Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2002
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
SENATE
TELECOMMUNICATIONS COMPETITION BILL
2002
SUPPLEMENTARY EXPLANATORY
MEMORANDUM
Amendments to be moved on behalf of the
Government
(Circulated by authority of the Minister for
Communications, Information Technology and the Arts, Senator the Hon. Richard
Alston)
AMENDMENTS TO THE TELECOMMUNICATIONS COMPETITION BILL
2002
OUTLINE
The Telecommunications Competition Bill
2002 (the Bill) makes amendments to Parts XIB and XIC of the Trade Practices
Act 1974 (TPA) and some amendments to the Telecommunications Act 1997
and the Telecommunications (Carrier Licence Charges) Act 1997. Part XIB
of the TPA deals with anti-competitive conduct in the telecommunications
industry and Part XIC deals with interconnection and access to
telecommunications services.
The Bill is fundamentally about increasing
the level of competition and investment in the telecommunications market. The
Bill contains mechanisms to:
• facilitate
timely access to basic telecommunications
services;
• facilitate investment in new
telecommunications infrastructure;
• encourage a
more transparent regulatory market;
• enhance
accountability and transparency of decision-making under Part XIB;
and
• make a number of other changes to the
telecommunications regime.
The operation of the Government’s
proposed accounting separation framework will be improved by Government
amendments to:
• amend section 589 of the
Telecommunications Act to allow instruments made under Parts XIB and XIC of the
TPA to adopt, apply or incorporate provisions of any Act or a matter contained
in any other instrument or writing as in force from time to time (Amendment
(6));
• insert a definition of “content
service” into section 151AB in Part XIB of the TPA; (Amendment
(12));
• amend proposed section 151BUAA to
provide that the Minister may only give a direction under that section that
requires the ACCC to exercise its powers under section 151BU, 151BUDA, 151BUDB
and 151BUDC in a particular way and to enable the Minister to give the ACCC a
direction to undertake a specified type of analysis of a Ministerially-directed
report or a specified report in a series of Ministerially-directed periodic
reports (Amendments (13) and (14)); and
• require
the Minister to give the ACCC a “special Telstra direction” within 6
months of the commencement of the Bill (Amendment (15)).
The proposed
Government amendments also:
• amend the Bill to better implement the
Productivity Commission (PC) report on Telecommunications Competition Regulation
recommendation regarding the distribution of functions between the ACCC and the
ACA in relation to pre-selection in favour of carriage service providers
(Amendments (1) – (5)); and
• ensure that
parties to an arbitration will be able to seek merits review of a final
determination where the final determination is made by the ACCC before the
commencement of the Bill or the dispute was notified prior to the date of
introduction of the Bill (Amendment (7)).
The proposed Government
amendments include three minor technical changes
to:
• ensure that provisions relating to the
expiry time of anticipatory individual and anticipatory class exemptions are
consistent (Amendment (8));
• clarify that, where
a special access undertaking is subject to limitations specified in the
undertaking and the person who provided the special access undertaking supplies
the service that is the subject of the undertaking, the service is deemed to be
a declared service only to the extent that the service is covered by the
undertaking (Amendment (9)); and
• provide, to
avoid doubt, that references to “active declared service” in
proposed sections 152CBA and 152CBF are references to declaration of the service
under subsection 152AL(3) and not under proposed subsection 152AL(7) (Amendments
(10) and (11)).
FINANCIAL IMPACT STATEMENT
The proposed
Government amendments are not expected to have any financial impact on
Commonwealth expenditure or revenue.
ABBREVIATIONS
The
following abbreviations are used in this supplementary explanatory
memorandum:
AAT: Administrative Appeals
Tribunal
ACA: Australian Communications
Authority
ACCC: Australian Competition and Consumer
Commission
ACT: Australian Competition
Tribunal
Bill: Telecommunications Competition Bill
2002
Minister: Minister for Communications, Information Technology and
the Arts
PC Report: Productivity Commission Report
“Telecommunications Competition Regulation”, (Report No. 16, 21
September 2001)
Telecommunications Act: Telecommunications Act
1997
TPA: Trade Practices Act 1974
NOTES ON
AMENDMENTS
TELECOMMUNICATIONS COMPETITION BILL
2002
AMENDMENT (1)
Amendment (1) amends proposed item 1
in Part 1 of Schedule 1 to the Bill. Part 1 of Schedule 1 to the Bill contains
amendments to Part 17 of the Telecommunications Act.
Item 1 in Part 1
of Schedule 1 to the Bill amends section 5 of the Telecommunications Act, which
contains a simplified outline of the Telecommunications Act. The outline
currently states that the ACA may require certain carriers and carriage service
providers to provide pre-selection in favour of carriage service providers.
Item 1 amends the outline in section 5 to provide that the ACCC may require
certain carriers and carriage service providers to provide pre-selection in
favour of carriage service providers.
Amendment (1) amends item 1 so that
the part of the simplified outline of the Telecommunications Act that deals with
pre-selection will provide that the ACA must require certain carriers and
carriage service providers to provide pre-selection. This amendment is
consequential to Amendments (3) and (4) which will result in the ACCC having
responsibility for declaring which services should be subject to pre-selection
requirements (see Amendment (4)) and the ACA being required to determine the
pre-selection requirements for declared services (see Amendment (3)).
AMENDMENT (2)
Amendment (2) omits proposed item 2 in Part
1 in Schedule 1 to the Bill and replaces it with new item 2. Item 2 amends
section 348 of the Telecommunications Act, which contains a simplified outline
of Part 17 of that Act. The simplified outline in section 348 currently states
that the ACA may require certain carriers and carriage service providers to
provide pre-selection in favour of carriage service providers and that
pre-selection must include over-ride dial codes for selecting alternative
carriage service providers on a call-by-call basis. Item 2 amends section 348
to replace the reference to the ACA with a reference to the
ACCC.
Amendment (2) amends item 2 so that the simplified outline in
section 348 will provide that the ACA must require certain carriers and carriage
service providers to provide pre-selection. This amendment is consequential to
Amendments (3) and (4) which will result in the ACCC having responsibility for
declaring which services should be subject to pre-selection requirements (see
Amendment (4)) and the ACA being required to determine the pre-selection
requirements for declared services (see Amendment (3)).
AMENDMENT
(3)
Amendment (3) omits proposed items 3 and 4 in Part 1 in Schedule
1 to the Bill and replaces them with new items 3, 4 and 4A.
Items 3 and
4 amend section 349 of the Telecommunications Act. Subsection 349(1) requires
the ACA to make a determination requiring each carrier or carriage service
provider who supplies a standard telephone service to provide pre-selection in
favour of a specified carriage service provider in relation to calls made using
a standard telephone service. Subsection 349(2) provides that the ACA may make a
written determination requiring each carrier or carriage service provider who
supplies a specified carriage service to provide pre-selection in favour of a
specified carriage service provider, in relation to calls made using the
carriage service, in the manner specified in the determination. In making
a determination under section 349, the ACA must have regard to the technical
feasibility and the costs and benefits of complying with the requirement, may
adopt or incorporate matters contained in industry codes or standards and must
consult the ACCC before making the determination (subsection 349(6)). Item 3
amends section 349 by changing all references to the ACA to references to the
ACCC and item 4 amends subsection 349(6) by replacing the reference to the ACCC
with a reference to the ACA.
The effect of new items 3 and 4 will be
that the ACA will be required to make a written determination in relation to the
pre-selection requirements that apply to each carrier or carriage service
provider who supplies a specified declared service. The purpose of new items 3
and 4 is to alter the ACA’s current functions in relation to pre-selection
to take into account the new role of the ACCC in declaring which carriage
services should be subject to pre-selection requirements (see Amendment
(4)).
Proposed new item 4A adds a note to the end of subsection 349(2)
that states that “declared carriage service” is defined by section
350A. Proposed section 350A is inserted after section 350 by Amendment (4).
New item 4A is consequential to Amendment (4).
AMENDMENT
(4)
Amendment (4) inserts a new item 4B into Part 1 of Schedule 1 to
the Bill. Proposed item 4B inserts new proposed section 350A into the
Telecommunications Act.
Proposed section 350A provides that:
• the ACCC may, by written instrument,
declare that a specified carriage service is a “declared carriage
service” for the purposes of Part 17 of the Telecommunications Act which
deals with pre-selection in favour of carriage service providers (proposed
subsection 350A(1));
• such a declaration will
have effect accordingly (proposed subsection
350A(2));
• in deciding whether to make such a
declaration, the ACCC must have regard to whether the declaration will promote
the long-term interests of end-users of carriage services or services supplied
by means of carriage services (proposed subsection 350A(3)). The ACCC may also
have regard to any other matters that it thinks are relevant (proposed
subsection 350A(4)); and
• the question of
whether a particular things promotes the long-term interests of end-users of
carriage services or services supplied by means of carriage services is to be
determined in the same manner as in Part XIC of the TPA (proposed subsection
350A(5))
The requirement in proposed subsection 350A(3) for the ACCC to
have regard to whether a declaration will promote the long-term interests of
end-users will be consistent with the criteria for decisions made by the ACCC
under the TPA (see TPA section 152AB).
The purpose of Amendment (4) is to
better reflect the purpose of recommendation 15.1 of the PC Report that the ACCC
should be responsible for determining which services should be subject to
pre-selection requirements, consulting the ACA on technical matters. The PC
Report noted at page 481 that “Given that decisions regarding
pre-selection have clear competitive implications, this would also be consistent
with the division of responsibilities between the ACCC and the ACA with respect
to other issues such as number portability”. Amendment (4), in
combination with Amendments (1), (2), (3) and (5), is designed to improve the
implementation of the PC Report recommendation by giving the ACCC responsibility
for determining which services should be subject to pre-selection requirements
because of the competitive implications of this decision (see Amendment (5)) and
the ACA responsibility for determining the pre-selection requirements that will
apply to those services, making exemption declarations and forming opinions
regarding compliance with over-ride dial codes because of the technical issues
involved in these functions (see Amendment (5)).
AMENDMENT
(5)
Amendment (5) omits items 5 to 13 in Part 1 of Schedule 1 to the
Bill and replaces these items with new items 5 and 6.
Items 5 to 13 in
Part 1 of Schedule 1 to the Bill:
• amend
section 352 of the Telecommunications Act (which deals with exemptions from
pre-selection requirements) to provide that the ACCC may make exemption
declarations, in consultation with the ACA (items 5 and
6);
• provide for review by the ACT of a decision
of the ACCC under section 352 to refuse to make an exemption declaration (item
7);
• amend section 353 of the Telecommunications
Act to provide that a carriage service provider must provide over-ride dial
codes for selecting alternative carriage service providers on a call-by-call
basis (in accordance with a determination under subsection 349(2)), unless, in
the ACCC’s opinion, it would not be technically feasible or it would
impose unreasonable financial hardship on the carriage service provider (item
8);
• removes from the list of decisions in
Schedule 4 to the Telecommunications Act that are subject to reconsideration by
the ACA and review by the AAT, a decision by the ACA under section 352 to refuse
to make an exemption declaration (item
9);
• contain several transitional provisions
required as a result of the transfer of functions of the ACA to the
ACCC:
⇒ item 10 provides that a determination made under section
349 (and that was in force before item 10 commences) will continue in effect as
if it had been made by the ACCC and the requirements imposed by section 349 had
been satisfied by the ACCC;
⇒ item 11 provides that a declaration made
under section 352 (and that was made before the commencement of item 11) will
continue in effect as if it had been made by the ACCC and any requirements
imposed by section 352 for the making of the declaration had been
satisfied;
⇒ item 12 provides that Part 29 (Review of Decisions) and
Schedule 4 (Reviewable Decisions of the ACA) will continue to apply to decisions
of the ACA to refuse to make a declaration under section 352 where the decision
is made before the commencement of item 12 and those decisions will continue in
effect after the commencement of item 12 as if they had been made by the ACCC.
The ACCC is substituted for the ACA as a party to any proceedings in the AAT;
and
⇒ item 13 provides that an opinion formed by the ACA under
subsection 353(2) and that was in existence immediately before the commencement
of item 13 will continue in effect after the commencement of item 13 as if the
opinion had been formed by the ACCC.
The omission of items 5 to 13 in
Part 1 of Schedule 1 to the Bill will have the effect that sections 352 and 353
of the Telecommunications Act will not be amended by the Bill, with the
exception of a minor change to section 352 (see new item 5 below). This means
that the ACA will continue to have responsibility for making exemption
declarations under section 352 and for forming an opinion under section 353
regarding the technical feasibility of, or the financial hardship that would
result from, complying with over-ride dial code requirements.
The
ACA’s continued functions under sections 352 and 353 will better reflect
the purpose of recommendation 15.1 of the PC Report that the ACCC should be
responsible for determining which services should be subject to pre-selection
requirements, consulting the ACA on technical matters. The PC Report noted at
page 481 that “Given that decisions regarding pre-selection have clear
competitive implications, this would also be consistent with the division of
responsibilities between the ACCC and the ACA with respect to other issues such
as number portability.” Amendment (5), in combination with Amendments (1)
to (4), is designed to improve the implementation of the PC Report
recommendation by giving the ACCC responsibility for determining which services
should be subject to pre-selection requirements because of the competitive
implications of this decision (see Amendment (4)) and the ACA responsibility for
determining the pre-selection requirements that will apply to those services,
making exemption declarations and forming opinions regarding compliance with
over-ride dial codes because of the technical issues involved in these functions
(see subsections 349(3), 352(2) and 353(2) of the Telecommunications
Act)).
New item 5 inserts a new proposed subsection at the end of section
352. Proposed subsection 352(4) requires the ACA to consult the ACCC before
making a declaration under section 352. The ACA would be able to consider, in
addition to those matters to which it must have regard under subsection 353(2),
matters raised by the ACCC in relation to whether the declaration will promote
the long-term interests of end-users (see subsection 352(3) and paragraph
3(1)(a) of the objects of the Telecommunications Act). The requirement to
consult with the ACCC will ensure that the competitive implications of exempting
a carrier or carriage service provider from pre-selection requirements may be
highlighted by the ACCC, where appropriate, and then taken into account by the
ACA in making a decision under section 352.
New item 6 will apply if a
carriage service was the subject of a determination under subsection 349(2) and
it was in force immediately before the commencement of new item 10. New item 10
will effectively deem the ACCC to have made a declaration in relation to that
carriage service under proposed section 350A(1) and proposed subsection 350A(3)
(which requires the ACCC to have regard to whether a declaration will promote
the long-term interests of end-users) to have been complied with. The ACCC will
be able to vary or revoke a deemed declaration in accordance with subsection
33(3) of the Acts Interpretation Act 1901. New item 6 is consequential
to Amendments (3) and (4) which give the ACCC the function of determining which
carriage services should be subject to pre-selection requirements and require
the ACA to determine those requirements where the ACCC has declared a specified
carriage service. The purpose of new item 6 is to ensure that the validity of
determinations made by the ACA under subsection 349(2) prior to the commencement
of item 10 will not be affected by Amendments (3) and (4).
AMENDMENT (6)
Amendment (6) inserts a new Part 4 in Schedule 1 to the Bill. Schedule 1 to
the Bill contains amendments to the Telecommunications Act. Part 4 contains
one item to repeal and replace the definition of “this Act” in
subsection 589(6) of the Telecommunications Act.
Section 589 of the
Telecommunications Act allows an instrument made under “this Act” to
make provision in relation to a matter by applying, adopting or incorporating
(with or without modifications) provisions of any Act as in force at a
particular time or from time to time (subsection 589(1)) or a matter contained
in any other instrument or writing as in force or existing at a particular time
or from time to time (subsection 589(2)). “Other instrument or
writing” includes a reference to an instrument or writing made by any
person or body in Australia or elsewhere, whether of a legislative,
administrative or other official nature and whether or not having any legal
force or effect (subsection 589(3)). Subsection 589(6) defines “this
Act” to include the Telecommunications (Consumer Protection and Service
Standards) Act 1999.
Amendment (6) repeals the definition of
“this Act” in subsection 589(6) and replaces it with a new
definition. The new definition of “this Act” includes the
Telecommunications (Consumer Protection and Service Standards) Act 1999
and Parts XIB and XIC of the TPA.
The purpose of the proposed amendment
is to allow instruments made under Parts XIB and XIC of the TPA to apply, adopt
or incorporate provisions of any Act or any instrument or other writing as in
force, existing at a particular time or from time to time. For example, the
proposed amendment would allow a direction under proposed section 151BUAA to
refer to record-keeping rules that are made by the ACCC under section 151BU of
Part XIB of the TPA and are as in force from time to time.
The extension
of section 589 to cover Parts XIB and XIC of the TPA is consistent with section
314A of the Radiocommunications Act 1992 and existing section 589 of the
Telecommunications Act.
AMENDMENT (7)
Amendment (7)
omits proposed subitem 9(1) in Schedule 2 to the Bill and replaces it with new
subitem 9(1). Item 9 of Schedule 2 to the Bill is a transitional provision in
Part 2 of Schedule 2 to the Bill. Part 2 of Schedule 2 to the Bill contains
amendments to remove the right of a party to seek merits review by the ACT in
relation to final determinations made by the ACCC. Proposed subitem 9(1) of
Schedule 2 preserves the right of appeal of parties to any final determinations
made by the ACCC before the date of commencement of the Bill.
New
subitem 9(1) extends the scope of the transitional provision in subitem 9(1), as
introduced. Under new subitem 9(1), the rights of a party to seek merits review
by the ACT of a final determination will be preserved where:
• a final determination was made by the ACCC
before the commencement of item 9; or
• a final
determination is made by the ACCC after the commencement of item 9, and that
determination relates to an access dispute that was notified before 26 September
2002.
This amendment ensures that the proposed provisions in Part 2 of
Schedule 2 to the Bill will not affect the appeal rights of parties to access
disputes that were notified before 26 September 2002 (the date that the Bill was
introduced into Parliament and the details of the proposal to remove merits
review of final determinations were made public) or the right to seek review of
a final determination made before the Bill commences.
AMENDMENT (8)
Amendment (8) inserts new subsections 152ATA(10A) and 152ATA(10B)
into proposed section 152ATA. Proposed section 152ATA deals with anticipatory
individual exemptions from standard access obligations. Proposed subsection
152ATA(10) provides that an individual exemption order must specify the expiry
time for the order.
Proposed section 152ASA deals with anticipatory
class exemptions from standard access obligations. Similarly to proposed
subsection 152ATA(10), proposed 152ASA(8) provides that a class exemption
determination must specify an expiry time of the determination. Proposed
subsection 152ASA(9) provides that the expiry time of a determination may be
described by reference to the end of a period beginning when the service or
proposed service becomes an active declared service. Proposed subsection
152ASA(10) provides that subsection 152ASA(9) does not, by implication, limit
subsection 152ASA(8). Proposed section 152ATA does not contain equivalent
provisions to proposed subsections 152ASA(9) and (10).
Amendment (8) is
minor amendment to ensure that proposed section 152ATA is consistent with
proposed section 152ASA. New subsection 152ATA(10A) allows the expiry time of
an individual exemption order to be specified by reference to the end of a
period beginning when the service or proposed service becomes an active declared
service. New proposed subsection 152ATA(10B) provides that subsection
152ATA(10A) does not, by implication, limit subsection
152ATA(10).
AMENDMENT (9)
Amendment (9) amends proposed
subsection 152AL(7). Proposed subsection 152AL(7) will effectively deem a
service or proposed service that is the subject of a special access undertaking
to be a declared service vis-à-vis the person that is supplying the
service, where the person supplies the service or the proposed service to itself
or other persons. The purpose of proposed subsection 152AL(7) is to apply the
standard access obligations and associated machinery of Part XIC to the
undertaking where the service has come into existence.
A special access
undertaking may be subject to limitations (proposed subsection 152CBA(5)).
Amendment (9) inserts an avoidance of doubt provision at the end of proposed
subsection 152AL(7) to make it clear that, if a special access undertaking is
subject to limitations, then the service supplied by the person is a declared
service under proposed subsection 152AL(7) only to the extent to which the
service falls within the scope of the limitations.
AMENDMENT
(10)
Amendment (10) amends proposed subsection 152CBA(12). Proposed
section 152CBA deals with special access undertakings. Proposed subsection
152CBA(1) provides that proposed section 152CBA applies to a person who is, or
expects to be, a carrier or carriage service provider supplying a listed
carriage service or service that facilitates the supply of a listed service
carriage, whether to itself or to other persons, so long as the service is not
an active declared service. Proposed subsection 152CBA(12) provides that
“active declared service” has the same meaning as in section 152AR.
Amendment (10) is a minor amendment to make it clear that the reference
to “declared service” (in “active declared service” in
proposed section 152CBA) is a reference to the declaration of a service under
subsection 152AL(3), not to the deemed declaration that occurs as a result of
proposed subsection 152AL(7). The amendment does this by providing that
proposed subsection 152AL(7) is to be disregarded in considering whether a
service is an active declared service for the purposes of section
152CBA.
AMENDMENT (11)
Amendment (11) amends proposed subsection 152CBF(3) in Schedule 2 to the
Bill. Proposed section 152CBF deals with the duration of a special access
undertaking. If the ACCC accepts a special access undertaking (under proposed
section 152CBC), the special access undertaking comes into operation at the time
of its acceptance by the ACCC and continues in operation until it expires or it
is withdrawn under proposed section 152CBI, even if the service becomes an
active declared service (proposed subsection 152CBF(2)). Proposed subsection
152CBF(3) provides that, in section 152CBF, “active declared
service” has the same meaning as in section 152AR.
Amendment (11)
is a minor amendment to make it clear that the reference to “declared
service” (in “active declared service” in proposed section
152CBF) is a reference to the declaration of a service under subsection
152AL(3), not to the deemed declaration that occurs as a result of proposed
subsection 152AL(7). The amendment does this by providing that proposed
subsection 152AL(7) is to be disregarded in considering whether a service is an
active declared service for the purposes of section 152CBF.
AMENDMENT
(12)
Amendment (12) inserts a definition of “content
service” in section 151AB of the TPA. Section 151AB contains definitions
of terms used in Part XIB of the TPA which regulates anti-competitive conduct in
the telecommunications industry. Amendment (12) defines “content
service” to have the same meaning as in the Telecommunications Act
1997. “Content service” is defined in section 15 of that Act
to mean a broadcasting service (as defined in the Broadcasting Services Act
1992) or an on-line service.
Amendment (12) is a minor amendment
consequential to Amendment (15), which requires the Minister to take all
reasonable steps to ensure that a “special Telstra direction” is
given within 6 months of the commencement of the Bill. “Content
service” is referred to in the definition of “wholesale
operations” in proposed subsection 151BUAAA(5) (see Amendment
(15)).
AMENDMENT (13)
Amendment (13) inserts three new subsections in proposed section 151BUAA
in Part 16 of Schedule 2 to the Bill. Proposed subsection 151BUAA(1) allows the
Minister to give written directions to the ACCC in relation to the exercise of
its powers under section 151BU (which allows the ACCC to make record-keeping
rules), section 151BUDA (which allows the ACCC to give access to
Ministerially-directed reports given to the ACCC in accordance with the
record-keeping rules), section 151BUDB (which allows the ACCC to direct a
carrier or carriage service provider to give access to Ministerially-directed
reports prepared in accordance with the record-keeping rules) and section
151BUDC (which allows the ACCC to direct a carrier or carriage service provider
to give access to Ministerially-directed periodic reports prepared in accordance
with the record-keeping rules).
Amendment (13) inserts new proposed
subsections 151BUAA(1A), 151BUAA(1B) and 151BUAA(1C) in proposed section
151BUAA. Proposed subsection 151BUAA(1A) provides that the Minister may only
give a direction under proposed section 151BUAA that requires the ACCC to
exercise its powers under sections 151BU, 151BUDA, 151BUDB and 151BUDC or that
requires the ACCC to exercise its powers under those sections in a particular
way. The effect of proposed subsection 151BUAA(1A) is that the Minister would
not be able to give a direction to ACCC not to exercise its powers under those
sections.
Proposed subsection 151BUAA(1B) provides that the Minister may
give a written direction to the ACCC requiring it, in the event that it receives
a Ministerially-directed report, to prepare a specified kind of analysis of the
report, and to publish the analysis within a specified period after receiving
the report. Proposed subsection 151BUAA(1C) provides that the Minister may give
a written direction to the ACCC requiring it, in the event that it receives a
report in a specified series of Ministerially-directed reports, to prepare a
specified kind of analysis of the report, and to publish the analysis within a
specified period after receiving the report. The purpose of proposed
subsections 151BUAA(1B) and 151BUAA(1C) is to provide more information for the
market by enabling the Minister to direct the ACCC to undertake, and publish, a
specified type of analysis of the information it receives as a result of a
Ministerial direction made under proposed subsection 151BUAA(1).
AMENDMENT (14)
Amendment (14) makes a minor amendment to proposed paragraph 151BUAA(3)(a) in
Part 16 of Schedule 2 to the Bill. Proposed section 151BUAA allows the Minister
to give written directions to the ACCC in relation to the exercise of its powers
under sections 151BU, 151BUDA, 151BUDB and 151BUDC. Proposed subsection
151BUAA(3) provides that if a record-keeping rule is made as a result of a
direction under section 151BUAA (expressed as “this section” in
proposed paragraph 151BUAA(3)(a)), and the rule requires the preparation of a
report, then the rule must contain a statement to the effect that the rule was
made as a result of a Ministerial direction, and a report prepared under the
rule is to be known as a “Ministerially-directed report”. Amendment
(14) amends proposed paragraph 151BUAA(3)(a) by omitting the words “this
section” and substituting the words “subsection (1).”
Amendment (14) is a minor amendment consequential to proposed Amendment
(13) which would result in proposed section 151BUAA containing three new
subsections instead of only proposed subsection 151BUAA(1) (which is the
subsection under which the Minister will be able to direct the ACCC to make
record-keeping rules).
AMENDMENT (15)
Amendment (15) inserts a new proposed section in Part 16 of Schedule 2 to
the Bill. New proposed section 151BUAAA requires the Minister to take all
reasonable steps to ensure that a “special Telstra direction” is
given within 6 months of the commencement of the proposed section. Proposed
subsection 151BUAAA(2) provides that, for the purposes of proposed section
151BUAAA, a “special Telstra direction” is a direction given under
section 151BUAA that:
a) relates to Telstra’s wholesale and retail
operations;
b) “wholesale operations” is defined in proposed
subsection 151BUAAA(5) to include operations in relation to services that
Telstra supplies to itself or to other persons, in order that the other persons
can provide carriage services and/or content services. “Content
services” is defined as having the same meaning as in the
Telecommunications Act (see Amendment (12));
c) requires the ACCC to
exercise its powers under section 151BU to make rules requiring Telstra to keep
and retain particular records, prepare reports consisting of information
contained in those records and give those reports to the ACCC;
and
d) requires the ACCC to exercise its powers under at least one of
sections 151BUDA, 151BUDB, and 151BUDC in relation to those
reports.
Proposed new subsection 151BUAAA(3) sets out the procedure which
must be followed before the Minister can make a “special Telstra
direction”. The procedure will require that the Minister publish a draft
of the direction, invite people to make submissions on the draft direction
within a specified time limit and consider any submissions that are received
before making the direction.
The Minister will be able to give
subsequent directions in relation to Telstra’s wholesale and retail
operations (proposed new subsection 151BUAAA(4)).
The purpose of
Amendment (15) is to give effect to the Government’s accounting separation
framework, which was announced by the Minister on 24 September 2002. Proposed
new section 151BUAAA provides certainty in relation to the timeframe within
which the Government will implement its announced accounting separation
framework by requiring the Minister to make a direction in relation to
Telstra’s wholesale and retail operations and by outlining the general
nature of that direction.