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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
TELECOMMUNICATIONS LEGISLATION AMENDMENT (ENHANCING
CONSUMER SAFEGUARDS AND OTHER MEASURES) BILL 2023
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Communications, the Hon Michelle Rowland MP)
TELECOMMUNICATIONS LEGISLATION AMENDMENT (ENHANCING
CONSUMER SAFEGUARDS AND OTHER MEASURES) BILL 2023
OUTLINE
The Telecommunications Legislation Amendment (Enhancing Consumer Safeguards and
Other Measures) Bill 2023 (the Bill) will amend the Telecommunications Act 1997 (the Tel
Act), the Telecommunications (Consumer Protection and Service Standards) Act 1999 (the
TCPSS Act) and the Competition and Consumer Act 2010 (CCA) to refine the operation of
the statutory infrastructure provider (SIP) regime. It will also make technical and other
amendments to legislation to improve the operation of telecommunications regulation outside
the SIP regime, including changes that enhance the enforcement and reporting powers of the
Australian Communications and Media Authority (ACMA) and the Australian Competition
and Consumer Commission (ACCC).
Schedule 1 to the Bill proposes changes to the SIP regime. The SIP regime is currently
contained in Part 19 of the Tel Act and provides for the connection and supply to premises
across Australia of a baseline broadband service that generally also supports voice (telephone)
communications. The majority of the changes proposed in Schedule 1 refine the processes for
determining service areas, how they are described, varied and revoked, and also how any
Ministerial standards, rules and benchmarks operate. Eight more significant changes are
proposed, to:
• bring private networks for new developments under the SIP regime;
• remove NBN Co's SIP obligations for areas where other SIPs have submitted
'anticipatory notices' once premises are built and occupied;
• give the SIP regime clear effect by removing an exemption for 'declared' services;
• provide stricter rules for the exit of SIPs from a service area;
• clarify that SIP standards, rules and benchmarks can cover service pricing;
• provide that SIP standards and rules can require SIPs to pay compensation if they
contravene a standard or rule;
• clarify the ability of the Telecommunications Industry Ombudsman (TIO) to handle
complaints involving the connection of services by SIPs; and
• give Ministerial benchmarks priority over the ACCC's or SIPs' terms and conditions.
Schedule 2 to the Bill would provide powers for the ACMA to issue remedial notices to
developers who do not install functional fibre-ready facilities in proximity to a development.
Schedule 3 would provide powers for the ACMA, in its public reports, to link carriers and
carriage service providers (CSPs) to their performance on certain customer service issues, and
to more easily share information with the Department on request.
Schedule 4 to the Bill amends the universal service regime in Division 2 of Part 2 of the
TCPSS Act to provide that the Minister may determine service areas that relate to a primary
universal service provider. This provides scope to designate a new provider for an area, for
example, should this be required in the event the Australian telecommunications regulatory
framework is extended to Norfolk Island.
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Finally, Schedule 5 to the Bill makes several technical amendments to provisions in the Tel
Act and TCPSS Act.
Overall, the Bill will provide greater certainty for industry and consumers about how they can
access the essential broadband and voice services that underpin modern economic and social
activity.
Schedule 1. Statutory Infrastructure Providers
Schedule 1 makes eight main changes.
Bringing private networks for new developments under the SIP regime
While most new developments are serviced by telecommunications carriers, a small number
are serviced by private networks. These private networks are generally controlled by the
developer or owner, who may also supply services as a CSP, or by using an associated CSP.
Currently, the SIP regime applies only to carriers and not to CSPs, and so the Bill will extend
the regime to CSPs who control the private network, or are associated with the controller or
have a contractual arrangement with the developer, and use the network to service new
developments.
The Government has received a small number of complaints from residents in some of the
new developments serviced by these CSPs using private networks. Generally, such
complaints focus on the quality of services available, but a complaint has also been received
about being denied a service by the CSP. Bringing these private networks into the SIP regime
will have the effect of giving residents in the new developments rights to connection and
high-speed broadband and voice services. In the absence of such change, NBN Co, as the
default SIP, would also be obliged to overbuild such networks, which would be duplicative
and wasteful as well as unnecessary.
Removing NBN Co's SIP obligations for areas where other SIPs have submitted anticipatory
notices
NBN Co is the default SIP for all of Australia, except areas where other carriers are required
to be SIPs - generally new developments that they have contracted to service. When another
SIP enters into such a contract, it is required to submit an anticipatory notice to the ACMA.
The notice provides transparency to potential occupants of premises in the area, and to CSPs
who may wish to supply retail services, about the identity of the SIP for the area. It also is
intended to promote efficiency. As another carrier will be the SIP for the area, NBN Co
should not have to build in the area.
Currently, NBN Co remains the SIP for an area while an anticipatory notice has effect. Its
obligations for such areas only cease when other SIPs have installed networks in the areas and
declared a provisional nominated service area. There may sometimes be a gap between
premises being occupied and the network infrastructure being completed and a nominated
service area declared, and in this case, NBN Co as the default SIP, should not need to service
the premises because another carrier is responsible for installing infrastructure under a
contract. Accordingly, the Bill proposes that the SIP who has submitted an anticipatory notice
becomes the SIP for the relevant area once at least one building unit in the area has been
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completed and occupied. This should also encourage other SIPs to roll out networks in a
timely manner, rather than be able to rely on NBN Co as a gap filler.
Giving the SIP regime clear effect by removing an exemption for 'declared' services
The Bill would repeal subsection 360Q(2) of the Tel Act to give the SIP regime clear effect.
The intention in drafting subsection 360Q(2) was that SIPs are taken to fulfil their SIP supply
obligations if they supply 'declared' services. 'Declared' services are wholesale services that
are subject to standard access obligations, and potential or actual regulation by the Australian
Competition and Consumer Commission, under Part XIC of the CCA. The Tel Act therefore
provides a limited exemption, however, there is some uncertainty in industry about the
application of the exemption. The Bill would repeal the exemption but add a mechanism to
adjust the SIP supply obligation in the event a SIP is temporarily unable to fulfil the
obligation. This mechanism would be delivered by legislative instrument and the Minister
would be able to specify conditions that the SIP must meet, such as reporting obligations to
provide transparency to consumers and the regulator.
Providing stricter rules for the exit of SIPs from a service area
SIPs are required to provide a notice to the Secretary of the Department, and the ACMA,
when they are likely to be unable to fulfil their SIP obligations in a service area. SIPs may be
unable to fulfil their obligations for a number of reasons, but generally it would be because
they have disposed of their network in the area, have chosen to cease operating in the area, or
have become insolvent.
Currently, there is no minimum notice period in the statute and no set format for the contents
of notices. Establishing a minimum notice period would ensure that there is adequate time for
the ACMA and NBN Co (as the default SIP) to react. Similarly, providing powers for the
ACMA to determine the format of notices will make sure it has adequate information to vary
service areas in response to the notice. The Bill provides for a minimum notice period of 12
months where a SIP does not identify an alternative carrier to take on its responsibilities, if it
is reasonably practicable to do so, or, if it is not reasonably practicable, 10 business days after
the SIP becomes no longer able to fulfil its role. Where a SIP does identify an alternative
carrier to take on its responsibilities, then the minimum notice period is 90 days. The Bill also
provides powers for the ACMA to determine the format of notifications, and to determine
additional requirements by legislative instrument.
Providing that SIP standards and rules can require SIPs to pay compensation
The Tel Act currently provides that the Minister may, by legislative instrument, make
standards, rules or benchmarks and that SIPs must comply with those standards, rules or
benchmarks. Standards or rules can deal with the terms and conditions of supply by SIPs.
There is uncertainty, however, whether those standards or rules could require SIPs to pay
compensation (for example, a rebate or damages) to a customer when the SIP contravenes a
standard or rule. As the SIP regime is intended to be the foundation for comprehensive future
regulation of wholesale service standards, if it were decided that SIPs should pay
compensation to their customers, then the statute needs to be clear on this and so should be
amended.
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The Bill includes compensation provisions based on the Customer Service Guarantee set out
in Part 5 of the TCPSS Act. Under the proposed provisions, determinations made by the
Minister setting SIP standards or rules would be able to specify that a specified standard or
rule set out in the determination is a designated compensable standard or rule. If a SIP
contravenes a designated compensable standard or rule, then the SIP is liable to pay damages
to the customer for the contravention.
Confirming that SIP standards, rules and benchmarks can cover service pricing
The Minister can make SIP standards, rules and benchmarks about matters concerning the
supply, or proposed supply, of an eligible service to a CSP. While this would generally be
understood to cover service pricing, the Bill amends the statute to make this clear, given
standards or rules could potentially require SIPs to pay compensation to customers (and may
need to specify the amount of compensation, or a rebate), and also should the Minister wish to
establish policy priorities in relation to service pricing (such as uniform pricing of services).
Clarifying the ability of the TIO to handle SIP complaints
The TIO is concerned that it cannot investigate and determine complaints about SIP
connections. The Bill would provide the TIO with these powers, allowing it to take on a more
comprehensive role in resolving complaints about SIPs.
Giving Ministerial benchmarks priority over the ACCC's or SIPs' terms and conditions
Under provisions in the CCA, Ministerial SIP standards or rules determinations have priority
over ACCC access determinations or binding rules of conduct, and over SIPs' special access
undertakings or access agreements. This provides clarity that SIPs must comply with such
standards or rules where they are inconsistent with an ACCC requirement or a SIP's own
terms and conditions. The CCA does not currently provide that SIP benchmarks set by the
Minister prevail over ACCC instruments or SIPs' terms and conditions, and so the Bill
amends the CCA to address this.
Other amendments to the SIP regime
Schedule 1 also makes a range of other amendments to fine tune the operation of the SIP
regime. These fall into the following broad categories:
1. Removing spent provisions related to NBN Co's rollout.
2. A general change to replace requirements to publish notices or documents with a
requirement to make those available on websites.
3. A general requirement for SIPs to have websites, to provide transparency for
consumers and industry.
4. Clarifying the mechanics of how service areas are 'nominated' and how these areas
can be amended or revoked.
5. Providing that anticipatory notices can be varied.
6. Clarifying how SIP obligations are fulfilled if multiple SIPs are designated for a
service area.
7. Expanding the list of powers that the Minister may delegate to the ACMA, and
providing that the ACMA may sub-delegate those powers.
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8. Providing powers for the Secretary of the Department to require carriers or CSPs to
provide information if the Secretary considers that they have information that is
relevant to the designation of SIP areas.
9. Clarifying that the ACMA may determine the format for describing geographic areas,
and vary the base geographic coordinate system.
10. Requiring SIPs who refuse to supply wholesale services to provide a notice to CSPs,
including reasons for the refusal, within a specified timeframe, to provide a clearer
complaint resolution path.
11. Clarifying the procedures for making SIP standards, rules and benchmarks.
12. Confirming SIPs are required to cooperate with, and assist, the ACMA where it
conducts compliance audits of SIPs.
13. Providing powers for the ACMA to publish information or reports provided to it under
SIP rules.
Further explanation of these amendments is provided at the Notes on Clauses in Schedule 1 to
the Bill.
SIP service areas
Service areas play a key role in the SIP regime and are the subject of many of the fine-tuning
amendments. This section therefore gives a general explanation of service areas and the
changes being made to them.
Given the SIP regime accommodates multiple carriers operating in a competitive market, it
provides for different ways to define the service areas that SIPs must service. There are
currently four such service areas:
1. The 'general' service area: This is all of Australia, excluding nominated or
designated service areas, and NBN Co must service it.
2. 'Nominated' service areas: When a carrier has installed a network in a development
under a contract, the carrier must publish a declaration on its website 'nominating' the
development as a service area, and notify the ACMA. This makes it the SIP for the
'nominated service area'. Currently about 500 service areas have been nominated.
3. 'Designated' service areas: As the SIP regime took effect on 1 July 2020, but carriers
had been rolling out competitive networks in new developments for about 15 years
before that, there needed to be a way to bring these earlier networks under the SIP
regime. This is done by legislative instrument, with the Minister 'designating' the
service areas and identifying the carriers who are the SIPs for the designated areas.
Currently there are about 1,770 'designated service areas'.
4. Areas subject to carrier licence conditions: 33 developments operated by
OptiComm, Places Victoria and NT Technology Services were previously subject to
carrier licence conditions that imposed SIP-like service and connection obligations.
Consequently, the areas were determined, under the statute, to be 'nominated service
areas' (and the relevant licence conditions were revoked). As NT Technology Services
and Places Victoria have sold their networks, the SIPs for their service areas were
changed to OptiComm and CNT Corporation during 2020. Commented [IL1]: TelAct 1997 Section 360B
Section 360C
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The Bill would add two new types of service areas to improve the operation of the regime.
The main one is the 'anticipated service area', which is the area subject to an anticipatory
notice and for which a carrier or CSP will take on SIP obligations once a building unit is
occupied (item 76 of Schedule 1 refers). Linked to this is a 'pending area' (item 26 of
Schedule 1 refers), which will be the same area as an anticipated service area, but minus any
existing premises in the area that are being served by NBN Co (and thus should continue to
receive services while the pending area is being developed). It is not expected that pending
areas would be common, but the Bill provides a safeguard should it be required.
For example, a farmer with farmland and a house in the peri-urban area of a city may
currently have a NBN fixed wireless service. The farmer could sell some farm land adjacent
to their premises and the existing fixed-line footprint for development. A carrier other than
NBN Co could be contracted to service the new development and the farmer's existing
premises with a fixed-line network. While the new fixed-line network is being built, NBN Co
would need to continue to service the old farm house with fixed wireless as SIP and the
project area of the development, excluding the farm house, would be a 'pending area' (as the
rollout of the SIP network is 'pending'). Once another building in the pending area has been
built and occupied the pending area would become an 'anticipated service area' and the SIP
would need to service it and any other occupied buildings in the 'anticipated service area'.
Once the fixed-line network was completed (including to the farm house) the SIP would need
to declare a provisional nominated service area that encompassed both the anticipated service
area and the farm house. At that time the SIP would become the provider responsible for the
farm house, taking over the obligation from NBN Co.
Schedule 2. Deployment of optical fibre
Part 20A of the Tel Act requires developers to install functional fibre-ready facilities in
proximity to building lots or units before selling or leasing those lots or units. Failure to do
this is enforceable by the ACMA through court action. Court action may be costly and
excessive where smaller developments or developers are concerned.
Schedule 2 proposes amendments to Part 20A to create a power for the ACMA to issue
remedial notices. Remedial notices could be issued if the ACMA reasonably believes that a
person is contravening, has contravened, or is likely to contravene a civil penalty provision
within Part 20A. The ACMA may give the person a remedial notice to require the person to
remedy the contravention, prevent the likely contravention from occurring, or remedy the
things or operations causing the contravention or likely contravention.
Schedule 3. Disclosure of Information
Part 7A of the Australian Communications and Media Authority Act 2005 (the ACMA Act)
limits the circumstances in which the ACMA can disclose information it receives in
confidence, or obtains through the exercise of certain legislative powers (Authorised
Disclosure Information or ADI). The ACMA can publish reports that identify the
performance of individual providers where the relevant providers have provided consent or if
the information is publicly available. Otherwise, the ACMA is limited to publishing
summaries and statistics. In effect, Part 7A means the ACMA's public reports, for example
on complaints-handling, do not identify and compare the performance of individual
providers, but provide disaggregated statistics and summaries. This limits the utility of the
ACMA's reports, including their ability to foster improved provider performance through
clear accountability. Consequently, Schedule 3 of the Bill proposes amendments that would
6
allow the ACMA to disclose the identity of a CSP in public reporting on specified matters
that go to the quality of customer service.
Schedule 3 of the Bill would also amend Part 7A of the ACMA Act to require, rather than
only permit, the ACMA to provide certain information to the Department on request, for the
purpose of advising the Minister. This amendment will improve timely access to information,
which can be critical in providing pertinent advice.
Schedule 4. Primary universal service providers
Schedule 4 to the Bill amends the universal service regime in Division 2 of Part 2 of the
TCPSS Act to provide that the Minister may determine service areas that relate to a primary
universal service provider. While no decision has yet been made on determining such areas,
this provides clear scope to designate a new provider for an area, for example, should this be
required in the event the Australian telecommunications regulatory framework is extended to
Norfolk Island.
Schedule 5. Technical amendments
Schedule 5 makes several technical amendments to largely unrelated measures in
telecommunications legislation to address previous drafting errors. These amendments are to:
• enable the ACCC Chairperson or appointed staff to issue infringement notices;
• remove a reference to a paragraph that is no longer in the Tel Act;
• specify, as originally intended, that contraventions of the civil penalty provisions relating
to the structural separation requirements in Part 8 of the Tel Act attract a maximum
penalty of $10 million;
• clarify the maximum penalties which apply to contraventions of the anti-avoidance
provisions relating to the Regional Broadband Scheme to reflect higher penalty levels, as
originally intended;
• enable the ACCC to create guidelines for the issuing of infringement notices; and
• clarify that references in the TCPSS Act to the boundary of a telecommunications
network are references to provisions in the Tel Act.
Consultation
In developing the Bill, the Department consulted publicly and directly contacted SIPs,
industry and consumer representatives, the ACCC and the ACMA. An exposure draft of the
Bill was issued on 31 August 2022, with submissions due by 30 September 2022. Eleven
submissions were received from industry, consumer representatives and state or territory
government agencies. There was general support for the provisions in the Bill, but some
concerns were expressed that the drafting of the clauses dealing with private networks may be
too broad and capture CSPs that were not using private networks. There was also some
concern from industry about the ACMA having the ability to link carriers and CSPs to their
performance data in its public reports.
The Government made some changes to the private networks clauses to target them more
closely to CSPs operating on private networks. Some other changes were made to other
provisions in the Bill to fine tune drafting. The Government consulted industry stakeholders
on aspects of the revised drafting prior to the introduction of the Bill.
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The Office of Impact Analysis advised that there were no regulatory impacts from the
proposals in the Bill and that a RIS was not therefore required.
FINANCIAL IMPACT STATEMENT
There are no financial impacts from this Bill.
8
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
TELECOMMUNICATIONS LEGISLATION AMENDMENT (ENHANCING
CONSUMER SAFEGUARDS AND OTHER MEASURES) BILL 2023
Overview of the Bill
The Telecommunications Legislation Amendment (Enhancing Consumer Safeguards and
Other Measures) Bill 2023 (the Bill) will amend the Telecommunications Act 1997 (the Tel
Act), the Telecommunications (Consumer Protection and Service Standards) Act 1999 (the
TCPSS Act) and the Competition and Consumer Act 2010 (CCA) to refine the operation of
the statutory infrastructure provider (SIP) regime. It will also make amendments to improve
the operation of telecommunications regulation outside the SIP regime, including changes that
enhance the enforcement and reporting powers of the Australian Communications and Media
Authority (ACMA) and the Australian Competition and Consumer Commission (ACCC).
Schedule 1 to the Bill proposes changes to the SIP regime. The SIP regime is currently
contained in Part 19 of the Tel Act and provides for the connection and supply to premises
across Australia of a baseline broadband service that generally also supports voice (telephone)
communications. The majority of the changes proposed in Schedule 1 refine the processes for
determining service areas, how they are described, varied and revoked, and also how any
Ministerial standards, rules and benchmarks operate. Eight more significant changes are
proposed, to:
• bring private networks for new developments under the SIP regime;
• remove NBN Co's SIP obligations for areas where other SIPs have submitted
'anticipatory notices' once premises are built and occupied;
• give the SIP regime clear effect by removing an exemption for 'declared' services;
• provide stricter rules for the exit of SIPs from a service area;
• clarify that SIP standards, rules and benchmarks can cover service pricing;
• provide that SIP standards and rules can require SIPs to pay compensation if they
contravene a standard or rule;
• clarify the ability of the Telecommunications Industry Ombudsman (TIO) to handle
complaints involving the connection of services by SIPs; and
• give Ministerial benchmarks priority over the ACCC's or SIPs' terms and conditions.
Schedule 2 to the Bill would provide powers for the ACMA to issue remedial notices to
developers who do not install functional fibre-ready facilities in proximity to a development.
Schedule 3 would provide powers for the ACMA, in its public reports, to link carriers and
carriage service providers (CSPs) to their performance on certain customer service issues, and
require it to share information with the Department on request.
Schedule 4 to the Bill amends the universal service regime in Division 2 of Part 2 of the
TCPSS Act to provide that the Minister may determine service areas that relate to a primary
universal service provider. This provides scope to designate a new provider for an area, for
example, should this be required in the event the Australian telecommunications regulatory
framework is extended to Norfolk Island.
9
Finally, Schedule 5 to the Bill makes several technical amendments to correct provisions in
the Tel Act and TCPSS Act.
Overall, the Bill will provide greater certainty for industry and consumers about how they can
access the essential broadband and voice services which are important for social, economic,
political and cultural activity.
Human rights implications
The Bill is compatible with the rights and freedoms recognised or declared by the
international instruments listed in subsection 3(1) of the Human Rights (Parliamentary
Scrutiny) Act 2011 as they apply to Australia.
Under Schedule 3 to the Bill, the ACMA would not be authorised to disclose anything that is
likely to enable the identification of an end-user of a carriage service.
The Bill does not engage any of the applicable rights or freedoms.
Conclusion
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act
2011.
10
ABBREVIATIONS
The following abbreviations are used in this explanatory memorandum:
ACCC Australian Competition and Consumer Commission
ACMA Australian Communications and Media Authority
ACMA Act Australian Communications and Media Authority Act
2005
ADI Authorised Disclosure Information as defined in the
ACMA Act
AIA Acts Interpretation Act 1901
Bill Telecommunications Legislation Amendment
(Enhancing Consumer Safeguards and Other
Measures) Bill 2023
CCA Competition and Consumer Act 2010
CSP/CSPs carriage service provider/carriage service providers
Department Department of Infrastructure, Transport, Regional
Development, Communications and the Arts
Legislation Act Legislation Act 2003
Mbps megabits per second
Minister the Minister responsible for administering the
Telecommunications Act 1997
NBN National Broadband Network
NBN Co NBN Co Limited
NBN Companies Act National Broadband Network Companies Act 2011
SIP Statutory infrastructure provider
TCPSS Act Telecommunications (Consumer Protection and
Service Standards) Act 1999
Tel Act Telecommunications Act 1997
TIO Telecommunications Industry Ombudsman
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NOTES ON CLAUSES
TELECOMMUNICATIONS LEGISLATION AMENDMENT (ENHANCING
CONSUMER SAFEGUARDS AND OTHER MEASURES) BILL 2023
Clause 1: Short Title
Clause 1 provides that the Bill, when enacted, may be cited as the Telecommunications
Legislation Amendment (Enhancing Consumer Safeguards and Other Measures) Act 2023.
Clause 2: Commencement
Clause 2 provides for the commencement of the Bill.
Item 1 of Column 1 in the table at subclause 2(1) provides that the whole of the Act would
commence on the day after the Act receives the Royal Assent.
Clause 3: Schedule(s)
Clause 3 provides that each Act that is specified in a Schedule to the Bill is amended or
repealed as set out in the applicable items in the Schedule concerned, and any other item in a
Schedule has effect according to its terms. There are five Schedules to the Bill, which would
amend the Tel Act, the TCPSS Act and the CCA and the ACMA Act.
Schedule 1 - Statutory infrastructure providers
Part 1 - Amendments
Part 1 of Schedule 1 to the Bill contains amendments to the CCA (items 1-4 inclusive), the
Tel Act (items 5-166 inclusive) and the TCPSS Act (items 167-170 inclusive), along with
some applications and transitional provisions (items 171-175 inclusive). These amendments
refine the operation of the SIP regime in Part 19 of the Tel Act.
Competition and Consumer Act 2010
Item 1 - Paragraph 152BCCB(a)
Item 2 - Paragraph 152BDCB(a)
Item 3 - Subsection 152BEBH(1)
Item 4 - Paragraph 152CBID(a)
Currently, these four provisions set out an order of priority for any Ministerial standards or
rules made under sections 360U or 360V of the Tel Act, in relation to certain instruments,
agreements or undertakings referred to in Part XIC of the CCA. Briefly, an access
determination, a binding rule of conduct, an access agreement or a special access undertaking
has no effect to the extent to which it is inconsistent with a standard determined under section
360U, or rules made under section 360V. To protect existing contractual arrangements, a
standards or rules determination only prevails over an access agreement made or varied after
the standard or rule is made.
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Items 1-4 would amend these four provisions to add benchmarks that may be set under
section 360U of the Tel Act. The items therefore would clarify that a benchmarks
determination would also prevail over the four types of instruments, agreements or
undertakings, in the circumstances currently specified in the CCA.
The order of priority is required to provide clarity to industry when several different
mechanisms may, at the same time, set out terms and conditions for wholesale services. For
example, service standards may be contained in access agreements, a special access
undertaking and an access determination. Any Ministerial standard, rule or benchmark
determination would prevail over all of these (noting the limited exception in relation to
access agreements).
Telecommunications Act 1997
Item 5 - Section 360
Item 5 would amend section 360 of the Tel Act to replace the word 'publish' with the words
'make available on its website'. Section 360 is the simplified outline of Part 19 of the Tel Act,
and provides that a SIP must publish the terms and conditions on which it offers to connect
premises and supply eligible services to CSPs.
Item 5, together with items 49, 100-104, 108-109, 114-118 and 148-154 of Schedule 1, is
proposed because there is a risk that a SIP could publish its terms and conditions, and other
documents, one time on its website, remove those terms and conditions and claim to have
complied with its obligation. The changes require SIPs to make the terms and conditions
available on their websites on an ongoing basis, to make the intention patently clear that the
terms and conditions must be continually available there.
These changes are only intended to have effect in relation to the requirements of Part 19 of the
Tel Act. They are not intended to limit other provisions in telecommunications legislation or
legislative instruments.
Item 6 - Section 360A
Item 6 would insert new definitions into section 360A for new key terms being introduced by
the Bill. Further explanations of terms are provided at the notes on the relevant clauses.
The term anticipated service area has the meaning given by proposed section 360KA (see
item 82 of Schedule 1).
The term associate has the meaning given by proposed section 360AB (see item 18 of
Schedule 1).
The term backhaul infrastructure has the meaning generally accepted within the
telecommunications industry. This definition is consequential to the amendments inserted by
items 32, 39 and 46 of Schedule 1 to the Bill, and relates to contracts to supply backhaul,
which do not give rise to a requirement for a carrier to declare a provisional nominated
service area. Basically, backhaul is the transmission of aggregated services from premises in a
localised area, like a real estate development, to the core network and the wider
telecommunications system.
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The term building unit has the same meaning as in Part 20A of the Tel Act. The term is used
in proposed section 360KA, to be inserted by item 82 of Schedule 1. It helps define when an
area that is subject to an anticipatory notice becomes an anticipated service area, namely,
when at least one building unit has been constructed in the area, and the building unit is
occupied.
The term compensation rules means rules made under proposed section 360VH, to be inserted
by item 147 of Schedule 1. Compensation rules could be made by the Minister, by legislative
instrument, to specify an amount of compensation payable by a SIP.
The term compliance audit has the meaning given by proposed section 360XAH (see item
156 of Schedule 1), and refers to audits that the ACMA may conduct of SIPs' compliance
with their obligations.
The term contractual arrangement includes a deed, contract, undertaking or any other form of
legally binding arrangement. This term is used in proposed sections 360HB and 360HC (to be
inserted by item 74 of Schedule 1) and also in proposed sections 360M and 360N (to be
inserted by item 96 of Schedule 1). In all four sections contractual arrangement is used to
describe how a person contracts with the person responsible for a real estate development
project or a building redevelopment project.
The term control has a meaning affected by proposed section 360AC (see item 18 of Schedule
1). That section would assist in determining how control may be understood in relation to
facilities subject to proposed new section 360HB (see item 74 of Schedule 1).
The terms designated compensable rule and designated compensable standard have the
meanings given by proposed subsections 360U(3B) and 360V(1B) (see items 139 and 146 of
Schedule 1). A SIP standard or rule would be able to be designated as compensable, meaning
that a SIP must pay compensation if it contravenes the standard or rule.
Item 7 - Section 360A (definition of designated day)
Item 7 would repeal the definition of designated day in section 360A. This is consequential to
the repeal of spent provisions proposed by item 21.
Item 8 - Section 360A (definition of interim NBN service area)
Item 8 would repeal the definition of interim NBN service area in section 360A. As with the
previous item, this is consequential to the repeal of spent provisions proposed by item 21.
Item 9 - Section 360A
Item 9 would insert a new definition of mobile network into section 360A. A mobile network
is defined to mean a telecommunications network that is used principally to supply public
mobile telecommunications services. The term is used in proposed new sections 360M and
360N, to be inserted by item 96 of Schedule 1. The sections would provide exemptions from
the requirement to declare a provisional nominated service area for carriers who install mobile
network infrastructure within, or in proximity to, the project area of a real estate development
project or a building redevelopment project.
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Item 10 - Section 360A (definition of nominated service area)
Item 10 would insert a reference to section 360HB into the existing definition of nominated
service area, which currently states that a nominated service area has the meaning given by
section 360H or 360J. This is consequential to item 74 of Schedule 1, which would insert new
section 360HB into the Tel Act, and thereby create a mechanism for the project areas of real
estate development projects, or building redevelopment projects, serviced by CSPs to become
nominated service areas.
Item 11 - Section 360A (definition of provisional interim NBN service area)
Item 11 would repeal the definition of provisional interim NBN service area in section 360A.
This is consequential to the repeal of spent provisions proposed by item 21.
Item 12 - Section 360A (definition of provisional nominated service area)
Item 12 would insert a reference to section 360HB into the existing definition of provisional
nominated service area, which currently states that a provisional nominated service area has
the meaning given by section 360H. This is consequential to item 74 of Schedule 1, which
would insert new section 360HB into the Tel Act, and thereby create obligations for CSPs
who meet the requirements under section 360HB to declare a provisional nominated service
area.
Item 13 - Section 360A
Item 13 would insert a new definition of radiocommunications fixed voice call into section
360A. A radiocommunications fixed voice call is defined to mean a voice call provided using
a carriage service:
(a) supplied by means of a telecommunications network other than a fixed-line
telecommunications network; and
(b) marketed to customers, or potential customers, as a carriage service that
enables end-users to make and receive voice calls at premises occupied or used by the
end-users.
The term is used in proposed new sections 360M and 360N, to be inserted by item 96 of
Schedule 1. The sections would provide exemptions from the requirement to declare a
provisional nominated service area for carriers who install telecommunications network
infrastructure that is capable of being used to supply radiocommunications fixed voice calls,
within, or in proximity to, the project area of a real estate development project or a building
redevelopment project.
Item 14 - Section 360A (definition of request)
Currently, a request in Part 19 of the Tel Act is taken to include a notional request by a
corporation (in its capacity as a CSP) to itself (in its capacity as a carrier). The definition
captures SIPs who are vertically integrated, and otherwise could not be taken to comply with
requests to connect premises or supply eligible services, which under sections 360P and 360Q
15
are made by a CSP to a carrier. Item 14 would amend the definition of request so that the
definition retains the concept of a notional request by person to a person, but no longer
distinguishes between a single entity that acts as both a CSP and a carrier.
The amendment is required because a vertically integrated CSP, that becomes subject to SIP
obligations under proposed new section 360HB, or under section 360L as proposed to be
amended by this Bill, would not meet the current definition. Importantly, the definition as
amended would apply to vertically integrated carriers and CSPs.
Item 15 - Section 360A (paragraph (a) of the definition of statutory infrastructure
provider)
Item 15 would repeal paragraph (a) of the definition of statutory infrastructure provider,
which refers to an interim NBN service area. As this is a spent provision that is being repealed
by item 21 of Schedule 1, item 15 is consequential to that repeal.
Item 16 - Section 360A (after paragraph (c) of the definition of statutory infrastructure
provider)
Item 16 would insert a new paragraph (ca) into the definition of statutory infrastructure
provider. Currently, the definition specifies SIPs in relation to their service areas, stating that
the SIP for the general service area has the meaning given by section 360G (paragraph (b)),
the SIP for a nominated service area has the meaning given by section 360K (paragraph (c)),
and the SIP for a designated service area has the meaning given by section 360L (paragraph
(d)). Section 360G then provides that NBN Co is the SIP for the general service area, and
subsection 360K(1) (for example) specifies that if an area is a provisional nominated service
area because of a declaration made by a carrier under section 360H, then that carrier is the SIP
for the nominated service area. The same approach applies in relation to section 360L.
Item 16 therefore adds the new concept of an anticipated service area, being inserted by item
82, to this existing list of service areas. The item would provide that the SIP for an anticipated
service area has the meaning given by proposed section 360KB, which provides that if an area
is specified in an anticipatory notice given by a carrier (or CSP), and the area is an anticipated
service area, then the carrier (or the CSP) is the SIP for the anticipated service area.
Item 17 - At the end of subsection 360AA(2)
Item 17 would add a note to remind the reader that a legislative instrument that determines
conditions under subsection 360AA(2) may be varied or revoked under subsection 33(3) of
the AIA.
Item 18 - At the end of Division 1 of Part 19
Item 18 would add four new sections to Division 1 of Part 19, to define associate, control,
control of a company and when a person is in a position to exercise control of a facility.
These definitions are consequential to proposed section 360HB (see item 74 of Schedule 1),
and help to determine when a CSP must declare a provisional nominated service area.
Proposed section 360AB provides a definition of associate in relation to the control of a
facility that is subject to proposed section 360HB. This definition is modelled on the
definition of associate in section 152 of the Tel Act, and is intended to have broad application
to capture different possible relationships through which control of a facility may be realised.
16
Section 360AB specifies the persons that will be considered an associate of a person (the first
person) who is in a position to control a facility that is being used by a CSP to supply carriage
services (and therefore becomes subject to section 360HB). Proposed section 360AB also
provides a definition of associate in relation to the control of a company.
Proposed subsection 360AB(2) sets out circumstances where persons will be taken not to be
an associate of the first person.
Proposed subsection 360AB(2) is intended to ensure that the definition of 'associate' in
proposed subsection 360AB(1) does not apply where ACMA is satisfied that the persons do
not act together in any relevant dealings relating to the facility or company, and neither of
them is in a position to exert influence over the business dealings of the other in relation to the
facility or company. That is, the ACMA is given the discretion to ensure that the definition is
not applied too widely.
Proposed section 360AC is modelled on section 153 of the Tel Act and qualifies the meaning
of control. The section is inserted for the avoidance of doubt, and is intended to ensure that
control of a facility in Part 19 of the Tel Act includes control as a result of, or by means of,
trusts, agreements, arrangements, understandings and practices, whether or not having legal or
equitable force and whether or not based on legal or equitable rights. The section therefore
enables the determination of control of a facility to have a very broad application.
Proposed section 360AD is modelled on section 154 of the Tel Act and qualifies the meaning
of control of a company. It provides that, for the purposes of Part 19 of the Tel Act, the
question of whether a person is in a position to exercise control of a company is to be
determined under Schedule 1 to the Broadcasting Services Act 1992. However, in determining
that question, the definition of associate in subsection 6(1) of the Broadcasting Services Act
1992 does not apply, and instead the definition of associate in proposed new section 360AB
would apply.
Proposed section 360AE is modelled on section 155 of the Tel Act and qualifies the meaning
of control of a facility. It sets out circumstances when a person (whether alone or together
with one or more other persons) will be taken to be in a position to exercise control of a
facility for the purposes of Part 19. The proposed section also includes tests where a company
other than the first person legally or beneficially owns the facility.
Proposed subsection 360AE(2) provides that an employee is not, except through an
association with another person, to be regarded as being in a position to exercise control of a
facility purely because of being an employee.
For the avoidance of doubt, proposed subsection 360AE(3) provides that more than one
person may be in a position to exercise control of a facility.
These clauses capture direct and indirect control measures, and aim to prevent hidden forms
of control being used to avoid the regulatory requirements.
Item 19 - Section 360B
Item 19 would repeal the existing simplified outline of Division 2 of Part 19 and replace it
with a new simplified outline that reflects the amendments being introduced by the Bill. Key
changes include recognising that CSPs may be SIPs, removing reference to spent provisions,
and recognising the new concept of anticipated service areas.
17
Item 20 - Section 360C
Item 20 would repeal and replace the existing section 360C, to remove reference to spent
provisions and include anticipated service areas in the definition of service area.
Item 21 - Subdivision A of Division 2 of Part 19
Item 21 is the key measure that repeals spent provisions in Part 19. Currently, Subdivision A
of Division 2 of Part 19 sets out rules that were used in determining NBN Co's SIP status
while the rollout of the NBN was still under way. Areas that it had declared 'ready for
service' became 'interim NBN service areas' with NBN Co as the SIP. These arrangements
were to continue until the Minister declared, under section 48 of the NBN Companies Act,
that the NBN should be treated as built and fully operational (referred to in Part 19 as the
designated day).
As the Minister declared the NBN to be taken to be built and fully operational on
11 December 2020, the provisions that applied before the designated day are no longer
required. Accordingly, item 21 and associated consequential provisions would repeal this
legislation.
Item 22 - Subdivision B of Division 2 of Part 19 (heading)
Item 22 would repeal the current heading, which refers to 'rules applicable after the start of
the designated day', and replace it with a new heading 'service areas and statutory
infrastructure providers'. This is consequential to item 21.
Item 23 - Section 360F
Item 23 would amend section 360F to remove a reference to the designated day. This is
consequential to item 21.
Item 24 - After paragraph 360F(a)
Section 360F of the Tel Act defines the general service area as Australia, other than a
nominated service area or a designated service area. NBN Co is the SIP for the general service
area, and other telecommunications providers are the SIPs for nominated service areas or
designated service areas. Item 24 adds two new items to the list of exclusions from the
general service area, a pending service area and an anticipated service area. Pending service
areas are defined in amendments to be inserted by item 25, and anticipated service areas are
defined in amendments to be inserted by item 82. Item 24 is therefore consequential to those
two changes.
Item 25 - At the end of section 360F
Item 25 adds a new subsection (2) to section 360F. The new subsection defines a pending
area. This is an area (a notice area) that is specified in an anticipatory notice under section
360HA or proposed new section 360HC, and neither consists of, nor is included in, a
nominated service area or a designated service area, and does not include so much of the area
as contains premises to which NBN Co provides qualifying carriage services.
The concept of a pending area works together with the new concept of an anticipated service
area (to be inserted by item 82). Further detail is provided against item 82. It recognises that a
18
new development may sometimes contain an existing building unit which is already being
served by NBN Co, but which may eventually be transferred to the new network. The
premises should not lose their access to NBN services while the new SIP's network is being
built. Such premises are to be treated separately from the rest of the notice area. The
remaining notice area becomes the pending area. If the premises are to be served by the
carrier or CSP once it has completed installing infrastructure, then they can be joined again
with the rest of the pending area once the carrier or CSP declares a provisional nominated
service area, which should cover the whole of the notice area.
Item 25 also inserts a note after subsection 360F(2). This advises the reader that anticipated
service areas are determined at section 360KA, and thereby clarifies that a pending area will
become an anticipated service area in due course.
Item 26 - section 360G
Item 26 would remove a reference to the designated day from section 360G. It is
consequential to item 21.
Item 27 - Subdivision C of Division 2 of Part 19 (heading)
Item 27 would repeal the heading to remove reference to rules applicable before, at and after
the start of the designated day. This is consequential to item 21.
Item 28 - Paragraph 360H(1)(a)
Item 28 would insert a reference to section 360HB in paragraph 360H(1)(a) of Part 19. It is
consequential to item 74, which would insert new section 360HB.
Item 29 - Paragraph 360H(2)(a)
Item 29 would amend paragraph 360H(2)(a) to amend one of the conditions that must be
satisfied for a carrier to be required to declare a provisional nominated service area, and
thereby become the SIP for that area. Currently, the paragraph provides that the
telecommunications network infrastructure that a carrier has installed in the project area of a
real estate development project must 'enable the supply of eligible services to premises in the
whole of the project area'. There is a risk that carriers could enter into contracts which omit a
small part of a project area, and thereby evade SIP obligations. This item addresses the risk by
extending the requirement to installations that will enable the supply of eligible services to
premises in 'the whole, or a part of the project area'.
Item 29 is one of a group of amendments, together with items 33, 36, 40, 43-45 and 47 that
address this issue. Similar drafting is also proposed under item 74, which would insert new
section 360HB and require CSPs to declare provisional nominated service areas when they
meet certain conditions as specified in the new section.
Item 30 - After paragraph 360H(2)(a)
Item 30 would insert a new paragraph (aa) that adds an extra condition to the ones that must
be satisfied under subsection 360H(2). This is that the carrier is not already the SIP for a
service area that consists of, or includes, the project area.
19
This new condition recognises that the project area of a real estate development project may
be further subdivided over time, with new contracts being let for those subdivisions. If the SIP
for the area wins those new contracts, then it would be redundant for the SIP to declare a
provisional nominated service area as the area is already inside an existing SIP service area.
Similar drafting is proposed at items 37 and 44, and in proposed new section 360HB (to be
inserted by item 74).
Item 31 - Paragraph 360H(2)(b)
Item 31 would amend paragraph 360H(2)(b) to insert the words 'with the person responsible
for the real estate development project'. Currently, paragraph 360H(2)(b) specifies that one
of the conditions that must be met, for a carrier to declare that a project area is a provisional
nominated service area, is that the carrier must have installed telecommunications network
infrastructure 'under a contract'. The statute does not specify with whom the contract should
be, though the intention is that it would be a contract with the person responsible for the real
estate development. There has been some concern expressed that contracts to obtain access to
declared services, or to supply services to occupants rather than the developer, could be
captured by the statute. Accordingly, this amendment seeks to clarify the original intention.
Matching amendments to item 31 are to be found at item 38 of Schedule 1 (relating to
building redevelopment projects) and in proposed section 360HB (to be inserted by item 74 of
Schedule 1) that deals with the circumstances in which CSPs must declare provisional
nominated service areas.-
Item 32 - After paragraph 360H(2)(b)
Item 32 would insert a new paragraph (ba) that adds an extra condition to the ones that must
be satisfied under subsection 360H(2). This is that the infrastructure that has been installed by
the carrier in the project area of a real estate development project is not backhaul
infrastructure.
This new condition recognises that some carriers may enter into contracts with developers to
supply backhaul to a new development, but not to reticulate services to end-users in premises.
Backhaul contracts should therefore not be captured by the SIP regime; rather, the
infrastructure or facilities that enable the supply of eligible services to premises should be
captured.
Similar drafting is proposed at items 39 and 46, and in proposed new section 360HB (to be
inserted by item 74).
Item 33 - Paragraph 360H(2)(d)
Item 33 would amend paragraph 360H(2)(d) as a consequence of the amendment inserted by
item 29. The amendment ensures that the area a carrier declares to be a provisional nominated
service area matches the whole, or a part, of the project area of a real estate development
project, as the case requires.
Item 34 - At the end of subsection 360H(3)
Item 34 adds a note to remind the reader that a legislative instrument made under subsection
360H(3) may be varied or revoked under subsection 33(3) of the AIA.
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Item 35 - At the end of subsection 360H(3A)
Item 35 adds two notes. The first note is to remind the reader that a legislative instrument
made under subsection 360H(3A) to exempt a specified real estate development project may
be varied or revoked under subsection 33(3) of the AIA.
The second note refers to new section 360M. This reference is intended to remind the reader
that two categories of real estate development projects may also be exempt from subsection
360H(2) by operation of law.
Item 36 - Paragraph 360H(4)(a)
Item 36 would make a similar amendment to item 29. In this case, however, the amendment
relates to the conditions for declaring a provisional nominated service area in a building
redevelopment project, rather than a real estate development project.
Item 37 - After paragraph 360H(4)(a)
Item 37 would make a similar amendment to item 30. In this case, however, the amendment
relates to the conditions for declaring a provisional nominated service area in a building
redevelopment project, rather than a real estate development project.
Item 38 - Paragraph 360H(4)(b)
Item 38 would make a similar amendment to item 31. In this case, however, the amendment
relates to the conditions for declaring a provisional nominated service area in a building
redevelopment project, rather than a real estate development project.
Item 39 - After paragraph 360H(4)(b)
Item 39 would make a similar amendment to item 32. In this case, however, the amendment
relates to the conditions for declaring a provisional nominated service area in a building
redevelopment project, rather than a real estate development project.
Item 40 - Paragraph 360H(4)(d)
Item 40 makes a similar amendment to items 29 and 33 and would amend paragraph
360H(4)(d) as a consequence of the amendment inserted by item 36. The amendment ensures
that the area a carrier declares to be a provisional nominated service area matches the whole,
or a part, of the project area of a building redevelopment project, as the case requires.
Item 41 - At the end of subsection 360H(5)
Item 41 would add a note to remind the reader that a legislative instrument made under
subsection 360H(5) may be varied or revoked under subsection 33(3) of the AIA.
Item 42 - At the end of subsection 360H(5A)
Item 42 would add two new notes at the end of subsection 360H(5A). The first note reminds
the reader that a legislative instrument made by the Minister under subsection 360H(5A) to
exempt a specified building redevelopment project may be varied or revoked under subsection
33(3) of the AIA. The second note draws the reader's attention to new section 360N, which
21
provides exemptions for two categories of building redevelopment projects from the
requirements in subsection 360H(4).
Item 43 - Paragraph 360H(6)(a)
Item 44 - After paragraph 360H(6)(a)
Item 45 - Paragraphs 360H(b) and (d)
These items would insert a similar amendment to that at item 31. The main difference is that
subsection 360H(6) relates to infrastructure that a carrier has installed under a contract in 'a
particular area', rather than in the project area of a real estate development project, as is the
case with subsection 360H(2), being amended by item 31. Item 43 would add the words '(the
relevant area)' at the end of paragraph 360H(6)(a) and item 44 would then provide that a
carrier could not declare a provisional nominated service area for a relevant area for which it
is already the SIP. Item 45 makes consequential amendments to paragraphs 360H(b) and (d).
Item 46 - After paragraph 360H(6)(d)
Item 46 would insert a similar amendment to that at item 32, but in this case relating to
backhaul infrastructure installed under a contract for the relevant area rather than in the
project area of a real estate development project.
Item 47 - Subsection 360H(6)
Item 47 is consequential to item 43 and would substitute 'the relevant area' for 'the area' at
the end of subsection 360H(6).
Item 48 - At the end of subsection 360H(7)
Item 48 would add a note to remind the reader that a legislative instrument made under
subsection 360H(7) may be varied or revoked under subsection 33(3) of the AIA.
Item 49 - Subsections 360H(8) and (9)
Item 49 would repeal the existing subsection 360H(8) (which requires a carrier to publish a
nominated service area declaration on its website) and replace it with a requirement to make a
declaration available on a carrier's website. This is part of a group of amendments, discussed
under item 5, which address a concern about material being published and then removed.
Item 49 also would insert new subsection 360H(9), which provides that, if a carrier makes a
declaration under section 360H, the carrier must give a copy of the declaration to the ACMA,
and do so within 10 business days after making the declaration. This will assist the ACMA in
managing the SIP Register and enforcing Part 19 of the Tel Act.
Item 50 - At the end of subsection 360H(11)
Item 50 would add a note to remind the reader that a legislative instrument made under
subsection 360H(11) may be varied or revoked under subsection 33(3) of the AIA.
22
Item 51 - Subsection 360H(12)
Item 52 - After subsection 360H(12)
Currently, a provisional nominated service area declaration cannot be revoked. There are
circumstances in which this should be done. For example, if a SIP winds up its business, it
may no longer be able to fulfil its SIP obligations and would advise the ACMA and the
Secretary of the Department of this in accordance with section 360R of Part 19. In this case,
any provisional nominated service area declarations made by the SIP should be revoked, as
otherwise there could be confusion whether or not NBN Co, as the default SIP, is responsible
for the service areas.
Items 51 and 52 amend the statute so that the ACMA may, by writing, revoke a declaration
made under section 360H. A similar power is provided under new section 360HB, to be
inserted by item 74, which deals with provisional nominated service area declarations made
by CSPs.
Item 53 - Subsections 360H(14), (15), (16) and (17)
Item 53 would repeal existing subsections 360H(14), (15), (16) and (17) and replace them
with new clauses. The subsections currently provide that the Minister may, by writing, vary
provisional nominated service area declarations, and must consult before doing so. This is an
inefficient process, given that such declarations, to date, have only needed to be varied for
minor reasons, such as a mistake in an address or an error in the geographic coordinates
provided. The new drafting provides that a carrier may vary a provisional nominated service
area declaration, so long as the ACMA has approved the variation. If a carrier wishes to vary
a declaration, the carrier must apply to the ACMA in writing, in accordance with the form
approved in writing by the ACMA, and provide such information or documents as specified
by the ACMA by legislative instrument.
A note reminds the reader that a legislative instrument made by the ACMA under subsection
360H(17) may be varied or revoked under subsection 33(3) of the AIA.
Proposed new subsection 360H(17A) provides that, if a carrier varies a declaration it has
made under section 360H, the carrier must give the ACMA a copy of the variation and do so
within 10 business days after making the variation. This will assist the ACMA in managing
the SIP Register and enforcing Part 19 of the Tel Act.
Item 54 - Subsection 360H(18) (heading)
Item 55 - After subsection 360H(18)
These items are consequential to items 51 and 52 and provide that a revocation of a
provisional nominated service area declaration would not be a legislative instrument. Such
instruments would be administrative in nature and would apply the law to particular
nominated service areas rather than determining the content of the law.
23
Item 56 - Paragraph 360HA(1)(a)
Item 57 - Paragraph 360HA(1)(b)
Item 58 - After subparagraph 360HA(1)(c)(i)
Item 59 - Paragraph 360HA(1)(d)
Item 60 - Subparagraph 360HA(1)(c)(ii)
Item 61 - Paragraph 360HA(2)(a)
Item 62 - Paragraph 360HA(2)(c)
Item 63 - Subparagraph 360HA(2)(d)(ii)
Item 64 - Paragraph 360HA(3)(a)
Item 65 - Paragraph 360HA(3)(b)
Item 66 - After subparagraph 360HA(3)(c)(i)
Item 67 - Subparagraph 360HA(3)(c)(ii)
Item 68 - Paragraph 360HA(3)(d)
Item 69 - Paragraph 360HA(4)(a)
Item 70 - Paragraph 360HA(4)(c)
Item 71 - After subparagraph 360HA(4)(d)(i)
Item 72 - Subparagraph 360HA(4)(d)(ii)
Section 360HA requires carriers, who have entered into a contract to install
telecommunications networks in the project area of a real estate development project or a
building redevelopment project, to give an 'anticipatory notice' to the ACMA. The
anticipatory notice provides transparency for consumers and industry about the identity of the
SIP for the development once it is complete.
Section 360HA reflects the current approach in section 360H, and therefore refers to contracts
for the installation of telecommunications network infrastructure 'that will enable the supply
of eligible services in premises in the whole of the project area'. The majority of items 56-72
amend section 360HA to make similar amendments to those set out at items 33, 36, 40, 43-45
and 47 above; that is, they amend the conditions on which carriers need to submit an
anticipatory notice so that carriers will be required to submit such a notice if they will install
infrastructure in the whole, or a part, of the project area.
Items 58, 59, 66, 68 and 71 set out two further groups of amendments to section 360HA.
Items 58, 66 and 71 add an extra item that notices must address, the date on which the carrier
entered into the contract with the person responsible for the real estate development.
Items 59 and 68 amend the timeframe within which carriers must give anticipatory notices to
the ACMA. This is currently set at 10 business days in the Tel Act. Some submissions on the
draft Bill advised that a longer timeframe would be beneficial, noting that the boundaries of
the project area may be settled after the contract with a developer is signed. Accordingly,
these items amend the timeframe to 20 business days.
These amendments will assist the ACMA in enforcing the provisions.
Item 73 - At the end of section 360HA
Currently, anticipatory notices cannot be varied. While mistakes in these notices are rare, at
least one carrier has provided a notice with incorrect geographic coordinates. While this can
be remedied when the carrier declares a provisional nominated service area, it would also be
beneficial for carriers to be able to vary anticipatory notices, given they may be submitted
some years before network infrastructure is installed and a provisional nominated service area
24
declaration must be made. Given carriers who submit anticipatory notices will also, subject to
the amendments proposed under item 82, become SIPs for anticipated service areas, it is
important that they can be required to fulfil their SIP obligations in relation to correctly
identified areas.
Item 73 therefore would create new subsections 360HA(5)-(9) so that anticipatory notices
may be varied by carriers, so long as the ACMA has approved the variation. If a carrier
wishes to vary a notice, the carrier must apply to the ACMA in writing, in accordance with
the form approved in writing by the ACMA, and provide such information or documents as
specified by the ACMA, by legislative instrument.
A note reminds the reader that a legislative instrument made by the ACMA under subsection
360HA(8) may be varied or revoked under subsection 33(3) of the AIA.
Proposed new subsection 360HA(9) provides that, if a carrier varies a notice it has given to
the ACMA under section 360HA, the carrier must give the ACMA a copy of the variation and
do so within 10 business days after making the variation. This will assist the ACMA in
managing the SIP Register and enforcing Part 19 of the Tel Act..
Item 74 - After section 360HA
Item 74 would insert two new sections, 360HB and 360HC, into Part 19 of the Tel Act. The
two new sections, together with a change to section 360L (see items 83-87) would require
CSPs who meet certain criteria to be the SIPs for areas where they use facilities to supply
carriage services.
Generally, telecommunications infrastructure is installed in new developments by licensed
telecommunications carriers, who use that infrastructure to supply carriage services to the
public. The SIP obligations in Part 19 only apply, at present, to carriers. However, it has
emerged that a small number of developments are serviced by CSPs who use facilities to
supply carriage services. Such developments are generally lifestyle or retirement villages, but
may also be multi-unit buildings in metropolitan areas. The facilities are operated as private
networks. Generally, a carrier is contracted to supply backhaul to the development, which it
does by using a fibre connection which terminates at a hub or main distribution frame. Within
the development, fibre or metallic lines may then be reticulated and connect premises. The
deployments are designed in such a way that the lines within the development do not meet the
statutory distance requirements in subsection 27(3) of the Tel Act. Accordingly, the lines
cannot be classified as 'network units' and the entities controlling the lines do not need to
have a carrier licence to use the lines.
The entities who control the lines do use them to supply voice and Internet services to people
in different premises in the developments, either directly or through an associate or a person
with whom they have an arrangement. The voice and Internet services are carried over the
lines within the developments and over the backhaul lines deployed by carriers. The backhaul
lines are network units for the purposes of subsection 27(3) of the Tel Act. Accordingly, a
person supplies carriage services to the public using a network unit owned by one or more
carriers, and that person is therefore a CSP for the purposes of subsection 87(1) of the Tel
Act.
The Government has received a small number of complaints from residents in these
developments serviced by CSPs. Generally, the complaints focus on the quality or price of
25
services, but at least one complaint has been received that a person was denied a service by
the CSP. The SIP obligations should apply to these developments, and provide access to
services, and service quality, to end-users there.
Proposed sections 360HB and 360HC are modelled on sections 360H and 360HA (as
proposed to be amended by this Bill), which establish obligations on carriers to declare
provisional nominated service areas when they have installed telecommunications network
infrastructure, under a contract, in the project area of a real estate development project or a
building redevelopment project. However, the conditions that apply are different, given that
the telecommunications facilities involved are not network units, and given that the person
who is using the facilities to supply carriage services may not be the person who installed or
owns those facilities.
Under proposed section 360HB, where a facility is installed in, or in proximity to, the project
area of a real estate development project or a building redevelopment project that is not part
of an existing nominated service area, and certain other conditions are met, a CSP must
declare the whole or a part of the project area as a provisional nominated service area within
20 business days after the CSP commences to use the facility. The facility must not be part of
the infrastructure of a telecommunications network. In this context, a telecommunications
network would comprise network units, and therefore be operated or owned by a carrier. As a
result, the obligations in proposed section 360HB would be focussed on private networks
controlled by CSPs or used by CSPs under a contract with a developer, and not on networks
owned or operated by carriers.
The obligations in proposed section 360HB will apply to facilities installed on or after 1 July
2024. The date of 1 July 2024 has been determined to provide CSPs with a period of time to
make necessary adjustments to their business systems and processes to comply with the law.
Developments that are already in existence, and serviced by CSPs, could be brought into the
SIP regime through the Ministerial designation power as proposed to be amended by item 78
of Schedule 1.
At a time (the relevant time) that a CSP (the first CSP) commences to use the facility to
supply carriage services (either to end-users or another CSP) then the first CSP would become
subject to the requirements of section 360HB, if it satisfies any of the following conditions,
specified in proposed paragraphs 360HB(2)(e) (dealing with real estate development projects)
and 360HB(6)(e) (dealing with building redevelopment projects):
• the first carriage service provider is in a position to exercise control of the facility;
• the first carriage service provider is an associate of a person who is in a position to
exercise control of the facility;
• the first carriage service provider has entered into a contractual arrangement with the
person responsible for the real estate development project or the building
redevelopment project, where the contractual arrangement relates to the facility;
• any conditions specified in a legislative instrument made by the Minister.
The conditions reflect the complex ownership and control arrangements witnessed in the
developments serviced by CSPs using private networks. The developer, village owner or
building manager may sometimes operate as a CSP itself, owning the facilities and supplying
carriage services. More frequently, the developer, village owner or building manager may
create a different company which operates as a CSP. That CSP may own the facilities, or a
third, but associated, company may own the facilities. The developer, village owner or
26
building manager could also enter into a contractual arrangement with a CSP, that is not an
associate, to use the facilities to service the development.
Definitions of associate, control and control of a facility would be inserted into Part 19 of the
Tel Act by item 18 of this Bill. These are cast broadly, to capture a wide range of types of
business structure that could produce control or association.
If a CSP satisfies any of the above conditions, it must, by written instrument, declare that the
whole or the part, as the case requires, of the project area is a provisional nominated service
area for the purposes of Part 19, and do so within 20 business days after the relevant time.
The Minister may, by legislative instrument, exempt a specified real estate development
project or building redevelopment project from the requirements, or specify circumstances in
which the obligations do not apply.
When a CSP has declared a provisional nominated service area, it must make a copy of the
declaration available on its website and give the ACMA a copy of the declaration within 10
business days after making the declaration. Such declarations must comply with any
principles determined by the Minister by legislative instrument.
Declarations cannot be revoked except by the ACMA. A CSP can vary a declaration, as long
as the ACMA has approved the variation. Applications to vary a declaration must be in
accordance with a form approved in writing by the ACMA. The ACMA may, by legislative
instrument, specify the information or documents that must accompany an application. A CSP
must provide a copy of the variation to the ACMA and do so within 10 business days after
making the variation.
A CSP's declaration of a provisional nominated service area, and a revocation or variation,
would not be legislative instruments. Such instruments would be administrative in nature as
they apply the law to particular circumstances, rather than determining the content of the law.
Proposed section 360HC is modelled on section 360HA and requires CSPs to give
anticipatory notices to the ACMA in relation to facilities that have been, are in the process of
being, or are going to be installed in proximity to the project area of a real estate development
or building redevelopment project. The obligation on a CSP to give an anticipatory notice
arises when it meets the requirements in proposed section 360HB, and where it would be
required to declare a provisional nominated service area in relation to the project area of a real
estate development project or a building redevelopment project.
Should a CSP satisfy these requirements, the CSP must give the ACMA a written anticipatory
notice.
If the CSP controls, or will be in a position to control, the facility, or is an associate of such a
person, the CSP must include in the anticipatory notice the day on which the facility began to
be installed.
If the CSP has entered into a contractual arrangement with the person responsible for the
project, the anticipatory notice must set out the day on which the contractual arrangement was
entered into.
In both cases, the anticipatory notice must also specify the project area, describe the facility
and set out the CSP's estimate of the time when it is likely to commence to use the facility. In
27
the case where the CSP is or will be in a position to control the facility or is an associate of
such a person, the CSP must submit the notice within 20 business days after the facility began
to be installed. In the case where the CSP entered into a contractual arrangement with a
person responsible for the development project, the CSP must submit the notice within 20
days after the day the contractual arrangement was entered into.
If a CSP wishes to vary an anticipatory notice, the CSP must apply to the ACMA in writing,
in accordance with the form approved in writing by the ACMA, and provide such information
or documents as specified by the ACMA, by legislative instrument. If a CSP varies a notice it
has given to the ACMA under section 360HC, the CSP must give the ACMA a copy of the
variation and do so within 10 business days after making the variation.
Item 75 - Section 360J
Item 76 - At the end of section 360J
Currently, section 360J provides that 33 'development areas', described in three carrier
licence conditions declarations, are nominated service areas for the purposes of Part 19. The
boundaries of these service areas (gazetted during 2013-14) have sometimes been found not
to match network boundaries. Items 75 and 76 would provide powers for the Minister to
declare, by legislative instrument, that a specified development area is not a nominated
service area. This would be equivalent to revoking the service area. The Minister would also
have the power to declare, by legislative instrument, that a specified development area (the
first area) is not a nominated service area and that a specified area (the second area), which
must have at least one point in common with the first area, is a nominated service area. This
would be equivalent to varying the existing nominated service areas established under section
360J.
Notes are provided to remind the reader that legislative instruments made under proposed
subsections 360J(3) and 360J(4) may be varied or revoked under subsection 33(3) of the AIA.
A note is also provided to remind the reader that section 360LA specifies the format for the
description of areas. Item 89 of Schedule 1 would amend section 360LA to include any areas
specified in an instrument made under proposed subsection 360J(4).
Item 77 - At the end of subsection 360K(2)
Item 77 would add a note to remind the reader that a legislative instrument made under
subsection 360K(2) may be varied or revoked under subsection 33(3) of the AIA.
Item 78 - After subsection 360K(1)
Item 79 - Paragraph 360K(3)(b)
Item 80 - At the end of subsection 360K(4)
Item 81 - At the end of section 360K
These items are related to the amendments proposed by items 74 and 76 and would amend
section 360K to provide for nominated service areas covered by a declaration under new
section 360HB or under new subsection 360J(4). Section 360K determines the SIPs for
nominated service areas.
Item 78 provides that, if an area is a provisional nominated service area because of a
declaration made by a CSP under section 360HB, and the whole or a part of the provisional
nominated service area is a nominated service area, then the CSP is the SIP for the nominated
28
service area. The Minister would be able to declare, by legislative instrument, that a different
specified CSP is the SIP for the nominated service area (see proposed subsection 360K(1B).
Item 79 would amend paragraph 360K(3)(b) to refer to subsection 360J(1). This is
consequential to the renumbering of that subsection at item 75 of this Bill.
Item 80 inserts a note after subsection 360K(4) to remind the reader that an instrument made
under the subsection may be varied or revoked under subsection 33(3) of the AIA.
Item 81 deals with nominated service areas declared by the Minister under proposed
subsection 360J(4), which could replace nominated service areas that were previously dealt
with by carrier licence conditions declarations. Proposed subsection 360K(5) provides that the
Minister may, by legislative instrument, declare that a specified carrier is the SIP for the
nominated service area declared under subsection 360J(4). This provision therefore
establishes how the SIP is determined for the area.
Item 82 - After section 360K
Item 82 would insert two new sections into Part 19 - sections 360KA and 360KB. Proposed
section 360KA establishes how anticipated service areas are determined. Proposed section
360KB establishes how the SIP for an anticipated service area is determined.
When a carrier (other than NBN Co) signs a contract with a developer, it is required to submit
an anticipatory notice to the ACMA identifying the development (section 360HA of the Tel
Act). The Bill proposes a similar obligation on CSPs that would fall within the scope of
proposed section 360HB. The anticipatory notice provides advance notice to consumers and
industry that the carrier or CSP is likely to be the SIP for the development once construction
has finished.
NBN Co is the default SIP for all of Australia, including for areas where carriers have
provided the ACMA with anticipatory notices. NBN Co's obligations for such areas only
cease when other carriers have installed networks in the areas and published nominated
service area declarations. There may sometimes be a period of time between premises in the
areas being occupied and the network infrastructure being completed. In such circumstances,
occupants of the premises may seek connection to the NBN. As the default SIP, NBN Co
would need to service the premises even though other carriers or CSPs are contracted to
install infrastructure to them. This could lead to inefficient builds by NBN Co.
Item 82 therefore would provide for an earlier commencement of SIP obligations for
alternative carriers and CSPs. Proposed section 360KA provides that, if at least one building
unit has been constructed in the area specified in the anticipatory notice, and the building unit
is occupied, and the area specified in the notice is not a nominated service area or a
designated service area, then the area specified in the notice is an anticipated service area for
the purposes of Part 19. The section would apply to both carriers and CSPs.
The intention is that the construction of the building lot does not need be complete to the
fullest extent possible, but only to the extent that the building lot is habitable. Accordingly, if
the building lot is occupied, then the building lot is taken to be 'constructed'.
Proposed section 360KB then provides that if a carrier or a CSP has given the ACMA an
anticipatory notice in relation to a real estate development project, and the area is an
anticipated service area, then the carrier or the CSP is the SIP for the anticipated service area.
29
The Minister would be able to declare, by legislative instrument, that an alternative carrier or
CSP is the SIP for the area. This would provide flexibility to adjust to circumstances, such as,
for example, when an entity exits the market or sells infrastructure or facilities.
Notes remind the reader the legislative instruments made under subsections 360KB(2) and
360KB(4) may be varied or revoked under subsection 33(3) of the AIA.
Item 83 - Section 360L
Item 84 - Paragraph 360L(b)
These items would amend section 360L so that the Minister could determine that the SIP for a
designated service area may be a CSP or a carrier. This amendment is linked to the
amendments at item 74, which would bring developments serviced by CSPs using facilities
installed on or after 1 July 2024 into the SIP regime.
The Minister has broad powers to designate service areas. To date, they have been used to
bring new developments or network areas into the SIP regime that were already being
serviced by carriers other than NBN Co before the regime took effect. It is anticipated that the
powers would similarly be exercised to designate areas serviced by CSPs (and not by a
carrier) prior to 1 July 2024. However, the powers could be used to deal with other situations,
for example, where a carrier or CSP has not complied with the obligations to declare
provisional nominated service areas.
Item 85 - Section 360L (before the note)
Item 86 - Section 360L (note)
These items would insert a new Note 1 into section 360L and renumber the existing note as
Note 2. Note 1 would remind the reader that the Minister's designation instrument may be
varied or revoked under subsection 33(3) of the AIA.
Item 87 - At the end of section 360L
The Minister's power to determine SIPs for designated service areas could be used to
determine that there are multiple SIPs for a designated service area. This would be useful
where, for example, a SIP is selling its networks to another SIP and there is a lengthy
transition process, and declaring that both are the SIPs for the relevant areas would better
ensure that end-users can continue to receive voice and Internet services. However, if the
Minister were to determine multiple SIPs for a service area, section 360L currently does not
elucidate how multiple SIPs should discharge their obligations. Item 87 therefore would
amend section 360L to provide overarching clarity.
Item 87 would add new subsections 360L(2), (3) and (4). Proposed subsection 360L(2)
specifies that the Minister may, by legislative instrument, declare that each of 2 or more
specified persons is a SIP for a designated service area. This amendment is inserted to provide
clarity in relation to subsections 360L(3) and (4). Notes remind the reader that this legislative
instrument may be varied or revoked under subsection 33(3) of the AIA, and direct the reader
to section 360LA for the format of the description of a designated service area.
Proposed subsection 360L(3) provides that the Minister must not specify a person in a
declaration under subsection (2) unless the person is a carrier or a CSP. This reflects the fact
that the SIP obligations require the connection of premises, and the supply of eligible
30
services, in order that CSPs may supply carriage services to the public, and only a carrier or a
CSP could therefore comply with the obligations.
Proposed subsection 360L(4) provides clarity as to how multiple SIPs would discharge their
obligations in respect of a designated service area. A SIP obligation would be imposed on
each SIP, but may be discharged by any of the SIPs, and if the obligation is complied with by
any of those SIPs, then the obligation is taken to have been complied with by the other SIP or
SIPs. By way of example, the proposed subsection would address the following circumstances
(which are not limited):
1. There are multiple SIPs, with each fulfilling a separate obligation (for example, one
connects premises, other SIPs supply eligible services).
2. There are multiple SIPs jointly responsible for fulfilling the obligations (for example,
two SIPs have network infrastructure in a designated service area, but their networks
do not overlap, so each SIP connects premises and supplies eligible services where it
has networks).
3. There are multiple SIPs with overlapping networks, and a request for connection or
service may be submitted to any of them; when one SIP fulfils that request, all SIPs
are taken to have fulfilled it.
Item 88 - Paragraphs 360LA(1)(a) and (b)
Item 89 - Paragraph 360LA(1)(f)
Item 90 - Paragraphs 360LA(1)(g) and (h)
Item 91 - After paragraph 360LA(2)(d)
Item 92 - Paragraphs 360LA(2)(e) and (f)
Item 93 - After subsection 360LA(2)
Item 94 - At the end of subsection 360LA(3)
Item 95 - At the end of section 360LA
These items would make a number of changes to section 360LA to improve its operation.
Currently, section 360LA provides that interim NBN service areas declarations, nominated
service area declarations, designated service area determinations, and anticipatory notices for
areas that will later become nominated service areas, must describe the area in a TAB vector
format using the GDA94 coordinate system (or such other format as may have been
determined by the ACMA).
There is some uncertainty whether the ACMA's powers extend to determining a new
coordinate system as well as the format, and so amendments are made to clarify that. Further
amendments are consequential to the changes inserted elsewhere by Schedule 1. Namely:
• item 88 would repeal references to subsections 360D(2) and 360D(3) (which relate to
interim NBN service areas); the amendment is consequential to the repeal of these
subsections at item 21;
• item 89 would insert references to subsections 360HB(2) and (6) (to be inserted by
item 74, relating to requirements for CSPs to declare provisional nominated service
areas), subsections 360J(3) and (4) (to be inserted by item 76, relating to the
Minister's powers to vary or revoke nominated service areas determined under section
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360J) and subsections 360L(1) and (2) (as amended or inserted by items 83-87, and
relating to designated service areas); and
• item 91 would insert references to subsections 360HC(1) and (2) (to be inserted by
item 74) into the list of areas described by an anticipatory notice.
Items 90, 92, 93 and 95 make substantive changes to clarify the distinction between the
format for the description of the areas and the coordinate system to be used. Item 90 would
provide that nominated service areas and designated service areas must be described using the
GDA94 coordinate system or the coordinate system determined by the ACMA by legislative
instrument (see item 93). The areas must also be described in a format determined by the
ACMA (as currently provided for at subsection 360LA(3) of the Tel Act) or, if no format has
been determined, in a TAB vector format. Item 92 makes matching changes in relation to the
areas specified in anticipatory notices.
It should be noted that no amendment is required in relation to anticipated service areas
because these would already have been described in an anticipatory notice.
It is not proposed that a determination by the ACMA (or a variation or revocation) of a
coordinate system be subject to reconsideration by the ACMA. The ACMA would in practice
be limited to choosing a coordinate system that has already been adopted and promulgated by
other Government agencies, such as Geoscience Australia, in which case there would already
have been significant consideration of the merits of the new system. Prior to making the
instrument, the ACMA would also need to be satisfied that appropriate and reasonably
practicable consultation has occurred in accordance with section 17 of the Legislation Act.
Items 93 and 95 provide that, if a coordinate system or a format is determined by the ACMA,
the determination does not apply to a declaration made, or a notice given, before the
commencement of the determination. As a consequence, there would be no need for SIPs (or
the Minister) to re-describe all service areas determined prior to the instrument being made.
It is possible that the ACMA may amend both the format for the description of areas and, in
the future, the coordinate system. Smaller SIPs have experienced difficulty with using TAB
vector format, and the ACMA has been considering whether simpler and more accessible
formats could be used. In relation to the coordinate system, Australia's national grid of
latitude and longitude coordinates moves with the drift of the continent (by 2020 Australia
had moved about 1.8 metres northeast of where it was in 1994). This will eventually create
inconsistencies between coordinates used by satellite positioning systems, which are fixed to
the centre of the Earth, and coordinates based on GDA94, which do not change over time. A
new coordinate system, GDA2020, is being deployed and at some point in the future there is
likely to be a need for SIP service areas to be described using this coordinate system. The
ACMA should therefore have a clear power to change the coordinate system, as well as the
format.
The notes in items 93 and 94 remind the reader that legislative instruments made by the
ACMA to determine a new coordinate system or format may be varied or revoked under
subsection 33(3) of the AIA.
Item 96 - At the end of Division 2 of Part 19
Item 96 would add a new Subdivision E into Division 2 of Part 19. The Subdivision would
comprise four new sections. The first two sections would comprise clauses that are to be
32
transferred into the statute from a legislative instrument, the Telecommunications (Statutory
Infrastructure Providers - Exempt Real Estate Development Projects and Building
Redevelopment Projects) Instrument (No. 1) 2020 (the Instrument), as proposed new sections
360M and 360N. Currently, the Instrument (made under subsections 360H(3A) and 360H(5A)
of the Tel Act) provides exemptions from the requirements to declare a provisional nominated
service area. The relevant clauses being transferred to the statute are sections 7-8 and 11-12 of
the Instrument, with some improvements in drafting. The Bill would transfer the clauses
because the exemptions are considered to be of enduring value.
The Minister proposes to amend the Instrument to repeal sections 7-8 and 11-12 should the
Bill be enacted. Two transitional exemptions would remain in the Instrument.
Proposed section 360M provides that a real estate development project is exempt from
subsection 360H(2) (i.e., the requirement to declare a provisional nominated service area) in
two circumstances. First, where a contract has been entered into to supply public mobile
telecommunications services to the project (the mobile exemption) and second, where a
contract has been entered into for the supply of radiocommunications fixed voice calls (the
radiocommunications exemption).
Carriers enter into contracts to provide mobile coverage with developers who want to ensure
this amenity is available in their developments. Similarly, carriers may contract to provide
voice services, using radiocommunications platforms (mobile, fixed wireless, satellite).
Telstra, for example, may choose to use such technologies in providing universal service
obligation services outside NBN Co's fixed-line footprint, and needs the flexibility to use the
most cost-effective technology. Such contracts would be expected to be offered largely in
rural and regional areas, where it may be more cost-effective to deploy a
radiocommunications network, rather than a fixed-line network, to supply voice services.
Without the exemptions, carriers would be required to take on SIP obligations. Contracts to
provide mobile coverage or fixed voice services, however, typically would not require the
supply of broadband.
If carriers were required to operate as SIPs when entering into such contracts, this could
discourage them from providing such networks where there is a need for them, to the
disadvantage of affected consumers.
People living or working in exempt developments would still be able to access high-speed
broadband as NBN Co, as the default SIP, would be required to supply this.
The mobile exemption would apply if four conditions are met:
• telecommunications network infrastructure is installed within any part of, or in
proximity to, the project area of the project that will enable the supply of eligible
services to premises in the whole of the project area of the project; and
• the infrastructure was fully installed on or after 1 July 2020; and
• the telecommunications network infrastructure was installed in accordance with a
contractual arrangement that:
o was entered into by a carrier and the person responsible for the real estate
development project; and
o does not require the carrier to supply qualifying carriage services within all or
any part of the project area of the project; and
33
• at the time of installation, the telecommunications network infrastructure formed part
of a mobile network owned or operated by the carrier.
As noted in relation to item 9, mobile network is defined to mean a telecommunications
network that is used principally to supply public mobile telecommunications services. As a
result, the main reason for the installation of the network would be to provide mobile
coverage for the real estate development project. To be exempt, however, the contract must
not require the carrier to supply qualifying carriage services (i.e. SIP services within the
meaning of Part 19) within all or any part of the project area of the project. If the contract
provided for the provision of mobile broadband as a qualifying carriage service as well, the
exemption would not apply and the carrier would become the SIP for the project area, as it
would be able to meet the SIP obligations.
The radiocommunications exemption would apply if four similar conditions are met:
• telecommunications network infrastructure is installed within any part of, or in
proximity to, the project area of the project that will enable the supply of eligible
services to premises in the whole of the project area of the project; and
• the infrastructure was fully installed on or after 1 July 2020; and
• the telecommunications network infrastructure was installed in accordance with a
contractual arrangement that:
o was entered into by a carrier and the person responsible for the real estate
development project; and
o does not require the carrier to supply qualifying carriage services within all or
any part of the project area of the project; and
• the telecommunications network infrastructure is capable of being used to supply, to
end-users at premises in the project area of the project, carriage services that enable
those end-users to make and receive radiocommunications fixed voice calls.
As noted in relation to item 13, a radiocommunications fixed voice call must meet two
criteria. First, the voice call must be supplied by means of a telecommunications network
other than a fixed-line telecommunications network. Second, it must be marketed as a
carriage service that enables end-users to make and receive voice calls at premises occupied
or used by the end-users. This is what makes the voice call 'fixed'; while it may be supplied
using a network that is designed for the supply of mobile services, for example, the end-user
would receive a service that is intended to be used within the premises. Furthermore, the end-
user may also receive specific features for the supply of such a fixed voice call service, such
as boosters, antennas or customised handsets, that would be expected to be described in the
marketing material associated with the supply of the service.
Proposed section 360N provides for mobile and radiocommunications exemptions expressed
in similar terms to those in proposed section 360M, however, in this case the exemptions
would apply to building redevelopment projects.
As these exemptions are forward-looking, they only apply if infrastructure was fully installed
on or after 1 July 2020 - the date that Part 19 of the Tel Act took effect.
Proposed section 360NA provides that telecommunications network infrastructure forming
part of a mobile network is in proximity to a project area if, and only if, once fully deployed
and operational, the infrastructure is technically capable of being used to supply carriage
services within the whole of the project area. Technically capable here is intended to cover all
34
the technical features required to supply public mobile telecommunications services or
radiocommunications fixed voice calls to the project area.
Item 97 - At the end of subsection 360P(3)
This item would add a note at the end of the subsection to remind the reader that legislative
instruments made under the subsection may be varied or revoked under subsection 33(3) of
the AIA.
Item 98 - After subsection 360P(3)
This item would add a new subsection (3A) after subsection 360P(3). This new subsection
creates a power for the Minister to determine, by legislative instrument, a special obligation of
NBN Co which could require it to take on SIP obligations in another SIP's service area. If the
conditions specified in the determination are satisfied, then section 360P would have effect as
if the area specified in the determination were a service area, and NBN Co were the SIP for
that area.
A similar power is proposed at item 110, but in that case it deals with a special obligation of
NBN Co to supply services in another SIP's service area, whereas the power proposed at item
98 deals with a special obligation of NBN Co to connect premises in another SIP's service
area.
This is intended as an emergency power that could be used, for example, to ensure continuity
of service for end-users. It would be expected to be used to deal with edge cases. For
example, another SIP may have entered into a contract with a developer to service a new
development. A group of houses may be built and occupied, but the SIP may be delayed in
completing its network rollout. NBN Co may have infrastructure nearby that could readily be
extended to service the houses. In some circumstances, if the delay in deploying the other
SIP's network is likely to be a long one, it may be appropriate for NBN Co to extend its
network to connect the houses. While it would be open to NBN Co to service the houses on a
commercial basis, greater certainty could be provided if it were required to do so, and a
failsafe mechanism is required given proposed new sections 360KA and 360KB (see item 82
above) would mean that NBN Co's default SIP obligations would not apply in an anticipated
service area. The Minister's determination could specify conditions that would go to when it
would be appropriate for NBN Co to be required to connect.
Item 99 - At the end of subsection 360P(5)
This item would add a note at the end of the subsection to remind the reader that legislative
instruments made under the subsection may be varied or revoked under subsection 33(3) of
the AIA.
Item 100 - Paragraph 360P(8)(c)
Item 101 - Subparagraph 360P(8)(d)(ii)
Item 102 - Subsection 360P(8) (note)
Item 103 - Subsection 360P(9)
Item 104 - Subsection 360P(9) (note)
Items 100-104 are part of a group of amendments, with items 5, 49, 108-109, 114-118 and
148-154 of Schedule 1. They replace references to the publication of standard terms and
35
conditions for connecting premises on SIPs' websites with references to making such terms
and conditions available on their websites.
Item 105 - At the end of subsection 360P(10)
Item 106 - At the end of subsection 360P(11B)
These items would add notes at the end of the subsections to remind the reader that legislative
instruments made under the subsections may be varied or revoked under subsection 33(3) of
the AIA.
Item 107 - Subparagraph 360P(12)(c)(i)
This item amends the requirements for SIPs who refuse to connect premises to their networks.
Currently, subparagraph 360P(12)(c)(i) of the Tel Act provides that a SIP must give written
notice of a refusal of a request to a CSP within 5 business days after the refusal. Item 107
amends the subparagraph so that the written notice must include the reasons for the refusal.
Item 108 - Paragraph 360Q(1)(b)
Item 109 - Subsection 360Q(1) (note)
Items 108-109 are part of a group of amendments, with items 5, 49, 114-118 and 148-154 of
Schedule 1. The changes are consequential to changes inserted by items 114-118, which
amend references to the publication of standard terms and conditions for supplying services
on SIPs' websites with references to making such terms and conditions available on their
websites. Items 108-109 similarly replace references to publication. As amended, subsection
360Q(1) would require SIPs to supply eligible services, on reasonable request by a CSP, and
do so on the terms and conditions that were made available on their websites.
Item 110 - Subsections 360Q(2) and (2A)
Item 110 would repeal these subsections and insert three new subsections, 360Q(2), (2A) and
(2B).
The subsections currently provide an exemption from supply obligations for SIPs who supply
declared services that meet the SIP obligations. The exemption might be interpreted as
displacing the SIP supply obligation where declared services are being supplied, whereas in
fact the supply obligation should only be displaced where the declared services being supplied
also meet SIP obligations.
Proposed new subsections 360Q(2), (2A) and (2B) then insert two new powers for the
Minister to make legislative instruments in relation to SIP supply obligations.
Subsection 360Q(2) is analogous to proposed new subsection 360P(3A) (to be inserted by
item 98 of Schedule 1) and likewise creates an emergency power to impose a special
obligation on NBN Co. In this case, the obligation would be on NBN Co to supply SIP
services in another SIP's service area, whereas in proposed new subsection 360P(3A) the
obligation would be on NBN Co to connect premises to its networks in another SIP's service
area. As is the case with proposed new subsection 360P(3A), the powers in new subsection
360Q(2) are intended as an emergency power that could be used, for example, to ensure
continuity of service of end-users, and that would be expected to deal with edge cases.
36
The Minister could require NBN Co to connect premises to its networks through a
determination made under subsection 360P(3A), and also require NBN Co to supply eligible
services to CSPs through a determination made under subsection 360Q(2). In practice, a
determination would be likely to be made under both heads of power and oblige NBN Co
both to connect and supply.
Proposed new subsections 360Q(2A) and (2B) deal with the adjustment of the SIP supply
obligation at subsection 360Q(1). These replace the exemption in existing subsections
360Q(2) and (2A) to provide a mechanism for the Minister, by legislative instrument, to
adjust the SIP supply obligation in appropriate circumstances, so that a SIP must continue to
supply a service but in accordance with the SIP supply obligation as adjusted by the
Ministerial instrument.
Under subsection (2A), the Minister may make a determination specifying conditions for a
SIP to fulfil in relation to the service area specified in the determination. If those conditions
are satisfied, then the SIP is taken to have complied with the SIP supply obligation under
subsection (1) in relation to the service area. A determination could specify one or more
service areas, and could be made to impose obligations on SIPs in some, but not all, of their
service areas, if required.
Proposed subsection (2B) operates in a similar manner, but in this case the determination
would specify conditions for a SIP to fulfil, and if those conditions are satisfied, then the SIP
is taken to have complied with the SIP supply obligation under subsection (1). Under
subsection (2B) a determination would apply generally in all of the service areas for which
the SIP is responsible.
The proposed new subsections (2A) and (2B) therefore permit the Minister to adjust the SIP
supply obligation in a manner specified in a legislative instrument. In effect if the SIP satisfies
the conditions in the determination, then it is deemed to have complied with its supply
obligation. The determination could, for example, adjust the supply obligation by requiring a
SIP to supply a service that meets different peak download and upload speeds, under certain
conditions, such as providing a plan to remediate or replace services unable to meet the
current threshold.
This power is required to address circumstances in which SIPs may face a temporary
impediment to meeting the SIP supply obligation. For example, services in an area may be
temporarily degraded following a natural disaster. In addition, the Minister could exercise the
power to address the ongoing degradation occurring in legacy copper lines used in NBN Co's
fixed network and the detrimental impact this has on line speeds. NBN Co has a program of
work targeted at addressing these lines, including through the Australian Government's
investments in upgrading copper lines with fibre, and continues to engage with its customers
in relation to addressing the lines. The power proposed in the Bill could therefore allow the
Minister to make a determination to adjust the SIP supply obligation to allow NBN Co to
supply a lower speed service in circumstances where a line is physically unable to meet at
least 25/5 Mbps, and also could provide transparency for the regulator and the public about
the timeframes and areas in which NBN Co could supply the lower speed service, and its
plans for addressing the copper lines. A determination could also require NBN Co to report on
its progress and on improvements in service speeds.
37
While the power in proposed subsections (2A) and (2B) is framed broadly, it should be noted
that it would be exercised by legislative instrument, and any instrument would be subject to
the consultation, sunsetting and disallowance provisions of the Legislation Act.
Item 111 - Before subsection 360Q(3)
Item 111 inserts the heading 'Exception' before existing subsection 360Q(3), which provides
an exception from the SIP supply obligation in subsection 360Q(1) in the circumstances (if
any) specified in a Ministerial determination under subsection 360Q(4). The item is
consequential to the repeal of the exception in subsections 360Q(2) and (2A) by item 110.
Item 112 - At the end of subsection 360Q(4)
Item 113 - At the end of subsection 360Q(6)
These items would add notes at the end of the subsections to remind the reader that legislative
instruments made under the subsections may be varied or revoked under subsection 33(3) of
the AIA.
Item 114 - Paragraph 360Q(9)(c)
Item 115 - Subparagraph 360Q(9)(d)(ii)
Item 116 - Subsection 360Q(9) (note)
Item 117 - Subsection 360Q(10)
Item 118 - Subsection 360Q(10) (note)
Items 114-118 are part of a group of amendments, with items 5, 49, 108-109 and 148-154 of
Schedule 1. They replace references to the publication of standard terms and conditions for
supplying services on SIPs' websites with references to making such terms and conditions
available on their websites.
Item 119 - At the end of section 360Q
Item 119 would add new subsections (11)-(13) at the end of section 360Q. These are
modelled on current subsections 360P(11A)-(12), which deal with refusals by SIPs of
requests to connect premises, and set out notification obligations and notice periods when a
SIP refuses a request .
New subsections 360Q(11)-(13) set out obligations on a SIP if it refuses a request from a CSP
to supply eligible services to the CSP in order that the CSP can provide qualifying carriage
services to an end-user at premises in a service area. A SIP must reach a decision on the
request within 10 business days (unless a longer period has been specified by the Minister, by
legislative instrument, under subsection 360Q(12), in which case the decision must be reached
within that longer period). If the SIP refuses the request, it must give written notice of the
refusal to the CSP, and the reasons for the refusal, within five business days of the decision to
refuse, and the CSP in turn must give a copy of the notice to the affected end-user and do so
within five business days after receiving the notice.
These subsections provide a mechanism for end-users to have visibility, when a supply
request is refused, of which party has refused the request. An end-user could then provide the
notice to the TIO or the ACMA if she or he wished to dispute the refusal.
The new subsections are proposed because currently only refusals of requests to connect
premises are subject to notification obligations (see current sections 360P(11A) - (12)). In
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some cases premises may already be connected to a SIP's network, but there may be reasons
why a SIP refuses to supply eligible services to a CSP. The new subsections will therefore
extend the notification obligations to refusals by a SIP to supply eligible services to the CSP.
Item 120 - Subsection 360R(1)
Item 121 - After paragraph 360R(1)(a)
Item 122 - Subsection 360R(2)
Item 123 - Subsection 360R(2)
Item 124 - Subsection 360R(2)
Item 125 - Subsection 360R(2)
Item 126 - At the end of paragraph 360R(2)(a)
Item 127 - Paragraph 360R(2)(b)
Item 128 - After subsection 360R(2)
Item 129 - Paragraph 360R(3)(b)
Item 130 - Paragraph 360R(3)(b)
Item 131 - Subsection 360R(3)
Item 132 - At the end of paragraph 360R(3)(c)
Item 133 - Paragraph 360R(3)(d)
Item 134 - At the end of section 360R
Items 120-134 amend existing section 360R to improve the process in the event a SIP exits
the market. Items 127-28 and 133-134 are the key amendments; the other items are
consequential to other changes inserted by the Bill, namely, to provide that CSPs may be SIPs
for service areas (items 120, 122-125, 129-131, which replace 'carrier' with 'person') and to
provide that SIPs' obligations also apply to anticipated service areas (item 121).
Currently, section 360R provides that if a SIP becomes aware that it is likely that it will no
longer be able to fulfil its SIP obligations in relation to a service area, then the SIP must give
written notice to the Secretary of the Department and the ACMA, and do so as soon as
practicable after becoming so aware. If the SIP becomes aware that another carrier is willing
to become the SIP for the area, the SIP must also notify the Secretary and the ACMA as soon
as practicable after becoming aware.
Section 360R is intended to ensure that early notice is provided when a SIP, for whatever
reason, can no longer continue as a SIP. Notice at the earliest stages will assist in identifying
and establishing an alternative SIP or help position NBN Co to take on the role given it is the
default SIP for all of Australia.
Experience since the SIP regime took effect on 1 July 2020 indicates a definite notice period
would be beneficial. There may be a number of reasons why a SIP may exit the market in a
service area - for example, it may sell its network assets, wind up its business or become
insolvent. In most cases, a SIP would generally know that this is happening some months in
advance. However, there is a risk that, without a more specific notice period requirement, a
SIP may give very little notice and this could cause difficulties for NBN Co if it needs to
deploy networks in the service area.
Currently, section 360R provides for two obligations when a SIP becomes aware that it will
no longer be able to fulfil its SIP obligations. First, if the SIP has not arranged for another
person to take on the responsibilities (so NBN Co, as the default SIP, would be required to
take them on), then the SIP must notify the Department and the ACMA as soon as practicable
after becoming so aware (see subsection 360R(2)). Alternatively, if the SIP becomes aware
39
that another carrier is willing to become the SIP for the area, then the SIP must similarly
notify the Department and the ACMA as soon as practicable after becoming so aware
(subsection 360R(3)).
Items 126, 127, 132 and 133 amend these two obligations. First, item 126 would amend
subsection 360R(2) to require a SIP, who becomes aware that it will no longer be able to fulfil
its SIP obligations, to advise its customers (generally CSPs, though in some cases SIPs who
are vertically integrated would need to advise end-users). This is important for ensuring the
customers are aware of the proposed exit. Item 132 makes an analogous change to subsection
360R(3) to require a SIP, who has become aware that another carrier is willing to become the
SIP for the area, to advise its customers.
Item 128 (below) also creates power for the ACMA, by legislative instrument, to impose
additional notification obligations on SIPs that are subject to obligations under subsection
360R(2), and this power could also be used to require further transparency for a SIP's
customers.
Item 127 would then amend subsection 360R(2) to insert a notification timeframe. It would
require a SIP, who becomes aware that it is likely that it will no longer be able to fulfil its SIP
obligations, to give notice of the matter to the ACMA and the Department:
• if reasonably practicable, at least 12 months before the time when the SIP will
become no longer able to fulfil its SIP obligations (new subparagraph 360R(2)(b)(i));
or
• otherwise in any other case, not later than 10 business days after they are no longer
able to fulfil their obligations.
Item 133 would amend subsection 360R(3) and makes it clear that if a SIP becomes aware
that another person (being a carrier or a CSP) is willing to become the SIP for the area, the
SIP must also give notice of this matter to the Department and the ACMA:
• if reasonably practicable, at least 90 days before the time when the SIP becomes no
longer able to fulfil its obligations under section 360P or 360Q (new subparagraph
360R(3)(d)(i)); or
• otherwise in any other case, not later than 10 business days after the time when the
other person becomes the SIP for the area.
What is reasonably practicable for the purposes of new paragraphs 360R(2)(b) and
360R(3)(d)) is to be determined objectively, having regard to what is reasonable in the
circumstances of each case. The expectation is that the new notice requirements would apply
to the majority of situations in which a SIP exits the market in a service area.
The notification timeframe of 12 months under subsection 360R(2) has been chosen to reflect
that NBN Co, as the default SIP, will need to assume responsibility for servicing the area after
another SIP exits it, and that it may take some time for it to deploy networks in the area to be
in a position to fulfil its SIP obligations. By contrast, where a SIP has identified an alternative
carrier or CSP to take over SIP obligations in an area, a shorter notification timeframe is
appropriate, on the basis that the other carrier would generally be taking over existing
network assets or access rights.
40
In relation to the 10 business day notice requirement, such shortened notice would be
expected where there are unforeseen events, such as a sudden insolvency or damage by
natural disasters that makes closing the network in a service area the only option.
Items 128 and 134 provide that a notice given by a SIP must be in accordance with the form
approved in writing by the ACMA. This provides the ACMA with the ability to ensure that
SIPs provide adequate information so that it can amend or revoke nominated service area
declarations as required, and also determine what arrangements would be required to provide
continuity of service for end-users in the service area.
Item 135 - After Section 360R
Item 135 would insert two new sections, 360RA and 360RB, into the statute.
Proposed new section 360RA would allow the ACMA to impose additional notification
obligations on a SIP that is subject to an obligation under subsections 360R(2) (i.e., to provide
notice that it will no longer fulfil its SIP obligations at least 12 months beforehand, if
reasonably practicable) or (3) (i.e., to provide notice that another carrier will take over its SIP
obligations at least 90 days beforehand, if reasonably practicable). The ACMA would be able
to make rules, by legislative instrument, that may impose one or more additional notification
obligations on the SIP (subsection 360RA(1)). A notification obligation may involve the
provision of information prescribed in the rules (subsection 360RA(2)). Subsection 360RA(3)
provides, for the avoidance of doubt, that subsection (2) does not limit subsection (1). Rules
may of general application or may be limited as provided in the rules (subsection 360RA(4).
Subsection 360RA(5) then provides, again for the avoidance of doubt, that subsection (4)
does not, by implication, limit subsection 33(3A) of the AIA. Subsection 33(3A) of the AIA
provides that instruments may be made, granted or issued with respect to some matters only
or with respect to a particular class or classes of matters.
Subsection 360RA(6) provides that a SIP must comply with rules made under subsection
360RA(1).
Such rules would provide an additional mechanism for the ACMA to make provision so that
customers or NBN Co (as the default SIP) are appropriately advised of a SIP's exit plans and
actions.
Proposed new section 360RB requires SIPs to have websites. SIPs are required to make
available a number of documents on their websites, including their standard offers for
connecting premises and supplying eligible services, and also any provisional nominated
service area declarations. Inquiries in 2021 showed at least one SIP was not complying with
the requirement to make its standard offer available because it did not have a website.
Item 136 - After Division 3 of Part 19
Item 136 would insert new Division 3A into Part 19, dealing with the notification obligations
of CSPs who are wholesale customers of SIPs. The Division comprises two new sections,
360SA and 360SB.
Proposed new section 360SA applies to CSPs who receive written notice from a SIP under
subsections 360R(2) or (3), dealing with that SIP's intention to exit a service area, and who
determine that the exit is likely to result in a change to, or the disruption of, qualifying
carriage services supplied by the CSP to end-users at premises. In this event, the CSP must
41
give written notice of the matter to each of those end-users within five business days after
receiving the notice under subsection 360R(2) or (3) (see subsection 360SA(2)).
This section is being inserted to promote transparency and allow end-users to undertake
preparations, if needed, when a SIP exits a service area. SIPs are required to notify their
customers of a proposed exit (see items 126 and 132 above). Given that most SIPs operate on
a wholesale-only basis, those customers would be CSPs. The obligation on the SIP alone does
not provide certainty that the CSPs will, in turn, notify their customers. Accordingly, item 136
addresses this requirement. Given that it is possible that a change to a new SIP may be
reasonably seamless (for example, where the underlying network remains in place and there is
simply a change in control of the network), the obligation to notify end-users only applies
where there will be a change to the qualifying carriage services that are being supplied, or a
service disruption (for example, temporary disconnections or suspensions of service while
new equipment is installed).
Proposed new section 360SB mirrors proposed new section 360RA (see item 135 above). It
would allow the ACMA to impose additional notification obligations on CSPs that are subject
to the obligation to notify their end-users under proposed subsection 360SA(2). The ACMA
would be able to make rules, by legislative instrument. The rules may impose one or more
additional notification obligations on the CSP. A notification obligation may involve the
provision of information prescribed in the rules (subsection 360SB(2)). Subsection 360SB(3)
provides, for the avoidance of doubt, that subsection (2) does not limit subsection (1). Rules
may be of general application or may be limited as provided in the rules (subsection
360SB(4). Subsection 360SB(5) then provides, again for the avoidance of doubt, that
subsection (4) does not, by implication, limit subsection 33(3A) of the AIA. Subsection
33(3A) of the AIA provides that instruments may be made, granted or issued with respect to
some matters only or with respect to a particular class or classes of matters.
Subsection 360SB(6) provides that a CSP must comply with rules made under subsection
360SB(1).
Such rules provide an additional mechanism for the ACMA to make provision so that end-
user customers are appropriately advised of a SIP's exit plans and actions.
Item 137 - Paragraph 360U(1)(a)
Item 137 would amend paragraph 360U(1)(a). The paragraph currently provides that any
standards determined by the Minister could be made in relation to the terms and conditions of
the supply of an eligible service to a CSP. Item 137 inserts the phrase 'whether or not relating
to price or a method of ascertaining price'. The item is proposed for the avoidance of doubt,
given the proposed amendments at item 147 that would establish a mechanism for SIPs to pay
compensation to customers if they breach compensable standards or rules.
Item 138 - At the end of subsection 360U(1)
Item 138 would add two notes at the end of the subsection. The first note reminds the reader
that standards made under subsection 360U(1) may be varied or revoked under subsection
33(3) of the AIA. The second note reminds the reader that, under section 589 of the Tel Act,
instruments made under the Tel Act may provide for matters by reference to other
instruments. This note is included for clarity should Ministerial standards incorporate matters
in accordance with section 589.
42
Item 139 - After subsection 360U(3A)
Item 139 would insert three new subsections, 360U(3B), (3C) and (3D).
Proposed subsection 360U(3B) is consequential to item 147 and provides that a SIP standards
determination may declare that a specified standard is a designated compensable standard for
the purposes of Part 19.
Proposed subsection 360U(3C) is also consequential to item 147 and provides that a SIP
standards determination may declare that a specified number of days is the relevant number of
days for the purposes of the application of subsection 360VE(1) to a specified designated
compensable standard. Proposed subsection 360VE(1) provides a timeframe for a SIP to
decide whether to accept liability after determining that an event has occurred that is
reasonably likely to result in it being liable to pay damages. It must do so within 14 days, or
within the timeframe set in a designated compensable standard or rule.
Proposed subsection 360U(3D) would provide that subsection 360U(1) does not, by
implication, limit the power to make rules under subsection 360V(1). This is stated for the
avoidance of doubt so that subsection 360U(1) is not read down as limiting the matters about
which SIP rules may be made.
Item 140 - At the end of subsection 360U(6)
Item 140 would add two notes at the end of the subsection. The first note reminds the reader
that benchmarks made under subsection 360U(6) may be varied or revoked under subsection
33(3) of the AIA. The second note reminds the reader that, under section 589 of the Tel Act,
instruments made under the Tel Act may provide for matters by reference to other
instruments. This note is included for clarity should Ministerial benchmarks incorporate
matters in accordance with section 589.
Item 141 - Subsection 360U(9) (heading)
Item 141 is consequential to item 142 and would amend the heading above subsection
360U(9) to 'Provider must meet or exceed performance benchmarks'.
Item 142 - At the end of section 360U
This item would add new subsections 360U(10)-(16) into the Tel Act. Subsection 360U(10)
would clarify how benchmarks interact with access agreements. Subsections 360U(11)-(16)
would provide that 'other benchmarks' may be made, in addition to those already provided
for under section 360U, that do not need to relate to compliance with a standard - in other
words, the benchmarks can be 'stand-alone'.
Currently, subsection 360U(5) provides that a SIP is not required to comply with a SIP
standard to the extent that the standard is inconsistent with an access agreement to which the
SIP is a party, so long as:
a) the agreement was entered into before the commencement of the standard; and
b) the agreement has not been varied after the commencement of the standard.
The legislation does not currently provide a similar exemption from compliance in relation to
benchmarks made under subsection 360U(6). However, an access agreement may contain a
43
benchmark that is inconsistent with a SIP benchmark; for example, the access agreement may
provide that fault rectification timeframes should be met in 80 per cent of cases, while the SIP
benchmark may state that the timeframes should be met in 90 per cent of cases. Proposed
subsection 360U(10) will therefore establish when SIP benchmarks prevail over inconsistent
benchmarks in access agreements. It is modelled on existing subsection 360U(5), and
provides that a SIP would not be required to comply with a benchmark set under subsection
360U(6) to the extent that the benchmark is inconsistent with an access agreement to which
the SIP is a party, so long as:
a) the agreement was entered into before the commencement of the benchmark; and
b) the agreement has not been varied after the commencement of the benchmark.
Proposed subsections 360U(11)-(16) are modelled on existing subsections 360U(6)-(9), and
proposed new subsection 360U(10), and deal with other benchmarks. The main difference is
that proposed subsection 360U(11) establishes the matters in relation to which such other
benchmarks may be set, given that they need not be set in relation to a standard. The matters
are the key SIP obligations and are broad:
a) the supply or proposed supply of an eligible service to a CSP in order that the CSP can
provide qualifying carriage services to an end-user at premises in a relevant service
area; and
b) the connection of premises in a relevant service area to a qualifying
telecommunications network in order that a CSP can provide qualifying carriage
services to an end-user at the premises.
Two notes are provided at the end of proposed subsection 360U(11). The first note reminds
the reader that benchmarks made under subsection (11) may be varied or revoked under
subsection 33(3) of the AIA. The second note reminds the reader that, under section 589 of
the Tel Act, instruments made under the Tel Act may provide for matters by reference to other
instruments. This note is included for clarity should Ministerial benchmarks incorporate
matters in accordance with section 589.
Proposed subsection 360U(12) provides that an instrument made under subsection (11) may
be of general application or may be limited as provided in the instrument. Proposed
subsection 360U(13) provides, for the avoidance of doubt, that subsection (12) does not, by
implication, limit subsection 33(3A) of the AIA. Subsection 33(3A) of the AIA provides that
instruments may be made, granted or issued with respect to some matters only or with respect
to a particular class or classes of matters.
Proposed subsection 360U(14) provides that benchmarks set under subsection (11) may make
provision for or in relation to a matter by conferring a power on the ACMA to make a
legislative instrument. This is provided for administrative flexibility and could be used, for
example, to empower the ACMA to prescribe formats for reports or specify more detailed
requirements.
Proposed subsection 360U(15) provides that a SIP must meet or exceed a minimum
benchmark set by an instrument under subsection (11). Proposed subsection 360U(16) is
modelled on proposed subsection (10) and like that subsection provides that a SIP would not
be required to comply with a benchmark set under subsection 360U(11) to the extent that the
benchmark is inconsistent with an access agreement to which the SIP is a party, so long as the
44
agreement was entered into before the benchmark commenced, or has not been varied after
the benchmark commenced.
Item 143 - After paragraph 360V(1)(a)
Item 143 would amend subsection 360V(1) to add a new matter to the list of matters that SIP
rules can address. The new matter, to be inserted as paragraph 360V(1)(aa), is the terms and
conditions (whether or not relating to price or a method of ascertaining price) of the supply of
an eligible service to a CSP in order that the CSP can provide qualifying carriage services to
an end-user at premises in a relevant service area.
Subsection 360V(1) already provides that SIP rules may be made in relation to any other
matter concerning the supply, or proposed supply, of an eligible service to a CSP. This new
paragraph is being inserted for the avoidance of doubt.
Item 144 - At the end of subsection 360V(1)
This item would insert a new paragraph 360V(1)(e). The paragraph provides that SIP rules
may be made in relation to giving the ACMA information or a report in relation to a matter
mentioned in any of the preceding paragraphs of the subsection. This provides clarity that the
ACMA, in its role as the regulator for the SIP regime, can be given a role by SIP rules where
this would assist it in monitoring and enforcing the rule. For example, rules could establish
minimum requirements for SIPs in relation to network availability and performance, and
require SIPs to provide information or reports to the ACMA on their network provisioning
and uptime.
Item 144 needs to be considered together with proposed subsection 360XAI(4), to be inserted
by item 156 of Schedule 1, which provides that rules may require the ACMA to make
available on its website information or reports.
The note at the end of the subsection reminds the reader that rules made under subsection
360V(1) may be varied or revoked under subsection 33(3) of the AIA.
Item 145 - After subsection 360V(1)
Item 145 would insert two new subsections, 360V(1AA) and (1AB). Subsection 360V(1AA)
provides that rules made under subsection 360V(1) may be of general application, or may be
limited as provided in the rules. Subsection 360V(1AB) is enacted for the avoidance of doubt
and provides that subsection (1AA) does not, by implication, limit subsection 33(3A) of the
AIA. Subsection 33(3A) of the AIA provides that instruments may be made, granted or issued
with respect to some matters only or with respect to a particular class or classes of matters.
Item 146 - After subsection 360V(1A)
Item 146 would insert three new subsections, 360V(1B), (1C) and (1D). These are
consequential to item 147, which would insert a new Division 4A dealing with requirements
for SIPs to pay compensation to customers. They are similar to the provisions being inserted
by item 139 of Schedule 1, which deals with SIP standards.
Subsection 360V(1B) provides that SIP rules may declare that a specified rule set out in those
rules is a designated compensable rule for the purposes of Part 19.
45
Subsection 360V(1C) provides that SIP rules may declare that a specific number of days is
the relevant number of days for the purposes of the application of subsection 360VE(1) to a
specific designated compensable rule. Proposed subsection 360VE(1) provides a timeframe
for a SIP to decide whether to accept liability after determining that an event has occurred that
is reasonably likely to result in it being liable to pay damages. It must do so within 14 days, or
within the timeframe set in a designated compensable standard or rule.
Subsection 360V(1D) provides that subsection 360V(1) does not, by implication, limit the
power to determine standards under subsection 360U(1). This is stated for the avoidance of
doubt so that 306V(1) is not read down as limiting the matters about which SIP standards may
be made.
Item 147 - After Division 4 of Part 19
Item 147 would insert new Division 4A into Part 19, dealing with compensation. The
proposed Division contains three Subdivisions. The new Division is modelled on Part 5 of the
TCPSS Act, which establishes another compensation mechanism, the Customer Service
Guarantee (CSG). However, as the CSG is focussed on the supply of retail telephone services,
and SIPs may supply broadband or voice services at either a wholesale or a retail level,
proposed Division 4A includes a number of changes to reflect the SIP regime.
Subdivision A contains three new sections, 360VA, 360VB and 360VC. Proposed section
360VA provides a simplified outline of Division 4A. Proposed section 360VB provides two
definitions used in the Division: customer includes a prospective customer, and damages
includes punitive damages. Proposed section 360VC is an interpretive provision to avoid
other uses of customer or damages being read down by subsection 360VB. It provides that, in
determining the meaning that customer and damages have when used in a provision of the Tel
Act other than Division 4A, or a provision of the TCPSS Act, section 360VB is to be
disregarded.
It should be noted that in Division 4A customer can refer both to a CSP, or to an end-user.
SIPs may meet their SIP obligations either by supplying eligible services to CSPs or, if the
SIP is vertically integrated, through a notional supply to themselves in their capacity as
retailers, and then to end-users.
Subdivision B contains three new sections, 360VD, 360VE and 360VF. Proposed section
360VD needs to be considered together with items 139 and 146 of Schedule 1, which provide
that a SIP standard or rule may be declared to be a designated compensable standard or a
designated compensable rule. Accordingly, compensation would not be payable in relation to
contravention of any standard or rule; the standard or rule would first need to have been
designated as compensable. While the power is cast broadly, it is envisaged that compensable
standards or rules could relate to matters that might lead to some financial loss to a customer;
for example, if a service is not connected or rectified within a timeframe, or if an appointment
is not kept, meaning that the customer may need to find alternative service arrangements until
a service is provided.
Under proposed section 360VD, if a SIP contravenes a designated compensable standard or
rule, and the contravention relates to a particular customer, then the SIP is liable to pay
damages to that particular customer.
46
Proposed subsection 360VD(3) makes the amount of damages payable ascertained in
accordance with the compensation rules (see proposed section 360VH below). Damages are
defined in proposed section 360VB to include punitive damages, in recognition that the scale
of damages is intended to specify a penalty for the SIP and accordingly may include amounts
that go beyond the real measure of damages suffered by a customer for a contravention of a
SIP standard or rule.
Proposed subsection 360VD(4) provides that if a SIP credits a customer's account or pays an
amount to a customer as a result of a right or remedy available otherwise than under the
Division for the same event or transaction as the contravention, the amount of damages is to
be reduced by the amount of the credit or payment (but not below zero). This provision
ensures that if a SIP, for example, provides a rebate to a customer under a separate legislative
or contractual arrangement, the SIP's liability for damages under Division 4A is reduced
accordingly.
Proposed subsection 360VD(5) enables a customer to recover the amount of the damages by
action against the SIP in a court of competent jurisdiction. In practice, it would be expected
that SIPs would generally credit a customer's account or pay an amount, but subsection (5) is
being enacted as an additional safeguard.
Proposed subsection 360VD(6) enables a SIP to discharge a liability by giving a customer a
credit in an account or in any other manner agreed between the customer and the SIP. The
latter provision could be used in different circumstances. For example, a customer may not
have an account with a SIP, for example because the customer is now using a different
supplier, or, if an individual, the customer has left the country. Similarly, the SIP and the
customer may be able to agree on some alternative manner, such as providing a discount on
other services ordered by the customer, or a period of free supply.
Proposed subsection 360VD(7) requires any court action to be initiated within two years of a
contravention occurring or beginning.
Proposed subsection 360VD(8) ensures that, if the customer is an individual and the customer
dies, the executor or a court appointed administrator (where there is no will), can continue to
recover the damages from the SIP.
Proposed section 360VE establishes timeframes for accepting liability and paying damages. If
a SIP first has reason to believe that an event has occurred that is reasonably likely to result in
the SIP being liable to pay damages to a particular customer, then the SIP must decide
whether to accept liability within 14 days after that time, or such timeframe as may have been
specified in a designated compensable rule or designated compensable standard to which the
liability relates. The SIP must have regard to whether there is any reasonable basis to dispute
the liability.
If the SIP accepts liability, the SIP must discharge the liability within 14 weeks after the
decision to accept liability is made. The SIP can discharge the liability by giving the customer
a credit in an account it has with the SIP and notifying the customer of that credit in the first
or second bill sent to the customer within that 14 week period (if practicable).
If the SIP decides not to accept liability, the SIP must give the customer written notification
of the decision within 14 weeks after the decision to refuse liability is made.
47
As with proposed subsection 360VD(8), there is a clause (subsection 360VE(6)) that would
allow the SIP to discharge the liability in relation to a customer who is an individual and dies,
by making a payment to the executor or administrator of the estate.
Proposed section 360VF deals with evidentiary certificates issued by the TIO or the ACMA.
The TIO is an industry ombudsman established by carriers and eligible CSPs under Part 6 of
the TCPSS Act, which requires them to enter into, and comply with, a TIO scheme providing
for investigations in relation to complaints about carriage services by end-users, including
complaints about billing and the manner of charging for carriage services. Proposed section
360VF is closely modelled on section 119 of the TCPSS Act, which deals with evidentiary
certificates issued by the TIO under the CSG.
Given the nature of the TIO's role, it would be appropriate for it to investigate complaints
about contraventions of SIP standards or rules and to make determinations requiring SIPs to
pay compensation of an amount equivalent to the damages required under the compensation
rules (see proposed section 360VH). The TIO could investigate complaints at the retail level
(where SIPs are the retail providers) and at the wholesale level by joining SIPs to retail-level
complaints. The involvement of the TIO would be expected to reduce significantly the need
for customers to take action in the courts. However, if court action needs to be taken, it is
proposed to make such action easier for the customer by enabling the TIO to provide
evidentiary certificates. The TIO would be an independent party that has already considered
the relevant facts of the matter, which provides a safeguard as the utility of the certificate.
Proposed subsection 360VF(1) gives the TIO the discretion to issue evidentiary certificates
stating that a specified SIP has contravened a designated compensable standard or a
designated compensable rule, and setting out the particulars of the contravention. Under
subsection 360VF(2), in any proceedings under Division 4A, an evidentiary certificate is
prima facie evidence of the matters in the certificate. SIPs would have the ability to rebut the
certificate by providing evidence to the contrary.
A document purporting to be a certificate under proposed subsection 360VF(1) must, unless
the contrary is established, be taken to be a certificate and to have been properly given
(proposed subsection 360VF(3)).
In recognition that the TIO scheme is an industry-based scheme, the TIO will only obtain
these powers if the TIO gives the Minister a written notice consenting to the conferral of
powers (proposed subsection 360VF(4)).
If the TIO does not consent to the conferral of powers, or subsequently revokes consent, the
ACMA is able to exercise them (proposed subsection 360VF(5)). It should be noted that,
although there is no specific reference in proposed section 360VF to revoking consent,
subsection 33(3) of the AIA would provide the basis for the TIO to do so.
The Minister must cause a copy of a notice under subsection (4) to be published on the
Department's website (proposed subsection 360VF(6)). Under proposed subsection
360VF(7), the continuity of a consent notice given by the TIO is not affected by a change in
occupancy of the TIO position. However, if a vacancy in the TIO position continues for more
than four months, it is intended that the power would revert to the ACMA and the new TIO
would need to give the Minister a new notice under subsection 360VF(4).
48
Subdivision C of new Division 4A contains two new sections (360VG and 360VH). Proposed
section 360VG is intended to ensure that Division 4A s not interpreted as excluding, limiting,
restricting or affecting any right or remedy a person may otherwise have under
Commonwealth, State or Territory or common law where a SIP fails to comply with a SIP
standard or rule.
Proposed section 360VH provides that the Minister may, by legislative instrument, make rules
(compensation rules) prescribing matters required or permitted by Division 4A to be
prescribed by the compensation rules. Compensation rules must specify the amount of
damages payable for a particular contravention (see new subsection 360VD(3)).
The note at the end of the section reminds the reader that compensation rules may be varied or
revoked under subsection 33(3) of the AIA.
Item 148 - Division 5 of Part 19 (heading)
Item 149 - Section 360W (heading)
Item 150 - Subsection 360W(1)
Item 151 - Subsection 360W(4)
Item 152 - Section 360X (heading)
Item 153 - Subsection 360X(1)
Item 154 - Subsection 360X(4)
Items 148-154 are part of a group of amendments, with items 5, 49, 108-109 and 114-118 of
Schedule 1. They replace references to the publication on SIPs' websites of offers for the
connection of premises, and for the supply of eligible services, with references to making
such terms and conditions available on their websites.
Item 155 - After Division 5 of Part 19
Item 155 would insert a new Division 5A into Part 19. In essence, it creates information-
gathering powers for the Secretary of the Department so that the Department can obtain
information from carriers or CSPs relevant to the designation of service areas and SIPs.
Under section 360L of the Tel Act, the Minister may, by legislative instrument, declare that a
specified area is a designated service area, and that a specified carrier is the SIP for the area.
To date, the power has largely been used to designate service areas where carriers other than
NBN Co had deployed high-speed broadband infrastructure, largely in new developments,
prior to the SIP regime taking effect on 1 July 2020. As of 30 October 2023, some 1, 800
areas had been designated along with 21 SIPs. (Together, there were 33 SIPs on the same
date, with NBN Co created as the default SIP by statute and other carriers becoming SIPs by
virtue of declaring that their developments are provisional nominated service areas.) Details
of designated and nominated service areas and SIPs are available on the SIP Register
maintained by the ACMA on its website.
In designating a service area, the Minister requires information from carriers (and, as
amended by this Bill, CSPs). The information includes the name and address of the
development and its geographic coordinates, using the GDA94 coordinate system (see also
section 360LA of the Tel Act). While most companies provide this information willingly to
the Department, some either ignore requests for information or only provide it after a
considerable period of time. This can delay area designations, and during periods of delay
NBN Co, as the default SIP, is technically responsible for the areas and may need to engage
49
in inefficient overbuilding if it receives requests for connections. The Department does not
currently have powers to compel industry members to provide it with information relevant to
designation.
Proposed Division 5A would therefore create such powers. It is modelled on similar powers
in Division 4 of Part 2 of the TCPSS Act. The powers are tightly restricted to obtaining
information or documents relevant to exercising powers to designate service areas and SIPs.
Proposed Division 5A comprises seven new sections, 360XAA, 360XAB, 360XAC,
360XAD, 360XAE, 360XAF and 360XAG. Proposed section 360XAA applies to a carrier or
a CSP if the Secretary of the Department has reason to believe that the carrier or CSP has
information or a document that is relevant to the exercise of the Minister's powers to
designate SIP service areas and SIPs under section 360L. Subsection 360XAA(2) would
enable the Secretary to give written notice to a carrier or a CSP requiring it to give the
Secretary any such information or documents, including copies, within the period and in the
manner and form specified in that notice. Subsection 360XAA(3) provides that a period under
subsection (2) must not be shorter than 14 days after the notice is given.
Subsection 360XAA(4) would require the carrier or CSP to comply with such a requirement
to the extent that it is capable of doing so.
Proposed section 360XAB provides for a carrier or CSP to be paid reasonable compensation
by the Commonwealth for complying with a requirement covered by paragraph
360XAA(2)(c).
Proposed section 360XAC would enable the Secretary to inspect a document or copy
produced under subsection 360XAA(2), to make copies or extracts from those documents,
and to retain possession of copies of such documents.
Proposed section 360XAD allows the Secretary to take and retain possession of a document
produced under subsection 360XAA(2) for as long as is necessary. Subsection 360XAD(2)
provides for the carrier or CSP otherwise entitled to possession of the document to be
supplied a certified true copy of the document by the Secretary as soon as is practicable.
Subsection 360XAD(3) provides that the certified copy must be received in all courts and
tribunals as evidence as if it were the original.
Proposed subsection 360XAD(4) provides that the Secretary must, at times and places that the
Secretary considers appropriate, permit the carrier or CSP otherwise entitled to possession of
the document, or a person authorised by the carrier or CSP, to inspect, make copies, or take
extracts from the document until a certified copy is supplied.
Proposed section 360XAE makes clear that none of the provisions in Division 5A will affect
the law relating to legal professional privilege.
Proposed section 360XAF enables the Secretary to disclose information or documents, or
copies of documents, obtained under subsection 360XAA(2) to the ACMA if the Secretary is
satisfied that the information will enable or assist the ACMA to perform or exercise any of its
functions or powers or any functions or powers delegated to it under a law of the
Commonwealth. This works together with proposed section 360XAG, which provides that the
Secretary may delegate any or all of the Secretary's powers under Division 5A to the ACMA
(as well as an SES employee or acting SES employee in the Department).
50
Subsection 360XAG(3) further provides that the ACMA may, by writing, delegate any or all
of the powers delegated by the Secretary under subsection 360XAG(1) to the ACMA to:
• a member of the ACMA;
• a person who is a member of the staff of the ACMA and who is an SES employee or
an acting SES employee, an Executive Level 1 or 2 or acting Executive Level 1 or 2,
or equivalent.
While the range of employees to whom powers may be sub-delegated is relatively broad, it is
envisaged that the ACMA would sub-delegate the powers to employees with responsibilities
in relation to the SIP regime and with relevant expertise only. It is envisaged that the ACMA
would consider the need for any qualifications or skills necessary to exercise the delegated
power at the time of implementing any sub-delegations.
Proposed subsection 360XAG(4) provides that if the ACMA sub-delegates a power to a
person (the second delegate), then that power, when exercised by the second delegate, is taken
for the purposes of the Act to have been exercised by the Secretary.
Proposed subsection 360XAG(5) provides that, if the Secretary provides directions in relation
to the exercise of a power when delegating the power to ACMA, then the ACMA must give
corresponding directions to the second delegate. The ACMA may give other written
directions, provided they are not inconsistent with the corresponding directions.
Proposed subsection 360XAG(6) would require the second delegate to comply with any
directions of the ACMA.
To provide an example, the Minister may delegate the power to make minor amendments to
service area designations to the ACMA (see item 165 of Schedule 1), such as corrections to
geographic coordinates if required. The ACMA may further delegate the ability to make
minor amendments to service area designations to a member of the staff of the ACMA who is
an SES employee (see item 166). The Secretary may also delegate the power to obtain
information or documents relevant to the exercise of the newly delegated designation power
to the ACMA, and the ACMA could subdelegate this power to a member of the staff of the
ACMA who is an SES employee (under proposed section 360XAG). If it becomes apparent
that some changes are required to some geographic coordinates for some designated service
areas, that SES employee could use the powers delegated by the Secretary to request
information from carriers or CSPs, as required, and then use the information to amend the
designated service areas by legislative instrument.
The note at the end of subsection 360XAG(1) advises the reader that the expressions SES
employee and acting SES employee are defined in section 2B of the AIA. Section 2B of the
AIA specifies that the terms have the same meaning as in the Public Service Act 1999.
Section 34 of the Public Service Act 1999 provides that SES employees are those employees
of the Australian Public Service who are classified as SES employees under rules made by the
Australian Public Service Commissioner by legislative instrument. Acting SES employees are
non-SES employees who are acting in a position usually occupied by an SES employee.
Proposed subsection 360XAG(2) requires a delegate, in exercising a delegated power, to
comply with any written directions of the Secretary.
51
Item 156 - Before section 360XA
Item 156 would insert new section 360XAH dealing with compliance audits of SIPs, and new
section 360XAI specifying additional functions of the ACMA.
Currently, the Minister may, by legislative instrument, make rules requiring each SIP to give
the ACMA periodic compliance reports (see section 360XA of the Tel Act). SIPs must
comply with such rules (subsection 360XA(2)). There is not currently an express power for
the ACMA, of its own volition, to commence a compliance audit of a SIP and to require a SIP
to comply with the audit. Proposed section 360XAH provides this express power. The ACMA
may conduct an audit (a compliance audit) of a SIP for the purpose of determining whether a
SIP is complying, or has complied, with Part 19. The SIP must cooperate fully with the
ACMA in relation to the compliance audit and provide the ACMA with all reasonable
facilities and assistance in relation to the compliance audit.
Proposed subsection 360XAH(4) is enacted for the avoidance of doubt and provides that
section 360XAH does not limit any of the ACMA's other powers or functions.
Proposed section 360XAI performs two functions. First, subsections 360XAI(1)-(3) enable
the ACMA to:
a) make available on its website information or reports given to it in accordance with
rules made under subsection 360V(1);
b) give the Minister copies of such information or reports; and
c) make available on its website information or explanatory material that is likely to
assist SIPs in complying with Part 19.
Second, subsections 360XAI(4)-(6) enable the Minister to make rules, to be complied with by
the ACMA, relating to the same matters specified in new subsections 360XAI(1)-(3).
The ACMA may receive a variety of information that should be made available on its
website. Item 144 of Schedule 1 would amend section 360V to provide that SIP rules can
require SIPs to give ACMA information or a report in relation to the supply of eligible
services, the connection of premises, the terms and conditions of the supply of eligible
services and the process for resolution of complaints about supply and connection. Some of
this information may need to be made available on the ACMA's website to provide
transparency of the SIP regime. The ACMA may also receive information from SIPs relevant
to the designation of SIP service areas which it would need to use to amend SIP designations,
and therefore make available on its online SIP Register.
More broadly, the ACMA, as the regulator for Part 19 of the Tel Act, would be expected to
have a range of experience and approaches to dealing with particular issues relating to the SIP
regime, and could therefore provide information and guidance to SIPs to assist them.
By way of example, the Minister could make SIP rules about resolving complaints under
paragraph 360V(1)(a). The rules could require SIPs to report to the ACMA on the number of
complaints, their nature, their resolution, timeframes for resolution or referral and the nature
of disputes that were resolved by the TIO. Publishing such information on the ACMA website
would be of public benefit as it would provide transparency around SIPs' performance and
also encourage SIPs to comply with the rules.
52
Proposed section 360XAI explicitly requires the ACMA to comply with rules made under
new section 360XAI in relation to making available, on the ACMA's website, information or
reports given to the ACMA in accordance with rules made under subsection 360V(1).
Accordingly, if the Minister makes rules requiring such information or reports to be available
on the ACMA's website, the ACMA will be obliged to comply. Rules could be as detailed or
as broad as the case required. For example, rules could require all or some SIPs to give the
Minister copies of such reports, and also specify the manner in which the ACMA is to report,
or alternatively, rules could leave such matters to the ACMA's discretion.
Proposed section 360XAI also works together with item 3 of Schedule 3 to this Bill, which
would establish a broad power for the ACMA, of its own volition, to disclose information
about certain consumer and SIP issues, including by publishing that information, under Part
7A of the ACMA Act.
The note after proposed subsection 360XAI(1) reminds the reader that rules made under the
subsection may be varied or revoked under subsection 33(3) of the AIA.
Proposed subsection 360XAI(2) is enacted for the avoidance of doubt and provides that
section 360XAI does not limit any of the ACMA's other powers or functions.
Item 157 - At the end of subsection 360XA(1)
Item 157 would insert a note after subsection 360XA(1) to remind the reader that rules made
under the subsection may be varied or revoked under subsection 33(3) of the AIA. Subsection
360XA(1) provides that the Minister may, by legislative instrument, make rules requiring
each SIP to give to the ACMA reports about the SIP's compliance with Part 19.
Item 158 - Subsection 360XA(5)
Currently, subsection 360XA(5) provides that section 360XA does not, by implication, limit
Part 27 of the Tel Act. Part 27 confers information-gathering powers on the ACMA, while
section 360XA enables the Minister to make rules requiring each SIP to give compliance
reports to the ACMA. Accordingly, subsection 360XA(5) was enacted to prevent Part 27
being read down.
Item 158 would amend the subsection to provide, for the avoidance of the doubt, that section
360XA does not, by implication, limit subsection 360V(1), section 360XAA or Part 27.
Subsection 360V(1) enables the Minister to make SIP rules about matters specified in that
subsection. Item 144 of Schedule 1 would amend subsection 360V(1) to provide that SIP
rules can require SIPs to give ACMA information or a report. Section 360XAA is to be
inserted by item 155 of Schedule 1 and would enable the Secretary to obtain information and
documents from carriers and CSPs; those powers may be delegated to the ACMA. As all three
provisions would deal with the ACMA's information-gathering powers it is important to
confirm that they should not be read down in relation to each other.
Item 159 - At the end of subsection 360Y(3)
Item 159 would insert a note after subsection 360Y(3) to remind the reader that an instrument
made under the subsection may be varied or revoked under subsection 33(3) of the AIA.
Subsection 360Y(3) provides that the Minister may, by legislative instrument, specify
conditions to further define when a project is a building redevelopment project.
53
Item 160 - Paragraph 360Z(1)(c)
Item 161 - Paragraph 360Z(1)(c)
Item 162 - At the end of paragraph 360Z(1)(c)
Item 163 - At the end of section 360Z
These items amend section 360Z, dealing with the ACMA's SIP Register. Items 161 and 162
are consequential to the extension of SIP obligations to CSPs in specified circumstances, as
proposed by item 74 of Schedule 1, and would require the SIP Register to include anticipatory
notices submitted by CSPs under proposed subsections 360HC(1) or 360HC(2). The current
drafting of subsection 360Z(1) is otherwise broad enough to encompass provisional
nominated service area declarations made by CSPs.
Item 160 is consequential to item 163 and simply amends paragraph 360Z(1)(c) to make it
clear that the obligations on the ACMA to maintain the SIP Register are subject to the new
subsections to be inserted by item 163.
Item 163 would insert new subsections 360Z(4) and (5). These new subsections would allow
the ACMA to make it clear on the Register when an anticipatory notice has ceased to have
relevance, because the area specified in the notice has become a nominated service area or an
anticipated service area.
Proposed subsection 360Z(4) would allow the ACMA to annotate a copy of an anticipatory
notice in the Register to state that the area specified in the notice consists of, or is included in,
a specified nominated service area, or remove the notice from the Register. Subsection
260Z(5) would similarly allow the ACMA to annotate a copy of an anticipatory notice in the
Register, but this time to state that the area specified in the notice consists of, or is included
in, a specified anticipated service area, or remove the notice from the Register.
Item 164 - Paragraph 360ZA(1)(a)
Item 165 - After paragraph 360ZA(1)(e)
Item 166 - Subsections 360ZA(3) and (4)
These items would amend section 360ZA, which deals with the delegation of the Minister's
powers.
Item 164 would repeal paragraph 360ZA(1)(a). The paragraph refers to subsection 360D(14)
(dealing with interim NBN service areas), which is one of the spent provisions dealing with
NBN Co's rollout that is being repealed by item 21, and so item 164 is a consequential
amendment.
Item 165 would add further subsections to the list of subsections in 360ZA(1), which specifies
powers that the Minister may delegate, reflecting amendments proposed by this Bill. The
powers that may be delegated include specifying conditions in relation to nominated service
area declarations by CSPs, changing the carrier or the CSP for a nominated service area and
changing the carrier or the CSP for an anticipated service area. Item 165 would also allow the
Minister to delegate the designation of service areas and carriers or CSPs as SIPs for those
service areas.
The Minister would have discretion to delegate all or a some of the powers listed in section
360ZA, and would have discretion to delegate broadly or narrowly as the case required. For
example, the Minister could delegate to the ACMA the power to vary a designated service
54
area declaration, to correct minor errors or update geographic coordinates, but not the actual
declaration of a designated service area and a person as the SIP.
Item 166 would repeal existing subsections 360ZA(3) and (4) and replace them with new
subsections 360ZA(3)-(8). Currently, the subsections deal with the possible delegation of the
Minister's powers to vary nominated service area declarations under subsection 360H(14).
Item 53 of Schedule 1 would repeal 360H(14) and replace it with a new power for a carrier to
vary its nominated service area declarations, subject to the ACMA's approval. Consequently,
current subsections 360ZA(3) and (4) are no longer required.
The new subsections being inserted by item 166 instead deal with sub-delegation by the
ACMA and delegation by the Minister to the Department. In relation to sub-delegation by the
ACMA, when the Minister delegates a power to the ACMA, particular decisions must be
taken by members of the Authority meeting as a group. Where powers are more
administrative in nature, however, it may be appropriate for members of staff of the ACMA to
exercise them. For example, an ACMA staff member could vary designated service area
declarations to correct typographical errors or update geographic coordinates. Proposed new
subsection 360Z(3) provides that the ACMA may, by writing, delegate to a member of the
ACMA, an SES employee or an acting SES employee, or an Executive Level 1 or 2, or
equivalent, employee, any of the powers listed in subsection 360ZA(1).
While the range of employees to whom powers may be sub-delegated is relatively broad, it is
envisaged that the ACMA would sub-delegate the powers to employees with responsibilities
in relation to the SIP regime and with relevant expertise only. The ACMA could choose to
sub-delegate a limited range of powers in specific circumstances. For example, it might sub-
delegate making minor administrative changes to instruments, or correcting minor errors, to
individual ACMA members, but retain the ability to decide to add new SIP service areas by
way of designation (if this power in section 360L has already been delegated to it by the
Minister under paragraph 360ZA(1)(ei)). It is envisaged that the ACMA would consider the
need for any qualifications or skills necessary to exercise the delegated power at the time of
implementing any sub-delegations.
Proposed subsection 360ZA(4) provides that if the ACMA sub-delegates a power to a person
(the second delegate), then that power, when exercised by the second delegate, is taken for the
purposes of the Act to have been exercised by the Minister.
Proposed subsection 360ZA(5) provides that, if the Minister provides directions in relation to
the exercise of a power when delegating the power to ACMA, then the ACMA must give
corresponding directions to the second delegate. The ACMA may give other written
directions, provided they are not inconsistent with the corresponding directions.
Proposed subsection 360ZA(6) would require the second delegate to comply with any
directions of the ACMA.
Proposed subsections 360ZA(7) and (8) deal with delegation by the Minister to Departmental
employees. The Minister may delegate any or all of the Minister's powers to an SES
employee or an acting SES employee. In exercising a delegated power, the delegate must
comply with any written directions of the Minister.
55
Telecommunications (Consumer Protection and Service Standards) Act 1999
Item 167 - After subsection 128(5)
Item 168 - At the end of subsection 129(2)
Item 169 - At the end of subsection 130(3)
Item 170 - At the end of subsection 131(3)
Items 167-170 amend the TCPSS Act to enhance the powers of the TIO to resolve complaints
that involve SIPs. The TIO handles complaints involving carriers and CSPs (including SIPs).
Its powers are specified in Part 6 of the TCPSS Act. The TIO primarily deals with complaints
about retail carriage services, but may join SIPs to complaints where those SIPs supply
wholesale services that are relevant to the supply of the retail services that are the subject of
the complaint. Its ability to handle SIP connection complaints is less certain because the
TCPSS Act does not explicitly provide for it. Consequently, these items provide certainty that
the TIO may handle SIP connection complaints. A key objective of these arrangements is to
facilitate the prompt resolution of complaints and prevent them being hand-balled between
SIPs and CSPs to the frustration and detriment of customers.
Item 167 would amend section 128 of the TCPSS Act, which establishes the TIO scheme and
the powers of the TIO to resolve complaints about carriage services by end-users of those
services. It would insert new subsections 128(5A) and (5B). Proposed subsection 128(5A)
would enable the TIO scheme to provide for the TIO to investigate, make determinations
relating to, and give directions relating to complaints about the connection of premises to a
qualifying telecommunications network. Two qualifying criteria are specified: the connection
must be by a SIP for a service area, and the connection must be in order that a CSP can
provide qualifying carriage services to an end-user at premises in the service area.
For the avoidance of doubt, complaints about the connection of premises would cover
complaints about refusals to connect as well as complaints about pending connections.
It is envisaged that, as a consequence of item 167 being enacted, the TIO would be able to
deal with connection complaints in accordance with its Terms of Reference and Complaint
Handling Procedures. Under the TIO's current Terms of Reference, the TIO can make binding
decisions up to $50,000 and recommendations up to $100,000.
Proposed subsection 128(5B) is an interpretive provision that provides that the expressions
qualifying carriage service, qualifying telecommunications network, service area and
statutory infrastructure provider have the same meaning as in Part 19 of the Tel Act.
Sections 129-31 of the TCPSS Act provide powers for the ACMA to exempt carriers or CSPs
from the TIO scheme, or to require CSPs to join it. Given the new power to handle SIP
connection complaints at item 167, items 168-170 would make consequential amendments to
sections 129-31 to ensure that the ACMA's powers under the sections also apply to such
connection complaints.
Item 168 would add a new paragraph 129(2)(d) to add a new criterion to the list of factors to
which the ACMA must have regard in deciding whether to exempt a carrier or CSP from the
requirement to join the TIO scheme. The ACMA must also have regard to whether the carrier
or CSP is a SIP.
56
Item 169 would insert a new paragraph 130(3)(d) to add a new criterion to the list of factors to
which the ACMA must have regard in deciding whether or not to direct a CSP to join the TIO
scheme. The ACMA must also have regard to whether the CSP is a SIP. (Note that whereas
section 129 of the TCPSS Act allows the ACMA to exempt both carriers and CSPs from the
TIO scheme, section 130 only allows the ACMA to direct CSPs to join the TIO scheme,
although in practice most, if not all, carriers would also be CSPs).
Item 170 would insert a new paragraph 131(3)(d) to add a new criterion to the list of factors to
which the ACMA must have regard in deciding whether or not to make a determination that a
class of CSPs must join the TIO scheme. The ACMA must also have regard to whether
members of that class are SIPs. (As with section 130, section 131 limits the ACMA's powers
to making determinations in respect of CSPs).
Part 2 - Application and transitional provisions
Part 2 of Schedule 1 to the Bill sets out three application provisions and two transitional
provisions. The application provisions deal with SIP declarations, requests and refusals. They
are being enacted to make it clear that the changes in requirements are prospective only, and
do not cast doubt on the validity of existing SIP declarations, requests and refusals.
Item 171 - Application - declarations made under section 360H of the
Telecommunications Act 1997
Item 171 provides that the amendments of subsections 360H(1), (2), (4) and (6) of the Tel Act
made by Schedule 1 apply in relation to a declaration made after the commencement of the
item. These amendments are set out at items 27-33, 36-40 and 43-47 of Part 1 of Schedule 1
and amend requirements for carriers to declare provisional nominated service areas. Item 171
confirms that the amendments apply after commencement, noting that the whole of the Act
would commence on the day after the Act receives the Royal Assent.
Item 172 - Application - notices given under section 360HA of the Telecommunications
Act 1997
Item 172 provides that the amendments of subsections 360HA(1), (2), (3) and (4) of the Tel
Act made by Schedule 1 apply in relation to a request made after the commencement of the
item. These amendments are set out at items 56-72 of Part 1 of Schedule 1 and amend
requirements for carriers to give anticipatory notices to the ACMA. Item 172 confirms that
the amendments apply after commencement, noting that the whole of the Act would
commence on the day after the Act receives the Royal Assent.
Item 173 - Application - requests mentioned in subsection 360P(1) of the
Telecommunications Act 1997
Item 173 provides that the amendment of subsection 360P(12) of the Tel Act made by
Schedule 1 applies in relation to a notice given after the commencement of the item. This
amendment is set out at item 107 of Part 1 of Schedule 1 and amends the requirements for
SIPs to advise CSPs of refusals of requests to connect premises to SIPs' networks. Item 173
confirms that the amendments apply after commencement, noting that the whole of the Act
would commence on the day after the Act receives the Royal Assent.
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Item 174 - Transitional - determination made under subsection 360LA(3) of the
Telecommunications Act 1997
Item 174 provides that the amendments of section 360LA of the Tel Act made by Schedule 1
of this Bill (see items 88-95) do not affect the continuity of a determination made under
subsection 360LA(3) of the Tel Act before the commencement of item 174.
This item clarifies that, if the ACMA were to make a legislative instrument to specify a new
format for the description of SIP service areas before item 174 commences, then that
instrument would continue to have effect after item 174 has commenced. Item 174, along with
the whole of the Act, would commence the day after the Act receives the Royal Assent.
Item 175 - Transitional - rules made under subsection 360V(1) of the
Telecommunications Act 1997
Item 175 provides that subsections 360V(1AA) and (1AB) of the Tel Act (as amended by
Schedule 1 of this Bill) do not, by implication, affect the application of subsection 33(3A) of
the AIA to rules made under subsection 360V(1) of the Tel Act before the commencement of
item 175.
Item 145 of Schedule 1 would insert proposed new subsection 360V(1AA), to provide that
rules made under subsection 360V(1) may be of general application or may be limited as
provided in the rule, and proposed new subsection 360V(1AB), to provide that subsection
(1AA) does not, by implication, limit subsection 33(3A) of the AIA (which provides that
instruments may specify matters only or a class or classes of matters). Item 175 therefore
ensures that these new provisions cannot be used to read down any powers to make rules that
were exercised before the commencement of the item.
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Schedule 2 - Deployment of optical fibre
Schedule 2 would amend Part 20A of the Tel Act to create a power for the ACMA to issue
remedial notices to persons (mainly developers) who contravene civil penalty provisions in
the Part. It also makes consequential amendments to Schedule 4 of the Tel Act.
Part 20A of the Tel Act provides, among other things, that:
• a person must not install a fixed-line facility in the project area, or any of the project
areas, of a real estate development project unless the facility is a fibre-ready facility;
and
• a person must not sell or lease a building lot or a building unit unless a functional
fibre-ready facility is installed in proximity to the lot or unit.
Part 20A of the Tel Act works together with Part 19 and the Government's
Telecommunications in New Developments (TIND) policy (currently available at
www.infrastructure.gov.au/tind) so that premises are provided with telecommunications. Part
20A addresses the need for developers to provide infrastructure that supports fixed-line
networks. The TIND policy then states that developers should contract a carrier to service
their developments. Part 19 provides that NBN Co is the default SIP for Australia, but if
developers have contracted with another carrier to service a real estate development project or
a building redevelopment project, then that carrier is the SIP.
The requirements in Part 20A were enacted in 2012 and were amended in 2021 to encompass
all persons who sell or lease a building lot or a building unit. Despite this, there is a small but
persistent level of non-compliance with the obligations, largely from developers who are
ignorant of, or ignore, the requirements - for example, small first-time or once-only
developers or owner-builders. Given the small scale of such developers, taking action against
them in court would be disproportionate and not cost-effective, and in any event would not
provide redress for occupants of building units which have not had functional fibre-ready
facilities installed in proximity, meaning those occupants have had to pay to retrofit facilities.
The amendments in Schedule 2 are therefore intended to provide a cost-effective mechanism
that can address non-compliance.
Item 1 - Section 7
Item 1 would insert a definition of remedial notice into section 7 of the Tel Act. A remedial
notice means a notice under subsection 372JA(2), to be inserted by item 2 of Schedule 2.
Item 2 - After Subdivision B of Division 3 of Part 20A
Item 2 would insert a new Subdivision C of Division 3 of Part 20A into the Tel Act, dealing
with remedial notices. The proposed Subdivision comprises eight new sections.
Proposed section 372JA defines remedial notices and the ACMA's powers to give such
notices to persons under Part 20A. If the ACMA reasonably believes that a person is
contravening, has contravened, or is likely to contravene a designated civil penalty provision
then the ACMA may give the person a written notice requiring the person to remedy the
contravention, prevent the likely contravention from occurring, or remedy the things or
operations causing the contravention or likely contravention. This notice is known as a
remedial notice.
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Designated civil penalty provision is defined under proposed section 372JH, also being
inserted into Part 20A by item 2 of Schedule 2.
The ACMA's reasonable belief under proposed section 372JA is to be determined
objectively, having regard to what is reasonable in the circumstances of each case.
The ACMA's power to issue remedial notices is discretionary, and ultimately it would be up
to the ACMA to decide when it is appropriate to issue such a direction. It could, for example,
issue such notices where the cost impact on end-users of retrofitting facilities is high or
disproportionate, or where developers have a history of non-compliance, or where the non-
compliance is significant in effect (e.g. a large greenfield development is not provided with
functional fibre-ready facilities). Given that enforcement of Part 20A is largely complaints-
based, it would be expected that SIPs would report issues to the ACMA so that it could act.
The alternative is often for the SIP itself or owners in the development to take on the expense
of retrofitting or remediating facilities so telecommunications services are available after
much delay.
The ACMA's decision to issue a remedial notice is subject to reconsideration by the ACMA
and merits review (see item 3 of Schedule 2).
Proposed section 372JB sets out the mandatory and optional contents of a remedial notice. A
remedial notice must state that the ACMA reasonably believes that a person is contravening,
has contravened, or is likely to contravene a designated civil penalty provision (as relevant to
the circumstances of the case). It must identify the provision, briefly state how the provision
is being, has been, or is likely to be, contravened, and must also state the period within which
the person must comply with the notice. The remedial notice may also include directions from
the ACMA concerning the measures to be taken to remedy the contravention, prevent the
likely contravention from occurring or remedy the things or operations causing the
contravention or likely contravention.
The mandatory content aims to ensure that the person who is issued with the remedial notice
understands the grounds for the ACMA's decision.
Proposed subsection 372JB(3) provides that the period stated for compliance with the
remedial notice must be reasonable in all the circumstances. Again, reasonable is to be
determined objectively, having regard to what is reasonable in the circumstances of each case.
Proposed section 372JC provides that a person must comply with a remedial notice
(subsection 372JC(1)). It also establishes ancillary contraventions of subsection (1), in
relation to persons who aid, abet, counsel or procure a contravention, induce a contravention,
are knowingly concerned in, or party to, a contravention, or conspire with others to effect a
contravention (subsection 372JC(2)). Subsection 372JC(3) provides that subsections 372JC(1)
and (2) are civil penalty provisions, and a note reminds the reader that Part 31 of the Tel Act
provides for pecuniary penalties for breaches of civil penalty provisions. Under Part 31, the
Federal Court may order a corporation to pay up to $250,000 for each contravention of a civil
penalty provision in Part 20A, or up to $50,000 for a person who is not a corporation.
Proposed section 372JD applies if a person has been given a remedial notice. It allows the
ACMA to extend the compliance period for the remedial notice, as long as the period has not
already ended. The term compliance period is defined to mean the period stated in a remedial
notice under section 372JB, including any extension under section 372JD.
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Proposed section 372JE also applies if a person has been given a remedial notice. It allows the
ACMA to vary a remedial notice in writing. Proposed subsection 372JE(3) is enacted for the
avoidance of doubt and states that the ACMA may also, in accordance with section 372JD,
extend the compliance period for a remedial notice.
Proposed section 372JF applies if a person has been given a remedial notice, and if, during the
compliance period for the notice, the ACMA forms a reasonable belief that the notice is no
longer required for the purposes specified in subsection 372JF(1). In that case the ACMA
must revoke the notice in writing. Proposed subsection 372JF(2) is enacted for the avoidance
of doubt and states that the compliance period means the period stated in the remedial notice
under section 372JB, and includes any extension of the period under section 372JD.
Proposed section 372JG provides that a remedial notice is not invalid only because of:
a) a formal defect or irregularity in the notice unless the defect or irregularity causes or is
likely to cause substantial injustice; or
b) a failure to use the correct name of the person to whom the notice is issued if the
notice sufficiently identifies the person.
Proposed section 372JH defines designated civil penalty provision for the purposes of new
Subdivision C. It lists key civil penalty provisions in Part 20A, including subsection 372E
(installation of fibre-ready facilities for building lots), subsection 372F(2) (installation of
fibre-ready facilities for building units), subsections 372G(2), 372G(2A) and 372G(3)
(dealing with the sale or lease of building lots by constitutional corporations, or of building
lots in a Territory or in a State by a person other than a constitutional corporation), and
subsections 372G(4), 372G(4A) and 372G(5) (dealing with the sale or lease of building units
by constitutional corporations, or of building units in a Territory or in a State by a person
other than a constitutional corporation). As noted above, the ACMA would have the power to
issue a remedial notice in relation to a contravention of any of these provisions.
Item 3 - After paragraph 1(o) of Schedule 4
Item 3 would amend Schedule 4 of the Tel Act so that decisions by the ACMA to give, vary
or refuse to revoke a remedial notice are listed as reviewable decisions. In accordance with
section 555 of the Tel Act, an application may therefore be made to the ACMA for
reconsideration of these decisions, and the ACMA must reconsider the decision and affirm,
vary or revoke the decision (section 559 of the Tel Act). If the ACMA has affirmed or varied
a decision under section 559, then a further application may be made to the Administrative
Appeals Tribunal for merits review of the decision (section 562 of the Tel Act). Given that
decisions relating to remedial notices could affect the rights and interests of a person, it is
appropriate that such decisions are reviewable on their merits.
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Schedule 3 - Disclosure of information
Australian Communications and Media Authority Act 2005
Part 7A of the ACMA Act deals with the disclosure of ADI by the ACMA. ADI is defined in
section 3 of the ACMA Act, and includes information that is given in confidence to the
ACMA in connection with the performance of its functions or powers, and information
obtained by the ACMA under certain legislative powers (for example, its information
gathering powers under Part 27 of the Tel Act). The amendments in Schedule 3 modify the
ACMA's disclosure processes in two areas. The first is in disclosing information to the
Department or the Minister responsible for the ACMA, and the second is in disclosing
industry performance data in a manner that identifies the carriers and CSPs to whom it relates.
Both changes are intended ultimately to improve the delivery of telecommunications by
providing better access to relevant information.
Item 1 - After subsection 59B(1)
Item 2 - Subsection 59B(3)
Section 59B currently provides for the disclosure of ADI to public servants for the purpose of
advising their Ministers.
Item 1 would insert new subsection 59B(1A) into Part 7A of the ACMA Act to require the
ACMA to provide ADI to the Department if requested to do so by the Secretary or a duly
authorised APS employee.
Item 2 makes a consequential amendment to subsection 59B(3) to provide, for the avoidance
of doubt, that subsection 59B(2) does not limit subsection 59B(1) or (1A).
While section 59B of the ACMA Act currently allows the ACMA to provide ADI to the
Secretary of the Department (or authorised Departmental staff) for the purpose of advising
their Ministers, the ACMA is not required to provide it to the Department. The process of
requesting ADI from the ACMA, and the process of the ACMA considering that request, is
also administratively burdensome and time-consuming.
ADI is an important source of information for the Department. It improves the Department's
understanding of the sector and it informs the Department's policy advice to Government.
Item 1 therefore aims to provide the Department with access to the information it requires in a
timely manner.
Item 3 - After section 59D
The ACMA is currently limited in its ability to identify individual carriers and CSPs in its
public reports by the operation of Part 7A of the ACMA Act. For example, ACMA's reports
on complaints-handling statistics do not identify and compare complaint numbers and
performance of individual carriers and CSPs. Rather they only provide aggregated and
unattributed statistics and summaries so as not to identify persons, consistent with section
59G.
Existing sections 59E-G of Part 7A cover key circumstances in which the ACMA can
publicly disclose ADI, as distinct from other elements of Part 7A that allow the ACMA to
disclose ADI to particular individuals and organisations. Section 59E allows disclosure of
ADI with consent; section 59F allows disclosure of ADI if it is already public, and section
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59G allows disclosure of ADI summaries and statistics that are not likely to enable
identification of a person (including a carrier or CSP).
Item 3 would insert a new subsection 59DA permitting the disclosure of information,
including by publishing that information, about key customer service matters that may
involve disclosing the identity of a carrier or CSP. The section would enhance transparency
across the telecommunications supply chain by enabling the ACMA to report on the
performance of specific carriers and CSPs, including the responsibility of both for issues
experienced by consumers. Additionally, the proposed subsection is intended to drive
improved customer service and competition around customer service, through clear and
improved accountability.
Proposed subsection 59DA(1) would enable the ACMA to disclose ADI that relates to the
affairs of a carrier or a CSP and that relates to the matters specified in paragraph 59DA(1)(b).
These matters are customer complaints, customers experiencing financial hardship,
customer service, faults and service difficulties, the rectification of faults and service
difficulties, service activation and provisioning, service connection, the performance
characteristics of services, customer appointment-keeping, or a matter determined by the
Minister under subsection 59DA(4). The scope of the matters specified is intentionally broad,
consistent with the intention of improving transparency and accountability, and the scope can
be expanded if needed through a determination under subsection 59DA(4).
Proposed subsection 59DA(2) has a similar intent and would operate in a similar manner to
subsection 59DA(1), but in relation to summaries of ADI.
Proposed subsection 59DA(3) has a similar intent and would operate in a similar manner to
subsection 59DA(1), but in relation to statistics derived from ADI
Proposed subsection 59DA(4) would allow the Minister, by legislative instrument, to
determine one or more matters for the purposes of this new provision. This would provide the
Minister with flexibility to enable the disclosure of ADI in additional categories not
anticipated at the time of drafting.
Proposed subsection 59DA(5) is central to the amendment and would provide that disclosure
under the proceeding three subsections may involve disclosing the identity of a carrier or
CSP. This is to put this matter beyond any doubt.
Proposed subsection 59DA(6) provides, for the avoidance of doubt, that a disclosure
involving the identity of a carrier or CSP would not, by implication, limit what can be
disclosed under other provisions of Part 7A of the ACMA Act.
Proposed subsection 59DA(7) makes clear that subsections (1), (2) and (3) do not authorise
the disclosure of anything that is likely to enable the identification of an end-user of a carriage
service. For the purposes of subsection 59DA(7), an 'end-user of a carriage service' is
intended to mean an individual who is a customer of a CSP. It is not intended to apply to a
CSP in the circumstance where the CSP is an end-user or a customer.
For the avoidance of doubt, proposed subsection 59DA(8) clarifies that 'disclosure' under
proposed section 59DA includes publication on the ACMA's website or in any other way.
Proposed subsection 59DA(9) notes this is for the avoidance of doubt.
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Proposed subsection 59DA(10) makes it clear that for the purposes of the section, 'customer'
includes a prospective customer, that is, for example, a person who may be seeking to have a
service connected or activated, but has not yet entered into a contract for a connection or
service, nor has the service connected or activated. Again, this is consistent with the intention
of the new section to maximise transparency and accountability.
Item 4 - Section 59E
Item 5 - At the end of section 59E
Item 4 amends section 59E to make the existing section subsection 59E(1). This is
consequential to item 5, which adds two new subsections. Proposed subsection 59E(2) would
make it clear that disclosure under section 59E includes the publication of information on the
ACMA's website or in any other way. Proposed subsection 59E(3) indicates that new
subsection 59E(2) is provided for the avoidance of doubt so that it is clear other provisions
should not be read down as result.
Item 6 - Section 59F
Item 7 - At the end of section 59F
Item 6 amends section 59F to make the existing section subsection 59F(1). This is
consequential to item 7, which adds two new subsections. Proposed subsection 59F(2) would
make it clear that disclosure under section 59F includes the publication of information on the
ACMA's website or in any other way. Proposed subsection 59F(3) indicates that new
subsection 59F(2) is provided for the avoidance of doubt so that it is clear other provisions
should not be read down as result.
Item 8 - Section 59G
Item 9 - At the end of section 59G
Item 8 amends section 59G to make the existing section subsection 59G(1). This is
consequential to item 9, which adds two new subsections. Proposed subsection 59G(2) would
make it clear that disclosure under section 59G includes the publication of summaries or
statistics on the ACMA's website or in any other way. Proposed subsection 59G(3) indicates
that new subsection 59G(2) is provided for the avoidance of doubt so that it is clear other
provisions should not be read down as result.
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Schedule 4 - Primary universal service providers
Telecommunications (Consumer Protection and Service Standards) Act 1999
Divisions 1 and 2 of Part 2 of the TCPSS Act establish the universal service obligation. This
obligation is currently imposed on Telstra Limited, as the primary universal service provider
(PUSP), and requires it to ensure that standard telephone services and payphones are
reasonably accessible to all people in Australia on an equitable basis, wherever they reside or
carry on business. The Minister may determine, by legislative instrument, that there is more
than one PUSP in respect of the standard telephone service and payphone obligations.
Currently, the Minister can determine PUSPs in relation to the service obligations to supply
standard telephone services and payphones. While it is logical that PUSPs should be able to
be determined in relation to particular service areas that are part of Australia, this is not clear
in the current drafting.
Amendments are therefore proposed to make it clear that PUSPs for an obligation can be
declared in relation to a specified service area. This would be useful in the event the
Australian telecommunications regulatory framework is extended to Norfolk Island as part of
the extension of Commonwealth arrangements to the Territory. This would enable a PUSP
other than Telstra to be designated for the Territory, noting Norfolk Telcom currently
provides telephone services like those provided under the USO on the island and Telstra does
not have any network infrastructure on the island.
There are two separate powers for the Minister to determine PUSPs, set out at subsections
12A(1) and 12A(2A).
The first power in subsection 12A(1) allows the Minister to determine that a specified carrier
or CSP is the PUSP in respect of a service obligation (i.e., the obligation to supply standard
telephone services or the obligation to ensure that payphones are reasonably accessible).
Subsection 12A(2) then further provides that the Minister may determine different PUSPs in
respect of different service obligations, and the same person as the PUSP in respect of one or
more service obligations. Under section 12D of the TCPSS Act the Minister is taken to have
made a determination under subsection 12A(1) that Telstra Limited is the PUSP in respect of
the two service obligations.
The second power is set out at subsection 12A(2A). This and related provisions were added
by item 102 of Schedule 2 of the Telstra Corporation and Other Legislation Amendment Act
2021 in recognition that following Telstra's restructure more than one Telstra company may
need to be designated as a PUSP to ensure the universal service obligation is fulfilled.
Subsection 12A(2A) provides that the Minister may determine, in writing, that each of 2 or
more specified persons is a PUSP in respect of a service obligation. Subsection 12A(2C) then
provides that the Minister may determine under subsection (2A) that there are different
PUSPs in respect of different service obligations, or that one person is the PUSP in respect of
one or more service obligations. That is, if there are two PUSPs who both are subject to the
same service obligations, they would both be required to comply with the obligation.
Provisions in section 12C set out how compliance is to be determined if there is more than
one PUSP for the same obligation.
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Item 1 - Section 8A
Item 1 amends the definitions in section 8A of the TPCSS Act that apply to Part 2 of that Act.
It inserts two definitions, general Australian service area and service area. The general
Australian service area is defined to mean the service area consisting of Australia. The
TCPSS Act uses the definition of Australia provided in the Tel Act. Section 7 of the Tel Act
provides that Australia, when used in a geographical sense, includes the eligible Territories.
The eligible Territories are Christmas Island, the Cocos (Keeling) Islands or an external
Territory prescribed under the Tel Act. The general Australian service area would therefore be
coterminous with the area Telstra must currently serve as the PUSP, noting Norfolk Island is
not currently prescribed.
One option for extending the Australian telecommunications regulatory framework to Norfolk
Island is to prescribe Norfolk Island for the purposes of section 7, thereby making it part of
Australia for the purposes of Australian telecommunications law. In the absence of it being
designated as a service area in itself, Norfolk Island would be part of the general Australian
service area under Part 2 of the TCPSS Act. However, if Norfolk Island were prescribed for
the purposes of section 7 of the Tel Act, it is envisaged Norfolk Island could be treated as a
separate service area allowing tailored universal service arrangements to be applied there.
A service area is defined to have the meaning given by new section 8C.
Item 2 - After section 8BA
Item 2 inserts a proposed new section 8C that defines service area. The term is fundamental
to the amendments being inserted by Schedule 4 of the Bill, which are intended to allow the
Minister to determine different service areas for different PUSPs as required.
A service area is defined as:
a) any geographical area within Australia; or
b) any area of land; or
c) any premises or part of premises
regardless of size.
The intention is that a Ministerial determination should be able to specify a service area that
matches the specific area that a PUSP is expected to service. For example, if the external
Territory of Norfolk Island were to be prescribed as part of Australia under the Tel Act, a
Ministerial Determination could then determine that the Territory is a service area and also
determine the PUSP or PUSPs for the service area.
Item 3 - Subsection 12A(1)
Item 3 would insert the words 'for a service area' before the words 'in respect of a service
obligation' in subsection 12A(1). The amendment therefore ensures that, if the Minister were
to determine that a specified carrier or CSP is a PUSP under subsection 12A(1), the Minister
must also determine the service area or areas for the PUSP.
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Item 4 - Paragraph 12A(2)(a)
Item 4 would insert the words 'for the same service area' after 'obligations'. As a result,
paragraph 12A(2)(a) would provide that the Minister may determine different PUSPs in
respect of different service obligations for the same service area.
Item 5 - Paragraph 12A(2)(b)
Item 5 would insert the words 'for one or more service areas' after 'provider'. As a result,
paragraph 12A(2)(b) would provide that the Minister may determine the same person as the
PUSP in respect of one or more service obligations for one or more service areas.
Item 6 - Subsection 12A(3)
Item 6 would repeal subsection 12A(3) and substitute a new subsection. Currently, subsection
12A(3) provides that, in exercising his or her powers under section 12A, the Minister must
ensure that at all times there is at least one PUSP in respect of each service obligation. The
amendment would require the Minister to ensure that at all times each point in Australia is
within a service area for which there is at least one PUSP in respect of a service obligation.
The amendment therefore continues to ensure that all areas in Australia can receive universal
service, while also ensuring that new PUSPs can be determined for specific service areas.
Item 7 - Subsection 12C(1)
Item 8 - Subsection 12C(1)
Item 7 would amend subsection 12C(1) to insert the words 'for a service area' before 'in
respect of a service obligation'. Item 8 inserts the words 'so far as it relates to that area' after
'that service obligation'. The result of the amendments is that, if there is only one PUSP for a
service area in respect of a service obligation, that PUSP must fulfil the service obligation as
far as it relates to the service area. The amendments therefore clarify the obligations on
individual PUSPs in respect of their service areas.
Item 9 - Subsection 12C(2)
Item 10 - Paragraphs 12C(2)(a) and (b)
These items amend subsection 12C(2) to insert the words 'for a service area' before 'in
respect of a service obligation', and 'so far as it relates to that area' after each occurrence of
'obligation'. Subsection 12C(2) clarifies how compliance with the universal service
obligation may be determined when there is more than one PUSP for a service obligation. It
provides that, if the Minister has determined 2 or more PUSPs in respect of a service
obligation, then that obligation is imposed on each PUSP, but may be discharged by any of
the PUSPs, and if a PUSP has complied with the service obligation, then the obligation is
taken to have been complied with by the other PUSPs.
The amendments proposed at items 9 and 10 clarify that multiple PUSPs for a single service
area will be taken to comply with their service obligation in the circumstances set out in
subsection 12C(2).
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Item 11 - Section 12D (heading)
Item 12 - Subsection 12D(1)
Item 13 - Subsection 12D(1)
Item 14 - At the end of section 12D
These items amend section 12D to clarify how any new service areas determined by the
Minister interact with the general Australian service area for which Telstra is the default
PUSP.
Item 11 amends the heading of section 12D to remove the word 'Transitional'. This is
consequential to item 12. Item 12 amends subsection 12D(1) to remove the concept that the
first Ministerial determination to be made under section 12A would automatically repeal the
status of Telstra Limited as the PUSP. Given that a determination may be made under section
12A to provide for new PUSPs that service specific areas of Australia that are carved out of
the general Australian service area, it would not be appropriate for such a determination to
repeal Telstra Limited's status as the PUSP.
Item 13 amends subsection 12D(1) to introduce the concept that the general Australian
service area can be amended to exclude service areas determined in relation to other PUSPs. It
does this by providing that Telstra Limited is the PUSP for so much of the general Australian
service areas as is not a special determined area in relation to a service obligation.
A special determined area is then defined in amendments introduced by item 14. Item 14
introduced four new subsections into section 12D, subsections 12D(4)-(7). Subsections
12D(4)-(5) provide that the Minister may determine that a person or persons other than
Telstra Limited is the PUSP for a service area in respect of a service obligation. If such a
determination is in force, then the service area is a special determined area. Subsections
12D(6)-(7) then make provision for the possibility that the Minister may determine that
Telstra Limited is no longer the PUSP for the general Australian service area, but another
person or persons may be PUSPs for the area. If such a determination is in force, then
subsection 12D(1) (which provides that Telstra Limited is the PUSP for the general
Australian service area in respect of the service obligations to supply standard telephone
services and payphones) would no longer apply in respect of those service obligations.
Item 15 - Paragraph 12E(1)(a)
Item 16 - Paragraph 12E(1)(b)
Item 17 - Subparagraphs 12E(2)(a)(i) and (ii)
Item 18 - Paragraph 12E(2)(b)
These items amend section 12E to reflect that one or more persons may be determined to be
the PUSP or PUSPs for specific service areas. They are consequential to items 3-5. Section
12E currently provides that a former PUSP may be required to provide information to a
current PUSP (i.e., the section recognises that a PUSP may change). Following the
amendments, section 12E would recognise that the PUSP may change in specific service
areas, and not necessarily in the whole of the general Australian service area.
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Schedule 5 - Technical amendments
Telecommunications Act 1997
Item 1 - Section 7 (at the end of the definition of authorised infringement notice officer)
Item 1 would expand the definition of authorised infringement notice officer in section 7 of
the Tel Act. Amendments to the section 572L of the Tel Act enacted by the
Telecommunications Legislation Amendment (Competition and Consumer) Act 2020 (the
2020 amendments) envisaged that the Chairperson of the ACCC, or a member of the staff of
the ACCC, could be appointed as an authorised infringement notice officer for the purposes
of Part 31B of the Tel Act. The definition was not amended to reflect this change. Item 1
would rectify this by amending the definition of authorised infringement officer to include the
Chairperson of the ACCC or a member of staff appointed in accordance with section 572L.
As amended, the authorised infringement notice arrangements would, as intended, closely
reflect those that apply to the ACMA.
Item 2 - Subparagraph 87(3)(a)(iii)
Paragraph 87(3)(a) was enacted in 1997 and referred to network units that were used by
carriers or exempt network users, as well as by the Australian National Railways
Commission. It provided that if a carrier or an exempt network-user supplies a carriage
service mentioned in any of the subparagraphs listed in paragraph 87(3)(a), and that carriage
service is supplied to the public, the carrier or the exempt network-user, as the case may be, is
a CSP.
Item 1 would repeal subparagraph 87(3)(a)(iii) from the list of provisions in paragraph
87(3)(a). Subparagraph 87(3)(a)(iii) refers to paragraph 47(6)(b) of the Tel Act. Subsection
47(6) of the Tel Act was repealed in 1997 by item 19 of Schedule 4 of the Australian National
Railways Commission Sale Act 1997. That Act, however, did not repeal subparagraph
87(3)(a)(iii), so this technical correction is now proposed.
Item 3 - After paragraph 570(3)(a)
Item 4 - After paragraph 570(3)(ab)
Item 5 - Paragraph 570(4)(a)
Subsection 570(1) of the Tel Act provides that, if the Federal Court is satisfied that a person
has contravened a civil penalty provision, the Court may order the person to pay to the
Commonwealth such pecuniary penalty, in respect of each contravention, as the Court
determines to be appropriate.
Paragraph 570(3)(a) of the Tel Act provides that the pecuniary penalty payable under
subsection 570(1) by corporations contravening subsections 68(1) or 68(2), which relate to
breaches of carrier licence conditions, or subsections 101(1) or 101(2), which relate to
breaches of service provider rules, is not to exceed $10 million.
Subsection 570(3) of the Tel Act provides that, except for breaches of sections 68 and 101
and in all specified cases, pecuniary penalties under the Tel Act for corporations cannot
exceed $250,000.
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Paragraph 570(4) of the Tel Act provides that the default pecuniary penalty payable under
subsection 570(1) by a person other than a corporation cannot exceed $50,000. A special
prescription is made for a contravention of subsection 97(1) or 97(1A) of the Tel Act.
Subsection 570(6) of the Tel Act provides that, if conduct constitutes a contravention of either
section 68 or section 101 and one or more other civil penalty provisions, then proceedings
must not be instituted against the carrier or service provider in relation to sections 68 or 101.
The 2020 amendments created the following new civil penalty provisions that also represent
carrier licence conditions:
• insertion of sections 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG,
151ZH or 151ZI into Part 8 of the Tel Act (which cover provisions relating to the
carrier separation arrangements that apply to fixed-line telecommunications networks
capable of supplying superfast broadband services); and
• insertion of sections 97(1), (1A) and (2) into the TCPSS Act (which represent anti-
avoidance provisions, for carriers that seek to avoid application of the Regional
Broadband Scheme charge, and for persons (including other carriers) who aid, abet,
counsel or procure a contravention of those two anti-avoidance provisions, with these
provisions also attracting the higher penalty.).
In accordance with section 61 of the Tel Act, carrier licences are subject to the conditions
specified in Schedule 1 to the Tel Act. Clause 1 of Schedule 1 includes the requirement that
carriers comply with the Tel Act. Therefore, compliance with the prohibitions in Part 8
(which are also civil penalty provisions) and the TCPSS Act are also carrier licence
conditions. Subsection 68(1) of the Act provides that a carrier must not contravene a
condition of a carrier licence held by the carrier.
The policy intention of the 2020 amendments relating to the Part 8 of the Tel Act civil penalty
provisions was for a carrier that is a corporation who breached the provisions to be subject to
a penalty of $10 million.
Similarly, the policy intent for breaches of the RBS anti-avoidance provisions by carriers was
that they would attract the $10 million penalty (for corporations) or 10,000 penalty units (for
persons other than corporations) covering all of these civil penalty provisions. However, due
to a drafting oversight, a consequential amendment was not made to section 570 to override
the operation of section 570(6) which has led to ambiguity as to the maximum penalty that
applies in each case. Without amendment, the lower amounts of $250,000 per breach (in the
case of corporations) and $50,000 (in the case of persons other than corporations), rather than
the intended $10 million (or 10,000 penalty units), are likely to apply. Additionally, due to a
drafting oversight, subsection 97(2) was not referenced in the amendments which inserted
new subparagraph 570(4)(a), which has resulted in contraventions of section 87A(2) by a
carrier not attracting the intended higher penalty.
To implement the original policy intention regarding the higher maximum penalties for
contraventions of sections 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH
or 151ZI, Item 3 would insert a new paragraph 570(3)(aaa) after 570(3)(a) of the Tel Act to
establish a maximum penalty of $10 million for each contravention of those civil penalty
provisions contained within Part 8 of the Act by a carrier that is a corporation.
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Similarly, Item 4 would insert a new paragraph 570(3)(ac) after existing paragraph 570(3)(ab)
of the Tel Act to establish a maximum penalty of $10 million for each contravention of the
civil penalty provisions contained within subsections 97(1), (1A) and (2) of the TCPSS Act
by a carrier that is a corporation.
Item 5 would amend existing paragraph 570(4)(a) of the Tel Act to provide that
contraventions of subsection 97(2) of the TCPSS Act by a person other than a corporation
attracts the same maximum penalty of 10,000 penalty units that currently applies to
contraventions directly of subsections 97(1) and 97(1A) of the TCPSS Act. This item replaces
existing paragraph 570(4)(a) with a new paragraph that adopts clearer language and extends
the operation of the provision to cover also contraventions of subsection 97(2) of the TCPSS
Act.
Item 6 - Section 572M
Subsection 572M(1) of the Tel Act specifies that in exercising a power conferred upon an
authorised infringement notice officer, that officer must have regard to relevant guidelines
established via a legislative instrument in accordance with subsection 572M(2). Further,
subsection 572M(3) specifies that such an officer must not give an infringement notice to a
person unless guidelines are in place. As the ACMA is the only body authorised to make such
guidelines through a legislative instrument and it was envisaged that the authorised ACCC
infringement notice officers would be able to issue infringement notices, it is appropriate that
the ACCC also has a power to make such guidelines.
Item 6 would repeal the existing section 572M and replace it with a new section 572M that
would empower both the ACMA and the ACCC to make guidelines, by legislative
instrument. The requirement for authorised infringement notice officers to have regard to such
guidelines before issuing infringement notices would remain. Further, the requirement would
also remain for such guidelines to be in place for such infringement notices to be issued.
Item 7 - Application - amendments of section 570 of the Telecommunications Act 1997
Item 7 provides that the amendment to section 570 of the Tel Act made by Schedule 5 applies
in relation to a contravention of a civil penalty provision contained in Part 8 of the Tel Act
and sections 97(1), 97(1A) and 97(2) of the TCPSS Act if the conduct constituting the
contravention of the provision occurs wholly on or after the day of the commencement of the
item. Item 7 confirms that the amendments apply after commencement, noting that the whole
of the Act would commence on the day after the Act receives the Royal Assent.
Item 8 - Saving - guidelines under subsection 572M(2) of the Telecommunications Act
1997
Item 8 inserts a savings provision in relation to guidelines made under subsection 572M(2) of
the Tel Act so that instruments already made by the ACMA would be preserved as if made
under subsection 572M(2) as proposed to be amended by this Schedule 5. The ACMA has
made guidelines under this subsection, the Telecommunications (Infringement Notices)
Guidelines 2022.
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Telecommunications (Consumer Protection and Service Standards) Act 1999
Item 9 - Subsection 76A(5)
Item 10 - Subsection 76A(5)
These items make technical corrections to subsection 76A(5) of the TCPSS Act, which relates
to the meaning of a local access line and determining the boundary of a telecommunications
network. These items clarify that references in that subsection to the boundary of a
telecommunications network are to be determined in accordance with section 22 of the Tel
Act for the purposes of sections 20, 21 and 30 of the Tel Act. This clarifies that the references
are to the Tel Act and not the TCPSS Act.
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