Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2016-2017-2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
TELECOMMUNICATIONS LEGISLATION AMENDMENT
(COMPETITION AND CONSUMER) BILL 2018
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government
(Circulated by authority of the Minister for Communications,
Senator the Honourable Mitch Fifield)
TELECOMMUNICATIONS LEGISLATION AMENDMENT
(COMPETITION AND CONSUMER) BILL 2018
OUTLINE
Several amendments are proposed to the Telecommunications Legislation Amendment
(Competition and Consumer) Bill 2018 (the CC Bill).
Amendments to Schedule 2
Schedule 2 to the CC Bill contains, among other things, amendments to the carrier separation
rules under Parts 7 and 8 of the Telecommunications Act 1997 (the Tel Act) and modifications
to the Carrier Licence Conditions (Networks Supplying Superfast Carriage Services to
Residential Customers) Declaration 2014 (the CLC Declaration).
Under the current CC Bill, Schedule 2 will commence on the day after the Act has received
the Royal Assent. A number of measures in Schedule 2, however, take effect on 1 July 2018.
The CC Bill may not be passed by the Parliament until after that date. Accordingly,
amendments are proposed to make changes to defer the commencement date of Schedule 2 to
three months after the day when the Act receives the Royal Assent. A minor alteration is also
proposed to the CLC Declaration to reflect a later expiration date of the instrument. Finally, a
new transitional provision is inserted into Schedule 2 to provide for the circumstance where
the Australian Competition and Consumer Commission (ACCC) may make a determination
about a deemed access undertaking after the Act receives the Royal Assent, but before the
Schedule commences and carriers elect to be bound by the determination before
commencement.
Minor amendments to Schedule 3
Schedule 3 to the CC Bill introduces a statutory infrastructure provider (SIP) regime into the
Tel Act which will provide that premises in Australia can be connected to superfast networks
and are able to receive superfast broadband services. It makes NBN Co Limited (nbn) the
default SIP, for areas it has declared ready to service prior to the end of the rollout of the
National Broadband Network (NBN), and for all of Australia after the rollout is complete.
Three minor amendments are proposed to Schedule 3 to the CC Bill to clarify accountability
and the operations of the SIP regime as follows:
- clarification that carriers that may be exempted from supplying eligible services under
any Ministerial determination made under proposed subsection 360Q(4) do not need
to nominate as SIPs for the relevant project areas;
- removal of the Carrier Licence Conditions (Urban Renewal Authority Victoria t/a
Places Victoria Pty Ltd) Declaration 2014 (the Places Victoria Declaration) from the
list of instruments in proposed section 360J (which would automatically make the
network areas specified in those instruments nominated service areas for the SIP
regime), because Urban Renewal Authority Victoria has sold its network; and
- providing the Australian Communications and Media Authority (ACMA), rather than
the Minister, with the ability to determine an alternative format for the description of
service areas.
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Amendments to Schedule 4
Schedule 4 to the CC Bill sets out the operational arrangements of the Regional Broadband
Scheme (RBS). The first eligible financial year for the charge, as currently provided for in
proposed paragraph 79(a) (item 13 of Schedule 4 to the CC Bill) is the financial year
beginning on 1 July 2018. In recognition of the delay in the passage of the CC Bill, it is now
proposed that the commencement of the first eligible financial year would be 1 July 2019, or
the 1 July of a later financial year depending on when the CC Bill, once passed, received the
Royal Assent. This will ensure that carriers have ample time to implement business and
operational changes in recognition of the imposition of the charge.
Proposed new section 100 of Schedule 4 to the CC Bill sets out reporting requirements for
carriers' annual report to the ACMA about their number of chargeable premises for each
month in an eligible financial year. To enable the ACMA to implement amendments now
proposed to clause 20 of the Telecommunications (Regional Broadband Scheme) Charge Bill
2018 (the Charge Bill) (amendment sheet LC188 refers), it is now proposed that persons who
are a controller of an associated group will also be required to identify themselves as the
controller; identify the members of the associated group; and set out the circumstances that
resulted in them being the controller of the associated group, for the first five eligible
financial years. The information will be subject to the usual privacy and record keeping
requirements for information held by a Government agency.
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FINANCIAL IMPACT STATEMENT
The proposed amendments to delay accrual of the Regional Broadband Scheme (RBS) are the
only amendments that have a financial impact. Based on the RBS charge starting to accrue
from 1 July 2019, the amendments have a net impact of $0.2 million on the underlying cash
balance over the Forward Estimates period (2019-20 to 2021-22). This reflects the impact of
the RBS administrative cost component profile (clause 16 of the Charge Bill refers) shifting
forward by one year, and the higher number of chargeable premises in the market from
2019-20 onwards as the rollout of the National Broadband Network progresses. These
impacts can be seen in the below table, which reflects the difference between the amendments
and the Regional Broadband Scheme as introduced to the Senate.
Impact on Underlying cash balance ($m)
2018-19 2019-20 2020-21 2021-22 Total
Receipts 0.000 -30.000 0.000 0.000 -30.000
Payments 0.000 28.989 1.050 0.176 30.215
Net impact 0.000 -1.011 1.050 0.176 0.215
The monies collected from the RBS will be used to fund nbn's reasonable losses for
constructing and operating fixed wireless and satellite network infrastructure, by way of
funding assistance in the form of contracts and/or grants made by the Secretary of the
Department of Communications to nbn. The amendments delaying RBS accrual will result in
the first contractual payments or grant of financial assistance given to nbn under the proposed
regime (refer proposed section 80 of new Part 3 of the Telecommunications (Consumer
Protection and Service Standards) Act 1999 to be inserted by item 13 of the CC Bill to be
delayed by at least 12 months. For example, if the first eligible financial year for the RBS
commenced on 1 July 2019, as a result of the amendments, and subject to the terms of the
associated contract or funding agreement between the Commonwealth and nbn, the first
payment would occur during the 2020-21 financial year instead of the 2019-20 financial year.
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NOTES ON AMENDMENTS
AMENDMENT (1)
This amendment is consequential to Amendment (3), which inserts a transitional provision
(proposed new clause 4) that would apply if the ACCC were to make a determination under
subsection 151B(1) of the Tel Act prior to the designated commencement date.
AMENDMENT (2)
Amendment (2) is the first of a set of amendments relating to altering the commencement date
of Schedule 2 to the CC Bill. Under the Bill, as introduced, Schedule 2 would commence on
the day after the Act receives the Royal Assent, with a number of provisions in Schedule 2
specified to have effect on and from 1 July 2018. Given delays in the passage of the Bill, it is
now intended that all of Schedule 2 will commence, and have effect, three months after the
Act receives the Royal Assent.
This amendment would remove item 2 from the table at clause 2 to the CC Bill and substitute
two new items, providing for Schedule 2 to commence the day after the end of the period of
three months beginning on the day the Act received the Royal Assent. No substantive change
is made to the commencement date of Schedule 1 to the CC Bill.
AMENDMENT (3)
Proposed section 151B of the Tel Act (item 51 of Schedule 2 to the CC Bill) would create a
power for the ACCC to make a determination relating to a specified class of persons.
Corporations who are included in the specified class could elect to be bound by the
determination. The ACCC may make such a determination under proposed subsection
151B(1) of the Tel Act after CC Bill receives the Royal Assent and before the operative
commencement of Schedule 2 (in reliance on section 4 of the Acts Interpretation Act 1901). If
this were to occur, it is necessary to allow for carriers to make an election to be bound by the
ACCC's determination prior to the designated commencement date, so that the election would
then have effect from the designated commencement date. Amendment (3) inserts a new
transitional clause 4 into the CC Bill specifically to provide for this.
AMENDMENT (4)
This amendment is consequential to Amendments (5) and (6).
Item 2 of Schedule 2 to the CC Bill amends the Carrier Licence Conditions (Networks
supplying superfast carriage services to residential customers) Declaration 2014 (the CLC
Declaration) to include certain definitions that are to be inserted into Part 8 of the Tel Act by
the Bill. Amendment (4) adds a new definition, 'designated commencement date', to this list
of definitions. The definition specifies that designated commencement date means the date on
which Schedule 2 to the CC Bill commences (see the notes to Amendments (2) and (10) for
further information).
AMENDMENTS (5) and (6)
Item 6 of Schedule 2 to the CC Bill amends the CLC Declaration to limit its effect to
networks that came into existence before 1 July 2018, and have not been altered, upgraded or
extended on or after 1 July 2018. This date was consistent with the commencement of new
obligations in Part 8 of the Tel Act as proposed to be inserted by the Bill, as introduced. It
also reflected the Government's decision that networks deployed before 1 July 2018 could
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continue to operate under the rules that applied to them at the time they were deployed. In
recognition of the deferral of the commencement of Schedule 2 to the CC Bill, which would,
by operation of Amendment (2), commence three months after the Act received the Royal
Assent, this consequential change is required to the CLC Declaration. The effect of these
amendments is to replace occurrences of '1 July 2018' with 'designated commencement date'.
AMENDMENT (7)
Item 8 of Schedule 2 to the CC Bill amends the specified date in paragraph 6(1)(c) of the
CLC Declaration. At the time the CC Bill was introduced, the conditions in paragraph 6(1)(c)
of the CLC Declaration were expressed in the instrument to apply until 30 June 2018. Item 8
of the Bill, as introduced, would have amended paragraph 6(1)(c) of the CLC Declaration so
that it would only apply until 30 June 2018. Since introduction, the Minister has amended the
expiry date of the CLC Declaration to 30 June 2020. Amendment (7) necessarily amends item
8 of the CLC Declaration to recognise the changed date of 30 June 2020.
AMENDMENTS (8) and (9)
These two amendments are consequential to the change to the commencement of Schedule 2,
as set out in Amendment (2) and reflect the intention that Schedule 2 should take effect from
the 'designated commencement date'.
AMENDMENT (10)
Amendment (10) inserts a definition of 'designated commencement date' into the list of
definitions in item 26 of Schedule 2 to the CC Bill. The 'designated commencement date', as
explained above, would mean the date on which Schedule 2 to the Act commences, which in
effect would be the day after the end of the period of three months beginning on the day the
CC Bill received the Royal Assent.
AMENDMENTS (11) - (79)
These amendments are consequential to the change to the commencement of Schedule 2 as
put forward by Amendment (2). Essentially, all dates of 1 July 2018 within the specified
provisions are to be replaced with the expression 'the designated commencement date'.
AMENDMENTS (80) - (81)
These amendments insert two new provisions into proposed section 360H: subsection (3B)
and (5A). The amendments are intended to remove any confusion that may have arisen over
which carrier is responsible for providing services in a particular geographic area.
Proposed subsection 360H(2) would apply to a carrier (other than an NBN corporation) that
installs telecommunications network infrastructure that will enable the supply of eligible
services to premises in the whole of the project area of a real estate development project. If
that installation was carried out under a contract, and any conditions specified in an
instrument under subsection 360H(3) are met, then the carrier would be required to declare
that the whole of the project area is a provisional nominated service area for the purposes of
the new SIP regime, and do so within ten business days after completing the installation of
that infrastructure.
Proposed subsection 360H(4) imposes a matching obligation on carriers to declare a
provisional nominated service area, but in this case it applies to the installation of
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telecommunications network infrastructure under a contract for the project area of a building
redevelopment project.
A consequence of a carrier declaring a project area as a provisional nominated service area is
that the carrier then becomes the SIP for that project area, which is taken to be a nominated
service area (proposed section 360K), and the SIP connection and supply obligations would
apply to that carrier in the area.
Amendment (80) would insert proposed subsection 360H(3B), which would provide that
subsection 360H(2) does not apply if the supply of eligible services mentioned in paragraph
(2)(a) is, or will be, in the circumstances specified in a determination under
subsection 360Q(4).
Amendment (81) would similarly insert proposed subsection 360H(5A), which would provide
that proposed subsection 360H(4) does not apply if the supply of eligible services mentioned
in paragraph 360H(4)(a) is, or will be, in the circumstances specified under a determination
made under proposed subsection 360Q(4).
If the Minister were to make a determination under proposed subsection 360Q(4), at any time
once the SIP regime commenced, to the extent that circumstances specified in that
determination applied to the supply of eligible services by a particular carrier, then - by
operation of Amendments (80) and (81) - that carrier would not need to declare a provisional
nominated service area under either of subsections 360H(2) or (4).
Without the amendments, there could be confusion for end-users and retail providers about
who is required under the SIP regime to supply carriage services in a specific service area.
The effect of any Ministerial instrument made under proposed subsection 360Q(4) would be
that a carrier does not need to supply an eligible service that supports the retail supply of
broadband and, on some networks, voice. However, if such a determination were made, a
carrier could still be required, in the absence of the amendments, to nominate as the SIP for
the relevant geographic area. This could create confusion because retailers could presume that
the nominated SIP is responsible for supplying services.
The amendments would not mean that there would be no SIP for a service area. The CC Bill
provides that, after the NBN is complete, nbn will be the default SIP for all of Australia. It
will also be the default SIP in areas that it has declared ready for service while it is rolling out
the NBN. If a carrier were relieved of nominating as the SIP for a project area, nbn would
therefore be the SIP for the area.
AMENDMENT (82)
This amendment removes from the list at proposed section 360J, the Places Victoria
Declaration. This instrument is no longer operative because, since the introduction of the
CC Bill, the Urban Renewal Authority Victoria sold the network covered by the Places
Victoria Declaration and it would therefore not be appropriate to impose SIP obligations on it,
as it could no longer be in a position to meet them given the change in network ownership and
control.
No amendment is proposed to Part 2 of Schedule 3 to the CC Bill, which repeals the reference
to the Places Victoria Declaration, as that repeal remains necessary.
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AMENDMENT (83)
This amendment proposes that the ACMA, rather than the Minister, has the authority to
specify, by legislative instrument, a different format for the geographic description of the SIP
service areas under proposed section 360LA.
The ACMA is responsible for maintaining a SIP register, including geographic details of
service areas. Carriers who are the SIPs for service areas must provide the ACMA with a
description of the service area using a format specified at proposed section 360LA of the
CC Bill. Proposed section 360LA in the CC Bill currently also provides that an alternative
format may be determined by the Minister by legislative instrument. The specification of the
format of geographic areas is a matter of detail that is more appropriately considered by the
regulator, the ACMA. Accordingly, Amendment (83) makes this minor change to the rule
maker.
AMENDMENT (84)
The CC Bill Amendment (84) would insert a definition of 'designated start date' into the list
of definitions at proposed section 76 (item 13 of Schedule 4 to the CC Bill). The 'designated
start date' would mean either 1 July 2019 or the later 1 July next following the day on which
the new Part 3 of the Telecommunications (Consumer Protection and Service Standards) Act
1999 (TCPSS Act) commences (item 13 of Schedule 4 to the CC Bill). If the CC Bill passed
and received the Royal Assent during the 2018-19 financial year, in effect, the 'designated
start date' would be 1 July 2019. If the CC Bill received the Royal Assent during the 2019-20
financial year, the 'designated start date' would be 1 July 2020, being the 1 July next
following the day the new Part 3 commences.
The introduction of the new commencement date (as a defined term), rather than expressly
stating a calendar day provides for added flexibility. If this change is not implemented, the
new charge under the RBS Scheme would start to accrue on and from 1 July 2018 even if the
CC Bill is passed after 1 July 2018, which is not the intended policy outcome.
AMENDMENTS (85) and (87)-(91)
These amendments are consequential to the change to the commencement of the first eligible
financial year, being the accrual date for the new charge under the RBS, as set out in
Amendment (84) - refer above. These changes reflect the intention that the new charge should
commence accruing on the designated start date, and not 1 July 2018, as specified in the
CC Bill, as introduced into the Senate.
AMENDMENT (86)
Amendment (86) adds a further reporting item to the annual report carriers will be obliged to
give to the ACMA under section 100 of proposed new Part 3 of the TCPSS Act (Item 13 of
Schedule 4 to the CC Bill). This amendment would provide that for the first five eligible
financial years of the RBS, persons who are a controller of an associate group will be required
to identify themselves as the controller, identify the members of the associated group and set
out the circumstances that resulted in them being the controller of the associated group. These
circumstances may relate to the corporate structure of the controller or of the associated
group. For example, the applicable circumstance may be that the controller holds a majority
controlling shareholding interest in each company. This information is required to enable the
ACMA to provide an assessment under section 102 of proposed new Part 3 of the TCPSS Act
setting out, amongst other things, the charge payable by affected persons, taking into account
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the effect of the concession provided in clause 20 of the Charge Bill, which would apply for
the first five eligible financial years.
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