TELECOMMUNICATIONS LEGISLATION AMENDMENT (COMPETITION AND CONSUMER) BILL 2019

2019

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Telecommunications Legislation

Amendment (Competition and

Consumer) Bill 2019

No. , 2019

(Communications, Cyber Safety and the Arts)

A Bill for an Act to amend legislation relating to

telecommunications, and for other purposes

No. , 2019

Telecommunications Legislation Amendment (Competition and

Consumer) Bill 2019

Contents

Short title ........................................................................................... 1

Commencement ................................................................................. 1

Schedules ........................................................................................... 2

Transitional--election to be bound by deemed standard

functional separation undertaking ...................................................... 3

Schedule 1--Layer 2 bitstream services

Part 1--Amendments

Competition and Consumer Act 2010

Telecommunications Act 1997

Part 2--Transitional provisions

Schedule 2--Local access lines

Carrier Licence Conditions (Networks supplying Superfast Carriage

Services to Residential Customers) Declaration 2014

Competition and Consumer Act 2010

Legislation (Exemptions and Other Matters) Regulation 2015

Telecommunications Act 1997

Schedule 3--Statutory infrastructure providers etc.

Part 1--Amendments

Division 1--Service provider determinations

Telecommunications Act 1997

Division 2--Other amendments

Competition and Consumer Act 2010

Telecommunications Act 1997

101

Part 2--Repeals

135

Carrier Licence Conditions (NT Technology Services Pty Ltd)

Declaration 2014

135

Carrier Licence Conditions (OptiComm Co Pty Ltd) Declaration 2013

135

Carrier Licence Conditions (Pivit Pty Ltd) Declaration 2013

135

Carrier Licence Conditions (Urban Renewal Authority Victoria t/a

Places Victoria Pty Ltd) Declaration 2014

135

Telecommunications Legislation Amendment (Competition and

Consumer) Bill 2019

No. , 2019

Schedule 4--Funding of fixed wireless broadband and satellite

broadband

136

Competition and Consumer Act 2010

136

Telecommunications Act 1997

137

Telecommunications (Consumer Protection and Service Standards)

Act 1999

139

Schedule 5--NBN Co transparency

197

National Broadband Network Companies Act 2011

197

No. , 2019

Telecommunications Legislation Amendment (Competition and

Consumer) Bill 2019

A Bill for an Act to amend legislation relating to

telecommunications, and for other purposes

The Parliament of Australia enacts:

1 Short title

This Act is the

Telecommunications Legislation Amendment

(Competition and Consumer) Act 2019.

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.

Telecommunications Legislation Amendment (Competition and

Consumer) Bill 2019

No. , 2019

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. Sections 1 to 4

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1

The day after this Act receives the Royal

Assent.

3. Schedule 2

The day after the end of the period of 3

months beginning on the day this Act

receives the Royal Assent.

4. Schedule 3,

Part 1, Division 1

The day after this Act receives the Royal

Assent.

5. Schedule 3,

Part 1, Division 2

The earlier of:

(a) a single day to be fixed by Proclamation;

and

(b) 1 July 2020.

6. Schedule 3,

Part 2

Immediately after the commencement of the

provisions covered by table item 5.

7. Schedules 4

and 5

The day after this Act receives the Royal

Assent.

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.

3 Schedules

(1) Legislation that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

No. , 2019

Telecommunications Legislation Amendment (Competition and

Consumer) Bill 2019

(2) The provisions of the

Carrier Licence Conditions (Networks

supplying Superfast Carriage Services to Residential Customers)

Declaration 2014

amended or inserted by this Act, and any other

provisions of that instrument, may be varied by an instrument

made under subsection 63(5) of the

Telecommunications Act 1997

or revoked by an instrument made under subsection 63(6) of that

Act (see subsection 13(5) of the

Legislation Act 2003

(3) The provisions of the

Legislation (Exemptions and Other Matters)

Regulation 2015

amended or inserted by this Act, and any other

provisions of that instrument, may be amended or repealed by

regulations made under section 62 of the

Legislation Act 2003

(see

subsection 13(5) of the

Legislation Act 2003

4 Transitional--election to be bound by deemed standard functional

separation undertaking

If:

(a) in accordance with section 4 of the

Acts Interpretation Act

1901

, a determination is made under subsection 151B(1) of

the

Telecommunications Act 1997

before the commencement

of Schedule 2 to this Act; and

(b) a corporation is included in a class of corporations specified

in the determination;

the corporation may, before the commencement of that Schedule,

give an election to be bound by the determination.

Schedule 1

Layer 2 bitstream services

Part 1

Amendments

Telecommunications Legislation Amendment (Competition and

Consumer) Bill 2019

No. , 2019

Schedule 1--Layer 2 bitstream services

Part 1--Amendments

Competition and Consumer Act 2010

1 Section 152AC

Repeal the following definitions:

(a) definition of

designated superfast telecommunications

network

;

(b) definition of

Layer 2 bitstream service

;

national broadband network

;

(d) definition of

superfast carriage service

2 Section 152AGA

Repeal the section.

3 Subsections 152AL(3C) to (3H)

Repeal the subsections.

4 Subsection 152AL(8CA)

Repeal the subsection.

5 Subsections 152ALA(1) and (5)

Omit "(other than a declaration mentioned in subsection 152AL(3C))".

6 Subsection 152ALA(5A)

Repeal the subsection.

7 Subsection 152AO(4)

Repeal the subsection (including the note).

8 Sections 152ARA and 152ARB

Repeal the sections.

Layer 2 bitstream services

Schedule 1

Amendments

Part 1

No. , 2019

Telecommunications Legislation Amendment (Competition and

Consumer) Bill 2019

9 Paragraph 152AZ(aa)

Omit "152ARA, 152ARB,".

10 Paragraph 152BA(2)(aa)

Omit "152ARA, 152ARB,".

11 Subsection 152BB(1AA)

Repeal the subsection.

12 Subsection 152BC(4AA)

Repeal the subsection.

13 Subsections 152BCB(4G) to (4J)

Repeal the subsections.

14 Subsection 152BCB(5)

Omit ", (4A) or (4G)", substitute "or (4A)".

15 Subsections 152BDA(4G) to (4J)

Repeal the subsections.

16 Subsection 152BDA(5)

Omit ", (4A) or (4G)", substitute "or (4A)".

17 Subsection 152BE(1B)

Repeal the subsection.

18 Sections 152BEBE to 152BEBG

Repeal the sections.

19 Section 152BEC

Omit ", 152BEBC, 152BEBE and 152BEBF", substitute "and

152BEBC".

20 Subsection 152BED(2)

Omit ", 152BEBC, 152BEBE and 152BEBF", substitute "and

152BEBC".

Schedule 1

Layer 2 bitstream services

Part 1

Amendments

Telecommunications Legislation Amendment (Competition and

Consumer) Bill 2019

No. , 2019

21 Subparagraphs 152CJH(a)(ia) and (ib)

Repeal the subparagraphs.

22 Subparagraph 152CJH(a)(iii)

Omit "and (4G) to (4J)".

23 Subparagraph 152CJH(a)(iv)

Omit "and (4G) to (4J)".

Telecommunications Act 1997

23A Section 7 (paragraph (a) of the definition of

Layer 2

bitstream service

)

Repeal the paragraph, substitute:

(a) a Layer 2 bitstream service (within the ordinary meaning of

that expression); and

23B Section 7 (definition of

Layer 2 bitstream service

)

Omit "this purpose,

Layer 2

", substitute "the purposes of determining

the ordinary meaning of the expression used in paragraph (a), assume

that

Layer 2

24 Part 7

Repeal the Part.

25 Subsection 349(16) (definition of

local access line

)

Repeal the definition, substitute:

local access line

has the meaning given by section 349A.

26 After section 349

Insert:

349A Local access line

(1) For the purposes of this Part, a

local access line

is a line that is part

of the infrastructure of a local access network.

Layer 2 bitstream services

Schedule 1

Amendments

Part 1

No. , 2019

Telecommunications Legislation Amendment (Competition and

Consumer) Bill 2019

(2) However, a line does not form part of a

local access line

to the

extent that the line is on the customer side of the boundary of a

telecommunications network.

(3) For the purposes of this section, the

boundary of a

telecommunications network

is to be determined in the same

manner in which it is determined under section 22 for the purposes

of sections 20, 21 and 30.

(4) For the purposes of this section,

local access network

has the

meaning generally accepted within the telecommunications

industry.

Schedule 1

Layer 2 bitstream services

Part 2

Transitional provisions

Telecommunications Legislation Amendment (Competition and

Consumer) Bill 2019

No. , 2019

Part 2--Transitional provisions

27 Transitional

--exemptions

(1)

If, immediately before the commencement of this item, an instrument

was in force under subsection 141A(1) of the

Telecommunications Act

1997

, the instrument has effect, after the commencement of this item, as

if:

(a) it had been made under subsection 144(1) of that Act; and

(b) each reference in the instrument to section 141 of that Act

were a reference to section 143 of that Act.

(2)

If, immediately before the commencement of this item, an instrument

was in force under subsection 141A(2) of the

Telecommunications Act

1997

, the instrument has effect, after the commencement of this item, as

if:

(a) it had been made under subsection 144(2) of that Act; and

(b) each reference in the instrument to section 141 of that Act

were a reference to section 143 of that Act.

(3)

If, immediately before the commencement of this item, an instrument

was in force under subsection 141A(3) of the

Telecommunications Act

1997

, the instrument has effect, after the commencement of this item, as

if:

(a) it had been made under subsection 144(3) of that Act; and

(b) each reference in the instrument to subsections 141(2) and (3)

of that Act were a reference to subsection 143(2) of that Act.

Local access lines

Schedule 2

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Telecommunications Legislation Amendment (Competition and

Consumer) Bill 2019

Schedule 2--Local access lines

Carrier Licence Conditions (Networks supplying Superfast

Carriage Services to Residential Customers)

Declaration 2014

1 Section 3

Repeal the section.

2 Subsection 4(1)

Insert:

designated commencement date

means the date on which

Schedule 2 to the

Telecommunications Legislation Amendment

(Competition and Consumer) Act 2019

commences.

functional separation undertaking

has the same meaning as in

Part 8 of the

Telecommunications Act 1997

3 Subsection 4(1) (at the end of the definition of

local access

line

)

Add "(as that section stood immediately before the commencement of

Schedule 2 to the

Telecommunications Legislation Amendment

(Competition and Consumer) Act 2019

)".

4 Subsection 4(1) (at the end of the definition of

superfast

carriage service

)

Add "(as that section stood immediately before the commencement of

Schedule 2 to the

Telecommunications Legislation Amendment

(Competition and Consumer) Act 2019

)".

5 Section 5

Before "A carrier licence", insert "(1)".

6 Section 5

Omit "residential customers.", substitute:

residential customers, and:

Schedule 2

Local access lines

Telecommunications Legislation Amendment (Competition and

Consumer) Bill 2019

No. , 2019

(a) the network came into existence before the designated

commencement date; and

(b) the network has not been altered, upgraded or extended on or

after the designated commencement date; and

force.

7 At the end of section 5

Add:

(2) A reference in paragraph (1)(c) to a functional separation

undertaking given by a carrier is a reference to a functional

separation undertaking given by the carrier either:

(a) alone; or

(b) jointly with one or more other persons.

Competition and Consumer Act 2010

11 After paragraph 151BU(4)(da)

Insert:

(db) the operation of Part 8 of the

Telecommunications Act 1997

(which deals with local access lines); or

12 After subparagraph 151BUA(2)(b)(iia)

Insert:

(iib) the operation of Part 8 of the

Telecommunications Act 1997

(which deals with local access lines); or

13 After subparagraph 151BUB(2)(b)(iia)

Insert:

(iib) the operation of Part 8 of the

Telecommunications Act 1997

(which deals with local access lines); or

14 After subparagraph 151BUC(2)(b)(iia)

Insert:

(iib) the operation of Part 8 of the

Telecommunications Act 1997

(which deals with local access lines); or

Local access lines

Schedule 2

No. , 2019

Telecommunications Legislation Amendment (Competition and

Consumer) Bill 2019

Legislation (Exemptions and Other Matters)

Regulation 2015

15 Section 12 (table item 61, colu

mn headed "Legislative

instrument", after paragraph (a))

Insert:

(aa) the

Carrier Licence Conditions (Networks supplying Superfast Carriage Services to

Residential Customers) Declaration 2014

made under subsection 63(2) of that Act;

Telecommunications Act 1997

17 After subsection 69(4)

Insert:

(4A) Subsection (1) does not apply to a condition set out in Part 1 of

Schedule 1 in so far as that condition relates to section 142C, 143,

143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH or 151ZI.

Note:

Sections 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG,

151ZH and 151ZI are set out in Part 8 (local access lines).

18 After subsection 70(1)

Insert:

(1A) Subsection (1) does not apply to a condition set out in Part 1 of

Schedule 1 in so far as that condition relates to section 142C, 143,

143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH or 151ZI.

Note:

Sections 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG,

151ZH and 151ZI are set out in Part 8 (local access lines).

19 Before paragraph 70(5)(a)

Insert:

(aaa) the condition set out in Part 1 of Schedule 1 in so far as that

condition relates to section 142C, 143, 143B, 151ZA, 151ZB,

151ZD, 151ZF, 151ZG, 151ZH or 151ZI;

20 After subsection 102(4)

Insert:

Schedule 2

Local access lines

Telecommunications Legislation Amendment (Competition and

Consumer) Bill 2019

No. , 2019

(4A) Subsection (1) does not apply to the rule set out in Part 1 of

Schedule 2 in so far as that rule relates to section 142C, 143, 143B,

151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH or 151ZI.

Note:

Sections 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG,

151ZH and 151ZI are set out in Part 8 (local access lines).

21 After subsection 103(1)

Insert:

(1A) Subsection (1) does not apply to the rule set out in Part 1 of

Schedule 2 in so far as that rule relates to section 142C, 143, 143B,

151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH or 151ZI.

Note:

Sections 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG,

151ZH and 151ZI are set out in Part 8 (local access lines).

22 After subsection 103(4E)

Insert:

(4F) The ACCC may issue a formal warning if a person contravenes the

service provider rule set out in Part 1 of Schedule 2 in so far as that

rule relates to section 142C, 143, 143B, 151ZA, 151ZB, 151ZD,

151ZF, 151ZG, 151ZH or 151ZI.

23 Part 8 (heading)

Repeal the heading, substitute:

Part 8--Local access lines

24 Section 142

Repeal the section, substitute:

142 Simplified outline of this Part

•

A controller of a local access line (other than a line that is part

of the infrastructure of the national broadband network) must

not use the line to supply an eligible service to a person other

than a carrier or a service provider, if:

Local access lines

Schedule 2

No. , 2019

Telecommunications Legislation Amendment (Competition and

Consumer) Bill 2019

(a)

the line came into existence, or was upgraded, on or

after the designated commencement date; and

(b)

the line is used, or is proposed to be used, to supply a

superfast carriage service wholly or principally to

residential customers, or prospective residential

customers, in Australia; and

(c)

no functional separation undertaking is in force.

•

A controller of a telecommunications network (other than the

national broadband network) must not use a local access line

to supply an eligible service to a person other than a carrier or

a service provider, if:

(a)

the line is part of the infrastructure of the network; and

(b)

the network came into existence, or was upgraded, on or

after 1 January 2011, but before the designated

commencement date; and

(c)

the network is used, or is proposed to be used, to supply

a superfast carriage service wholly or principally to

residential customers, or prospective residential

customers, in Australia; and

(d)

no functional separation undertaking is in force.

25 Section 142A (definition of

alter

)

After "network", insert "or line".

26 Section 142A

Insert:

associate

has the meaning given by section 152.

business unit

means a part of a corporation.

close proximity

has a meaning affected by section 162.

corporation

means a body corporate.

customer interface

means an interface for the purposes of:

(a) ordering; and

(b) provisioning; and

Schedule 2

Local access lines

Telecommunications Legislation Amendment (Competition and

Consumer) Bill 2019

No. , 2019

(d) service activation; and

(e) fault rectification;

in relation to the supply of local access line services.

declared service

has the same meaning as in Part XIC of the

Competition and Consumer Act 2010

designated carriage service

has the meaning given by

section 142BD.

designated commencement date

means the date on which

Schedule 2 to the

Telecommunications Legislation Amendment

(Competition and Consumer) Act 2019

commences.

fixed-line carriage service

means a carriage service that is

supplied using a line to premises occupied or used by an end-user.

functional

includes organisational.

functional separation undertaking

means:

(a) a standard functional separation undertaking; or

(b) a joint functional separation undertaking.

fundamental provision

of a functional separation undertaking has

the meaning given by subsection 151A(9) or 151C(9).

joint functional separation undertaking

means an undertaking

under section 151C.

local access line service

means an eligible service supplied using a

local access line.

multi-unit building

means:

(a) a building that has 2 or more units for occupation as a place

of residence or business; or

(b) a building in a complex, where each building has 2 or more

units for occupation as a place of residence or business.

residential customer

has a meaning affected by section 161.

Local access lines

Schedule 2

No. , 2019

Telecommunications Legislation Amendment (Competition and

Consumer) Bill 2019

retail business unit

of a corporation means a business unit by

which the corporation deals with the corporation's retail customers

in relation to the supply of local access line services.

retail customer

means a customer other than a wholesale customer.

retailer

, when used in relation to a joint functional separation

undertaking, means a person identified in the undertaking as the

retailer, or one of the retailers, for the purposes of the undertaking.

Note:

See paragraph 151C(2)(a).

27 Section 142A (definition of

small business customer

)

Repeal the definition.

28 Section 142A

Insert:

standard functional separation undertaking

means an undertaking

under section 151A.

29 Section 142A (paragraph (b) of the definition of

superfast

carriage service

)

Omit "more than 25 megabits per second", substitute "25 megabits per

second or more".

30 Section 142A

Insert:

supply

, in relation to a service, includes supply of the service by a

corporation to itself. This definition does not apply to

subsection 142C(2) or 143(2).

unsatisfactory compliance record

has a meaning affected by

section 142BC.

31 Section 142A (definition of

upgrade

)

After "network", insert "or line".

32 Section 142A

Insert:

Schedule 2

Local access lines

Telecommunications Legislation Amendment (Competition and

Consumer) Bill 2019

No. , 2019

wholesale business unit

of a corporation means a business unit by

which the corporation deals with its wholesale customers, and its

retail business unit, in relation to the supply of local access line

services.

wholesale customer

means a customer that is:

(a) a carrier; or

(b) a service provider.

wholesaler

, when used in relation to a joint functional separation

undertaking, means a person identified in the undertaking as the

wholesaler, or one of the wholesalers, for the purposes of the

undertaking.

Note:

See paragraph 151C(2)(a).

worker

means an individual who is:

(a) an employee; or

(b) a contractor or subcontractor; or

33 At the end of Division 1 of Part 8

Add:

142B Functional separation undertaking given by a person

A reference in this Part to a functional separation undertaking

given by a person is a reference to a functional separation

undertaking given by the person either:

(a) alone; or

(b) jointly with one or more other persons.

142BA 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 Part, 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

Local access lines

Schedule 2

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Telecommunications Legislation Amendment (Competition and

Consumer) Bill 2019

142BB Terms and conditions

For the purposes of this Part:

(a) a notional contract (however described) between a

corporation's business units is to be treated as if it were an

actual contract; and

(b) any terms and conditions (whether or not relating to price or

a method of ascertaining price) in such a notional contract are

to be treated as if they were actual terms and conditions.

142BC Unsatisfactory compliance record

For the purposes of this Part, the question of whether a person has

an unsatisfactory compliance record in relation to functional

separation is to be determined having regard only to:

(a) any breaches by the person of functional separation

undertakings given by the person, so long as the breaches

occurred when the undertakings were in force; and

(b) any contraventions by the person of section 143B, 151ZA,

151ZB, 151ZF, 151ZG, 151ZH or 151ZI.

142BD Designated carriage service

(1) For the purposes of this Part,

designated carriage service

means:

(a) if a carriage service is specified in an instrument under

subsection (2)--that carriage service; or

(b) otherwise--a Layer 2 bitstream service.

(2) The ACCC may, by legislative instrument, specify a carriage

service for the purposes of paragraph (1)(a).

(3) The ACCC must not specify a carriage service under subsection (2)

unless:

(a) the carriage service enables end-users to download

communications; and

(b) the download transmission speed of the carriage service is

normally 25 megabits per second or more; and

occupied or used by an end-user; and

Schedule 2

Local access lines

Telecommunications Legislation Amendment (Competition and

Consumer) Bill 2019

No. , 2019

(d) there is in force a declaration under subsection 152AL(3) of

the

Competition and Consumer Act 2010

that relates to the

carriage service.

34 Before section 143

Insert:

142C Supply of eligible services to be on wholesale basis--lines that

come into existence on or after the designated

commencement date etc.

Scope

(1) This section applies to a local access line if:

(a) the line is part of the infrastructure of a telecommunications

network in Australia; and

(b) the network is not the national broadband network; and

carriage service wholly or principally to residential

customers, or prospective residential customers, in Australia;

and

(d) either:

(i) the line came into existence on or after the designated

commencement date; or

(ii) the line was altered or upgraded on or after the

designated commencement date, and as a result of the

alteration or upgrade, the line became capable of being

used to supply a superfast carriage service to residential

customers in Australia.

Note 1:

See also section 156A (certain lines deemed to have come into

existence on or after the designated commencement date).

Note 2:

See also section 158A (certain line extensions deemed to be local

access lines in their own right, and to have come into existence on or

after the designated commencement date).

Note 3:

For exemptions, see sections 143A to 151.

Use of line

(2) If a person (the

first person

Local access lines

Schedule 2

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Telecommunications Legislation Amendment (Competition and

Consumer) Bill 2019

(a) is in a position to exercise control of the line; or

(b) is an associate of a person who is in a position to exercise

control of the line;

the first person must not, on or after the designated commencement

date, use the line, either alone or jointly with one or more other

persons, to supply an eligible service unless the service is supplied

to:

(d) a service provider.

Note:

For when a person is in a position to exercise control of a line, see

section 155A.

(3) Subsection (2) does not apply to the use of the line if a functional

separation undertaking given by the first person is in force, unless:

(a) the ACCC has given a notice under section 151W revoking

the undertaking; and

(b) the revocation has not taken effect; and

Note 1:

A functional separation undertaking relates to the supply of eligible

services using a local access line, irrespective of when the line came

into existence.

Note 2:

See also section 142B.

Ancillary contraventions

(4) A person must not:

(a) aid, abet, counsel or procure a contravention of

subsection (2); or

(b) induce, whether by threats or promises or otherwise, a

contravention of subsection (2); or

or party to, a contravention of subsection (2); or

(d) conspire with others to effect a contravention of

subsection (2).

Civil penalty provisions

(5) Subsections (2) and (4) are

civil penalty provisions

Schedule 2

Local access lines

Telecommunications Legislation Amendment (Competition and

Consumer) Bill 2019

No. , 2019

Note:

Part 31 provides for pecuniary penalties for breaches of civil penalty

provisions.

35 Section 143 (heading)

Repeal the heading, substitute:

143 Supply of eligible services to be on wholesale basis--networks in

existence before the designated commencement date etc.

36 Paragraph 143(1)(b)

Omit "or small business" (wherever occurring).

37 Subparagraph 143(1)(d)(i)

After "2011", insert ", but before the designated commencement date".

38 Subparagraph 143(1)(d)(ii)

After "2011", insert ", but before the designated commencement date,".

39 Subparagraph 143(1)(d)(ii)

Omit "or small business" (wherever occurring).

40 Subsection 143(1) (note 2)

Omit "144", substitute "143A".

41 Subsections 143(2) and (3)

Repeal the subsections (including the penalty), substitute:

Use of network

(2) If a person (the

first person

(a) is in a position to exercise control of the network; or

(b) is an associate of a person who is in a position to exercise

control of the network;

the first person must not use the line, either alone or jointly with

one or more other persons, to supply an eligible service unless the

service is supplied to:

(d) a service provider.

Local access lines

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Telecommunications Legislation Amendment (Competition and

Consumer) Bill 2019

Note:

For when a person is in a position to exercise control of a network, see

section 155.

(3) Subsection (2) does not apply to the use of the line if a functional

separation undertaking given by the first person is in force, unless:

(a) the ACCC has given a notice under section 151W revoking

the undertaking; and

(b) the revocation has not taken effect; and

Note 1:

A functional separation undertaking relates to the supply of eligible

services using a local access line, irrespective of when the line came

into existence.

Note 2:

See also section 142B.

(4) Subsection (2) does not apply to the use of the line if:

(a) the

Carrier Licence Conditions (Networks supplying

Superfast Carriage Services to Residential Customers)

Declaration 2014

is in force; and

(b) the line is part of the infrastructure of a designated

telecommunications network (within the meaning of that

declaration); and

(d) as a result of the application of section 5 of that declaration to

the network, the carrier licence held by the carrier is subject

to the conditions set out in subsections 6(5), (5A), (6), (7)

and (8) of that declaration.

Ancillary contraventions

(5) A person must not:

(a) aid, abet, counsel or procure a contravention of

subsection (2); or

(b) induce, whether by threats or promises or otherwise, a

contravention of subsection (2); or

or party to, a contravention of subsection (2); or

(d) conspire with others to effect a contravention of

subsection (2).

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Civil penalty provisions

(6) Subsections (2) and (5) are

civil penalty provisions

Note:

Part 31 provides for pecuniary penalties for breaches of civil penalty

provisions.

42 After section 143

Insert:

143AA Judicial enforcement of prohibitions

(1) If the Federal Court is satisfied that a person has, on or after the

designated commencement date, contravened subsection 142C(2)

or (4) or 143(2) or (5), the Court may, on the application of:

(a) the ACCC; or

(b) a carrier; or

make all or any of the following orders:

(d) an order directing the person to comply with that subsection;

(e) an order directing the person to compensate any other person

(who may be the applicant) who has suffered loss or damage

as a result of the contravention;

(f) any other order that the Court thinks appropriate.

(2) The Federal Court may discharge or vary an order granted under

this section.

Division 2A--Exemptions

143A Class exemptions

Determination providing for exemption

(1) The ACCC may, by legislative instrument, determine that, if:

(a) a person is included in a specified class of persons; and

(b) the person has, by written notice given to the ACCC, elected

to be bound by the determination; and

cancelled the election; and

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(d) in a case where the person is not a member of an associated

group--the number of residential customers to whom the

person supplies fixed-line carriage services does not exceed:

(i) 2,000; or

(ii) if a higher number (not exceeding 12,000) is specified

in the regulations--that higher number; and

(e) in a case where the person is a member of an associated

group--the total number of residential customers to whom

the members of the group supply fixed-line carriage services

does not exceed:

(i) 2,000; or

(ii) if a higher number (not exceeding 12,000) is specified

in the regulations--that higher number;

the person is exempt from section 142C.

Note:

For

associated group

, see subsection (10) of this section.

(2) The ACCC may, by legislative instrument, determine that, if:

(a) a person is included in a specified class of persons; and

(b) the person has, by written notice given to the ACCC, elected

to be bound by the determination; and

cancelled the election; and

(d) in a case where the person is not a member of an associated

group--the number of residential customers to whom the

person supplies fixed-line carriage services does not exceed:

(i) 2,000; or

(ii) if a higher number (not exceeding 12,000) is specified

in the regulations--that higher number; and

(e) in a case where the person is a member of an associated

group--the total number of residential customers to whom

the members of the group supply fixed-line carriage services

does not exceed:

(i) 2,000; or

(ii) if a higher number (not exceeding 12,000) is specified

in the regulations--that higher number;

the person is exempt from section 143.

Note:

For

associated group

, see subsection (10) of this section.

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(3) A determination under subsection (1) or (2) is subject to the

following conditions and limitations:

(a) the person must ensure that a designated carriage service is

available for supply to wholesale customers, or prospective

wholesale customers, of the person;

(b) the person must not discriminate between the person's

wholesale customers, or the person's prospective wholesale

customers, in relation to the supply of designated carriage

services;

to the supply of designated carriage services;

(d) the person must not, in carrying on any of the following

activities, discriminate between the person's wholesale

customers or the person's prospective wholesale customers:

(i) developing a new eligible service;

(ii) enhancing an eligible service;

(iii) extending or enhancing the capability of a facility or

telecommunications network by means of which an

eligible service is, or is to be, supplied;

(iv) planning for a facility or telecommunications network

by means of which an eligible service is, or is to be,

supplied;

(v) an activity that is preparatory to the supply of an eligible

service;

(vi) an activity that is ancillary or incidental to the supply of

an eligible service;

(vii) giving information to service providers about any of the

above activities;

(e) the person must not discriminate in favour of itself in relation

to the carrying on of any of the following activities:

(i) developing a new eligible service;

(ii) enhancing an eligible service;

(iii) extending or enhancing the capability of a facility or

telecommunications network by means of which an

eligible service is, or is to be, supplied;

(iv) planning for a facility or telecommunications network

by means of which an eligible service is, or is to be,

supplied;

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(v) an activity that is preparatory to the supply of an eligible

service;

(vi) an activity that is ancillary or incidental to the supply of

an eligible service;

(vii) giving information to service providers about any of the

above activities;

(f) such other conditions and limitations as are specified in the

determination.

Note 1:

For compliance with conditions and limitations, see section 143B.

Note 2:

For judicial enforcement of conditions and limitations, see

section 143C.

(4) The rule in paragraph (3)(b) does not prevent discrimination

against a wholesale customer, or prospective wholesale customer,

if the person has reasonable grounds to believe that the wholesale

customer or prospective wholesale customer would fail, to a

material extent, to comply with the terms and conditions on which

the person supplies designated carriage services.

(5) Examples of grounds for believing as mentioned in subsection (4)

include:

(a) evidence that the wholesale customer or prospective

wholesale customer is not creditworthy; and

(b) repeated failures by the wholesale customer or prospective

wholesale customer to comply with the terms and conditions

on which the person supplied eligible services (whether or

not using the line).

(6) A determination under subsection (1) or (2) must not specify a

condition or limitation of a kind specified in a determination under

subsection (7).

(7) The Minister may, by legislative instrument, determine one or

more kinds of condition or limitation for the purposes of

subsection (6).

Criteria for making determination

(8) In deciding whether to make a determination under subsection (1)

or (2), the ACCC must have regard to:

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(a) whether the determination promotes the long-term interests

of end-users of carriage services or of services supplied by

means of carriage services; and

(b) the matters (if any) specified in a determination under

subsection (9); and

(9) The Minister may, by legislative instrument, determine one or

more matters for the purposes of paragraph (8)(b).

Associated group

(10) For the purposes of this section, if:

(a) a person is in a position to exercise control of:

(i) a local access line; or

(ii) a telecommunications network; and

(b) the person has one or more associates;

then:

(d) the associated group consists of the person and those

associates.

143B Compliance with conditions and limitations of exemption

determinations

(1) A person must, on or after the designated commencement date,

comply with the conditions or limitations of a determination under

subsection 143A(1) or (2).

Ancillary contraventions

(2) A person must not:

(a) aid, abet, counsel or procure a contravention of

subsection (1); or

(b) induce, whether by threats or promises or otherwise, a

contravention of subsection (1); or

or party to, a contravention of subsection (1); or

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(d) conspire with others to effect a contravention of

subsection (1).

Civil penalty provisions

(3) Subsections (1) and (2) are

civil penalty provisions

Note:

Part 31 provides for pecuniary penalties for breaches of civil penalty

provisions.

143C Judicial enforcement of conditions and limitations of

exemption determinations

(1) If the Federal Court is satisfied that a person has, on or after the

designated commencement date, contravened any of the conditions

or limitations of a determination under subsection 143A(1) or (2),

the Court may, on the application of:

(a) the ACCC; or

(b) a carrier; or

make all or any of the following orders:

(d) an order directing the person to comply with the condition or

limitation;

(e) an order directing the person to compensate any other person

(who may be the applicant) who has suffered loss or damage

as a result of the contravention;

(f) any other order that the Court thinks appropriate.

(2) The Federal Court may discharge or vary an order granted under

this section.

143D Publication of list of persons who have elected to be bound by

exemption determinations

If a determination is in force under subsection 143A(1) or (2), the

ACCC must publish on its website a list setting out the names of

the persons who:

(a) have elected to be bound by the determination; and

(b) have not cancelled the election concerned.

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143E Exemptions--certain real estate development projects etc.

(1) If:

(a) a part of the infrastructure of a telecommunications network

is situated in a particular area that:

(i) on 1 January 2011, was being developed as a particular

stage of a real estate development project; or

(ii) before 1 January 2011, was developed as a particular

stage of a real estate development project; and

(b) on or after the designated commencement date, the network

is extended to another area that is being, or is to be,

developed as another stage of the project; and

and

(d) the infrastructure mentioned in paragraph (c) is part of the

extension;

the infrastructure mentioned in paragraph (c) is exempt from

sections 142C and 143.

(2) If:

(a) a part of the infrastructure of a telecommunications network

is situated in a particular area that:

(i) on 1 January 2011, was being developed as a particular

stage of a real estate development project; or

(ii) before 1 January 2011, was developed as a particular

stage of a real estate development project; and

(b) during the period:

(i) beginning at the start of the designated commencement

date; and

(ii) ending when the Minister makes a declaration under

section 48 of the

National Broadband Network

Companies Act 2011

that, in the Minister's opinion, the

national broadband network should be treated as built

and fully operational;

the network is extended to an area that is:

(iii) the project area of a real estate development project

specified under subsection (3); or

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(iv) the project area of a real estate development project that

belongs to a class of real estate development projects

specified under subsection (5); or

(v) the project area of a building redevelopment project

specified under subsection (6); or

(vi) the project area of a building redevelopment project that

belongs to a class of building redevelopment projects

specified under subsection (8); and

and

(d) the infrastructure mentioned in paragraph (c) is part of the

extension;

the infrastructure mentioned in paragraph (c) is exempt from

sections 142C and 143.

(3) The Minister may, by notifiable instrument, specify one or more

real estate development projects for the purposes of

subparagraph (2)(b)(iii).

(4) Subsection 13(3) of the

Legislation Act 2003

does not apply to

subsection (3) of this section.

(5) The Minister may, by legislative instrument, specify one or more

classes of real estate development projects for the purposes of

subparagraph (2)(b)(iv).

(6) The Minister may, by notifiable instrument, specify one or more

building redevelopment projects for the purposes of

subparagraph (2)(b)(v).

(7) Subsection 13(3) of the

Legislation Act 2003

does not apply to

subsection (6) of this section.

(8) The Minister may, by legislative instrument, specify one or more

classes of building redevelopment projects for the purposes of

subparagraph (2)(b)(vi).

Building redevelopment project

(9) For the purposes of this section, a project is a

building

redevelopment project

if the project involves:

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(a) the significant refurbishment or repurposing of one or more

buildings so as to bring into existence one or more building

units; and

(b) the making available of any or all of those building units for

sale or lease.

(10) For the purposes of this section, the area or areas occupied by the

building or buildings are the

project area

for the building

redevelopment project.

(11) For the purposes of subsection (9), it is immaterial whether:

(a) the project has been, is being, or will be, implemented in

stages; or

(b) different elements of the project have been, are being, or will

be, carried out by different persons; or

required, under a law of the Commonwealth, a State or a

Territory, for the project, or any element of the project.

143F Exemptions--lines installed in close proximity to other lines

(1) If:

(a) a telecommunications network came into existence on or

after 1 January 2011; and

(b) a line came into existence on or after the designated

commencement date for the purposes of connecting particular

premises to the network; and

occupier of the premises to become a customer in relation to

carriage services supplied using the line; and

(d) the premises are in close proximity to a line that forms part of

the infrastructure of the network as the network stood

immediately before the designated commencement date; and

(e) the line mentioned in paragraph (b) is used to supply a

superfast carriage service;

the line mentioned in paragraph (b) is exempt from section 142C.

Note 1:

See also section 156A (certain lines deemed to have come into

existence on or after the designated commencement date).

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Note 2:

See also section 158A (certain line extensions deemed to be local

access lines in their own right, and to have come into existence on or

after the designated commencement date).

(2) If:

(a) a designated telecommunications network (within the

meaning of the

Carrier Licence Conditions (Networks

supplying Superfast Carriage Services to Residential

Customers) Declaration 2014

) was in existence immediately

before the designated commencement date; and

(b) a line came into existence on or after the designated

commencement date for the purposes of connecting particular

premises to the network; and

occupier of the premises to become a customer in relation to

carriage services supplied using the line; and

(d) the premises are in close proximity to a line that forms part of

the infrastructure of the network as the network stood

immediately before the designated commencement date; and

(e) the line mentioned in paragraph (b) is used to supply a

superfast carriage service;

the line mentioned in paragraph (b) is exempt from section 142C.

Note 1:

See also section 156A (certain lines deemed to have come into

existence on or after the designated commencement date).

Note 2:

See also section 158A (certain line extensions deemed to be local

access lines in their own right, and to have come into existence on or

after the designated commencement date).

143G Exemptions--networks covered by exemption instruments

(1) If:

(a) the

Telecommunications (Network Exemption--TransACT

Very Small Scale Networks) Instrument 2012

was in force at

the start of the designated commencement date; and

(b) a line came into existence on or after the designated

commencement date; and

(i) an ACT Very Small Scale Network

that is a

FTTP

network or a VDSL network (within the meaning of that

instrument); or

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(ii) a Victorian Very Small Scale Network

that is a

FTTP

network, a VDSL network or a HFC network (within

the meaning of that instrument); and

(d) that instrument has not ceased to be in force;

the line is exempt from section 142C.

Note 1:

See also section 156A (certain lines deemed to have come into

existence on or after the designated commencement date).

Note 2:

See also section 158A (certain line extensions deemed to be local

access lines in their own right, and to have come into existence on or

after the designated commencement date).

(2) If:

(a) the

Telecommunications (Network Exemption--Telstra South

Brisbane Network) Instrument 2012

was in force at the start

of the designated commencement date; and

(b) a line came into existence on or after the designated

commencement date; and

Brisbane Network (within the meaning of that instrument);

and

(d) that instrument has not ceased to be in force;

the line is exempt from section 142C.

Note 1:

See also section 156A (certain lines deemed to have come into

existence on or after the designated commencement date).

Note 2:

See also section 158A (certain line extensions deemed to be local

access lines in their own right, and to have come into existence on or

after the designated commencement date).

(3) If:

(a) the

Telecommunications (Network Exemption--TransACT

Upgraded VDSL Networks) Instrument 2012

was in force at

the start of the designated commencement date; and

(b) a line came into existence on or after the designated

commencement date; and

Upgraded VDSL Network (within the meaning of that

instrument); and

(d) that instrument has not ceased to be in force;

the line is exempt from section 142C.

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Note 1:

See also section 156A (certain lines deemed to have come into

existence on or after the designated commencement date).

Note 2:

See also section 158A (certain line extensions deemed to be local

access lines in their own right, and to have come into existence on or

after the designated commencement date).

(4) If:

(a) the

Telecommunications (Network Exemption--Specified

Velocity Networks) Instrument 2012

was in force at the start

of the designated commencement date; and

(b) a line came into existence on or after the designated

commencement date; and

Velocity Network (within the meaning of that instrument);

and

(d) that instrument has not ceased to be in force;

the line is exempt from section 142C.

Note 1:

See also section 156A (certain lines deemed to have come into

existence on or after the designated commencement date).

Note 2:

See also section 158A (certain line extensions deemed to be local

access lines in their own right, and to have come into existence on or

after the designated commencement date).

(5) For the purposes of paragraph (4)(c) of this section, assume that

paragraph (c) of the definition of

Specified Velocity Network

in the

Telecommunications (Network Exemption--Specified Velocity

Networks) Instrument 2012

were modified by omitting all the

words from and including "in accordance with" to and including

"project".

143H Exemption--networks marketed as business networks

(1) If:

(a) a local access line is part of the infrastructure of a

telecommunications network operated by a carrier; and

(b) the network is marketed by the carrier exclusively as a

business network; and

carriage service wholly or principally to residential

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customers, or prospective residential customers, in Australia;

and

(d) that use or proposed use, when considered in relation to the

use or proposed use of all of the local access lines that are

part of the infrastructure of the network, is minor; and

(e) the other conditions (if any) determined under subsection (2)

have been satisfied;

the line is exempt from section 142C.

(2) The Minister may, by legislative instrument, determine one or

more conditions for the purposes of paragraph (1)(e).

43 At the end of section 144

Add:

(7) The Minister must not make an instrument under subsection (1),

(2) or (3) on or after the designated commencement date.

(8) Subsection (7) does not prevent the Minister from varying an

instrument that was in force immediately after the start of the

designated commencement date.

44 Subsections 145(1), (3) and (5)

Omit "Subsection 143(2) does", substitute "Subsections 142C(2) and

143(2) do".

45 Subsection 146(1)

Omit "Subsection 143(2) does", substitute "Subsections 142C(2) and

143(2) do".

46 Subsection 147(1)

Omit "Subsection 143(2) does", substitute "Subsections 142C(2) and

143(2) do".

47 Subsection 148(1)

Omit "Subsection 143(2) does", substitute "Subsections 142C(2) and

143(2) do".

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48 Subsection 149(1)

Omit "Subsection 143(2) does", substitute "Subsections 142C(2) and

143(2) do".

49 Subsection 150(1)

Omit "Subsection 143(2) does", substitute "Subsections 142C(2) and

143(2) do".

50 Subsection 151(1)

Omit "Subsection 143(2) does", substitute "Subsections 142C(2) and

143(2) do".

51 Before Division 3 of Part 8

Insert:

Division 2B--Functional separation undertakings

151A Standard functional separation undertaking

(1) If a person is a corporation, the person may give a written

undertaking (a

standard functional separation undertaking

) to the

ACCC.

(2) The undertaking must:

(a) provide that the person will maintain:

(i) a single wholesale business unit; and

(ii) a single retail business unit; and

(b) provide that the person will maintain arm's length functional

separation between:

(i) the person's wholesale business unit; and

(ii) the person's retail business unit; and

(i) the terms and conditions relating to price or a method of

ascertaining price; and

(ii) other terms and conditions;

on which the person's wholesale business unit supplies local

access line services to the person's retail business unit are

documented; and

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(d) provide that the person will, to the extent specified in the

undertaking, ensure that the workers who perform their duties

for the person's wholesale business unit are different from

the workers who perform their duties for the person's retail

business unit; and

(e) provide that the person will, to the extent specified in the

undertaking, ensure that there are separate:

(i) operational support systems; and

(ii) business systems; and

(iii) communications systems; and

(iv) accounts;

for:

(v) the person's wholesale business unit; and

(vi) the person's retail business unit; and

(f) provide that the person will publish on the person's website:

(i) the terms and conditions relating to price or a method of

ascertaining price; and

(ii) other terms and conditions;

on which the person's wholesale business unit offers to

supply local access line services to the following:

(iii) the person's retail business unit;

(iv) the person's wholesale customers or prospective

wholesale customers; and

(g) provide that the person will:

(i) if requested to do so by a wholesale customer or

prospective wholesale customer, supply a local access

line service to the wholesale customer or prospective

wholesale customer; and

(ii) do so on the terms and conditions that were published

on the person's website at the time when the request

was made; and

(h) provide that the person will ensure that information provided

to the person's wholesale business unit by the person's

wholesale customers is not disclosed to the person's retail

business unit; and

(i) provide that the person will ensure that the person's retail

business unit does not obtain, access or use information

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provided to the person's wholesale business unit by the

person's wholesale customers; and

(j) provide that the person will ensure that information provided

to the person's retail business unit by a carrier or carriage

service provider (other than information of a kind specified in

a determination under subsection (13)) is not disclosed to the

person's wholesale business unit; and

(k) provide that the person will ensure that the person's

wholesale business unit does not obtain, access or use

information provided to the person's retail business unit by a

carrier or carriage service provider (other than information of

a kind specified in a determination under subsection (13));

and

(l) provide that the person will use the same customer interface

for dealings between:

(i) the person's wholesale business unit; and

(ii) the person's wholesale customers;

as the person uses for dealings between:

(iii) the person's wholesale business unit; and

(iv) the person's retail business unit; and

(m) contain such other provisions (if any) as are specified in a

determination under subsection (14); and

(n) not contain a provision of a kind specified in a determination

under subsection (15).

Note:

A standard functional separation undertaking is supplemented by

section 151ZF (which requires eligible services to be supplied on a

non-discriminatory basis) and section 151ZG (which requires related

activities to be carried on on a non-discriminatory basis).

(3) An extent specified under paragraph (2)(d) or (e) may be a nil

extent.

Form etc.

(4) The undertaking must:

(a) be in a form approved in writing by the ACCC; and

(b) be accompanied by such information as is reasonably likely

to assist the ACCC to decide whether to accept or reject the

undertaking; and

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ascertained in accordance with, a determination under

subsection (16).

Expiry time

(5) The undertaking must specify the expiry time of the undertaking.

(6) The expiry time of the undertaking may be described by reference

to the end of a period beginning when the undertaking comes into

force.

(7) Subsection (6) does not, by implication, limit subsection (5).

(8) The expiry time of the undertaking must not be more than 10 years

after the undertaking comes into force.

Fundamental provisions

(9) The undertaking:

(a) must state that the provisions of the undertaking covered by

paragraphs (2)(a), (b), (c), (f), (g), (h), (i), (j) and (k) are

fundamental provisions; and

(b) may state that one or more other provisions of the

undertaking are fundamental provisions.

Compliance reports

(10) The undertaking must provide that the person will give the ACCC

periodic reports (to be known as compliance reports) that:

(a) relate to the person's compliance with the undertaking; and

(b) are in a form approved in writing by the ACCC.

Note:

See section 151ZJ (self-incrimination).

Compliance plans

(11) The undertaking must provide that the person will:

(a) prepare a plan (to be known as a compliance plan) setting out

the actions to be taken by the person for the purpose of

ensuring that the person complies with the undertaking; and

(b) give the ACCC:

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(i) a copy of the compliance plan; and

(ii) a copy of any variation of the compliance plan.

ACCC may perform functions or exercise powers

(12) If the 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.

Determinations

(13) The ACCC may, by legislative instrument, determine one or more

kinds of information for the purposes of paragraphs (2)(j) and (k).

(14) The Minister may, by legislative instrument, determine one or

more provisions for the purposes of paragraph (2)(m).

(15) The Minister may, by legislative instrument, determine one or

more kinds of provisions for the purposes of paragraph (2)(n).

(16) The ACCC may, by legislative instrument, determine a fee, or a

method of ascertaining a fee, for the purposes of paragraph (4)(c).

(17) A fee determined under, or ascertained in accordance with,

subsection (16) must not be such as to amount to taxation.

151B Deemed standard functional separation undertaking

(1) The ACCC may, by legislative instrument, determine that, if:

(a) a corporation is included in a specified class of corporations;

and

(b) the corporation has, by written notice given to the ACCC,

elected to be bound by the determination; and

cancelled the election; and

(d) the ACCC has not revoked the election under subsection (7);

this Act has effect as if:

(e) the corporation had given a standard functional separation

undertaking in the terms set out in the determination; and

(f) the ACCC had accepted the undertaking; and

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(g) if the election was given before the designated

commencement date--the undertaking had come into force

on the designated commencement date; and

(h) if the election was given on or after the designated

commencement date--the undertaking had come into force

when the election was given to the ACCC.

(1A) A functional separation undertaking covered by a determination

under subsection (1) must comply with the following provisions:

(a) paragraphs 151A(2)(a) to (m);

(b) subsections 151A(9), (10) and (11).

(1B) A functional separation undertaking covered by a determination

under subsection (1) must not contain a provision of a kind

specified in a determination under subsection 151A(15).

(2) The following provisions do not apply to a functional separation

undertaking covered by a determination under subsection (1):

(a) subsections 151A(4) to (8);

(b) section 151N;

(d) section 151Q;

(e) section 151W.

(3) If, as a result of an election under a determination under

subsection (1), a corporation is taken to have given a standard

functional separation undertaking:

(a) this Act does not prevent the corporation from giving the

ACCC another standard functional separation undertaking;

and

(b) if the other standard functional separation undertaking comes

into force--the corporation is taken to have cancelled the

election immediately before the other standard functional

separation undertaking comes into force.

(4) If, as a result of an election under a determination under

subsection (1), a corporation is taken to have given a standard

functional separation undertaking:

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(a) this Act does not prevent the corporation, together with one

or more other persons, from giving the ACCC a joint

functional separation undertaking; and

(b) if the joint functional separation undertaking comes into

force--the corporation is taken to have cancelled the election

immediately before the joint functional separation

undertaking comes into force.

(5) Before making a determination under subsection (1), the ACCC

must:

(a) publish on the ACCC's website a notice:

(i) setting out the draft determination; and

(ii) inviting persons to make submissions to the ACCC

about the draft determination within the time limit

specified in the notice; and

(b) consider any submissions received within the time limit

specified in the notice.

(6) The time limit must not be shorter than 15 business days after the

notice is published.

(7) If:

(a) a standard functional separation undertaking is in force as the

result of an election made by a person as mentioned in

paragraph (1)(b); and

(b) any of the following conditions is satisfied:

(i) the person has breached a fundamental provision of the

undertaking;

(ii) the person has contravened section 151ZF or 151ZG;

(iii) the ACCC is satisfied that the person has an

unsatisfactory compliance record in relation to

functional separation;

the ACCC may, by written notice given to the person, revoke the

election.

151C Joint functional separation undertaking

(1) If 2 or more persons are corporations, those persons may give a

joint written undertaking (a

joint functional separation

undertaking

) to the ACCC.

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(2) The undertaking must:

(a) identify:

(i) one or more (but not all) of those persons as the

wholesaler or wholesalers for the purposes of the

undertaking; and

(ii) the remaining person or persons as the retailer or

retailers for the purposes of the undertaking; and

(b) provide that a wholesaler will not supply a local access line

service to a person unless the person is a wholesale customer;

and

service to a person unless the person is a retail customer; and

(d) provide that a wholesaler will, to the extent specified in the

undertaking, ensure that the wholesaler's workers will

perform their duties exclusively for the wholesaler; and

(e) provide that a retailer will, to the extent specified in the

undertaking, ensure that the retailer's workers will perform

their duties exclusively for the retailer; and

(f) provide that a wholesaler will, to the extent specified in the

undertaking, ensure that the workers who:

(i) are engaged by persons other than the wholesaler; and

(ii) perform duties for the wholesaler;

are different from the workers who:

(iii) are engaged by persons other than the wholesaler; and

(iv) perform duties for a retailer; and

(g) provide that a retailer will, to the extent specified in the

undertaking, ensure that the workers who:

(i) are engaged by persons other than the retailer; and

(ii) perform duties for the retailer;

are different from the workers who:

(iii) are engaged by persons other than the retailer; and

(iv) perform duties for a wholesaler; and

(h) provide that a wholesaler will ensure that no director of the

wholesaler is a director of a retailer; and

(i) provide that a retailer will ensure that no director of the

retailer is a director of a wholesaler; and

(j) provide that:

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(i) the wholesaler or wholesalers; and

(ii) the retailer or retailers;

will, to the extent specified in the undertaking, have separate:

(iii) operational support systems; and

(iv) business systems; and

(v) communications systems; and

(vi) accounts; and

(k) provide that a wholesaler will publish on the wholesaler's

website:

(i) the terms and conditions relating to price or a method of

ascertaining price; and

(ii) other terms and conditions;

on which the wholesaler offers to supply local access line

services to the following:

(iii) a retailer;

(iv) its wholesale customers or prospective wholesale

customers; and

(l) provide that a wholesaler will:

(i) if requested to do so by a wholesale customer or

prospective wholesale customer, supply a local access

line service to the wholesale customer or prospective

wholesale customer; and

(ii) do so on the terms and conditions that were published

on the wholesaler's website at the time when the request

was made; and

(m) provide that a wholesaler will ensure that information

provided by its wholesale customers (other than the retailer

or retailers) is not disclosed to any of the retailers; and

(n) provide that a retailer will ensure that it does not obtain,

access or use information provided to any of the wholesalers

by the wholesaler's wholesale customers; and

(o) provide that a retailer will ensure that information provided

to the retailer by a carrier or carriage service provider, other

than:

(i) information provided by a wholesaler; or

(ii) information of a kind specified in a determination under

subsection (15);

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is not disclosed to any of the wholesalers; and

(p) provide that a wholesaler will ensure that it does not obtain,

access or use information provided to any of the retailers by a

carrier or carriage service provider, other than:

(i) information provided by a wholesaler; or

(ii) information of a kind specified in a determination under

subsection (15); and

(q) provide that a wholesaler will use the same customer

interface for dealings between:

(i) the wholesaler; and

(ii) the wholesaler's wholesale customers (other than the

retailer or retailers);

as the wholesaler uses for dealings between:

(iii) the wholesaler; and

(iv) a retailer; and

(r) contain such other provisions (if any) as are specified in a

determination under subsection (16); and

(s) not contain a provision of a kind specified in a determination

under subsection (17).

Note:

A joint functional separation undertaking is supplemented by

section 151ZF (which requires eligible services to be supplied on a

non-discriminatory basis) and section 151ZG (which requires related

activities to be carried on on a non-discriminatory basis).

(3) An extent specified under paragraph (2)(d), (e), (f), (g) or (j) may

be a nil extent.

Form etc.

(4) The undertaking must:

(a) be in a form approved in writing by the ACCC; and

(b) be accompanied by such information as is reasonably likely

to assist the ACCC to decide whether to accept or reject the

undertaking; and

ascertained in accordance with, a determination under

subsection (18).

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Expiry time

(5) The undertaking must specify the expiry time of the undertaking.

(6) The expiry time of the undertaking may be described by reference

to the end of a period beginning when the undertaking comes into

force.

(7) Subsection (6) does not, by implication, limit subsection (5).

(8) The expiry time of the undertaking must not be more than 10 years

after the undertaking comes into force.

Fundamental provisions

(9) The undertaking:

(a) must state that the provisions of the undertaking covered by

paragraphs (2)(a), (b), (c), (h), (i), (k), (l), (m), (n), (o) and

(p) are fundamental provisions; and

(b) may state that one or more other provisions of the

undertaking are fundamental provisions.

Compliance reports

(10) The undertaking must provide that a wholesaler will give the

ACCC periodic reports (to be known as compliance reports) that:

(a) relate to the wholesaler's compliance with the undertaking;

and

(b) are in a form approved in writing by the ACCC.

Note:

See section 151ZJ (self-incrimination).

(11) The undertaking must provide that a retailer will give the ACCC

periodic reports (to be known as compliance reports) that:

(a) relate to the retailer's compliance with the undertaking; and

(b) are in a form approved in writing by the ACCC.

Note:

See section 151ZJ (self-incrimination).

Compliance plans

(12) The undertaking must provide that a wholesaler will:

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(a) prepare a plan (to be known as a compliance plan) setting out

the actions to be taken by the wholesaler for the purpose of

ensuring that the wholesaler complies with the undertaking;

and

(b) give the ACCC:

(i) a copy of the compliance plan; and

(ii) a copy of any variation of the compliance plan.

(13) The undertaking must provide that a retailer will:

(a) prepare a plan (to be known as a compliance plan) setting out

the actions to be taken by the retailer for the purpose of

ensuring that the retailer complies with the undertaking; and

(b) give the ACCC:

(i) a copy of the compliance plan; and

(ii) a copy of any variation of the compliance plan.

ACCC may perform functions or exercise powers

(14) If the 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.

Determinations

(15) The ACCC may, by legislative instrument, determine one or more

kinds of information for the purposes of paragraphs (2)(o) and (p).

(16) The Minister may, by legislative instrument, determine one or

more provisions for the purposes of paragraph (2)(r).

(17) The Minister may, by legislative instrument, determine one or

more kinds of provisions for the purposes of paragraph (2)(s).

(18) The ACCC may, by legislative instrument, determine a fee, or a

method of ascertaining a fee, for the purposes of paragraph (4)(c).

(19) A fee determined under, or ascertained in accordance with,

subsection (18) must not be such as to amount to taxation.

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151D Further information about undertaking

Scope

(1) This section applies if:

(a) a person gives the ACCC a standard functional separation

undertaking; or

(b) 2 or more persons give the ACCC a joint functional

separation undertaking.

Request for further information

(2) The ACCC may request the person or persons to give the ACCC

further information about the undertaking.

(3) The ACCC may refuse to consider the undertaking until the person

or persons give the ACCC the information.

(4) The ACCC may withdraw its request for further information, in

whole or in part.

151E Withdrawal of undertaking that is under consideration

Scope

(1) This section applies if:

(a) a person gives the ACCC a standard functional separation

undertaking; or

(b) 2 or more persons give the ACCC a joint functional

separation undertaking.

Withdrawal

(2) The person or persons may withdraw the undertaking at any time

before the ACCC makes a decision to accept or reject the

undertaking.

(3) This Act does not prevent the person or persons from giving a fresh

undertaking.

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Refund of fee

(4) If:

(a) the person or persons withdraw the undertaking; and

(b) the person or persons have paid a fee in relation to the

undertaking;

the ACCC may, on behalf of the Commonwealth, refund the whole

or a part of the fee.

151F ACCC to accept or reject functional separation undertaking

Scope

(1) This section applies if:

(a) a person gives the ACCC a standard functional separation

undertaking; or

(b) 2 or more persons give the ACCC a joint functional

separation undertaking.

Decision to accept or reject undertaking

(2) After considering the undertaking, the ACCC must:

(a) accept the undertaking; or

(b) reject the undertaking.

Notice of decision

(3) If the ACCC accepts the undertaking, the ACCC must give the

person or persons a written notice stating that the undertaking has

been accepted.

(4) If the ACCC rejects the undertaking, the ACCC must give the

person or persons a written notice:

(a) stating that the undertaking has been rejected; and

(b) setting out the reasons for the rejection.

ACCC to make decision within 3 months

(5) The ACCC must take all reasonable steps to ensure that a decision

about the undertaking is made under subsection (2) within 3

months after receiving the undertaking.

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(6) In calculating the 3-month period referred to in subsection (5),

disregard:

(a) if:

(i) the ACCC has given a notice under section 151K in

relation to the undertaking; and

(ii) no varied undertaking was given to the ACCC in

response to the notice;

a day in the period specified in the notice; and

(b) if:

(i) the ACCC has given a notice under section 151K in

relation to the undertaking; and

(ii) a varied undertaking was given to the ACCC in

response to the notice;

a day in the period:

(iii) beginning on the day on which the notice was given;

and

(iv) ending at the end of the time limit specified by the

ACCC when it published the varied undertaking under

section 151G; and

relation to the undertaking--a day in the period:

(i) beginning on the day on which the ACCC published the

undertaking under section 151G; and

(ii) ending at the end of the time limit specified by the

ACCC when it published the undertaking under

section 151G; and

(d) if the ACCC has requested further information under

section 151D in relation to the undertaking--a day during

any part of which the request, or any part of the request,

remains unfulfilled.

Extension of decision-making period

(7) The ACCC may, by written notice given to the person or persons,

extend the 3-month period referred to in subsection (5) (the

initial

3-month period

), so long as:

(a) the extension is for a period of not more than 3 months; and

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(b) the notice includes a statement explaining why the ACCC has

been unable to make a decision on the undertaking within the

initial 3-month period.

(8) As soon as practicable after the ACCC gives a notice under

subsection (7), the ACCC must publish a copy of the notice on the

ACCC's website.

151G Consultation--acceptance or rejection of undertaking

Scope

(1) This section applies if:

(a) a person gives the ACCC a standard functional separation

undertaking; or

(b) 2 or more persons give the ACCC a joint functional

separation undertaking.

Consultation

(2) Before making a decision to accept or reject the undertaking, the

ACCC must:

(a) publish on the ACCC's website a notice:

(i) setting out the undertaking; and

(ii) inviting persons to make submissions to the ACCC

about the undertaking within the time limit specified in

the notice; and

(b) consider any submissions received within the time limit

specified in the notice.

(3) The time limit must not be shorter than 15 business days after the

notice is published.

151H Serial undertakings

(1) If:

(a) a person gives the ACCC a standard functional separation

undertaking (the

first functional separation undertaking

);

and

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(b) the ACCC rejects the first functional separation undertaking;

and

functional separation undertaking; and

(d) the ACCC is satisfied that any or all of the provisions of the

first functional separation undertaking are materially similar

to any or all of the provisions of the other functional

separation undertaking;

the ACCC may refuse to consider the other functional separation

undertaking.

(2) If:

(a) 2 or more persons give the ACCC a joint functional

separation undertaking (the

first functional separation

undertaking

); and

(b) the ACCC rejects the first functional separation undertaking;

and

functional separation undertaking; and

(d) the ACCC is satisfied that any or all of the provisions of the

first functional separation undertaking are materially similar

to any or all of the provisions of the other functional

separation undertaking;

the ACCC may refuse to consider the other functional separation

undertaking.

Refund of fee

(3) If:

(a) the ACCC refuses to consider a functional separation

undertaking under this section; and

(b) a person or persons have paid a fee in relation to the

undertaking;

the ACCC must, on behalf of the Commonwealth, refund the fee.

151J Criteria for accepting functional separation undertaking

Scope

(1) This section applies if:

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(a) a person gives the ACCC a standard functional separation

undertaking; or

(b) 2 or more persons give the ACCC a joint functional

separation undertaking.

Criteria

(2) In deciding whether to accept the undertaking, the ACCC must

have regard to:

(a) whether the undertaking promotes the long-term interests of

end-users of carriage services or of services supplied by

means of carriage services; and

(b) the matters (if any) specified in a determination that was in

force under subsection (3) at the time the undertaking was

given; and

(3) The Minister may, by legislative instrument, determine one or

more matters for the purposes of paragraph (2)(b).

151K Variation of functional separation undertaking that is under

consideration

Scope

(1) This section applies if:

(a) a person gives the ACCC a standard functional separation

undertaking (the

original undertaking

); or

(b) 2 or more persons give the ACCC a joint functional

separation undertaking (the

original undertaking

Notice

(2) The ACCC may give the person or persons a written notice stating

that, if:

(a) the person makes, or the persons make, such variations to the

original undertaking as are specified in the notice; and

(b) the person gives, or the persons give, the varied undertaking

to the ACCC within the period specified in the notice;

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the ACCC will consider the varied undertaking under section 151F

as if the varied undertaking had been given to the ACCC instead of

the original undertaking.

Treatment of varied undertaking

(3) If the person gives, or the persons give, the ACCC a varied

undertaking in response to the notice, the ACCC must consider the

varied undertaking under section 151F as if the varied undertaking

had been given to the ACCC instead of the original undertaking.

No duty to consider whether to give a notice

(4) The ACCC does not have a duty to consider whether to give a

notice under subsection (2).

151L Replacement of functional separation undertaking that is

under consideration

Scope

(1) This section applies if a person gives the ACCC a standard

functional separation undertaking (the

original undertaking

Notice

(2) The ACCC may give the person a written notice stating that, if:

(a) the person withdraws the original undertaking; and

(b) the person, together with one or more other persons specified

in the notice, gives a joint functional separation undertaking

in the terms specified in the notice; and

(b) within the time limit specified in the notice;

the ACCC would be inclined to accept the joint functional

separation undertaking.

(3) The ACCC does not have a duty to consider whether to give a

notice under subsection (2).

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151M Renewal of functional separation undertaking

(1) If:

(a) a standard functional separation undertaking (the

existing

undertaking

) given by a person is in force; and

(b) at least 12 months before the expiry of the existing

undertaking, the person gives the ACCC another standard

functional separation undertaking;

the other undertaking may be expressed to be given by way of

renewal of the existing undertaking.

Note:

For acceptance or rejection of the other undertaking, see section 151F.

(2) If:

(a) a joint functional separation undertaking (the

existing

undertaking

) given by 2 or more persons is in force; and

(b) at least 12 months before the expiry of the existing

undertaking, those persons give another joint functional

separation undertaking to the ACCC;

the other undertaking may be expressed to be given by way of

renewal of the existing undertaking.

Note 1:

For acceptance or rejection of the other undertaking, see section 151F.

Note 2:

For consultation on a decision to accept or reject the other

undertaking, see section 151G.

151N Variation of expiry time of certain functional separation

undertakings

Standard functional separation undertaking

(1) If:

(a) a standard functional separation undertaking (the

existing

undertaking

) given by a person is in force; and

(b) another functional separation undertaking is given to the

ACCC by the person; and

the ACCC may, by written notice given to the person, vary the

existing undertaking by:

(d) omitting the expiry time specified in the existing

undertaking; and

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(e) substituting the expiry time specified in the notice.

Note:

See also section 142B.

(2) The expiry time specified in the notice:

(a) must be later than the rejection of the other undertaking; and

(b) must not be later than 12 months after the rejection of the

other undertaking.

(3) Subsection 151A(8) does not apply to an expiry time specified in a

notice under subsection (1).

Joint functional separation undertaking

(4) If:

(a) a joint functional separation undertaking (the

existing

undertaking

) given by 2 or more persons is in force; and

(b) another functional separation undertaking is given to the

ACCC by a person who is one of the persons mentioned in

paragraph (a); and

the ACCC may, by written notice given to each of the persons

mentioned in paragraph (a), vary the existing undertaking by:

(d) omitting the expiry time specified in the existing

undertaking; and

(e) substituting the expiry time specified in the notice.

Note:

See also section 142B.

(5) The expiry time specified in the notice:

(a) must be later than the rejection of the other undertaking; and

(b) must not be later than 12 months after the rejection of the

other undertaking.

(6) Subsection 151C(8) does not apply to an expiry time specified in a

notice under subsection (4).

Consultation

(7) Before making a decision under this section to vary a functional

separation undertaking, the ACCC must:

(a) publish on the ACCC's website a notice:

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(i) setting out the proposed variation; and

(ii) inviting persons to make submissions to the ACCC

about the proposed variation within the time limit

specified in the notice; and

(b) consider any submissions received within the time limit

specified in the notice.

(8) The time limit must not be shorter than 15 business days after the

notice is published.

151P Duration of functional separation undertaking

Scope

(1) This section applies if:

(a) either:

(i) a person gives the ACCC a standard functional

separation undertaking (the

new undertaking

); or

(ii) 2 or more persons give the ACCC a joint functional

separation undertaking (the

new undertaking

); and

(b) the ACCC accepts the new undertaking.

Duration

(2) If the new undertaking is not expressed to be given by way of

renewal of another functional separation undertaking:

(a) in a case where the new undertaking is accepted before the

designated commencement date--the new undertaking comes

into force:

(i) on the designated commencement date; or

(ii) if a later day is specified in the new undertaking--on

that day; and

(b) in a case where the new undertaking is accepted on or after

the designated commencement date--the new undertaking

comes into force:

(i) on the day after it is accepted; or

(ii) if a later day is specified in the new undertaking--on

that day; and

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force until it expires.

(3) If the new undertaking is expressed to be given by way of renewal

of another functional separation undertaking:

(a) the new undertaking comes into force immediately after the

expiry of the other undertaking; and

(b) unless sooner revoked, the new undertaking continues in

force until it expires.

151Q Variation of functional separation undertaking that is in force

Scope

(1) This section applies if:

(a) a standard functional separation undertaking given by a

person is in force; or

(b) a joint functional separation undertaking given by 2 or more

persons is in force.

Variation

(2) The person or persons may give the ACCC a variation of the

undertaking.

(3) If the undertaking is a standard functional separation undertaking,

the undertaking as varied must comply with subsections 151A(2),

(5), (8), (9), (10) and (11) and paragraph 151A(4)(a).

(4) If the undertaking is a joint functional separation undertaking, the

undertaking as varied must comply with subsections 151C(2), (5),

(8), (9), (10), (11), (12) and (13) and paragraph 151C(4)(a).

Form etc.

(5) The variation must:

(a) be accompanied by such information as is reasonably likely

to assist the ACCC to decide whether to accept or reject the

variation; and

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(b) be accompanied by the fee (if any) specified in, or

ascertained in accordance with, a determination under

subsection (6).

(6) The ACCC may, by legislative instrument, determine a fee, or a

method of ascertaining a fee, for the purposes of paragraph (5)(b).

(7) A fee determined under, or ascertained in accordance with,

subsection (6) must not be such as to amount to taxation.

151R Further information about variation of functional separation

undertaking

Scope

(1) This section applies if:

(a) a person gives the ACCC a variation of a standard functional

separation undertaking; or

(b) 2 or more persons give the ACCC a variation of a joint

functional separation undertaking.

Request for further information

(2) The ACCC may request the person or persons to give the ACCC

further information about the variation.

(3) The ACCC may refuse to consider the variation until the person or

persons give the ACCC the information.

(4) The ACCC may withdraw its request for further information, in

whole or in part.

151S Withdrawal of variation that is under consideration

Scope

(1) This section applies if:

(a) a person gives the ACCC a variation of a standard functional

separation undertaking; or

(b) 2 or more persons give the ACCC a variation of a joint

functional separation undertaking.

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Withdrawal

(2) The person or persons may withdraw the variation at any time

before the ACCC makes a decision to accept or reject the variation.

(3) This Act does not prevent the person or persons from giving a fresh

variation.

Refund of fee

(4) If:

(a) the person or persons withdraw the variation; and

(b) the person or persons have paid a fee in relation to the

variation;

the ACCC may, on behalf of the Commonwealth, refund the whole

or a part of the fee.

151T ACCC to accept or reject variation

Scope

(1) This section applies if:

(a) a person gives the ACCC a variation of a standard functional

separation undertaking; or

(b) 2 or more persons give the ACCC a variation of a joint

functional separation undertaking.

Decision to accept or reject variation

(2) After considering the variation, the ACCC must:

(a) accept the variation; or

(b) reject the variation.

Notice of decision

(3) If the ACCC accepts the variation, the ACCC must give the person

or persons a written notice:

(a) stating that the variation has been accepted; and

(b) setting out the terms of the variation.

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(4) If the ACCC rejects the variation, the ACCC must give the person

or persons a written notice:

(a) stating that the variation has been rejected; and

(b) setting out the reasons for the rejection.

ACCC to make decision within 3 months

(5) The ACCC must take all reasonable steps to ensure that a decision

about the variation is made under subsection (2) within 3 months

after receiving the variation.

(6) In calculating the 3-month period referred to in subsection (5),

disregard:

(a) a day in the period:

(i) beginning on the day on which the ACCC published the

variation under section 151U; and

(ii) ending at the end of the time limit specified by the

ACCC when it published the variation under

section 151U; and

(b) if the ACCC has requested further information under

section 151R in relation to the variation--a day during any

part of which the request, or any part of the request, remains

unfulfilled.

Extension of decision-making period

(7) The ACCC may, by written notice given to the person or persons,

extend the 3-month period referred to in subsection (5) (the

initial

3-month period

), so long as:

(a) the extension is for a period of not more than 3 months; and

(b) the notice includes a statement explaining why the ACCC has

been unable to make a decision on the variation within the

initial 3-month period.

(8) As soon as practicable after the ACCC gives a notice under

subsection (7), the ACCC must publish a copy of the notice on the

ACCC's website.

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151U Consultation--acceptance or rejection of variation

Scope

(1) This section applies if:

(a) a person gives the ACCC a variation of a standard functional

separation undertaking; or

(b) 2 or more persons give the ACCC a variation of a joint

functional separation undertaking.

Consultation

(2) Before making a decision to accept or reject the variation, the

ACCC must:

(a) publish on the ACCC's website a notice:

(i) setting out the variation; and

(ii) inviting persons to make submissions to the ACCC

about the variation within the time limit specified in the

notice; and

(b) consider any submissions received within the time limit

specified in the notice.

(3) The time limit must not be shorter than 15 business days after the

notice is published.

151V Criteria for accepting variation

Scope

(1) This section applies if:

(a) a person gives the ACCC a variation of a standard functional

separation undertaking; or

(b) 2 or more persons give the ACCC a variation of a joint

functional separation undertaking.

Criteria

(2) In deciding whether to accept the variation, the ACCC must have

regard to:

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(a) whether the variation promotes the long-term interests of

end-users of carriage services or of services supplied by

means of carriage services; and

(b) the matters (if any) specified in a determination under

subsection (3); and

(3) The Minister may, by legislative instrument, determine one or

more matters for the purposes of paragraph (2)(b).

151W Revocation of functional separation undertaking

Standard functional separation undertaking

(1) If:

(a) a standard functional separation undertaking given by a

person is in force; and

(b) the person has:

(i) breached a fundamental provision of the undertaking; or

(ii) contravened section 151ZF or 151ZG;

the ACCC may, by written notice given to the person, revoke the

undertaking.

(2) If:

(a) a standard functional separation undertaking given by a

person is in force; and

(b) the ACCC is satisfied that the person has an unsatisfactory

compliance record in relation to functional separation;

the ACCC may, by written notice given to the person, revoke the

undertaking.

(3) If:

(a) a standard functional separation undertaking given by a

person is in force; and

(b) the person requests the ACCC, in writing, to revoke the

undertaking;

the ACCC must, by written notice given to the person, revoke the

undertaking.

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(4) A revocation under subsection (1), (2) or (3) takes effect at the

time specified in the notice of revocation. The specified time:

(a) must not be earlier than the time the notice is given; and

(b) must not be later than 12 months after the notice is given.

(5) After the giving of a notice of revocation of a standard functional

separation undertaking under subsection (1), (2) or (3):

(a) the undertaking does not apply to local access line services

supplied using a local access line that came into existence

after the notice was given; and

(b) the definitions of

retail business unit

and

wholesale business

unit

in section 142A (in so far as those definitions relate to

the undertaking) have effect as if references in those

definitions to the supply of local access line services did not

include the supply of local access line services using a local

access line that came into existence after the notice was

given.

Joint functional separation undertaking

(6) If:

(a) a joint functional separation undertaking given by 2 or more

persons is in force; and

(b) any of those persons has:

(i) breached a fundamental provision of the undertaking; or

(ii) contravened section 151ZF or 151ZG;

the ACCC may, by written notice given to each of those persons,

revoke the undertaking.

(7) If:

(a) a joint functional separation undertaking given by 2 or more

persons is in force; and

(b) the ACCC is satisfied that any of those persons has an

unsatisfactory compliance record in relation to functional

separation;

the ACCC may, by written notice given to each of those persons,

revoke the undertaking.

(8) If:

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(a) a joint functional separation undertaking given by 2 or more

persons is in force; and

(b) those persons request the ACCC, in writing, to revoke the

undertaking;

the ACCC must, by written notice given to each of those persons,

revoke the undertaking.

(9) A revocation under subsection (6), (7) or (8) takes effect at the

time specified in the notice of revocation. The specified time:

(a) must not be earlier than the time the notice is given; and

(b) must not be later than 12 months after the notice is given.

(10) After the giving of a notice of revocation of a joint functional

separation undertaking under subsection (6), (7) or (8), the

undertaking does not apply to local access line services supplied

using a local access line that came into existence after the notice

was given.

Matters to which the ACCC must have regard

(11) In exercising its powers under this section, the ACCC must have

regard to the following matters:

(a) whether arrangements to maintain the continuity of the

supply of superfast carriage services to residential customers

using local access lines:

(i) have been made; or

(ii) can be made before the relevant revocation takes effect;

(b) in the case of a revocation under subsection (1) or (6)--the

consequences of the breach;

consequences of the person's unsatisfactory compliance

record;

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

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151X Consultation--revocation of functional separation

undertaking

Revocation of standard functional separation undertaking

(1) Before making a decision under subsection 151W(1) or (2) to

revoke a standard functional separation undertaking given by a

person, the ACCC must:

(a) give the person a written notice:

(i) stating that the ACCC proposes to revoke the

undertaking; and

(ii) inviting the person to make a submission to the ACCC

about the revocation within the time limit specified in

the notice; and

(b) consider any submission received within the time limit

specified in the notice.

(2) The time limit must not be shorter than 15 business days after the

notice is given.

Revocation of joint functional separation undertaking

(3) Before making a decision under subsection 151W(6) or (7) to

revoke a joint functional separation undertaking given by 2 or more

persons, the ACCC must:

(a) give each of those persons a written notice:

(i) stating that the ACCC proposes to revoke the

undertaking; and

(ii) inviting those persons to make submissions to the

ACCC about the revocation within the time limit

specified in the notice; and

(b) consider any submissions received within the time limit

specified in the notice.

(4) The time limit must not be shorter than 15 business days after the

notice is given.

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151Y Notification that a person is at risk of having an unsatisfactory

compliance record in relation to functional separation

Scope

(1) This section applies to:

(a) a breach by a person of a functional separation undertaking

given by the person, so long as the breach occurred when the

undertaking was in force; and

(b) a contravention by a person of section 143B, 151ZA, 151ZB,

151ZF, 151ZG, 151ZH or 151ZI.

Note:

See section 142B.

Notification

(2) If:

(a) a functional separation undertaking given by a person is in

force; and

(b) the ACCC is aware of one or more breaches or

contraventions by the person; and

do not mean that the person has an unsatisfactory compliance

record in relation to functional separation; and

(d) the ACCC is satisfied that, if there were to be a particular

kind of additional breach or contravention by the person, the

person would have an unsatisfactory compliance record in

relation to functional separation;

the ACCC must:

(e) give the person a written notice:

(i) stating that the ACCC considers that the person is at risk

of having an unsatisfactory compliance record in

relation to functional separation; and

(ii) informing the person that an unsatisfactory compliance

record is a ground for revoking the undertaking; and

(f) do so as soon as practicable after becoming satisfied as

mentioned in paragraph (d).

Note:

See section 142B.

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(3) A failure to comply with subsection (2) does not affect the validity

of a revocation of a functional separation undertaking.

151Z Variation of functional separation undertaking following

giving of revocation notice

Standard functional separation undertaking

(1) If:

(a) the ACCC has given a notice under section 151W revoking a

standard functional separation undertaking; and

(b) the revocation has not taken effect;

the ACCC may, by written notice given to the person who gave the

undertaking, vary the undertaking.

(2) The ACCC must not vary a standard functional separation

undertaking under subsection (1) unless the variation:

(a) addresses the matter or matters that constituted the grounds

for the revocation of the undertaking under section 151W;

and

(b) does not address any other matter.

Joint functional separation undertaking

(3) If:

(a) the ACCC has given a notice under section 151W revoking a

joint functional separation undertaking; and

(b) the revocation has not taken effect;

the ACCC may, by written notice given to each of the persons who

gave the undertaking, vary the undertaking.

(4) The ACCC must not vary a joint functional separation undertaking

under subsection (3) unless the variation:

(a) addresses the matter or matters that constituted the grounds

for the revocation of the undertaking under section 151W;

and

(b) does not address any other matter.

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When variation takes effect

(5) A variation under subsection (1) or (3) takes effect at the time the

notice is given.

151ZA Reporting obligations following giving of revocation notice

Standard functional separation undertaking

(1) If:

(a) the ACCC has given a notice under section 151W revoking a

standard functional separation undertaking; and

(b) the revocation has not taken effect;

the ACCC may, by written notice given to the person who gave the

undertaking, direct the person:

(i) a report about the person's compliance with the

undertaking; or

(ii) information about the person's compliance with the

undertaking; or

(iii) a report about action that the person has taken, is taking,

or proposes to take for the purpose of ensuring that the

person complies with sections 142C and 143 after the

revocation takes effect; or

(iv) information about action that the person has taken, is

taking, or proposes to take for the purpose of ensuring

that the person complies with sections 142C and 143

after the revocation takes effect; and

(d) to do so within the period specified in the direction.

Note:

See section 151ZJ (self-incrimination).

Joint functional separation undertaking

(2) If:

(a) the ACCC has given a notice under section 151W revoking a

joint functional separation undertaking; and

(b) the revocation has not taken effect;

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the ACCC may, by written notice given to a person who gave the

undertaking jointly with one or more other persons, direct the

person:

(i) a report about the person's compliance with the

undertaking; or

(ii) information about the person's compliance with the

undertaking; or

(iii) a report about action that the person has taken, is taking,

or proposes to take for the purpose of ensuring that the

person complies with sections 142C and 143 after the

revocation takes effect; or

(iv) information about action that the person has taken, is

taking, or proposes to take for the purpose of ensuring

that the person complies with sections 142C and 143

after the revocation takes effect; and

(d) to do so within the period specified in the direction.

Note:

See section 151ZJ (self-incrimination).

Compliance with direction

(3) A person must comply with a direction under subsection (1) or (2).

Ancillary contraventions

(4) A person must not:

(a) aid, abet, counsel or procure a contravention of

subsection (3); or

(b) induce, whether by threats or promises or otherwise, a

contravention of subsection (3); or

or party to, a contravention of subsection (3); or

(d) conspire with others to effect a contravention of

subsection (3).

Civil penalty provisions

(5) Subsections (3) and (4) are

civil penalty provisions

Note:

Part 31 provides for pecuniary penalties for breaches of civil penalty

provisions.

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151ZB Requirement to notify changes in control of person who gave

undertaking

Notification by person who gave undertaking

(1) If:

(a) a functional separation undertaking given by a person (the

first person

) is in force; and

(b) the first person becomes aware that:

(i) a person who was not in a position to exercise control of

the first person has become in a position to exercise

control of the first person; or

(ii) a person who was in a position to control the first

person has ceased to be in that position;

the first person must:

(d) do so as soon as practicable, but not later than 10 business

days, after becoming so aware.

Note:

See section 154.

(2) The notice must be in a form approved, in writing, by the ACCC.

Notification by controller of person who gave undertaking

(3) If:

(a) a functional separation undertaking given by a person (the

first person

) is in force; and

(b) another person becomes aware that the other person is in a

position to exercise control of the first person;

the other person must:

(d) do so as soon as practicable, but not later than 10 business

days, after becoming so aware.

Note:

See section 154.

(4) The notice must be in a form approved, in writing, by the ACCC.

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Ancillary contraventions

(5) A person must not:

(a) aid, abet, counsel or procure a contravention of subsection (1)

or (3); or

(b) induce, whether by threats or promises or otherwise, a

contravention of subsection (1) or (3); or

or party to, a contravention of subsection (1) or (3); or

(d) conspire with others to effect a contravention of

subsection (1) or (3).

Civil penalty provisions

(6) Subsections (1), (3) and (5) are

civil penalty provisions

Note:

Part 31 provides for pecuniary penalties for breaches of civil penalty

provisions.

151ZC Register of functional separation undertakings

(1) The ACCC is to maintain a Register in which the ACCC includes:

(a) all functional separation undertakings that have been

accepted by the ACCC (including those that are no longer in

force); and

(b) in the case of a functional separation undertaking that, under

section 151B, is taken to have been given by a corporation:

(i) the name of the corporation; and

(ii) the date the undertaking came into force; and

(2) The Register is to be maintained by electronic means.

(3) The Register is to be made available for inspection on the ACCC's

website.

(4) The Register is not a legislative instrument.

151ZD Compliance with functional separation undertaking

(1) If a functional separation undertaking given by a person is in force,

the person must comply with the undertaking.

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Note:

See also section 142B.

Ancillary contraventions

(2) A person must not:

(a) aid, abet, counsel or procure a contravention of

subsection (1); or

(b) induce, whether by threats or promises or otherwise, a

contravention of subsection (1); or

or party to, a contravention of subsection (1); or

(d) conspire with others to effect a contravention of

subsection (1).

Civil penalty provisions

(3) Subsections (1) and (2) are

civil penalty provisions

Note:

Part 31 provides for pecuniary penalties for breaches of civil penalty

provisions.

151ZE Enforcement of functional separation undertaking

(1) If:

(a) a functional separation undertaking given by a person is in

force; and

(b) the Federal Court is satisfied, on the application of:

(i) the ACCC; or

(ii) a carrier; or

(iii) a carriage service provider;

that the person has breached the undertaking;

the Court may make any or all of the following orders:

(d) an order directing the disposal of network units, lines, shares

or other assets;

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

shares;

(f) an order prohibiting or deferring the payment of any sums

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

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

disregarded;

(h) an order directing the person to pay to the Commonwealth an

amount up to the amount of any financial benefit that the

person has obtained directly or indirectly and that is

reasonably attributable to the breach;

(i) any order that the Court considers appropriate directing the

person to compensate any other person (who may be the

applicant) who has suffered loss or damage as a result of the

breach;

(j) any other order that the Court considers appropriate.

Note:

See also section 142B.

(2) In addition to the Federal Court's powers under subsection (1), 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.

(3) 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.

(4) 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.

Division 2C--Non-discrimination rules

151ZF Eligible services to be supplied on a non-discriminatory basis

No discrimination between wholesale customers

(1) If:

(a) an eligible service is supplied, or proposed to be supplied, by

a person using a local access line; and

(b) any of the following conditions is satisfied:

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(i) section 142C applies to the line;

(ii) section 143 applies to the line;

(iii) neither section 142C nor section 143 applies to the line,

and there is in force a functional separation undertaking

that relates to local access line services supplied, or

proposed to be supplied, using the line;

the person must not, on or after the designated commencement

date, discriminate between the person's wholesale customers, or

the person's prospective wholesale customers, in relation to the

supply of eligible services using the line.

(2) The rule in subsection (1) does not prevent discrimination against a

wholesale customer, or prospective wholesale customer, if the

person has reasonable grounds to believe that the wholesale

customer or prospective wholesale customer would fail, to a

material extent, to comply with the terms and conditions on which

the person supplies eligible services using the line.

(3) Examples of grounds for believing as mentioned in subsection (2)

include:

(a) evidence that the wholesale customer or prospective

wholesale customer is not creditworthy; and

(b) repeated failures by the wholesale customer or prospective

wholesale customer to comply with the terms and conditions

on which the person supplied eligible services (whether or

not using the line).

No discrimination by a person in favour of itself

(4) If:

(a) a person supplies, or proposes to supply, an eligible service

using a local access line:

(i) to itself; and

(ii) to its wholesale customers or prospective wholesale

customers; and

(b) any of the following conditions is satisfied:

(i) section 142C applies to the line;

(ii) section 143 applies to the line;

(iii) neither section 142C nor section 143 applies to the line,

and there is in force a functional separation undertaking

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that relates to local access line services supplied, or

proposed to be supplied, using the line;

the person must not, on or after the designated commencement

date, discriminate in favour of itself in relation to the supply of the

eligible service.

Ancillary contraventions

(5) A person must not:

(a) aid, abet, counsel or procure a contravention of subsection (1)

or (4); or

(b) induce, whether by threats or promises or otherwise, a

contravention of subsection (1) or (4); or

or party to, a contravention of subsection (1) or (4); or

(d) conspire with others to effect a contravention of

subsection (1) or (4).

Civil penalty provisions

(6) Subsections (1), (4) and (5) are

civil penalty provisions

Note:

Part 31 provides for pecuniary penalties for breaches of civil penalty

provisions.

151ZG Eligible services--related activities to be carried on on a

non-discriminatory basis

Scope

(1) This section applies to a person, on and after the designated

commencement date, if:

(a) an eligible service is supplied, or proposed to be supplied, by

a person using a local access line; and

(b) any of the following conditions is satisfied:

(i) section 142C applies to the line;

(ii) section 143 applies to the line;

(iii) neither section 142C nor section 143 applies to the line,

and there is in force a functional separation undertaking

that relates to local access line services supplied, or

proposed to be supplied, using the line.

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No discrimination between wholesale customers

(2) The person must not, in carrying on any of the following activities,

discriminate between the person's wholesale customers or the

person's prospective wholesale customers:

(a) developing a new eligible service;

(b) enhancing an eligible service;

telecommunications network by means of which an eligible

service is, or is to be, supplied;

(d) planning for a facility or telecommunications network by

means of which an eligible service is, or is to be, supplied;

(e) an activity that is preparatory to the supply of an eligible

service;

(f) an activity that is ancillary or incidental to the supply of an

eligible service;

(g) giving information to service providers about any of the

above activities.

No discrimination by a person in favour of itself

(3) The person must not discriminate in favour of itself in relation to

the carrying on of any of the following activities:

(a) developing a new eligible service;

(b) enhancing an eligible service;

telecommunications network by means of which an eligible

service is, or is to be, supplied;

(d) planning for a facility or telecommunications network by

means of which an eligible service is, or is to be, supplied;

(e) an activity that is preparatory to the supply of an eligible

service;

(f) an activity that is ancillary or incidental to the supply of an

eligible service;

(g) giving information to service providers about any of the

above activities.

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Ancillary contraventions

(4) A person must not:

(a) aid, abet, counsel or procure a contravention of subsection (2)

or (3); or

(b) induce, whether by threats or promises or otherwise, a

contravention of subsection (2) or (3); or

or party to, a contravention of subsection (2) or (3); or

(d) conspire with others to effect a contravention of

subsection (2) or (3).

Civil penalty provisions

(5) Subsections (2), (3) and (4) are

civil penalty provisions

Note:

Part 31 provides for pecuniary penalties for breaches of civil penalty

provisions.

151ZH Statement about the differences between an access

agreement and an offer etc.

(1) If:

(a) an access agreement is entered into by a person on or after

the designated commencement date; and

(b) the eligible service to which the access agreement relates is

an eligible service supplied, or proposed to be supplied, by

the person using a local access line; and

(i) section 142C applies to the line;

(ii) section 143 applies to the line;

(iii) neither section 142C nor section 143 applies to the line,

and there is in force a functional separation undertaking

that relates to local access line services supplied, or

proposed to be supplied, using the line; and

(d) immediately before the access agreement was entered into,

there was published on the person's website:

(i) the terms and conditions relating to price or a method of

ascertaining price; or

(ii) other terms and conditions;

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on which the person offers to supply eligible services using

the line; and

(e) the terms and conditions set out in the access agreement are

not the same as the terms and conditions set out in the offer;

the person must, within 5 business days after the day on which the

access agreement was entered into, publish on the person's website

a statement, in a form approved in writing by the ACCC:

(f) identifying the parties to the access agreement; and

(g) describing the differences between the terms and conditions

set out in the access agreement and the terms and conditions

set out in the offer; and

(h) setting out such other information (if any) about the access

agreement as is required by the form.

Note:

For

access agreement

, see subsection (5).

Variation agreement

(2) If:

(a) a variation agreement is entered into by a person on or after

the designated commencement date; and

(b) the eligible service to which the relevant access agreement

relates is an eligible service supplied, or proposed to be

supplied, by the person using a local access line; and

(i) section 142C applies to the line;

(ii) section 143 applies to the line;

(iii) neither section 142C nor section 143 applies to the line,

and there is in force a functional separation undertaking

that relates to local access line services supplied, or

proposed to be supplied, using the line; and

(d) immediately before the variation agreement was entered into,

there was published on the person's website:

(i) the terms and conditions relating to price or a method of

ascertaining price; or

(ii) other terms and conditions;

on which the person offers to supply eligible services using

the line; and

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(e) the terms and conditions set out in the relevant access

agreement (as varied by the variation agreement) are not the

same as the terms and conditions set out in the offer;

the person must, within 5 business days after the day on which the

variation agreement was entered into, publish on the person's

website a statement, in a form approved in writing by the ACCC:

(f) identifying the parties to the relevant access agreement (as

varied by the variation agreement); and

(g) describing the differences between the terms and conditions

set out in the relevant access agreement (as varied by the

variation agreement) and the terms and conditions set out in

the offer; and

(h) setting out such other information (if any) about the relevant

access agreement (as varied by the variation agreement) as is

required by the form.

Note:

For

variation agreement

, see subsection (5).

Publication of offer

(2A) If:

(a) a person offers to supply eligible services to the person's

wholesale customers, or prospective wholesale customers,

using a local access line; and

(b) any of the following conditions is satisfied:

(i) section 142C applies to the line;

(ii) section 143 applies to the line;

(iii) neither section 142C nor section 143 applies to the line,

and there is in force a functional separation undertaking

that relates to local access line services supplied, or

proposed to be supplied, using the line;

the person must publish on the person's website:

ascertaining price; or

(d) other terms and conditions;

on which the person offers to supply eligible services to the

person's wholesale customers, or prospective wholesale customers,

using the line.

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Ancillary contraventions

(3) A person must not:

(a) aid, abet, counsel or procure a contravention of

subsection (1), (2) or (2A); or

(b) induce, whether by threats or promises or otherwise, a

contravention of subsection (1), (2) or (2A); or

or party to, a contravention of subsection (1), (2) or (2A); or

(d) conspire with others to effect a contravention of

subsection (1), (2) or (2A).

Civil penalty provisions

(4) Subsections (1), (2), (2A) and (3) are

civil penalty provisions

Note:

Part 31 provides for pecuniary penalties for breaches of civil penalty

provisions.

Access agreement and variation agreement

(5) For the purposes of this section,

access agreement

and

variation

agreement

have the same respective meanings as in Part XIC of

the

Competition and Consumer Act 2010

. For this purpose, assume

that:

(a) each reference in section 152AF, subsections 152AG(1) and

(3) and section 152BE of that Act to a declared service were

a reference to an eligible service; and

(b) subsection 152BE(2) of that Act had not been enacted.

151ZHA Judicial enforcement of non-discrimination rules

(1) If the Federal Court is satisfied that a person has, on or after the

designated commencement date, contravened subsection 151ZF(1),

(4) or (5), 151ZG(2), (3) or (4) or 151ZH(1), (2), (2A) or (3), the

Court may, on the application of:

(a) the ACCC; or

(b) a carrier; or

make all or any of the following orders:

(d) an order directing the person to comply with that subsection;

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(e) an order directing the person to compensate any other person

(who may be the applicant) who has suffered loss or damage

as a result of the contravention;

(f) any other order that the Court thinks appropriate.

(2) The Federal Court may discharge or vary an order granted under

this section.

52 Before section 152

Insert:

151ZI Anti-avoidance

(1) A corporation must not, either alone or together with one or more

other persons:

(a) enter into a scheme; or

(b) begin to carry out a scheme; or

for the sole or dominant purpose of avoiding the application of any

provision of this Part in relation to:

(d) the corporation; or

(e) any other corporation.

Ancillary contraventions

(2) A person must not:

(a) aid, abet, counsel or procure a contravention of

subsection (1); or

(b) induce, whether by threats or promises or otherwise, a

contravention of subsection (1); or

or party to, a contravention of subsection (1); or

(d) conspire with others to effect a contravention of

subsection (1).

Civil penalty provisions

(3) Subsections (1) and (2) are

civil penalty provisions

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Note:

Part 31 provides for pecuniary penalties for breaches of civil penalty

provisions.

Scheme

(4) For the purposes of this section,

scheme

means:

(a) any agreement, arrangement, understanding, promise or

undertaking, whether express or implied; or

(b) any scheme, plan, proposal, action, course of action or course

of conduct, whether unilateral or otherwise;

but does not include a functional separation undertaking.

151ZJ Self-incrimination

(1) A person is not excused from:

(a) giving a report in compliance with a provision of a functional

separation undertaking covered by subsection 151A(10) or

151C(10) or (11); or

(b) giving a report or information under section 151ZA:

on the ground that the report or information might tend to

incriminate the person or expose the person to a penalty.

(2) However, in the case of an individual:

(a) the report or information; or

(b) giving the report or information; or

indirect consequence of giving the report or information;

is not admissible in evidence against the individual:

(d) in civil proceedings for the recovery of a penalty; or

(e) in criminal proceedings (other than proceedings for an

offence against section 137.1 or 137.2 of the

Criminal Code

that relates to the report).

151ZK Delegation

The ACCC may, by writing, delegate to a person who is:

(a) a member of the staff of the ACCC; and

(b) an SES employee or acting SES employee;

the ACCC's powers under any of the following provisions:

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(d) section 151D (further information);

(e) subsection 151F(7) (extension of decision-making period);

(f) section 151H (serial undertakings);

(g) section 151R (further information);

(h) subsection 151T(7) (extension of decision-making period).

151ZL Review by the Australian Competition Tribunal

(1) If the ACCC makes a decision under section 151F to reject a

functional separation undertaking that was given by a person or

persons, the person or persons may apply to the Australian

Competition Tribunal for a review of the decision.

(2) If the ACCC makes a decision under section 151N to vary a

functional separation undertaking that was given by a person or

persons, the person or persons may apply to the Australian

Competition Tribunal for a review of the decision.

(3) If the ACCC makes a decision under section 151T to reject a

variation that was given by a person or persons, the person or

persons may apply to the Australian Competition Tribunal for a

review of the decision.

(4) If the ACCC makes a decision under section 151W to revoke a

functional separation undertaking that was given by a person or

persons, the person or persons may apply to the Australian

Competition Tribunal for a review of the decision.

(5) If the ACCC makes a decision under section 151Z to vary a

functional separation undertaking that was given by a person or

persons, the person or persons may apply to the Australian

Competition Tribunal for a review of the decision.

(6) An application under this section for a review of a decision must

be:

(a) in writing; and

(b) in the case of an application under subsection (1), (3), (4) or

(5)--made within 21 days after the ACCC made the decision;

and

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within 14 days after the ACCC made the decision.

(7) If the Australian Competition Tribunal receives an application

under this section for a review of a decision, the Australian

Competition Tribunal must review the decision.

151ZM Functions and powers of the Australian Competition

Tribunal etc.

Decision on review

(1) On a review of a decision of the ACCC of a kind mentioned in

section 151ZL, the Australian Competition Tribunal may make a

decision:

(a) affirming the ACCC's decision; or

(b) setting aside the ACCC's decision;

and, for the purposes of the review, the Australian Competition

Tribunal may perform all the functions and exercise all the powers

of the ACCC.

(2) A decision by the Australian Competition Tribunal:

(a) affirming a decision of the ACCC; or

(b) setting aside a decision of the ACCC;

is taken, for the purposes of this Act (other than this section or

section 151ZL), to be a decision of the ACCC.

(3) If the Australian Competition Tribunal sets aside a decision of the

ACCC under section 151F to reject a functional separation

undertaking, subsection 151F(5) has effect as if the undertaking

had been received by the ACCC immediately after the decision

was set aside.

Note:

This subsection resets the start of the 3-month decision-making period

set out in subsection 151F(5).

(4) If the Australian Competition Tribunal sets aside a decision of the

ACCC under section 151T to reject a variation, subsection 151T(5)

has effect as if the variation had been received by the ACCC

immediately after the decision was set aside.

Note:

This subsection resets the start of the 3-month decision-making period

set out in subsection 151T(5).

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Conduct of review

(5) For the purposes of a review by the Australian Competition

Tribunal, the member of the Australian Competition Tribunal

presiding at the review may require the ACCC to give such

information, make such reports and provide such other assistance

to the Australian Competition Tribunal as the member specifies.

(6) For the purposes of a review, the Australian Competition Tribunal

may have regard to any information given, documents produced or

evidence given to the ACCC in connection with the making of the

decision to which the review relates.

(7) Paragraphs 103(1)(a) and (b) and 108(b) of the

Competition and

Consumer Act 2010

have effect, in relation to a review, as if a

reference in those paragraphs to that Act included a reference to

this Part.

Note:

Division 2 of Part IX of the

Competition and Consumer Act 2010

applies to proceedings before the Australian Competition Tribunal.

151ZN Provisions that do not apply in relation to an Australian

Competition Tribunal review

Division 1 of Part IX of the

Competition and Consumer Act 2010

does not apply in relation to a review by the Australian

Competition Tribunal of a decision of the ACCC of a kind

mentioned in section 151ZL of this Act.

53 After paragraph 152(1)(a)

Insert:

(aa) a line; or

54 Paragraphs 152(2)(a) and (b)

After "network", insert ", line".

55 At the end of section 155

Add:

(4) Subsections (1) to (3) do not apply in determining the meaning of

an expression used in:

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(a) section 142C; or

(b) sections 151ZF, 151ZG and 151ZH, to the extent to which

they relate to a line to which section 142C applies; or

relates to:

(i) section 142C; or

(ii) section 151ZF, 151ZG or 151ZH, to the extent to which

that section relates to a line to which section 142C

applies.

56 After section 155

Insert:

155A When a person is in a position to exercise control of a line

(1) For the purposes of this Part, a person (the

controller

) is in a

position to exercise control of a line if:

(a) the controller legally or beneficially owns the line (whether

alone or together with one or more other persons); or

(b) the controller is in a position, either alone or together with an

associate of the controller and whether directly or indirectly:

(i) to exercise control of the operation of all or part of the

line; or

(ii) to exercise control of the selection of the kinds of

services that are supplied using the line; or

(iii) to exercise control of the supply of services using the

line; or

owns the line (whether alone or together with one or more

other persons), and:

(i) the controller is in a position, either alone or together

with an associate of the controller, to exercise control of

the company; or

(ii) the controller, either alone or together with an associate

of the controller, is in a position to veto any action taken

by the board of directors of the company; or

(iii) the controller, either alone or together with an associate

of the controller, is in a position to appoint or secure the

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appointment of, or veto the appointment of, at least half

of the board of directors of the company; or

(iv) the controller, either alone or together with an associate

of the controller, is in a position to exercise, in any other

manner, whether directly or indirectly, direction or

restraint over any substantial issue affecting the

management or affairs of the company; or

(v) the company or more than 50% of its directors act, or

are accustomed to act, in accordance with the directions,

instructions or wishes of, or in concert with, the

controller, the controller and an associate of the

controller acting together, or the directors of the

controller; or

(vi) the company or more than 50% of its directors, under a

contract or an arrangement or understanding (whether

formal or informal), are intended or expected to act in

accordance with the directions, instructions or wishes

of, or in concert with, the controller, the controller and

an associate of the controller acting together, or the

directors of the controller.

(2) An employee is not, except through an association with another

person, to be regarded as being in a position to exercise control of a

line under subsection (1) purely because of being an employee.

(3) More than one person may be in a position to exercise control of a

line.

(4) Subsections (1) to (3) do not apply in determining the meaning of

an expression used in:

(a) section 143; or

(b) sections 151ZF, 151ZG and 151ZH, to the extent to which

they relate to a line to which section 143 applies; or

relates to:

(i) section 143; or

(ii) section 151ZF, 151ZG or 151ZH, to the extent to which

that section relates to a line to which section 143

applies.

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57 Section 156 (heading)

Repeal the heading, substitute:

156 Deemed networks etc.

58 Paragraph 156(1)(a)

After "2011", insert ", but before the designated commencement date".

59 Paragraph 156(1)(b)

Omit "or small business" (wherever occurring).

60 Paragraph 156(1)(d)

After "2011", insert ", but before the designated commencement date".

61 Paragraph 156(2)(a)

After "2011", insert ", but before the designated commencement date".

62 Paragraph 156(2)(b)

Omit "or small business" (wherever occurring).

63 Paragraph 156(2)(d)

After "2011", insert ", but before the designated commencement date".

63A Paragraph 156(3)(b)

Before "the network', insert "before the designated commencement

date,".

64 Subsection 156(4)

Omit "subsection (2) does not apply to the extension.", substitute:

then:

(d) subsection (2) does not apply to the extension at any time

before the designated commencement date; and

(e) if, at a time that occurs on or after the designated

commencement date, there is in force a legally enforceable

agreement that satisfies the following conditions:

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(i) the agreement provides for the transfer of ownership or

control of the infrastructure of the extension to an NBN

corporation;

(ii) the agreement is covered by a determination made under

subsection 577BA(9);

subsection (2) of this section does not apply to the extension

at that time; and

(f) if, at a time that occurs on or after the designated

commencement date, there is in force a legally enforceable

agreement that satisfies the following conditions:

(i) the contract provides for the deactivation or

decommissioning of the infrastructure of the extension;

(ii) the contract was entered into between NBN Co and the

listed Optus companies (see subsection (7));

subsection (2) does not apply to the extension at that time.

65 At the end of section 156

Add:

(6) Subsections (1) and (2) do not apply in determining the meaning of

an expression used in:

(a) section 142C; or

(b) sections 151ZF, 151ZG and 151ZH, to the extent to which

they relate to a line to which section 142C applies; or

relates to:

(i) section 142C; or

(ii) section 151ZF, 151ZG or 151ZH, to the extent to which

that section relates to a line to which section 142C

applies.

Listed Optus company

(7) For the purposes of this section,

listed Optus company

means:

(a) Optus Networks Pty Limited (ACN 008 570 330); or

(b) Optus Internet Pty Limited (ACN 083 164 532); or

(d) Optus Vision Media Pty Limited (ACN 070 870 647); or

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(e) Optus Systems Pty Limited (ACN 056 541 167); or

(f) SingTel Optus Pty Limited (ACN 052 833 208).

66 After section 156

Insert:

156A Certain lines deemed to have come into existence on or after

the designated commencement date

(1) For the purposes of this Part, if:

(a) a local access line came into existence before the designated

commencement date; and

(b) before the designated commencement date, the line was used

wholly or principally to supply a superfast carriage service to

non-residential customers in Australia; and

(i) the construction or alteration of premises; or

(ii) changes to the activities carried out at premises;

the line is used wholly or principally to supply a superfast

carriage service to residential customers in Australia;

the line is taken to have come into existence on or after the

designated commencement date.

(2) Subsection (1) does not apply in determining the meaning of an

expression used in:

(a) section 143; or

(b) sections 151ZF, 151ZG and 151ZH, to the extent to which

they relate to a line to which section 143 applies; or

relates to:

(i) section 143; or

(ii) section 151ZF, 151ZG or 151ZH, to the extent to which

that section relates to a line to which section 143

applies.

67 Section 157 (heading)

Repeal the heading, substitute:

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157 Certain installations and connections are not taken to be an

extension, alteration or upgrade of a network

68 Section 157

Before "For", insert "(1)".

69 At the end of section 157

Add:

(2) Subsection (1) does not apply in determining the meaning of an

expression used in:

(a) section 142C; or

(b) sections 151ZF, 151ZG and 151ZH, to the extent to which

they relate to a line to which section 142C applies; or

relates to:

(i) section 142C; or

(ii) section 151ZF, 151ZG or 151ZH, to the extent to which

that section relates to a line to which section 142C

applies.

71 After subsection 158(2)

Insert:

(2A) Subsection (2) has effect subject to subsection (2B).

(2B) For the purposes of:

(a) section 142C; and

(b) sections 151ZF, 151ZG and 151ZH, to the extent to which

they relate to a line to which section 142C applies; and

relates to:

(i) section 142C; or

(ii) section 151ZF, 151ZG or 151ZH, to the extent to which

that section relates to a line to which section 142C

applies;

if a line in a multi-unit building is used to supply a superfast

carriage service to a residential customer living in a unit in the

building:

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(d) the line is taken to be a

local access line

; and

(e) the line is taken to form part of the infrastructure of a

telecommunications network.

72 After section 158

Insert:

158A Deemed local access lines

(1) For the purposes of this Part, if:

(a) a local access line was in existence immediately before the

designated commencement date; and

(b) the line is extended on or after the designated commencement

date;

then:

right; and

(d) the local access line referred to in paragraph (c) is taken to

have come into existence on or after the designated

commencement date.

(2) Subsection (1) does not apply in determining the meaning of an

expression used in:

(a) section 143; or

(b) sections 151ZF, 151ZG and 151ZH, to the extent to which

they relate to a line to which section 143 applies; or

relates to:

(i) section 143; or

(ii) section 151ZF, 151ZG or 151ZH, to the extent to which

that section relates to a line to which section 143

applies.

73 Section 159

Before "For", insert "(1)".

74 At the end of section 159

Add:

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(2) For the purposes of this Part, an

alteration

of a line does not

include an extension of the line.

75 Section 160

Before "For", insert "(1)".

76 At the end of section 160

Add:

(2) For the purposes of this Part, an

upgrade

of a line does not include

an extension of the line.

77 At the end of Part 8

Add:

161 Extended meaning of

residential customer

Home-based business carried on by an individual

(1) For the purposes of this Part, if a business is carried on (otherwise

than in the capacity of trustee) by an individual, and:

(a) most or all of the work of the business is carried out at the

residence of the individual; or

(b) the business does not occupy any premises other than the

residence of the individual;

the individual, in the individual's capacity as a customer, is taken

to be a

residential customer

Home-based business carried on by a partnership

(2) For the purposes of this Part, if a business is carried on by a

partnership, and:

(a) most or all of the work of the business is carried out at the

residence of an individual who is:

(i) one of the partners of the partnership; or

(ii) the director, or one of the directors, of a corporation that

is one of the partners of the partnership; or

(b) the business does not occupy any premises other than the

residence of an individual who is:

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(i) one of the partners of the partnership; or

(ii) the director, or one of the directors, of a corporation that

is one of the partners of the partnership;

the partnership, in its capacity as a customer, is taken to be a

residential customer

Home-based business carried on by a corporation

(3) For the purposes of this Part, if a business is carried on (otherwise

than in the capacity of trustee) by a corporation, and:

(a) most or all of the work of the business is carried out at the

residence of an individual who is the director, or one of the

directors, of the corporation; or

(b) the business does not occupy any premises other than the

residence of an individual who is the director, or one of the

directors, of the corporation;

the corporation, in its capacity as a customer, is taken to be a

residential customer

Home-based business carried on by a trust

(4) For the purposes of this Part, if a business is carried on by a trust,

and:

(a) most or all of the work of the business is carried out at the

residence of an individual who is:

(i) a trustee of the trust; or

(ii) the director, or one of the directors, of a corporation that

is a trustee of the trust; or

(b) the business does not occupy any premises other than the

residence of an individual who is:

(i) a trustee of the trust; or

(ii) the director, or one of the directors, of a corporation that

is a trustee of the trust;

a trustee of the trust, in the trustee's capacity as a customer, is

taken to be a

residential customer

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162 Close proximity

(1) The Minister may, by legislative instrument, determine that, if

specified circumstances exist in relation to premises and a line, the

premises are taken, for the purposes of this Part, to be in close

proximity to the line.

(2) The Minister may, by legislative instrument, determine that, if

specified circumstances exist in relation to premises and a line, the

premises are taken, for the purposes of this Part, not to be in close

proximity to the line.

(3) A determination under subsection (1) or (2) must be of a legislative

character.

Delegation to the ACCC

(4) The Minister may, by writing, delegate to the ACCC any or all of

the Minister's powers under the following provisions:

(a) subsection (1);

(b) subsection (2).

(5) In performing a delegated function or exercising a delegated

power, the ACCC must comply with any written directions of the

Minister.

78 Before paragraph 564(3)(a)

Insert:

(aaa) section 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF,

151ZG, 151ZH or 151ZI; or

(aab) the carrier licence condition set out in Part 1 of Schedule 1 in

so far as that condition relates to section 142C, 143, 143B,

151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH or 151ZI; or

79 After paragraph 564(3)(ba)

Insert:

(bb) the service provider rule set out in Part 1 of Schedule 2 in so

far as that rule relates to section 142C, 143, 143B, 151ZA,

151ZB, 151ZD, 151ZF, 151ZG, 151ZH or 151ZI; or

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80 Subsection 564(3) (before note 1)

Insert:

Note 1AA: Sections 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG,

151ZH and 151ZI are set out in Part 8 (local access lines).

80A After subsection 564(3)

Insert:

Injunctions relating to contraventions of section 151ZI

(3AA) If a person has engaged, is engaging or is proposing to engage, in

any conduct in contravention of section 151ZI, the Federal Court

may, on the application of a carrier or a carriage service provider,

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.

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

81 Before paragraph 571(3)(a)

Insert:

(aaa) section 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF,

151ZG, 151ZH or 151ZI; or

(aab) the carrier licence condition set out in Part 1 of Schedule 1 in

so far as that condition relates to section 142C, 143, 143B,

151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH or 151ZI; or

82 After paragraph 571(3)(ba)

Insert:

(bb) the service provider rule set out in Part 1 of Schedule 2 in so

far as that rule relates to section 142C, 143, 143B, 151ZA,

151ZB, 151ZD, 151ZF, 151ZG, 151ZH or 151ZI; or

83 Subsection 571(3) (before note 1)

Insert:

Note 1AA: Sections 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG,

151ZH and 151ZI are set out in Part 8 (local access lines).

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84 At the end of paragraph 572E(6)(c)

Add "(other than section 142C, 143, 143B, 151ZA, 151ZB, 151ZD,

151ZF, 151ZG, 151ZH or 151ZI)".

85 After paragraph 572F(1)(c)

Insert:

(ca) if the alleged contravention consists of a breach of:

(i) section 68, to the extent to which that section relates to

the carrier licence condition set out in Part 1 of

Schedule 1 in so far as that condition relates to

section 142C, 143, 143B, 151ZA, 151ZB, 151ZD,

151ZF, 151ZG, 151ZH or 151ZI; or

(ii) section 101, to the extent to which that section relates to

the service provider rule set out in Part 1 of Schedule 2

in so far as that rule relates to section 142C, 143, 143B,

151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH or

151ZI; or

(iii) section 142C, 143, 143B, 151ZA, 151ZB, 151ZD,

151ZF, 151ZG, 151ZH or 151ZI;

contain a statement to the effect that the matter will not be

dealt with by the Federal Court if the penalty specified in the

notice is paid to the ACCC, on behalf of the Commonwealth,

within:

(iv) 28 days after the notice is given; or

(v) if the ACCC allows a longer period--that longer period;

and

86 Paragraph 572F(1)(d)

Before "contain", insert "if paragraph (ca) does not apply--".

87 At the end of section 572L

Add:

(3) The ACCC may, by writing, appoint a member of the staff of the

ACCC as an authorised infringement notice officer for the

purposes of this Part.

(4) The ACCC must not appoint a person under subsection (3) unless

the person:

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(a) is an SES employee or acting SES employee; or

(b) holds, or is acting in, an Executive Level 1 or 2 position or an

equivalent position.

Note:

SES employee

is defined in the

Acts Interpretation Act 1901

(5) An authorised infringement notice officer appointed under

subsection (1) must not give or withdraw an infringement notice if

the alleged contravention consists of a breach of:

(a) section 68, to the extent to which that section relates to the

carrier licence condition set out in Part 1 of Schedule 1 in so

far as that condition relates to section 142C, 143, 143B,

151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH or 151ZI; or

(b) section 101, to the extent to which that section relates to the

service provider rule set out in Part 1 of Schedule 2 in so far

as that rule relates to section 142C, 143, 143B, 151ZA,

151ZB, 151ZD, 151ZF, 151ZG, 151ZH or 151ZI; or

151ZG, 151ZH or 151ZI.

(6) An authorised infringement notice officer appointed under

subsection (3) must not give or withdraw an infringement notice

unless the alleged contravention consists of a breach of:

(a) section 68, to the extent to which that section relates to the

carrier licence condition set out in Part 1 of Schedule 1 in so

far as that condition relates to section 142C, 143, 143B,

151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH or 151ZI; or

(b) section 101, to the extent to which that section relates to the

service provider rule set out in Part 1 of Schedule 2 in so far

as that rule relates to section 142C, 143, 143B, 151ZA,

151ZB, 151ZD, 151ZF, 151ZG, 151ZH or 151ZI; or

151ZG, 151ZH or 151ZI.

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Schedule 3--Statutory infrastructure

providers etc.

Part 1--Amendments

Division 1

--Service provider determinations

Telecommunications Act 1997

1A After subsection 99(1)

Insert:

(1A) The Minister may, by legislative instrument, make a determination

setting out rules that apply to carriage service providers in relation

to the supply of specified carriage services. The determination is

called a

service provider determination

1B At the end of section 99

Add:

(6) A service provider determination under subsection (1) has no effect

to the extent to which it is inconsistent with a service provider

determination under subsection (1A).

Division 2

--Other amendments

Competition and Consumer Act 2010

1 After section 152BCCA

Insert:

152BCCB Statutory infrastructure provider standards and rules

prevail over inconsistent access determinations

An access determination made after the commencement of this

section has no effect to the extent to which it is inconsistent with:

(a) a standard determined under section 360U of the

Telecommunications Act 1997

; or

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(b) rules made under section 360V of that Act.

2 After section 152BDCA

Insert:

152BDCB Statutory infrastructure provider standards and rules

prevail over inconsistent binding rules of conduct

Binding rules of conduct made after the commencement of this

section have no effect to the extent to which they are inconsistent

with:

(a) a standard determined under section 360U of the

Telecommunications Act 1997

; or

(b) rules made under section 360V of that Act.

3 Before section 152BEC

Insert:

152BEBH Statutory infrastructure provider standards prevail over

inconsistent access agreements

(1) An access agreement entered into after the commencement of this

section has no effect to the extent to which it is inconsistent with a

standard determined under section 360U of the

Telecommunications Act 1997

(2) Subsection (1) does not apply to an access agreement covered by

subsection 360U(5) of the

Telecommunications Act 1997

152BEBI Statutory infrastructure provider rules prevail over

inconsistent access agreements

(1) An access agreement entered into after the commencement of this

section has no effect to the extent to which it is inconsistent with

rules made under section 360V of the

Telecommunications Act

1997

(2) Subsection (1) does not apply to an access agreement covered by

subsection 360V(3) of the

Telecommunications Act 1997

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4 After section 152CBIC

Insert:

152CBID Statutory infrastructure provider standards and rules

prevail over inconsistent special access undertakings

A special access undertaking has no effect to the extent to which it

is inconsistent with:

(a) a standard determined under section 360U of the

Telecommunications Act 1997

; or

(b) rules made under section 360V of that Act.

Telecommunications Act 1997

7 After Part 18

Insert:

Part 19--Statutory infrastructure providers

Division 1--Introduction

360 Simplified outline of this Part

•

The statutory infrastructure provider for a service area must,

on reasonable request by a carriage service provider on behalf

of an end-user at premises in the service area, connect the

premises to a qualifying telecommunications network in order

that the carriage service provider can provide qualifying

carriage services to the end-user at the premises.

•

A statutory infrastructure provider must comply with

standards, benchmarks and rules determined by the Minister.

•

A statutory infrastructure provider must publish the terms and

conditions on which it offers to:

(a)

connect premises; or

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(b)

supply related eligible services to carriage service

providers.

360A Definitions

In this Part:

access agreement

has the same meaning as in Part XIC of the

Competition and Consumer Act 2010

building redevelopment project

has the meaning given by

section 360Y.

designated day

means the day on which a declaration is made

under paragraph 48(1)(c) or (2)(a) of the

National Broadband

Network Companies Act 2011

Note:

The declaration will state that, in the Minister's opinion, the national

broadband network should be treated as built and fully operational.

designated service area

has the meaning given by section 360L.

eligible service

has the same meaning as in section 152AL of the

Competition and Consumer Act 2010

GDA94

means Geocentric Datum of Australia 1994.

general service area

has the meaning given by section 360F.

interim NBN service area

has the meaning given by section 360D.

NBN Co

has the same meaning as in the

National Broadband

Network Companies Act 2011

nominated service area

has the meaning given by section 360H or

360J.

project area

, for a building redevelopment project, has the

meaning given by section 360Y.

provisional interim NBN service area

has the meaning given by

section 360D.

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provisional nominated service area

has the meaning given by

section 360H.

qualifying carriage service

means:

(a) a qualifying fixed-line

carriage service; or

(b) a qualifying fixed wireless carriage service; or

qualifying fixed-line carriage service

means a carriage service,

where:

(a) the carriage service enables end-users to download

communications; and

(b) the carriage service is supplied using a line to premises

occupied or used by an end-user; and

is at least 25 megabits per second; and

(d) the peak upload transmission speed of the carriage service is

at least 5 megabits per second.

qualifying fixed-line telecommunications network

means a

telecommunications network that is used to supply a qualifying

fixed-line carriage service to customers in Australia.

qualifying fixed wireless carriage service

has the meaning given

by section 360AA.

qualifying satellite carriage service

means a carriage service,

where:

(a) the carriage service enables end-users to download

communications; and

(b) the carriage service is supplied using a satellite; and

is at least 25 megabits per second; and

(d) the peak upload transmission speed of the carriage service is

at least 5 megabits per second;

but does not include a public mobile telecommunications service.

qualifying telecommunications network

means a

telecommunications network that is used, or proposed to be used,

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to supply a qualifying carriage service to customers, or prospective

customers, in Australia.

relevant service area

, in relation to a statutory infrastructure

provider, means a service area for which the provider is the

statutory infrastructure provider.

request

includes a notional request by a corporation (in its capacity

as a carriage service provider) to itself (in its capacity as a carrier).

service area

has the meaning given by section 360C.

statutory infrastructure provider

(a) for an interim NBN service area--has the meaning given by

section 360E; or

(b) for the general service area--has the meaning given by

section 360G; or

section 360K; or

(d) for a designated service area--has the meaning given by

section 360L.

TAB vector format

means the MapInfo proprietary format that

contains a spatial representation of data using points, lines, and

polygons.

360AA Qualifying fixed wireless carriage service

(1) For the purposes of this Part,

qualifying fixed wireless carriage

service

means a carriage service, where:

(a) the carriage service is supplied using a fixed wireless

technology platform; and

(b) the carriage service is marketed to customers, or potential

customers, as a fixed wireless service; and

communications; and

(d) the peak download transmission speed of the carriage service

is at least 25 megabits per second; and

(e) the peak upload transmission speed of the carriage service is

at least 5 megabits per second; and

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(f) the carriage service is not a public mobile

telecommunications service; and

(g) the carriage service is a listed carriage service; and

(h) the conditions (if any) determined under subsection (2) are

satisfied.

(2) The Minister may, by legislative instrument, determine one or

more conditions for the purposes of paragraph (1)(h).

(3) For the purposes of this section,

fixed wireless technology

platform

has the meaning generally accepted within the

telecommunications industry.

Division 2--Service areas and statutory infrastructure

providers

Subdivision AA--Introduction

360B Simplified outline of this Division

•

There are 4 types of service area, as follows:

(a)

an interim NBN service area;

(b)

the general service area;

(c)

a nominated service area;

(d)

a designated service area.

•

Interim NBN service areas exist only before the designated

day.

•

The general service area exists only after the start of the

designated day.

•

An NBN corporation will be the statutory infrastructure

provider for an interim NBN service area.

•

NBN Co will be the statutory infrastructure provider for the

general service area.

•

A nominated service area is an area that is attributable to:

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(a)

a declaration made by a carrier; or

(b)

certain carrier licence conditions declarations made by

the Minister.

•

The statutory infrastructure provider for a nominated service

area that is attributable to a declaration made by a carrier will

be:

(a)

the carrier; or

(b)

another carrier declared by the Minister.

•

The statutory infrastructure provider for a nominated service

area that is attributable to a carrier licence conditions

declaration will be:

(a)

the carrier to whom the carrier licence conditions

declaration applies; or

(b)

another carrier declared by the Minister.

•

A designated service area is an area declared by the Minister.

•

The statutory infrastructure provider for a designated service

area will be a carrier declared by the Minister.

•

Nominated service areas and designated service areas are

excluded from interim NBN service areas and the general

service area.

•

Designated service areas are excluded from nominated service

areas.

360C Definition of

service area

For the purposes of this Part,

service area

means:

(a) before the designated day:

(i) an interim NBN service area; or

(ii) a nominated service area; or

(iii) a designated service area; or

(b) after the start of the designated day:

(i) the general service area; or

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(ii) a nominated service area; or

(iii) a designated service area.

Subdivision A--Rules applicable before the designated day

360D Interim NBN service area

(1) For the purposes of the application of this Part before the

designated day, an

interim NBN service area

is so much of a

provisional interim NBN service area as is not:

(a) the whole or a part of a nominated service area; or

(b) the whole or a part of a designated service area.

Provisional interim NBN service area

(2) If, during the period:

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

(b) ending immediately before the designated day;

there begins to be published on NBN Co's website a statement to

the effect that a particular area in Australia is ready for service,

NBN Co must:

provisional

interim NBN service area

for the purposes of the application

of this Part before the designated day; and

(d) do so within 10 business days after the end of the month in

which the statement began to be published.

Note:

For the format of the description of the area, see section 360LA.

(3) If, before the commencement of this section, there was published

on NBN Co's website a statement to the effect that a particular area

in Australia is ready for service, NBN Co must:

(a) by written instrument, declare that the area is a

provisional

interim NBN service area

for the purposes of the application

of this Part before the designated day; and

(b) do so within 10 business days after the commencement of

this section.

Note:

For the format of the description of the area, see section 360LA.

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Publication etc.

(4) NBN Co must publish a copy of a declaration made by it under

subsection (2) or (3) on its website.

(5) NBN Co must give a copy of a declaration made by it under

subsection (2) or (3) to the ACMA.

Revocation

(6) A declaration made under subsection (2) or (3) cannot be revoked.

Variation

(7) A declaration made under subsection (2) or (3) cannot be varied

except under subsection (8) or (9).

(8) A declaration made under subsection (2) or (3) cannot be varied by

NBN Co except to correct a clerical error or obvious mistake.

(9) The Minister may, by writing, vary a declaration made under

subsection (2) or (3).

(10) The Minister must give a copy of a variation under subsection (9)

to the ACMA.

(11) Before making a decision under subsection (9) to vary a

declaration, the Minister must:

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

(i) setting out the draft variation; and

(ii) inviting persons to make submissions to the Minister

about the draft variation within the time limit specified

in the notice; and

(b) consider any submissions received within the time limit

specified in the notice.

(12) The time limit must not be shorter than 10 business days after the

notice is published.

Rules

(13) In making a declaration under subsection (2) or (3), NBN Co must

comply with any rules under subsection (14).

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(14) The Minister may, by legislative instrument, make rules for the

purposes of subsection (13).

Declaration and variation are not legislative instruments

(15) A declaration made under subsection (2) or (3) is not a legislative

instrument.

(16) A variation under subsection (8) or (9) is not a legislative

instrument.

360E Statutory infrastructure provider for an interim NBN service

area

For the purposes of the application of this Part before the

designated day, if:

(a) an area is a provisional interim NBN service area because of

a section 360D declaration made by NBN Co; and

(b) the whole or a part of the provisional interim NBN service

area is an interim NBN service area;

NBN Co is the

statutory infrastructure provider

for the interim

NBN service area.

Subdivision B--Rules applicable after the start of the

designated day

360F General service area

For the purposes of the application of this Part after the start of the

designated day, the

general service area

means Australia, other

than:

(a) a nominated service area; or

(b) a designated service area.

360G Statutory infrastructure provider for the general service area

For the purposes of the application of this Part after the start of the

designated day, NBN Co is the

statutory infrastructure provider

for the general service area.

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Subdivision C--Rules applicable before, at and after the start

of the designated day

360H Nominated service area--declaration made by a carrier

(1) For the purposes of this Part, if a provisional nominated service

area is attributable to a declaration under this section, so much of

the provisional nominated service area as is not:

(a) the whole or a part of a provisional nominated service area

that is attributable to a subsequent declaration under this

section; or

(b) the whole or a part of a designated service area;

is a

nominated service area

Provisional nominated service area--real estate development

project

(2) If:

(a) after the commencement of this section, a carrier (other than

an NBN corporation) installs telecommunications network

infrastructure that will enable the supply of eligible services

to premises in the whole of the project area of a real estate

development project; and

(b) the installation was carried out under a contract; and

are satisfied;

the carrier must:

(d) by written instrument, declare that the whole of the project

area is a

provisional nominated service area

for the purposes

of this Part; and

(e) do so within 10 business days after completing the

installation of that infrastructure.

Note:

For the format of the description of the area, see section 360LA.

(3) The Minister may, by legislative instrument, specify conditions for

the purposes of paragraph (2)(c).

(3A) The Minister may, by legislative instrument, exempt a specified

real estate development project from subsection (2).

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(3B) Subsection (2) does not apply if the supply of the eligible services

mentioned in paragraph (2)(a) is, or will be, in the circumstances

specified in a determination under subsection 360Q(4).

Provisional nominated service area--building redevelopment

project

(4) If:

(a) after the commencement of this section, a carrier (other than

an NBN corporation) installs telecommunications network

infrastructure that will enable the supply of eligible services

to premises in the whole of the project area of a building

redevelopment project; and

(b) the installation was carried out under a contract; and

are satisfied;

the carrier must:

(d) by written instrument, declare that the whole of the project

area is a

provisional nominated service area

for the purposes

of this Part; and

(e) do so within 10 business days after completing the

installation of that infrastructure.

Note:

For the format of the description of the area, see section 360LA.

(5) The Minister may, by legislative instrument, specify conditions for

the purposes of paragraph (4)(c).

(5A) The Minister may, by legislative instrument, exempt a specified

building redevelopment project from subsection (4).

(5B) Subsection (4) does not apply if the supply of the eligible services

mentioned in paragraph (4)(a) is, or will be, in the circumstances

specified in a determination under subsection 360Q(4).

Infrastructure installed under a contract

(6) If:

(a) a carrier (other than an NBN corporation) has installed

telecommunications network infrastructure that will enable

the supply of eligible services to all of the premises in a

particular area; and

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(b) the area does not consist of, and is not included in:

(i) the project area of a real estate development project; or

(ii) the project area of a building redevelopment project;

and

(d) under the contract, the carrier is or was required, on

reasonable request by a carriage service provider on behalf of

an end-user at premises in the area, to connect the premises

to a qualifying telecommunications network in order that the

carriage service provider can provide eligible services to the

end-user at the premises; and

(e) the conditions specified in an instrument under subsection (7)

are satisfied;

the carrier may, by written instrument, declare that the area is a

provisional nominated service area

for the purposes of this Part.

Note:

For the format of the description of the area, see section 360LA.

(7) The Minister may, by legislative instrument, specify conditions for

the purposes of paragraph (6)(e).

Publication etc.

(8) A carrier must publish on its website a copy of a declaration made

by it under this section.

(9) A carrier must give a copy of a declaration made by it under this

section to the ACMA.

Principles

(10) In making a declaration under this section, a carrier must comply

with any principles determined under subsection (11).

(11) The Minister may, by legislative instrument, determine principles

for the purposes of subsection (10).

Revocation

(12) A declaration made under this section cannot be revoked.

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Variation

(13) A declaration made under this section cannot be varied except

under subsection (14).

(14) The Minister may, by writing, vary a declaration made under this

section.

(15) The Minister must give a copy of a variation under subsection (14)

to the ACMA.

(16) Before making a decision under subsection (14) to vary a

declaration, the Minister must:

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

(i) setting out the draft variation; and

(ii) inviting persons to make submissions to the Minister

about the draft variation within the time limit specified

in the notice; and

(b) consider any submissions received within the time limit

specified in the notice.

(17) The time limit must not be shorter than 10 business days after the

notice is published.

Declaration and variation are not legislative instruments

(18) A declaration made under this section is not a legislative

instrument.

(19) A variation under subsection (14) is not a legislative instrument.

Area may consist of the whole or a part of a building

(20) An area specified in a declaration under subsection (6) may consist

of the whole or a part of a building specified in the declaration.

360HA Nominated service area--anticipatory notice to be given to

the ACMA by a carrier

Nominated service area--real estate development project

(1) If:

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(a) after the commencement of this section, a carrier (other than

an NBN corporation) enters into a contract for the installation

of telecommunications network infrastructure that will enable

the supply of eligible services to premises in the whole of the

project area of a real estate development project; and

(b) when the installation is completed, the carrier will be

required, by subsection 360H(2), to declare that the whole of

the project area is a provisional nominated service area for

the purposes of this Part;

the carrier must:

(i) states that the carrier has entered into the contract; and

(ii) specifies the project area; and

(iii) describes the telecommunications network infrastructure

that is to be installed under the contract; and

(iv) sets out the carrier's estimate of the likely completion

date for the installation; and

(d) do so within 10 business days after entering into the contract.

Note:

For the format of the description of the area, see section 360LA.

(2) If:

(a) before the commencement of this section, a carrier (other

than an NBN corporation) entered into a contract for the

installation of telecommunications network infrastructure that

will enable the supply of eligible services to premises in the

whole of the project area of a real estate development project;

and

(b) the installation was not completed before the commencement

of this section; and

required, by subsection 360H(2), to declare that the whole of

the project area is a provisional nominated service area for

the purposes of this Part;

the carrier must:

(d) give the ACMA a written notice that:

(i) states that the carrier has entered into the contract; and

(ii) specifies the project area; and

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(iii) describes the telecommunications network infrastructure

that is to be installed under the contract; and

(iv) sets out the carrier's estimate of the likely completion

date for the installation; and

(e) do so:

(i) within 90 days after the commencement of this section;

(ii) if the ACMA allows a longer period--within that longer

period.

Note:

For the format of the description of the area, see section 360LA.

Nominated service area--building redevelopment project

(3) If:

(a) after the commencement of this section, a carrier (other than

an NBN corporation) enters into a contract for the installation

of telecommunications network infrastructure that will enable

the supply of eligible services to premises in the whole of the

project area of a building redevelopment project; and

(b) when the installation is completed, the carrier will be

required, by subsection 360H(4), to declare that the whole of

the project area is a provisional nominated service area for

the purposes of this Part;

the carrier must:

(i) states that the carrier has entered into the contract; and

(ii) specifies the project area; and

(iii) describes the telecommunications network infrastructure

that is to be installed under the contract; and

(iv) sets out the carrier's estimate of the likely completion

date for the installation; and

(d) do so within 10 business days after entering into the contract.

Note:

For the format of the description of the area, see section 360LA.

(4) If:

(a) before the commencement of this section, a carrier (other

than an NBN corporation) entered into a contract for the

installation of telecommunications network infrastructure that

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will enable the supply of eligible services to premises in the

whole of the project area of a building redevelopment

project; and

(b) the installation was not completed before the commencement

of this section; and

required, by subsection 360H(4), to declare that the whole of

the project area is a provisional nominated service area for

the purposes of this Part;

the carrier must:

(d) give the ACMA a written notice that:

(i) states that the carrier has entered into the contract; and

(ii) specifies the project area; and

(iii) describes the telecommunications network infrastructure

that is to be installed under the contract; and

(iv) sets out the carrier's estimate of the likely completion

date for the installation; and

(e) do so:

(i) within 90 days after the commencement of this section;

(ii) if the ACMA allows a longer period--within that longer

period.

Note:

For the format of the description of the area, see section 360LA.

360J Nominated service area--carrier licence conditions

declarations

For the purposes of this Part, if, immediately before the

commencement of this section, a carrier licence held by a carrier

was subject to a condition under any of the following declarations

in relation to a development area (within the meaning of the

declaration):

(a) the

Carrier Licence Conditions (OptiComm Co Pty Ltd)

Declaration 2013

;

(b) the

Carrier Licence Conditions (Pivit Pty Ltd)

Declaration 2013

;

Carrier Licence Conditions (NT Technology Services Pty

Ltd) Declaration 2014

;

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the development area is a

nominated service area

for the purposes

of this Part.

360K Statutory infrastructure provider for a nominated service area

Nominated service area covered by a declaration under

section 360H

(1) For the purposes of this Part, if:

(a) an area is a provisional nominated service area because of a

declaration made by a carrier under section 360H; and

(b) the whole or a part of the provisional nominated service area

is a nominated service area;

the carrier is the

statutory infrastructure provider

for the

nominated service area.

(2) The Minister may, by legislative instrument, declare that:

(a) subsection (1) does not apply to a specified nominated

service area; and

(b) a specified carrier is the

statutory infrastructure provider

for

the nominated service area for the purposes of this Part.

Nominated service area resulting from the application of

section 360J

(3) For the purposes of this Part, if:

(a) immediately before the commencement of this section, a

carrier licence held by a carrier was subject to a condition

under a declaration mentioned in section 360J; and

(b) as a result of the application of section 360J to the

declaration, an area is a nominated service area;

the carrier is the

statutory infrastructure provider

for the

nominated service area.

(4) The Minister may, by legislative instrument, declare that:

(a) subsection (3) does not apply to a specified nominated

service area; and

(b) a specified carrier is the

statutory infrastructure provider

for

the nominated service area for the purposes of this Part.

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360L Designated service area and statutory infrastructure provider

The Minister may, by legislative instrument, declare that:

(a) a specified area is a

designated service area

for the purposes

of this Part; and

(b) a specified carrier is the

statutory infrastructure provider

for

the designated service area for the purposes of this Part.

Note:

For the format of the description of the area, see section 360LA.

Subdivision D--Format of description of areas

360LA Format of description of areas

(1) An area declared under:

(a) subsection 360D(2); or

(b) subsection 360D(3); or

(d) subsection 360H(4); or

(e) subsection 360H(6); or

(f) section 360L;

must be described:

(g) in a TAB vector format using the GDA94 coordinate system;

(h) if another format is determined under subsection (3)--in that

other format.

(2) An area specified under:

(a) subsection 360HA(1); or

(b) subsection 360HA(2); or

(d) subsection 360HA(4);

must be described:

(e) in a TAB vector format using the GDA94 coordinate system;

(f) if another format is determined under subsection (3)--in that

other format.

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(3) The ACMA may, by legislative instrument, determine a format for

the purposes of paragraphs (1)(h) and (2)(f).

Division 3--Obligations of statutory infrastructure

provider

360P Obligation of statutory infrastructure provider to connect

premises

(1) The statutory infrastructure provider for a service area must, on

reasonable request by a carriage service provider on behalf of an

end-user at premises in the service area:

(a) connect the premises to a qualifying fixed-line

telecommunications network in order that the carriage service

provider can provide qualifying fixed-line carriage services

to the end-user at the premises; or

(b) if it is not reasonable for the statutory infrastructure provider

to connect the premises to a qualifying fixed-line

telecommunications network--connect the premises to a

qualifying telecommunications network in order that the

carriage service provider can provide:

(i) qualifying fixed wireless carriage services to the

end-user at the premises; or

(ii) qualifying satellite carriage services to the end-user at

the premises.

Exceptions

(2) An obligation does not arise under subsection (1) in relation to the

connection of premises in the circumstances (if any) specified in a

determination under subsection (3).

(3) The Minister may, by legislative instrument, determine

circumstances for the purposes of subsection (2).

Requirements

(4) In fulfilling its obligations under subsection (1), the statutory

infrastructure provider for a service area must comply with such

requirements (if any) as are determined under subsection (5).

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(5) The Minister may, by legislative instrument, determine one or

more requirements for the purposes of subsection (4).

(6) A requirement may be of general application or may be limited to

one or more service areas.

(7) Subsection (6) does not, by implication, limit the application of

subsection 33(3A) of the

Acts Interpretation Act 1901

Terms and conditions

(8) If:

(a) a carriage service provider makes a request as mentioned in

subsection (1) in relation to the connection of premises in a

service area; and

(b) as a result, the statutory infrastructure provider has an

obligation under subsection (1) to connect the premises; and

website:

(i) the terms and conditions relating to price or a method of

ascertaining price; and

(ii) other terms and conditions;

on which it offers to connect premises in the service area to a

qualifying telecommunications network in order that a

carriage service provider can provide qualifying carriage

services to an end-user at the premises; and

(d) the carriage service provider requests the statutory

infrastructure provider to enter into an agreement that:

(i) relates to the connection of premises in the service area

to a qualifying telecommunications network in order

that the carriage service provider can provide qualifying

carriage services to an end-user at the premises; and

(ii) sets out terms and conditions that are the same as the

terms and conditions published as mentioned in

paragraph (c);

the statutory infrastructure provider must comply with the request

mentioned in paragraph (d).

Note:

For publication, see section 360W.

(9) If:

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(a) a carriage service provider makes a request as mentioned in

subsection (1) in relation to the connection of premises; and

(b) as a result, the statutory infrastructure provider has an

obligation under subsection (1) to connect the premises; and

statutory infrastructure provider and the carriage service

provider;

the statutory infrastructure provider must comply with the

obligation on the terms and conditions that were published on the

statutory infrastructure provider's website at the time when the

request was made.

Note:

For publication, see section 360W.

Ministerial determination--reasonable

(10) The Minister may, by legislative instrument:

(a) determine that, if the condition specified in the determination

is satisfied in relation to premises, then, for the purposes of

subsection (1), it is taken not to be reasonable for a statutory

infrastructure provider to connect the premises to a

qualifying fixed-line telecommunications network; or

(b) determine that, if the conditions specified in the

determination are satisfied in relation to premises, then, for

the purposes of subsection (1), it is taken not to be reasonable

for a statutory infrastructure provider to connect the premises

to a qualifying fixed-line telecommunications network.

(11) A determination under subsection (10) must be an instrument of a

legislative character.

Response to request

(11A) If a carriage service provider makes a request as mentioned in

subsection (1) on behalf of an end-user at particular premises:

(a) the statutory infrastructure provider must:

(i) notify the carriage service provider that the statutory

infrastructure provider will fulfil the request; or

(ii) refuse the request; and

(b) do so within:

(i) 10 business days after receiving the request; or

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(ii) if a longer period is specified under subsection (11B)--

that longer period.

(11B) The Minister may, by legislative instrument, specify a period for

the purposes of subparagraph (11A)(b)(ii).

Notification of refusal of request

(12) If:

(a) a carriage service provider makes a request as mentioned in

subsection (1) on behalf of an end-user at particular premises;

and

(b) the statutory infrastructure provider refuses the request;

then:

(i) give written notice of the refusal to the carriage service

provider; and

(ii) do so within 5 business days after the refusal; and

(d) if the carriage service provider receives the notice--the

carriage service provider must:

(i) give a copy of the notice to the end-user; and

(ii) do so within 5 business days after receiving the notice.

360Q Obligation of statutory infrastructure provider to supply

eligible services--premises

(1) The statutory infrastructure provider for a service area must, on

reasonable request by a carriage service provider:

(a) supply an eligible service to the carriage service provider in

order that the carriage service provider can provide

qualifying carriage services to end-users at premises in the

service area; and

(b) do so on the terms and conditions that were published on the

statutory infrastructure provider's website at the time when

the request was made.

Note:

For publication, see section 360X.

(1A) The eligible service must enable the carriage service provider to

supply, to end-users at premises in the service area, carriage

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services that can be used by those end-users to make and receive

voice calls.

(1B) Subsection (1A) does not apply if the carriage service is supplied

using a satellite.

(1C) To avoid doubt, the requirement in subsection (1A) is part of the

obligation under subsection (1).

Exceptions

(2) If:

(a) a statutory infrastructure provider for a service area supplies

an eligible service to a carriage service provider in order that

the carriage service provider can provide qualifying carriage

services to end-users at premises in the service area; and

(b) the eligible service enables the carriage service provider to

supply, to end-users at premises in the service area, carriage

services that can be used by those end-users to make and

receive voice calls; and

of Part XIC of the

Competition and Consumer Act 2010

); and

(d) the statutory infrastructure provider is subject to a standard

access obligation (within the meaning of Part XIC of the

Competition and Consumer Act 2010

) in relation to the

eligible service;

the statutory infrastructure provider does not have an obligation

under subsection (1) to supply the eligible service to the carriage

service provider in order that the carriage service provider can

provide qualifying carriage services to end-users at premises in the

service area.

(2A) Paragraph (2)(b) does not apply if the carriage service is supplied

using a satellite.

(3) An obligation does not arise under subsection (1) in relation to

supply of an eligible service in the circumstances (if any) specified

in a determination under subsection (4).

(4) The Minister may, by legislative instrument, determine

circumstances for the purposes of subsection (3).

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Requirements

(5) In fulfilling its obligations under subsection (1), the statutory

infrastructure provider for a service area must comply with such

requirements (if any) as are determined under subsection (6).

(6) The Minister may, by legislative instrument, determine one or

more requirements for the purposes of subsection (5).

(7) A requirement may be of general application or may be limited to

one or more service areas.

(8) Subsection (7) does not, by implication, limit the application of

subsection 33(3A) of the

Acts Interpretation Act 1901

Terms and conditions

(9) If:

(a) a carriage service provider makes a request as mentioned in

subsection (1) in relation to the supply of an eligible service;

and

(b) as a result, the statutory infrastructure provider has an

obligation under subsection (1) to supply the eligible service;

and

website:

(i) the terms and conditions relating to price or a method of

ascertaining price; and

(ii) other terms and conditions;

on which it offers to supply eligible services to carriage

service providers in order that the carriage service providers

can provide qualifying carriage services to end-users at

premises in the service area; and

(d) the carriage service provider requests the statutory

infrastructure provider to enter into an agreement that:

(i) relates to the supply of eligible services to the carriage

service provider in order that the carriage service

provider can provide qualifying carriage services to

end-users at premises in the service area; and

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(ii) sets out terms and conditions that are the same as the

terms and conditions published as mentioned in

paragraph (c);

the statutory infrastructure provider must comply with the request

mentioned in paragraph (d).

Note:

For publication, see section 360X.

(10) If:

(a) a carriage service provider makes a request as mentioned in

subsection (1) in relation to the supply of an eligible service;

and

(b) as a result, the statutory infrastructure provider has an

obligation under subsection (1) to supply the eligible service;

and

agreement between the statutory infrastructure provider and

the carriage service provider;

the statutory infrastructure provider must comply with the

obligation on the terms and conditions that were published on the

statutory infrastructure provider's website at the time when the

request was made.

Note:

For publication, see section 360X.

360R Notification obligations of statutory infrastructure provider

Scope

(1) This section applies if a carrier (the

first carrier

) is the statutory

infrastructure provider for:

(a) a nominated service area; or

(b) a designated service area.

Obligations

(2) If the first carrier becomes aware that it is likely that it will no

longer be able to fulfil its obligations under section 360P or 360Q,

so far as they relate to the area, the first carrier must:

(a) give written notice of the matter to:

(i) the Secretary of the Department; and

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(ii) the ACMA; and

(b) do so as soon as practicable after becoming so aware.

(3) If:

(a) subsection (2) applies; and

(b) the first carrier becomes aware that another carrier is willing

to become the statutory infrastructure provider for the area;

the first carrier must:

(i) the Secretary of the Department; and

(ii) the ACMA; and

(d) do so as soon as practicable after becoming so aware.

360S Targets for NBN Co

(1) The Parliament intends that NBN Co should take all reasonable

steps to ensure that the telecommunications networks that:

(a) are operated by NBN Co; and

(b) are used to supply qualifying fixed-line carriage services to

customers in Australia;

are (when considered together) capable of being used to supply

fixed-line carriage services, where:

is at least 50 megabits per second; and

(d) the peak upload transmission speed of the carriage service is

at least 10 megabits per second;

to at least 90% of premises in the areas that, according to NBN

Co's website, are serviced by NBN Co's fixed-line carriage

services.

(2) The Parliament intends that NBN Co should take all reasonable

steps to ensure that the telecommunications networks that:

(a) are operated by NBN Co; and

(b) are used to supply qualifying fixed-line carriage services to

customers in Australia;

are (when considered together) capable of being connected to at

least 92% of premises in Australia.

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(3) In fulfilling its obligations under section 360P or 360Q, NBN Co

must have regard to subsections (1) and (2) of this section.

Division 4--Standards, benchmarks and rules

360U Standards and benchmarks

Standards

(1) The Minister may, by legislative instrument, determine standards

to be complied with by statutory infrastructure providers in relation

to any or all of the following matters:

(a) the terms and conditions of the supply of an eligible service

to a carriage service provider in order that the carriage

service provider can provide qualifying carriage services to

an end-user at premises in a relevant service area;

(b) the reliability of such an eligible service supplied to a

carriage service provider;

provider must begin to supply such an eligible service

following the making of a request by a carriage service

provider;

(d) the maximum period within which a statutory infrastructure

provider must rectify a fault or service difficulty relating to

such an eligible service following the making of a report by a

carriage service provider about the fault or service difficulty;

(e) any other matter concerning the supply, or proposed supply,

of such an eligible service to a carriage service provider;

(f) the maximum period within which the statutory infrastructure

provider must connect premises in a relevant service area to a

qualifying telecommunications network in order that a

carriage service provider can provide qualifying carriage

services to an end-user at the premises, following the making

of a request by the carriage service provider on behalf of the

end-user;

(g) any other matter concerning the connection of premises in a

relevant service area to a qualifying telecommunications

network in order that a carriage service provider can provide

qualifying carriage services to an end-user at the premises.

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(2) A determination under subsection (1) may be of general

application or may be limited as provided in the determination.

(3) Subsection (2) does not, by implication, limit subsection 33(3A) of

the

Acts Interpretation Act 1901

(3A) Standards determined under subsection (1) may make provision for

or in relation to a matter by conferring a power on the ACMA to

make a legislative instrument.

Compliance with standards

(4) A statutory infrastructure provider must comply with a standard

determined under subsection (1).

(5) However, a statutory infrastructure provider is not required to

comply with a standard determined under subsection (1) to the

extent that the standard is inconsistent with an access agreement to

which the statutory infrastructure provider is a party, so long as:

(a) the agreement was entered into before the commencement of

the standard; and

(b) the agreement has not been varied after the commencement

of the standard.

Performance benchmarks

(6) The Minister may, by legislative instrument, set minimum

benchmarks in relation to compliance by a statutory infrastructure

provider with a standard determined under subsection (1).

(7) An instrument under subsection (6) may be of general application

or may be limited as provided in the instrument.

(8) Subsection (7) does not, by implication, limit subsection 33(3A) of

the

Acts Interpretation Act 1901

(8A) Benchmarks set under subsection (6) may make provision for or in

relation to a matter by conferring a power on the ACMA to make a

legislative instrument.

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Provider must meet or exceed minimum benchmarks

(9) A statutory infrastructure provider must meet or exceed a

minimum benchmark set by an instrument under subsection (6).

360V Rules

(1) The Minister may, by legislative instrument, make rules to be

complied with by statutory infrastructure providers in relation to

any or all of the following matters:

(a) the process for resolution of complaints about the supply of

an eligible service to a carriage service provider in order that

the carriage service provider can provide qualifying carriage

services to an end-user at premises in a relevant service area;

(b) any other matter concerning the supply, or proposed supply,

of such an eligible service to a carriage service provider;

of premises in the service area to a qualifying

telecommunications network in order that a carriage service

provider can provide qualifying carriage services to an

end-user at the premises;

(d) any other matter concerning the connection of premises in the

service area to a qualifying telecommunications network in

order that a carriage service provider can provide qualifying

carriage services to an end-user at the premises.

(1A) Rules under subsection (1) may make provision for or in relation to

a matter by conferring a power on the ACMA to make a legislative

instrument.

Compliance

(2) A statutory infrastructure provider must comply with rules under

subsection (1).

(3) However, a statutory infrastructure provider is not required to

comply with a rule under subsection (1) to the extent that the rule

is inconsistent with an access agreement to which the statutory

infrastructure provider is a party, so long as:

(a) the agreement was entered into before the commencement of

the rule; and

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(b) the agreement has not been varied after the commencement

of the rule.

Division 5--Publication of offers

360W Publication of offer etc.--connection of premises

(1) A statutory infrastructure provider for a service area must publish

on its website:

(a) the terms and conditions relating to price or a method of

ascertaining price; and

(b) other terms and conditions;

on which it offers to connect premises in the service area to a

qualifying telecommunications network in order that a carriage

service provider can provide qualifying carriage services to an

end-user at the premises.

(2) The terms and conditions mentioned in subsection (1) must include

the maximum period within which the statutory infrastructure

provider must so connect premises following the making of a

request by a carriage service provider on behalf of an end-user at

the premises.

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

(4) An offer published under subsection (1) has no effect to the extent

to which it is inconsistent with:

(a) a standard determined under section 360U; or

(b) rules made under section 360V.

360X Publication of offer--supply of eligible services

(1) A statutory infrastructure provider for a service area must publish

on its website:

(a) the terms and conditions relating to price or a method of

ascertaining price; and

(b) other terms and conditions;

on which it offers to supply eligible services to carriage service

providers in order that the carriage service providers can provide

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qualifying carriage services to end-users at premises in the service

area.

(2) The terms and conditions mentioned in subsection (1) must

include:

(a) the maximum period within which the statutory infrastructure

provider must begin to supply such an eligible service

following the making of a request by a carriage service

provider; and

(b) the maximum period within which the statutory infrastructure

provider must rectify a fault or service difficulty relating to

such an eligible service following the making of a report by a

carriage service provider about the fault or service difficulty.

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

(4) An offer published under subsection (1) has no effect to the extent

to which it is inconsistent with:

(a) a standard determined under section 360U; or

(b) rules made under section 360V.

Division 6--Miscellaneous

360XA Periodic compliance reports

(1) The Minister may, by legislative instrument, make rules requiring

each statutory infrastructure provider to give to the ACMA

periodic reports relating to the provider's compliance with this

Part.

Compliance

(2) A statutory infrastructure provider must comply with rules under

subsection (1).

(3) A person is not excused from giving a report under rules under

subsection (1) on the ground that the report might tend to

incriminate the person or expose the person to a penalty.

(4) However, in the case of an individual:

(a) the report; or

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(b) giving the report; or

indirect consequence of giving the report;

is not admissible in evidence against the individual:

(d) in civil proceedings for the recovery of a penalty; or

(e) in criminal proceedings (other than proceedings for an

offence against section 137.1 or 137.2 of the

Criminal Code

that relates to the report).

Other information-gathering powers not limited

(5) This section does not, by implication, limit Part 27.

360Y Building redevelopment projects etc.

(1) For the purposes of this Part, a project is a

building redevelopment

project

if:

(a) the project involves:

(i) the significant refurbishment or repurposing of one or

more buildings so as to bring into existence one or more

building units; and

(ii) the making available of any or all of those building units

for sale or lease; and

(b) the conditions (if any) specified in an instrument under

subsection (3) are satisfied.

(2) For the purposes of this Part, the area or areas occupied by the

building or buildings are the

project area

for the building

redevelopment project.

(3) The Minister may, by legislative instrument, specify conditions for

the purposes of paragraph (1)(b).

(4) For the purposes of subsection (1), it is immaterial whether:

(a) the project has been, is being, or will be, implemented in

stages; or

(b) different elements of the project have been, are being, or will

be, carried out by different persons; or

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required, under a law of the Commonwealth, a State or a

Territory, for the project, or any element of the project.

360Z Register of statutory infrastructure providers and anticipatory

notices

(1) The ACMA is to maintain a Register in which the ACMA

includes:

(a) the name of each statutory infrastructure provider; and

(b) for each of those providers--the relevant service area or

areas; and

(i) subsection 360HA(1); or

(ii) subsection 360HA(2); or

(iii) subsection 360HA(3); or

(iv) subsection 360HA(4).

(2) The Register may be maintained by electronic means.

(3) The Register is to be made available for inspection on the ACMA's

website.

360ZA Delegation

Delegation to the ACMA

(1) The Minister may, by writing, delegate to the ACMA any or all of

the Minister's powers under the following provisions:

(a) subsection 360D(14);

(b) subsection 360H(3);

(d) subsection 360H(7);

(e) subsection 360H(11);

(f) subsection 360P(3);

(g) subsection 360P(5);

(h) subsection 360P(10);

(i) subsection 360Q(4);

(j) subsection 360Q(6);

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(k) subsection 360U(1);

(l) subsection 360U(6);

(m) subsection 360XA(1);

(n) subsection 360Y(3).

(2) In performing a delegated function or exercising a delegated

power, the ACMA must comply with any written directions of the

Minister.

Delegation to a member of the ACMA or to a member of the staff of

the ACMA

(3) The Minister may, by writing, delegate to:

(a) a member of the ACMA; or

(b) a person who is:

(i) a member of the staff of the ACMA; and

(ii) an SES employee or acting SES employee;

any or all of the Minister's powers under subsection 360H(14)

(variation of nominated service area declaration).

(4) In exercising a delegated power, the delegate must comply with

any written directions of the Minister.

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Part 2--Repeals

Carrier Licence Conditions (NT Technology Services Pty

Ltd) Declaration 2014

8 The whole of the Declaration

Repeal the Declaration.

Carrier Licence Conditions (OptiComm Co Pty Ltd)

Declaration 2013

9 The whole of the Declaration

Repeal the Declaration.

Carrier Licence Conditions (Pivit Pty Ltd) Declaration 2013

10 The whole of the Declaration

Repeal the Declaration.

Carrier Licence Conditions (Urban Renewal Authority

Victoria t/a Places Victoria Pty Ltd)

Declaration 2014

11 The whole of the Declaration

Repeal the Declaration.

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Schedule 4--Funding of fixed wireless

broadband and satellite broadband

Competition and Consumer Act 2010

1A Before paragraph 151BU(4)(e)

Insert:

(dc) the operation of Part 3 of the

Telecommunications (Consumer

Protection and Service Standards) Act 1999

(which deals

with the funding of fixed wireless broadband and satellite

broadband); or

(dd) the operation of the

Telecommunications (Regional

Broadband Scheme) Charge Act 2019

; or

1B Before subparagraph 151BUA(2)(b)(iii)

Insert:

(iic) the operation of Part 3 of the

Telecommunications (Consumer

Protection and Service Standards) Act 1999

(which deals

with the funding of fixed wireless broadband and satellite

broadband); or

(iid) the operation of the

Telecommunications (Regional

Broadband Scheme) Charge Act 2019

; or

1C Before subparagraph 151BUB(2)(b)(iii)

Insert:

(iic) the operation of Part 3 of the

Telecommunications (Consumer

Protection and Service Standards) Act 1999

(which deals

with the funding of fixed wireless broadband and satellite

broadband); or

(iid) the operation of the

Telecommunications (Regional

Broadband Scheme) Charge Act 2019

; or

1D Before subparagraph 151BUC(2)(b)(iii)

Insert:

(iic) the operation of Part 3 of the

Telecommunications (Consumer

Protection and Service Standards) Act 1999

(which deals

Funding of fixed wireless broadband and satellite broadband

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with the funding of fixed wireless broadband and satellite

broadband); or

(iid) the operation of the

Telecommunications (Regional

Broadband Scheme) Charge Act 2019

; or

Telecommunications Act 1997

1 Section 7

Insert:

Federal Circuit Court

means the Federal Circuit

Court of

Australia.

2 Paragraphs 58(2)(a) and (b)

Omit "or (2A)", substitute ", (2A) or (2B)".

3 After subsection 58(4A)

Insert:

When individual is

disqualified

--failure to pay funding charge

(4B) For the purposes of subsection (2), an individual is

disqualified

at a

particular time (the

test time

) if:

(a) at any time before the test time, a carrier licence held by a

body corporate or partnership was cancelled under

subsection 72(2B) because of a failure by the body corporate

or partnership to pay in full the charge referred to in that

subsection; and

(b) in the case of a body corporate--at the time when the charge

referred to in subsection 72(2B) was due and payable, the

individual was:

(i) a director of the body corporate; or

(ii) the secretary of the body corporate; or

(iii) a person (by whatever name called and whether or not a

director of the body corporate) who was concerned in,

or took part in, the management of the body corporate;

and

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referred to in subsection 72(2B) was due and payable, the

individual:

(i) was an employee of the partnership; and

(ii) was concerned in, or took part in, the management of

the partnership; and

(d) the individual:

(i) aided, abetted, counselled or procured the failure of the

body corporate or partnership; or

(ii) was in any way, by act or omission, directly or

indirectly, knowingly concerned in, or party to, the

failure of the body corporate or partnership.

4 Paragraph 58(5)(a)

Omit "or (2A)", substitute ", (2A) or (2B)".

5 After subsection 72(2A)

Insert:

Failure to pay funding charge

(2B) The ACMA may cancel a carrier licence held by a carrier if the

carrier fails to pay in full any funding charge on or before the date

on which the funding charge becomes due and payable. For this

purpose,

funding charge

means charge imposed by the

Telecommunications (Regional Broadband Scheme) Charge Act

2019

6 Subsection 570(4)

Repeal the subsection, substitute:

(4) The pecuniary penalty payable under subsection (1) by a person

other than a body corporate is not to exceed:

(a) in the case of a contravention of subsection 68(1) or (2) that

relates to the carrier licence condition set out in Part 1 of

Schedule 1 in so far as that condition relates to

subsection 97(1) or (1A) of the

Telecommunications

(Consumer Protection and Service Standards) Act 1999

10,000 penalty units for each contravention; or

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(b) in any other case--$50,000 for each contravention.

7 After paragraph 1(ja) of Schedule 4

Insert:

(jaa) a decision of a kind referred to in subsection 102N(3) (which

deals with remission of late payment penalty) of the

Telecommunications (Consumer Protection and Service

Standards) Act 1999

;

(jab) a decision to make a notifiable instrument under

subsection 102Z(2) or 102ZA(2);

Telecommunications (Consumer Protection and Service

Standards) Act 1999

8 Section 4

Before:

•

Local calls are to be charged for on an untimed basis.

insert:

•

The Secretary is responsible for entering into contracts, and

making grants, relating to:

(a)

fixed wireless broadband; and

(b)

satellite broadband.

•

The ACMA will assess and collect the charge imposed on

carriers by the

Telecommunications (Regional Broadband

Scheme) Charge Act 2019

•

The proceeds of the charge will be used to:

(a)

pay contractors and grant recipients; and

(b)

offset designated administrative costs.

9 Subsection 5(2) (definition of

contractor

)

Repeal the definition.

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10 Subsection 5(2) (definition of

grant recipient

)

Repeal the definition.

11 After section 8

Insert:

8A Definitions

In this Part:

contractor

has the meaning given by section 14.

grant recipient

has the meaning given by section 14.

12 Subsections 14(2) and (3)

Omit "this Act", substitute "this Part".

13 After Part 2

Insert:

Part 3--Funding of fixed wireless broadband and

satellite broadband

Division 1--Introduction

75 Simplified outline of this Part

•

The Secretary is responsible for entering into contracts, and

making grants, relating to:

(a)

fixed wireless broadband; and

(b)

satellite broadband.

•

The ACMA will assess and collect the charge imposed on

carriers by the

Telecommunications (Regional Broadband

Scheme) Charge Act 2019

•

The proceeds of the charge will be used to:

(a)

pay contractors and grant recipients; and

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(b)

offset designated administrative costs.

76 Definitions

In this Part:

administrative cost instalment

of charge has the meaning given by

subsection 102D(5).

amount

includes a nil amount.

annual administrative cost amount

, for a financial year, has the

same meaning as in the

Telecommunications (Regional Broadband

Scheme) Charge Act 2019

annual base amount

, for a financial year, has the same meaning as

in the

Telecommunications (Regional Broadband Scheme) Charge

Act 2019

annual chargeable premises amount

, for a financial year, has the

same meaning as in the

Telecommunications (Regional Broadband

Scheme) Charge Act 2019

associate

has the same meaning as in Part 8 of the

Telecommunications Act 1997

base instalment

of charge has the meaning given by

subsection 102D(5).

broadcast television stream

means a continuous stream of program

material that is identical to the program material provided by:

(a) a licensed television broadcasting service; or

(b) a national television broadcasting service.

charge

means charge imposed by the

Telecommunications

(Regional Broadband Scheme) Charge Act 2019

chargeable premises

associated with a local access line

of a

person

has the meaning given by section 93.

charge offset certificate

means a certificate issued under

section 98.

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contractor

has the meaning given by section 80.

declared service

has the same meaning as in Part XIC of the

Competition and Consumer Act 2010

designated administrative costs

means:

(a) remuneration, and other employment-related costs and

expenses, incurred in respect of APS employees whose duties

relate to the performance of the ACMA's functions, or the

exercise of the ACMA's powers, under this Part; or

(b) any other costs, expenses and other obligations incurred by

the ACMA in connection with the performance of the

ACMA's functions, or the exercise of the ACMA's powers,

under this Part; or

expenses, incurred in respect of APS employees whose duties

relate to the performance of the ACCC's functions, or the

exercise of the ACCC's powers, under this Part or the

Telecommunications (Regional Broadband Scheme) Charge

Act 2019

; or

(d) any other costs, expenses and other obligations incurred by

the ACCC in connection with the performance of the

ACCC's functions, or the exercise of the ACCC's powers,

under this Part or the

Telecommunications (Regional

Broadband Scheme) Charge Act 2019

;

but does not include:

(e) amounts incurred under contracts made under section 80; and

(f) amounts incurred by way of grants made under section 80.

designated broadband service

has the meaning given by

section 76AA.

designated start date

means 1 July next following the day on

which this Part commences.

eligible financial year

has the meaning given by section 79.

eligible funding recipient

has the meaning given by section 78.

eligible service

has the same meaning as in section 152AL of the

Competition and Consumer Act 2010

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exempt line

has the meaning given by section 96.

exempt premises

has the meaning given by section 95.

fixed wireless broadband service

has the meaning given by

section 76AB.

grant recipient

has the meaning given by section 80.

instalment

of charge: see subsection 102D(5).

licensed television broadcasting service

means a broadcasting

service that:

(a) is provided in accordance with:

(i) a licence allocated by the ACMA under the

Broadcasting Services Act 1992

; or

(ii) a class licence determined by the ACMA under the

Broadcasting Services Act 1992

; and

(b) provides television programs.

local access line

has the meaning given by section 76A.

month

means calendar month.

multi-unit building

means:

(a) a building that has 2 or more units for occupation as a place

of residence or business; or

(b) a building in a complex, where each building has 2 or more

units for occupation as a place of residence or business.

national television broadcasting service

means a broadcasting

service that:

(a) is a national broadcasting service within the meaning of the

Broadcasting Services Act 1992

; and

(b) provides television programs.

NBN Co

has the same meaning as in the

National Broadband

Network Companies Act 2011

nominal funding entitlement

of a person for a financial year

means the amount specified in a nominal funding entitlement

certificate that:

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(a) is held by the person; and

(b) relates to the financial year.

nominal funding entitlement certificate

means a certificate issued

under section 86.

potentially chargeable premises

has the meaning given by

section 94.

potentially concessional premises

has the meaning given by

section 96A.

Note:

Commonwealth of Australia Bills

TELECOMMUNICATIONS LEGISLATION AMENDMENT (COMPETITION AND CONSUMER) BILL 2019