Division 3Functional separation of NBN corporations

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An Act relating to certain companies associated with the national broadband network, and for other purposes ## Part 1—Preliminary #### 1 Short title This Act may be cited as the National Broadband Network Companies Act 2011. #### 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. ```html <table cellspacing="0" cellpadding="0" style="border-collapse:collapse"><thead><tr><td colspan="3" style="width:344.85pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top">Commencement information</td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top">Column 1</td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top">Column 2</td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top">Column 3</td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top">Provision(s)</td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top">Commencement</td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top">Date/Details</td></tr></thead><tbody><tr><td style="width:74.35pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top">1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table</td><td style="width:180.7pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top">The day this Act receives the Royal Assent.</td><td style="width:68.4pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top">12 April 2011</td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top">2. Sections 3 to 98</td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top">The later of:(a) the start of the day after this Act receives the Royal Assent; and(b) immediately after the commencement of item 2 of Schedule 5 to the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010.</td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top">13 April 2011</td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top">2A. Section 98A</td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top">22 March 2011.</td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top">22 March 2011</td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top">2B. Sections 99 to 101</td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top">The later of:(a) the start of the day after this Act receives the Royal Assent; and(b) immediately after the commencement of item 2 of Schedule 5 to the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010.</td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top">13 April 2011</td></tr><tr><td style="width:74.35pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top">3. Schedules 1 and 2</td><td style="width:180.7pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top">The later of:(a) the start of the day after this Act receives the Royal Assent; and(b) immediately after the commencement of item 2 of Schedule 5 to the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010.</td><td style="width:68.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.35pt; padding-left:5.35pt; vertical-align:top">13 April 2011</td></tr></tbody></table> ``` > Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. #### 3 Objects (1) The main objects of this Act, when read together with Part XIC of the Competition and Consumer Act 2010, are as follows: (a) to provide a regulatory framework for NBN corporations that promotes the long‑term interests of end‑users of carriage services or of services provided by means of carriage services; (b) to ensure that NBN Co remains in Commonwealth ownership. > Note 1: Clause 1 of Schedule 1 provides that each of the following is an NBN corporation: (a) NBN Co; (b) NBN Tasmania; (c) a company over which NBN Co is in a position to exercise control. > Note 2: For long‑term interests of end‑users of carriage services or of services provided by means of carriage services, see section 94. (2) The other objects of this Act, when read together with Part XIC of the Competition and Consumer Act 2010, are as follows: (a) to ensure that the supply of an eligible service by an NBN corporation is on a wholesale basis; (b) to ensure that an NBN corporation does not supply a content service; (c) to ensure that an NBN corporation does not supply a non‑communications service; (d) to ensure that an NBN corporation does not supply goods that are not for use in connection with the supply of an eligible service by the NBN corporation; (e) to restrict the investment activities of NBN corporations; (f) to provide a framework for the functional separation of NBN corporations; (g) to provide a framework for the divestiture of assets of NBN corporations; (h) to ensure that an NBN corporation provides open access to eligible services on a non‑discriminatory basis. #### 4 Simplified outline The following is a simplified outline of this Act: • An NBN corporation must not supply an eligible service to another person unless the other person is: (a) a carrier; or (b) a service provider. • An NBN corporation must not supply: (a) a content service; or (b) a non‑communications service; or (c) goods that are not for use in connection with the supply by an NBN corporation of an eligible service. • An NBN corporation may be required to prepare, and comply with, a functional separation undertaking. • The Communications Minister may give directions about the divestiture of assets of an NBN corporation. • A condition of a carrier licence held by an NBN corporation may require the NBN corporation to supply a specified carriage service. • A condition of a carrier licence held by an NBN corporation may prohibit the NBN corporation from supplying a specified carriage service. • Under provisions called the Commonwealth ownership provisions, the Commonwealth must retain ownership of NBN Co. > Note: Clause 1 of Schedule 1 provides that each of the following is an NBN corporation: (a) NBN Co; (b) NBN Tasmania; (c) a company over which NBN Co is in a position to exercise control. #### 5 Definitions In this Act: > ACCC means the Australian Competition and Consumer Commission. > Australia, when used in a geographical sense, includes the external Territories. > authority includes the following: (a) a Department of the government of the Commonwealth; (b) a Department of the government of a State; (c) a Department of the government of a Territory. > bank has the same meaning as in the Public Governance, Performance and Accountability Act 2013. > Board means the board of directors of NBN Co. > business unit, in relation to an NBN corporation, means a part of the NBN corporation. > carriage service has the same meaning as in the Telecommunications Act 1997. > carrier has the same meaning as in the Telecommunications Act 1997. > carrier licence has the same meaning as in the Telecommunications Act 1997. > carry has the same meaning as in the Telecommunications Act 1997. > charge has the same meaning as in the Corporations Act 2001. > Commonwealth ownership provisions means sections 45 and 46. > communications has the same meaning as in the Telecommunications Act 1997. > Communications Minister means the Minister who administers this Act. > constitution, in relation to NBN Co, has the same meaning as in the Corporations Act 2001. > constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies. > content service has the same meaning as in the Telecommunications Act 1997. > debenture has the same meaning as in the Corporations Act 2001. > declared service has the same meaning as in Part XIC of the Competition and Consumer Act 2010. > Department of Finance means the Department administered by the Finance Minister. > draft functional separation undertaking means a draft functional separation undertaking under Division 3 of Part 2. > electricity supply body means an authority, or a body corporate, that carries on a business, or performs a function, of: (a) generating, transmitting, distributing or supplying electricity; or (b) managing the generation, transmission, distribution or supply of electricity. > eligible service has the same meaning as in section 152AL of the Competition and Consumer Act 2010. > engage in conduct means: (a) do an act; or (b) omit to perform an act. > Federal Court means the Federal Court of Australia. > final functional separation undertaking means a final functional separation undertaking under Division 3 of Part 2. > Finance Minister means the Minister who administers the Public Governance, Performance and Accountability Act 2013. > functional includes organisational. > functional separation principles has the meaning given by subsection 24(1). > functional separation requirements determination means a determination under subsection 25(1). > gas supply body means an authority, or a body corporate, that carries on a business, or performs a function, of: (a) transmitting, distributing or supplying natural gas; or (b) managing the transmission, distribution or supply of natural gas. > intellectual property rights includes rights associated with: (a) a patent; or (b) copyright; or (c) a design; or (d) a trade secret; or (e) know‑how. > listed carriage service has the same meaning as in the Telecommunications Act 1997. > national broadband network means a national telecommunications network for the high‑speed carriage of communications, where an NBN corporation has been, is, or is to be, involved in the creation or development of the network. To avoid doubt, it is immaterial whether the creation or development of the network is, to any extent, attributable to: (a) the acquisition of assets that were used, or for use, in connection with another telecommunications network; or (b) the obtaining of access to assets that are also used, or for use, in connection with another telecommunications network. > NBN Co means NBN Co Limited (ACN 136 533 741), as the company exists from time to time (even if its name is later changed). > NBN corporation has the meaning given by clause 1 of Schedule 1. > NBN Tasmania means NBN Tasmania Limited (ACN 138 338 271), as the company exists from time to time (even if its name is later changed). > non‑communications service means a service other than: (a) an eligible service; or (b) a content service; or (c) a service that is ancillary or incidental to the supply by an NBN corporation of an eligible service; or (d) an advisory or consulting service that relates to: (i) the supply of an eligible service; or (ii) goods for use in connection with the supply of an eligible service; or (iii) facilities (within the meaning of the Telecommunications Act 1997); or (e) the provision, grant or conferral (whether by way of a licence or otherwise) of intellectual property rights that relate to: (i) the supply of an eligible service; or (ii) goods for use in connection with the supply of an eligible service; or (iii) facilities (within the meaning of the Telecommunications Act 1997). > rail corporation means a body corporate that manages or operates either or both of the following: (a) rail transport services; (b) rail transport infrastructure. > retail carriage service provider means a carriage service provider who supplies a listed carriage service to another person who is neither: (a) a carrier; nor (b) a service provider. > securities includes: (a) shares; and (b) debentures. > service provider has the same meaning as in the Telecommunications Act 1997. > sewerage services body means an authority, or a body corporate, that carries on a business, or performs a function, of supplying sewerage services. > State or Territory road authority means an authority that has responsibility for the management, regulation or control of motor traffic in a State or Territory. > storm water drainage services means services that consist of draining storm water. > storm water drainage services body means an authority, or a body corporate, that carries on a business, or performs a function, of supplying storm water drainage services. > telecommunications market has the same meaning as in Part XIB of the Competition and Consumer Act 2010. > telecommunications network has the same meaning as in the Telecommunications Act 1997. > telecommunications transmission tower has the same meaning as in Part 5 of Schedule 1 to the Telecommunications Act 1997. > voting share has the same meaning as in the Corporations Act 2001. > water supply body means an authority, or a body corporate, that carries on a business, or performs a function, of supplying water. #### 6 Crown to be bound (1) This Act binds the Crown in each of its capacities. (2) This Act does not make the Crown liable to a pecuniary penalty or to be prosecuted for an offence. (3) The protection in subsection (2) does not apply to an authority of the Crown. #### 7 Extension to external Territories This Act extends to every external Territory. ## Part 2—Operations of NBN corporations ### Division 1—Simplified outline #### 8 Simplified outline The following is a simplified outline of this Part: • An NBN corporation must not supply an eligible service to another person unless the other person is: (a) a carrier; or (b) a service provider. • An NBN corporation must not supply: (a) a content service; or (b) a non‑communications service; or (c) goods that are not for use in connection with the supply by an NBN corporation of an eligible service. • An NBN corporation’s investment activities are restricted. • An NBN corporation may be required to prepare a draft functional separation undertaking. • A final functional separation undertaking is a draft functional separation undertaking that has been approved by the Communications Minister. • An NBN corporation must comply with a final functional separation undertaking given by the NBN corporation. • The Communications Minister may give directions about the divestiture of assets of an NBN corporation. • A condition of a carrier licence held by an NBN corporation may require the NBN corporation to supply a specified carriage service. • A condition of a carrier licence held by an NBN corporation may prohibit the NBN corporation from supplying a specified carriage service. > Note: Clause 1 of Schedule 1 provides that each of the following is an NBN corporation: (a) NBN Co; (b) NBN Tasmania; (c) a company over which NBN Co is in a position to exercise control. ### Division 2—Rules about operations of NBN corporations #### Subdivision A—Supply of eligible services to be on wholesale basis #### 9 Supply of eligible services to be on wholesale basis An NBN corporation must not supply an eligible service to another person unless the other person is: (a) a carrier; or (b) a service provider. #### 10 Exemption—transport authorities (1) Section 9 does not apply if: (a) both: (i) the eligible service is a carriage service; and (ii) the sole use of the carriage service is use by Airservices Australia to carry communications necessary or desirable for the workings of aviation services; or (b) the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this subsection. (1A) Paragraph (1)(a) does not apply to a carriage service supplied to Airservices Australia unless the carriage service is supplied on the basis that Airservices Australia must not re‑supply the carriage service. (2) Section 9 does not apply if: (a) the eligible service is a carriage service, and the sole use of the carriage service is use by a State or Territory transport authority to carry communications necessary or desirable for the workings of the following services: (i) train services of a kind provided by the authority; (ii) bus or other road services of a kind provided by the authority; (iii) tram services of a kind provided by the authority; or (b) the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this subsection. (2A) Paragraph (2)(a) does not apply to a carriage service supplied to a State or Territory transport authority unless the carriage service is supplied on the basis that the State or Territory transport authority must not re‑supply the carriage service. (3) Section 9 does not apply if: (a) both: (i) the eligible service is a carriage service; and (ii) the sole use of the carriage service is use by a rail corporation to carry communications necessary or desirable for the workings of train services; or (b) the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this subsection. (4) Paragraph (3)(a) does not apply to a carriage service supplied to a rail corporation unless the carriage service is supplied on the basis that the rail corporation must not re‑supply the carriage service. #### 11 Exemption—electricity supply bodies (1) Section 9 does not apply if: (a) the eligible service is a carriage service, and the sole use of the carriage service is use by an electricity supply body to carry communications necessary or desirable for: (i) managing the generation, transmission, distribution or supply of electricity; or (ii) charging for the supply of electricity; or (b) the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this section. (2) Paragraph (1)(a) does not apply to a carriage service supplied to an electricity supply body unless the carriage service is supplied on the basis that the electricity supply body must not re‑supply the carriage service. #### 12 Exemption—gas supply bodies (1) Section 9 does not apply if: (a) the eligible service is a carriage service, and the sole use of the carriage service is use by a gas supply body to carry communications necessary or desirable for: (i) managing the transmission or distribution of natural gas in a pipeline; or (ii) charging for the supply of natural gas transmitted or distributed in a pipeline; or (b) the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this section. (2) Paragraph (1)(a) does not apply to a carriage service supplied to a gas supply body unless the carriage service is supplied on the basis that the gas supply body must not re‑supply the carriage service. #### 13 Exemption—water supply bodies (1) Section 9 does not apply if: (a) the eligible service is a carriage service, and the sole use of the carriage service is use by a water supply body to carry communications necessary or desirable for: (i) managing the distribution of water in a pipeline; or (ii) charging for the supply of water distributed in a pipeline; or (b) the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this section. (2) Paragraph (1)(a) does not apply to a carriage service supplied to a water supply body unless the carriage service is supplied on the basis that the water supply body must not re‑supply the carriage service. #### 14 Exemption—sewerage services bodies (1) Section 9 does not apply if: (a) the eligible service is a carriage service, and the sole use of the carriage service is use by a sewerage services body to carry communications necessary or desirable for: (i) managing the supply of sewerage services; or (ii) charging for the supply of sewerage services; or (b) the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this section. (2) Paragraph (1)(a) does not apply to a carriage service supplied to a sewerage services body unless the carriage service is supplied on the basis that the sewerage services body must not re‑supply the carriage service. #### 15 Exemption—storm water drainage services bodies (1) Section 9 does not apply if: (a) the eligible service is a carriage service, and the sole use of the carriage service is use by a storm water drainage services body to carry communications necessary or desirable for: (i) managing the supply of storm water drainage services; or (ii) charging for the supply of storm water drainage services; or (b) the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this section. (2) Paragraph (1)(a) does not apply to a carriage service supplied to a storm water drainage services body unless the carriage service is supplied on the basis that the storm water drainage services body must not re‑supply the carriage service. #### 16 Exemption—State or Territory road authorities (1) Section 9 does not apply if: (a) the eligible service is a carriage service, and the sole use of the carriage service is use by a State or Territory road authority to carry communications necessary or desirable for the management or control of road traffic; or (b) the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this section. (2) Paragraph (1)(a) does not apply to a carriage service supplied to a State or Territory road authority unless the carriage service is supplied on the basis that the State or Territory road authority must not re‑supply the carriage service. #### Subdivision B—Supply of other goods and services #### 17 Content services not to be supplied An NBN corporation must not supply a content service to another person. #### 18 Non‑communications services not to be supplied An NBN corporation must not supply a non‑communications service to another person. #### 19 Non‑communications goods not to be supplied An NBN corporation must not supply goods to another person unless: (a) the goods are for use in connection with the supply, or prospective supply, of an eligible service by the NBN corporation; or (b) the NBN corporation did not obtain the goods for the purpose of supplying the goods; or (c) the NBN corporation: (i) obtained the goods for the purpose of supplying the goods in connection with the supply, or prospective supply, of an eligible service by the NBN corporation; and (ii) considers the goods to be excess to the NBN corporation’s requirements. #### Subdivision BA—Access to a telecommunications transmission tower owned or operated by an NBN corporation etc. #### 19A Access to a telecommunications transmission tower (1) If a telecommunications transmission tower (the first tower) is owned or operated by an NBN corporation, the NBN corporation must, if requested to do so by an eligible person, give the eligible person access to the first tower if: (a) the access is for the sole purpose of enabling the eligible person to: (i) install particular equipment on the first tower; or (ii) maintain, operate or remove particular equipment installed by the eligible person on the first tower; and (b) in a case where subparagraph (a)(i) applies—the NBN corporation is satisfied that the installation of the equipment is technically feasible; and (c) in a case where: (i) subparagraph (a)(i) applies; and (ii) there is another telecommunications transmission tower in the vicinity of the first tower that is not owned or operated by the NBN corporation; the NBN corporation is reasonably satisfied that it would not be reasonable for the eligible person to install the equipment on the other tower. > Note 1: For eligible person, see section 19H. > Note 2: For equipment, see section 19G. > Note 3: See section 19C (reasonableness). Exemptions from sections 9, 18 and 19 (2) If the NBN corporation gives the eligible person access to the first tower in compliance with subsection (1), sections 9, 18 and 19 do not apply to: (a) the giving of access; or (b) the supply to the eligible person of goods that are incidental to the giving of access. Limits on subsection (1) obligation (3) Subsection (1) 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 an NBN corporation from reserving sufficient space on the first tower to be able to meet the NBN corporation’s reasonably anticipated requirements in relation to the installation of equipment, measured at the time when the request was made; (b) preventing a person (other than an NBN corporation) who has already installed equipment on the first tower from obtaining access to sufficient space on the first tower to be able to meet the person’s reasonably anticipated requirements in relation to the installation of equipment, measured at the time when the request was made; (c) depriving any person of a protected contractual right. (4) For the purposes of paragraph (3)(c), protected contractual right means a right under a contract that was in force at the commencement of this section. (5) Subsection (1) does not impose an obligation to give an eligible person access to the first tower if: (a) the eligible person is included in a class of persons specified under paragraph 19H(2)(a); and (b) the imposition of the obligation would be inconsistent with a limitation or restriction that, under paragraph 19H(2)(b), is applicable to that class. Exemption from compliance with subsection (1)—Ministerial determination (6) The Minister may, by legislative instrument, determine that subsection (1) does not impose an obligation if the conditions specified in the determination are satisfied. Technically feasible (7) For the purposes of this section, in determining whether it is technically feasible to install particular equipment on a telecommunications transmission tower, an NBN corporation must have regard to: (a) whether the installation of the equipment is likely to result in significant difficulties of a technical or engineering nature; and (b) whether the installation of the equipment is likely to result in a significant threat to the health or safety of persons who operate, or work on, the tower; and (c) if the installation of the equipment is likely to have a result referred to in paragraph (a) or (b)—whether there are practicable means of avoiding such a result, including (but not limited to): (i) changing the configuration or operating parameters of a facility situated on the tower; and (ii) making alterations to the tower; and (d) such other matters (if any) as are relevant. (8) For the purposes of subsection (7), facility has the same meaning as in the Telecommunications Act 1997. #### 19B Access to the site of a telecommunications transmission tower (1) If: (a) a telecommunications transmission tower owned or operated by an NBN corporation is situated on a particular site, and: (i) the site is owned, occupied or controlled by the NBN corporation; or (ii) the NBN corporation has a right (whether conditional or unconditional) to use the site; and (b) the NBN corporation is or was required by subsection 19A(1) to give an eligible person access to the tower for the purpose of enabling the eligible person to: (i) install particular equipment on the tower; or (ii) maintain, operate or remove particular equipment installed by the eligible person on the tower; the NBN corporation must, if requested to do so by the eligible person: (c) give the eligible person access to the site for the sole purpose of enabling the eligible person to: (i) install the equipment on the tower; or (ii) maintain, operate or remove the equipment installed by the eligible person on the tower; and (d) give the eligible person access to the site for the sole purpose of enabling the eligible person to: (i) install particular equipment on the site, where that equipment is for use in connection with the equipment mentioned in paragraph (b); or (ii) maintain, operate or remove the equipment first mentioned in subparagraph (i). > Note 1: For eligible person, see section 19H. > Note 2: For site, see section 19J. > Note 3: For equipment, see section 19G. Exemptions from sections 9, 18 and 19 (2) If the NBN corporation gives the eligible person access to the site in compliance with subsection (1), sections 9, 18 and 19 do not apply to: (a) the giving of access; or (b) the supply to the eligible person of goods that are incidental to the giving of access. Exemption from compliance with subsection (1)—Ministerial determination (3) The Minister may, by legislative instrument, determine that subsection (1) does not impose an obligation if the conditions specified in the determination are satisfied. #### 19C Reasonableness—Ministerial determinations (1) The Minister may, by legislative instrument: (a) determine that, if a condition specified in the determination is satisfied then, for the purposes of paragraph 19A(1)(c), it is taken to be reasonable for an eligible person to install equipment on a telecommunications transmission tower; or (b) determine that, if a condition specified in the determination is satisfied then, for the purposes of paragraph 19A(1)(c), it is taken not to be reasonable for an eligible person to install equipment on a telecommunications transmission tower. > Note: For eligible person, see section 19H. (2) A determination under subsection (1) must be an instrument of a legislative character. #### 19D Publication of access terms and conditions—towers (1) If a telecommunications transmission tower is owned or operated by an NBN corporation, the NBN corporation must publish on its website: (a) the terms and conditions relating to price or a method of ascertaining price; and (b) other terms and conditions; on which the NBN corporation offers to: (c) give an eligible person access to the tower, in compliance with subsection 19A(1), for the purpose of enabling the eligible person to: (i) install particular equipment; or (ii) maintain, operate or remove particular equipment; and (d) supply to an eligible person goods that are incidental to the giving of that access. > Note: For eligible person, see section 19H. (2) If: (a) a telecommunications transmission tower is owned or operated by an NBN corporation; and (b) an eligible person requests the NBN corporation to: (i) give the eligible person access to the tower; or (ii) supply to the eligible person goods that are incidental to giving the eligible person access to the tower; and (c) as a result of the request, the NBN corporation has an obligation under subsection 19A(1) to give access to the tower or supply the goods, as the case requires; and (d) in accordance with subsection (1), the NBN corporation has published on its website: (i) the terms and conditions relating to price or a method of ascertaining price; and (ii) other terms and conditions; on which the NBN corporation offers to give access to the tower or supply the goods, as the case requires; and (e) the eligible person requests the NBN corporation to enter into an agreement that: (i) relates to the access to the tower or the supply of the goods, as the case requires; and (ii) sets out terms and conditions that are the same as the terms and conditions published as mentioned in paragraph (d); the NBN corporation must comply with the request mentioned in paragraph (e). (3) If: (a) a telecommunications transmission tower is owned or operated by an NBN corporation; and (b) an eligible person requests the NBN corporation to: (i) give the eligible person access to the tower; or (ii) supply to the eligible person goods that are incidental to giving the eligible person access to the tower; and (c) as a result of the request, the NBN corporation has an obligation under subsection 19A(1) to give access to the tower or supply the goods, as the case requires; and (d) the access to the tower, or the supply of the goods, is not covered by an agreement between the NBN corporation and the eligible person; the terms and conditions on which the access is given, or the goods are supplied, as the case may be, are the terms and conditions that were published on the NBN corporation’s website, in accordance with subsection (1), at the time when the request was made. #### 19E Publication of access terms and conditions—sites (1) If: (a) a telecommunications transmission tower owned or operated by an NBN corporation is situated on a particular site; and (b) either: (i) the site is owned, occupied or controlled by the NBN corporation; or (ii) the NBN corporation has a right (whether conditional or unconditional) to use the site; the NBN corporation must cause to be published on its website: (c) the terms and conditions relating to price or a method of ascertaining price; and (d) other terms and conditions; on which it offers to: (e) give an eligible person access to the site, in compliance with subsection 19B(1), for the purpose of enabling the eligible person to: (i) install particular equipment; or (ii) maintain, operate or remove particular equipment; and (f) supply to an eligible person goods that are incidental to the giving of that access. > Note 1: For site, see section 19J. > Note 2: For eligible person, see section 19H. (2) If: (a) a telecommunications transmission tower owned or operated by an NBN corporation is situated on a particular site; and (b) either: (i) the site is owned, occupied or controlled by the NBN corporation; or (ii) the NBN corporation has a right (whether conditional or unconditional) to use the site; and (c) an eligible person requests the NBN corporation to: (i) give the eligible person access to the site; or (ii) supply to the eligible person goods that are incidental to giving the eligible person access to the site; and (d) as a result of the request, the NBN corporation has an obligation under subsection 19B(1) to give access to the site or supply the goods, as the case requires; and (e) in accordance with subsection (1), the NBN corporation has published on its website: (i) the terms and conditions relating to price or a method of ascertaining price; and (ii) other terms and conditions; on which the NBN corporation offers to give access to the site or supply the goods, as the case requires; and (f) the eligible person requests the NBN corporation to enter into an agreement that: (i) relates to the access to the site or the supply of the goods, as the case requires; and (ii) sets out terms and conditions that are the same as the terms and conditions published as mentioned in paragraph (e); the NBN corporation must comply with the request mentioned in paragraph (f). (3) If: (a) a telecommunications transmission tower owned or operated by an NBN corporation is situated on a particular site; and (b) either: (i) the site is owned, occupied or controlled by the NBN corporation; or (ii) the NBN corporation has a right (whether conditional or unconditional) to use the site; and (c) an eligible person requests the NBN corporation to: (i) give the eligible person access to the site; or (ii) supply to the eligible person goods that are incidental to giving the eligible person access to the site; and (d) as a result of the request, the NBN corporation has an obligation under subsection 19B(1) to give access to the site or supply the goods, as the case requires; and (e) the access to the site, or the supply of the goods, is not covered by an agreement between the NBN corporation and the eligible person; the terms and conditions on which the access is given, or the goods are supplied, as the case may be, are the terms and conditions that were published on the NBN corporation’s website, in accordance with subsection (1), at the time when the request was made. #### 19F Terms and conditions of access to be on a non‑discriminatory basis Telecommunications transmission towers (1) If a telecommunications transmission tower is owned or operated by an NBN corporation, the NBN corporation must not, in determining: (a) the terms and conditions relating to price or a method of ascertaining price; and (b) other terms and conditions; on which the NBN corporation: (c) gives an eligible person access to the tower, in compliance with subsection 19A(1), for the purpose of enabling the eligible person to: (i) install particular equipment; or (ii) maintain, operate or remove particular equipment; and (d) supplies to an eligible person goods that are incidental to the giving of that access; discriminate between eligible persons who seek or obtain access in such circumstances. > Note: For eligible person, see section 19H. Sites (2) If: (a) a telecommunications transmission tower owned or operated by an NBN corporation is situated on a particular site; and (b) either: (i) the site is owned, occupied or controlled by the NBN corporation; or (ii) the NBN corporation has a right (whether conditional or unconditional) to use the site; the NBN corporation must not, in determining: (c) the terms and conditions relating to price or a method of ascertaining price; and (d) other terms and conditions; on which the NBN corporation: (e) gives an eligible person access to the site, in compliance with subsection 19B(1), for the purpose of enabling the eligible person to: (i) install particular equipment; or (ii) maintain, operate or remove particular equipment; and (f) supplies to an eligible person goods that are incidental to the giving of that access; discriminate between eligible persons who seek or obtain access in such circumstances. #### 19G Equipment (1) For the purposes of this Subdivision, equipment means: (a) a facility (within the meaning of the Telecommunications Act 1997); or (b) an antenna; or (c) a measuring device; or (d) an apparatus; or (e) a thing that belongs to a class of things specified under subsection (2). (2) The Minister may, by legislative instrument, specify one or more classes of things for the purposes of paragraph (1)(e). #### 19H Eligible person (1) For the purposes of this Subdivision, eligible person means: (a) a police force or service; or (b) a fire service; or (c) an ambulance service; or (d) a State or Territory emergency services organisation; or (e) a person who is included in a class of persons specified under paragraph (2)(a). (2) The Minister may, by legislative instrument, do any or all of the following: (a) specify one or more classes of persons for the purposes of paragraph (1)(e); (b) for a class specified under paragraph (a)—declare that one or more specified limitations or restrictions are applicable to that class for the purposes of subsection 19A(5). (3) The Minister must not make a legislative instrument under subsection (2) unless the Minister is satisfied that it is in the public interest to do so. (4) Before making a legislative instrument under subsection (2), the Minister must consult the Minister who administers the Australian Federal Police Act 1979. #### 19J Site For the purposes of this Subdivision, site means: (a) land; or (b) a building on land; or (c) a structure on land. #### 19K Goods For the purposes of this Subdivision, goods includes electricity. #### Subdivision C—Investment activities #### 20 Restriction of investment activities (1) An NBN corporation must not invest money of the NBN corporation unless: (a) the investment is related to the supply, or prospective supply, of eligible services by the NBN corporation; or (b) both: (i) the investment is related to the supply, or prospective supply, of goods; and (ii) the goods are for use in connection with the supply, or prospective supply, of an eligible service by the NBN corporation; or (c) both: (i) the investment is in shares in a company; and (ii) the company carries on, proposes to carry on, or has the object of carrying on, a business that consists of or includes the supply of a carriage service; or (d) the investment is: (i) an investment in securities of the Commonwealth or of a State or Territory; or (ii) an investment in securities guaranteed by the Commonwealth, a State or a Territory; or (iii) a deposit with a bank, including a deposit evidenced by a certificate of deposit; or (iv) any other form of investment prescribed by rules made for the purposes of subparagraph 58(8)(a)(iii) of the Public Governance, Performance and Accountability Act 2013 (section 58 of that Act deals with investment by the Commonwealth). (2) Paragraphs (1)(c) and (d) apply both within and outside Australia. #### Subdivision D—Transitional #### 21 Transitional—pre‑commencement contractual obligations Scope (1) This section applies if, immediately before this section commences, an NBN corporation has an obligation (the pre‑existing obligation) under a contract to: (a) supply services; or (b) supply goods; or (c) invest money. For this purpose, it is immaterial whether the obligation is a contingent obligation Exemption (2) Sections 18 to 20 do not apply to: (a) a supply of goods; or (b) a supply of services; or (c) an investment; to the extent that the supply or investment is in fulfilment of the pre‑existing obligation. #### 22 Transitional—pre‑acquisition contractual obligations Scope (1) This section applies if: (a) at a particular time (the start time), a company other than NBN Co becomes an NBN corporation; and (b) immediately before the start time, the company has an obligation (the pre‑existing obligation) under a contract to: (i) supply services; or (ii) supply goods; or (iii) invest money. For this purpose, it is immaterial whether the obligation is a contingent obligation Exemption (2) Sections 18 to 20 do not apply to: (a) a supply of goods; or (b) a supply of services; or (c) an investment; to the extent that the supply or investment is in fulfilment of the pre‑existing obligation. ### Division 3—Functional separation of NBN corporations #### 23 Contents of draft or final functional separation undertaking (1) A draft or final functional separation undertaking given by an NBN corporation must: (a) comply with the functional separation principles that are applicable to the NBN corporation; and (b) comply with such requirements as are specified in a functional separation requirements determination that is applicable to the NBN corporation. > Note 1: For the functional separation principles, see section 24. > Note 2: For the functional separation requirements determination, see section 25. (2) If a final functional separation undertaking provides for the ACCC to perform functions or exercise powers in relation to the undertaking, the ACCC may perform those functions and exercise those powers in accordance with the undertaking. #### 24 Functional separation principles (1) The Communications Minister and the Finance Minister may, by writing, determine that specified principles are functional separation principles for the purposes of the application of this Act to a specified NBN corporation. > Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901. (2) Principles determined under subsection (1) must include: (a) the principle that the NBN corporation should maintain 2 or more specified business units; and (b) the principle that the NBN corporation should maintain arm’s length functional separation between the specified business units; and (c) the principle that the NBN corporation should have systems, procedures and practices that relate to: (i) compliance with a final functional separation undertaking given by the NBN corporation; and (ii) monitoring of, and reporting on, compliance with the final functional separation undertaking; and (iii) the development of performance measures relating to compliance with the final functional separation undertaking; and (iv) independent audit, and other checks, of compliance with the final functional separation undertaking. (3) Subsection (2) does not limit subsection (1). (5) A determination under subsection (1) is not a legislative instrument. #### 25 Functional separation requirements determination (1) The Communications Minister and the Finance Minister may make a written determination (a functional separation requirements determination) specifying requirements to be complied with by a draft or final functional separation undertaking given by a specified NBN corporation. (2) A functional separation requirements determination may deal with the manner in which the functional separation principles are to be implemented. (3) Subsection (2) does not limit subsection (1). (4) The Communications Minister and the Finance Minister must ensure that a functional separation requirements determination relating to an NBN corporation comes into force within 90 days after the first or only determination is made under subsection 24(1) in relation to the NBN corporation. (5) A determination under subsection (1) is not a legislative instrument. #### 26 Draft functional separation undertaking to be given to the Communications Minister and the Finance Minister (1) An NBN corporation must give the Communications Minister and the Finance Minister a draft functional separation undertaking: (a) within 90 days after the first or only functional separation requirements determination in relation to the NBN corporation comes into force; or (b) if a longer period is specified in an instrument under subsection (2)—within that longer period. (2) The Communications Minister and the Finance Minister may, by writing, specify a period for the purposes of paragraph (1)(b). (3) The Communications Minister and the Finance Minister may, by writing, vary a subsection (2) instrument. (4) A period specified in a subsection (2) instrument may be a period ascertained wholly or partly by reference to the occurrence of a specified event. (5) The Communications Minister and the Finance Minister do not have a duty to consider whether to exercise the power to make or vary a subsection (2) instrument, whether they are requested to do so by the NBN corporation or by any other person, or in any other circumstances. (6) The Communications Minister and the Finance Minister must cause a copy of an instrument under subsection (2) or (3) to be published on the Department’s website. (7) An instrument under subsection (2) or (3) is not a legislative instrument. #### 27 Approval of draft functional separation undertaking by the Communications Minister and the Finance Minister (1) This section applies if an NBN corporation gives the Communications Minister and the Finance Minister a draft functional separation undertaking (the original undertaking). (2) The Communications Minister and the Finance Minister must, by writing: (a) approve the original undertaking; or (b) both: (i) vary the original undertaking; and (ii) approve the original undertaking as varied; or (c) both: (i) determine that the NBN corporation is taken to have given the Communications Minister and the Finance Minister another draft functional separation undertaking (the replacement undertaking) in the terms specified in the determination, instead of the original undertaking; and (ii) approve the replacement undertaking. Consultation (3) Before making a decision under subsection (2), the Communications Minister and the Finance Minister must: (a) cause to be published on the Department’s website a notice: (i) setting out the original undertaking; and (ii) inviting persons to make submissions to the Communications Minister and the Finance Minister about the original undertaking within 14 days after the notice is published; and (b) give the ACCC a copy of the notice; and (c) cause to be published on the Department’s website a copy of each submission received within the 14‑day period mentioned in paragraph (a); and (d) consider any submissions received within the 14‑day period mentioned in paragraph (a); and (e) ask the ACCC to give advice to the Communications Minister and the Finance Minister, within 44 days after the notice is published, about the original undertaking; and (f) have regard to any advice given by the ACCC. Consultation—variation of original undertaking (4) Before making a decision under paragraph (2)(b) to approve the original undertaking as varied, the Communications Minister and the Finance Minister must: (a) give the NBN corporation a notice: (i) setting out the original undertaking as proposed to be varied; and (ii) inviting the NBN corporation to make submissions to the Communications Minister and the Finance Minister, within 14 days after the notice is given, about the original undertaking as proposed to be varied; and (b) consider any submissions received from the NBN corporation within the 14‑day period mentioned in paragraph (a). Consultation—replacement undertaking (5) Before making a decision under paragraph (2)(c) to approve the replacement undertaking, the Communications Minister and the Finance Minister must: (a) give the NBN corporation a notice: (i) setting out the proposed replacement undertaking; and (ii) inviting the NBN corporation to make submissions to the Communications Minister and the Finance Minister about the proposed replacement undertaking within 14 days after the notice is given; and (b) consider any submissions received from the NBN corporation within the 14‑day period mentioned in paragraph (a). Advice by the ACCC (6) Subsection (3) does not, by implication, prevent the Communications Minister and the Finance Minister from asking the ACCC to give the Communications Minister and the Finance Minister additional advice about a matter arising under this section. Notification of decision (7) As soon as practicable after making a decision under subsection (2), the Communications Minister and the Finance Minister must notify the NBN corporation in writing of the decision. Instrument is not a legislative instrument (8) An instrument made under subsection (2) is not a legislative instrument. #### 28 Time limit for making an approval decision (1) This section applies if an NBN corporation gives the Communications Minister and the Finance Minister a draft functional separation undertaking (the original undertaking). (2) The Communications Minister and the Finance Minister must use their best endeavours to make a decision under subsection 27(2) in relation to the original undertaking within 6 months after the original undertaking was given to the Communications Minister and the Finance Minister. #### 29 Effect of approval (1) If the Communications Minister and the Finance Minister approve a draft functional separation undertaking under subsection 27(2), the undertaking becomes a final functional separation undertaking. (2) A final functional separation undertaking given by an NBN corporation comes into force on the day after notice of the relevant decision is given to the NBN corporation in accordance with subsection 27(7). (3) A final functional separation undertaking may not be withdrawn. Undertaking is not a legislative instrument (4) A final functional separation undertaking is not a legislative instrument. #### 30 Variation of final functional separation undertaking (1) This section applies if a final functional separation undertaking given by an NBN corporation is in force. Variation (2) The Communications Minister and the Finance Minister may, in writing, vary the final functional separation undertaking: (a) at the request of the NBN corporation or another person; or (b) on the initiative of the Communications Minister and the Finance Minister. (3) The Communications Minister and the Finance Minister do not have a duty to consider whether to exercise the power to vary a final functional separation undertaking, whether they are requested to do so by the NBN corporation or by any other person, or in any other circumstances. Consultation (4) Before varying a final functional separation undertaking, the Communications Minister and the Finance Minister must: (a) cause to be published on the Department’s website a notice: (i) setting out the proposed variation; and (ii) inviting persons to make submissions to the Communications Minister and the Finance Minister about the proposed variation within 14 days after the notice is published; and (b) give the ACCC a copy of the notice; and (c) cause to be published on the Department’s website a copy of each submission received within the 14‑day period mentioned in paragraph (a); and (d) consider any submissions received within the 14‑day period mentioned in paragraph (a); and (e) ask the ACCC to give advice to the Communications Minister and the Finance Minister, within 44 days after the notice is published, about the proposed variation; and (f) have regard to any advice given by the ACCC. Minor variation (5) Subsection (4) does not apply to a proposed variation if the variation is of a minor nature. (6) If the proposed variation: (a) is of a minor nature; and (b) is not made at the request of the NBN corporation; then, before making the proposed variation, the Communications Minister and the Finance Minister must: (c) give the NBN corporation a notice: (i) setting out the proposed variation; and (ii) inviting the NBN corporation to make submissions to the Communications Minister and the Finance Minister about the proposed variation within 14 days after the notice is given; and (d) consider any submissions received from the NBN corporation within that 14‑day period. Advice by the ACCC (7) Subsection (4) does not, by implication, prevent the Communications Minister and the Finance Minister from asking the ACCC to give the Communications Minister and the Finance Minister additional advice about a matter arising under this section. Notification of variation (8) As soon as practicable after varying a final functional separation undertaking, the Communications Minister and the Finance Minister must notify the NBN corporation in writing of the variation. When variation comes into force (9) A variation of a final functional separation undertaking comes into force on the day after the notice of the variation is given to the NBN corporation in accordance with subsection (8). Variation is not a legislative instrument (10) A variation of a final functional separation undertaking is not a legislative instrument. #### 31 Publication of final functional separation undertaking (1) As soon as practicable after a final functional separation undertaking given by an NBN corporation comes into force, the NBN corporation must make a copy of the undertaking available on the NBN corporation’s website. (2) As soon as practicable after a variation of a final functional separation undertaking given by an NBN corporation comes into force, the NBN corporation must make a copy of the varied final functional separation undertaking available on the NBN corporation’s website. #### 32 Compliance with final functional separation undertaking If a final functional separation undertaking given by an NBN corporation is in force, the NBN corporation must comply with the undertaking. ### Division 4—Divestiture of assets by NBN corporations #### 33 Directions about disposal of assets (1) The Communications Minister and the Finance Minister may, by written notice given to an NBN corporation: (a) direct the NBN corporation: (i) to dispose of one or more specified assets of the NBN corporation (otherwise than by transferring the asset to another NBN corporation); and (ii) to do so within the period specified in the notice; and (b) give such other directions to the NBN corporation as the Communications Minister and the Finance Minister consider necessary for the purposes of securing the disposal. (2) In deciding whether to give a direction under subsection (1), the Communications Minister and the Finance Minister must have regard to the following: (a) whether the direction will promote the long‑term interests of end‑users of carriage services or of services provided by means of carriage services; (b) if the Communications Minister and the Finance Minister have required the ACCC under section 35 to give advice about the giving of the direction—the advice given in compliance with the requirement; (c) such other matters (if any) as the Communications Minister and the Finance Minister consider relevant. > Note: For long‑term interests of end‑users of carriage services or of services provided by means of carriage services, see section 94. (3) The Communications Minister and the Finance Minister must not give a direction under subsection (1) to an NBN corporation unless the NBN corporation is a constitutional corporation. (4) An NBN corporation must comply with a direction under subsection (1) that is applicable to the NBN corporation. (5) A direction under subsection (1) is not a legislative instrument. #### 34 Directions about transfer of assets to another NBN corporation (1) The Communications Minister and the Finance Minister may: (a) by written notice given to an NBN corporation (the transferor), direct the transferor: (i) to transfer one or more specified assets of the transferor to another NBN corporation specified in the notice (the transferee); and (ii) to do so within the period specified in the notice; and (b) by written notice given to the transferor or the transferee, give such other directions to the transferor or transferee as the Communications Minister and the Finance Minister consider necessary for the purposes of securing the transfer. (3) In deciding whether to give a direction under subsection (1), the Communications Minister and the Finance Minister must have regard to the following: (a) whether the direction will promote the long‑term interests of end‑users of carriage services or of services provided by means of carriage services; (b) if the Communications Minister and the Finance Minister have required the ACCC under section 35 to give advice about the giving of the direction—the advice given in compliance with the requirement; (c) such other matters (if any) as the Communications Minister and the Finance Minister consider relevant. > Note: For long‑term interests of end‑users of carriage services or of services provided by means of carriage services, see section 94. (4) The Communications Minister and the Finance Minister must not give a direction under subsection (1) to an NBN corporation unless the NBN corporation is a constitutional corporation. (5) An NBN corporation must comply with a direction under subsection (1) that is applicable to the NBN corporation. (6) A direction under subsection (1) is not a legislative instrument. #### 35 Advice from ACCC about disposal or transfer directions (1) The Communications Minister and the Finance Minister may, by written notice given to the ACCC, require the ACCC: (a) to give advice to the Communications Minister and the Finance Minister about whether the Communications Minister and the Finance Minister should give one or more directions under subsection 33(1) or 34(1); and (b) to do so within the period specified in the notice. (2) The ACCC must comply with the requirement. > Note: Under section 497 of the Telecommunications Act 1997, the ACCC could hold a public inquiry under Part 25 about a matter relating to the performance of this function. (3) For the purposes of section 496 of the Telecommunications Act 1997, the giving of advice by the ACCC in compliance with a requirement under subsection (1) is taken to be a matter concerning the telecommunications industry. > Note: Section 496 of the Telecommunications Act 1997 allows the Minister to direct the ACCC to hold a public inquiry under Part 25 about a specified matter concerning the telecommunications industry. (4) Subsection (3) is enacted for the avoidance of doubt. (5) If the ACCC holds a public inquiry under Part 25 of the Telecommunications Act 1997 about the giving of advice to the Communications Minister and the Finance Minister in compliance with a requirement under subsection (1), the ACCC must, in holding the inquiry and preparing its report on the inquiry, have regard to the following: (a) whether giving the relevant direction or directions under subsection 33(1) or 34(1) will promote the long‑term interests of end‑users of carriage services or of services provided by means of carriage services; (b) such other matters (if any) as the ACCC considers relevant. > Note: For long‑term interests of end‑users of carriage services or of services provided by means of carriage services, see section 94. (6) This section does not, by implication, prevent the Communications Minister and the Finance Minister from asking the ACCC to give the Communications Minister and the Finance Minister additional advice about a matter arising under this Division. (7) A requirement under subsection (1) is not a legislative instrument. #### 36 Exemption from stamp duty—transfer in compliance with transfer direction (1) Stamp duty or other tax is not payable under a law of a State or Territory in respect of: (a) a transfer of an asset in compliance with a direction under subsection 34(1); or (b) an agreement relating to a transfer covered by paragraph (a); (c) the receipt of money by an NBN corporation, or by a person acting on behalf of an NBN corporation, in respect of a transfer covered by paragraph (a); (d) anything done (including a transaction entered into or an instrument or document made, executed, lodged or given) because of, or for a purpose connected with or arising out of, a matter covered by paragraph (a), (b) or (c). (2) However, the rule in subsection (1) does not apply: (a) in such circumstances as are specified in the regulations; or (b) in relation to stamp duty, or other tax, of a kind specified in the regulations; or (c) in relation to stamp duty, or other tax, of a kind specified in the regulations, in such circumstances as are specified in the regulations. ### Division 5—Carrier licence conditions etc. #### 37 Carrier licence condition A carrier licence held by an NBN corporation is subject to a condition that the NBN corporation must comply with any rules in section 9, 17, 18, 19, 19A, 19B, 19D, 19E, 19F, 20, 26, 32, 33 or 34 that are applicable to the NBN corporation. > Note: See also section 62E of the Telecommunications Act 1997. #### 38 Service provider rule (1) In addition to the rules mentioned in section 98 of the Telecommunications Act 1997, the rule set out in subsection (2) of this section is a service provider rule for the purposes of that Act. (2) If an NBN corporation is a service provider, the NBN corporation must comply with any rules in section 9, 17, 18, 19, 19A, 19B, 19D, 19E, 19F, 20, 26, 32, 33 or 34 that are applicable to the NBN corporation. #### 39 Power to declare carrier licence conditions not limited Sections 9, 17, 18, 19, 19A, 19B, 19D, 19E, 19F, 20, 26, 32, 33 and 34 do not, by implication, limit the conditions that may be declared under section 63 of the Telecommunications Act 1997. #### 40 Power to determine service provider rules not limited Sections 9, 17, 18, 19, 19A, 19B, 19D, 19E, 19F, 20, 26, 32, 33 and 34 do not, by implication, limit the rules that may be determined under section 99 of the Telecommunications Act 1997. ### Division 6—Special carrier licence conditions #### 41 Conditions about supply of carriage services by NBN corporations Mandatory services (1) A condition of a carrier licence held by an NBN corporation may require the NBN corporation to comply with section 152CJB of the Competition and Consumer Act 2010 in relation to a specified eligible service that is supplied, or is capable of being supplied, by the NBN corporation (whether to itself or other persons). > Note 1: This means that the service will become a declared service, and the NBN corporation will be subject to a standard access obligation to supply the service under section 152AXB of the Competition and Consumer Act 2010. > Note 2: For declaration of carrier licence conditions, see section 63 of the Telecommunications Act 1997. > Note 3: For specification by class, see subsection 13(3) of the Legislation Act 2003. (2) A condition covered by subsection (1) has no effect in relation to an eligible service if, immediately before the time when the condition comes into force, the service, to the extent that it is capable of being supplied by the NBN corporation concerned, is a declared service. Prohibited services (3) A condition of a carrier licence held by an NBN corporation may prohibit the NBN corporation from supplying a specified carriage service to carriers or service providers. > Note 1: For declaration of carrier licence conditions, see section 63 of the Telecommunications Act 1997. > Note 2: For specification by class, see subsection 13(3) of the Legislation Act 2003. Power to declare carrier licence conditions not limited (4) Subsections (1) and (3) do not, by implication, limit the conditions that may be declared under section 63 of the Telecommunications Act 1997. #### 42 Consultation with ACCC Scope (1) This section applies if the Communications Minister is required under section 64 of the Telecommunications Act 1997 to give an NBN corporation a notice in relation to a condition covered by subsection 41(1) or (3) of this Act. Consultation with ACCC (2) Before giving the notice, the Communications Minister must consult the ACCC. ## Part 3—Ownership and control of NBN Co ### Division 1—Simplified outline #### 43 Simplified outline of this Part Parliament’s intention is that the national broadband network is operated by NBN Co. Under provisions called the Commonwealth ownership provisions, the Commonwealth must retain ownership of NBN Co. ### Division 2—Commonwealth ownership and control of NBN Co #### Subdivision AA—Infrastructure of national significance #### 43A Parliament’s intention in relation to operation of the national broadband network and ownership of NBN Co It is the Parliament’s intention, in recognition of the importance of the national broadband network as nation‑wide infrastructure, that: (a) the national broadband network is operated by NBN Co; and (b) NBN Co remains wholly owned by the Commonwealth. #### Subdivision A—Commonwealth ownership provisions #### 44 Commonwealth ownership provisions This Subdivision sets out the Commonwealth ownership provisions. #### 45 Commonwealth to retain ownership of NBN Co (1) The Commonwealth must not transfer any of its shares in NBN Co if the transfer results in a breach of subsection (2). (2) Neither the Commonwealth nor NBN Co is allowed to do anything to cause or contribute to any of the following results: (a) that the Commonwealth no longer holds shares in NBN Co that carry the rights to exercise all of the voting rights attached to the voting shares in NBN Co; (b) that the Commonwealth no longer controls the exercise of all of the voting rights attached to the voting shares in NBN Co; (c) that the Commonwealth no longer holds all of the paid‑up share capital of NBN Co; (d) that the Commonwealth is no longer entitled to hold all of the rights to any distribution of capital or profits of NBN Co on winding‑up; (e) that the Commonwealth is no longer entitled to hold all of the rights to any distribution of capital or profits of NBN Co, otherwise than on winding‑up. #### 46 Compliance by NBN Co (1) NBN Co must take all reasonable steps to ensure that a situation described in paragraph 45(2)(a), (b), (c), (d) or (e) does not exist. (2) NBN Co commits an offence if: (a) NBN Co engages in conduct; and (b) NBN Co’s conduct contravenes subsection (1). Penalty for contravention of this subsection: 500 penalty units. ### Division 4—General provisions #### 76 Extra‑territorial application This Part applies both within and outside Australia. ## Part 5—Anti‑avoidance #### 86 Anti‑avoidance (1) An NBN corporation must not, either alone or together with one or more other persons, enter into, begin to carry out or carry out a scheme if it would be concluded that the NBN corporation did so for the sole or dominant purpose of avoiding the application of any provision of this Act in relation to: (a) the NBN corporation; or (b) any other NBN corporation. (2) A contravention of subsection (1) is not an offence. However, a contravention of subsection (1) is a ground for obtaining an injunction under Part 6. (3) A contravention of subsection (1) does not affect the validity of any transaction. (4) In this section: > scheme means: (a) any agreement, arrangement, understanding, promise or undertaking, whether express or implied; and (b) any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise. ## Part 6—Injunctions #### 87 Simplified outline The following is a simplified outline of this Part: • The Federal Court may grant injunctions in relation to contraventions of this Act. #### 88 Injunctions Performance injunctions (1) If: (a) a person has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do an act or thing; and (b) the refusal or failure was, is or would be a contravention of this Act; the Federal Court may, on the application of the Communications Minister or the Finance Minister, grant an injunction requiring the person to do that act or thing. Restraining injunctions (2) If a person has engaged, is engaging or is proposing to engage, in any conduct in contravention of this Act, the Federal Court may, on the application of the Communications Minister or the Finance Minister, grant an injunction: (a) restraining the person from engaging in the conduct; and (b) if, in the Court’s opinion, it is desirable to do so—requiring the person to do something. #### 89 Interim injunctions Grant of interim injunction (1) If an application is made to the Federal Court for an injunction under subsection 88(2), the Court may, before considering the application, grant an interim injunction restraining a person from engaging in conduct of a kind referred to in that subsection. No undertakings as to damages (2) The Federal Court is not to require the Communications Minister or the Finance Minister, as a condition of granting an interim injunction, to give any undertakings as to damages. #### 90 Discharge etc. of injunctions The Federal Court may discharge or vary an injunction granted under this Part. #### 91 Certain limits on granting injunctions not to apply Restraining injunctions (1) The power of the Federal Court under this Part to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised: (a) if the Court is satisfied that the person has engaged in conduct of that kind—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; or (b) if it appears to the Court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind. Performance injunctions (2) The power of the Federal Court to grant an injunction requiring a person to do an act or thing may be exercised: (a) if the Court is satisfied that the person has refused or failed to do that act or thing—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; or (b) if it appears to the Court that, if an injunction is not granted, it is likely that the person will refuse or fail to do that act or thing—whether or not the person has previously refused or failed to do that act or thing. #### 92 Other powers of the Federal Court unaffected The powers conferred on the Federal Court under this Part are in addition to, and not instead of, any other powers of the Court, whether conferred by this Act or otherwise. ## Part 7—Miscellaneous #### 93 Severability (1) Without limiting its effect apart from this section, this Act (other than Division 4 of Part 2) also has effect as provided by this section. Corporations power (2) This Act (other than Division 4 of Part 2) also has the effect it would have if: (a) subsection (3) had not been enacted; and (b) each reference in this Act (other than Division 4 of Part 2) to an NBN corporation were, by express provision, confined to an NBN corporation that is a constitutional corporation. Communications power (3) This Act (other than Division 4 of Part 2) also has the effect it would have if: (a) subsection (2) had not been enacted; and (b) each reference in this Act (other than Division 4 of Part 2) to an NBN corporation were, by express provision, confined to an NBN corporation that carries on, proposes to carry on, or has the object of carrying on, a business that consists of or includes the supply of a carriage service. #### 94 Promotion of the long‑term interests of end‑users of carriage services and of services supplied by means of carriage services For the purposes of this Act, the question whether a particular thing promotes the long‑term interests of end‑users of carriage services or of services supplied by means of carriage services is to be determined in the same manner as it is determined for the purposes of Part XIC of the Competition and Consumer Act 2010. #### 95 NBN Co is not a public authority NBN Co is taken for the purposes of the laws of the Commonwealth, of a State or of a Territory: (a) not to have been incorporated or established for a public purpose or for a purpose of the Commonwealth; and (b) not to be a public authority or an instrumentality or agency of the Crown (however described); and (c) not to be entitled to any immunity or privilege of the Commonwealth; except so far as express provision is made by this Act or any other law of the Commonwealth, or by a law of a State or of a Territory, as the case may be. #### 96 Public Works Committee Act The Public Works Committee Act 1969 does not apply to an NBN corporation. #### 97 Winding‑up of NBN corporation not prevented by this Act This Act does not, by implication, prevent an NBN corporation being wound up in accordance with the Corporations Act 2001. #### 98 Rights of NBN corporation’s shareholders, debenture holders and creditors to be subject to this Act The rights of an NBN corporation’s shareholders, debenture holders and creditors are subject to this Act. #### 98A Exemption from stamp duty—matters related to the creation, development or operation of the national broadband network (1) In this section: > category A designated matter means any of the following matters: (a) an action taken by Telstra to cease to supply fixed‑line carriage services to customers using a telecommunications network over which Telstra is in a position to exercise control, where: (i) under section 577BA of the Telecommunications Act 1997, the action is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010; and (ii) the cessation relates to the creation, development or operation of the national broadband network; (b) an action taken by Telstra to commence to supply fixed‑line carriage services to customers using the national broadband network, where, under section 577BA of the Telecommunications Act 1997, the action is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010; (c) the receipt of money by a person in respect of a matter covered by paragraph (a) or (b); (d) an agreement that: (i) is between Telstra and an NBN corporation; and (ii) relates to a matter covered by paragraph (a) or (b); where, at the time when the agreement is entered into, an undertaking is in force under section 577A of the Telecommunications Act 1997; (e) an agreement that: (i) is between Telstra and an NBN corporation; and (ii) relates to a matter covered by paragraph (a) or (b); where the operative provisions of the agreement are subject to a condition precedent, namely, the coming into force of an undertaking under section 577A of the Telecommunications Act 1997. > category B designated matter means any of the following matters: (a) the transfer, from Telstra to an NBN corporation, of: (i) a conduit, wire or cable; or (ii) any equipment, apparatus or other thing used, or for use, in or in connection with a conduit, wire or cable; where: (iii) under section 577BA of the Telecommunications Act 1997, the transfer is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010; and (iv) the transfer relates to the creation, development or operation of the national broadband network; (b) the giving to an NBN corporation, by Telstra, of access to a facility owned or operated by Telstra, where: (i) under section 577BA of the Telecommunications Act 1997, the giving of the access is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010; and (ii) the access relates to the creation, development or operation of the national broadband network; (c) the giving to an NBN corporation, by Telstra, of access to a site: (i) owned, occupied or controlled by Telstra; and (ii) on which there is, or is proposed to be, situated a facility; where: (iii) under section 577BA of the Telecommunications Act 1997, the giving of the access is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010; and (iv) the access relates to the creation, development or operation of the national broadband network; (d) the supply to an NBN corporation, by Telstra, of an eligible service, where: (i) under section 577BA of the Telecommunications Act 1997, the supply of the service is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010; and (ii) the supply of the service relates to the creation, development or operation of the national broadband network; (e) the receipt of money by a person in respect of a matter covered by paragraph (a), (b), (c) or (d); (f) an agreement that: (i) is between Telstra and an NBN corporation; and (ii) relates to a matter covered by paragraph (a), (b), (c) or (d); where, at the time when the agreement is entered into, an undertaking is in force under section 577A of the Telecommunications Act 1997; (g) an agreement that: (i) is between Telstra and an NBN corporation; and (ii) relates to a matter covered by paragraph (a), (b), (c) or (d); where the operative provisions of the agreement are subject to a condition precedent, namely, the coming into force of an undertaking under section 577A of the Telecommunications Act 1997. > facility has the same meaning as in the Telecommunications Act 1997. > fixed‑line carriage service has the same meaning as in section 577BC of the Telecommunications Act 1997. > Telstra has the same meaning as in the Telstra Corporation Act 1991. Category A designated matters (2) Stamp duty or other tax is not payable under a law of a State or Territory in respect of: (a) a category A designated matter; or (b) anything done (including a transaction entered into or an instrument or document made, executed, lodged or given) because of, or for a purpose connected with or arising out of, a category A designated matter. (3) Subsection (2) ceases to have effect 24 months after the day on which the Communications Minister made a declaration under repealed section 48 that, in the Communications Minister’s opinion, the national broadband network should be treated as built and fully operational. > Note: The declaration under repealed section 48 was made on 11 December 2020. Category B designated matters (4) Stamp duty or other tax is not payable under a law of a State or Territory in respect of: (a) a category B designated matter; or (b) anything done (including a transaction entered into or an instrument or document made, executed, lodged or given) because of, or for a purpose connected with or arising out of, a category B designated matter. (5) Subsection (4) ceases to have effect when the Communications Minister made a declaration under repealed section 48 that, in the Communications Minister’s opinion, the national broadband network should be treated as built and fully operational. > Note: The declaration under repealed section 48 was made on 11 December 2020. Position to exercise control of a telecommunications network (6) For the purposes of this section, the question of whether Telstra is in a position to exercise control of a telecommunications network is to be determined under Division 7 of Part 33 of the Telecommunications Act 1997. Transitional—definitions etc. (7) For the purposes of this section, assume that: (a) sections 5 to 7; and (b) section 93; and (c) Schedule 1; had been in force throughout the period: (d) beginning at the commencement of this section; and (e) ending at the commencement of section 5. #### 98B Mapping data Initial provision of mapping data (1) NBN Co must: (a) provide to the Secretary the following mapping data about relevant premises connected, or due to be connected, to the national broadband network: (i) the geographical location of the relevant premises; (ii) the address of the relevant premises; (iii) the technology type of the connection to the national broadband network of the relevant premises; and (b) do so within 30 days after the Secretary gives a direction to NBN Co under subsection (4). (1A) NBN Co must: (a) provide to the Secretary the following mapping data about each national broadband network serving area module: (i) the boundaries and identification code for the national broadband network serving area module; (ii) the dominant technology type of connections to the national broadband network within the national broadband network serving area module; (iii) the date on which the majority of premises within the national broadband network serving area module were declared ready for service by NBN Co; and (b) do so within 150 days after the Secretary gives a direction to NBN Co under subsection (4). Subsequent provision of mapping data (2) The Secretary may, by written notice given to NBN Co, direct NBN Co to: (a) provide to the Secretary the following mapping data about relevant premises connected, or due to be connected, to the national broadband network: (i) the geographical location of the relevant premises; (ii) the address of the relevant premises; (iii) the technology type of the connection to the national broadband network of the relevant premises; and (b) do so within 30 days after the Secretary gives the direction to NBN Co. (2A) The Secretary may, by written notice given to NBN Co, direct NBN Co to: (a) provide to the Secretary the following mapping data about each national broadband network serving area module: (i) the boundaries and identification code for the national broadband network serving area module; (ii) the dominant technology type of connections to the national broadband network within the national broadband network serving area module; (iii) the date on which the majority of premises within the national broadband network serving area module were declared ready for service by NBN Co; and (b) do so within 90 days after the Secretary gives the direction to NBN Co. Form of mapping data etc. (3) Mapping data provided under subsection (1), (1A), (2) or (2A) must be in a form that allows separate maps to be produced for each technology type of connection to the national broadband network. (4) Within 14 days after the commencement of this section, the Secretary must, by written notice given to NBN Co, direct NBN Co to ensure that mapping data provided by NBN Co under subsection (1) or (1A) complies with specified requirements in relation to any or all of the following matters: (a) file format or formats; (b) mapping specifications; (c) any other matter that relates to the form of the mapping data. (5) The Secretary may, by written notice given to NBN Co, direct NBN Co to ensure that mapping data provided by NBN Co under subsection (2) or (2A) complies with specified requirements in relation to any or all of the following matters: (a) file format or formats; (b) mapping specifications; (c) any other matter that relates to the form of the mapping data. Compliance with directions (6) NBN Co must comply with a direction given by the Secretary under subsection (2), (2A), (4) or (5). Publication of mapping data (7) Before the end of the 60‑day period beginning when this section commences, the Secretary must arrange for mapping data provided under subsection (1) to be published electronically in colour‑coded format. > Note: The mapping data provided under subsection (1) could in 2025 be viewed on the Department’s website (https://www.infrastructure.gov.au). (7A) Before the end of the 30‑day period beginning on the day on which the Secretary is provided the mapping data under subsection (1A), the Secretary must arrange for the mapping data to be published electronically in colour‑coded format. > Note: The mapping data provided under subsection (1A) could in 2025 be viewed on the Department’s website (https://www.infrastructure.gov.au). Definitions (8) In this section: > national broadband network serving area module means a geographical region within NBN Co’s fixed‑line footprint which includes premises that are: (a) connected to the national broadband network; and (b) served by any of the following technology types of connection to the national broadband network: (i) fibre to the building; (ii) fibre to the premises; (iii) fibre to the node; (iv) fibre to the curb; (v) HFC. > relevant premises means: (a) planned premises (whether or not construction of the planned premises has commenced); or (b) existing premises. > Secretary means the Secretary of the Department. > technology type of a connection to the national broadband network means: (a) fibre to the node; or (b) fibre to the curb; or (c) fibre to the premises; or (d) HFC; or (e) fixed wireless; or (f) satellite; or (g) any other type of technology. #### 99 Delegation (1) The Communications Minister may, by writing, delegate to: (a) the Secretary of the Department; or (b) an SES employee, or acting SES employee, in the Department; all or any of the Communications Minister’s powers and functions under this Act. (2) The Finance Minister may, by writing, delegate to: (a) the Secretary of the Department of Finance; or (b) an SES employee, or acting SES employee, in the Department of Finance; all or any of the Finance Minister’s powers and functions under this Act. #### 100 Compensation for acquisition of property General (1) If the operation of this Act (other than section 34) or the regulations would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person. (2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court for the recovery from the Commonwealth of such reasonable amount of compensation as the Court determines. Direction to transfer asset (3) If the operation of section 34 in relation to the transfer of an asset to the transferee mentioned in that section would result in an acquisition of property from a person otherwise than on just terms, the transferee is liable to pay a reasonable amount of compensation to the person. (4) If the transferee and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court for the recovery from the transferee of such reasonable amount of compensation as the Court determines. Definitions (5) In this section: > acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution. > just terms has the same meaning as in paragraph 51(xxxi) of the Constitution. #### 101 Regulations The Governor‑General may make regulations prescribing matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.