.

Note 5:

For building unit, see section 372F.

Note 6:

For boundary of a telecommunications network, see section 22.

Note 7:

For supply to the public, see section 372J.

Requirement

(2) A person must not install a line in the project area, or any of the

project areas, for a real estate development project, unless:

(a) the line is an optical fibre line; and

(b) the conditions (if any) specified in an instrument under

subsection (4) are satisfied.

Ancillary provisions

(3) For the purposes of paragraph (1)(c), it is immaterial whether the

end-users or prospective end-users are capable of being identified.

Conditions

(4) The Minister may, by legislative instrument, specify conditions for

the purposes of paragraph (2)(b).

Exemption

(5) The Minister may, by legislative instrument, exempt:

(a) conduct specified in the instrument; or

(b) conduct ascertained in accordance with the instrument;

Schedule 1 Amendments

Part 1 General amendments

8 Telecommunications Legislation Amendment (Fibre Deployment) Bill 2010 No. ,

2010

from the scope of subsection (1).

(6) An exemption under subsection (5) may be unconditional or

subject to such conditions (if any) as are specified in the

exemption.

Functions and powers

(7) An instrument under paragraph (1)(b) or subsection (5) may confer

functions or powers on the ACMA.

Ancillary contraventions

(8) A person must not:

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

subsection (2); or

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

contravention of subsection (2); or

or party to, a contravention of subsection (2); or

(d) conspire with others to effect a contravention of

subsection (2).

Civil penalty provisions

(9) Subsections (2) and (8) are civil penalty provisions.

Note:

Part 31 provides for pecuniary penalties for breaches of civil penalty

provisions.

372C Deployment of optical fibre lines to building units

Scope

(1) This section applies to the installation of a line in the project area,

or any of the project areas, for a real estate development project if:

(a) the project involves the construction of one or more building

units on one or more areas of land; and

(b) the project is specified in, or ascertained in accordance with,

a legislative instrument made by the Minister; and

for use, to supply one or more carriage services to either or

both of the following:

Amendments Schedule 1

General amendments Part 1

Telecommunications Legislation Amendment (Fibre Deployment) Bill 2010 No. , 2010

(i) one or more end-users in those building units;

(ii) one or more prospective end-users in those building

units; and

(d) the line is not on the customer side of the boundary of a

telecommunications network; and

(e) the line is used, or for use, to supply a carriage service to the

public; and

(f) the installation occurs after the commencement of this

section.

Note 1:

For real estate development project, see section 372D.

Note 2:

For building unit, see section 372F.

Note 3:

For specification by class, see subsection 13(3) of the Legislative

Instruments Act 2003.

Note 4:

For boundary of a telecommunications network, see section 22.

Note 5:

For supply to the public, see section 372J.

Requirement

(2) A person must not install a line in the project area, or any of the

project areas, for a real estate development project, unless:

(a) the line is an optical fibre line; and

(b) the conditions (if any) specified in an instrument under

subsection (4) are satisfied.

Ancillary provisions

(3) For the purposes of paragraph (1)(c), it is immaterial whether the

end-users or prospective end-users are capable of being identified.

Conditions

(4) The Minister may, by legislative instrument, specify conditions for

the purposes of paragraph (2)(b).

Exemption

(5) The Minister may, by legislative instrument, exempt:

(a) conduct specified in the instrument; or

(b) conduct ascertained in accordance with the instrument;

from the scope of subsection (1).

Schedule 1 Amendments

Part 1 General amendments

10 Telecommunications Legislation Amendment (Fibre Deployment) Bill 2010 No. ,

2010

(6) An exemption under subsection (5) may be unconditional or

subject to such conditions (if any) as are specified in the

exemption.

Functions and powers

(7) An instrument under paragraph (1)(b) or subsection (5) may confer

functions or powers on the ACMA.

Ancillary contraventions

(8) A person must not:

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

subsection (2); or

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

contravention of subsection (2); or

or party to, a contravention of subsection (2); or

(d) conspire with others to effect a contravention of

subsection (2).

Civil penalty provisions

(9) Subsections (2) and (8) are civil penalty provisions.

Note:

Part 31 provides for pecuniary penalties for breaches of civil penalty

provisions.

Division 3--Installation of fibre-ready facilities

372CA Installation of fibre-ready facilities--building lots

Scope

(1) This section applies to the installation of a fixed-line facility in the

project area, or any of the project areas, for a real estate

development project if:

(a) the project involves the subdivision of one or more areas of

land into building lots; and

(b) the project is specified in, or ascertained in accordance with,

a legislative instrument made by the Minister; and

section.

Amendments Schedule 1

General amendments Part 1

Telecommunications Legislation Amendment (Fibre Deployment) Bill 2010 No. , 2010

Note 1:

For fixed-line facility, see section 372HA.

Note 2:

For real estate development project, see section 372D.

Note 3:

For subdivision of an area of land, see section 372E.

Note 4:

For building lot, see section 372D.

Note 5:

For specification by class, see subsection 13(3) of the Legislative

Instruments Act 2003.

Requirement

(2) A person must not install a fixed-line facility in the project area, or

any of the project areas, for a real estate development project,

unless:

(a) the facility is a fibre-ready facility; and

(b) the conditions (if any) specified in an instrument under

subsection (3) are satisfied.

Note: For

fibre-ready facility, see section 372HB.

(3) The Minister may, by legislative instrument, specify conditions for

the purposes of paragraph (2)(b).

Third party access regime

(4) The regulations may establish a regime for third party access to a

fixed-line facility installed in the project area, or any of the project

areas, for a real estate development project.

Exemption

(5) The Minister may, by legislative instrument, exempt:

(a) conduct specified in the instrument; or

(b) conduct ascertained in accordance with the instrument;

from the scope of subsection (1).

(6) An exemption under subsection (5) may be unconditional or

subject to such conditions (if any) as are specified in the

exemption.

Functions and powers

(7) An instrument under paragraph (1)(b) or subsection (5) may confer

functions or powers on the ACMA.

Schedule 1 Amendments

Part 1 General amendments

12 Telecommunications Legislation Amendment (Fibre Deployment) Bill 2010 No. ,

2010

(8) Regulations made for the purposes of subsection (4) may confer

functions or powers on the ACCC.

Jurisdiction of courts

(9) Regulations made for the purposes of subsection (4) may confer

jurisdiction on a court.

Ancillary contraventions

(10) A person must not:

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

subsection (2); or

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

contravention of subsection (2); or

or party to, a contravention of subsection (2); or

(d) conspire with others to effect a contravention of

subsection (2).

Civil penalty provisions

(11) Subsections (2) and (10) are civil penalty provisions.

Note:

Part 31 provides for pecuniary penalties for breaches of civil penalty

provisions.

372CB Installation of fibre-ready facilities--building units

Scope

(1) This section applies to the installation of a fixed-line facility in the

project area, or any of the project areas, for a real estate

development project if:

(a) the project involves the construction of one or more building

units on one or more areas of land; and

(b) the project is specified in, or ascertained in accordance with,

a legislative instrument made by the Minister; and

section.

Note 1:

For fixed-line facility, see section 372HA.

Note 2:

For real estate development project, see section 372D.

Amendments Schedule 1

General amendments Part 1

Telecommunications Legislation Amendment (Fibre Deployment) Bill 2010 No. , 2010

Note 3:

For building unit, see section 372F.

Note 4:

For specification by class, see subsection 13(3) of the Legislative

Instruments Act 2003.

Requirement

(2) A person must not install a fixed-line facility in the project area, or

any of the project areas, for a real estate development project,

unless:

(a) the facility is a fibre-ready facility; and

(b) the conditions (if any) specified in an instrument under

subsection (3) are satisfied.

Note: For

fibre-ready facility, see section 372HB.

(3) The Minister may, by legislative instrument, specify conditions for

the purposes of paragraph (2)(b).

Third party access regime

(4) The regulations may establish a regime for third party access to a

fixed-line facility installed in the project area, or any of the project

areas, for a real estate development project.

Exemption

(5) The Minister may, by legislative instrument, exempt:

(a) conduct specified in the instrument; or

(b) conduct ascertained in accordance with the instrument;

from the scope of subsection (1).

(6) An exemption under subsection (5) may be unconditional or

subject to such conditions (if any) as are specified in the

exemption.

Functions and powers

(7) An instrument under paragraph (1)(b) or subsection (5) may confer

functions or powers on the ACMA.

(8) Regulations made for the purposes of subsection (4) may confer

functions or powers on the ACCC.

Schedule 1 Amendments

Part 1 General amendments

14 Telecommunications Legislation Amendment (Fibre Deployment) Bill 2010 No. ,

2010

Jurisdiction of courts

(9) Regulations made for the purposes of subsection (4) may confer

jurisdiction on a court.

Ancillary contraventions

(10) A person must not:

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

subsection (2); or

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

contravention of subsection (2); or

or party to, a contravention of subsection (2); or

(d) conspire with others to effect a contravention of

subsection (2).

Civil penalty provisions

(11) Subsections (2) and (10) are civil penalty provisions.

Note:

Part 31 provides for pecuniary penalties for breaches of civil penalty

provisions.

Division 4--Miscellaneous

372D Real estate development projects etc.

Subdivisions

(1) For the purposes of this Act, a project is a real estate development

project if:

(a) the project involves the subdivision of one or more areas of

land into lots (however described); and

(b) the project involves either or both of the following:

(i) the making available of one or more of those lots for

sale or lease, where it would be reasonable to expect

that one or more building units would be subsequently

constructed on the lots;

(ii) the construction of one or more building units on any of

the lots and the making available of any of those

building units for sale or lease; and

Amendments Schedule 1

General amendments Part 1

Telecommunications Legislation Amendment (Fibre Deployment) Bill 2010 No. , 2010

subsection (4) are satisfied.

Note 1:

For subdivision of an area of land, see section 372E.

Note 2:

For sale of building lots, see section 372G.

Note 3:

For building unit, see section 372F.

Note 4:

For sale of building units, see section 372H.

(2) For the purposes of this Act, an area of land mentioned in

subsection (1) is a project area for the real estate development

project.

(3) For the purposes of this Act, a lot mentioned in subsection (1) is a

building lot.

(4) The Minister may, by legislative instrument, specify conditions for

the purposes of paragraph (1)(c).

Building units

(5) For the purposes of this Act, a project is a real estate development

project if:

(a) the project involves:

(i) the construction of one or more building units on one or

more areas of land; and

(ii) the making available of any or all of those building units

for sale or lease; and

(b) the conditions (if any) specified in an instrument under

subsection (7) are satisfied.

Note 1:

For building unit, see section 372F.

Note 2:

For sale of building units, see section 372H.

(6) For the purposes of this Act, an area of land mentioned in

subsection (5) is a project area for the real estate development

project.

(7) The Minister may, by legislative instrument, specify conditions for

the purposes of paragraph (5)(b).

Application

(8) For the purposes of subsections (1) and (5), it is immaterial

whether:

Schedule 1 Amendments

Part 1 General amendments

16 Telecommunications Legislation Amendment (Fibre Deployment) Bill 2010 No. ,

2010

(a) the project has been, is being, or will be, implemented in

stages; or

(b) different elements of the project have been, are being, or will

be, carried out by different persons; or

required, under a law of the Commonwealth, a State or

Territory, for the project, or any element of the project; or

(d) in a case where the project relates to 2 or more areas of

land--those areas of land are under common ownership.

372E Subdivision of an area of land

For the purposes of this Act, if an area of land has been subdivided

into lots (however described) it is immaterial whether, after the

subdivision, a part of the area of land (for example, a road) is not

included in any of those lots.

372F Building units

Scope

(1) This section applies to a building that has been, is being, or is to

be, constructed.

Building units

(2) For the purposes of this Act, if the whole of the building is, or is to

be, for single occupation or use, the building is a building unit.

(3) For the purposes of this Act, if the whole or a part of the building

is, or is to be, held as a unit under a strata title system (or a similar

system) established under a law of a State or Territory, the whole

or the part, as the case may be, of the building is a building unit.

(4) For the purposes of this Act, if a part of the building is, or is to be,

for separate lease, that part of the building is a building unit.

372G Sale of building lots

For the purposes of this Act, a person sells a building lot if:

Amendments Schedule 1

General amendments Part 1

Telecommunications Legislation Amendment (Fibre Deployment) Bill 2010 No. , 2010

(a) in a case where the person holds a freehold interest in the

land concerned--the person transfers the freehold interest in

the land; or

(b) in a case where the person holds a leasehold interest in the

land concerned--the person transfers the leasehold interest in

the land.

372H Sale of building units

For the purposes of this Act, a person sells a building unit if:

(a) in a case where:

(i) the building unit is covered by subsection 372F(2), but

is not covered by subsection 372F(3); and

(ii) the person holds a freehold interest in the land on which

the building unit is situated;

the person transfers the freehold interest; or

(b) in a case where:

(i) the building unit is covered by subsection 372F(2), but

is not covered by subsection 372F(3); and

(ii) the person holds a leasehold interest in the land on

which the building unit is situated;

the person transfers the leasehold interest; or

372F(3)--the person transfers the unit mentioned in that

subsection.

372HA Fixed-line facilities

For the purposes of this Act, a fixed-line facility is a facility (other

than a line) used, or for use, in connection with a line, where the

line:

(a) is not on the customer side of the boundary of a

telecommunications network; and

(b) is used, or for use, to supply a carriage service to the public.

Note 1:

For boundary of a telecommunications network, see section 22.

Note 2:

For supply to the public, see section 372J.

Schedule 1 Amendments

Part 1 General amendments

18 Telecommunications Legislation Amendment (Fibre Deployment) Bill 2010 No. ,

2010

372HB Fibre-ready facilities

(1) The Minister may, by legislative instrument, declare that a

specified fixed-line facility is a fibre-ready facility for the purposes

of this Act.

Note:

For specification by class, see subsection 13(3) of the Legislative

Instruments Act 2003.

(2) Subsection (1) does not, by implication, limit paragraph

372CA(2)(b) or 372CB(2)(b).

372HC Installation of a facility

For the purposes of this Part, install, in relation to a facility,

includes:

(a) construct the facility on, over or under any land; and

(b) attach the facility to any building or other structure.

372J Supply to the public

For the purposes of this Part, if:

(a) a line consists of, or forms part of, a network unit; and

(b) under section 44, the network unit is taken, for the purposes

of section 42, to be used to supply a carriage service to the

public;

the line is taken to be used, or for use, to supply a carriage service

to the public.

Trade Practices Act 1974

11 Subsection 25(1)

Before "Rules of Conduct", insert "regulations made for the purposes of

subsection 372CA(4) or 372CB(4) of the Telecommunications Act

1997,".

Amendments Schedule 1

Consequential amendment relating to civil penalty provisions Part 2

Telecommunications Legislation Amendment (Fibre Deployment) Bill 2010 No. , 2010

Part 2--Consequential amendment relating to civil

penalty provisions

Telecommunications Act 1997

12 Section 7 (before paragraph (k) of the definition of civil

penalty provision)

Insert:

(jb) subsection 372B(2); or

(jc) subsection 372B(8); or

(jd) subsection 372C(2); or

(je) subsection 372C(8); or

(jf)

subsection

372CA(2);

(jg) subsection 372CA(10); or

(jh) subsection 372CB(2); or

(ji) subsection 372CB(10); or

(jj) a provision of regulations made for the purposes of

subsection 372CA(4) or 372CB(4) that is declared by the

regulations to be a civil penalty provision; or

Commonwealth of Australia Bills

TELECOMMUNICATIONS LEGISLATION AMENDMENT (FIBRE DEPLOYMENT) BILL 2010