NATIONAL BROADBAND NETWORK COMPANIES BILL 2010

i National Broadband Network Companies Bill 2010 No. , 2010

Contents

Part 1--Preliminary

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

3 Objects

...............................................................................................

4 Simplified

outline

..............................................................................

5 Definitions

.........................................................................................

Crown to be bound ........................................................................... 11

Extension to external Territories ...................................................... 12

Part 2--Operations of NBN corporations

Division 1--Simplified outline

8 Simplified

outline

............................................................................

Division 2--Rules about operations of NBN corporations

Subdivision A--Supply of eligible services to be on wholesale basis

Supply of eligible services to be on wholesale basis ....................... 15

10 Exemption--transport authorities .................................................... 15

11 Exemption--electricity supply bodies ............................................. 16

12 Exemption--gas

supply bodies ........................................................ 16

13 Exemption--water

supply bodies .................................................... 16

14 Exemption--sewerage

services bodies ............................................ 17

15 Exemption--storm

water

drainage services bodies ......................... 17

Exemption--State or Territory road authorities .............................. 17

Subdivision B--Supply of other goods and services

Content services not to be supplied ................................................. 18

18 Non-communications

services not to be supplied ............................ 18

19 Non-communications

goods

not to be supplied ............................... 18

Subdivision C--Investment activities

Restriction of investment activities .................................................. 18

Subdivision D--Transitional

21 Transitional--pre-commencement contractual obligations ............. 19

22 Transitional--pre-acquisition

contractual obligations ..................... 20

Division 3--Functional separation of NBN corporations

Contents of draft or final functional separation undertaking ........... 21

24 Functional

separation principles ...................................................... 21

25 Functional

separation

requirements determination .......................... 22

Draft functional separation undertaking to be given to the

Communications Minister and the Finance Minister ....................... 23

National Broadband Network Companies Bill 2010 No. , 2010 ii

Approval of draft functional separation undertaking by the

Communications Minister and the Finance Minister ....................... 23

Time limit for making an approval decision .................................... 26

Effect of approval ............................................................................ 26

Variation of final functional separation undertaking ....................... 26

Publication of final functional separation undertaking .................... 29

Compliance with final functional separation undertaking ............... 29

Division 4--Divestiture of assets by NBN corporations

Directions about disposal of assets .................................................. 30

Directions about transfer of assets to another NBN

corporation ....................................................................................... 31

Advice from ACCC about disposal or transfer directions ............... 32

Exemption from stamp duty--transfer in compliance with

transfer direction .............................................................................. 33

Division 5--Carrier licence conditions etc.

37 Carrier

licence

condition .................................................................. 34

Service provider rule ........................................................................ 34

Power to declare carrier licence conditions not limited ................... 34

Power to determine service provider rules not limited .................... 34

Division 6--Special carrier licence conditions

Conditions about supply of carriage services by NBN

corporations ..................................................................................... 35

42 Consultation

with

ACCC

.................................................................

Part 3--Ownership and control of NBN Co

Division 1--Simplified outline

43 Simplified

outline

............................................................................

Division 2--Commonwealth ownership and control of NBN Co

Subdivision A--Commonwealth ownership provisions

44 Commonwealth

ownership provisions ............................................. 38

45 Commonwealth

retain

ownership of NBN Co ............................. 38

46 Compliance

NBN Co .................................................................. 38

Subdivision B--Termination of Commonwealth ownership

provisions

47 Object

this

Subdivision ................................................................ 39

Declaration by Communications Minister--whether national

broadband network should be treated as built and fully

operational ....................................................................................... 39

49 Productivity

Commission inquiry .................................................... 41

iii National Broadband Network Companies Bill 2010 No. , 2010

Declaration by Finance Minister--whether conditions

suitable for an NBN Co sale scheme ............................................... 44

Termination of Commonwealth ownership provisions .................... 45

Subdivision C--Sale by the Commonwealth of its shares in NBN

52 Simplified

outline

............................................................................

When NBN Co sale scheme may be entered into and carried

out .................................................................................................... 46

NBN Co sale scheme ....................................................................... 46

55 Sale-scheme

hybrid securities .......................................................... 49

Exemption from stamp duty--transfer by the

Commonwealth of its shares in NBN Co etc. .................................. 50

Authorisation of borrowing--issue of sale-scheme hybrid

securities .......................................................................................... 52

Appropriation--costs incurred in connection with an NBN

Co sale scheme ................................................................................ 52

Assistance given by NBN Co or the Board in connection

with an NBN Co sale scheme .......................................................... 53

60 Giving

assistance--ancillary provisions ...................................... 54

Reimbursement of expenses incurred in giving assistance .............. 55

Commonwealth to be bound by Chapters 6CA, 6D and 7 of

the Corporations Act 2001 ............................................................... 56

Reduction of NBN Co's share capital .............................................. 57

Alterations of NBN Co's constitution--notice to debenture

holders ............................................................................................. 58

Alteration of NBN Co's constitution--Ministerial instrument ........ 58

Use by the Commonwealth of information obtained from

NBN Co or the Board ...................................................................... 59

Agreements relating to the protection of information

obtained from NBN Co or the Board ............................................... 61

NBN Co's obligations to disclose information ................................ 61

Division 3--Private ownership and control of NBN Co

Unacceptable private ownership or control situation ....................... 62

Prohibition of unacceptable private ownership or control

situation ........................................................................................... 62

71 Remedial

orders

...............................................................................

Record-keeping and giving of information ...................................... 63

Validity of acts done in contravention of this Division ................... 65

74 Acquisition

property

....................................................................

Division 4--General provisions

Interest in a share ............................................................................. 66

76 Extra-territorial application .............................................................. 67

National Broadband Network Companies Bill 2010 No. , 2010 iv

Part 4--NBN Co's reporting obligations

77 Simplified

outline

............................................................................

Application of this Part .................................................................... 68

79 Financial

statements

.........................................................................

Communications Minister and the Finance Minister to be

notified of significant events ............................................................ 69

Keeping the Communications Minister and the Finance

Minister informed ............................................................................ 70

82 Corporate

plan

for NBN Co ............................................................. 70

83 Consequences

contraventions of this Part ................................... 72

This Part has effect despite the Corporations Act 2001 etc. ............ 72

When this Part ceases to have effect ................................................ 72

Part 5--Anti-avoidance

86 Anti-avoidance

.................................................................................

Part 6--Injunctions

87 Simplified

outline

............................................................................

88 Injunctions

.......................................................................................

89 Interim

injunctions

...........................................................................

90 Discharge

etc.

of injunctions............................................................ 76

Certain limits on granting injunctions not to apply .......................... 76

Other powers of the Federal Court unaffected ................................. 77

Part 7--Miscellaneous

93 Severability

......................................................................................

Promotion of the long-term interests of end-users of carriage

services and of services supplied by means of carriage

services ............................................................................................ 78

NBN Co is not a public authority .................................................... 79

96 Public

Works

Committee Act .......................................................... 79

Winding-up of NBN corporation not prevented by this Act ............ 79

Rights of NBN corporation's shareholders, debenture holders

and creditors to be subject to this Act .............................................. 79

99 Delegation

........................................................................................

100

Compensation for acquisition of property ....................................... 80

101 Regulations

......................................................................................

Schedule 1--NBN corporations

1 NBN

corporations

............................................................................

Control of a company ...................................................................... 82

3 Associate

..........................................................................................

Part 1 Preliminary

Section 2

2 National Broadband Network Companies Bill 2010 No. , 2010

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

Commencement information

Column 1

Column 2

Column 3

Provision(s) Commencement

Date/Details

1. Sections 1 and

2 and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Sections 3 to

101

The later of:

(a) the start of the day after this Act receives

the Royal Assent; and

(b) immediately after the commencement of

item 2 of Schedule 5 to the Trade

Practices Amendment (Australian

Consumer Law) Act (No. 2) 2010.

3. Schedules 1

and 2

The later of:

(a) the start of the day after this Act receives

the Royal Assent; and

(b) immediately after the commencement of

item 2 of Schedule 5 to the Trade

Practices Amendment (Australian

Consumer Law) Act (No. 2) 2010.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

Preliminary Part 1

Section 3

National Broadband Network Companies Bill 2010 No. , 2010 3

3 Objects

(1) The main objects of this Act, when read together with Part XIC of

the Competition and Consumer Act 2010, are as follows:

(a) to provide a regulatory framework for NBN corporations that

promotes the long-term interests of end-users of carriage

services or of services provided by means of carriage

services;

(b) to ensure that NBN Co remains in Commonwealth ownership

until the following events have occurred:

(i) the Communications Minister has declared that, in his

or her opinion, the national broadband network should

be treated as built and fully operational;

(ii) the Productivity Minister has caused to be tabled in both

Houses of Parliament a report of an inquiry by the

Productivity Commission;

(iii) the Parliamentary Joint Committee on the Ownership of

NBN Co has examined the Productivity Commission's

report;

(iv) the Finance Minister has declared that, in his or her

opinion, conditions are suitable for the entering into and

carrying out of an NBN Co sale scheme, and the

declaration has taken effect;

or control of NBN Co.

Note 1:

Clause 1 of Schedule 1 provides that each of the following is an NBN

corporation:

(a) NBN

Co;

(b) NBN

Tasmania;

control.

Note 2:

For long-term interests of end-users of carriage services or of services

provided by means of carriage services, see section 94.

(2) The other objects of this Act, when read together with Part XIC of

the Competition and Consumer Act 2010, are as follows:

(a) to ensure that the supply of an eligible service by an NBN

corporation is on a wholesale basis;

Part 1 Preliminary

Section 4

4 National Broadband Network Companies Bill 2010 No. , 2010

(b) to ensure that an NBN corporation does not supply a content

service;

non-communications service;

(d) to ensure that an NBN corporation does not supply goods that

are not for use in connection with the supply of an eligible

service by the NBN corporation;

(e) to restrict the investment activities of NBN corporations;

(f) to provide a framework for the functional separation of NBN

corporations;

(g) to provide a framework for the divestiture of assets of NBN

corporations;

(h) to ensure that an NBN corporation provides open access to

eligible services on a non-discriminatory basis.

4 Simplified outline

The following is a simplified outline of this Act:

�

An NBN corporation must not supply an eligible service to

another person unless the other person is:

(a)

a carrier; or

(b)

a service provider.

�

An NBN corporation must not supply:

(a)

a content service; or

(b)

a non-communications service; or

(c)

goods that are not for use in connection with the

supply by an NBN corporation of an eligible

service.

�

An NBN corporation may be required to prepare, and comply

with, a functional separation undertaking.

Preliminary Part 1

Section 4

National Broadband Network Companies Bill 2010 No. , 2010 5

�

The Communications Minister may give directions about the

divestiture of assets of an NBN corporation.

�

A condition of a carrier licence held by an NBN corporation

may require the NBN corporation to supply a specified

carriage service.

�

A condition of a carrier licence held by an NBN corporation

may prohibit the NBN corporation from supplying a specified

carriage service.

�

Under provisions called the Commonwealth ownership

provisions, the Commonwealth must retain ownership of NBN

Co.

�

The Commonwealth ownership provisions cease to have effect

after the following events have occurred:

(a)

the Communications Minister has declared that, in

his or her opinion, the national broadband network

should be treated as built and fully operational;

(b)

the Productivity Minister has caused to be tabled in

both Houses of Parliament a report of an inquiry

by the Productivity Commission;

(c)

the Parliamentary Joint Committee on the

Ownership of NBN Co has examined the

Productivity Commission's report;

(d)

the Finance Minister has declared that, in his or her

opinion, conditions are suitable for the entering

into and carrying out of an NBN Co sale scheme,

and the declaration has taken effect.

�

NBN Co must take all reasonable steps to ensure that an

unacceptable private ownership or control situation does not

exist in relation to NBN Co.

Part 1 Preliminary

Section 5

6 National Broadband Network Companies Bill 2010 No. , 2010

Note 1:

Clause 1 of Schedule 1 provides that each of the following is an NBN

corporation:

(a) NBN

Co;

(b) NBN

Tasmania;

control.

Note 2:

The Parliamentary Joint Committee on the Ownership of NBN Co is

constituted under Schedule 2.

5 Definitions

In this Act:

ACCC means the Australian Competition and Consumer

Commission.

Australia, when used in a geographical sense, includes the external

Territories.

authority includes the following:

(a) a Department of the government of the Commonwealth;

(b) a Department of the government of a State;

bank has the same meaning as in the Financial Management and

Accountability Act 1997.

Board means the board of directors of NBN Co.

business unit, in relation to an NBN corporation, means a part of

the NBN corporation.

carriage service has the same meaning as in the

Telecommunications Act 1997.

carrier has the same meaning as in the Telecommunications Act

1997.

carrier licence has the same meaning as in the

Telecommunications Act 1997.

carry has the same meaning as in the Telecommunications Act

1997.

Preliminary Part 1

Section 5

National Broadband Network Companies Bill 2010 No. , 2010 7

charge has the same meaning as in the Corporations Act 2001.

Commonwealth ownership provisions means sections 45 and 46.

communications has the same meaning as in the

Telecommunications Act 1997.

Communications Minister means the Minister who administers

this Act.

constitution, in relation to NBN Co, has the same meaning as in

the Corporations Act 2001.

constitutional corporation means a corporation to which

paragraph 51(xx) of the Constitution applies.

content service has the same meaning as in the

Telecommunications Act 1997.

debenture has the same meaning as in the Corporations Act 2001.

declared pre-termination period has the meaning given by

section 48.

declared sale deferral period has the meaning given by section 50.

declared service has the same meaning as in Part XIC of the

Competition and Consumer Act 2010.

Department of Finance means the Department administered by the

Finance Minister.

draft functional separation undertaking means a draft functional

separation undertaking under Division 3 of Part 2.

electricity supply body means an authority, or a body corporate,

that carries on a business, or performs a function, of:

(a) generating, transmitting, distributing or supplying electricity;

(b) managing the generation, transmission, distribution or supply

of electricity.

eligible service has the same meaning as in section 152AL of the

Competition and Consumer Act 2010.

Part 1 Preliminary

Section 5

8 National Broadband Network Companies Bill 2010 No. , 2010

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

Federal Court means the Federal Court of Australia.

final functional separation undertaking means a final functional

separation undertaking under Division 3 of Part 2.

Finance Minister means the Minister who administers the

Financial Management and Accountability Act 1997.

financial product has the same meaning as in Chapter 7 of the

Corporations Act 2001.

functional includes organisational.

functional separation principles has the meaning given by

subsection 24(1).

functional separation requirements determination means a

determination under subsection 25(1).

gas supply body means an authority, or a body corporate, that

carries on a business, or performs a function, of:

(a) transmitting, distributing or supplying natural gas; or

(b) managing the transmission, distribution or supply of natural

gas.

hybrid-security issuer company has the meaning given by

section 54.

intellectual property rights includes rights associated with:

(a) a patent; or

(b)

(d) a trade secret; or

(e)

know-how.

listed carriage service has the same meaning as in the

Telecommunications Act 1997.

Preliminary Part 1

Section 5

National Broadband Network Companies Bill 2010 No. , 2010 9

listed disclosing entity has the same meaning as in the

Corporations Act 2001.

listing market, in relation to a listed disclosing entity, has the same

meaning as in the Corporations Act 2001.

listing rules of a market has the same meaning as in the

Corporations Act 2001.

national broadband network means a national telecommunications

network for the high-speed carriage of communications, where an

NBN corporation has been, is, or is to be, involved in the creation

or development of the network. To avoid doubt, it is immaterial

whether the creation or development of the network is, to any

extent, attributable to:

(a) the acquisition of assets that were used, or for use, in

connection with another telecommunications network; or

(b) the obtaining of access to assets that are also used, or for use,

in connection with another telecommunications network.

NBN Co means NBN Co Limited (ACN 136 533 741), as the

company exists from time to time (even if its name is later

changed).

NBN corporation has the meaning given by clause 1 of

Schedule 1.

NBN Co sale scheme has the meaning given by section 54.

NBN Tasmania means NBN Tasmania Limited (ACN 138 338

271), as the company exists from time to time (even if its name is

later changed).

non-communications service means a service other than:

(a) an eligible service; or

(b) a content service; or

NBN corporation of an eligible service; or

(d) an advisory or consulting service that relates to:

(i) the supply of an eligible service; or

Part 1 Preliminary

Section 5

10 National Broadband Network Companies Bill 2010 No. , 2010

(ii) goods for use in connection with the supply of an

eligible service; or

(iii) facilities (within the meaning of the

Telecommunications Act 1997); or

(e) the provision, grant or conferral (whether by way of a licence

or otherwise) of intellectual property rights that relate to:

(i) the supply of an eligible service; or

(ii) goods for use in connection with the supply of an

eligible service; or

(iii) facilities (within the meaning of the

Telecommunications Act 1997).

Parliamentary Joint Committee on the Ownership of NBN Co

means the Parliamentary Joint Committee on the Ownership of

NBN Co constituted under Schedule 2.

Productivity Minister means the Minister administering the

Productivity Commission Act 1998.

rail corporation means a body corporate that manages or operates

either or both of the following:

(a) rail transport services;

(b) rail transport infrastructure.

retail carriage service provider means a carriage service provider

who supplies a listed carriage service to another person who is

neither:

(a) a carrier; nor

(b) a service provider.

sale-scheme hybrid security has the meaning given by section 55.

sale-scheme trust deed has the meaning given by section 54.

sale-scheme trustee has the meaning given by section 54.

securities (except in section 55) includes:

(a)

shares;

and

(b)

debentures.

Preliminary Part 1

Section 6

National Broadband Network Companies Bill 2010 No. , 2010 11

service provider has the same meaning as in the

Telecommunications Act 1997.

sewerage services body means an authority, or a body corporate,

that carries on a business, or performs a function, of supplying

sewerage services.

State or Territory road authority means an authority that has

responsibility for the management, regulation or control of motor

traffic in a State or Territory.

storm water drainage services means services that consist of

draining storm water.

storm water drainage services body means an authority, or a body

corporate, that carries on a business, or performs a function, of

supplying storm water drainage services.

telecommunications market has the same meaning as in Part XIB

of the Competition and Consumer Act 2010.

telecommunications network has the same meaning as in the

Telecommunications Act 1997.

unacceptable private ownership or control situation has the

meaning given by section 69.

voting share has the same meaning as in the Corporations Act

2001.

water supply body means an authority, or a body corporate, that

carries on a business, or performs a function, of supplying water.

6 Crown to be bound

(1) This Act binds the Crown in each of its capacities.

(2) This Act does not make the Crown liable to a pecuniary penalty or

to be prosecuted for an offence.

(3) The protection in subsection (2) does not apply to an authority of

the Crown.

Operations of NBN corporations Part 2

Simplified outline Division 1

Section 8

National Broadband Network Companies Bill 2010 No. , 2010 13

Part 2--Operations of NBN corporations

Division 1--Simplified outline

8 Simplified outline

The following is a simplified outline of this Part:

�

An NBN corporation must not supply an eligible service to

another person unless the other person is:

(a)

a carrier; or

(b)

a service provider.

�

An NBN corporation must not supply:

(a)

a content service; or

(b)

a non-communications service; or

(c)

goods that are not for use in connection with the

supply by an NBN corporation of an eligible

service.

�

An NBN corporation's investment activities are restricted.

�

An NBN corporation may be required to prepare a draft

functional separation undertaking.

�

A final functional separation undertaking is a draft functional

separation undertaking that has been approved by the

Communications Minister.

�

An NBN corporation must comply with a final functional

separation undertaking given by the NBN corporation.

�

The Communications Minister may give directions about the

divestiture of assets of an NBN corporation.

Part 2 Operations of NBN corporations

Division 1 Simplified outline

Section 8

14 National Broadband Network Companies Bill 2010 No. , 2010

�

A condition of a carrier licence held by an NBN corporation

may require the NBN corporation to supply a specified

carriage service.

�

A condition of a carrier licence held by an NBN corporation

may prohibit the NBN corporation from supplying a specified

carriage service.

Note 1:

Clause 1 of Schedule 1 provides that each of the following is an NBN

corporation:

(a) NBN

Co;

(b) NBN

Tasmania;

control.

Note 2:

The Parliamentary Joint Committee on the Ownership of NBN Co is

constituted under Schedule 2.

Operations of NBN corporations Part 2

Rules about operations of NBN corporations Division 2

Section 9

National Broadband Network Companies Bill 2010 No. , 2010 15

Division 2--Rules about operations of NBN corporations

Subdivision A--Supply of eligible services to be on wholesale

basis

9 Supply of eligible services to be on wholesale basis

An NBN corporation must not supply an eligible service to another

person unless the other person is:

(a) a carrier; or

(b) a service provider.

10 Exemption--transport authorities

(1) Section 9 does not apply if:

(a)

both:

(i) the eligible service is a carriage service; and

(ii) the sole use of the carriage service is use by Airservices

Australia to carry communications necessary or

desirable for the workings of aviation services; or

(b) the eligible service is a service that facilitates the supply of a

carriage service covered by paragraph (a) of this subsection.

(2) Section 9 does not apply if:

(a) the eligible service is a carriage service, and the sole use of

the carriage service is use by a State or Territory transport

authority to carry communications necessary or desirable for

the workings of the following services:

(i) train services of a kind provided by the authority;

(ii) bus or other road services of a kind provided by the

authority;

(iii) tram services of a kind provided by the authority; or

(b) the eligible service is a service that facilitates the supply of a

carriage service covered by paragraph (a) of this subsection.

(3) Section 9 does not apply if:

(a)

both:

(i) the eligible service is a carriage service; and

Part 2 Operations of NBN corporations

Division 2 Rules about operations of NBN corporations

Section 11

16 National Broadband Network Companies Bill 2010 No. , 2010

(ii) the sole use of the carriage service is use by a rail

corporation to carry communications necessary or

desirable for the workings of train services; or

(b) the eligible service is a service that facilitates the supply of a

carriage service covered by paragraph (a) of this subsection.

11 Exemption--electricity supply bodies

Section 9 does not apply if:

(a) the eligible service is a carriage service, and the sole use of

the carriage service is an electricity supply body to carry

communications necessary or desirable for:

(i) managing the generation, transmission, distribution or

supply of electricity; or

(ii) charging for the supply of electricity; or

(b) the eligible service is a service that facilitates the supply of a

carriage service covered by paragraph (a) of this section.

12 Exemption--gas supply bodies

Section 9 does not apply if:

(a) the eligible service is a carriage service, and the sole use of

the carriage service is use by a gas supply body to carry

communications necessary or desirable for:

(i) managing the transmission or distribution of natural gas

in a pipeline; or

(ii) charging for the supply of natural gas transmitted or

distributed in a pipeline; or

(b) the eligible service is a service that facilitates the supply of a

carriage service covered by paragraph (a) of this section.

13 Exemption--water supply bodies

Section 9 does not apply if:

(a) the eligible service is a carriage service, and the sole use of

the carriage service is use by a water supply body to carry

communications necessary or desirable for:

(i) managing the distribution of water in a pipeline; or

Operations of NBN corporations Part 2

Rules about operations of NBN corporations Division 2

Section 14

National Broadband Network Companies Bill 2010 No. , 2010 17

(ii) charging for the supply of water distributed in a

pipeline; or

(b) the eligible service is a service that facilitates the supply of a

carriage service covered by paragraph (a) of this section.

14 Exemption--sewerage services bodies

Section 9 does not apply if:

(a) the eligible service is a carriage service, and the sole use of

the carriage service is use by a sewerage services body to

carry communications necessary or desirable for:

(i) managing the supply of sewerage services; or

(ii) charging for the supply of sewerage services; or

(b) the eligible service is a service that facilitates the supply of a

carriage service covered by paragraph (a) of this section.

15 Exemption--storm water drainage services bodies

Section 9 does not apply if:

(a) the eligible service is a carriage service, and the sole use of

the carriage service is use by a storm water drainage services

body to carry communications necessary or desirable for:

(i) managing the supply of storm water drainage services;

(ii) charging for the supply of storm water drainage

services; or

(b) the eligible service is a service that facilitates the supply of a

carriage service covered by paragraph (a) of this section.

16 Exemption--State or Territory road authorities

Section 9 does not apply if:

(a) the eligible service is a carriage service, and the sole use of

the carriage service is use by a State or Territory road

authority to carry communications necessary or desirable for

the management or control of road traffic; or

(b) the eligible service is a service that facilitates the supply of a

carriage service covered by paragraph (a) of this section.

Part 2 Operations of NBN corporations

Division 2 Rules about operations of NBN corporations

Section 17

18 National Broadband Network Companies Bill 2010 No. , 2010

Subdivision B--Supply of other goods and services

17 Content services not to be supplied

An NBN corporation must not supply a content service to another

person.

18 Non-communications services not to be supplied

An NBN corporation must not supply a non-communications

service to another person.

19 Non-communications goods not to be supplied

An NBN corporation must not supply goods to another person

unless the goods are for use in connection with the supply, or

prospective supply, of an eligible service by the NBN corporation.

Subdivision C--Investment activities

20 Restriction of investment activities

(1) An NBN corporation must not invest money of the NBN

corporation unless:

(a) the investment is related to the supply, or prospective supply,

of eligible services by the NBN corporation; or

(b)

both:

(i) the investment is related to the supply, or prospective

supply, of goods; and

(ii) the goods are for use in connection with the supply, or

prospective supply, of an eligible service by the NBN

corporation; or

(c)

both:

(i) the investment is in shares in a company; and

(ii) the company carries on, proposes to carry on, or has the

object of carrying on, a business that consists of or

includes the supply of a carriage service; or

(d) the investment is:

Operations of NBN corporations Part 2

Rules about operations of NBN corporations Division 2

Section 21

National Broadband Network Companies Bill 2010 No. , 2010 19

(i) an investment in securities of the Commonwealth or of

a State or Territory; or

(ii) an investment in securities guaranteed by the

Commonwealth, a State or a Territory; or

(iii) a deposit with a bank, including a deposit evidenced by

a certificate of deposit; or

(iv) any other form of investment prescribed by regulations

made for the purposes of subparagraph (a)(iv) of the

definition of authorised investment in subsection

39(10) of the Financial Management and Accountability

Act 1997.

(2) Paragraphs (1)(c) and (d) apply both within and outside Australia.

Subdivision D--Transitional

21 Transitional--pre-commencement contractual obligations

Scope

(1) This section applies if, immediately before this section

commences, an NBN corporation has an obligation (the

pre-existing obligation) under a contract to:

(a) supply services; or

(b) supply goods; or

(c)

invest

money.

For this purpose, it is immaterial whether the obligation is a

contingent obligation

Exemption

(2) Sections 18 to 20 do not apply to:

(a) a supply of goods; or

(b) a supply of services; or

(c)

investment;

to the extent that the supply or investment is in fulfilment of the

pre-existing obligation.

Part 2 Operations of NBN corporations

Division 2 Rules about operations of NBN corporations

Section 22

20 National Broadband Network Companies Bill 2010 No. , 2010

22 Transitional--pre-acquisition contractual obligations

Scope

(1) This section applies if:

(a) at a particular time (the start time), a company other than

NBN Co becomes an NBN corporation; and

(b) immediately before the start time, the company has an

obligation (the pre-existing obligation) under a contract to:

(i) supply services; or

(ii) supply goods; or

(iii)

invest

money.

For this purpose, it is immaterial whether the obligation is a

contingent obligation

Exemption

(2) Sections 18 to 20 do not apply to:

(a) a supply of goods; or

(b) a supply of services; or

(c)

investment;

to the extent that the supply or investment is in fulfilment of the

pre-existing obligation.

Operations of NBN corporations Part 2

Functional separation of NBN corporations Division 3

Section 23

National Broadband Network Companies Bill 2010 No. , 2010 21

Division 3--Functional separation of NBN corporations

23 Contents of draft or final functional separation undertaking

(1) A draft or final functional separation undertaking given by an NBN

corporation must:

(a) comply with the functional separation principles that are

applicable to the NBN corporation; and

(b) comply with such requirements as are specified in a

functional separation requirements determination that is

applicable to the NBN corporation.

Note 1:

For the functional separation principles, see section 24.

Note 2:

For the functional separation requirements determination, see

section 25.

(2) If a final functional separation undertaking provides for the ACCC

to perform functions or exercise powers in relation to the

undertaking, the ACCC may perform those functions and exercise

those powers in accordance with the undertaking.

24 Functional separation principles

(1) The Communications Minister may, by writing, determine that

specified principles are functional separation principles for the

purposes of the application of this Act to a specified NBN

corporation.

Note:

For variation and revocation, see subsection 33(3) of the Acts

Interpretation Act 1901.

(2) Principles determined under subsection (1) must include:

(a) the principle that the NBN corporation should maintain 2 or

more specified business units; and

(b) the principle that the NBN corporation should maintain arm's

length functional separation between the specified business

units; and

procedures and practices that relate to:

(i) compliance with a final functional separation

undertaking given by the NBN corporation; and

Part 2 Operations of NBN corporations

Division 3 Functional separation of NBN corporations

Section 25

22 National Broadband Network Companies Bill 2010 No. , 2010

(ii) monitoring of, and reporting on, compliance with the

final functional separation undertaking; and

(iii) the development of performance measures relating to

compliance with the final functional separation

undertaking; and

(iv) independent audit, and other checks, of compliance with

the final functional separation undertaking.

(3) Subsection (2) does not limit subsection (1).

(4) Before making a determination under subsection (1), the

Communications Minister must consult the Finance Minister.

(5) A determination under subsection (1) is not a legislative

instrument.

25 Functional separation requirements determination

(1) The Communications Minister and the Finance Minister may make

a written determination (a functional separation requirements

determination) specifying requirements to be complied with by a

draft or final functional separation undertaking given by a specified

NBN corporation.

(2) A functional separation requirements determination may deal with

the manner in which the functional separation principles are to be

implemented.

(3) Subsection (2) does not limit subsection (1).

(4) The Communications Minister and the Finance Minister must

ensure that a functional separation requirements determination

relating to an NBN corporation comes into force within 90 days

after the first or only determination is made under subsection 24(1)

in relation to the NBN corporation.

(5) A determination under subsection (1) is not a legislative

instrument.

Operations of NBN corporations Part 2

Functional separation of NBN corporations Division 3

Section 26

National Broadband Network Companies Bill 2010 No. , 2010 23

26 Draft functional separation undertaking to be given to the

Communications Minister and the Finance Minister

(1) An NBN corporation must give the Communications Minister and

the Finance Minister a draft functional separation undertaking:

(a) within 90 days after the first or only functional separation

requirements determination in relation to the NBN

corporation comes into force; or

(b) if a longer period is specified in an instrument under

subsection (2)--within that longer period.

(2) The Communications Minister and the Finance Minister may, by

writing, specify a period for the purposes of paragraph (1)(b).

(3) The Communications Minister and the Finance Minister may, by

writing, vary a subsection (2) instrument.

(4) A period specified in a subsection (2) instrument may be a period

ascertained wholly or partly by reference to the occurrence of a

specified event.

(5) The Communications Minister and the Finance Minister do not

have a duty to consider whether to exercise the power to make or

vary a subsection (2) instrument, whether they are requested to do

so by the NBN corporation or by any other person, or in any other

circumstances.

(6) The Communications Minister and the Finance Minister must

cause a copy of an instrument under subsection (2) or (3) to be

published on the Department's website.

(7) An instrument under subsection (2) or (3) is not a legislative

instrument.

27 Approval of draft functional separation undertaking by the

Communications Minister and the Finance Minister

(1) This section applies if an NBN corporation gives the

Communications Minister and the Finance Minister a draft

functional separation undertaking (the original undertaking).

Part 2 Operations of NBN corporations

Division 3 Functional separation of NBN corporations

Section 27

24 National Broadband Network Companies Bill 2010 No. , 2010

(2) The Communications Minister and the Finance Minister must, by

writing:

(a) approve the original undertaking; or

(b)

both:

(i) vary the original undertaking; and

(ii) approve the original undertaking as varied; or

(c)

both:

(i) determine that the NBN corporation is taken to have

given the Communications Minister and the Finance

Minister another draft functional separation undertaking

(the replacement undertaking) in the terms specified in

the determination, instead of the original undertaking;

and

(ii) approve the replacement undertaking.

Consultation

(3) Before making a decision under subsection (2), the

Communications Minister and the Finance Minister must:

(a) cause to be published on the Department's website a notice:

(i) setting out the original undertaking; and

(ii) inviting persons to make submissions to the

Communications Minister and the Finance Minister

about the original undertaking within 14 days after the

notice is published; and

(b) give the ACCC a copy of the notice; and

each submission received within the 14-day period

mentioned in paragraph (a); and

(d) consider any submissions received within the 14-day period

mentioned in paragraph (a); and

(e) ask the ACCC to give advice to the Communications

Minister and the Finance Minister, within 44 days after the

notice is published, about the original undertaking; and

(f) have regard to any advice given by the ACCC.

Operations of NBN corporations Part 2

Functional separation of NBN corporations Division 3

Section 27

National Broadband Network Companies Bill 2010 No. , 2010 25

Consultation--variation of original undertaking

(4) Before making a decision under paragraph (2)(b) to approve the

original undertaking as varied, the Communications Minister and

the Finance Minister must:

(a) give the NBN corporation a notice:

(i) setting out the original undertaking as proposed to be

varied; and

(ii) inviting the NBN corporation to make submissions to

the Communications Minister and the Finance Minister,

within 14 days after the notice is given, about the

original undertaking as proposed to be varied; and

(b) consider any submissions received from the NBN corporation

within the 14-day period mentioned in paragraph (a).

Consultation--replacement undertaking

(5) Before making a decision under paragraph (2)(c) to approve the

replacement undertaking, the Communications Minister and the

Finance Minister must:

(a) give the NBN corporation a notice:

(i) setting out the proposed replacement undertaking; and

(ii) inviting the NBN corporation to make submissions to

the Communications Minister and the Finance Minister

about the proposed replacement undertaking within 14

days after the notice is given; and

(b) consider any submissions received from the NBN corporation

within the 14-day period mentioned in paragraph (a).

Advice by the ACCC

(6) Subsection (3) does not, by implication, prevent the

Communications Minister and the Finance Minister from asking

the ACCC to give the Communications Minister and the Finance

Minister additional advice about a matter arising under this section.

Notification of decision

(7) As soon as practicable after making a decision under

subsection (2), the Communications Minister and the Finance

Part 2 Operations of NBN corporations

Division 3 Functional separation of NBN corporations

Section 28

26 National Broadband Network Companies Bill 2010 No. , 2010

Minister must notify the NBN corporation in writing of the

decision.

Instrument is not a legislative instrument

(8) An instrument made under subsection (2) is not a legislative

instrument.

28 Time limit for making an approval decision

(1) This section applies if an NBN corporation gives the

Communications Minister and the Finance Minister a draft

functional separation undertaking (the original undertaking).

(2) The Communications Minister and the Finance Minister must use

their best endeavours to make a decision under subsection 27(2) in

relation to the original undertaking within 6 months after the

original undertaking was given to the Communications Minister

and the Finance Minister.

29 Effect of approval

(1) If the Communications Minister and the Finance Minister approve

a draft functional separation undertaking under subsection 27(2),

the undertaking becomes a final functional separation undertaking.

(2) A final functional separation undertaking given by an NBN

corporation comes into force on the day after notice of the relevant

decision is given to the NBN corporation in accordance with

subsection 27(7).

(3) A final functional separation undertaking may not be withdrawn.

Undertaking is not a legislative instrument

(4) A final functional separation undertaking is not a legislative

instrument.

30 Variation of final functional separation undertaking

(1) This section applies if a final functional separation undertaking

given by an NBN corporation is in force.

Operations of NBN corporations Part 2

Functional separation of NBN corporations Division 3

Section 30

National Broadband Network Companies Bill 2010 No. , 2010 27

Variation

(2) The Communications Minister and the Finance Minister may, in

writing, vary the final functional separation undertaking:

(a) at the request of the NBN corporation or another person; or

(b) on the initiative of the Communications Minister and the

Finance Minister.

(3) The Communications Minister and the Finance Minister do not

have a duty to consider whether to exercise the power to vary a

final functional separation undertaking, whether they are requested

to do so by the NBN corporation or by any other person, or in any

other circumstances.

Consultation

(4) Before varying a final functional separation undertaking, the

Communications Minister and the Finance Minister must:

(a) cause to be published on the Department's website a notice:

(i) setting out the proposed variation; and

(ii) inviting persons to make submissions to the

Communications Minister and the Finance Minister

about the proposed variation within 14 days after the

notice is published; and

(b) give the ACCC a copy of the notice; and

each submission received within the 14-day period

mentioned in paragraph (a); and

(d) consider any submissions received within the 14-day period

mentioned in paragraph (a); and

(e) ask the ACCC to give advice to the Communications

Minister and the Finance Minister, within 44 days after the

notice is published, about the proposed variation; and

(f) have regard to any advice given by the ACCC.

Minor variation

(5) Subsection (4) does not apply to a proposed variation if the

variation is of a minor nature.

Part 2 Operations of NBN corporations

Division 3 Functional separation of NBN corporations

Section 30

28 National Broadband Network Companies Bill 2010 No. , 2010

(6) If the proposed variation:

(a) is of a minor nature; and

(b) is not made at the request of the NBN corporation;

then, before making the proposed variation, the Communications

Minister and the Finance Minister must:

(i) setting out the proposed variation; and

(ii) inviting the NBN corporation to make submissions to

the Communications Minister and the Finance Minister

about the proposed variation within 14 days after the

notice is given; and

(d) consider any submissions received from the NBN corporation

within that 14-day period.

Advice by the ACCC

(7) Subsection (4) does not, by implication, prevent the

Communications Minister and the Finance Minister from asking

the ACCC to give the Communications Minister and the Finance

Minister additional advice about a matter arising under this section.

Notification of variation

(8) As soon as practicable after varying a final functional separation

undertaking, the Communications Minister and the Finance

Minister must notify the NBN corporation in writing of the

variation.

When variation comes into force

(9) A variation of a final functional separation undertaking comes into

force on the day after the notice of the variation is given to the

NBN corporation in accordance with subsection (8).

Variation is not a legislative instrument

(10) A variation of a final functional separation undertaking is not a

legislative instrument.

Operations of NBN corporations Part 2

Functional separation of NBN corporations Division 3

Section 31

National Broadband Network Companies Bill 2010 No. , 2010 29

31 Publication of final functional separation undertaking

(1) As soon as practicable after a final functional separation

undertaking given by an NBN corporation comes into force, the

NBN corporation must make a copy of the undertaking available

on the NBN corporation's website.

(2) As soon as practicable after a variation of a final functional

separation undertaking given by an NBN corporation comes into

force, the NBN corporation must make a copy of the varied final

functional separation undertaking available on the NBN

corporation's website.

32 Compliance with final functional separation undertaking

If a final functional separation undertaking given by an NBN

corporation is in force, the NBN corporation must comply with the

undertaking.

Part 2 Operations of NBN corporations

Division 4 Divestiture of assets by NBN corporations

Section 33

30 National Broadband Network Companies Bill 2010 No. , 2010

Division 4--Divestiture of assets by NBN corporations

33 Directions about disposal of assets

(1) The Communications Minister and the Finance Minister may, by

written notice given to an NBN corporation:

(a) direct the NBN corporation:

(i) to dispose of one or more specified assets of the NBN

corporation (otherwise than by transferring the asset to

another NBN corporation); and

(ii) to do so within the period specified in the notice; and

(b) give such other directions to the NBN corporation as the

Communications Minister and the Finance Minister consider

necessary for the purposes of securing the disposal.

(2) In deciding whether to give a direction under subsection (1), the

Communications Minister and the Finance Minister must have

regard to the following:

(a) whether the direction will promote the long-term interests of

end-users of carriage services or of services provided by

means of carriage services;

(b) if the Communications Minister and the Finance Minister

have required the ACCC under section 35 to give advice

about the giving of the direction--the advice given in

compliance with the requirement;

and the Finance Minister consider relevant.

Note:

For long-term interests of end-users of carriage services or of services

provided by means of carriage services, see section 94.

(3) The Communications Minister and the Finance Minister must not

give a direction under subsection (1) to an NBN corporation unless

the NBN corporation is a constitutional corporation.

(4) An NBN corporation must comply with a direction under

subsection (1) that is applicable to the NBN corporation.

(5) A direction under subsection (1) is not a legislative instrument.

Operations of NBN corporations Part 2

Divestiture of assets by NBN corporations Division 4

Section 34

National Broadband Network Companies Bill 2010 No. , 2010 31

34 Directions about transfer of assets to another NBN corporation

(1) The Communications Minister and the Finance Minister may:

(a) by written notice given to an NBN corporation (the

transferor), direct the transferor:

(i) to transfer one or more specified assets of the transferor

to another NBN corporation specified in the notice (the

transferee); and

(ii) to do so within the period specified in the notice; and

(b) by written notice given to the transferor or the transferee,

give such other directions to the transferor or transferee as

the Communications Minister and the Finance Minister

consider necessary for the purposes of securing the transfer.

(2) The Communications Minister and the Finance Minister must not

give a direction under subsection (1) after the Commonwealth

ownership provisions have ceased to have effect under section 51.

(3) In deciding whether to give a direction under subsection (1), the

Communications Minister and the Finance Minister must have

regard to the following:

(a) whether the direction will promote the long-term interests of

end-users of carriage services or of services provided by

means of carriage services;

(b) if the Communications Minister and the Finance Minister

have required the ACCC under section 35 to give advice

about the giving of the direction--the advice given in

compliance with the requirement;

and the Finance Minister consider relevant.

Note:

For long-term interests of end-users of carriage services or of services

provided by means of carriage services, see section 94.

(4) The Communications Minister and the Finance Minister must not

give a direction under subsection (1) to an NBN corporation unless

the NBN corporation is a constitutional corporation.

(5) An NBN corporation must comply with a direction under

subsection (1) that is applicable to the NBN corporation.

Part 2 Operations of NBN corporations

Division 4 Divestiture of assets by NBN corporations

Section 35

32 National Broadband Network Companies Bill 2010 No. , 2010

(6) A direction under subsection (1) is not a legislative instrument.

35 Advice from ACCC about disposal or transfer directions

(1) The Communications Minister and the Finance Minister may, by

written notice given to the ACCC, require the ACCC:

(a) to give advice to the Communications Minister and the

Finance Minister about whether the Communications

Minister and the Finance Minister should give one or more

directions under subsection 33(1) or 34(1); and

(b) to do so within the period specified in the notice.

(2) The ACCC must comply with the requirement.

Note:

Under section 497 of the Telecommunications Act 1997, the ACCC

could hold a public inquiry under Part 25 about a matter relating to the

performance of this function.

(3) For the purposes of section 496 of the Telecommunications Act

1997, the giving of advice by the ACCC in compliance with a

requirement under subsection (1) is taken to be a matter concerning

the telecommunications industry.

Note:

Section 496 of the Telecommunications Act 1997 allows the Minister

to direct the ACCC to hold a public inquiry under Part 25 about a

specified matter concerning the telecommunications industry.

(4) Subsection (3) is enacted for the avoidance of doubt.

(5) If the ACCC holds a public inquiry under Part 25 of the

Telecommunications Act 1997 about the giving of advice to the

Communications Minister and the Finance Minister in compliance

with a requirement under subsection (1), the ACCC must, in

holding the inquiry and preparing its report on the inquiry, have

regard to the following:

(a) whether giving the relevant direction or directions under

subsection 33(1) or 34(1) will promote the long-term

interests of end-users of carriage services or of services

provided by means of carriage services;

(b) such other matters (if any) as the ACCC considers relevant.

Note:

For long-term interests of end-users of carriage services or of services

provided by means of carriage services, see section 94.

Operations of NBN corporations Part 2

Divestiture of assets by NBN corporations Division 4

Section 36

National Broadband Network Companies Bill 2010 No. , 2010 33

(6) This section does not, by implication, prevent the Communications

Minister and the Finance Minister from asking the ACCC to give

the Communications Minister and the Finance Minister additional

advice about a matter arising under this Division.

(7) A requirement under subsection (1) is not a legislative instrument.

36 Exemption from stamp duty--transfer in compliance with

transfer direction

(1) Stamp duty or other tax is not payable under a law of a State or

Territory in respect of:

(a) a transfer of an asset in compliance with a direction under

subsection 34(1); or

(b) an agreement relating to a transfer covered by paragraph (a);

acting on behalf of an NBN corporation, in respect of a

transfer covered by paragraph (a);

(d) anything done (including a transaction entered into or an

instrument or document made, executed, lodged or given)

because of, or for a purpose connected with or arising out of,

a matter covered by paragraph (a), (b) or (c).

(2) However, the rule in subsection (1) does not apply:

(a) in such circumstances as are specified in the regulations; or

(b) in relation to stamp duty, or other tax, of a kind specified in

the regulations; or

the regulations, in such circumstances as are specified in the

regulations.

Part 2 Operations of NBN corporations

Division 5 Carrier licence conditions etc.

Section 37

34 National Broadband Network Companies Bill 2010 No. , 2010

Division 5--Carrier licence conditions etc.

37 Carrier licence condition

A carrier licence held by an NBN corporation is subject to a

condition that the NBN corporation must comply with any rules in

section 9, 17, 18, 19, 20, 26, 32, 33 or 34 that are applicable to the

NBN corporation.

Note:

See also section 62E of the Telecommunications Act 1997.

38 Service provider rule

(1) In addition to the rules mentioned in section 98 of the

Telecommunications Act 1997, the rule set out in subsection (2) of

this section is a service provider rule for the purposes of that Act.

(2) If an NBN corporation is a service provider, the NBN corporation

must comply with any rules in section 9, 17, 18, 19, 20, 26, 32, 33

or 34 that are applicable to the NBN corporation.

39 Power to declare carrier licence conditions not limited

Sections 9, 17, 18, 19, 20, 26, 32, 33 and 34 do not, by implication,

limit the conditions that may be declared under section 63 of the

Telecommunications Act 1997.

40 Power to determine service provider rules not limited

Sections 9, 17, 18, 19, 20, 26, 32, 33 and 34 do not, by implication,

limit the rules that may be determined under section 99 of the

Telecommunications Act 1997.

Operations of NBN corporations Part 2

Special carrier licence conditions Division 6

Section 41

National Broadband Network Companies Bill 2010 No. , 2010 35

Division 6--Special carrier licence conditions

41 Conditions about supply of carriage services by NBN

corporations

Mandatory services

(1) A condition of a carrier licence held by an NBN corporation may

require the NBN corporation to comply with section 152CJB of the

Competition and Consumer Act 2010 in relation to a specified

eligible service that is supplied, or is capable of being supplied, by

the NBN corporation (whether to itself or other persons).

Note 1:

This means that the service will become a declared service, and the

NBN corporation will be subject to a standard access obligation to

supply the service under section 152AXB of the Competition and

Consumer Act 2010.

Note 2:

For declaration of carrier licence conditions, see section 63 of the

Telecommunications Act 1997.

Note 3:

For specification by class, see subsection 13(3) of the Legislative

Instruments Act 2003.

(2) A condition covered by subsection (1) has no effect in relation to

an eligible service if, immediately before the time when the

condition comes into force, the service, to the extent that it is

capable of being supplied by the NBN corporation concerned, is a

declared service.

Prohibited services

(3) A condition of a carrier licence held by an NBN corporation may

prohibit the NBN corporation from supplying a specified carriage

service to carriers or service providers.

Note 1:

For declaration of carrier licence conditions, see section 63 of the

Telecommunications Act 1997.

Note 2:

For specification by class, see subsection 13(3) of the Legislative

Instruments Act 2003.

Part 2 Operations of NBN corporations

Division 6 Special carrier licence conditions

Section 42

36 National Broadband Network Companies Bill 2010 No. , 2010

Power to declare carrier licence conditions not limited

(4) Subsections (1) and (3) do not, by implication, limit the conditions

that may be declared under section 63 of the Telecommunications

Act 1997.

42 Consultation with ACCC

Scope

(1) This section applies if the Communications Minister is required

under section 64 of the Telecommunications Act 1997 to give an

NBN corporation a notice in relation to a condition covered by

subsection 41(1) or (3) of this Act.

Consultation with ACCC

(2) Before giving the notice, the Communications Minister must

consult the ACCC.

Ownership and control of NBN Co Part 3

Simplified outline Division 1

Section 43

National Broadband Network Companies Bill 2010 No. , 2010 37

Part 3--Ownership and control of NBN Co

Division 1--Simplified outline

43 Simplified outline

The following is a simplified outline of this Part:

�

Under provisions called the Commonwealth ownership

provisions, the Commonwealth must retain ownership of NBN

Co.

�

The Commonwealth ownership provisions cease to have effect

after the following events have occurred:

(a)

the Communications Minister has declared that, in

his or her opinion, the national broadband network

should be treated as built and fully operational;

(b)

the Productivity Minister has caused to be tabled in

both Houses of Parliament a report of an inquiry

by the Productivity Commission;

(c)

the Parliamentary Joint Committee on the

Ownership of NBN Co has examined the

Productivity Commission's report;

(d)

the Finance Minister has declared that, in his or her

opinion, conditions are suitable for the entering

into and carrying out of an NBN Co sale scheme,

and the declaration has taken effect.

�

This Part sets out rules about how an NBN Co sale scheme is

to be carried out.

�

NBN Co must take all reasonable steps to ensure that an

unacceptable private ownership or control situation does not

exist in relation to NBN Co.

Part 3 Ownership and control of NBN Co

Division 2 Commonwealth ownership and control of NBN Co

Section 44

38 National Broadband Network Companies Bill 2010 No. , 2010

Division 2--Commonwealth ownership and control of NBN

Subdivision A--Commonwealth ownership provisions

44 Commonwealth ownership provisions

This Subdivision sets out the Commonwealth ownership

provisions.

45 Commonwealth to retain ownership of NBN Co

(1) The Commonwealth must not transfer any of its shares in NBN Co

if the transfer results in a breach of subsection (2).

(2) Neither the Commonwealth nor NBN Co is allowed to do anything

to cause or contribute to any of the following results:

(a) that the Commonwealth no longer holds shares in NBN Co

that carry the rights to exercise all of the voting rights

attached to the voting shares in NBN Co;

(b) that the Commonwealth no longer controls the exercise of all

of the voting rights attached to the voting shares in NBN Co;

share capital of NBN Co;

(d) that the Commonwealth is no longer entitled to hold all of the

rights to any distribution of capital or profits of NBN Co on

winding-up;

(e) that the Commonwealth is no longer entitled to hold all of the

rights to any distribution of capital or profits of NBN Co,

otherwise than on winding-up.

Note:

This section ceases to have effect at the time worked out under

section 51.

46 Compliance by NBN Co

(1) NBN Co must take all reasonable steps to ensure that a situation

described in paragraph 45(2)(a), (b), (c), (d) or (e) does not exist.

(2) NBN Co commits an offence if:

Ownership and control of NBN Co Part 3

Commonwealth ownership and control of NBN Co Division 2

Section 47

National Broadband Network Companies Bill 2010 No. , 2010 39

(a) NBN Co engages in conduct; and

(b) NBN Co's conduct contravenes subsection (1).

Penalty for contravention of this subsection: 500 penalty units.

Note:

This section ceases to have effect at the time worked out under

section 51.

Subdivision B--Termination of Commonwealth ownership

provisions

47 Object of this Subdivision

The object of this Subdivision is to provide for the termination of

the Commonwealth ownership provisions after the following

events have occurred:

(a) the Communications Minister has declared that, in his or her

opinion, the national broadband network should be treated as

built and fully operational (see section 48);

(b) the Productivity Minister has caused to be tabled in both

Houses of Parliament a report of an inquiry by the

Productivity Commission (see section 49);

NBN Co has examined the Productivity Commission's report

(see Schedule 2);

(d) the Finance Minister has declared that, in his or her opinion,

conditions are suitable for the entering into and carrying out

of an NBN Co sale scheme, and the declaration has taken

effect (see section 50).

48 Declaration by Communications Minister--whether national

broadband network should be treated as built and fully

operational

Initial declaration

(1) During the period:

(a) starting at the commencement of this section; and

(b) ending at the end of 30 June 2018;

the Communications Minister must:

Part 3 Ownership and control of NBN Co

Division 2 Commonwealth ownership and control of NBN Co

Section 48

40 National Broadband Network Companies Bill 2010 No. , 2010

broadband network should be treated as built and fully

operational; or

(d) declare, in writing, that the period:

(i) starting immediately after the declaration is made; and

(ii) ending at a specified time;

declared pre-termination period for the purposes of this

Act.

Subsequent declarations

(2) During a declared pre-termination period, the Communications

Minister must:

(a) declare, in writing, that, in his or her opinion, the national

broadband network should be treated as built and fully

operational; or

(b) declare, in writing, that the period:

(i) starting immediately after the declaration is made; and

(ii) ending at a specified time;

declared pre-termination period for the purposes of this

Act.

(3) Subsection (2) is recursive, that is, the first reference in that

subsection to a declared pre-termination period includes a

reference to a period that is a declared pre-termination period

because of any other application or applications of

paragraph (2)(b).

Maximum duration of declared pre-termination period

(4) A declared pre-termination period must not be longer than 12

months.

Matters to which Communications Minister must have regard

(5) In deciding whether to make a declaration under this section, the

Communications Minister must have regard to the following

matters:

(a) the extent to which the national broadband network has been

built;

Ownership and control of NBN Co Part 3

Commonwealth ownership and control of NBN Co Division 2

Section 49

National Broadband Network Companies Bill 2010 No. , 2010 41

(b) the extent to which the national broadband network is

operational;

network;

(d) such other matters (if any) as the Communications Minister

considers relevant.

Tabling in Parliament

(6) The Communications Minister must cause a copy of a declaration

under this section to be tabled in each House of the Parliament

within 15 sitting days of that House after making the declaration.

(7) If a declaration under paragraph (1)(d) or (2)(b) is tabled in

accordance with subsection (6), the Communications Minister must

also table a statement to the effect that the Commonwealth

ownership provisions continue in operation.

Declaration is not a legislative instrument

(8) A declaration under this section is not a legislative instrument.

49 Productivity Commission inquiry

Scope

(1) This section applies if the Communications Minister has made a

declaration under paragraph 48(1)(c) or (2)(a) that, in the

Communications Minister's opinion, the national broadband

network should be treated as built and fully operational.

Inquiry by Productivity Commission

(2) The Productivity Minister may, under paragraph 6(1)(a) of the

Productivity Commission Act 1998, refer the following matters to

the Productivity Commission for inquiry:

(a) the matter of the regulatory framework for the national

broadband network;

(b) the matter of the impact on future annual Commonwealth

budgets of a sale of the Commonwealth's equity in NBN Co;

Part 3 Ownership and control of NBN Co

Division 2 Commonwealth ownership and control of NBN Co

Section 49

42 National Broadband Network Companies Bill 2010 No. , 2010

(i) the supply of affordable broadband carriage services;

and

(ii) the supply of affordable carriage services (other than

broadband carriage services); and

(iii) equity and social inclusion;

of a sale of the Commonwealth's equity in NBN Co;

(d) the matter of the impact on competition in

telecommunications markets of a sale of the

Commonwealth's equity in NBN Co.

(3) In referring the matters to the Productivity Commission for inquiry,

the Productivity Minister must, under paragraph 11(1)(c) of the

Productivity Commission Act 1998, specify the period of 12

months beginning when the reference is made as the period within

which the Productivity Commission must submit its report on the

inquiry to the Productivity Minister.

Note 1:

Under section 12 of the Productivity Commission Act 1998, the

Productivity Minister must cause a copy of the Productivity

Commission's report to be tabled in each House of the Parliament.

Note 2:

Under clause 3 of Schedule 2, the Parliamentary Joint Committee on

the Ownership of NBN Co must:

(a) examine the Productivity Commission's report; and

(b) report to both Houses of the Parliament on that examination.

Matters to which Productivity Commission must have regard

(4) In holding the inquiry, and in preparing its report on the inquiry,

the Productivity Commission must have regard to the following

matters:

(a) equity of access to broadband carriage services in:

(i) metropolitan areas; and

(ii) regional areas; and

(iii) rural areas; and

(iv)

remote

areas;

(b) competition in telecommunications markets;

(d) power in telecommunications markets, including whether an

NBN corporation has a substantial degree of power in any

telecommunications market;

Ownership and control of NBN Co Part 3

Commonwealth ownership and control of NBN Co Division 2

Section 49

National Broadband Network Companies Bill 2010 No. , 2010 43

(e) ownership and control of NBN corporations;

(f) ownership and control of carriers or service providers by

NBN corporations;

(g) structural organisation of NBN corporations;

(h) bundling of services supplied, or proposed to be supplied, by

NBN corporations;

(i) retail prices of services supplied using the national broadband

network;

(j) restriction of the investment activities of NBN corporations;

(k) geographical coverage of the national broadband network;

(l) technology used in connection with the national broadband

network;

(m) the need for maintenance, replacement and upgrading of

technology used in connection with the national broadband

network;

(n) any other matters specified in a written determination made

by the Productivity Minister;

(o) such other matters (if any) as the Productivity Commission

considers relevant.

(5) Subsection (4) of this section has effect in addition to section 8 of

the Productivity Commission Act 1998.

(6) Before making a determination under paragraph (4)(n), the

Productivity Minister must consult:

(a) the Communications Minister; and

(b)

the

Finance

Minister.

(7) A determination under paragraph (4)(n) is a legislative instrument,

but section 42 (disallowance) of the Legislative Instruments Act

2003 does not apply to the determination.

Assumptions in report

(8) If, in arriving at a conclusion set out in its report on the inquiry, the

Productivity Commission made, or had regard to, a particular

assumption:

(a) the report must set out that assumption; and

Part 3 Ownership and control of NBN Co

Division 2 Commonwealth ownership and control of NBN Co

Section 50

44 National Broadband Network Companies Bill 2010 No. , 2010

(b) if making, or having regard to, an alternative plausible

assumption would have had a particular effect on that

conclusion--the report must set out that effect.

Substantial degree of power in telecommunications market

(9) For the purposes of this section, the question of whether an NBN

corporation has a substantial degree of power in a

telecommunications market is to be determined under Part XIB of

the Competition and Consumer Act 2010.

Matters relating to industry, industry development and productivity

(10) For the purposes of paragraph 6(1)(a) of the Productivity

Commission Act 1998, each matter mentioned in subsection (2) of

this section is taken to be a matter relating to industry, industry

development and productivity.

50 Declaration by Finance Minister--whether conditions suitable

for an NBN Co sale scheme

Scope

(1) This section applies if the Parliamentary Joint Committee on the

Ownership of NBN Co has reported to both Houses of the

Parliament, under paragraph 3(1)(b) of Schedule 2, on the

Committee's examination of the report of the Productivity

Commission inquiry mentioned in section 49.

Declaration

(2) The Finance Minister may declare, in writing, that, in the Finance

Minister's opinion, conditions are suitable for the entering into and

carrying out of an NBN Co sale scheme.

Matters to which Finance Minister must have regard

(3) In deciding whether to make a declaration under subsection (2), the

Finance Minister must have regard to the following matters:

(a) NBN Co's governance arrangements;

(b) NBN Co's business record;

Ownership and control of NBN Co Part 3

Commonwealth ownership and control of NBN Co Division 2

Section 51

National Broadband Network Companies Bill 2010 No. , 2010 45

(c)

market

conditions;

(d) such other matters (if any) as the Finance Minister considers

relevant.

Disallowance

(4) The Finance Minister must cause a copy of a declaration under

subsection (2) to be tabled in each House of the Parliament within

15 sitting days of that House after making the declaration.

(5) Either House of Parliament may, following a motion on notice,

pass a resolution disallowing the declaration. To be effective, the

resolution must be passed within 15 sitting days of the House after

the copy of the declaration was tabled in the House.

(6) If neither House passes such a resolution, the declaration takes

effect on the day immediately after the last day on which such a

resolution could have been passed.

(7) If a House of Parliament passes a resolution under subsection (5)

disallowing a declaration made under subsection (2), this Act does

not prevent the Finance Minister from making another declaration

under subsection (2).

Publication

(8) The Finance Minister must cause a copy of a declaration under

subsection (2) to be published on the website of the Department of

Finance.

Declaration is not a legislative instrument

(9) A declaration under subsection (2) is not a legislative instrument.

51 Termination of Commonwealth ownership provisions

Scope

(1) This section applies if:

(a) the Finance Minister declares under subsection 50(2) that, in

his or her opinion, conditions are suitable for the entering

into and carrying out of an NBN Co sale scheme; and

Part 3 Ownership and control of NBN Co

Division 2 Commonwealth ownership and control of NBN Co

Section 52

46 National Broadband Network Companies Bill 2010 No. , 2010

(b) the declaration takes effect under subsection 50(6).

Termination of Commonwealth ownership provisions

(2) The Commonwealth ownership provisions cease to have effect

when the declaration takes effect under subsection 50(6).

Subdivision C--Sale by the Commonwealth of its shares in

NBN Co

52 Simplified outline

The following is a simplified outline of this Subdivision:

�

An NBN Co sale scheme must not be entered into or carried

out unless the Commonwealth ownership provisions have

ceased to have effect.

�

This Subdivision sets out rules about how an NBN Co sale

scheme is to be carried out.

53 When NBN Co sale scheme may be entered into and carried out

An NBN Co sale scheme must not be entered into or carried out

unless the Commonwealth ownership provisions have ceased to

have effect under section 51.

Note: For

NBN Co sale scheme, see section 54.

54 NBN Co sale scheme

Object

(1) The object of this section is to define the expressions NBN Co sale

scheme, sale-scheme trustee, sale-scheme trust deed and

hybrid-security issuer company.

NBN Co sale scheme

(2) For the purposes of this Act, an NBN Co sale scheme is a scheme

the object of which is to achieve the transfer, or progressive

Ownership and control of NBN Co Part 3

Commonwealth ownership and control of NBN Co Division 2

Section 54

National Broadband Network Companies Bill 2010 No. , 2010 47

transfer, of the whole or a part of the Commonwealth's equity in

NBN Co to other persons.

(3) An NBN Co sale scheme must comply with any rules set out in a

determination in force under subsection (4).

(4) The Finance Minister may make a written determination setting out

rules that are to be complied with by an NBN Co sale scheme.

(5) An NBN Co sale scheme may involve any or all of the following:

(a) the transfer by the Commonwealth of any of its shares in

NBN Co;

(b) the transfer by the Commonwealth of interests in its shares in

NBN Co to a company (the sale-scheme trustee) in the

company's capacity as the trustee of a trust established by a

trust deed (the sale-scheme trust deed);

in shares in NBN Co and subsequently acquiring the

remaining interests in those shares;

(d) the payment by NBN Co of a dividend;

(e) the reduction of NBN Co's share capital;

(f) a return of capital by NBN Co;

(g) the cancellation of a particular parcel of shares in NBN Co

held by the Commonwealth;

(h) NBN Co buying back shares in itself;

(i) the issue of securities in NBN Co;

(j) the redemption of redeemable preference shares in NBN Co

held by the Commonwealth;

(k) the modification of NBN Co's constitution;

(l) the issue by the Commonwealth or NBN Co of sale-scheme

hybrid securities;

(m) an arrangement under which one or more designated

companies (each of which is called a hybrid-security issuer

company) issue sale-scheme hybrid securities;

(n) the guarantee by the Commonwealth of obligations of a

hybrid-security issuer company in relation to sale-scheme

hybrid securities (for example, obligations to make payments

of interest or dividends);

Part 3 Ownership and control of NBN Co

Division 2 Commonwealth ownership and control of NBN Co

Section 54

48 National Broadband Network Companies Bill 2010 No. , 2010

(o) an agreement of the kind known as a securities lending

arrangement, where the securities lending arrangement

relates to shares in NBN Co.

(6) In determining whether a scheme is an NBN Co sale scheme,

regard must be had to the economic and commercial substance of

the scheme.

(7) Subsections (5) and (6) do not, by implication, limit subsection (2).

Designated company

(8) For the purposes of this section, a designated company is:

(a) a wholly-owned Commonwealth company; or

(b) a body corporate specified in a written declaration made by

the Finance Minister under this paragraph.

Legislative instruments

(9) A determination under subsection (4) is a legislative instrument,

but section 42 (disallowance) of the Legislative Instruments Act

2003 does not apply to the determination.

(10) A declaration under paragraph (8)(b) is not a legislative instrument.

(11) To the extent that an NBN Co sale scheme is in writing, it is not a

legislative instrument.

Definitions

(12) In this section:

interest in a share has the meaning given by section 75.

modification has the same meaning as in the Corporations Act

2001.

transfer, in relation to an interest in a share, includes the creation

of the interest.

wholly-owned Commonwealth company has the same meaning as

in the Commonwealth Authorities and Companies Act 1997 (in

Ownership and control of NBN Co Part 3

Commonwealth ownership and control of NBN Co Division 2

Section 55

National Broadband Network Companies Bill 2010 No. , 2010 49

working out whether a company is covered by this definition,

ignore any sale-scheme hybrid securities issued by the company).

55 Sale-scheme hybrid securities

(1) For the purposes of this Act, a sale-scheme hybrid security is:

(a) an interest-bearing security that is issued on the basis that it

will or may be redeemed in exchange for a share or shares in

NBN Co; or

(b) a share that is issued on the basis that it will or may be

redeemed in exchange for a share or shares in NBN Co; or

basis that it will or may be redeemed in exchange for a share

or shares in NBN Co; or

(d) an option to acquire a share or shares in NBN Co; or

(e) an interest-bearing security that is issued on the basis that it

will or may be converted to a share or shares in NBN Co; or

(f) any other security or financial product that is issued on the

basis that it will or may be converted to a share or shares in

NBN Co; or

(g) an interest-bearing security that is issued on the basis that it

will or may be exchanged for a share or shares in NBN Co;

(h) any other security or financial product that is issued on the

basis that it will or may be exchanged for a share or shares in

NBN Co; or

(i) a security, or a financial product, that:

(i) is specified in a written declaration made by the Finance

Minister under this subparagraph; and

(ii) relates directly or indirectly to NBN Co.

(2) A security or financial product covered by a paragraph of

subsection (1) may (but need not) include a charge, pledge or lien.

(3) A security covered by paragraph (1)(a), (e) or (g) may be issued in

or outside Australia, and may be denominated in:

(a) Australian currency; or

(b) a currency other than Australian currency.

Part 3 Ownership and control of NBN Co

Division 2 Commonwealth ownership and control of NBN Co

Section 56

50 National Broadband Network Companies Bill 2010 No. , 2010

(4) A share covered by paragraph (1)(b) may be issued in or outside

Australia, and any rights or obligations may be denominated in:

(a) Australian currency; or

(b) a currency other than Australian currency.

(5) A security or financial product covered by paragraph (1)(c), (f), (h)

or (i) may be issued in or outside Australia, and any rights or

obligations may be denominated in:

(a) Australian currency; or

(b) a currency other than Australian currency.

(6) An option covered by paragraph (1)(d) may be issued in or outside

Australia, and the exercise price may be denominated in:

(a) Australian currency; or

(b) a currency other than Australian currency.

(7) A declaration under subparagraph (1)(i)(i) is a legislative

instrument, but section 42 (disallowance) of the Legislative

Instruments Act 2003 does not apply to the declaration.

(8) In this section:

security has the same meaning as in Chapter 7 of the Corporations

Act 2001.

56 Exemption from stamp duty--transfer by the Commonwealth of

its shares in NBN Co etc.

(1) In this section:

designated matter means any of the following matters, where the

matter relates to the entering into or carrying out of an NBN Co

sale scheme:

(a) the transfer by the Commonwealth of:

(i) a share in NBN Co held by the Commonwealth; or

(ii) an interest in such a share;

(b) an agreement relating to a transfer covered by paragraph (a);

acting on behalf of the Commonwealth, in respect of a

transfer covered by paragraph (a);

Ownership and control of NBN Co Part 3

Commonwealth ownership and control of NBN Co Division 2

Section 56

National Broadband Network Companies Bill 2010 No. , 2010 51

(d) the transfer by the sale-scheme trustee of:

(i) a share in NBN Co held by the trustee; or

(ii) an interest in such a share;

where the transfer is in accordance with the sale-scheme trust

deed;

(e) an agreement relating to a transfer covered by paragraph (d);

(f) the receipt of money by the sale-scheme trustee or by a

person acting on behalf of the sale-scheme trustee, in respect

of a transfer covered by paragraph (d);

(g) the reduction of NBN Co's share capital;

(h) the cancellation of a particular parcel of shares in NBN Co

held by the Commonwealth;

(i) NBN Co buying back shares in itself;

(j) the issue of securities in NBN Co;

(k) the redemption of redeemable preference shares in NBN Co

held by the Commonwealth;

(l) the issue of sale-scheme hybrid securities;

(m) the receipt of money by the Commonwealth, or by a person

acting on behalf of the Commonwealth, in respect of the

issue of sale-scheme hybrid securities;

(n) the receipt of money by a hybrid-security issuer company, or

by a person acting on behalf of a hybrid-security issuer

company, in respect of the issue of sale-scheme hybrid

securities;

(o) the redemption, exchange or conversion of sale-scheme

hybrid securities;

(p) the transfer by a hybrid-security issuer company of a share in

NBN Co held by the company;

(q) the grant of a charge, pledge or lien (whether in connection

with sale-scheme hybrid securities or otherwise);

(r) an agreement relating to a matter covered by paragraph (c),

(f), (g), (h), (i), (j), (k), (l), (m), (n), (o), (p) or (q);

(s) an agreement of the kind known as a securities lending

arrangement, where the securities lending arrangement

relates to shares in NBN Co;

(t) any other matter that is specified in the regulations.

Part 3 Ownership and control of NBN Co

Division 2 Commonwealth ownership and control of NBN Co

Section 57

52 National Broadband Network Companies Bill 2010 No. , 2010

interest in a share has the meaning given by section 75.

transfer, in relation to an interest in a share, includes the creation

of the interest.

(2) Stamp duty or other tax is not payable under a law of a State or

Territory in respect of:

(a) a designated matter; or

(b) anything done (including a transaction entered into or an

instrument or document made, executed, lodged or given)

because of, or for a purpose connected with or arising out of,

a designated matter.

(3) However, the rule in subsection (2) does not apply:

(a) in such circumstances as are specified in the regulations; or

(b) in relation to stamp duty, or other tax, of a kind specified in

the regulations; or

the regulations, in such circumstances as are specified in the

regulations.

57 Authorisation of borrowing--issue of sale-scheme hybrid

securities

To the extent to which the issue of sale-scheme hybrid securities

under an NBN Co sale scheme involves a borrowing of money by

the Commonwealth, that borrowing is authorised by this section.

Note:

Section 37 of the Financial Management and Accountability Act 1997

provides that an agreement for the borrowing of money by the

Commonwealth is of no effect unless the borrowing is authorised by

an Act.

58 Appropriation--costs incurred in connection with an NBN Co

sale scheme

(1) The Consolidated Revenue Fund is appropriated to the extent

necessary for the purposes of the payment or discharge of the costs,

expenses and other obligations incurred by the Commonwealth in

connection with the formulation, entering into, or carrying out, of

an NBN Co sale scheme.

Ownership and control of NBN Co Part 3

Commonwealth ownership and control of NBN Co Division 2

Section 59

National Broadband Network Companies Bill 2010 No. , 2010 53

(2) The costs, expenses and obligations covered by subsection (1)

include (but are not limited to) the following:

(a) legal and accounting fees;

(b) costs of undertaking due diligence inquiries;

(c)

underwriting

fees;

(d) costs associated with an offer document;

(e)

marketing

expenses;

(f) other administrative and logistical expenses;

(g) calls on indemnities granted by the Commonwealth;

(h) calls on guarantees given by the Commonwealth;

(i) obligations to make payments of amounts in relation to

sale-scheme hybrid securities issued by the Commonwealth

(for example, payments of interest).

59 Assistance given by NBN Co or the Board in connection with an

NBN Co sale scheme

Giving assistance on own initiative

(1) NBN Co may, on its own initiative, assist the Commonwealth in

connection with the formulation, entering into, or carrying out, of

an NBN Co sale scheme.

(2) A member of the Board may, on the member's own initiative,

assist the Commonwealth in connection with the formulation,

entering into, or carrying out, of an NBN Co sale scheme.

Giving assistance when requested by Communications Minister

and Finance Minister

(3) NBN Co must, when requested in writing by the Communications

Minister and the Finance Minister to do so, assist the

Commonwealth in connection with the formulation, entering into,

or carrying out, of an NBN Co sale scheme. The assistance is to be

given within the period, and in the form and manner, specified in

the request.

(4) The Board must, when requested in writing by the

Communications Minister and the Finance Minister to do so, assist

Part 3 Ownership and control of NBN Co

Division 2 Commonwealth ownership and control of NBN Co

Section 60

54 National Broadband Network Companies Bill 2010 No. , 2010

the Commonwealth in connection with the formulation, entering

into, or carrying out, of an NBN Co sale scheme. The assistance is

to be given within the period, and in the form and manner,

specified in the request.

Directions of Communications Minister and Finance Minister

(5) The Communications Minister and the Finance Minister may, by

written notice given to NBN Co, give directions to NBN Co about

the exercise of NBN Co's powers under subsection (1). NBN Co

must comply with the direction.

(6) The Communications Minister and the Finance Minister may, by

written notice given to a member of the Board, give directions to

the member about the exercise of the member's powers under

subsection (2). The member must comply with the direction.

Immunity

(7) To avoid doubt, the giving of assistance as mentioned in

subsection (1), (2), (3) or (4), the making of a request under

subsection (3) or (4), or the giving of a direction under

subsection (5) or (6), does not result in a contravention of, or give

rise to a liability or remedy under:

(a) a provision of the Corporations Act 2001; or

(b) if NBN Co is a listed disclosing entity--the listing rules of a

listing market in relation to NBN Co; or

administrative law).

Consequences of a contravention

(8) A contravention of subsection (3), (4), (5) or (6) is not an offence.

However, a contravention of subsection (3), (4), (5) or (6) is a

ground for obtaining an injunction under Part 6.

60 Giving of assistance--ancillary provisions

(1) The assistance mentioned in subsection 59(1), (2), (3) or (4) may

take the form of:

(a) the giving of information; or

Ownership and control of NBN Co Part 3

Commonwealth ownership and control of NBN Co Division 2

Section 61

National Broadband Network Companies Bill 2010 No. , 2010 55

(b) the giving of financial assistance (within the meaning of

Part 2J.3 of the Corporations Act 2001); or

meaning of Chapter 2E of the Corporations Act 2001); or

(d) the provision, by NBN Co's directors or employees, of

facilities, information and other assistance in connection with

the conduct of:

(i) a due diligence procedure or a similar process; or

(ii) a market briefing or a similar process.

(2) Subsection (1) does not, by implication, limit the forms in which

assistance may be given.

(3) Section 59 does not, by implication, limit any rights that are

conferred on shareholders by other laws.

(4) Section 59 does not authorise the imposition of taxation (within the

meaning of section 55 of the Constitution).

(5) Section 59 does not, by implication, limit:

(a) the executive power of the Commonwealth to enter into an

agreement; or

(b) the capacity of NBN Co, or of a member of the Board, to

enter into an agreement with the Commonwealth.

Note:

This ensures, for example, that the Commonwealth can enter into a

co-operation agreement with NBN Co or with a member of the Board.

61 Reimbursement of expenses incurred in giving assistance

(1) This section applies if:

(a) assistance is given under section 59; and

(b) NBN Co or a member of the Board incurs expenses in

relation to the giving of that assistance.

(2) The Finance Minister may authorise the payment by the

Commonwealth to NBN Co, or to the member, as the case may be,

of an amount equal to so much of those expenses as the Finance

Minister considers reasonable.

Part 3 Ownership and control of NBN Co

Division 2 Commonwealth ownership and control of NBN Co

Section 62

56 National Broadband Network Companies Bill 2010 No. , 2010

(3) The Consolidated Revenue Fund is appropriated for the purposes

of making payments under subsection (2).

(4) This section does not, by implication, limit the executive power of

the Commonwealth to make a payment to NBN Co or to a member

of the Board.

62 Commonwealth to be bound by Chapters 6CA, 6D and 7 of the

Corporations Act 2001

(1) Despite subsection 5A(4) of the Corporations Act 2001 (but

subject to subsection 5A(5) of that Act), Chapters 6CA, 6D and 7

of the Corporations Act 2001 bind the Crown in right of the

Commonwealth to the extent to which those Chapters deal with the

formulation, entering into, or carrying out, of an NBN Co sale

scheme.

(2) Subsection (1) has effect despite anything in the Corporations Act

2001.

(3) For the purposes of subsection (1), if Chapter 6CA, 6D or 7 of the

Corporations Act 2001 is repealed and replaced by another

provision of that Act that deals with fundraising or securities

regulation, the reference in that subsection to that Chapter of that

Act is to be read as a reference to the replacement provision.

Chinese wall arrangements

(4) The Commonwealth does not contravene subsection 1043A(1) of

the Corporations Act 2001 by entering into a transaction or

agreement at any time in relation to:

(a) shares in NBN Co; or

(b) sale-scheme hybrid securities; or

merely because of information in the possession of an officer or

employee of the Commonwealth if:

(d) the decision to enter into the transaction or agreement was

taken on its behalf by a person or persons other than that

officer or employee; and

Ownership and control of NBN Co Part 3

Commonwealth ownership and control of NBN Co Division 2

Section 63

National Broadband Network Companies Bill 2010 No. , 2010 57

(e) it had in operation at that time arrangements that could

reasonably be expected to ensure that:

(i) the information was not communicated to the person or

persons who made the decision; and

(ii) no advice with respect to the transaction or agreement

was given to that person or any of those persons by a

person in possession of the information; and

(f) the information was not so communicated and no such advice

was given.

(5) A reference in subsection (4) to an officer of the Commonwealth

includes a reference to the holder of an office under a law of the

Commonwealth.

63 Reduction of NBN Co's share capital

(1) This section applies to a reduction of NBN Co's share capital if:

(a) the reduction relates to the formulation, entering into, or

carrying out, of an NBN Co sale scheme; and

(b) the reduction is part of an overall arrangement or plan that

involves:

(i) the replacement of a particular type of share with one or

more other types of share; and

(ii) the replacement of the reduced share capital.

(2) Notice of the reduction does not have to be given to NBN Co's

creditors.

(3) NBN Co's creditors are not entitled to object to the reduction.

(4) The reduction does not have to be confirmed by a court.

(5) Subsections (2), (3) and (4) have effect despite anything in

Part 2J.1 of the Corporations Act 2001.

Part 3 Ownership and control of NBN Co

Division 2 Commonwealth ownership and control of NBN Co

Section 64

58 National Broadband Network Companies Bill 2010 No. , 2010

64 Alterations of NBN Co's constitution--notice to debenture

holders

(1) This section applies to an alteration of NBN Co's constitution if

the alteration relates to the formulation, entering into, or carrying

out, of an NBN Co sale scheme.

(2) A notice of a general meeting specifying an intention to propose a

resolution for the alteration does not have to be given to:

(a) trustees for debenture holders; or

(b)

debenture

holders.

(3) A court is not empowered to cancel the alteration.

(4) Subsections (2) and (3) have effect despite anything in the

Corporations Act 2001.

65 Alteration of NBN Co's constitution--Ministerial instrument

(1) The Communications Minister and the Finance Minister may, by

legislative instrument, alter NBN Co's constitution if:

(a) the alteration relates to the formulation, entering into, or

carrying out, of an NBN Co sale scheme; and

(b) the effect of the alteration is to:

(i) remove, restrict or limit any rights, privileges or

immunities of the Commonwealth, the Communications

Minister or the Finance Minister; or

(ii) remove a provision that prohibits an act or thing without

the consent of the Commonwealth; or

(iii) in the case of a provision that prohibits an act or thing

without the consent of the Commonwealth--remove the

requirement to obtain that consent; or

(iv) remove a provision that prohibits an act or thing without

the consent of the Communications Minister and the

Finance Minister; or

(v) in the case of a provision that prohibits an act or thing

without the consent of the Communications Minister

and the Finance Minister--remove the requirement to

obtain that consent; or

Ownership and control of NBN Co Part 3

Commonwealth ownership and control of NBN Co Division 2

Section 66

National Broadband Network Companies Bill 2010 No. , 2010 59

(vi) remove a provision that prohibits an act or thing unless

the Commonwealth directs otherwise; or

(vii) in the case of a provision that prohibits an act or thing

unless the Commonwealth directs otherwise--remove

that power of direction; or

(viii) remove a provision that prohibits an act or thing unless

the Communications Minister and the Finance Minister

direct otherwise; or

(ix) in the case of a provision that prohibits an act or thing

unless the Communications Minister and the Finance

Minister direct otherwise--remove that power of

direction.

(2) Before making an instrument under subsection (1), the

Communications Minister and the Finance Minister must consult

the members of the Board.

Immunity

(3) To avoid doubt, the making of an instrument under subsection (1)

does not result in a contravention of, or give rise to a liability or

remedy under:

(a) a provision of the Corporations Act 2001; or

(b) if NBN Co is a listed disclosing entity--the listing rules of a

listing market in relation to NBN Co; or

administrative law).

Other powers not limited

(4) If NBN Co's constitution is altered by an instrument under

subsection (1), this Act does not prevent the further alteration of

that constitution.

66 Use by the Commonwealth of information obtained from NBN

Co or the Board

(1) This section applies to information obtained under section 59.

Part 3 Ownership and control of NBN Co

Division 2 Commonwealth ownership and control of NBN Co

Section 66

60 National Broadband Network Companies Bill 2010 No. , 2010

(2) The Commonwealth, or an associated person, may use the

information for a purpose in connection with the formulation,

entering into, or carrying out, of an NBN Co sale scheme.

(3) The Commonwealth, or an associated person, may disclose the

information for a purpose in connection with the formulation,

entering into, or carrying out, of an NBN Co sale scheme.

(4) If subsection (2) or (3) does not apply, the Commonwealth, or an

associated person, may use or disclose the information for a

purpose in connection with the Commonwealth's capacity as a

shareholder in NBN Co, so long as the use or disclosure does not

involve giving the information to a person who is not an associated

person.

(5) To avoid doubt, the use or disclosure of information as mentioned

in subsection (2), (3) or (4) does not result in a contravention of, or

give rise to a liability or remedy under:

(a) a provision of the Corporations Act 2001; or

(b) if NBN Co is a listed disclosing entity--the listing rules of a

listing market in relation to NBN Co; or

administrative law).

(6) In this section:

associated person means:

(a) a Minister; or

(b) an individual who holds an office under, or is employed by,

the Commonwealth; or

1999; or

(d) a person who performs services for or on behalf of the

Commonwealth in connection with:

(i) the formulation, entering into, or carrying out, of an

NBN Co sale scheme; or

(ii) the Commonwealth's capacity as a shareholder in NBN

Co.

Ownership and control of NBN Co Part 3

Commonwealth ownership and control of NBN Co Division 2

Section 67

National Broadband Network Companies Bill 2010 No. , 2010 61

67 Agreements relating to the protection of information obtained

from NBN Co or the Board

(1) The Finance Minister may, on behalf of the Commonwealth, enter

into an agreement with NBN Co, or with one or more members of

the Board, relating to the protection of information:

(a) that is obtained under section 59; and

(b) the publication of which might be expected to prejudice

substantially NBN Co's commercial interests.

(2) The agreement may be enforced as if it were a contract.

(3) This section does not, by implication, limit the executive power of

the Commonwealth to enter into agreements.

68 NBN Co's obligations to disclose information

To avoid doubt, the mere fact that particular information was

requested, required or given under section 59 is not a ground on

which NBN Co can be required to disclose or notify that, or any

other, information under:

(a) a provision of the Corporations Act 2001; or

(b) if NBN Co is a listed disclosing entity--the listing rules of a

listing market in relation to NBN Co.

Part 3 Ownership and control of NBN Co

Division 3 Private ownership and control of NBN Co

Section 69

62 National Broadband Network Companies Bill 2010 No. , 2010

Division 3--Private ownership and control of NBN Co

69 Unacceptable private ownership or control situation

(1) For the purposes of this Act, an unacceptable private ownership or

control situation, in relation to NBN Co, has the meaning given by

the regulations.

(2) Regulations made for the purposes of subsection (1) may make

provision in relation to a matter by conferring a power to make a

decision of an administrative character on the ACCC.

(3) Before the Governor-General makes a regulation for the purposes

of subsection (1), the Communications Minister must consult the

ACCC.

70 Prohibition of unacceptable private ownership or control

situation

(1) NBN Co must take all reasonable steps to ensure that an

unacceptable private ownership or control situation does not exist

in relation to NBN Co.

(2) NBN Co commits an offence if:

(a) NBN Co engages in conduct; and

(b) NBN Co's conduct contravenes subsection (1).

Penalty for contravention of this subsection: 500 penalty units.

71 Remedial orders

(1) If an unacceptable private ownership or control situation exists in

relation to NBN Co, the Federal Court may, on application by the

Communications Minister, the ACCC or NBN Co, make such

orders as the court considers appropriate for the purpose of

ensuring that that situation ceases to exist.

(2) The Federal Court's orders include:

(a) an order directing the disposal of shares; or

(b) an order restraining the exercise of any rights attached to

shares; or

Ownership and control of NBN Co Part 3

Private ownership and control of NBN Co Division 3

Section 72

National Broadband Network Companies Bill 2010 No. , 2010 63

due to a person in respect of shares held by the person; or

(d) an order that any exercise of rights attached to shares be

disregarded.

(3) Subsection (2) does not, by implication, limit subsection (1).

(4) In addition to the Federal Court's powers under subsections (1) and

(2), the court:

(a) has power, for the purpose of securing compliance with any

other order made under this section, to make an order

directing any person to do or refrain from doing a specified

act; and

(b) has power to make an order containing such ancillary or

consequential provisions as the court thinks just.

(5) The Federal Court may, before making an order under this section,

direct that notice of the application be given to such persons as it

thinks fit or be published in such manner as it thinks fit, or both.

(6) The Federal Court may, by order, rescind, vary or discharge an

order made by it under this section or suspend the operation of

such an order.

72 Record-keeping and giving of information

(1) The regulations may make provision for, or in relation to, requiring

a person to do any or all of the following:

(a) keep and retain records, where the records are relevant to an

NBN Co ownership or control matter;

(b) give information to the Communications Minister that is

relevant to an NBN Co ownership or control matter;

ownership or control matter;

(d) give information to NBN Co that is relevant to an NBN Co

ownership or control matter.

Note: For

NBN Co ownership or control matter, see subsection (6).

Part 3 Ownership and control of NBN Co

Division 3 Private ownership and control of NBN Co

Section 72

64 National Broadband Network Companies Bill 2010 No. , 2010

Statutory declarations

(2) The regulations may provide that information given in accordance

with a requirement covered by paragraph (1)(b), (c) or (d) must be

verified by statutory declaration.

No self-incrimination

(3) An individual is not required to give information in accordance

with a requirement covered by paragraph (1)(b), (c) or (d) if the

information might tend to incriminate the individual or expose the

individual to a penalty.

Offence

(4) A person commits an offence if:

(a) a person is subject to a requirement under regulations made

for the purposes of subsection (1); and

(b) the person engages in conduct; and

Penalty: 50 penalty units.

Regulations may confer discretionary powers on the

Communications Minister or the ACCC

(5) Regulations made for the purposes of this section may make

provision for, or in relation to, a matter by conferring a power on

the Communications Minister or the ACCC. For example, the

regulations could provide that the Communications Minister may,

by written notice given to NBN Co, require NBN Co to give the

Communications Minister, within the period and in the manner

specified in the notice, specified information about an NBN Co

ownership or control matter.

NBN Co ownership or control matter

(6) For the purposes of this section, an NBN Co ownership or control

matter means a matter relevant to:

(a) an unacceptable private ownership or control situation; or

Ownership and control of NBN Co Part 3

Private ownership and control of NBN Co Division 3

Section 73

National Broadband Network Companies Bill 2010 No. , 2010 65

(b) the question of whether an unacceptable private ownership or

control situation has existed, is in existence, or will exist.

Other information-gathering powers not limited

(7) This section does not limit:

(a) Division 6 of Part XIB of the Competition and Consumer Act

2010; or

(b) section 155 of that Act.

73 Validity of acts done in contravention of this Division

An act is not invalidated by the fact that it constitutes an offence

against this Division.

74 Acquisition of property

(1) The Federal Court must not make an order under this Division if:

(a) the order would result in the acquisition of property from a

person otherwise than on just terms; and

(b) the order would be invalid because of paragraph 51(xxxi) of

the Constitution.

(2) In this section:

acquisition of property has the same meaning as in paragraph

51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the

Constitution.

Part 3 Ownership and control of NBN Co

Division 4 General provisions

Section 75

66 National Broadband Network Companies Bill 2010 No. , 2010

Division 4--General provisions

75 Interest in a share

(1) For the purposes of this Part, a person holds an interest in a share

if the person has any legal or equitable interest in the share.

(2) For the purposes of this Part, a person is taken to hold an interest

in a share if:

(a) the person has entered into a contract to purchase the share;

(b) the person has a right (otherwise than because of having an

interest under a trust) to have the share transferred to the

person or to the person's order (whether the right is

exercisable presently or in the future and whether or not on

the fulfilment of a condition); or

the share, under an option (whether the right is exercisable

presently or in the future and whether or not on the fulfilment

of a condition); or

(d) the person is otherwise entitled to acquire the share or an

interest in the share; or

(e) the person is entitled (otherwise than because of having been

appointed as a proxy or representative to vote at a meeting of

members of the company or of a class of its members) to

exercise or control the exercise of a right attached to the

share.

(3) Subsection (2) does not, by implication, limit subsection (1).

(4) For the purposes of this Part, a person is taken to hold an interest

in a share even if the person holds the interest in the share jointly

with another person.

(5) For the purpose of determining whether a person holds an interest

in a share, it is immaterial that the interest cannot be related to a

particular share.

(6) An interest in a share is not to be disregarded only because of:

(a) its remoteness; or

Ownership and control of NBN Co Part 3

General provisions Division 4

Section 76

National Broadband Network Companies Bill 2010 No. , 2010 67

(b) the manner in which it arose; or

is, or is capable of being made, subject to restraint or

restriction.

(7) For the purposes of this section, a person is entitled to acquire a

share if the person is absolutely or contingently entitled to acquire

it, whether because of any constituent document of a company, the

exercise of any right or option or for any other reason.

76 Extra-territorial application

This Part applies both within and outside Australia.

Part 4 NBN Co's reporting obligations

Section 77

68 National Broadband Network Companies Bill 2010 No. , 2010

Part 4--NBN Co's reporting obligations

77 Simplified outline

The following is a simplified outline of this Part:

�

This Part imposes reporting obligations on NBN Co, so long

as NBN Co is not a wholly-owned Commonwealth company.

�

This Part ceases to have effect when the Commonwealth

ceases to hold a majority of the voting shares in NBN Co.

78 Application of this Part

This Part does not impose a requirement on:

(a) NBN Co; or

(b) the members of the Board;

if NBN Co is a wholly-owned Commonwealth company (within

the meaning of the Commonwealth Authorities and Companies Act

1997).

79 Financial statements

(1) The Communications Minister and the Finance Minister may give

NBN Co a written direction requiring NBN Co to give the

Communications Minister and the Finance Minister a specified

financial statement or statements for a specified period or for each

specified period.

(2) NBN Co must comply with a direction under subsection (1).

(3) The following are examples of periods that may be specified under

subsection (1):

(a) the first 3 months of each financial year;

(b) the first 6 months of each financial year;

(d) each financial year.

NBN Co's reporting obligations Part 4

Section 80

National Broadband Network Companies Bill 2010 No. , 2010 69

(4) The members of the Board must:

(a) prepare each statement in accordance with written guidelines

given to the Board by the Communications Minister and the

Finance Minister; and

(b) give the statement to the Communications Minister and the

Finance Minister within 2 months after the end of the period

to which the statement relates.

(5) The Communications Minister and the Finance Minister may grant

extensions of time in special circumstances.

(6) A guideline given under paragraph (4)(a) is not a legislative

instrument.

(7) In this section:

financial statements includes financial statements for the group

consisting of NBN corporations.

80 Communications Minister and the Finance Minister to be

notified of significant events

(1) If an NBN corporation proposes to do any of the following things,

the members of the Board must immediately give the

Communications Minister and the Finance Minister written

particulars of the proposal:

(a) form a company or participate in the formation of a

company;

(b) participate in a significant partnership, trust, unincorporated

joint venture or similar arrangement;

company;

(d) acquire or dispose of a significant business;

(e) commence or cease a significant business activity;

(f) make a significant change in the nature or extent of its

interests in a partnership, trust, unincorporated joint venture

or similar arrangement.

(2) The Communications Minister and the Finance Minister may, by

writing, exempt the members of the Board from the requirement to

Part 4 NBN Co's reporting obligations

Section 81

70 National Broadband Network Companies Bill 2010 No. , 2010

notify matters covered by paragraph (1)(a). The exemption may be

granted subject to conditions.

(3) The Communications Minister and the Finance Minister may give

written guidelines to the Board that are to be used by the members

in deciding whether a proposal is covered by paragraph (1)(b), (c),

(d), (e) or (f).

(4) A guideline given under subsection (3) is not a legislative

instrument.

81 Keeping the Communications Minister and the Finance Minister

informed

(1) The members of the Board must:

(a) keep the Communications Minister and the Finance Minister

informed of the operations of NBN corporations; and

(b) give the Communications Minister such reports, documents

and information in relation to those operations as the

Communications Minister requires; and

information in relation to those operations as the Finance

Minister requires.

(2) The members of the Board must comply with requirements under

paragraphs (1)(b) and (c) within the time limits set by the Minister

concerned.

82 Corporate plan for NBN Co

(1) The members of the Board must prepare a corporate plan at least

once a year and give it to the Communications Minister and the

Finance Minister.

(2) The plan must cover a period of at least 3 years and not more than

5 years.

(3) The plan must cover each NBN corporation. In particular, for each

NBN corporation the plan must include details of the matters in

subsection (6), so far as they are applicable.

NBN Co's reporting obligations Part 4

Section 82

National Broadband Network Companies Bill 2010 No. , 2010 71

(4) The members of the Board must keep the Communications

Minister and the Finance Minister informed about changes to the

plan.

(5) If the Board becomes aware that a particular matter may affect the

achievement of the plan, the Board must give the Communications

Minister and the Finance Minister a written notice:

(a) setting out particulars of the matter; and

(b) explaining the effect of the matter on the achievement of the

plan.

(6) The plan must include details of the following matters (so far as

they are applicable):

(a) the objectives of the company;

(b) assumptions about the business environment in which the

company operates;

(d) the investment and financing programs of the company,

including strategies for managing financial risk;

(e) financial targets and projections for the company;

(f) the dividend policy of the company;

(g) non-financial performance measures for the company;

(h) community service obligations of the company;

(i) review of performance against previous corporate plans and

targets;

(j) analysis of factors likely to affect achievement of targets or

create significant financial risk for the company or for the

Commonwealth;

(k) price control and quality control strategies for goods or

services supplied by the company under a monopoly;

(l) human resource strategies and industrial relations strategies.

(7) The plan must also cover any other matters required by the

Communications Minister and the Finance Minister (which may

include further details about the matters in subsection (6)).

Part 4 NBN Co's reporting obligations

Section 83

72 National Broadband Network Companies Bill 2010 No. , 2010

83 Consequences of contraventions of this Part

A contravention of this Part is not an offence. However, a

contravention of this Part is a ground for obtaining an injunction

under Part 6.

84 This Part has effect despite the Corporations Act 2001 etc.

To avoid doubt, the operation of this Part does not result in a

contravention of, or give rise to a liability or remedy under:

(a) a provision of the Corporations Act 2001; or

(b) a rule of common law or equity (other than a rule of

administrative law).

85 When this Part ceases to have effect

(1) This Part (other than this section) ceases to have effect at the end

of the majority interest sale day for NBN Co.

Majority interest sale day

(2) If, in the opinion of the Communications Minister, a particular day

is the first day on which a majority of the voting shares in NBN Co

are held by a person, or persons, other than the Commonwealth, the

Communications Minister must, by written instrument, declare the

day to be the majority interest sale day for NBN Co.

(3) The declaration under subsection (2) is a legislative instrument, but

section 42 (disallowance) of the Legislative Instruments Act 2003

does not apply to the declaration.

(4) The majority interest sale day for NBN Co may be earlier than the

day on which the declaration under subsection (2) is registered

under the Legislative Instruments Act 2003.

Securities lending arrangements

(5) For the purposes of this section, if, under an agreement of the kind

known as a securities lending arrangement:

NBN Co's reporting obligations Part 4

Section 85

National Broadband Network Companies Bill 2010 No. , 2010 73

(a) at a particular time (the disposal time), the Commonwealth

disposed of a share in NBN Co (the borrowed share) to

another person (the borrower); and

(b) the Commonwealth may come under an obligation to:

(i) re-acquire the borrowed share from the borrower at a

later time; or

(ii) acquire an identical share from the borrower at a later

time;

the borrowed share is taken to be held by the Commonwealth

during the period:

(d) ending when the obligation mentioned in paragraph (b) is

discharged or can no longer arise.

Hybrid-security issuer company

(6) For the purposes of this section, the Commonwealth includes a

hybrid-security issuer company specified in a written declaration

made by the Finance Minister under this subsection.

(7) A declaration under subsection (6) is not a legislative instrument.

Part 5 Anti-avoidance

Section 86

74 National Broadband Network Companies Bill 2010 No. , 2010

Part 5--Anti-avoidance

86 Anti-avoidance

(1) An NBN corporation must not, either alone or together with one or

more other persons, enter into, begin to carry out or carry out a

scheme if it would be concluded that the NBN corporation did so

for the sole or dominant purpose of avoiding the application of any

provision of this Act in relation to:

(a) the NBN corporation; or

(b) any other NBN corporation.

(2) A contravention of subsection (1) is not an offence. However, a

contravention of subsection (1) is a ground for obtaining an

injunction under Part 6.

(3) A contravention of subsection (1) does not affect the validity of

any transaction.

(4) In this section:

scheme means:

(a) any agreement, arrangement, understanding, promise or

undertaking, whether express or implied; and

(b) any scheme, plan, proposal, action, course of action or course

of conduct, whether unilateral or otherwise.

Injunctions Part 6

Section 87

National Broadband Network Companies Bill 2010 No. , 2010 75

Part 6--Injunctions

87 Simplified outline

The following is a simplified outline of this Part:

�

The Federal Court may grant injunctions in relation to

contraventions of this Act.

88 Injunctions

Performance injunctions

(1)

If:

(a) a person has refused or failed, or is refusing or failing, or is

proposing to refuse or fail, to do an act or thing; and

(b) the refusal or failure was, is or would be a contravention of

this Act;

the Federal Court may, on the application of the Communications

Minister or the Finance Minister, grant an injunction requiring the

person to do that act or thing.

Restraining injunctions

(2) If a person has engaged, is engaging or is proposing to engage, in

any conduct in contravention of this Act, the Federal Court may,

on the application of the Communications Minister or the Finance

Minister, grant an injunction:

(a) restraining the person from engaging in the conduct; and

(b) if, in the Court's opinion, it is desirable to do so--requiring

the person to do something.

89 Interim injunctions

Grant of interim injunction

(1) If an application is made to the Federal Court for an injunction

under subsection 88(2), the Court may, before considering the

Part 6 Injunctions

Section 90

76 National Broadband Network Companies Bill 2010 No. , 2010

application, grant an interim injunction restraining a person from

engaging in conduct of a kind referred to in that subsection.

No undertakings as to damages

(2) The Federal Court is not to require the Communications Minister

or the Finance Minister, as a condition of granting an interim

injunction, to give any undertakings as to damages.

90 Discharge etc. of injunctions

The Federal Court may discharge or vary an injunction granted

under this Part.

91 Certain limits on granting injunctions not to apply

Restraining injunctions

(1) The power of the Federal Court under this Part to grant an

injunction restraining a person from engaging in conduct of a

particular kind may be exercised:

(a) if the Court is satisfied that the person has engaged in

conduct of that kind--whether or not it appears to the Court

that the person intends to engage again, or to continue to

engage, in conduct of that kind; or

(b) if it appears to the Court that, if an injunction is not granted,

it is likely that the person will engage in conduct of that

kind--whether or not the person has previously engaged in

conduct of that kind.

Performance injunctions

(2) The power of the Federal Court to grant an injunction requiring a

person to do an act or thing may be exercised:

(a) if the Court is satisfied that the person has refused or failed to

do that act or thing--whether or not it appears to the Court

that the person intends to refuse or fail again, or to continue

to refuse or fail, to do that act or thing; or

(b) if it appears to the Court that, if an injunction is not granted,

it is likely that the person will refuse or fail to do that act or

Part 7 Miscellaneous

Section 93

78 National Broadband Network Companies Bill 2010 No. , 2010

Part 7--Miscellaneous

93 Severability

(1) Without limiting its effect apart from this section, this Act (other

than Division 4 of Part 2) also has effect as provided by this

section.

Corporations power

(2) This Act (other than Division 4 of Part 2) also has the effect it

would have if:

(a) subsection (3) had not been enacted; and

(b) each reference in this Act (other than Division 4 of Part 2) to

an NBN corporation were, by express provision, confined to

an NBN corporation that is a constitutional corporation.

Communications power

(3) This Act (other than Division 4 of Part 2) also has the effect it

would have if:

(a) subsection (2) had not been enacted; and

(b) each reference in this Act (other than Division 4 of Part 2) to

an NBN corporation were, by express provision, confined to

an NBN corporation that carries on, proposes to carry on, or

has the object of carrying on, a business that consists of or

includes the supply of a carriage service.

94 Promotion of the long-term interests of end-users of carriage

services and of services supplied by means of carriage

services

For the purposes of this Act, the question whether a particular thing

promotes the long-term interests of end-users of carriage services

or of services supplied by means of carriage services is to be

determined in the same manner as it is determined for the purposes

of Part XIC of the Competition and Consumer Act 2010.

Miscellaneous Part 7

Section 95

National Broadband Network Companies Bill 2010 No. , 2010 79

95 NBN Co is not a public authority

NBN Co is taken for the purposes of the laws of the

Commonwealth, of a State or of a Territory:

(a) not to have been incorporated or established for a public

purpose or for a purpose of the Commonwealth; and

(b) not to be a public authority or an instrumentality or agency of

the Crown (however described); and

Commonwealth;

except so far as express provision is made by this Act or any other

law of the Commonwealth, or by a law of a State or of a Territory,

as the case may be.

96 Public Works Committee Act

The

Public Works Committee Act 1969 does not apply to an NBN

corporation.

97 Winding-up of NBN corporation not prevented by this Act

This Act does not, by implication, prevent an NBN corporation

being wound up in accordance with the Corporations Act 2001.

98 Rights of NBN corporation's shareholders, debenture holders

and creditors to be subject to this Act

The rights of an NBN corporation's shareholders, debenture

holders and creditors are subject to this Act.

99 Delegation

(1) The Communications Minister may, by writing, delegate to:

(a) the Secretary of the Department; or

(b) an SES employee, or acting SES employee, in the

Department;

all or any of the Communications Minister's powers and functions

under this Act (other than section 48).

Part 7 Miscellaneous

Section 100

80 National Broadband Network Companies Bill 2010 No. , 2010

(2) The Finance Minister may, by writing, delegate to:

(a) the Secretary of the Department of Finance; or

(b) an SES employee, or acting SES employee, in the

Department of Finance;

all or any of the Finance Minister's powers and functions under

this Act (other than section 50).

100 Compensation for acquisition of property

General

(1) If the operation of this Act (other than section 34) or the

regulations would result in an acquisition of property from a person

otherwise than on just terms, the Commonwealth is liable to pay a

reasonable amount of compensation to the person.

(2) If the Commonwealth and the person do not agree on the amount

of the compensation, the person may institute proceedings in the

Federal Court for the recovery from the Commonwealth of such

reasonable amount of compensation as the Court determines.

Direction to transfer asset

(3) If the operation of section 34 in relation to the transfer of an asset

to the transferee mentioned in that section would result in an

acquisition of property from a person otherwise than on just terms,

the transferee is liable to pay a reasonable amount of compensation

to the person.

(4) If the transferee and the person do not agree on the amount of the

compensation, the person may institute proceedings in the Federal

Court for the recovery from the transferee of such reasonable

amount of compensation as the Court determines.

Definitions

(5) In this section:

acquisition of property has the same meaning as in paragraph

51(xxxi) of the Constitution.

Schedule 1 NBN corporations

Clause 1

82 National Broadband Network Companies Bill 2010 No. , 2010

Schedule 1--NBN corporations

Note: See

section

1 NBN corporations

(1) For the purposes of this Act, each of the following is an NBN

corporation:

(a)

NBN

Co;

(b)

NBN

Tasmania;

control.

(2) Subclause (1) has effect subject to subclause (3).

(3) For the purposes of this Act, if:

(a) at a particular time (the start time), NBN Co starts to be in a

position to exercise control of a company that is a retail

carriage service provider; and

(b) if any other conditions are specified in the regulations--those

conditions are satisfied;

the company is taken not to be an NBN corporation during the

period:

(d) ending at whichever is the earlier of the following:

(i) the end of 12 months after the start time;

(ii) when NBN Co ceases to be in a position to exercise

control of the company.

Note:

For control of a company, see clause 2.

2 Control of a company

(1) For the purposes of this Schedule, 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.

(2) However, in determining that question:

NBN corporations Schedule 1

Clause 3

National Broadband Network Companies Bill 2010 No. , 2010 83

(a) the definition of associate in subsection 6(1) of the

Broadcasting Services Act 1992 does not apply; and

(b) the definition of associate in clause 3 of this Schedule applies

instead.

3 Associate

(1) For the purposes of this Schedule, an associate of NBN Co is:

(a) a partner of NBN Co; or

(b) if NBN Co or another person who is an associate of NBN Co

under another paragraph receives benefits or is capable of

benefiting under a trust--the trustee of the trust; or

(i) acts, or is accustomed to act; or

(ii) under a contract or an arrangement or understanding

(whether formal or informal) is intended or expected to

act;

in accordance with the directions, instructions or wishes of,

or in concert with:

(iii) NBN Co; or

(iv) NBN Co and another person who is an associate of

NBN Co under another paragraph; or

(d) another company if:

(i) the other company is a related body corporate of NBN

Co for the purposes of the Corporations Act 2001; or

(ii) NBN Co, or NBN Co and another person who is an

associate of NBN Co under another paragraph, is or are

in a position to exercise control of the other company.

Note:

For control of a company, see clause 2.

(2) However, for the purposes of determining whether a person is in a

position to exercise control of a company, persons are not

associates of each other if the ACCC is satisfied that:

(a) they do not act together in any relevant dealings relating to

the company; and

(b) neither of them is in a position to exert influence over the

business dealings of the other in relation to the company.

Schedule 2 Parliamentary Joint Committee on the Ownership of NBN Co

Clause 1

84 National Broadband Network Companies Bill 2010 No. , 2010

Schedule 2--Parliamentary Joint Committee

on the Ownership of NBN Co

Note:

See sections 5 and 50.

1 Parliamentary Joint Committee on the Ownership of NBN Co

(1) If a report of the Productivity Commission inquiry mentioned in

section 49 is tabled in the House of Representatives:

(a) a joint committee of members of the Parliament, to be known

as the Parliamentary Joint Committee on the Ownership of

NBN Co, is to be appointed according to the practice of the

Parliament with reference to the appointment of members to

serve on joint select committees of both Houses of the

Parliament; and

(b) the appointment is to occur within 15 sitting days of the

House of Representatives after the tabling of the report.

(2)

If:

(a) the Parliamentary Joint Committee on the Ownership of

NBN Co is appointed under subclause (1); and

(b) before the Parliamentary Joint Committee reports to both

Houses of the Parliament as mentioned in paragraph 3(1)(b)

of this Schedule, the House of Representatives expires by the

passing of time or is dissolved;

then, as soon as practicable after the commencement of the first

session of the next Parliament, a joint committee of members of the

Parliament, to be known as the Parliamentary Joint Committee on

the Ownership of NBN Co, is to be appointed according to the

practice of the Parliament with reference to the appointment of

members to serve on joint select committees of both Houses of the

Parliament.

(3) The Parliamentary Joint Committee on the Ownership of NBN Co

is to consist of 10 members, as follows:

(a) 5 Senators appointed by the Senate;

(b) 5 members of the House of Representatives appointed by that

House.

Parliamentary Joint Committee on the Ownership of NBN Co Schedule 2

Clause 1

National Broadband Network Companies Bill 2010 No. , 2010 85

(4) A member of the Parliament is not eligible for appointment as a

member of the Parliamentary Joint Committee on the Ownership of

NBN Co if he or she is:

(a) a Minister; or

(b) the President of the Senate; or

(d) the Deputy President and Chair of Committees of the Senate;

(e) the Deputy Speaker of the House of Representatives.

(5) A member of the Parliamentary Joint Committee on the Ownership

of NBN Co ceases to hold office:

(a) when the Parliamentary Joint Committee ceases to exist (see

clause 4); or

(b) when the House of Representatives expires by the passing of

time or is dissolved; or

of the paragraphs of subclause (4); or

(d) if he or she ceases to be a member of the House of the

Parliament by which he or she was appointed; or

(e) if he or she resigns his or her office as provided by

subclause (6) or (7).

(6) A member of the Parliamentary Joint Committee on the Ownership

of NBN Co appointed by the Senate may resign his or her office by

writing signed by him or her and delivered to the President of the

Senate.

(7) A member of the Parliamentary Joint Committee on the Ownership

of NBN Co appointed by the House of Representatives may resign

his or her office by writing signed by him or her and delivered to

the Speaker of that House.

(8) Either House of the Parliament may appoint one of its members to

fill a vacancy amongst the members of the Parliamentary Joint

Committee on the Ownership of NBN Co appointed by that House.

Schedule 2 Parliamentary Joint Committee on the Ownership of NBN Co

Clause 2

86 National Broadband Network Companies Bill 2010 No. , 2010

2 Powers and proceedings of the Parliamentary Joint Committee

All matters relating to the powers and proceedings of the

Parliamentary Joint Committee on the Ownership of NBN Co are

to be determined by resolution of both Houses of the Parliament.

3 Duties of the Parliamentary Joint Committee

(1) The duties of the Parliamentary Joint Committee on the Ownership

of NBN Co are as follows:

(a) to examine the report of the Productivity Commission inquiry

mentioned in section 49;

(b) to report to both Houses of the Parliament on that

examination within 180 days after the Parliamentary Joint

Committee was appointed;

which is referred to it by either House of the Parliament, and

to report to that House on that question.

(2) The Parliamentary Joint Committee's examination of the report of

the Productivity Commission inquiry may deal with any matter

appearing in, or arising out of, the report of the Productivity

Commission inquiry.

4 Winding up of the Parliamentary Joint Committee

The Parliamentary Joint Committee on the Ownership of NBN Co

ceases to exist immediately after the Parliamentary Joint

Committee has reported to both Houses of the Parliament, under

paragraph 3(1)(b) of this Schedule, on the Committee's

examination of the report of the Productivity Commission inquiry

mentioned in section 49.

Commonwealth of Australia Bills

NATIONAL BROADBAND NETWORK COMPANIES BILL 2010