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1996
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
TELECOMMUNICATIONS
BILL 1996
EXPLANATORY MEMORANDUM
VOLUME
2
(Circulated by
authority of Senator the Hon. Richard Alston, Minister for Communications and
the Arts)
NOTES ON CLAUSES –
CONTINUED
Part 12––Provision of
emergency call services
This Part sets out requirements for the provision of emergency call
handling services.
The provision of emergency call services is currently
dealt with in the Telecommunications (General Telecommunications Licences)
Declaration (No. 2) of 1991 and Telecommunications (Public Mobile Licences)
Declaration (No. 2) of 1991. This Part is intended to provide for the provision
of emergency call services, that meet community expectations, in a multi-carrier
and carriage service provider environment. In particular, it is intended to
provide what appears to be a single national service to end-users and to
minimise the possibility of a proliferation of emergency call service providers,
which may result in a decrease in the quality of emergency call
services.
An ‘emergency call service’ is defined in clause 7
as a service for receiving and handling calls to an emergency service number,
and providing information about such calls to emergency service organisations
for purposes connected with dealing with the matters raised by the call. Clause
450 provides for ‘emergency service numbers’ to be specified under
the numbering plan. An ‘emergency call person’ is defined in clause
7 as a recognised person who operates an emergency call service or their
employees, or an emergency call contractor. A ‘recognised person’
is defined in clause 19 as a person who is specified as a national or regional
operator of emergency services in a written determination made by the ACA. It
is intended that the ACA will identify the most appropriate operator of
emergency call services on a national or a regional basis in order to prevent
any undesirable proliferation of operators of emergency call services which
could result on a lower level of service. Multiple operators may be necessary,
however, to manage calls from different types of services or equipment (for
example, calls from teletypewriter (TTY) machines).
Clause 254 –
Simplified outline
Clause 254 provides a simplified outline of this
Part to assist readers.
Clause 255 – Provision of emergency call
services
This clause requires the ACA to make a determination that
sets out the fundamental emergency call service requirements. This process
allows the requirements to evolve in response to changes in industry
arrangements, technology and community expectations for emergency call handling.
A determination is a disallowable instrument which must be notified in the
Gazette, tabled in the Parliament and is subject to Parliamentary
disallowance.
The determination would be expected to include, for
example, requirements in relation to the way in which calls are transmitted
through a carrier’s or carriage service provider’s network, the
period within which calls must be answered and the form in which information
about calls is transferred to emergency service organisations. The
determination could also include other performance requirements and technical
requirements for the transmission of calls to emergency service
organisations.
Clause 255(1) requires the ACA to make a written
determination imposing requirements on carriers, carriage service providers and
emergency call persons in relation to emergency call services. The ACA must
have regard to listed objectives when making its determination (clause 255(2)).
These objectives are:
• that each end-user of a standard telephone service have direct access, free of charge, to an emergency service number unless the ACA considers it would be unreasonable for such access to be provided (note that under clause 361 an ACA technical standard may include requirements to ensure that customer equipment can be used to give direct access to an emergency service number);
• that emergency call persons be provided with automatic information about the caller’s location and the customer’s identity;
• that carriers provide carriage service providers with access to controlled carriage services, networks and facilities in order that the providers can comply with their obligations under the determination;
• that carriage service providers provide other carriage service providers with access to controlled carriage services, networks and facilities in order that the other providers can comply with their obligations under the determination;
• that the determination be consistent with Principle 11 of the
Information Privacy Principles set out in s. 14 of the Privacy Act 1988,
and any registered codes or standards under Part 6.
This list does not
limit the matters to which the ACA may have regard when making a determination
(clause 255(3)).
The ACA’s determination may also deal with
ancillary or incidental matters, such as privacy protection (clause
255(4)).
If appropriate, the ACA may apply, adopt or incorporate, with or
without modification, any matter contained in a code or standard proposed or
approved by a body or association. This provision is intended to allow the ACA
to take into account any work in the area of emergency call services which may
be undertaken by a body formed for that purpose by representatives from the
telecommunications industry and from emergency service organisations. In any
case, before making its determination, the ACA must consult representatives of
carriers, carriage service providers, recognised emergency call persons and
emergency service organisations (including a police force or service, a fire
service, an ambulance service or a service specified in the numbering plan as an
emergency service organisation).
It is expected that the ACA will have
regard to the needs of end-users with a disability, and will attempt to give
effect to the objective of direct access as far as is technically possible.
Clause 256 – Compliance with determination
Clause
256 requires a person to comply with any requirements imposed on the person by a
determination made under clause 255. Pecuniary penalties apply under Part 31
for a contravention of a determination. Funding the costs of meeting any
requirements will be a matter for persons subject to those
requirements.
Clause 257 – Access to be provided
This
clause is intended to facilitate access to the carriage services, networks and
facilities needed by a person subject to requirements in a determination made
under clause 255.
Clause 257 applies if a determination under clause 255
requires a person to provide access to controlled carriage services, networks or
facilities. It requires the person to provide access in accordance with the
determination and on such terms and conditions as are agreed between the
parties, or failing agreement, as are determined by an arbitrator appointed by
the parties. If the parties fail to agree on the appointment of an arbitrator,
then the ACCC is to be the arbitrator. It is expected that the ACCC will have
regard to the types of issues it is required to consider in arbitrating disputes
under proposed Part XIC of the TPA to be inserted by the proposed Trade
Practices Amendment (Telecommunications) Act 1996 and would follow similar
procedures. The regulations may make provision for and in relation to the
conduct of an arbitration under this clause.
Part 13—Protection of communications
This Part provides for the protection of communications by means of
secrecy provisions which create offences for the use or disclosure of certain
information by carriers, carriage service providers, emergency call persons and
their respective associates.
The Part re-enacts the substance of s. 88 of
the 1991 Act in the new Act.
There are six significant policy changes
proposed to the terms of the current s. 88:
• to create an offence
for secondary use or disclosure of information disclosed under exceptions to
the primary offences;
• to create record-keeping requirements in
relation to certain disclosures and give the Privacy Commissioner the function
of monitoring compliance with those requirements;
• to allow
disclosure of information requested by certain Government agencies for the
enforcement of the criminal law or of a law imposing a pecuniary penalty or for
the protection of the public revenue upon certification by a senior officer
authorised by the head of the agency that it is reasonably necessary that the
information be disclosed for the relevant purpose;
• to allow the
use and disclosure of information for the purposes of an integrated public
number database for directory, emergency services and law enforcement purposes;
• to enable disclosure of emergency information to a person who
deals with emergency service calls for the police force, fire service or
ambulance service;
• to exempt public communications from the
scope of the offences.
Division 1—Introduction
Clause 258 – Simplified outline
This clause provides
a simplified outline of Part 13 to assist readers.
Clause 259 –
Eligible person
This clause defines the term ‘eligible
person’ which is a fundamental term for the purposes of this Part. The
prohibitions and exemptions provided for in this Part apply to eligible
persons.
The term ‘eligible person’ includes the following: a
carrier; a carriage service provider; an employee of a carrier or a carriage
service provider; a telecommunications contractor (this term is defined in
clause 261); and an employee of a telecommunications
contractor.
Clause 260 – Information
This clause
makes it clear that ‘information’, in relation to this Part,
includes an opinion.
Clause 261 – Telecommunications
contractor
This clause defines the term ‘telecommunications
contractor’. It means a person who performs services on behalf of a
carrier or carriage service provider. Employees of carriers and carriage
service providers are excluded from this definition as they are specifically
identified as eligible persons.
Division 2—Primary disclosure/use offences
Clause 262 – Primary disclosure/use offence - eligible
persons
This clause prohibits an eligible person from disclosing or
using certain information or documents connected with the provision of carriage
services (clause 262(1)).
The types of information or documents
concerned are those that relate to:
• the contents of a
communication that was carried by the carrier or carriage service provider
(subparagraph (a)(i));
• the contents of a communication that is
being carried by the carrier or carriage service provider (subparagraph
(a)(ii));
• carriage services supplied or intended to be supplied
to another person (subparagraph (a)(iii)); or
• the affairs or
personal particulars of another person (subparagraph (a)(iv)).
The types
of information or documents concerned must come to that person’s knowledge
or possession in connection with the person’s involvement in the business
of a carrier or carriage service provider, or of a telecommunications contractor
(paragraph (b)).
Clause 262(2) prohibits a person who has been an
eligible person from disclosing or using that same type of information or
document which came to the person’s knowledge or possession when that
person was an eligible person.
Clause 262(3) makes it an offence to
breach the prohibitions in clause 262(1) or 262(2), the penalty for which is
imprisonment for a maximum of 2 years. [Note that the Crimes Act 1914
provides for conversion of imprisonment terms into penalty units: for a natural
person the number of penalty units is equal to five times the number of months
of the term of imprisonment (s. 4B(2)); for a body corporate, it is five times
the number of penalty units that are applicable to a natural person, including
penalty units applicable by virtue of s. 4B(2) (s. 4B(3))].
Clause 262(4)
confines the scope of subparagraphs (1)(a)(i) and (ii) to communications carried
by means of electromagnetic energy, not by hard copy.
Clause 263
– Primary disclosure/use offence – emergency call
persons
This clause prohibits an emergency call person from
disclosing or using certain information or documents that relate
to:
• the contents of a communication that was carried by a carrier
or carriage service provider (subparagraph (1)(a)(i));
• the
contents of a communication that is being carried by a carrier or carriage
service provider (subparagraph (1)(a)(ii)); or
• the affairs or
personal particulars of another person (subparagraph
(1)(a)(iii)).
‘Emergency call person’ is defined in clause 7
as being a recognised person who operates an emergency call service (defined in
clause 19); an employee of such a person; an emergency call contractor (defined
in clause 7 as meaning a person who performs services on behalf of a recognised
person who operates an emergency call service, other than an employee); or an
employee of an emergency call contractor.
The types of information or
documents concerned are those that come to that person’s knowledge or
possession in connection with the person’s involvement in the provision of
an emergency call service (paragraph (b)).
Clause 263(2) prohibits a
person who has been an emergency call person from disclosing or using that same
type of information or documents which came to the person’s knowledge or
possession when that person was an eligible person.
Clause 263(3) makes
it an offence to breach the prohibitions in clause 263(1) or (2), the penalty
for which is imprisonment for a maximum of 2 years. [Note that the Crimes Act
1914 provides for conversion of imprisonment terms into penalty units: for a
natural person the number of penalty units is equal to five times the number of
months of the term of imprisonment (s. 4B(2)); for a body corporate, it is five
times the number of penalty units that are applicable to a natural person,
including penalty units applicable by virtue of s. 4B(2) (s.
4B(3))].
Clause 263(4) confines the scope of subparagraphs (1)(a)(i) and
(ii) to communications carried by means of electromagnetic energy, not by hard
copy.
Division 3—Exceptions to primary disclosure/use offences
This Division provides for a number of exceptions to the offences created
by clauses 262 and 263.
Subdivision A—Exceptions
Clause 264 – Performance of person’s
duties
This clause exempts eligible persons who are employees and
contractors from the prohibition in clause 262 where the disclosure or use of
the information or document was made in the performance of the person’s
duties as an employee or contractor (clauses 264(1)and (2)). This exemption is
necessary for the myriad of day-to-day communications between employees about
connecting, disconnecting and billing customers.
Clauses 264(3) and (4)
exempt emergency call persons who are employees and contractors from the
prohibition in clause 263 where the disclosure or use of the information or
document was made in the performance of the person’s duties as an employee
or contractor.
Clause 265 – Authorisation by or under
law
This clause exempts persons from the prohibitions in clauses 262
and 263, where the disclosure or use is required or authorised by or under
law.
Clause 266 – Witnesses
This clause exempts
persons from the prohibitions relating to disclosures in clauses 262 and 263,
where the disclosure is made as a witness in the course of giving evidence or
producing documents.
Clause 267 – Law enforcement and protection
of public revenue
Sections 88(3)(g) and (4)(e) of the 1991 Act
provide an exception to the prohibition on the disclosure and use of relevant
information if disclosure or use is reasonably necessary for the enforcement of
the criminal law or of a law imposing a pecuniary penalty or for the protection
of public revenue.
At present, release of call charge records and address
information at the request of police agencies for the purposes of a police
investigation occurs under s. 88(3)(g). However, the exception requires the
disclosure to be reasonably necessary for the particular purposes concerned.
This creates difficulties for the employees of a carrier who are not in a
position to be able to make an objective judgement about whether disclosure is
reasonably necessary because they do not know the details of the
investigation.
The current exemption remains necessary to allow
disclosure where a carrier employee comes across information which clearly is
relevant to enforcement of the criminal law in the course of performing his or
her duties and the information has not been requested by a law enforcement
agency.
However, this clause introduces a new test which enables an
eligible person to disclose information where an authorised officer has
certified that the disclosure is reasonably necessary for the enforcement of the
criminal law, a law imposing a pecuniary penalty or for the protection of the
public revenue.
This clause exempts persons from the prohibitions in
clauses 262 and 263, where the disclosure or use is reasonably necessary for the
enforcement of the criminal law (clause 267(1)). A disclosure or use under this
clause would require the relevant eligible person or emergency call person to
make the judgement as to whether the disclosure or use is necessary for that
purpose.
Clause 267(2) exempts persons from the prohibition in clause 262
where the disclosure or use is reasonably necessary for the enforcement of a law
imposing a pecuniary penalty (paragraph (a)), or for the protection of the
public revenue (paragraph (b)). Again, a disclosure or use under this clause
would require the eligible person to make the judgement as to whether the
disclosure or use is necessary for the relevant purpose.
Clause 267(3)
exempts persons from the prohibitions relating to disclosures in clauses 262 and
263, where an authorised officer of a criminal law-enforcement agency has
certified that the disclosure is reasonably necessary for the enforcement of the
criminal law. In this case, it is the relevant authorised certifying officer
who has to make the judgement as to whether the disclosure is
necessary.
The authorised officer has to be of a senior level, either: a
commissioned officer (in the case of a police force or service); a member of
the senior executive service (in the case of a law enforcement agency that has
such levels); an officer who participates in the management of the agency; or
the most senior officer at the premises of an office of the agency that is more
than 50 kilometres from the general post office of a capital city (see
definition of ‘senior officer’ in clause 267(7)). The officer is to
be authorised by the head of that officer’s agency to issue such
certificates (see definition of ‘authorised officer’ in clause
267(7)).
Clause 267(4) exempts persons from the prohibition relating to
disclosures in clause 262, where an authorised officer of a criminal
law-enforcement agency, or a civil penalty-enforcement agency, has certified
that the disclosure is reasonably necessary for the enforcement of a law
imposing a pecuniary penalty. In this case, it is the relevant authorised
certifying officer who has to make the judgement as to whether the disclosure is
necessary. The same requirements as to the level and authorisation of the
officer apply as in relation to disclosures under clause 267(3).
Clause
267(5) exempts persons from the prohibition relating to disclosures in clause
262, where an authorised officer of a criminal law enforcement agency, or a
public revenue agency, has certified that the disclosure is reasonably necessary
for the protection of the public revenue. Again, in this case, it is the
relevant authorised certifying officer who has to make the judgement as to
whether the disclosure is necessary. The same requirements as to the level and
authorisation of the officer apply as in relation to disclosures under clause
267(3).
Clause 267(6) makes it clear that a certificate issued under
clause 267(3), (4) or (5) may be in a written or an electronic form. This
accommodates the practice of requests for disclosure, and the actual
disclosures, being made in an electronic form.
Clause 267(7) defines
terms used in this clause.
Clause 268 – ASIO
This
clause exempts persons from the prohibitions relating to disclosures in clauses
262 and 263, where the disclosure is made to an ASIO officer or employee
authorised by the Director-General of Security for that purpose, and is
connected with the performance of ASIO’s functions (clause
268(1)).
Clause 268(2) exempts persons from the prohibitions relating to
disclosures in clauses 262 and 263 respectively, where the disclosure is made to
an ASIO officer or employee authorised by the Director-General of Security for
the purpose, and an ASIO officer or employee authorised by the Director-General
of Security for the purpose has certified that the disclosure would be connected
with the performance of ASIO’s functions.
Clause 269 –
Assisting the ACA, the ACCC or the Telecommunications Industry
Ombudsman
This clause exempts persons from the prohibition relating
to disclosures in clause 262 where the disclosure is:
• made to the
ACA or an ACA staff member, and would assist the ACA to carry out its functions
or powers (clause 269(1));
• made to the ACCC or an ACCC staff
member, and would assist the ACCC to carry out its telecommunications functions
or powers (clause 269(2)); or
• made to the TIO or a TIO employee,
and would assist the TIO in the consideration of a complaint to it (clause
269(3)).
Clause 270 – Integrated public number
database
This clause exempts persons from the prohibition in clause
262 where the information or document disclosed or used:
• relates
to information contained in Telstra’s integrated public number database
that it is required to keep under Part 4 of Schedule 2 (paragraph
(a));
• relates to carriage services provided or proposed to be
provided to another person, or to the affairs or personal details of another
person (paragraph (b)); and
• is connected with directory services
provided by, or on behalf of, a carriage service provider, or the publication of
a public number directory, but not a directory that enables reverse-searching
(paragraph (c)).
Clause 270(2) defines terms used in this
clause.
Clause 271 – Calls to emergency service
number
This clause exempts persons from the prohibitions relating to
disclosures in clauses 262 and 263, where the information or document
disclosed:
• came to the person’s knowledge or possession as
a result of a call to an emergency service number (paragraph (a));
and
• the information relates to any of the matters specified
(paragraph (b)); and
• the disclosure is to a member of an
organisation concerned with the provision of, or response to, emergency call
services to facilitate dealing with the matters raised by the call (paragraph
(c)).
Clause 272 – Threat to person’s life or
health
This clause exempts persons from the prohibitions in clauses
262 and 263, where the information or document disclosed or used: relates to an
individual’s affairs or personal particulars (paragraph (a)); and the
person making the disclosure or use reasonably believes that the disclosure or
use is necessary to respond to a serious and imminent threat to the life or
health of a person (paragraph (b)).
Clause 273 – Communications
for maritime purposes
This clause exempts eligible persons and
emergency call persons from the prohibitions in clauses 262 and 263
respectively, where the disclosure or use: is reasonably necessary for
preserving human life at sea (paragraph (a)); or relates to locating a vessel at
sea and is made for maritime communications purposes (paragraph
(b)).
Clause 274 – Knowledge or consent of person
concerned
This clause exempts persons from the prohibitions in
clauses 262 and 263, where: the information or document disclosed or used
relates to an individual’s affairs or personal particulars (paragraph
(a)); and that individual is reasonably likely to have been aware or made aware,
that the information or document of that kind is usually disclosed or used in
the circumstances concerned, or that individual has consented to the disclosure
or use.
Clause 275 – Implicit consent of sender and recipient of
communication
This clause exempts persons from the prohibition in
clause 262 where the information or document disclosed or used relates to the
content of a communication (paragraph (a)) and it might reasonably be expected
that the sender and recipient of the communication would have consented to the
disclosure or use, had they been aware of it (paragraph (b)).
This clause
is intended to allow disclosure of public communications, for example, where a
carrier employee discusses the content of an on-line bulletin board, or the
content of a pay-television program carried on a cable network.
Clause
276 – Business needs of other carriers or service
providers
This clause exempts persons from the prohibition in clause
262 where the disclosure or use is: made by or on behalf of a carrier or
carriage service provider (paragraph (a)), for the purposes of facilitating
another carrier or service provider (that is, a carriage service provider or
content service provider) providing a service (paragraph (b)), to the person who
is the subject of the information or document (paragraph (d)), and that person
has been or is a customer of the disclosing carrier or carriage service provider
or the other carrier or service provider (paragraph (c)).
Clauses 276(2)
and (3) contain special rules that allow the disclosure or use of information
about customers for a purpose connected with a carriage service intermediary
arranging the supply of a carriage service by a carriage service provider to a
third person.
Clause 277 – Circumstances prescribed in the
regulations
This clause exempts persons from the prohibitions in
clauses 262 (clause 277(1)) and 263 (clause 277(2)) in circumstances prescribed
in the regulations.
This power enables any further situations to be
addressed where an eligible person or emergency call person, or persons
previously in those categories, may need to be able to disclose information. It
is possible that such situations will emerge during the operation of the new
legislation.
Clause 278 – Uses connected with exempt
disclosures
This clause exempts persons from the prohibitions in
clauses 262 (clause 278(1)) and 263 (clause 278(2)) where the use of information
or a document is made in connection with a disclosure that is authorised by this
Division.
Clause 279 – Generality of Subdivision not
limited
This clause makes it clear that none of the provisions in
Subdivision A of Division 3 of Part 13 can be used to ‘read down’
any of the other provisions in that Subdivision. In particular, the
regulation-making power in clause 277 cannot be read down by reference to the
specific exemptions in this Division to prevent the regulations creating similar
exemptions. This is important because the prohibitions in the Part have been
significantly widened from those applying in s.88 of the 1991 Act and the
regulation-making powers will be needed to address any unintended consequences
which may arise.
Subdivision B—Burden of proof
Clause 280 – Burden of proof
This clause provides for
the party who bears the burden of proof in relation to exceptions raised in any
proceedings instituted under Division 2 of Part 13. This clause does not apply
to the exemption in clause 272.
Clause 280(1) provides that the
exceptions specified in the Division are to be taken to be part of the
description of the offence. The consequence of this is that the prosecution
would have the persuasive burden of disproving any of the exceptions applied at
the time of the alleged offence. However, the defendant is to bear the
evidential burden in relation to an exception (clause 280(2)), that is, that
defendant would have the burden of adducing sufficient evidence to raise the
existence of the exception as an issue (clause 280(3)).
The reason the
burdens of proof have been allotted in this way is because it is Commonwealth
criminal law policy that it is not appropriate to place on a defendant the onus
of proving exceptions to an offence unless the matters to be proved are
peculiarly within the knowledge of the defendant and are difficult and
costly for the prosecution to disprove beyond reasonable doubt (and easy for the
defendant to establish). The exceptions provided for in this Division (other
than clause 272) do not relate to matters peculiarly within the
defendant’s knowledge.
Division 4—Secondary disclosure/use offences
This Division creates further offences for secondary or later disclosure
or use of information or documents that have been disclosed or used under
certain exceptions provided under Division 3 of Part 13.
Clause 281
– Performance of person’s duties
This clause prohibits
secondary or later disclosure or use of information or documents disclosed in
the performance of the duties of the person making the primary disclosure unless
the later disclosure or use is for the same purpose for which the information or
document was originally disclosed. The prohibition does not apply where the
information or document relates to the affairs or personal particulars of the
person to whom it has been disclosed.
Clause 282 – Authorisation
by or under law
This clause prohibits secondary or later disclosure
or use of information or documents disclosed as required or authorised by or
under law unless the later disclosure or use is required or authorised by or
under law.
Clause 283 – Law enforcement and protection of public
revenue
This clause prohibits secondary or later disclosure or use of
information or documents disclosed where the primary disclosure was reasonably
necessary for:
• the enforcement of the criminal law (clause
283(1));
• the enforcement of a law imposing a pecuniary penalty
(clause 283(2)); or
• for the protection of the public revenue
(clause 283(3));
unless the later disclosure or use is for the same
purpose for which the information or document was originally
disclosed.
Clause 284 – Assisting the ACA, the ACCC or the
Telecommunications Industry Ombudsman
This clause prohibits secondary
or later disclosure or use of information or documents disclosed for the purpose
of:
• the ACA carrying out its functions or powers (clause 284(1));
• the ACCC carrying out its functions or powers (clause 284(2));
or
• assisting the TIO in the consideration of a complaint made to
it (clause 284(3));
unless the later disclosure or use is for the same
purpose for which the information or document was originally
disclosed.
Clause 285 – Threat to person’s life or
health
This clause prohibits secondary or later disclosure or use of
information or documents disclosed, where the discloser believed it reasonably
necessary to respond to a serious and imminent threat to the life or health of a
person, unless the same criteria apply to the person who makes the later
disclosure.
Clause 286 – Communications for maritime
purposes
This clause prohibits secondary or later disclosure or use
of information or documents disclosed where:
• the disclosure was
reasonably necessary for preserving human life at sea (paragraph (a)); or
• relates to locating a vessel at sea and is made for maritime
communications purposes (paragraph (b));
unless the same criteria apply
to the later disclosure or use.
Clause 287 – Business needs of
other carriers or service providers
This clause prohibits secondary
or later disclosure or use of information or documents disclosed to meet certain
business needs of other carriers and service providers except where similar
criteria apply.
Clause 288 – Secondary offence - contravening
this Division
This clause makes it an offence to contravene Division
4 of Part 13, the penalty for which is a maximum of 2 years imprisonment. [Note
that the Crimes Act 1914 provides for conversion of imprisonment terms
into penalty units: for a natural person the number of penalty units is equal to
five times the number of months of the term of imprisonment (s. 4B(2)); for a
body corporate, it is five times the number of penalty units that are applicable
to a natural person, including penalty units applicable by virtue of s. 4B(2)
(s. 4B(3))].
Division 5—Record-keeping requirements
This Division provides for new requirements relating to the recording and
reporting of certain primary disclosures or uses of information or
documents.
Clause 289 – Associate
This clause defines
the term ‘associate’ as used in this Division.
Clause 290
– Certificates issued by authorised officers of enforcement
agencies
This clause sets out certain requirements in relation the
issuing, handling and retention of certificates issued by authorised officers
under clause 267(3), (4) or (5) (clause 290(1)).
The authorised officer
must give the carrier or carriage service provider concerned a copy of the
certificate within 5 days of issuing the certificate, if not sooner, whether the
certificate authorises the carrier/carriage service provider, or an associate of
the carrier/carriage service provider, to make the disclosure (clauses 290(2)
and (3)). Those copies may be given in electronic or written form (clause
290(4)).
A carrier or carriage service provider must retain the copy of
a certificate for 3 years (clause 290(5)) in an electronic or written form
(clause 290(6)). This will facilitate the monitoring function of the Privacy
Commissioner under clause 294.
Clause 291 – Record of
disclosures
This clause provides for records to be kept of exempt
disclosures made under Division 3, other than under clause 264, 268, 270, 275 or
276 (clause 291(1)).
Carriers and carriage service providers must make a
record of such disclosures they have made within 5 days of the disclosures and
retain the record for 3 years (clause 291(2)). This will facilitate the
monitoring function of the Privacy Commissioner under clause
294.
Associates of carriers and carriage service providers must make a
record of such disclosures they have made within 5 days of the disclosures and
give a copy of the record to the associated carrier or carriage service provider
(clause 291(3)), which the carrier or carriage service provider must retain for
3 years (clause 291(4)).
Clause 291(5) sets out the details that must be
included in a record of a disclosure required by clause 291(2) or
(3).
Clause 291(6) makes it clear that the record or a copy of it may be
kept in electronic or written form.
Clause 291(7) makes it an offence to
contravene the record-keeping requirements of this clause, the penalty for
which, in the case of a natural person, is a maximum of 300 penalty units and in
the case of a body corporate is a maximum of 1500 penalty units (under s. 4AA of
the Crimes Act 1914, a penalty unit is worth $100 - see also s. 4B(3) of
that Act).
Clause 292 – Incorrect records
This clause
makes it an offence (clause 292(2)) to incorrectly make a record in purported
compliance with clause 291 (clause 292(1)), the penalty for which is
imprisonment for 6 months. [Note that the Crimes Act 1914 provides for
conversion of imprisonment terms into penalty units: for a natural person the
number of penalty units is equal to five times the number of months of the term
of imprisonment (s. 4B(2)); for a body corporate, it is five times the number of
penalty units that are applicable to a natural person, including penalty units
applicable by virtue of s. 4B(2) (s. 4B(3))].
Clause 293 –
Annual reports to the ACA by carriers or carriage service
providers
This clause requires reports to be given annually to the
ACA regarding exempt disclosures to which the recording requirements of clause
291 apply.
Within 2 months of the end of each financial year, carriers
and carriage service providers must give a written report to the ACA regarding
the disclosures made during the financial year just ended (clause
293(1)).
The report to the ACA must include such details as the ACA
requires (clause 293(2)).
Clause 294 – Monitoring by the Privacy
Commissioner
This clause allows the Privacy Commissioner to monitor
compliance with the record-keeping requirements under clause 291 relating to
exempt disclosures. This is to be a function of the Commissioner additional to
those conferred on the Commissioner by the Privacy Act 1988 (clause
294(1)).
Clause 294(2) makes it clear that matters included in the
monitoring function are: whether the details of the record-keeping requirements
of clause 291 have been complied with, particularly the requirement to record
the grounds for a recorded disclosure (paragraph (a)); and whether the grounds
are covered by the exceptions provided in Division 3 (paragraph (b)).
Clause 294(3) requires carriers and carriage service providers to give
the Privacy Commissioner such access to their records as the Commissioner
reasonably requires for the purposes of his/her monitoring
function.
Clause 294(4) allows the Privacy Commissioner to make a written
report to the Minister concerning any matters arising from the performance of
his/her functions under this clause.
Clause 294(5) applies s. 99 of the
Privacy Act 1988, which deals with delegation of functions, to this
clause as if it were a provision of that Act.
Division 6—Instrument-making powers not limited
Clause 295 – Instrument-making powers not
limited
This clause makes it clear that none of the provisions of
Part 13 is to be taken to limit: any instrument-making power under this Act
(clause 295(1)); the scope of codes or standards referred to in Part 6 (clause
295(2)); or the operation of s. 33(3B) of the Acts Interpretation Act
1901 which allows different aspects of matters to be dealt with in an
exercise of legislative power even if that particular aspect is not specified in
the relevant enabling legislation.
Part 14—National interest matters
This Part imposes obligations on the ACA, carriers and carriage service
providers in relation to national interest matters. The provisions re-enact,
with some changes, s. 47 of the 1991 Act, the most significant changes being an
extension of the obligations to carriage service providers and the inclusion of
a power for carriage service providers to suspend the supply of a carriage
service in an emergency if requested to do so by a senior police
officer.
Clause 296 – Simplified outline
Clause 296
provides a simplified outline of this Part to assist readers.
Clause
297 – ACA’s obligations
Clause 297 imposes certain
obligations on the ACA in relation to national interest matters. The ACA is
required, in performing its telecommunications functions or exercising its
telecommunications powers, to do its best to prevent telecommunications networks
and facilities from being used to commit offences. The ACA is also required to
give officers and authorities such help as is reasonably necessary for enforcing
the criminal law and laws imposing pecuniary penalties, protecting the public
revenue, and safeguarding national security. The ACA and its officers,
employees or agents are granted immunity from liability for damages for an act
done or an omission made in good faith in performance of the duties imposed by
clause 297.
Clause 298 – Obligations of carriers and carriage
service providers
This clause imposes obligations on carriers and
carriage service providers similar to those imposed on the ACA in relation to
national interest matters. Carriers and carriage service providers are required
to do their best to prevent telecommunications networks and facilities from
being used to commit offences. Carriers and carriage service providers are also
required to give officers and authorities such help as is reasonably necessary
for enforcing the criminal law and laws imposing pecuniary penalties, protecting
the public revenue, and safeguarding national security. Carriers and carriage
service providers, and their officers, employees or agents, are granted immunity
from liability for damages for an act done or an omission made in good faith in
performance of the duties imposed by clause 298. These obligations and
protections extend to a special class of carriage service providers - carriage
service intermediaries who do not themselves supply a carriage service, but have
ongoing arrangements with a third party for the supply of such
services.
The reason for the provisions regarding immunity is to protect
a carrier or carriage service provider where actions are taken to assist law
enforcement agencies. For example, if a carrier is asked to disconnect a
service on the grounds that the police have evidence that it is being used for
illegal SP bookmaking purposes, the carrier should not be liable in damages for
acting in good faith to disconnect the service. Action could still be brought
by the person affected to seek a declaration that the service should be
reconnected or an injunction requiring reconnection.
Clause 299
– Terms and conditions on which help is to be given
Clause 299
is a new provision which applies if a person is required to provide help under
clause 298. It requires the person to provide help in accordance with the
requirement and on such terms and conditions as are agreed between the parties,
or failing agreement as determined by an arbitrator appointed by the parties.
If the parties fail to agree on the appointment of an arbitrator, then the ACA
is to appoint an arbitrator specified in a written determination made by the
Minister, after consulting with the Attorney-General. If an arbitration is
conducted by an arbitrator appointed by the ACA then the cost of the arbitration
must be shared equally between the parties.
Clause 300 –
Suspension of supply of carriage service in an emergency
This clause
allows a senior officer of a police force or service to request a carriage
service provider to suspend the supply of a carriage service in an emergency.
This provision is intended to authorise the carriage service provider to suspend
the supply of a carriage service in the circumstances envisaged, should it
decide to comply with the senior police officer’s request.
An
emergency is defined in clause 300(1) as a situation in which a senior police
officer has reasonable grounds to believe that an individual has access to a
particular carriage service, and the individual has:
• done an act that has resulted, or is likely to result, in loss of life or the infliction of serious personal injury; or
• made an imminent threat to kill or seriously injure another person; or
• made an imminent threat to cause serious damage to property; or
• made an imminent threat to commit suicide; or
• made an imminent threat to do an act that will, or is likely to, endanger his or her own life or create a serious threat to his or her own health or safety.
In any of these situations, a senior officer can request the relevant
carriage service provider to suspend the supply of the carriage service, if the
suspension is reasonably necessary to prevent a recurrence of an act such as
that mentioned above, or prevent or reduce the likelihood of a threat such as
those mentioned above being carried out.
A senior officer is defined as a
commissioned officer of a police force or service who holds a rank not lower
than the rank of Assistant Commissioner.
Clause 301 – Generality
of Part not limited
This clause ensures that none of the provisions
in this Part can be read down by reference to other provisions of the
Part.
Part 15—Co-operation with law enforcement agencies
This Part deals with interception capability requirements. The
provisions re-enact, with some changes, clauses 3.1 and 3.2 of the
Telecommunications (General Telecommunications Licences) Declaration (No. 2) of
1991 and clauses 8.1 and 8.2 of the Telecommunications (Public Mobile Licences)
Declaration (No. 2) of 1991 and s. 73A of the 1991 Act.
Division 1—Simplified outline
Clause 302 – Simplified outline
Clause 302 provides a
simplified outline of this Part to assist readers.
Division 2—Execution of warrants under the
Telecommunications (Interception) Act 1979
Clause 303 – Scope of Division
Division 2 applies to
all carriers, and classes of carriage service providers specified in a written
determination made by the Minister after consulting the Attorney-General. A
determination is a disallowable instrument which accordingly must be published
in the Gazette, tabled in the Parliament and is subject to disallowance
by the Parliament.
Clause 304 – Execution of
warrants
Clause 304 requires persons to whom the Division applies to
ensure that it is possible to execute a warrant issued under the
Telecommunications (Interception) Act 1979 in relation to carriage
services supplied by means of their controlled networks and controlled
facilities. In other words, if a warrant were issued to a law enforcement
agency authorising the interception of a communication passing over the
telecommunications network, facility or carriage service in question, the
network, facility or carriage service would be required to be capable of
enabling that interception to take place.
Clause 305 –
Exemptions
Clause 305 allows the Minister to make a written
determination exempting a specified person from the requirements under clause
304, after consulting the Attorney-General. The exemption may be unconditional
or subject to specified conditions, such as a requirement that the controlled
network or facility be modified within a certain period of time so that it is
possible, at the end of that period, to execute a warrant.
Division 3—Interception capability
Clause 306 – Scope of Division
Division 3 applies to
a carrier or carriage service provider who has been exempted by a determination
under clause 305 from the general rule in clause 304.
Clause 307
– Requirement to provide interception capability
This clause
provides that, notwithstanding an exemption from clause 304, the Minister may
give a carrier or carriage service provider a written notice requiring it to
have a specified kind of interception capability.
Clause 308 –
Interception capability to be provided
Clause 308 applies if a person
is subject to a requirement under clause 307. It requires the person to provide
interception capability in accordance with the requirement and on such terms and
conditions as are agreed between the person and the agency specified in the
requirement or, failing agreement, as determined by an arbitrator appointed by
the parties. If the parties fail to agree on the appointment of an arbitrator,
then the ACA is to appoint an arbitrator specified in a written determination
made by the Minister, after consulting with the Attorney-General. If an
arbitration is conducted by an arbitrator appointed by the ACA then the cost
must be shared equally between the parties.
Clause 309 – Terms
and conditions – compliance with principles
Clause 309 provides
that the terms and conditions in place under clause 308 must comply with the
principles that:
• the carrier or carriage service provider is to incur the costs of creation or development of the interception capability; and
• the carrier or carriage service provider can recover the costs of
providing interception capability over time from the agency or agencies
concerned.
Clause 310 – Terms and conditions – timing of
implementation of requirement
This clause provides that the terms and
conditions in place under clause 308 may relate to the timing of implementation
of interception capability.
Clause 311 – Meaning of
interception capability
This clause defines
‘interception capability’ to mean that if a warrant were issued to
an agency authorising the interception of a communication passing over the
telecommunications network, facility or carriage service in question, the
network, facility or carriage service would be capable of enabling that
interception to take place.
Clause 312 – Expressions to have the
same meaning as in the Telecommunications (Interception) Act
1979
Expressions used in Division 3 and the Telecommunications
(Interception) Act 1979 have the same meaning.
Clause 313 –
Meaning of agency
Clause 313 provides that
‘agency’ includes Commonwealth and State law enforcement agencies
which may apply for warrants under Part III of the Telecommunications
(Interception) Act 1979, as well as the Australian Security Intelligence
Organisation.
Division 4—Consultation about new technology
Clause 314 – Designated agency
Clause 314 lists a
number of law enforcement agencies which are ‘designated agencies’
for the purposes of Division 4.
Clause 315 – Consultation about
new technology – advisory committee established
Clause 315
applies if the ACA has established an advisory committee for the purposes of
consulting with law enforcement agencies about new technology. It requires
carriers and carriage service providers to consult designated agencies about the
use and development of new technology using the advisory committee as the
forum.
Clause 316 – Consultation about new technology – no
advisory committee established
Clause 316 applies if there is no
advisory committee established by the ACA. In that case, carriers and carriage
service providers are to consult designated agencies about the use and
development of new technology in accordance with ACA directions.
The
requirement to consult about new technology under clauses 315 and 316 is
intended to provide law enforcement agencies with an opportunity to assess
whether or not prospective new telecommunications services should have
interception capability.
Clause 317 – Exemptions
This
clause allows the Minister to exempt specified classes of persons from the
requirements of this Division, after consulting the Attorney-General. An
exemption may be subject to conditions.
Part 16—Defence requirements and disaster plans
This Part imposes community service obligations on carriers and carriage
service providers in relation to defence purposes and the management of
disasters.
Division 1—Introduction
Clause 318 – Simplified outline
This clause provides
a simplified outline of this Part to assist readers.
Clause 319
– Defence authority
Clause 319 defines a ‘defence
authority’ as the Secretary to the Department of Defence, or the Chief of
the Defence Force.
Division 2—Supply of carriage services
Clause 320 – Requirement to supply carriage services for defence
purposes or for the management of natural disasters
Clause 320 allows
a defence authority to require, by written notice, a carriage service provider
to supply a specified carriage service for the use of the Department of Defence
or the Defence Force. The carriage service must be required for defence
purposes, or the management of natural disasters, or both. ‘Defence
purposes’ is defined in clause 7. A defence authority may issue a notice
which requires a carriage service provider to supply a carriage service in
particular circumstances, however this notice is of no effect if the ACA issues
a written certificate stating that it would be unreasonable for the provider to
be required to supply the service in those circumstances. If a requirement is
in force, the provider must supply the carriage service in accordance with the
requirement and on such terms and conditions as are agreed between the parties,
or failing agreement, as are determined by an arbitrator appointed by the
parties. If the parties fail to agree on the appointment of an arbitrator, then
the ACCC is to be the arbitrator. It is expected that the ACCC will have regard
to the types of issues it is required to consider in arbitrating disputes under
proposed Part XIC of the TPA to be inserted by the proposed Trade Practices
Amendment (Telecommunications) Act 1996 and would follow similar procedures.
The regulations may make provision for and in relation to the conduct of an
arbitration under this clause.
Division 3—Defence planning
Clause 321 – Definitions
Clause 321 defines certain
terms used in Division 3.
Clause 322 – Preparation of draft
agreement
Under this clause a defence authority may prepare a draft
agreement between the defence authority and a carrier or carriage service
provider, about planning for network survivability or operational requirements
in times of crisis, or both. The draft agreement must be prepared in
consultation with the carrier or carriage service provider
concerned.
Clause 323 – ACA’s certification of draft
agreement
Clause 323 allows the ACA to certify a draft agreement
prepared under clause 322 if it believes that the agreement is reasonable. In
deciding whether to certify a draft agreement, the ACA must have regard to
whether the agreement deals with listed matters in a reasonable way. These
matters are: consultation with a defence authority about maintenance,
installation, modification and removal of networks or facilities; consultation
with a defence authority about operational requirements in times of crisis;
protection of confidential information; grants of financial assistance by the
Commonwealth. In determining what is ‘reasonable’, the ACA must
have regard to the needs of the Department of Defence and the Defence Force, and
the interests of the carrier or carriage service provider concerned. This does
not limit the meaning of ‘reasonable’. The ACA must consult the
parties to the agreement, and must give each party a written notice setting out
its decision whether or not to certify a draft agreement.
Clause 324
– Requirement to enter into certified agreement
Clause 324
applies if the ACA has certified a draft agreement under clause 323. A defence
authority may give the carrier or carriage service provider concerned a written
notice requiring it to enter into the agreement within 30 days after receipt of
the notice. The carrier or carriage service provider must comply with the
notice.
Clause 325 – Compliance with agreement
This
clause requires a carrier or carriage service provider who has entered into a
certified agreement to comply with the agreement for as long as it remains in
force.
Clause 326 – Withdrawal of certification of
agreement
Clause 326 requires the ACA to withdraw certification of an
agreement in force at a particular time if it believes that it would refuse
certification at that time if the agreement were a draft agreement. The ACA
must give each party to the agreement written notice that it has withdrawn its
certification as soon as practicable after its withdrawal.
Clause 327
– Duration of agreement
A certified agreement remains in force
until it is revoked under this clause, either by the parties entering into a
fresh certified agreement expressed to replace the original agreement, or by the
ACA withdrawing certification of the agreement under clause
326.
Clause 328 – Variation of agreement
Clause 328
applies if a certified agreement is in force. A defence authority may prepare a
draft variation of the agreement, in consultation with the carrier or carriage
service provider concerned. The ACA must certify the variation if the agreement
as varied would have been certified were it a draft agreement. The ACA must
consult the parties to the agreement, and must give each party a written notice
setting out its decision whether or not to certify the variation.
Division 4—Disaster plans
Clause 329 – Designated disaster plans
This clause
defines a ‘designated disaster plan’ as a plan that is for coping
with disasters and/or civil emergencies, and is prepared by the Commonwealth, a
State or a Territory.
Clause 330 – Carrier licence conditions
about designated disaster plans
Clause 330 provides that an
instrument under clause 63 may require compliance with one or more specified
disaster plans as a carrier licence condition.
Clause 331 –
Service provider determinations about designated disaster
plans
Clause 331 provides that a service provider determination under
clause 98 may require specified carriage service providers to comply with one or
more specified disaster plans.
Division 5—Delegation
Clause 332 – Delegation
Under this clause, the Secretary
to the Department of Defence may, by writing, delegate any or all of his or her
powers under this Part to a person holding or performing the duties of a Senior
Executive Service office within the meaning of the Public Service Act
1922. Similarly, the Chief of the Defence Force may, by writing, delegate
all or any of his or her powers under this Part to a person holding a senior
rank (Commodore in the Royal Australian Navy, Brigadier in the Australian Army,
Air Commodore in the Royal Australian Air Force).
Part 17—Pre-selection in favour of carriage service providers
Pre-selection requirements are intended to facilitate competition by
enabling customers to choose their preferred carriage service provider and
change that preference from time to time, or make use of over-ride dial codes to
choose a different carriage service provider, on a call-by-call basis. This is
important to facilitate the development of competition in the supply of
telecommunications services. This Part requires the ACA to set a minimum
requirement of pre-selection in relation to calls made using a standard
telephone service. It is intended that this determination will apply to
end-users’ requirements for domestic long-distance and international
calls. The provisions provide flexibility for pre-selection requirements to be
extended to other carriage services in the future.
Clause 333 –
Simplified outline
Clause 333 provides a simplified outline of this
Part to assist readers.
Clause 334 – Requirement to provide
pre-selection
Clause 334 gives the ACA responsibility for setting
pre-selection requirements. Clause 334(1) requires the ACA to make a written
determination requiring carriers and carriage service providers supplying a
standard telephone service to provide pre-selection in favour of a specified
carriage service provider in relation to the standard telephone service. Clause
334(5) makes it clear that a reference to a standard telephone service in this
case is not a reference to a service supplied by means of a public mobile
telecommunications service. Clause 334(2) allows the ACA to make a written
determination requiring carriers and carriage service providers supplying a
specified carriage service to provide pre-selection in favour of a specified
carriage service provider in relation to calls made using that carriage service.
In making determinations under clause 334 the ACA must have regard to the
technical feasibility and the costs and benefits of providing pre-selection, and
must consult the ACCC.
A determination under this clause may specify a
carriage service provider in favour of whom pre-selection is to be provided. It
is expected that the ACA will have regard to whether the carriage service
provider is able to terminate all calls (‘universal terminating
access’). This is to ensure that carriage service providers are not able
to limit their pre-selection to certain calls only (for example, domestic
long-distance between Sydney and Melbourne) but must be able to terminate in
relation to all calls for which they are pre-selectable.
Clause 334(3)
requires the ACA to have regard to the technical feasibility and costs and
benefits of pre-selection when making a determination under clause 334(1) or
(2). It is intended that in relation to a determination made under clause
334(1) the ACA will have regard to the criteria when considering the manner in
which pre-selection is provided and any ancillary or incidental rules, as well
as, for example, which of the end-users’ requirements are to be specified
and which carriage service provider should be specified in the determination.
In relation to a determination made under clause 334(2), it is intended that the
ACA will have regard to the criteria when considering whether the carriage
service in question should be made subject to the pre-selection requirement, as
well as the other matters it would have regard to when making a determination
under clause 334(1).
In making a determination, the ACA may apply, adopt
or incorporate matters contained in codes or standards of any body or
association (clause 334(7)). This will enable the ACA to readily adopt
pre-selection arrangements that the industry has been able to reach agreement
upon itself.
Clause 334(8) indicates that this clause does not apply to
the use of public mobile telecommunications services. Pre-selection is of
assistance to end-users with fixed line local access to telecommunications
networks because it is difficult for such end-users to change carriage service
providers. End-users of public mobile telephone services do not have the same
problem when they wish to change carriage service providers because there is
competitive supply of readily accessible services.
Clause 334(9) provides
that a determination is a disallowable instrument which must be published in the
Gazette and is subject to Parliamentary disallowance.
Clause
335 – When pre-selection is provided in favour of a carriage service
provider
Clause 335 defines pre-selection. It provides that a
determination made under clause 334 must meet certain criteria if it is to
establish pre-selection: controlled networks and facilities enable an end-user
to pre-select their preferred carriage service provider in relation to calls
made using a carriage service, and change that selection from time to time;
controlled networks and facilities enable an end-user to make separate
pre-selection for the end-user’s requirements, in relation to that
carriage service, as specified in the determination; controlled networks and
facilities provide over-ride dial codes for selecting alternative carriage
service providers, in relation to that carriage service, on a call-by-call
basis. ‘Controlled network’ and ‘controlled facility’
are defined in clause 14. ‘End-user’ is defined in relation to a
network or facility as an end-user of a carriage service that involves the use
of the network or facility. ‘End-user’s requirements’
includes, at a minimum, requirements relating to domestic long-distance and
international calls. It is expected that pre-selection for domestic
long-distance and international calls will initially be provided as a single
basket, however the ACA may determine whether there should be multi-basket
pre-selection in future, having regard to the criteria listed in clause
334(3).
Clause 336 – Pre-selection to be
provided
Clause 336 applies if a determination under clause 334
requires a person to provide pre-selection. It requires the person to provide
pre-selection in accordance with the determination and on such terms and
conditions as are agreed between the parties, or failing agreement, as are
determined by an arbitrator appointed by the parties. If the parties fail to
agree on the appointment of an arbitrator, then the ACCC is to be the
arbitrator. It is expected that the ACCC will have regard to the types of
issues it is required to consider in arbitrating disputes under proposed Part
XIC of the TPA to be inserted by the proposed Trade Practices Amendment
(Telecommunications) Act 1996 and would follow similar procedures. The
regulations may make provision for and in relation to the conduct of an
arbitration under this clause.
Clause 337 – Exemptions from
requirement to provide pre-selection
Clause 337 enables the ACA to
exempt a specified carrier or carriage service provider from a requirement
imposed in a determination under clause 334. In deciding whether a carrier or
carriage service provider should be exempted, the ACA must have regard to
whether it would be technically feasible to comply with the requirement, and
whether compliance with the requirement would impose unreasonable financial
hardship. This list does not limit the matters to which the ACA may have regard
when deciding whether to grant an exemption. A decision to refuse to make an
exemption is subject to merits review under Part 29 (see Schedule
4).
Clause 338 – Use of over-ride dial codes
Clause
338 applies to a carriage service provider who is required to provide over-ride
dial codes in accordance with a determination under clause 334. That carriage
service provider must ensure that each end-user is able to make use of over-ride
dial codes for selecting alternative carriage service providers on a
call-by-call basis, unless in the ACA’s opinion it would not be
technically feasible or would impose unreasonable financial hardship on the
carriage service provider. This is intended to ensure that a carriage service
provider does not restrict customers who are pre-selected to it from using
over-ride dial codes, for example, to take the benefit of a special deal offered
by another carriage service provider. This clause does not prevent a carriage
service provider who has been selected by an over-ride dial code from refusing
to supply a carriage service to the end-user concerned. For example, where a
carriage service provider who is selected by use of an over-ride dial code is
aware that the customer has a history of bad debts, this clause does not oblige
the carriage service provider to supply the service to that customer.
Part 18—Calling line identification
Calling line identification was previously addressed in
Telecommunications (General Telecommunications Licences) Declaration (No. 2) of
1991 and Telecommunications (Public Mobile Licences) Declaration (No. 2) of
1991. Calling line identification is useful in fulfilling community service
obligations imposed on the industry, including those relating to disclosure of
information to emergency service organisations and law enforcement agencies.
Calling line identification is also useful for inter-carrier billing purposes,
but note that standard access rights under proposed Part XIC of the TPA to be
inserted by the proposed Trade Practices Amendment (Telecommunications) Act
1996 also address access to billing information.
Clause 339
– Simplified outline
Clause 339 provides a simplified outline
of this Part to assist readers.
Clause 340 – Calling line
identification
Clause 340 requires carriers and carriage service
providers whose controlled facilities consist of a switching system used in
connection with the supply of a standard telephone service to take all
reasonable steps to ensure that the system is capable of providing calling line
identification. The ACA may make a written determination for the purposes of
extending this requirement to switching systems for services other than the
standard telephone service. The requirements apply to switching systems
installed on or after 1 July 1997, and to switching systems capable of providing
calling line identification immediately before 1 July 1997.
A
determination made under this clause is a disallowable instrument which must be
published in the Gazette and is subject to Parliamentary
disallowance.
Clause 341 – Exemptions from calling line
identification requirement
This clause allows the ACA to exempt
persons from the requirements set out in clause 340. In deciding whether a
person should be exempt from those requirements, the ACA must have regard to
whether it would be unreasonable to impose the requirement and whether it is in
the public interest to impose the requirement. This list does not limit the
matters to which the ACA may have regard when granting an exemption.
The
exposure draft of the provisions also required the ACA to have regard to whether
the switching system in question was purchased for maintenance or upgrade
purposes. This requirement has not been specifically included as it is a matter
that the ACA could consider in deciding whether it would be unreasonable to
impose the requirement under clause 341(2)(a).
A decision to refuse to
make an exemption is subject to merits review under Part 29 (see Schedule
4).
Part 19—Advanced Mobile Phone System (AMPS)
This Part provides for the Advanced Mobile Phone System (AMPS) to be
phased out by 1 January 2000. This replicates the existing phase-out
arrangements in the Telecommunications (Public Mobile Licences) Declaration (No.
1) of 1991.
Clause 342 – Simplified outline
Clause
342 provides a simplified outline of this Part to assist
readers.
Clause 343 – Meaning of AMPS
Clause
343 defines ‘AMPS’, and notes that it does not incorporate digital
modulation techniques. The phase-out plan is intended to apply only to the
analogue AMPS system currently supplied by Telstra’s AMPS network. It
does not apply to the separate technology known as Digital AMPS or
‘D-AMPS’.
Clause 344 – Scope of
Part
Clause 344 provides that this Part applies to carriers and
carriage service providers.
Clause 345 – No new
AMPS
Clause 345 provides that before 1 January 2000 only Telstra may
install or operate an AMPS network.
Clause 346 – AMPS to be
phased out
Clause 346 provides that on or after 1 January 2000, no
person may install or operate an AMPS network. Before 1 January 2000, a person
must comply with any written plan determined by the Minister in relation to the
phasing out of AMPS. A plan determined by the Minister for this purpose may
apply, adopt or incorporate the provisions of any frequency band plan made under
the Radcom Act.
Clause 347 – Limited exemption from phase-out of
AMPS
Clause 347 provides for a limited exemption from the phase-out
of AMPS. A person may install or operate an AMPS network on or after 1 January
2000 if the Minister and each eligible mobile carrier agree in writing, or the
Minister agrees in writing after consulting each eligible mobile carrier and
having determined that there would not be an undue erosion of the practical
value to an eligible mobile carrier of the phase-out of AMPS provided for under
clauses 345 and 346. ‘Eligible mobile carrier’ means a person who
was a mobile carrier under the 1991 Act immediately before 1 July
1997.
Clause 348 – Competition not to be
reduced
Clause 348 prohibits a person who installs or operates an
AMPS network from using the installation or operation of the network in a way
that could unfairly reduce competition in the market for public mobile
telecommunications services. This clause replicates clause 2.4 of the
Telecommunications (Public Mobile Licences) Declaration (No. 1) of
1991.
Part 20—International aspects of activities of the telecommunications industry
This Part deals with three aspects of international telecommunications
activities: access to INTELSAT and Inmarsat via their Australian Signatories;
compliance with international conventions; and Rules of Conduct to apply to
carriers and carriage service providers in their dealings with international
telecommunications operators.
The Part is closely modelled on Division 4
of Part 5 of the 1991 Act. The major changes in the new Part are as
follows:
• the new provisions apply to carriage service providers
as well as carriers;
• the removal of the requirements in the 1991
Act for carriers to comply with foreign laws;
• the merging of
approaches to regulate carrier and service provider dealings with international
telecommunications operators;
• clarification of the purpose of the
Rules of Conduct; and
• making the ACCC responsible for the
administration of the Rules of Conduct.
Division 1—Simplified outline
Clause
349 – Simplified outline
This clause provides an outline
of Part 20 to assist readers.
Division 2—Compliance with international agreements
Clause 350 – INTELSAT and Inmarsat – directions to
Signatories
Clause 350 is based on s. 74 of the 1991 Act, but
includes substantial modifications. The clause gives the Minister a power of
direction over a carrier or carriage service provider that has been designated
by the Commonwealth as an Australian Signatory to the international satellite
consortia, INTELSAT or Inmarsat. The Commonwealth requires such a power for two
reasons.
First, and most tangibly, as INTELSAT and Inmarsat currently
operate, a Signatory may control Australian access to INTELSAT or Inmarsat
satellite capacity and it may use that position to damage competition. This is
because each organisation currently only allows one Signatory per member
country. While any access issues should generally be resolved under the Part
XIC access arrangements, as an additional safeguard this clause provides the
Commonwealth with a reserve power of intervention, consistent with the special
rights and obligations a Signatory derives from its designation. If multiple
Signatoryship is adopted in INTELSAT and Inmarsat, this reason for the direction
power is likely to lessen in importance.
Second, while Signatories are
principally concerned with operational matters, the positions they adopt in
international meetings and their decisions may have broader policy implications
and it may be appropriate, in some instances, for the Commonwealth to be able to
direct a Signatory in relation to certain issues. These issues may include
institutional reform, reform of the international satellite market and the
delivery of international public service obligations. Article 4(b) of the
Inmarsat Convention also requires a Party to ‘provide such guidance and
instructions as are appropriate and consistent with its domestic law to ensure
that the Signatory fulfils its responsibilities’.
Clause 350(1)
makes the clause apply to a person that is a carrier or a carriage service
provider and that has been designated by the Commonwealth as a Signatory within
the meaning of the INTELSAT Agreement or Inmarsat Convention.
Clause
350(2) enables the Minister to give a person designated as a Signatory such
written directions as the Minister thinks necessary in relation to the
person’s performance of the person’s functions as a Signatory within
the meaning of the INTELSAT Agreement or Inmarsat Convention. Both carriers and
carriage service providers can be directed because it is conceivable that both
may be designated as Signatories.
To streamline the legislation, this
provision merges the powers of notification and direction that existed under the
1991 Act into a single but wider power. This is achieved because the
Minister is able to give such directions as he or she ‘thinks necessary
in relation to the person’s performance of the person’s
functions as a Signatory’. The power should enable the Minister to give
directions setting out both general policies as well as more specific actions
with which the Signatory is to comply.
Clause 350(3) prevents the
Minister giving a direction under clause 350(2) that relates to the manner in
which the person is to deal with a particular customer. This provision is
intended to prevent the Minister making directions that may favour particular
persons seeking access to INTELSAT or Inmarsat capacity. It is intended that
any direction made by the Minister should be generic.
Clause 350(4)
requires a person to comply with a direction under clause 350(2). Under the
standard licence conditions and standard service provider rules it is a
requirement to comply with the Act (including this provision).
Clause
351 – Compliance with conventions
The provision enables the Minister to require carriers and carriage service
providers to comply with conventions or parts of conventions of which they are
notified. The provision is based on ss. 74 and 75 of the 1991 Act but includes
substantial modifications. The provision will enable the Minister to require
carriers and carriage service providers to comply with conventions or parts of
conventions not otherwise incorporated into Australian law.
Clause 351(1)
makes this clause apply to a person that is a carrier or carriage service
provider.
Clause 351(2) enables the Minister to declare, by a notice
published in the Gazette, that a specified convention is binding in
relation to members of a specified class of persons. Notification by gazettal,
rather than individual notification, has been chosen to minimise the
administrative burden in a multi-carrier environment.
Clause 351(3)
requires a person in a specified class to act in a way consistent with
Australia’s obligations under a notified convention in connection with the
operation of telecommunications networks or facilities or the supply of carriage
services.
Clause 351(4) is similar to clause 351(2) but enables the
Minister to declare, by a notice published in the Gazette, that a
specified part of a convention is binding in relation to members of a specified
class of persons. The ability to specify a part of a convention will enable
compliance to be limited to particular appropriate sections of a convention
which also deals with other matters. Notification by gazettal, rather than
individual notification, has been chosen to minimise the administrative burden
in a multi-carrier environment.
Clause 351(5) requires a person in a
specified class to act in a way consistent with Australia’s obligations
under a notified part of a convention in connection with the telecommunications
networks or facilities or the supply of carriage services.
Clause
351(6) defines ‘convention’ for the purposes of this clause.
‘Convention’ means a convention to which Australia is a party or an
agreement or an arrangement between Australia and another country. The term
‘convention’ includes a treaty.
Division
3—Rules of Conduct about dealings with international
telecommunications operators
In introducing competition in telecommunications in 1991, Australia
recognised the potential for telecommunications businesses based in other
countries to take unfair advantage of Australia’s liberal market. The two
key concerns were the abuse by international telecommunications operators
outside Australia of power in a market outside of Australia, especially where
they had a monopoly, and the unfair advantage that international service
providers operating in Australia might derive through affiliation with such a
partner outside Australia.
These matters are likely to continue to be
of concern after 1 July 1997. It is envisaged that the new access and
anti-competitive conduct provisions will be able to be used to deal with some
aspects of unacceptable conduct by an international telecommunications operator
where the operator or an affiliate has a commercial presence in Australia (eg.
where the operator engages in preferential far-end termination of its own or an
affiliate’s traffic.) In addition, clause 352 enables the Government to
deal with such concerns by empowering the Minister to make Rules of Conduct to
govern dealings between carriers and service providers supplying international
carriage services in Australia and their correspondents outside Australia.
Division 3 effectively merges and streamlines the International Code of
Practice and relevant class licence provisions under s. 77 and Part 10 of the
1991 Act. Steps have also been taken to clarify the concept under the 1991 Act
of ‘misuse of market power’, which in the Bill has been replaced by
the concept of ‘engaging in unacceptable conduct’.
To ensure
Australia’s national interest can be protected, the head of power for the
Rules of Conduct is broad, as is the case with the corresponding head of power
in the 1991 Act. The extent to which the power is invoked will depend on actual
circumstances. It is possible that the power will be held in reserve, to be
invoked should the need arise. Before making Rules, the Minister would have
regard to Australia’s international obligations, including those in
relation to the World Trade Organisation (WTO), which are still being formulated
in the negotiations of the Group on Basic Telecommunications (GBT).
While
the Act is expressed to have extraterritorial effect (thus not constraining the
ability of the Rules to address matters of concern arising because of activities
undertaken in foreign markets), the Rules themselves apply to carriers and
service providers operating in Australia, rather than their correspondents
outside Australia. This is because of the legal and practical difficulties in
imposing and enforcing Australian law outside
Australia.
Clause
352 – Rules of Conduct about dealings with international
telecommunications operators
Clause 352(1) is an interpretation
provision that defines when, for the purposes of clause 352, an international
telecommunications operator ‘engages in unacceptable conduct’. The
idea of ‘unacceptable conduct’ has been used instead of the concept
of ‘misuse of market power’ used in the 1991 Act to avoid semantic
arguments as to whether certain conduct might in fact be a ‘misuse’
of market power. References to ‘national interest’ are, of course,
references to Australia’s national interest. ‘International
telecommunications operator’ is defined in clause 352(6). An
international telecommunications operator engages in unacceptable conduct if,
and only if, one of three situations occur.
First, under clause
352(1)(a), an operator engages in unacceptable conduct if the operator uses, in
a manner that is, or is likely to be, contrary to the national interest, the
operator’s power in a market for carriage services; goods or services for
use in connection with the supply of carriage services; or the installation of,
maintenance of, or provision of access to telecommunications networks or
facilities.
In this provision, power in a market is intended to refer to
actual commercial power rather than power that may derive from legal status
(which is dealt with in the following paragraph). Unlike in s. 4E of the TPA,
‘market’ is not constrained to being a market in Australia. It is
also intended that power in a market may refer to power in a market in Australia
or any other country. This explicitly recognises that an international
telecommunications operator’s ability to engage in unacceptable conduct
may derive from power in a market in Australia, not necessarily from power in a
market overseas. For example, a person who is a carrier in Australia may have
only a small operation in another country and not have power in a market in that
country, but may still be able to engage in unacceptable conduct, particularly
in relation to telecommunications traffic between that country and Australia
because of its power in a market in Australia.
Second, under clause
352(1)(b), a person engages in unacceptable conduct if the operator uses, in a
manner that is, or is likely to be, contrary to the national interest, any legal
rights or status that the operator has because of foreign laws that relate to
carriage services; goods or services for use in connection with the supply of
carriage services; or the installation of, maintenance of, or provision of
access to telecommunications networks or facilities.
Third, under clause
352(1)(c), a person engages in unacceptable conduct if the operator engages in
any other conduct that is, or is likely to be, contrary to the national
interest. This provision is intended to be a general catch-all provision
enabling the Government to respond to unacceptable conduct that does not derive
from the sources specified in clause 352(1)(a) or (b). In particular, the
paragraph is intended to safeguard against arguments that conduct is not
unacceptable because it does not meet the criteria specified in clause 352(1)(a)
and (b).
A range of conduct could potentially be a addressed under clause
352(1), including refusal to deal and preferential termination
arrangements.
In exercising the power, the Minister will have due regard
to Australia’s international obligations, including those under the
WTO.
Clause 352(2) provides that the Minister may make Rules of Conduct
with a view to preventing, mitigating or remedying unacceptable conduct by an
international telecommunications operator. These rules
may:
• prohibit or regulate dealings by either or both carriers and
carriage service providers with international telecommunications operators and
with other people;
• authorise the ACCC to make determinations of a
legislative character in relation to dealings with international
telecommunications operators;
• authorise the ACCC to give
directions of an administrative character in relation to dealings with
international telecommunications operators;
• require carriers and
carriage service providers to comply with ACCC legislative determinations and
administrative directions; or
• authorise the ACCC to make
information available to the public, a specified class of person or a specified
person.
The Rules of Conduct may, therefore, enable the Minister to
specify the precise requirements to apply to carriers and carriage service
providers in their dealings with international telecommunications operators or
enable the Minister to delegate this role to the ACCC. This dual capability
reflects the Minister’s power to determine the International Code of
Practice and AUSTEL’s ability to issue a class licence in relation to
international services under the 1991 Act. The involvement of the ACCC reflects
the large extent to which the Rules will deal with matters affecting competition
in the supply of international services. The ability for the ACCC to perform
this role, as well as administer the Rules of Conduct, is seen as desirable
given that close supervision of this area of activity may be appropriate,
particularly in the early period of open competition.
The Rules may, for
example, require carriers or carriage service providers to use all reasonable
endeavours to prevent unacceptable conduct by an international
telecommunications operator. The disclosure of information relating to dealings
is seen as both a potential disincentive, and remedy, for unacceptable
conduct.
Clause 352(3) provides that before the ACCC makes a
determination or gives a direction under the Rules of Conduct, it must consult
with the ACA. This is to ensure the ACA, as a specialist telecommunications
regulator, has an opportunity to comment on the ACCC’s proposed course of
action, particularly in recognition that the ACCC’s determinations and
directions under the Rules of Conduct may have implications for areas in
telecommunications other than competition.
Rules of Conduct are
disallowable instruments (clause 352(4)). An ACCC determination of a
legislative character is also a disallowable instrument (clause
352(5)).
Clause 352(6) defines an ‘international telecommunications
operator’ as a person carrying on activities outside Australia that
involve:
• the supply of carriage services where the carriage
service is: between a point in Australia and one or more other points, at least
one of which is outside Australia; or between a point outside Australia and one
or more other points, at least one of which is in Australia;
and
• the supply of goods and services for use in connection with
the supply of the aforementioned carriage services; and
• the
installation of, maintenance of, operation of, or provision of access to,
telecommunications networks or facilities used to supply the aforementioned
services.
An ‘international telecommunications operator’ is
intended to include a person who is a transit carrier, that is, a third person
who carries a communication between its origination and termination points but
neither originates nor terminates the call. The concept of ‘international
telecommunications operator’ is indifferent to nationality and is intended
to include Australian persons operating outside Australia.
Clause 352(7)
defines the terms ‘engaging in conduct’, ‘foreign law’
and ‘international telecommunications operator’.
Clause
353 – ACCC to administer Rules of Conduct
Given that one of the
main purposes of the Rules of Conduct is promoting fair competition in the
supply of carriage services between Australia and places outside of Australia,
this clause provides that the Rules of Conduct will be administered by the
ACCC.
To support the ACCC in its administration of its functions under
clause 352, it is proposed to amend the TPA to enable the ACCC to make
record-keeping rules (proposed s. 151BU of the TPA to be inserted by item 6 of
Schedule 1 to the proposed Trade Practices Amendment (Telecommunications) Act
1996) and to obtain information (see items 7 to 9 of Schedule 1 to the
proposed Trade Practices Amendment (Telecommunications) Act 1996) for the
purposes of Part 20. The ACCC may investigate a contravention of the Rules of
Conduct (clause 356). The ACCC must also review and report on the operation of
Division 3 dealing with the Rules of Conduct each financial year or if directed
by the Minister (clause 357).
Clause 354 – Rules of Conduct to
bind carriers and carriage service providers
The Rules of Conduct are
binding on carriers and carriage service providers and any agreement made by a
carrier or carriage service provider that is inconsistent with the Rules of
Conduct is unenforceable (see clause 355).
Clause 355 –
Unenforceability of agreements
If an agreement or provision of an
agreement is unenforceable because of clause 354, that agreement or provision
cannot be enforced or relied on by way of defence or otherwise. A party to the
agreement is not entitled to recover by any means any amount payable under or in
connection with such an agreement or provision (clause 355(3)).
Clause
356 – Investigations by the ACCC
The ACCC is not prevented from
carrying out an investigation of a contravention of Rules of Conduct in force
under clause 352. If the ACCC begins an investigation of a contravention of the
Rules of Conduct, the ACCC must notify the ACA accordingly; and consult the ACA
about any significant developments that occur in the course of that
investigation.
Clause
357 – Reviews of the operation of this Division
The ACCC
must review, and report each financial year to the Minister on, the operation of
this Division (clause 357(1)). It must do this as soon as practicable after the
end of the financial year concerned (clause 357(2)).
If directed by the
Minister, the ACCC must also review and report to the Minister, within the time
specified in the direction, on specified matters relating to the operation of
this Division (clauses 357(3) and (4)).
The Minister must cause a copy
of a report under clause 357 to be laid before each House of the Parliament
within 15 sitting days of that House after receiving the report (clause
357(5)).
Part 21—Technical regulation
This Part establishes a scheme for the technical regulation of
telecommunications. The fundamental policy approach reflected in the scheme is
to rely primarily on industry self-regulation with the regulatory body empowered
to intervene only where it is considered necessary for limited purposes relating
to ensuring certain safeguards are maintained. It is industry that has the
technical expertise and commercial motivation to devote resources to standards
development and ensure that appropriate standards are adopted. This approach is
similar to that already practised by the Spectrum Management Agency under the
Radcom Act for the technical regulation of radiocommunications. Amendments to
the Radiocommunications Act, to align the technical regulation of
radiocommunications closely with the new scheme for telecommunications, are set
out in Part 4 of Schedule 2 to the proposed Telecommunications (Transitional
Provisions and Consequential Amendments) Act 1996 which forms part of the
same legislative package of which this Bill is a part.
The ACA is given
the power to make technical standards about customer equipment and customer
cabling that is connected to public networks or facilities, but the ACA is
restricted to matters which are inappropriate for self-regulation,
namely:
• protecting:
− the integrity of a
telecommunications network or a facility; or
− the health and safety of persons operating or working on a
telecommunications network or a facility, or who use services supplied by means
of a telecommunications network or a facility, or who are likely to be affected
by the operation of a telecommunications network or a
facility;
• ensuring that customer equipment can be used to give
direct access to an emergency service number, as specified in the numbering plan
made under clause 439 of this Bill;
• ensuring, for the purpose of
the supply of a standard telephone service in fulfilment of the universal
service obligation, the interoperability of customer equipment with a
telecommunications network to which the equipment is proposed to be connected;
or
• achieving an objective specified in the regulations.
It
is intended that the ACA will only use the power to make technical standards
where it is necessary to achieve the objects in clause 3 and having regard to
the regulatory policy in clause 4. The regulatory policy in clause 4 of the
Bill discourages regulation where it is not necessary to achieve the objects in
clause 3.
The ACA is given the power to make standards relating to the
interconnection of networks and facilities, but is empowered to make such
standards only if the ACCC has directed it to do so. The ACCC may give such a
direction only if is satisfied that industry processes have failed to produce a
standard or have produced a standard which the ACCC considers is not adequate
for the needs of the access regime.
The ACA may make disability
standards, which specify features designed to cater for the needs of persons
with disabilities, for customer equipment that is provided for persons without a
disability and that is used for the standard telephone service.
The
connection of customer equipment or customer cabling to a telecommunications
network or facility will be controlled through a labelling scheme. Where there
is an ACA standard in force applying to a particular type of equipment or
cabling, a person is prohibited from connecting equipment or cabling of that
type to a network or facility unless the equipment or cabling has a label on it
indicating compliance with relevant standards. Where the equipment or cabling
has a label indicating non-compliance with any relevant standards, the person is
prohibited from making the connection unless:
• the person has a
connection permit for the equipment or cabling;
• the connection would accord with the connection rules; or
• the operator of the network consents to the connection.
Breach
of this prohibition would allow the operator of the relevant network to
disconnect the equipment or cabling and sue the person who made the connection
for any damage or loss suffered as a result of the connection.
Connection
permits are intended for exceptional circumstances and may be issued by the ACA
upon application. The ACA must have regard to matters relating to health and
safety and the integrity of networks in deciding whether to issue a permit. The
ACA will also be able to have regard to other matters such as the purpose for
which the connection is to be made.
Where a person wishes to connect an
item of customer equipment or cabling that has a label indicating compliance
with a relevant standard, the operator must not refuse to consent to the
connection.
However, an operator of a network will be able to disconnect
customer equipment or cabling where the operator genuinely believes the
connection is or would be a threat to health and safety or to the integrity of
the network. The operator could also sue for any damage or loss suffered as a
result of the connection. Should the ACA consider there were no reasonable
grounds for the disconnection, it may direct the operator to reconnect. In such
case, the person who was disconnected could sue for any damage or loss suffered
as a result of the disconnection.
Where:
• a person applies
a label to equipment or cabling without satisfying the requirements that must be
met before or after application of the relevant label; and
• a person (who could be the one who applied the label) connects to a network equipment or cabling that is so labelled; and
• as a result of that connection the operator of the network suffers
damage or loss,
the operator may sue the first mentioned person for that
damage or loss.
The ACA is to have the power to require manufacturers and
importers to apply a label to customer equipment or cabling indicating whether
the equipment or cabling complies with a specified mandatory standard. The
notice which requires the labelling may also specify what must be done before or
after applying a label. One of the things that may be required is the obtaining
of either a certificate from a certification body indicating compliance
with the specified mandatory standard, or a written statement from a
competent body indicating that all reasonable steps have been taken to
ensure the equipment or cabling complies with the standard. Another thing that
may be required is to have a recognised testing body test the equipment
or cabling.
Recognised testing bodies are to be determined by
certification bodies. Certification bodies are approved by an approving
body. An approving body is to be approved by the ACA.
It shall be an
offence to make a false statement in a label about compliance with a mandatory
standard, or to apply a label before satisfying the requirements that must be
met before applying a label.
The licensing regime for cabling installers
will remain largely unchanged from that under the 1991 Act. The ACA is to be
able to specify the types of cabling work for the purposes of licensing and will
have to maintain a register of cabling licences. The ACA will also be able to
make general cabling provider rules. Performing specified cabling work
without a licence, or other than in accordance with the cabling provider rules,
is to be an offence. Licences may be obtained upon application to the ACA and
where certain criteria relating to knowledge and experience and compliance with
cabling standards are satisfied. The Minister will be able to direct the ACA in
relation to the performance of its functions or exercise of its powers relating
to cabling.
The ACA is to have the power to declare that the whole or a
part of the licensing regime does not apply to cabling which may be identified
by reference to its technical characteristics, functions or location. This will
enable cabling which does not raise regulatory concerns to be excluded from the
operation of the Part.
The ACA will also be able to delegate most of its
powers relating to cabling licensing to a person, which is expected to be an
industry body.
When exercising its technical regulation powers, the ACA
is expected to do so in accordance with relevant Government policy,
particularly the COAG guidelines on regulatory standards-making. The regulatory
policy in clause 4 will be an important consideration for the ACA as will the
requirements of s. 10 of the proposed ACA Act.
Division 1—Simplified outline
Clause 358 – Simplified outline
This clause provides
an outline of Part 21 to assist the reader.
Division 2—Interpretative provisions
Clause 359 – Part applies to networks or facilities in Australia
operated by carriers or carriage service providers
This clause sets
the general ambit of technical regulation including technical standards made for
customer equipment or customer cabling. Such standards will apply only in
relation to equipment or cabling that is to be connected to a network or
facility in Australia operated by a carrier or carriage service provider. This
will ensure that those standards apply only to equipment and cabling that is to
be used in relation to carriage services provided to the public, and avoids the
regulation of equipment or cabling that is used only in connection with a
private network.
Clause 360 – Manager of network or
facility
This clause defines the meaning of the term
‘manager’ of a network or facility for the purposes of this Part.
The term is used in clauses 395 and 396 and in Division 10. Essentially the
term refers to the carrier or carriage service provider who operates, rather
than owns, the relevant network or facility.
Clause 395 creates an
offence for connecting customer equipment or cabling to telecommunications
networks or facilities where the equipment or cabling is unlabelled or labelled
as non-compliant with section 361 standards. An exception to the offence
applies where the equipment or cabling is labelled as non-compliant and the
manager of the network or facility consents in writing to the connection. Note
that this Part is not intended to prevent any contract between the owner of a
network or facility and the operator of the network or facility from dealing
with matters such as the giving of such consents, as long as the terms of the
contract are not inconsistent with the requirements of the Part.
Clause
396 creates an offence for the manager of a network or facility refusing to
consent to the connection of labelled customer equipment or cabling to the
network or facility. An exception to the offence applies where the manager has
reasonable grounds to believe certain things. Note that this Part is not
intended to prevent any contract between the owner of a network or facility and
the operator of the network or facility from also dealing with matters such as
the refusal to give such consents, as long as the terms of the contract are not
inconsistent with the requirements of the Part.
Division 10 gives the
manager of a network or facility the right to bring certain actions before the
Federal Court. Note that this Part is not intended to prevent any contract
between the owner of a network or facility and the operator of the network or
facility from dealing with matters such as the bringing of such actions, as long
as the terms of the contract are not inconsistent with the requirements of the
Part.
Division 3—Technical standards about customer equipment and customer cabling
This Division deals with the making of technical standards by the ACA for
customer equipment and customer cabling. The scope of such standards is
restricted to matters relating to the integrity of telecommunications networks,
health and safety, and ensuring customer equipment can be used to dial an
emergency call number. Provision is made for the ACA to adopt whole or parts of
industry voluntary standards.
Clause 361 – ACA’s power to
make technical standards
This clause allows the ACA to make a
technical standard relating to particular customer equipment or customer cabling
(clause 361(1)).
The scope of technical standards made by the ACA under
clause 361(1) is restricted under clause 361(2) to such requirements as are
necessary or convenient to:
• protect the integrity of a
telecommunications network or a facility (paragraph (a));
• protect the health and safety of persons operating or working on
a telecommunications network or a facility, or using services supplied by means
of a network or a facility, or who are otherwise reasonably likely to be
affected by the operation of a network or a facility (paragraph (b));
• ensure that customer equipment can be used to give direct access
to an emergency call number (paragraph (c));
• ensuring
interoperability of customer equipment for the purpose of the supply of a
standard telephone service in fulfilment of the universal service obligation
(paragraph (d)); or
• to achieve an objective specified in the
regulations (paragraph (e)).
Direct access to an emergency service
number is defined in clause 18 to mean that in the event that a person attempts
to place a call to an emergency service number, the call can be established and
maintained.
The scope of these technical standards is restricted because
the basic approach in the technical regulation regime is to use industry
self-regulation for the development of industry standards which would involve
affected groups, including consumers. It is only in those areas where industry
self-regulation is inappropriate that the ACA has been given the power to make
standards for customer equipment and cabling.
The basic intention
underlying the power for technical standards for customer equipment or customer
cabling to protect the integrity of telecommunications networks or facilities
(see paragraph (2)(a)), is to protect the networks or facilities from harm from
the equipment or cabling. That is, so the equipment or cabling does not
adversely affect:
• the switching, signalling, transmission,
metering, charging and billing systems and equipment; or
• the
reliability;
of telecommunications networks and facilities.
It
should be noted that the power to make standards under this clause relating to
interoperability (see paragraph (2)(d)) is limited to equipment to be used for
the purpose of the supply of a standard telephone service in fulfilment of the
universal service obligation. The interoperability power cannot be exercised in
relation to equipment for any other services, such as cable television carriage
and public mobile telecommunications services which are not supplied in
fulfilment of the universal service obligation. The interoperability
requirements included in such standards would only relate to those functions of
the equipment that relate to the equipment’s interoperability with a
telecommunications network for the purpose of the supply of a standard telephone
service. The reason this paragraph refers to interoperability with a network
and does not refer to interoperability with a facility is because the
interoperability requirement relates to the objective of any-to-any connectivity
across telecommunications networks used to supply a standard telephone
service.
Regulations made under paragraph (2)(e) may not specify an
objective that allows a standard to be made which effectively requires a network
to have particular design characteristics or performance requirements. This
implements the policy intention that carriers be able to design and operate
their networks subject only to requirements for certain performance or features
at the boundary or interface (for example, CLI, pre-selection and the
requirements under the access regime). It is intended to ensure that the design
of customer equipment or cabling will not be used to dictate the design of
carriers’ or carriage service providers’ networks and facilities
(clause 361(3)). However, it is intended that regulations could be made, for
example, to require customer equipment or cabling to incorporate features to
facilitate the tracing of malicious calls, if this should prove
necessary.
A standard made under this clause could include the testing
procedures for ascertaining compliance with the standard. This reflects both
domestic and international established practice in making technical standards.
This practice recognises that in many cases the performance requirements
specified in a standard are integrally linked with the testing procedures for
those performance requirements.
Related radiofrequency and
electromagnetic compatibility requirements will be covered by standards made
under s. 162 of the Radcom Act. Standards made under clause 361 may not be made
concerning matters relating to radiofrequency and electromagnetic compatibility
requirements unless they also relate to any or all of the matters set out in
clauses 361(2)(a) to (e).
Technical standards, for example, may be
expressed to apply generally or may be expressed to be limited, for example to
certain circumstances, to specified networks or facilities, or to certain
equipment or cabling (clause 361(4)).
The commencement of a technical
standard is the day specified in the instrument or, where there is no day
specified, the date of notification in the Gazette (clause
361(5)).
A standard is a disallowable instrument, which means it is
subject to disallowance by either House of Parliament (clause
361(6)).
Clause 362 – Adoption of voluntary
standards
This clause allows the ACA to adopt the whole or a part of
a voluntary standard when making a technical standard. The scope of what may be
adopted will be limited to those matters set out in clause 361(2), that is,
protecting the integrity of telecommunications networks and health and safety,
ensuring equipment can be used to give direct access to an emergency call
number, and achieving an objective specified in the regulations. What may be
adopted can be modified by the ACA if necessary. Those voluntary standards that
may be adopted can be standards proposed or approved by: the Standards
Association of Australia; or any other body or association. When adopting
standards the ACA would be expected to consider the regulatory policy specified
in clause 4.
Clause 363 – Procedures for making technical
standards
This clause sets out the procedures that must and may be
followed by the ACA in making technical standards. The two main elements of
these procedures are the requirement for public consultation, and discretion for
the ACA to make arrangements for a body or association to prepare and consult on
draft standards. In exercising this discretion the ACA would be expected to
consider the regulatory policy specified in clause 4.
The ACA is required
to ensure that interested persons have had an opportunity to comment on proposed
standards, and that due consideration is given to such comments (clause
363(1)).
In keeping with the theme that regulation that is generated from
the industry which is to be regulated is more likely to benefit from the
experience and expertise derived from industry input, the ACA is to have a
discretion to make arrangements with a range of bodies or associations whereby
those bodies or associations are responsible for the development of a draft
standard, publishing it, consulting publicly on the draft, and reporting on that
consultation to the ACA (clause 363(2)). The ACA can then take the final step
of making the industry-developed standards into technical standards. Clauses
363(3) and (4) require the approval or determination respectively of a body for
the purposes of clause 363(2) to be published in the Gazette. The term
‘body or association’ is used to make it clear that a body or
association need not be a legal entity in its own right, but could, for example,
be a committee made up of industry representatives.
Clause 364 –
Making technical standards in cases of urgency
There may be an
occasion on which the ACA considers that, for reasons related to the health or
safety of persons, or the integrity of a network, it is necessary to make a
standard more quickly than possible by the usual development and consultation
processes. In such cases it would not be appropriate for the ACA to have to
comply with the consultation requirements under clause 363(1) because of the
time delay involved.
This clause allows the ACA to make a standard
without having to comply with clause 363 where the ACA is satisfied that it is
necessary to make a standard as a matter of urgency for the above-mentioned
reasons (clause 364(1)). However, such a standard will cease to have effect
after 12 months unless the urgent standard is replaced earlier by a standard
made in accordance with clause 363 (clause 364(2)).
Division 4—Disability standards
This Division provides for the making of standards for standard-issue
customer equipment, that is to be used in the provision of the standard
telephone service, relating to certain special features to assist a person with
a disability to use the equipment/service. There is no provision for
enforcement of such standards under this Bill. Rather, compliance with a
disability standard will be a matter to be taken into account in any action
taken under the DDA for breach of that Act. This method of enforcement has been
adopted because the DDA represents the decided Commonwealth policy on matters
relating to disabilities and it is more appropriate that the remedies and
sanctions provided under the DDA apply to disability standards and not be
subject to a separate overlapping enforcement regime under this
Bill.
Clause 365 – Disability standards
This clause
enables the ACA to make a disability standard relating to customer equipment to
be used in connection with the standard telephone service (clause 365(1)). The
standard may require the equipment to have certain features that are designed to
cater for the special needs of a person with a disability (paragraph (1)(c)).
Examples of such features are set out in clause 365(2).
It should be
noted that this power cannot be exercised to make standards for customer
equipment which is for use primarily by persons with disabilities, such as
teletypewriter equipment.
A standard made under this clause could include
the testing procedures for ascertaining compliance with the standard. This
reflects both domestic and international established practice in making
technical standards. This practice recognises that in many cases the
performance requirements specified in a standard are integrally linked with the
testing procedures for those performance requirements.
Clause 365(3)
makes it clear that a disability standard may apply generally or may be limited
in its application.
A disability standard commences either on the day
specified in the standard, or on the day on which it is notified in the
Gazette (clause 365(4)).
A disability standard is a disallowable
instrument (clause 365(5)).
Clause 365(6) defines the term
‘disability’ used in this clause.
Clause 366 –
Adoption of voluntary standards
This clause makes it clear that the
ACA may adopt the whole or a part of a standard made by any body or association.
This will enable the ACA to adopt by reference standards that have already been
made by industry. See the notes on clause 362.
Clause 367 –
Procedures for making disability standards
This clause sets out the
procedures that must and may be followed by the ACA in making disability
standards. The two main elements of these procedures are the requirement for
public consultation, and discretion for the ACA to make arrangements for a body
or association to prepare and consult on draft standards.
The ACA is
required to ensure that interested persons have had an opportunity to comment on
proposed standards, and that due consideration is given to such comments (clause
367(1)).
In keeping with the theme that regulation that is generated from
the industry which is to be regulated is more likely to benefit from the
experience and expertise derived from industry input, the ACA is to have a
discretion to make arrangements with a range of bodies or associations whereby
those bodies or associations are responsible for preparing a draft standard,
publishing it, consulting publicly on the draft, and reporting on that
consultation to the ACA (clause 367(2)). The ACA can then take the final step
of making the draft standards into disability standards. Clauses 367(3) and (4)
require the approval or determination respectively of a body for the purposes of
clause 367(2) to be published in the Gazette. The term ‘body or
association’ is used to make it clear that a body or association need not
be a legal entity in its own right, but could, for example, be a committee made
up of industry representatives.
Clause 368 – Effect of
compliance with disability standards
This clause makes provision for
the effect of disability standards. It provides that in relation to any action
for infringement of s. 24 of the DDA in relation to the supply or provision of
customer equipment, regard must be had to whether the customer equipment
complies with a relevant disability standard.
Division 5—Technical standards about the interconnection of facilities
This Division provides for the making of interconnection standards as a
fall-back position for industry processes in the telecommunications access
regime. Interconnection standards would relate to technical matters concerning
interconnections between facilities. It is not intended that this
standards-making power be used pro-actively - it is not meant as a substitute
for the access regime. Rather, it is provided as a ‘last resort’
for technical matters should the operation of the access regime fail, in a more
general sense, to achieve the objects of the access provisions in relation to
any particular sector of the telecommunications industry. To emphasise the
‘last resort’ role of this Division, provision is made to prevent
the ACA from making a standard unless it has first requested an industry body to
make an interconnection standard, and that body has either failed to make a
standard, has made one that the ACA considers inadequate, or has made one that
is not operating effectively.
Clause 369 – ACA’s power to
make technical standards
This clause allows the ACA to make an
interconnection standard relating to interconnection of facilities (clause
369(1)).
A standard made under this clause could include the testing
procedures for ascertaining compliance with the standard. This reflects both
domestic and international established practice in making technical standards.
This practice recognises that in many cases the performance requirements
specified in a standard are integrally linked with the testing procedures for
those performance requirements.
The ACA may make an interconnection
standard only if it has been directed to do so by the ACCC (clause 369(2)) and
must do so in a manner consistent with the ACCC direction (clause
369(4)).
The ACCC may direct the ACA to make an interconnection standard
only if it is of the opinion that it is necessary for there to be a standard in
order to: promote the long-term interests of end-users of carriage services
(clause 369(5)(a)); or reduce or eliminate the likelihood of hindrance of access
to services that have been declared for the purposes of the access regime
(clause 369(5)(b)).
Clause 369(6) makes it clear that an interconnection
standard may apply generally or be expressed to apply to a more narrowly
focussed class of interconnections.
An interconnection standard commences
either on the day specified in the standard, or on the day on which it is
notified in the Gazette (clause 369(7)).
An interconnection
standard is a disallowable instrument (clause 369(8)).
Clause 369(9)
defines the term ‘declared service’ used in this
clause.
Clause 370 – Adoption of voluntary
standards
This clause makes it clear that the ACA may adopt the whole
or a part of a standard made by any body or association. This will enable the
ACA to adopt by reference standards that have already been made by
industry.
Clause 371 – Procedures for making technical
standards
This clause sets out the procedures that must and may be
followed by the ACA in making interconnection standards. The two main elements
of these procedures are the requirement for public consultation, and discretion
for the ACA to make arrangements for a body or association to prepare and
consult on draft standards.
The ACA is required to ensure that interested
persons have had an opportunity to comment on proposed standards, and that due
consideration is given to such comments (clause 371(1)).
In keeping with
the theme that regulation that is generated from the industry which is to be
regulated is more likely to benefit from the experience and expertise derived
from industry input, the ACA is to have a discretion to make arrangements with a
range of bodies or associations whereby those bodies or associations are
responsible for preparing a draft standard, publishing it, consulting publicly
on the draft, and reporting on that consultation to the ACA (clause 371(2)).
The ACA can then take the final step of making the draft standards into
interconnection standards. Clauses 371(3) and (4) require the approval or
determination respectively of a body for the purposes of clause 371(2) to be
published in the Gazette. The term ‘body or association’ is
used to make it clear that a body or association need not be a legal entity in
its own right, but could, for example, be a committee made up of industry
representatives.
Clause 372 – Procedures for making technical
standards
This clause prevents the ACA from making an interconnection
standard unless it has first requested an industry body to make an
interconnection standard (clause 372(1)(a)), and that body has either failed to
make a standard, has made one that the ACA is not satisfied deals with the
matter in an adequate way, or has made one that is not operating adequately
(clause 372(1)(b)).
Clause 372(2) requires the ACA, in deciding on the
adequacy or effectiveness of an industry interconnection standard, to have
regard to the same access criteria the ACCC is required to consider under the
access regime in proposed Part XIC of the TPA to be inserted by the proposed
Trade Practices Amendment (Telecommunications) Act 1996.
Clause
372(3) makes it clear that the ACA is not limited in the matters to which it may
have regard in exercising its powers under this clause.
Clause 372(4)
requires the ACA to consult with the ACCC when making a decision whether a
standard deals with a matter in an adequate way or is operating
adequately.
Clause 373 – Provision of access
This
clause defines the meaning of the term ‘provision of access’ as used
in this Division.
Clause 374 – Promotion of the long-term
interests of end-users of carriage services and of services supplied by means of
carriage services
This clause defines the meaning of the phrase
‘promotion of the long-term interests of end-users of carriage services
and of services supplied by means of carriage services’ as used in this
Division.
Division 6—Connection permits and connection rules
This Division provides for the ACA to issue connection permits and make
connection rules. Compliance with a permit or the connection rules would permit
a person to connect specified non-standard customer equipment or cabling to a
telecommunications network or facility. A person would have to rely on a permit
or conformance with the rules where the person was proposing to connect
equipment or cabling that does not have a label (required by a notice under
clause 391) or has such a label that indicates the equipment or cabling does not
comply with a relevant technical standard made under clause 361. Otherwise, the
person would have to obtain the written permission of the manager of the network
or facility to make the proposed connection.
It should be understood that
connection rules are not standard conditions applying to connection permits.
Connection rules are a separate mechanism, compliance with which would authorise
a person to connect customer equipment or cabling to a telecommunications
network or facility.
It should be noted that where a person complies with
any relevant labelling requirements (as required by a notice under clause 391)
the person is permitted to make the proposed connection (see clause 395);
indeed, the operator of a network or facility would be prohibited from refusing
to permit the connection (see clause 396).
Connection permits are
intended for circumstances which the labelling provisions in Division 6 are
unable to address. They are not intended in normal circumstances to be used for
equipment that is required to be labelled but had failed a labelling
requirement, for example, where a particular aspect of a testing requirement
under clause 392(5)(b) was not met. Such equipment continues to be required to
meet any pre- or post-labelling requirements and be labelled, unless there are
good reasons for that requirement not to apply to the particular
equipment.
Subdivision A—Connection permits authorising the connection of non-standard customer equipment and non-standard cabling
Clause 375 – Application for connection permit
This
clause enables a person to apply to the ACA for a connection permit to connect
customer equipment or cabling by the person or a person nominated by the person
(clauses 375(1) and (2)) to a telecommunications network or facility and to
maintain such a connection.
Note that the reference to
‘maintain’ such a connection is intended to be a reference to
continuing the connection, or keeping it in existence, rather than a reference
to repairing the connection (see also clause 395).
Clause 376 –
Form of application
This clause requires an application for a
connection permit to be in writing and in accordance with the form approved by
the ACA.
Clause 377 – Application to be accompanied by
charge
This clause requires an applicant for a permit to pay any
charge fixed by the ACA under the provision in the ACA Act that allows the ACA
to make charges to recover its costs for the provision of services and
performance of its functions.
Clause 378 – Further
information
This clause allows the ACA to request an applicant for a
connection permit to provide further information relating to the application
(clause 378(1)). The ACA may refuse to process the application unless and until
the requested information is provided by the applicant (clause 378(2)). The
reason this provision has been included is because, in deciding whether to issue
a connection permit, the ACA is required to have regard to certain matters
relating to network integrity and health and safety, and is also permitted to
have regard to other matters relating to the person’s technical knowledge
and skill. The ACA may need to obtain further information from an applicant in
order to have proper regard to such matters.
Clause 379 – Issue
of connection permits
This clause provides for the issue of
connection permits. These permits allow the connection to telecommunications
networks or facilities of customer equipment or cabling that does not meet
applicable labelling requirements. Such permits are not equivalent to, or a
replacement for, permits issued under s. 257 of the 1991 Act. Labels required
to be applied under Division 6 of this Part will perform an equivalent function
to the current use of permits.
Clause 379(1) gives the ACA a discretion
to issue a connection permit after considering an application for a
permit.
Clause 379(2) sets out the matters to which the ACA may have
regard in deciding whether to issue a connection permit. Those matters relate
to whether the purpose for the proposed permit relates to certain matters such
as: education or research (subparagraph (2)(a)(i)); testing of customer
equipment or cabling (subparagraph (2)(a)(ii)); the demonstration of customer
equipment or cabling (subparagraph (2)(a)(iii)); or the knowledge and experience
of the applicant (paragraph (2)(b)). It should be noted that the specification
of these matters in this clause is not meant to limit the matters to which the
ACA may have regard in deciding whether to issue a permit (see clause 379(4))
but is intended to indicate that permits should be treated as an exception,
rather than the normal practice, and should not provide a means of avoiding
compliance with clause 361 technical standards.
Clause 379(3) sets out
the matters to which the ACA must have regard in deciding whether to issue a
connection permit. These matters relate to: network integrity (paragraph
(3)(a)); and the health or safety or persons operating, working on, using
services supplied by the means of, or otherwise are reasonably likely to be
affected by the operation of, a telecommunications network or facility
(paragraph (3)(b)). It is reasonable to expect that the ACA, in particular
cases, may need to seek the views of one or more carriers or carriage service
providers to assist it in considering the matters set out in clause
379(3).
Clause 379(4) makes it clear that nothing in clause 379(2) or (3)
is meant to limit the matters to which the ACA may have regard in deciding
whether to issue a connection permit.
Clause 379(5) requires the ACA to
notify the applicant in writing of a decision to refuse to issue a connection
permit.
A decision to refuse to issue a connection permit is subject to
merits review under Part 29 of the Bill (see Schedule 4).
Clause 380
– Connection permit has effect subject to this Act
This clause
makes it clear that a connection permit has effect subject to the
Act.
Clause 381 – Nominees of holder
This clause
defines who are the nominees of the holder of a connection
permit.
Clause 382 – Duration of connection
permits
This clause provides for the period during which a connection
permit is in force. Where the permit specifies a period, the permit expires at
the end of that period (paragraph (1)(a)). Where the permit does not specify
the period, the permit remains in force indefinitely (paragraph
(1)(b)).
Clause 382(2) allows the ACA to reduce an indefinite connection
permit term to a specified (finite) period. This will allow for any occasion
where, for reasons that may relate to changes in technology, the connection of
equipment or cabling that was previously considered permissible and was
therefore covered by a connection permit with an indefinite term, may become
considered to no longer be permissible.
Clause 382(3) makes it clear that
the ACA cannot change an indefinite term to a retrospective finite one.
A
decision to change the term of a connection permit is subject to merits review
under Part 29 of the Act (see Schedule 4).
Clause 383 –
Conditions of connection permits
This clause provides for the
conditions of connection permits.
Clause 383(1) requires the holder of
the permit and the holder’s nominees to comply with Division 6 of Part 21
(paragraph (1)(a)). Other conditions may be specified in the permit (paragraph
(1)(b)).
Clause 383(2) allows the ACA to determine conditions that apply
to each connection permit or a specified class of connection permits. Such a
determination is disallowable by Parliament (clause 383(6)).
Clause
383(3) allows the ACA to impose further conditions on connection permits and
vary or revoke such conditions.
Clause 383(4) makes it clear that the ACA
may specify a condition that relates to the kinds of nominees that a permit
holder may have. This is not to limit the types of conditions that may be
imposed on a connection permit (clause 383(5)).
A decision to change the
conditions of a connection permit is subject to merits review under Part 29 of
the Act (see Schedule 4).
Clause 384 – Offence of contravening
condition
This clause makes it an offence for a permit holder, or a
nominee, to contravene a permit condition (clause 384(1)). The maximum penalty
for a reckless or intentional contravention of a permit condition is, in the
case of an individual, 100 penalty units or, in the case of a body corporate,
500 penalty units (clause 384(2)) (under s. 4AA of the Crimes Act 1914 a
penalty unit is worth $100 - see also s. 4B(3) of that Act).
Clause
385 – Formal warnings – breach of condition
This clause
allows the ACA to give a permit holder or nominee a formal warning where there
has been a breach of a permit condition. The ACA may decide to take this action
instead of deciding to cancel a permit (see clause 387) or to prosecute for a
breach of permit condition. However, in the circumstances of a particularly
serious or flagrant breach, the ACA may decide to cancel a permit or prosecute
without first issuing a formal warning.
Clause 386 – Surrender
of connection permit
This clause allows a permit holder to surrender
a connection permit by giving a written notice of the surrender to the ACA.
Note that it is not possible for a nominee to surrender a
permit.
Clause 387 – Cancellation of connection
permit
This clause allows the ACA to cancel a connection permit by
written notice to the permit holder (clause 387(1)).
The ACA may have
regard to any matter relevant to deciding whether to issue a permit in deciding
whether to cancel a permit (clause 387(2)).
In deciding whether to cancel
a permit, the ACA is required to have regard to the matters relating to network
integrity and health and safety to which it must have regard when deciding
whether to issue a connection permit (clause 387(3)). It is also required to
have regard to whether the permit holder, or a nominee, has been convicted of an
offence against Division 6 of Part 21.
A decision to cancel a connection
permit is subject to merits review under Part 29 of the Act (see Schedule
4).
Subdivision B—Connection rules
This Subdivision provides for the making of connection rules, which are a
form of standing authorisation to make certain connections to telecommunications
networks or facilities, provided the connections comply with the
rules.
Compliance with relevant connection rules will authorise a person
to connect non-standard customer equipment or cabling to a network or facility
(see clause 395(4)).
Clause 388 – Connection
rules
This clause enables the ACA to make rules, known as
‘connection rules’ relating to the connection of customer equipment
or cabling to telecommunications networks or facilities (paragraph (1)(b)).
Connection rules may be expressed to apply to specified persons (paragraph
(1)(a)) - this will allow for the making of rules that apply to broadcasters and
their employees or defence personnel, for example, or other classes of persons
who may be considered to have sufficient technical expertise in relation to
making connections to networks or facilities.
Clause 388(2) is a formal
provision clarifying the meaning of the phrase ‘subject to the connection
rules’.
Clause 388(3) makes it clear that connection rules may
create discretions for the ACA to exercise in relation to those
rules.
Clause 388(4) makes connection rules a disallowable
instrument.
Clause 389 – Procedures for making connection
rules
This clause sets out the procedures that must and may be
followed by the ACA in making connection rules. The two main elements of these
procedures are the requirement for public consultation, and discretion for the
ACA to make arrangements for a body or association to prepare and consult on
draft rules.
The ACA is required to ensure that interested persons have
had an opportunity to comment on proposed connection rules, and that due
consideration is given to such comments (clause 389(1)).
In keeping with
the theme that regulation that is generated from the industry which is to be
regulated is more likely to benefit from the experience and expertise derived
from industry input, the ACA is to have a discretion to make arrangements with a
range of bodies or associations whereby those bodies or associations are
responsible for preparing draft rules, publishing them, consulting publicly on
the draft, and reporting on that consultation to the ACA (clause 389(2)). The
ACA can then take the final step of making the draft into formal connection
rules. Clauses 389(3) and (4) require the approval or determination
respectively of a body for the purposes of clause 389(2) to be published in the
Gazette.
The term ‘body or association’ is used to
make it clear that a body or association need not be a legal entity in its own
right, but could, for example, be a committee made up of industry
representatives.
Division 7—Labelling of customer equipment and customer cabling
This Division provides for the ACA to require the labelling of customer
equipment or customer cabling. The requirement for labelling is the means
adopted under the Act for the enforcement of technical standards made under
clause 361. If the ACA has not required labelling in relation to a particular
clause 361 standard, the standard has no mandatory effect.
Where the ACA
has required equipment or cabling to be labelled, a person will be prohibited
from connecting that equipment or cabling to a telecommunications network or
facility if the equipment or cabling is either unlabelled or has a label
indicating that it does not comply with a relevant standard made under clause
361. The only exceptions to this would be where the person has a connection
permit, makes the connection in accordance with relevant connection rules, or
the manager of the network or facility gives written permission for the
connection.
Through the device of specifying certain requirements that
must be met before a label may be applied, the ACA will facilitate the
implementation of industry self-regulation of compliance with a greater part of
the technical regulation regime. The following types of industry bodies will be
involved in this self-regulation, with the functions as
indicated:
• ‘accreditation body’ determined by the ACA
by notice in the Gazette
– functions are to determine by
written instrument:
: a ‘recognised testing authority’;
and
: a ‘competent body’
• ‘approving body’
determined by the ACA by notice in the Gazette
– functions
are to determine a ‘certification body’ by written
instrument;
• ‘recognised testing
authority’
– functions are to test equipment or cabling and
issue a test report;
• ‘certification
body’
– functions are to issue a written statement certifying
that equipment or cabling complies with a specified clause 361
standard;
• ‘competent body’
– functions
are to issue a written statement certifying that reasonable efforts have been
made to ensure that equipment or cabling does not breach a specified clause 361
standard.
Clause 390 – Application of labels
This
clause clarifies the meaning of terms used in Division 7.
A
‘label’ includes a statement (clause 390(1)).
The meaning of
‘applied’ in relation to labels has been given a broad meaning to
allow for the wide range of shapes, sizes and types of equipment and cabling to
which a label may be required to be applied (clause 390(2)).
Clause
391 – Labelling requirements
This clause allows the ACA to make
a disallowable instrument (clause 391(2)) that requires manufacturers and
importers of customer equipment or cabling to apply a label to the equipment or
cabling. The label must indicate whether the equipment or cabling complies with
a relevant standard made under clause 361 (clause 391(1)).
Clause 392
– Requirements to apply labels - ancillary matters
This clause
allows the ACA to include in an instrument made under clause 391 (clause 392(1))
certain requirements relating to the labelling of customer equipment or cabling.
The ACA may specify the form of any required label (clause 392(2)) and
how it is to be applied to the equipment or cabling (clause 392(3)). For
example, it could specify the size and method of applying a label to the
specified equipment or cabling.
Clause 392(4) provides that an instrument
under clause 391 may state that the labelling requirement does not apply to
imported equipment or cabling bearing specified international labels or labels
of another country. This will allow for those situations where Australia is a
signatory to an international agreement, or has a mutual recognition agreement
with another country, that provides for the recognition of labels. For example,
it will facilitate visiting end-users to use an overseas-approved mobile phone
while in Australia without the need for separate compliance
checking.
Clause 392(5) allows the clause 391 instrument to specify
certain requirements that must be met before a manufacturer or importer applies
a label to equipment or cabling. It is through this device that the ACA is to
facilitate industry self-regulation of compliance with the technical regulation
regime. Under this clause, the ACA will be able to require:
• that a certificate be obtained from a certification body stating
that the equipment or cabling complies with an applicable clause 361 standard
(paragraph (a)); or
• the testing of equipment or cabling by a
recognised testing authority (see clause 393) for compliance with an applicable
clause 361 standard (paragraph (b)); or
• the conduct of quality
assurance programs (paragraph (c)); or
• the obtaining of a written
statement from a competent body certifying that reasonable efforts have been
made to ensure that equipment or cabling does not breach a specified clause 361
standard (paragraph (d)); or
• the manufacturer or importer to make
a written declaration that all other pre-labelling requirements have been met,
known in the industry as ‘self-declaration’ (paragraph (e)) -
(clause 392(6) allows a requirement that the declaration be retained for a
period specified in the clause 391 notice).
Clause 392(6) allows the
clause 391 instrument to specify certain requirements that must be met after a
manufacturer or importer applies a label to equipment or cabling. Such
requirements may include retention of records relating to quality assurance
programs, test results, or self-declarations.
Clause 393 –
Recognised testing authorities and competent bodies
This clause
allows the ACA to determine a person or association to be an accreditation
body for the purposes of this clause (clause 393(1)). The determination is
to be done by Gazette notice. When making such a determination the ACA
is expected to take account of relevant Government policy for the appointment of
appropriate accreditation bodies. The reference to an association is intended
to include an unincorporated association.
An accreditation body may, by
written instrument, determine a person to be a recognised testing
authority for the purposes of Division 7 (clause 393(2)). Recognised
testing authorities test equipment or cabling for compliance with a standard
made under clause 361 and issue tests results.
An accreditation body may
also, by written instrument, determine a person or association to be a
competent body (clause 393(3)). The reference to an association is
intended to include an unincorporated association. Competent bodies issue
statements to the effect that reasonable efforts have been made to avoid a
contravention of a standard made under clause 361. Such a statement could be
useful in circumstances where because of the size or location of certain
equipment or cabling, or for some other reason, it is not possible to conduct a
proper test of the equipment or cabling for compliance with a clause 361
standard, and an assessment is made based on other material such as the design
documents.
Clause 394 – Certification bodies
This
clause allows the ACA to determine a person or association to be an approving
body for the purposes of this clause (clause 394(1)). The determination is
to be done by Gazette notice. The reference to an association is
intended to include an unincorporated association.
An approving body may,
by written instrument, determine a person or association to be a
certification body for the purposes of Division 7. The reference to an
association is intended to include an unincorporated association. A
certification body issues certificates that certify that certain equipment or
cabling complies with applicable standards made under clause 361. In deciding
whether to issue a certificate, the body would have regard to test results
issued by any recognised testing authority and other relevant
material.
Clause 395 – Connection of customer equipment or
customer cabling – breach of section 361 standards
This clause
prohibits the connection of customer equipment or cabling to a
telecommunications network or facility in certain circumstances, and provides
for exceptions to those prohibitions.
Where the ACA has required
labelling of equipment or cabling under clause 391, a person is prohibited from
connecting, or maintaining a connection of, such equipment or cabling to a
network or facility, if the equipment or cabling is either not labelled or has a
label that indicates non-compliance with an applicable clause 361 standard
(clause 395(1)). Breach of this prohibition is an offence carrying a maximum
penalty in the case of an individual of 120 penalty units, or in the case of a
body corporate, 600 penalty units (clause 395(2)) (under s. 4AA of the Crimes
Act 1914, a penalty unit is worth $100 - see also s. 4B(3) of that
Act).
Note that the reference to ‘maintaining’ a connection
is intended to be a reference to continuing the connection, or keeping it in
existence, rather than a reference to repairing the
connection.
Exceptions to the prohibition under clause 395(1) are where
the connection is made or maintained in accordance with:
• a
connection permit (clause 395(3)); or
• the connection rules
(clause 395(4)).
Clause 395(5) provides an exception to the prohibition
under clause 395(1) where the manager of the network or facility to which the
connection is made or maintained gives written consent to the connection of
labelled non-standard equipment or cabling. This will allow managers the
flexibility to approve connection of non-standard equipment or cabling to
networks or facilities they operate. It will not allow connections to networks
or facilities operated by other persons, unless those other operators gave
written permission for the connection.
Clause 396 – Connection
of labelled customer equipment or customer cabling not to be
refused
This clause is one of the critical technical regulation
provisions in that it provides a right to connect customer equipment or customer
cabling to a network or facility, where the equipment or cabling is correctly
labelled in accordance with a clause 391 instrument and the label indicates the
equipment or cabling complies with applicable clause 361 standards (clause
396(1)). This will ensure that a manager cannot restrict the range of equipment
or cabling it will permit to be connected to its network or facility.
A
manager who refuses connection of correctly labelled and compliant equipment or
cabling would be guilty of an offence the maximum penalty for which is, in the
case of an individual, 100 penalty units or, in the case of a body corporate,
500 penalty units (clause 396(2)) (under s. 4AA of the Crimes Act 1914, a
penalty unit is worth $100 - see also s. 4B(3) of that Act).
Clause
396(3) exempts the manager of a network or facility from the obligation to
connect under clause 396(1) where the operator has reasonable grounds to believe
that certain specified circumstances prevail or would prevail. One circumstance
is where the manager believes that the label was applied before satisfying
pre-labelling requirements, or that there has been a failure to retain relevant
records required by a clause 391 instrument (paragraph (a)). Another is where
the manager believes that the connection of the equipment or cabling would be a
threat to the integrity of the network or facility (paragraph (b)). A further
circumstance is where the manager believes that the connection of the equipment
or cabling would be a threat to the health or safety of a person operating,
working on, using services supplied by means of, or may otherwise be reasonably
likely to be affected by the operation of, the network or facility (paragraph
(c)). These last 2 exemptions would apply in a situation where the equipment or
cabling was compliant at one stage, but had since deteriorated to a state where
it no longer operated in compliance with a relevant standard.
Clause
396(4) makes it clear that this clause establishes a right to connect labelled
equipment only, not a right to be supplied a carriage service. A carriage
service provider would take other factors into account in deciding whether to
supply a service to a customer, such as the creditworthiness of the
customer.
Clause 397 – Supply of unlabelled customer equipment
or unlabelled customer cabling
This clause prohibits the supply of
unlabelled customer equipment or cabling where labelling has been required by an
instrument under clause 391 (clause 397(1)). The meaning of
‘supply’ will include re-supply, sell, hire, lease, exchange or
hire-purchase (clause 397(3)). Breach of this prohibition is an offence
carrying a maximum penalty, in the case of an individual, of 100 penalty units
or, in the case of a body corporate, of 500 penalty units (clause 397(2)) (under
s. 4AA of the Crimes Act 1914, a penalty unit is worth $100 - see also s.
4B(3) of that Act).
Clause 398 – Applying labels before
satisfying requirements under subsection 392(5)
This clause prohibits
a person from applying a label to equipment or cabling before satisfying any
pre-labelling requirements specified in an applicable instrument under clause
391 (clause 398(1)). Breach of this prohibition is an offence carrying a
maximum penalty, in the case of an individual, of 100 penalty units or, in the
case of a body corporate, of 500 penalty units (clause 398(2)) (under s. 4AA of
the Crimes Act 1914, a penalty unit is worth $100 - see also s. 4B(3) of
that Act).
Clause 399 – Failure to retain records
etc.
This clause prohibits a manufacturer or importer from not
retaining records, or failing to meet some other post-labelling requirement that
has been specified in an applicable instrument under clause 391 (clause 399(1)).
Breach of this prohibition is an offence carrying a maximum penalty, in the case
of an individual, of 100 penalty units or, in the case of a body corporate, of
500 penalty units (clause 399(2)) (under s. 4AA of the Crimes Act 1914, a
penalty unit is worth $100 - see also s. 4B(3) of that Act).
Clause
400 – Application of labels containing false statements about compliance
with standards
This clause prohibits a person from making a false or
misleading statement on a label regarding compliance with an applicable clause
361 standard (clause 400(1)). Breach of this prohibition is an offence carrying
a maximum penalty, in the case of an individual, of 120 penalty units or, in the
case of a body corporate, of 600 penalty units (clause 400(2)) (under s. 4AA of
the Crimes Act 1914, a penalty unit is worth $100 - see also s. 4B(3) of
that Act).
Division 8—Protected symbols
Clause 401 – Protected symbols
This clause prohibits
the use of certain symbols, relating to compliance with telecommunications or
radiocommunications standards, other than in accordance with the provisions of
this Act or the Radcom Act (clauses 401(1) and (6)). Breach of this prohibition
is an offence the maximum penalty for which is, in the case of an individual, 30
penalty units or, in the case of a body corporate, 150 penalty units (clause
401(2)) (under s. 4AA of the Crimes Act 1914, a penalty unit is worth
$100 - see also s. 4B(3) of that Act). Clause 401(3) is an interpretive
provision that makes it clear that the use of any term in clause 401(1) is not
meant to limit the meaning of any other term used in that
provision.
However, this clause does not purport to interfere with any
pre-existing trade mark or design rights, or uses that were in good faith that
could have been protected by passing off actions prior to the date these
provisions were exposed for public comment (clauses 401(4) and (5)). The ACA
may make a written determination that the prohibition does not apply to a person
who uses or applies a protected symbol for a particular purpose (clause 401(7)).
The meaning of protected symbol is defined in clause 401(8).
Clause
401(9) is important to the operation of the labelling regime in that it provides
that the application of a label, containing a protected symbol referred to in
paragraph (8)(a) or (b), to customer equipment or cabling is taken to indicate
that the equipment or cabling complies with all applicable clause 361
standards.
Conversely, clause 401(10) provides that the application of a
label, containing a protected symbol referred to in paragraph (8)(c) (that is, a
symbol indicating non-compliance), to customer equipment or cabling is taken to
indicate that the equipment or cabling does not comply with any applicable
clause 361 standard. Applicable clause 361 standards are those that are
specified in an instrument under clause 391 requiring the equipment or cabling
to be labelled (clause 401(11)).
Determinations made under clause 401(7)
or (8) are disallowable instruments (clause 401(12)).
Clause 401(13) and
(14) provide additional constitutional support for the operation of clause
401(1).
Division 9—Cabling providers
This Division relates to the regulation and licensing of persons who
perform cabling work such as installing and maintaining customer cabling, and
making connections of such cabling with telecommunications networks or
facilities. While provision is made for the ACA to administer the cabling
licensing regime, provision is also made for the ACA to delegate the more
mechanical functions of the administration to an industry body. It is expected
that such delegation could be made to further facilitate industry
self-regulation.
Clause 402 – Cabling work
This
clause defines the meaning of the term ‘cabling work’ for the
purposes of this Division.
Clause 403 – Types of cabling
work
This clause allows the ACA to make a disallowable declaration
(clause 403(4)) that cabling work of a kind specified in the declaration is a
type of cabling work to which Division 9 applies (clause 403(1)). Clause 403(3)
makes it clear that a type cabling work is to be understood only in terms of a
declaration made under this clause.
Clause 404 – Prohibition of
unauthorised cabling work
This clause prohibits the performance of a
type of cabling work (specified in a declaration under clause 403) unless the
person performing the work satisfies one of a number of criteria (clause
404(1)). Breach of the prohibition under clause 404(1) is an offence the
maximum penalty for which is, in the case of an individual, 120 penalty units
or, in the case of a body corporate, 600 penalty units (clause 404(2)) (under s.
4AA of the Crimes Act 1914, a penalty unit is worth $100 - see also s.
4B(3) of that Act).
The criteria specified in clause 404(1) are
where:
• cabling provider rules (made under clause 405) apply to
the person performing the work (paragraph (a));
• those rules apply
to the person supervising the work (paragraph (b));
• the person
holds a relevant cabling licence (paragraph (c)); or
• the work is
performed under the supervision of the holder of a relevant cabling licence
(paragraph (d)).
Clause 405 – Cabling provider
rules
This clause allows the ACA to make general (disallowable -
clause 405(6)) rules for the performance or supervision of cabling work
(paragraph (1)(b)). The rules must be expressed to apply to specified persons
or a class of persons (paragraph (1)(a)). A person who is subject to the rules
must comply with the rules (clause 405(3)). Breach of this prohibition is an
offence the maximum penalty for which is, in the case of an individual, 100
penalty units or, in the case of a body corporate, 500 penalty units (clause
405(4)) (under s. 4AA of the Crimes Act 1914, a penalty unit is worth
$100 - see also s. 4B(3) of that Act).
These rules would amount to a
standing authorisation to persons covered by the rules to perform or supervise
the types of cabling work specified in the rules. Performance of a type of
cabling work in accordance with applicable rules would obviate the requirement
to hold a cabling licence. It is anticipated that such rules could be applied
to broadcasters and members of the defence forces in relation to cabling work
performed for the purposes of their respective operations, but they could have
wider application.
Clause 405(5) makes it clear that the rules may
provide for the ACA to exercise discretions in administering the rules. It
would be expected that the rules would provide that such decisions would be
subject to merits review.
Clause 406 – Procedures for making
cabling provider rules
This clause sets out the procedures that must
and may be followed by the ACA in making cabling provider rules. The two main
elements of these procedures are the requirement for public consultation, and
discretion for the ACA to make arrangements for a body or association to prepare
and consult on draft rules.
The ACA is required to ensure that interested
persons have had an opportunity to comment on proposed rules, and that due
consideration is given to such comments (clause 406(1)).
In keeping with
the theme that regulation that is generated from the industry which is to be
regulated is more likely to benefit from the experience and expertise derived
from industry input, the ACA is to have a discretion to make arrangements with a
range of bodies or associations whereby those bodies or associations have the
responsibility for preparing draft rules, publishing them, consulting publicly
on the draft, and reporting on that consultation to the ACA (clause 406(2)).
The ACA can then take the final step of making the draft rules into formal
cabling provider rules. Clauses 406(3) and (4) require the approval or
determination respectively of a body for the purposes of clause 406(2) to be
published in the Gazette.
The term ‘body or
association’ is used to make it clear that a body or association need not
be a legal entity in its own right, but could, for example, be a committee made
up of industry representatives.
Clause 407 – Application for
cabling licence
This clause allows a natural person to apply to the
ACA for a cabling licence. The application would be for a licence to perform a
particular type of cabling work.
Clause 408 – Form of
application
This clause requires a cabling licence application to be
in a written form required by the ACA and to specify the relevant knowledge and
experience of the applicant (clause 408(1)).
Clause 408(2) allows the ACA
to require an application to include a statutory declaration of matters covered
by the application.
Clause 409 – Application to be accompanied
by charge
This clause requires a cabling licence application to be
accompanied by any charge determined by the ACA in relation to cabling licence
applications under s. 52 of the ACA Act. That section limits ACA charges to
cost recovery amounts so as not to amount to taxation.
Clause 410
– Further information
This clause allows the ACA to require a
cabling licence applicant to provide it with further information relating to the
licence application (clause 410(1)). The request must be made within 7 days of
the making of the application, that is, within 7 days of the ACA receiving the
application. Unless and until the applicant provides the requested information,
the ACA may refuse to consider the licence application (clause
410(2)).
Clause 411 – Grant of cabling licence
This
clause gives the ACA a discretion to grant a cabling licence after having
considered the licence application. The licence granted would have to be in
accordance with the application, that is it would have to authorise the type of
cabling work referred to in the application (clause 411(1)).
However, the
ACA’s discretion is circumscribed by certain conditions (clause 411(2)).
It must not grant a licence unless it is satisfied that: the applicant has the
requisite knowledge and experience for the relevant type of cabling work
(paragraph (2)(a)); the cabling work performed under the licence would conform
with applicable cabling standards made under clause 361 (paragraph (2)(b)); and
the issue of the licence would not be contrary to a Ministerial direction made
under clause 424 (paragraph (2)(c)).
A decision to refuse to grant a
cabling licence is subject to merits review under Part 29 of the Act (see
Schedule 4).
Clause 412 – Time limit on licence
decision
This clause imposes a time limit on licence decisions and
deems certain decisions to have been made in certain circumstances.
If
the ACA has not made a decision 30 days after receiving either the licence
application (paragraph (a)), or any further information requested under clause
410 (paragraph (b)), or after the period required for providing the information
where the information has not been provided (paragraph (c)), the ACA is deemed
to have made a decision refusing to grant a cabling licence in accordance with
the application.
Clause 413 – Notification of refusal of
application
This clause requires the ACA to notify the applicant in
writing of a refusal to grant a licence in accordance with the
application.
Clause 414 – Cabling licence has effect subject to
this Act
This clause makes it clear that a cabling licence has effect
subject to the rest of this Act.
Clause 415 – Duration of
cabling licence
This clause provides for the term or period during
which a cabling licence has effect.
A cabling licence commences to have
effect on the day on which it is issued, and continues to have effect until the
day specified in the licence (paragraph (a)). If no day is specified, the
licence has effect indefinitely (paragraph (b)).
Clause 416 –
Conditions of cabling licence
This clause enables the ACA to impose
conditions on cabling licences by a number of means. The ACA may make a
disallowable determination (clause 416(5)) of licence conditions (clause
416(1)). The determined conditions may apply to all cabling licences, or to
only those types of cabling licences specified in the determination. The ACA
may specify conditions in a licence (clause 416(2)). The ACA may impose further
conditions, or revoke or vary conditions (except conditions determined under
clause 416(1)) by written notice to the licensee (clause 416(3)).
Clause
416(4) sets out examples of the types of conditions that may be imposed on
cabling licences.
A decision to change the conditions of a cabling
licence is subject to merits review under Part 29 of the Act (see Schedule
4).
Clause 417 – Procedures for changing licence
conditions
This clause sets out the procedures the ACA must follow
when it changes cabling licence conditions.
Clause 417(1) makes it clear
that the ACA powers under clause 416(3) to impose further conditions, or vary or
revoke conditions, may be exercised on the ACA’s own initiative or on
application from the licensee.
Where a licensee makes application, the
application must be in a written form approved by the ACA (clause
417(2)).
Clause 417(3) allows the ACA to require an application to
include a statutory declaration about matters covered by the
application.
Clause 417(4) requires the ACA to notify the applicant in
writing of a refusal to change licence conditions as requested in the
application.
Clause 417(5) deems the ACA to have refused to change
licence conditions as requested under paragraph (1)(b) if it has not notified
the licensee of a decision within 30 days of receiving the
application.
Clause 418 – Offence of contravening
condition
This clause prohibits a cabling licensee from breaching a
condition of the licence when performing cabling work covered by the licence
(clause 418(1)).
This clause also prohibits a cabling licensee from
breaching a condition of the licence when supervising cabling work under the
licence (clause 418(2)).
Breach of either prohibition is an offence the
maximum penalty for which is, in the case of an individual, 100 penalty units
or, in the case of a body corporate, 500 penalty units (clause 418(3)) (under s.
4AA of the Crimes Act 1914, a penalty unit is worth $100 - see also s.
4B(3) of that Act).
Clause 419 – Formal warnings – breach
of condition
This clause allows the ACA to give a licensee a formal
warning where the licensee breaches a licence condition. This would afford a
licensee adequate opportunity to remedy the situation and avoid any further
action being taken. The ACA may decide to take this action instead of deciding
to cancel a licence (see clause 422) or to prosecute for a breach of the
licence. However, in the circumstances of a particularly serious or flagrant
breach, the ACA may decide to cancel a licence or prosecute without first
issuing a formal warning.
Clause 420 – Surrender of cabling
licence
This clause makes it clear that a licensee may surrender a
cabling licence by returning the licence to the ACA, and notifying the ACA in
writing that the licence is surrendered (clause 420(1)). The surrender has
effect on the day the ACA receives the written notification of surrender (clause
420(2)).
Clause 421 – Suspension of cabling
licence
This clause allows the ACA to suspend a cabling licence for a
period of no longer than 28 days (clause 421(1)). This period would allow the
ACA time to consider whether it should cancel the licence or commence
prosecution proceedings against the licensee for any breach relating to the
licence. The suspension of a licence can provide a means of reinforcing the
ACA’s concerns where a formal warning has not been effective. However, in
the circumstances of a particularly serious or flagrant breach, the ACA may
decide to cancel a licence or prosecute without first suspending the
licence.
Clause 421(2) requires the ACA to have regard to certain matters
in deciding whether to suspend a licence. Those matters relate to the matters
to which it must have regard under clause 411 when deciding whether to grant a
licence (paragraph (a)); and whether the licensee has been convicted of an
offence against this Division (paragraph (b)).
Clause 421(3) makes it
clear that the ACA is not limited in the matters to which it may have regard in
deciding whether to suspend a licence.
During a period of suspension the
licence is treated as if it does not exist for the purposes of the prohibitions
under clause 404 on unauthorised cabling work (clause 421(4)).
Clause
422 – Cancellation of cabling licence
This clause allows the
ACA to cancel a cabling licence (clause 422(1)). The ACA would also be able to
prosecute the licensee for any breach relating to the licence.
Clause
422(2) requires the ACA to have regard to certain matters in deciding whether to
cancel a licence. Those matters relate to the matters to which it must have
regard under clause 411 when deciding whether to grant a licence (paragraph
(a)); and whether the licensee has been convicted of an offence against this
Division (paragraph (b)).
Clause 422(3) makes it clear that the ACA is
not limited in the matters to which it may have regard in deciding whether to
cancel a licence.
A decision to cancel a cabling licence is subject to
merits review under Part 29 (see Schedule 4).
Clause 423 – ACA
may limit application of Division in relation to customer
cabling
This clause allows the ACA to make a disallowable (clause
423(5)) declaration that Division 9 of Part 21, or specified provisions of that
Division, do not apply to specified kinds of customer cabling (clause 423(1)).
(It should be clearly understood that the reference in this clause is to a
‘kind’ of customer cabling, not a ‘type’ as referred to
in clause 403 - if the ACA wished to exclude a ‘type’ of customer
cabling from the operation of this Division, it could vary or revoke the
relevant declaration under clause 403 so that the ‘type’ was no
longer declared for the purposes of Division 9.)
This power could be
exercised in situations where a determination is in force under clause 403 that
applies to a more generic type of customer cabling, and to address special
circumstances, it is necessary to exclude certain kinds of cabling from the
cabling licensing provisions, for example, cabling work done by members of the
armed forces during field operations, where that cabling connects to a network
or facility operated by a carrier or carriage service provider. The effect of
such a declaration would be that those doing such cabling work would not be
required to be licensed or comply with cabling provider rules. It is expected
that the power under this clause would be exercised only where the ACA is
satisfied that the cabling work done would not be a threat to the health or
safety of a person, or to the integrity of a network or facility.
Clause
423(2) allows the kind of cabling declared under clause 423(1) to be identified
in terms of various characteristics relating to: technical characteristics
(paragraph (a)); functions (paragraph (b)); purposes for which the cabling is to
be used (paragraph (c)); or its location (paragraph (d)).
Clause 423(3)
makes it clear that clause 423(2) is not exhaustive of the ways in which cabling
may be identified in a declaration under clause 423(1).
Clause 423(4)
makes it clear that the operation of Division 9 is subject to any declaration
made under clause 423(1).
Clause 424 – Ministerial
directions
This clause allows the Minister to direct the ACA as to
the performance of its functions or exercise of its powers under Division 9
(clause 424(1)). However, Ministerial directions are not permitted to be
concerned with how the ACA is to deal with a particular cabling licence
application (clause 424(3)).
Such a direction is disallowable (clause
424(2)).
Clause 424(4) prevents the Minister from giving a direction
under s. 12 of the proposed ACA Act where such a direction could have been given
under this clause.
Clause 425 – Delegation
This
clause allows the ACA to delegate many of its powers and functions under
Division 9 relating to cabling licensing (clause 425(1)). It is expected that
the ACA will make such a delegation to an industry body in keeping with the
approach of industry self-regulation reflected in the provisions of Part
21.
However, the power of delegation does not extend (clause 425(2)) to
the power to: refuse a licence application (paragraph (a)); impose, revoke or
vary a licence condition (paragraph (b)); cancel or suspend a licence (paragraph
(c)); or declare that the cable licensing provisions do not apply to a kind of
customer cabling (paragraph (d)). These powers cannot be delegated as they are
either subject to merits review processes in accordance with Commonwealth
administrative law policy or legislative instruments.
Clause 425(3)
allows the ACA to direct a delegate under clause 425(1) in relation to the
exercise or performance of a delegated power or function.
Clause 425(4)
makes it clear that the power of delegation under this clause is not meant to
affect the operation of the ACA’s power of delegation to the ACA members
and staff under s. 49 of the ACA Act.
Clause 426 – Register of
cabling licences
This clause requires the ACA to maintain a Register
of current cabling licences and the conditions applying to those licences
(clause 426(1)).
Clause 426(2) allows the Register to be kept in an
electronic form such as a computer database.
Clause 426(3) allows a
person to inspect the Register and take copies or extracts from it. For this
the person is required to pay any charge determined by the ACA under s. 52 of
the ACA Act. That provision restricts the ACA to recovery of its costs in
relation to the provision of the service to which the charge applies so that a
charge may not amount to taxation.
Clause 426(4) makes it clear that a
printout from the Register, if it is kept in an electronic form, is to be taken
to be an extract from the Register.
Clause 426(5) makes it clear that the
ACA may provide extracts or copies of the Register in the form of a data
processing device (paragraph (a)) such as a floppy disk or a CD; or by way of
electronic transmission (paragraph (b)) such as email or on the
Internet.
Division 10—Remedies for unauthorised connections to telecommunications networks etc.
Clause 427 – Civil action for unauthorised connections to
telecommunications networks etc.
This clause provides for a manager
of a network or facility to take civil action in the Federal Court against a
person in relation to damage, loss or liabilities arising from certain
unauthorised connections to the manager’s network or facility (clause
427(1)). An application for such an action must be made within 3 years of the
damage being caused, loss suffered, or liability incurred (clause
427(6)).
Such an action can be taken where the manager suffers a loss,
damage, or incurs a liability (paragraph (b)), because the person who is the
subject of the action is responsible for connecting customer equipment or
cabling, or for maintaining a connection, in contravention of clause 395, that
is, a connection of equipment or cabling that does not comply with an applicable
standard made under clause 361 (paragraph (a)).
Clause 427(2) makes it
clear that the range of remedies that may be granted by the Federal Court to a
manager who takes action under clause 427(1) includes an injunction and either
damages or an account of profits.
Clause 427(3) makes it clear that an
interim injunction may be granted in relation to an action brought under clause
427(1).
Clause 427(4) sets out the circumstances in which the Federal
Court may grant a restraining injunction in relation to an action brought under
clause 427(1).
Clause 427(5) sets out the circumstances in which the
Federal Court may grant a performance injunction in relation to an action
brought under clause 427(1).
Clause 428 – Remedy for
contravention of labelling requirements
This clause allows a manager
of a network or facility to take action in the Federal Court against a person
who has contravened clause 397 (relating to supply of unlabelled customer
equipment or cabling), clause 398 (relating to applying labels to customer
equipment or cabling before satisfying pre-labelling requirements), or clause
399 (relating to failure to retain records relating to labelling), in relation
to equipment or cabling that is connected, or a connection that is maintained,
by that person or another person to the manager’s network or facility
thereby causing the manager to suffer a loss or damage (clause
428(1)).
This will enable manufacturers, importers and other suppliers of
equipment or cabling to be sued in relation to the connection of equipment or
cabling, where there has been a breach of clause 397, 398 or 399, and the
connection of that equipment or cabling to a network or facility causes
damage.
An application for such an action must be made within 3 years of
the damage being caused or loss suffered (clause 428(2)).
Clause 429
– Remedies for connection of unlabelled customer equipment or unlabelled
customer cabling
This clause allows the manager of a network or
facility to take action in the Federal Court (clause 429(2)) against a person in
relation to the connection, or maintenance of a connection, of unlabelled
equipment or cabling to the manager’s network or facility, where the
equipment or cabling was required under an instrument made under clause 391 to
be labelled (clause 429(1)). This applies to equipment or cabling that is
labelled as not complying with applicable standards made under clause 361
(subparagraph (1)(c)(ii)). The action may relate to any loss or damage suffered
by the manager as a result of the connection (clause 429(2)). An application
for such an action must be made within 3 years of the damage being caused, loss
suffered, or liability incurred (clause 429(9)).
Clause 429(3) makes it
clear that the range of remedies that may be granted by the Federal Court to a
manager who takes action under clause 429(2) includes an injunction and either
damages or an account of profits.
Clause 429(4) allows the manager to
disconnect the equipment or cabling from the manager’s network or
facility. In such circumstances, the connection could constitute a threat to
the health or safety of a person, or to the integrity of the network or
facility.
Clause 429(5) makes it clear that any disconnection under
clause 429(4) may be effected by the disconnection of some other customer
equipment or cabling.
Clause 429(6) makes it clear that an interim
injunction may be granted in relation to an action brought under clause
429(2).
Clause 429(7) sets out the circumstances in which the Federal
Court may grant a restraining injunction in relation to an action brought under
clause 429(2).
Clause 429(8) sets out the circumstances in which the
Federal Court may grant a performance injunction in relation to an action
brought under clause 429(2).
Clause 430 – Disconnection of
dangerous customer equipment or customer cabling
This clause allows
the manager of a network or facility to disconnect customer equipment or cabling
connected to the manager’s network or facility where the manager honestly
believes that the connection would constitute a threat to the health or safety
of persons operating (subparagraph (1)(b)(i)), working on (subparagraph
(1)(b)(ii)), using services supplied by means of (subparagraph (1)(b)(iii)), or
otherwise reasonably likely to be affected by the operation of (subparagraph
(1)(b)(iv)), the network or facility.
Clause 430(2) allows the ACA to
direct the manager to re-connect equipment or cabling disconnected by the
manager under clause 430(1). The ACA may only give the direction if it is
satisfied that the manager did not have reasonable grounds for the belief that
was claimed to justify the disconnection. The manager must comply with a
direction from the ACA under clause 430(2) (clause 430(3)).
Clause 430(4)
allows a person to take action in the Federal Court for loss or damage against a
manager who disconnects the person’s equipment or cabling without
reasonable grounds. An application for such an action must be made within 3
years of the damage being caused or the loss suffered (clause
430(5)).
Clause 431 – Disconnection of customer equipment or
customer cabling – protection of the integrity of networks and
facilities
This clause allows the manager of a network or facility to
disconnect customer equipment or cabling connected to the manager’s
network or facility where the manager honestly believes that the connection
would constitute a threat to the integrity of the network or
facility.
Clause 431(2) allows the ACA to direct the manager to
re-connect equipment or cabling disconnected by the manager under clause 431(1).
The ACA may only give the direction if it is satisfied that the manager did not
have reasonable grounds for the belief that was claimed to justify the
disconnection. The manager must comply with a direction from the ACA under
clause 431(2) (clause 431(3)).
Clause 431(4) allows a person to take
action in the Federal Court for loss or damage against a manager who disconnects
the person’s equipment or cabling without reasonable grounds. An
application for such an action must be made within 3 years of the damage being
caused or the loss suffered (clause 431(5)).
Clause 432 – Civil
action for dangerous connections to telecommunications networks
etc.
This clause provides for a manager of a network or facility to
take civil action in the Federal Court against a person in relation to damage or
loss arising from certain dangerous connections of customer equipment or cabling
to the manager’s network or facility (clause 432(1)). An application for
such an action must be made within 3 years of the damage being caused, or loss
suffered (clause 432(2)).
Such an action can be taken where the manager
suffers a loss or damage (paragraph (c)), because the person who is the subject
of the action is responsible for connecting customer equipment or cabling, or
maintaining a connection, where that connection is a threat to the health or
safety of persons operating (subparagraph (1)(b)(i)), working on (subparagraph
(1)(b)(ii)), using services supplied by means of (subparagraph (1)(b)(iii)), or
otherwise reasonably likely to be affected by the operation of (subparagraph
(1)(b)(iv)), the network or facility.
Clause 433 – Other
remedies not affected
This clause makes it clear that none of the
provisions in Division 10 is to be taken to limit the remedies a person might
seek or a court may grant in relation to the connection of customer equipment or
cabling to networks or facilities.
Division 11—Prohibited customer equipment and prohibited customer cabling
Clause 434 – Declaration of prohibited customer equipment or
prohibited customer cabling
This clause allows the ACA to make a
written disallowable (clause 434(4)) declaration that operation or supply, or
possession for the purpose of operation or supply, of specified customer
equipment or cabling is prohibited (clause 434(1)). The declaration must set
out the reasons for the declaration. It is anticipated that this power would
only be exercised in the event of a serious threat to health or safety, or
network integrity and may be applied to the importation of dangerous
equipment.
The reasons for a declaration under clause 434(1) must relate
to the protection of either the integrity of a network or facility (paragraph
(2)(a)) or the health or safety of persons operating (subparagraph (2)(b)(i)),
working on (subparagraph (2)(b)(ii)), using services supplied by means of
(subparagraph (2)(b)(iii)), or otherwise reasonably likely to be affected by the
operation of (subparagraph (2)(b)(iv)), the network or facility.
A
declaration made under clause 434(1) must be published in one or more newspapers
circulating in the capital city of each State, the ACT and the Northern
Territory (clauses 434(3) and (5)).
Clause 434(5) defines terms used in
this clause.
Clause 435 – Consultation on proposed
declaration
This clause requires the ACA to engage in at least 28
days of public consultation on a proposed declaration of prohibited equipment or
cabling (clause 435(1)). The ACA is required to take into consideration any
representations made during the public consultation (clause
435(2)).
However, the ACA is not required to carry out the public
consultation where the ACA is satisfied that the making of the proposed
declaration is a matter of urgency (clause 435(3)).
Clause 436 –
Operation of prohibited customer equipment or customer cabling
This
clause makes it an offence to operate, supply, or possess for the purposes of
operation or supply, prohibited customer equipment or cabling (clause 436(1)).
The maximum penalty for the offence is, in the case of an individual, 2,000
penalty units, or in the case of a body corporate, 10,000 penalty units (clause
436(2)) (under s. 4AA of the Crimes Act 1914, a penalty unit is worth
$100 - see also s. 4B(3) of that Act).
Clause 436(3) defines terms used
in this clause.
Division 12—Pre-commencement labels
Clause 437 – Pre-commencement labels
This clause is a
transitional provision which deems labels required and applied to customer
equipment under the 1991 Act to be labels applied under Part 21 of this
Act.
Part 22—Numbering of carriage services and regulation of electronic addressing
This Part provides for the regulation of numbering and electronic
addressing in relation to carriage services. Strictly, all numbering used for
carriages services is a form, or subset, of electronic addressing, which is
essentially a series of alphanumeric characters that enables a network to
recognise the intended destination of a communication carried across the
network, or to establish a connection between two or more points. The
distinction drawn in this Part between numbering and electronic addressing is
merely that numbering is any sequence of characters specified in the numbering
plan made under clause 439, and electronic addressing is any other sequence, not
specified in the numbering plan, used in relation to communication by a carriage
service.
The ACA is required to prepare a numbering plan for carriages
services in Australia. A numbering plan is important to providing any-to-any
connectivity for end-users.
The plan may provide rules for the use of
numbers. Most importantly, that plan may provide rules concerning the
portability of numbers. Portability is the ability for a customer of a carriage
service provider to change their carriage service provider but retain the same
telephone number. The provision of number portability is important to opening
up the market in the provision of carriage services to competition because the
need to change telephone numbers is removed as a barrier to end-users changing
carriage service providers. Where there is a dispute arising about the terms
and conditions under which portability is to be provided to carriage service
providers, and the parties cannot agree on an arbitrator, the ACCC may arbitrate
the dispute. Any rules or arbitration on portability, concerning the terms on
which portability is to be provided, must be determined in accordance with
pricing principles determined by the Minister.
The ACA will be able to
delegate to an industry body its powers and functions provided by the numbering
plan, including its function of maintaining a register of allocated numbers.
This reflects the general regulatory approach adopted in this Act of promoting
the greatest practicable use of industry self-regulation (see clause
4).
Electronic addressing is expected to continue to be industry
self-regulated, but will be underpinned by a reserve regulatory power. It is
only if there is a serious failure of that industry self-regulation that the ACA
is empowered to declare a manager of electronic addressing in relation to a
particular form of electronic addressing. Even then, the manager is subject
only to direction by the ACA or the ACCC. This is not intended as a means for
the ACA or ACCC to manage any electronic addressing.
Division 1—Simplified outline
Clause 438 – Simplified outline
This clause provides
an outline of Part 22 to assist the reader.
Division 2—Numbering of carriage services
Subdivision A—Numbering plan
This Subdivision provides for the regulation of numbers for use in
connection with carriage services provided to the public in Australia. Numbers
may include a letter or a symbol such as the hash key on most standard telephone
handsets (clause 457).
Clause 439 – Numbering
plan
This clause requires the ACA to make a numbering plan for
numbering of carriage services in Australia, and the use of numbers for those
services (clause 439(1)). The numbering plan (clause 439(2)) is a disallowable
instrument (clause 439(11)).
The first level of reference to numbers in
the plan is the ‘specification’ of numbers that are available for
use with carriage services supplied to the public in Australia (clause 439(3)).
At this level no number is allocated for use by any particular carriage service
provider. At this level whole blocks or number ranges will be used. Indeed, at
this level of reference, and at the other levels, numbers in most cases will be
referred to merely in terms of prefixes with the final four to six and above
digits or characters specified as ranges.
Clause 439(4) makes it clear
that the numbering plan may specify different numbers to be used in relation to
different carriage services.
Clause 439(5) specifies, for the purposes of
clarification (see clause 439(8)), a number of matters that may be provided for
in the numbering plan. Those matters are: allocation of numbers to carriage
service providers (paragraph (a)); transfer of numbers between carriage service
providers (paragraph (b)); surrender or withdrawal of numbers (paragraph (c));
portability of numbers (paragraph (d)); and the use of numbers (paragraph
(e)).
The concept of ‘allocation’ is the second level of
reference to numbers in relation to the numbering plan.
‘Allocation’ to a carriage service provider will enable that
provider exclusively to use the number in relation to the provision of carriage
services in Australia. A carriage service provider has the discretion to
transfer any of its allocated numbers to another carriage service provider
(paragraph (5)(b)) (which may not occur without some form of consideration), or
to surrender any of its allocated numbers back to the ‘pool’ of
numbers specified in the numbering plan so that the numbers will be available
for allocation to another carriage service provider. A carriage service
provider might consider surrendering numbers allocated to it because it does not
use those numbers but continues to be liable for the payment of numbering
charges under the proposed Telecommunications (Numbering Charges) Act
1996. Rules in the numbering plan about the allocation of numbers may
authorise ‘over the counter’ or administrative allocation, or
allocation under an allocation system determined under clause 447 (clause
439(6)).
It is not expected that the power to withdraw numbers under
clause 439(5)(c) would be exercised in relation to numbers that have been
allocated by price-based allocation without the agreement of the parties who
hold those numbers or as specified as part of the allocation
process.
Portability rules may include the provision of a portability
capability for specified numbers, how portability transfers numbers between
carriage service providers and may relate to the maintenance of, and access to,
databases that facilitate portability (clause 439(5)(d)).
Rules about the
use of numbers for the provision of carriage services to the public in Australia
are expected to include rules relating to the third level of reference to
numbers in the numbering plan, that of numbers issued by carriage service
providers to their customers for use in connection with the supply of carriage
services (clause 439(5)(e)). These are the numbers that are normally understood
as a person’s or business’ telephone number or fax number for
example. It is at the discretion of a carriage service provider as to which of
its allocated numbers it issues to any of its customers, subject to any relevant
rules in the numbering plan.
Clause 439(7) allows the numbering plan to
provide for the ACA to exercise discretions under the plan when administering
the plan. The exercise of such discretions would be expected to be subject to
merits review for which it is expected that the plan would
provide.
Clause 439(9) makes it clear that a number may be
‘renumbered’, ordinarily by adding one or two digits, but still be
considered to be the same number as was allocated under the plan. An example of
this would be the recent adding of the nine digit to Sydney and Melbourne
telephone numbers. The numbers before and after the change are considered to be
the same for the purposes of considering any allocation made under the numbering
plan - the changed numbers are considered to be allocated to the same carriage
service providers as the ‘old’ numbers. This is relevant for the
purposes of any rules under the numbering plan relating to allocations, but also
is relevant for the purposes of numbering charges. The renumbering of allocated
numbers will not affect the continuity of the allocations, so that no new
‘allocation’ charges are payable because of the renumbering.
Similarly, the charge payable under the proposed Telecommunications
(Numbering Charges) Act 1996 in relation to a ‘renumbered’
allocated number applies to the number as renumbered, so that any anniversary
applicable under that Act applies to the renumbered number. The issue of a
number to a customer similarly is not to be affected by the renumbering of the
number - this will be relevant for any agreement made between the carriage
service provider and the customer relating to the use of the number by the
customer.
Clause 439(10) makes it clear that the ACA must have regard to
the obligations (under Part 8) of carriage service providers to provide
continued access to untimed local calls, and to any international standards
relating to numbering, when making or varying the numbering
plan.
Clause 440 – Numbering plan – supply to the
public
This clause defines what is meant by the provision of carriage
services supplied to the public. The definition is based on the same concepts
used in the carrier licensing provisions in Part 3 relating to the provision of
service beyond a person’s ‘immediate circle’.
Clause
441 – Numbering plan – allocation otherwise than in accordance with
an allocation system
This clause requires the numbering plan to make
special provision in relation to ‘over the counter’ or
administrative allocations of numbers for use in connection with the supply of
carriage services in Australia. This applies to any allocations not made under
clause 447. The plan must require an applicant for such an allocation to pay
any relevant ACA cost recovery charges, as well as any charges payable under the
proposed Telecommunications (Numbering Charges) Act 1996 (clause
441(1)).
Any charges paid under the proposed Telecommunications
(Numbering Charges) Act 1996 must be refunded if the applicant for the
allocation is unsuccessful (clause 441(2)).
Clause 442 –
Numbering plan – rules about portability of allocated
numbers
This clause prevents the ACA from including in the numbering
plan any rules about the portability of numbers unless it is directed to do so
by the ACCC (clause 442(1)).
Clause 442(2) allows the ACCC to give a
written direction to the ACA in relation to the power to specify number
portability rules in the numbering plan. In giving such a direction to the ACA,
the ACCC must have regard to whether portability is required for the promotion
of the long-term interests of the end-users of carriage services or the services
supplied by means of such carriage services (clause 442(4)). These long-term
interests are to be determined in the same manner as they are determined under
Part XIC of the TPA (clause 442(5)). These requirements reflect the importance
of number portability in achieving competition objectives for
telecommunications.
It is intended that a direction may, for example,
relate to specified services or ranges of numbers.
The ACA is required to
comply with an ACCC direction in making or varying a numbering plan (clause
442(3)).
Clause 443 – ACA to administer numbering
plan
This clause makes it clear that the ACA is responsible for the
general administration of the numbering plan. Where possible, it is expected
that the ACA will delegate its powers that are conferred by the numbering plan
to a body corporate (see clause 451).
Clause 444 – Consultation
about numbering plan
This clause requires the ACA to engage in public
consultation on a draft of a numbering plan, or a proposed variation of the
plan. The clause sets out specific requirements for that consultation (clause
444(1)).
Clause 444(2) requires the ACA to have due regard to any
comments made by interested persons during the consultation
process.
Clause 444(3) makes it clear that the consultation requirements
under clause 444(1) do not apply in relation to variations of a numbering plan
where those variations are of a minor nature. A variation would not be
considered to be minor if a substantial number of end-users would be affected by
the change (for example, required to change number), or significant holders of
numbers, such as carriers or carriage service providers, would be significantly
affected by the change.
Clause 444(4) defines the term
‘State’ used in this clause.
Clause 445 –
Consultation with ACCC
This clause requires the ACA to consult with
the ACCC when making or varying a numbering plan (clause 445(1)).
Clause
445(2) also allows the numbering plan to require the ACA to consult with the
ACCC before exercising any discretions conferred on the ACA by the numbering
plan.
Clause 446 – Compliance with the numbering
plan
This clause requires carriers and carriage service providers to
comply with the numbering plan (clause 446(1)).
Clause 446(2) applies
where the numbering plan requires a carrier or carriage service provider to
provide number portability in relation to the customers of a carriage service
provider (paragraphs (a) and (b)). In those circumstances the person subject to
the requirement must provide the portability on such terms as it agrees with the
provider in relation to whom portability is to be provided. If those parties
cannot agree on terms, then the terms are to be settled by an arbitrator
appointed by those parties. Where the parties cannot agree on an arbitrator,
the ACCC is to arbitrate the matter. Any arbitration determination made under
this clause must comply with any disallowable (clause 446(7)) pricing principles
determined by the Minister under clause 446(6), and with the numbering plan
(clause 446(6)). The pricing principles must relate to price-related terms and
conditions relating to number portability required by the numbering
plan.
Clause 446(3) enables regulations to be made relating to the
conduct of an arbitration under this clause, whether it is an arbitration
conducted by an arbitrator appointed by the parties referred to in clause
446(2), or by the ACCC. Such regulations may relate to the constitution of the
ACCC for the purposes of the arbitration, such constitution to be made up of
members nominated by the Chairperson of the ACCC (clause 446(4)).
Clause
446(5) makes it clear that clause 446(4) is not meant to limit what may be
prescribed under the regulations made under clause 446(3).
Clause 446(8)
defines the term ‘price-related terms and conditions’ used in this
clause.
Subdivision B—Allocation system for numbers
This Subdivision provides for the determination of a number allocation
system and the procedures to be followed in determining such a
system.
Clause 447 – Allocation system for
numbers
This clause allows the ACA to determine an allocation system
for allocating specified numbers to carriage service providers (clause
447(1)).
Clause 447(2) requires the ACA to consult the ACCC before
determining such an allocation system.
Clause 447(3) allows a
determination system to apply generally or in relation to a specified area, and
to require the payment of an application fee by an applicant under the
allocation system.
Clause 447(4) allows a determination system to impose
limits on the quantity of numbers that may be allocated to a person generally, a
particular person, or a particular group of persons. This power has been
included in recognition that the holding of allocated numbers can have an effect
on competition by limiting another person’s ability to provide carriage
services.
Clause 447(5) makes it clear that clauses 447(3) and (4) are
not meant to limit what may be included in an allocation system determined made
under clause 447(1).
Clause 447(6) requires an allocation system
determined under clause 447(1) to make provision for successful applicants, and
their successful bid amounts, to be determined by the results of a tender,
public auction, or other process conducted under the system.
Clause
447(7) allows the ACA to make arrangements with a person for the collection of
application fees under an allocation system.
Clause 448 –
Consultation about an allocation system
This clause requires the ACA
to engage in public consultation on a draft of an allocation system, or a
proposed variation of the system. The clause sets out specific requirements for
that consultation (clause 448(1)).
Clause 448(2) requires the ACA to have
due regard to any comments made by interested persons during the consultation
process.
Clause 448(3) makes it clear that the consultation requirements
under clause 448(1) do not apply in relation to variations of an allocation
system where those variations are of a minor nature. A variation that
significantly affected the bid preparations of potential applicants in an
allocation system would not be considered to be of a minor nature.
Clause
448(4) defines the term ‘State’ used in this clause.
Subdivision C—Miscellaneous
Clause 449 – Register of allocated numbers
This
clause requires the ACA, or a person with whom the ACA enters into an
arrangement for the purposes of this clause (clause 449(1)), to establish and
maintain a Register of numbers that have been allocated under the numbering plan
to carriage service providers (paragraph (2)(a)), including the names of persons
to whom numbers were allocated ‘over the counter’ or
administratively. The Register must also include details of successful
applicants under an allocation system determined under clause 447, and their
winning bids (paragraph (2)(b)). The Register may be maintained in an
electronic form (clause 449(4)).
Clause 449(3) allows the Register to
include details on who holds a number at the relevant time for ascertaining to
whom the charge liability for holding a number applies under the proposed
Telecommunications (Numbering Charges) Act 1996. This will enable the
Register to be updated to take account of the trading in allocated numbers by
carriage service providers and any numbers that have been ported by the customer
of a carriage service provider in accordance with any portability rules
specified in the numbering plan.
Where the ACA is maintaining the
Register, a person wishing to inspect and make extracts from the Register must
pay to the ACA any cost recovery charges the ACA has determined under s. 52 of
the proposed ACA Act (clause 449(5)).
Where another person is maintaining
the Register by arrangement with the ACA under clause 449(1), the fee payable
for inspection of and extracting from the Register is an amount prescribed in
the regulations (clause 449(6)).
Clause 449(7) makes it clear that a
printout from the Register, if it is kept in an electronic form, is to be taken
to be an extract from the Register.
Clause 449(8) makes it clear that the
ACA may provide extracts or copies of the Register in a form of a data
processing device (paragraph (a)) such as a floppy disk or a CD; or by way of
electronic transmission (paragraph (b)) such as email or on the Internet. This
applies where a person has requested an extract or copy in an electronic
form.
Clause 450 – Emergency service numbers
This
clause provides that an emergency service number is one that is specified as
such in the numbering plan made under clause 439 (clause 450(2)).
Clause
450(1) sets out the object of the clause.
Clause 450(3) makes it clear
that different emergency service numbers may be specified in the numbering plan
in relation to different areas. Different numbers may also be specified in
relation to different types of services (clause 450(4)). It is intended that
there should not be a proliferation of emergency service numbers - it is
recognised that it is in the public interest to keep the number of emergency
service numbers to the minimum necessary to ensure that a member of the public
can contact an emergency service when required. However, there may be reasons
why the current ‘000’ emergency number cannot be used in all
circumstances, for example, for reasons relating to technical feasibility,
Australia’s international obligations or requirements of particular
end-users (such as persons with disabilities).
Clause 450(5) allows the
numbering plan to set out rules about the use of emergency service
numbers.
Clause 451 – Delegation
This clause allows
the ACA to delegate to a body corporate all of the powers conferred on it by the
numbering plan (clause 451(1)). This is to further facilitate industry
self-regulation. It is expected that such a delegation would only occur in
circumstances where the body concerned was independent of the interests of any
particular carrier or carriage service provider so as to ensure the impartial
exercise of any delegated power.
Clause 451(2) makes it clear the ACA may
direct a delegate in relation to the exercise of a delegated power. The ACA
must consult with the ACCC before giving a direction to a delegate under clause
451(2) (clause 451(3)).
Clause 452 – Collection of numbering
charges
This clause provides for the collection of numbering charges
imposed under the proposed Telecommunications (Numbering Charges) Act
1996.
Clause 452(1) defines terms used in this clause.
Clause
452(2) provides that an allocation charge for a number is due and payable when
the number is allocated.
Clause 452(3) provides that the time an annual
number charge is due and payable is the time ascertained by reference to a
disallowable determination (clause 452(11)) made by the ACA.
Clause
452(4) allows the ACA to determine penalties for the late payment of number
charges at the rate of up to a maximum of 20% per annum. Such a determination
is disallowable (clause 452(11)).
Clause 452(6) makes it clear that a
determination of late payment penalties may also provide for the ACA to grant
remissions of the whole or a part of those penalties. Decisions about such
remissions will be subject to merits review under Part 29 of the Act (see
Schedule 4).
Clause 452(7) makes it clear that number charges are payable
to the ACA on behalf of the Commonwealth. All number charges are to be paid
into the Consolidated Revenue Fund (clause 452(9)).
Clause 452(8)
provides that number charges, including late payment penalties incurred, are
debts due the Commonwealth and may be recovered as such.
Clause 452(10)
enables the ACA to withdraw a number from a person if an annual charge payable
in relation to the number remains unpaid after the time it became due for
payment. Decisions about withdrawing numbers will be subject to merits review
under Part 29 of the Act (see Schedule 4).
Clause 453 –
Collection of charges on behalf of the Commonwealth
This clause
allows the ACA to make arrangements with a person for the collection of number
charges on behalf of the Commonwealth.
Clause 454 – Cancellation
of certain exemptions from charge
This clause ceases the exemptions
from payment of a charge payable under the proposed Telecommunications
(Numbering Charges) Act 1996 (clause 454(1)) where the exemptions are
provided by any Act or provision enacted before the commencement of this clause
(clause 454(2)).
Clause 455 – Commonwealth not liable to
charge
This clause makes it clear that the Commonwealth is not liable
to pay a number charge payable under the proposed Telecommunications
(Numbering Charges) Act 1996 (clause 455(1)). This is because there are
certain constitutional problems with the notion of the Commonwealth taxing
itself.
However, clause 455(2) makes it clear that Parliament intends
that certain Commonwealth agencies, including Departments of State and
Parliament, should be treated as being notionally liable for the payment of
number charges. This will enable the financial arrangements for these agencies
to take account of the liabilities, equivalent to number charges, incurred by
those agencies.
The Minister for Finance will be able to give any
necessary directions to give effect to this notional liability, particularly
with respect to the transfer of money in the Public Account or its equivalent
(clause 455(3)). Agencies will be required to comply with such Ministerial
directions (clause 455(4)).
Clause 455(5) makes it clear that the term
‘Commonwealth’ in this clause includes a Commonwealth authority that
cannot be liable to taxation because of the operation of a Commonwealth
law.
Clause 456 – Integrated public number
database
It is intended that Telstra will be obliged under its
licence conditions to provide and maintain an integrated public number database.
However, a mechanism is included in this clause for the Minister to determine
that another specified person or association is to provide and maintain an
integrated public number database. This mechanism will be used if the industry
can reach agreement for a body other than Telstra to perform the function.
This clause enables the Minister to determine, by disallowable
instrument (clause 456(6)), that a person or association must provide and
maintain an integrated public number database (clause 456(1)). The person must
not be Telstra. Any such person or association is required to comply with such
a determination (clause 456(2)).
The Minister will be able to direct any
such person or association to do or refrain from doing something in relation to
the provision or maintenance of the database (clause 456(3)), which may include
a requirement to include specified information (clause 456(4)).
Part 4 of
Schedule 2 to the Bill requires carriage service providers to provide such
information as is reasonably necessary for the provision and maintenance of the
integrated public number database to a person or association specified in a
determination under clause 456(1).
Clause 456(5) makes it clear, however,
that if Telstra is required by a licence condition to provide and maintain an
integrated public number database, a determination under clause 456(1) does not
have any effect.
Clause 456(7) defines the term ‘public
number’ used in this clause.
Clause 457 – Letters and
symbols taken to be numbers
This clause makes it clear that for the
purposes of Division 2 of Part 22, letters and symbols may be treated as
numbers. An example of a symbol being treated as such would be the hatch symbol
on most telephone handsets.
Division 3—Regulation of electronic addressing
This Division provides an approach to the management of electronic
addressing that is in the first instance industry self-regulated, but
under-pinned by a reserve power for the ACA and the ACCC. It is only in very
narrow circumstances that the regulators may become involved in regulating
electronic addressing, and then only to a limited degree.
The distinction
drawn between numbering (dealt with in Division 2) and electronic addressing is
merely that numbering is any sequence of characters specified in the numbering
plan made under clause 439, and electronic addressing is any other sequence, not
specified in the numbering plan, used in relation to communication by a carriage
service.
Clause 458 – Declared manager of electronic
addressing
This clause provides for the ACA to declare, by gazettal
notice, a person or association to be a manager of electronic addressing in
relation to a specified kind of listed carriage service (clause 458(1)). A
listed carriage service is defined in clause 16 and would include, for example,
a service for the carriage of Internet communications.
However, the ACA
is prevented from making such a declaration unless it is directed to do so by
the ACCC under clause 458(4) (paragraph (3)(a)), or the ACA considers the person
is not managing the relevant type of electronic addressing according to
generally accepted principles (paragraph (3)(b)). The ACA is required to comply
with any direction given by the ACCC under clause 458(4) (clause
458(5)).
Clause 458(6) makes it clear that the ACCC may not give a
direction to the ACA under clause 458(4) unless it considers it necessary for
the purposes of competition.
Clause 459 – ACA may give
directions to declared manager of electronic addressing
This clause
allows the ACA to give a disallowable direction (clause 459(8)) to a declared
manager of electronic addressing in relation to the management of the type of
electronic addressing in relation to which the manager was declared under clause
458 (clause 459(1)). The person must comply with the direction (clause 459(6)).
Contravention of a direction is an offence, the maximum penalty for which is, in
the case of an individual, 10 penalty units or, in the case of a body corporate,
50 penalty units (clause 459(7)) (under s. 4AA of the Crimes Act 1914, a
penalty unit is worth $100 - see also s. 4B(3) of that Act).
However, the
ACA must not give such a direction unless it considers the type of electronic
addressing to be of public importance (clause 459(2)). This reflects the strong
preference for self-regulation adopted in this Division. When deciding if the
addressing is of public importance, the ACA must have regard to whether the
addressing is of significant social or economic importance to service providers
and end-users of carriage services (clause 459(3)). Also, the ACA must consult
with the ACCC before it gives such a direction (clause 459(5)).
Clause
459(4) makes it clear that clause 459(3) is not meant to limit what the ACA may
have regard to in determining whether a type of electronic addressing is of
public importance.
Clause 460 – ACCC may give directions to
declared manager of electronic addressing
This clause allows the ACCC
to give a disallowable direction (clause 460(8)) to a declared manager of
electronic addressing in relation to the management of the type of electronic
addressing in relation to which the manager was declared under clause 458
(clause 460(1)). The person must comply with the direction (clause 460(6)).
Contravention of a direction is an offence, the maximum penalty for which is, in
the case of an individual, 10 penalty units or, in the case of a body corporate,
50 penalty units (clause 460(7)) (under s. 4AA of the Crimes Act 1914, a
penalty unit is worth $100 - see also s. 4B(3) of that Act).
However, the
ACCC must not give such a direction unless it considers the type of electronic
addressing to be of public importance and compliance with the direction would
have a bearing on competition (clause 460(2)) (relevant here is also whether
non-compliance with the direction would have a bearing on competition). This
reflects the strongly self-regulatory approach adopted in this Division. When
deciding if the addressing is of public importance, the ACCC must have regard to
whether the addressing is of significant social or economic importance to
service providers and end-users of carriage services (clause
460(3)).
Also, the ACCC must consult with the ACA before it gives such a
direction (clause 460(5)).
Clause 460(4) makes it clear that clause
460(3) is not meant to limit what the ACCC may have regard to in determining
whether a type of electronic addressing is of public
importance.
Clause 461 – ACCC’s directions to prevail over
the ACA’s directions
This clause makes it clear that if there
is any inconsistency between an ACCC direction under clause 460 and a direction
of the ACA under clause 459, the ACCC direction is to prevail to the extent of
the inconsistency.
Part 23––Standard agreements for the supply of carriage services
Part 23 is based on ss. 200 and 201 of the 1991 Act but has been extended
to apply not just to carriers but to all carriage service providers supplying a
standard telephone service, or a carriage service, ancillary goods or an
ancillary service of a kind specified in the regulations. Part 23 enables
carriers and carriage service providers to lodge standard terms and conditions
with the ACA and to rely on them in the supply of the standard telephone service
and other goods or services. This overcomes the need for a carrier or carriage
service provider to enter into separate agreements with each of their
customers.
Clause 462 – Simplified outline
Clause 462
provides a simplified outline of Part 23.
Clause 463 – Standard
terms and conditions apply unless excluded
If a carriage service
provider agrees with a residential or business customer (other than a carrier or
a carriage service provider) on the terms and conditions on which a standard
telephone service, or a prescribed carriage service or prescribed ancillary
goods or a prescribed ancillary service, is supplied, the terms and conditions
on which the goods or services are supplied will be the agreed terms and
conditions. Otherwise, subject to any express law to the contrary, if terms and
conditions are set out in a standard form of agreement formulated by the
carriage service provider and that agreement is in force at the time of the
supply of the goods or services, those terms and conditions will apply so far as
they are applicable (clauses 463(1), (2) and (3)).
‘Terms and
conditions’ is defined in clause 463(4) along similar lines to the
definition of that term in ss. 5 and 200(2) of the 1991 Act. It now, however,
also includes any commissions or similar benefits payable or given in relation
to the supply of the goods or services.
Clause 464 – Standard
form of agreement to be publicly available
If a carriage service
provider has formulated a standard form of agreement for the purposes of clause
463, the provider must ensure that copies of the agreement are made available
for inspection and purchase at each of its business offices (clauses 464(1) and
(2)).
If so requested, the carriage service provider that has formulated
a standard form of agreement will be required to provide a copy of the whole, or
of a specified part, of the agreement to the person who has requested the copy
on payment by that person of such reasonable charge (if any) as the provider
requires (clauses 464(3) and (4)).
If the agreement is relevant to
ascertaining the terms and conditions governing the commercial relationship
between the provider and a customer, the provider will be
required:
• if so requested by the customer, to give the customer a
free copy of a summary of the material terms and conditions set out in the
agreement; and
• before varying the agreement, to arrange for a
copy of a summary of the effect of the proposed variation to be published in one
or more newspapers circulating generally in the capital city of each State, the
Northern Territory and the Australian Capital Territory (clauses 464(5), (6) and
(7)).
Clause 465 – Standard form of agreement to be given to the
ACA
A copy of the standard agreement and any variation to it will be
required to be given to the ACA as soon as practicable after the agreement or
variation comes into force (clause 465).
Clause 466 – Concurrent
operation of State/Territory laws
Part 23 will not prevent or limit
the operation of State and Territory legislation (such as legislation dealing
with fair trading and unfair contracts) that is capable of operating
concurrently with Part 23 (clause 466).
Clause 467 – Trade
Practices Act not affected by this Part
Part 23 will have no effect
to the extent (if any) to which it is inconsistent with the TPA.
Part 24––Carriers’ powers
and immunities
Clause 468 – Schedule 3
Clause 468 gives effect to
Schedule 3 to the Bill which sets out carriers’ powers and immunities.
The provisions are discussed in detail in the notes on Schedule 3.
Part 2
of Schedule 3 gives transitional operation to certain provisions contained in
Part 7 of the current 1991 Act dealing with carriers’ powers and
immunities.
Part 25––Public inquiries
Part 25 is based on Part 14 of the 1991 Act. It enables the ACA and the
ACCC to conduct public inquiries in connection with certain matters relating to
telecommunications. Public inquiries may be conducted either on the initiative
of the ACA or the ACCC or following a request from the Minister.
Public
inquiries by the ACA into the management of the radiofrequency spectrum and
other aspects of radiocommunication will continue to be dealt with under Part
5.2 of the Radcom Act. Part 5.2 will, however, be amended by Part 3 of Schedule
2 to the proposed Telecommunications (Transitional Provisions and
Consequential Amendments) Act 1996 to allow the ACA to hold hearings for the
purposes of a public inquiry and to require it to prepare a report setting out
its findings as a result of the inquiry.
Division 1––Simplified outline
Clause 469 – Simplified outline
Clause 469 gives a
simplified outline of Part 25.
Division 2––Inquiries by the ACA
Clause 470 – When inquiry must be held
The Minister
will be empowered to direct the ACA to hold a public inquiry about a specified
matter concerning carriage services, content services or the telecommunications
industry (clause 470(1)). To avoid any conflict with the BSA, the Minister will
not, however, be able to give the ACA a direction to hold a public inquiry about
a matter concerning the content of a content service (clause 470(2)).
If
the Minister gives the ACA a direction to hold a public inquiry, the Minister
will also be able to direct the ACA to consult with specified persons, bodies or
agencies in connection with the conduct of the inquiry and to have regard to one
or more specified matters in connection with the inquiry (clause
470(3)).
The ACA will be required to comply with any Ministerial
direction under clause 470 (clause 470(4)).
Clause 471 – When
inquiry may be held
If the ACA considers that it is appropriate and
practicable to hold a public inquiry about a matter relating to the performance
or exercise of any of the ACA’s telecommunications functions or powers, it
will be able to hold such an inquiry about the matter (clause 471). (The
ACA’s telecommunications functions are those set out in s. 6 of the
proposed ACA Act and include regulating telecommunications in accordance with
the Telecommunications Bill. The ACA’s telecommunications powers are
those conferred by the Act, new Part XIC of the TPA and s. 9 of the ACA Act
which allows the ACA to do all things necessary and convenient in connection
with the performance of its functions.)
Clause 472 – Informing
the public about an inquiry
If the ACA holds a public inquiry, it
will be required to publish details of the inquiry including its nature,
duration and the public submission process (clause 472).
Clause 473
– Discussion paper
After deciding to hold a public inquiry
about a matter, the ACA will be required to arrange for the preparation of a
discussion paper identifying relevant issues and setting out appropriate
background and discussion material (clause 473(1)).
The ACA will be
required to make copies of the discussion paper available at each of its offices
and, if it considers it appropriate, will be able to charge a reasonable price
for supplying copies of the discussion paper (clause 473(2)).
The ACA
will also be able to publish the discussion paper by other means, including in
electronic form. If it does so, it will be able to charge for supplying the
publication in accordance with a cost recovery determination under s. 52 of the
proposed ACA Act (clause 473(3)).
Clause 474 –
Written submissions and protection from civil actions
The ACA will be
required to provide a reasonable opportunity for any member of the public to
make a written submission to it about the matter to which a public inquiry
relates (clause 474(1)).
Any member of the public who, in good faith,
makes a statement or gives a document or information to the ACA in connection
with a public inquiry (whether in connection with a written submission or at a
public hearing) will not be liable to any defamation action or other civil
proceedings in respect of loss, damage or injury thereby suffered by another
person (clauses 474(2) and (3)).
Clause 475 –
Hearings
The ACA will be able to hold hearings for the purposes of a
public inquiry (clause 475(1)). The ACA may, for example, choose to hold
hearings to receive public submissions about a matter to which the inquiry
relates or to provide a forum for public discussion of issues relevant to that
matter (clause 475(2)).
A hearing may be constituted by such ACA members
as the ACA Chairman determines or by ACA delegates ie. ACA members, associate
members, ACA staff members or persons whose services have been made available to
the ACA by a Commonwealth Department, agency or company and to whom relevant ACA
functions and powers have been delegated (clause 475(3)).
The Chairman
is to preside at all hearings at which he or she is present (clause 475(4)). If
the Chairman is not present at a hearing and an ACA delegate does not constitute
the ACA for the purposes of the hearing, the member determined by the Chairman
as the presiding member is to preside (clause 475(5)).
The ACA will be
able to regulate the conduct of proceedings at a hearing in whatever way it
considers appropriate (clause 475(6)).
Clause 476 – Hearing to
be in public except in exceptional cases
As a general rule, hearings
will be required to be held in public (clauses 476(1) and (2)). If the hearing
is to be conducted in public, the ACA will be required to give reasonable public
notice of the conduct of the hearing (clause 476(4)).
A hearing, or part
of a hearing, will, however, be able to be conducted in private if the ACA is
satisfied that confidential evidence may be given or other confidential matters
may arise during the hearing, or that hearing a matter, or part of a matter, in
public would not be conducive to the due administration of the Act (clause
476(3)).
Clause 477 – Confidential material not to be
published
The ACA will be able to order that confidential evidence or
other confidential material presented to a public hearing or confidential
material in a written submission lodged with the ACA should not be published or
should be disclosed only in restricted circumstances (clauses 477(1) and
(2)).
The intentional or reckless failure, without reasonable excuse, to
comply with such an order will be an offence punishable on conviction by a
maximum fine, in the case of an individual, of 50 penalty units and, in the case
of a body corporate, 250 penalty units (clauses 477(3) and (4)) (under s. 4AA of
the Crimes Act 1914 a penalty unit is worth $100 - see also s. 4B(3) of
that Act).
Clause 478 – Direction about private
hearings
If a hearing, or part of a hearing, takes place in private,
the ACA will be required to give directions as to those who may be present at
the hearing or the part of the hearing and will be able to give directions
restricting the disclosure of evidence or other material presented at the
hearing or part of the hearing (clauses 478(1) and (2)).
The intentional
or reckless failure, without reasonable excuse, to comply with a direction
regarding who may be present at a hearing or part of a hearing will be an
offence punishable on conviction by a maximum fine, in the case of an
individual, of 10 penalty units and, in the case of a body corporate, 50 penalty
units (clauses 478(3) and (4)(a)) (under s. 4AA of the Crimes Act 1914 a
penalty unit is worth $100 - see also s. 4B(3) of that Act).
The
intentional or reckless failure, without reasonable excuse, to comply with a
direction restricting the disclosure of evidence or other material will be an
offence punishable on conviction by a maximum fine, in the case of an
individual, of 50 penalty units and, in the case of a body corporate, 250
penalty units (clauses 478(3) and (4)(b)) (under s. 4AA of the Crimes Act
1914 a penalty unit is worth $100 - see also s. 4B(3) of that
Act).
Clause 479 – Reports on inquiries
The ACA will
be required to prepare a report setting out its findings as a result of any
public inquiry it holds (clause 479(1)).
If the Minister directed the
holding of the inquiry, the ACA will be required to give a copy of its report to
the Minister (clause 479(2)). If the inquiry is held on the ACA’s own
initiative, the ACA will be required to publish the report (clause
479(3)).
The ACA’s report will not be required to
include:
• confidential material;
• material the
disclosure of which is likely to prejudice the fair trial of a person;
or
• material that is subject to an ACA order or an ACA direction
prohibiting or restricting its publication or disclosure (clause
479(4)).
Division 3––Inquiries by the ACCC
Clause 480 – When inquiry must be held
The Minister
will be empowered to direct the ACCC to hold a public inquiry about a specified
matter concerning carriage services, content services or the telecommunications
industry (clause 480(1)). To avoid any conflict with the BSA, the Minister will
not, however, be able to give the ACCC a direction to hold a public inquiry
about a matter concerning the content of a content service (clause
480(2)).
If the Minister gives the ACCC a direction to hold a public
inquiry, the Minister will also be able to direct the ACCC to consult with
specified persons, bodies or agencies in connection with the conduct of the
inquiry and to have regard to one or more specified matters in connection with
the inquiry (clause 480(3)).
The ACCC will be required to comply with any
Ministerial direction under clause 480 (clause 480(4)).
Clause 481
– When inquiry may be held
If the ACCC considers that it is
appropriate and practicable to hold a public inquiry about a matter relating to
the ACCC’s telecommunications functions or powers, it will be able to hold
such an inquiry about the matter (clause 481).
The ACCC’s
telecommunications functions and powers are defined in clause 7 of the Bill to
mean the functions and powers conferred on the ACCC by or
under:
• the Act (such as Part 20 which provides that the ACCC has
the general administration of Rules of Conduct about dealings with international
telecommunications operators);
• the Telstra Corporation Act
1991 (under Part 6 of this Act, as proposed to be amended, the ACCC will
have responsibility for administering the price cap rules applying to
Telstra’s charges);
• Part XIB of the TPA, which sets up a
special regime for regulating anti-competitive conduct in the telecommunications
industry;
• Part XIC of the TPA, which sets out a
telecommunications access regime; and
• any other provision of the
TPA, in so far as that provision applies to a matter connected with
telecommunications – for this purpose ‘telecommunications’
means the carriage of communications by means of guided and/or unguided
electromagnetic energy.
Clause 482 – Informing the public about
an inquiry
If the ACCC holds a public inquiry, it will be required to
publish details of the inquiry including its nature, duration and the public
submission process (clause 482).
Clause 483 – Discussion
paper
After deciding to hold a public inquiry about a matter, the
ACCC will be required to arrange for the preparation of a discussion paper
identifying relevant issues and setting out appropriate background and
discussion material (clause 483(1)).
The ACCC will be required to make
copies of the discussion paper available at each of its offices and, if it
considers it appropriate, will be able to charge a reasonable price for
supplying copies of the discussion paper (clause 483(2)).
The ACCC will
also be able to publish the discussion paper by other means, including in
electronic form. If it does so, it will be able to charge a fee for supplying
the publication (clause 483(3)).
Clause 484 – Written
submissions and protection from civil actions
The ACCC will be
required to provide a reasonable opportunity for any member of the public to
make a written submission to it about the matter to which a public inquiry
relates (clause 484(1)).
Any member of the public who, in good faith,
makes a statement or gives a document or information to the ACCC in connection
with a public inquiry (whether in connection with a written submission or at a
public hearing) will not be liable to any defamation action or other civil
proceedings in respect of loss, damage or injury thereby suffered by another
person (clauses 484(2) and (3)).
Clause 485 –
Hearings
The ACCC will be able to hold hearings for the purposes of a
public inquiry (clause 485(1)). The ACCC may, for example, choose to hold
hearings to receive public submissions about a matter to which the inquiry
relates or to provide a forum for public discussion of issues relevant to that
matter (clause 485(2)).
A hearing may be constituted by such ACCC members
as the ACCC Chairperson determines (clause 485(3)). The Chairperson is to
preside at all hearings at which he or she is present (clause 485(4)). If the
Chairperson is not present at a hearing, the member determined by the
Chairperson as the presiding member is to preside (clause 485(5)).
The
ACCC will be able to regulate the conduct of proceedings at a hearing in
whatever way it considers appropriate (clause 485(6)).
Clause 486
– Hearing to be in public except in exceptional cases
As a
general rule, hearings will be required to be held in public (clauses 486(1) and
(2)). If the hearing is to be conducted in public, the ACCC will be required to
give reasonable public notice of the conduct of the hearing (clause
486(4)).
A hearing, or part of a hearing, will, however, be able to be
conducted in private if the ACCC is satisfied that confidential evidence may be
given or other confidential matters may arise during the hearing, or that
hearing a matter, or part of a matter, in public would not be conducive to the
due administration of the Act (clause 486(3)).
Clause 487 –
Confidential material not to be published
The ACCC will be able to
order that confidential evidence or other confidential material presented to a
public hearing or confidential material in a written submission lodged with the
ACCC should not be published or should be disclosed only in restricted
circumstances (clauses 487(1) and (2)).
The intentional or reckless
failure, without reasonable excuse, to comply with such an order will be an
offence punishable on conviction by a maximum fine, in the case of an
individual, of 50 penalty units or, in the case of a body corporate, 250 penalty
units (clauses 487(3) and (4)) (under s. 4AA of the Crimes Act 1914 a
penalty unit is worth $100 - see also s. 4B(3) of that Act).
Clause
488 – Direction about private hearings
If a hearing, or part of
a hearing, takes place in private, the ACCC will be required to give directions
as to those who may be present at the hearing or the part of the hearing and
will be able to give directions restricting the disclosure of evidence or other
material presented at the hearing or part of the hearing (clauses 488(1) and
(2)).
The intentional or reckless failure, without reasonable excuse, to
comply with a direction regarding who may be present at a hearing or part of a
hearing will be an offence punishable on conviction by a maximum fine, in the
case of an individual, of 10 penalty units or, in the case of a body corporate,
50 penalty units (clauses 488(3) and (4)(a)) (under s. 4AA of the Crimes Act
1914 a penalty unit is worth $100 - see also s. 4B(3) of that
Act).
The intentional or reckless failure, without reasonable excuse, to
comply with a direction restricting the disclosure of evidence or other material
will be an offence punishable on conviction by a maximum fine, in the case of an
individual, of 50 penalty units or, in the case of a body corporate, 250 penalty
units (clauses 488(3) and (4)(b)) (under s. 4AA of the Crimes Act 1914 a
penalty unit is worth $100 - see also s. 4B(3) of that Act).
Clause
489 – Reports on inquiries
The ACCC will be required to prepare
a report setting out its findings as a result of any public inquiry it holds
(clause 489(1)).
If the Minister directed the holding of the inquiry, the
ACCC will be required to give a copy of its report to the Minister (clause
489(2)). If the inquiry is held on the ACCC’s own initiative, the ACCC
will be required to publish the report (clause 489(3)).
The ACCC’s
report will not be required to include:
• confidential
material;
• material the disclosure of which is likely to prejudice
the fair trial of a person; or
• material that is subject to an
ACCC order or an ACCC direction prohibiting or restricting its publication or
disclosure (clause 489(4)).
Clause 490 – ACCC’s other
powers not limited
Nothing in Division 3 of Part 25 will limit other
powers conferred on the ACCC by the TPA (such as s. 155 of that Act dealing with
the ACCC’s powers to obtain information, documents and evidence) (clause
490).
Part 26––Investigations
Part 26 is based on Part 15 of the 1991 Act, which deals with
AUSTEL’s investigatory powers, with some modifications to take account of
the proposed new regulatory arrangements.
Under Part 26, the ACA will be
able to investigate certain matters relating to telecommunications, such as
suspected contraventions of the Act, on its own initiative or in response to
written complaints made to the ACA. The ACA will be required to investigate any
matter concerning carriage services or the telecommunications industry if
requested to do so by the Minister.
Clause 491 – Simplified
outline
Clause 491 provides a simplified outline of Part
26.
Clause 492 – Matters to which this Part
applies
Clause 492 specifies those matters that the ACA may
investigate of its own volition and must investigate if so requested by the
Minister.
These matters are as follows:
• a contravention of
the Act;
• a contravention of an industry code registered under
proposed Part 6 of the Act (no specific reference is required to a contravention
of an industry standard under Part 6 as such a contravention is a contravention
of the Act – see clause 125);
• a failure by a carriage
service provider to comply with an obligation, or discharge a liability, under
proposed Part 9 of the Act dealing with performance standards to be complied
with by carriage service providers in relation to customer
service;
• a matter relating to the supply of, or a refusal or
failure to supply, a carriage service;
• a matter relating to the
connection of, or a refusal or failure to connect, customer
equipment;
• a matter relating to the performance of the
ACA’s telecommunications functions, or the exercise of the ACA’s
telecommunications powers – the ACA’s telecommunications functions
and powers will include functions and powers conferred on the ACA by or under
the Act and proposed Part XIC of the TPA to be inserted by the proposed Trade
Practices Amendment (Telecommunications) Act 1996, dealing with the access
regime.
To avoid any conflict with the operation of the BSA, the ACA will
not, however, be able to investigate a matter to the extent to which it relates
to the content of a content service.
Clause 493 – Complaints to
the ACA
A person will be able to complain in writing to the ACA about
a matter (clauses 493(1) and (2)). The ACA will only be able to investigate
complaints about those matters set out in clause 492.
A complaint will be
required to specify, as the respondent in respect of the complaint, the person
against whom the complaint is made (clause 493(3)).
If it appears to the
ACA that a person wishes to make a complaint and that person needs assistance to
formulate the complaint or to put it in writing, the ACA will be required to
take reasonable steps to provide appropriate assistance to that person (cf. s.
69(2) of the DDA).
Clause 494 – Investigations by the
ACA
The ACA will be empowered to investigate a matter of a kind
referred to in clause 492 if:
• in the case of a contravention of
the Act, the ACA has reason to suspect that a person may have contravened the
Act – the High Court has held that the term ‘suspect’
essentially means to conjecture or surmise, where proof is lacking and
‘reasonable suspicion’ is something that creates a mere idle
wondering whether it exists or not: George v Rockett (1990) 64 ALJR 384
at 388–9;
• a complaint is made to the ACA under clause 493;
or
• the ACA thinks that it is desirable to investigate the matter
(clause 494(1)).
The ACA will not be able to conduct such an
investigation if it thinks that the subject matter of the investigation would
not be a matter relevant to the performance of any of its functions (clause
494(2)).
If the Minister requests the ACA to investigate a matter of a
kind referred to in clause 492 or any other matter concerning carriage services
or the telecommunications industry, the ACA will be required to investigate that
matter (clause 494(3)).
Clause 495 – Preliminary
inquiries
If a person has made a complaint to the ACA under clause
493, the ACA will be able to make inquiries of the respondent identified by the
complainant for the purposes of determining whether the ACA has power to
investigate the matter to which the complaint relates or whether the ACA should,
in its discretion, investigate the matter (clause 495).
Clause 496
– Conduct of investigations
Before it begins to investigate a
matter to which a complaint relates, the ACA will be required to inform the
respondent identified by the complainant that the matter is to be investigated
(clause 496(1)).
The ACA will be able to conduct an investigation under
Part 26 in such manner as the ACA thinks fit (clause 496(2)).
For the
purposes of an investigation, the ACA will be empowered to obtain information
from such persons, and to make such inquiries, as it thinks fit (clause
496(3)).
As a general rule, the ACA will not be required to give a
complainant or a respondent an opportunity to appear before the ACA in
connection with an investigation. The exception to this rule is if the ACA, as
a result of an investigation, makes a finding that is adverse to a complainant
or a respondent. In such a case, the ACA will be required to give the
complainant or respondent an opportunity to make submissions about the matter to
which the investigation relates (clauses 496(4) and (5)).
Clause 497
– Complainant and certain other persons to be informed of various
matters
If the ACA decides not to investigate a matter to which a
complaint relates, or not to investigate it further, it will be required, as
soon as practicable and in such manner as it thinks fit, to inform the
complainant and the respondent of its decision and of the reasons for it (clause
497).
Clause 498 – Reference of matters to Ombudsman or other
responsible person
The ACA may decide not to investigate a matter to
which a complaint relates, or not to investigate it further if, either before or
after the ACA starts its investigation, it forms the opinion
that:
• the complainant has made, or could have made, a complaint
relating to that matter to the Commonwealth Ombudsman under the Ombudsman Act
1976, the TIO or another person or body responsible for handling complaints
under an industry code registered under Part 6 of the Act;
• the
matter could be more conveniently or effectively dealt with by the Commonwealth
Ombudsman, the TIO or another person or body responsible for handling complaints
under an industry code registered under Part 6 (clause 498(1)).
If the
ACA makes a decision under clause 498(1):
• the ACA will be
required to transfer the complaint to the Commonwealth Ombudsman, the TIO or
another person or body responsible for handling complaints under an industry
code registered under Part 6, as the case requires and to notify the complainant
of the transfer;
• the ACA will be required to give the
Commonwealth Ombudsman any information or documents relating to the complaint
that are in the ACA’s possession or under its control in a case where the
ACA has formed the opinion that the complainant has, or could have, made a
complaint relating to the matter to the Ombudsman;
• the ACA will
be empowered to give the TIO such relevant information or documents relating to
the complaint that are in the ACA’s possession or under its control in a
case where the ACA has formed the opinion that the complainant has, or could
have, made a complaint relating to the matter to the TIO;
• the ACA
will be empowered to give another person or body responsible for handling
complaints under an industry code registered under Part 6 such relevant
information or documents relating to the complaint that are in the ACA’s
possession or under its control or copies of , or extracts from, such
information or documents (clauses 498(2) and (3)).
A complaint
transferred under clause 498(2) to the Commonwealth Ombudsman will be taken to
be a complaint made to the Commonwealth Ombudsman under the Ombudsman Act
1976 (clause 498(4)).
Clause 499 – Reference of matters to
the ACCC
The ACA will also be able to decide not to investigate a
matter to which a complaint relates or not to investigate it further if, before
or after commencing an investigation of the matter, it forms the opinion that
the matter could be more conveniently or effectively dealt with by the ACCC
(clause 499(1)).
If the ACA makes a decision under clause 499(2), it will
be required to transfer the complaint to the ACCC, notify the complainant of the
transfer and give the ACCC any information or documents relating to the
complaint that are in the ACA’s possession or under its control (clause
499(2)).
The ACCC will have a discretion about whether it holds an
investigation into the matter. If the ACCC decides to investigate the matter,
it will be required to report to the ACA on the conduct of the investigation,
any findings it has made as a result of the investigation, the evidence and
other material on which those findings were based and such other matters
relating to, or arising out of, the investigation as the ACCC thinks fit (clause
499(3)).
If the ACCC decides not to investigate the matter, it will be
required to notify the ACA of its decision and the reasons for it (clause
499(4)).
Clause 500 – Reports on investigations
After
concluding an investigation which the ACA has itself initiated, the ACA will
have a discretion about whether or not it prepares a report of its investigation
and gives it to the Minister (clause 500(1)).
After concluding an
investigation which the Minister has requested the ACA to conduct, the ACA will
be required to prepare a report of its investigation and give it to the Minister
(clause 500(2)).
A report of an investigation prepared under clause 500
will be required to contain details of the conduct of the investigation
concerned, any findings that the ACA has made as a result of the investigation,
the evidence and other material on which those findings were based and such
other matters relating to, or arising out of, the investigation as the ACA
thinks fit or as the Minister directs (clause 500(3)).
If, as a result of
an investigation, the ACA discovers that a carrier licence condition or a
service provider rule has been contravened, the ACA will be able to issue a
remedial direction or a formal warning under clause 68, 69, 101 or 102 or seek
an injunction under Part 30 or the recovery of a pecuniary penalty under Part 31
of the Bill.
Clause 501 – Publication of reports
If
the ACA prepares a report about an investigation which the ACA has itself
initiated, the ACA will have a discretion about whether or not it publishes the
report (clauses 501(1) and (2)).
If the ACA prepares a report about an
investigation which the Minister has requested the ACA to conduct, the ACA will
be required to publish the report if the Minister directs it to do so.
Otherwise, the ACA will not be permitted to publish the report (clauses 501(1)
and (3)).
The ACA will not be required to publish, or to disclose to a
person to whose affairs it relates, a report about an investigation, or part of
such a report, if the publication or disclosure would disclose confidential
material or be likely to prejudice a person’s fair trial (clause
501(4)).
Clause 502 – Person adversely affected by report to be
given opportunity to comment
If the publication of a matter in a
report or part of a report about an investigation would, or would be likely to,
adversely affect the interests of a person, the ACA will not be permitted to
publish the report or the part of the report, as the case may be, until the ACA
has given the person a reasonable period of up to 30 days to make
representations in relation to the matter (clause 502).
Clause 503
– Protection from civil actions
Civil proceedings (including
proceedings for defamation) will not be able to be brought in respect of loss,
damage or injury suffered because of any of the following acts done in good
faith:
• the making of a complaint to the ACA under clause
493;
• the making of a statement to, or the giving of a document or
information to, the ACA in connection with an investigation by the ACA under
clause 494;
• the making of a complaint to the
TIO;
• except in the case of a carrier or a service provider who is
participating in the TIO scheme, the making of a statement to, or the giving of
a document or information to, the TIO in connection with the TIO’s
consideration of a complaint (clause 503).
Part 27––The ACA’s information gathering powers
Part 27 is based on Part 4.9 of the Employment Services Act 1994,
a more up-to-date model for the ACA’s information-gathering powers than
AUSTEL’s information gathering powers under ss. 400 and 401 of the 1991
Act.
Part 27 will enable the ACA to obtain information and documents from
carriers, service providers and others whom the ACA has reason to believe have
relevant material or who are capable of giving relevant evidence in connection
with the performance or exercise of any of the ACA’s telecommunications
functions and powers.
Division 1––Simplified outline
Clause 504 – Simplified outline
Clause 504 provides a
simplified outline of Part 27.
Division 2––Information-gathering powers
Clause 505 – The ACA may obtain information and documents from
carriers and service providers
If the ACA has reason to believe that
a carrier or a service provider has information or a document that is relevant
to the performance or exercise of any of the ACA’s telecommunications
functions or powers or is capable of giving evidence which the ACA has reason to
believe is relevant to the performance or exercise of those functions or powers,
it will be able to require the carrier or provider:
• to give any
such information to the ACA within a specified period and in a specified manner
and form;
• to produce any such documents, or copies of such
documents, to the ACA within a specified period and in a specified
manner;
• if the carrier or service provider is an individual, to
appear before the ACA at a specified time and place and to give any such
evidence and produce any such documents;
• if the carrier or
service provider is a body corporate or a public body (such as a statutory
authority or Government Business Enterprise), to arrange for a competent officer
of the body to appear before the ACA at a specified time and place to give any
such evidence and to produce any such documents; or
• if the
carrier or service provider is a partnership, to arrange for a partner or
employee of the partnership to appear before the ACA at a specified time and
place and give any such evidence and produce any such documents (clauses 505(1)
and (2)).
The requirement in clause 505(1) for the ACA to have
‘reason to believe’ will require ‘an inclination of the mind
towards assenting to, rather than rejecting, a proposition’: George v
Rockett (1990) 64 ALJR 384 at 388–9.
The ACA’s
telecommunications functions and powers will include those conferred on the ACA
by or under the Act and proposed Part XIC of the TPA, dealing with the access
regime (see definitions of ‘ACA’s telecommunications
functions’ and ‘ACA’s telecommunications powers’ in
clause 7 of the Bill).
A carrier or service provider will be required to
comply with a requirement of the ACA under clause 505(2) to produce information
or documents or to give evidence (clause 505(3)). As a result of the operation
of clauses 61 and 97 and Part 1 of Schedules 1 and 2 to the Bill, failure to
comply with such a requirement will be a breach of a carrier licence condition
or service provider rule and the ACA will be able to take appropriate remedial
action under clause 68, 69, 101 or 102 and under Parts 30 and 31 of the
Bill.
An ACA notice given by the ACA to a carrier or service provider
under clause 505 will be required to set out the effect of
provisions:
• requiring the carrier or service provider to comply
with a requirement of the ACA under clause 505(2) (clause
505(3));
• prohibiting a carrier from contravening a condition of
the carrier licence held by the carrier or a service provider from contravening
a service provider rule that applies to the provider, as the case may be
(clauses 67 and 100);
• providing for the recovery of pecuniary
penalties for contravention of civil penalty provisions including clauses 67 and
100 (clause 554);
• providing that it is a carrier licence
condition or a service provider rule that a carrier or service provider must
comply with the Act (Part 1 of Schedules 1 and 2);
• providing
penalties for the giving of false or misleading information or evidence or for
providing false or misleading documents to the ACA under clause 505 (clauses 509
and 510).
(clauses 505(4) and (5)).
Clause 506 – The ACA
may obtain information and documents from other persons
If the ACA
has reason to believe that a person other than a carrier or a service provider
has information or a document that is relevant to the performance or exercise of
any of the ACA’s telecommunications functions or powers or is capable of
giving evidence which the ACA has reason to believe is relevant to the
performance or exercise of those functions or powers, it will be able to require
the person:
• to give any such information to the ACA within a
specified period and in a specified manner and form;
• to produce
any such documents, or copies of such documents, to the ACA within a specified
period and in a specified manner;
• if the person is an individual,
to appear before the ACA at a specified time and place and to give any such
evidence and produce any such documents;
• if the person is a body
corporate or a public body, to arrange for a competent officer of the body to
appear before the ACA at a specified time and place to give any such evidence
and to produce any such documents; or
• if the person is a
partnership, to arrange for a partner or employee of the partnership to appear
before the ACA at a specified time and place and give any such evidence and
produce any such documents (clauses 506(1) and (2)).
A person who
intentionally or recklessly fails to comply with a requirement of the ACA under
clause 506(2) to produce information or documents or to give evidence will be
guilty of an offence punishable on conviction by a fine not exceeding 20 penalty
units (clauses 506(3) and (4)). As a result of the operation of s. 4B of the
Crimes Act 1914, where a body corporate is convicted of an offence under
clause 506(4), the court will be able to impose a fine of up to 100 penalty
units.
An ACA notice given by the ACA to a person under clause 506 will
be required to set out the effect of provisions:
• providing for a
penalty for the intentional or reckless contravention of a requirement of the
ACA under clause 506(2) (clause 506(4)); and
• providing penalties
for the giving of false or misleading information or evidence or for providing
false or misleading documents to the ACA under clause 506 (clauses 509 and
510).
(clauses 506(4) and (5)).
Clause 507 – Copying
documents – reasonable compensation
A carrier, service provider
or other person who is required to make copies of documents and produce them to
the ACA under clause 505(2)(c) or 506(2)(c) is entitled to be paid by the ACA
reasonable compensation for complying with the requirement (clause
507).
Clause 508 – Self-incrimination
An individual
will not be excused from giving information or evidence or producing a document
under Division 2 of Part 27 on the ground that the information or evidence or
the production of the document might tend to incriminate the individual or
expose him or her to a penalty (clause 508(1)).
However, as a general
rule the information, evidence or document and anything obtained as a direct or
indirect consequence of giving the information or evidence or producing the
document will not be admissible in evidence in criminal proceedings, or in
proceedings for recovery of a pecuniary penalty for the failure to comply with
an ACA notice under clause 505 or 506. The exceptions to this rule
are:
• criminal proceedings under, or arising out of, clause
506(4), for failure by a person other than a carrier or service provider to
comply with an ACA requirement under clause 506(2) to provide information or
documents or to give evidence to the ACA;
• criminal proceedings
under, or arising out of, clause 509 or 510 for the giving of false or
misleading information or evidence or the provision of false or misleading
documents to the ACA; and
• proceedings under clause 554 for
recovery of a pecuniary penalty in relation to a contravention by a carrier or
service provider of the requirement under clause 505 to provide information or
documents or to give evidence to the ACA
(clause
508(2)).
Clause 509 – Giving false or misleading information or
evidence
It will be an offence for a person, in response to an ACA
notice under clause 505 or 506, intentionally or recklessly to provide
information or documents or to give evidence to the ACA that is false or
misleading. The maximum penalty for committing this offence will be
imprisonment for 12 months (clause 509).
As a result of the operation of
s. 4B of the Crimes Act 1914:
• where an individual is
convicted of an offence under clause 509, the court will be able to impose,
instead of, or in addition to, a penalty of imprisonment, a pecuniary penalty of
up to 60 penalty units; and
• where a body corporate is convicted
of an offence under clause 509, the court will be able to impose a pecuniary
penalty of up to 300 penalty units.
Clause 510 – Provision of
false or misleading documents
It will be an offence for a person, in
response to an ACA notice under clause 505 or 506, knowingly to produce a
document to the ACA that is false or materially misleading. The maximum penalty
for committing this offence will be imprisonment for 12 months (clause
510(1)).
The offence in clause 510(1) will not apply to a person who
produces a document that the person knows is false or materially misleading if
the document is accompanied by a written statement signed by the person or, in
the case of a body corporate, by a competent officer of the body
corporate:
• stating that the document is, to the person’s
knowledge, false or materially misleading; and
• setting out, or
referring to, the material particular in which the document is, to the
person’s knowledge, false or misleading (clause 510(2)).
As a
result of the operation of s. 4B of the Crimes Act
1914:
• where an individual is convicted of an offence under
clause 510, the court will be able to impose, instead of, or in addition to, a
penalty of imprisonment, a pecuniary penalty of up to 60 penalty units;
and
• where a body corporate is convicted of an offence under
clause 510, the court will be able to impose a pecuniary penalty of up to 300
penalty units.
Clause 511 – Copies of documents
The
ACA will be empowered to inspect a document or a copy produced under Division 2
of Part 27 and make and retain copies of, or take and retain extracts from, such
a document (clause 511(1)).
The ACA will also be able to retain
possession of a copy of a document produced to it in accordance with a
requirement under clause 505(2)(c) or 506(2)(c) (clause
511(2)).
Clause 512 – ACA may retain documents
The
ACA will be able to retain possession of a document produced under Division 2 of
Part 27 for as long as is necessary (clause 512(1)).
A person who is
otherwise entitled to possession of the document is entitled to be supplied, as
soon as practicable, with a copy certified by the ACA to be a true copy (clause
512(2)). The certified copy will be required to be received in all courts and
tribunals as evidence as if it were the original (clause 512(3)). Until the
certified copy is supplied, the ACA will be required, at such times and places
as the ACA thinks appropriate, to permit the person otherwise entitled to
possession of the document, or a person authorised by that person, to inspect
and make copies of, or take extracts from, the document (clause
512(4)).
Division 3––Record-keeping rules
Clause 513 – ACA may make record-keeping rules
The
ACA will be empowered to make rules, known as record-keeping rules, requiring
specified carriers and carriage service providers or specified classes of
carriers and carriage service providers, to keep and retain records (clause
513(1)).
The ACA’s record-keeping rules will be able to specify the
manner and form in which the records are to be kept (clause 513(2)).
The
ACA will be required to give a copy of the record-keeping rules to the carrier
or service provider to whom the rules apply (clause 513(3)).
The ACA will
not be permitted to make record-keeping rules requiring the keeping or retention
of records unless the records contain, or will contain, information that is
relevant to the performance by the ACA of a function, or the exercise by the ACA
of a power, conferred on the ACA by or under Part 5 (dealing with the monitoring
of carrier and carriage service provider performance) or Part 7 (dealing with
universal service) (clause 513(4)).
Under clause 505, the ACA will be
able to require a carrier or carriage service provider to produce a document,
including a record kept in accordance with the record-keeping
rules.
Clause 514 – Compliance with record-keeping
rules
A carrier or carriage service provider will be required to
comply with any record-keeping rules that are applicable to the carrier or
provider (clause 514). As a result of the operation of clauses 61 and 97 and
Part 1 of Schedule 1 and 2 of the Bill, failure to comply with such a
requirement will be a breach of a carrier licence condition or service provider
rule and the ACA will be able to take appropriate remedial action under clause
68, 69, 101 or 102 and under Parts 30 and 31 of the Bill.
Clause 515
– Incorrect records
It will be an offence for a person, in
purported compliance with a requirement imposed by the record-keeping rules,
intentionally or recklessly to make a record of any matter or thing in such a
way that it does not correctly record the matter or thing (clause
515(1)).
The maximum penalty for committing this offence, in the case of
an individual, will be 100 penalty units (clause 515(2)). As a result of the
operation of s. 4B of the Crimes Act 1914, where a body corporate is
convicted of an offence under clause 515(1), the court will be able to impose a
fine of up to 500 penalty units.
Part 28—Enforcement
This Part provides for the enforcement of the Act and sets out the powers
of inspectors under the Act in relation to offences against Part 21 of the Act
dealing with technical regulation. The provisions in this Part are based on a
combination of the provisions in Part 5.5 of the Radcom Act and those in
Division 3 of Part 16 of the 1991 Act. Wherever one of those Acts provides a
power or function not provided by the other Act, the function or power is
included in this Part. This will ensure that inspectors have the full range of
powers to address situations where action may need to be taken in relation to
offences against both the new Act and the Radiocommunications Act as amended as
part of the post-97 regulatory arrangements.
Searches relating to
offences against Part 21 of the new Act will be able to be conducted under the
authority of a search warrant, with the consent of the owner or occupier
concerned or in an emergency. Searches to monitor compliance with Part 21 will
be able to be conducted with the consent of the occupier concerned.
An
inspector will be able to require the production of a carrier licence and the
giving of certain information, and the production of certain documents, relevant
to compliance with Part 21.
A court will be able to order forfeiture of
goods used or otherwise involved in the commission of an offence against the
Act.
Division 1—Simplified outline
Clause 516 – Simplified outline
This clause provides
an outline of Part 28 to assist the reader.
Division 2—Inspectors and identity cards
Clause 517 – Inspectors
This clause provides for the
appointment of inspectors by the ACA (clause 517(1)). Such appointments may be
made in relation to the whole Act (subparagraph (1)(a)(i) or (1)(b)(i)); a
particular provision of the Act (subparagraph (1)(a)(ii) or (1)(b)(ii)); a
particular officer (paragraph (1)(a)); or a class of officers (paragraph
(1)(b)). Members, other than special members, of the Australian Federal Police,
or of a Territory police force, are to be inspectors by force of paragraph
(1)(c) without the need for an ACA instrument of appointment.
Clause
517(2) defines terms used in this clause.
Clause 518 – Identity
cards
This clause provides for the ACA to be able to issue identity
cards to appointed inspectors (clause 518(1)).
Should a person cease to
be an inspector, he or she must return the issued identity card to the ACA as
soon as practicable (clause 518(2)). Failure to return the card is an offence
the maximum penalty for which is 5 penalty units (clause 518(3)) (under s. 4AA
of the Crimes Act 1914, a penalty unit is worth $100).
Division 3—Search warrants relating to offences against Part 21
This Division provides for application for, and issue of, search warrants
in relation to offences against Part 21 of the Act.
Clause 519 –
Magistrate may issue warrant
This clause enables a magistrate to
issue a warrant that authorises an inspector (named in the warrant) to enter
land, premises, a vessel, aircraft or vehicle; search those places; break open
and search things; and examine and seize anything that the inspector has
reasonable grounds for suspecting is connected with an offence against Part 21
(clause 519(1)) (see also clauses 526(2)(b), (c) and (d)). The magistrate may
only issue a warrant in response to the laying of an information alleging that
an inspector suspects on reasonable grounds that there may be, in the places
covered by the warrant, anything: relating to an offence committed; that may
afford evidence relating to the commission of an offence; or that was used, or
is intended for use in relation to the commission of an offence (paragraph
(1)(a)). The information must set out the grounds for the information
(paragraph (1)(b)).
Clause 519(2) makes it clear that certain accessory,
attempt and conspiracy offences set out in the Crimes Act 1914 are to be
taken to be included in the meaning of the phrase ‘offence against Part
21’.
Clause 520 – Reasonable grounds for issuing warrant
etc.
This clause prevents a magistrate from issuing a warrant under
clause 519 unless: further information required by the magistrate relating to
the grounds for the warrant application is provided either orally or by
affidavit (paragraph (a)); and the magistrate is satisfied there are reasonable
grounds for issuing the warrant (paragraph (b)).
Clause 521 –
Contents of warrant
This clause sets out certain requirements in
relation to what must be specified in a warrant issued under clause
519.
Clause 522 – Warrants may be issued by telephone
etc.
This clause allows a warrant to be applied for by various
electronic means, including telephone, telex, fax, or other means. The
circumstances in which such an application is made must be urgent in the opinion
of the inspector. Clause 523 requires certain things to done after the issuing
of a warrant in this form.
Clause 523 – Provisions relating to
issue of warrant by telephone etc.
This clause provides that certain
things be done before and after a warrant being applied for in an electronic
form under clause 522.
Before applying for a warrant under clause 522, an
inspector must prepare an information in the form required by clause 519 (clause
523(1)). However, this requirement does not require the information to be sworn
before the application is made to the magistrate for the warrant.
Clause
523(2) allows a magistrate who has received a warrant application in an
electronic form to issue a signed warrant as if the application had been in the
form required under clause 519. The magistrate may only issue the warrant where
he or she is satisfied there are reasonable grounds having considered the
information communicated under clause 522 and any other information the
magistrate has required to be given in relation to the
application.
Clause 523(3) sets out certain requirements that the
magistrate must fulfil and other requirements that the inspector must fulfil,
where the magistrate has signed a warrant under clause 523(2).
Clause
523(4) requires the inspector to send to the magistrate, before the expiry date
on the warrant, the form of the warrant required to be completed by the
inspector under clause 523(3), and the information which must be duly
sworn.
Clause 523(5) requires the magistrate to take certain actions in
relation to the documents referred to in clause 523(4).
Clause 523(6)
makes it clear that if the form of warrant duly completed by the inspector under
clause 523(3) accords with the warrant signed by the magistrate under clause
523(2), then that inspector’s warrant constitutes authority for the
inspector to take the actions authorised by the warrant.
Clause 524
– Proceedings involving warrant issued by telephone etc.
This
clause provides that a court is to assume that any act purportedly done under
the authority of a warrant issued under clause 523, was not so authorised,
unless the warrant signed by the magistrate under that clause is produced in
evidence. This may be proved otherwise by other evidence.
Division 4—Searches and seizures relating to offences against Part 21
This Division provides for the conduct of searches and seizures by
inspectors in relation to offences against Part 21.
Clause 525 –
When is a thing connected with an offence?
This clause is an
interpretative provision that makes it clear when a thing is to be taken to be
connected with an offence.
Clause 526 – Offence-related
searches and seizures
This clause provides for the conduct of
searches and seizures where an inspector suspects on reasonable grounds that
there is something in the place to be searched that is connected with an offence
against Part 21 (clause 526(1)).
Clause 526(2) allows an inspector to
enter places (paragraph (a)), search those places (paragraph (b)), break open
and search things (paragraph (c)), and examine and seize things (paragraph (d)),
where the inspector has the consent of the owner, or is authorised to do so by a
warrant issued under Division 3 of Part 28. Such things may be done with the
permission of the owner or occupier of the place, or in accordance with a
warrant.
Clause 526(3) allows an inspector to stop and detain a vessel,
aircraft, or vehicle that the inspector is permitted to enter under clause
526(2).
Clause 526(4) makes it clear that certain accessory, attempt and
conspiracy offences set out in the Crimes Act 1914 are to be taken to be
included in the meaning of the phrase ‘offence against Part
21’.
Clause 527 – Production of identity card
etc.
This clause requires an inspector (other than a uniformed member
of a police force) to produce his or her inspector identity card, or police
badge (for police not in uniform), before entering places under clause 526
(clause 527(1)). If the card or badge is not produced, the entry is not
authorised.
Where an entry is made under clause 526 in accordance with a
warrant, that entry is not authorised by clause 527(1) unless a copy of the
warrant is also produced for inspection by the owner or occupier (clause
527(2)).
Clause 528 – Evidence of commission of other
offences
This clause allows an inspector to seize a thing found in
the course of a search conducted under a warrant issued under Division 3 of Part
28, even if that thing is not specified in the warrant, if the inspector has
reasonable grounds to believe that the thing is connected with the commission of
an offence against Part 21, whether or not the warrant was issued in relation to
the offence (clause 528(1)). This power to seize the thing may only be
exercised if the inspector has reasonable grounds to believe the seizure is
necessary in order to prevent the thing being concealed, lost, destroyed, or
used in the commission of the offence.
Clause 528(2) makes it clear that
certain accessory, attempt and conspiracy offences set out in the Crimes Act
1914 are to be taken to be included in the meaning of the phrase
‘offence against Part 21’.
Clause 529 – Emergency
entry, search and seizure
This clause allows an inspector to stop and
search persons (clause 529(1)), or enter and search places (clause 529(2)),
where the inspector has reasonable grounds to believe that it is necessary to do
so immediately because of the seriousness and urgency of the circumstances
pertaining to the inspector’s actions. The inspector is also able to
seize things found in the course of such a search. These powers may only be
exercised where the inspector has reasonable grounds to believe that the person
has, or there is in the place, a thing connected with an offence against Part
21.
Clause 529(3) allows an inspector to stop and detain a vessel,
aircraft, or vehicle that the inspector is permitted to enter under clause
529(2).
Clause 529(4) makes it clear that certain accessory, attempt and
conspiracy offences set out in the Crimes Act 1914 are to be taken to be
included in the meaning of the phrase ‘offence against Part
21’.
Clause 530 – Retention of things
seized
This clause allows things seized by an inspector under this
Division to be retained by the ACA for 60 days following the seizure, or at the
end of any proceedings for an offence to which the thing is connected (clause
530(1)).
Clause 530(2) allows the ACA to authorise the release of seized
things to the owner of the thing, or to the person from whom the thing was
seized. Such an authorisation must be in writing. The ACA may impose
conditions on the release of the seized things including requiring the person to
pay a security equal to the value of the thing, in case it is ordered to be
forfeited by a court under clause 535.
Division 5—Searches to monitor compliance with Part 21
This clause allows inspectors to conduct searches in order to monitor
compliance with Part 21.
Clause 531 – Searches to monitor
compliance with Part 21
This clause allows an inspector to enter
premises for the purposes of ascertaining whether Part 21 has been complied with
(clause 531(1)). The inspector may only exercise this power to the extent that
it is reasonably necessary to do so. In conducting the search, the inspector
may do a number of things in relation to the premises and to documents found on
those premises. Such a power may be exercised in relation to certain records
that are required to be kept under Part 21, such as test results, compliance
certificates, statements issued by competent bodies, self-declarations, or
records relating to quality assurance programs.
Clause 531(2) makes it
clear that the power under clause 531(1) may only be exercised in relation to a
residence where the owner or occupier consents.
Clause 531(3) makes it
clear that the power under clause 531(1) may not be exercised in relation to a
residence where the owner or occupier has asked to see the inspector’s
identity card, and the card has not been provided to the owner or
occupier.
Clause 531(4) makes it clear that the power under clause 531(1)
may only be exercised in relation to premises at which activities regulated by
Part 21 are engaged in, or records relating to those activities are
kept.
Division 6—Other powers of inspectors
This Division provides for the general powers of inspectors not provided
for elsewhere in Part 28.
Clause 532 – General powers of
inspectors
This clause allows an inspector to require a person to
produce certain documents relating to such matters as carrier licensing, or
documents relating to the technical regulation regime, where the person is
required to have or keep those documents (clause 532(1)).
The relevant
person is required comply with a request from an inspector under clause 532(1)
(clause 532(2)). The maximum penalty for non-compliance is, in the case of an
individual, 20 penalty units or, in the case of a body corporate, 100 penalty
units (under s. 4AA of the Crimes Act 1914, a penalty unit is worth $100
- see also s. 4B(3) of that Act).
Clause 532(3) defines terms used in
this clause.
Clause 533 – Power to require information
etc.
This clause allows an inspector, who has entered a place under
Division 4 or 5 of Part 28 to require a person an answer questions or produce
documents (clause 533(1)). The inspector may make such a requirement only to
the extent that is reasonably necessary to ascertain whether Part 21 has been
complied with.
Clause 533(2) makes it clear that an inspector may only
exercise the power under clause 533(1) where he or she has produced his or her
inspector identity card, or is wearing his or her uniform in the case of a
member of a police force.
The relevant person is required to comply with
a request from an inspector under clause 533(1) (clause 533(3)). The maximum
penalty for non-compliance is, in the case of an individual, 20 penalty units
or, in the case of a body corporate, 100 penalty units (under s. 4AA of the
Crimes Act 1914, a penalty unit is worth $100 - see also s. 4B(3) of that
Act).
Clause 533(4) makes it clear that an individual who is required to
comply with a requirement made under clause 533(1) is excused from doing so if
to do so might tend to incriminate the individual or expose the individual to a
penalty.
Clause 534 – Retention of documents
This
clause allows an inspector to retain possession of any document seized (under
clause 526 or 531) or produced to the inspector (under clause 533(1)). The
inspector may only retain the document for as long as is reasonably necessary to
ascertain whether Part 21 has been complied with. The inspector is also
required to allow the person access to the document at all reasonable
times.
Division 7—Forfeiture
This Division provides for forfeiture of things seized, and for what may
be done with those things.
Clause 535 – Court may order
forfeiture
This clause allows a court to order the forfeiture to the
Commonwealth of anything involved in the commission of an offence for which a
person has been convicted (clause 535(1)).
Clause 535(2) makes it clear
that certain accessory, attempt and conspiracy offences set out in the Crimes
Act 1914 are to be taken to be included in the meaning of the phrase
‘offence against Part 21’.
Clause 536 – Forfeited
goods may be sold
This clause allows the sale or disposal of things
forfeited under clause 535 in accordance with the directions of the ACA
(paragraph (a)). In the absence of any directions, the thing must be kept in
such custody as the ACA directs (paragraph (b)).
Division 8—Future offences
This Division applies Part 28 to future offences.
Clause 537
– Offences that are going to be committed
This clause allows
Part 28 to apply where there are reasonable grounds for believing that an
offence against the Act is going to be committed, and if committed the offence
would be a threat to the safety of human life, or cause substantial loss or
damage. Such a ‘future offence’ is deemed to be an offence that has
been committed for the purposes of Part 28 (clause 537(1)).
Clause 537(2)
makes it clear that certain accessory, attempt and conspiracy offences set out
in the Crimes Act 1914 are to be taken to be included in the meaning of
the phrase ‘offence against Part 21’.
Part 29—Review of decisions
This Part provides for merits review of decisions taken under this Act.
Provision is made for internal review of such decisions with further review of
the reconsidered decision by the Administrative Appeals
Tribunal.
Clause 538 – Simplified outline
This clause
provides an outline of Part 29 to assist the reader.
Clause 539
– Decisions that may be subject to reconsideration by the
ACA
This clause enables application to be made to the ACA for
reconsideration of decisions (made under this Act) referred to in Part 1 of
Schedule 4.
Clause 540 – Deadlines for reaching certain
decisions
This clause requires the ACA to make a decision on an
application for reconsideration of a decision referred to in clause 539 within
90 days of having received the application (paragraph (2)(a)). If, within that
90 days, the ACA has requested the applicant to provide further information in
relation to the application, the ACA must make its reconsidered decision within
90 days of having received that information (paragraph (2)(b)). These deadlines
do not apply in relation to certain decisions specified in Part 2 of Schedule 4
(clause 540(1)). Those decisions are subject to other specified
deadlines.
If the ACA has not advised the applicant of its reconsidered
decision within the deadlines imposed under clause 540(2), the ACA is taken to
have refused the application for reconsideration (clause
540(3)).
Clause 541 – Statements to accompany notification of
decisions
This clause requires the ACA, when giving written notice of
its initial decision referred to in clause 539, to advise the person concerned
of their rights in relation to applying for reconsideration of the decision, and
if unsuccessful at that stage, their rights to apply to the AAT for a review of
the reconsidered decision (clause 541(1)).
Should the ACA fails to comply
with this notification requirement, the initial decision is not invalidated
because of that failure (clause 541(2)).
Clause 542 –
Application for reconsideration of decisions
This clause allows a
person whose interests are affected by a decision referred to in clause 539 to
apply to the ACA for reconsideration of that decision (clause
542(1)).
Any such application must be in a form approved by the ACA and
must also set out the reasons for requesting the reconsideration (clause
542(2)).
An application for reconsideration must be made within 28 days
of the decision being notified to the applicant, or within any extended period
allowed by the ACA (clause 542(3)).
Clause 542(4) makes it clear that an
approved reconsideration application form may require an applicant to make a
statutory declaration of statements made in the application.
Clause
543 – Reconsideration by the ACA
This clause requires the ACA
to make a decision on an application for reconsideration of a decision referred
to in clause 539 (clause 543(1)). Having reconsidered the decision, the ACA may
affirm, revoke or vary the decision. In considering the decision, the ACA
stands in the shoes of the original ACA decision-maker so that any reconsidered
decision is treated as if it were made under the provision the initial decision
was, or was purported to be, made by the ACA (clause 543(2)).
Clause
543(3) requires the ACA to give the applicant a statement of reasons for its
reconsidered decision. Under s. 25D of the Acts Interpretation Act 1901
a statement of reasons is required to set out the findings on material questions
of fact, the evidence or other material on which those findings were based, and
the reasons for the decision.
Clause 544 – Deadlines for
reconsiderations
This clause requires the ACA to make a
reconsideration decision within 90 days of having received the application made
under clause 542 (clause 544(1)). Should the ACA not notify the applicant of
its reconsidered decision within that deadline, it is taken to have affirmed the
initial decision, that is, to have refused the request for the decision to be
overturned (clause 544(2)). This is expected to encourage the ACA to reconsider
decisions in a timely manner.
Clause 545 – Statements to
accompany notification of decisions on reconsideration
This clause
requires the ACA, when notifying the applicant of its reconsidered decision, to
advise the applicant of its rights under the Administrative Appeals Tribunal
Act 1975 to apply to the AAT for a review of the reconsidered decision, and
for a statement of reasons for the reconsidered decision (clause
545(1)).
Should the ACA fail to comply with this notification
requirement, the reconsidered decision is not invalidated because of that
failure (clause 545(2)).
Clause 546 – Review by the
Administrative Appeals Tribunal
This clause allows for application to
be made to the AAT for review of a reconsidered decision that affirmed or varied
the initial decision. The review would allow the AAT to stand in the shoes of
the initial decision-maker.
Part 30—Injunctions
Part 30 enables the Federal Court to grant injunctions in relation to
contraventions or proposed contraventions of the Act.
Clause 547
– Simplified outline
Clause 547 provides a simplified outline
of Part 30.
Clause 548 – Injunctions
If a person has
engaged, is engaging or is proposing to engage in any conduct in contravention
of the Act, the Minister, the ACA (subject to the limitations outlined below) or
the ACCC will be able to apply to the Federal Court for an injunction to
restrain the person from engaging in the conduct. If, in the Federal
Court’s opinion, it is desirable to do so, the Court will also be able to
require the person to do something (clause (548(1)).
If a person has
refused or failed, or is refusing or failing, or is proposing to refuse or fail,
to do an act or thing and the refusal or failure was, is or would be a
contravention of the Act, the Minister, the ACA (subject to the limitations
outlined below) or the ACCC will be able to apply to the Federal Court for an
injunction requiring the person to do that act or thing (clause
548(2)).
Examples of contraventions of the Act
include:
• using a network unit without a carrier licence or a
nominated carrier declaration (clause 42); and
• failure of a
carrier to comply with the conditions of its carrier licence (clause
67).
The ACA will not be able to apply to the Federal Court for an
injunction in relation to a contravention of:
• the requirements in
Part 1 of Schedules 1 and 2 in so far as they relate to clause 354 for a carrier
or carriage service provider to comply with Rules of Conduct about dealings with
international telecommunications operators;
• a carrier licence
condition set out in Part 3 or 4 of Schedule 1, dealing with access to
supplementary facilities and network information; and
• the carrier
licence condition and the service provider rule set out in proposed ss. 152AZ
and 152BA of the TPA dealing with standard access obligations.
These are
matters administered by the ACCC and accordingly it is more appropriate for the
ACCC to apply to the Court for an injunction in relation to these
matters.
Clause 549 – Interim injunctions
Provision
is also made for the Federal Court to grant interim injunctions before the Court
considers an application for an injunction (clause 549(1)).
The Federal
Court will not be able to require an applicant for an injunction under clause
548, as a condition of granting an interim injunction, to give any undertakings
as to damages (clause 549(2)).
Clause 550 – Discharge etc. of
injunctions
The Federal Court will be able to discharge or vary an
injunction granted under Part 30.
Clause 551 – Certain limits on
granting injunctions not to apply
The power of the Federal Court to
grant an injunction restraining a person from engaging in conduct or requiring a
person to do an act or thing will be able to be exercised whether or
not:
• it appears to the Court that the person intends:
- to
engage again, or continue to engage, in conduct of that kind; or
- to
refuse or fail again, or to continue to refuse or fail, to do that act or
thing;
• the person has previously engaged in conduct of that kind
or has previously refused or failed to do that act or thing;
and
• there is an imminent danger of substantial damage to any
person if the first-mentioned person engages in conduct of that kind or refuses
or fails to do that act or thing (clause 551).
Clause 552 –
Other powers of the court unaffected
The powers conferred on the
Federal Court under Part 30 will not limit any other powers of the Court,
whether conferred by the Act or otherwise.
Part 31—Civil penalties
Part 31 deals with pecuniary penalties that are payable for
contraventions of the civil penalty provisions of the Act. Civil penalty
provisions include clauses 67(1) and (2), dealing with compliance with carrier
licence conditions and clauses 100(1) and (2), dealing with compliance with
service provider rules.
Part 31 is based on ss. 349, 350 and 352 of the
1991 Act.
Clause 553 – Simplified outline
Clause 553
provides a simplified outline of Part 31.
Clause 554 – Pecuniary
penalties for contravention of civil penalty provisions
If the
Federal Court is satisfied that a person has contravened a civil penalty
provision, it will be able to order the person to pay the Commonwealth such
pecuniary penalty as the Court determines to be appropriate (clause
554(1)).
The following are civil penalty provisions (as defined in clause
7):
• clauses 67(1) and (2), dealing with compliance with carrier
licence conditions;
• clauses 100(1) and (2), dealing with
compliance with service provider rules;
• clauses 119(2) and (3),
dealing with compliance with ACA directions about compliance with industry
codes;
• clauses 125(1) and (2), dealing with compliance with
industry standards;
• clauses 212(1) and (2), dealing with
compliance with universal service levy guarantee obligations;
and
• clauses 256(1) and (3), dealing with compliance with an ACA
determination imposing requirements in relation to emergency call
services.
In determining the pecuniary penalty, the Court will be
required to have regard to all relevant matters including:
• the
nature and extent of the contravention;
• the nature and extent of
any loss or damage suffered as a result of the contravention;
• the
circumstances in which the contravention took place; and
• whether
the person has previously been found by the Court in proceedings under the Act
to have engaged in any similar conduct (clause 554(2)).
The maximum
pecuniary penalty payable by a body corporate for each contravention of a
carrier licence condition or a service provider rule will be $10 million. The
maximum pecuniary penalty payable by a body corporate in other cases will be
$250,000 for each contravention (clause 554(3)).
The maximum pecuniary
penalty payable by a person other than a body corporate will be $50,000 for each
contravention (clause 554(4)).
Subject to clause 554(6), if conduct
constitutes a contravention of 2 or more civil penalty provisions, proceedings
will be able to be instituted under the Act against a person in relation to the
contravention of any one or more of those provisions. The person will not,
however, be liable to more than one pecuniary penalty under clause 554 in
respect of the same conduct (clause 554(5)).
If conduct constitutes a
contravention of a carrier licence condition or a service provider rule (clauses
67 and 100), and one or more other civil penalty provisions, proceedings will
not be able to be instituted under the Act against the person in relation to a
contravention of clause 67 or 100, as the case may be (clause
554(6)).
Clause 555 – Civil action for recovery of pecuniary
penalties
The Minister, the ACA (subject to the limitations set out
below) or the ACCC will be able to institute a proceeding in the Federal Court
for the recovery of a pecuniary penalty within 6 years after the contravention
of a civil penalty provision (clauses 555(1) and (2)).
The ACA will not
be able to institute a proceeding for the recovery of a pecuniary penalty in
respect of a contravention of:
• the requirements in Part 1 of
Schedules 1 and 2 in so far as they relate to clause 354 for a carrier or
carriage service provider to comply with Rules of Conduct about dealings with
international telecommunications operators;
• a carrier licence
condition set out in Part 3 or 4 of Schedule 1, dealing with access to
supplementary facilities and network information; and
• the carrier
licence condition and the service provider rule set out in proposed ss. 152AZ
and 152BA of the TPA (to be inserted by the proposed Trade Practices
Amendment (Telecommunications) Act 1996) dealing with standard access
obligations.
These are matters administered by the ACCC and accordingly
it is more appropriate for the ACCC to apply to the Court for the recovery of a
pecuniary penalty in relation to these matters.
Clause 556 –
Criminal proceedings not to be brought for contravention of civil penalty
provisions
Criminal proceedings will not be able to be brought for a
contravention of a civil penalty provision (clause 556).
Part 32––Vicarious liability
Part 32 deals with the proof of matters that involve directors of
corporations, employees and agents in connection with civil and criminal
proceedings under the Act. It may be compared with s. 84 of the
TPA.
Clause 557 – Simplified outline
Clause 557
provides a simplified outline of Part 32.
Clause 558 –
Proceedings under this Act
Clause 558 is an interpretative provision
providing that a reference in Part 32 to a ‘proceeding under this
Act’ includes a reference to:
• an action under the Act;
• a proceeding for an offence against the Act;
and
• a proceeding for an offence created by:
- s. 6 of the
Crimes Act 1914, dealing with persons who are accessories after the
fact;
- s. 7 of the Crimes Act 1914, dealing with attempts to
commit offences against Commonwealth laws;
- s. 7A of the Crimes Act
1914, dealing with inciting or urging the commission of offences against
Commonwealth laws; or
- s. 86(1) of the Crimes Act 1914, dealing
with conspiracy to commit an offence against a law of the
Commonwealth;
that relates to the Act.
Clause 559 –
Liability of corporations
If a corporation has committed an offence
under the Act or has breached a civil penalty provision such as clause 67
(failure to comply with a condition of a carrier licence) and it is necessary in
proceedings to establish the state of mind of the corporation, it will be
sufficient to show that:
• a director, employee or agent of the
corporation, acting within the scope of his or her authority, engaged in that
conduct; and
• the director, employee or agent had that state of
mind (clause 559(1)).
For the purposes of this provision, the state of
mind of a person will include the person’s knowledge, intention, opinion,
belief or purpose and the person’s reasons for the intention, opinion,
belief or purpose (clause 559(3)).
If conduct is engaged in on behalf of
a corporation by a director, employee or agent of the corporation and the
conduct is within the scope of his or her authority, the conduct will be taken,
for the purposes of a proceeding under the Act, to have been engaged in by the
corporation unless the corporation establishes that it took reasonable
precautions and exercised due diligence to avoid the conduct (clause
559(2)).
A reference in clause 559 to a director of a corporation will
include a reference to a constituent member of a body corporate incorporated for
a public purpose by Commonwealth, State or Territory law (clause
559(4)).
A reference in clause 559 to ‘engaging in conduct’
will include a reference to refusing to engage in conduct (clause
559(5)).
Clause 560 – Liability of persons other than
corporations
Clause 560, dealing with the liability of individuals,
partnerships and other non-corporations, will not apply
to:
• proceedings for an offence against proposed s. 42 of the Act,
which prohibits network units being used without a carrier licence or nominated
carrier declaration; or
• proceedings for an offence created
by:
- s. 6 of the Crimes Act 1914, dealing with persons who are
accessories after the fact;
- s. 7 of the Crimes Act 1914,
dealing with attempts to commit offences against Commonwealth laws;
- s.
7A of the Crimes Act 1914, dealing with inciting or urging the commission
of offences against Commonwealth laws; or
- s. 86(1) of the Crimes
Act 1914, dealing with conspiracy to commit an offence against a law of the
Commonwealth;
that relates to the proposed s. 42 of the Act (clause
560(1)).
If, in proceedings under the Act in respect of conduct engaged
in by a person other than a corporation, it is necessary to establish the state
of mind of the person, it will be sufficient to show that the conduct was
engaged in by an employee or agent of the person within the scope of his or her
authority and the employee or agent had that state of mind (clause
560(2)).
If conduct is engaged in on behalf of a person other than a
corporation by an employee or agent of the person and the conduct is within the
scope of his or her authority, the conduct will be taken, for the purposes of a
proceeding under the Act to have been engaged in by the person unless the person
establishes that he or she took reasonable precautions and exercised due
diligence to avoid the conduct (clause 560(3)).
If a person is convicted
of an offence for which the person would not have been convicted if clauses
560(2) and (3) had not been in force, the person will not be liable to be
punished by imprisonment for that offence (clause 560(4)).
For the
purposes of clause 560, the state of mind of a person will include the
person’s knowledge, intention, opinion, belief or purpose and the
person’s reasons for the intention, opinion, belief or purpose (clause
560(5)).
A reference in clause 560 to ‘engaging in conduct’
will include a reference to refusing to engage in conduct (clause
560(6)).
Part 33—False or misleading statements
Part 33 creates an offence in connection with the giving of false or
misleading information to an ACA employee or delegate exercising or performing
functions relating to the regulation of telecommunications
matters.
Clause 561 – Simplified outline
Clause 561
provides a simplified outline of Part 33.
Clause 562 – False or
misleading statements
A person who intentionally or recklessly makes
a false or materially misleading statement, or gives false or materially
misleading information, to an ACA employee or delegate exercising or performing
functions relating to the regulation of telecommunications matters will be
guilty of offence punishable on conviction by a maximum fine, in the case of an
individual, of 100 penalty units or, in the case of a body corporate, 500
penalty units (clause 562(1)) (under s. 4AA of the Crimes Act 1914, a
penalty unit is worth $100 - see also s. 4B(3) of that Act).
This offence
will not apply where the ACA employee or delegate is exercising or performing
the ACA’s information-gathering functions or powers under Part 27. This
is because clauses 509 and 510 provide for offences for the giving of false or
misleading information or evidence or the provision of false or misleading
documents in connection with a notice given under that Part.
Part 34––Special provisions
relating to the ACA’s
telecommunications
functions and powers
Clause 563 – Simplified outline
Clause 563 outlines
Part 34 of the Bill.
Clause 564 – ACA must have regard to
conventions
In performing its telecommunications functions and
exercising its telecommunications powers, the ACA will be required to have
regard to Australia’s obligations under any international convention,
agreement, arrangement or understanding of which the Minister has notified the
ACA in writing (clause 564). This clause re-enacts the requirement on AUSTEL
contained in s. 48(c) of the 1991 Act.
In addition, as a result of s. 10
of the proposed ACA Act, the ACA will be required to perform its functions in a
manner consistent with any Commonwealth Government policies notified by the
Minister and any directions given by the Minister (cf. ss. 48(a) and (b) of the
1991 Act).
Clause 565 – Power to give directions to carriers and
service providers
The ACA will be empowered to give written
directions to a carrier or service provider in connection with the ACA’s
performance of any of its telecommunications functions or the exercise of any of
its telecommunications powers (clause 565(1)). A carrier or a service provider
receiving such directions will be required to comply with them (clause
565(3)).
Clause 565 is not limited by any other provision of a law,
including the Act, that:
(a) confers a function or power on the
ACA;
(b) prescribes the mode in which the ACA is to perform a function or
exercise a power; or
(c) prescribes conditions or restrictions which must
be observed in relation to the performance by the ACA of a function or the
exercise by the ACA of a power.
(clause 565(2)).
Paragraphs
565(2)(b) and (c) are intended to override the following principle set out by
Gavan Duffy CJ and Dixon J in Anthony Hordern & Sons Ltd v Amalgamated
Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at
7:
‘When the Legislature explicitly gives a power by a particular
provision which prescribes the mode in which it shall be exercised and the
conditions and restrictions which must be observed, it excludes the operation of
general expressions in the same instrument which might otherwise have been
relied upon for the same power’.
Part 35—Miscellaneous
Part 35 deals with the following miscellaneous matters.
Provision
is made in relation to continuing offences (see clauses 567 and
568).
Partnerships are to be treated as persons for the purposes of the
Act (clause 569).
Provision is made in relation to the service of
documents (clauses 570, 571 and 572).
Instruments under the Act will be
able to apply, adopt or incorporate the provisions of certain other instruments
(clause 573).
There will be Constitutional protections to avoid
invalidity on the basis of the operation of provisions of the Act in
contravention of paragraph 51(xxxi) of the Constitution (clauses 574 and
575).
The Act will not affect the performance of State or Territory
functions (clause 576).
The Governor-General will be able to make
regulations for the purposes of the Act (clause 577).
Clause 566
– Simplified outline
Clause 566 provides a simplified outline
of Part 35.
Clause 567 – Penalties for certain continuing
offences
If an offence against the Act is a continuing offence
(whether under that Act or because of s. 4K of the Crimes Act 1914), the
maximum penalty for each day that the offence continues is 10% of the maximum
penalty that could be imposed in respect of the principal offence (clause
567).
One example of a continuing offence is the prohibition under clause
42 against a network unit being used without a carrier licence or nominated
carrier declaration (see clause 43).
Clause 568 – Procedure
relating to certain continuing offences
If the prohibition under
clause 42 against a network unit being used without a carrier licence or
nominated carrier declaration has been contravened and the offence continues,
clause 43 creates a separate continuing offence in respect of each day during
which the contravention of clause 42 continues.
Clause 568 allows charges
against the same person for any number of offences against clause 42 to be
joined in the same information, complaint or summons if those charges are
founded on the same facts or if they form, or are part of, a series of offences
of the same or a similar character (clause 568(1)).
If a person is
convicted of 2 or more offences against clause 42, the court will be able to
impose one penalty in respect of both or all of those offences provided the
penalty does not exceed the sum of the maximum penalties that could be imposed
if a separate penalty were imposed in respect of each offence (clause
568(2)).
Clause 569 – Treatment of
partnerships
Clause 569 is relevant to carriers or carriage service
providers that are partnerships. It provides that the Act applies to a
partnership as if the partnership were a person, with the following
changes:
• obligations that would be imposed on the partnership are
imposed instead on each partner, but may be discharged by any of the
partners;
• any offence against the Act that would otherwise by
committed by the partnership is taken to have been committed by each partner
who:
- aided or abetted, counselled or procured the relevant act or
omission; or
- was in any way knowingly concerned in, or party to, the
relevant act or omission (whether directly or indirectly and whether by any act
or omission of the partner).
Clause 570 – Giving of documents to
partnerships
The effect of clause 570 is that, for the purposes of
the Act, if a document is delivered personally to the partner of a partnership
or is left, or posted to, the partner’s last known residential or business
address, the document is taken to have been given to the
partnership.
Clause 571 – Nomination of address for service of
documents
Clause 571 provides that for the purposes of the Act a
person may nominate an address in Australia for service in an application made
by the person under the Act or any other document given by the person to the
ACCC or the ACA. If this is done, a document may be given to the person for the
purposes of the Act by leaving it at, or by posting it to, the nominated address
for service. The document may also be delivered to the person personally or
left at, or posted to, the person’s last known residential or business
address.
Clause 572 – Service of summons or process on foreign
corporations – criminal proceedings
Clause 572 provides that a
summons or process in any criminal proceedings under the Act against a foreign
corporation may be effected by serving it on the Australian agent of the
corporation if the corporation does not have a registered office or a principal
office in Australia but does have an agent in Australia. In other cases, the
summons or process will be able to be served by leaving it at, or by posting it
to, the corporation’s head office, registered office or principal
office.
Clause 573 – Instruments under this Act may provide for
matters by reference to other instruments
Clause 573 is based on s.
407 of the 1991 Act.
Notwithstanding anything in the Acts
Interpretation Act 1901 (see in particular s. 49A of that Act) or in the
proposed Legislative Instruments Act 1996, regulations or any other
instrument made under the Act will be able to make provision in relation to a
matter by applying, adopting, or incorporating (with or without modifications)
provisions of any Commonwealth Act or of any regulations or rules under a
Commonwealth Act as in force at a particular time or as in force from time to
time (clauses 573(1), (5) and (6)).
In addition, notwithstanding anything
in the Acts Interpretation Act or in the proposed Legislative Instruments Act,
regulations or any other instrument made under the Act will be able to make
provision in relation to a matter by applying, adopting or incorporating (with
or without modifications) matter contained in any other instrument or writing
whatever as in force or existing at a particular time or from time to time even
if the other instrument or writing does not yet exist when the instrument under
the Act is made (clauses 573(2), (5) and (6)). This power is essential for the
ACA’s delegated legislation making, including the making of
standards.
The reference in clause 573(2) to ‘writing’ will
include any mode of representing or reproducing words, figures, drawings or
symbols in a visible form (see s. 25 of the Acts Interpretation Act
1901).
A reference in clause 573(2) to any other instrument or
writing is defined widely to include a reference to an instrument or writing
made by any person or body in Australia or elsewhere (including, for example,
the Commonwealth, a State or Territory or one of its officers or authorities or
an overseas entity) whatever its nature and whether or not it has legal force or
effect. Examples will include:
• regulations or rules under a
Commonwealth Act;
• a State Act, a Territory law or regulations or
any other instrument made under such an Act or law;
• an
international technical standard or performance indicator; or
• a
written agreement such as a contract or an arrangement or an instrument or
writing made unilaterally (clause 573(3)).
Nothing in clause 573 limits
the generality of anything else in it (clause 573(4)).
Clause 574
– Arbitration – acquisition of property
Clause 574
provides that any provision of the Act that authorises the conduct of
arbitration by the ACCC or another person (see, for example, clauses 299, 308,
320 and 336) will have no effect to the extent (if any) to which it purports to
authorise the acquisition of property otherwise than on just terms in
contravention of paragraph 51(xxxi) of the Constitution.
Clause 575
– Compensation – constitutional safety net
If, apart from
clause 575, the operation of the Act would result in the acquisition of property
from a person otherwise than on just terms in contravention of paragraph
51(xxxi) of the Constitution, the Commonwealth will be liable to pay reasonable
compensation to the person in respect of the acquisition (clauses 575(1) and
(3)).
If the Commonwealth and the person cannot agree on the amount of
the compensation, the person will be able to institute proceedings in the
Federal Court for the recovery from the Commonwealth of such reasonable amount
of compensation as the Court determines (clause 575(2)).
Clause 576
– Act not to affect performance of State or Territory
functions
Clause 576 provides that a power conferred by the Act must
not be exercised in such a way as to prevent the exercise of the powers, or the
performance of the functions, of government of a State, the Northern Territory,
the Australian Capital Territory or Norfolk Island.
Clause 577 –
Regulations
Clause 577 contains the standard regulation making
power.
The Governor-General will be empowered to make regulations
prescribing matters required or permitted by the Act to be prescribed or
necessary or convenient to be prescribed for carrying out or giving effect to
the Act (clause 577(1)).
The regulations will be able to prescribe
penalties of up to 10 penalty units for offences against the regulations (clause
577(2)).