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This is a Bill, not an Act. For current law, see the Acts databases.
2002
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Telecommunications
Competition Bill 2002
No. ,
2002
(Communications, Information Technology and the
Arts)
A Bill for an Act to amend the law
relating to telecommunications, and for other purposes
Contents
Part 1—Pre-selection in favour of carriage service
providers 3
Part 2—Industry development
plans 8
Part 3—Access to network
information 9
Part 1—Model terms and conditions relating to access to core
services etc. 11
Part 2—Merits review of final
determinations 15
Part 3—Duration of
declarations 16
Part 4—Revocation of declarations of minor
importance 19
Part 5—Service provider’s reasonably anticipated
requirements 20
Part 6—Costs of extending or enhancing the capability of a
facility etc. 21
Part 7—Hindering the fulfilment of a standard access obligation
etc. 22
Part 8—Backdating of final
determinations 23
Part 9—Guidelines about the ACCC’s powers to regulate
anti-competitive
conduct 24
Part 10—Telecommunications access
codes 25
Part 11—Exemptions from standard access
obligations 29
Part 12—Access
undertakings 42
Part 13—Ordering and
provisioning 62
Part 14—Review of competition
decisions 63
Part 15—Competition notices and advisory notices
etc. 65
Part 16—Record-keeping rules and disclosure
directions 68
A Bill for an Act to amend the law relating to
telecommunications, and for other purposes
The Parliament of Australia enacts:
This Act may be cited as the Telecommunications Competition Act
2002.
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 or
repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
Part 1—Pre-selection
in favour of carriage service providers
1 Section 5
Omit “ACA may require certain carriers and carriage service providers
to provide pre-selection”, substitute “ACCC may
require certain carriers and carriage service providers to provide
pre-selection”.
2 Section 348
Omit “ACA”, substitute “ACCC”.
3 Section 349
Omit “ACA” (wherever occurring), substitute
“ACCC”.
4 Subsection 349(6)
Omit “ACCC”, substitute “ACA”.
5 Section 352
Omit “ACA” (wherever occurring), substitute
“ACCC”.
6 At the end of
section 352
Add:
(4) Before making a declaration under this section, the ACCC must consult
the ACA.
Note: For review of a decision of the ACCC to refuse to make
a declaration, see section 352A.
7 After section 352
Insert:
Scope
(1) This section applies to a decision of the ACCC under section 352
to refuse to make a declaration.
Review by Australian Competition Tribunal
(2) A person whose interests are affected by the decision may apply in
writing to the Australian Competition Tribunal for a review of the
decision.
(3) An application under subsection (2) must be made within 21 days
after the ACCC made the decision.
(4) If an application is made under subsection (2), the Australian
Competition Tribunal must review the decision.
Functions and powers of Australian Competition Tribunal
(5) On a review of the decision, the Australian Competition Tribunal may
make a decision:
(a) affirming the decision of the ACCC; or
(b) both:
(i) setting aside the decision of the ACCC; and
(ii) in substitution for the decision so set aside, making a declaration
under section 352;
and, for the purposes of the review, the Tribunal may perform all the
functions and exercise all the powers of the ACCC.
(6) A decision by the Australian Competition Tribunal:
(a) affirming a decision of the ACCC; or
(b) setting aside a decision of the ACCC; or
(c) made in substitution for a decision of the ACCC;
is taken, for the purposes of this Act (other than this section), to be a
decision of the ACCC.
Conduct of review
(7) For the purposes of a review by the Australian Competition Tribunal,
the member of the Australian Competition Tribunal presiding at the review may
require the ACCC to give such information, make such reports and provide such
other assistance to the Tribunal as the member specifies.
(8) For the purposes of a review, the Australian Competition Tribunal may
have regard to any information given, documents produced or evidence given to
the ACCC in connection with the making of the decision.
Note: Division 2 of Part IX of the Trade
Practices Act 1974 applies to proceedings before the Australian Competition
Tribunal.
(9) Division 1 of Part IX of the Trade Practices Act 1974
does not apply in relation to a review by the Australian Competition Tribunal of
the decision.
8 Subsection 353(2)
Omit “ACA’s”, substitute
“ACCC’s”.
9 Paragraph 1(n) of
Schedule 4
Repeal the paragraph.
10 Transitional—section 349 of the
Telecommunications Act 1997
(1) This item applies to a determination if:
(a) the determination was made by the ACA under section 349 of the
Telecommunications Act 1997; and
(b) the determination was in force immediately before the commencement of
this item.
(2) The determination has effect, after the commencement of this item, as
if:
(a) it had been made by the ACCC under that section (as amended by this
Part); and
(b) any requirement imposed by that section (as amended by this Part) in
relation to the making of the determination had been satisfied.
11 Transitional—section 352 of the
Telecommunications Act 1997
(1) This item applies to a declaration if:
(a) the declaration was made by the ACA under section 352 of the
Telecommunications Act 1997; and
(b) the declaration was in force immediately before the commencement of
this item.
(2) The declaration has effect, after the commencement of this item, as
if:
(a) it had been made by the ACCC under that section (as amended by this
Part); and
(b) any requirement imposed by that section (as amended by this Part) in
relation to the making of the declaration had been satisfied.
12 Transitional—reconsideration and review
of certain decisions under section 352 of the Telecommunications Act
1997
(1) This item applies to a decision of the ACA to refuse to make a
declaration under section 352 of the Telecommunications Act 1997,
where the decision was made before the commencement of this item.
(2) Despite the amendment of Schedule 4 to the Telecommunications
Act 1997 made by this Part:
(a) Part 29 of that Act; and
(b) Schedule 4 to that Act; and
(c) the Administrative Appeals Tribunal Act 1975;
continue to apply, in relation to the decision, as if:
(d) the decision had been made by the ACCC instead of the ACA;
and
(e) each reference in that Part and that Schedule to the ACA were a
reference to the ACCC; and
(f) anything done by or in relation to the ACA under that Part or that
Schedule, or under the Administrative Appeals Tribunal Act 1975, had been
done by or in relation to the ACCC; and
(g) that amendment had not been made.
(3) After the commencement of this item, the ACCC is, by force of this
subitem, substituted for the ACA as a party to any proceedings in the
Administrative Appeals Tribunal that:
(a) were pending immediately before the commencement of this item;
and
(b) related to the decision.
13 Transitional—section 353 of the
Telecommunications Act 1997
(1) This item applies to an opinion if:
(a) the opinion was formed by the ACA under subsection 353(2) of the
Telecommunications Act 1997; and
(b) the opinion was in existence immediately before the commencement of
this item.
(2) The opinion has effect, after the commencement of this item, as if it
had been formed by the ACCC under that subsection (as amended by this
Part).
Part 2—Industry
development plans
14 Part 2 of
Schedule 1
Repeal the Part.
15 Transitional—clauses 14 and 15 of
Schedule 1 to the Telecommunications Act 1997
(1) For the purposes of this item, a pre-commencement
reporting period is:
(a) a financial year that:
(i) began on or after 1 July 1997; and
(ii) ended before the commencement of this item; or
(b) if this item does not commence on a 1 July in any financial
year—the period:
(i) beginning at the start of the financial year in which this item
commenced; and
(ii) ending immediately before the commencement of this item.
(2) Despite the amendment made by this Part, clauses 14 and 15 of
Schedule 1 to the Telecommunications Act 1997 continue to apply as
if:
(a) each reference in those clauses to a financial year were a reference
to a pre-commencement reporting period; and
(b) the amendment had not been made.
Part 3—Access
to network information
16 Paragraph 21(2)(a) of
Schedule 1
Before “information”, insert “timely and
detailed”.
17 Paragraph 21(2)(b) of
Schedule 1
Before “traffic”, insert “timely and
detailed”.
18 Subclause 21(3) of
Schedule 1
Repeal the subclause, substitute:
(3) The first carrier is not required to comply with subclause (2)
unless:
(a) a purpose of the access is to enable the second carrier to undertake
planning, maintenance or reconfiguration of the second carrier’s
telecommunications network; and
(b) the second carrier’s request is reasonable.
19 Subclause 22(2) of
Schedule 1
Before “information”, insert “timely and
detailed”.
20 Subclause 22(3) of
Schedule 1
Repeal the subclause, substitute:
(3) The first carrier is not required to comply with subclause (2)
unless:
(a) a purpose of the access is to enable the second carrier to undertake
planning, maintenance or reconfiguration of the second carrier’s
telecommunications network; and
(b) the second carrier’s request is reasonable.
21 Subclause 23(2) of
Schedule 1
Omit “that is sufficient to enable the second carrier to undertake
planning for the second carrier’s own telecommunications
network”.
22 Subclause 23(4) of
Schedule 1
Repeal the subclause, substitute:
(4) The first carrier is not required to comply with subclause (2)
unless:
(a) a purpose of the provision of the information is to enable the second
carrier to undertake planning for its own telecommunications network;
and
(b) the second carrier’s request is reasonable.
23 Subclause 24(3) of
Schedule 1
Repeal the subclause, substitute:
(3) The first carrier is not required to comply with subclause (2)
unless:
(a) a purpose of the provision of the information is to enable the second
carrier to undertake planning for its own telecommunications network;
and
(b) the second carrier’s request is reasonable.
24 Transitional—clauses 21, 22 and 23
of Schedule 1 to the Telecommunications Act
1997
(1) This item applies to a request if:
(a) the request was made under subclause 21(2), 22(2) or 23(2) of
Schedule 1 to the Telecommunications Act 1997; and
(b) the request was in force immediately before the commencement of this
item.
(2) The request has effect, after the commencement of this item, as if it
had been made under, and in the terms required by, subclause 21(2), 22(2) or
23(2), as the case may be, of Schedule 1 to that Act (as amended by this
Part).
Part 1—Model
terms and conditions relating to access to core services
etc.
1 After subsection
152AQA(7)
Insert:
Other powers not limited
(7A) To avoid doubt, neither:
(a) this section; nor
(b) a determination under this section;
limits the Commission’s powers under the following
provisions:
(c) Division 4 (which deals with the telecommunications access
code);
(d) Division 5 (which deals with access undertakings).
2 After section 152AQA
Insert:
Core services
(1) For the purposes of this section, each of the following declared
services is a core service:
(a) the Domestic PSTN Originating Access Service (as described in the
relevant declaration);
(b) the Domestic PSTN Terminating Access Service (as described in the
relevant declaration);
(c) the Unconditioned Local Loop Service (as described in the relevant
declaration);
(d) the Local Carriage Service (as described in the relevant
declaration);
(e) a declared service specified in the regulations.
Determination setting out model terms and conditions
(2) The Commission must make a written determination setting out model
terms and conditions relating to access to each core service.
Timing
(3) The Commission must take all reasonable steps to ensure that a
determination relating to a core service referred to in paragraph (1)(a),
(b), (c) or (d) is made within 6 months after the commencement of this
section.
(4) The Commission must take all reasonable steps to ensure that a
determination relating to a core service specified in the regulations is made
within 6 months after the relevant regulation takes effect.
Public consultation
(5) Before making a determination under this section, the Commission
must:
(a) publish a draft of the determination and invite people to make
submissions to the Commission on the draft determination; and
(b) consider any submissions that are received within the time limit
specified by the Commission when it published the draft determination.
Consultation with ACA
(6) Before making a determination under this section, the Commission must
consult the ACA.
Publication
(7) The Commission must publish a determination under this section in such
manner as it considers appropriate (including in electronic form).
Duration of determination
(8) Unless sooner revoked, a determination under this section relating to
a particular core service ceases to be in force at the end of:
(a) the period of 5 years beginning on the day on which the determination
was made; or
(b) if a longer period is specified in the regulations in relation to the
determination—that longer period.
Arbitration
(9) The Commission must have regard to a determination under this section
if it is required to arbitrate an access dispute under Division 8 in
relation to a core service covered by the determination.
Ministerial pricing determinations prevail etc.
(10) A determination under this section has no effect to the extent that
it is inconsistent with:
(a) any Ministerial pricing determination; or
(b) any determination under section 152AQA.
Other powers not limited
(11) To avoid doubt, neither:
(a) this section; nor
(b) a determination under this section;
limits the Commission’s powers under the following
provisions:
(c) Division 4 (which deals with the telecommunications access
code);
(d) Division 5 (which deals with access undertakings).
3 Subsection 152CH(1) (before note
2)
Insert:
Note 1A: Subsection 152AQA(7) provides that a determination
under section 152AQA has no effect to the extent that the determination is
inconsistent with any Ministerial pricing determination.
Note 1B: Subsection 152AQB(9) provides that a determination
under section 152AQB has no effect to the extent that the determination is
inconsistent with any Ministerial pricing determination.
4 Section 152CLA
(note)
Omit “relevant pricing determination under
section 152AQA”, substitute “the matters set out in
section 152CR, to any relevant pricing determination under
section 152AQA and, in the case of core services, to any relevant
determination under section 152AQB”.
Part 2—Merits
review of final determinations
5 Subsections 152DN(2) to
(8)
Repeal the subsections.
6 Subsection 152DNA(3)
Omit “subsections 152CPA(9) and 152DN(5) and (6)”, substitute
“subsection 152CPA(9)”.
7 Subsection 152DNA(5)
Omit “subsection 152DN(1)”, substitute
“section 152DN”.
8 Subdivision F of Division 8 of
Part XIC
Repeal the Subdivision.
9 Transitional—review of
determinations
(1) This item applies if a final determination was made by the Commission
under Division 8 of Part XIC of the Trade Practices Act 1974
before the commencement of this item.
(2) Despite the amendments made by this Part, the Trade Practices Act
1974 continues to apply, in relation to a review of the final determination,
as if those amendments had not been made.
Part 3—Duration
of declarations
10 After section 152AL
Insert:
Expiry date
(1) A declaration under section 152AL must specify an expiry date for
the declaration.
(2) An expiry date must occur in the 5-year period beginning when the
declaration was made.
(3) Subsection (2) has effect subject to
subsection (4).
Extension of expiry date
(4) The Commission may, by notice published in the Gazette, extend
or further extend the expiry date of a specified declaration, so long
as:
(a) the extension or further extension is for a period of not more than 5
years; and
(b) the Commission has held a public inquiry under Part 25 of the
Telecommunications Act 1997 about a proposal to extend or further extend
the expiry date.
Duration of declaration
(5) Unless sooner revoked, a declaration under section 152AL ceases
to be in force on the expiry date of the declaration.
Fresh declaration
(6) If a declaration under section 152AL expires, this Part does not
prevent the Commission from making a fresh declaration under section 152AL
in the same terms as the expired declaration.
11 At the end of subsection
152AM(1)
Add “or 152ALA(4)(b)”.
12 At the end of subsection
152AN(1)
Add “or 152ALA(4)(b)”.
13 Paragraph 152AQ(2)(c)
After “152AL(3)(a)”, insert “or
152ALA(4)(b)”.
14 After
section 152DNB
Insert:
(1) This section applies if:
(a) a declaration under section 152AL expires; and
(b) immediately before the expiry of the declaration, a final
determination was in force in relation to the declared service concerned;
and
(c) the determination does not have an indefinite duration.
(2) Despite the expiry of the declaration, the declaration continues in
force for the purposes of:
(a) ascertaining whether the determination remains in force; and
(b) ascertaining whether a party to the determination has any obligations
under section 152AR to any other party to the determination while the
determination remains in force; and
(c) exercising the Commission’s power to vary the determination
under section 152DT.
(3) A party to the determination is not entitled to notify an access
dispute in relation to the declared service.
15 Transitional—section 152ALA of the
Trade Practices Act 1974
(1) This item applies to a declaration if:
(a) the declaration was made under section 152AL of the Trade
Practices Act 1974; and
(b) the declaration was in force immediately before the commencement of
this item.
(2) Section 152ALA of the Trade Practices Act 1974 does not
apply to the declaration unless and until the Commission makes a determination
in relation to the declaration under subitem (3).
(3) The Commission may, by notice published in the Gazette,
determine that section 152ALA of the Trade Practices Act 1974 has
effect, in relation to a declaration specified in the determination, as if a
date specified in the determination had been specified in the declaration as the
expiry date of the declaration.
(4) The specified date must occur within the 5-year period beginning on the
commencement of this item.
(5) The Commission must take all reasonable steps to ensure that each
declaration is covered by a determination under subitem (3) within 6 months
after the commencement of this item.
Part 4—Revocation
of declarations of minor importance
16 After subsection
152AO(1)
Insert:
(1A) If:
(a) a declaration under section 152AL relates to a particular
service; and
(b) in the Commission’s opinion, the service is of minor
importance;
the Commission is not required to hold a public inquiry under Part 25
of the Telecommunications Act 1997 about a proposal to revoke the
declaration.
Part 5—Service
provider’s reasonably anticipated requirements
17 Paragraph 152CQ(1)(a)
Omit “dispute was notified”, substitute “access seeker
made a request in relation to the service under
section 152AR”.
18 Paragraph 152CQ(1)(b)
Omit “dispute was notified”, substitute “access seeker
made a request in relation to the service under
section 152AR”.
19 Transitional—section 152CQ of the
Trade Practices Act 1974
To avoid doubt, the amendments of section 152CQ of the Trade
Practices Act 1974 made by this Part do not affect the validity of a
determination made before the commencement of this item.
Part 6—Costs
of extending or enhancing the capability of a facility etc.
20 Paragraph 152CQ(1)(f)
Omit “some or all”, substitute “an unreasonable
amount”.
21 Transitional—section 152CQ of the
Trade Practices Act 1974
To avoid doubt, the amendment of section 152CQ of the Trade
Practices Act 1974 made by this Part does not affect the validity of a
determination made before the commencement of this item.
Part 7—Hindering
the fulfilment of a standard access obligation etc.
22 Section 152AA
Omit “prevent or hinder access to a declared service”,
substitute “prevent or hinder the fulfilment of a standard access
obligation”.
23 Division 10 of Part XIC
(heading)
Repeal the heading, substitute:
24 Subsection 152EF(1)
Repeal the subsection, substitute:
(1) A person must not engage in conduct for the purpose of preventing or
hindering the fulfilment of:
(a) a standard access obligation; or
(b) an obligation imposed by a determination made by the Commission under
Division 8;
if the person is:
(c) a carrier or a carriage service provider who supplies a declared
service; or
(d) a service provider to whom a declared service is being supplied by a
carrier or carriage service provider; or
(e) a body corporate that is related to a carrier or provider referred to
in paragraph (c) or (d).
Note 1: The heading to section 152EF is altered by
omitting “access to declared service” and substituting
“the fulfilment of a standard access obligation
etc.”.
Note 2: The heading to section 152EG is altered by
omitting “access” and substituting “the fulfilment
of a standard access obligation etc.”.
Part 8—Backdating
of final determinations
25 At the end of
section 152DNA
Add:
Interest
(6) If:
(a) a provision of a determination is covered by subsection (1);
and
(b) the provision requires a party to the determination (the first
party) to pay money to another party;
the determination may require the first party to pay interest to the other
party, at the rate specified in the determination, on the whole or a part of the
money, for the whole or a part of the period:
(c) beginning on the date on which the parties began negotiations with a
view to agreeing on the terms and conditions as mentioned in paragraph
152AY(2)(a); and
(d) ending on the date on which the determination would have taken effect
if no provision of the determination had been covered by subsection (1) of
this section.
Guidelines
(7) In exercising the powers conferred by subsection (1) or (6), the
Commission must have regard to:
(a) any guidelines in force under subsection (8); and
(b) such other matters as the Commission considers relevant.
(8) The Commission must, by writing, formulate guidelines for the purposes
of subsection (7).
(9) The Commission must take all reasonable steps to ensure that the first
set of guidelines under subsection (8) is made within 6 months after the
commencement of this subsection.
(10) Guidelines under subsection (8) are to be made available on the
Internet.
Part 9—Guidelines
about the ACCC’s powers to regulate anti-competitive
conduct
26 Subsection 151AP(3)
Repeal the subsection, substitute:
(3) Guidelines under subsection (2) must address the appropriateness
of the Commission issuing a competition notice as opposed to the Commission
taking other action under this Act.
(4) The Commission must take all reasonable steps to ensure that
guidelines under subsection (2) comply with subsection (3) within 12
months after the commencement of this subsection.
Part 10—Telecommunications
access codes
27 Section 152AC (definition of ACCC
telecommunications access code)
Repeal the definition.
28 Section 152AC (definition of approved
TAF telecommunications access code)
Repeal the definition.
29 Section 152AC (definition of draft
TAF telecommunications access code)
Repeal the definition.
30 Section 152AC (definition of
TAF)
Repeal the definition.
31 Section 152AC
Insert:
telecommunications access code means a code made under
section 152BJ.
32 Section 152AI
Repeal the section.
33 Subsection 152AL(2)
Repeal the subsection.
34 Subsection 152AM(4)
Omit “and the TAF”.
35 Subsection 152AO(2)
Repeal the subsection.
36 Section 152AP
Repeal the section.
37 Paragraph 152AQ(2)(c)
Omit “or subsection 152AO(2)”.
38 Subdivision A of Division 4 of
Part XIC
Repeal the Subdivision.
39 Subdivision B of Division 4 of
Part XIC (heading)
Repeal the heading.
40 Section 152BJ
Repeal the section, substitute:
Commission may make code
(1) The Commission may, by writing, make a telecommunications access
code.
Disallowable instrument
(2) A telecommunications access code is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act
1901.
Only one code
(3) The Commission must ensure that not more than one code is in force at
a particular time.
41 Subsection 152BK(1)
Omit “An ACCC”, substitute “A”.
Note: The heading to section 152BK is altered by
omitting “ACCC”.
42 Subsection 152BK(3)
Omit “an ACCC”, substitute “a”.
43 Section 152BL
Omit “an ACCC”, substitute “a”.
Note: The heading to section 152BL is altered by
omitting “ACCC”.
44 Section 152BM
Omit “an ACCC”, substitute “a”.
45 Section 152BN
Omit “an ACCC”, substitute “a”.
46 Section 152BN
Omit “the TAF and”.
Note: The heading to section 152BN is altered by
omitting “TAF and”.
47 Section 152BO
Repeal the section.
48 Subdivision C of Division 4 of
Part XIC
Repeal the Subdivision.
49 Subdivision D of Division 4 of
Part XIC (heading)
Repeal the heading.
50 Subsection 152BR(1)
Omit “approved TAF” (wherever occurring).
51 Paragraph 152BR(1)(b)
Omit “approved variations”, substitute
“variations”.
52 Subsection 152BS(4)
Omit “approved TAF”.
53 Paragraph 152BV(1)(b)
Omit “approved TAF”.
54 Paragraph 152BW(1)(b)
Omit “approved TAF”.
55 Subparagraph
152BX(2)(b)(ii)
Omit “approved TAF”.
56 Subsection 152CH(1) (note
1)
Repeal the note.
57 Subsection 152CH(1) (note
2)
Omit “an ACCC”, substitute “a”.
58 Subsection 152CH(1) (note
5)
Omit “approved TAF”.
59 Subsection 152CI(2)
Omit “approved TAF”.
s
Part 11—Exemptions
from standard access obligations
60 After section 152AS
Insert:
Determination providing for exemption
(1) The Commission may, by written instrument, determine that, in the
event that a specified service or proposed service becomes an active declared
service, 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, to the extent to which the obligations relate
to the active declared service.
(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.
Criteria for making determination
(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) In applying subsection (4), the Commission must have regard
to:
(a) any matters specified in an instrument in force under
subsection (6); and
(b) the matter set out in subsection 152AB(2).
This subsection has effect despite subsection 152AB(3).
(6) The Minister may, by written instrument, specify matters for the
purposes of subsection (5).
(7) An instrument under subsection (6) is to be made available on the
Internet.
Expiry time of determination
(8) A determination under this section must specify the expiry time of the
determination. If a determination expires, this Part does not prevent the
Commission from making:
(a) a fresh determination under this section in the same terms as the
expired determination; or
(b) if the service or proposed service has become an active declared
service—a determination under section 152AS in relation to the
service.
(9) The expiry time of the determination may be described by reference to
the end of a period beginning when the service or proposed service becomes an
active declared service.
(10) Subsection (9) does not, by implication, limit
subsection (8).
Consultation
(11) 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.
Disallowable instrument
(12) An instrument under subsection (1) or (6) is a disallowable
instrument for the purposes of section 46A of the Acts Interpretation
Act 1901.
Definition
(13) In this section:
active declared service has the same meaning as in
section 152AR.
Note: The heading to section 152AS is altered by
omitting “Class” and substituting “Ordinary
class”.
61 Subsection 152AT(10)
Repeal the subsection, substitute:
Commission to make decision within 6 months
(10) If the Commission does not make a decision on an application under
subsection (1) within 6 months after receiving the application, the
Commission is taken to have made, at the end of that 6-month period, an order
under paragraph (3)(a) in accordance with the terms of the
application.
(11) In calculating the 6-month period referred to in
subsection (10), disregard:
(a) if the Commission has published the application under
subsection (9)—a day in the period:
(i) beginning on the date of publication; and
(ii) ending at the end of the time limit specified by the Commission when
it published the application; and
(b) if the Commission has requested further information under
section 152AU in relation to the application—a day during any part of
which the request, or any part of the request, remains unfulfilled.
Extension of decision-making period
(12) The Commission may, by written notice given to the applicant, extend
or further extend the 6-month period referred to in subsection (10), so
long as:
(a) the extension or further extension is for a period of not more than 3
months; and
(b) the notice includes a statement explaining why the Commission has been
unable to make a decision on the application within that 6-month period or that
6-month period as previously extended, as the case may be.
(13) As soon as practicable after the Commission gives a notice under
subsection (12), the Commission must cause a copy of the notice to be made
available on the Internet.
Notification of refusal of application
(14) 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.
Note: For variation and revocation of orders, see subsection
33(3) of the Acts Interpretation Act 1901.
Note 1: The following heading to subsection 152AT(1) is
inserted “Application for exemption order”.
Note 2: The following heading to subsection 152AT(3) is
inserted “Commission must make exemption order or refuse
application”.
Note 3: The following heading to subsection 152AT(4) is
inserted “Criteria for making exemption
order”.
Note 4: The following heading to subsection 152AT(5) is
inserted “Exemption orders”.
Note 5: The following heading to subsection 152AT(8) is
inserted “Expiry date for exemption order”.
Note 6: The following heading to subsection 152AT(9) is
inserted “Consultation”.
62 After section 152AT
Insert:
Application for exemption order
(1) A person who is, or expects to be, a carrier or a carriage service
provider may apply to the Commission for a written order that, in the event that
a specified service or proposed service becomes an active declared service, the
person is exempt from any or all of the obligations referred to in
section 152AR, to the extent to which the obligations relate to the active
declared service.
(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.
Commission must make exemption order or refuse application
(3) After considering the application, the Commission must:
(a) make a written order that, in the event that the service or proposed
service becomes an active declared service, the applicant is exempt from one or
more of the obligations referred to in section 152AR, to the extent to
which the obligations relate to the active declared service; or
(b) refuse the application.
(4) An order under paragraph (3)(a) may be unconditional or subject
to such conditions or limitations as are specified in the order.
(5) An order under paragraph (3)(a) has effect accordingly.
Criteria for making exemption order
(6) 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.
(7) In applying subsection (6), the Commission must have regard
to:
(a) any matters specified in an instrument in force under
subsection (8); and
(b) the matter set out in subsection 152AB(2).
This subsection has effect despite subsection 152AB(3).
(8) The Minister may, by written instrument, specify matters for the
purposes of subsection (7).
(9) An instrument under subsection (8) is to be made available on the
Internet.
Expiry time for exemption order
(10) An order under paragraph (3)(a) must specify the expiry time for
the order. If an order expires, this Part does not prevent the Commission from
making:
(a) a fresh order under paragraph (3)(a) in the same terms as the
expired order; or
(b) if the service or proposed service has become an active declared
service—an order under section 152AT in relation to the
service.
Consultation
(11) 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.
Commission to make decision within 6 months
(12) If the Commission does not make a decision on an application under
this section within 6 months after receiving the application, the Commission is
taken to have made, at the end of that 6-month period, an order under
paragraph (3)(a) in accordance with the terms of the application.
(13) In calculating the 6-month period referred to in
subsection (12), disregard:
(a) if the Commission has published the application under
subsection (11)—a day in the period:
(i) beginning on the date of publication; and
(ii) ending at the end of the time limit specified by the Commission when
it published the application; and
(b) if the Commission has requested further information under
section 152AU in relation to the application—a day during any part of
which the request, or any part of the request, remains unfulfilled.
Extension of decision-making period
(14) The Commission may, by written notice given to the applicant, extend
or further extend the 6-month period referred to in subsection (12), so
long as:
(a) the extension or further extension is for a period of not more than 3
months; and
(b) the notice includes a statement explaining why the Commission has been
unable to make a decision on the application within that 6-month period or that
6-month period as previously extended, as the case may be.
(15) As soon as practicable after the Commission gives a notice under
subsection (14), the Commission must cause a copy of the notice to be made
available on the Internet.
Notification of refusal of application
(16) 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.
Disallowable instrument
(17) An instrument under subsection (8) is a disallowable instrument
for the purposes of section 46A of the Acts Interpretation Act
1901.
Definition
(18) In this section:
active declared service has the same meaning as in
section 152AR.
Note: For variation and revocation of orders, see subsection
33(3) of the Acts Interpretation Act 1901.
Note: The heading to section 152AT is altered by
omitting “Individual” and substituting “Ordinary
individual”.
63 At the end of subsection
152AU(1)
Add “or 152ATA(1)”.
64 At the end of
section 152AU
Add:
(4) The Commission may withdraw its request for further information, in
whole or in part.
65 Subsection 152AV(1)
After “152AT”, insert “or 152ATA”.
66 Section 152AW
Repeal the section, substitute:
Decision on review
(1) On a review of a decision of the Commission under section 152AT
or 152ATA, the Tribunal may make a decision:
(a) in any case—affirming the Commission’s decision;
or
(b) in the case of a review of a decision of the Commission to make an
order under paragraph 152AT(3)(a) or paragraph 152ATA(3)(a)—setting aside
or varying the Commission’s decision; or
(c) in the case of a review of a decision of the Commission under
section 152AT refusing an application for an order—both:
(i) setting aside the Commission’s decision; and
(ii) in substitution for the decision so set aside, making an order under
paragraph 152AT(3)(a); or
(d) in the case of a review of a decision of the Commission under
section 152ATA refusing an application for an order—both:
(i) setting aside the Commission’s decision; and
(ii) in substitution for the decision so set aside, making an order under
paragraph 152ATA(3)(a); or
(e) in the case of a review of a decision of the Commission under
section 152AT or 152ATA varying an order—setting aside or varying the
Commission’s decision; or
(f) in the case of a review of a decision of the Commission under
section 152AT or 152ATA refusing to vary an order—both:
(i) setting aside the Commission’s decision; and
(ii) in substitution for the decision so set aside, varying the order;
or
(g) in the case of a review of a decision of the Commission under
section 152AT or 152ATA revoking an order—a decision setting aside
the Commission’s decision; or
(h) in the case of a review of a decision of the Commission under
section 152AT or 152ATA refusing to revoke an order—both:
(i) setting aside the Commission’s decision; and
(ii) in substitution for the decision so set aside, revoking the
order;
and, for the purposes of the review, the Tribunal may perform all the
functions and exercise all the powers of the Commission.
(2) A decision by the Tribunal:
(a) affirming a decision of the Commission; or
(b) varying a decision of the Commission; or
(c) setting aside a decision of the Commission; or
(d) made in substitution for a decision of the Commission;
is taken, for the purposes of this Act (other than section 152AV or
this section), to be a decision of the Commission.
Conduct of review
(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 only
to:
(a) any information given, documents produced or evidence given to the
Commission in connection with the making of the decision to which the review
relates; and
(b) any other information that was referred to in the Commission’s
reasons for making the decision to which the review relates.
Tribunal to make decision within 6 months
(5) If:
(a) a person applies to the Tribunal for a review of a decision of the
Commission under section 152AT or 152ATA; and
(b) the Tribunal does not make a decision under subsection (1) of
this section on the review within 6 months after receiving the application for
review;
the Tribunal is taken to have made, at the end of that 6-month period,
whichever of the following decisions is applicable:
(c) in the case of a review of a decision of the Commission to make an
order under paragraph 152AT(3)(a) or paragraph 152ATA(3)(a), where the applicant
for review is seeking to have the Tribunal set aside the Commission’s
decision—a decision setting aside the Commission’s
decision;
(d) in the case of a review of a decision of the Commission to make an
order under paragraph 152AT(3)(a) or paragraph 152ATA(3)(a), where the applicant
for review is seeking to have the Tribunal vary the Commission’s
decision—a decision varying the Commission’s decision in accordance
with the terms of the application for review;
(e) in the case of a review of a decision of the Commission under
section 152AT refusing an application for an order—both:
(i) a decision setting aside the Commission’s decision;
and
(ii) in substitution for the decision so set aside, a decision to make an
order under paragraph 152AT(3)(a) in accordance with the terms of the
application;
(f) in the case of a review of a decision of the Commission under
section 152ATA refusing an application for an order—both:
(i) a decision setting aside the Commission’s decision;
and
(ii) in substitution for the decision so set aside, a decision to make an
order under paragraph 152ATA(3)(a) in accordance with the terms of the
application;
(g) in the case of a review of a decision of the Commission under
section 152AT or 152ATA varying an order, where the applicant for review is
seeking to have the Tribunal set aside the Commission’s decision—a
decision setting aside the Commission’s decision;
(h) in the case of a review of a decision of the Commission under
section 152AT or 152ATA varying an order, where the applicant for review is
seeking to have the Tribunal vary the Commission’s decision—a
decision varying the Commission’s decision in the manner sought by the
applicant for review;
(i) in the case of a review of a decision of the Commission under
section 152AT or 152ATA refusing to vary an order—both:
(i) a decision setting aside the Commission’s decision;
and
(ii) in substitution for the decision so set aside, a decision to vary the
order in accordance with the terms of the application for variation;
(j) in the case of a review of a decision of the Commission under
section 152AT or 152ATA revoking an order—a decision setting aside
the Commission’s decision;
(k) in the case of a review of a decision of the Commission under
section 152AT or 152ATA refusing to revoke an order—both:
(i) a decision setting aside the Commission’s decision;
and
(ii) in substitution for the decision so set aside, a decision to revoke
the order.
Extension of decision-making period
(6) The Tribunal may, by written notice given to the applicant for review,
extend or further extend the 6-month period referred to in subsection (5),
so long as:
(a) the extension or further extension is for a period of not more than 3
months; and
(b) the notice includes a statement explaining why the Tribunal has been
unable to make a decision on the review within that 6-month period or that
6-month period as previously extended, as the case may be.
(7) As soon as practicable after the Tribunal gives a notice under
subsection (6), the Tribunal must cause a copy of the notice to be made
available on the Internet.
Note: Division 2 of Part IX applies to proceedings
before the Tribunal.
67 At the end of
section 152AX
Add “or 152ATA”.
68 After section 152AX
Insert:
(1) If the Commission:
(a) makes a decision under section 152AT or 152ATA; and
(b) gives a person a written statement setting out the reasons for the
decision;
the statement must specify the documents that the Commission examined in
the course of making the decision.
(2) If a document is specified under subsection (1), information in
the document is taken, for the purposes of paragraph 152AW(4)(b), to be referred
to in the Commission’s reasons for making the decision.
69 Application—section 152AW of the
Trade Practices Act 1974
(1) Subsections 152AW(1), (2) and (3) of the Trade Practices Act
1974 as amended by this Part apply in relation to:
(a) an application under section 152AV of the Trade Practices Act
1974 that was made after the commencement of this item; or
(b) an application under section 152AV of the Trade Practices Act
1974 that was made before the commencement of this item, so long as the
Tribunal did not make a decision on the review under subsection 152AW(1) of that
Act before the commencement of this item.
(2) Subsections 152AW(4) to (7) of the Trade Practices Act 1974 as
amended by this Part apply in relation to an application under
section 152AV of the Trade Practices Act 1974 that was made after
the commencement of this item.
(3) Despite the repeal of subsection 152AW(4) of the Trade Practices Act
1974 by this Part, that subsection continues to apply, in relation to an
application under section 152AV of the Trade Practices Act 1974 that
was made before the commencement of this item, as if that repeal had not
happened.
70 Section 152AA
Before “may adopt”, insert “(other than a special access
undertaking)”.
71 Section 152AC (definition of access
undertaking)
Omit “an undertaking under Division 5”, substitute
“an ordinary access undertaking or a special access
undertaking”.
72 Section 152AC
Insert:
ordinary access undertaking means an undertaking under
Subdivision A of Division 5.
73 Section 152AC
Insert:
special access undertaking means an undertaking under
Subdivision B of Division 5.
74 At the end of
section 152AL
Add:
Services covered by special access undertakings
(7) If:
(a) a person gives the Commission a special access undertaking in relation
to a service or a proposed service; and
(b) the undertaking is in operation; and
(c) the person supplies the service or proposed service (whether to itself
or to other persons);
the service supplied by the person is a declared
service.
(8) The Commission may declare a service under subsection (3) even if
the service is, to any extent, covered by subsection (7).
75 Paragraph 152BK(1)(b)
Before “access undertakings”, insert
“ordinary”.
76 Before
section 152BS
Insert:
77 Subsection 152BS(1)
Before “access undertaking”, insert
“ordinary”.
Note: The heading to section 152BS is altered by
inserting “ordinary” before “access
undertaking”.
78 At the end of subsection
152BS(1)
Add:
Note: The undertaking need not specify all terms and
conditions—see subparagraph 152AY(2)(b)(ii).
79 After subsection
152BS(6)
Insert:
(6A) The undertaking may be without limitations or may be subject to such
limitations as are specified in the undertaking.
80 After subsection
152BS(9)
Insert:
(9A) If an undertaking expires, this Part does not prevent the carrier or
provider from giving a fresh undertaking in the same terms as the expired
undertaking.
81 Subsection 152BT(1)
Before “access undertaking”, insert
“ordinary”.
82 At the end of
section 152BT
Add:
(4) The Commission may withdraw its request for further information, in
whole or in part.
83 Subsection 152BU(1)
Before “access undertaking”, insert
“ordinary”.
84 Subsections 152BU(3) and
(4)
Omit “access”.
85 At the end of
section 152BU
Add:
Commission to make decision within 6 months
(5) If the Commission does not make a decision under subsection (2)
about the undertaking within 6 months after receiving the undertaking, the
Commission is taken to have made, at the end of that 6-month period, a decision
under subsection (2) to accept the undertaking.
(6) In calculating the 6-month period referred to in subsection (5),
disregard:
(a) if the Commission has published the undertaking under paragraph
152BV(2)(a)—a day in the period:
(i) beginning on the date of publication; and
(ii) ending at the end of the time limit specified by the Commission when
it published the undertaking; and
(b) if the Commission has requested further information under
section 152BT in relation to the undertaking—a day during any part of
which the request, or any part of the request, remains unfulfilled.
Extension of decision-making period
(7) The Commission may, by written notice given to the carrier or
provider, extend or further extend the 6-month period referred to in
subsection (5), so long as:
(a) the extension or further extension is for a period of not more than 3
months; and
(b) the notice includes a statement explaining why the Commission has been
unable to make a decision on the undertaking within that 6-month period or that
6-month period as previously extended, as the case may be.
(8) As soon as practicable after the Commission gives a notice under
subsection (7), the Commission must cause a copy of the notice to be made
available on the Internet.
Note 1: The following heading to subsection 152BU(2) is
inserted “Decision to accept or reject
undertaking”.
Note 2: The following heading to subsection 152BU(3) is
inserted “Notice of decision”.
86 Paragraph 152BV(1)(a)
Before “access undertaking”, insert
“ordinary”.
87 Paragraph 152BW(1)(a)
Before “access undertaking”, insert
“ordinary”.
88 Subsection 152BX(1)
Before “access undertaking”, insert
“ordinary”.
89 Subsection 152BY(1)
Before “access undertaking”, insert
“ordinary”.
90 At the end of
section 152BY
Add:
Commission to make decision within 6 months
(7) If the Commission does not make a decision under subsection (3)
about the variation within 6 months after receiving the variation, the
Commission is taken to have made, at the end of that 6-month period, a decision
under subsection (3) to accept the variation.
(8) In calculating the 6-month period referred to in subsection (7),
disregard:
(a) if the Commission has published the variation under paragraph
152BV(2)(a)—a day in the period:
(i) beginning on the date of publication; and
(ii) ending at the end of the time limit specified by the Commission when
it published the variation; and
(b) if the Commission has requested further information under
section 152BZ in relation to the variation—a day during any part of
which the request, or any part of the request, remains unfulfilled.
Extension of decision-making period
(9) The Commission may, by written notice given to the person, extend or
further extend the 6-month period referred to in subsection (7), so long
as:
(a) the extension or further extension is for a period of not more than 3
months; and
(b) the notice includes a statement explaining why the Commission has been
unable to make a decision on the variation within that 6-month period or that
6-month period as previously extended, as the case may be.
(10) As soon as practicable after the Commission gives a notice under
subsection (9), the Commission must cause a copy of the notice to be made
available on the Internet.
Note 1: The following heading to subsection 152BY(3) is
inserted “Decision to accept or reject
variation”.
Note 2: The following heading to subsection 152BY(5) is
inserted “Notice of decision”.
91 Subsection 152BZ(1)
Before “access undertaking”, insert
“ordinary”.
92 At the end of
section 152BZ
Add:
(4) The Commission may withdraw its request for further information, in
whole or in part.
93 Subsection 152CA(1)
Before “access undertaking”, insert
“ordinary”.
94 Subsections 152CB(1) and
(2)
Before “access undertaking”, insert
“ordinary”.
95 After section 152CB
Insert:
Scope
(1) This section applies to a person who is, or expects to be, a carrier
or a carriage service provider supplying:
(a) a listed carriage service (within the meaning of the
Telecommunications Act 1997); or
(b) a service that facilitates the supply of a listed carriage service
(within the meaning of that Act);
whether to itself or to other persons, so long as the service is not an
active declared service.
Undertaking
(2) The person may give a written undertaking (a special access
undertaking) to the Commission in connection with the provision of
access to the service.
(3) The undertaking must state that, in the event that the person supplies
the service (whether to itself or to other persons), the person:
(a) agrees to be bound by the obligations referred to in
section 152AR, to the extent that those obligations would apply to the
person in relation to the service if the service were treated as an active
declared service; and
(b) undertakes to comply with the terms and conditions specified in the
undertaking in relation to the obligations referred to in
paragraph (a).
Note: The undertaking need not specify all terms and
conditions—see subparagraph 152AY(2)(b)(ii).
(4) The undertaking must be in a form approved in writing by the
Commission.
(5) The undertaking may be without limitations or may be subject to such
limitations as are specified in the undertaking.
Expiry time
(6) The undertaking must specify the expiry time of the
undertaking.
(7) The expiry time of the undertaking may be described by reference to
the end of a period beginning:
(a) when the undertaking comes into operation; or
(b) when the person begins to supply the service (whether to itself or to
other persons).
(8) Subsection (7) does not, by implication, limit
subsection (6).
(9) The undertaking may provide for the person to extend, or further
extend, the expiry time of the undertaking, so long as:
(a) the extension or further extension is approved by the Commission;
and
(b) the undertaking sets out criteria that are to be applied by the
Commission in deciding whether to approve the extension or further
extension.
(10) If the undertaking expires, this Part does not prevent the person
from giving:
(a) a fresh special access undertaking in the same terms as the expired
undertaking; or
(b) an ordinary access undertaking that deals with the same service as the
expired undertaking.
Related services
(11) 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.
Definition
(12) In this section:
active declared service has the same meaning as in
section 152AR.
Note: A service includes a proposed service—see
section 152CBJ.
(1) This section applies if a person gives a special access undertaking to
the Commission.
(2) The Commission may request the person to give the Commission further
information about the undertaking.
(3) The Commission may refuse to consider the undertaking until the person
gives the Commission the information.
(4) The Commission may withdraw its request for further information, in
whole or in part.
(1) This section applies if a person gives a special access undertaking to
the Commission.
Decision to accept or reject undertaking
(2) After considering the undertaking, the Commission must:
(a) accept the undertaking; or
(b) reject the undertaking.
Notice of decision
(3) If the Commission accepts the undertaking, the Commission must give
the person a written notice stating that the undertaking has been
accepted.
(4) If the Commission rejects the undertaking, the Commission must give
the person a written notice:
(a) stating that the undertaking has been rejected; and
(b) setting out the reasons for the rejection.
Commission to make decision within 6 months
(5) If the Commission does not make a decision under subsection (2)
about the undertaking within 6 months after receiving the undertaking, the
Commission is taken to have made, at the end of that 6-month period, a decision
under subsection (2) to accept the undertaking.
(6) In calculating the 6-month period referred to in subsection (5),
disregard:
(a) if the Commission has published the undertaking under paragraph
152CBD(2)(d)—a day in the period:
(i) beginning on the date of publication; and
(ii) ending at the end of the time limit specified by the Commission when
it published the undertaking; and
(b) if the Commission has requested further information under
section 152CBB in relation to the undertaking—a day during any part
of which the request, or any part of the request, remains unfulfilled.
Extension of decision-making period
(7) The Commission may, by written notice given to the person, extend or
further extend the 6-month period referred to in subsection (5), so long
as:
(a) the extension or further extension is for a period of not more than 3
months; and
(b) the notice includes a statement explaining why the Commission has been
unable to make a decision on the undertaking within that 6-month period or that
6-month period as previously extended, as the case may be.
(8) As soon as practicable after the Commission gives a notice under
subsection (7), the Commission must cause a copy of the notice to be made
available on the Internet.
(1) This section applies if a person gives the Commission a special access
undertaking relating to a service.
(2) The Commission must not accept the undertaking unless:
(a) the Commission is satisfied that the terms and conditions referred to
in paragraph 152CBA(3)(b) would be consistent with the obligations referred to
in paragraph 152CBA(3)(a); and
(b) the Commission is satisfied that those terms and conditions are
reasonable; and
(c) the Commission is satisfied that the undertaking is consistent with
any Ministerial pricing determination; and
(d) 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.
(3) In applying paragraph (2)(b), the Commission must have regard
to:
(a) any matters specified in an instrument in force under
subsection (4); and
(b) the matters set out in subsection 152AH(1).
This subsection does not, by implication, limit the matters to which regard
may be had.
(4) The Minister may, by written instrument, specify matters for the
purposes of subsection (3).
(5) An instrument under subsection (4) is to be made available on the
Internet.
(6) An instrument under subsection (4) is a disallowable instrument
for the purposes of section 46A of the Acts Interpretation Act
1901.
(1) This section applies if:
(a) a special access undertaking is given by a person; and
(b) the undertaking is in operation; and
(c) the undertaking provides for the person to extend the expiry time of
the undertaking, so long as the extension is approved by the Commission;
and
(d) the undertaking sets out criteria that are to be applied by the
Commission in deciding whether to approve the extension.
(2) The person may apply to the Commission for approval of the extension.
The application must be made in the 12-month period ending at the expiry
time.
(3) An application under subsection (2) must be:
(a) in writing; and
(b) in a form approved in writing by the Commission.
(4) After considering the application, the Commission must decide whether
to:
(a) approve the extension; or
(b) refuse to approve the extension.
(5) The Commission must approve the extension if the Commission is
satisfied that the criteria referred to in paragraph (1)(d) have been
met.
(6) If the Commission approves the extension, the Commission must give the
person a written notice stating that the extension has been approved.
(7) If the Commission refuses to approve the extension, the Commission
must give the person a written notice:
(a) stating that the Commission has refused to approve the extension;
and
(b) setting out the reasons for the refusal.
(8) In this section, a reference to an extension includes a
reference to a further extension.
(1) This section applies if a person gives the Commission a special access
undertaking relating to a service.
(2) If the Commission accepts the undertaking:
(a) the undertaking comes into operation at the time of acceptance;
and
(b) the undertaking continues in operation until:
(i) it expires; or
(ii) it is withdrawn as mentioned in section 152CBI;
even if the service becomes an active declared service.
(3) In this section:
active declared service has the same meaning as in
section 152AR.
(1) This section applies if a special access undertaking given by a person
is in operation.
(2) The person may give the Commission a variation of the
undertaking.
Decision to accept or reject variation
(3) After considering the variation, the Commission must decide
to:
(a) accept the variation; or
(b) reject the variation.
(4) Section 152CBD applies to the variation in a corresponding way to
the way in which it applies to an undertaking. However, if the variation is of a
minor nature, the Commission is not required to comply with paragraph
152CBD(2)(d) in relation to the variation.
Notice of decision
(5) If the Commission accepts the variation, the Commission must give the
person 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
person a written notice:
(a) stating that the variation has been rejected; and
(b) setting out the reasons for the rejection.
Commission to make decision within 6 months
(7) If the Commission does not make a decision under subsection (3)
about the variation within 6 months after receiving the variation, the
Commission is taken to have made, at the end of that 6-month period, a decision
under subsection (3) to accept the variation.
(8) In calculating the 6-month period referred to in subsection (7),
disregard:
(a) if the Commission has published the variation under paragraph
152CBD(2)(d)—a day in the period:
(i) beginning on the date of publication; and
(ii) ending at the end of the time limit specified by the Commission when
it published the variation; and
(b) if the Commission has requested further information under
section 152CBH in relation to the variation—a day during any part of
which the request, or any part of the request, remains unfulfilled.
Extension of decision-making period
(9) The Commission may, by written notice given to the person, extend or
further extend the 6-month period referred to in subsection (7), so long
as:
(a) the extension or further extension is for a period of not more than 3
months; and
(b) the notice includes a statement explaining why the Commission has been
unable to make a decision on the variation within that 6-month period or that
6-month period as previously extended, as the case may be.
(10) As soon as practicable after the Commission gives a notice under
subsection (9), the Commission must cause a copy of the notice to be made
available on the Internet.
(1) This section applies if a person gives the Commission a variation of a
special access undertaking.
(2) The Commission may request the person to give the Commission further
information about the variation.
(3) The Commission may refuse to consider the variation until the person
gives the Commission the information.
(4) The Commission may withdraw its request for further information, in
whole or in part.
(1) This section applies if a special access undertaking given by a person
is in operation.
(2) The person may, by written notice given to the Commission, withdraw
the undertaking if:
(a) the service to which the undertaking relates is a declared service
when the notice is given; or
(b) both:
(i) the service to which the undertaking relates is not a declared service
when the notice is given; and
(ii) at least 12 months before the notice is given, the person informed
the Commission in writing that the person proposed to withdraw the
undertaking.
(3) For the purposes of this section, in determining whether a service is
a declared service, disregard subsection 152AL(7).
In this Subdivision, a reference to a service includes a
reference to a proposed service.
96 Subsection 152CD(1)
Omit “carrier or carriage service provider”, substitute
“person (the first person)”.
97 Paragraph 152CD(2)(b)
After “person”, insert “(the affected
person)”.
98 Subsection 152CD(2)
Omit “carrier or provider”, substitute “first
person”.
99 Subsection 152CD(2)
Omit “or person”, substitute “or affected
person”.
100 Subsection 152CD(3)
Omit “carrier or provider” (wherever occurring), substitute
“first person”.
101 Subsection 152CE(1)
Omit “or 152BY(3)”, substitute “, 152BY(3), 152CBC(2) or
152CBG(3)”.
102 Section 152CF
Repeal the section, substitute:
Decision on review
(1) On a review of a decision of the Commission under subsection 152BU(2),
152BY(3), 152CBC(2) or 152CBG(3), the Tribunal may make a decision:
(a) in any case—affirming the Commission’s decision;
or
(b) in the case of a review of a decision of the Commission under
subsection 152BU(2) or 152CBC(2) to accept an undertaking—setting aside
the Commission’s decision; or
(c) in the case of a review of a decision of the Commission under
subsection 152BU(2) or 152CBC(2) to reject an undertaking—both:
(i) setting aside the Commission’s decision; and
(ii) in substitution for the decision so set aside, to accept the
undertaking; or
(d) in the case of a review of a decision of the Commission under
subsection 152BY(3) or 152CBG(3) to accept a variation of an
undertaking—setting aside the Commission’s decision; or
(e) in the case of a review of a decision of the Commission under
subsection 152BY(3) or 152CBG(3) to reject a variation of an
undertaking—both:
(i) setting aside the Commission’s decision; and
(ii) in substitution for the decision so set aside, to accept the
variation;
and, for the purposes of the review, the Tribunal may perform all the
functions and exercise all the powers of the Commission.
(2) A decision by the Tribunal:
(a) affirming a decision of the Commission; or
(b) setting aside a decision of the Commission; or
(c) made in substitution for a decision of the Commission;
is taken, for the purposes of this Act (other than section 152CE or
this section), to be a decision of the Commission.
Conduct of review
(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 only
to:
(a) any information given, documents produced or evidence given to the
Commission in connection with the making of the decision to which the review
relates; and
(b) any other information that was referred to in the Commission’s
reasons for making the decision to which the review relates.
Tribunal to make decision within 6 months
(5) If:
(a) a person applies to the Tribunal for a review of a decision of the
Commission under subsection 152BU(2), 152BY(3), 152CBC(2) or 152CBG(3);
and
(b) the Tribunal does not make a decision under subsection (1) of
this section on the review within 6 months after receiving the application for
review;
the Tribunal is taken to have made, at the end of that 6-month period,
whichever of the following decisions is applicable:
(c) in the case of a review of a decision of the Commission to accept an
access undertaking—a decision setting aside the Commission’s
decision;
(d) in the case of a review of a decision of the Commission to reject an
access undertaking:
(i) a decision setting aside the Commission’s decision;
and
(ii) in substitution for the decision so set aside, a decision to accept
the undertaking;
(e) in the case of a review of a decision of the Commission to accept a
variation of an access undertaking—a decision setting aside the
Commission’s decision;
(f) in the case of a review of a decision of the Commission to reject a
variation of an access undertaking:
(i) a decision setting aside the Commission’s decision;
and
(ii) in substitution for the decision so set aside, a decision to accept
the variation.
Extension of decision-making period
(6) The Tribunal may, by written notice given to the applicant for review,
extend or further extend the 6-month period referred to in subsection (5),
so long as:
(a) the extension or further extension is for a period of not more than 3
months; and
(b) the notice includes a statement explaining why the Tribunal has been
unable to make a decision on the review within that 6-month period or that
6-month period as previously extended, as the case may be.
(7) As soon as practicable after the Tribunal gives a notice under
subsection (6), the Tribunal must cause a copy of the notice to be made
available on the Internet.
Time of acceptance of undertaking
(8) To avoid doubt, if the Tribunal makes a decision to accept an
undertaking, the time of acceptance of the undertaking is the time when the
Tribunal made its decision.
Note: Division 2 of Part IX applies to proceedings
before the Tribunal.
103 Section 152CG
Omit “or 152BY(3)”, substitute “, 152BY(3), 152CBC(2) or
152CBG(3)”.
104 After
section 152CG
Insert:
(1) If the Commission:
(a) makes a decision referred to in section 152CE; and
(b) gives a person a written statement setting out the reasons for the
decision;
the statement must specify the documents that the Commission examined in
the course of making the decision.
(2) If a document is specified under subsection (1), information in
the document is taken, for the purposes of paragraph 152CF(4)(b), to be referred
to in the Commission’s reasons for making the decision.
A determination made by the Commission under Division 8 has no
effect to the extent to which it is inconsistent with an access undertaking that
is in operation.
105 Subsection 152CH(1) (note
3)
Before “access undertaking”, insert
“ordinary”.
106 Subsection 152CH(1) (after note
3)
Insert:
Note 3A: Subsection 152CBD(2) provides that the Commission
must not accept a special access undertaking unless the undertaking is
consistent with any Ministerial pricing determination.
107 At the end of
section 152CK
Add:
(4) For the purposes of this section, if a special access undertaking is
in operation, assume that subsection 152AL(7) has effect in relation to the
undertaking as if paragraph 152AL(7)(c) had not been enacted.
108 At the end of section 152CLA (after the
note)
Add:
Deferral of consideration of access dispute
(2) If:
(a) the Commission receives an access undertaking that relates, in whole
or in part, to a matter; and
(b) the matter is the subject of an access dispute that has been notified
to the Commission;
the Commission may defer consideration of the access dispute, in whole or
in part, while the Commission considers the access undertaking.
(3) Subsection (2) has effect despite anything in this Division
(other than subsection (4)).
Guidelines about deferral
(4) In exercising the power conferred by subsection (2), the
Commission must have regard to:
(a) the fact that the access undertaking will, if accepted, apply
generally to access seekers whereas a determination relating to the access
dispute will only apply to the parties to the determination; and
(b) any guidelines in force under subsection (5); and
(c) such other matters as the Commission considers relevant.
(5) The Commission must, by writing, formulate guidelines for the purposes
of subsection (4).
(6) The Commission must take all reasonable steps to ensure that the first
set of guidelines under subsection (5) is made within 6 months after the
commencement of this subsection.
(7) Guidelines under subsection (5) are to be made available on the
Internet.
109 Subsection 155AB(3) (definition of
protected Part XIB or XIC information)
Omit “or 155”, substitute “, 152CBB, 152CBH or
155”.
110 Transitional—subsection 152BS(6A) of
the Trade Practices Act 1974
To avoid doubt, an access undertaking given before the commencement of
subsection 152BS(6A) of the Trade Practices Act 1974 is as valid as it
would have been if that subsection had been in force when the undertaking was
given.
111 Application—section 152CF of the
Trade Practices Act 1974
(1) Subsections 152CF(1), (2) and (3) of the Trade Practices Act
1974 as amended by this Part apply in relation to:
(a) an application under section 152CE of the Trade Practices Act
1974 that was made after the commencement of this item; or
(b) an application under section 152CE of the Trade Practices Act
1974 that was made before the commencement of this item, so long as the
Tribunal did not make a decision on the review under subsection 152CF(1) of that
Act before the commencement of this item.
(2) Subsections 152CF(4) to (8) of the Trade Practices Act 1974 as
amended by this Part apply in relation to an application under
section 152CE of the Trade Practices Act 1974 that was made after
the commencement of this item.
(3) Despite the repeal of subsection 152CF(4) of the Trade Practices Act
1974 by this Part, that subsection continues to apply, in relation to an
application under section 152CE of the Trade Practices Act 1974 that
was made before the commencement of this item, as if that repeal had not
happened.
Part 13—Ordering
and provisioning
112 After subsection
152AR(4)
Insert:
Ordering and provisioning—paragraph (3)(b)
(4A) To avoid doubt, ordering and provisioning are taken to be aspects of
technical and operational quality referred to in
paragraph (3)(b).
(4B) The regulations may provide that, for the purposes of
subsection (4A), a specified act or thing is taken to be
ordering.
Note: For specification by class, see subsection 46(2) of
the Acts Interpretation Act 1901.
(4C) The regulations may provide that, for the purposes of
subsection (4A), a specified act or thing is taken to be
provisioning.
Note: For specification by class, see subsection 46(2) of
the Acts Interpretation Act 1901.
113 Transitional—paragraph 152AR(3)(b) of
the Trade Practices Act 1974
The amendment made by this Part is to be disregarded in determining the
meaning that paragraph 152AR(3)(b) of the Trade Practices Act 1974 had
before the commencement of this item.
Part 14—Review
of competition decisions
114 Subsections 151CJ(1) and
(2)
Repeal the subsections, substitute:
Decision on review
(1) On a review of a decision of the Commission of a kind mentioned in
section 151CI, the Tribunal may make a decision:
(a) in any case—affirming the Commission’s decision;
or
(b) in the case of a review of a decision of the Commission under
section 151BA refusing to make an exemption order—both:
(i) setting aside the Commission’s decision; and
(ii) in substitution for the decision so set aside, making an exemption
order; or
(c) in the case of a review of a decision of the Commission under
section 151BG to revoke an exemption order—setting aside the
Commission’s decision; or
(d) in the case of a review of a decision of the Commission under
section 151BQ, 151BUA, 151BUB or 151BUC—setting aside or varying the
Commission’s decision;
and, for the purposes of the review, the Tribunal may perform all the
functions and exercise all the powers of the Commission.
(2) A decision by the Tribunal:
(a) affirming a decision of the Commission; or
(b) setting aside a decision of the Commission; or
(c) made in substitution for a decision of the Commission; or
(d) 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.
Note: The following heading to subsection 151CJ(3) is
inserted “Conduct of review”.
115 Transitional—section 151CJ of the
Trade Practices Act 1974
Subsections 151CJ(1) and (2) of the Trade Practices Act 1974 as
amended by this Part apply in relation to:
(a) an application under section 151CI of the Trade Practices Act
1974 that was made after the commencement of this item; or
(b) an application under section 151CI of the Trade Practices Act
1974 that was made before the commencement of this item, so long as the
Tribunal did not make a decision on the review under subsection 151CJ(1) of that
Act before the commencement of this item.
Part 15—Competition
notices and advisory notices etc.
116 After subsection 151AKA(8) (before the
note)
Insert:
Consultation
(9) The Commission must not issue a Part A competition notice under
subsection (1) in relation to a carrier or carriage service provider unless
the Commission has first:
(a) given the carrier or provider a written notice:
(i) stating that the Commission proposes to issue a Part A competition
notice under subsection (1) in relation to the carrier or provider;
and
(ii) describing, in summary form, the instance of anti-competitive conduct
that is proposed to be specified in the Part A competition notice; and
(iii) inviting the carrier or provider to make a submission to the
Commission on the proposal by a specified time limit; and
(b) considered any submission that was received within that time
limit.
(10) The Commission must not issue a Part A competition notice under
subsection (2) in relation to a carrier or carriage service provider unless
the Commission has first:
(a) given the carrier or provider a written notice:
(i) stating that the Commission proposes to issue a Part A competition
notice under subsection (2) in relation to the carrier or provider;
and
(ii) describing, in summary form, the kind of anti-competitive conduct
that is proposed to be specified in the Part A competition notice; and
(iii) inviting the carrier or provider to make a submission to the
Commission on the proposal by a specified time limit; and
(b) considered any submission that was received within that time
limit.
117 Subsection 151AQB(1)
Repeal the subsection, substitute:
Issue of advisory notice
(1) The Commission may give a carrier or carriage service provider a
written notice (an advisory notice) advising the carrier or
provider of the action it should take, or consider taking, in order to ensure
that it does not engage, or continue to engage, in anti-competitive
conduct.
(2) The Commission does not have a duty to consider whether to issue an
advisory notice in relation to:
(a) a particular instance of anti-competitive conduct; or
(b) a particular kind of anti-competitive conduct;
before it issues a Part A competition notice in relation to that instance
or kind of conduct.
Note: The following heading to subsection 151AQB(3) is
inserted “Nature of advisory notice”.
118 Subsection 151AQB(4)
Repeal the subsection.
Note: The following heading to subsection 151AQB(5) is
inserted “Varying or revoking advisory
notice”.
119 At the end of
section 151AQB
Add:
Publication of advisory notice
(8) If the Commission is satisfied that:
(a) the publication of an advisory notice would result, or be likely to
result, in a benefit to the public; and
(b) that benefit would outweigh any substantial prejudice to the
commercial interests of a person that would result, or be likely to result, if
the advisory notice were published;
the Commission may publish the advisory notice in such manner as it thinks
fit.
120 At the end of
section 151AU
Add:
(3) The Commission may withdraw its request for further information, in
whole or in part.
Part 16—Record-keeping
rules and disclosure directions
121 Section 151AA
Omit “for inspection and purchase”.
122 Section 151AB (definition of
disclosure direction)
Omit “or 151BUC(2)”, substitute “, 151BUC(2), 151BUDB(2)
or 151BUDC(2)”.
123 Section 151AB
Insert:
Ministerially-directed report has the meaning given by
section 151BUAA.
124 After
section 151BU
Insert:
(1) The Minister may give written directions to the Commission in relation
to the exercise of its powers under section 151BU, 151BUDA, 151BUDB or
151BUDC.
(2) The Commission must comply with a direction under this
section.
(3) If:
(a) a record-keeping rule is made as a result of a direction under this
section; and
(b) the rule requires the preparation of a report;
then:
(c) the rule must contain a statement to the effect that the rule was made
as a result of a Ministerial direction; and
(d) a report prepared under the rule is to be known as a
Ministerially-directed report.
(4) A direction under this section is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act
1901.
(1) A person may request the Commission to exercise its powers
under:
(a) section 151BUA or 151BUB in relation to a particular report;
or
(b) section 151BUC in relation to a particular series of periodic
reports.
(2) The request must be in writing.
(3) The Commission must consider the request.
(4) However, the Commission need not consider the request if it considers
that the request is frivolous, vexatious or was not made in good
faith.
125 After
section 151BUD
Insert:
(1) This section applies to a particular Ministerially-directed report
given to the Commission by a carrier, or a carriage service provider, in
accordance with the record-keeping rules.
Public access
(2) The Commission:
(a) may make:
(i) copies of the report or copies of extracts from the report;
and
(ii) such other relevant material (if any) as the Commission
determines;
available to the public; and
(b) may also give a written direction to the carrier or provider requiring
it to take such action as is specified in the direction to inform the public, or
such persons as are specified in the direction, that the report is, or the
extracts are, so available.
Note: For specification by class, see subsection 46(2) of
the Acts Interpretation Act 1901.
Limited access
(3) The Commission may make:
(a) copies of the report or copies of extracts from the report;
and
(b) such other relevant material (if any) as the Commission
determines;
available:
(c) to particular persons; and
(d) on such terms and conditions (if any) as the Commission
determines.
(4) If subsection (3) applies, the Commission must take reasonable
steps to inform the persons who access copies of the report or extracts of the
terms and conditions (if any) on which the copies are available.
(5) If, in accordance with subsection (3), a person accesses a copy
of the report or extracts, the person must comply with the terms and conditions
(if any) on which the copy is available.
Offences
(6) A person is guilty of an offence if:
(a) the person is subject to a direction under paragraph (2)(b);
and
(b) the person omits to do an act; and
(c) the omission breaches the direction.
Penalty: 20 penalty units.
(7) A person is guilty of an offence if:
(a) the person is subject to a requirement
under subsection (5); and
(b) the person does an act or omits to do an act; and
(c) the act or omission breaches the requirement.
Penalty: 100 penalty units.
Exercise of power by Commission
(8) The Commission may only exercise a power under this section as
required by a direction in force under section 151BUAA.
Application of section 151BUA
(9) This section does not limit section 151BUA.
(1) This section applies to a Ministerially-directed report prepared by a
carrier, or a carriage service provider, in accordance with the record-keeping
rules.
Disclosure direction
(2) The Commission may give the carrier or provider:
(a) a written direction requiring it to make copies of the report or
copies of particular extracts from the report, together with other relevant
material (if any) specified in the direction, available:
(i) to the public; and
(ii) in the manner specified in the direction; and
(iii) as soon as practicable after the end of the period specified in the
direction; or
(b) a written direction requiring it to make copies of the report or
copies of particular extracts from the report, together with other relevant
material (if any) specified in the direction, available:
(i) to such persons as are specified in the direction; and
(ii) on such terms and conditions (if any) as are specified in the
direction; and
(iii) in the manner specified in the direction; and
(iv) as soon as practicable after the end of the period specified in the
direction.
Note: For specification by class, see subsection 46(2) of
the Acts Interpretation Act 1901.
(3) A direction under paragraph (2)(b) is also taken to require the
carrier or provider to take reasonable steps to inform the persons who access
the copies of the report or extracts of the terms and conditions (if any) that
are specified in the direction.
Direction to give information about availability of report
(4) If the Commission gives the carrier or provider a direction under
paragraph (2)(a), the Commission may also give it a written direction
requiring it to take such action as is specified in the direction to inform the
public:
(a) that the report is, or extracts are, available; and
(b) of the way in which the report or extracts may be accessed.
(5) If the Commission gives the carrier or provider a direction under
paragraph (2)(b), the Commission may also give it a written direction
requiring it to take such action as is specified in the direction to inform the
persons specified in the paragraph (2)(b) direction that:
(a) the report is, or the extracts are, available; and
(b) of the way in which the report or extracts may be accessed.
Compliance with terms and conditions
(6) If, in accordance with a direction under paragraph (2)(b), a
person accesses a copy of the report or extracts, the person must comply with
the terms and conditions (if any) that are specified in the direction.
Offences
(7) A person is guilty of an offence if:
(a) the person is subject to a direction under subsection (4) or (5);
and
(b) the person omits to do an act; and
(c) the omission breaches the direction.
Penalty: 20 penalty units.
(8) A person is guilty of an offence if:
(a) the person is subject to a requirement under subsection (6);
and
(b) the person does an act or omits to do an act; and
(c) the act or omission breaches the requirement.
Penalty: 100 penalty units.
Exercise of power by Commission
(9) The Commission may only exercise a power under this section as
required by a direction in force under section 151BUAA.
Application of section 151BUB
(10) This section does not limit section 151BUB.
Application of section 151BUDC
(11) Section 151BUDC does not limit this section.
(1) This section applies to a particular series of Ministerially-directed
periodic reports that are required to be prepared by a carrier, or a carriage
service provider, in accordance with the record-keeping rules.
Disclosure direction
(2) The Commission may give the carrier or provider:
(a) a written direction requiring it to make copies of each of the reports
in that series or copies of particular extracts from each of the reports in that
series, together with other relevant material (if any) specified in the
direction, available:
(i) to the public; and
(ii) in the manner specified in the direction; and
(iii) by such times as are ascertained in accordance with the direction;
or
(b) a written direction requiring it to make copies of each of the reports
in the series or copies of particular extracts from each of the reports in the
series, together with other relevant material (if any) specified in the
direction, available:
(i) to such persons as are specified in the direction; and
(ii) on such terms and conditions (if any) as are specified in the
direction; and
(iii) in the manner specified in the direction; and
(iv) by such times as are ascertained in accordance with the
direction.
Note 1: For example, a direction under paragraph (2)(a)
could require that each report in a particular series of quarterly reports be
made available by the 28th day after the end of the quarter to which the report
relates.
Note 2: For specification by class, see subsection 46(2) of
the Acts Interpretation Act 1901.
(3) A direction under paragraph (2)(b) is also taken to require the
carrier or provider to take reasonable steps to inform the persons who access
the copies of the report or extracts of the terms and conditions (if any) that
are specified in the direction.
Direction to give information about availability of report
(4) If the Commission gives the carrier or provider a direction under
paragraph (2)(a), the Commission may also give it a written direction
requiring it to take such action as is specified in the direction to inform the
public:
(a) that each of those reports is, or extracts are, available;
and
(b) of the way in which those reports or extracts may be
accessed.
(5) If the Commission gives the carrier or provider a direction under
paragraph (2)(b), the Commission may also give it a written direction
requiring it to take such action as is specified in the direction to inform the
persons specified in the paragraph (2)(b) direction:
(a) that each of those reports is, or extracts are, available;
and
(b) of the way in which those reports or extracts may be
accessed.
Compliance with terms and conditions
(6) If, in accordance with a direction under paragraph (2)(b), a
person accesses a copy of the report or extracts, the person must comply with
the terms and conditions (if any) that are specified in the direction.
Offences
(7) A person is guilty of an offence if:
(a) the person is subject to a direction under subsection (4) or (5);
and
(b) the person omits to do an act; and
(c) the omission breaches the direction.
Penalty: 20 penalty units.
(8) A person is guilty of an offence if:
(a) the person is subject to a requirement under subsection (6);
and
(b) the person does an act or omits to do an act; and
(c) the act or omission breaches the requirement.
Penalty: 100 penalty units.
Exercise of power by Commission
(9) The Commission may only exercise a power under this section as
required by a direction in force under section 151BUAA.
Application of section 151BUC
(10) This section does not limit section 151BUC.
Application of section 151BUDB
(11) Section 151BUDB does not limit this section.
1 Paragraph 15(1)(d)
Omit “1997; and”, substitute
“1997.”.
2 Paragraph 15(1)(e)
Repeal the paragraph.
3 Subsection 15(4) (definition of Industry
Minister)
Repeal the definition.
4 Application of amendments
(1) For the purposes of this item, if the Commonwealth did not incur any
costs for a financial year that were attributable to the administration of
Part 2 of Schedule 1 to the Telecommunications Act 1997, the
financial year is a zero-cost financial year.
(2) The amendments made by this Part apply in relation to charges imposed
on carrier licences in force at the beginning of:
(a) the first financial year where both of the following conditions are
satisfied:
(i) the financial year ends after the commencement of this item;
(ii) the immediately preceding financial year is a zero-cost financial
year; or
(b) a financial year that is later than that first financial
year.