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1997
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
THE
SENATE
TELECOMMUNICATIONS BILL
1996
SUPPLEMENTARY EXPLANATORY
MEMORANDUM
Amendments and requests for amendments to be
moved on behalf of the
Government
(Circulated by authority of
Senator the Hon. Richard Alston, Minister for Communications and the
Arts)
80918 Cat. No. 96 7359 8 ISBN 0644 497629
TELECOMMUNICATIONS BILL 1996
OUTLINE
The proposed amendments to the Telecommunications Bill 1996 will
implement the Government’s response to the recommendations of the Report
by the Senate Environment, Recreation, Communications and the Arts Legislation
Committee on the Telecommunications Bills Package 1996 and make other minor
changes to improve the operation of the proposed legislation.
The
proposed amendments will:
• make it an object of the new
legislation to provide a framework under which a carriage service that provides
digital data capability comparable to an ISDN channel is to become reasonably
accessible to all people in Australia as soon as practicable and provide for
monitoring and annual reporting by the ACA on progress towards achieving that
objective (Amendments (1) and (41) to (43));
- giving effect to the
Government’s response to recommendation 10 of the Opposition
Senators’ Report on the Telecommunications Bills Package
1996;
• make it clear that the ACA’s monitoring and annual
reporting obligations in relation to carriers and carriage service providers do
not apply in relation to content service providers - thereby avoiding content
service providers being subject to double monitoring by both the ACA under the
Telecommunications Act and the Australian Broadcasting Authority under the
Broadcasting Services Act 1992 (Amendments (2), (3) and (35) to (40));
– giving effect to the Government’s response to
recommendation 2.7 of the Report by the Senate Environment, Recreation,
Communications and the Arts Legislation Committee on the Telecommunications
Bills Package 1996;
• restructure the provisions of the Bill
relating to emergency call services to clarify and reinforce the arrangements
for handling of emergency call services, including clarifying definitions,
specifying additional objectives relating to calls being transferred to
emergency services organisations with a minimum of delay and clarifying funding
arrangements for emergency call services (Amendments (4) to (6) and (8), (82) to
(90), (114), (115), (147), (176) and (177));
– giving effect to
the Government’s response to recommendations 2.1, 3.1, 3.2 and 3.3 of the
Report by the Senate Environment, Recreation, Communications and the Arts
Legislation Committee on the Telecommunications Bills Package 1996;
• provide for reciprocal immediate circles in relation to the
Commonwealth, States and Territories and their respective authorities which do
not carry on a business as a core function (Amendments (9) to (14));
– giving effect to the Government’s response to
recommendation 2.3 of the Report by the Senate Environment, Recreation,
Communications and the Arts Legislation Committee on the Telecommunications
Bills Package 1996;
• provide for students of tertiary education
institutions to be within the immediate circle of the institution (Amendments
(15) and (19));
– giving effect to the Government’s
response to recommendation 2.2 of the Report by the Senate Environment,
Recreation, Communications and the Arts Legislation Committee on the
Telecommunications Bills Package 1996;
• enable the Minister to
make a determination providing that specified Government authorities or
institutions are taken to carry on, or not carry on, a business as a core
function for the purposes of the immediate circle concept (Amendments (16) to
(18));
– giving effect to the Government’s response to
recommendation 2.4 of the Report by the Senate Environment, Recreation,
Communications and the Arts Legislation Committee on the Telecommunications
Bills Package 1996;
• make technical amendments to ensure that
broadcasters are exempt from carrier licensing and carriage service provider
regulation (Amendments (21) to (23), (26), (27), (31), (33) and
(34));
– giving effect to the Government’s response to
recommendation 2.5 of the Report by the Senate Environment, Recreation,
Communications and the Arts Legislation Committee on the Telecommunications
Bills Package 1996;
• broaden the exemption for transport
authorities from carrier licensing and carriage service provider regulation
(Amendments (25), (30) and (32));
– giving effect to the
Government’s response to recommendation 2.6 of the Report by the Senate
Environment, Recreation, Communications and the Arts Legislation Committee on
the Telecommunications Bills Package 1996;
• require the Minister
to impose a licence condition on Telstra directed towards achieving the result
that Telstra is in a position to make available to at least 93.4% of the
Australian population by 1 July 1997, and at least 96% of the Australian
population by 1 January 2000, ISDN comparable digital data capability; and
require the Minister to conduct a review before the year 2000 to determine
whether a requirement to make available ISDN comparable digital data capability
should be included in the universal service obligation (Amendments (28) and
(62));
– giving effect to the Government’s response to
recommendation 9.3 of the Report by the Senate Environment, Recreation,
Communications and the Arts Legislation Committee on the Telecommunications
Bills Package 1996;
• include a new provision, based on subsection
63(3) of the Telecommunications Act 1991, to enable a condition of a
carrier licence to remove or restrict a right or privilege that the carrier
would otherwise have under the proposed Telecommunications Act 1997 or
the regulations - this will ensure, for example, that licence conditions can
place requirements on Telstra to itself provide directory assistance services
(Amendment (29));
• provide that privacy issues relating
to the provision of directory products and services are examples of matters
which may be dealt with by an industry code or industry standard (Amendments
(44) and (45));
– giving effect to the Government’s response
to recommendation 2.8 of the Report by the Senate Environment, Recreation,
Communications and the Arts Legislation Committee on the Telecommunications
Bills Package 1996;
• enable industry codes or industry standards
addressing privacy-related matters to have effect despite requiring customer
equipment, cabling, networks or facilities to have specific characteristics and
require the ACA, before requesting the making of such a code or making such a
standard to be satisfied that the benefits to the community will outweigh the
compliance costs (Amendments (46), (47), (52) and (54));
– giving
effect to the Government’s response to recommendation 2.9 of the Report by
the Senate Environment, Recreation, Communications and the Arts Legislation
Committee on the Telecommunications Bills Package 1996;
• prevent
codes or standards made under Part 6 from dealing with matters dealt with by a
code or standard under the Broadcasting Services Act 1992 (Amendment
(48));
– giving effect to the Government’s response to
recommendation 2.10 of the Report by the Senate Environment, Recreation,
Communications and the Arts Legislation Committee on the Telecommunications
Bills Package 1996;
• require the ACA, before registering a code,
to be satisfied that the ACCC has been consulted about the development of the
code (Amendment (49));
• require the ACA, before registering a
code, to be satisfied that a body or association representing the interests of
consumers has been consulted about the development of the code and to consult
such a body before determining, varying or revoking a standard (Amendments (50)
and (61));
- giving effect to the Government’s response to
recommendation 1 (page 165) of the Australian Democrats’ Report on the
Telecommunications Bills Package 1996;
• require the ACA to give
industry bodies at least 120 days to develop an industry code and make the
example of an indicative target to develop a preliminary draft ‘60
days’ (Amendments (51) and (53));
• require public
consultation requirements for determining or varying an industry standard to run
for at least 30 days (Amendments (56), (58) and (60));
– giving
effect to the Government’s response to recommendation 2.11 of the Report
by the Senate Environment, Recreation, Communications and the Arts Legislation
Committee on the Telecommunications Bills Package 1996;
• require
the ACA to make copies of draft industry standards available without charge
(Amendments (55), (57) and (59));
– giving effect to the
Government’s response to recommendation 2.12 of the Report by the Senate
Environment, Recreation, Communications and the Arts Legislation Committee on
the Telecommunications Bills Package 1996;
• make a minor
technical amendment to clarify that an obligation does not arise under the
universal service obligation to supply particular equipment, goods or services
if the customer requests not to be supplied with the equipment, goods or
services (Amendment (63));
• amend the universal service
obligation to clarify that the obligation to supply customer equipment requires
the customer to be given the option of hiring the equipment (Amendment
(63));
- giving effect to the Government’s response to
recommendation 2 (page 166) of the Australian Democrats’ Report on the
Telecommunications Bills Package 1996;
• require a universal
service provider to seek public comment on a draft universal service plan or
variation to such a plan before giving it to the Minister (Amendments (65) and
(66));
- giving effect to the Government’s response to
recommendation 6 (page 167) of the Australian Democrats’ Report on the
Telecommunications Bills Package 1996;
• enable a person to
request information about an ACA decision to declare a net cost area and enable
the ACA to have regard to confidentiality undertakings in deciding whether
disclosure can reasonably be expected to cause substantial damage to a
person’s interests (Amendments (68) to (74));
– giving
effect to the Government’s response to recommendation 2.14 of the Report
by the Senate Environment, Recreation, Communications and the Arts Legislation
Committee on the Telecommunications Bills Package 1996;
• amend
Part 9 of the Bill, dealing with the customer service guarantee, to reflect
amendments made by the Senate to the Telstra (Dilution of Public Ownership) Bill
1996 (Amendments (75) to (77) and (80));
– giving effect to the
Government’s response to recommendation 2.17 of the Report by the Senate
Environment, Recreation, Communications and the Arts Legislation Committee on
the Telecommunications Bills Package 1996;
• require persons
supplying access to the Internet to enter into the Telecommunications Industry
Ombudsman scheme (Amendment (81));
– giving effect to the
Government’s response to recommendation 2.18 of the Report by the Senate
Environment, Recreation, Communications and the Arts Legislation Committee on
the Telecommunications Bills Package 1996;
• create a primary
disclosure/use offence to apply to the operator of a public number data-base to
ensure that the protection of communications provisions in Part 13 will apply to
protect information held in the integrated public number database where an
industry body takes over the management of the database from Telstra (Amendments
(91) to (93), (96), (99), (101) to (103), (107) to (110), (113), (116), (117),
(121) to (135), (138) to (142), and (178) to (181));
• require a
warrant for access by law enforcement and public revenue agencies to the
contents of communications carried, or that have been carried, by a carrier or
carriage service provider (Amendments (100) and (104));
– giving
effect to the Government’s response to recommendation 3.4 of the Report by
the Senate Environment, Recreation, Communications and the Arts Legislation
Committee on the Telecommunications Bills Package 1996;
• require
the Privacy Commissioner to be consulted on the requirements for a certificate
authorising disclosure of information to law-enforcement agencies (Amendment
(104));
– giving effect to the Government’s response to
recommendation 3.6 of the Report by the Senate Environment, Recreation,
Communications and the Arts Legislation Committee on the Telecommunications
Bills Package 1996;
• include the organisations responsible to the
Australasian Police Ministers’ Council for the facilitation of national
law enforcement support in the list of law-enforcement agencies to whom
information can be supplied under clause 267 (Amendments (105) and
(106));
– giving effect to the Government’s response to
recommendation 3.5 of the Report by the Senate Environment, Recreation,
Communications and the Arts Legislation Committee on the Telecommunications
Bills Package 1996;
• enable disclosure of information from the
integrated public number database for the purpose of dealing with the matters
raised by a call to an emergency service number (Amendments (111) and
(112));
• remove a reverse burden of proof for a person defending
a prosecution for disclosure of information on the grounds that the disclosure
was reasonably necessary to prevent or lessen a serious threat to the life or
health of a person (Amendments (118) and (119));
– giving effect
to a Ministerial undertaking to the Senate Standing Committee for the Scrutiny
of Bills;
• clarify that help given for national interest purposes
includes help by way of the provision of interception services - to ensure that
clause 299 which enables the determination of terms and conditions on which help
is to be given to also apply to the provision of such services (Amendment
(143));
• clarify that help given for national interest purposes
must be given on the basis that the person neither profits from, nor bears the
costs of, giving that help (Amendment (144));
– giving effect to
the Government’s response to recommendation 3.7 of the Report by the
Senate Environment, Recreation, Communications and the Arts Legislation
Committee on the Telecommunications Bills Package 1996;
• enable
the ACA’s power to impose pre-selection requirements to be used to extend
pre-selection obligations to calls made to or from public mobile
telecommunications services (Amendments (145) and (146));
– giving
effect to the Government’s response to recommendation 3.8 of the Report by
the Senate Environment, Recreation, Communications and the Arts Legislation
Committee on the Telecommunications Bills Package 1996;
• make a
minor technical amendment to ensure that technical standards can relate to the
interoperability of equipment for the purpose of the supply of a standard
telephone service, not just the service supplied in fulfilment of the universal
service obligation (Amendment (148));
• require the ACA to provide
interested persons with at least 60 days to make representations on proposed
technical standards and certain rules (Amendments (149) to (151), (156) and
(166));
– giving effect to the Government’s response to
recommendation 3.9 of the Report by the Senate Environment, Recreation,
Communications and the Arts Legislation Committee on the Telecommunications
Bills Package 1996;
• require the ACA to give an industry body at
least 120 days to develop a technical standard about interconnection thereby
ensuring consistency with the proposed requirements for industry codes in
Amendment (51) (Amendments (152) and (153));
• require the ACA to
maintain a register of connection permits (Amendment
(155));
• give the ACA up to 6 months following the commencement
of the Act to make the new numbering plan (Amendment
(169));
– giving effect to the Government’s response to
recommendation 6.4 of the Report by the Senate Environment, Recreation,
Communications and the Arts Legislation Committee on the Telecommunications
Bills Package 1996;
• require the ACCC to use its direction power
to ensure that at all times while the numbering plan is in force, it sets out
rules about number portability (Amendments (170) and
(171));
– giving effect to the Government’s response to
recommendation 3.10 of the Report by the Senate Environment, Recreation,
Communications and the Arts Legislation Committee on the Telecommunications
Bills Package 1996;
• give the ACA greater flexibility about
engaging in consultation about variations to the numbering plan (Amendments
(172) to (175));
– giving effect to the Government’s
response to recommendation 3.11 of the Report by the Senate Environment,
Recreation, Communications and the Arts Legislation Committee on the
Telecommunications Bills Package 1996;
• improve the operation of
the provisions relating to the standard form of agreement by requiring a
carriage service provider to give a copy of the agreement to a person for free
if the person is a customer and remove the requirement to advertise changes if
those changes do not cause detriment to customers (Amendments (184) and
(185));
• require the ACA to provide at least 28 days for members
of the public to make submissions where the ACA or the ACCC are conducting a
public inquiry under the Telecommunications Act (Amendments (186) and
(189));
– giving effect to the Government’s response to
recommendation 3.12 of the Report by the Senate Environment, Recreation,
Communications and the Arts Legislation Committee on the Telecommunications
Bills Package 1996;
• clarify that a standard determined under
Part 6 can provide for a person or body other than the Commonwealth Ombudsman or
the Telecommunications Industry Ombudsman to handle complaints in relation to
breaches of the standard (Amendments (192) to (194));
• allow the
ACA to exclude from the publication of reports on investigations information
that would unreasonably disclose personal information about any individual,
including a deceased individual (Amendment (195));
– giving effect
to the Government’s response to recommendation 3.13 of the Report by the
Senate Environment, Recreation, Communications and the Arts Legislation
Committee on the Telecommunications Bills Package 1996;
• require
a carrier to comply with its industry development plan in so far as the plan
relates to its research and development activities (Amendments (204), (207) and
(208));
- giving effect to the Government’s response to
recommendation 5 of the Opposition Senators’ Report on the
Telecommunications Bills Package 1996 and recommendation 21 (page 174) of the
Australian Democrats’ Report;
• require more details to be
included in a carrier’s industry development plan, including relevant
particulars of carriers’ strategic commercial relationships, research and
development activities, export development plans and employment and training
(Amendment (205));
– giving effect to the Government’s
response to recommendation 4.1 of the Report by the Senate Environment,
Recreation, Communications and the Arts Legislation Committee on the
Telecommunications Bills Package 1996;
• require more details to
be included in a carrier’s industry development plan about proposed
activities in relation to the needs of people with disabilities (Amendments
(205) and (206);
– giving effect to the Government’s
response to recommendation 4.2 of the Report by the Senate Environment,
Recreation, Communications and the Arts Legislation Committee on the
Telecommunications Bills Package 1996;
• require the Industry
Minister to prepare a report about the carriers’ implementation of
industry development plans within 6 months of the end of a financial year and
table it in the Parliament (Amendment (209));
– giving effect to
the Government’s response to recommendation 4.3 of the Report by the
Senate Environment, Recreation, Communications and the Arts Legislation
Committee on the Telecommunications Bills Package 1996;
• amend
Part 5 of Schedule 1 to make it clear what the ACA must consider (in deciding
whether or not access to a telecommunications transmission tower, the site of
such a tower or an underground facility sought by a carrier is
“technically feasible”) along the lines of a carrier licensing
declaration recently made by the Minister (Amendments
(210)-(213));
• amend clause 37 of Schedule 1 and clause 46 of
Schedule 3 to require that carriers keep records of telecommunications
transmissions towers and designated overhead lines and provide that the
Australian Communications Authority has discretion to inform members of the
public about the kinds and location of telecommunications transmission towers
and designated overhead lines (in addition to the current proposed arrangements
for underground facilities (Amendments (214)-(218) and (247)-(249));
- giving effect to the Government’s response to recommendation 4.5
of the Report by the Senate Environment, Recreation, Communications and the Arts
Legislation Committee on the Telecommunications Bills Package 1996;
• remove the requirement that the installation of a subscriber
drop authorised under Schedule 3 must not cross under or over a street or road
(Amendment (221));
• insert provisions making it clear that
neither a designated overhead line nor a tower (other than a tower less than
five metres high attached to a building) may be specified as a “low impact
facility” under clause 5(3) (Amendment (222));
- giving effect to
the Government’s response to recommendation 2 of the Opposition
Senators’ Report on the Telecommunications Bills Package
1996;
• provide that the authorisation of maintenance activities
authorised under clause 6 of Schedule 3 include the installation of additional
facilities but only in so far as the facility does not increase noise levels and
is located inside a fully-enclosed building or a duct, etc and make minor or
consequential changes to related provisions of clause 6 dealing with replacement
of facilities (Amendments (223)-(236));
- giving effect to the
Government’s response to recommendation 4.10 of the Report by the Senate
Environment, Recreation, Communications and the Arts Legislation Committee on
the Telecommunications Bills Package 1996;
• define the terms
“height”, “volume” and “fully enclosed” for
the purposes of the definition of “maintenance” in clause 6 of
Schedule 3 in a manner consistent with those used in the National Code 1996, to
provide greater clarity (Amendment (237));
- giving effect to the
Government’s response to recommendation 4.7 of the Report by the Senate
Environment, Recreation, Communications and the Arts Legislation Committee on
the Telecommunications Bills Package 1996.
• insert a new provision
at proposed clause 7A of Schedule 3 requiring carriers to restore, within a
reasonable timeframe, any site disturbance resulting from the activities
authorised by Schedule 3 (failure to do this will result in the carrier being
subject to the penalty provisions of the Act relating to breach of a licence
condition and in some circumstances also liable for compensation under clause 40
of Schedule 3) (Amendment (238));
- giving effect to the
Government’s response to recommendations 4.9 and 4.13 of the Report by the
Senate Environment, Recreation, Communications and the Arts Legislation
Committee on the Telecommunications Bills Package 1996.
• require
that, in giving notice under clause 15 of Schedule 3 of its intention to
undertake activities authorised by Schedule, a carrier must inform the owner or
occupier of rights to compensation under clause 40 of Schedule 3 should a
person suffer loss or damage as a result of that activity (Amendment (239));
- giving effect to the Government’s response to recommendation
4.12 of the Report by the Senate Environment, Recreation, Communications and the
Arts Legislation Committee on the Telecommunications Bills Package
1996;
• bring the definition of a “sensitive area”
for the purposes of clause 15 of Schedule 3 in line with other lists of
environmentally sensitive areas in that Schedule (Amendment (240)) and also
include appropriate references in Schedule 3 to possible effects on an
“endangered ecological community” as well as to a “threatened
species” (Amendments (220), (242)-(244), (253),
(254));
• provide that references to “degradation of
environmental amenity” in Schedule 3 be replaced with “degradation
of the environment” (Amendments (219), (241));
- giving effect to
the Government’s response to recommendation 4.14 of the Report by the
Senate Environment, Recreation, Communications and the Arts Legislation
Committee on the Telecommunications Bills Package 1996;
• amend
clause 42 of Schedule 3 so as to enable the Minister to exempt the provisions of
specified State or Territory laws from the restriction on laws that discriminate
against carriers and users of carriage services (Amendment
245));
• insert new proposed clauses 46A and 46B requiring the
Minister to have a review undertaken of the options for placing communications
and other (eg. electricity) cabling facilities underground and to report to the
Parliament by 1 July 1998 and requiring the Australian Communications Authority
to monitor and report to the Minister on progress in relation to efforts to
place facilities underground (Amendments (250), (251));
- giving effect
to the Government’s response to recommendation 8.2 of the Report by the
Senate Environment, Recreation, Communications and the Arts Legislation
Committee on the Telecommunications Bills Package 1996;
• insert a
new provision at proposed clause 46C of Schedule 3 requiring telecommunications
cabling to be removed when all other aerial cabling is removed unless otherwise
agreed with a local government body or other body specified by regulations
(Amendment (252));
- giving effect to the Government’s response to
recommendation 4.6 of the Report by the Senate Environment, Recreation,
Communications and the Arts Legislation Committee on the Telecommunications
Bills Package 1996.
• amend drafting of provisions carried over
from earlier legislation to reflect the fact that, under the regulatory
arrangements in the Act, facilities need not be owned by a carrier (Amendments
(246), (255));
• make it clear that facilities installed under
former Commonwealth legislation continue to be authorised to remain in place
(Amendment (258)) and make minor technical changes to related provisions
(Amendments (256),(257));
- giving effect to the Government’s
response to recommendation 4.15 of the Report by the Senate Environment,
Recreation, Communications and the Arts Legislation Committee on the
Telecommunications Bills Package 1996.
• include notes in various
offence provisions to draw the reader’s attention to relevant provisions
of the Crimes Act 1914 which have a bearing on the penalties for those
offences (Amendments (24) ,(67), (94), (95), (97), (98), (120) (136), (137),
(154), (157) to (165), (167), (168), (182), (183), (187), (188), (190), (191),
(196) to (203));
– giving effect to the Government’s response
to recommendation 9.7 of the Report by the Senate Environment, Recreation,
Communications and the Arts Legislation Committee on the Telecommunications
Bills Package 1996;
• correct minor typographical and
cross-referencing errors and make consequential amendments (Amendments (7),
(20), (64), (78) and (79)).
The proposed requests for amendments
will:
• amend clause 138 to enable equipment for people with a
disability to be specified in regulations as part of the universal service
obligation (Request (1));
– giving effect to the Government’s
response to recommendation 2.13 of the Report by the Senate Environment,
Recreation, Communications and the Arts Legislation Committee on the
Telecommunications Bills Package 1996;
• provide the ACA with a
discretion to retrospectively declare net cost areas where the ACA is satisfied
that the person incurs a substantial loss as a result of circumstances beyond
the person’s control and the person took all reasonable steps to minimise
the loss (Requests (2) and (3));
– giving effect to the
Government’s response to recommendation 2.15 of the Report by the Senate
Environment, Recreation, Communications and the Arts Legislation Committee on
the Telecommunications Bills Package 1996.
FINANCIAL IMPACT
It is not expected that the proposed amendments will have a significant
financial impact on Commonwealth expenditure or revenue. The proposed requests
for amendments will extend the definition of supply of a standard telephone
service for the purposes of the universal service obligation to cover certain
additional goods and services for people with a disability and will enable
additional net cost areas to be declared. These measures may have the effect of
increasing expenditure payable under standing appropriations. However, the
amounts involved are not expected to be significant in the context of the
overall cost of universal service and the amounts are paid by the carriers under
the Telecommunications (Universal Service Levy) Act.
NOTES ON AMENDMENTS
AMENDMENT (1)
Clause 3 - Objects
Clause 3 sets out the objects of the
Telecommunications legislation.
Amendment (1) inserts a new provision,
clause 3(2)(aa), providing that a further object is to provide a framework under
which a carriage service that provides digital data capability comparable to an
ISDN channel is to become reasonably accessible to all people in Australia as
soon as practicable.
The new object, clause 3(2)(aa) derives from
Recommendation 13 of the Standard Telephone Service Review Group’s
Review of the Standard Telephone Service and related recommendations of
the Senate Environment, Recreation, Communications and the Arts Legislation
Committee.
“Digital data capability” refers to the ability of
a service to carry data and is determined by the data transmission speed and the
level of functionality, in terms of speed (eg. download and response times)
rather than applications, provided to an end-user by that transmission speed.
(Table 4.8b of the Review of the Standard Telephone Service describes the
functionality enabled by different transmission speeds (pp.52, 54)). It is
intended that the level of digital data capability that is accessible to all
people in Australia be comparable to that provided by an ISDN (Integrated
Services Digital Network) channel, by which is meant a single basic rate
customer channel operating at 64 kilobits per second (kbps). A comparable
digital data transmission capability would operate a similar (or greater)
transmission rate and most importantly would provide a similar level of
functionality, in terms of transmission speed rather than service features or
facilities, provided to an end-user. It is intended, for example, that a
carriage service supplied by satellite or terrestrial radiocommunications
facilities should be treated as providing a digital data capability comparable
to an ISDN channel, even though the transmission speed of the customer channel
may be slower (eg. 56 kbps) providing the functionality of the service (in terms
of speed) for the end-user is not significantly impaired.
In the
Review of the Standard Telephone Service, the Standard Telephone Service
Review Group indicated at page 12 that:
The digital data capability
should provide a platform for access to services such as fax, email, access to
the Internet, electronic commerce and educational applications.
The
functionality offered by the digital data capability should be comparable to
that currently offered by ETSI [European Telecommunications Standards Institute]
ISDN services.
The particular ways of supplying the digital data
capability may have different transmission and other characteristics from ISDN
services but they must be able to deliver digital data capability that is
measurably superior to currently available services and broadly consistent with
the ISDN benchmark.
Within the regulatory framework provided by the
Telecommunications Bill, this object is expected to be achieved in three main
ways: through a commercial response to competitive pressure; by means of a
Telstra-specific licence condition holding Telstra to commercial ISDN roll-out
targets (see amendment (28)); and, should it be considered appropriate, via the
USO arrangements (see Amendment (62)).
AMENDMENT (2)
Clause 5 - Simplified outline
Clause 5 of the Bill sets out
a simplified outline of the Bill. As a consequence of Amendments (35) to (40),
Amendment (2) changes the simplified outline in clause 5 to make it clear that
the ACA is to monitor, and report each year to the Minister on, significant
matters relating to the performance of carriers and carriage service providers
(rather than content service providers). This will avoid any overlap with the
operation of the Broadcasting Services Act 1992.
AMENDMENT (3)
Clause 6 - Main index
Clause 6 of the Bill sets out the
main index to the Bill. Amendment (3) changes item 25 in the main index to
reflect the changed heading to Part 5 made by Amendment (35).
AMENDMENT (4)
Clause 7 - Definitions
This amendment inserts and defines a
new term ‘access’ as it is used in relation to an emergency call
service and refers the reader to the definition provided by clause
18.
AMENDMENT (5)
Clause 7 - Definitions
This amendment omits the definition
of ‘direct access’, a term which was to be used in relation to an
emergency call service. The concept of ‘direct access’ is no longer
to be used as access will often not be provided directly by a carriage provider,
but by using the networks of another carriage service provider so the definition
has been omitted. This amendment is consequential upon Amendment (8) which
inserts a new definition of ‘access to an emergency call
service’.
AMENDMENT (6)
Clause 7 - Definitions
This amendment substitutes a new
definition of an ‘emergency call service’ in clause 7 which
expressly refers to the transferring of the emergency call and related
information to the relevant emergency service organisation. This amendment is
intended to clarify the obligation on recognised persons operating an emergency
call service to transfer and connect a legitimate incoming emergency call and to
transfer related information to the relevant emergency service organisation.
The definition includes a new clause 7(b)(iv) allows for arrangements in
some regions where a third party has been contracted by emergency services
organisations to receive calls (and related information) transferred from an
emergency call person. The third party then arranges for the despatch of the
relevant emergency service. The new definition therefore includes the
transferring of emergency calls and related information to a despatch service.
AMENDMENT (7)
Clause 7 - Definitions
Clause 7 gives definitions of terms
used throughout the Bill, including “net cost area”.
This
amendment is a formal technical amendment consequential to Request (3) of the
Government requests for amendments which inserts a new clause 172B to provide
for the ACA to retrospectively declare net cost areas (see the notes on new
clause 172B below).
AMENDMENT (8)
Clause 18 - Access to an emergency service number
Clause 18
as introduced provides a definition of ‘direct access to an emergency
service number’, a term used in clause 255(2)(a) as introduced. Clause
255(2)(a) is to be replaced by Amendment (82) with clauses which refer to the
provision by carriage service providers of ‘access to an emergency call
service’ to end-users. Clause 18 is therefore amended to provide a
definition of ‘access to an emergency call service.’
AMENDMENTS (9)–(14)
Clause 23 - Immediate circle
Clause 23 of the Bill provides
the principles by which a person’s immediate circle may be determined.
The concept of an immediate circle is central to determining whether a carrier
licence must be held in regard to certain network units (clause 42 of the Bill)
and whether a person supplying carriage or content services is a service
provider (Part 4 of the Bill).
Amendments (9) to (14) enlarge the
immediate circle concept in relation to Commonwealth, State and Territory
authorities or institutions (other than authorities or institutions that carry
on a business as a core function).
As a result of Amendments (9) and
(10), for the purposes of the Bill, if a person is an authority or institution
of the Commonwealth (other than an authority or institution that carries on
business as a core function), the person’s immediate circle will also
include the person together with:
(a) the Commonwealth;
and
(b) another authority or institution of the Commonwealth (other than
an authority or institution of the Commonwealth that carries on business as a
core function) and a constituent member or employee of such an authority or
institution.
As a result of Amendments (11) and (12), for the purposes of
the Bill, if a person is an authority or institution of a State (other than an
authority or institution that carries on business as a core function), the
person’s immediate circle will also include the person together
with:
(a) the State; and
(b) another authority or institution of
the State (other than an authority or institution of the State that carries on
business as a core function) and a constituent member or employee of such an
authority or institution.
As a result of Amendments (13) and (14), for
the purposes of the Bill, if a person is an authority or institution of a
Territory (other than an authority or institution that carries on business as a
core function), the person’s immediate circle will also include the person
together with:
(a) the Territory; and
(b) another authority or
institution of the Territory (other than an authority or institution of the
Territory that carries on business as a core function) and a constituent member
or employee of such an authority or institution.
AMENDMENT (15)
Clause 23 - Immediate circle
Amendment (15) amends clause
23 to provide an immediate circle for a tertiary education institution (such as
a university) to reflect the fact that such institutions often have campuses at
disparate locations. This will obviate the need for the institution to obtain a
carrier licence with respect to network units used for communications with its
students or staff.
As a result of Amendment (15), a tertiary education
institution’s immediate circle will consist of the institution together
with:
(a) a member of the governing body of the
institution;
(b) an officer or employee of the institution;
and
(c) students enrolled at the institution.
Amendment (19)
provides a definition of the term ‘tertiary education institution’
for the purposes of this amendment.
AMENDMENTS (16)–(18)
Clause 23 - Immediate circle
Clause 23(1)(m) of the Bill
provides that the immediate circle of any person may be extended to include any
person specified in a determination made by the Minister under clause 23(2).
Any such determination will be disallowable by the Parliament. This power is
included to enable any anomalous situations which emerge with the operation of
the new Act to be addressed. An example of a purpose for which the power could
be used would be to include additional classes of person in the immediate circle
of a tertiary education institution.
Proposed new clauses 23(2A) and
23(2B), inserted by Amendment (16), make it clear that a Ministerial
determination under clause 23(2) may be conditional or unconditional and that
nothing in the categories of immediate circle in clauses 23(1)(a) to (la) will
limit the operation of clauses 23(2) and 23(2A).
The test of whether an
authority or institution carries on a business as a core function (a concept
used in clause 23 of the Bill) will require an analysis of the functions of the
authority or institution concerned. Proposed clauses 23(2C) and (2D), inserted
by Amendment (16), will enable greater certainty to be given in borderline cases
by means of a legislative instrument. They will empower the Minister to make a
determination providing that specified Government authorities or institutions
are taken to carry on, or not carry on, a business as a core function for the
purpose of clause 23.
As a result of Amendments (17) and (18), the
Minister’s determination under clauses 23(2), (2C) or (2D) will have
effect accordingly and will be a disallowable instrument for the purposes of the
Acts Interpretation Act 1901 and will therefore be required to be
published in the Commonwealth Gazette, tabled in the Parliament and will
be subject to Parliamentary disallowance.
AMENDMENT (19)
Clause 23 - Immediate circle
Amendment (19) will insert a
new definition of ‘tertiary education institution’ for the purposes
of Amendment (15). A tertiary education institution will include universities
and other higher education and technical and further education institutions
within the meaning of the Student and Youth Assistance Act
1973.
AMENDMENT (20)
Clause 25 - Simplified outline
Clause 25 of the Bill sets out a simplified outline of Part 2 of the Bill,
dealing with network units. Amendment (20) corrects a minor error in the first
dot point of the simplified outline, by replacing the word
‘Division’ with the word ‘Part’.
AMENDMENTS (21)–(23)
Clause 34 - When a base station is part of a terrestrial radiocommunications customer access network
Clause 31 of the Bill provides that a base station which is part of a
terrestrial radiocommunications customer access network is a designated
radiocommunications facility. Clause 34 establishes the rules by which it can
be determined whether a base station is part of a terrestrial
radiocommunications customer access network.
Amendments (21) – (23)
will amend clause 34 to exempt a base station from being part of a terrestrial
radiocommunications customer access network if the sole use of the base station
is use by a broadcaster to supply broadcasting services to the public or to
supply a secondary carriage service by means of the main carrier signal of a
primary broadcasting service, or both.
Note that it
is intended that the term ‘base station’ used in clause 34 have a
narrow interpretation confined to the transmitter unit used to broadcast the
broadcasting service and any ancillary service. It is not intended that a
broadcaster lose the exemption where facilities other than the transmitter (such
as the site, tower, mast or antenna) are shared between
broadcasters.
AMENDMENT (24)
Clause 42 - Network unit not to be used without carrier licence or
nominated carrier declaration
Clause 42(5) makes it an offence for a
person to contravene clause 42(1), (2), (3) or (4) which prohibit the use of
network units without a carrier licence or in accordance with a nominated
carrier declaration.
Clause 42(5) is to be amended to include a note
referring the reader to provisions of the Crimes Act 1914 relating to
penalty units, and converting terms of imprisonment to fines for individuals and
corporations. This is a minor technical drafting amendment.
AMENDMENT (25)
Clause 47 – Exemption – transport
authorities
As a result of Amendment (25), the exemption for
transport authorities from carrier licensing requirements contained in clause 47
of the Bill will be widened to enable a network to be used for a particular kind
of transport service by the transport authority concerned but not for all
transport services.
The exemption contained in clause 47 is too narrow.
This is because of the references in clauses 47(1) and (2) to services
‘for which the body is responsible’. For example, State run
railways are currently structurally separating their operations and in the
future there will be a greater number of private rail operators. Each needs to
be able to communicate with the other without the need to get a carrier licence
or have a nominated carrier declaration in place. The exemption in clause 47
would permit each rail corporation to operate its own network but not use that
of another structurally separate rail corporation without having a carrier
licence or nominated carrier declaration in place.
Amendment (25)
reconstructs clause 47(1) as new clauses 47(1) to (2B) to provide that clause 42
(which prohibits a network unit being used without a carrier licence or a
nominated carrier declaration being in force) does not apply to a network unit
if the sole use of the unit is use by:
(a) Airservices Australia to carry
communications necessary or desirable for the workings of aviation
services;
(b) the Australian National Railways Commission to carry
communications necessary or desirable for the workings of train
services;
(c) a State or Territory transport authority to carry
communications necessary or desirable for the workings of train services, bus or
other road services, or tram services of a kind provided by the
authority;
(d) a rail corporation to carry communications necessary or
desirable for the workings of train services.
The reference in paragraph
(c) above (reflected in clause 47(2A)) to services ‘of a kind provided by
the authority’ is intended to ensure, for example, that a State transport
authority supplying bus services can carry communications only for the purposes
of bus services, whether supplied by it or by another bus company.
In
addition, Amendment (25) reconstructs clause 47(2) as new clauses 47(2C) to (2F)
to provide that clause 42 does not apply to a network unit:
(a) if the
principal use of the unit is use by:
(i) Airservices Australia to carry
communications necessary or desirable for the workings of aviation
services;
(ii) the Australian National Railways Commission to carry
communications necessary or desirable for the workings of train
services;
(iii) a State or Territory transport authority to carry
communications necessary or desirable for the workings of train services, bus or
other road services, or tram services of a kind provided by the
authority;
(iv) a rail corporation to carry communications necessary or
desirable for the workings of train services; and
(b) the remaining use
of the unit is use by one or more carriers, or by one or more exempt
network-users, to supply carriage services and/or content services.
AMENDMENTS (26)–(27)
Clause 48 - Exemption - broadcasters
Clause 48 of the Bill is intended to enable broadcasters to continue to use
network units for certain purposes without becoming subject to the primary
prohibition in clause 42.
The exemption in clause 48 is too narrow
because it confers an exemption only in relation to specifically described
communications, which do not cover the entire class of communications undertaken
by broadcasters in order to prepare their signal for final delivery and do not
accommodate development of new technologies which may permit broadcasting in
different ways.
In addition, clause 48 requires the relevant network unit
to be used by a broadcaster to attract the exemption. In some cases, however,
broadcasters outsource broadcasting functions or they are undertaken by related
companies. The exemption should therefore require the relevant use to be for
provision of a broadcasting service, rather than use by a
broadcaster.
Furthermore, the drafting of clause 48 is not consistent
with that in clauses 47 and 49 which exempt network units used to carry
communications ‘necessary or desirable’ for the workings of
transport services or electricity management or charging for electricity supply.
To address these issues, Amendments (26) – (27) redraft clause 48
to provide a generic exemption for ‘pre-broadcast’
communications.
Clause 48(1) has been redrafted to provide that if the
sole use of a network unit is to carry communications that are necessary or
desirable for either or both of the following purposes:
• the
supply of broadcasting services to the public;
• the supply of a
secondary carriage service by means of the main carrier signal of a primary
broadcasting service; and
• the unit does not consist of, or
include, a facility used to carry communications between the head end of a cable
transmission system (as defined in clause 48(5) of the Bill) and the equipment
used by an end-user to receive a broadcasting service; and
• the
unit does not consist of a broadcasting transmitter (as defined in clause 48(5)
of the Bill) transmitting a signal of a broadcasting service to its intended
audience;
the prohibition in clause 42 does not apply to the
unit.
Clause 48(2) has been redrafted to provide that if the principal
use of a network unit is to carry communications that are necessary or desirable
for either or both of the following purposes:
• the supply of
broadcasting services to the public;
• the supply of a secondary
carriage service by means of the main carrier signal of a primary broadcasting
service; and
• the unit does not consist of, or include, a
facility used to carry communications between the head end of a cable
transmission system (as defined in clause 48(5) of the Bill) and the equipment
used by an end-user to receive a broadcasting service; and
• the
unit does not consist of a broadcasting transmitter (as defined in clause 48(5)
of the Bill) transmitting a signal of a broadcasting service to its intended
audience; and
• the remaining use of the unit is use by one or
more carriers, or by one or more exempt network-users (as defined in clause 7 of
the Bill), to supply carriage services and/or content services;
the
prohibition in clause 42 does not apply to the unit.
Amendment (27) will
amend clause 48(5) to remove the definition of ‘broadcaster’, which
is no longer required.
The heading to clause 48 will also be amended to
refer to ‘broadcasting services’ rather than
‘broadcasters’.
AMENDMENT (28)
New clause 65A - Conditions about Telstra’s ISDN
obligations
Division 3 of Part 3 of the Telecommunications Bill 1996
deals with the licensing of telecommunications carriers and, amongst things,
enables the Minister to declare licence conditions.
Amendment (28) amends
Division 3 of Part 3 by adding a new provision, clause 65A, after the existing
clause 65.
New clause 65A requires the Minister to ensure that
Telstra’s carrier licence is subject to one or more conditions relating to
the availability of ISDN-comparable digital data capability.
An
appropriate condition is currently being drafted for inclusion in
Telstra’s carrier licence.
The new provision derives from
Recommendation 13 of the Standard Telephone Service Review Group’s
Review of the Standard Telephone Service and related recommendations of
the Senate Environment, Recreation, Communications and the Arts Legislation
Committee, particularly Recommendation 9.3 of the Majority Report of the
Committee. In seeking to give effect to these recommendations, the Government
has had regard to Telstra’s commercial plans for network development and
product release.
Clause 65A is designed to hold Telstra to certain
targets for the commercial roll-out of ISDN with a view to providing the public
with certainty about Telstra’s offering and Telstra with certainty about
the Government’s expectations of it. As such, clause 65A is one means by
which the Government is seeking to progress the new object of the Bill, added by
Amendment (1), of facilitating access to ISDN-comparable digital data
capability.
Clause 65A(1) provides that the Minister must ensure that
Telstra’s carrier licence is subject to one or more conditions directed
towards achieving:
• the result that, by 1 July 1997, Telstra is in
a position to make available to at least 93.4% of the Australian population, a
carriage service that provides a digital data capability broadly comparable to
that provided by a data channel with a data transmission speed of 64 kilobits
per second supplied to end-users as part of the designated basic rate ISDN
service; and
• the result that, by 1 January 2000, Telstra is in a
position to make available to at least 96% of the Australian population, a
carriage service that provides a digital data capability broadly comparable to
that provided by a data channel with a data transmission speed of 64 kilobits
per second supplied to end-users as part of the designated basic rate ISDN
service.
The concepts of “digital data capability” and the
use of ISDN, particularly a customer channel of 64 kbps as a benchmark for this
capability, have been taken from the Standard Telephone Service Review
Group’s Review of the Standard Telephone Service (see, for example,
pp. 3, 4, 12, 40, 41, 44, 52-54, 56 and 166-167).
Consistent with the
Standard Telephone Service Review Group’s Review of the Standard
Telephone Service, the focus of the requirement is “digital data
capability”. To this end the required licence condition must have the
result that Telstra be in a position to provide a carriage service providing a
specific “digital data capability”. “Digital data
capability” is further defined by reference to certain existing
services.
The target of 93.4% availability of ISDN-comparable digital
data by 1 July 1997 is based on a target publicly announced by Telstra and
referred to in a press release by the Minister for Communications and the Arts,
Senator the Hon Richard Alston, on 25 September 1996. Appropriately, other
aspects of Telstra’s ISDN obligation are also based on Telstra’s
undertakings as reported in that press release, as these reflect Telstra’s
commercial plans. Accordingly, the level of ISDN digital data capability that
Telstra will be required to supply is a digital data capability broadly
comparable to that provided by a data channel with a data transmission speed of
64 kilobits per second, which is the data transmission capability of the service
discussed in the Minister’s press release. Consistent with the press
release, once ISDN is available to customers, Telstra would be expected to
supply the service within 90 days of request.
The target of 96%
availability of ISDN-comparable digital data by 1 January 2000 is based on
information provided to the Government in the course of negotiations with
Telstra. Availability to 96% of the population represents the likely maximum
that Telstra will achieve rolling-out ISDN on a commercial basis. As it is the
likely commercial maximum, it is not appropriate to require the Government to
require Telstra to provide greater availability under a licence condition. In
finalising the licence condition, the Government will, however, endeavour to
negotiate a higher availability target if it is commercially justifiable. In
the final analysis, though, the Government cannot, in the commercial,
competitive post-1997 environment, expect Telstra to supply service on a
non-commercial basis other than under the USO regime. Given the roll-out of
ISDN is commercially driven and an early date for achievement can be expected,
the Government has decided to set 1 January 2000 as a safeguard.
It is
not intended that Telstra should be penalised for breaching this licence
condition if it is delayed in the supply of such digital data capability by
other regulatory requirements, for example, requirements in relation to
interceptibility of services. This is a matter of detail that will be addressed
in the actual licence condition.
Clause 65A(2) defines ‘designated
basic rate ISDN service’ for the purposes of clause 65A. For the purposes
of the section, a service is a designated basic rate ISDN service
if:
• immediately before 1 July 1997, Telstra supplied a basic rate
Integrated Service Digital Network (ISDN) service; and
• the
service complied with any of the standards for ISDN services made by the
European Telecommunications Standards Institute (ETSI).
In requiring such
a licence condition to be imposed on Telstra, it is important for both customers
and Telstra to ensure that the digital data capability concerned is clearly
defined. In part this is achieved in clause 65A(1) by the references
to:
data capability broadly comparable to that provided by a data
channel with a data transmission speed of 64 kilobits per second supplied to
end-users as part of the designated basic rate ISDN.
Clause 65A(2)
further assists in this definitional process by defining designated basic rate
ISDN. To provide definitional certainty, the intention of clause 65A(2) is to
refer to a basic rate ISDN service that Telstra actually supplied immediately
before 1 July 1997, that service being Telstra’s ISDN service that is
compliant with an ETSI standard. Again, this was the service referred to in the
Minister’s press release of 25 September 1996. It is also understood
to be the service the Standard Telephone Service Review Group had in mind
when it referred to “ETSI ISDN” (eg. pp. 3, 12, 45). ETSI has
produced an extensive suite of standards in relation to ISDN and it is not
intended that the carriage service supplied by Telstra to provide the required
digital data capability need comply with those standards.
Clause 65A(3)
explains how the comparability of digital data capability is to be determined.
Clause 65A(3) provides that for the purposes of clause 65A, the determination of
the comparability of the digital data capability of a carriage service is to be
based solely on a comparison of the data transmission speed of the
service.
The idea of comparability is fundamental to the requirement to
be imposed on Telstra in that it is not intended that Telstra be required to
supply one specific product but rather that it be required to supply a product,
which may vary, but which falls within a particular range. This reflects the
view of the Standard Telephone Service Review Group which noted:
The
particular ways of supplying the digital data capability may have different
transmission and other characteristics from ISDN services but they must be able
to deliver digital data capability that is measurably superior to currently
available services [ie. plain old telephone services] and broadly consistent
with the ISDN benchmark (p.12).
It is understood that the Group was
concerned that other modes of delivering an acceptable digital data capability
should not be precluded, providing they essentially deliver the same
capability-based functionality. It is intended that Telstra should have the
same flexibility in fulfilling its ISDN licence condition. If it is more
practical for Telstra to deliver ISDN-comparable digital data capability by
satellite, albeit at a different data transmission speed, it should be able to
do so.
Clause 65A(3) provides that data transmission speed available to
an end-user should be the sole basis for determining the comparability of
digital data capabilities. This approach is consistent with the Review of
Standard Telephone Service Review. The Review Group was conscious, however,
that a particular data transmission rate underpinned a certain level of
functionality, in terms of speed (eg. download and response times) as distinct
from applications, which was important to an end-user. (Table 4.8b of the
Review of the Standard Telephone Service describes the functionality
enabled by different transmission speeds (pp.52, 54)). The focus on data
transmission speed also makes it clear that it is not intended that Telstra
provide particular facilities or functional capabilities that might be available
under the ETSI ISDN standards, other than those deriving directly from the
carriage service operating at the specified digital data
capability.
Clause 65A(4) provides that clause 65A does not, by
implication, limit the application of clause 63 of the Bill to Telstra. Clause
63 provides for the Minister to declare by written instrument that each carrier
licence or a specified carrier licence is subject to such conditions as are
specified in the licence. Accordingly, clause 65A(4) provides that the
requirement for a Telstra specific licence condition in relation to ISDN
availability does not affect the Minister’s powers to declare other
licence conditions in relation to Telstra under clause 63.
AMENDMENT (29)
Clause 66 of the Bill provides that carrier licence conditions have
effect subject to radiocommunications licence conditions. Amendment (29) will
add a new provision to the end of clause 66, based on s. 63(3) of the
Telecommunications Act 1991, to the effect that a condition of a licence
held by a carrier may remove or restrict a
right or privilege that the
carrier would otherwise have under a provision of the proposed
Telecommunications Act 1997 or the regulations. (Note that clause 7 of
the Bill provides that, unless the contrary intention appears, the words
‘this Act’ include the regulations.)
This will ensure that
Telstra’s licence condition can require it, for example, to supply
directory assistance services directly when clause 7(2)(b) of Schedule 2 could
be read as giving it the right to arrange with someone else to supply those
services.
As a result of Amendment (29), the heading to clause 66 will be
replaced by the heading ‘Carrier licence
conditions––special provisions’.
AMENDMENTS (30) and (31)
Clause 86 - Carriage service providers
Clause 86(3)
provides that if a carrier or exempt network-user supplies a carriage service to
the public using capacity acquired from exempt networks (as described in clauses
45 to 50 inclusive), then the carrier or exempt network-user is a carriage
service provider.
Amendment (30) makes a consequential amendment to
clause 86(3)(a)(ii) as a result of the proposed reworking of clause 47 (see
Amendment (25)) which provides a limited exemption for transport authorities
from carrier licensing requirements.
Amendment (31) makes a consequential
amendment to clause 86(3)(a)(iii) as a result of the proposed reworking of
clause 48 (see Amendments (26) and (27)) which will provide a limited exemption
for broadcasting services from carrier licensing requirements.
AMENDMENT (32)
Clause 91 - Exemption from definition - transport
authorities
Clause 91 exempts from the carriage service provider
definitions in clauses 86(1) and (2) carriage services used by Airservices
Australia, the Australian National Railways Commission, State and Territory
transport authorities and rail corporations, if the sole or principal use of the
carriage service is to carry communications necessary or desirable for the
workings of aviation services, train services, bus or other road services, or
tram services for which the body is responsible.
Consistent with the
changes made to clause 47 by Amendment (25), Amendment (32) will widen the
exemption from the service provider rules for transport authorities to enable a
network to be used for a particular kind of transport service by the transport
authority concerned.
AMENDMENTS (33) and (34)
Clause 92 - Exemption from definition - broadcasters
Clause 92
of the Bill is intended to exempt carriage services from the carriage service
provider definitions in clauses 86(1) and (2) if the sole or principal use of
the carriage service is to carry communications between broadcasting studios,
between a broadcasting studio and a broadcasting transmitter, or between a
broadcasting studio and the head end of a cable transmission system, for the
purpose of either or both supplying broadcasting services to the public, or
supplying a secondary carriage service by means of the main carrier signal of a
primary broadcasting service.
For reasons similar to those discussed in
relation to Amendments (26) and (27) (which amend clause 48), Amendments (33)
and (34) amend clause 92 to provide a generic exemption for
‘pre-broadcast’ communications.
Amendment (33) will redraft
clause 92(1) to provide that if the sole or principal use of a network unit is
to carry communications that are necessary or desirable for either or both of
the following purposes:
• the supply of broadcasting services to
the public;
• the supply of a secondary carriage service by means
of the main carrier signal of a primary broadcasting service;
and
• the communications are not carried between the head end of a
cable transmission system (as defined in clause 92(3) of the Bill) and the
equipment used by an end-user to receive a broadcasting service;
and
• the communications are not carried from a broadcasting
transmitter (as defined in clause 92(3) of the Bill) transmitting a signal of a
broadcasting service to its intended audience;
clauses 86(1) and (2),
dealing with the basic definition of carriage service provider and with
international carriage service providers, will not apply to the carriage
services.
Amendment (34) will amend clause 92(3) to remove the definition
of ‘broadcaster’, which is no longer required.
The heading
to clause 92 will also be amended to refer to ‘broadcasting
services’ rather than ‘broadcasters’.
AMENDMENTS (35)–(40)
Part 5 - Monitoring of the performance of carriers and service
providers
Part 5 of the Bill provides for the ACA to monitor and
report annually on carrier and service provider performance. Amendments (35) to
(40) will restrict the ACA to monitoring the activities of carriage service
providers. Part 5 will not require the ACA to monitor the activities of content
service providers. This will avoid content service providers being subject to
double monitoring - by the ACA under the proposed Act, as well as by the
Australian Broadcasting Authority under the Broadcasting Services Act
1992.
AMENDMENT (41)
Part 5 - Monitoring of the performance of carriers and service
providers
Clause 104 requires the ACA to monitor and report annually
on all significant matters relating to the performance of carriers and carriage
service providers. A number of matters are specifically identified in clause
104 as matters to be monitored and reported on.
Amendment (41) inserts
new clause 104(4A). New clause 104(4A) provides that the ACA must monitor, and
report each financial year on, the progress made by carriers and carriage
service providers towards achieving the object referred to in new paragraph
3(2)(aa), namely towards making a carriage service that provides digital data
capability comparable to an ISDN channel reasonably accessible to all people in
Australia. The amendment effectively identifies roll-out of ISDN-comparable
digital data capability as a particular matter that should be monitored and
reported on.
This amendment specifically responds to the third part of
Recommendation 10 of the Opposition Senators’ minority report that
“the Bill should also contain provisions to facilitate monitoring of the
industry’s progress in meeting this [digital data capability]
objective”.
AMENDMENT (42)
Part 5 - Monitoring of the performance of carriers and service
providers
Clause 104 requires the ACA to monitor and report annually
on all significant matters relating to the performance of carriers and carriage
service providers.
Amendment (42) amends clause 104(5), consequential to
amendment (41) to provide that the ACA must give a report under clause 104(4A)
(relating to the roll-out of ISDN-comparable digital data capability) to the
Minister as practicable after the end of each financial year.
AMENDMENT (43)
Part 5 - Monitoring of the performance of carriers and service
providers
Clause 104 requires the ACA to monitor and report
annually on all significant matters relating to the performance of carriers and
carriage service providers.
Amendment (43) amends clause 104(6),
consequential to amendment (41) to provide that the Minister must cause a copy
of a report under clause 104(4A) (relating to the roll-out of ISDN-comparable
digital data capability) to be laid before each House of Parliament within 15
sitting days of that House after receiving the report.
AMENDMENT (44)
Clause 112 - Examples of matters that may be dealt with by industry
codes and industry standards
This is a formal technical amendment
consequential to Amendment (45) - see the notes on Amendment (45).
AMENDMENT (45)
Clause 112 - Examples of matters that may be dealt with by industry
codes and industry standards
Clause 112(3)(f) sets out examples of
matters relating to privacy that may be dealt with by industry codes or industry
standards.
In his submissions to the Senate Legislation Committee, the
Acting Privacy Commissioner expressed concern that privacy in relation to
directory products and services should be identified as an example of a matter
that may be dealt with in codes and standards.
This amendment inserts a
new subparagraph (v) into clause 112(3)(f) that refers to the provision of
directory products and services as an example of a matter relating to privacy
that may be dealt with by and industry code or standard. ‘Directory
products and services’ include, for example, network-based directory
assistance services (eg. “013”) and printed telephone directories.
[It is envisaged that a code or standard in relation to such issues may deal
with the protection of unlisted (‘silent’) numbers.]
AMENDMENT (46)
Clause 114 - Industry codes and industry standards not to deal with
certain design features and performance requirements
Clause 114(2) provides an exception as to when the rule in clause 114(1) does not apply to an industry code or an industry standard.
Amendment (46) makes a minor technical amendment to clause 114(2)
consequential to amendment (47) which adds a further exception to the rule in
clause 114(1).
AMENDMENT (47)
Clause 114 - Industry codes and industry standards not to deal with
certain design features and performance requirements
During the
Senate Legislation Committee’s hearings, the Acting Privacy Commissioner
expressed concern that the rule in clause 114(1) would prevent industry codes
and industry standards dealing with privacy matters where a code or standard
would have the effect of requiring customer equipment, cabling, a
telecommunications network or a facility to have particular design
features.
Clause 114 is to be amended to insert a new clause 114(3) to
provide that the rule in clause 114(1) does not apply to a code or standard to
the extent to which it deals with a matter referred to in clause
112(3)(f).
Consequential to Amendment (47), amendments (52) and (54)
amend clauses 116 and Division 5 of Part 6 respectively to prevent the ACA
requiring a code to be developed or making a standard in relation to privacy
matters without regard to balancing the community benefits with the costs
involved. This is a safeguard against excessive regulatory intrusion (see
clause 111(2)).
AMENDMENT (48)
New clause 114A - Industry codes and industry standards not to deal
with matters dealt with by codes and standards under Part 9 of the Broadcasting
Services Act
Clause 114 provides that industry codes and standards
will have no effect to the extent that they require customer equipment, customer
cabling, a telecommunications network or a facility to have particular design
features or performance requirements except as specified in clause 114(2) or to
the extent they deal with the content of content services. This prevents
industry codes and standards being used for technical and content regulation
purposes which are dealt with in Part 21 of the Bill and the Broadcasting
Services Act 1992 respectively.
Amendment (48) inserts a new provision, clause 114A, to provide that an industry code or an industry standard that deals with a matter relating to a content service has no effect to the extent (if any) to which the matter is dealt with by a code registered, or a standard determined, under Part 9 of the Broadcasting Services Act 1992. It should be noted, in this regard, that codes of practice are registered under s. 123(4) of the Broadcasting Services Act 1992 and certain of the matters they deal with can overlap with matters which would be covered by codes under Part 6 of the Bill. For example, s. 123(k) of the Broadcasting Services Act 1992 provides for codes of practice developed by subscription broadcasting licensees to cover dealings with customers of the licensees, including methods of billing, fault repair, privacy and credit management.
This amendment addresses concerns on the part of the broadcasting industry that Part 6 codes and standards may be able to deal with matters covered by a code registered or a standard made under the Broadcasting Services Act, thereby creating multiple and possibly conflicting obligations.
It is important to note that the amendment will only limit the effect of a
Part 6 code or standard to the extent that matters such a code or standard
purports to deal with are matters dealt with under any code registered or
standard determined under the Broadcasting Services Act 1992.
AMENDMENT (49)
Clause 115 - Registration of industry codes
Clause 115 sets
out the process for ACA registration of industry codes.
Amendment (49)
amends clause 115(1) to replace the existing clause 115(1)(g) which provides
that the ACCC should not object to a code for it to be registered, with a new
paragraph requiring that the ACA should be satisfied that the ACCC has been
consulted about the development of a code for it to be registered. This
amendment means that the ACCC’s role in relation to draft codes is
consistent with that of other interested parties (ie. Telecommunications
Industry Ombudsman and the Privacy Commissioner) and consistent with its role in
relation to industry standards (see clause 130).
AMENDMENT (50)
Clause 115 - Registration of industry codes
Clause 115 sets
out the process for ACA registration of industry codes.
Amendment (50)
amends clause 115(1) to add a new criteria that must be met before the ACA can
register a draft code. The new criteria, set out in new clause 115(1)(ha) is
that the ACA is satisfied that a least one body or association that represents
the interests of consumers has been consulted about the development of the
code.
This provision is intended to ensure that consumer representatives
are involved in the earlier stages of code development. The amendment
specifically responds to the first recommendation of the Democrat
Senator’s minority report that “consideration should be given to
ensuring public consultation, or even consumer representative involvement, in
development of draft Codes”.
New clause 115(1)(ha) is not
intended to affect the existing requirement under clause 115(1)(f) for public
comment on a draft code and consideration of those comments.
AMENDMENT (51)
Clause 116 - ACA may request codes
Clause 116 provides for
the ACA to request industry to develop industry codes in certain
circumstances.
Amendment (51) amends clause 116(2) to extend the minimum
period the ACA must give an industry body or association to develop an industry
code from 90 days to 120 days. This minimum timeframe is seen as more
appropriate, given the requirement under clause 115(3) that an industry body or
association undertake at least 30 days public consultation on a draft industry
code.
AMENDMENT (52)
Clause 116 - ACA may request codes
Clause 116 enables the
ACA to request industry to develop industry codes in certain
circumstances.
This amendment is related to Amendments (46), (47) and
(54) and inserts a new clause 116(3A). Amendment (52) is consequential to
amendment (47), which provides that codes and standards relating to privacy
matters can have effect even though they may have the effect of requiring
particular design features or performance requirements (that is, notwithstanding
the rule in clause 114(1)).
New clause 116(3A) prevents the ACA
requesting an industry body or association to develop an industry code
if:
• the code would deal with a privacy matter (referred to in
paragraph 112(3)(f)); and
• compliance with the code would be
likely to have the effect (whether direct or indirect) of requiring customer
equipment, customer cabling, a telecommunications network or a facility to have
particular design features, or to meet particular performance
requirements;
unless the ACA is satisfied that the benefits to the
community from the operation of the code would outweigh the costs of compliance
with the code.
Clause 116(3A) is intended to counterbalance the widening
of clause 114 (through the new provision clause 114(3)) to enable codes and
standards to deal with privacy matters, even though they may require particular
design or performance requirements. As such the provision is a safeguard
against undue regulatory intervention and is consistent with the statement of
regulatory policy set out in clause 111. The intention is that the ACA should
only be able to request a code relating to privacy that would have the effect of
requiring particular design or performance requirements if the benefits of the
code will outweigh the costs of compliance. ‘Costs of compliance’ is
intended to refer to all costs of compliance, including infrastructure and
operational costs, not simply the administrative costs of complying with the
code.
Amendment (54) establishes a parallel safeguard in relation to Part
6 industry standards.
AMENDMENT (53)
Clause 116 - ACA may request codes
This amendment, which
relates to Amendment (51), amends clause 116(2) to make the example of an
indicative target for the preparation of a preliminary draft code ‘60
days’, rather than ‘30 days’. This period is a more realistic
indication of the time it would be expected to take to develop a preliminary
code.
AMENDMENT (54)
New clause 123A - Industry standards not to be determined for certain
privacy matters
Clauses 121 to 123 provide that the ACA may determine
industry standards in certain circumstances.
This amendment is related to
Amendments (46), (47) and (52) and inserts a new clause 123A. The new clause
will provide that the ACA may not determine an industry standard that deals with
a matter referred to in clause 112(3)(f) where compliance with the standard
would require customer equipment, cabling, a telecommunications network or
facility to have certain design features or to meet particular performance
requirements (paragraph (a)).
However, where the ACA is satisfied that
the benefits to the community from the operation of such a standard would
outweigh the costs of compliance with the standard, the ACA will be able to make
such an industry standard.
Clause 123A is intended to counterbalance
the widening of clause 114, through new clause 114(3), to enable codes and
standards to deal with privacy matters, even though they may require particular
design or performance requirements. As such, the provision is a safeguard
against undue regulatory intervention and is consistent with the statement of
regulatory policy set out in clause 111.
The intention is that the ACA
should only be able to make a standard relating to privacy that would have the
effect of requiring particular design or performance requirements if the
benefits of the standard will outweigh the costs of compliance. ‘Costs of
compliance’ is intended to refer to all costs of compliance, including
infrastructure and operational costs, not simply the administrative costs of
complying with the code.
This amendment strikes an appropriate balance
between the privacy interests that might be advanced by such a standard, and the
costs to carriers, carriage service providers, their customers and the wider
community from implementing such a standard.
Amendment (52) establishes a
parallel safeguard in relation to Part 6 industry codes.
AMENDMENT (55)
Clause 129 - Public consultation on industry
standards
Clause 129 sets out procedures the ACA is to follow in
undertaking public consultation on a draft industry standard.
Amendment (55) amends clause 129(1)(a)(ii) to require free copies of draft
standards to be available to the public, rather than require copies to be
available for inspection and purchase. The amendment, together with amendments
(57) and (59), is intended to facilitate public access to, and comment on, draft
industry standards and draft variations of standards.
AMENDMENT (56)
Clause 129 - Public consultation on industry
standards
Clause 129 sets out procedures the ACA is to follow in
undertaking public consultation on a draft industry standard.
Amendment (56) amends clause 129(1)(a)(ii) to require draft standards to be available for the period specified in the notice rather than for a period of 90 days. The amendment, together with amendments (58) and (60), is intended to allow the ACA to make draft standard documents available for an appropriate period having regard to the circumstances, rather than requiring the documents to be available for a mandatory 90 days, which may be unwarranted in some situations (for example, where a standard has been developed after the failure of a code, in which case there will already be a high level of public familiarity with the matters involved). This approach aligns the public consultation process for industry standards with that for draft industry codes under clause 115.
Amendment (60) requires that the period specified under clause 129(1)(a)(ii)
must run for at least thirty days.
AMENDMENT (57)
Clause 129 - Public consultation on industry
standards
Clause 129 sets out procedures the ACA is to follow in
undertaking public consultation on a draft industry standard.
Amendment
(57) amends clause 129(1)(a)(iii), consequential to Amendment (55), with the
effect that a notice should specify the place or places where free copies will
be available, rather than be available for inspection and purchase. The
amendment, together with amendments (55) and (59), is intended to facilitate
public access to, and comment on, draft industry standards and draft variations
of standards.
AMENDMENT (58)
Clause 129 - Public consultation on industry
standards
Clause 129 sets out procedures the ACA is to follow in
undertaking public consultation on a draft industry standard.
Amendment (58) amends clause 129(1)(a)(iv) to provide that interested persons
are to have the period specified in the notice under clause 129(1)(a)(ii) as the
period within which they are to given written comments about a draft standard,
rather than 90 days. (Amendment (60) requires that the period specified under
clause 129(1)(a)(ii) must run for at least thirty days.) The amendment,
together with amendments (56) and (60), is intended to allow the ACA to specify
an appropriate period within which it will accept written comments on a draft
standard available having regard to the circumstances, rather than requiring a
mandatory 90 days be available for comments, which may be unwarranted in some
situations (for example, where a standard has been developed after the failure
of a code, in which case there will already be a high level of public
familiarity with the matters involved.) This approach aligns the public
consultation process for industry standards with that for draft industry codes
under clause 115.
AMENDMENT (59)
Clause 129 - Public consultation on industry
standards
Clause 129 sets out procedures the ACA is to follow in
undertaking public consultation on a draft industry standard.
Amendment
(59) amends clause 129(1)(b), consequential to Amendments (55) and (57), with
the effect that copies of a draft standard should be available in accordance
with the notice, rather than be available for inspection and purchase. As a
result of Amendments (55) and (57), copies of the draft standards must be
available free of charge. These amendments are intended to facilitate public
access to, and comment on, draft industry standards and draft variations of
standards.
AMENDMENT (60)
Clause 129 - Public consultation on industry
standards
Clause 129 sets out procedures the ACA is to follow in
undertaking public consultation on a draft industry standard.
Amendment
(60) amends clause 129 by adding a new provision, clause 129(1A). Amendment
(60) is consequential to amendments (56) and (58), which provide that periods in
relation to public consultation on a draft standard should be those specified in
the relevant ACA notice, rather than a mandatory 90 days.
New clause
129(1A) provides that the period specified in clause 129(1)(a)(ii), which is the
period for which draft standard must be available and the period within which
the ACA must accept public comments on the draft standard, must run for at least
30 days after the publication of the notice. Clause 129(1A) therefore sets a
minimum period for public comment and acts as safeguard on public consultation.
This is the minimum period for consultation and aligns with that required under
clause 115 in relation to draft codes. The ACA is expected to set a longer
period for consultation where it considers 30 days is insufficient (for example,
where the public is unfamiliar with the matters covered in a draft standard or
where a draft standard significantly departs from a pre-existing
code).
New clause 131A - Consultation with consumer body
Division
5 of Part 6 provides for the ACA to make industry standards in certain
circumstances.
Amendment (61) amends Division 5 of Part 6 to add a new
provision, clause 131A. New clause 131A provides that before determining,
varying or revoking an industry standard, the ACA must consult at least one body
or association that represents the interests of consumers.
This provision
is intended to ensure that consumer representatives are involved in the earlier
stages of standard development. The amendment specifically responds to the
first recommendation of the Democrat Senator’s minority report that
“consideration should be given to ensuring public consultation, or even
consumer representative involvement, in development of draft
Codes”.
New clause 131A is not intended to affect the existing
requirements under clause 129 for public comment on draft standards.
AMENDMENT (62)
Clause 137 - Prescribed carriage services
Clause 137
provides that for the purposes of Part 7, a prescribed carriage service is a
carriage service specified in the regulations. Prescribed carriage services are
one of the three key components of the universal service obligation (USO) along
with the standard telephone service and payphones. By prescribing a carriage
service to be a prescribed carriage service, the carriage service is made part
of the USO and must be reasonably accessible to all people in Australia and
supplied on request.
Amendment (62) amends clause 137 by adding new
provisions, clauses 137(2) to 137(6), to require the Minister to cause a review
to be conducted, prior to 1 January 2000, to determine whether a carriage
service that provides ISDN-comparable digital data capability should be
specified as a prescribed carriage service and therefore made part of the
USO.
The new provision responds to Recommendation 13 of the Standard
Telephone Service Review Group’s Review of the Standard Telephone
Service and related recommendations of the Senate Environment, Recreation,
Communications and the Arts Legislation Committee, particularly Recommendation
9.3 of the Majority Report of the Committee.
New clause 137(2) provides
that before 1 January 2000, the Minister must cause to be conducted a review to
determine whether a carriage service that provides a digital data capability
broadly comparable to that provided by a data channel with a data transmission
speed of 64 kilobits per second supplied to end-users as part of the designated
basic rate ISDN service should be specified in regulations made for the purposes
of clause 137(1).
New clause 137(3) provides for the determination of the
comparability of digital data capability to be based solely on a comparison of
the data transmission speed available to an end-user of the service.
New
clause 137(4) provides that the Minister must cause a report of the review to be
prepared.
New clause 137(5) provides that the Minister must cause copies
of the report to be laid before each House of the Parliament within 15 sitting
days of that House after the completion of the preparation of the report. This
provision ensures the findings of the review are brought before the
Parliament.
New clause 137(6) provides that “designated basic rate
ISDN service” used in new clause 137(2) has the same meaning as in clause
65A of the Bill. Clause 65A provides that a service is a designated basic rate
ISDN service if:
• immediately before 1 July 1997, Telstra supplied
a basic rate Integrated Service Digital Network (ISDN) service;
and
• the service complied with any of the standards for ISDN
services made by the European Telecommunications Standards Institute
(ETSI).
Amendment (62) effectively provides a mechanism to require the
Minister to consider adding a carriage service providing ISDN-comparable digital
data capability to the USO. The consequence of defining such a service to be a
prescribed carriage service would be to make it part of the universal service
obligation.
Whether the Minister would add such a service to the USO as
part of the review would obviously depend on the outcome of the review. In this
context, the Standard Telephone Service Review Group (Review of Standard
Telephone Service, Chapter 7) considered such a service should be
made a prescribed carriage service “unless such prescription is not
necessary to achieve this objective” but recommended that prior to
confirming such an approach, the issue be assessed, applying four key
criteria:
• whether the services under consideration are of social
importance;
• the extent to which they are available in the
market;
• the costs of intervention through the USO mechanism; and
• whether the benefits of intervention outweigh the
costs.
Providing for possible inclusion of a carriage service providing
ISDN-comparable digital data capability in the USO is the third main way by
which the Telecommunications Bill will progress the new object in clause
3(2)(aa) which is to facilitate the making of a carriage service, that provides
digital data capability comparable to an ISDN channel, reasonably accessible to
all people in Australia as soon as practicable. Such an approach would
complement the licence condition to be placed on Telstra under new clause 65A,
that it be in a position to supply a carriage service providing ISDN-comparable
digital data capability to 96% of people in Australia by 1 January 2000. It is
intended that Telstra meet this condition by supplying ISDN on a commercial
basis. If 100% availability cannot be provided on a commercial basis, then it
would be appropriate to consider achieving that target under the USO.
By
referring in clause 137(2) to the same kind of carriage service referred to in
clause 65A (that is, a carriage service that provides a digital data capability
broadly comparable to that provided by a data channel with a data transmission
speed of 64 kilobits per second supplied to end-users as part of the designated
basic rate ISDN service), the Government has intentionally established a link
between the two provisions. The implication is that, in the first instance, the
carriage service that should be considered for inclusion in the USO by way of
the prescribed carriage service mechanism in clause 137, should be the same as
the one that Telstra has been required to supply under its licence condition.
This would provide continuity between the Telstra licence condition and the USO.
This does not mean, however, that another carriage service might be added to the
USO if the review found this to be more appropriate and the Government
agreed.
Amendment (62) requires that the review be conducted prior to 1
January 2000, rather than prior to 1 July 1998 as recommended by the Standard
Telephone Service Review Group and the Senate committee. The Government
considers that a further review so soon after that conducted by the Standard
Telephone Service Review Group will do little to confirm whether ISDN-comparable
digital data capability should be added to the USO. Moreover, the Government is
requiring Telstra to provide at least 96% availability by 1 January 2000,
thereby setting a firm target well in advance for the benefit of consumers and
Telstra alike. In this context, it is sensible for the Bill to give the
Minister flexibility as to when a review on this issue is conducted, providing
it is conducted by 1 January 2000.
AMENDMENT (63)
Clause 144 - Universal service obligations
Clause 144
defines the universal service obligation. In summary, the universal service
obligation is the obligation to ensure that standard telephone services,
payphones and prescribed carriage services are reasonably accessible to all
people in Australia and to supply standard telephone services and prescribed
carriage services on request and to supply, install and maintain
payphones.
Amendment (63) amends clause 144 by adding three new
provisions, clauses 144(8), (9) and (10).
New clause 144(8) provides that
an obligation does not arise under paragraph (2)(a) in relation to particular
customer equipment, goods or services the supply of which is treated under
clause 138 as the supply of a standard telephone service, if the customer
concerned requests not to be supplied with the customer equipment, goods or
services.
New clause 144(9) performs a similar function in relation to
clause 139. New clause 144(9) provides that an obligation does not arise under
paragraph 2(c) in relation to particular customer equipment, goods or services
the supply of which is treated under s. 139 as the supply of a prescribed
carriage service, if the customer concerned requests not to be supplied with the
customer equipment, goods or services.
These provisions have been added
to clause 144 to address concerns that, as previously drafted, a universal
service provider might technically fail to fulfil the USO if it failed to supply
the standard telephone service or a prescribed carriage service together with
all the items (customer equipment, goods and services) required to be supplied
in connection with those services, even though a customer may have asked not to
be supplied with one or more of those ancillary items. For example, the supply
of customer equipment has been open to competition since 1 July 1989 and a large
number of customers have purchased their own customer equipment. Many of these
customers may not wish to have customer equipment supplied with their standard
telephone service, particularly given an additional rental cost is involved.
The new provisions will enable these customers to say they do not want to be
supplied with a particular component of the standard telephone service or
prescribed carriage service and universal service providers will be able to
comply with their customers’ wishes without fear of contravening their
universal service obligation.
A customer would need to advise the
universal service provider that they did not wish to be supplied with an item
for the universal service provider to be released from its obligation to supply
the equipment, goods or services concerned. Failure by a customer to explicitly
request equipment, goods or services that are to be supplied as part of a
standard telephone service or a prescribed carriage service is not to be taken
as a request not to be supplied with those components. Nothing prevents a
universal service provider suggesting to a customer that the customer request
not to be supplied with particular equipment, goods or services.
To avoid
doubt, new clause 144(10) provides that an obligation arising under clause
144(2)(a) (which concerns the supply of standard telephone services to people in
Australia on request) in relation to customer equipment requires the customer
concerned to be given the option of hiring the equipment. This provision makes
it explicit that in supplying customer equipment for use in connection with a
standard telephone service (as provided for under clause 137), the universal
service provider must give the customer the option of hiring the equipment. The
provision does not preclude the universal service provider also fulfilling its
obligation in other ways (for example, by providing equipment for purchase)
providing it offers the option of hiring.
New clause 144(1) responds
specifically to the second recommendation of the Democrat minority report that
“the right to retain a rental handset should be explicitly a part of the
standard telephone service”.
AMENDMENT (64)
Clause 150 - Multiple national universal service
providers
Clause 150(1) of the Bill provides that the regulations may
authorise ‘a Minister’ to declare that 2 or more carriers are to be
national universal service providers. The reference to ‘a Minister’
should be to ‘the Minister’. Amendment (64) corrects this
typographical error.
AMENDMENT (65)
New clause 155A - Public comment - draft plan
Division 4 of
Part 7 requires universal service providers to develop and comply with universal
service plans which must be approved by the Minister.
Amendment (65)
amends Division 4 of Part 7 to insert a new provision, clause 155A, requiring a
universal service provider to undertake public consultation on a draft universal
service plan before submitting it to the Minister for approval.
This
provision is intended to ensure that the public has an opportunity to comment on
draft universal service plans as they are being developed. The amendment
specifically responds to the sixth recommendation of the Democrat
Senator’s minority report that public/consumer comment on universal
service plans should be required.
New clause 155A(1) requires that,
before giving the Minister a draft universal service plan under clause 155, a
universal service provider must:
• publish a preliminary version of
the draft plan and invite members of the public to make submissions to the
provider about the preliminary version within a specified period;
and
• give consideration to any submissions that were received
from members of the public within that period.
This provision provides a
mechanism for the public to comment on draft universal service plans and for the
public’s comments to be considered. A universal service plan sets out how
a universal service provider will progressively fulfil its USO (clause
153).
New clause 155A(2) requires that the period specified in the
invitation to comment must run for at least 30 days. This provides the public
with a guaranteed minimum period within which to make comments.
New
clause 155A(3) provides that clause 155A does not apply to a draft plan given to
the Minister in accordance with a direction under clause 155(3). Clause 155(3)
enables the Minister to direct a universal service provider to provide a fresh
draft universal service plan where the Minister refuses to approve an original
plan. Given that the Minister’s direction will take into account the
public comments which occurred in relation to the original plan and there are
timing pressures if a revised plan is required, it is not appropriate to require
public consultation in these circumstances.
New clause 155A(4) provides
that clause 155A does not apply to a draft plan given to the Minister in
accordance with a notice under clause 161. Clause 161 enables the Minister to
require a universal service provider to give the Minister a draft variation of a
current plan or draft replacement plan. Given that public consultation will
have occurred in relation to the original plan and there are timing pressures if
a revised plan is required, it is not appropriate to require public consultation
in these circumstances.
AMENDMENT (66)
New clause 159A - Public comment - variation of
plan
Division 4 of Part 7 requires universal service providers to
develop and comply with universal service plans which must be approved by the
Minister.
Amendment (66) amends Division 4 of Part 7 to insert a new
provision, clause 159A, requiring a universal service provider to undertake
public consultation on a variation of an approved universal service plan before
submitting the variation to the Minister for approval. As such, the amendment
parallels Amendment (65).
This provision is intended to ensure that the
public has an opportunity to comment on variations to approved universal service
plans. The amendment specifically responds to the sixth recommendation of the
Democrat Senator’s minority report that public/consumer comment on
universal service plans should be required.
New clause 159A(1) requires
that, before giving the Minister a draft variation to a universal service plan
under clause 159, a universal service provider must:
• publish a
preliminary version of the draft variation and invite members of the public to
make submissions to the provider about the preliminary version within a
specified period; and
• give consideration to any submissions that
were received from members of the public within that period.
This
provision provides a mechanism for the public to comment on draft variations to
universal service plans and for the public’s comments to be
considered.
New clause 159A(3) provides that clause 159A does not apply
to a draft variation given to the Minister in accordance with a notice under
clause 161. Clause 161 enables the Minister to require a universal service
provider to give the Minister a draft variation of a current plan or draft
replacement plan. Given that public consultation will have occurred in relation
to the original plan and there are timing pressures if a revised plan is
required, it is not appropriate to require public consultation in these
circumstances.
AMENDMENT (67)
Clause 182 - Participating carriers must lodge returns of eligible
revenue
Clause 182(4) makes it an offence for a person to contravene
clause 182(1) which requires each carrier to lodge a return with the ACA within
90 days of the end of each financial year setting out the carrier’s
eligible revenue for that last financial year.
Clause 182(4) is to be
amended to include a note referring the reader to provisions of the Crimes
Act 1914 relating to penalty units, and converting terms of imprisonment to
fines for individuals and corporations. This is a minor technical drafting
amendment.
AMENDMENT (68)
Subdivision D - Disclosure by the ACA of information about the basis
and methods of an assessment
Subdivision 6D of Part 7 currently deals
with the disclosure by the ACA of information about the basis and methods of a
USO assessment.
Amendment (68) amends the title of Subdivision 6D to
read: “Disclosure by the ACA of information about decisions relating to
net costs areas and assessments”. This amendment is consequential to
Amendments (69) to (74) to clauses 191 and 192 which widen the scope of the
disclosure provisions.
Amendments (68) to (74) to Subdivision 6D of Part
7 specifically respond to Recommendation 2.14 of the Majority Report of the
Senate Committee which, amongst other things, recommended that “Part 7 of
the Telecommunications Bill 1996 be amended to ensure that “eligible
persons” for the purposes of clause 192 may request information in
relation to an ACA decision to declare an area a net cost
area”.
AMENDMENT (69)
Clause 191 - Public may request information
Clause 191
provides that the public may request information about the basis and methods of
a USO assessment.
Amendment (69) is a technical drafting amendment
consequential to Amendment (70).
AMENDMENT (70)
Clause 191 - Public may request information
Clause 191
provides that the public may request information about the basis and methods of
a USO assessment, subject to certain commercial confidentiality
requirements.
Amendment (70) amends clause 191 to insert a new paragraph
in clause 191(1) providing that a person may also request the ACA to make
available to the person specified information or documents relating to a
decision by the ACA under clause 172 or proposed new clause 172B (see request 3)
to declare an area as a net cost area for a financial year.
Amendment
(70), together with Amendments (69) and (71)-(73), are intended to provide the
public with access to information in relation to the declaration of net cost
areas, subject to commercial confidentiality requirements. Net cost areas are
areas in which a universal service provider expects to make a loss and will
therefore seek compensation. As net cost areas are a fundamental determinant of
total USO costs, it is appropriate that such information be available for
scrutiny by the public, subject to commercial confidentiality safeguards, and
other participating carriers, subject to alternative safeguards. The amendments
address industry concerns about a lack of information about the declaration of
net cost areas and thus the basis of USO costs.
AMENDMENT (71)
Clause 192 - Request for information that is unavailable under section
191
Clause 192 provides that an eligible person,
(ie. a universal service provider or a participating carrier) in relation to a
financial year may request the ACA to make available specified information or
documents of a kind referred to in s.191(1) that s.191(3) prevents the ACA from
making available to such a person under s. 191.
Amendment (71), together
with Amendments (68) and (69), provide for the ACA to make available to an
eligible person information not available under clause 191 relating to the
declaration of an area to be a net cost area.
Amendment (71) amends
clause 192(4)(d) to make the provision apply only to requests under clauses
191(1)(a) and (b), but not the new clause 191(1)(c) inserted by Amendment (70).
New clause 192(4)(e) to be inserted by Amendment (73) applies to requests under
clause 191(1)(c).
AMENDMENT (72)
Clause 192 - Request for information that is unavailable under section
191
Clause 192 provides that an eligible person (ie. a universal
service provider or a participating carrier) in relation to a financial year may
request the ACA to make available specified information or documents of a kind
referred to in s.191(1) that s.191(3) prevents the ACA from making available to
such a person under s. 191.
Amendment (72) is a technical drafting
amendment consequential to Amendment (73).
AMENDMENT (73)
Clause 192 - Request for information that is unavailable under section
191
Clause 192 provides that an eligible person (ie. a universal
service provider or a participating carrier) in relation to a financial year may
request the ACA to make available specified information or documents of a kind
referred to in s. 191(1) that s.191(3) prevents the ACA from making available to
such a person under s. 191.
Amendment (73) inserts a new provision,
clause 192(4)(e) in clause 192(4) providing that, the ACA must not make
available to a requesting eligible person information in relation to the
declaration of a net cost areas requested under new clause 191(1)(c) unless,
amongst other things, the ACA is satisfied that:
• the eligible
person requesting the information (the first eligible person) has made the
request in good faith for the sole purpose of informing itself about the basis
on which, or the methods by which, the ACA made the decision to make the
declaration concerned; and
• having regard to the policy
principles in clause 134, the first eligible person’s interest in being
able to examine that decision outweighs the interests of the person to whom the
information relates in avoiding substantial harm to their commercial or other
interests.
Amendment (73) will enable universal service providers and
participating carriers to have greater access to information relating to the
declaration of net cost areas than is available to the general public,
reflecting their direct financial stake in the USO process. Their access to
such information is, however, subject to the conditions set out in the
amendments with a view to protecting the commercial confidentiality of the
person to whom the request relates.
AMENDMENT (74)
Clause 192 - Request for information that is unavailable under section
191
Clause 192 provides that an eligible person (ie. a universal
service provider or a participating carrier) in relation to a financial year may
request the ACA to make available specified information or documents of a kind
referred to in s. 191(1) that s.191(3) prevents the ACA from making available to
such a person under s. 191.
Amendment (74) inserts new provisions,
clauses 192(5), (6) and (7), in clause 192 requiring the ACA to have regard to
whether a person seeking information under clause 192 has given an undertaking
about non-disclosure of that information.
This amendment specifically
responds to Recommendation 2.14 of the Majority Report of the Senate Committee
which, amongst other things, recommended that the ACA “should be given the
discretion to release information which would otherwise be considered
confidential if it seeks and receives undertakings, such as solicitor’s
undertakings, that the information will not be divulged to any person other than
those specified in the undertaking.
New clause 192(5) provides that the
ACA, in determining the question referred to in clause 192(4)(b) (that is,
whether the making available of a document or information to an eligible person
requesting such a document or information can reasonably be expected to cause
substantial damage to the commercial or other interests of the eligible person
supplying the document or information), must have regard
to:
• whether any undertakings concerning non-disclosure of
information by a recipient, have been given under clause 192(6); and
• such other matters (if any) as the ACA considers
relevant.
New clause 192(6) provides that for the purposes of clause 192,
a person may give the ACA a written undertaking that, in the event that
specified information, or the whole or part of a specified document, is made
available to the person under this clause, the person will not disclose the
information, or the contents of the document, except to one or more specified
persons. It is envisaged that such an undertaking might restrict access to a
document or information to persons such as an eligible person’s’
accountant, solicitor or finance director, however, the persons specified in an
undertaking are ultimately a matter for the person giving the undertaking. It
is up to the ACA to determine whether the persons specified are
appropriate.
New clause 192(7) provides that if a person gives an
undertaking under clause 192(6), the person must comply with the
undertaking.
AMENDMENT (75)
Clause 224 - Performance standards
Clause 224 provides for
the ACA to make performance standards for the purposes of the Customer Service
Guarantee.
Amendment (75) amends clause 224(1)(e) consequential to
Amendment (76) which adds a new provision, clause 224(1)(f).
AMENDMENT (76)
Clause 224 - Performance standards
Clause 224(1) gives the
ACA the power to make standards to be complied with by carriage service
providers in relation to:
(a) the making of arrangements with customers
about the period taken to comply with requests to connect customers to specified
kinds of carrier services;
(b) the periods that carriage service
providers may offer to customers when making the above arrangements;
(c) compliance by carriage service providers with the terms of those
arrangements;
(d) the period taken to comply with requests to rectify
faults or service difficulties relating to specified kinds of carriage services;
and
(e) the keeping of appointments to meet customers (or their
representatives, eg. family members) about such connections and rectifications.
In order to reflect amendments made by the Senate to the Telstra
(Dilution of Public Ownership) Bill 1996, Amendment (76) will add a new clause
224(1)(f) to enable the ACA to make standards in relation to ‘any other
matter concerning the supply, or proposed supply, of a carriage service to a
customer’. This approach differs from the previous version by making it
clear that the matters about which standards may be made under the customer
service guarantee must relate to the supply of carriage services to customers
and accordingly cannot be matters wholly unrelated to
telecommunications.
AMENDMENT (77)
Clause 226 - Scale of damages for breach of performance
standards
Clause 226 provides that the ACA may specify a scale of
damages for contraventions of standards by carriage service providers under
clause 224. In order to reflect amendments made by the Senate to the Telstra
(Dilution of Public Ownership) Bill 1996, Amendment (77) will increase the
maximum amount of damages payable for contraventions covered by each specified
category of contraventions of performance standards from $3,000 to
$25,000.
AMENDMENTS (78)–(80)
Clause 229 - Savings of other laws and remedies
Clause 229
of the Bill is intended to ensure that Part 9 of the Bill, dealing with the
customer service guarantee, is not interpreted as excluding, limiting,
restricting or affecting any right a person may otherwise have under
Commonwealth, State or Territory or common law where a carriage service provider
fails to comply with a performance standard.
Amendments (78) and (79)
replace incorrect references in clause 229 to ‘this Division’ by
references to ‘this Part’.
In order to reflect amendments
made by the Senate to the Telstra (Dilution of Public Ownership) Bill 1996,
Amendment (80) will insert new clauses 229(3) and (4) to provide that Part 9
does not limit, restrict or otherwise affect the operation of the
Telecommunications Industry Ombudsman scheme. It will also provide that, in
particular, Part 9 does not affect a customer’s right to complain to the
Telecommunications Industry Ombudsman.
AMENDMENT (81)
Clause 235 - Eligible carriage service providers
Clause 235
defines who is an eligible carriage service provider for the purposes of Part 10
and therefore required to enter into the Telecommunications Industry Ombudsman
scheme.
Amendment (81) amends clause 235(a) to make a carriage service
provider who supplies a carriage service that enables end-users to access the
Internet an eligible carriage service provider for the purposes of Part 10.
This amendment addresses concerns that, with the rapid growth in the use of the
Internet, persons providing access to the Internet should be required to be
members of the TIO scheme, thereby giving customers the protection afforded by
the scheme.
AMENDMENT (82)
Clause 255 - Provision of emergency call services
Clause
255 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. Clause 255(2) sets out the objectives that the ACA
must have regard to in making a determination under clause 255(1).
Clause 255 is to be amended in the following manner:
• to clarify the obligation to provide emergency call services to end-users;
• to clarify the issue of funding of emergency call services; and
• to require the ACA to have regard to additional objectives.
Obligation to provide emergency call services
As introduced, clause 255(2)(a) states that the ACA must have regard to the objective that each end-user of a standard telephone service should have direct access, free of charge, to an emergency call service, unless the ACA considers it would be unreasonable to provide such access.
Clause 255(2)(a) is to be replaced by a new paragraph which makes it clear that the obligation to ensure that end-users have access to emergency call services is to be placed on the carriage service provider supplying the standard telephone service to the end-user concerned. The reference to ‘direct’ access is to be removed to allow for arrangements where access is provided using services supplied by another carrier or carriage service provider.
Funding of emergency call services
Part 12 as introduced is silent on the issue of the funding of emergency call services. The proposed amendment to clause 255 makes it clear that in making a determination under clause 255(1), the ACA must have regard to the objectives that emergency service organisations should not be responsible for the cost of:
• the carriage services used to connect calls and transmit the related information from customers of the carriage service provider to an emergency call service;
• the services of the recognised person who operates the emergency call service for receiving and handling the calls to an emergency service number; and
• the carriage services used to transfer the emergency call and related information to the relevant emergency service organisation from the emergency call service.
It is anticipated that the terms and conditions under which the cost of providing access for end-users to emergency call services will continue to be resolved by the industry. However, proposed new clause 256A (see below) will allow for arbitration where commercial negotiation breaks down. New clause 256B (see below) will allow for a Ministerial pricing determination in relation to the provision of access to emergency call services to end-users.
It should be noted that the relevant provisions of the previous Telecommunications Act 1991 and subordinate instruments do not set out arrangements for the funding of emergency call services. However, the telecommunications industry has negotiated funding for emergency call handling on a commercial basis as part of general access agreements.
ACA must have regard to certain objectives in making a determination
Clause 255(2) is to be amended to require the ACA, in making a determination under clause 255, to have regard to a number of additional objectives to those previously set out in clause 255(2).
These additional objectives are:
• that, as far as practicable, a common system is used for the transferring of emergency calls and related information;
• that calls made to an emergency service number are transferred to an appropriate emergency service organisation with the minimum of delay;
• that from the perspective of end-users, there appears to be a single national emergency call system; and
• that reasonable community expectations for the handling of calls to emergency service numbers are met.
The new objectives are intended to ensure that any determination made by ACA
provides for, as far as practicable, a uniform, national system for the transfer
of emergency calls and related information to an emergency service organisation
for the benefit of recognised persons operating an emergency call service,
emergency service organisations and end-users.
AMENDMENT (83)
Clause 255 - Provision of emergency call services
Clause
255 allows the ACA to impose requirements on carriers, carriage service
providers and emergency service organisations in relation to the provision of
emergency call services. Clause 255 as introduced does not specify what type of
requirements the ACA could impose on the persons listed in clause 255(1).
Proposed new clause 255(4A) provides that requirements imposed by the ACA under
clause 255(1) may include, but are not limited to, performance requirements
relating to:
• the answering of an emergency call from an end-user;
• the delay in transferring emergency calls to the relevant emergency service organisation;
• handling of complaints relating to an emergency call
service.
AMENDMENT (84)
Clause 255 - Provision of emergency call services
Clause
255(7) as introduced requires the ACA to consult with carriers, carriage service
providers, recognised persons who operate an emergency call service and
emergency service organisations prior to making a determination under clause
255(1). This amendment amends clause 255(7) to require the ACA to consult with
representatives of consumers of standard telephone services in addition to those
groups already listed.
AMENDMENT (85)
Clause 255 - Provision of emergency call services
This
amendment inserts a new clause 255(7A) to allow a carriage service provider to
arrange with another person to meet the obligation to provide access to an
emergency call service as set out in amended clause 255(2).
AMENDMENT (86)
Clause 255 - Provision of emergency call services
This is a
minor technical amendment consequential to Amendment (87).
AMENDMENT (87)
Clause 255 - Provision of emergency call services
This
amendment amends the definition of “emergency call organisation” in
clause 255(8) to include reference to a third party providing a despatch service
for emergency service organisations. This ensures consistency with the proposed
new definition of ‘emergency call service’ to be substituted by
Amendment (6).
AMENDMENT (88)
Clause 256 - Compliance with determination
This is a minor
technical amendment consequential to Amendment (89).
AMENDMENT (89)
New clause 256A - Access to emergency call services
New
clause 256A allows for the arbitration of disputes between carriage service
providers and recognised persons operating an emergency call service. Amended
clause 255(2) makes it clear that carriage service providers supplying the
standard telephone service must provide end-users of that standard telephone
service with access, free of charge, to an emergency call service. Amended
clause 255(2) makes it clear that an emergency service organisation should not
be responsible for the costs of providing access to an emergency call service.
Where a carriage service provider is required to provide such access,
the terms and conditions under which this access is provided will be determined
by commercial agreements between carriage service providers and the recognised
person operating the emergency call service. Where these parties are unable to
agree on the terms and conditions, the terms and conditions shall be those
determined by an arbitrator appointed by the parties. If the parties fail to
agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.
The results of any arbitration made under new clause 256A must not be
inconsistent with a Ministerial pricing determination in force under clause 256B
(see Amendment (90) below).
AMENDMENT (90)
New clause 256B - Ministerial pricing determinations
New
clause 256B gives the Minister the discretion to make a written determination
setting out principles in relation to the price-related terms and conditions
under which access to an emergency call service is provided to end-users of the
standard telephone service. A determination made under clause 256A may not be
inconsistent with a Ministerial pricing determination under clause 256B. The
power to make a written determination is discretionary and will only be
exercised where commercial negotiations are unable to resolve the terms and
conditions under which the costs of providing emergency call services are
allocated.
AMENDMENT (91)
Clause 258 - Simplified outline
This
amendment is a formal technical drafting amendment consequential to Amendment
(92) - see the notes on Amendment (92).
AMENDMENT (92)
New clause 259A - Number-database operator and eligible
number-database person
This amendment inserts a new clause 259A to
define two new terms: ‘number-database operator’ and ‘eligible
number-database operator’. Both these terms relate to Amendment (96)
which introduces a new offence for such operators to disclose or use information
or documents relating to carriage services or another person’s
particulars.
A ‘number-database operator’ means a person who
is determined by the Minister under clause 456 to be the operator of the
integrated public number database.
An ‘eligible number-database
operator’ means a person who is a number-database operator, their employee
or contractor, or such a contractor’s employee.
AMENDMENT (93)
New clause 261A - Number-database contractor
This amendment
inserts a new clause 261A to define a new term ‘number-database
contractor’. This amendment relates to Amendments (92) and (96). A
‘number-database contractor’ means a person who performs services
for or on behalf of a number-database operator (defined in new clause 259A
inserted by Amendment (92)), but does not include such a person who performs the
services as an employee of the operator.
AMENDMENT (94)
Clause 262 - Primary disclosure/use offence - eligible
persons
This amendment numbers the existing note to clause 262(3) as
‘Note 1’. This is a minor amendment consequential to Amendment (95)
below - see the notes on Amendment (95).
AMENDMENT (95)
Clause 262 - Primary disclosure/use offence - eligible
persons
Clause 262(3) makes it an offence for a person to contravene
clause 262(1) or (2) which prohibit eligible persons, or persons who have been
eligible persons, from disclosing or using information or documents relating to
the carriage of communications over a carriage service.
Clause 262(3) is
to be amended to include a second note referring the reader to provisions of the
Crimes Act 1914 relating to penalty units, and converting terms of
imprisonment to fines for individuals and corporations. This is a minor
technical drafting amendment.
AMENDMENT (96)
New clause 262A - Primary disclosure/use offence - eligible
number-database persons
This amendment inserts a new clause 262A to
make it an offence for a person, who is determined by the Minister under clause
456 to be the operator of the integrated public number database, to disclose or
use information or a document, relating to the supply of carriage services or to
the affairs or personal particulars of another person, that is obtained by the
person in the course of operating that database (new clause 262A(1)).
The
offence applies to an eligible number-database person, which, under proposed
clause 259A(2), includes the operator’s employees, contractors and
employees of the contractors.
The amendment also includes the same
offence for a person who has been an eligible number-database person (new clause
262A(2)).
The penalty for breach of these offences is imprisonment for a
maximum of 2 years (new clause 262A(3)).
Clause 262 includes a similar
offence in relation to ‘eligible persons’, a term that includes
Telstra who would be the operator of the database where the Minister does not
make a determination under clause 456. However, ‘eligible persons’
does not include a person determined under clause 456. It is therefore
necessary to include a separate offence provision in relation to any such person
the Minister may determine under clause 456.
AMENDMENT (97)
Clause 263 - Primary disclosure/use offence - emergency call
persons
This amendment numbers the existing note to clause 263(3) as
‘Note 1’. This is a minor amendment consequential to Amendment (98)
below - see the notes on amendment (98).
AMENDMENT (98)
Clause 263 - Primary disclosure/use offence - emergency call
persons
Clause 263(3) makes it an offence for a person to contravene
clause 263(1) or (2) which prohibit emergency call persons, or persons
who have been emergency call persons, from disclosing or using
information or documents relating to the operation of an emergency call
service.
Clause 263(3) is to be amended to include a second note
referring the reader to provisions of the Crimes Act 1914 relating to
penalty units, and converting terms of imprisonment to fines for individuals and
corporations. This is a minor technical drafting amendment.
AMENDMENT (99)
Clause 264 - Performance of person’s duties
This
amendment is consequential to Amendment (96) which inserts a new primary
disclosure offence in relation to an eligible number-database operator. Clause
264 provides an exemption from the offences in Division 2 for disclosures in the
performance of a person’s duties. This amendment creates an equivalent
exemption to apply to the new offence.
AMENDMENT (100)
Clause 265 - Authorisation by or under law
This
amendment relates to Amendment (104) which excludes the content or the substance
of communications from access by an enforcement agency (defined in clause 267(7)
to mean a law-enforcement, civil penalty-enforcement or public revenue agency)
through the certification scheme under clause 267. The policy intention is that
such information only be accessible under the authority of a
warrant.
This amendment omits the current clause 265 and substitutes a
new clause 265 to provide that the primary disclosure or use offence provisions
in Division 2 of Part 13 do not apply where the disclosure or use is made in
connection with the operation of an enforcement agency (which has the same
meaning as in clause 267(7) - see new clause 265(2)) under the authority of a
warrant (new clause 265(1)(a)), or in other cases where the disclosure or use is
required or authorised by or under law (new clause 265(1)(b)).
AMENDMENT (101)
Clause 267 - Law enforcement and protection of the public
revenue
This is a technical amendment consequential to the
creation of the new offence in clause 262A by Amendment (96).
AMENDMENT (102)
Clause 267 - Law enforcement and protection of the public
revenue
This is a technical amendment consequential to the
creation of the new offence in clause 262A by Amendment (96).
AMENDMENT (103)
Clause 267 - Law enforcement and protection of the public
revenue
This is a technical amendment consequential to the
creation of the new offence in clause 262A by Amendment (96).
AMENDMENT (104)
Clause 267 - Law enforcement and protection of the public
revenue
This amendment inserts new clauses 267(5A), (5B) and
(5C).
New clause 267(5A) will provide that the certification scheme under
clauses 267(3), (4) and (5), whereby information or documents may be disclosed
or used if an authorised officer of an enforcement agency has certified that the
disclosure or use is reasonably necessary for enforcement purposes, does not
apply to information relating to the content or substance of a communication
that has been carried by a carrier or carriage service provider.
The
insertion of new clause 267(5A) relates to Amendment (100) and accords with the
policy approach reflected in the Telecommunications (Interception) Act
1979 that the content of communications should be protected unless access is
authorised under a warrant (Amendment (100) amends clause 265 to allow
disclosure or use for enforcement purposes where a warrant authorises the
disclosure or use).
New clause 267(5B) requires a certificate issued by
an authorised enforcement officer under clause 267(3), (4) or (5) to comply with
requirements determined by the ACA.
New clause 267(5C) requires the ACA
to consult the Privacy Commissioner when determining the requirements of such a
certificate.
Clause 267 - Law enforcement and protection of the public
revenue
This is a formal technical amendment consequential to
Amendment (106).
AMENDMENT (106)
Clause 267 - Law enforcement and protection of the public
revenue
This amendment inserts a new paragraph (h) into the
definition of ‘criminal-law enforcement agency’ in clause 267)(7) to
include a body or organisation (including the National Exchange of Police
Information) responsible to the Australasian Police Ministers’ Council for
the facilitation of national law enforcement support. This amendment will allow
other organisations, such as the Australian Bureau of Criminal Intelligence,
which are established, or perform functions, to provide common services to
police forces and other intelligence agencies across Australia, to participate
in the certification scheme provided by clauses 267(3), (4) and (5).
AMENDMENT (107)
Clause 269 - Assisting the ACA, the ACCC or the Telecommunications
Industry Ombudsman
This is a technical amendment consequential to the
creation of the new offence in clause 262A by Amendment (96).
AMENDMENT (108)
Clause 269 - Assisting the ACA, the ACCC or the Telecommunications
Industry Ombudsman
This is a technical amendment consequential to the
creation of the new offence in clause 262A by Amendment (96).
AMENDMENT (109)
Clause 269 - Assisting the ACA, the ACCC or the Telecommunications
Industry Ombudsman
This is a technical amendment consequential to the
creation of the new offence in clause 262A by Amendment (96).
AMENDMENT (110)
Clause 270 - Integrated public number database
This is a
technical amendment consequential to the creation of the new offence in clause
262A by Amendment (96).
AMENDMENT (111)
Clause 270 - Integrated public number database
This is a
formal technical amendment consequential to Amendment (112).
AMENDMENT (112)
Clause 270 - Integrated public number database
This
amendment inserts new clause 270(1)(c)(iii) to allow disclosure of information
or a document from the integrated public number database for the purposes of
dealing with matters raised by a call to an emergency service
number.
AMENDMENT (113)
Clause 270 - Integrated public number database
This
amendment is a formal technical amendment consequential to Amendment (178) which
removes the possibility of an association being determined by the Minister under
clause 456 to be the operator of the integrated public number
database.
AMENDMENT (114)
Clause 271 - Calls to emergency service number
This is a
formal technical amendment consequential to Amendment (115).
AMENDMENT (115)
Clause 271 - Calls to emergency service number
Clause
271(c) provides an exception to the disclosure offences for emergency calls.
Clause 271(c) provides an exception where the disclosure is made to a member of
an emergency service organisation. This amendment amends clause 271(c) to
ensure that relevant information can be disclosed to a third party performing a
despatch service for emergency service organisations without committing an
offence.
AMENDMENT (116)
Clause 277 - Circumstances prescribed in the
regulations
This is a technical amendment consequential to Amendment
(96) which inserts a new primary disclosure or use offence provision at new
clause 262A in relation to the operator of the integrated public number database
determined by the Minister under clause 456.
This amendment inserts a new
clause 277(1A) to provide that the new offence does not prohibit a disclosure or
use in circumstances specified in the regulations.
AMENDMENT (117)
Clause 278 - Use connected with exempt disclosures
This is
a formal technical amendment consequential to Amendment (96) which inserts a new
primary disclosure or use offence provision at new clause 262A in relation to
the operator of the integrated public number database determined by the Minister
under clause 456.
This amendment inserts a new clause 278(1A) to provide
that the new offence does not prohibit a disclosure or use if the disclosure or
use is made for the purposes of, or in connection with a disclosure otherwise
authorised by Division 3 of Part 13. This is to ensure that administrative uses
or disclosures, made to facilitate a disclosure or use that is exempted under
Division 3 from the prohibitions in Division 2, are not caught by those
prohibitions.
AMENDMENT (118)
Clause 280 - Burden of proof
This amendment has been made
in response to concerns of the Senate Standing Committee for the Scrutiny of
Bills raised in their Alert Digest No. 1 of 1997. Clause 280(1) as introduced
provided that for the purposes of determining the persuasive burden of proof for
prosecutions for an offence against Division 2 of Part 13, the exceptions
provided in Division 3 are taken to be part of the description of the offence.
The consequence of this is that the prosecution will have the burden of proving
that an exception does not apply in the case being prosecuted. (The evidential
burden of adducing or pointing to evidence that suggests a reasonable
possibility that the exception exists in relation to the case would lie with the
defendant (clause 280(2))).
However, this persuasive burden of proof was
not applied to the exception provided under clause 272 which allowed a
disclosure or use of information or document where the person believes on
reasonable grounds that the disclosure or use was reasonably necessary to
prevent or lessen a serious and imminent threat to the life or health of a
person. The consequence of this would be that a person accused of breaching
Division 2, who wanted to rely on the exception provided by clause 272 as a
defence, would have to raise it in defence and would have the burden of proving
that the exception applied at the time of the alleged offence. The reason this
exception was treated differently was because it was considered that matters
crucial to determining such an issue would have been peculiarly within the
knowledge of the defendant and would have been too difficult or costly for the
prosecution to establish.
The Senate Committee expressed the view that
treating the exception provided by clause 272 in this way may act as a deterrent
for necessary and timely action in emergency situations, and that the public
interest in such action being taken outweighed the public interest in the
privacy protection of information.
Accordingly, clause 280(1) is to be
amended to remove the bracketed reference to clause 272 thereby ensuring that
the respective burdens of proof apply in the same manner in relation to clause
272 as they do to the other exceptions in Division 3.
AMENDMENT (119)
Clause 280 - Burden of proof
This amendment is
consequential upon Amendment 118 - see the notes on that amendment.
AMENDMENT (120)
Clause 288 - Secondary offence - contravening this
Division
Clause 288 makes it an offence for a person to contravene
Division 4 of Part 13 which prohibits the secondary disclosure or use of
information or documents that were disclosed or used under certain exemptions
provided for in Division 3 of Part 13.
Clause 288 is to be amended to
include a note referring the reader to provisions of the Crimes Act 1914
relating to penalty units, and converting terms of imprisonment to fines for
individuals and corporations. This is a minor technical drafting
amendment.
AMENDMENT (121)
Clause 289 - Associate
This amendment is a technical
amendment to the definition of ‘associate’ as used in Division 5,
and is consequential to the creation of the new offence in clause 262A by
Amendment (96).
AMENDMENT (122)
Clause 289 - Associate
This amendment is a technical
amendment consequential to the creation of the new offence in clause 262A by
Amendment (96).
AMENDMENT (123)
Clause 289 - Associate
This amendment is a technical
amendment consequential to the creation of the new offence in clause 262A by
Amendment (96).
AMENDMENT (124)
Clause 290 - Certificates issued by authorised officers of enforcement
agencies
This amendment is a technical amendment consequential to the
creation of the new offence in clause 262A by Amendment (96).
AMENDMENT (125)
Clause 290 - Certificates issued by authorised officers of enforcement
agencies
This amendment is a technical amendment consequential to the
creation of the new offence in clause 262A by Amendment (96).
AMENDMENT (126)
Clause 290 - Certificates issued by authorised officers of enforcement
agencies
This amendment is a technical amendment consequential to the
creation of the new offence in clause 262A by Amendment (96).
AMENDMENT (127)
Clause 290 - Certificates issued by authorised officers of enforcement
agencies
This amendment is a technical amendment consequential to the
creation of the new offence in clause 262A by Amendment (96).
AMENDMENT (128)
Clause 290 - Certificates issued by authorised officers of enforcement
agencies
This amendment is a technical amendment consequential to the
creation of the new offence in clause 262A by Amendment (96).
AMENDMENT (129)
Clause 290 - Certificates issued by authorised officers of enforcement
agencies
This amendment is a technical amendment consequential to the
creation of the new offence in clause 262A by Amendment (96).
AMENDMENT (130)
Clause 291 - Record of disclosures
This amendment is a
technical amendment consequential to the creation of the new offence in clause
262A by Amendment (96).
AMENDMENT (131)
Clause 291 - Record of disclosures
This amendment is a
technical amendment consequential to the creation of the new offence in clause
262A by Amendment (96).
AMENDMENT (132)
Clause 291 - Record of disclosures
This amendment is a
technical amendment consequential to the creation of the new offence in clause
262A by Amendment (96).
AMENDMENT (133)
Clause 291 - Record of disclosures
This amendment is a
technical amendment consequential to the creation of the new offence in clause
262A by Amendment (96).
AMENDMENT (134)
Clause 291 - Record of disclosures
This amendment is a
technical amendment consequential to the creation of the new offence in clause
262A by Amendment (96).
AMENDMENT (135)
Clause 291 - Record of disclosures
This amendment is a
technical amendment consequential to the creation of the new offence in clause
262A by Amendment (96).
AMENDMENT (136)
Clause 291 - Record of disclosures
Clause 291(7) makes it
an offence for a person to contravene clause 291 which provides for various
requirements in relation to the recording of disclosures of information or
documents made under Part 13.
Clause 291(7) is to be amended to include a
note referring the reader to provisions of the Crimes Act 1914 relating
to penalty units, and converting terms of imprisonment to fines for individuals
and corporations. This is a minor technical drafting amendment.
AMENDMENT (137)
Clause 292 - Incorrect records
Clause 292(2) makes it an
offence for a person to contravene clause 291 which prohibits the making of a
false recording of disclosures of information or documents made under Part
13.
Clause 292(2) is to be amended to include a note referring the reader
to provisions of the Crimes Act 1914 relating to penalty units, and
converting terms of imprisonment to fines for individuals and corporations.
This is a minor technical drafting amendment.
AMENDMENT (138)
Clause 293 - Annual reports to the ACA by carriers or carriage service
providers
This amendment is a technical amendment consequential to
the creation of the new offence in clause 262A by Amendment (96).
AMENDMENT (139)
Clause 293 - Annual reports to the ACA by carriers or carriage service
providers
This amendment is a technical amendment consequential to
the creation of the new offence in clause 262A by Amendment (96).
AMENDMENT (140)
Clause 293 - Annual reports to the ACA by carriers or carriage service
providers
This amendment is a technical amendment consequential to
the creation of the new offence in clause 262A by Amendment (96).
AMENDMENT (141)
Clause 294 - Monitoring by the Privacy Commissioner
This
amendment is a technical amendment consequential to the creation of the new
offence in clause 262A by Amendment (96).
AMENDMENT (142)
Clause 294 - Monitoring by the Privacy Commissioner
This
amendment is a technical amendment consequential to the creation of the new
offence in clause 262A by Amendment (96).
AMENDMENT (143)
Clause 298 - Obligations of carriers and carriage service
providers
This amendment makes it clear that in giving help to law
enforcement and national security agencies, carriers and carriage service
providers must provide interception services. The amendment reflects the
existing requirement in clause 3.7 of the Telecommunications (General
Telecommunications Licences) Declaration (No.2) of 1991 that applies to
carriers.
The extended meaning of ‘giving help’ as provided
by this amendment would carry over to clause 299, which deals with the terms and
conditions on which such help is to be provided.
AMENDMENT (144)
Clause 299 - Terms and conditions on which help is to be
given
This amendment inserts a new clause 299(1A) to make it clear
that the help which must be given by carriers and carriage service providers to
Commonwealth, State and Territory officers under clause 298 must be given on a
not-for-profit basis. This amendment has been made following a submission to
the Senate Legislation Committee by the National Exchange of Police Information
requesting such an amendment.
AMENDMENTS (145) and (146)
Clause 334 enables the ACA to require carriers and carriage service
providers to provide pre-selection in favour of carriage service
providers.
Clause 334(8) excludes requirements for pre-selection for
calls that involve the use of a public mobile telecommunications service. This
was included on the basis of previous consultation which indicated that such
pre-selection was either not technically feasible or unnecessary to facilitate
the development of competition.
These matters may change in the future
as a result of technological developments or changes in the market for the
provision of telecommunications services.
Amendment (145) deletes clause
334(8). Any decision by the ACA to introduce pre-selection for these calls
would have regard to the matters in clause 334(3) and the results of
consultation with the ACCC under clause 334(6).
Amendment (146) deletes
clause 335(5) as a consequence of the deletion of clause 334(8).
AMENDMENT (147)
Clause 361 - ACA’s power to make technical
standards
Clause 361(2), which allows for the ACA to make technical
standards to ensure that customer equipment can be used to gain access to
emergency services, has been amended as consequence of the proposed new clause
18 to be inserted by Amendment (8).
AMENDMENT (148)
Clause 361 - ACA’s power to make technical
standards
Clause 361(2)(d) is to be amended to clarify its intended
operation.
Clause 361 gives the ACA the power to make technical standards
for customer equipment and customer cabling proposed to be connected to a
network operated by a carrier or carriage service provider.
Clause 361(2)
sets out the purposes or matters in relation to which the ACA may make a
standard.
Clause 361(2)(d) allows the ACA to make technical standards
to ensure, for the purpose of the supply of the standard telephone service in
fulfilment of the universal service obligation, the interoperability of customer
equipment with a telecommunications network to which the equipment is, or is
proposed to be, connected.
This amendment clarifies that interoperability
standards may be made concerning all customer equipment that could be used with
a standard telephone service.
The amendment omits the words ‘in
fulfilment of the universal service obligation’ from clause
361(2)(d).
AMENDMENT (149)
Clause 363 - Procedures for making technical
standards
Clause 363 is to be amended to require a minimum period of
60 days for consultation on proposed technical standards.
Clause
363(1)(a) requires the ACA to ensure that interested persons have had an
adequate opportunity to make representations about a proposed technical standard
before it is formally made as a standard.
In submissions to the Senate
Legislation Committee, various industry representatives indicated that it would
be appropriate to require at least 60 days for parties to make any
representations.
A new clause 363(5) is to be inserted to provide that
interested persons are not taken to have had an adequate opportunity to make
representations unless a period of at least 60 days was allowed for the making
of representations.
AMENDMENT (150)
Clause 367 - Procedures for making disability
standards
Clause 367 is to be amended to require a minimum period
of 60 days for consultation on proposed disability standards.
Clause
367(1)(a) requires the ACA to ensure that interested persons have had an
adequate opportunity to make representations about a proposed disability
standard before it is formally made as a standard.
In submissions to the
Senate Legislation Committee, various industry representatives indicated that it
would be appropriate to require at least 60 days for parties to make any
representations.
A new clause 363(5) is to be inserted to provide that
interested persons are not taken to have had an adequate opportunity to make
representations unless a period of at least 60 days was allowed for the making
of representations.
AMENDMENT (151)
Clause 371 - Procedures for making technical
standards
Clause 371 is to be amended to require a minimum period of
60 days for consultation on proposed interconnection standards.
Clause
371(1)(a) requires the ACA to ensure that interested persons have had an
adequate opportunity to make representations about a proposed interconnection
standard before it is formally made as a standard.
In submissions to the
Senate Legislation Committee, various industry representatives indicated that it
would be appropriate to require at least 60 days for parties to make any
representations.
A new clause 371(5) is to be inserted to provide that
interested persons are not taken to have had an adequate opportunity to make
representations unless a period of at least 60 days was allowed for the making
of representations.
AMENDMENT (152)
Clause 372 - Procedures for making technical standards
This
amendment amends clause 372(1)(a) as a consequence of Amendment (153) below -
see the notes on Amendment (153).
AMENDMENT (153)
Clause 372 - Procedures for making technical
standards
Clause 372 is to be amended to ensure that an industry body
or association has a minimum period of 120 days in which to make an
interconnection standard before the ACA is permitted to make such a standard on
the basis that the industry has not produced a standard.
Clause 372
provides that the ACA may not make an interconnection standard unless it has
first given a notice to a body or association requesting it to make an
interconnection standard, and, among other things, the body or association does
not make the requested standard.
In submissions to the Senate Legislation
Committee, various industry representatives indicated that it would be
appropriate to require that the body or association be given at least 120 days
in which to comply with the ACA’s request.
A new clause 372(1A) is
to be inserted to require the ACA to give the body or association at least 120
days in which to make a requested interconnection standard.
AMENDMENT (154)
Clause 384 - Offence of contravening condition
Clause 384,
which makes it an offence to contravene a condition of a connection permit, is
to be amended to include a note referring the reader to provisions of the
Crimes Act 1914 relating to penalty units, and converting terms of
imprisonment to fines for individuals and corporations. This is a minor
technical drafting amendment.
AMENDMENT (155)
Proposed new clause 387A - Register of connection
permits
This amendment will insert a new clause 387A to require the
ACA to establish and maintain a Register of connection permits.
In
submissions to the Senate Legislation Committee, various industry
representatives indicated that it would be appropriate to require the ACA to
keep a register of connection permits so that it would be possible to check
whether the proposed connection of customer equipment or customer cabling to a
network operated by a carrier or carriage service provider is authorised by a
connection permit. It would be necessary to have this information where the
equipment or cabling concerned either was not labelled or was labelled as not
complying with applicable technical standards made under clause 361.
New
clause 387A(1) requires the ACA to maintain a Register that includes all
connection permits currently in force, as well all the conditions applying to
those permits.
New clause 387A(2) allows the Register to be kept in an
electronic form.
New clause 387A(3) allows a person to inspect and make
copies of, or take extracts from, the Register on payment of any relevant cost
recovery charges determined by the ACA.
New clause 387A(4) makes it clear
that copying from the Register includes obtaining a printout from the
Register.
New clause 387A(5) makes provision for how the ACA may satisfy
a request for a copy from the Register in an electronic form.
AMENDMENT (156)
Clause 389 - Procedures for making connection rules
Clause
389 is to be amended to require a minimum period of 60 days for consultation on
proposed connection rules.
Clause 389(1)(a) requires the ACA to ensure
that interested persons have had an adequate opportunity to make representations
about a proposed connection rules before they are formally made.
In
submissions to the Senate Legislation Committee, various industry
representatives indicated that it would be appropriate to require at least 60
days for parties to make any representations.
A new clause 389(5) is to
be inserted to provide that interested persons are not taken to have had an
adequate opportunity to make representations unless a period of at least 60
days was allowed for the making of representations.
AMENDMENT (157)
Clause 395 - Connection of customer equipment or customer cabling -
breach of section 361 standards
Clause 395(2) makes it an offence to
connect customer equipment or customer cabling to a network or facility
operated by a carrier or carriage service provider unless certain requirements
under clause 395(1) relating to labelling have been complied with.
Clause 395(2) is to be amended to include a note referring the reader to
provisions of the Crimes Act 1914 relating to penalty units, and
converting terms of imprisonment to fines for individuals and corporations.
This is a minor technical drafting amendment.
AMENDMENT (158)
Clause 396 - Connection of labelled customer equipment or customer
cabling not to be refused
Clause 396(2) makes it an offence for a
manager of a network or facility operated by a carrier or carriage service
provider to refuse to give consent to the connection of customer equipment or
customer cabling to the network or facility, where labelling requirements
applying to the equipment or cabling have been complied with.
Clause
396(2) is to be amended to include a note referring the reader to provisions of
the Crimes Act 1914 relating to penalty units, and converting terms of
imprisonment to fines for individuals and corporations. This is a minor
technical drafting amendment.
AMENDMENT (159)
Clause 397 - Supply of unlabelled customer equipment or unlabelled
customer cabling
Clause 397(2) makes it an offence to manufacture or
import customer equipment or customer cabling without complying with
labelling requirements required by a notice made under clause 391.
Clause
397(2) is to be amended to include a note referring the reader to provisions of
the Crimes Act 1914 relating to penalty units, and converting terms of
imprisonment to fines for individuals and corporations. This is a minor
technical drafting amendment.
AMENDMENT (160)
Clause 398 - Applying labels before satisfying requirements under
subsection 392(5)
Clause 398(2) makes it an offence to apply a label
to customer equipment or customer cabling before complying with any
pre-labelling requirements required under clause 392(5).
Clause 398(2) is
to be amended to include a note referring the reader to provisions of the
Crimes Act 1914 relating to penalty units, and converting terms of
imprisonment to fines for individuals and corporations. This is a minor
technical drafting amendment.
AMENDMENT (161)
Clause 399 - Failure to retain records etc.
Clause 399(2)
makes it an offence not to comply with any post-labelling requirements in a
notice under clause 391(1).
Clause 399(2) is to be amended to include a
note referring the reader to provisions of the Crimes Act 1914 relating
to penalty units, and converting terms of imprisonment to fines for individuals
and corporations. This is a minor technical drafting amendment.
AMENDMENT (162)
Clause 400 - Application of labels containing false statements about
compliance with standards
Clause 400(2) makes it an offence to make
false statements regarding compliance with a standard in a label applied to
customer equipment or customer cabling in purported compliance with a labelling
requirement specified in a notice under clause 391.
Clause 400(2) is to
be amended to include a note referring the reader to provisions of the Crimes
Act 1914 relating to penalty units, and converting terms of imprisonment to
fines for individuals and corporations. This is a minor technical drafting
amendment.
AMENDMENT (163)
Clause 401 - Protected symbols
Clause 401(2) makes it an
offence to use a protected symbol unless authorised.
Clause 401(2) is to
be amended to include a note referring the reader to provisions of the Crimes
Act 1914 relating to penalty units, and converting terms of imprisonment to
fines for individuals and corporations. This is a minor technical drafting
amendment.
AMENDMENT (164)
Clause 404 - Prohibition of unauthorised cabling
work
Clause 404(2) makes it an offence to perform a particular type
of cabling work unless authorised by cabling provider rules or by a cabling
licence.
Clause 404(2) is to be amended to include a note referring the
reader to provisions of the Crimes Act 1914 relating to penalty units,
and converting terms of imprisonment to fines for individuals and corporations.
This is a minor technical drafting amendment.
AMENDMENT (165)
Clause 405 - Cabling provider rules
Clause 405(2) makes it
an offence for a person, to whom cabling provider rules apply, to contravene
those rules.
Clause 405(2) is to be amended to include a note referring
the reader to provisions of the Crimes Act 1914 relating to penalty
units, and converting terms of imprisonment to fines for individuals and
corporations. This is a minor technical drafting amendment.
AMENDMENT (166)
Clause 406 - Procedures for making cabling provider
rules
Clause 406 is to be amended to require a minimum period of 60
days for consultation on proposed cabling provider rules.
Clause
406(1)(a) requires the ACA to ensure that interested persons have had an
adequate opportunity to make representations about proposed cabling provider
rules before they are formally made.
In submissions to the Senate
Legislation Committee, various industry representatives indicated that it would
be appropriate to require at least 60 days for parties to make any
representations.
A new clause 406(5) is to be inserted to provide that
interested persons are not taken to have had an adequate opportunity to make
representations unless a period of at least 60 days was allowed for the making
of representations.
AMENDMENT (167)
Clause 418 - Offence of contravening condition
Clause
418(2) makes it an offence to contravene conditions applying to a cabling
licence.
Clause 418(2) is to be amended to include a note referring the
reader to provisions of the Crimes Act 1914 relating to penalty units,
and converting terms of imprisonment to fines for individuals and corporations.
This is a minor technical drafting amendment.
AMENDMENT (168)
Clause 436 - Operation of prohibited customer equipment or customer
cabling
Clause 436(2) makes it an offence to operate, supply, or
possess for the purpose of operating or supplying, prohibited customer equipment
or customer cabling.
Clause 436(2) is to be amended to include a note
referring the reader to provisions of the Crimes Act 1914 relating to
penalty units, and converting terms of imprisonment to fines for individuals and
corporations. This is a minor technical drafting amendment.
AMENDMENT (169)
Clause 439 - Numbering plan
This amendment inserts a new
clause 439(12) to make it clear that the ACA is not required to make a numbering
plan under clause 439 before 1 January 1998. This will allow the ACA enough
time to prepare a new numbering plan and conduct public consultation on the
draft plan before it is formally made. Proposed clause 66B of the
Telecommunications (Transitional Provisions and Consequential Amendments) Bill
1996 (see the explanation for Amendment (8) in the Supplementary Explanatory
Memorandum for that Bill) provides that the current numbering plan made under
s.239 of the Telecommunications Act 1991 continues in force until 1
January 1998 or until replaced by a plan made under clause 439.
AMENDMENT (170)
Clause 442 - Numbering plan - rules about portability of allocated
numbers
Clause 442(1) gives the ACCC the power to direct the ACA in
relation to the inclusion of number portability rules in the numbering plan made
under clause 439.
This amendment inserts a new clause 442(2A) to
require the ACCC to ensure that the numbering plan, at all times it is in force,
includes rules relating to number portability.
AMENDMENT (171)
Clause 442 - Numbering plan - rules about portability of allocated
numbers
This amendment inserts the word ‘particular’ into
clause 442(4) to require the ACCC to have regard to whether portability of
specific numbers would promote the long-term interests of end-users of carriage
services when directing the ACA about the rules about number portability to be
included in the numbering plan.
AMENDMENTS (172) - (175)
Clause 444 - Consultation about numbering plan
Clause 444
requires the ACA to engage in public consultation in relation to a draft
numbering plan or a planned variation of an existing numbering plan, except
where the proposed variation is of a ‘minor nature’. Questions have
been raised about the meaning of minor nature, particularly because the plan is
subject to a number of variations each year when unallocated number ranges have
their purposes changed, or are specified for the first time, before they are
allocated. To require public consultation on all such changes would be resource
consuming and unnecessarily delay the allocation of ranges of numbers leading to
delays in the provision of services.
Amendment (175) would substitute a new clause 444(3)which would require the ACA only to engage in public consultation in relation to a proposed variation of an existing numbering plan where it is of the opinion that:
(a) the proposed variation will require a change to a number issued to a customer of a carriage service provider in a State; or
(b) that it is in the public interest that public consultation occur in a particular State in relation to a proposed variation.
Paragraph (b) is designed to give the ACA a discretion to consult in the situation where there is a change to a number in general use, such as a 113 or 127 number, which has not been issued to a particular customer. Amended clause 444 also gives the ACA the discretion to limit public consultation to those States where a proposed variation will require a change in the number of a customer or where it is in the public interest to engage in public consultation.
Where the ACA is of the opinion that the proposed variation will not require
a change to the numbers of customers in any State, or it is not in the public
interest that public consultation occur in relation to the proposed variation,
the ACA does not need to engage in public consultation.
New clause
444(3A) requires the ACA to have due regard to the comments made by interested
persons in relation to a proposed variation.
AMENDMENT (176)
Clause 450 - Emergency service numbers
Clause 450 allows
for the identification of emergency service numbers in a numbering plan made by
the ACA under clause 439. A numbering plan may specify emergency service
numbers for use in different areas and in connection with different types of
services. Clause 450(1) is to be amended to ensure that only numbers used for
the purpose of contacting an emergency call service may be specified in the
numbering plan as “emergency service numbers”. This will ensure
that numbers used by emergency service organisations (ie business contact
numbers) are not specified as emergency service numbers in the numbering
plan.
AMENDMENT (177)
Clause 450 - Emergency service numbers
This amendment
inserts new clauses 450(6) and (7) to require the ACA, in making a numbering
plan under clause 439(1), to have regard to the objective that, as far as is
practicable, there should be no more than one emergency service number for use
nationwide (clause 450(6)).
New clause 450(7) makes it clear that clause
450(6) is not to be take to limit the meaning of clause 439.
AMENDMENT (178)
Clause 456 - Integrated public number database
This
amendment omits the words ‘or association’ from clause 456(1)
following advice from industry that any body established to operate the
integrated public number database would be some form of legal person, such as a
corporation. This change enables a simplified form of the offence provision for
the operator of an integrated public number database in Amendment
(96).
AMENDMENT (179)
Clause 456 - Integrated public number database
This
amendment is a minor technical amendment consequential to Amendment
(178).
AMENDMENT (180)
Clause 456 - Integrated public number database
This
amendment is a minor technical amendment consequential to Amendment
(178).
AMENDMENT (181)
Clause 456 - Integrated public number database
This
amendment is a minor technical amendment consequential to Amendment
(178).
AMENDMENT (182)
Clause 459 - ACA may give directions to declared manager of electronic
addressing
Clause 459(7) makes it an offence not to comply with a
direction given by the ACA to a manager of electronic addressing under clause
459(1).
Clause 459(7) is to be amended to include a note referring the
reader to provisions of the Crimes Act 1914 relating to penalty units,
and converting terms of imprisonment to fines for individuals and corporations.
This is a minor technical drafting amendment.
AMENDMENT (183)
Clause 460 - Operation of prohibited customer equipment or customer
cabling
Clause 460(7) makes it an offence not to comply with a
direction given by the ACCC to a manager of electronic addressing under clause
460(1).
Clause 460(7) is to be amended to include a note referring the
reader to provisions of the Crimes Act 1914 relating to penalty units,
and converting terms of imprisonment to fines for individuals and corporations.
This is a minor technical drafting amendment.
AMENDMENTS (184) and (185)
Clause 464 - Standard form of agreement to be publicly
available
Under Part 23 of the Bill, the terms and conditions on
which certain telecommunications-related goods and services are supplied are as
agreed between the supplier and the customer or, failing agreement, as set out
in a standard form of agreement formulated for the purposes of Part 23. Clause
464 of the Bill requires the standard form of agreement to be publicly
available.
As a result of clauses 464(3) and (4), 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.
As a result of
clauses 464(6) and (7), 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, 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.
Amendment (184) will be amend clause 464(4) to provide that if a
standard form of agreement is relevant to ascertaining the terms and conditions
governing the commercial relationship between a carriage service provider and a
person requesting a copy of the agreement, the provider must comply with the
request free of charge. In other cases, the provider must comply with the
request on payment, by the person who made the request, of such reasonable
charge (if any) as the provider requires.
Amendment (185) will amend
clause 464(6) so that if a carriage service provider proposes to vary a standard
agreement and the variation will affect only customers in a particular State or
Territory, the provider will not be required to advertise the variation in other
States or Territories. In addition, the requirement to advertise variations of
a standard agreement will not apply if the variation would not cause detriment
to any customers eg. where a carriage service provider proposes to give a
weekend discount in relation to the supply of particular goods or
services.
AMENDMENT (186)
Clause 474 - Written submissions and protection from civil
actions
Under clause 474(1) of the Bill, 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.
Amendment (186) will provide that for the purposes of clause
474(1) the ACA will not be taken to have provided a reasonable opportunity for
any member of the public to make a submission to the ACA unless the ACA has
allowed at least 28 days for the lodgement of such a submission.
AMENDMENT (187)
Clause 477 - Confidential material not to be published
Clause 477(4) makes it an offence not to comply with an order given
by the ACA under clause 477(2) that certain evidence or other material relating
to a hearing of the ACA not be published, or its disclosure be
restricted.
Clause 477(4) is to be amended to include a note referring
the reader to provisions of the Crimes Act 1914 relating to penalty
units, and converting terms of imprisonment to fines for individuals and
corporations. This is a minor technical drafting amendment.
AMENDMENT (188)
Clause 478 - Directions about private hearings
Clause
478(4) makes it an offence not to comply with a direction given by the ACA under
clause 478(2) about a private hearing of the ACA.
Clause 478(4) is to be
amended to include a note referring the reader to provisions of the Crimes
Act 1914 relating to penalty units, and converting terms of imprisonment to
fines for individuals and corporations. This is a minor technical drafting
amendment.
AMENDMENT (189)
Clause 484 - Written submissions and protection from civil
actions
Under clause 484(1) of the Bill, 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.
Amendment (189) will insert a new clause 484(1A) to provide
that, for the purposes of clause 484(1), the ACCC will not be taken to have
provided a reasonable opportunity for any member of the public to make a
submission to the ACCC unless the ACCC has allowed at least 28 days for the
lodgement of such a submission.
AMENDMENT (190)
Clause 487 - Confidential material not to be
published
Clause 487(4) makes it an offence not to comply with an
order given by the ACCC under clause 487(2) that certain evidence or other
material relating to a hearing of the ACCC not be published, or its disclosure
be restricted.
Clause 487(4) is to be amended to include a note referring
the reader to provisions of the Crimes Act 1914 relating to penalty
units, and converting terms of imprisonment to fines for individuals and
corporations. This is a minor technical drafting amendment.
AMENDMENT (191)
Clause 488 - Directions about private hearings
Clause
488(4) makes it an offence not to comply with an direction given by the ACCC
under clause 488(2) about a private hearing of the ACCC.
Clause 488(4) is
to be amended to include a note referring the reader to provisions of the
Crimes Act 1914 relating to penalty units, and converting terms of
imprisonment to fines for individuals and corporations. This is a minor
technical drafting amendment.
AMENDMENT (192)
Clause 498 - Reference of matters to Ombudsman or other responsible
person
This amendment amends clause 498(1)(a)(iii) to include
reference to a standard determined under Part 6 to avoid any implication that a
standard may not provide for a person or body other than the Commonwealth
Ombudsman of the Telecommunications Industry Ombudsman to handle complaints. In
practice, it is expected that the ACA would not include such an arrangement in a
standard unless the other person or body consented to performing the
function.
AMENDMENT (193)
Clause 498 - Reference of matters to Ombudsman or other responsible
person
This amendment is a minor technical amendment consequential to
Amendment (192).
AMENDMENT (194)
Clause 498 - Reference of matters to Ombudsman or other responsible
person
This amendment is a minor technical amendment consequential to
Amendment (192).
AMENDMENT (195)
Clause 501 - Publication of reports
Clause 501 of the Bill
deals with the publication of the ACA’s reports of its
investigations.
Amendment (195) will amend clause 501 to allow the ACA to
exclude from publication of reports on investigations information that would
unreasonably disclose personal information about any person, including a
deceased person.
AMENDMENT (196)
Clause 506 - The ACA may obtain information and documents from other
persons
Clause 506(4) makes it an offence not to comply with a
written notice given by the ACA under clause 506(2) to produce information or
documents to the ACA, or to appear before the ACA and give
evidence.
Clause 506(4) is to be amended to include a note referring the
reader to provisions of the Crimes Act 1914 relating to penalty units,
and converting terms of imprisonment to fines for individuals and corporations.
This is a minor technical drafting amendment.
AMENDMENT (197)
Clause 509 - Giving false or misleading information or
evidence
Clause 509 makes it an offence to give false or misleading
information or evidence to the ACA.
Clause 509 is to be amended to
include a note referring the reader to provisions of the Crimes Act 1914
relating to penalty units, and converting terms of imprisonment to fines for
individuals and corporations. This is a minor technical drafting
amendment.
AMENDMENT (198)
Clause 510 - Provision of false or misleading
documents
Clause 510(1) makes it an offence to give false or
misleading documents to the ACA.
Clause 510(1) is to be amended to
include a note referring the reader to provisions of the Crimes Act 1914
relating to penalty units, and converting terms of imprisonment to fines for
individuals and corporations. This is a minor technical drafting
amendment.
AMENDMENT (199)
Clause 515 - Incorrect records
Clause 515(2) makes it an
offence to keep incorrect records in purported compliance with any
record-keeping rules made by the ACA under clause 513.
Clause 515(2) is
to be amended to include a note referring the reader to provisions of the
Crimes Act 1914 relating to penalty units, and converting terms of
imprisonment to fines for individuals and corporations. This is a minor
technical drafting amendment.
AMENDMENT (200)
Clause 518 - Identity cards
Clause 518(3) makes it an
offence for a person who ceases to be an inspector not to return his/her
identity card to the ACA as soon as practicable.
Clause 518(3) is to be
amended to include a note referring the reader to provisions of the Crimes
Act 1914 relating to penalty units, and converting terms of imprisonment to
fines for individuals and corporations. This is a minor technical drafting
amendment.
AMENDMENT (201)
Clause 532 - General powers of inspectors
Clause 532(2)
makes it an offence for a person to contravene a requirement required by an
inspector under clause 532(1).
Clause 532(2) is to be amended to include
a note referring the reader to provisions of the Crimes Act 1914 relating
to penalty units, and converting terms of imprisonment to fines for individuals
and corporations. This is a minor technical drafting amendment.
AMENDMENT (202)
Clause 533 - Power to require information etc.
Clause
533(2) makes it an offence for a person not to provide documents required by an
inspector, or not to answer questions put by an inspector under clause
533(1).
Clause 533(2) is to be amended to include a note referring the
reader to provisions of the Crimes Act 1914 relating to penalty units,
and converting terms of imprisonment to fines for individuals and corporations.
This is a minor technical drafting amendment.
AMENDMENT (203)
Clause 562 - False or misleading statements
Clause 562
makes it an offence for a person to make a false or misleading statement to a
regulator under the Act.
Clause 562 is to be amended to include a note
referring the reader to provisions of the Crimes Act 1914 relating to
penalty units, and converting terms of imprisonment to fines for individuals and
corporations. This is a minor technical drafting amendment.
AMENDMENT (204)
Schedule 1 Part 2 Clause 2 - Simplified outline
This
amendment inserts into the simplified outline an extra dot point as a
consequence of amendment (208).
AMENDMENT (205)
Schedule 1 Part 2 Clause 6 - Contents of industry development
plan
This amendment replaces clause 6(2) to set out in more detail
the matters which are to be included in a carrier’s industry development
plan. In particular, it includes matters in relation to meeting the needs of
people with disabilities.
AMENDMENT (206)
Schedule 1 Part 2 Clause 6 - Contents of industry development
plan
The amendment provides that the definition of disability in this
clause has the same meaning as in the Disability Discrimination Act
1992.
AMENDMENT (207)
Schedule 1 Part 2 New Clause 9A - Requirements relating to research
and development activities
New clause 9A allows the Industry Minister
to impose requirements in relation to research and development activities that
must be complied with in carrier industry development plans. The instrument is
a disallowable instrument for the purposes of s. 46A of the Acts
Interpretation Act 1901 (clause 9A(5)).
Clause 9A(2) prevents
industry development plans being made or varied in contravention of the Industry
Minister’s requirements imposed under clause 9A(1).
Clause 9A(4)
provides carriers with a period of 180 days to establish arrangements to meet
any new Minister’s requirements and vary their industry development plans
accordingly. Under paragraph (b), if at the end of the 180 day period, the plan
contravenes the requirements, then the plan terminates. This provides the
enforcement mechanism because not having a current industry development plan,
unless exempt under clause 5, is a breach of a carrier licence condition because
of the operation of clause 4(1) and clause 1 of Schedule 1, and clauses 61 and
67.
AMENDMENT (208)
Schedule 1 Part 2 New Clause 10A - Compliance with provisions of a
plan relating to research and development activities
New clause 10A
requires a carrier to comply with the research and development activities in its
current industry development plan. To not do so is a breach of a carrier
licence condition of the operation of clause 1 of Schedule 1, and clauses 61
and 67.
AMENDMENT (209)
Schedule 1, new clause 12A - Annual report by Minister
New
clause 12A(1) requires the Industry Minister to prepare an annual report within
6 months of the end of the financial year on the progress made by carriers in
implementing current industry development plans. Clause 12A(2) requires the
report to be laid before each House of the Parliament within 15 sitting days of
the completion of the report.
AMENDMENT (210)
Schedule 1, new clause 28A - Extended meaning of
access
This amendment inserts clause 28A into Schedule 1 to provide
an extended meaning of the word “access” for the purposes of Part 5
of Schedule 1. It is not intended that access to a tower be refused on the
grounds that it is not technically feasible where access could be achieved by an
existing tower on a site being replaced with another tower located on the site
and access being given to the replacement tower. Note, however, that any such
access must be on agreed terms or conditions or, failing agreement, determined
by arbitration (see clause 32 of Schedule 1).
AMENDMENT (211)
Schedule 1, clause 29 - Access to telecommunications transmission
towers
This amendment inserts proposed clause 29(3A) into Schedule 1
so as to provide for the matters that the ACA must have regard to in determining
whether granting access to a telecommunications transmission tower under clause
29(1) is technically feasible.
AMENDMENT (212)
Schedule 1, clause 30 - Access to sites of telecommunications
transmission towers
This amendments inserts proposed clause 30(3A)
into Schedule 1 to provide for the matters that the ACA must have regard to in
determining whether the granting of access to a site of a telecommunications
transmission tower under clause 30(1) is technically feasible.
AMENDMENT (213)
Schedule 1, clause 31 - Access to eligible underground
facilities
This amendment inserts proposed clause 31(3A) into
Schedule 1 to provide for the matters that the ACA must have regard to in
determining whether access to an eligible underground facility under clause
31(1) is technically feasible.
AMENDMENT (214)
Schedule 1, clause 36 - Simplified outline
This amendment
amends proposed clause 36 of Schedule 1 (the simplified outline of Part 6) to
indicate that the obligation to keep records under Part 6 will apply to
designated overhead lines and telecommunication transmission towers as well as
to underground facilities.
AMENDMENTS (215), (216), (217) AND (218)
Schedule 1, clause 37 - Records relating to underground
facilities
These amendments make amendments to proposed clause 37 of
Schedule 1 so that the obligation on a carrier to keep records of underground
facilities proposed in that clause applies similarly to designated overhead
lines and telecommunications transmission towers.
AMENDMENT (219)
Schedule 3, clause 1 - Simplified outline
This amendment
amends the simplified outline of Part 1 of Schedule 3 in proposed clause 1 to
reflect the use of the broader term “environment” rather than
“environmental amenity” (see also Amendment 241)).
AMENDMENT (220)
Schedule 3, clause 2 - Definitions
This amendment inserts
into proposed clause 2 of Schedule 3 a definition of “endangered
ecological community”.
AMENDMENT (221)
Schedule 3, clause 5 - Installation of facilities
This
amendment omits the requirement for the installation of a subscriber connection
to a telecommunications network that the connection not cross over or under a
street or road in order to be authorised under clause 5(1)(d) of Schedule
3.
AMENDMENT (222)
Schedule 3, clause 5 - Installation of facilities
This
amendment inserts new clauses 5(3A) and 5(3B) of Schedule 3 to provide that
neither a designated overhead line nor a tower (other than a tower attached to a
building which does not exceed 5 metres in height) may be included in any
determination of a “low impact facility” for the purposes of clause
5 of Schedule 3.
New clause 5(3C) makes it clear that a "tower" does not
include an antenna
AMENDMENTS (223) - (236)
Schedule 3, clause 6 - Maintenance of facilities
These
amendments amend the definition of “maintenance” for the purposes of
clause 6 of Schedule 3 so as to include the installation of an additional
facility inside a fully enclosed building or a duct, pit, hole, tunnel or
underground conduit where no increase noise is likely to result from the
operation of the additional facility and the original facility. The amendments
also make consequential amendments to the provisions in proposed clause 6
dealing with the replacement of a facility for greater clarity and to make their
terms consistent with the new provisions relating to the installation of an
additional facility.
AMENDMENT (237)
Schedule 3, clause 6 - Maintenance of facilities
This
amendment inserts new clause 6(5A) into Schedule 3 to provide definitions of the
“height” of a tower, the “volume” of a facility and a
“fully enclosed building” for the purposes of the definition of
“maintenance” in clause 6.
AMENDMENT (238)
Schedule 3, new clause 7A - Carrier to restore land
This
amendment inserts proposed clause 7A into Schedule 3 which provides an
additional requirement to which a carrier will be subject when carrying out the
activities authorised by Schedule 3. If a carrier engages in an activity
authorised under Division 2, 3 or 4 of Part 1 of Schedule 3 (to inspect land, to
install certain facilities or to maintain facilities), the carrier must take all
reasonable steps to ensure that the land is restored to a condition that is
similar to its prior condition. Restoration must begin within 10 business days
after completion of the activity authorised by the Act unless otherwise agreed
with the owner and any other occupier of the land.
AMENDMENT (239)
Schedule 3, clause 15 - Notice to owner of land -
general
This amendment inserts proposed clause 15(2A) requiring that
the notice that a carrier must serve before carrying out an activity authorised
by Schedule 3 must contain notification of the possible right to compensation
that may arise from financial loss or damage resulting from the action of the
carrier (see also clause 40 of Schedule 3).
AMENDMENT (240)
Schedule 3, clause 15 - Notice to owner of land -
general
This amendment amends proposed clause 15(7) of Schedule 3 to
include in the “sensitive areas” that are subject to special notice
requirements under clause 15 areas registered under Commonwealth, State or
Territory law relating to heritage and areas of particular significant to
Aboriginal persons or Torres Strait Islanders.
AMENDMENT (241)
Schedule 3, clause 25 - Criteria for issue of facility installation
permit
This amendment amends clause 25(1)(g) of Schedule 3 to replace
the reference to “degradation of environmental amenity” with the
broader concept of “degradation of the environment”. A
corresponding change is made to the heading to clause 25(5).
AMENDMENTS (242) AND (243)
Schedule 3, clause 25 - Criteria for issue of facility installation
permit
These amendments insert new subparagraphs at the end of clause
25(7)(a) of Schedule 3 which will require the ACA expressly to have regard to
the possible effect of a proposal on an “endangered ecological
community” (see definition to be inserted by amendment (220)).
AMENDMENT (244)
Schedule 3, clause 26 - Special provisions relating to environmental
matters
This amendment inserts at the end of proposed clause 26(3)(a)
of Schedule 3 specific references to the possible effect on an “endangered
ecological community” (see definition to be inserted by amendment (220))
which give raise to a requirement that the ACA consult with the Director of
National Parks and Wildlife.
AMENDMENT (245)
Schedule 3, clause 42 - State and Territory laws that discriminate
against carriers and users of carriage services
This amendment amends
proposed clause 42 of Schedule 3 to authorise the Minister by written instrument
to exempt a specified law of a State or Territory from the provisions of
proposed clause 42 which provide that laws that discriminate against carriers
and users of carriage are of no effect. Any such exemption will be a
disallowable instrument. The exemption maybe made in relation to a particular
provision of a State or Territory Act or a provision of a legislative instrument
made under such an Act. An exemption maybe unconditional or subject to such
conditions (if any) as are specified in the exemption. It is not the
Government’s intention that it would give an exemption from a State or
Territory law which imposed a discriminatory tax on telecommunications
carriers.
AMENDMENT (246)
Schedule 3, clause 45 - Ownership of facilities
Clause 45
of Schedule 3 provides that a facility, or part of a 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
Telecommunications Act 1991.
Concerns have been raised that
clause 45 may not operate in a situation where a nominated carrier declaration
is in force. For example, under a lease-back arrangement with a bank, a carrier
could sell the bank its optical fibre cables connecting the capital cities and
lease these cables back from the bank. In this situation, the carrier would be
the nominated carrier in relation to the cables. There is an argument that
clause 45 will not operate once ownership of the cable is transferred to the
bank because the cable will not remain the property of the carrier. Under the
law of fixtures, the cable may become the property of the owner of the land that
the cable traverses.
To overcome this difficulty, Amendment (246) will
redraft clause 45 to provide that unless the circumstances indicate otherwise, a
facility, or part of a facility, that is supplied, installed, maintained or
operated by a carrier will remain the property of its owner:
(a) in any
case – whether or not it has become (either in whole or in part), a
fixture; and
(b) in the case of a network unit – whether or not a
nominated carrier declaration is in force in relation to the network
unit.
AMENDMENTS (247), (248) AND (249)
Schedule 3, clause 46 - ACA may inform the public about underground
facilities
This amendment omits the present proposed clause 46(1) of
Schedule 3 and inserts a new proposed clause 46(1) which provides that the ACA
may inform members of the public about the kinds and locations of: designated
overhead lines, telecommunications transmission towers and underground
facilities. A corresponding change is made to the heading to clause 46. These
changes complement the changes made to clause 37 in Part 6 of Schedule 1 which
extend the proposed obligation on carries to keep records relating to
underground facilities also to designated overhead lines and telecommunications
transmissions towers.
AMENDMENTS (250) AND (251)
Schedule 3, new clause 46A - Review of options for placing facilities
underground
Schedule 3, new clause 46B - Monitoring of progress in
relation to placing facilities underground
These amendments insert
new proposed clauses 46A and 46B into Schedule 3 so as to require the Minister
to conduct a review on the options for placing facilities underground before
1 July 1998 and to report to Parliament on that review and for the ACA to
monitor and report to the Minister on progress in relation to the implementation
of efforts to place facilities underground.
AMENDMENT (252)
Schedule 3, new clause 46C - Removal of certain overhead
lines
This amendment inserts proposed clause 46C into Schedule 3.
This clause will require that where:
• an overhead line has been
installed on a pole; and
• the line is connected to another pole; and
• there is any other cable (such as an electric power cable) that is
not a “line” for the purpose of the Act attached to that pole;
and
• all such cables are permanently removed and not
replaced
the owner of the line must within 6 months remove that line.
The owner of the line can be exempted from this requirement or the time for
removal extended either by the relevant local government body or an
administrative authority for the State or Territory if prescribed by
regulations or, in the absence of either of these, as otherwise prescribed in
regulations.
AMENDMENTS (253) AND (254)
Schedule 3, clause 50 - Facilities installed before 1 January 1999
otherwise than in reliance on Commonwealth laws - environmental
impact
These amendments add new subparagraphs to clause 50(2)(a) of
Schedule 3 to include specific references to the possible effect on an
“endangered ecological community” (see definition in amendment
(220)) where the Environment Secretary must be notified.
AMENDMENT (255)
Schedule 3, clause 55 - Existing buildings, structures and facilities
- application of State and Territory laws
This amendment makes a
minor amendment to clause 55 of Schedule 3 to reflect the fact that the
regulatory regime in the Act does not require that every facility be owned by a
carrier.
AMENDMENTS (256) AND (257)
Schedule 3, clause 55 - Existing buildings, structures and facilities
- application of State and Territory laws
These amendments make minor
amendments to proposed clause 55 of Schedule 3 consistent with the provision
made in the new proposed clause 55A (see Amendment (258)).
AMENDMENT (258)
Schedule 3, new clause 55A - Existing buildings, structures and
facilities - application of the common law
This amendment inserts
proposed clause 55A into Schedule 3. This provision is intended to put it
beyond doubt that a carrier facility installed under the authority of a repealed
Commonwealth law does not, merely by remaining in place, constitute a trespass
to the land on which it is located.
NOTES ON REQUESTS FOR AMENDMENTS
AMENDMENT (1)
Clause 138 - Supply of standard telephone services
Clause
138 provides that a reference to the supply of the standard telephone service in
Part 7 includes a reference to the supply of a telephone handset or prescribed
customer equipment, including the equivalent for people with a disability, other
prescribed goods and prescribed services. This provision ensures that customer
equipment and other ancillary goods and services are supplied for use in
connection with a standard telephone service.
The requested amendment
adds a new provision, clause 138(2), to clause 138 to provide that the supply of
a standard telephone service also includes a reference to the supply to a person
with a disability of:
• customer equipment of a kind specified in
the regulations; and
• other goods of a kind specified in the
regulations; and
• services of a kind specified in the
regulations;
where the equipment, goods or services, as the case may be,
are for use in connection with the standard telephone service.
The
requested amendment also inserts subclause 138(3) which indicates that
“disability” in clause 138 has the same meaning as in the
Disability Discrimination Act 1992).
The requested amendment has
the potential to increase payments out of the Universal Service Reserve, which
are covered by a standing appropriation in the Audit Act 1901 and the
proposed Financial Management and Accountability Act 1997.
These
amendments to clause 138 respond to concerns that the Government should be able
to explicitly specify that particular equipment, goods or services should be
made available to people with a disability under the USO, rather than relying on
the broad requirements of the Disability Discrimination Act 1992. It is
intended that the regulations should be able to specify the particular kinds of
customer equipment, other goods and services that are required to be supplied
upon request as part of a standard telephone service to people with a
disability. Goods which may be prescribed include both customer equipment that
is used to access the standard telephone service (eg. teletypewriters,
telebraillers) and goods used in association with customer equipment (eg.
“holdaphone” handset holders, finger guides, visual signal
alerts).
The ability for goods and services for people with a disability
to be prescribed to be part of a standard telephone service is not intended to
erode such people’s rights under the Disability Discrimination Act
1992. The regulation power and the Disability Discrimination Act are
complementary mechanisms. The regulation power enables the Government to
require the provision of certain goods and services where it considers there is
a clear case for doing so. A number of groups, for example, have
suggested that products currently available under Telstra’s Disability
Tariff Concession policy should be prescribed to be part of the standard
telephone service, rather than leaving their supply to the requirements of the
Disability Discrimination Act. Such an approach is suggested in Recommendation
7 of the Given Committee’s Report on the Standard Telephone Service
(p.10). It is understood that such an approach is seen as providing greater
certainty for both people with a disability, as to their rights, and industry,
as to its obligations.
Whether or not regulations prescribe goods and
services for supply to people with a disability, industry will still have an
underlying obligation to supply customer equipment as required in order to
comply with the Disability Discrimination Act. These obligations are ultimately
a matter for the Human Rights and Equal Opportunity Commission and the
courts.
In effect, the regulation power will be able to set a clear
baseline of goods and services that must be supplied to people with a
disability; industry may still have obligations to supply additional goods and
services under the Disability Discrimination Act.
AMENDMENT (2)
New clause 172A - Universal service provider may propose service areas
for declaration as net cost areas - special declaration
Division 6 of
Part 7 provides for the assessment, recovery and distribution of universal
service levy. Part of this process involves the declaration by the ACA of net
cost areas, which are areas in which a universal service provider expects to
make a loss and in relation to which it will be eligible to claim
compensation.
The requested amendment adds a new provision, clause 172A,
to Division 6 to enable a universal service provider to seek to have new areas
declared as net cost areas after the ordinary declaration process where
circumstances beyond the universal service providers control justify such late
declaration.
Requested Amendments (2) and (3) have the potential to
increase payments out of the Universal Service Reserve, which are covered by a
standing appropriation in the Audit Act 1901 and the proposed
Financial Management and Accountability Act 1997.
This amendment
specifically responds to Recommendation 2.15 of the Majority Report of the
Senate Committee that “Part 7 should be amended to provide the ACA with a
discretion to retrospectively declare an area to be a net cost area where a
universal service provider incurs a substantial unanticipated loss in an area as
a result of circumstances beyond its control”. It is intended that the
special declaration process put in place by new clauses 172A and 172B only be
used where, after the ordinary declaration process, a universal service provider
becomes aware that an area will incur a substantial loss due to circumstances
beyond its control. The special declaration process is not intended to allow
losses to be claimed, in retrospect, that simply result from poor planning or
management on the part of the universal service provider.
New clause 172A
is similar in construction to clause 171, but differs as to the timing of
claims.
New clause 172A(1) provides that clause 172A applies if a person
is a universal service provider on the first day of a financial year. If a
person is a universal service provider in relation to a financial year, the
person is eligible to seek the declaration of net cost areas in relation to that
year.
New clause 172A(2) provides that during the financial year, or
45 days after the end of the financial year, the person may give the ACA written
notice that:
• specifies service areas for which the person is the
universal service provider and that, in the person’s opinion, the ACA
should declare under clause 172B (see below) as net cost areas for the financial
year; and
• sets out why, in the person’s opinion, the ACA
should so declare the specified area.
This provision generally mirrors
clause 171(2), but departs from it to allow a person to seek the declaration of
areas as net cost areas at any time during the financial year or in the first 45
days of the following financial year. This allows the person to seek special
declaration of such areas where circumstances warrant it, outside the ordinary
declaration process set out in clause 171. Under clause 171, the person must
propose areas within the first 60 days of the financial year, effectively
requiring the net cost areas to be declared in advance. Clause 172A enables net
cost areas to be declared retrospectively, subject to the criteria in clause
172(6).
This timing constraint is imposed to ensure declarations are made
within the 90 day period allowed under clause 174 for the making of claims.
Together with the ACA’s 30 days to consider special declaration
applications, the special declaration process can extend for up to 75 days into
the new financial year. This will leave a universal service provider a maximum
of 15 days to put in a claim if a new net cost area is specially declared at
this time. This is considered sufficient given that the person will have to
provide the ACA with the same kind of information for the declaration process
and for a claim.
New clause 172A(3) provides that a notice under clause
172A(2) must be in a form approved in writing by the ACA. This allows the ACA
to specify the information and format it requires for declaration notices for
administrative convenience. The provision mirrors clause 171(3).
New
clause 172A(4) provides that in addition to the matters set out in clauses
172A(2)(a) and 172A(2)(b), a notice under clause 172A(2) must contain such other
information (if any) as the approved form of notice requires. The provision
mirrors clause 171(4). This provision ensures that the ACA is provided with the
information it requires for the purposes of special declaration of net cost
areas. Given the strict criteria that apply under clause 172B(6) to the special
declaration of net cost areas, the ability of the ACA to obtain appropriate
information is vital.
Notes 1 and 2 to clause 172A provide that the
headings to clauses 171 and 172 are amended consequential to the insertion of
clauses 172A and 172B by adding “- ordinary declarations”. This
distinguishes the “ordinary” (clauses 171 and 172) and special
(clause 172A and 172B) process for declaration of net cost areas.
AMENDMENT (3)
New clause 172B - Net cost areas - special
declarations
Division 6 of Part 7 provides for the assessment,
recovery and distribution of universal service levy. Part of this process
involves the declaration by the ACA of net cost areas, which are areas in which
a universal service provider expects to make a loss and in relation to which it
will be eligible to claim compensation.
The requested amendment adds a
new provision, clause 172B, to Division 6 requiring the ACA to consider
applications for the special declaration of new net cost areas outside the
ordinary declaration process where circumstances beyond the universal service
provider’s control justify such declaration.
This amendment
specifically responds to Recommendation 2.15 of the Majority Report of the
Senate Committee that “Part 7 should be amended to provide the ACA with a
discretion to retrospectively declare an area to be a net cost area where a
universal service provider incurs a substantial unanticipated loss in an area as
a result of circumstances beyond its control”. It is intended that the
special declaration process put in place by new clauses 172A and 172B only be
used where, after the ordinary declaration process, a universal service provider
becomes aware that an area will incur a substantial loss due to circumstances
beyond its control. The special declaration process is not intended to allow
losses to be claimed, in retrospect, that simply result from poor planning or
management on the part of the universal service provider.
New clause 172B
is similar in construction to clause 172, but differs as to the timing of ACA
decisions and because it specifies the matters about which the ACA must be
satisfied before making a declaration.
New clause 172B(1) provides that
the ACA must comply with clause 172B within 30 days after receiving a notice
under section 172A from a person. This timing constraint is imposed to ensure
declarations are made within the 90 day period allowed under clause 174 for the
making of claims.
New clause 172B(2) provides that for each service area
specified in the notice the ACA must decide:
• to declare the area
as a net cost area for the financial year; or
• not to declare as
mentioned in paragraph (a).
This provision generally mirrors clause
172(2).
New clause 172B(3) provides that if the ACA makes a decision
under clause 172B(2)(a), the ACA must make a written declaration stating that
the area concerned is a net cost area for the financial year. The declaration
has effect accordingly. The provision mirrors clause 172(3).
New clause
172B(4) provides that before making a decision under clause 172B(2), the ACA
must make whatever inquiries it thinks necessary or desirable in order to
determine what decision it should make under that clause. The provision mirrors
clause 172(4). The provision is important in ensuring the ACA applies a high
level of scrutiny to net cost area applications. In relation to special
declarations under clause 172B, ACA inquiries should be directed towards, but
not limited to, the matters specified in clause 172B, about which the ACA must
be satisfied if it is to make a special net cost area declaration.
New
clause 172B(5) provides that the ACA, in making a decision under clause 172B(2),
must:
• have regard to the reasons specified in accordance with
clause 172A(2)(b); that is, the reasons why, in the universal service
provider’s opinion, the ACA should declare the area to be a net cost area;
and
• comply with any directions in force under clause 173, being
Ministerial directions about declaring net cost area.
This provision
generally mirrors clause 172(2).
New clause 172B(6) is the provision in
relation to the special declaration of net cost areas which specifies the
particular criteria that the ACA must be satisfied of before it can make a
special declaration.
New clause 172B(6) provides that the ACA must not
make a declaration under this section stating that an area is a net cost area
for the financial year in relation to which the application for the declaration
applies unless the ACA is satisfied that:
• the person has
incurred, or is likely to incur, a substantial loss attributable to the supply
by the person of services to the area during the financial year;
and
• the loss is wholly the result of circumstances beyond the
person’s control; and
• when the person became aware of
those circumstances, the person took all reasonable steps to minimise the
loss.
It is important to note that these criteria are intended to
prevent universal service providers seeking to use the special declaration
process to claim losses resulting from their poor planning, management or
operations. The ACA needs to be satisfied of all three criteria.
New
clause 172B(7) is a definitional provision providing that a reference in clause
172B(6) to “a person supplying services during a financial year” is
a reference to the person supplying services under the universal service
obligation. This is to remove any possible grounds for the universal service
provider seeking declaration of an area as a net cost area on the ground it
incurs losses in supplying services other than those it is required to supply
under the USO. Clause 177(3) serves an analogous function in clause 177 which
deals with the calculation of net universal service costs of a universal service
provider for a financial year.