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This is a Bill, not an Act. For current law, see the Acts databases.
TELECOMMUNICATIONS LEGISLATION AMENDMENT (COMPETITION AND CONSUMER ISSUES) BILL 2005
2004-2005
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Telecommunications Legislation
Amendment (Competition and Consumer
Issues) Bill 2005
No. , 2005
(Communications, Information Technology and the Arts)
A Bill for an Act to amend the law relating to
telecommunications, and for other purposes
i Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill 2005
No. , 2005
Contents
1
Short title ......................................................................................1
2
Commencement .............................................................................1
3
Schedule(s)....................................................................................3
Schedule 1--Industry development plans
4
Telecommunications Act 1997
4
Schedule 2--Industry codes
5
Telecommunications Act 1997
5
Schedule 3--Numbering plans
7
Telecommunications Act 1997
7
Schedule 4--Penalties for breaches of the competition rule
8
Trade Practices Act 1974
8
Schedule 5--Enforcement of conditions and limitations of
exemption determinations and orders
9
Trade Practices Act 1974
9
Schedule 6--Variation and revocation of exemption
determinations
11
Trade Practices Act 1974
11
Schedule 7--Procedural Rules
12
Trade Practices Act 1974
12
Schedule 8--Any-to-any connectivity
21
Telecommunications Act 1997
21
Schedule 9--Long-term interests of end-users
24
Trade Practices Act 1974
24
Schedule 10--Enforceable undertakings
26
Telecommunications Act 1997
26
Schedule 11--Operational separation of Telstra
28
Telecommunications Act 1997
28
Trade Practices Act 1974
46
Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill 2005
No. , 2005 ii
Schedule 12--Interim determinations about access
48
Trade Practices Act 1974
48
Schedule 13--Remedial directions
50
Telecommunications Act 1997
50
Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill 2005
No. , 2005 1
A Bill for an Act to amend the law relating to
1
telecommunications, and for other purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Telecommunications Legislation
5
Amendment (Competition and Consumer Issues) Act 2005.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2 Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill
2005 No. , 2005
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day on which this Act receives the
Royal Assent.
2. Schedule 1
The day after this Act receives the Royal
Assent.
3. Schedule 2
The 28th day after the day on which this
Act receives the Royal Assent.
4. Schedules 3 to
6
The day after this Act receives the Royal
Assent.
5. Schedule 7,
items 1 to 3
The day after this Act receives the Royal
Assent.
6. Schedule 7,
item 4
A single day to be fixed by Proclamation.
However, if any of the provision(s) do not
commence within the period of 6 months
beginning on the day on which this Act
receives the Royal Assent, they commence
on the first day after the end of that period.
7. Schedule 7,
items 5 to 12
The day after this Act receives the Royal
Assent.
8. Schedule 7,
item 13
A single day to be fixed by Proclamation.
However, if any of the provision(s) do not
commence within the period of 6 months
beginning on the day on which this Act
receives the Royal Assent, they commence
on the first day after the end of that period.
9. Schedule 7,
items 14 to 19
The day after this Act receives the Royal
Assent.
10. Schedule 7,
item 20
A single day to be fixed by Proclamation.
However, if any of the provision(s) do not
commence within the period of 6 months
beginning on the day on which this Act
receives the Royal Assent, they commence
on the first day after the end of that period.
Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill 2005
No. , 2005 3
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
11. Schedule 7,
items 21 to 28
The day after this Act receives the Royal
Assent.
12. Schedules 8
to 10
The day after this Act receives the Royal
Assent.
13. Schedule 11
A single day to be fixed by Proclamation.
However, if any of the provision(s) do not
commence within the period of 6 months
beginning on the day on which this Act
receives the Royal Assent, they commence
on the first day after the end of that period.
14. Schedules 12
and 13
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
1
passed by the Parliament and assented to. It will not be expanded to
2
deal with provisions inserted in this Act after assent.
3
(2) Column 3 of the table contains additional information that is not
4
part of this Act. Information in this column may be added to or
5
edited in any published version of this Act.
6
3 Schedule(s)
7
Each Act that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Schedule 1 Industry development plans
4 Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill
2005 No. , 2005
1
Schedule 1--Industry development plans
2
3
Telecommunications Act 1997
4
1 Part 2 of Schedule 1
5
Repeal the Part.
6
2 Transitional--clauses 14 and 15 of Schedule 1 to the
7
Telecommunications Act 1997
8
(1)
For the purposes of this item, a pre-commencement reporting period is:
9
(a) a financial year that:
10
(i) began on or after 1 July 1997; and
11
(ii) ended before the commencement of this item; or
12
(b) if this item does not commence on a 1 July in any financial
13
year--the period:
14
(i) beginning at the start of the financial year in which this
15
item commenced; and
16
(ii) ending immediately before the commencement of this
17
item.
18
(2)
Despite the amendment made by item 1, clauses 14 and 15 of Schedule 1
19
to the Telecommunications Act 1997 continue to apply as if:
20
(a) each reference in those clauses to a financial year were a
21
reference to a pre-commencement reporting period; and
22
(b) the amendment had not been made.
23
Industry codes Schedule 2
Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill 2005
No. , 2005 5
1
Schedule 2--Industry codes
2
3
Telecommunications Act 1997
4
1 After subsection 121(1A)
5
Insert:
6
(1B) If:
7
(a) at a time when an industry code (the original code) was
8
registered under this Part, a direction could have been given to
9
a person under subsection (1) in respect of the original code;
10
and
11
(b) the original code has been replaced by another code that is
12
registered under this Part; and
13
(c) the person could have been given a direction under
14
subsection (1) in respect of the replacement code, if the
15
conduct concerned had occurred after the replacement code
16
was registered;
17
then, during the period when the replacement code is registered
18
under this Part, the person may be given a direction under
19
subsection (1) in respect of the replacement code.
20
2 At the end of section 122
21
Add:
22
(4) If:
23
(a) at a time when an industry code (the original code) was
24
registered under this Part, a formal warning could have been
25
given to a person under subsection (2) in respect of the
26
original code; and
27
(b) the original code has been replaced by another code that is
28
registered under this Part; and
29
(c) the person could have been given a formal warning under
30
subsection (2) in respect of the replacement code, if the
31
conduct concerned had occurred after the replacement code
32
was registered;
33
Schedule 2 Industry codes
6 Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill
2005 No. , 2005
then, during the period when the replacement code is registered
1
under this Part, the person may be given a formal warning under
2
subsection (2) in respect of the replacement code.
3
3 Application of amendments
4
The amendments made by this Schedule do not apply to conduct that
5
occurred before the commencement of this item.
6
Numbering plans Schedule 3
Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill 2005
No. , 2005 7
1
Schedule 3--Numbering plans
2
3
Telecommunications Act 1997
4
1 Paragraph 460(3)(a)
5
Repeal the paragraph, substitute:
6
(a) that a variation of a numbering plan:
7
(i) will affect a number issued to a customer of a carriage
8
service provider, being a customer located in a particular
9
State; and
10
(ii) is not a variation that, under a written declaration made
11
by the ACMA under this subparagraph, is taken to be a
12
minor variation; or
13
2 Subparagraphs 460(3)(c)(ii) and (iv)
14
Omit "90 days", substitute "30 days".
15
3 After subsection 460(4)
16
Insert:
17
(4A) A declaration under subparagraph (3)(a)(ii) is a legislative
18
instrument for the purposes of the Legislative Instruments Act
19
2003.
20
4 Application of amendments
21
The amendments made by this Schedule do not apply in relation to a
22
variation of a numbering plan if a notice relating to the variation was
23
published under paragraph 460(3)(c) of the Telecommunications Act
24
1997 before the commencement of this item.
25
Schedule 4 Penalties for breaches of the competition rule
8 Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill
2005 No. , 2005
1
Schedule 4--Penalties for breaches of the
2
competition rule
3
4
Trade Practices Act 1974
5
1 Paragraph 151BX(3)(a)
6
Repeal the paragraph, substitute:
7
(a) in the case of a contravention of the competition rule--for
8
each contravention:
9
(i) if the contravention continued for more than 21 days--
10
the sum of $31 million and $3 million for each day in
11
excess of 21 that the contravention continued; or
12
(ii) otherwise--the sum of $10 million and $1 million for
13
each day that the contravention continued; or
14
2 Application of amendment
15
The amendment of section 151BX of the Trade Practices Act 1974 made
16
by this Schedule applies to a contravention of the competition rule if:
17
(a) in the case of a contravention that continued during a period--
18
the period began after the commencement of this item; or
19
(b) otherwise--the contravention occurred after the
20
commencement of this item.
21
Enforcement of conditions and limitations of exemption determinations and orders
Schedule 5
Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill 2005
No. , 2005 9
1
Schedule 5--Enforcement of conditions and
2
limitations of exemption
3
determinations and orders
4
5
Trade Practices Act 1974
6
1 At the end of subsection 152AS(2)
7
Add:
8
Note:
For judicial enforcement of conditions and limitations, see
9
section 152BBAA.
10
2 At the end of subsection 152ASA(2)
11
Add:
12
Note:
For judicial enforcement of conditions and limitations, see
13
section 152BBAA.
14
3 At the end of subsection 152AT(5)
15
Add:
16
Note:
For judicial enforcement of conditions and limitations, see
17
section 152BBAA.
18
4 At the end of subsection 152ATA(4)
19
Add:
20
Note:
For judicial enforcement of conditions and limitations, see
21
section 152BBAA.
22
5 At the end of section 152BB
23
Add:
24
(3) This section does not limit section 152BBAA.
25
6 After section 152BB
26
Insert:
27
Schedule 5 Enforcement of conditions and limitations of exemption determinations
and orders
10 Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill
2005 No. , 2005
152BBAA Judicial enforcement of conditions and limitations of
1
exemption determinations and orders
2
(1) If the Federal Court is satisfied that a person has contravened any of
3
the conditions or limitations of:
4
(a) a determination under section 152AS or 152ASA; or
5
(b) an order under section 152AT or 152ATA;
6
the Court may, on the application of:
7
(c) the Commission; or
8
(d) any person whose interests are affected by the contravention;
9
make all or any of the following orders:
10
(e) an order directing the person to comply with the condition or
11
limitation;
12
(f) an order directing the person to compensate any other person
13
who had suffered loss or damage as a result of the
14
contravention;
15
(g) any other order that the Court thinks appropriate.
16
(2) The Federal Court may discharge or vary an order granted under
17
this section.
18
(3) This section does not limit section 152BB.
19
Variation and revocation of exemption determinations Schedule 6
Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill 2005
No. , 2005 11
1
Schedule 6--Variation and revocation of
2
exemption determinations
3
4
Trade Practices Act 1974
5
1 At the end of section 152AS
6
Add:
7
Note:
For variation and revocation of instruments under subsection (1), see
8
subsection 33(3) of the Acts Interpretation Act 1901.
9
2 At the end of section 152ASA
10
Add:
11
Note:
For variation and revocation of instruments under subsection (1), see
12
subsection 33(3) of the Acts Interpretation Act 1901.
13
Schedule 7 Procedural Rules
12 Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill
2005 No. , 2005
1
Schedule 7--Procedural Rules
2
3
Trade Practices Act 1974
4
1 Subsection 25(1)
5
Omit "Part VIIA)", substitute "Part VIIA or section 152ELA),
6
Procedural Rules under Part XIC,".
7
2 Section 152AC
8
Insert:
9
modifications includes additions, omissions and substitutions.
10
3 Section 152AC
11
Insert:
12
Procedural Rules means Procedural Rules made under
13
section 152ELA.
14
4 Subsection 152AO(3)
15
Omit "of a minor nature", substitute "a variation that, under the
16
Procedural Rules, is taken to be a variation of a minor nature".
17
5 After subsection 152AT(2)
18
Insert:
19
(2A) Before the Commission makes a decision under subsection (3) in
20
relation to the application, the applicant may, by written notice
21
given to the Commission within the time allowed by the Procedural
22
Rules, modify the application, so long as the modification is a
23
modification that, under the Procedural Rules, is taken to be a
24
modification of a minor nature.
25
6 After subsection 152ATA(2)
26
Insert:
27
(2A) Before the Commission makes a decision under subsection (3) in
28
relation to the application, the applicant may, by written notice
29
Procedural Rules Schedule 7
Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill 2005
No. , 2005 13
given to the Commission within the time allowed by the Procedural
1
Rules, modify the application, so long as the modification is a
2
modification that, under the Procedural Rules, is taken to be a
3
modification of a minor nature.
4
7 After subsection 152AU(2)
5
Insert:
6
(2A) If:
7
(a) the Procedural Rules make provision for or in relation to a
8
time limit for giving the information; and
9
(b) the applicant does not give the Commission the information
10
within the time limit allowed by the Procedural Rules;
11
the Commission may, by written notice given to the applicant,
12
refuse the application.
13
(2B) Subsection (2A) has effect despite anything in this Division.
14
8 Subsection 152AU(3)
15
Omit "The Commission", substitute "If the Procedural Rules do not
16
make provision for or in relation to a time limit for giving the
17
information, the Commission".
18
9 After subsection 152BT(2)
19
Insert:
20
(2A) If:
21
(a) the Procedural Rules make provision for or in relation to a
22
time limit for giving the information; and
23
(b) the carrier or provider does not give the Commission the
24
information within that time limit;
25
the Commission may, by written notice given to the carrier or
26
provider, reject the undertaking.
27
(2B) Subsection (2A) has effect despite anything in this Division.
28
(2C) If the Commission makes a decision under subsection (2A) to reject
29
the undertaking, subsection 152BU(5) has effect as if the decision
30
had been made under subsection 152BU(2).
31
Schedule 7 Procedural Rules
14 Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill
2005 No. , 2005
10 Subsection 152BT(3)
1
Omit "The Commission", substitute "If the Procedural Rules do not
2
make provision for or in relation to a time limit for giving the
3
information, the Commission".
4
11 After subsection 152BU(1)
5
Insert:
6
(1A) Before the Commission makes a decision under subsection (2) in
7
relation to the undertaking, the carrier or provider may, by written
8
notice given to the Commission within the time allowed by the
9
Procedural Rules, modify the undertaking, so long as the
10
modification is a modification that, under the Procedural Rules, is
11
taken to be of a minor nature.
12
12 After subsection 152BY(2)
13
Insert:
14
(2A) Before the Commission makes a decision under subsection (3) in
15
relation to the variation, the carrier or provider may, by written
16
notice given to the Commission within the time allowed by the
17
Procedural Rules, modify the variation, so long as the modification
18
is a modification that, under the Procedural Rules, is taken to be a
19
modification of a minor nature.
20
13 Subsection 152BY(4)
21
Omit "of a minor nature", substitute "a variation that, under the
22
Procedural Rules, is taken to be a variation of a minor nature".
23
14 After subsection 152BZ(2)
24
Insert:
25
(2A) If:
26
(a) the Procedural Rules make provision for or in relation to a
27
time limit for giving the information; and
28
(b) the carrier or provider does not give the Commission the
29
information within the time limit allowed by the Procedural
30
Rules;
31
Procedural Rules Schedule 7
Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill 2005
No. , 2005 15
the Commission may, by written notice given to the carrier or
1
provider, reject the variation.
2
(2B) Subsection (2A) has effect despite anything in this Division.
3
(2C) If the Commission makes a decision under subsection (2A) to reject
4
the variation, subsection 152BY(7) has effect as if the decision had
5
been made under subsection 152BY(3).
6
15 Subsection 152BZ(3)
7
Omit "The Commission", substitute "If the Procedural Rules do not
8
make provision for or in relation to a time limit for giving the
9
information, the Commission".
10
16 After subsection 152CBB(2)
11
Insert:
12
(2A) If:
13
(a) the Procedural Rules make provision for or in relation to a
14
time limit for giving the information; and
15
(b) the person does not give the Commission the information
16
within the time limit allowed by the Procedural Rules;
17
the Commission may, by written notice given to the person, reject
18
the undertaking.
19
(2B) Subsection (2A) has effect despite anything in this Division.
20
(2C) If the Commission makes a decision under subsection (2A) to reject
21
the undertaking, subsection 152CBC(5) has effect as if the decision
22
had been made under subsection 152CBC(2).
23
17 Subsection 152CBB(3)
24
Omit "The Commission", substitute "If the Procedural Rules do not
25
make provision for or in relation to a time limit for giving the
26
information, the Commission".
27
18 After subsection 152CBC(1)
28
Insert:
29
Schedule 7 Procedural Rules
16 Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill
2005 No. , 2005
(1A) Before the Commission makes a decision under subsection (2) in
1
relation to the undertaking, the person may, by written notice given
2
to the Commission within the time allowed by the Procedural Rules,
3
modify the undertaking, so long as the modification is a
4
modification that, under the Procedural Rules, is taken to be of a
5
minor nature.
6
19 After subsection 152CBG(2)
7
Insert:
8
(2A) Before the Commission makes a decision under subsection (3) in
9
relation to the variation, the person may, by written notice given to
10
the Commission within the time allowed by the Procedural Rules,
11
modify the variation, so long as the modification is a modification
12
that, under the Procedural Rules, is taken to be a modification of a
13
minor nature.
14
20 Subsection 152CBG(4)
15
Omit "of a minor nature", substitute "a variation that, under the
16
Procedural Rules, is taken to be a variation of a minor nature".
17
21 After subsection 152CBH(2)
18
Insert:
19
(2A) If:
20
(a) the Procedural Rules make provision for or in relation to a
21
time limit for giving the information; and
22
(b) the person does not give the Commission the information
23
within the time limit allowed by the Procedural Rules;
24
the Commission may, by written notice given to the person, reject
25
the variation.
26
(2B) Subsection (2A) has effect despite anything in this Division.
27
(2C) If the Commission makes a decision under subsection (2A) to reject
28
the variation, subsection 152CBG(7) has effect as if the decision
29
had been made under subsection 152CBG(3).
30
22 Subsection 152CBH(3)
31
Procedural Rules Schedule 7
Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill 2005
No. , 2005 17
Omit "The Commission", substitute "If the Procedural Rules do not
1
make provision for or in relation to a time limit for giving the
2
information, the Commission".
3
23 After section 152CD
4
Insert:
5
152CDA Deferral of consideration of an access undertaking etc.
6
(1) The Procedural Rules may authorise the Commission to defer
7
consideration of:
8
(a) an access undertaking; or
9
(b) a variation of an access undertaking.
10
(2) Subsection (1) has effect despite anything in this Division.
11
24 At the end of section 152CLA
12
Add:
13
Procedural Rules
14
(8) Subsections (2) to (7) may be displaced or modified by the
15
Procedural Rules.
16
(9) The Procedural Rules may authorise the Commission to defer
17
consideration of an access dispute, in whole or in part.
18
(10) Subsection (9) has effect despite anything in this Division.
19
25 At the end of section 152DB
20
Add:
21
(5) Paragraph (1)(c) and subsections (2), (3) and (4) may be displaced
22
or modified by the Procedural Rules.
23
26 At the end of section 152DK
24
Add:
25
(5) Subsections (1), (2), (3) and (4) may be displaced or modified by
26
the Procedural Rules.
27
Schedule 7 Procedural Rules
18 Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill
2005 No. , 2005
27 At the end of section 152DMA
1
Add:
2
Procedural Rules
3
(8) Subsections (1) to (7) may be displaced or modified by the
4
Procedural Rules.
5
28 After Division 10 of Part XIC
6
Insert:
7
Division 10A--Procedural Rules
8
152ELA Procedural Rules
9
(1) The Commission may, by written instrument, make rules:
10
(a) making provision for or in relation to the practice and
11
procedure to be followed by the Commission in performing
12
functions, or exercising powers, under this Part; or
13
(b) making provision for or in relation to all matters and things
14
incidental to any such practice or procedure, or necessary or
15
convenient to be prescribed for the conduct of any business of
16
the Commission under this Part; or
17
(c) prescribing matters required or permitted by any other
18
provision of this Part to be prescribed by the Procedural
19
Rules.
20
(2) Rules under subsection (1) are to be known as Procedural Rules.
21
(3) The Procedural Rules may make provision for or in relation to any
22
or all of the following:
23
(a) the confidentiality of information or documents given to the
24
Commission by:
25
(i) an applicant for an order under subsection 152AT(1) or
26
152ATA(1); or
27
(ii) a person who gave the Commission an access
28
undertaking or a variation of an access undertaking; or
29
(iii) a party to the arbitration of an access dispute under
30
Division 8;
31
Procedural Rules Schedule 7
Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill 2005
No. , 2005 19
(b) matters to which the Commission must have regard in
1
deciding whether to make an interim determination under
2
Division 8;
3
(c) the form and content of applications, undertakings, variations
4
or other documents given to the Commission under this Part;
5
(d) dispensing with the need for an oral hearing in relation to the
6
arbitration of an access dispute under Division 8.
7
(4) Subsection (3) does not limit subsection (1).
8
(5) The Procedural Rules may make provision for or in relation to a
9
matter by empowering the Commission to make decisions of an
10
administrative character.
11
(6) The Procedural Rules may require a power conferred on the
12
Commission by the Procedural Rules in relation to an arbitration
13
under Division 8 to be exercised by the Commission as constituted
14
under section 152CV for the purposes of that arbitration.
15
(7) Subsections (5) and (6) do not limit subsection (1).
16
(8) An instrument under subsection (1) is a legislative instrument for
17
the purposes of the Legislative Instruments Act 2003.
18
Note:
For variation and revocation of instruments under subsection (1), see
19
subsection 33(3) of the Acts Interpretation Act 1901.
20
152ELB Public consultation
21
(1) Before making any Procedural Rules, the Commission must:
22
(a) publish a draft of the Procedural Rules on the Commission's
23
Internet site and invite people to make submissions to the
24
Commission on the draft Procedural Rules; and
25
(b) consider any submissions that are received within the time
26
limit specified by the Commission when it published the draft
27
Procedural Rules.
28
(2) The time limit specified by the Commission must be at least 30 days
29
after the day of publication of the draft Procedural Rules.
30
Schedule 7 Procedural Rules
20 Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill
2005 No. , 2005
152ELC Plan for the development of Procedural Rules
1
(1) Within 6 months after the commencement of this section, the
2
Commission must:
3
(a) prepare a written plan setting out:
4
(i) an outline of the Commission's proposals for making
5
Procedural Rules; and
6
(ii) an indicative timetable for making those Procedural
7
Rules; and
8
(b) make a copy of the plan available on the Commission's
9
Internet site.
10
(2) A failure to comply with the plan does not affect the validity of an
11
instrument under subsection 152ELA(1).
12
(3) The plan is not a legislative instrument for the purposes of the
13
Legislative Instruments Act 2003.
14
Any-to-any connectivity Schedule 8
Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill 2005
No. , 2005 21
1
Schedule 8--Any-to-any connectivity
2
3
Telecommunications Act 1997
4
1 At the end of Schedule 1
5
Add:
6
Part 7--Any-to-any connectivity
7
8
44A Simplified outline
9
The following is a simplified outline of this Part:
10
·
If a carriage service provider's telecommunications network is
11
interconnected with a carrier's telecommunications network,
12
the carrier must obtain a designated interconnection service
13
from the carriage service provider for the purpose of ensuring
14
any-to-any connectivity.
15
45 Definitions
16
In this Part:
17
active declared service has the same meaning as in section 152AR
18
of the Trade Practices Act 1974.
19
designated interconnection service has the meaning given by
20
clause 47.
21
eligible service has the same meaning as in section 152AL of the
22
Trade Practices Act 1974.
23
46 Carriers must obtain designated interconnection services from
24
carriage service providers for the purpose of ensuring
25
any-to-any connectivity
26
(1) If:
27
Schedule 8 Any-to-any connectivity
22 Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill
2005 No. , 2005
(a) a carrier owns, or supplies a carriage service over, a
1
telecommunications network (the carrier's
2
telecommunications network); and
3
(b) a carriage service provider supplies a carriage service over a
4
telecommunications network (the carriage service provider's
5
telecommunications network); and
6
(c) any of the following subparagraphs applies:
7
(i) the carriage service provider's telecommunications
8
network is interconnected with the carrier's
9
telecommunications network;
10
(ii) the carriage service provider's telecommunications
11
network is to be interconnected with the carrier's
12
telecommunications network;
13
(iii) the carriage service provider is seeking to have the
14
carriage service provider's telecommunications network
15
interconnected with the carrier's telecommunications
16
network; and
17
(d) the carriage service provider requests the carrier to obtain
18
from the carriage service provider a designated
19
interconnection service for the purpose of ensuring that each
20
end-user who is:
21
(i) connected to the carrier's telecommunications network;
22
and
23
(ii) supplied with a carriage service that involves
24
communication between end-users;
25
is able to communicate, by means of that carriage service,
26
with an end-user who is connected to the carriage service
27
provider's telecommunications network;
28
the carrier must obtain the designated interconnection service from
29
the carriage service provider.
30
(2) The designated interconnection service is to be obtained on such
31
terms and conditions as are:
32
(a) agreed between the carrier and the carriage service provider;
33
or
34
(b) failing agreement, determined by an arbitrator appointed by
35
the parties.
36
If the parties fail to agree on the appointment of an arbitrator, the
37
ACCC is to be the arbitrator.
38
Any-to-any connectivity Schedule 8
Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill 2005
No. , 2005 23
(3) The regulations may make provision for and in relation to the
1
conduct of an arbitration under this clause.
2
(4) The regulations may provide that, for the purposes of a particular
3
arbitration conducted by the ACCC under this clause, the ACCC
4
may be constituted by a single member, or a specified number of
5
members, of the ACCC. For each such arbitration, that member or
6
those members are to be nominated in writing by the Chairperson of
7
the ACCC.
8
(5) Subclause (4) does not, by implication, limit subclause (3).
9
47 Designated interconnection services
10
(1) The Minister may, by written instrument, declare that a specified
11
eligible service is a designated interconnection service for the
12
purposes of this Part.
13
(2) A declaration under subclause (1) has effect accordingly.
14
(3) Before making a declaration under subclause (1) in relation to a
15
service that is not an active declared service, the Minister must, by
16
writing, request the ACCC to give a written report about whether
17
the proposed declaration would promote the achievement of the
18
objective of any-to-any connectivity (as defined by subsection
19
152AB(8) of the Trade Practices Act 1974).
20
(4) The ACCC must give the report to the Minister within 30 days after
21
receiving the request.
22
(5) In deciding whether to make the declaration, the Minister must have
23
regard to:
24
(a) the ACCC's report; and
25
(b) such other matters (if any) as the Minister considers relevant.
26
(6) A declaration under subclause (1) is a legislative instrument for the
27
purposes of the Legislative Instruments Act 2003.
28
Schedule 9 Long-term interests of end-users
24 Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill
2005 No. , 2005
1
Schedule 9--Long-term interests of end-users
2
3
Trade Practices Act 1974
4
1 Paragraph 152AB(2)(e)
5
Repeal the paragraph, substitute:
6
(e) the objective of encouraging the economically efficient use of,
7
and the economically efficient investment in:
8
(i) the infrastructure by which listed services are supplied;
9
and
10
(ii) any other infrastructure by which listed services are, or
11
are likely to become, capable of being supplied.
12
2 Paragraph 152AB(6)(a)
13
After "it is", insert ", or is likely to become,".
14
3 Subparagraph 152AB(6)(a)(i)
15
Omit "or available", substitute ", available or likely to become
16
available".
17
4 Subparagraph 152AB(6)(a)(ii)
18
After "reasonable", insert "or likely to become reasonable".
19
5 Paragraph 152AB(6)(c)
20
Repeal the paragraph, substitute:
21
(c) the incentives for investment in:
22
(i) the infrastructure by which the services are supplied; and
23
(ii) any other infrastructure by which the services are, or are
24
likely to become, capable of being supplied.
25
6 After subsection 152AB(7)
26
Insert:
27
Long-term interests of end-users Schedule 9
Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill 2005
No. , 2005 25
Investment risks
1
(7A) For the purposes of paragraph (6)(c), in determining incentives for
2
investment, regard must be had to the risks involved in making the
3
investment.
4
(7B) Subsection (7A) does not, by implication, limit the matters to which
5
regard may be had.
6
Schedule 10 Enforceable undertakings
26 Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill
2005 No. , 2005
1
Schedule 10--Enforceable undertakings
2
3
Telecommunications Act 1997
4
1 Section 6 (after table item 9)
5
Insert:
6
10
Enforceable undertakings
Part 31A
2 After Part 31
7
Insert:
8
Part 31A--Enforceable undertakings
9
10
572A Simplified outline
11
The following is a simplified outline of this Part:
12
·
A person may give the ACMA an enforceable undertaking
13
about compliance with this Act.
14
572B Acceptance of undertakings
15
(1) The ACMA may accept any of the following undertakings:
16
(a) a written undertaking given by a person that the person will,
17
in order to comply with this Act, take specified action;
18
(b) a written undertaking given by a person that the person will,
19
in order to comply with this Act, refrain from taking specified
20
action;
21
(c) a written undertaking given by a person that the person will
22
take specified action directed towards ensuring that the person
23
does not contravene this Act, or is unlikely to contravene this
24
Act, in the future.
25
(2) The undertaking must be expressed to be an undertaking under this
26
section.
27
Enforceable undertakings Schedule 10
Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill 2005
No. , 2005 27
(3) The person may withdraw or vary the undertaking at any time, but
1
only with the consent of the ACMA.
2
(4) The ACMA may, by written notice given to the person, cancel the
3
undertaking.
4
(5) The ACMA may publish the undertaking on its Internet site.
5
(6) In this section:
6
this Act includes the Telecommunications (Consumer Protection
7
and Service Standards) Act 1999.
8
572C Enforcement of undertakings
9
(1) If:
10
(a) a person has given an undertaking under section 572B; and
11
(b) the undertaking has not been withdrawn or cancelled; and
12
(c) the ACMA considers that the person has breached the
13
undertaking;
14
the ACMA may apply to the Federal Court for an order under
15
subsection (2).
16
(2) If the Federal Court is satisfied that the person has breached the
17
undertaking, the Court may make any or all of the following orders:
18
(a) an order directing the person to comply with the undertaking;
19
(b) an order directing the person to pay to the Commonwealth an
20
amount up to the amount of any financial benefit that the
21
person has obtained directly or indirectly and that is
22
reasonably attributable to the breach;
23
(c) any order that the Court considers appropriate directing the
24
person to compensate any other person who has suffered loss
25
or damage as a result of the breach;
26
(d) any other order that the Court considers appropriate.
27
Schedule 11 Operational separation of Telstra
28 Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill
2005 No. , 2005
1
Schedule 11--Operational separation of
2
Telstra
3
4
Telecommunications Act 1997
5
1 Section 61
6
Before "A carrier licence", insert "(1)".
7
2 At the end of section 61
8
Add:
9
(2) At any time after the last day on which a report of a subsection
10
61A(1) review was tabled in a House of the Parliament, the Minister
11
may, by written instrument, declare that Part 8 of Schedule 1 ceases
12
to have effect on a specified day. The specified day must not be
13
earlier than the last day on which a resolution disallowing the
14
declaration could have been passed by a House of the Parliament
15
under section 42 of the Legislative Instruments Act 2003.
16
Note:
A subsection 61A(1) review must be conducted before 1 July 2009.
17
(3) A declaration under subsection (2) has effect accordingly.
18
(4) A declaration under subsection (2) is a legislative instrument for the
19
purposes of the Legislative Instruments Act 2003.
20
3 After section 61
21
Insert:
22
61A Review before 1 July 2009 of conditions relating to operational
23
separation of Telstra
24
(1) Before 1 July 2009, the Minister must cause to be conducted a
25
review of the operation of Part 8 of Schedule 1.
26
(2) A review under subsection (1) must have regard to the following
27
matters:
28
(a) the state of competition in telecommunications markets;
29
Operational separation of Telstra Schedule 11
Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill 2005
No. , 2005 29
(b) whether Telstra has a substantial degree of power in any
1
telecommunications market;
2
(c) technological developments that have, or might reasonably be
3
expected to have, a significant impact on competition in
4
telecommunications markets;
5
(d) Telstra's commercial incentives for supplying wholesale
6
eligible services;
7
(e) costs and benefits of the operation of Part 8 of Schedule 1.
8
(3) The Minister must cause to be prepared a report of a review under
9
subsection (1).
10
(4) The Minister must cause copies of the report to be tabled in each
11
House of the Parliament within 15 sitting days of that House after
12
the completion of the preparation of the report.
13
(5) In this section:
14
eligible service has the same meaning as in section 152AL of the
15
Trade Practices Act 1974.
16
substantial degree of power in a telecommunications market has
17
the same meaning as in Part XIB of the Trade Practices Act 1974.
18
telecommunications market has the same meaning as in Part XIB
19
of the Trade Practices Act 1974.
20
4 After section 69
21
Insert:
22
69A Remedial directions--breach by Telstra of conditions relating
23
to operational separation
24
(1) This section applies if Telstra has contravened, or is contravening, a
25
condition set out in Part 8 of Schedule 1.
26
(2) The ACCC may give Telstra a written direction requiring Telstra to
27
take specified action directed towards ensuring that Telstra does not
28
contravene the condition, or is unlikely to contravene the condition,
29
in the future.
30
Schedule 11 Operational separation of Telstra
30 Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill
2005 No. , 2005
(3) The following are examples of the kinds of direction that may be
1
given to Telstra under subsection (2):
2
(a) a direction that Telstra implement effective administrative
3
systems for monitoring compliance with the condition;
4
(b) a direction that Telstra implement a system designed to give
5
Telstra's employees, agents and contractors a reasonable
6
knowledge and understanding of the requirements of the
7
condition, in so far as those requirements affect the
8
employees, agents or contractors concerned.
9
(4) Telstra must not contravene a direction under subsection (2).
10
(5) A direction under subsection (2) is not a legislative instrument for
11
the purposes of the Legislative Instruments Act 2003.
12
(6) This section does not limit section 69.
13
69B Review by the Australian Competition Tribunal of remedial
14
directions given by the ACCC
15
Application for review
16
(1) If the ACCC gives a section 69A direction to Telstra, Telstra may
17
apply to the Australian Competition Tribunal for a review of the
18
direction.
19
(2) An application under this section for a review of a section 69A
20
direction must be:
21
(a) in writing; and
22
(b) made within 7 days after the ACCC gave the direction.
23
Review
24
(3) If the Australian Competition Tribunal receives an application
25
under this section for review of a section 69A direction, the
26
Australian Competition Tribunal must review the direction.
27
Decision on review
28
(4) On a review of a section 69A direction, the Australian Competition
29
Tribunal may make a decision:
30
(a) affirming the direction; or
31
Operational separation of Telstra Schedule 11
Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill 2005
No. , 2005 31
(b) setting aside the direction; or
1
(c) setting aside the direction and, in substitution for the direction
2
so set aside, making a section 69A direction; or
3
(d) varying the direction;
4
and, for the purposes of the review, the Australian Competition
5
Tribunal may perform all the functions and exercise all the powers
6
of the ACCC.
7
(5) A decision by the Australian Competition Tribunal:
8
(a) affirming a section 69A direction; or
9
(b) setting aside a section 69A direction; or
10
(c) made in substitution for a section 69A direction; or
11
(d) varying a section 69A direction;
12
is taken, for the purposes of this Act (other than this section), to be
13
a decision of the ACCC.
14
Conduct of review
15
(6) For the purposes of a review by the Australian Competition
16
Tribunal under this section, the member of the Tribunal presiding at
17
the review may require the ACCC to give such information, make
18
such reports and provide such other assistance to the Tribunal as the
19
member specifies.
20
(7) For the purposes of a review, the Australian Competition Tribunal
21
may have regard to any information given, documents produced or
22
evidence given to the ACCC in connection with the making of the
23
section 69A direction to which the review relates.
24
(8) To avoid doubt, Division 2 of Part IX of the Trade Practices Act
25
1974 applies to proceedings before the Australian Competition
26
Tribunal under this section.
27
5 After paragraph 70(5)(b)
28
Insert:
29
(ba) if the carrier is Telstra--a condition set out in Part 8 of
30
Schedule 1;
31
6 At the end of section 70
32
Add:
33
Schedule 11 Operational separation of Telstra
32 Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill
2005 No. , 2005
(6) Paragraph (5)(ba) does not limit subsection (1).
1
7 At the end of Schedule 1
2
Add:
3
Part 8--Operational separation of Telstra
4
Division 1--Introduction
5
48 Aim and objects
6
Aim
7
(1) The aim of this Part is to promote the principles of transparency and
8
equivalence in relation to the supply by Telstra of wholesale eligible
9
services.
10
Objects
11
(2) The objects of this Part are as follows:
12
(a) to promote a principle of equivalence in relation to the supply
13
by Telstra of designated services to:
14
(i) Telstra's wholesale customers; and
15
(ii) Telstra's retail business units;
16
(b) to require Telstra to maintain the following business units:
17
(i) one or more wholesale business units;
18
(ii) one or more retail business units;
19
(iii) one or more key network services business units;
20
(c) to promote a substantial degree of organisational and
21
operational separation between:
22
(i) Telstra's wholesale business units (considered as a
23
group); and
24
(ii) Telstra's retail business units (considered as a group);
25
and
26
(iii) Telstra's key network services business units (considered
27
as a group);
28
(d) to promote responsiveness by Telstra in meeting its wholesale
29
customers' needs in relation to eligible services;
30
Operational separation of Telstra Schedule 11
Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill 2005
No. , 2005 33
(e) to require Telstra to have a plan (to be known as the final
1
operational separation plan) to achieve the aim and other
2
objects of this Part;
3
(f) to ensure that Telstra has systems, procedures and processes
4
that promote and facilitate:
5
(i) compliance with the final operational separation plan;
6
and
7
(ii) monitoring of, and reporting on, compliance with the
8
plan; and
9
(iii) the development of performance measures relating to
10
compliance with the plan; and
11
(iv) audit, and other checks, of compliance with the plan;
12
(g) to ensure that the achievement of:
13
(i) the aim of this Part; and
14
(ii) any of the above objects;
15
does not impair Telstra's ability to compete on a fair and
16
efficient basis.
17
(3) In determining the principle of equivalence covered by
18
paragraph (2)(a), regard must be had to:
19
(a) terms and conditions relating to price or a method of
20
ascertaining price; and
21
(b) other terms and conditions.
22
(4) Subclause (3) does not limit the matters to which regard may be
23
had.
24
(5) In determining, for the purposes of paragraph (2)(d), the needs of
25
Telstra's wholesale customers in relation to eligible services, regard
26
must be had to the following needs:
27
(a) the need for those customers to be supplied by Telstra with
28
eligible services on a basis that allows fair competition with
29
eligible services supplied by Telstra's retail business units;
30
(b) the need for disputes between those customers and Telstra
31
about eligible services to be resolved in a fair and timely
32
manner;
33
(c) the need for confidentiality in relation to eligible services
34
supplied by Telstra to those customers;
35
Schedule 11 Operational separation of Telstra
34 Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill
2005 No. , 2005
(d) the need to be kept informed of relevant issues and
1
developments in connection with:
2
(i) Telstra's network, in so far as it relates to the supply of
3
eligible services; and
4
(ii) eligible services supplied by Telstra.
5
(6) Subclause (5) does not limit the matters to which regard may be
6
had.
7
Note:
See also subsection 61(2).
8
49 Simplified outline
9
The following is a simplified outline of this Part:
10
·
Telstra must prepare a draft operational separation plan. The
11
plan must be directed towards the achievement of the aim and
12
objects of this Part.
13
·
A final operational separation plan is a draft operational
14
separation plan that has been approved by the Minister.
15
·
If Telstra has contravened, or is contravening, a final
16
operational separation plan, the Minister may require Telstra to
17
prepare a draft rectification plan.
18
·
A final rectification plan is a draft rectification plan that has
19
been approved by the Minister.
20
·
If a final rectification plan is in force, Telstra must comply
21
with the plan.
22
50 Definitions
23
In this Part:
24
business unit means a part of Telstra.
25
declared network service has the meaning given by clause 50B.
26
designated service has the meaning given by clause 50A.
27
Operational separation of Telstra Schedule 11
Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill 2005
No. , 2005 35
draft operational separation plan means a draft operational
1
separation plan under Division 2.
2
draft rectification plan means a draft rectification plan under
3
Division 3.
4
eligible service has the same meaning as in section 152AL of the
5
Trade Practices Act 1974.
6
final operational separation plan means a final operational
7
separation plan under Division 2.
8
final rectification plan means a final rectification plan under
9
Division 3.
10
key network services business unit means a business unit of
11
Telstra that supplies the following in relation to eligible services:
12
(a) fault detection, handling and rectification;
13
(b) service activation and provisioning;
14
(c) a declared network service.
15
retail business unit means a business unit by which Telstra deals
16
with its retail customers.
17
supply, in relation to a service, includes supply by Telstra of the
18
service to itself.
19
wholesale business unit means a business unit by which Telstra
20
deals with its wholesale customers.
21
50A Designated services
22
(1) For the purposes of this Part, a designated service is an eligible
23
service specified in a written determination made by the Minister
24
under this subclause.
25
(2) The Minister must not make a determination under subclause (1)
26
that specifies a service that is not an active declared service (within
27
the meaning of section 152AR of the Trade Practices Act 1974)
28
unless:
29
(a) the determination is the first determination made under
30
subclause (1); or
31
Schedule 11 Operational separation of Telstra
36 Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill
2005 No. , 2005
(b) Telstra has given written consent to the making of the
1
determination.
2
(3) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a
3
power conferred on the Minister by subclause (1), but it applies
4
with the change set out in subclause (4).
5
(4) The Minister must not vary a determination under subclause (1) so
6
as to specify a service that is not an active declared service (within
7
the meaning of section 152AR of the Trade Practices Act 1974)
8
unless Telstra has given written consent to the variation of the
9
determination.
10
(5) Before making a determination under subclause (1), the Minister
11
must consult Telstra.
12
(6) A determination under subclause (1) is a legislative instrument for
13
the purposes of the Legislative Instruments Act 2003.
14
50B Declared network services
15
(1) For the purposes of this Part, a declared network service is a
16
service specified in a written determination made by the Minister
17
under this subclause.
18
(2) A determination under subclause (1) is a legislative instrument for
19
the purposes of the Legislative Instruments Act 2003.
20
50C Notional contracts
21
For the purposes of this Part:
22
(a) a notional contract (however described) between any of
23
Telstra's business units is to be treated as if it were an actual
24
contract; and
25
(b) any terms and conditions (whether or not relating to price or a
26
method of ascertaining price) in such a notional contract are
27
to be treated as if they were actual terms and conditions.
28
Operational separation of Telstra Schedule 11
Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill 2005
No. , 2005 37
Division 2--Operational separation plan
1
51 Contents of draft or final operational separation plan
2
(1) A draft or final operational separation plan must:
3
(a) be directed towards the achievement of the aim and objects of
4
this Part; and
5
(b) contain provisions requiring Telstra:
6
(i) within a specified period after the end of each financial
7
year, to prepare a report about the extent to which
8
Telstra complied with the plan during that year; and
9
(ii) to give the report to the Minister; and
10
(iii) to make a copy of the report, or extracts from the report,
11
available on Telstra's Internet site; and
12
(c) contain provisions requiring Telstra:
13
(i) within a specified period after the end of each financial
14
year, to arrange for an independent audit of the extent to
15
which Telstra complied with the plan during that year,
16
and to obtain a report of that independent audit; and
17
(ii) to give the report to the Minister; and
18
(iii) to make a copy of the report, or extracts from the report,
19
available on Telstra's Internet site; and
20
(d) comply with such requirements (if any) as are specified in a
21
written determination made by the Minister under this
22
paragraph.
23
(2) A paragraph (1)(d) requirement may deal with the manner in which
24
a paragraph (1)(b) or (c) requirement is to be met. This subclause
25
does not limit paragraph (1)(d).
26
(3) A draft or final operational separation plan may make provision for,
27
or in relation to, a matter by empowering the Minister, the ACCC or
28
the ACMA to make decisions of an administrative character.
29
(4) A determination under paragraph (1)(d) is a legislative instrument
30
for the purposes of the Legislative Instruments Act 2003.
31
Note:
A final operational separation plan is a draft operational separation
32
plan that has been approved by the Minister--see clause 55.
33
Schedule 11 Operational separation of Telstra
38 Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill
2005 No. , 2005
52 Draft operational separation plan to be given to Minister
1
Telstra must give the Minister a draft operational separation plan
2
within 90 days after the commencement of this clause.
3
53 Public comment--draft operational separation plan
4
(1) Before giving the Minister a draft operational separation plan under
5
clause 52, Telstra must:
6
(a) cause to be published in a newspaper circulating generally in
7
each State, the Australian Capital Territory and the Northern
8
Territory a notice:
9
(i) stating that Telstra has prepared a preliminary version of
10
the draft plan; and
11
(ii) stating that a copy of the preliminary version will be
12
available on Telstra's Internet site throughout the period
13
of 30 days after the publication of the notice; and
14
(iii) inviting persons to give written comments about the
15
preliminary version to Telstra within 30 days after the
16
publication of the notice; and
17
(b) make a copy of the preliminary version available on Telstra's
18
Internet site in accordance with the notice.
19
(2) If persons have given written comments about the preliminary
20
version in accordance with the notice, Telstra must ensure that the
21
draft plan given to the Minister is accompanied by a copy of those
22
comments.
23
54 Approval of draft by Minister
24
(1) This clause applies if Telstra gives the Minister a draft operational
25
separation plan.
26
(2) The Minister must:
27
(a) approve the plan; or
28
(b) refuse to approve the plan.
29
(3) In deciding whether to approve the plan, the Minister must have
30
regard to the following matters:
31
Operational separation of Telstra Schedule 11
Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill 2005
No. , 2005 39
(a) the extent to which the plan is likely to achieve the aim and
1
objects of this Part; and
2
(b) such other matters (if any) as are specified in a written
3
determination made by the Minister under this paragraph.
4
(4) Subclause (3) does not limit the matters to which the Minister may
5
have regard.
6
(5) If the Minister neither approves, nor refuses to approve, the plan
7
before the end of the period of 90 days after the day on which the
8
Minister received the draft plan, the Minister is taken, at the end of
9
that period, to have approved the plan under subclause (2).
10
(6) As soon as practicable after deciding whether to approve the plan,
11
the Minister must notify Telstra in writing of the decision.
12
(7) If the Minister refuses to approve the plan, the Minister must notify
13
Telstra in writing of the Minister's reasons for the refusal.
14
(8) If the Minister refuses to approve the plan, the Minister may, by
15
written notice given to Telstra, direct Telstra to:
16
(a) vary the draft plan in accordance with the direction; and
17
(b) give the varied draft plan to the Minister under subclause (1).
18
Telstra must give the varied draft plan to the Minister within 60
19
days after the day on which the direction was given.
20
(9) A determination under paragraph (3)(b) is a legislative instrument
21
for the purposes of the Legislative Instruments Act 2003.
22
(10) A direction under subclause (8) is a legislative instrument for the
23
purposes of the Legislative Instruments Act 2003.
24
55 Effect of approval
25
(1) If the Minister approves a draft operational separation plan, the
26
plan becomes a final operational separation plan. The final
27
operational separation plan comes into force at the time when
28
Telstra is notified of the approval.
29
(2) A final operational separation plan is not a legislative instrument for
30
the purposes of the Legislative Instruments Act 2003.
31
Schedule 11 Operational separation of Telstra
40 Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill
2005 No. , 2005
(3) Compliance with a final operational separation plan is not a
1
condition of Telstra's carrier licence.
2
56 Variation of final operational separation plan
3
(1) This clause applies if:
4
(a) a final operational separation plan is in force; and
5
(b) Telstra gives the Minister a draft variation of the plan.
6
(2) The Minister must:
7
(a) approve the variation; or
8
(b) refuse to approve the variation.
9
(3) In deciding whether to approve the variation, the Minister must have
10
regard to the following matters:
11
(a) the extent to which the final operational separation plan, as
12
proposed to be varied, is likely to achieve the aim and objects
13
of this Part; and
14
(b) such other matters (if any) as are specified in a written
15
determination made by the Minister under this paragraph.
16
(4) Subclause (3) does not limit the matters to which the Minister may
17
have regard.
18
(5) If the Minister neither approves, nor refuses to approve, the
19
variation before the end of the period of 90 days after the day on
20
which the Minister received the draft variation, the Minister is
21
taken, at the end of that period, to have approved the variation under
22
subclause (2).
23
(6) As soon as practicable after deciding whether to approve the
24
variation, the Minister must notify Telstra in writing of the decision.
25
(7) If the Minister refuses to approve the variation, the Minister must
26
notify Telstra in writing of the Minister's reasons for the refusal.
27
(8) If the Minister approves the variation, the plan is varied
28
accordingly.
29
(9) A determination under paragraph (3)(b) is a legislative instrument
30
for the purposes of the Legislative Instruments Act 2003.
31
Operational separation of Telstra Schedule 11
Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill 2005
No. , 2005 41
(10) A variation of a final operational separation plan is not a legislative
1
instrument for the purposes of the Legislative Instruments Act
2
2003.
3
56A Minister may direct Telstra to vary final operational separation
4
plan
5
(1) This clause applies if a final operational separation plan is in force.
6
(2) The Minister may, by written notice given to Telstra, direct Telstra
7
to:
8
(a) prepare a draft variation of the plan in accordance with the
9
direction; and
10
(b) give the draft variation to the Minister under subclause 56(1).
11
Telstra must give the draft variation to the Minister within 60 days
12
after the day on which the direction was given.
13
(3) A direction under this clause is a legislative instrument for the
14
purposes of the Legislative Instruments Act 2003.
15
57 Public comment--variation of final operational separation plan
16
(1) This clause applies to a draft variation of a final operational
17
separation plan unless:
18
(a) the draft variation was given to the Minister as a result of a
19
direction under subclause 56A(2); or
20
(b) both:
21
(i) Telstra had previously given the Minister a written
22
outline of the draft variation; and
23
(ii) the Minister, by written notice given to Telstra, had
24
informed Telstra that the Minister was satisfied that the
25
draft variation was of a minor nature.
26
(2) Before giving the Minister a draft variation of a final operational
27
separation plan under subclause 56(1), Telstra must:
28
(a) cause to be published in a newspaper circulating generally in
29
each State, the Australian Capital Territory and the Northern
30
Territory a notice:
31
(i) stating that Telstra has prepared a preliminary version of
32
the draft variation; and
33
Schedule 11 Operational separation of Telstra
42 Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill
2005 No. , 2005
(ii) stating that a copy of the preliminary version will be
1
available on Telstra's Internet site throughout the period
2
of 20 days after the publication of the notice; and
3
(iii) inviting persons to give written comments about the
4
preliminary version to Telstra within 20 days after the
5
publication of the notice; and
6
(b) make a copy of the preliminary version available on Telstra's
7
Internet site in accordance with the notice.
8
(3) If persons have given written comments about the preliminary
9
version in accordance with the notice, Telstra must ensure that the
10
draft variation given to the Minister is accompanied by a copy of
11
those comments.
12
(4) A notice under subparagraph (1)(b)(ii) is not a legislative
13
instrument for the purposes of the Legislative Instruments Act
14
2003.
15
58 Publication of final operational separation plan
16
(1) As soon as practicable after a final operational separation plan
17
comes into force, Telstra must make a copy of the plan available on
18
Telstra's Internet site.
19
(2) As soon as practicable after a variation of a final operational
20
separation plan comes into force, Telstra must make a copy of the
21
varied final operational separation plan available on Telstra's
22
Internet site.
23
Division 3--Rectification plan
24
59 Contents of draft or final rectification plan
25
(1) The following matters must be set out in each draft or final
26
rectification plan that relates to a contravention of a final
27
operational separation plan:
28
(a) the action to be taken by Telstra to ensure that the
29
contravention ceases;
30
(b) the action to be taken by Telstra directed towards ensuring
31
that there is no repetition of the contravention in the future;
32
Operational separation of Telstra Schedule 11
Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill 2005
No. , 2005 43
(c) the action to be taken by Telstra by way of reporting to the
1
Minister on any action taken by it as mentioned in
2
paragraph (a) or (b).
3
Note:
A final rectification plan is a draft rectification plan that has been
4
approved by the Minister--see clause 62.
5
(2) A draft or final rectification plan may make provision for, or in
6
relation to, a matter by empowering the Minister, the ACCC or the
7
ACMA to make decisions of an administrative character.
8
60 Draft rectification plan to be given to Minister
9
(1) This clause applies if Telstra has contravened, or is contravening, a
10
final operational separation plan.
11
(2) The Minister may give Telstra a written direction requiring Telstra
12
to give the Minister a draft rectification plan that relates to that
13
contravention.
14
(3) Telstra must comply with the direction within 90 days after the day
15
on which the direction was given.
16
(4) A direction under this clause is a legislative instrument for the
17
purposes of the Legislative Instruments Act 2003.
18
61 Approval of draft by Minister
19
(1) This clause applies if Telstra gives the Minister a draft rectification
20
plan that relates to a particular contravention.
21
(2) The Minister must:
22
(a) approve the plan; or
23
(b) refuse to approve the plan.
24
(3) In deciding whether to approve the plan, the Minister must have
25
regard to the following matters:
26
(a) the extent to which the action proposed to be taken by Telstra
27
is likely to ensure that:
28
(i) the contravention ceases; and
29
(ii) there is no repetition of the contravention in the future;
30
Schedule 11 Operational separation of Telstra
44 Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill
2005 No. , 2005
(b) such other matters (if any) as are specified in a written
1
determination made by the Minister under this paragraph.
2
(4) Subclause (3) does not limit the matters to which the Minister may
3
have regard.
4
(5) If the Minister neither approves, nor refuses to approve, the plan
5
before the end of the period of 90 days after the day on which the
6
Minister received the draft plan, the Minister is taken, at the end of
7
that period, to have approved the plan under subclause (2).
8
(6) As soon as practicable after deciding whether to approve the plan,
9
the Minister must notify Telstra in writing of the decision.
10
(7) If the Minister refuses to approve the plan, the Minister must notify
11
Telstra in writing of the Minister's reasons for the refusal.
12
(8) If the Minister refuses to approve the plan, the Minister may, by
13
written notice given to Telstra, direct Telstra to:
14
(a) vary the draft plan in accordance with the direction; and
15
(b) give the varied draft plan to the Minister under subclause (1).
16
Telstra must give the varied draft plan to the Minister within 60
17
days after the day on which the direction was given.
18
(9) A determination under paragraph (3)(b) is a legislative instrument
19
for the purposes of the Legislative Instruments Act 2003.
20
(10) A direction under subclause (8) is a legislative instrument for the
21
purposes of the Legislative Instruments Act 2003.
22
62 Effect of approval
23
(1) If the Minister approves a draft rectification plan, the plan becomes
24
a final rectification plan. The final rectification plan comes into
25
force at the time when Telstra is notified of the approval.
26
(2) A final rectification plan is not a legislative instrument for the
27
purposes of the Legislative Instruments Act 2003.
28
63 Variation of final rectification plan
29
(1) This clause applies if:
30
Operational separation of Telstra Schedule 11
Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill 2005
No. , 2005 45
(a) a final rectification plan is in force; and
1
(b) the plan relates to a particular contravention; and
2
(c) Telstra gives the Minister a draft variation of the plan.
3
(2) The Minister must:
4
(a) approve the variation; or
5
(b) refuse to approve the variation.
6
(3) In deciding whether to approve the variation, the Minister must have
7
regard to the following matters:
8
(a) the extent to which the action proposed to be taken by Telstra
9
under the plan as proposed to be varied will be likely to ensure
10
that:
11
(i) the contravention ceases; and
12
(ii) there is no repetition of the contravention in the future;
13
(b) such other matters (if any) as are specified in a written
14
determination made by the Minister under this paragraph.
15
(4) Subclause (3) does not limit the matters to which the Minister may
16
have regard.
17
(5) If the Minister neither approves, nor refuses to approve, the
18
variation before the end of the period of 90 days after the day on
19
which the Minister received the draft variation, the Minister is
20
taken, at the end of that period, to have approved the variation under
21
subclause (2).
22
(6) As soon as practicable after deciding whether to approve the
23
variation, the Minister must notify Telstra in writing of the decision.
24
(7) If the Minister refuses to approve the variation, the Minister must
25
notify Telstra in writing of the Minister's reasons for the refusal.
26
(8) If the Minister approves the variation, the plan is varied
27
accordingly.
28
(9) A determination under paragraph (3)(b) is a legislative instrument
29
for the purposes of the Legislative Instruments Act 2003.
30
(10) A variation of a final rectification plan is not a legislative
31
instrument for the purposes of the Legislative Instruments Act
32
2003.
33
Schedule 11 Operational separation of Telstra
46 Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill
2005 No. , 2005
64 Minister may direct Telstra to vary final rectification plan
1
(1) This clause applies if a final rectification plan is in force.
2
(2) The Minister may, by written notice given to Telstra, direct Telstra
3
to:
4
(a) prepare a draft variation of the plan in accordance with the
5
direction; and
6
(b) give the draft variation to the Minister under subclause 63(1).
7
The draft variation must be given to the Minister within 60 days
8
after the day on which the direction was given.
9
(3) A direction under this clause is a legislative instrument for the
10
purposes of the Legislative Instruments Act 2003.
11
65 Compliance with final rectification plan
12
If a final rectification plan is in force, Telstra must comply with the
13
plan.
14
66 Publication of final rectification plan
15
(1) As soon as practicable after a final rectification plan comes into
16
force, Telstra must make a copy of the plan available on Telstra's
17
Internet site.
18
(2) As soon as practicable after a variation of a final rectification plan
19
comes into force, Telstra must make a copy of the varied final
20
rectification plan available on Telstra's Internet site.
21
Trade Practices Act 1974
22
8 At the end of Part XIB
23
Add:
24
Operational separation of Telstra Schedule 11
Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill 2005
No. , 2005 47
Division 14--Operational separation for Telstra
1
151CP Operational separation for Telstra
2
(1) This section applies if Telstra has engaged in conduct in order to
3
comply with a final operational separation plan in force under
4
Part 8 of Schedule 1 to the Telecommunications Act 1997.
5
(2) In performing a function, or exercising a power, under this Part in
6
relation to Telstra, the Commission must have regard to the conduct
7
to the extent that the conduct is relevant.
8
9 After section 152EP
9
Insert:
10
152EQ Operational separation for Telstra
11
(1) This section applies if Telstra has engaged in conduct in order to
12
comply with a final operational separation plan in force under
13
Part 8 of Schedule 1 to the Telecommunications Act 1997.
14
(2) In performing a function, or exercising a power, under this Part in
15
relation to Telstra, the Commission must have regard to the conduct
16
to the extent that the conduct is relevant.
17
Schedule 12 Interim determinations about access
48 Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill
2005 No. , 2005
1
Schedule 12--Interim determinations about
2
access
3
4
Trade Practices Act 1974
5
1 After subsection 152CPA(2)
6
Insert:
7
Procedural fairness
8
(3) The Commission is not required to observe any requirements of
9
procedural fairness in relation to the making of an interim
10
determination if:
11
(a) both:
12
(i) the declared service is covered by a determination in
13
force under section 152AQA; and
14
(ii) the price-related terms and conditions in the interim
15
determination are consistent with the price-related terms
16
and conditions in the section 152AQA determination; or
17
(b) both:
18
(i) the declared service is covered by a determination in
19
force under section 152AQB; and
20
(ii) the price-related terms and conditions in the interim
21
determination are consistent with the price-related terms
22
and conditions in the section 152AQB determination.
23
For this purpose, price-related terms and conditions means terms
24
and conditions relating to price or a method of ascertaining price.
25
2 After subsection 152CPA(5)
26
Insert:
27
(5A) The Commission may extend the period specified in an interim
28
determination, so long as:
29
(a) the extension is for a period of not more than 12 months; and
30
(b) there has been no previous extension.
31
Interim determinations about access Schedule 12
Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill 2005
No. , 2005 49
(5B) The Commission is not required to observe any requirements of
1
procedural fairness in relation to granting, or refusing to grant, an
2
extension under subsection (5A).
3
3 At the end of section 152CPA
4
Add:
5
(12) The Commission is not required to observe any requirements of
6
procedural fairness in relation to the variation under subsection (10)
7
of an interim determination if:
8
(a) both:
9
(i) the declared service is covered by a determination in
10
force under section 152AQA; and
11
(ii) the price-related terms and conditions in the varied
12
interim determination are consistent with the
13
price-related terms and conditions in the
14
section 152AQA determination; or
15
(b) both:
16
(i) the declared service is covered by a determination in
17
force under section 152AQB; and
18
(ii) the price-related terms and conditions in the varied
19
interim determination are consistent with the
20
price-related terms and conditions in the section 152AQB
21
determination.
22
For this purpose, price-related terms and conditions means terms
23
and conditions relating to price or a method of ascertaining price.
24
Schedule 13 Remedial directions
50 Telecommunications Legislation Amendment (Competition and Consumer Issues) Bill
2005 No. , 2005
1
Schedule 13--Remedial directions
2
3
Telecommunications Act 1997
4
1 At the end of section 69
5
Add:
6
(8) A direction under subsection (2) is not a legislative instrument for
7
the purposes of the Legislative Instruments Act 2003.
8
2 At the end of section 102
9
Add:
10
(7) A direction under subsection (2) is not a legislative instrument for
11
the purposes of the Legislative Instruments Act 2003.
12
3 At the end of section 121
13
Add:
14
(5) A direction under subsection (1) is not a legislative instrument for
15
the purposes of the Legislative Instruments Act 2003.
16