Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
1996
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
TELECOMMUNICATIONS
BILL 1996
EXPLANATORY MEMORANDUM
VOLUME
3
(Circulated by
authority of Senator the Hon. Richard Alston, Minister for Communications and
the Arts)
NOTES ON CLAUSES -
CONTINUED
Schedule 1––Standard
carrier licence conditions
Part 1––Compliance with this Act
Clause 1 – Compliance with this Act
This clause
requires carriers to comply with the Act. This obligation provides a mechanism
for the enforcement under Parts 30 and 31 of obligations placed on carriers
throughout the Act.
Part 2––Industry development plans
This Part sets out a carrier licence condition that implements the object
in clause 3(2)(e) that relates to promoting:
• the development of
the technical capabilities and skills of the Australian telecommunications
industry;
• the development of the value-adding and export-oriented
activities of the Australian telecommunications industry;
and
• research and development that contributes to the growth of
the Australian telecommunications industry.
The Part implements this
object by requiring carriers to have industry development plans and to report
annually on their progress in implementing the plans.
Clause 2 –
Simplified outline
This clause provides an outline of the Part to
assist readers.
Clause 3 – Definitions
This clause
sets out the definitions of terms which are used in this Part.
Clause
4 – Carriers must have a current industry development plan
This
clause establishes the obligation on a carrier to have a current industry
development plan and to give its plan to the Industry Minister within 90 days of
being granted a carrier licence.
Clause 6 requires industry development
plans to specify the period to which the plan applies. Clause 4(2) provides for
further plans after an industry development plan’s period has concluded.
It requires that where a plan relates to a particular period, a carrier must
give the Industry Minister its plan within 90 days of the commencement of the
period or such longer period as allowed by the Minister. The effect is that
where a carrier has a plan for a period and that period has concluded, the
carrier must give a new plan to the Minister within the required time
limits.
Clause 5 – Exemptions from industry development plan
requirements
Under this clause the Industry Minister may by written
instrument declare that a specified kind of carrier is not subject to this Part.
This provides the flexibility to exclude a kind of carrier where the requirement
to have a plan is an unnecessary regulatory requirement given the level of
benefits for Australia that are likely to arise from those carriers’
industry plans. For example, such an instrument might exclude small carriers
below a threshold of annual or total expenditure and which have little current
or planned investment in infrastructure.
A declaration under this clause
is a disallowable instrument which must be published in the Gazette,
tabled in Parliament and is subject to Parliamentary
disallowance.
Clause 6 – Contents of industry development
plan
Clause 6(1) defines an industry development plan as a plan for
the development in Australia, in connection with the carrier’s business as
a carrier, of industries involved in the manufacture, development or supply of
facilities; and related research and development. Facility is defined to
include any system (whether software-based or otherwise) used in connection with
the supply of a carriage or content service. This definition ensures that a
plan can deal with the development of industries involved in the development or
supply of software and other systems.
Clause 6(2) requires that an
industry development plan contain relevant particulars about the carrier’s
strategic commercial relationships; research and development activities;
involvement with industry; and export facilitation plans.
A plan must
specify the period (at least 12 months) to which it relates.
Clause 7
– Current industry development plan
An industry development
plan is considered current at a particular time, if that time is included in the
period to which the plan relates.
Clause 8 – Publication of
industry development plan
A carrier must make a summary of any plan
it gives to the Industry Minister available to the public. The summary need not
contain commercially sensitive information.
Clause 9 – Variation
of industry development plan
As soon as practicable after varying an
industry development plan, a carrier must give a copy of the variation to the
Industry Minister and make a summary of the variation available to the public.
The summary need not contain commercially sensitive
information.
Clause 10 – Formulation of plan or variation
– expression of views of the Commonwealth Government about industry
development
A carrier must have regard to any views expressed by the
Industry Minister about industry development when formulating or varying an
industry plan.
Clause 11 – Notification of matters that may
affect the achievement of an industry development plan
This clause
requires a carrier to advise the Industry Minister about matters which may
affect the achievement of its current industry plan, for example, changes in
market conditions or business plans. It must set out the matters and explain
their effect on the plan.
Clause 12 – Annual report on
implementation of industry development plan
Within 90 days of the end
of a financial year a carrier with a current industry development plan must give
the Industry Minister a report setting out progress on the plan during the year
and make a summary of the report available to the public. The summary need not
contain commercially sensitive information.
Part 3––Access to supplementary facilities
This Part establishes obligations on carriers to provide access to other
carriers to certain facilities. It closely reflects existing obligations placed
on:
• general carriers by clause 6 of the Telecommunications
(General Telecommunications Licence) Declaration (No 1) of 1991;
and
• mobile carriers by clause 6 of the Telecommunications (Public
Mobile Licences) Declaration (No 1) of 1991.
Clause 13 –
Simplified outline
This clause provides a simplified outline of the
Part to assist readers.
Clause 14 – Access to supplementary
facilities
This clause requires carriers, on the request of another
carrier, to provide access to facilities they own or operate. That obligation,
however, applies only where:
• the access is provided for the sole
purpose of enabling the second carrier to provide competitive facilities or
services and/or to establish its own facilities;
• the request is
reasonable (having regard to whether it would promote the long term interests of
end-users of carriage services and services supplied by means of carriage
services as detailed in proposed s. 152AB, Part XIC of the TPA to be inserted by
the proposed Trade Practices Amendment (Telecommunications) Act 1996);
and
• in the case of facilities that are not customer cabling or
customer equipment - the facilities were installed before 30 June 1991 or were
obtained after that date, but were not obtained solely by means of commercial
negotiation.
Reference to the installation of facilities before 30 June
1991 and facilities which were obtained after that date, but were not obtained
solely by means of commercial negotiation is intended to focus the obligation to
require access to facilities where they have been installed or obtained as a
direct or indirect result of legislated rights of access (such as land access
powers or immunities from relevant planning laws), rather than on a commercial
basis. There is no intention that consideration be given solely to legislated
rights established under telecommunications law (for example, facilities
acquired by a State utility which is also a carrier in accordance with land
access powers given to that utility under State legislation).
Clause
15 – Terms and conditions of access
The terms and conditions on
which a carrier complies with an access obligation under clause 14 are to be
agreed between the carrier and requesting carrier, or where agreement cannot be
reached, determined by an arbitrator appointed by the parties. In circumstances
where the parties fail to agree on an arbitrator, the ACCC is to be the
arbitrator.
If the ACCC is obliged to arbitrate a matter under this
clause, it is expected that the ACCC will have regard to the same
considerations, to the extent that they are applicable, as is required by an
arbitration undertaken under proposed Division 8 of Part XIC of the TPA to be
inserted by the proposed Trade Practices Amendment (Telecommunications) Act
1996. The regulations may make provision for the conduct of an arbitration
under this clause.
A determination made under this clause must not be
inconsistent with a Ministerial pricing determination (if any) made under clause
16.
Clause 16 – Ministerial pricing
determination
This clause enables the Minister to make a written
determination setting out principles dealing with price-related terms and
conditions on which the access obligation in clause 14 is complied
with.
Any such determination is a disallowable instrument for the
purposes of s. 46A of the Acts Interpretation Act 1901.
Part 4—Access to network information
These provisions are intended to provide carriers, as infrastructure
providers, with access to information, including traffic carriage information,
necessary to ensure efficient interworking between networks. This Part closely
reflects existing obligations placed on:
• general carriers by
clause 5 of the Telecommunications (General Telecommunications Licences)
Declaration (No. 1) of 1991; and
• mobile carriers by clause 5 of
the Telecommunications (Public Mobile Licences) Declaration (No 1) of
1991.
In this Part, whether a request for information is
‘reasonable’ is intended to be considered on a case-by-case basis,
having regard to the legitimate commercial interests of both the requesting
party and the party which would be under an obligation to supply the
information. The obligations in this Part are only imposed where the requesting
carrier is supplied with carriage services by the carrier to whom the request
was made.
Clause 17 – Simplified outline
This clause
provides a simplified outline of the Part to assist readers.
Clause 18
– Access to network information
This clause establishes the
primary obligations concerning the supply of network information between
carriers. It places an obligation on carriers to provide other carriers with
reasonable access to information from their operation support systems and
traffic flow information where the requesting carrier will use that information
for the sole purpose of undertaking planning, maintenance or reconfiguration of
the requesting carrier’s network.
Where a request is made for
information under this clause, the carrier to whom the request has been made
must make the information available as soon as practicable after the request has
been made.
‘Operations support systems’ is intended to mean
systems that provide information relevant to the management of interconnection
to, or use of, a network of a carrier and a network of another carrier,
including, but not limited to fault and status reporting, and monitoring and
testing of network reconfiguration systems.
‘Traffic flow
information’ is intended to mean information:
• in sufficient
detail to enable a requesting carrier to derive the statistics required to
ascertain and quantify:
- the volume of telecommunications traffic
carried along routes within a network of a licensee; or
- the proportion
of this traffic which is accredited to the requesting carrier;
or
• of a type defined in the relevant International
Telecommunications Union recommendations required for network planning,
operation or real-time management.
Clause 18(5) makes it clear that the
obligations imposed on carriers in clauses 19, 20, 21, 22 and 26 of this Part do
not, by implication, limit the obligation established under this
clause.
Clause 19 – Access to information in
databases
This clause requires a carrier to give a requesting carrier
reasonable access to information contained in the carrier’s database
relating to the manner in which the carrier’s network treats calls of a
particular kind (such as calls to toll-free numbers or emergency numbers),
including routing information. This information may be required by a requesting
carrier, for example, to align treatment of such calls on their own network with
the treatment of those calls on other networks.
Clause 19(3) provides
that an obligation under this clause is only established where the request is
made for the sole purpose of enabling the requesting carrier to undertake
planning, maintenance or reconfiguration of their own network. Clause 19(4)
provides that where a request is made for information under this clause, the
carrier to whom the request has been made must make the information available as
soon as practicable after the request has been made.
To safeguard
privacy, security and commercial interests, this clause obliges the provision of
access to information contained on a carrier’s databases, not access to
the databases themselves.
Clause 20 – Access to network planning
information
This clause obliges a carrier to provide, where a
reasonable request has been made, another carrier with timely and detailed
network planning information sufficient to enable the requesting carrier to
undertake its own network planning.
A non-exhaustive list of the types of
information which may be requested is provided in clause 20(3).
Clause
20(5) provides that where a request is made for information under this clause,
the carrier to whom the request has been made must make the information
available as soon as practicable after the request has been
made.
Clause 21 – Access to information about likely changes to
network facilities - completion success rate of calls
This clause
obliges a carrier, where requested to do so by another carrier, to supply timely
and detailed information relating to likely changes to facilities on the
carrier’s network which will affect the completion success rate of calls
offered by the requesting carrier.
Clause 21(2) provides that an
obligation under this clause is only established where the request is made for
the sole purpose of enabling the requesting carrier to undertake forward
planning for its own network.
Clause 21(4) provides that where a request
is made for information under this clause, the carrier to whom the request has
been made must make the information available as soon as practicable after the
request has been made.
Clause 22 – Access to quality of service
information etc.
This clause obliges a carrier to comply with
reasonable requests of other carriers to supply detailed and timely information
relating to network problems (eg. congestion). The types of information which
may be requested are listed in clause 22(2) and may be supplemented by
regulations.
Clause 22(4) provides that were a request is made for
information under this clause, the carrier to whom the request has been made
must make the information available as soon as practicable after the request has
been made.
Clause 23 – Security procedures
This
clause provides that the obligations in clauses 18 to 22 do not take effect
unless the requesting carrier has procedures in place designed to protect the
confidentiality of information and which have either been agreed between the
requesting and supplying carrier or, failing agreement, determined by the
ACCC.
Clause 24 – Terms and conditions of
compliance
This clause provides that the terms and conditions on
which the obligations described in clauses 18 to 22 are complied with are to be
agreed by the requesting carrier and the carrier supplying the information or,
failing agreement, as determined by an arbitrator appointed by the parties.
Where the parties fail to agree on the appointment of an arbitrator, the ACCC is
to be the arbitrator.
If the ACCC is obliged to arbitrate a matter under
this clause, it is expected that the ACCC will have regard to the same
considerations, to the extent that they are applicable, as is required by an
arbitration undertaken under proposed Division 8 of Part XIC of the TPA to be
inserted by the proposed Trade Practices Amendment (Telecommunications) Act
1996.
A determination made under this clause must not be inconsistent
with a Ministerial pricing determination (if any) made under clause
25.
Clause 25 – Ministerial pricing
determination
This clause enables the Minister to make a written
determination setting out principles dealing with price-related terms and
conditions on which the access obligation in clause 24 is complied
with.
Any such determination is a disallowable instrument for the
purposes of s. 46A of the Acts Interpretation Act 1901.
Clause
26 – Consultation about reconfiguration etc.
This clause
provides that, if requested by another carrier, the carrier must consult with
the requesting carrier about proposed modifications to, or reconfigurations of,
the carrier’s network where those modifications or reconfigurations have a
bearing on the requesting carrier’s own network planning, maintenance or
reconfiguration activities.
Clause 26(4) provides that the terms and
conditions on which the obligations described in this clause are complied with
are to be agreed by the requesting carrier and the carrier supplying the
information or, failing agreement, as determined by an arbitrator appointed by
the parties. Where the parties fail to agree on the appointment of an
arbitrator, the ACCC is to be the arbitrator.
If the ACCC is obliged to
arbitrate a matter under this clause, it is expected that the ACCC will have
regard to the same considerations, to the extent that they are applicable, as is
required by an arbitration undertaken under proposed Division 8 of Part XIC of
the TPA to be inserted by the proposed Trade Practices Amendment
(Telecommunications) Act 1996.
Part 5—Access to telecommunications
transmission towers and to underground facilities
This Part establishes obligations on carriers to provide other carriers with
access to:
• facilities and sites used for the supply of a carriage
service by means of radiocommunications; and
• underground
facilities used for, or designed to hold, lines;
with the aim of ensuring
as far as possible that these facilities are co-located. A carrier will have
rights of access to another carrier’s site in order to maintain its
facilities installed on that site by reason of the carrier powers provided in
Part 1 of Schedule 3.
Clause 27 – Simplified
outline
This clause provides a simplified outline of Part 5 of
Schedule 1 to assist readers.
Clause 28 –
Definitions
This clause provides definitions of terms used in this
Part.
An ‘eligible underground facility’ is an underground
facility that is used, installed ready to be used, or intended to be used, to
hold lines.
A ‘site’ is defined to mean land or a building or
structure on land.
A ‘telecommunications transmission tower’
is defined to mean any tower, pole, mast or similar structure that is used to
supply a carriage service by means of radiocommunications.
Clause 29
– Access to telecommunications transmission towers
This clause
requires a carrier, on the request of another carrier, to provide access to a
telecommunications transmission tower the carrier owns or operates
where:
• the access is provided for the sole purpose of enabling
the second carrier to install a facility for supply of a carriage service by
means of radiocommunications;
• the requesting carrier gives
reasonable notice that it requires access; and
• the ACA has not
certified that the proposed access is not technically feasible.
Clause
30 – Access to sites of telecommunications transmission
towers
This clause requires a carrier, on the request of another
carrier, to provide access to a site where a telecommunications transmission
tower is located where:
• the access is provided for the sole
purpose of enabling the second carrier to install a facility for supply of a
carriage service by means of radiocommunications;
• the requesting
carrier gives reasonable notice that it requires access; and
• the
ACA has not certified that the proposed access is not technically
feasible.
Clause 31 – Access to eligible underground
facilities.
This clause requires a carrier, on the request of another
carrier, to provide access to an eligible underground facility that the carrier
owns or operates where:
• the access is provided for the sole purpose of enabling the second carrier to install a line for supply of a carriage service;
• the requesting carrier gives reasonable notice that it requires
access; and
• the ACA has not certified that the proposed access is not
technically feasible.
Clause 32 – Terms and conditions of
access
The terms and conditions on which a carrier complies with an
access obligation under clause 29, clause 30 or clause 31 are to be as agreed
between a carrier and a requesting carrier, or, where agreement cannot be
reached, determined by an arbitrator appointed by the parties. Where the parties
cannot agree on an arbitrator, the ACCC is to be the arbitrator.
The
clause further provides that regulations may be made for the conduct of an
arbitration under this clause. These include regulations that may deal with the
constitution of the ACCC for the purposes of such an arbitration.
If the
ACCC is obliged to arbitrate a matter under this clause, it is expected that the
ACCC will have regard to the same considerations, to the extent that they are
applicable, as is required by an arbitration undertaken under proposed Division
8 of Part XIC of the TPA to be inserted by the proposed Trade Practices
Amendment (Telecommunications) Act 1996.
Clause 33 – Code
relating to access
This clause provides for a Code to be made by the
ACCC setting out conditions that carriers must comply with in relation to the
provision of access under Part 5 of Schedule 1.
A Code is a disallowable
instrument which must be notified in the Gazette, tabled in the
Parliament and is subject to Parliamentary disallowance.
The clause makes
it clear that the provision made by this clause for a Code of Practice governing
the conduct of carriers in carrying out these relevant activities is not
intended by implication to limit the matters that may be dealt with by the
industry codes and the industry standards that are provided for in Part 6 of the
Bill.
Clause 34 – Industry co-operation about sharing of sites
and eligible underground facilities
This clause requires carriers, in
planning the provision of future carriage services, to co-operate to share
transmission tower sites and eligible underground facilities.
Clause
35 – This Part does not limit Part 3 of this Schedule
This
clause provides that Part 5 (which deals with access to telecommunications
towers, related sites and eligible underground facilities) does not by
implication limit the scope of Part 3 of Schedule 1 (which gives a carrier
rights in some circumstances to access to any type of facility owned or operated
by another carrier).
Part 6—Inspection of facilities
etc.
These obligations relating to record-keeping and inspection of facilities are
based on the current obligations on carriers under the Telecommunications
National Code.
Clause 36 – Simplified outline
This
clause provides a simplified outline to Part 6 of Schedule 1 to assist
readers.
Clause 37 – Records relating to underground
facilities
This clause requires a carrier who owns or operates
underground facilities to keep and maintain accurate records of the kind and
location of those facilities and, where the facility is an eligible underground
facility, its capacity to hold further lines.
(Clause 46 of Schedule 3
provides that the ACA may inform members of the public about the kinds and
location of underground facilities. In performing this function, the ACA
usually would rely upon the records kept by carriers.)
Clause 38
– Regular inspection of facilities
This clause requires a
carrier to inspect facilities owned or operated by it at regular intervals
determined having regard to good engineering practice.
Clause
39–Prompt investigation of dangerous facilities
This clause
requires a carrier to investigate promptly the condition of a facility owned or
operated by it where the carrier has reasonable grounds to suspect that the
condition of the facility is likely to endanger health or safety of persons or
property.
Clause 40 – Remedial action
This clause
requires a carrier to take any remedial action reasonably required as soon as
practicable after it becomes aware of the need to do so following an inspection
under clause 38 or an investigation under clause 39.
Schedule 2—Standard service provider rules
Part 1–Compliance with this
Act
Clause 1 – Compliance with this Act
Clause 1 requires
all service providers to comply with the Act. This obligation provides a
mechanism for the enforcement under Parts 30 and 31 of obligations imposed on
service providers by provisions throughout the Act.
Part 2–Operator
services
This Part is intended to ensure that all end-users of a standard
telephone service have access to operator services. A licence condition will be
imposed on Telstra which will require it to provide an operator service. Should
other carriage service providers not wish to establish their own service, they
will be able to make arrangements with Telstra for their end-users to have
access to Telstra’s service.
Clause 2 – Simplified
outline
Clause 2 provides a simplified outline of this Part to assist
readers.
Clause 3 – Scope of Part
This clause defines
operator services for the purposes of this Part as services for dealing with
faults and service difficulties, and services of a kind specified in the
regulations. The regulation making power will enable other kinds of operator
services to be specified, should it become appropriate to do
so.
Clause 4 – Operator services must be provided to end-users
of a standard telephone service
Clause 4 requires a carriage service
provider who supplies a standard telephone service to make operator services
available to each end-user of the standard telephone service, either by
providing the services itself or by arranging for a third person to provide the
services.
Clause 5 – Access to end-users of other carriage
service providers
Clause 5 applies where a carriage service provider
who does not provide operator services requests access to the operator services
provided by another carriage service provider (such as Telstra). That carriage
service provider is required to provide access in accordance with the request
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 3—Directory assistance services
This Part is intended to ensure that all end-users of a standard
telephone service have access to directory assistance services. A licence
condition will be imposed on Telstra which will require it to provide a
directory assistance service. Should other carriage service providers not wish
to establish their own service they will be able to make arrangements with
Telstra for their end-users to have access to Telstra’s
service.
Clause 6 – Simplified outline
Clause 6
provides a simplified outline of this Part to assist readers.
Clause 7
– Directory assistance services must be provided to end-users
A
carriage service provider who supplies a standard telephone service is required
to make directory assistance services available to each end-user of the service,
either by providing the services itself or by arranging for a third person to
provide the services.
Clause 8 – Access by end-users of other
carriage service providers
Clause 8 applies where a carriage service
provider who supplies a standard telephone service but does not provide
directory assistance services requests access to the directory assistance
services provided by another carriage service provider. That carriage service
provider is required to provide access in accordance with the request 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 4—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 clause 456 of the Bill 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 Part requires all carriage service providers to assist Telstra or
the other body in its discharge of its obligation. The database will be an
industry-wide database containing the details of all customers. All carriage
service providers will have access to the database for the purpose of providing
operator and directory assistance services. Emergency service organisations and
law enforcement agencies will also have access to the database, for emergency
and law enforcement purposes.
Clause 9 – Simplified
outline
Clause 9 provides a simplified outline of this Part to assist
readers.
Clause 10 – Carriage service providers must give
information to Telstra
Clause 10 applies if there is a carrier
licence condition on Telstra to provide and maintain an integrated public number
database. In that case, this clause requires carriage service providers who
supply carriage services to end-users with a public number to give any
information reasonably required by Telstra for the provision and maintenance of
the integrated public number database.
‘Public number’ is
defined to mean a number specified in the numbering plan as mentioned in clause
439(3), which requires the numbering plan to specify numbers for use in
connection with the supply of carriage services to the public in
Australia.
Clause 11 – Carriage service providers must give
information to another person or association
Clause 11 applies
if a person or association other than Telstra is obliged to provide and maintain
an integrated public number database under clause 456. In that case, this
clause requires carriage service providers who supply carriage services to
end-users with a public number to give any information reasonably required by
the person or association for the provision and maintenance of the integrated
public number database.
Part 5—Itemised billing
This Part is intended to ensure that all customers of a standard
telephone service have the right to receive itemised billing for each call that
is not an untimed local call.
Clause 12 – Simplified
outline
Clause 12 provides a simplified outline of this Part to
assist readers.
Clause 13 – Itemised billing
Clause
13 imposes a general requirement for a carriage service provider to provide
itemised billing for each of its customers supplied with a standard telephone
service for calls made using that service.
This requirement does not
apply where the customer chooses not to have itemised billing for a particular
service. The requirement does not apply to untimed local calls, which are
defined under Part 8.
The requirement does not apply to designated local
calls except at the customer’s request. A ‘designated local
call’ is a call that is made using a standard telephone service and is
made between points in an applicable zone in relation to the carriage service
provider and the customer. ‘Applicable zone’ is defined under Part
8 and is, in effect, the local call zone that the carriage service provider
provides to the customer. A designated local call does not include an exempt
call, which is defined as a call which involves the use of a public mobile
telecommunications service or a satellite service. The effect of these
exemptions is that carriage service providers are required to provide itemised
billing for calls made using a standard telephone service which involves the use
of a public mobile telecommunications service or a satellite service, unless the
customer chooses otherwise.
Itemised billing means provision of a bill
that contains the date, duration and charge for each call and the number to
which the call was made, or if the ACA has made a written determination in
relation to itemised billing for the kind of service concerned, the details
specified in that determination. Such a determination is a disallowable
instrument which must be published in the Gazette, tabled in Parliament
and is subject to Parliamentary disallowance.
Clause 14 –
Exemptions from itemised billing requirements
Clause 14 allows the
ACA to exempt a specified carriage service provider from the requirement to
provide itemised billing in relation to specified customers. This is intended
to provide an exemption for carriage service providers that do not have the
technical capability to provide itemised billing to certain customers. However,
in making an exemption the ACA must have regard to the carriage service
provider’s plans to install a capability to provide itemised billing to
those customers. It is intended that the ACA would only allow an exemption
granted under this clause to continue for the period required to install the
itemised billing capability. The ACA has the power to revoke the declaration
under s. 33(3) of the Acts Interpretation Act 1901.
Clause 15
– Details that are not to be specified in an itemised bill
The
ACA may by written instrument determine that specified details must not be shown
in an itemised bill provided by a carriage service provider to a customer,
having regard to the Information Privacy Principles set out in the Privacy
Act 1988. This provision is intended to allow the ACA to ensure that
itemised bills do not contain information which would unnecessarily transgress
the privacy of either the customer or the parties whom the customer has
called.
Schedule 3—Carriers’ powers
and immunities
The provisions made in Schedule 3 to the Bill are intended to replace the
regime of carriers’ powers and immunities provided for in Part 7 of the
1991 Act.
The general land access powers given to carriers by Division
3 of Part 7 of the 1991 Act and the immunity from State law provided by the
Telecommunications (Exempt Activities) Regulations made under s.116 of that Act
will not continue, except for transitional provisions specified at Part 2 of
Schedule 3 to the Bill for works already notified in accordance with the 1991
Act.
Instead, Part 1 of Schedule 3 to the Bill provides authority for
carriers to inspect land, maintain facilities, connect subscribers to an
existing network or install any declared ‘low impact facilities’ or
temporary defence facilities. Other installation of facilities will be
regulated under State or Territory law (and also will be subject to some special
requirements for environmentally sensitive projects provided for at clause 50).
There is provision for a carrier to apply to a specially-constituted panel of
the ACA for a permit to carry out installation of facilities where the carrier
does not obtain the approval of the relevant State, Territory or local
government body or the owner of the land. A permit for a designated overhead
line will not be granted unless the approval of any relevant State, Territory
and local government body has been obtained.
Carrying out activities
authorised by the Act will be subject to a range of conditions including current
conditions under Division 3 of Part 7 of the 1991 Act and the Telecommunications
National Code made under s.117 of the 1991 Act indicated
below.
Obligations imposed on carriers by Schedule 3 will have effect as
licence conditions (see Schedule 1, clause 1) and may be enforced as
such.
Part 1—General
provisions
Division 1—Simplified
outline and definitions
Clause 1 – Simplified outline
This clause provides an
outline of Part 1 of Schedule 3 to assist the reader. It describes in general
terms the activities which may be authorised under this Part.
Clause 2
– Definitions
This clause sets out the definitions of terms
which are used in Part 1 of Schedule 3.
The definitions of ‘Aboriginal
person’ and ‘Torres Strait Islander’ are those used in the
Aboriginal and Torres Strait Islander Commission Act
1989.
Clause 3 – Designated overhead line
This
clause sets out the definition of a ‘designated overhead line’. It
is defined as a line suspended above the surface of land or water that has
external dimensions (ie including any insulation, etc) exceeding the specified
thickness of 13 mm or such other distance as may be specified in
regulations.
Division 2—Inspection of
land
Clause 4 – Inspection of land
This clause authorises a
carrier to enter onto and inspect land and anything that is necessary or
desirable for the purposes of determining whether it is suitable for its
purposes.
Clause 4 is derived from the power conferred on a carrier by
s.128(1) of the 1991 Act. However, carrying out the authorised activity is
subject to all the relevant conditions set out in Division 5 of Part 1 of
Schedule 3 to the Bill.
Division 3—Installation of
facilities
Clause 5 – Installation of facilities
This clause
authorises a carrier to install facilities and carry out ancillary or incidental
activities in similar terms to the power given to carriers under s.129(1) and
s.129(2) of the 1991 Act (see the definition of ‘installation’ at
clause 2). However the authorised activity is subject to all the relevant
conditions in Division 5 of Part 1 of Schedule 3 to the Bill. Moreover, a
carrier is only given authority by the Bill to install a facility in one of the
following circumstances:
• where the carrier is authorised to do so by a facility installation permit granted by the ACA under Division 6 of Part 1 of Schedule 3;
• where the facility is a ‘low impact facility’;
• where the facility is a temporary defence facility; or
• the activity is carried out before 1 July 2000 for the sole purpose
of connecting a subscriber to a line forming part of a telecommunications
network existing at the commencement of the Act and the connection does not
cross over or under a street or a road.
If the installation of a facility
is not authorised by the Bill in one of the circumstances listed above, the
installation usually would require the approval of an administrative authority
(eg, a local government authority) under the terms of a relevant law of a State
or Territory.
The clause provides for the Minister by disallowable
instrument to determine a facility to be a ‘low impact facility’(see
clauses 5(3) and 5(6)).
• The instrument may provide for a
particular class of facility to be determined for the purpose of this Part. For
example, a determination could be made by reference to the type of facility, the
type of location at which it is installed, whether it is co-located with an
existing facility or any other basis of classification. The fact that a
particular type of facility may also be a temporary defence facility or a
subscriber connection authorised by the Act does not prevent it also being
determined to be a low impact facility.
• Section 4 of the Acts
Interpretation Act 1901 will allow the Minister to make a determination
before 1 July 1997 so that an instrument is ready when Schedule 3 commences
operation on that date. It is open to the Minister before 1 July 1997 to direct
AUSTEL under s.327(b) of the 1991 Act to inquire into further issues relevant to
the making of a determination.
Division 4—Maintenance of
facilities
Clause 6 – Maintenance of facilities
This clause
authorises a carrier to maintain an existing facility in similar terms to the
existing s.130 and s.131 of the 1991 Act. Carrying out this activity, however,
is subject to all the relevant conditions set out in Division 5 of Part 1 of
Schedule 3.
The term ‘maintenance’ is defined for the
purposes of the clause so as to include, among other things, the replacement of
the whole or part of a facility at the same location where the replacement
facility emits no more noise and is not apparently larger - that is, either it
is contained within an unaltered building or takes up no more space, and, if a
tower, is no taller than the previous tower.
Division 5—Conditions relating to the
carrying
out of authorised
activities
This Division sets out conditions which apply to some or all (as indicated in
each clause) of the activities authorised under Division 2, 3 or 4 of Part 1 of
Schedule 3 (that is, to inspect land, to install a facility in specified
circumstances or to maintain a facility).
Clause 7 – Carrier to
do as little damage as practicable
This clause provides that, in
carrying out an authorised activity, a carrier must take all reasonable steps to
ensure that it causes as little detriment, inconvenience and damage as is
practicable. This clause continues the obligation set out s.134(1) of the 1991
Act.
Clause 8 – Management of activities
This clause
requires a carrier in carrying out an authorised activity to take all reasonable
steps to act in accordance with good engineering practice, to protect the safety
of persons and property and to ensure that the activity interferes as little as
practicable with various activities specified in the clause. These provisions
continue the obligations in the Telecommunications National Code.
Clause 9 – Agreements with public utilities
This
clause requires a carrier to make reasonable efforts to enter into an agreement
with a public utility (‘public utility’ is defined in clause 2 of
Schedule 3) about the manner in which the carrier will engage in an authorised
activity that is likely to effect the operations of the utility. A carrier must
comply with such an agreement. Clause 9 continues the obligations imposed on
carriers by of the Telecommunications National Code.
Clause 10
– Compliance with industry standards
This clause requires a
carrier which engages in an authorised activity to do so in accordance with any
relevant industry standard recognised by the ACA that is likely to reduce a risk
to the safety of the public. This clause continues obligations in the
Telecommunications National Code.
Clause 11 – Compliance with
international agreements
This clause requires that a carrier which
engages in an authorised activity must do so in a manner that is consistent with
Australia’s obligations under an international agreement prescribed by
regulations that is relevant to that activity. This provision continues
obligations in the Telecommunications National Code.
Clause 12
– Conditions specified in the regulations
This clause provides
that, a carrier which engages in an authorised activity must do so in accordance
with any conditions that are specified in regulations made under the Act for
that purpose.
Clause 13 – Conditions specified in a Ministerial
Code of Practice
This clause provides that the Minister may, by
disallowable instrument, make a Code of Practice setting out conditions that are
to be complied with by carriers in engaging in any or all authorised activities,
other than activities covered by a facility installation permit. Activities
covered by a facility installation permit instead will be subject to specific
conditions set out in the permit granted by the ACA (see clause 14).
It
is expected that the Code will set out different requirements for different
classes of activities - for example, the installation of a temporary facility by
or on behalf of a defence organisation will be subject to different requirements
to other activities..
The clause makes it clear that the provision made
by this clause for a Code of Practice governing the conduct of carriers in
carrying out these relevant activities is not intended by implication to limit
the matters that may be dealt with by the industry codes and the industry
standards that are provided for in Part 6 of the Bill.
Section 4 of the
Acts Interpretation Act 1901 will allow the Minister to make a Code of
Practice before 1 July 1997 so that an instrument is ready when Schedule 3
commences operation on that date. It is open to the Minister before 1 July 1997
to direct AUSTEL under s.327(b) of the 1991 Act to inquire into further issues
relevant to the making of a Code of Practice.
Clause 14 –
Conditions to which a facility installation permit is subject
This
clause provides that a carrier engaging, or proposing to engage, in an activity
that is, or will be, authorised by a facility installation permit must not
contravene any of the conditions that are specified by the ACA in the facility
installation permit.
Clause 15 – Notice to owner of land
– general
This clause requires that, before engaging in an
authorised activity in relation to any land, a carrier must give written notice
of its intention to do so to the owner and occupier of the land. The clause
provides that notice of at least 2 business days is sufficient simply to inspect
land which is not in an environmentally sensitive area (see clause 15(3)). The
notice requirement may be waived and does not apply to emergency maintenance in
the circumstances set out in clause 15(5) or simple inspection of a public place
which is not in an environmentally sensitive area (see clause 15(6)).
Clause 16 – Notice to owner of land – lopping of trees
etc.
This clause is based on the provisions of s.130(3) and s.130(4)
of the 1991 Act. The clause provides that a carrier, before carrying out
an activity authorised under Division 3 or 4 of Part 1 of Schedule 3 to cut or
lop a tree or remove undergrowth or vegetation on private land, must give 10
business days notice requesting that the owner or occupier do the work as
specified in the notice. The carrier only may carry out those activities if
that request is not complied with. This requirement to give notice may be
waived and does not apply in the case of emergency maintenance in the
circumstances set out in clause 16(4).
Clause 17 – Notice to
roads authorities, utilities etc.
This clause requires a carrier to
give 10 business days notice of any intention to affect existing infrastructure
as specified in clause 17(1) before carrying out an activity authorised under
Division 3 or 4 of Part 1 of Schedule 3. The notice must be given to the person
or authority responsible for the care and management of the relevant existing
infrastructure. This provision is based on s.129(5) of the 1991 Act.
The requirement to give notice may be waived and does not apply to emergency
maintenance in the circumstances set out in clause 17(3).
Clause 18
– Roads etc. to remain open for passage
This clause requires
that, in installing a facility pursuant to Division 3 of Part 1 of Schedule 3
over a road, bridge, path or navigable water, a carrier must ensure that the
facility when installed does not obstruct reasonable passage. This provision is
based on s.129(6) of the 1991 Act.
Division 6—Facility installation permits
Clause 19 – Application for facility installation
permit
This clause provides that a carrier may apply to the ACA for a
‘facility installation permit’ authorising the carrier to install a
facility. The application may relate to the installation of a single facility
or the installation of a number of facilities which are to form part of a
carrier’s network. An application only may be made where a carrier, after
negotiations, has not obtained the necessary approval from a relevant State,
Territory or local government authority or the owner or occupier of the
land.
Clause 20 – Form of application
This clause
provides that an application for a facility installation permit must be in
writing and in accordance with the form approved in writing by the
ACA.
Clause 21 – Application to be accompanied by
charge
This clause requires the application for a facility
installation permit to be accompanied by any charge fixed by a determination
under s.52 of the proposed ACA Act. This charge would relate only to the
expenses of the ACA in dealing with the application apart from any expenses
arising from holding a public inquiry. A separate charge may be imposed where
the ACA holds a public inquiry in order to consider whether the permit should be
granted (see clause 23(5)).
Clause 22 – Withdrawal of
application
This clause makes it clear that at any time a carrier may
withdraw its application and make a fresh application.
Clause 23
– Issue of facility installation permit
Where it has held a
public inquiry under Part 25 of the Bill about whether the permit should be
issued, and considered the material provided to it in that inquiry, the ACA may
issue a facility installation permit authorising the applicant to carry out any
or all of the activities specified in the application.
The ACA does not
need to hold a public inquiry if it decides to refuse to issue a facility
installation permit, for example, where the application for a permit does not
disclose grounds on which the ACA could issue the permit. If the ACA decides to
refuse to issue the permit, it must give the applicant a written notice setting
out the decision.
An application may be made to the Administrative Appeals
Tribunal for review of a decision to refuse to issue a permit where a public
inquiry has not first been held (see clause 33).
A charge to be paid by
the applicant to meet the costs of the ACA in holding the public inquiry may be
fixed under s.52 of the proposed ACA Act.
Clause 24 – Deemed
refusal of facility installation permit
This clause sets out time
limits for dealing with applications for facility installation permits.
The ACA has 10 business days from the date it receives an application
for a permit to notify the applicant in writing either that it has decided to
refuse to issue the permit or that it has decided to hold a public inquiry about
whether the permit should be issued. If this is not done, the ACA is taken to
have decided to refuse to issue the permit, thereby giving the applicant a right
to apply to the Administrative Appeals Tribunal (see clause 33).
Where
the ACA decides to hold a public inquiry about whether the permit should be
issued, the ACA will have 65 business days from the date of the application to
notify the applicant in writing of its decision either to issue the permit or
refuse to issue the permit. Before this period expires, however, the ACA may,
by written instrument, extend that period by up to 20 business days. If the ACA
has not notified the applicant of its decision at the end of that period (that
is, either 65 business days or, where the ACA has extended the period, up to 85
business days, from the date of application), the ACA is taken to have decided
to refuse to issue the permit, thereby giving the applicant a right to apply to
the Administrative Appeals Tribunal (see clause 33).
Clause 24(4) makes
clear the intention that, in determining the validity of any action by the ACA
in conducting an inquiry under Part 25 of the proposed Act about whether a
facility installation permit should be issued, the obligation of the ACA to meet
the time limit imposed on it by this clause must be considered.
Clause
25 – Criteria for issue of facility installation permit
This
clause sets out the matters that the ACA must be satisfied about before it may
issue a facility installation permit. It also sets out the things that the ACA
must take into account in deciding whether the grounds for a permit have been
made out.
Clause 25(1) sets out the grounds of which the ACA must be
satisfied before it may issue a permit. These are:
• that, despite attempts to negotiate in good faith, the carrier has not obtained the approvals of an administrative authority or a proprietor that usually would be required for that activity within the relevant period designated in clause 25(2) or (8) respectively;
• in the case of an application for a permit to install a designated overhead line - any relevant State, Territory or local government authority has approved the proposed activity;
• the telecommunications network to which the facility relates is or will be of national significance (clause 25(3) sets out the matters that the ACA must have regard to in determining this matter);
• the facility is or will be an important part of that telecommunications network (clause 25(4) provides that, in determining this matter, the ACA must have regard to its importance in technical, economic or social terms);
• the greater part of the infrastructure of the telecommunications network to which the facility relates has been installed, or its installation has been, or will be, approved by the relevant State, Territory or local government authority; and
• the advantages that are likely to be derived from the operation of
the facility in the context of the telecommunications network to which it
relates outweigh any form of degradation of environmental amenity that is likely
to result from the installation of the facility (clauses 25(5), (6) and (7) set
out matters which the ACA must consider in determining this).
Clause
25(8) provides definitions of terms used in this clause.
Clause 26
– Special provisions relating to environmental matters
Division
6 of Part 1 of Schedule 3 sets out in detail specific processes and
considerations relevant to the assessment of the environmental impact of the
activity to which an application for a permit relates. Therefore, clause 26(1)
provides expressly that the administrative procedures under s.6 of the
Environment Protection (Impact of Proposals) Act 1974 (which set out
general environment assessment procedures to be followed by Commonwealth
agencies) are not to apply to the ACA in performing a function or exercising a
power under Part 1 of Schedule 3 or, to the extent that they relate to Part 1 of
Schedule 3, Parts 25 and 29 of the Bill (which relate to the holding of a public
inquiry or to the review of a decision by the ACA).
Clause 26(2) requires
the ACA to consult with the Secretary to the Department responsible for
environment matters (see the definition of ‘Environment Secretary’
at clause 2) before issuing a permit. In addition, the ACA must consult with
the Director of National Parks and Wildlife or the Australian Heritage
Commission in appropriate circumstances (see clauses 26(3) and
(4)).
Clause 27 – Consultation with the ACCC
This
clause requires the ACA to consult with the ACCC before making a decision to
issue, or to refuse to issue, a facility installation permit. It is intended
that this be done to ensure that account is taken of the provision of services
by means other than the installation of new infrastructure: for example, where
access to existing facilities operated by one carrier may be made available to
another carrier pursuant to a provision of the Act or of the TPA.
Clause 28 – Facility installation permit has effect subject to
this Act
This clause makes it clear that a permit that has been
granted has effect subject to the Act.
Clause 29 – Duration of
facility installation permit
This clause provides that a permit
remains in force for a period specified by the ACA in the permit, or such
further period specified by the ACA by written notice to the permit holder where
it is satisfied that an extension is warranted because of special circumstances.
Clause 30 – Conditions of facility installation
permit
This clause provides that a facility installation permit is
subject to such conditions as are specified in the permit by the ACA. The
conditions so specified may restrict, limit or prevent the exercise of a power
relating to the installation of facilities. The conditions may include
requirements relating to further processes that the carrier must undertake or
approvals which must be obtained before the carrier can do certain things
pursuant to the permit.
Clause 31 – Surrender of facility
installation permit
This clause provides that the permit holder may
surrender the permit by written notice to the ACA.
Clause 32 –
Cancellation of facility installation permit
This clause gives the
ACA a power to cancel a permit by written notice given to the permit holder. In
deciding whether to cancel the permit, the ACA may have regard to any relevant
matter, including any matter which the ACA was entitled to have regard to under
clause 25 in deciding whether to issue a permit or whether there has been any
contravention of any relevant conditions relating to the activity.
A
decision by the ACA under this clause is specified at paragraph 1(y) of Schedule
4 for the purposes of s.539 of the Act. This means that Part 29 of the Bill
applies so as to give the permit holder the right to apply to the ACA for
reconsideration of that decision. If the ACA, after reconsidering its decision,
affirms the decision or fails to make a decision within 90 days of receiving an
application for reconsideration, the permit holder may apply to the
Administrative Appeals Tribunal for review of the decision (see clauses 538 -
546 of the Bill).
Clause 33 – Review of decisions by
Administrative Appeals Tribunal
This clause provides for application
to be made to the Administrative Appeals Tribunal for review of a decision by
the ACA to refuse to issue a facility installation permit (including where the
ACA is deemed to have refused to issue a permit - see clause 24 above) where the
ACA has not first held a public inquiry in relation to that permit.
The
Bill provides for a comprehensive regime relating to the conduct of public
inquiries; significantly, the public inquiry process requires the ACA to provide
a reasonable opportunity for any member of the public to make a written
submission to the ACA about the subject matter of the inquiry. Where an inquiry
is held, the ACA is further required to prepare a report setting out its
findings as a result of the inquiry.
It would not be appropriate to
provide for AAT review of a decision made following a public consultation
process. There is a recognised exception to merits review which arises in
relation to decisions ‘that are the product of processes that it would be
difficult (having regard to the time and cost that would be involved) to justify
repeating on review. These processes include public inquiries and public
consultation processes that involve the participation of, or consultation with,
many persons’ (Administrative Review Council 1992/93 Annual Report,
page 76).
Division 7—Exemptions from State and
Territory laws
Clause 34 – Activities not generally exempt from State and Territory
laws
This clause makes clear the intention that the authority given
by Division 2, 3 and 4 of Part 1 of Schedule 3 to a carrier to carry out the
activities specified in those Divisions is not intended to permit the carrier to
do those things in a manner which would be inconsistent with the provisions of
any State or Territory legislation. The extent to which a carrier in engaging
in the activity authorised by Division 2, 3 or 4 of Part 1 of Schedule 3 is
exempt from a State or Territory law is determined by clause
35.
Clause 35 – Exemption from State and Territory
laws
This clause specifies the State and Territory laws which do not
apply to a carrier when engaging in an activity authorised by Division 2, 3 or 4
of Part 1 of Schedule 3. The laws specified are those currently specified by the
Telecommunications (Exempt Activities) Regulations made under s.116(1) of
the 1991 Act.
Clause 36 – Concurrent operation of State and
Territory laws
This clause makes it clear that the exemption from
State laws provided by clause 35 is not intended to affect the operation of any
law of a State or Territory so far as that other law is capable of operating
concurrently with the Act.
Clause 37 – Liability to taxation not
affected
This clause states that the provision made in Division 7 of
Part 1 of Schedule 3 relating to the application of State and Territory laws
does not affect the liability of a carrier to taxation under a law of a State or
Territory. This clause continues the provision made by s.116(4) of the 1991
Act. This does not mean, however, that a State or Territory may impose a tax
that discriminates against a carrier (see clause 42).
Division 8—Miscellaneous
Clause 38 – Constitution of the ACA – performance of
functions under this Part
This clause provides that, for the purposes
of the performance of its functions and the exercise of its powers under Part 1
of Schedule 3 (and under Parts 25 and 29 of the Bill to the extent that they
relate to that Part), the ACA is to be constituted by the Chairman of the ACA
and at least two and not more than four, associate members of the ACA who hold
an appropriate appointment for this purpose.
Section 18 of the proposed
ACA Act provides that members may be appointed as associate members of the ACA
in relation to certain matters as specified in the instrument of appointment of
the member.
Clause 39 – Guidelines
This clause
provides that the ACA may, by written instrument, make guidelines that it must
have regard to in performing its functions or exercising its powers under Part 1
of Schedule 3.
Clause 40 – Compensation
This clause
provides for a carrier to pay compensation to a person who suffers financial
loss or damage in relation to property because of anything done by a carrier
under the powers conferred on it under Division 2, 3 or 4 of Part 1 of Schedule
3. It is derived from ss. 134(2), (3), and (4) of the 1991
Act.
Clause 41 – Power extends to carrier’s
employees etc.
This clause makes it clear that the powers given to a
carrier under Division 2, 3 or 4 of Part 1 of Schedule 3 extend to employees and
agents and other people acting on behalf of the carrier. This clause is derived
from s.133 of the 1991 Act.
Clause 42 – State and
Territory laws that discriminate against carriers
This clause
provides that a State or Territory law has no effect to the extent to which it
discriminates, or has the effect of discriminating, directly or indirectly
against a carrier, or a user or potential user of a carrier’s services.
It is based on s.120 of the 1991 Act. The clause is intended to deal
with laws which have an indirect effect of discriminating against carriers or
users of carrier services, not just a law which, for example, on its face treats
a person differently to someone else. The indirect discrimination which this
clause is intended to prevent includes the following examples:
• laws that impose a burden on facilities of a carrier that is not imposed on similar facilities (for example a tax on ‘street furniture’ which is in effect discriminatory against carriers because other bodies owning such equipment such as electricity authorities would be exempt from paying that tax);
• laws which have the effect of giving powers or immunities to a person or body in relation to the installation, maintenance or operation of a facility which do not apply to carriers generally (for example, where a public utility may rely on general land access powers given to that utility under State or Territory law to install telecommunication facilities without obtaining the approvals which would ordinarily be required for that activity under the law of that State or Territory); and
• laws which discriminate against people by reason of their use of the
facilities of a carrier.
Clause 43 – State and Territory laws
may confer powers and immunities on carriers
This clause makes it
clear that Part 1 of Schedule 3 is not intended to prevent a State or Territory
from conferring powers or immunities on carriers where those laws are capable of
operating concurrently with the Act. This means, for example, that clause 42
would not prevent a State or Territory Law making special rules to facilitate
the installation of telecommunications infrastructure, provided that those rules
did not have the effect of directly or indirectly discriminating against the
carrier, a class of carriers or carriers in general and was not otherwise
inconsistent with the Act.
Clause 44 – ACA may limit tort
liability in relation to the supply of certain carriage services
This
clause gives the ACA power, by written instrument, to impose limits on amounts
recoverable in tort in relation to acts done or omissions made, in relation to
the supply of those carriage services specified in the instrument. That
instrument may determine the liability limit in respect of a single event which
gives rise to liability, or in respect of the maximum liability to a single
plaintiff, or both, and may specify an amount or a method of calculating an
amount for these purposes.
This clause is based on the provision made by
ss. 121 and 122 of the 1991 Act.
The clause makes it clear that such an
instrument cannot affect any liability of a carrier under Part 9 of the Bill
(which deals with the customer service guarantee) or under clause 40 (which
deals with compensation for loss or damage resulting from a carrier’s
activities under Division 2, 3 or 4 of Part 1 of Schedule 3).
Clause
45 – Ownership of facilities
This clause provides that a
facility or part of facility supplied, installed, maintained or operated by a
carrier remains its property unless the circumstances indicate otherwise. This
is so whether or not the equipment is attached to the ground in such a way as to
be a ‘fixture’. At law, an object which is a ‘fixture’
usually is the property of the owner of the land on which is situated. This
clause restates s.123 of the 1991 Act.
Clause 46 – ACA may
inform the public about underground facilities
This clause gives the
ACA the function of informing the public about the kinds and location of
underground facilities. This function need not be exercised by the ACA as
especially constituted as provided for by clause 38. Clause 46(2) sets out
matters that the ACA must have regard to in performing this function.
It
is a condition of a carrier licence that a carrier keep accurate records about
the kinds and location of underground facilities (see Schedule 1, clause 37).
Clause 47 – Commonwealth laws not displaced
This
clause puts it beyond doubt that the authority given to a carrier under Part 1
of Schedule 3 to carry out various activities does not give the carrier any
authority to do those things contrary to the requirements of another
Commonwealth law.
Clause 48 – Subdivider to pay for necessary
alterations
This clause requires a person who subdivides land to pay
the reasonable costs of a carrier incurred in moving a facility situated on that
land as a consequence of the subdivision. This clause continues the provision
made for the payment of a carrier’s costs in these circumstances set out
in s.132(2) of the 1991 Act.
Clause 49 – Service of notices
This clause sets out a procedure that a carrier may follow if unable
to identify the owner or occupier of the land who must be given notice as
provided for in Division 5 of Part 1 of Schedule 3. The clause provides for
alternative arrangements in those circumstances. It is based on s.135 of the
1991 Act.
Clause 50 – Facilities installed before 1
January 1999 otherwise than in reliance on Commonwealth laws –
environmental impact
This clause, until 1 January 1999, imposes
special requirements on carriers installing facilities where the installation is
not authorised under clauses 5(1)(a), (b) (c) or (d) and there are special
Commonwealth environmental or heritage concerns. In addition to whatever
approvals the carrier must obtain from the owner of the land and the relevant
State, Territory or local government authority, the carrier must notify the
Environment Secretary (see definition at clause 2) of the proposed installation
where it gives rise to any of the environment or heritage concerns specified in
clause 50(2). The notice will provide such information as is specified in the
regulations. It must be given at least 25 business days before the installation
is proposed to be commenced.
Where the Environment Secretary makes a
recommendation to the ACA, the ACA, after consulting with the Director of
National Parks and Wildlife or the Australian Heritage Commission where
appropriate, may give the carrier a written direction relating to the
installation. The direction must be given within 25 business days after the
notice was given by the carrier. The carrier must comply with such a direction.
A decision of the ACA to give a direction, to vary a direction and to refuse to
revoke a direction (powers to amend or revoke an instrument are implicit by
reason of s.33(3) of the Acts Interpretation Act 1901), are specified at
paragraph 1(z) of Schedule 4 for the purposes of s.539 of the Act. This means
that Part 29 of the Bill applies so as to give the permit holder the right to
apply to the ACA for reconsideration of that decision. If the ACA, after
reconsidering its decision, affirms the decision or fails to make a decision
within 90 days of receiving an application for reconsideration, the permit
holder may apply to the Administrative Appeals Tribunal for review of the
decision (see clauses 538 - 546 of the Bill).
Part 2—Transitional provisions
Clause 51 – Continued application of sections 116, 117, 118 and
119 of the Telecommunications Act 1991 - general
This clause
continues the present arrangements provided for carriers under ss. 116, 117, 118
and 119 of the 1991 Act (that is, the exemption from compliance with
State and Territory laws as specified in the Telecommunications (Exempt
Activities) Regulations subject to the requirement to comply with the
Telecommunications National Code) in relation to a particular exempt activity
that was notified before 1 July 1997 in accordance with the requirements of the
Telecommunications National Code and commenced on or before 30 June 1997. These
transitional arrangements expire on 30 September 1997 in the case of the
installation of a designated overhead line (see definition at clause 3), and in
any other case, on 31 December 1997. The clause also makes necessary
consequential provisions to facilitate the transitional arrangements (see clause
51(2)).
Clause 52 – Continued application of Division 3 of Part
7 of the Telecommunications Act 1991 - general
This clause
makes provision in a similar way and to similar effect to clause 51 for the
continued application of Division 3 of Part 7 of the 1991 Act (the land
access powers) in relation to an activity that a carrier had given notice of as
required under Division 3 of Part 7 before 1 July 1997.
Clause 53
– Continued application of sections 116, 117, 118 and 119 of the
Telecommunications Act 1991 – special rule where injunction restrains
activity
This clause is similar in effect to clause 51. It enables a
carrier who gave the requisite notice of a proposal before 30 June 1997, but was
prevented from carrying out relevant work because of an injunction or similar
order of a court granted on or after 5 December 1996 (the date of introduction
of the Bill) which subsequently is removed, to have a period of time under the
transitional arrangements to complete the project equivalent to that the carrier
would have had if the injunction had not been made.
Clause 54 –
Continued application of Division 3 of Part 7 of the Telecommunications Act
1991 – special rule where injunction restrains
activity
This clause makes provision to similar effect to clause 52
for the application of Division 3 of Part 7 of the 1991 Act (the land
access powers) where circumstances of the kind dealt with in clause 53 occur.
Clause 55 – Existing buildings, structures and facilities
– application of State and Territory laws
This clause ensures
that a building, structure or facility that was, when built, authorised by s.116
of the 1991 Act or Division 3 of Part 7 of the 1991 Act is not made now
subject to State laws relating to building approvals, etc. by virtue of the
repeal of those provisions of the 1991 Act. This clause is adapted from
a similar provision in s.33 of the Telstra Corporation Act 1991 passed
as a consequence of what is now Telstra becoming subject to State laws of
kinds which had not applied to it, or its predecessors, in the past.
Schedule 4––Reviewable decisions of the ACA
Part 1––Decisions that may be subject to reconsideration by the ACA
Clause 1 – Reviewable decisions of the ACA
This
clause lists the decisions made under the Act in relation to which application
may be made to the ACA for reconsideration.
Part 2––Decisions to which section 540 does not apply
Clause 2 – Decisions to which section 540 does not
apply
This clause specifies those decisions in relation to which
clause 540 does not apply. Clause 540 requires primary decisions to be made
within a period of 90 days, or 90 days following the request by the ACA for
further information. The decisions referred to in this clause are already
subject to specified deadlines obviating the need for clause 540 to
apply.