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This is a Bill, not an Act. For current law, see the Acts databases.
1996
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Trade Practices
Amendment (Telecommunications) Bill 1996
No.
, 1996
(Communications and the
Arts)
A Bill for an Act to amend the
Trade Practices Act 1974, and for related purposes
9616520—1,025/1.11.1996—(165/96) Cat.
No. 96 5411 9 ISBN 0644 479744
Contents
Trade Practices Act 1974 6tpat0h1.html
A Bill for an Act to amend the Trade Practices Act
1974, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Trade Practices Amendment
(Telecommunications) Act 1996.
This Act commences on the day on which it receives the Royal
Assent.
Each Act that is specified in a Schedule to this Act is amended 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.
1 Subsection 2B(1)
Repeal the subsection, substitute:
(1) The following provisions of this Act bind the Crown in right of each
of the States, of the Northern Territory and of the Australian Capital
Territory, so far as the Crown carries on a business, either directly or by an
authority of the State or Territory:
(a) Part IV;
(b) Part XIB;
(c) the other provisions of this Act so far as they relate to the above
provisions.
2 Paragraph 6(2)(h)
Omit “or 81”, substitute “, 81, 151AE or
151AJ”.
3 Subsection 25(1)
Omit “under this Act,”, substitute “under this Act, the
Telecommunications Act 1996 or Rules of Conduct under Part 20 of the
Telecommunications Act 1996,”.
4 Paragraph 29(1A)(a)
Omit “or VII”, substitute “, VII, XIB or
XIC”.
5 Subsection 76(1)
Omit “under this Part”, substitute “under this Part or
Part XIB”.
Insert:
The following is a simplified outline of this Part:
• This Part sets up a special regime for
regulating anti-competitive conduct in the telecommunications industry. The
regime applies in addition to Part IV.
• The Part sets out the circumstances in which
carriers and carriage service providers are said to engage in
anti-competitive conduct.
• A carrier or carriage service provider must
not engage in anti-competitive conduct. This rule is called the
competition rule.
• The Commission may issue a notice stating
that a specified carrier or carriage service provider has contravened, or is
contravening, the competition rule. The notice is called a competition
notice.
• A competition notice is prima facie evidence
of the matters in the notice.
• The Commission may make an order exempting
specified conduct from the scope of the definition of anti-competitive
conduct. The order is called an exemption order.
• Carriers and carriage service providers may
be directed to file tariff information with the Commission. The direction is
called a tariff filing direction.
• The Commission may make record-keeping rules
that apply to carriers and carriage service providers.
In this Part, unless the contrary intention appears:
ACA means the Australian Communications Authority.
anti-competitive conduct has the meaning given by section
151AJ.
carriage service has the same meaning as in the
Telecommunications Act 1996.
carriage service provider has the same meaning as in the
Telecommunications Act 1996.
carrier has the same meaning as in the Telecommunications
Act 1996.
carrier licence has the same meaning as in the
Telecommunications Act 1996.
competition notice means a notice under section
151AL.
competition rule means the rule set out in section
151AK.
data processing device means any article or material (for
example, a disk) from which information is capable of being reproduced, with or
without the aid of any other article or device.
eligible partnership has the same meaning as in the
Telecommunications Act 1996.
exemption order means an order under section 151BA.
facility has the same meaning as in the Telecommunications
Act 1996.
Federal Court means the Federal Court of Australia.
person includes a partnership.
Note: Section 151CH sets out additional rules about
partnerships.
record-keeping rule means a rule under section
151BU.
service provider rule has the same meaning as in the
Telecommunications Act 1996.
tariff filing direction means a direction under section
151BK.
telecommunications market has the meaning given by
section 151AF.
This Part, and the other provisions of this Act so far as they relate to
this Part, extend to each eligible Territory (within the meaning of the
Telecommunications Act 1996).
For the purposes of this Part, a change in the composition of a
partnership does not affect the continuity of the partnership.
(1) Without prejudice to its effect apart from this section, this Part
also has effect as provided by this section.
(2) This Part has, by force of this subsection, the effect it would have
if:
(a) any references in this Part to a carrier were, by express provision,
confined to a carrier that is a corporation; and
(b) any references in this Part to a carriage service provider were, by
express provision, confined to a carriage service provider that is a
corporation.
(3) In addition to the effect that this Part has as provided by subsection
(2), this Part has, by force of this subsection, the effect it would have if
subsections 151AJ(2) and (3) were, by express provision, confined in their
operation to engaging in conduct to the extent to which the conduct takes place
in the course of or in relation to:
(a) trade or commerce between Australia and places outside Australia;
or
(b) trade or commerce among the States; or
(c) trade or commerce within a Territory, between a State and a Territory
or between 2 Territories; or
(d) the supply of goods or services to the Commonwealth or an authority or
instrumentality of the Commonwealth.
For the purposes of this Part, a telecommunications market
is a market in which any of the following goods or services are supplied
or acquired:
(a) carriage services;
(b) goods or services for use in connection with a carriage
service;
(c) access to facilities.
Note: Market has a meaning affected by section
4E.
For the purposes of this Part, if:
(a) a carrier or a carriage service provider is a partnership;
and
(b) a body corporate is related to a partner in the partnership;
the body corporate is taken to be related to the carrier or
carriage service provider, as the case requires.
(1) For the purposes of this Part, if:
(a) a body corporate is related to:
(i) a carrier; or
(ii) a carriage service provider; and
(b) the body corporate has a substantial degree of power in a
telecommunications market;
the carrier or carriage service provider, as the case requires, is taken to
have a substantial degree of power in that market.
(2) For the purposes of this Part, if:
(a) 2 or more bodies corporate are related to the one:
(i) carrier; or
(ii) carriage service provider; and
(b) those bodies corporate together have a substantial degree of power in
a telecommunications market;
the carrier or carriage service provider, as the case requires, is taken to
have a substantial degree of power in that market.
(3) For the purposes of this Part, if:
(a) a body corporate is related to:
(i) a carrier; or
(ii) a carriage service provider; and
(b) the body corporate and the carrier or carriage service provider, as
the case may be, together have a substantial degree of power in a
telecommunications market;
the carrier or carriage service provider, as the case requires, is taken to
have a substantial degree of power in that market.
(4) For the purposes of this Part, if:
(a) 2 or more bodies corporate are related to:
(i) a carrier; or
(ii) a carriage service provider; and
(b) those bodies corporate and that carrier or carriage service provider,
as the case may be, together have a substantial degree of power in a
telecommunications market;
the carrier or carriage service provider, as the case requires, is taken to
have a substantial degree of power in that market.
(5) In determining, for the purposes of this Part, the degree of power
that a person has, or that persons have, in a telecommunications market, regard
must be had to the extent to which the conduct of the person or any of those
persons in that market is constrained by the conduct of:
(a) competitors, or potential competitors, of the person or of any of
those persons in that market; or
(b) persons to whom or from whom the person or any of those persons
supplies or acquires goods or services in that market.
(6) Subsection (5), does not, by implication, limit the matters to which
regard may be had in determining, for the purposes of this Part, the degree of
power that a person has, or that persons have, in a telecommunications
market.
(7) In this Part:
(a) a reference to power is a reference to market power;
and
(b) a reference to power in relation to, or to conduct in, a
telecommunications market is a reference to power, or to conduct, in that market
either as a supplier or as an acquirer of goods or services in that
market.
In determining the meaning of a provision of Part IV or VII, the
provisions of this Part are to be ignored.
(1) This section sets out the 2 circumstances in which:
(a) a carrier; or
(b) a carriage service provider;
is said to engage in anti-competitive conduct for the
purposes of this Part.
(2) A carrier or carriage service provider engages in
anti-competitive conduct if the carrier or carriage service
provider:
(a) has a substantial degree of power in a telecommunications market;
and
(b) takes advantage of that power with the effect, or likely effect, of
substantially lessening competition in that or any other telecommunications
market.
(3) A carrier or carriage service provider engages in
anti-competitive conduct if the carrier or carriage service
provider:
(a) engages in conduct in contravention of section 45, 45B, 46, 47 or 48;
and
(b) the conduct relates to a telecommunications market.
(4) For the purposes of the application of subsection (3) to a carrier, or
a carriage service provider, that is not a corporation, in determining whether
conduct of the carrier or provider is in contravention of section 45, 45B, 46,
47 or 48, it is to be assumed that each reference in those sections to a
corporation included a reference to a carrier, or a carriage service provider,
that is not a corporation.
(5) For the purposes of the application of subsection (3) to a carrier, or
a carriage service provider, that is not a corporation or a partnership, in
determining whether conduct of the carrier or provider is in contravention of
section 45, 45B, 46, 47 or 48, the following assumptions are to be
made:
(a) the assumption that the expression “or any body corporate
related to such a corporation” were omitted from subsection
45(3);
(b) the assumption that the expression “or a body corporate related
to the corporation” were omitted from paragraph 45(4)(b);
(c) the assumption that the expression “or of a body corporate that
is related to the corporation” were omitted from paragraph
46(1)(a);
(d) the assumption that subsection 46(2) had not been enacted;
(e) the assumption that the expression “or from a competitor of a
body corporate related to the corporation” were omitted from each of the
following provisions:
(i) paragraphs 47(2)(d) and (e);
(ii) paragraphs 47(3)(d) and (e);
(iii) subparagraphs 47(8)(a)(i) and (ii);
(f) the assumption that the expression “not being a body corporate
related to the corporation” were omitted from paragraphs 47(8)(c) and
49(9)(d);
(g) the assumption that the expression “or from a competitor of a
body corporate related to the corporation” were omitted from paragraphs
47(9)(a) and (b);
(h) the assumption that the expression “, or by a body corporate
related to the corporation,” were omitted from paragraph
47(10)(b);
(i) the assumption that the expression “or any body corporate
related to that corporation” were omitted from subparagraph
47(13)(b)(i);
(j) the assumption that the expression “or any body corporate
related to either of those corporations” were omitted from paragraph
47(13)(c) and the expression “any body corporate related to the
last-mentioned corporation” were substituted;
(k) the assumption that the expression “where the second person
mentioned in that paragraph is a corporation” were omitted from subsection
96(2).
(6) A person may be taken to have engaged in anti-competitive conduct even
if the conduct involves the exercise, or proposed exercise, of an existing legal
or equitable right (whether under a contract or otherwise).
(7) Despite anything in subsection (2) or (3), a carrier or carriage
service provider does not engage in anti-competitive conduct if that conduct
does not constitute a contravention of section 45, 45B, 46, 47 or 48:
(a) because an authorisation is in force; or
(b) because of the operation of section 93.
(8) A carrier or carriage service provider does not engage in
anti-competitive conduct if that conduct occurred before
1 July 1997.
(1) A carrier or carriage service provider must not engage in
anti-competitive conduct.
(2) For the purposes of this Part, the rule set out in subsection (1) is
to be known as the competition rule.
Note: For enforcement of the competition rule, see Division
6.
(1) The Commission may issue a written notice:
(a) stating that a specified carrier or carriage service provider has
contravened, or is contravening, the competition rule; and
(b) setting out particulars of that contravention.
(2) A notice under subsection (1) is to be known as a competition
notice.
As soon as practicable after issuing a competition notice, the Commission
must give a copy of the competition notice to the carrier or carriage service
provider concerned.
(1) In any proceedings under, or arising out of, this Part, a competition
notice is prima facie evidence of the matters in the notice.
(2) A document purporting to be a competition notice must, unless the
contrary is established, be taken to be a competition notice and to have been
properly issued.
(3) The Commission may certify that a document is a copy of a competition
notice.
(4) This section applies to the certified copy as if it were the
original.
(1) A competition notice comes into force:
(a) when it is issued; or
(b) if the notice specifies a later time—at that later
time;
and, unless sooner revoked, remains in force until the end of the period
specified in the notice. The period must not be longer than 12 months.
(2) If a competition notice expires, this Part does not prevent the
Commission from issuing a fresh competition notice under section 151AL that
relates to the same matter as the expired notice.
(1) In deciding whether to issue a competition notice, the Commission must
have regard to:
(a) any guidelines in force under subsection (2); and
(b) such other matters as the Commission considers relevant.
(2) The Commission must, by written instrument, formulate guidelines for
the purposes of subsection (1).
(3) The Commission must take all reasonable steps to ensure that the first
instrument under subsection (2) is made before 1 July 1997.
(1) If the Commission has reason to suspect that a carrier or carriage
service provider has contravened, or is contravening, the competition rule, the
Commission must act expeditiously in deciding whether to issue a competition
notice in relation to that contravention.
(2) A failure to comply with subsection (1) does not affect the validity
of a competition notice.
(1) The Commission must keep a Register in relation to competition
notices.
(2) The Register must include particulars of all competition notices
(including notices that have expired).
(3) The Register may be maintained by electronic means.
(4) A person may, on payment of the fee (if any) specified in the
regulations:
(a) inspect the Register; and
(b) make a copy of, or take extracts from, the Register.
(5) For the purposes of this section, if the Register is maintained by
electronic means, a person is taken to have made a copy of, or taken an extract
from, the Register if the Commission gives the person a printout of, or of the
relevant parts of, the Register.
(6) If a person requests that a copy be provided in an electronic form,
the Commission may provide the relevant information:
(a) on a data processing device; or
(b) by way of electronic transmission.
(1) A person may apply to the Commission for an order exempting specified
conduct of the person from the scope of section 151AJ (which deals with
anti-competitive conduct). The order is called an exemption
order.
(2) An exemption order is not invalid only because the conduct specified
in the order is conduct of a kind that, apart from the order, is outside the
scope of section 151AJ (which deals with anti-competitive conduct).
An application for an exemption order must be:
(a) in writing; and
(b) in a form approved in writing by the Commission; and
(c) accompanied by the prescribed fee.
(1) The Commission may request an applicant for an exemption order to give
the Commission further information about the application.
(2) The Commission may refuse to consider the application until the
applicant gives the Commission the information.
An applicant for an exemption order may withdraw the application by
written notice given to the Commission.
If the Commission receives an application for an exemption order, the
Commission must publicise the receipt of the application in such manner as it
thinks fit.
(1) This section applies if:
(a) the Commission receives, or has received, an application for an
exemption order; and
(b) the Commission receives, or has received, an application for an
authorisation under Division 1 of Part VII; and
(c) the application for the exemption order and the application for the
authorisation relate to the same conduct.
(2) The Commission may refuse to:
(a) consider the application for the exemption order; or
(b) convene a conference under section 151AZ to discuss the application
for the exemption order;
until:
(c) the Commission has made a determination under section 90 in relation
to the application for the authorisation; or
(d) if the Commission makes such a determination—the expiry of the
time limit allowed for a person to apply to the Tribunal for a review of the
determination; or
(e) if a person applies to the Tribunal for a review of the
determination—the review (including any court proceedings arising out of
the review) is finalised.
(1) This section applies if:
(a) the Commission receives, or has received, an application for an
exemption order; and
(b) the Commission receives, or has received, a notice under subsection
93(1); and
(c) the application for the exemption order and the notice relate to the
same conduct.
(2) The Commission may refuse to:
(a) consider the application for the exemption order; or
(b) convene a conference under section 151AZ to discuss the application
for the exemption order;
until:
(c) the Commission decides whether or not to give a notice under
subsection 93(3) or (3A); or
(d) if the Commission gives such a notice—the expiry of the time
limit allowed for a person to apply to the Tribunal for review of the decision;
or
(e) if a person applies to the Tribunal for a review of the
decision—the review (including any court proceedings arising out of the
review) is finalised.
(1) If the Commission receives an application for an exemption order, the
Commission may convene a conference to discuss the application.
(2) If the Commission decides to convene a conference, the Commission must
give:
(a) the applicant (or a representative of the applicant); and
(b) any other persons whom the Commission considers interested;
a reasonable opportunity to attend and take part in the
conference.
(3) This Act does not prevent a conference under this section from being
combined with a conference under section 90A or 93A if the combined conference
relates to the same conduct.
If the Commission receives an application for an exemption order, the
Commission must either:
(a) make the order; or
(b) refuse to make the order.
Before making an exemption order, the Commission must give:
(a) the applicant; and
(b) any other person whom the Commission considers interested;
a reasonable opportunity to make submissions to the Commission about the
order.
(1) The Commission must not make an exemption order in relation to
particular conduct of a person unless it is satisfied that:
(a) both:
(i) the conduct will result, or is likely to result, in a benefit to the
public; and
(ii) that benefit outweighs, or will outweigh, the detriment to the public
constituted by any lessening of competition that will result, or is likely to
result, from engaging in the conduct; or
(b) the conduct is not anti-competitive conduct.
(2) In determining whether the Commission is satisfied about the matters
referred to in paragraph (1)(a), the Commission may have regard to the following
matters:
(a) the extent to which the conduct relates to the supply of goods or
services on favourable terms and conditions to:
(i) a financially disadvantaged individual; or
(ii) an individual who is disadvantaged on health grounds; or
(iii) a non-profit community organisation or a non-profit charitable
organisation; or
(iv) an educational institution; or
(v) a health facility;
(b) the extent to which the conduct relates to the supply of goods or
services for:
(i) community, charitable or educational purposes; or
(ii) the promotion of health or safety;
on favourable terms and conditions;
(c) the need to satisfy any applicable universal service
obligation;
(d) the extent to which the conduct prevents or reduces, or is likely to
prevent or reduce, pollution or other forms of degradation of environmental
amenity;
(e) the extent to which the conduct contributes, or is likely to
contribute, to technical innovation, or the development of new goods or
services, by Australian industry.
(3) Subsection (2) does not, by implication, limit the matters to which
the Commission may have regard.
(4) The Commission must not make an exemption order in relation to
particular conduct of a person if:
(a) the conduct is in contravention of section 46; and
(b) subsection 46(6) does not apply to the conduct.
(5) Subsections 151AJ(4) and (5) apply for the purposes of subsection (4)
of this section in a corresponding way to the way in which they apply for the
purposes of subsection 151AJ(3).
(6) In this section:
environment includes all aspects of the surroundings of human
beings, whether affecting human beings as individuals or in social
groupings.
(1) If the Commission makes an exemption order, the Commission must give
the applicant a written notice setting out the order and the reasons for the
order.
(2) If the Commission refuses to make an exemption order, the Commission
must give the applicant a written notice stating that the order has been refused
and setting out the reasons for the refusal.
An exemption order may be expressed to be in force for a period specified
in the order.
An exemption order may be expressed to be subject to such conditions as
are specified in the order.
(1) If:
(a) an exemption order is in force in relation to a person; and
(b) the Commission is satisfied that:
(i) the order was made on the basis of information that was false or
misleading in a material particular; or
(ii) a condition to which the order is subject has been contravened;
or
(iii) there has been a material change of circumstances since the order
was made;
the Commission may revoke the order.
(2) The Commission must not revoke an exemption order unless the
Commission has first:
(a) published a draft notice of revocation and invited people to make
submissions to the Commission on the draft notice; and
(b) considered any submissions that were received within the time limit
specified by the Commission when it published the draft notice.
(3) The Commission may make a further exemption order under section 151BA
in substitution for the revoked order.
(4) If the Commission revokes an exemption order relating to a person, the
Commission must give the person a written notice stating that the order has been
revoked and setting out the reasons for the revocation.
(5) A revocation of an exemption order takes effect:
(a) at the time when notice of the revocation is given; or
(b) if a later time is specified in the notice of the revocation—at
that later time.
(1) The Commission must keep a Register in relation to exemption
orders.
(2) The Register must include the following:
(a) particulars of all exemption orders (including orders that have
expired);
(b) applications for exemption orders received by the Commission
(including applications that have been withdrawn);
(c) particulars of decisions refusing to make exemption orders;
(d) particulars of decisions revoking, or refusing to revoke, exemption
orders;
(e) particulars of the Commission’s reasons for making exemption
orders.
(3) Despite subsection (2), the Register must not set out information
covered by subsection (2) if the disclosure of the information could reasonably
be expected to prejudice substantially the commercial interests of the person,
or any of the persons, to whom the information relates.
(4) The Register may be maintained by electronic means.
(5) A person may, on payment of the fee (if any) specified in the
regulations:
(a) inspect the Register; and
(b) make a copy of, or take extracts from, the Register.
(6) For the purposes of this section, if the Register is maintained by
electronic means, a person is taken to have made a copy of, or taken an extract
from, the Register if the Commission gives the person a printout of, or of the
relevant parts of, the Register.
(7) If a person requests that a copy be provided in an electronic form,
the Commission may provide the relevant information:
(a) on a data processing device; or
(b) by way of electronic transmission.
A person who, in connection with an application for an exemption order,
intentionally or recklessly:
(a) gives information to the Commission that is false or misleading in a
material particular; or
(b) omits from information given to the Commission any matter or thing
without which the information is misleading in a material particular;
is guilty of an offence punishable on conviction by imprisonment for a term
not exceeding 6 months.
A reference in this Division to conduct includes a
reference to proposed conduct.
(1) This section applies to a person who is a carrier or carriage service
provider if the Commission is satisfied that the person has a substantial degree
of power in a telecommunications market.
(2) The Commission may give the person a written direction that:
(a) contains a statement to the effect that any or all of the following
are within the scope of the direction:
(i) specified carriage services;
(ii) specified ancillary goods;
(iii) specified ancillary services; and
(b) complies with subsection (3), (4) or (5).
The direction is called a tariff filing direction.
Note: For enforcement of tariff filing directions, see
Division 6.
(3) A direction complies with this subsection if it contains a requirement
that if, at the time the direction is given, the person has charges for goods or
services within the scope of the direction, the person must give the Commission,
within the period and in the form specified in the direction, a written
statement setting out such information about those charges as is specified in
the direction.
(4) A direction complies with this subsection if it contains a requirement
that the person must, at least 7 days before:
(a) imposing a new charge for goods or services within the scope of the
direction at any time when the direction is in force; or
(b) varying a charge for goods or services within the scope of the
direction at any time when the direction is in force; or
(c) ceasing to impose a charge for goods or services within the scope of
the direction at any time when the direction is in force;
give the Commission, in the form specified in the direction, a written
statement setting out such information about the person’s intentions as is
specified in the direction.
Note: See subsection (6) for a special rule relating to this
subsection.
(5) A direction complies with this subsection if it contains a requirement
that, in the event that the person:
(a) imposes a new charge for goods or services within the scope of the
direction at any time when the direction is in force; or
(b) varies a charge for goods or services within the scope of the
direction at any time when the direction is in force; or
(c) ceases to impose a charge for goods or services within the scope of
the direction at any time when the direction is in force;
the person must give the Commission:
(d) within such period after the imposition, variation or cessation, as
the case may be, as is specified in the direction; and
(e) in the form specified in the direction;
a written statement setting out such information about the imposition,
variation or cessation, as the case may be, as is specified in the
direction.
(6) The Commission may, on the application of the person, make a written
determination that subsection (4) has effect, in relation to a specified matter,
as if the reference in that subsection to 7 days were a reference to such
shorter period as is specified in the determination. The determination has
effect accordingly.
(7) This section does not, by implication, limit section 87B or
155.
(8) This section does not prevent 2 or more tariff filing directions being
given to the same person at the same time.
(9) For the purposes of this section, information relating to the terms
and conditions on which goods or services have been, are being or are proposed
to be supplied is taken to be information relating to charges that have been
imposed, are being imposed or are proposed to be imposed for those goods or
services.
(10) A tariff filing direction given before 1 July 1997 comes
into force on 1 July 1997.
(11) In this section:
ancillary goods means goods for use in connection with a
carriage service.
ancillary service means a service for use in connection with
a carriage service.
variation, in relation to a charge, means a variation of the
nature of the charge or the amount of the charge, or both.
(1) Goods or services may be specified in a tariff filing direction by
reference to any or all of the following:
(a) the nature of the goods or services;
(b) the customers to whom the goods or services are, or are proposed to
be, supplied (whether those customers are identified by name, by inclusion in a
specified class or in any other way);
(c) the kinds of terms and conditions on which the goods or services are,
or are proposed to be, supplied.
(2) Subsection (1) does not, by implication, limit the ways in which goods
and services may be specified in a tariff filing direction.
If the Commission gives a tariff filing direction to a person, the
Commission must give the person a written notice setting out the reasons for the
direction.
A tariff filing direction may be expressed to cease to be in force at a
time ascertained in accordance with the direction.
Note: A time specified in accordance with the direction may
be the time of occurrence of a specified event or the time when a specified
condition is satisfied.
(1) If a tariff filing direction relating to a person is in force, the
Commission may revoke the direction.
(2) The Commission must give the person a written notice stating that the
direction has been revoked.
(3) A revocation of a tariff filing direction takes effect:
(a) at the time when the notice of revocation is given; or
(b) if a later time is specified in the notice of revocation—at that
later time.
(1) If a tariff filing direction relating to a person is in force, the
Commission may vary the direction.
(2) The Commission must give the person a written notice setting
out:
(a) the terms of the variation; and
(b) the reasons for the variation.
(3) A variation of a tariff filing direction takes effect:
(a) at the time when the notice of variation is given; or
(b) if a later time is specified in the notice of variation—at that
later time.
(1) This section applies to a particular item of information given to the
Commission by a person (the first person) in accordance with a
tariff filing direction.
(2) If the Commission is satisfied that:
(a) the disclosure of the information would result, or be likely to
result, in a benefit to the public; and
(b) that benefit would outweigh both:
(i) the detriment to the public constituted by any lessening of
competition that would result, or be likely to result, if the information were
disclosed; and
(ii) any substantial prejudice to the commercial interests of a person
that would result, or be likely to result, if the information were
disclosed;
the Commission must give the first person a written notice stating that the
Commission intends to make copies of the information, together with copies of
the direction, available for inspection and purchase by the public.
(3) If the Commission gives the first person a notice under subsection
(2), the Commission must make copies of the information, together with copies of
the direction, available for inspection and purchase by the public:
(a) as soon as practicable after the end of the 7-day period that began
when the notice was given to the first person; or
(b) if the Commission decides that the information and direction should
not be made available during a further period of up to 14 days—after the
end of that further period.
(1) The Commission must keep a Register in relation to tariff filing
directions.
(2) The Register must include the following:
(a) particulars of all tariff filing directions (including directions that
have expired);
(b) particulars of all revocations of tariff filing directions;
(c) particulars of all variations of tariff filing directions.
(3) The Register may be maintained by electronic means.
(4) A person may, on payment of the fee (if any) specified in the
regulations:
(a) inspect the Register; and
(b) make a copy of, or take extracts from, the Register.
(5) For the purposes of this section, if the Register is maintained by
electronic means, a person is taken to have made a copy of, or taken an extract
from, the Register if the Commission gives the person a printout of, or of the
relevant parts of, the Register.
(6) If a person requests that a copy be provided in an electronic form,
the Commission may provide the relevant information:
(a) on a data processing device; or
(b) by way of electronic transmission.
A person who, in purported compliance with a tariff filing direction,
intentionally or recklessly:
(a) gives information to the Commission that is false or misleading in a
material particular; or
(b) omits from information given to the Commission any matter or thing
without which the information is misleading in a material particular;
is guilty of an offence punishable on conviction by imprisonment for a term
not exceeding 6 months.
In this Division:
terms and conditions, in relation to the supply of goods or
services, includes:
(a) charges for the supply of the goods or services; and
(b) any discounts, allowances, rebates or credits given or allowed in
relation to the supply of the goods or services; and
(c) any commissions or similar benefits (whether monetary or otherwise)
payable or given in relation to the supply of the goods or services;
and
(d) the supply of other goods or services, where the other goods or
services are supplied in connection with the first-mentioned goods or services;
and
(e) the making of payments for such other goods or services.
(1) The Commission may, by written instrument, make rules for and in
relation to requiring one or more specified carriers or one or more specified
carriage service providers to keep and retain records. Rules under this
subsection are to be known as record-keeping rules.
Note 1: Carriers and carriage service providers may be
specified by name, by inclusion in a specified class or in any other
way.
Note 2: For enforcement of the record-keeping rules, see
Division 6.
(2) The rules may specify the manner and form in which the records are to
be kept.
(3) If the rules apply to a particular carrier or carriage service
provider, the Commission must give the carrier or provider a copy of the
rules.
(4) The Commission must not exercise its powers under this section so as
to require the keeping or retention of records unless the records contain, or
will contain, information that is relevant to:
(a) ascertaining whether the competition rule has been, or is being,
complied with; or
(b) ascertaining whether tariff filing directions have been, or are being,
complied with; or
(c) the performance by the Commission of a function, or the exercise by
the Commission of a power, conferred on the Commission by or under this Part
(other than this Division); or
(d) the performance by the Commission of a function, or the exercise by
the Commission of a power, conferred on the Commission by or under Part XIC
(which deals with access); or
(e) the performance by the Commission of a function, or the exercise by
the Commission of a power, conferred on the Commission by or under Division 3 of
Part 20 of the Telecommunications Act 1996 (which deals with Rules of
Conduct relating to dealings with international telecommunications operators);
or
(f) the performance by the Commission of a function, or the exercise by
the Commission of a power, conferred on the Commission by or under Part 6 of the
Telstra Corporation Act 1991 (which deals with regulation of
Telstra’s charges).
Note: Under section 155, the Commission may require a
carrier or carriage service provider to produce a document (including a record
kept in accordance with the record-keeping rules).
(5) Record-keeping rules made before 1 July 1997 come into force
on 1 July 1997.
(1) A person must not, in purported compliance with a requirement imposed
by the record-keeping rules, make a record of any matter or thing in such a way
that it does not correctly record the matter or thing.
(2) A person who intentionally or recklessly contravenes subsection (1) is
guilty of an offence punishable on conviction by imprisonment for a term not
exceeding 6 months.
A
reference in this Division to a person involved in a contravention of the
competition rule, a tariff filing direction or a record-keeping rule is a
reference to a person who:
(a) has aided, abetted, counselled or procured the contravention;
or
(b) has induced, whether by threats or promises or otherwise, the
contravention; or
(c) has been in any way, directly or indirectly, knowingly concerned in,
or party to, the contravention; or
(d) has conspired with others to effect the contravention.
(1) If the Federal Court is satisfied that a person:
(a) has contravened the competition rule, a tariff filing direction or a
record-keeping rule; or
(b) has attempted to contravene the competition rule, a tariff filing
direction or a record-keeping rule; or
(c) has been involved in a contravention of the competition rule, a tariff
filing direction or a record-keeping rule;
the Court may order the person to pay to the Commonwealth such pecuniary
penalty, in respect of each contravention, as the Court determines to be
appropriate.
(2) In determining a pecuniary penalty, the Court must have regard to all
relevant matters, including:
(a) the nature and extent of the contravention; and
(b) the nature and extent of any loss or damage suffered as a result of
the contravention; and
(c) the circumstances in which the contravention took place; and
(d) whether the person has previously been found by the Court in
proceedings under this Act to have engaged in any similar conduct.
(3) The pecuniary penalty payable under subsection (1) by a body corporate
is not to exceed:
(a) in the case of a contravention of the competition rule—for each
contravention, the sum of $10 million and $1 million for each day that the
contravention continued; or
(b) in the case of a contravention of a tariff filing
direction—$10 million for each contravention; or
(c) in the case of a contravention of a record-keeping rule—$250,000
for each contravention.
(4) The pecuniary penalty payable under subsection (1) by a person other
than a body corporate is not to exceed:
(a) in the case of a contravention of a record-keeping rule—$50,000
for each contravention; or
(b) in any other case—$500,000 for each contravention.
(5) If conduct constitutes a contravention of:
(a) 2 or more tariff filing directions; or
(b) 2 or more record-keeping rules;
proceedings may be instituted under this Act against a person in relation
to the contravention of any one or more of the tariff filing directions or
record-keeping rules. However, the person is not liable to more than one
pecuniary penalty under this section in respect of the same conduct.
(6) If a person’s conduct gives rise to a liability to pay a
pecuniary penalty under:
(a) this Part; and
(b) Part VI;
proceedings relating to the conduct may be instituted against the person
under this Part or under Part VI. However, the person is not liable to more than
one pecuniary penalty in respect of the same conduct.
(1) The Commission may institute a proceeding in the Federal Court for the
recovery on behalf of the Commonwealth of a pecuniary penalty referred to in
section 151BX.
(2) A proceeding under subsection (1) may be commenced within 6 years
after the contravention.
(3) A proceeding under subsection (1) must not be instituted in relation
to:
(a) a contravention of the competition rule; or
(b) attempting to contravene the competition rule; or
(c) aiding, abetting, counselling or procuring a person to contravene the
competition rule; or
(d) inducing, or attempting to induce, whether by threats, promises or
otherwise, a person to contravene the competition rule; or
(e) being in any way, directly or indirectly, knowingly concerned in, or
party to, a contravention by a person of the competition rule; or
(f) conspiring with others to contravene the competition rule;
unless:
(g) in a case where paragraph (a) applies—the alleged conduct is of
a kind dealt with in a competition notice that was in force at the time when the
alleged conduct occurred; or
(h) in any other case—the alleged conduct is related to conduct of a
kind dealt with in a competition notice that was in force at the time when the
alleged conduct occurred.
(1) Criminal proceedings do not lie against a person only because the
person:
(a) has contravened the competition rule, a tariff filing direction or a
record-keeping rule; or
(b) has attempted to contravene the competition rule, a tariff filing
direction or a record-keeping rule; or
(c) has been involved in a contravention of the competition rule, a tariff
filing direction or a record-keeping rule.
(2) To avoid doubt, this section does not affect the operation of section
151BS (which deals with false or misleading tariff information).
(1) Subject to subsection (3), if the Federal Court is satisfied that a
person has engaged, or is proposing to engage, in conduct that constitutes or
would constitute:
(a) a contravention of the competition rule, a tariff filing direction or
a record-keeping rule; or
(b) attempting to contravene the competition rule, a tariff filing
direction or a record-keeping rule; or
(c) aiding, abetting, counselling or procuring a person to contravene the
competition rule, a tariff filing direction or a record-keeping rule;
or
(d) inducing, or attempting to induce, whether by threats, promises or
otherwise, a person to contravene the competition rule, a tariff filing
direction or a record-keeping rule; or
(e) being in any way, directly or indirectly, knowingly concerned in, or
party to, the contravention by a person of the competition rule, a tariff filing
direction or a record-keeping rule; or
(f) conspiring with others to contravene the competition rule, a tariff
filing direction or a record-keeping rule;
the Court may, on the application of the Commission or any other person,
grant an injunction in such terms as the Court determines to be
appropriate.
(2) If:
(a) an application for an injunction under subsection (1) has been made;
and
(b) the Court determines it to be appropriate to do so;
the Court may grant an injunction by consent of all the parties to the
proceedings, whether or not the Court is satisfied that a person has engaged, or
is proposing to engage, in conduct of a kind mentioned in subsection
(1).
(3) If, in the opinion of the Court it is desirable to do so, the Court
may grant an interim injunction pending determination of an application under
subsection (1).
(4) The Court may rescind or vary an injunction granted under subsection
(1) or (3).
(5) The power of the Court to grant an injunction restraining a person
from engaging in conduct may be exercised:
(a) whether or not it appears to the Court that the person intends to
engage again, or to continue to engage, in conduct of that kind; and
(b) whether or not the person has previously engaged in conduct of that
kind; and
(c) whether or not there is an imminent danger of substantial damage to
any person if the first-mentioned person engages in conduct of that
kind.
(6) The power of the Court to grant an injunction requiring a person to do
an act or thing may be exercised:
(a) whether or not it appears to the Court that the person intends to
refuse or fail again, or to continue to refuse or fail, to do that act or thing;
and
(b) whether or not the person has previously refused or failed to do that
act or thing; and
(c) whether or not there is an imminent danger of substantial damage to
any person if the first-mentioned person refuses or fails to do that act or
thing.
(7) If the Commission makes an application to the Court for the grant of
an injunction under this section, the Court must not require the applicant or
any other person, as a condition of granting an interim injunction, to give any
undertakings as to damages.
(8) A proceeding under this section must not be instituted by a person
other than the Commission in relation to:
(a) a contravention of the competition rule; or
(b) attempting to contravene the competition rule; or
(c) aiding, abetting, counselling or procuring a person to contravene the
competition rule; or
(d) inducing, or attempting to induce, whether by threats, promises or
otherwise, a person to contravene the competition rule; or
(e) being in any way, directly or indirectly, knowingly concerned in, or
party to, the contravention by a person of the competition rule; or
(f) conspiring with others to contravene the competition rule;
unless:
(g) in a case where paragraph (a) applies—the alleged conduct is of
a kind dealt with in a competition notice that was in force at the time when the
alleged conduct occurred; or
(h) in any other case—the alleged conduct is related to conduct of a
kind dealt with in a competition notice that was in force at the time when the
alleged conduct occurred.
(1) If, on the application of the Commission, the Federal Court is
satisfied that a person (the first person) has engaged in conduct
constituting a contravention of the competition rule, the Court may make either
or both of the following orders:
(a) an order requiring the first person, or a person involved in the
contravention, to disclose to the public, or to one or more specified persons,
in such manner as is specified in the order, specified information, where the
information is:
(i) in the possession of the first person; or
(ii) information to which the first person has access;
(b) an order requiring the first person, or a person involved in the
contravention, to publish, at the person’s own expense, in a manner and at
times specified in the order, advertisements the terms of which are specified
in, or are to be determined in accordance with, the order.
(2) Subsection (1) does not limit section 151CA.
(3) An application under subsection (1) must not be made in relation to a
contravention of the competition rule unless the alleged conduct is of a kind
dealt with in a competition notice that was in force at the time when the
alleged conduct occurred.
(1) A person who suffers loss or damage by conduct of another person that
was done in contravention of the competition rule may recover the amount of the
loss or damage by action against:
(a) that other person; or
(b) any person involved in the contravention.
(2) An action under subsection (1) may be commenced at any time within 3
years after the date on which the cause of action accrued.
(3) An action under subsection (1) must not be brought in relation to a
contravention of the competition rule unless the alleged conduct is of a kind
dealt with in a competition notice that was in force at the time when the
alleged conduct occurred.
(1) This section applies to a finding of any fact by a court made in
proceedings under section 151BY, 151CA or 151CB in which a person has been found
to have contravened, or to have been involved in a contravention of, the
competition rule or a tariff filing direction.
(2) In:
(a) a proceeding under section 151CC against the person; or
(b) an application under subsection 151CE(1) for an order against the
person;
the finding:
(c) is prima facie evidence of that fact; and
(d) may be proved by production of a document under the seal of the court
from which the finding appears.
(1) If, in a proceeding instituted under this Division in relation to a
contravention of the competition rule, the Federal Court finds that a person who
is a party to the proceeding has suffered, or is likely to suffer, loss or
damage by conduct of another person that was engaged in in contravention of the
competition rule, the Court may, on the application of a party to the
proceedings, make such orders as it thinks appropriate against:
(a) the person who engaged in the conduct; or
(b) a person who was involved in the contravention;
if the Court considers that the orders concerned will:
(c) compensate the first-mentioned person, in whole or in part, for the
loss or damage; or
(d) prevent or reduce the loss or damage.
(2) The Federal Court may make an order under subsection (1) whether or
not it:
(a) grants an injunction under section 151CA; or
(b) makes an order under section 151BX, 151CB or 151CC.
(3) Subsection (1) does not, by implication, limit section
151CA.
(4) The Federal Court’s orders include, but are not limited to, the
following:
(a) an order declaring the whole or any part of:
(i) a contract made between the person who suffered, or is likely to
suffer, the loss or damage and the person who engaged in the conduct or a person
who was involved in the contravention constituted by the conduct; or
(ii) a collateral arrangement relating to such a contract;
to be void and, if the Court thinks fit, to have been void ab
initio or at all times on and after such date before the date on which the
order is made as is specified in the order;
(b) an order varying such a contract or arrangement in such manner as is
specified in the order and, if the Court thinks fit, declaring the contract or
arrangement to have had effect as so varied on and after such date before the
date on which the order is made as is so specified;
(c) an order refusing to enforce any or all of the provisions of such a
contract or collateral arrangement;
(d) an order directing:
(i) the person who engaged in the conduct; or
(ii) a person who was involved in the contravention constituted by the
conduct;
to refund money or return property to the person who suffered the loss or
damage;
(e) an order directing:
(i) the person who engaged in the conduct; or
(ii) a person who was involved in the contravention constituted by the
conduct;
to pay to the person who suffered the loss or damage the amount of the
loss or damage;
(f) an order directing:
(i) the person who engaged in the conduct; or
(ii) a person who was involved in the contravention constituted by the
conduct;
at the person’s own expense, to supply specified goods or services
to the person who suffered, or is likely to suffer, the loss or
damage.
(5) An application under subsection (1) must not be made in relation to a
contravention of the competition rule unless the alleged conduct is of a kind
dealt with in a competition notice that was in force at the time when the
alleged conduct occurred.
(6) The powers conferred on the Federal Court by this section in relation
to a contract do not affect any powers that any other court may have in relation
to the contract in proceedings instituted in that other court in respect of the
contract.
Part 32 of the Telecommunications Act 1996 applies in relation to
proceedings under this Division in a corresponding way to the way in which it
applies to proceedings under that Act (as defined by section 558 of that
Act).
(1) This section applies to a person if:
(a) the person makes an application to the Commission for an exemption
order; or
(b) under section 151BG, the Commission gives the person an opportunity to
make a submission to the Commission about a proposal to revoke an exemption
order; or
(c) the Commission institutes a proceeding against the person under
Division 6.
(2) The Commission must, at the request of the person and on payment of
the fee (if any) specified in the regulations, give to the person:
(a) a copy of each document that has been given to, or obtained by, the
Commission in connection with the matter to which the application, proposal or
proceeding relates and tends to establish the person’s case; and
(b) a copy of any other document in the possession of the Commission that
comes to the attention of the Commission in connection with the matter and to
which the application, proposal or proceeding relates and tends to establish the
person’s case;
so long as the document is not obtained from the person or prepared by an
officer or professional adviser of the Commission.
(3) If the Commission does not comply with a request under subsection (2),
the Federal Court must, upon application by the person, make an order directing
the Commission to comply with the request. This rule has effect subject to
subsection (4).
(4) The Federal Court may refuse to make an order under subsection (3)
about a document or a part of a document if the Federal Court considers it
inappropriate to make the order on the grounds that the disclosure of the
contents of the document or part of the document would prejudice any person, or
for any other reason.
(5) Before the Federal Court gives a decision on an application under
subsection (3), the Federal Court may require any documents to be produced to it
for inspection.
(6) An order under this section may be expressed to be subject to such
conditions as are specified in the order.
This Part applies to a partnership as if the partnership was a person,
but it applies with the following changes:
(a) obligations that would be imposed on the partnership are imposed
instead on each partner, but may be discharged by any of the partners;
(b) any offence against this Part that would otherwise be committed by the
partnership is taken to have been committed by each partner who:
(i) aided, abetted, counselled or procured the relevant act or omission;
or
(ii) was in any way knowingly concerned in, or party to, the relevant act
or omission (whether directly or indirectly and whether by any act or omission
of the partner).
(1) If the Commission makes a decision under section 151BA to refuse to
make an exemption order relating to conduct of a person, the person may apply to
the Tribunal for a review of the decision.
(2) If the Commission makes a decision under section 151BG to revoke an
exemption order relating to conduct of a person, the person may apply to the
Tribunal for a review of the decision.
(3) If the Commission makes a decision under section 151BQ to make
information obtained from a person available for inspection and purchase, the
person may apply to the Tribunal for a review of the decision.
(4) An application under this section for a review of a decision must
be:
(a) in writing; and
(b) in the case of an application under subsection (1) or (2)—made
within 21 days after the Commission made the decision; and
(c) in the case of an application under subsection (3)—made within 7
days after the Commission made the decision.
(5) If the Tribunal receives an application under this section for a
review of a decision, the Tribunal must review the decision.
(1) On a review of a decision of the Commission of a kind mentioned in
section 151CI, the Tribunal may make a decision affirming, setting aside or
varying the decision of the Commission and, for the purposes of the review, may
perform all the functions and exercise all the powers of the
Commission.
(2) A decision by the Tribunal affirming, setting aside or varying a
decision of the Commission is taken for the purposes of this Act (other than
this Division) to be a decision of the Commission.
(3) For the purposes of a review by the Tribunal, the member of the
Tribunal presiding at the review may require the Commission to give such
information, make such reports and provide such other assistance to the Tribunal
as the member specifies.
(4) For the purposes of a review, the Tribunal may have regard to any
information given, documents produced or evidence given to the Commission in
connection with the making of the decision to which the review
relates.
Note: Division 2 of Part IX applies to proceedings before
the Tribunal.
Division 1 of Part IX does not apply in relation to a review by the
Tribunal of a decision of the Commission of a kind mentioned in section
151CI.
(1) The Commission must review, and report each financial year to the
Minister on, competitive safeguards within the telecommunications industry,
including:
(a) matters relating to the operation of this Part and Part XIC;
and
(b) such other matters relating to competition in the telecommunications
industry as the Commission thinks appropriate.
(2) The Commission must give a report under subsection (1) to the Minister
as soon as practicable after the end of the financial year concerned.
(3) The Commission must, if directed in writing to do so by the Minister,
review, and report to the Minister on, specified matters relating to competitive
safeguards within the telecommunications industry.
(4) The Commission must give a report under subsection (3) to the Minister
before the end of the period specified in the direction.
(5) The Minister must cause a copy of a report under this section to be
laid before each House of the Parliament within 15 sitting days of that House
after receiving the report.
(6) This section applies to a financial year ending on or after 30 June
1998.
(7) In this section:
telecommunications industry has the same meaning as in the
Telecommunications Act 1996.
(1) The Commission must monitor, and report each financial year to the
Minister on, charges paid by consumers for the following goods and
services:
(a) listed carriage services;
(b) goods for use in connection with a listed carriage service;
(c) services for use in connection with a listed carriage
service.
(2) The Commission must give a report under subsection (1) to the Minister
as soon as practicable after the end of the financial year concerned.
(3) The Minister must cause a copy of a report under subsection (1) to be
laid before each House of the Parliament within 15 sitting days of that House
after receiving the report.
(4) This section applies to a financial year ending on or after 30 June
1998.
(5) In this section:
listed carriage service has the same meaning as in the
Telecommunications Act 1996.
(1) Before 1 July 2000, the Minister must cause to be conducted a review
of the operation of this Part.
(2) In conducting the review, consideration must be given to the question
whether any or all of the provisions of this Part should be repealed or
amended.
(3) The Minister must cause to be prepared a report of the
review.
(4) The Minister must cause copies of the report to be laid before each
House of the Parliament within 15 sitting days of that House after the
completion of the preparation of the report.
The following is a simplified outline of this Part:
• This Part sets out a telecommunications
access regime.
• The Commission may declare carriage services
and related services to be declared services.
• Carriers and carriage service providers who
provide declared services are required to comply with standard access
obligations in relation to those services.
• The standard access obligations
facilitate the provision of access to declared services by service providers in
order that service providers can provide carriage services and/or content
services.
• The terms and conditions on which carriers
and carriage service providers are required to comply with the standard
access obligations are subject to agreement.
• If agreement cannot be reached, but the
carrier or carriage service provider has given an access
undertaking, the terms and conditions are as set out in the access
undertaking.
• If agreement cannot be reached, but no access undertaking is in
operation, the terms and conditions are to be determined by the Commission
acting as an arbitrator.
• An access undertaking may adopt the terms and
conditions set out in a telecommunications access
code.
• The Commission may conduct an arbitration of
a dispute about access to declared services. The Commission’s
determination on the arbitration must not be inconsistent with the standard
access obligations or an access undertaking.
• The Commission may register agreements about
access to declared services.
• A carrier, carriage service provider or
related body must not prevent or hinder access to a declared service.
Object
(1) The object of this Part is to promote the long-term interests of
end-users of carriage services or of services provided by means of carriage
services.
Promotion of the long-term interests of end-users
(2) For the purposes of this Part, in determining whether a particular
thing promotes the long-term interests of end-users of either of the following
services (the listed services):
(a) carriage services;
(b) services supplied by means of carriage services;
regard must be had to the extent to which the thing is likely to result in
the achievement of the following objectives:
(c) the objective of promoting competition in markets for listed
services;
(d) the objective of achieving any-to-any connectivity in relation to
carriage services that involve communication between end-users;
(e) the objective of encouraging the economically efficient use of, and
the economically efficient investment in, the infrastructure by which listed
services are supplied.
Subsection (2) limits matters to which regard may be had
(3) Subsection (2) is intended to limit the matters to which regard may be
had.
Promoting competition
(4) In determining the extent to which a particular thing is likely to
result in the achievement of the objective referred to in paragraph (2)(c),
regard must be had to the extent to which the thing will remove obstacles to
end-users of listed services gaining access to listed services.
Subsection (4) does not limit matters to which regard may be
had
(5) Subsection (4) does not, by implication, limit the matters to which
regard may be had.
Encouraging efficient use of infrastructure etc.
(6) In determining the extent to which a particular thing is likely to
result in the achievement of the objective referred to in paragraph (2)(e),
regard must be had to the following matters:
(a) whether it is technically feasible for the services to be supplied and
charged for, having regard to:
(i) the technology that is in use or available; and
(ii) whether the costs that would be involved in supplying, and charging
for, the services are reasonable; and
(iii) the effects, or likely effects, that supplying, and charging for,
the services would have on the operation or performance of telecommunications
networks;
(b) the legitimate commercial interests of the supplier or suppliers of
the services, including the ability of the supplier or suppliers to exploit
economies of scale and scope;
(c) the incentives for investment in the infrastructure by which the
services are supplied.
Subsection (6) does not limit matters to which regard may be
had
(7) Subsection (6) does not, by implication, limit the matters to which
regard may be had.
Achieving any-to-any connectivity
(8) For the purposes of this section, the objective of any-to-any
connectivity is achieved if, and only if, each end-user who is supplied with a
carriage service that involves communication between end-users is able to
communicate, by means of that service, with each other end-user who is supplied
with the same service or a similar service, whether or not the end-users are
connected to the same telecommunications network.
In this Part, unless the contrary intention appears:
ACA means the Australian Communications Authority.
ACCC telecommunications access code means an ACCC
telecommunications access code under Division 4.
access has the meaning given by section 152AF.
access seeker has the meaning given by section
152AG.
access undertaking means an undertaking under Division
5.
approved TAF telecommunications access code means the
approved TAF telecommunications access code under Division 4.
carriage service has the same meaning as in the
Telecommunications Act 1996, and includes a proposed carriage
service.
carriage service provider has the same meaning as in the
Telecommunications Act 1996.
carrier has the same meaning as in the Telecommunications
Act 1996.
carrier licence has the same meaning as in the
Telecommunications Act 1996.
conditional-access customer equipment means customer
equipment that:
(a) consists of or incorporates a conditional access system that allows a
service provider to determine whether an end-user is able to receive a
particular service; and
(b) either:
(i) is for use in connection with the supply of a content service;
or
(ii) is of a kind specified in the regulations.
content service has the same meaning as in the
Telecommunications Act 1996.
customer equipment has the same meaning as in the
Telecommunications Act 1996.
data processing device means any article or material (for
example, a disk) from which information is capable of being reproduced, with or
without the aid of any other article or device.
declared service has the meaning given by section
152AL.
draft TAF telecommunications access code means a draft TAF
telecommunications access code under Division 4.
facility has the same meaning as in the Telecommunications
Act 1996.
Federal Court means the Federal Court of Australia.
Ministerial pricing determination means a determination under
section 152CH.
nominated carrier has the same meaning as in the
Telecommunications Act 1996.
person includes a partnership.
Note: Section 152EN sets out additional rules about
partnerships.
service provider has the same meaning as in the
Telecommunications Act 1996.
standard access obligation has the meaning given by
section 152AR.
TAF has the meaning given by section 152AI.
telecommunications network has the same meaning as in the
Telecommunications Act 1996.
(1) The following provisions of this Act bind the Crown in right of the
Commonwealth, of each of the States, of the Australian Capital Territory and of
the Northern Territory:
(a) this Part;
(b) the other provisions of this Act so far as they relate to this
Part.
(2) This Part does not make the Crown liable to be prosecuted for an
offence.
(3) The protection in subsection (2) does not apply to an authority of the
Commonwealth or an authority of a State or Territory.
This Part, and the other provisions of this Act so far as they relate to
this Part, extend to each eligible Territory (within the meaning
of the Telecommunications Act 1996).
(1) A reference in this Part to access, in relation to a
declared service, is a reference to access by a service provider in order that
the service provider can provide carriage services and/or content
services.
(2) For the purposes of this Part, anything done by a carrier or carriage
service provider in fulfilment of a standard access obligation is taken to be an
aspect of access to a declared service.
(1) This section sets out the circumstances in which a person is taken to
be an access seeker in relation to a declared service for the
purposes of this Part.
(2) A service provider is an access seeker in relation to a
declared service if the provider makes, or proposes to make, a request in
relation to that service under section 152AR (which deals with the standard
access obligations), whether or not:
(a) the request is refused; or
(b) the request is being complied with.
(3) A service provider is an access seeker in relation to a
declared service if:
(a) the provider wants access to the service; or
(b) the provider wants to change some aspect of the provider’s
existing access to the service; or
(c) the supplier of the service wants to change some aspect of the
provider’s existing access to the service.
(1) For the purposes of this Part, in determining whether particular terms
and conditions are reasonable, regard must be had to the following
matters:
(a) whether the terms and conditions promote the long-term interests of
end-users of carriage services or of services supplied by means of carriage
services;
(b) the legitimate business interests of the carrier or carriage service
provider concerned, and the carrier’s or provider’s investment in
facilities used to supply the declared service concerned;
(c) the interests of persons who have rights to use the declared service
concerned;
(d) the direct costs of providing access to the declared service
concerned;
(e) the operational and technical requirements necessary for the safe and
reliable operation of a carriage service, a telecommunications network or a
facility;
(f) the economically efficient operation of a carriage service, a
telecommunications network or a facility.
(2) Subsection (1) does not, by implication, limit the matters to which
regard may be had.
(1) The Commission may, by notice in the Gazette, declare a
specified body or association to be the Telecommunications Access Forum (the
TAF) for the purposes of this Part if:
(a) the membership of the body or association is open to all carriers and
carriage service providers; and
(b) the body or association is capable of generating recommendations
relating to declarations under section 152AL; and
(c) the body or association is capable of generating a draft
telecommunications access code; and
(d) the body or association has a written constitution.
(2) The declaration has effect accordingly.
In determining the meaning of a provision of Part IIIA, the provisions of
this Part (other than section 152CK) are to be ignored.
This Part does not affect the operation of Parts IV and VII.
Eligible service
(1) For the purposes of this section, an eligible service
is:
(a) a listed carriage service (within the meaning of the
Telecommunications Act 1996); or
(b) a service that facilitates the supply of a listed carriage service
(within the meaning of that Act);
where the service is supplied, or is capable of being supplied, by a
carrier or a carriage service provider (whether to itself or to other
persons).
Declaration made on recommendation of TAF
(2) The Commission may, by written instrument, declare that a specified
eligible service is a declared service if:
(a) the declaration is in accordance with a recommendation of the TAF;
and
(b) the Commission is satisfied that the TAF has given representatives of
persons who are likely to be access seekers in relation to the eligible service
a reasonable opportunity to comment on a proposal to make the recommendation;
and
(c) the Commission is satisfied that the TAF has given representatives of
consumers a reasonable opportunity to comment on a proposal to make the
recommendation.
Note: Eligible services may be specified by name, by
inclusion in a specified class or in any other way.
Declaration made after public inquiry
(3) The Commission may, by written instrument, declare that a specified
eligible service is a declared service if:
(a) the Commission has held a public inquiry under Part 25 of the
Telecommunications Act 1996 about a proposal to make the declaration;
and
(b) the Commission has prepared a report about the inquiry under section
489 of the Telecommunications Act 1996; and
(c) the report was published during the 180-day period ending 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.
Note: Eligible services may be specified by name, by
inclusion in a specified class or in any other way.
Declaration has effect
(4) A declaration under this section has effect accordingly.
Gazettal of declaration
(5) A copy of a declaration under this section is to be published in the
Gazette.
Related services
(6) A reference in paragraph (1)(b) to a service that facilitates the
supply of a carriage service does not include a reference to the use of
intellectual property except to the extent that it is an integral but subsidiary
part of the first-mentioned service.
(1) This section applies to a public inquiry of a kind mentioned in
paragraph 152AL(3)(a).
(2) The Commission may hold the inquiry:
(a) on its own initiative; or
(b) if requested in writing to do so by a person.
(3) If the Commission decides not to hold a public inquiry that a person
has requested under paragraph (2)(b), the Commission must notify the person in
writing of the decision and of the reasons for the decision.
(4) The Commission must give the ACA and the TAF a copy of the report
about the inquiry prepared in accordance with section 489 of the
Telecommunications Act 1996.
(5) If the inquiry is held at the request of a person, the Commission must
give the person a copy of the report about the inquiry prepared under section
489 of the Telecommunications Act 1996.
(1) The Commission may decide to combine 2 or more public inquiries of a
kind mentioned in paragraph 152AL(3)(a).
(2) If the Commission makes such a decision:
(a) the Commission may publish a single notice relating to the combined
inquiry under section 482 of the Telecommunications Act 1996;
and
(b) the Commission may prepare a single discussion paper about the
combined inquiry under section 483 of that Act; and
(c) the Commission may hold hearings relating to the combined inquiry
under section 485 of that Act; and
(d) the Commission must prepare a single report relating to the combined
inquiry under section 489 of that Act.
(1) Subsection 33(3) of the Acts Interpretation Act 1901 applies to
a power conferred on the Commission by section 152AL, but it applies with the
following changes.
(2) The Commission must not vary or revoke a declaration under subsection
152AL(2) unless the Commission has held a public inquiry under Part 25 of the
Telecommunications Act 1996 about the proposed variation or revocation.
However, this rule does not apply to a variation if the variation is of a minor
nature.
(3) If a variation of a declaration under subsection 152AL(3) is of a
minor nature, the Commission is not required to hold a public inquiry under Part
25 of the Telecommunications Act 1996 about the proposed
variation.
(1) This section applies to a public inquiry of a kind mentioned in
subsection 152AO(2).
(2) The Commission must give the ACA and the TAF a copy of the report
about the inquiry prepared in accordance with section 489 of the
Telecommunications Act 1996.
(1) The Commission must keep a Register in relation to declarations under
section 152AL.
(2) The Register must include the following:
(a) particulars of all such declarations (including declarations that have
been revoked);
(b) particulars of variations and revocations of such
declarations;
(c) copies of reports prepared in accordance with section 489 of the
Telecommunications Act 1996 in relation to inquiries mentioned in
paragraph 152AL(3)(a) or subsection 152AO(2) of this Act.
(3) The Register may be maintained by electronic means.
(4) A person may, on payment of the fee (if any) specified in the
regulations:
(a) inspect the Register; and
(b) make a copy of, or take extracts from, the Register.
(5) For the purposes of this section, if the Register is maintained by
electronic means, a person is taken to have made a copy of, or taken an extract
from, the Register if the Commission gives the person a printout of, or of the
relevant parts of, the Register.
(6) If a person requests that a copy be provided in an electronic form,
the Commission may provide the relevant information:
(a) on a data processing device; or
(b) by way of electronic transmission.
(1) This section sets out the standard access
obligations.
Access provider and active declared services
(2) For the purposes of this section, if a carrier or a carriage service
provider supplies declared services, whether to itself or to other
persons:
(a) the carrier or provider is an access provider;
and
(b) the declared services are active declared
services.
Supply of active declared service to service provider
(3) An access provider must, if requested to do so by a service
provider:
(a) supply an active declared service to the service provider in order
that the service provider can provide carriage services and/or content services;
and
(b) take all reasonable steps to ensure that the technical and operational
quality of the active declared service supplied to the service provider is
equivalent to that which the access provider provides to itself; and
(c) take all reasonable steps to ensure that the service provider
receives, in relation to the active declared service supplied to the service
provider, fault detection, handling and rectification of a technical and
operational quality and timing that is equivalent to that which the access
provider provides to itself.
Limit on paragraph (3)(a) obligation
(4) Paragraph (3)(a) 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 access provider from obtaining a sufficient amount of
the service to be able to meet the access provider’s reasonably
anticipated requirements, measured at the time when the request was
made;
(c) preventing a person from obtaining, by the exercise of a pre-request
right, a sufficient level of access to the declared service to be able to meet
the person’s actual requirements;
(d) depriving any person of a protected contractual right.
Interconnection of facilities
(5) If an access provider:
(a) owns or controls one or more facilities; or
(b) is a nominated carrier in relation to one or more
facilities;
the access provider must, if requested to do so by a service
provider:
(c) permit interconnection of those facilities with the facilities of the
service provider for the purpose of enabling the service provider to be supplied
with active 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:
(i) the technical and operational quality and timing of the
interconnection is equivalent to that which the access provider provides to
itself; and
(ii) if a standard is in force under section 369 of the
Telecommunications Act 1996—the interconnection complies with the
standard; and
(e) take all reasonable steps to ensure that the service provider
receives, in relation to the interconnection, fault detection, handling and
rectification of a technical and operational quality and timing that is
equivalent to that which the access provider provides to itself.
Provision of billing information
(6) If a service provider uses active declared services supplied by an
access provider in accordance with subsection (3), the access provider must, if
requested to do so by the service provider, give the service provider billing
information in connection with matters associated with, or incidental to, the
supply of those active declared services.
Timing and content of billing information
(7) The billing information referred to in subsection (6) must:
(a) be given at such times or intervals as are ascertained in accordance
with the regulations; and
(b) be given in a manner and form ascertained in accordance with the
regulations; and
(c) set out such particulars as are ascertained in accordance with the
regulations.
Conditional-access customer equipment
(8) If an access provider supplies an active declared service by means of
conditional-access customer equipment, the access provider must, if requested to
do so by a service provider who has made a request referred to in subsection
(3), 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 active declared service and using the equipment.
Exceptions
(9) This section does not impose an obligation on an access provider 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 access provider complies, or on which the
access provider 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 (9)(a) grounds
(10) Examples of grounds for believing as mentioned in paragraph (9)(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 access provider).
Starting date for obligations
(11) An obligation imposed by this section does not arise before 1 July
1997.
Definitions
(12) In this section:
pre-request right, in relation to a request made for the
purposes of paragraph (3)(a), means a right under a contract, or under a
determination (within the meaning of Division 8), that was in force at the time
when the request was made.
protected contractual right means a right under a contract
that was in force at the beginning of 13 September 1996.
(1) The Commission may, by written instrument, determine that each of the
members of a specified class of carrier or of a specified class of carriage
service provider are exempt from any or all of the obligations referred to in
section 152AR.
(2) A determination under this section may be unconditional or subject to
such conditions or limitations as are specified in the determination.
(3) A determination under this section has effect accordingly.
(4) The Commission must not make a determination under this section unless
the Commission is satisfied that the making of the determination will promote
the long-term interests of end-users of carriage services or of services
supplied by means of carriage services.
(5) If, in the Commission’s opinion, the making of a determination
under this section is likely to have a material effect on the interests of a
person, then, before making the determination, the Commission must
first:
(a) publish a draft of the determination and invite people to make
submissions to the Commission on the question of whether the draft determination
should be made; and
(b) consider any submissions that were received within the time limit
specified by the Commission when it published the draft determination.
(6) An instrument under subsection (1) is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
(1) A carrier or a carriage service provider may apply to the Commission
for a written order exempting the carrier or provider from all or any of the
obligations referred to in section 152AR.
(2) An application under subsection (1) must be:
(a) in writing; and
(b) in a form approved in writing by the Commission for the purposes of
this paragraph.
(3) After considering the application, the Commission must:
(a) make a written order exempting the applicant from one or more of the
obligations referred to in section 152AR; or
(b) refuse the application.
(4) The Commission must not make an order under paragraph (3)(a) unless
the Commission is satisfied that the making of the order will promote the
long-term interests of end-users of carriage services or of services provided by
means of carriage services.
(5) An order under paragraph (3)(a) may be unconditional or subject to
such conditions or limitations as are specified in the order.
(6) An order under paragraph (3)(a) has effect accordingly.
(7) An order under paragraph (3)(a) may be expressed to come into
effect:
(a) immediately after it is made; or
(b) on a later date specified in the order.
(8) An order under paragraph (3)(a) may specify an expiry date for the
order. If an order expires, this Part does not prevent the Commission from
making a fresh order under paragraph (3)(a) in the same terms as the expired
order.
(9) If, in the Commission’s opinion, the making of an order under
paragraph (3)(a) is likely to have a material effect on the interests of a
person, then, before making the order, the Commission must first:
(a) publish the application for the order and invite people to make
submissions to the Commission on the question of whether the order should be
made; and
(b) consider any submissions that were received within the time limit
specified by the Commission when it published the application.
(10) If the Commission makes a decision refusing an application under
subsection (1), the Commission must give the applicant a written statement
setting out the reasons for the refusal.
(1) This section applies to an application under subsection
152AT(1).
(2) The Commission may request the applicant to give the Commission
further information about the application.
(3) The Commission may refuse to consider the application until the
applicant gives the Commission the information.
(1) A person whose interests are affected by a decision of the Commission
under section 152AT may apply in writing to the Tribunal for a review of the
decision.
(2) The application must be made within 21 days after the Commission made
the decision.
(3) The Tribunal must review the decision.
(1) On a review of a decision of the Commission under section 152AT,
the Tribunal may make a decision affirming, setting aside or varying the
decision of the Commission and, for the purposes of the review, may perform all
the functions and exercise all the powers of the Commission.
(2) A decision by the Tribunal affirming, setting aside or varying a
decision of the Commission is taken, for the purposes of this Act (other than
this Division), to be a decision of the Commission.
(3) For the purposes of a review by the Tribunal, the member of the
Tribunal presiding at the review may require the Commission to give such
information, make such reports and provide such other assistance to the Tribunal
as the member specifies.
(4) For the purposes of a review, the Tribunal may have regard to any
information given, documents produced or evidence given to the Commission in
connection with the making of the decision to which the review
relates.
Note: Division 2 of Part IX applies to proceedings before
the Tribunal.
Division 1 of Part IX does not apply in relation to a review by the
Tribunal of a decision made by the Commission under
section 152AT.
(1) This section applies if a carrier or carriage service provider is
required to comply with any or all of the standard access obligations.
(2) The carrier or carriage service provider must comply with the
obligations:
(a) on such terms and conditions as are agreed between the following
parties:
(i) the carrier or carriage service provider, as the case
requires;
(ii) the access seeker; or
(b) failing agreement:
(i) if an access undertaking given by the carrier or carriage service
provider is in operation and specifies terms and conditions about a particular
matter—on such terms and conditions relating to that matter as are set out
in the undertaking; or
(ii) if an access undertaking given by the carrier or carriage service
provider is in operation, but the undertaking does not specify terms and
conditions about a particular matter—on such terms and conditions relating
to that matter as are determined by the Commission under Division 8 (which
deals with arbitration of disputes about access); or
(iii) if there is no such undertaking—on such terms and conditions
as are determined by the Commission under Division 8 (which deals with
arbitration of disputes about access).
Note: An agreement mentioned in paragraph (a) may be
registered under Division 9.
A carrier licence held by a carrier is subject to a condition that the
carrier must comply with any standard access obligations that are applicable to
the carrier.
(1) In addition to the rules mentioned in section 97 of the
Telecommunications Act 1996, the rule set out in subsection (2) of this
section is a service provider rule for the purposes of that Act.
(2) A carriage service provider must comply with any standard access
obligations that are applicable to the provider.
(1) If the Federal Court is satisfied that a carrier or carriage service
provider has contravened any of the standard access obligations that are
applicable to the carrier or provider, 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:
(c) an order directing the carrier or provider to comply with the
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.
(2) The Federal Court may discharge or vary an order granted under this
section.
(1) The TAF may give the Commission a draft TAF telecommunications access
code.
(2) The draft code must be in writing.
(3) A draft code may be expressed to replace the approved TAF
telecommunications access code.
(1) A draft or approved TAF telecommunications access code must set out
model terms and conditions:
(a) relating to compliance with the standard access obligations;
and
(b) that are capable of being adopted by access undertakings.
(2) Different sets of model terms and conditions may be set out
for:
(a) different kinds of obligations; or
(b) the same kind of obligation in so far as it applies to different kinds
of declared services.
(3) The code must be consistent with the standard access
obligations.
(1) This section applies if the TAF gives the Commission a draft TAF
telecommunications access code.
(2) The Commission must:
(a) approve the draft code; or
(b) refuse to approve the draft code.
(3) If the Commission approves a draft TAF telecommunications access code,
the code becomes the approved TAF telecommunications access
code.
(4) The Commission must ensure that not more than one code is in force at
a particular time.
The Commission must not approve a draft TAF telecommunications access
code unless the Commission is satisfied that:
(a) the TAF has carried out a process of consultation on the code with
representatives of persons who are likely to become access seekers in relation
to the declared services covered by the code; and
(b) the TAF has carried out a process of consultation on the code with
representatives of consumers; and
(c) the code is consistent with the standard access obligations;
and
(d) if any part of the code deals with price or a method of ascertaining
price—the code is consistent with any Ministerial pricing determination;
and
(e) each set of model terms and conditions set out in the code is
reasonable.
Note: Section 152AH contains a list of matters to be taken
into account in determining whether terms and conditions are
reasonable.
(1) After deciding whether to approve a draft TAF telecommunications
access code, the Commission must notify the TAF and the ACA in writing of the
decision.
(2) If the Commission refuses to approve a draft TAF telecommunications
access code, the Commission must notify the TAF in writing of the
Commission’s reasons for the refusal.
The Commission must not approve a TAF telecommunications access code
unless the Commission has first:
(a) published the draft code and invited people to make submissions to the
Commission on the draft code; and
(b) considered any submissions that were received within the time limit
specified by the Commission when it published the draft code.
Before deciding whether to approve a draft TAF telecommunications access
code, the Commission must consult the ACA.
(1) If:
(a) an approved TAF telecommunications access code (the current
code) is in force at a particular time; and
(b) the Commission is satisfied that, if it were assumed that the TAF were
to give the Commission a draft TAF telecommunications access code in the same
terms as the current code, the Commission would refuse to approve that code;
and
(c) the Commission gives the TAF a written notice setting out the
Commission’s reasons for being satisfied as mentioned in paragraph (b)
and:
(i) requesting the TAF to give the Commission, within the period specified
in the notice, a variation of the current code; or
(ii) requesting the TAF to give the Commission, within the period
specified in the notice, a fresh draft TAF telecommunications access code that
is expressed to replace the current code; and
(d) either:
(i) the TAF does not comply with the request; or
(ii) the TAF complies with the request, but, under section 152BE or
152BQ, the Commission subsequently refuses to approve the variation or the fresh
code, as the case may be;
the Commission may, by written instrument:
(e) revoke the current code; and
(f) make a telecommunications access code.
The code made by the Commission is to be known as an ACCC
telecommunications access code.
(2) If:
(a) no approved TAF telecommunications access code is in force at a
particular time; and
(b) the Commission gives the TAF a written notice requesting the TAF to
give the Commission, within the period specified in the notice, a draft TAF
telecommunications access code; and
(c) either:
(i) the TAF does not comply with the request; or
(ii) the TAF complies with the request, but, under section 152BE, the
Commission subsequently refuses to approve the draft code;
the Commission may, by written instrument, make a telecommunications access
code. The code made by the Commission is to be known as an ACCC
telecommunications access code.
(3) A period specified in a notice as mentioned in paragraph (1)(c) or
(2)(b):
(a) must run for at least 30 days; and
(b) must not exceed 180 days.
(4) An ACCC telecommunications access code is a disallowable instrument
for the purposes of section 46A of the Acts Interpretation Act
1901.
(5) The Commission must ensure that not more than one code is in force at
a particular time.
Note: Under section 152BO, if an ACCC telecommunications
access comes into force, this Part has effect as if that code were the approved
TAF telecommunications access code.
(1) An ACCC telecommunications access code must set out model terms and
conditions:
(a) relating to compliance with the standard access obligations;
and
(b) that are capable of being adopted by access undertakings.
(2) Different sets of model terms and conditions may be set out
for:
(a) different kinds of obligations; or
(b) the same kind of obligation in so far as it applies to different kinds
of declared services.
(3) The Commission must not make an ACCC telecommunications access code
unless the Commission is satisfied that:
(a) the code is consistent with the standard access obligations;
and
(b) if any part of the code deals with price or a method of ascertaining
price—the code is consistent with any Ministerial pricing determination;
and
(c) each set of model terms and conditions set out in the code is
reasonable.
Note: Section 152AH contains a list of matters to be taken
into account in determining whether terms and conditions are
reasonable.
The Commission must not make an ACCC telecommunications access code
unless the Commission has first:
(a) published the code and invited people to make submissions to the
Commission on the code; and
(b) considered any submissions that were received within the time limit
specified by the Commission when it published the code.
Before making an ACCC telecommunications access code, the Commission must
consult the ACA.
If the Commission makes an ACCC telecommunications access code, the
Commission must give the TAF and the ACA a copy of the code.
If an ACCC telecommunications access code is made at a particular time,
this Part (other than sections 152BD to 152BI (inclusive)) has effect as if that
code were an approved TAF telecommunications access code that had been approved
at that time.
The approved TAF telecommunications access code comes into force when it
is approved and remains in force until:
(a) a fresh approved TAF telecommunications access code that is expressed
to replace the first-mentioned code comes into force; or
(b) the first-mentioned code is revoked.
(1) The TAF may, with the approval of the Commission, vary the approved
TAF telecommunications access code.
(2) The TAF may, with the approval of the Commission, revoke the approved
TAF telecommunications access code.
(3) The Commission must not give an approval under this section unless the
Commission has first:
(a) published a proposal to give the approval and invited people to make
submissions to the Commission on the proposal; and
(b) considered any submissions that were received within the time limit
specified by the Commission when it published the proposal.
(1) The Commission must maintain a Register that includes:
(a) all approved TAF telecommunications access codes (including those that
are no longer in force); and
(b) all approved variations of approved TAF telecommunications access
codes.
(2) The Register may be maintained by electronic means.
(3) A person may, on payment of the fee (if any) specified in the
regulations:
(a) inspect the Register; and
(b) make a copy of, or take extracts from, the Register.
(4) For the purposes of this section, if the Register is maintained by
electronic means, a person is taken to have made a copy of, or taken an extract
from, the Register if the Commission gives the person a printout of, or of the
relevant parts of, the Register.
(5) If a person requests that a copy be provided in an electronic form,
the Commission may provide the relevant information:
(a) on a data processing device; or
(b) by way of electronic transmission.
(1) For the purposes of this Part, an access undertaking is
a written undertaking given by a carrier or a carriage service provider to the
Commission under which the carrier or provider undertakes to comply with the
terms and conditions specified in the undertaking in relation to the applicable
standard access obligations.
(2) For the purposes of subsection (1), the applicable standard
access obligations are the standard access obligations that are
applicable to the carrier or provider.
(3) The text of the terms and conditions may be specified in the
undertaking.
(4) Alternatively, the terms and conditions may be specified by adopting a
set of model terms and conditions set out in the approved TAF telecommunications
access code, as in force from time to time.
(5) The terms and conditions must not be specified by a combination of the
methods described in subsections (3) and (4). However, this rule does not
prevent the carrier or provider from giving 2 separate undertakings in relation
to the same declared service, where one undertaking specifies some of the terms
and conditions using the method described in subsection (3) and the other
undertaking specifies other terms and conditions using the method described in
subsection (4).
(6) The undertaking must be in a form approved in writing by the
Commission.
(7) If the undertaking specifies terms and conditions using the method
described in subsection (3), the undertaking must specify the expiry time of the
undertaking.
(8) The expiry time of the undertaking may be described by reference to
the end of a period beginning when the undertaking comes into
operation.
(9) Subsection (8) does not, by implication, limit subsection
(7).
(10) The terms and conditions specified in an undertaking may be expressed
to come into effect:
(a) immediately after the undertaking is accepted by the Commission;
or
(b) at a later time ascertained in accordance with the
undertaking.
(1) This section applies if an access undertaking is given to the
Commission by a carrier or a carriage service provider.
(2) The Commission may request the carrier or provider to give the
Commission further information about the undertaking.
(3) The Commission may refuse to consider the undertaking until the
carrier or provider gives the Commission the information.
(1) This section applies if an access undertaking is given to the
Commission by a carrier or carriage service provider.
(2) After considering the undertaking, the Commission must:
(a) accept the undertaking; or
(b) reject the undertaking.
(3) If the Commission accepts the access undertaking, the Commission must
give the carrier or provider a written notice stating that the undertaking has
been accepted.
(4) If the Commission rejects the access undertaking, the Commission must
give the carrier or provider a written notice:
(a) stating that the undertaking has been rejected; and
(b) setting out the reasons for the rejection.
(1) This section applies if:
(a) an access undertaking is given to the Commission by a carrier or a
carriage service provider; and
(b) the undertaking does not adopt a set of model terms and conditions set
out in the approved TAF telecommunications access code.
(2) The Commission must not accept the undertaking unless:
(a) the Commission has:
(i) published the undertaking and invited people to make submissions to
the Commission on the undertaking; and
(ii) considered any submissions that were received within the time limit
specified by the Commission when it published the undertaking; and
(b) the Commission is satisfied that the undertaking is consistent with
the standard access obligations that are applicable to the carrier or provider;
and
(c) if the undertaking deals with price or a method of ascertaining
price—the Commission is satisfied that the undertaking is consistent with
any Ministerial pricing determination; and
(d) the Commission is satisfied that the terms and conditions specified in
the undertaking are reasonable; and
(e) the expiry time of the undertaking occurs within 3 years after the
date on which the undertaking comes into operation.
Note: Section 152AH contains a list of matters to be taken
into account in determining whether terms and conditions are
reasonable.
(1) This section applies if:
(a) an access undertaking is given to the Commission by a carrier or a
carriage service provider; and
(b) the undertaking adopts a set of model terms and conditions set out in
the approved TAF telecommunications access code.
(2) The Commission must accept the undertaking.
(1) This section applies if an access undertaking is given to the
Commission.
(2) If the Commission accepts the undertaking:
(a) the undertaking comes into operation:
(i) if the terms and conditions specified in the undertaking are expressed
to come into effect immediately after the undertaking is accepted by the
Commission—at the time of acceptance; or
(ii) if the terms and conditions specified in the undertaking are
expressed to come into effect at a later time ascertained in accordance with the
undertaking—at that later time; and
(b) the undertaking continues in operation until:
(i) in the case of an undertaking that specifies an expiry time—the
expiry time; or
(ii) in the case of an undertaking that adopts a set of model terms and
conditions set out in the approved TAF telecommunications access code—the
code is revoked or is varied so as to omit that set of terms and conditions;
or
(iii) in any case—the undertaking is withdrawn as mentioned in
section 152CA or 152CB.
(1) This section applies if an access undertaking given by a carrier or a
carriage service provider is in operation.
(2) The carrier or provider may give the Commission a variation of the
undertaking.
(3) After considering the variation, the Commission must decide
to:
(a) accept the variation; or
(b) reject the variation.
(4) Sections 152BV and 152BW apply to the variation in a corresponding way
to the way in which they apply to an undertaking. However, if the variation is
of a minor nature, the Commission is not required to comply with paragraph
152BV(2)(a) in relation to the variation.
(5) If the Commission accepts the variation, the Commission must give the
carrier or provider a written notice:
(a) stating that the variation has been accepted; and
(b) setting out the terms of the variation.
(6) If the Commission rejects the variation, the Commission must give the
carrier or provider a written notice:
(a) stating that the variation has been rejected; and
(b) setting out the reasons for the rejection.
(1) This section applies if the carrier or carriage service provider gives
the Commission a variation of an access undertaking.
(2) The Commission may request the carrier or provider to give the
Commission further information about the variation.
(3) The Commission may refuse to consider the variation until the carrier
or provider gives the Commission the information.
(1) This section applies if an access undertaking given by a carrier or a
carriage service provider is in operation.
(2) The carrier or provider may, by written notice given to the
Commission, withdraw the undertaking.
(1) This section applies if an access undertaking (the current
undertaking) given by a carrier or a carriage service provider is in
operation.
(2) The carrier or provider may give to the Commission an access
undertaking that is expressed to replace the current undertaking.
(3) If the Commission accepts the replacement undertaking under section
152BU, the current undertaking is taken to have been withdrawn immediately
before the time when the replacement undertaking comes into operation.
(1) The Commission is to maintain a Register in which the Commission
includes:
(a) all access undertakings that have been accepted by the Commission
(including those that are no longer in operation); and
(b) all variations of access undertakings.
(2) The Register may be maintained by electronic means.
(3) A person may, on payment of the fee (if any) specified in the
regulations:
(a) inspect the Register; and
(b) make a copy of, or take extracts from, the Register.
(4) For the purposes of this section, if the Register is maintained by
electronic means, a person is taken to have made a copy of, or taken an extract
from, the Register if the Commission gives the person a printout of, or of the
relevant parts of, the Register.
(5) If a person requests that a copy be provided in an electronic form,
the Commission may provide the relevant information:
(a) on a data processing device; or
(b) by way of electronic transmission.
(1) This section applies if an access undertaking given by a carrier or
carriage service provider is in operation.
(2) If:
(a) the Commission; or
(b) any person whose interests are affected by the undertaking;
thinks that the carrier or provider has breached the access undertaking,
the Commission or person may apply to the Federal Court for an order under
subsection (3).
(3) If the Federal Court is satisfied that the carrier or provider has
breached the undertaking, the Court may make all or any of the following
orders:
(a) an order directing the carrier or provider to comply with the
undertaking;
(b) an order directing the carrier or provider to compensate any other
person who has suffered loss or damage as a result of the breach;
(c) any other order that the Court thinks appropriate.
(4) The Federal Court may discharge or vary an order granted under this
section.
(1) A person whose interests are affected by a decision of the Commission
under subsection 152BU(2) or 152BY(3) may apply in writing to the Tribunal for a
review of the decision.
(2) The application must be made within 21 days after the Commission made
the decision.
(3) The Tribunal must review the decision.
(1) On a review of a decision of the Commission under subsection 152BU(2)
or 152BY(3), the Tribunal may make a decision affirming, setting aside or
varying the decision of the Commission and, for the purposes of the review, may
perform all the functions and exercise all the powers of the
Commission.
(2) A decision by the Tribunal affirming, setting aside or varying a
decision of the Commission is taken, for the purposes of this Act (other than
this Division), to be a decision of the Commission.
(3) For the purposes of a review by the Tribunal, the member of the
Tribunal presiding at the review may require the Commission to give such
information, make such reports and provide such other assistance to the Tribunal
as the member specifies.
(4) For the purposes of a review, the Tribunal may have regard to any
information given, documents produced or evidence given to the Commission in
connection with the making of the decision to which the review
relates.
Note: Division 2 of Part IX applies to proceedings before
the Tribunal.
Division 1 of Part IX does not apply in relation to a review by the
Tribunal of a decision made by the Commission under subsection 152BU(2) or
152BY(3).
(1) The Minister may make a written determination setting out principles
dealing with price-related terms and conditions relating to the standard access
obligations. The determination is to be known as a Ministerial pricing
determination.
Note 1: Section 152BF provides that the Commission must not
approve a TAF telecommunications access code dealing with price or a method of
ascertaining price unless the code is consistent with any Ministerial pricing
determination.
Note 2: Subsection 152BK(3) provides that the Commission
must not make an ACCC telecommunications access code unless the code is
consistent with any Ministerial pricing determination.
Note 3: Subsection 152BV(2) provides that the Commission
must not accept an access undertaking dealing with price or a method of
ascertaining price unless the undertaking is consistent with any Ministerial
pricing determination.
Note 4: Subsection 152CI(1) provides that a provision of an
access undertaking has no effect to the extent that the provision is
inconsistent with any Ministerial pricing determination.
Note 5: Subsection 152CI(2) provides that a provision of the
approved TAF telecommunications access code has no effect to the extent that the
provision is inconsistent with any Ministerial pricing
determination.
Note 6: Subsection 152CQ(6) provides that the Commission
must not make a determination under Division 8 that is inconsistent with any
Ministerial pricing determination.
(2) A determination under subsection (1) is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
(3) In this section:
price-related terms and conditions means terms and conditions
relating to price or a method of ascertaining price.
(1) If a provision of an access undertaking is inconsistent with any
Ministerial pricing determination, the provision has no effect to the extent of
the inconsistency.
(2) If a provision of the approved TAF telecommunications access code is
inconsistent with any Ministerial pricing determination, the provision has no
effect to the extent of the inconsistency.
(1) The Commission must keep a Register of Ministerial pricing
determinations.
(2) The Register may be maintained by electronic means.
(3) A person may, on payment of the fee (if any) specified in the
regulations:
(a) inspect the Register; and
(b) make a copy of, or take extracts from, the Register.
(4) For the purposes of this section, if the Register is maintained by
electronic means, a person is taken to have made a copy of, or taken an extract
from, the Register if the Commission gives the person a printout of, or of the
relevant parts of, the Register.
(5) If a person requests that a copy be provided in an electronic form,
the Commission may provide the relevant information:
(a) on a data processing device; or
(b) by way of electronic transmission.
(1) A notification must not be given under section 44S in relation to an
access dispute if:
(a) the dispute relates to one or more aspects of access to a declared
service (within the meaning of this Part); and
(b) the third party referred to in that section is a service provider
(within the meaning of this Part).
(2) The Commission must not accept an undertaking under section 44ZZA
that relates to a declared service (within the meaning of this Part) if the
terms and conditions set out in the undertaking relate to the provision of
access to one or more service providers (within the meaning of this
Part).
(3) If:
(a) an undertaking under section 44ZZA is in operation in relation to a
particular service; and
(b) at a particular time, the service becomes a declared service (within
the meaning of this Part);
the undertaking ceases to be in operation to the extent (if any) to which
it sets out terms and conditions relating to the provision of access to one or
more service providers (within the meaning of this Part).
In this Division, unless the contrary intention appears:
determination means a determination made by the Commission
under this Division.
party means:
(a) in relation to an arbitration of an access dispute—a party to
the arbitration, as mentioned in section 152CO; or
(b) in relation to a determination—a party to the arbitration in
which the Commission made the determination.
(1) If:
(a) a declared service is supplied, or proposed to be supplied, by a
carrier or a carriage service provider; and
(b) one or more standard access obligations apply, or will apply, to the
carrier or provider in relation to the declared service; and
(c) an access seeker is unable to agree with the carrier or provider about
the terms and conditions on which the carrier or provider is to comply with
those obligations;
then:
(d) the access seeker; or
(e) the carrier or provider;
may notify the Commission in writing that an access dispute
exists.
(2) If:
(a) a declared service is supplied, or proposed to be supplied, by a
carrier or a carriage service provider; and
(b) one or more standard access obligations apply, or will apply, to the
carrier or provider in relation to the declared service; and
(c) an access seeker is unable to agree with the carrier or provider about
one or more aspects of access to the declared service;
then:
(d) the access seeker; or
(e) the carrier or provider;
may notify the Commission in writing that an access dispute
exists.
(3) For the purposes of paragraph (2)(b), it is to be assumed that
subsection 152AR(4) had not been enacted.
(4) Subsection (2) only authorises the notification of a dispute to the
extent that the dispute cannot be notified under subsection (1).
(5) The following are examples of things on which an access seeker and a
carrier or provider might disagree:
(a) the price, or the method of ascertaining the price, at which access is
to be provided;
(b) whether a previous determination ought to be varied.
(6) On receiving the notification, the Commission must give written notice
of the access dispute to:
(a) the carrier or provider, if the access seeker notified the access
dispute; and
(b) the access seeker, if the carrier or provider notified the access
dispute; and
(c) if the Commission is of the opinion that the resolution of the access
dispute may involve requiring another person to do something—that other
person; and
(d) any other person who the Commission thinks might want to become a
party to the arbitration.
(7) Unless the contrary intention appears, for the purposes of the
application of this Division to a particular access dispute, a reference in this
Division to the carrier or to the provider is a reference to the carrier or to
the provider, as the case may be, referred to in whichever of subsections (1)
and (2) is applicable.
(1) A notification may be withdrawn as follows (and not
otherwise):
(a) if the carrier or provider notified the dispute:
(i) the carrier or provider may withdraw the notification at any time
before the Commission makes its determination;
(ii) the access seeker may withdraw the carrier’s notification or
provider’s notification, as the case may be, at any time after the
Commission issues a draft determination, but before it makes its
determination;
(b) if the access seeker notified the dispute—the access seeker may
withdraw the notification at any time before the Commission makes its
determination.
(2) Despite subparagraph (1)(a)(ii), if the carrier or provider notified a
dispute over variation of a determination, the access seeker may not withdraw
the carrier’s notification or provider’s notification.
(3) If the notification is withdrawn it is taken, for the purposes of this
Part, never to have been given.
The parties to the arbitration of an access dispute are as
follows:
(a) the carrier or provider;
(b) the access seeker;
(c) if the Commission is of the opinion that the resolution of the access
dispute may involve requiring another person to do something—that other
person;
(d) any other person who applies in writing to be made a party and is
accepted by the Commission as having a sufficient interest.
(1) Unless the Commission terminates the arbitration under
section 152CS, the Commission must make a written determination on access
by the access seeker to the declared service.
(2) The determination may deal with any matter relating to access by the
access seeker to the declared service including matters that were not the basis
for notification of the dispute. For example, the determination may:
(a) require the carrier or provider to provide access to the declared
service by the access seeker; or
(b) require the access seeker to accept, and pay for, access to the
declared service; or
(c) specify the terms and conditions on which the carrier or provider is
to comply with any or all of the standard access obligations applicable to the
carrier or provider; or
(d) specify any other terms and conditions of the access seeker’s
access to the declared service; or
(e) require a party to extend or enhance the capability of a facility by
means of which the declared service is supplied; or
(f) specify the extent to which the determination overrides an earlier
determination relating to access to the declared service by the access
seeker.
(3) The determination must not require the carrier or provider to provide
access to the declared service by the access seeker if the requirement is
already imposed by:
(a) Division 3 (which deals with the standard access obligations);
or
(b) any other law of the Commonwealth.
(4) Before making a determination, the Commission must give a draft
determination to the parties.
(5) When the Commission makes a determination, it must give the parties to
the arbitration its reasons for making the determination.
(6) A determination does not take effect before 1 July 1997.
(1) The Commission must not make a determination that 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 dispute was notified;
(b) preventing the carrier or provider from obtaining a sufficient amount
of the service to be able to meet the carrier’s or provider’s
reasonably anticipated requirements, measured at the time when the dispute was
notified;
(c) preventing a person from obtaining, by the exercise of a
pre-notification right, a sufficient level of access to the declared service to
be able to meet the person’s actual requirements;
(d) depriving any person of a protected contractual right;
(e) resulting in the access seeker becoming the owner (or one of the
owners) of any part of a facility without the consent of the owner of the
facility;
(f) requiring a party (other than the access seeker) to bear some or all
of the costs of:
(i) extending or enhancing the capability of a facility; or
(ii) maintaining extensions to or enhancements of the capability of a
facility;
(g) requiring the carrier or provider to provide the access seeker with
access to a declared service if there are reasonable grounds to believe
that:
(i) the access seeker would fail, to a material extent, to comply with the
terms and conditions on which the carrier or provider provides, or is reasonably
likely to provide, that access; or
(ii) the access seeker would fail, in connection with that access, to
protect the integrity of a telecommunications network or to protect the safety
of individuals working on, or using services supplied by means of, a
telecommunications network or a facility.
(2) Paragraphs (1)(a), (b), (c) and (d) do not apply in relation to the
requirements and rights of the access seeker and the carrier or provider when
the Commission is making a determination in arbitration of an access dispute
relating to an earlier determination of an access dispute between the access
seeker and the carrier or provider.
(3) Examples of grounds for believing as mentioned in subparagraph
(1)(g)(i) 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 provider).
(4) The Commission must not make a determination that is inconsistent with
any of the standard access obligations that are, or will be, applicable to the
carrier or provider.
(5) If an access undertaking given by the carrier or provider is in
operation, the Commission must not make a determination that is inconsistent
with the undertaking.
(6) The Commission must not make a determination that is inconsistent with
a Ministerial pricing determination.
(7) A determination is of no effect if it is made in contravention of
subsection (1), (4), (5) or (6).
(8) If the Commission makes a determination that has the effect of
depriving a person (the second person) of a pre-notification right
to require the carrier or provider to provide access to the declared service to
the second person, the determination must also require the access
seeker:
(a) to pay to the second person such amount (if any) as the Commission
considers is fair compensation for the deprivation; and
(b) to reimburse the carrier or provider and the Commonwealth for any
compensation that the carrier or provider or the Commonwealth agrees, or is
required by a court order, to pay to the second person as compensation for the
deprivation.
(9) In this section:
pre-notification right means a right under a contract, or
under a determination, that was in force at the time when the dispute was
notified.
protected contractual right means a right under a contract
that was in force at the beginning of 13 September 1996.
(1) The Commission must take the following matters into account in making
a determination:
(a) whether the determination will promote the long-term interests of
end-users of carriage services or of services supplied by means of carriage
services;
(b) the legitimate business interests of the carrier or provider, and the
carrier’s or provider’s investment in facilities used to supply the
declared service;
(c) the interests of all persons who have rights to use the declared
service;
(d) the direct costs of providing access to the declared
service;
(e) the value to a party of extensions, or enhancement of capability,
whose cost is borne by someone else;
(f) the operational and technical requirements necessary for the safe and
reliable operation of a carriage service, a telecommunications network or a
facility;
(g) the economically efficient operation of a carriage service, a
telecommunications network or a facility.
(2) The Commission may take into account any other matters that it thinks
are relevant.
(1) The Commission may at any time terminate an arbitration (without
making a determination) if it thinks that:
(a) the notification of the dispute was vexatious; or
(b) the subject matter of the dispute is trivial, misconceived or lacking
in substance; or
(c) a party to the arbitration of the dispute has not engaged in
negotiations in good faith; or
(d) access to the declared service should continue to be governed by an
existing contract between the carrier or provider and the access seeker;
or
(e) in the case of a dispute notified under subsection 152CM(2)—the
arbitration should be terminated on the grounds that:
(i) the arbitration is not likely to make a significant contribution to
competition in a market (whether or not in Australia); or
(ii) the access seeker’s carriage service or content service is not
of significant social and/or economic importance.
(2) In addition, if the dispute is about varying an existing
determination, the Commission may terminate the arbitration if it thinks there
is no sufficient reason why the existing determination should not continue to
have effect in its present form.
(1) If the Commission has reason to suspect that a person who is or was a
party to the arbitration of an access dispute has not engaged, or is not
engaging, in negotiations in good faith, the Commission may, for the purposes of
facilitating those negotiations, give the person a written procedural direction
requiring the person to do, or refrain from doing, a specified act or thing
relating to the conduct of those negotiations.
(2) The following are examples of the kinds of procedural directions that
may be given under subsection (1):
(a) a direction requiring a party to give relevant information to one or
more other parties;
(b) a direction requiring a party to carry out research or investigations
in order to obtain relevant information;
(c) a direction requiring a party not to impose unreasonable procedural
conditions on the party’s participation in negotiations;
(d) a direction requiring a party to respond in writing to a another
party’s proposal or request in relation to the time and place of a
meeting;
(e) a direction requiring a party, or a representative of a party, to
attend a mediation conference;
(f) a direction requiring a party, or a representative of a party, to
attend a conciliation conference.
If the arbitration has been terminated, a reference in this subsection to a
party is a reference to a former party.
(3) A person must not contravene a direction under subsection
(1).
(4) A person must not:
(a) aid, abet, counsel or procure a contravention of subsection (3);
or
(b) induce, whether by threats or promises or otherwise, a contravention
of subsection (3); or
(c) be in any way, directly or indirectly, knowingly concerned in, or
party to, a contravention of subsection (3); or
(d) conspire with others to effect a contravention of subsection
(3).
(5) In deciding whether to give a direction under subsection (1), the
Commission must have regard to:
(a) any guidelines in force under subsection (6); and
(b) such other matters as the Commission considers relevant.
(6) The Commission may, by written instrument, formulate guidelines for
the purposes of subsection (5).
(1) If the Federal Court is satisfied that a person has contravened
subsection 152CT(3) or (4), the Court may order the person to pay to the
Commonwealth such pecuniary penalty, in respect of each contravention, as the
Court determines to be appropriate.
(2) In determining the pecuniary penalty, the Court must have regard to
all relevant matters, including:
(a) the nature and extent of the contravention; and
(b) the nature and extent of any loss or damage suffered as a result of
the contravention; and
(c) the circumstances in which the contravention took place; and
(d) whether the person has previously been found by the Court in
proceedings under this Act to have engaged in any similar conduct.
(3) The pecuniary penalty payable under subsection (1) by a body corporate
is not to exceed $250,000 for each contravention.
(4) The pecuniary penalty payable under subsection (1) by a person other
than a body corporate is not to exceed $50,000 for each contravention.
(5) The Commission may institute a proceeding in the Federal Court for the
recovery on behalf of the Commonwealth of a pecuniary penalty referred to in
subsection (1).
(6) A proceeding under subsection (5) may be commenced within 6 years
after the contravention.
(7) Criminal proceedings do not lie against a person only because the
person has contravened subsection 152CT(3) or (4).
For the purposes of a particular arbitration, the Commission is to be
constituted by 2 or more members of the Commission nominated in writing by the
Chairperson.
(1) Subject to subsection (2), the Chairperson is to preside at an
arbitration.
(2) If the Chairperson is not a member of the Commission as constituted
under section 152CV in relation to a particular arbitration, the Chairperson
must nominate a member of the Commission to preside at the
arbitration.
(1) This section applies if a member of the Commission who is one of the
members who constitute the Commission for the purposes of a particular
arbitration:
(a) stops being a member of the Commission; or
(b) for any reason, is not available for the purpose of the
arbitration.
(2) The Chairperson must either:
(a) direct that the Commission is to be constituted for the purposes of
finishing the arbitration by the remaining member or members; or
(b) direct that the Commission is to be constituted for that purpose by
the remaining member or members together with one or more other members of the
Commission.
(3) If a direction under subsection (2) is given, the Commission as
constituted in accordance with the direction must continue and finish the
arbitration and may, for that purpose, have regard to any record of the
proceedings of the arbitration made by the Commission as previously
constituted.
If the Commission is constituted for an arbitration by 2 or more members
of the Commission, any question before the Commission is to be
decided:
(a) unless paragraph (b) applies—according to the opinion of the
majority of those members; or
(b) if the members are evenly divided on the question—according to
the opinion of the member who is presiding.
(1) Subject to subsection (2), an arbitration hearing for an access
dispute is to be in private.
(2) If the parties agree, an arbitration hearing or part of an arbitration
hearing may be conducted in public.
(3) The member of the Commission who is presiding at an arbitration
hearing that is conducted in private may give written directions as to the
persons who may be present.
(4) In giving directions under subsection (3), the member presiding must
have regard to the wishes of the parties and the need for commercial
confidentiality.
In an arbitration hearing before the Commission under this Part, a party
may appear in person or be represented by someone else.
(1) In an arbitration hearing about an access dispute, the
Commission:
(a) is not bound by technicalities, legal forms or rules of evidence;
and
(b) must act as speedily as a proper consideration of the dispute allows,
having regard to the need to carefully and quickly inquire into and investigate
the dispute and all matters affecting the merits, and fair settlement, of the
dispute; and
(c) may inform itself of any matter relevant to the dispute in any way it
thinks appropriate.
(2) The Commission may determine the periods that are reasonably necessary
for the fair and adequate presentation of the respective cases of the parties to
an access dispute, and may require that the cases be presented within those
periods.
(3) The Commission may require evidence or argument to be presented in
writing, and may decide the matters on which it will hear oral evidence or
argument.
(4) The Commission may determine that an arbitration hearing is to be
conducted by:
(a) telephone; or
(b) closed circuit television; or
(c) any other means of communication.
(1) The Commission may do any of the following things for the purpose of
arbitrating an access dispute:
(a) give a direction in the course of, or for the purposes of, an
arbitration hearing;
(b) hear and determine the arbitration in the absence of a person who has
been summoned or served with a notice to appear;
(c) sit at any place;
(d) adjourn to any time and place;
(e) refer any matter to an expert and accept the expert’s report as
evidence;
(f) generally give all such directions, and do all such things, as are
necessary or expedient for the speedy hearing and determination of the access
dispute.
(2) Subsection (1) has effect subject to any other provision of this Part
and subject to the regulations.
(3) The Commission may give an oral or written order to a person not to
divulge or communicate to anyone else specified information that was given to
the person in the course of an arbitration unless the person has the
Commission’s permission.
(4) A person who contravenes:
(a) a direction under paragraph (1)(a) or (f); or
(b) an order under subsection (3);
is guilty of an offence punishable on conviction by imprisonment for a term
not exceeding 6 months.
(1) The Commission may take evidence on oath or affirmation and for that
purpose a member of the Commission may administer an oath or
affirmation.
(2) The member of the Commission who is presiding may summon a person to
appear before the Commission to give evidence and to produce such documents (if
any) as are referred to in the summons.
(3) The powers in this section may be exercised only for the purposes of
arbitrating an access dispute.
A person who is served, as prescribed, with a summons to appear as a
witness before the Commission must not, without reasonable excuse:
(a) fail to attend as required by the summons; or
(b) fail to appear and report himself or herself from day to day unless
excused, or released from further attendance, by a member of the
Commission.
Penalty: Imprisonment for 6 months.
(1) A person appearing as a witness before the Commission must not,
without reasonable excuse:
(a) refuse or fail to be sworn or to make an affirmation; or
(b) refuse or fail to answer a question that the person is required to
answer by the Commission; or
(c) refuse or fail to produce a document that he or she was required to
produce by a summons under this Part served on him or her as
prescribed.
Penalty: Imprisonment for 6 months.
(2) It is a reasonable excuse for the purposes of subsection (1) for an
individual to refuse or fail to answer a question or produce a document on the
ground that the answer or the production of the document might tend to
incriminate the individual or to expose the individual to a penalty. This
subsection does not limit what is a reasonable excuse for the purposes of
subsection (1).
A person appearing before the Commission to give evidence under section
152DD must not knowingly give evidence that is false or misleading in a material
particular.
Penalty: Imprisonment for 12 months.
(1) A person must not, in complying with a summons under
section 152DD, produce a document that, to the knowledge of the person, is
false or misleading in a material particular.
(2) Subsection (1) does not apply to a person who produces a document
that, to the knowledge of the person, is false or misleading in a material
particular if the document is accompanied by a written statement signed by the
person:
(a) stating that the document is, to the knowledge of the person, false or
misleading in a material particular; and
(b) setting out, or referring to, the material particular in which the
document is false or misleading.
Penalty: Imprisonment for 12 months.
A person must not:
(a) threaten, intimidate or coerce another person; or
(b) cause or procure damage, loss or disadvantage to another
person;
because that other person:
(c) proposes to produce, or has produced, documents to the Commission;
or
(d) proposes to appear or has appeared as a witness before the
Commission.
Penalty: Imprisonment for 5 years.
(1) A person must not, in relation to the arbitration of an access
dispute:
(a) insult or disturb a member of the Commission in the exercise of the
member’s powers or the performance of the member’s functions or
duties as a member of the Commission; or
(b) interrupt an arbitration hearing; or
(c) use insulting language towards a member of the Commission exercising
powers, or performing functions, as such a member; or
(d) create a disturbance, or take part in creating or continuing a
disturbance, in a place where the Commission is holding an arbitration
hearing.
(2) A person who intentionally contravenes subsection (1) is guilty of an
offence punishable on conviction by imprisonment for a term not exceeding 6
months.
(1) A party to an arbitration hearing may:
(a) inform the Commission that, in the party’s opinion, a specified
part of a document contains confidential commercial information; and
(b) request the Commission not to give a copy of that part to another
party.
(2) On receiving a request, the Commission must:
(a) inform the other party or parties that the request has been made and
of the general nature of the matters to which the relevant part of the document
relates; and
(b) ask the other party or parties whether there is any objection to the
Commission complying with the request.
(3) If there is an objection to the Commission complying with a request,
the party objecting may inform the Commission of its objection and of the
reasons for it.
(4) After considering:
(a) a request; and
(b) any objection; and
(c) any further submissions that any party has made in relation to the
request;
the Commission may decide not to give to the other party or parties a copy
of so much of the document as contains confidential commercial information that
the Commission thinks should not be so given.
Sections 18 and 19 do not apply to the Commission, as constituted for an
arbitration.
The regulations may provide for the Commission to:
(a) charge the parties to an arbitration for its costs in conducting the
arbitration; and
(b) apportion the charge between the parties.
(1) If none of the parties to an arbitration applies to the Tribunal under
section 152DO for a review of the Commission’s determination, the
determination has effect 21 days after the determination is made.
(2) If a party to an arbitration applies to the Tribunal under
section 152DO for a review of the Commission’s determination, the
determination is of no effect until the Tribunal makes its determination on the
review.
(1) A party to a determination may apply in writing to the Tribunal for a
review of the determination.
(2) The application must be made within 21 days after the Commission made
the determination.
(3) A review by the Tribunal is a re-arbitration of the access
dispute.
(4) For the purposes of the review, the Tribunal has the same powers as
the Commission.
(5) The member of the Tribunal presiding at the review may require the
Commission to give information and other assistance and to make reports, as
specified by the member for the purposes of the review.
(6) The Tribunal may either affirm or vary the Commission’s
determination.
(7) The determination, as affirmed or varied by the Tribunal, is to be
taken to be a determination of the Commission for all purposes of this Part
(except this section).
(8) A decision of the Tribunal takes effect from when it is
made.
Sections 37, 39 to 43 (inclusive) and 103 to 110 (inclusive) do not apply
in relation to a review by the Tribunal of a determination made by the
Commission.
(1) A party to an arbitration may appeal to the Federal Court, on a
question of law, from the decision of the Tribunal under
section 152DO.
(2) An appeal by a person under subsection (1) must be
instituted:
(a) not later than the 28th day after the day on which the decision of the
Tribunal is made or within such further period as the Federal Court (whether
before or after the end of that day) allows; and
(b) in accordance with the Rules of Court made under the Federal Court
of Australia Act 1976.
(3) The Federal Court must hear and determine the appeal and may make any
order that it thinks appropriate.
(4) The orders that may be made by the Federal Court on appeal include
(but are not limited to):
(a) an order affirming or setting aside the decision of the Tribunal;
and
(b) an order remitting the matter to be decided again by the Tribunal in
accordance with the directions of the Federal Court.
(1) Subject to this section, the fact that an appeal is instituted in the
Federal Court from a decision of the Tribunal does not affect the operation of
the decision or prevent action being taken to implement the decision.
(2) If an appeal is instituted in the Federal Court from a decision of the
Tribunal, the Federal Court or a judge of the Federal Court may make any orders
staying or otherwise affecting the operation or implementation of the decision
of the Tribunal that the Federal Court or judge thinks appropriate to secure the
effectiveness of the hearing and determination of the appeal.
(3) If an order is in force under subsection (2) (including an order
previously varied under this subsection), the Federal Court or a judge of the
Federal Court may make an order varying or revoking the first-mentioned
order.
(4) An order in force under subsection (2) (including an order previously
varied under subsection (3));
(a) is subject to any conditions that are specified in the order;
and
(b) has effect until:
(i) the end of any period for the operation of the order that is specified
in the order; or
(ii) the giving of a decision on the appeal;
whichever is earlier.
If an appeal is instituted in the Federal Court:
(a) the Tribunal must send to the Federal Court all documents that were
before the Tribunal in connection with the matter to which the appeal relates;
and
(b) at the conclusion of the proceedings before the Federal Court in
relation to the appeal, the Federal Court must return the documents to the
Tribunal.
(1) The Commission may vary a determination on the application of any
party to the determination. However, it cannot vary the determination if any
other party objects.
Note: If the parties cannot agree on a variation, a new
access dispute can be notified under section 152CM.
(2) Sections 152CQ and 152CR apply to a variation under this section as
if:
(a) an access dispute arising out of the determination had been notified
when the application was made to the Commission for the variation of the
determination; and
(b) the variation were the making of a determination in the terms of the
varied determination.
(1) If the Federal Court is satisfied, on the application of a party to a
determination, that another party to the determination has engaged, is engaging,
or is proposing to engage in conduct that constitutes a contravention of the
determination, the Court may make all or any of the following orders:
(a) an order granting an injunction on such terms as the Court thinks
appropriate:
(i) restraining the other party from engaging in the conduct; or
(ii) if the conduct involves refusing or failing to do
something—requiring the other party to do that thing;
(b) an order directing the other party to compensate the applicant for
loss or damage suffered as a result of the contravention;
(c) any other order that the Court thinks appropriate.
(2) If the Federal Court has power under subsection (1) to grant an
injunction restraining a person from engaging in particular conduct, or
requiring a person to do anything, the Court may make any other orders
(including granting an injunction) that it thinks appropriate against any other
person who was involved in the contravention concerned.
(3) A reference in this section to a person involved in the contravention
is a reference to a person who has:
(a) aided, abetted, counselled or procured the contravention; or
(b) induced the contravention, whether through threats or promises or
otherwise; or
(c) been in any way (directly or indirectly) knowingly concerned in or a
party to the contravention; or
(d) conspired with others to effect the contravention.
On an application for an injunction under section 152DU, the Federal
Court may grant an injunction by consent of all of the parties to the
proceedings, whether or not the Court is satisfied that the section
applies.
The Federal Court may grant an interim injunction pending determination
of an application under section 152DU.
The power of the Federal Court to grant an injunction under section 152DU
restraining a person from engaging in conduct may be exercised whether or
not:
(a) it appears to the Court that the person intends to engage again, or to
continue to engage, in conduct of that kind; or
(b) the person has previously engaged in conduct of that kind;
or
(c) there is an imminent danger of substantial damage to any person if the
first-mentioned person engages in conduct of that kind.
The power of the Federal Court to grant an injunction under section 152DU
requiring a person to do a thing may be exercised whether or not:
(a) it appears to the Court that the person intends to refuse or fail
again, or to continue to refuse or fail, to do that thing; or
(b) the person has previously refused or failed to do that thing;
or
(c) there is an imminent danger of substantial damage to any person if the
first-mentioned person refuses or fails to do that thing.
The Federal Court may discharge or vary an injunction or order granted
under this Subdivision.
(1) The Commission must maintain a Register that specifies the following
information for each determination:
(a) the names of the parties to the determination;
(b) the declared service to which the determination relates;
(c) the date on which the determination was made.
(2) The Register may be maintained by electronic means.
(3) A person may, on payment of the fee (if any) specified in the
regulations:
(a) inspect the Register; and
(b) make a copy of, or take extracts from, the Register.
(4) For the purposes of this section, if the Register is maintained by
electronic means, a person is taken to have made a copy of, or taken an extract
from, the Register if the Commission gives the person a printout of, or of the
relevant parts of, the Register.
(5) If a person requests that a copy be provided in an electronic form,
the Commission may provide the relevant information:
(a) on a data processing device; or
(b) by way of electronic transmission.
(1) If:
(a) a determination would result in an acquisition of property;
and
(b) the determination would not be valid, apart from this section, because
a particular person has not been sufficiently compensated;
the Commonwealth must pay that person:
(c) a reasonable amount of compensation agreed on between the person and
the Commonwealth; or
(d) failing agreement—a reasonable amount of compensation determined
by a court of competent jurisdiction.
(2) In assessing compensation payable in a proceeding begun under this
section, the following must be taken into account if they arise out of the same
event or transaction:
(a) any damages or compensation recovered, or other remedy, in a
proceeding begun otherwise than under this section;
(b) compensation awarded under a determination.
(3) In this section:
acquisition of property has the same meaning as in paragraph
51(xxxi) of the Constitution.
This Division applies to an agreement if:
(a) the agreement embodies any or all of the terms or conditions on which
a carrier or carriage service provider is to comply with any or all of the
standard access obligations applicable to the carrier or provider; or
(b) all of the following conditions are satisfied in relation to the
agreement:
(i) the agreement provides for access to a declared service;
(ii) the agreement was made after the service was declared;
(iii) the parties to the agreement are an access seeker and the carrier or
carriage service provider who supplies, or proposes to supply, the
service.
(1) On application by all the parties to an agreement, the Commission
must:
(a) register the agreement by entering the following details on a
Register:
(i) the names of the parties to the agreement;
(ii) the declared service to which the agreement relates;
(iii) the date on which the agreement was made; or
(b) decide not to register the agreement.
(2) In deciding whether to register an agreement, the Commission must take
into account:
(a) the public interest, including the public interest in having
competition in markets (whether or not in Australia); and
(b) the interests of all persons who have rights to use the declared
service to which the agreement relates.
(3) The Commission must publish a decision not to register an
agreement.
(4) If the Commission publishes a decision not to register an agreement,
it must give the parties to the agreement reasons for the decision when it
publishes the decision.
(5) If:
(a) an agreement is registered; and
(b) all the parties to the agreement apply in writing to the Commission
for the deregistration of the agreement;
the Commission must deregister the agreement by removing details of the
agreement from the Register.
(6) The Register may be maintained by electronic means.
(7) A person may, on payment of the fee (if any) specified in the
regulations:
(a) inspect the Register; and
(b) make a copy of, or take extracts from, the Register.
(8) For the purposes of this section, if the Register is maintained by
electronic means, a person is taken to have made a copy of, or taken an extract
from, the Register if the Commission gives the person a printout of, or of the
relevant parts of, the Register.
(9) If a person requests that a copy be provided in an electronic form,
the Commission may provide the relevant information:
(a) on a data processing device; or
(b) by way of electronic transmission.
(1) The parties to an agreement that is registered:
(a) may enforce the agreement under Subdivision H of Division 8 as if
the agreement were a determination of the Commission under section 152CP and
they were parties to the determination; and
(b) cannot enforce the agreement by any other means.
(2) Subsection (1) does not have effect before 1 July 1997.
(1) A person must not engage in conduct for the purpose of preventing or
hindering access by a service provider to a declared service if:
(a) the person is:
(i) a carrier or a carriage service provider who supplies a declared
service; or
(ii) a service provider to whom a declared service is being supplied by a
carrier or carriage service provider; or
(iii) a body corporate that is related to a carrier or provider referred
to in subparagraph (i) or (ii); and
(b) either:
(i) that access is in accordance with any of the standard access
obligations; or
(ii) that access is in accordance with a determination.
(2) A person may be taken to have engaged in conduct for the purpose
referred to in subsection (1) even though, after all the evidence has been
considered, the existence of that purpose is ascertainable only by inference
from the conduct of the person or from other relevant circumstances. This
subsection does not limit the manner in which the purpose of a person may be
established for the purposes of subsection (1).
(3) Subsection (1) does not have effect before 1 July 1997.
(1) If the Federal Court is satisfied, on the application of any person,
that another person (the obstructor) has engaged, is engaging, or
is proposing to engage in conduct constituting a contravention of section 152EF,
the Court may make all or any of the following orders:
(a) an order granting an injunction on such terms as the Court thinks
appropriate:
(i) restraining the obstructor from engaging in the conduct; or
(ii) if the conduct involves refusing or failing to do
something—requiring the obstructor to do that thing;
(b) an order directing the obstructor to compensate a person who has
suffered loss or damage as a result of the contravention;
(c) any other order that the Court thinks appropriate.
(2) If the Federal Court has power under subsection (1) to grant an
injunction restraining a person from engaging in particular conduct, or
requiring a person to do anything, the Court may make any other orders
(including granting an injunction) that it thinks appropriate against any other
person who was involved in the contravention concerned.
On an application for an injunction under section 152EG, the Federal
Court may grant an injunction by consent of all of the parties to the
proceedings, whether or not the Court is satisfied that the section
applies.
(1) The Federal Court may grant an interim injunction pending
determination of an application under section 152EG.
(2) If the Commission makes an application under section 152EG to the
Federal Court for an injunction, the Court must not require the Commission or
any other person, as a condition of granting an interim injunction, to give any
undertakings as to damages.
The power of the Federal Court to grant an injunction under section 152EG
restraining a person from engaging in conduct may be exercised whether or
not:
(a) it appears to the Court that the person intends to engage again, or to
continue to engage, in conduct of that kind; or
(b) the person has previously engaged in conduct of that kind;
or
(c) there is an imminent danger of substantial damage to any person if the
first-mentioned person engages in conduct of that kind.
The power of the Federal Court to grant an injunction under section 152EG
requiring a person to do a thing may be exercised whether or not:
(a) it appears to the Court that the person intends to refuse or fail
again, or to continue to refuse or fail, to do that thing; or
(b) the person has previously refused or failed to do that thing;
or
(c) there is an imminent danger of substantial damage to any person if the
first-mentioned person refuses or fails to do that thing.
The Federal Court may discharge or vary an injunction or order granted
under this Division.
For the purposes of this Part, a change in the composition of a
partnership does not affect the continuity of the partnership.
This Part applies to a partnership as if the partnership were a person,
but it applies with the following changes:
(a) obligations that would be imposed on the partnership are imposed
instead on each partner, but may be discharged by any of the partners;
(b) any offence against this Part that would otherwise be committed by the
partnership is taken to have been committed by each partner who:
(i) aided, abetted, counselled or procured the relevant act or omission;
or
(ii) was in any way knowingly concerned in, or party to, the relevant act
or omission (whether directly or indirectly and whether by any act or omission
of the partner).
(1) If, in a proceeding under this Part in respect of conduct engaged in
by a body corporate, it is necessary to establish the state of mind of the body
corporate in relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by a director, servant or agent of the
body corporate within the scope of his or her actual or apparent authority;
and
(b) that the director, servant or agent had the state of mind.
(2) Any conduct engaged in on behalf of a body corporate:
(a) by a director, servant or agent of the body corporate within the scope
of the person’s actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement
(whether express or implied) of a director, servant or agent of the body
corporate, if the giving of the direction, consent or agreement is within the
scope of the actual or apparent authority of the director, servant or
agent;
is taken for the purposes of this Part to have been engaged in also by the
body corporate, unless the body corporate establishes that the body corporate
took reasonable precautions and exercised due diligence to avoid the
conduct.
(3) A reference in subsection (1) to the state of mind of a person
includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the person;
and
(b) the person’s reasons for the intention, opinion, belief or
purpose.
(4) A reference in this section to a director of a body corporate includes
a reference to a constituent member of a body corporate incorporated for a
public purpose by a law of the Commonwealth, of a State or of a
Territory.
The regulations may make provision about the inspection of registers
maintained under this Part (including provision about fees).
7 Subsection 155(1)
After “or is relevant to”, insert “a designated
telecommunications matter (as defined by subsection (9)) or is relevant
to”.
8 Subsection 155(2)
After “this Act,”, insert “Part 20 of the
Telecommunications Act 1996 or Part 6 of the Telstra Corporation Act
1991,”.
9 At the end of section 155
Add:
(9) A reference in this section to a designated telecommunications
matter is a reference to the performance of a function, or the exercise
of a power, conferred on the Commission by or under:
(a) the Telecommunications Act 1996; or
(b) the Telstra Corporation Act 1991; or
(c) Part XIB or XIC of this Act.
10 Before section 155A
Insert:
(1) A Commission official must not disclose any protected Part XIB or XIC
information to any person, except:
(a) when the Commission official is performing duties or functions as a
Commission official; or
(b) when the Commission official or the Commission is required by law to
disclose the information.
(2) Paragraph (1)(a) does not allow a Commission official to disclose
protected Part XIB or XIC information when performing a function of the
Commission described in section 28.
(3) In this section:
Commission official means:
(a) a member, or associate member, of the Commission; or
(b) a person referred to in subsection 27(1); or
(c) a person engaged under section 27A.
disclose means divulge or communicate.
information includes information in a document and
information given in evidence.
protected Part XIB or XIC information means information
that:
(a) was obtained by the Commission under section 151AU, 152AU, 152BT,
152BZ or 155; and
(b) relates to a matter arising under Part XIB or XIC.
11 Paragraph 162(1)(b)
Omit “or 93A”, substitute “, 93A or
151AZ”.
12 Paragraph 163A(1)(a)
Repeal the paragraph, substitute:
(a) a declaration in relation to the operation or effect of any provision
of this Act other than the following provisions:
(i) Division 2, 2A or 3 of Part V;
(ii) Part XIB;
(iii) Part XIC; or
(aa) a declaration in relation to the validity of any act or thing done,
proposed to be done or purporting to have been done under this Act; or
13 Section 163A
After “paragraph (1)(a)” (wherever occurring), insert “or
(aa)”.
14 After section 171A
Insert:
(1) Division 3 of Part IIIA and Division 8 of Part XIC have no effect to
the extent (if any) to which they purport to confer judicial power on the
Commission.
(2) In this section:
judicial power means the judicial power of the Commonwealth
referred to in section 71 of the Constitution.
15 Application—amendments of section 163A
of the Trade Practices Act
The amendments of section 163A of the Trade Practices Act 1974 made
by this Schedule do not apply to a proceeding instituted before the commencement
of this item.