TELECOMMUNICATIONS LEGISLATION AMENDMENT (NATIONAL BROADBAND NETWORK MEASURES-ACCESS ARRANGEMENTS) BILL 2010

i Telecommunications Legislation Amendment (National Broadband Network Measures--

Access Arrangements) Bill 2010 No. , 2010

Contents

1 Short

title

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

2 Commencement

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

3 Schedule(s)

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

Schedule 1--Amendments

Part 1--General amendments

Telecommunications Act 1997

Competition and Consumer Act 2010

Part 2--Amendments relating to infringement notices

Telecommunications Act 1997

Part 3--Amendments relating to Layer 2 Ethernet bitstream

services

Telecommunications Act 1997

Competition and Consumer Act 2010

Telecommunications Legislation Amendment (National Broadband Network Measures--Access

Arrangements) Bill 2010 No. , 2010 1

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 may be cited as the Telecommunications Legislation

Amendment (National Broadband Network Measures--Access

Arrangements) Act 2010.

2 Commencement

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

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

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

according to its terms.

2 Telecommunications Legislation Amendment (National Broadband Network Measures--

Access Arrangements) Bill 2010 No. , 2010

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 this Act receives the Royal Assent.

2. Schedule 1,

Part 1

The latest of:

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

the Royal Assent; and

(b) immediately after the commencement of

section 3 of the National Broadband

Network Companies Act 2010; and

Part 2 of Schedule 1 to the

Telecommunications Legislation

Amendment (Competition and Consumer

Safeguards) Act 2010.

However, the provision(s) do not commence

at all unless both of the events mentioned in

paragraphs (b) and (c) occur.

3. Schedule 1,

Part 2

The latest of:

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

the Royal Assent; and

(b) immediately after the commencement of

section 3 of the National Broadband

Network Companies Act 2010; and

Part 7 of Schedule 1 to the

Telecommunications Legislation

Amendment (Competition and Consumer

Safeguards) Act 2010.

However, the provision(s) do not commence

at all unless both of the events mentioned in

paragraphs (b) and (c) occur.

4. Schedule 1,

Part 3

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not

commence within the period of 12 months

beginning on the day this Act receives the

Telecommunications Legislation Amendment (National Broadband Network Measures--Access

Arrangements) Bill 2010 No. , 2010 3

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

Royal Assent, they commence on the day

after the end of that period.

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 Schedule(s)

Each Act 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.

Note:

On 1 January 2011, the short title of the Trade Practices Act 1974 was

changed to the Competition and Consumer Act 2010 by the Trade

Practices Amendment (Australian Consumer Law) Act (No. 2) 2010.

Schedule 1 Amendments

Part 1 General amendments

4 Telecommunications Legislation Amendment (National Broadband Network Measures--

Access Arrangements) Bill 2010 No. , 2010

Schedule 1--Amendments

Part 1--General amendments

Telecommunications Act 1997

1 Section 7 (after paragraph (b) of the definition of ACCC's

telecommunications functions and powers)

Insert:

(ba)

the

National Broadband Network Companies Act 2010; or

2 Section 7

Insert:

NBN corporation has the same meaning as in the National

Broadband Network Companies Act 2010. This definition does not

apply to:

(a) section 577BA; or

(b) section 577BC; or

(d) Part 5 of Schedule 1.

3 Section 7

Insert:

optical fibre line means a line that consists of, or encloses, optical

fibre.

4 After section 62C

Insert:

62D Condition of carrier licence set out in section 152CJC of the

Competition and Consumer Act 2010

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

condition set out in section 152CJC of the Competition and

Consumer Act 2010.

Note:

Section 152CJC of the Competition and Consumer Act 2010 deals

with rules about the supply of services by NBN corporations.

Amendments Schedule 1

General amendments Part 1

Telecommunications Legislation Amendment (National Broadband Network Measures--Access

Arrangements) Bill 2010 No. , 2010 5

62E Condition of carrier licence set out in section 37 of the National

Broadband Network Companies Act 2010

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

condition set out in section 37 of the National Broadband Network

Companies Act 2010.

Note:

Section 37 of the National Broadband Network Companies Act 2010

deals with rules about:

(a) the supply of goods and services by NBN corporations; and

(b) the investment of money by NBN corporations; and

(d) the divestment of assets by NBN corporations.

5 After subsection 69(7C)

Insert:

(7D) Subsection (1) does not apply to the condition set out in

section 152CJC of the Competition and Consumer Act 2010.

Note:

Section 152CJC of the Competition and Consumer Act 2010 deals

with rules about the supply of services by NBN corporations.

(7E) Subsection (1) does not apply to the condition set out in section 37

of the National Broadband Network Companies Act 2010.

Note:

Section 37 of the National Broadband Network Companies Act 2010

deals with rules about:

(a) the supply of goods and services by NBN corporations; and

(b) the investment of money by NBN corporations; and

(d) the divestment of assets by NBN corporations.

(7F) Subsection (1) does not apply to a condition covered by section 41

of the National Broadband Network Companies Act 2010.

Note:

Section 41 of the National Broadband Network Companies Act 2010

deals with rules about the supply of services by NBN corporations.

6 After subsection 70(4C)

Insert:

(4D) Subsection (1) does not apply to the condition set out in

section 152CJC of the Competition and Consumer Act 2010.

Note:

Section 152CJC of the Competition and Consumer Act 2010 deals

with rules about the supply of services by NBN corporations.

Schedule 1 Amendments

Part 1 General amendments

6 Telecommunications Legislation Amendment (National Broadband Network Measures--

Access Arrangements) Bill 2010 No. , 2010

(4E) Subsection (1) does not apply to the condition set out in section 37

of the National Broadband Network Companies Act 2010.

Note:

Section 37 of the National Broadband Network Companies Act 2010

deals with rules about:

(a) the supply of goods and services by NBN corporations; and

(b) the investment of money by NBN corporations; and

(d) the divestment of assets by NBN corporations.

(4F) Subsection (1) does not apply to a condition covered by section 41

of the National Broadband Network Companies Act 2010.

Note:

Section 41 of the National Broadband Network Companies Act 2010

deals with rules about the supply of services by NBN corporations.

7 At the end of subsection 70(5)

Add:

; (g) the condition set out in section 152CJC of the Competition

and Consumer Act 2010;

(h) the condition set out in section 37 of the National Broadband

Network Companies Act 2010;

(i) a condition covered by section 41 of the National Broadband

Network Companies Act 2010.

8 At the end of section 98

Add:

(6) In addition to the rules mentioned in subsection (1), the rule set out

in subsection 152CJD(2) of the Competition and Consumer Act

2010 is a service provider rule for the purposes of this Act.

Note:

Subsection 152CJD(2) of the Competition and Consumer Act 2010

deals with rules about the supply of services by NBN corporations.

(7) In addition to the rules mentioned in subsection (1), the rule set out

in subsection 38(2) of the National Broadband Network

Companies Act 2010 is a service provider rule for the purposes of

this Act.

Note:

Subsection 38(2) of the National Broadband Network Companies Act

2010 deals with rules about:

(a) the supply of goods and services by NBN corporations; and

(b) the investment of money by NBN corporations; and

(d) the divestment of assets by NBN corporations.

Amendments Schedule 1

General amendments Part 1

Telecommunications Legislation Amendment (National Broadband Network Measures--Access

Arrangements) Bill 2010 No. , 2010 7

9 After subsection 102(6C)

Insert:

(6D) Subsection (1) does not apply to the rule set out in subsection

152CJD(2) of the Competition and Consumer Act 2010.

Note:

Subsection 152CJD(2) of the Competition and Consumer Act 2010

deals with rules about the supply of services by NBN corporations.

(6E) Subsection (1) does not apply to the rule set out in subsection 38(2)

of the National Broadband Network Companies Act 2010.

Note:

Subsection 38(2) of the National Broadband Network Companies Act

2010 deals with rules about:

(a) the supply of goods and services by NBN corporations; and

(b) the investment of money by NBN corporations; and

(d) the divestment of assets by NBN corporations.

10 After subsection 103(3C)

Insert:

(3D) Subsection (1) does not apply to the rule set out in subsection

152CJD(2) of the Competition and Consumer Act 2010.

Note:

Subsection 152CJD(2) of the Competition and Consumer Act 2010

deals with rules about the supply of services by NBN corporations.

(3E) Subsection (1) does not apply to the rule set out in subsection 38(2)

of the National Broadband Network Companies Act 2010.

Note:

Subsection 38(2) of the National Broadband Network Companies Act

2010 deals with rules about:

(a) the supply of goods and services by NBN corporations; and

(b) the investment of money by NBN corporations; and

(d) the divestment of assets by NBN corporations.

11 After subsection 103(4C)

Insert:

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

service provider rule set out in subsection 152CJD(2) of the

Competition and Consumer Act 2010.

Schedule 1 Amendments

Part 1 General amendments

8 Telecommunications Legislation Amendment (National Broadband Network Measures--

Access Arrangements) Bill 2010 No. , 2010

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

service provider rule set out in subsection 38(2) of the National

Broadband Network Companies Act 2010.

12 At the end of subsection 110(2)

Add:

; (j) persons who install:

(i) optical fibre lines; or

(ii) facilities used, or for use, in or in connection with

optical fibre lines.

13 After paragraph 113(3)(p)

Insert:

(pa) the design features of:

(i) optical fibre lines; or

(ii) facilities used, or for use, in or in connection with

optical fibre lines;

(pb) performance requirements to be met by:

(i) optical fibre lines; or

(ii) facilities used, or for use, in or in connection with

optical fibre lines;

(pc) the characteristics of carriage services supplied using optical

fibre lines;

(pd) performance requirements to be met by carriage services

supplied using optical fibre lines;

14 At the end of section 115

Add:

(5) The rule in subsection (1) does not apply to an industry code or an

industry standard to the extent (if any) to which compliance with

the code or standard is likely to have the effect (whether direct or

indirect) of requiring:

(a) optical fibre lines; or

(b) facilities used, or for use, in or in connection with optical

fibre lines;

to:

Amendments Schedule 1

General amendments Part 1

Telecommunications Legislation Amendment (National Broadband Network Measures--Access

Arrangements) Bill 2010 No. , 2010 9

(d) meet particular performance requirements.

15 After subsection 118(4)

Insert:

(4AA) The rule in subsection (4) does not apply to a code to the extent (if

any) to which compliance with the code is likely to have the effect

(whether direct or indirect) of requiring:

(a) optical fibre lines; or

(b) facilities used, or for use, in or in connection with optical

fibre lines;

to:

(d) meet particular performance requirements.

16 Subsection 125AA(4)

Repeal the subsection, substitute:

(4) The Minister may, in writing, direct the ACMA to:

(a) determine a standard under subsection (1) that:

(i) applies to participants in a specified section of the

telecommunications industry; and

(ii) deals with one or more specified matters relating to the

telecommunications activities of those participants; and

(b) do so within a specified period.

17 Subsection 384(1) (note)

Omit "section 152AR", substitute "sections 152AR and 152AXB".

18 At the end of subsection 564(3) (before the notes)

Add:

; or (l) the carrier licence condition set out in section 152CJC of the

Competition and Consumer Act 2010; or

(m) the service provider rule set out in subsection 152CJD(2) of

the Competition and Consumer Act 2010; or

(n) the carrier licence condition set out in section 37 of the

National Broadband Network Companies Act 2010; or

(o) the service provider rule set out in subsection 38(2) of the

National Broadband Network Companies Act 2010; or

Schedule 1 Amendments

Part 1 General amendments

10 Telecommunications Legislation Amendment (National Broadband Network

Measures--Access Arrangements) Bill 2010 No. , 2010

(p) a carrier licence condition covered by section 41 of the

National Broadband Network Companies Act 2010.

19 At the end of subsection 564(3) (after the notes)

Add:

Note 11:

Section 152CJC of the Competition and Consumer Act 2010 deals

with rules about the supply of services by NBN corporations.

Note 12:

Subsection 152CJD(2) of the Competition and Consumer Act 2010

deals with rules about the supply of services by NBN corporations.

Note 13:

Section 37 of the National Broadband Network Companies Act 2010

deals with rules about:

(a) the supply of goods and services by NBN corporations; and

(b) the investment of money by NBN corporations; and

(d) the divestment of assets by NBN corporations.

Note 14:

Subsection 38(2) of the National Broadband Network Companies Act

2010 deals with rules about:

(a) the supply of goods and services by NBN corporations; and

(b) the investment of money by NBN corporations; and

(d) the divestment of assets by NBN corporations.

Note 15:

Section 41 of the National Broadband Network Companies Act 2010

deals with rules about the supply of services by NBN corporations.

20 At the end of subsection 571(3) (before the notes)

Add:

; or (l) the carrier licence condition set out in section 152CJC of the

Competition and Consumer Act 2010; or

(m) the service provider rule set out in subsection 152CJD(2) of

the Competition and Consumer Act 2010; or

(n) the carrier licence condition set out in section 37 of the

National Broadband Network Companies Act 2010; or

(o) the service provider rule set out in subsection 38(2) of the

National Broadband Network Companies Act 2010; or

(p) a carrier licence condition covered by section 41 of the

National Broadband Network Companies Act 2010.

21 At the end of subsection 571(3) (after the notes)

Add:

Amendments Schedule 1

General amendments Part 1

Telecommunications Legislation Amendment (National Broadband Network Measures--Access

Arrangements) Bill 2010 No. , 2010 11

Note 11:

Section 152CJC of the Competition and Consumer Act 2010 deals

with rules about the supply of services by NBN corporations.

Note 12:

Subsection 152CJD(2) of the Competition and Consumer Act 2010

deals with rules about the supply of services by NBN corporations.

Note 13:

Section 37 of the National Broadband Network Companies Act 2010

deals with rules about:

(a) the supply of goods and services by NBN corporations; and

(b) the investment of money by NBN corporations; and

(d) the divestment of assets by NBN corporations.

Note 14:

Subsection 38(2) of the National Broadband Network Companies Act

2010 deals with rules about:

(a) the supply of goods and services by NBN corporations; and

(b) the investment of money by NBN corporations; and

(d) the divestment of assets by NBN corporations.

Note 15:

Section 41 of the National Broadband Network Companies Act 2010

deals with rules about the supply of services by NBN corporations.

22 Subsection 577BA(12) (at the end of the definition of

national broadband network)

Add:

To avoid doubt, it is immaterial whether the creation or

development of the network is, to any extent, attributable to:

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

connection with another telecommunications network; or

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

in connection with another telecommunications network.

23 Subsection 577BC(8) (at the end of the definition of

national broadband network)

Add:

To avoid doubt, it is immaterial whether the creation or

development of the network is, to any extent, attributable to:

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

connection with another telecommunications network; or

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

in connection with another telecommunications network.

Schedule 1 Amendments

Part 1 General amendments

12 Telecommunications Legislation Amendment (National Broadband Network

Measures--Access Arrangements) Bill 2010 No. , 2010

24 Clause 45 of Schedule 1 (definition of active declared

service)

Repeal the definition, substitute:

active declared service means:

(a) an active declared service within the meaning of

section 152AR of the Competition and Consumer Act 2010;

(b) a declared service (within the meaning of subsection

152AL(8A) of the Competition and Consumer Act 2010) that

an NBN corporation supplies (whether to itself or to other

persons); or

152AL(8D) or (8E) of the Competition and Consumer Act

2010.

Note: Subsections

152AL(8A), (8D) and (8E) of the Competition and

Consumer Act 2010 deal with services supplied by an NBN

corporation.

Competition and Consumer Act 2010

25 Subsection 25(1)

After "of the Telecommunications Act 1997", insert ", the National

Broadband Network Companies Act 2010, regulations under the

National Broadband Network Companies Act 2010,".

26 After paragraph 151BU(4)(d)

Insert:

(da) the operation of the National Broadband Network Companies

Act 2010 or regulations under that Act; or

27 After subparagraph 151BUA(2)(b)(ii)

Insert:

(iia)

the

National Broadband Network Companies Act 2010

or regulations under that Act; or

28 After subparagraph 151BUB(2)(b)(ii)

Insert:

Amendments Schedule 1

General amendments Part 1

Telecommunications Legislation Amendment (National Broadband Network Measures--Access

Arrangements) Bill 2010 No. , 2010 13

(iia)

the

National Broadband Network Companies Act 2010

or regulations under that Act; or

29 After subparagraph 151BUC(2)(b)(ii)

Insert:

(iia)

the

National Broadband Network Companies Act 2010

or regulations under that Act; or

30 Section 152AA

Omit:

�

The Commission may declare carriage services and related

services to be declared services.

substitute:

�

A carriage service, or a related service, supplied, or capable

of being supplied, by a carrier (other than an NBN

corporation) or a carriage service provider (other than an

NBN corporation) is a declared service if:

(a)

the Commission has declared the service to be a

declared service; or

(b)

the service is supplied by the carrier or carriage

service provider, and a special access undertaking

given by the carrier or carriage service provider is

in operation in relation to the service.

�

A carriage service, or a related service, supplied, or capable

of being supplied, by an NBN corporation is a declared

service if:

(a)

the Commission has declared the service to be a

declared service; or

(b)

the NBN corporation has formulated a standard

form of access agreement that relates to access to

the service; or

Schedule 1 Amendments

Part 1 General amendments

14 Telecommunications Legislation Amendment (National Broadband Network

Measures--Access Arrangements) Bill 2010 No. , 2010

(c)

the service is supplied by the NBN corporation,

and a special access undertaking given by the NBN

corporation is in operation in relation to the

service.

31 Section 152AC

Insert:

category A standard access obligation has the meaning given by

section 152AR.

32 Section 152AC

Insert:

category B standard access obligation has the meaning given by

section 152AXB.

33 Section 152AC

Insert:

NBN Co has the same meaning as in the National Broadband

Network Companies Act 2010.

34 Section 152AC

Insert:

NBN corporation has the same meaning as in the National

Broadband Network Companies Act 2010.

35 Section 152AC (definition of standard access obligation)

Repeal the definition, substitute:

standard access obligation means:

(a) a category A standard access obligation; or

(b) a category B standard access obligation.

36 Subsection 152AG(2)

After "which deals with the", insert "category A".

37 Subsection 152AG(2)

Amendments Schedule 1

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Telecommunications Legislation Amendment (National Broadband Network Measures--Access

Arrangements) Bill 2010 No. , 2010 15

After "obligations)", insert "or section 152AXB (which deals with the

category B standard access obligations)".

38 After subsection 152AL(3)

Insert:

(3A) A declaration under subsection (3) does not apply to an eligible

service to the extent to which the service is supplied, or is capable

of being supplied, by an NBN corporation (whether to itself or to

other persons).

(3B) Before commencing to hold a public inquiry under Part 25 of the

Telecommunications Act 1997 about a proposal to make a

declaration under subsection (3) in relation to an eligible service,

the Commission must consider whether to hold a public inquiry

under that Part about a proposal to make a declaration under

subsection (8A) in relation to the service.

Note:

For combined public inquiries, see section 152AN.

Note:

The heading to subsection 152AL(3) is altered by adding at the end "--services not

supplied by an NBN corporation".

39 Subsections 152AL(4) and (5)

Omit "this section", substitute "subsection (3)".

40 Paragraph 152AL(7)(a)

After "person", insert "(other than an NBN corporation)".

Note:

The heading to subsection 152AL(7) is altered by adding at the end "--services not

supplied by an NBN corporation".

41 After subsection 152AL(8)

Insert:

Declaration made after public inquiry--services supplied by an

NBN corporation

(8A) The Commission may, by written instrument, declare that a

specified eligible service, to the extent to which the service is

supplied, or is capable of being supplied, by a specified NBN

corporation (whether to itself or to other persons), is a declared

service if:

Schedule 1 Amendments

Part 1 General amendments

16 Telecommunications Legislation Amendment (National Broadband Network

Measures--Access Arrangements) Bill 2010 No. , 2010

(a) the Commission has held a public inquiry under Part 25 of

the Telecommunications Act 1997 about a proposal to make

the declaration; and

(b) the Commission has prepared a report about the inquiry

under section 505 of the Telecommunications Act 1997; and

when the declaration was made; and

(d) the Commission is satisfied that the making of the declaration

will promote the long-term interests of end-users of carriage

services or of services provided by means of carriage

services.

If the Commission does so, the declared service relates to the NBN

corporation for the purposes of subsections 152AXB(2) and

152AXC(7).

Note:

Eligible services may be specified by name, by inclusion in a specified

class or in any other way.

(8B) A declaration under subsection (8A) has effect accordingly.

(8C) A copy of a declaration under section (8A) is to be published in the

Gazette.

Services supplied by an NBN corporation--standard form of

access agreement

(8D)

If:

(a) an eligible service is supplied, or is capable of being

supplied, by an NBN corporation (whether to itself or to

other persons); and

(b) the NBN corporation is a carrier or a carriage service

provider; and

access agreement that relates to access to the service; and

(d) the standard form of access agreement is available on the

NBN corporation's website;

then:

(e) the service, to the extent to which it is supplied, or is capable

of being supplied, by the NBN corporation (whether to itself

or to other persons) is a declared service; and

(f) the declared service relates to the NBN corporation for the

purposes of subsections 152AXB(2) and 152AXC(7).

Amendments Schedule 1

General amendments Part 1

Telecommunications Legislation Amendment (National Broadband Network Measures--Access

Arrangements) Bill 2010 No. , 2010 17

Services covered by special access undertakings--services

supplied by an NBN corporation

(8E)

If:

(a) an NBN corporation gives the Commission a special access

undertaking in relation to a service or a proposed service; and

(b) the undertaking is in operation; and

(whether to itself or to other persons);

then:

(d) the service supplied by the NBN corporation is a declared

service; and

(e) the declared service relates to the NBN corporation for the

purposes of subsections 152AXB(2) and 152AXC(7).

To avoid doubt, if the undertaking is subject to limitations, the

service supplied by the NBN corporation is a declared service only

to the extent to which the service falls within the scope of the

limitations.

(8F) The Commission may declare a service under subsection (8A) even

if the service is, to any extent, covered by subsection (8E).

42 Subsections 152ALA(8) and (9)

After "and (c)", insert ", or paragraphs 152AL(8A)(a), (b) and (c), as

the case requires,".

43 Subsections 152AM(1) and (3)

After "152AL(3)(a)", insert "or (8A)(a)".

44 Subsection 152AN(1)

After "152AL(3)(a)", insert ", or (8A)(a)".

45 Subsection 152AO(3)

After "152AL(3)", insert "or (8A)".

46 Paragraph 152AQ(2)(c)

After "152AL(3)(a)", insert "or (8A)(a)".

47 Before section 152AR

Schedule 1 Amendments

Part 1 General amendments

18 Telecommunications Legislation Amendment (National Broadband Network

Measures--Access Arrangements) Bill 2010 No. , 2010

Insert:

Subdivision A--Category A standard access obligations

48 Subsection 152AR(1)

Omit "standard access obligations", substitute "category A standard

access obligations".

Note:

The heading to section 152AR is altered by omitting "Standard" and substituting

"Category A standard".

49 Subsection 152AR(2)

Omit "carrier or a carriage service provider", substitute "carrier (other

than an NBN corporation) or a carriage service provider (other than an

NBN corporation)".

Note 1: The heading to section 152ASA is altered by omitting "standard" and substituting

"category A standard".

Note 2: The heading to section 152ATA is altered by omitting "standard" and substituting

"category A standard".

50 Before section 152AY

Insert:

Subdivision B--Category B standard access obligations

152AXB Category B standard access obligations

(1) This section sets out the category B standard access obligations.

Supply of declared service to service provider

(2)

If:

(a) an NBN corporation is a carrier or carriage service provider;

and

(b) under subsection 152AL(8A), (8D) or (8E), a declared

service relates to the NBN corporation;

the NBN corporation must, if requested to do so by a service

provider, supply the service to the service provider in order that the

service provider can provide carriage services and/or content

services.

Note:

For declared services, see subsections 152AL(8A), (8D) and (8E).

Amendments Schedule 1

General amendments Part 1

Telecommunications Legislation Amendment (National Broadband Network Measures--Access

Arrangements) Bill 2010 No. , 2010 19

Limit on subsection (2) obligations

(3) Subsection (2) does not impose an obligation to the extent (if any)

to which the imposition of the obligation would have any of the

following effects:

(a) preventing a service provider who already has access to the

declared service from obtaining a sufficient amount of the

service to be able to meet the service provider's reasonably

anticipated requirements, measured at the time when the

request was made;

(b) preventing the NBN corporation from obtaining a sufficient

amount of the service to be able to meet the NBN

corporation's reasonably anticipated requirements, measured

at the time when the request was made;

pre-request right, a sufficient level of access to the declared

service to be able to meet the person's actual requirements.

Interconnection of facilities

(4)

If:

(a) an NBN corporation is a carrier or carriage service provider;

and

(b) the NBN corporation:

(i) owns or controls one or more facilities; or

(ii) is a nominated carrier in relation to one or more

facilities;

the NBN corporation must, if requested to do so by a service

provider:

the service provider for the purpose of enabling the service

provider to be supplied with declared services in order that

the service provider can provide carriage services and/or

content services; and

(d) take all reasonable steps to ensure that, if a standard is in

force under section 384 of the Telecommunications Act 1997,

the interconnection complies with the standard.

Conditional-access customer equipment

(5)

If:

Schedule 1 Amendments

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20 Telecommunications Legislation Amendment (National Broadband Network

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(a) an NBN corporation is a carrier or carriage service provider;

and

(b) the NBN corporation supplies a declared service by means of

conditional-access customer equipment;

the NBN corporation must, if requested to do so by a service

provider who has made a request referred to in subsection (2),

supply to the service provider any service that is necessary to

enable the service provider to supply carriage services and/or

content services by means of the declared service and using the

equipment.

Exceptions

(6) This section does not impose an obligation on an NBN corporation

if there are reasonable grounds to believe that:

(a) the access seeker would fail, to a material extent, to comply

with the terms and conditions on which the NBN corporation

complies, or on which the NBN corporation is reasonably

likely to comply, with that obligation; or

(b) the access seeker would fail, in connection with that

obligation, to protect:

(i) the integrity of a telecommunications network; or

(ii) the safety of individuals working on, or using services

supplied by means of, a telecommunications network or

a facility.

Examples--paragraph (6)(a) grounds

(7) Examples of grounds for believing as mentioned in

paragraph (6)(a) include:

(a) evidence that the access seeker is not creditworthy; and

(b) repeated failures by the access seeker to comply with the

terms and conditions on which the same or similar access has

been provided (whether or not by the NBN corporation).

Definition

(8) In this section:

pre-request right, in relation to a request made for the purposes of

subsection (2), means a right under a contract that was in force at

the time when the request was made.

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152AXC NBN corporation to supply declared services on a

non-discriminatory basis

No discrimination between access seekers

(1) An NBN corporation must not, in complying with any of its

category B standard access obligations, discriminate between

access seekers.

Note:

For explanatory material, see section 152CJH.

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

an access seeker if the NBN corporation has reasonable grounds to

believe that the access seeker would fail, to a material extent, to

comply with the terms and conditions on which the NBN

corporation complies, or on which the NBN corporation is

reasonably likely to comply, with the relevant obligation.

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

include:

(a) evidence that the access seeker is not creditworthy; and

(b) repeated failures by the access seeker to comply with the

terms and conditions on which the same or similar access has

been provided (whether or not by the NBN corporation).

(4) The rule in subsection (1) does not prevent discrimination if:

(a) the discrimination aids efficiency; and

(b) all access seekers with like circumstances have an equal

opportunity to benefit from the discrimination; and

allowance, rebate or credit given or allowed, or offered to be

given or allowed, on the condition that the access seeker

acquires, or agrees to acquire, a particular volume, number,

quantity or amount of goods, services or other things:

(i) a special access undertaking given by the NBN

corporation is in operation; and

(ii) the discount, allowance, rebate or credit is in accordance

with terms and conditions specified in the undertaking.

(5) The rule in subsection (1) does not prevent discrimination on

grounds specified in a written instrument made by the

Commission.

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(6) The rule in subsection (1) does not prevent discrimination in

circumstances specified in a written instrument made by the

Commission.

No discrimination by an NBN corporation in favour of itself

(7)

If:

(a) an NBN corporation is a carrier or carriage service provider;

and

(b) under subsection 152AL(8A), (8D) or (8E), a declared

service relates to the NBN corporation; and

access obligation in relation to the service;

the NBN corporation must not discriminate in favour of itself in

relation to the supply of the service.

(8) The rule in subsection (7) does not prevent discrimination on

grounds specified in a written instrument made by the

Commission.

(9) The rule in subsection (7) does not prevent discrimination in

circumstances specified in a written instrument made by the

Commission.

Instruments

(10) The Commission must not make an instrument under

subsection (5), (6), (8) or (9) unless the Commission has first:

(a) published a draft of the instrument on its website and invited

people to make submissions to the Commission on the

instrument; and

(b) considered any submissions that were received within the

time limit specified by the Commission when it published the

draft instrument.

(11) An instrument made under subsection (5), (6), (8) or (9) is not a

legislative instrument.

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152AXD NBN corporation to carry on related activities on a

non-discriminatory basis

(1) An NBN corporation must not, in carrying on any of the following

activities, discriminate between access seekers:

(a) developing a new eligible service;

(b) enhancing a declared service;

telecommunications network by means of which a declared

service is, or is to be, supplied;

(d) planning for a facility or telecommunications network by

means of which a declared service is, or is to be, supplied;

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

service;

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

declared service;

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

above activities.

Note:

For explanatory material, see section 152CJH.

Exceptions

(2) The rule in subsection (1) does not prevent discrimination if:

(a) the relevant activity relates to a pilot or trial of:

(i) a new eligible service; or

(ii) an enhanced declared service; and

(b)

if:

(i) a determination is in force under subsection (3); and

(ii) the determination is applicable to the pilot or trial;

the number of days in the anticipated period of the pilot or

trial does not exceed the number of days that, under the

determination, is the maximum allowable duration of the

pilot or trial.

(3) The Commission may, by legislative instrument, determine that,

for the purposes of paragraph (2)(b), a specified number of days is

the maximum allowable duration of a specified pilot or trial.

Note:

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

Instruments Act 2003.

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(4) The rule in subsection (1) does not apply to discrimination in

favour of an access seeker if:

(a) the relevant activity consists of giving information to the

access seeker about:

(i) the development of a new eligible service; or

(ii) the enhancement of a declared service; and

(b) the access seeker requested:

(i) the development of the new eligible service; or

(ii) the enhancement of the declared service;

as the case may be.

(5) If a special access undertaking given by the NBN corporation is in

operation, the rule in subsection (1) does not apply to an activity to

the extent (if any) to which the activity is covered by a statement

included in the undertaking in accordance with subsection

152CBA(3C).

Definition

(6) In this section:

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

Subdivision C--Compliance with standard access obligations

51 After paragraph 152AZ(a)

Insert:

(aa) any rule in section 152AXC or 152AXD that is applicable to

the carrier; and

52 After paragraph 152BA(2)(a)

Insert:

(aa) any rule in section 152AXC or 152AXD that is applicable to

the provider; and

53 After subsection 152BB(1)

Insert:

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(1AB) If the Federal Court is satisfied that an NBN corporation has

contravened the rule in subsection 152AXC(1) or (7) or

152AXD(1), the Court may, on the application of:

(a) the Commission; or

(b) any person whose interests are affected by the contravention;

make all or any of the following orders:

rule;

(d) an order directing the NBN corporation to compensate any

other person who had suffered loss or damage as a result of

the contravention;

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

54 Section 152BBD

Before "The Commission", insert "(1)".

55 Section 152BBD

After "152BBC", insert "in relation to any of the category A standard

access obligations".

56 At the end of section 152BBD

Add:

(2) The Commission must, in exercising its powers under

sections 152BBA and 152BBC in relation to any of the category B

standard access obligations, have regard to the desirability of NBN

corporations and access seekers agreeing on terms and conditions

as mentioned in paragraph 152AY(2)(a) in a timely manner.

57 After subsection 152BC(4)

Insert:

(4A) An access determination may be expressed to be an NBN-specific

access determination.

(4B) An access determination does not apply in relation to access to a

declared service to the extent to which the service is supplied, or is

capable of being supplied, by an NBN corporation unless the

access determination is expressed to be an NBN-specific access

determination.

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(4C) If an access determination is expressed to be an NBN-specific

access determination, the access determination does not apply in

relation to access to a declared service to the extent to which the

service is supplied, or is capable of being supplied, by a person

other than an NBN corporation.

58 At the end of paragraphs 152BCB(1)(a) and (b)

Add "or 152AXB".

59 After subsection 152BCB(4)

Insert:

(4A) The Commission must not make an access determination that:

(a) relates to any or all of the category B standard access

obligations applicable to an NBN corporation; and

(b) has the effect (whether direct or indirect) of discriminating

between access seekers.

Note:

For explanatory material, see section 152CJH.

(4B) Subsection (4A) does not prevent discrimination against an access

seeker if the Commission has reasonable grounds to believe that

the access seeker would fail, to a material extent, to comply with

the terms and conditions on which the NBN corporation complies,

or on which the NBN corporation is reasonably likely to comply,

with the relevant obligation.

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

include:

(a) evidence that the access seeker is not creditworthy; and

(b) repeated failures by the access seeker to comply with the

terms and conditions on which the same or similar access has

been provided (whether or not by the NBN corporation).

(4D) Subsection (4A) does not prevent discrimination if:

(a) the discrimination aids efficiency; and

(b) all access seekers with like circumstances have an equal

opportunity to benefit from the discrimination.

(4E) Subsection (4A) does not prevent discrimination on grounds

specified under subsection 152AXC(5).

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(4F) Subsection (4A) does not prevent discrimination in circumstances

specified under subsection 152AXC(6).

60 Subsection 152BCB(5)

Omit "or (3A)", substitute ", (3A) or (4A)".

61 Before subsection 152BCF(4)

Insert:

(3B) If the declared service is covered by subsection 152AL(8D), the

specified day must not be earlier than the day on which the service

became a declared service under that subsection.

(3C) If the declared service is covered by subsection 152AL(8E), the

specified day must not be earlier than the day on which the service

became a declared service under that subsection.

62 At the end of subsection 152BCK(1)

Add ", and the declared service to which the access determination

relates is not covered by subsection 152AL(8D)".

63 After subsection 152BD(4)

Insert:

(4A) Binding rules of conduct may be expressed to be NBN-specific

binding rules of conduct.

(4B) Binding rules of conduct do not apply in relation to access to a

declared service to the extent to which the service is supplied, or is

capable of being supplied, by an NBN corporation unless the

binding rules of conduct are expressed to be NBN-specific binding

rules of conduct.

(4C) If binding rules of conduct are expressed to be NBN-specific

binding rules of conduct, the binding rules of conduct do not apply

in relation to access to a declared service to the extent to which the

service is supplied, or is capable of being supplied, by a person

other than an NBN corporation.

64 At the end of paragraphs 152BDA(1)(a) and (b)

Add "or 152AXB".

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28 Telecommunications Legislation Amendment (National Broadband Network

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65 After subsection 152BDA(4)

Insert:

(4A) The Commission must not make binding rules of conduct that:

(a) relate to any or all of the category B standard access

obligations applicable to an NBN corporation; and

(b) have the effect (whether direct or indirect) of discriminating

between access seekers.

Note:

For explanatory material, see section 152CJH.

(4B) Subsection (4A) does not prevent discrimination against an access

seeker if the Commission has reasonable grounds to believe that

the access seeker would fail, to a material extent, to comply with

the terms and conditions on which the NBN corporation complies,

or on which the NBN corporation is reasonably likely to comply,

with the relevant obligation.

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

include:

(a) evidence that the access seeker is not creditworthy; and

(b) repeated failures by the access seeker to comply with the

terms and conditions on which the same or similar access has

been provided (whether or not by the NBN corporation).

(4D) Subsection (4A) does not prevent discrimination if:

(a) the discrimination aids efficiency; and

(b) all access seekers with like circumstances have an equal

opportunity to benefit from the discrimination.

(4E) Subsection (4A) does not prevent discrimination on grounds

specified under subsection 152AXC(5).

(4F) Subsection (4A) does not prevent discrimination in circumstances

specified under subsection 152AXC(6).

66 Subsection 152BDA(5)

Omit "or (3A)", substitute ", (3A) or (4A)".

67 After section 152BEB

Insert:

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152BEBA NBN corporation to give the Commission a statement

about the differences between an access agreement and a

standard form of access agreement

Access agreement

(1)

If:

(a) an access agreement is covered by subsection 152BE(1); and

(b) the carrier or carriage service provider who supplies, or

proposes to supply, the declared service is an NBN

corporation; and

standard form of access agreement relating to access to the

service was available on the NBN corporation's website; and

(d) the terms and conditions set out in the access agreement are

not the same as the terms and conditions set out in the

standard form of access agreement;

the NBN corporation must, within 7 days after the day on which

the access agreement was entered into, give the Commission a

statement, in a form approved in writing by the Commission:

(e) identifying the parties to the access agreement; and

(f) describing the differences between the terms and conditions

set out in the access agreement and the terms and conditions

set out in the standard form of access agreement; and

(g) if any or all of those differences are authorised by subsection

152AXC(4) (which deals with discrimination that aids

efficiency):

(i) identifying the differences that are authorised by that

subsection; and

(ii) describing what access seekers must do in order to have

the like circumstances mentioned in that subsection; and

(h) if any or all of those differences are authorised by subsection

152AXC(5) (which deals with discrimination on grounds

specified in a legislative instrument made by the

Commission)--identifying the differences that are authorised

by that subsection; and

(i) if any or all of those differences are authorised by subsection

152AXC(6) (which deals with discrimination in

circumstances specified in a legislative instrument made by

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the Commission)--identifying the differences that are

authorised by that subsection; and

(j) setting out such other information (if any) about the access

agreement as is required by the form.

Variation agreement

(2)

If:

(a) a variation agreement is entered into after the commencement

of this section; and

(b) the carrier or carriage service provider who supplies, or

proposes to supply, the service to which the relevant access

agreement relates is an NBN corporation; and

a standard form of access agreement relating to access to the

service was available on the NBN corporation's website; and

(d) 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 standard form

of access agreement;

the NBN corporation must, within 7 days after the day on which

the variation agreement was entered into, give the Commission a

statement, in a form approved in writing by the Commission:

(e) identifying the parties to the relevant access agreement (as

varied by the variation agreement); and

(f) 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 standard form of access agreement; and

(g) if any or all of those differences are authorised by subsection

152AXC(4) (which deals with discrimination that aids

efficiency):

(i) identifying the differences that are authorised by that

subsection; and

(ii) describing what access seekers must do in order to have

the like circumstances mentioned in that subsection; and

(h) if any or all of those differences are authorised by subsection

152AXC(5) (which deals with discrimination on grounds

specified in a legislative instrument made by the

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Commission)--identifying the differences that are authorised

by that subsection; and

(i) if any or all of those differences are authorised by subsection

152AXC(6) (which deals with discrimination in

circumstances specified in a legislative instrument made by

the Commission)--identifying the differences that are

authorised by that subsection; and

(j) setting out such other information (if any) about the relevant

access agreement (as varied by the variation agreement) as is

required by the form.

152BEBB NBN corporation to give the Commission a statement

about the differences between an access agreement and a

special access undertaking

Access agreement

(1)

If:

(a) an access agreement is covered by subsection 152BE(1); and

(b) the carrier or carriage service provider who supplies, or

proposes to supply, the declared service is an NBN

corporation; and

special access undertaking that:

(i) relates to access to the service; and

(ii) was given by the NBN corporation;

was in operation; and

(d) the terms and conditions set out in the access agreement are

not the same as the terms and conditions set out in the special

access undertaking;

the NBN corporation must, within 7 days after the day on which

the access agreement was entered into, give the Commission a

statement, in a form approved in writing by the Commission:

(e) identifying the parties to the access agreement; and

(f) describing the differences between the terms and conditions

set out in the access agreement and the terms and conditions

set out in the special access undertaking; and

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(g) if any or all of those differences are authorised by subsection

152AXC(4) (which deals with discrimination that aids

efficiency):

(i) identifying the differences that are authorised by that

subsection; and

(ii) describing what access seekers must do in order to have

the like circumstances mentioned in that subsection; and

(h) if any or all of those differences are authorised by subsection

152AXC(5) (which deals with discrimination on grounds

specified in a legislative instrument made by the

Commission)--identifying the differences that are authorised

by that subsection; and

(i) if any or all of those differences are authorised by subsection

152AXC(6) (which deals with discrimination in

circumstances specified in a legislative instrument made by

the Commission)--identifying the differences that are

authorised by that subsection; and

(j) setting out such other information (if any) about the access

agreement as is required by the form.

Variation agreement

(2)

If:

(a) a variation agreement is entered into after the commencement

of this section; and

(b) the carrier or carriage service provider who supplies, or

proposes to supply, the service to which the relevant access

agreement relates is an NBN corporation; and

a special access undertaking that:

(i) relates to access to the service; and

(ii) was given by the NBN corporation;

was in operation; and

(d) 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 special access

undertaking;

the NBN corporation must, within 7 days after the day on which

the variation agreement was entered into, give the Commission a

statement, in a form approved in writing by the Commission:

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(e) identifying the parties to the relevant access agreement (as

varied by the variation agreement); and

(f) 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 special access undertaking; and

(g) if any or all of those differences are authorised by subsection

152AXC(4) (which deals with discrimination that aids

efficiency):

(i) identifying the differences that are authorised by that

subsection; and

(ii) describing what access seekers must do in order to have

the like circumstances mentioned in that subsection; and

(h) if any or all of those differences are authorised by subsection

152AXC(5) (which deals with discrimination on grounds

specified in a legislative instrument made by the

Commission)--identifying the differences that are authorised

by that subsection; and

(i) if any or all of those differences are authorised by subsection

152AXC(6) (which deals with discrimination in

circumstances specified in a legislative instrument made by

the Commission)--identifying the differences that are

authorised by that subsection; and

(j) setting out such other information (if any) about the relevant

access agreement (as varied by the variation agreement) as is

required by the form.

152BEBC NBN corporation to give the Commission a statement

about the differences between an access agreement and an

access determination

Access agreement

(1)

If:

(a) an access agreement is covered by subsection 152BE(1); and

(b) the carrier or carriage service provider who supplies, or

proposes to supply, the declared service is an NBN

corporation; and

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34 Telecommunications Legislation Amendment (National Broadband Network

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access determination relating to access to the service was in

force; and

(d) the terms and conditions set out in the access agreement are

not the same as the terms and conditions set out in the access

determination;

the NBN corporation must, within 7 days after the day on which

the access agreement was entered into, give the Commission a

statement, in a form approved in writing by the Commission:

(e) identifying the parties to the access agreement; and

(f) describing the differences between the terms and conditions

set out in the access agreement and the terms and conditions

set out in the access determination; and

(g) if any or all of those differences are authorised by subsection

152AXC(4) (which deals with discrimination that aids

efficiency):

(i) identifying the differences that are authorised by that

subsection; and

(ii) describing what access seekers must do in order to have

the like circumstances mentioned in that subsection; and

(h) if any or all of those differences are authorised by subsection

152AXC(5) (which deals with discrimination on grounds

specified in a legislative instrument made by the

Commission)--identifying the differences that are authorised

by that subsection; and

(i) if any or all of those differences are authorised by subsection

152AXC(6) (which deals with discrimination in

circumstances specified in a legislative instrument made by

the Commission)--identifying the differences that are

authorised by that subsection; and

(j) setting out such other information (if any) about the access

agreement as is required by the form.

Variation agreement

(2)

If:

(a) a variation agreement is entered into after the commencement

of this section; and

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(b) the carrier or carriage service provider who supplies, or

proposes to supply, the service to which the relevant access

agreement relates is an NBN corporation; and

an access determination relating to access to the service was

in force; and

(d) 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 access

determination;

the NBN corporation must, within 7 days after the day on which

the variation agreement was entered into, give the Commission a

statement, in a form approved in writing by the Commission:

(e) identifying the parties to the relevant access agreement (as

varied by the variation agreement); and

(f) 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 access determination; and

(g) if any or all of those differences are authorised by subsection

152AXC(4) (which deals with discrimination that aids

efficiency):

(i) identifying the differences that are authorised by that

subsection; and

(ii) describing what access seekers must do in order to have

the like circumstances mentioned in that subsection; and

(h) if any or all of those differences are authorised by subsection

152AXC(5) (which deals with discrimination on grounds

specified in a legislative instrument made by the

Commission)--identifying the differences that are authorised

by that subsection; and

(i) if any or all of those differences are authorised by subsection

152AXC(6) (which deals with discrimination in

circumstances specified in a legislative instrument made by

the Commission)--identifying the differences that are

authorised by that subsection; and

(j) setting out such other information (if any) about the relevant

access agreement (as varied by the variation agreement) as is

required by the form.

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152BEBD Register of NBN Access Agreement Statements

(1) The Commission is to maintain a register, to be known as the

Commission includes all statements given to it under the following

provisions:

(a)

section

152BEBA;

(b)

section

152BEBB;

(c)

section

152BEBC.

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

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

Commission's website.

(4) The Register is not a legislative instrument.

(5) If the Commission is satisfied that:

(a) publication of particular material contained in a statement

could reasonably be expected to prejudice substantially the

commercial interests of a person; and

(b) the prejudice outweighs the public interest in the publication

of the matter;

the Commission may remove the material from the version of the

statement that is included in the Register.

(6) If the Commission does so, the Commission must include in the

68 Section 152BEC

Omit "and 152BEB", substitute ", 152BEB, 152BEBA, 152BEBB and

152BEBC".

69 Subsection 152BED(2)

Omit "and 152BEB", substitute ", 152BEB, 152BEBA, 152BEBB and

152BEBC".

70 Subsection 152CBA(1)

Repeal the subsection, substitute:

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Scope

(1) This section applies to:

(a) a person (other than an NBN corporation) who is, or expects

to be, a carrier or a carriage service provider supplying:

(i) a listed carriage service (within the meaning of the

Telecommunications Act 1997); or

(ii) a service that facilitates the supply of a listed carriage

service (within the meaning of that Act);

whether to itself or to other persons, so long as the service is

not a declared service; or

(b) a person who is an NBN corporation and who is, or expects

to be, a carrier or carriage service provider supplying or

capable of supplying:

(i) a listed carriage service (within the meaning of the

Telecommunications Act 1997); or

(ii) a service that facilitates the supply of a listed carriage

service (within the meaning of that Act);

whether to itself or to other persons, so long as:

(iii) the service is not a declared service under subsection

152AL(8A); and

(iv) there is no access determination that applies in relation

to access to the service.

71 Subsection 152CBA(3)

Omit "The undertaking", substitute "If paragraph (1)(a) applies, the

undertaking".

72 After subsection 152CBA(3)

Insert:

(3A) If paragraph (1)(b) applies, the undertaking must state that, in the

event that the person supplies, or becomes capable of supplying,

the service (whether to itself or to other persons), the person:

(a) agrees to be bound by the obligations referred to in

section 152AXB, to the extent that those obligations would

apply to the person in relation to the service if the service

were treated as a declared service; and

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(b) undertakes to comply with the terms and conditions specified

in the undertaking in relation to the obligations referred to in

section 152AXB.

Note:

The undertaking need not specify all terms and conditions--see

subparagraph 152AY(2)(b)(ii).

73 Before subsection 152CBA(4)

Insert:

(3C) If the person is an NBN corporation, the undertaking may also state

that the NBN corporation will engage in specified conduct in

relation to:

(a) developing a new eligible service (within the meaning of

section 152AL); or

(b) enhancing a declared service; or

telecommunications network by means of which a declared

service is, or is to be, supplied; or

(d) planning for a facility or telecommunications network by

means of which a declared service is, or is to be, supplied; or

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

service; or

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

declared service; or

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

above activities.

(3D) For the purposes of this Part, in determining whether the

undertaking relates to a particular service or proposed service,

disregard a statement included in the undertaking in accordance

with subsection (3C).

74 Subsection 152CBA(11)

Omit "paragraph (1)(b)", substitute "subparagraphs (1)(a)(ii) and

(b)(ii)".

75 Paragraphs 152CBD(2)(a) and (b)

Repeal the paragraphs, substitute:

(a) if paragraph 152CBA(1)(a) applies--the Commission is

satisfied that:

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(i) the terms and conditions referred to in paragraph

152CBA(3)(b) would be consistent with the obligations

referred to in paragraph 152CBA(3)(a); and

(ii) those terms and conditions are reasonable; and

(b) if paragraph 152CBA(1)(b) applies--the Commission is

satisfied that:

(i) the terms and conditions referred to in subsection

152CBA(3A) would be consistent with the obligations

referred to in section 152AXB; and

(ii) those terms and conditions are reasonable; and

76 Before paragraph 152CBD(2)(d)

Insert:

(cb) if subsection 152CBA(3C) applies--the Commission is

satisfied that the conduct specified in accordance with that

subsection will promote the long-term interests of end-users

of carriage services or of services supplied by means of

carriage services; and

77 Paragraph 152CBF(2)(b)

After "even if", insert ", in the case of an undertaking covered by

subsection 152CBA(3),".

78 Subsection 152CBI(3)

Omit "subsection 152AL(7)", substitute "subsections 152AL(7) and

(8E)".

79 After Division 6 of Part XIC

Insert:

Division 6A--Supply of services by NBN corporations

152CJA Supply of services by NBN corporations

(1) An NBN corporation must not supply an eligible service (within

the meaning of section 152AL) to another person unless:

(a) the service is a declared service under subsection

152AL(8A); or

(b)

both:

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(i) the NBN corporation has formulated a standard form of

access agreement that relates to access to the service;

and

(ii) the standard form of access agreement is available on

the NBN corporation's website; or

(c)

both:

(i) a special access undertaking given by the NBN

corporation is in operation; and

(ii) the undertaking relates to the service.

(2)

If:

(a) as the result of a request made by an access seeker under

section 152AXB, an NBN corporation is subject to a

category B standard access obligation in relation to a

declared service; and

(b) the NBN corporation has formulated a standard form of

access agreement that relates to access to the service; and

NBN corporation's website; and

(d) the access seeker requests the NBN corporation to enter into

an access agreement that:

(i) relates to access to the service; and

(ii) sets out terms and conditions that are the same as the

terms and conditions set out in the standard form of

access agreement;

the NBN corporation must comply with the request mentioned in

paragraph (d).

Note:

An NBN corporation will not be subject to a category B standard

access obligation in the circumstances set out in subsection

152AXB(3) or (6).

(3) If an access seeker does not make a request under paragraph (2)(d),

this Part does not, by implication, prevent the NBN corporation

and the access seeker from entering into an access agreement that

sets out terms and conditions that are not the same as the terms and

conditions set out in the standard form of access agreement.

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152CJB Mandatory NBN services

Scope

(1) This section applies if a condition of a carrier licence held by an

NBN corporation requires the NBN corporation to comply with

this section in relation to a specified eligible service (within the

meaning of section 152AL) that is supplied, or is capable of being

supplied, by the NBN corporation (whether to itself or other

persons).

Note 1:

See section 41 of the National Broadband Network Companies Act

2010.

Note 2:

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

Telecommunications Act 1997.

Compliance by NBN corporation

(2) The NBN corporation must, within 90 days after the carrier licence

condition comes into force:

(a)

both:

(i) formulate a standard form of access agreement that

relates to access to the service; and

(ii) make the standard form of access agreement available

on the NBN corporation's website; or

(b) give the Commission a special access undertaking in

connection with the provision of access to the service.

(3)

If:

(a) the NBN corporation, in accordance with paragraph (2)(b),

gives the Commission a special access undertaking in

connection with the provision of access to the service; and

(b) the Commission rejects the undertaking;

the NBN corporation must, within 90 days after the rejection of the

undertaking:

access to the service; and

(d) make the standard form of access agreement available on the

NBN corporation's website.

(4) If the NBN corporation, in accordance with

(a) subparagraph (2)(a)(ii); or

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(b)

paragraph

(3)(d);

makes a standard form of access agreement available on the NBN

corporation's website, the NBN corporation must ensure that a

standard form of access agreement that:

(d) is formulated by the NBN corporation;

is available on the NBN corporation's website at all times during

the remainder of the period when the carrier licence condition is in

force.

(5)

If:

(a) the NBN corporation, in accordance with paragraph (2)(b),

gives the Commission a special access undertaking in

connection with the provision of access to the service; and

(b) the Commission accepts the undertaking; and

the NBN corporation must ensure that a standard form of access

agreement that:

(d) relates to access to the service; and

(e) is formulated by the NBN corporation;

is available on the NBN corporation's website at all times during

the remainder of the period when the carrier licence condition is in

force.

152CJC Carrier licence condition

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

condition that the NBN corporation must comply with any rules in

section 152CJA that are applicable to the NBN corporation.

Note:

See also section 62D of the Telecommunications Act 1997.

152CJD Service provider rule

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

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

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

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

must comply with any rules in section 152CJA that are applicable

to the NBN corporation.

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152CJE Judicial enforcement of obligations

(1) If the Federal Court is satisfied that an NBN corporation has

contravened an obligation imposed by section 152CJA or 152CJB,

the Court may, on the application of:

(a) the Commission; or

(b) any person whose interests are affected by the contravention;

make all or any of the following orders:

obligation;

(d) an order directing the NBN corporation to compensate any

other person who has suffered loss or damage as a result of

the contravention;

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

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

this section.

152CJF Standard form of access agreement

For the purposes of this Part, if, at a particular time, a service is not

a declared service, a standard form of access agreement relating to

access to the service may be formulated by an NBN corporation at

that time on the assumption that the service is a declared service.

152CJG When NBN corporation is not capable of supplying a

carriage service

Condition of a carrier licence

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

prohibits the NBN corporation from supplying a specified carriage

service to carriers or service providers, then, for the purposes of:

(a) this Part; and

(b) subsections 41(1) and (2) of the National Broadband

Network Companies Act 2010;

the NBN corporation is taken not to be capable of supplying the

service.

Note:

See subsection 41(3) of the National Broadband Network Companies

Act 2010.

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Avoidance of doubt

(2) Subsection (1) is enacted for the avoidance of doubt.

Division 6B--Explanatory material relating to

anti-discrimination provisions

152CJH Explanatory material relating to anti-discrimination

provisions

The Commission must:

(a) as soon as practicable after the commencement of this

section, publish on its website explanatory material relating

to the following provisions:

(i)

section

152AXC;

(ii)

section

152AXD;

(iii) subsections 152BCB(4A) to (4F);

(iv) subsections 152BDA(4A) to (4F); and

(b) keep that statement up-to-date.

80 Subsection 152CK(4)

After "special access undertaking", insert "given by a person other than

an NBN corporation".

81 At the end of section 152CK

Add:

(5) For the purposes of this section, if a special access undertaking

given by an NBN corporation is in operation, assume that

subsection 152AL(8E) has effect in relation to the undertaking as if

paragraph 152AL(8E)(c) had not been enacted.

82 After paragraph 155(9)(b)

Insert:

(ba)

the

National Broadband Network Companies Act 2010; or

83 Transitional--continuity of special access undertakings

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Part 2--Amendments relating to infringement

notices

Telecommunications Act 1997

84 At the end of paragraph 572E(4)(b)

Add:

or (xiv) the carrier licence condition set out in section 152CJC

of the Competition and Consumer Act 2010; or

(xv) the service provider rule set out in subsection

152CJD(2) of the Competition and Consumer Act 2010;

(xvi) the carrier licence condition set out in section 37 of the

National Broadband Network Companies Act 2010; or

(xvii) the service provider rule set out in subsection 38(2) of

the National Broadband Network Companies Act 2010;

(xviii) a carrier licence condition covered by section 41 of the

National Broadband Network Companies Act 2010;

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Part 3--Amendments relating to Layer 2 Ethernet

bitstream services

Telecommunications Act 1997

85 Section 7

Insert:

Layer 2 bitstream service means a carriage service that is:

(a) a Layer 2 Ethernet bitstream service; and

(b) a listed carriage service; and

end-user.

For this purpose, Layer 2 has the same meaning as in the Open

System Interconnection (OSI) Reference Model for data exchange.

86 After Part 6

Insert:

Part 7--Layer 2 bitstream services

140 Simplified outline

The following is a simplified outline of this Part:

�

A network unit that belongs to a telecommunications network

(other than the national broadband network) must not be used

to supply a fixed-line carriage service if:

(a)

the network is used, or is capable of being used, to

supply a superfast carriage service to customers, or

prospective customers, in Australia; and

(b)

no Layer 2 bitstream service is available for supply

to those customers or prospective customers using

the network; and

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(c)

the network came into existence, or was upgraded,

after 25 November 2010; and

(d)

the network unit is not used wholly to supply

carriage services to a single government or

corporate end-user.

141 Supply of Layer 2 bitstream services

Scope

(1) This section applies to a network unit if:

(a) the network unit is:

(i) part of the infrastructure of a telecommunications

network in Australia; or

(ii) used, or for use, in or in connection with a

telecommunications network in Australia; and

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

superfast carriage service to customers, or prospective

customers, in Australia; and

(d) no Layer 2 bitstream service is available for supply to those

customers or prospective customers using the network; and

(e)

either:

(i) the network came into existence after 25 November

2010; or

(ii) the network was altered or upgraded after 25 November

2010 and, as a result of the alteration or upgrade, the

network became capable of being used to supply a

superfast carriage service to customers, or prospective

customers, in Australia; and

(f) the network unit is not used wholly to supply carriage

services to a single end-user, where that end-user is:

(i) a public body; or

(ii)

company.

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Sole owner of network unit

(2) If there is only one owner of the network unit, the owner of the

network unit must not:

(a) use the unit, either alone or jointly with one or more other

persons, to supply a fixed-line carriage service; or

(b) allow or permit another person to use the unit to supply a

fixed-line carriage service.

Multiple owners of network unit

(3) If there are 2 or more owners of the network unit, an owner of the

network unit must not:

(a) use the unit, either alone or jointly with one or more other

persons, to supply a fixed-line carriage service; or

(b) either alone or together with one or more other owners, allow

or permit another person to use the unit to supply a fixed-line

carriage service.

Offence

(4) A person commits an offence if:

(a) the person is subject to a requirement under subsection (2) or

(3); and

(b) the person engages in conduct; and

Penalty: 20,000 penalty units.

Exemptions

(5) The Minister may, by written instrument, exempt a specified owner

from subsections (2) and (3).

Note:

For specification by class, see subsection 46(3) of the Acts

Interpretation Act 1901.

(6) The Minister may, by written instrument, exempt a specified

network unit from subsections (2) and (3).

Note:

For specification by class, see subsection 46(3) of the Acts

Interpretation Act 1901.

(7) An instrument under subsection (5) or (6) may be:

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(a)

unconditional;

(b) subject to such conditions (if any) as are specified in the

instrument.

(8) Before making an instrument under subsection (5) or (6), the

Minister must consult:

(a)

the

ACCC;

and

(b)

the

ACMA.

(9) An instrument under subsection (5) or (6) is not a legislative

instrument.

Definitions

(10) In this section:

fixed-line carriage service means:

(a) a carriage service that is supplied using a line to premises

occupied or used by an end-user; or

(b) a service that facilitates the supply of a carriage service

covered by paragraph (a).

national broadband network has the same meaning as in the

National Broadband Network Companies Act 2010.

superfast carriage service means a carriage service, where:

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

communications; and

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

normally more than 25 megabits per second; and

occupied or used by an end-user.

87 Section 373

Omit:

�

The ACMA may make the following types of standards:

(a)

technical standards about customer equipment and

customer cabling;

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(b)

standards relating to the features of customer

equipment that are designed to cater for the special

needs of persons with disabilities;

(c)

technical standards about the interconnection of

facilities.

substitute:

�

The ACMA may make the following types of standards:

(a)

technical standards about customer equipment and

customer cabling;

(b)

standards relating to the features of customer

equipment that are designed to cater for the special

needs of persons with disabilities;

(c)

technical standards about the interconnection of

facilities;

(d)

technical standards relating to Layer 2 bitstream

services.

88 After Division 5 of Part 21

Insert:

Division 5A--Technical standards relating to Layer 2

bitstream services

389A ACMA's power to determine technical standards

The ACMA may, by legislative instrument, determine technical

standards relating to Layer 2 bitstream services.

Note:

See section 589 (instruments under this Act may provide for matters

by reference to other instruments).

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389B Compliance with technical standards

(1) A carrier or carriage service provider must comply with a standard

determined under section 389A.

(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).

(3) Subsections (1) and (2) are civil penalty provisions.

Note:

Part 31 provides for pecuniary penalties for breaches of civil penalty

provisions.

Exemptions

(4) The Minister may, by written instrument, exempt a specified

carrier, or a specified carriage service provider, from

subsection (1).

Note:

For specification by class, see subsection 46(3) of the Acts

Interpretation Act 1901.

(5) An instrument under subsection (4) may be:

(a)

unconditional;

(b) subject to such conditions (if any) as are specified in the

instrument.

(6) Before making an instrument under subsection (4), the Minister

must consult:

(a)

the

ACCC;

and

(b)

the

ACMA.

(7) An instrument under subsection (4) is not a legislative instrument.

Competition and Consumer Act 2010

89 Section 152AC

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Insert:

designated superfast telecommunications network has the

meaning given by section 152AGA.

90 Section 152AC

Insert:

Layer 2 bitstream service has the same meaning as in the

Telecommunications Act 1997.

91 Section 152AC

Insert:

national broadband network has the same meaning as in the

National Broadband Network Companies Act 2010.

92 Section 152AC

Insert:

superfast carriage service has the same meaning as in section 141

of the Telecommunications Act 1997.

93 After section 152AG

Insert:

152AGA Designated superfast telecommunications network

For the purposes of this Part, if:

(a) a telecommunications network is used, or is capable of being

used, to supply one or more Layer 2 bitstream services to

customers, or prospective customers, in Australia; and

(b) the network is used, or is capable of being used, to supply a

superfast carriage service to customers, or prospective

customers, in Australia; and

(d)

either:

(i) the network came into existence after 25 November

2010; or

(ii) the network was altered or upgraded after 25 November

2010 and, as a result of the alteration or upgrade, the

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network became capable of being used to supply a

superfast carriage service to customers, or prospective

customers, in Australia; and

(e) the network is not used wholly to supply carriage services to

a single end-user, where that end-user is:

(i) a public body (within the meaning of the

Telecommunications Act 1997); or

(ii)

company;

the network is a designated superfast telecommunications

network.

94 Before subsection 152AL(4)

Insert:

Mandatory declaration--Layer 2 bitstream service

(3C) As soon as practicable after the commencement of this subsection,

the Commission must declare under subsection (3) that a specified

Layer 2 bitstream service is a declared service.

(3D) A declaration mentioned in subsection (3C) has no effect except to

the extent (if any) to which the Layer 2 bitstream service is

supplied using a designated superfast telecommunications network.

Note: For

designated superfast telecommunications network, see

section 152AGA.

(3E) Paragraphs (3)(a) to (d) do not apply to a declaration mentioned in

subsection (3C).

(3F) If a Layer 2 bitstream service is declared as mentioned in

subsection (3C), that subsection does not, by implication, prevent

the Commission from making a declaration under subsection (3) in

relation to another Layer 2 bitstream service.

(3G) If a Layer 2 bitstream service is declared as mentioned in

subsection (3C), that subsection does not, by implication, prevent

the Commission from making another declaration under

subsection (3) in relation to the same Layer 2 bitstream service.

(3H) The other declaration mentioned in subsection (3G) has no effect

except to the extent (if any) to which the Layer 2 bitstream service

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is supplied otherwise than by using a designated superfast

telecommunications network.

Note: For

designated superfast telecommunications network, see

section 152AGA.

95 After subsection 152AL(8C)

Insert:

(8CA) Subsection (3C) does not, by implication, prevent a Layer 2

bitstream service from being declared under subsection (8A).

96 Subsections 152ALA(1) and (5)

After "section 152AL", insert "(other than a declaration mentioned in

subsection 152AL(3C))".

97 After subsection 152ALA(5)

Insert:

(5A) A declaration mentioned in subsection 152AL(3C) remains in force

indefinitely.

98 At the end of section 152AO

Add:

(4) The Commission must not vary or revoke a declaration mentioned

in subsection 152AL(3C).

Note:

Subsection 152AL(3C) deals with Layer 2 bitstream services.

99 After section 152AR

Insert:

152ARA Layer 2 bitstream services to be supplied on a

non-discriminatory basis

No discrimination between access seekers

(1) If a Layer 2 bitstream service is:

(a) supplied using a designated superfast telecommunications

network; and

(b) a declared service;

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a carrier (other than an NBN corporation) or carriage service

provider (other than an NBN corporation) must not, in complying

with any of its category A standard access obligations in relation to

the service, discriminate between access seekers.

Note:

For explanatory material, see section 152CJH.

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

an access seeker if the carrier or carriage service provider has

reasonable grounds to believe that the access seeker would fail, to a

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

the carrier or carriage service provider complies, or on which the

carrier or carriage service provider is reasonably likely to comply,

with the relevant obligation.

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

include:

(a) evidence that the access seeker is not creditworthy; and

(b) repeated failures by the access seeker to comply with the

terms and conditions on which the same or similar access has

been provided (whether or not by the carrier or carriage

service provider).

(4) The rule in subsection (1) does not prevent discrimination if:

(a) the discrimination aids efficiency; and

(b) all access seekers with like circumstances have an equal

opportunity to benefit from the discrimination; and

allowance, rebate or credit given or allowed, or offered to be

given or allowed, on the condition that the access seeker

acquires, or agrees to acquire, a particular volume, number,

quantity or amount of goods, services or other things:

(i) a special access undertaking given by the carrier or

carriage service provider is in operation; and

(ii) the discount, allowance, rebate or credit is in accordance

with terms and conditions specified in the undertaking.

(5) The rule in subsection (1) does not prevent discrimination on

grounds specified in a written instrument made by the

Commission.

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(6) The rule in subsection (1) does not prevent discrimination in

circumstances specified in a written instrument made by the

Commission.

No discrimination by a carrier or carriage service provider in

favour of itself

(7)

If:

(a) a Layer 2 bitstream service is:

(i) supplied using a designated superfast

telecommunications network; and

(ii) a declared service; and

(b) the carrier (other than an NBN corporation) or carriage

service provider (other than an NBN corporation) supplies, or

is capable of supplying, the service to itself and to other

persons; and

category A standard access obligation in relation to the

service;

the carrier or carriage service provider must not discriminate in

favour of itself in relation to the supply of the service.

(8) The rule in subsection (7) does not prevent discrimination on

grounds specified in a written instrument made by the

Commission.

(9) The rule in subsection (7) does not prevent discrimination in

circumstances specified in a written instrument made by the

Commission.

Instruments

(10) The Commission must not make an instrument under

subsection (5), (6), (8) or (9) unless the Commission has first:

(a) published a draft of the instrument on its website and invited

people to make submissions to the Commission on the

instrument; and

(b) considered any submissions that were received within the

time limit specified by the Commission when it published the

draft instrument.

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(11) An instrument made under subsection (5), (6), (8) or (9) is not a

legislative instrument.

152ARB Layer 2 bitstream services--carriers and carriage service

providers to carry on related activities on a

non-discriminatory basis

Scope

(1) This section applies to a carrier or carriage service provider if:

(a) a Layer 2 bitstream service is:

(i) supplied using a designated superfast

telecommunications network; and

(ii) a declared service; and

(b) the carrier or provider is subject to a category A standard

access obligation in relation to the service.

No discrimination

(2) The carrier or provider must not, in carrying on any of the

following activities, discriminate between access seekers:

(a) developing a new eligible service;

(b) enhancing a declared service;

telecommunications network by means of which a declared

service is, or is to be, supplied;

(d) planning for a facility or telecommunications network by

means of which a declared service is, or is to be, supplied;

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

service;

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

declared service;

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

above activities.

Note:

For explanatory material, see section 152CJH.

Exceptions

(3) The rule in subsection (2) does not prevent discrimination if:

(a) the relevant activity relates to a pilot or trial of:

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(i) a new eligible service; or

(ii) an enhanced declared service; and

(b)

if:

(i) a determination is in force under subsection (4); and

(ii) the determination is applicable to the pilot or trial;

the number of days in the anticipated period of the pilot or

trial does not exceed the number of days that, under the

determination, is the maximum allowable duration of the

pilot or trial.

(4) The Commission may, by legislative instrument, determine that,

for the purposes of paragraph (3)(b), a specified number of days is

the maximum allowable duration of a specified pilot or trial.

Note:

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

Instruments Act 2003.

(5) The rule in subsection (2) does not apply to discrimination in

favour of an access seeker if:

(a) the relevant activity consists of giving information to the

access seeker about:

(i) the development of a new eligible service; or

(ii) the enhancement of a declared service; and

(b) the access seeker requested:

(i) the development of the new eligible service; or

(ii) the enhancement of the declared service;

as the case may be.

Definition

(6) In this section:

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

100 Paragraph 152AZ(aa)

Before "152AXC", insert "152ARA, 152ARB,".

101 Paragraph 152BA(2)(aa)

Before "152AXC", insert "152ARA, 152ARB,".

102 Before subsection 152BB(1AB)

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Insert:

(1AA) If the Federal Court is satisfied that a carrier or carriage service

provider has contravened the rule in subsection 152ARA(1) or (7)

or 152ARB(2), the Court may, on the application of:

(a) the Commission; or

(b) any person whose interests are affected by the contravention;

make all or any of the following orders:

obligation;

(d) an order directing the carrier or provider to compensate any

other person who had suffered loss or damage as a result of

the contravention;

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

103 After subsection 152BC(4)

Insert:

(4A) Paragraphs (3)(h) and (i) do not apply to an access determination

that relates to a declared service that is a Layer 2 bitstream service

supplied using a designated superfast telecommunications network.

104 After subsection 152BCB(4F)

Insert:

(4G) The Commission must not make an access determination that:

(a) relates to a declared service that is:

(i) a Layer 2 bitstream service; and

(ii) supplied using a designated superfast

telecommunications network; and

(iii) supplied by a carrier (other than an NBN corporation) or

a carriage service provider (other than an NBN

corporation); and

(b) has the effect (whether direct or indirect) of discriminating

between access seekers.

Note:

For explanatory material, see section 152CJH.

(4H) Subsection (4G) does not prevent discrimination against an access

seeker if the Commission has reasonable grounds to believe that

the access seeker would fail, to a material extent, to comply with

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the terms and conditions on which the carrier or carriage service

provider complies, or on which the carrier or carriage service

provider is reasonably likely to comply, with the relevant

obligation.

(4J) Examples of grounds for believing as mentioned in

subsection (4H) include:

(a) evidence that the access seeker is not creditworthy; and

(b) repeated failures by the access seeker to comply with the

terms and conditions on which the same or similar access has

been provided (whether or not by the carrier or carriage

service provider).

(4K) Subsection (4G) does not prevent discrimination if:

(a) the discrimination aids efficiency; and

(b) all access seekers with like circumstances have an equal

opportunity to benefit from the discrimination.

(4L) Subsection (4G) does not prevent discrimination on grounds

specified under subsection 152ARA(5).

(4M) Subsection (4G) does not prevent discrimination in circumstances

specified under subsection 152ARA(6).

105 Subsection 152BCB(5)

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

106 After subsection 152BDA(4F)

Insert:

(4G) The Commission must not make binding rules of conduct that:

(a) relate to a declared service that is:

(i) a Layer 2 bitstream service; and

(ii) supplied using a designated superfast

telecommunications network; and

(iii) supplied by a carrier (other than an NBN corporation) or

a carriage service provider (other than an NBN

corporation); and

(b) have the effect (whether direct or indirect) of discriminating

between access seekers.

Note:

For explanatory material, see section 152CJH.

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(4H) Subsection (4G) does not prevent discrimination against an access

seeker if the Commission has reasonable grounds to believe that

the access seeker would fail, to a material extent, to comply with

the terms and conditions on which the carrier or carriage service

provider complies, or on which the carrier or carriage service

provider is reasonably likely to comply, with the relevant

obligation.

(4J) Examples of grounds for believing as mentioned in

subsection (4H) include:

(a) evidence that the access seeker is not creditworthy; and

(b) repeated failures by the access seeker to comply with the

terms and conditions on which the same or similar access has

been provided (whether or not by the carrier or carriage

service provider).

(4K) Subsection (4G) does not prevent discrimination if:

(a) the discrimination aids efficiency; and

(b) all access seekers with like circumstances have an equal

opportunity to benefit from the discrimination.

(4L) Subsection (4G) does not prevent discrimination on grounds

specified under subsection 152ARA(5).

(4M) Subsection (4G) does not prevent discrimination in circumstances

specified under subsection 152ARA(6).

107 Subsection 152BDA(5)

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

108 After subsection 152BE(1A)

Insert:

(1B) Subparagraphs (1)(e)(ix) and (x) do not apply to an agreement that

relates to a declared service that is a Layer 2 bitstream service

supplied using a designated superfast telecommunications network.

109 After section 152BEBD

Insert:

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152BEBE Layer 2 bitstream services--carrier or carriage service

provider to give the Commission a statement about the

differences between an access agreement and a special

access undertaking

Access agreement

(1)

If:

(a) an access agreement is covered by subsection 152BE(1); and

(b) the declared service to which the agreement relates is a Layer

2 bitstream service supplied using a designated superfast

telecommunications network; and

proposes to supply, the declared service is not an NBN

corporation; and

(d) immediately before the access agreement was entered into, a

special access undertaking that:

(i) relates to access to the service; and

(ii) was given by the carrier or provider;

was in operation; 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 special

access undertaking;

the carrier or provider must, within 7 days after the day on which

the access agreement was entered into, give the Commission a

statement, in a form approved in writing by the Commission:

(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 special access undertaking; and

(h) if any or all of those differences are authorised by subsection

152ARA(4) (which deals with discrimination that aids

efficiency):

(i) identifying the differences that are authorised by that

subsection; and

(ii) describing what access seekers must do in order to have

the like circumstances mentioned in that subsection; and

(i) if any or all of those differences are authorised by subsection

152ARA(5) (which deals with discrimination on grounds

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specified in a legislative instrument made by the

Commission)--identifying the differences that are authorised

by that subsection; and

(j) if any or all of those differences are authorised by subsection

152ARA(6) (which deals with discrimination in

circumstances specified in a legislative instrument made by

the Commission)--identifying the differences that are

authorised by that subsection; and

(k) setting out such other information (if any) about the access

agreement as is required by the form.

Variation agreement

(2)

If:

(a) a variation agreement is entered into after the commencement

of this section; and

(b) the declared service to which the relevant access agreement

relates is a Layer 2 bitstream service supplied using a

designated superfast telecommunications network; and

proposes to supply, the service to which the relevant access

agreement relates is not an NBN corporation; and

(d) immediately before the variation agreement was entered into,

a special access undertaking that:

(i) relates to access to the service; and

(ii) was given by the carrier or provider;

was in operation; and

(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 special access

undertaking;

the carrier or provider must, within 7 days after the day on which

the variation agreement was entered into, give the Commission a

statement, in a form approved in writing by the Commission:

(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 special access undertaking; and

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(h) if any or all of those differences are authorised by subsection

152ARA(4) (which deals with discrimination that aids

efficiency):

(i) identifying the differences that are authorised by that

subsection; and

(ii) describing what access seekers must do in order to have

the like circumstances mentioned in that subsection; and

(i) if any or all of those differences are authorised by subsection

152ARA(5) (which deals with discrimination on grounds

specified in a legislative instrument made by the

Commission)--identifying the differences that are authorised

by that subsection; and

(j) if any or all of those differences are authorised by subsection

152ARA(6) (which deals with discrimination in

circumstances specified in a legislative instrument made by

the Commission)--identifying the differences that are

authorised by that subsection; and

(k) setting out such other information (if any) about the relevant

access agreement (as varied by the variation agreement) as is

required by the form.

152BEBF Layer 2 bitstream services--carrier or carriage service

provider to give the Commission a statement about the

differences between an access agreement and an access

determination

Access agreement

(1)

If:

(a) an access agreement is covered by subsection 152BE(1); and

(b) the declared service to which the agreement relates is a Layer

2 bitstream service supplied using a designated superfast

telecommunications network; and

proposes to supply, the declared service is not an NBN

corporation; and

(d) immediately before the access agreement was entered into, an

access determination relating to access to the service was in

force; and

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(e) the terms and conditions set out in the access agreement are

not the same as the terms and conditions set out in the access

determination;

the carrier or provider must, within 7 days after the day on which

the access agreement was entered into, give the Commission a

statement, in a form approved in writing by the Commission:

(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 access determination; and

(h) if any or all of those differences are authorised by subsection

152ARA(4) (which deals with discrimination that aids

efficiency):

(i) identifying the differences that are authorised by that

subsection; and

(ii) describing what access seekers must do in order to have

the like circumstances mentioned in that subsection; and

(i) if any or all of those differences are authorised by subsection

152ARA(5) (which deals with discrimination on grounds

specified in a legislative instrument made by the

Commission)--identifying the differences that are authorised

by that subsection; and

(j) if any or all of those differences are authorised by subsection

152ARA(6) (which deals with discrimination in

circumstances specified in a legislative instrument made by

the Commission)--identifying the differences that are

authorised by that subsection; and

(k) setting out such other information (if any) about the access

agreement as is required by the form.

Variation agreement

(2)

If:

(a) a variation agreement is entered into after the commencement

of this section; and

(b) the declared service to which the relevant access agreement

relates is a Layer 2 bitstream service supplied using a

designated superfast telecommunications network; and

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proposes to supply, the service to which the relevant access

agreement relates is not an NBN corporation; and

(d) immediately before the variation agreement was entered into,

an access determination relating to access to the service was

in force; and

(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 access

determination;

the carrier or provider must, within 7 days after the day on which

the variation agreement was entered into, give the Commission a

statement, in a form approved in writing by the Commission:

(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 access determination; and

(h) if any or all of those differences are authorised by subsection

152ARA(4) (which deals with discrimination that aids

efficiency):

(i) identifying the differences that are authorised by that

subsection; and

(ii) describing what access seekers must do in order to have

the like circumstances mentioned in that subsection; and

(i) if any or all of those differences are authorised by subsection

152ARA(5) (which deals with discrimination on grounds

specified in a legislative instrument made by the

Commission)--identifying the differences that are authorised

by that subsection; and

(j) if any or all of those differences are authorised by subsection

152ARA(6) (which deals with discrimination in

circumstances specified in a legislative instrument made by

the Commission)--identifying the differences that are

authorised by that subsection; and

(k) setting out such other information (if any) about the relevant

access agreement (as varied by the variation agreement) as is

required by the form.

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152BEBG Register of Layer 2 Bitstream Access Agreement

Statements

(1) The Commission is to maintain a register, to be known as the

which the Commission includes all statements given to it under the

following provisions:

(a)

section

152BEBE;

(b)

section

152BEBF.

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

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

Commission's website.

(4) The Register is not a legislative instrument.

(5) If the Commission is satisfied that:

(a) publication of particular material contained in a statement

could reasonably be expected to prejudice substantially the

commercial interests of a person; and

(b) the prejudice outweighs the public interest in the publication

of the matter;

the Commission may remove the material from the version of the

statement that is included in the Register.

(6) If the Commission does so, the Commission must include in the

110 Section 152BEC

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

152BEBF".

111 Subsection 152BED(2)

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

152BEBF".

112 Before subparagraph 152CJH(a)(i)

Insert:

(ia)

section

152ARA;

(ib)

section

152ARB;

Commonwealth of Australia Bills

TELECOMMUNICATIONS LEGISLATION AMENDMENT (NATIONAL BROADBAND NETWORK MEASURES-ACCESS ARRANGEMENTS) BILL 2010