An Act about telecommunications, and for related purposes
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Part 1—Preliminary
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1 Short title [see Note 1]
This Act may be cited as the Telecommunications Act 1991.
2 Commencement [see Note 1]
(1) Subject to this section, this Act commences on 1 July 1991.
(2) Sections 1 and 2 commence on the day on which this Act receives the Royal Assent.
(3) Sections 116 and 120 commence on a day to be fixed by Proclamation.
(4) If sections 116 and 120 do not commence under subsection (3) of this section before 1 January 1992, they commence on that day.
3 General objects of Act
The objects of this Act include:
(a) ensuring that the standard telephone service:
(i) is supplied as efficiently and economically as practicable; and
(ii) is, in view of the social importance of the service, reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and
(iii) is supplied at performance standards that reasonably meet the social, industrial and commercial needs of the Australian community; and
(b) maximising the efficiency of the carriers, as the primary providers of Australia’s telecommunications networks and the primary suppliers of Australia’s telecommunications services; and
(c) enabling the carriers to meet their commercial obligations and their obligations under this Act and other laws of the Commonwealth; and
(d) ensuring that the carriers achieve the highest possible levels of accountability and responsiveness to customer and community needs; and
(e) achieving optimal rates of expansion and modernisation for Australia’s telecommunications infrastructure and networks; and
(f) promoting the introduction of new and diverse telecommunications services; and
(g) enabling all sectors of the Australian telecommunications industry to participate effectively in Australian and overseas telecommunications markets on a commercial basis and making Australia more attractive as an international telecommunications centre; and
(h) promoting the development of other sectors of the Australian economy through the commercial supply of a full range of modern telecommunications services at the lowest possible prices; and
(i) creating a regulatory environment for the supply of telecommunications services which promotes competition and fair and efficient market conduct; and
(j) promoting the development of Australia’s telecommunications capabilities, industries and skills, for use in Australia and overseas; and
(k) promoting research and development within Australia in relation to new and diverse telecommunications facilities and services for use in Australia and overseas; and
(l) ensuring that all parts of the community benefit from lower prices for telecommunications facilities and services and from the future development of telecommunications networks.
Part 2—Interpretation
Division 1—General
4 Effect of this Part
The provisions of this Part have effect for the purposes of this Act, except so far as the contrary intention appears in this Act.
5 Definitions
Unless the contrary intention appears:
access agreement means an agreement made between 2 or more carriers for the purposes of:
(a) subsection 137(2) or (3); or
(b) one or more supplementary access conditions of one or more general telecommunications licences or public mobile licences;
and has the additional meaning for which section 156 provides.
accredited test house means a test house in relation to which there is in operation an accreditation granted under regulations made because of section 266.
adjacent area, in relation to a State or Territory, has the same meaning as in the Petroleum (Submerged Lands) Act 1967.
allocation, in relation to a number in respect of telecommunications services to be provided across a public telecommunications network, includes reservation for the future use of that number.
appointing authority means:
(a) in relation to a member appointed under section 368—the Governor-General; and
(b) in relation to an associate member appointed under section 369—the Minister.
appropriate fee, in relation to an application, means the fee for the application that is payable under the Telecommunications (Application Fees) Act 1991.
AUSTEL means the Australian Telecommunications Authority.
Australia includes the external Territories (if any) to which this Act extends.
basic carriage service has the meaning given by section 174.
BCS tariff, in relation to a carrier, means:
(a) a tariff given to AUSTEL by the carrier under section 190 and in force for the time being, whether or not it has been varied under section 192; or
(b) a tariff that purports to be such a tariff but does not comply with section 190;
but does not include:
(c) a tariff that contravenes subsection 190(4); or
(d) a document that AUSTEL has disallowed under section 191; or
(e) a document that constitutes a tariff of a kind referred to in paragraph (a) or (b) of this definition, or a part of such a document, being a document or part of a document that AUSTEL has disallowed under section 238A, except to the extent that its operation is continued under subsection 238A(11).
boundary, in relation to a telecommunications network, has a meaning affected by Division 2.
business day means a day that is not a Saturday, a Sunday or a public holiday or bank holiday in the place concerned.
cabling licence means a licence issued under Division 7 of Part 12 to perform cabling work.
cabling work means:
(a) the installation of customer cabling for connection to a telecommunications network operated by a carrier; or
(b) the connection of customer cabling to a telecommunications network operated by a carrier; or
(c) the maintenance of customer cabling connected to a telecommunications network operated by a carrier.
carrier means a general carrier or a mobile carrier.
carry includes transmit, switch and receive.
Chairperson means the Chairperson of AUSTEL.
charge includes:
(a) any charge or fee (whether payable periodically, in instalments or otherwise); and
(b) a nil charge or nil fee; and
(c) in relation to a telecommunications service, includes:
(i) any charge or fee (including of a kind referred to in paragraph (a) or (b)) for or in relation to a facility used, or intended for use, in relation to the supply of the service; and
(ii) any other charge or fee (including of a kind referred to in paragraph (a) or (b)) for or in relation to the supply of the service.
class licence means a class licence issued under Subdivision A of Division 3 of Part 10.
communication includes any communication:
(a) whether between persons and persons, things and things or persons and things; and
(b) whether:
(i) in the form of:
(A) speech, music or other sounds; or
(B) data; or
(C) text; or
(D) visual images, whether or not animated; or
(E) signals; or
(ii) in any other form or in any combination of forms.
condition, in relation to a general telecommunications licence or a public mobile licence, means a condition or restriction to which the licence is subject, or will be subject, as the case requires.
convention means a convention to which Australia is a party or an agreement or arrangement between Australia and a foreign country, and includes, for example, an agreement, arrangement or understanding between a Minister and an official or authority of a foreign country.
customer cabling means a line that:
(a) is, or is intended to be, connected to a telecommunications network operated by a carrier; and
(b) is used, or intended for use, beyond the boundaries of any such telecommunications network.
customer equipment means equipment that is, or is intended to be, connected to a telecommunications network operated by a carrier, other than equipment that is used, or intended for use, within the boundaries of such a network.
device has the same meaning as in the Radiocommunications Act 1992.
distinct places has the meaning given by Division 3.
dominate has a meaning affected by section 28.
earth-based facility means a facility other than a satellite-based facility.
eligible corporation means a body corporate that is, for the purposes of paragraph 51(20) of the Constitution, a trading corporation, or a financial corporation, formed within the limits of the Commonwealth.
eligible international service means an eligible service that is also an international service.
eligible service has the meaning given by section 18.
eligible Territory means an internal Territory, or an external Territory to which this Act extends.
emergency service number has the meaning given by section 242C.
equipment means any apparatus or equipment used, or intended for use, in or in connection with a telecommunications network, but does not include a line.
exempt activity means an activity, or conduct, engaged in in the course of, for the purposes of, or otherwise in connection with:
(a) installing, maintaining or operating a telecommunications network; or
(b) without limiting paragraph (a), supplying, installing, maintaining or operating a facility.
facility:
(a) in the case of a reference to a facility ancillary to a line link—has the meaning given by section 23; or
(b) otherwise—means:
(i) any part of the infrastructure of a telecommunications network; or
(ii) any line, equipment, tower, mast, antenna, tunnel, hole, pit, pole or other structure or thing used, or intended for use, in or in connection with a telecommunications network; or
(iii) without limiting subparagraph (i) or (ii), a facility ancillary to a line link (as defined by section 23).
Federal Court means the Federal Court of Australia.
Fund means the Universal Service Fund established by section 322.
general carrier means the holder of a general telecommunications licence in force under Part 5.
higher level service means a telecommunications service that is not a basic carriage service.
included, in relation to a BCS tariff, has the meaning given by section 21.
install includes alter, move, remove and replace.
interference has the same meaning as in the Radiocommunications Act 1992.
international service means a telecommunications service between a place within Australia and a place outside Australia.
international telecommunications operator means a person (other than a carrier) who operates a telecommunications network outside Australia for or in relation to the supply of international services, or who supplies such services.
law, in relation to a State or Territory, does not include the common law of the State or Territory.
levy means levy imposed by the Telecommunications (Universal Service Levy) Act 1991 and assessed under Division 3 of Part 13 of this Act.
licence, in Parts 5, 6, 7, 8 and 16, means a general telecommunications licence, or a public mobile licence, in force under Part 5.
licensee, in Part 12, means a natural person who is the holder of a cabling licence.
line means a wire, cable, optical fibre, tube, conduit, waveguide or other physical medium used, or intended for use, as a continuous artificial guide for or in connection with carrying communications by means of guided electromagnetic energy.
line link has the meaning given by section 22.
maintain includes adjust and repair.
market has the same meaning as in the Trade Practices Act 1974.
member means a member of AUSTEL and:
(a) in Division 5 of Part 8, includes:
(i) an associate member directed to perform the duties of a member generally; and
(ii) an associate member directed to perform the duties of a member in relation to specified matters that are related to the subject of the arbitration concerned; and
(b) in Part 17 (other than sections 367, 368, 372, 374 and 375), includes an associate member; and
(c) in section 375, includes:
(i) an associate member directed to perform the duties of a member generally; and
(ii) an associate member directed to perform the duties of a member in relation to specified matters that are related to the question to be decided.
mobile carrier means the holder of a public mobile licence in force under Part 5.
modifications includes variations, additions, omissions and substitutions.
national numbering plan means the plan prepared under section 239.
net cost area, in relation to a financial year, means an area declared under section 294 to be a net cost area for that financial year.
network matter means a matter relating to:
(a) the operation of telecommunications networks; or
(b) the operation of facilities connected to, and within the boundaries of, telecommunications networks; or
(c) the supply of telecommunications services by means of telecommunications networks.
Ombudsman means the Commonwealth Ombudsman.
participating carrier has the meaning given by section 289.
payphone means a fixed telephone that:
(a) is connected to a telecommunications network operated by a general carrier; and
(b) when in normal working order, cannot be used to make a telephone call (other than a free call or a call made with operator assistance) unless, as payment for the call, or to enable payment for the call to be collected:
(i) money, or a token, card or other object, has been put into a device that forms part of, is attached to, or is located near, the telephone; or
(ii) an identification number, or a code or other information (in numerical or any other form), has been input into a device that forms part of, is attached to, or is located near, the telephone; or
(iii) a prescribed act has been done.
permit means a permit issued under Division 6 of Part 12 for connection of customer equipment to a telecommunications network.
prescribed carrier obligation, in relation to a carrier, means a condition:
(a) to which a general telecommunications licence or public mobile licence held by the carrier is subject; and
(b) in relation to which a declaration under subsection 71(1) is in force, or for which section 72 or 292 provides.
prescribed external Territory means an external Territory to which this Act extends and that is prescribed for the purposes of this definition.
public access cordless telecommunications service has the meaning given by section 26.
public mobile telecommunications service has the meaning given by section 25.
public payphone means a payphone located in a public place.
public place means a place to which the public usually has access, or usually has access except during particular hours of the day or particular days of the week, but does not include:
(a) a place to which a person (other than a government, a public authority or an officer or employee of a government or of a public authority) is entitled to deny the public entry; or
(b) a vehicle, vessel, aircraft or other means of transport.
public telecommunications network, in Division 2 of Part 11, means a telecommunications network operated by a carrier.
radcom facility means a facility used for or in relation to carrying communications by means of radiocommunication.
radiocommunication has the same meaning as in the Radiocommunications Act 1992.
radiocommunications transmitter has the same meaning as in the Radiocommunications Act 1992.
receiver means a radiocommunications receiver within the meaning of the Radiocommunications Act 1992.
reserved line link has the meaning given by section 24.
satellite-based facility means a facility in a satellite.
service area means:
(a) any geographical area within Australia; or
(b) any area of land; or
(c) any premises or part of premises;
regardless of size, and whether or not constituting a property as defined by section 13 or a combined area as defined by section 14.
standard telephone service means:
(a) unless paragraph (b) applies—a public switched telephone service that:
(i) is supplied by a carrier; and
(ii) is supplied by means of a telephone handset that does not have switching functions; or
(b) if the regulations prescribe a telecommunications service, or telecommunications services, for the purposes of this definition—that telecommunications service or any of those telecommunications services.
supplementary access condition:
(a) in relation to a general telecommunications licence or a public mobile licence—has the meaning given by subsection 138(1); and
(b) in relation to a carrier—means a supplementary access condition (as defined by subsection 138(1)) of a general telecommunications licence or public mobile licence held by the carrier.
Telecom means:
(a) the Australian Telecommunications Corporation; and
(b) any successor in law to the Australian Telecommunications Corporation under paragraph 11(c) of the Telstra Corporation Act 1991.
Telecommunications Industry Ombudsman means the Telecommunications Industry Ombudsman appointed under an Ombudsman scheme entered into by the carriers in accordance with the conditions of their licences.
telecommunications network means a system, or series of systems, for carrying communications by means of guided or unguided electromagnetic energy or both.
telecommunications service means a service for carrying communications by means of guided or unguided electromagnetic energy or both.
terms and conditions, in relation to supplying telecommunications services, includes:
(a) discounts, allowances, rebates or credits given or allowed in relation to supplying the services; and
(b) the supply of goods, or of other services, in respect of the telecommunications services; and
(c) the making of payments for goods, or for other services, supplied in respect of the telecommunications services.
universal service carrier has the meaning given by section 291.
universal service obligation has the meaning given by section 288.
Division 2—Boundaries of telecommunications networks
6 End facilities
(1) An end facility is:
(a) a main distribution frame; or
(b) a telephone socket.
(2) An end facility is on a line link if, and only if, the end facility is connected to a line that is, or forms part of, the line link.
7 Boundary of a reserved line link
(1) An end facility on a reserved line link is a boundary of the reserved line link if, and only if:
(a) the end facility is on a property; and
(b) there is a line that is connected to the end facility and that, if it were removed from the end facility:
(i) would not itself be a line link of a kind referred to in subsection 24(1); and
(ii) would form part of no such line link; and
(c) in the case of a telephone socket—there is no other end facility on the property that precedes that telephone socket.
(2) An end facility that is on a reserved line link and on a property precedes another end facility that is on that line link and on that property if, and only if:
(a) there is a direct line link that connects the 2 end facilities; and
(b) that direct line link, if removed from the first-mentioned end facility:
(i) would not itself be a line link of a kind referred to in subsection 24(1); and
(ii) would form part of no line link of a kind so referred to.
(3) A line link is a direct line link that connects 2 end facilities that are on the same property if, and only if:
(a) there is connected to each of those end facilities a line that is, or forms part of, the line link; and
(b) no line that is, or forms part of, the line link is connected to any other end facility that is on the property.
(4) In this section:
property means:
(a) a property as defined by section 13; or
(b) a combined area, as defined by section 14, that is an eligible combined area for the purposes of paragraph 12(3)(b).
8 Facilities beyond the boundaries of a reserved line link
(1) A line is beyond the boundaries of a reserved line link if, and only if:
(a) the line is connected, within the meaning of subsection 22(2), to no line that is, or forms part of, the line link; or
(b) the line is connected to an end facility that is a boundary of the line link and, if the line were removed from that facility:
(i) the line would not itself be a line link of a kind referred to in subsection 24(1); and
(ii) the line would form part of no line link of a kind so referred to.
(2) Subject to subsection (3), a facility (other than a line) is beyond the boundaries of a reserved line link if, and only if:
(a) the facility is connected to no line that is, or forms part of, the line link, and to no facility (other than a line) to which such a line is connected; or
(b) the first-mentioned facility:
(i) is connected to an end facility that is a boundary of the line link; and
(ii) is not otherwise connected as mentioned in paragraph (a).
(3) An end facility that is a boundary of a reserved line link is taken to be within, and not beyond, the boundaries of that reserved line link.
9 Facilities within the boundaries of a telecommunications network comprising a reserved line link
A facility that is not beyond the boundaries of a reserved line link is within the boundaries of a telecommunications network:
(a) that is constituted by the line link; or
(b) of which the line link forms part.
10 Other boundaries of a telecommunications network
(1) Where a telecommunications network is used, or intended to be used, to supply telecommunications services to a person, this section applies unless customer equipment used for or in relation to the supply of the services to the person is connected to an end facility:
(a) that is on a line link; and
(b) that is a boundary, or is beyond the boundaries, of a reserved line link that is constituted by, or forms part of, the line link referred to in paragraph (a).
(2) The boundary of the network is the outside of the fixed facility nearest to the person that is used, or intended to be used, to supply the services, that is, the side of the fixed facility that would result in the fixed facility being within the boundary of the network.
11 Regulations may determine network boundaries
(1) The regulations may make provision for or in relation to:
(a) defining the boundaries of a telecommunications network; or
(b) determining the equipment, lines and other facilities that are to be taken to be beyond, or not beyond, the boundaries of a telecommunications network.
(2) Regulations in force because of subsection (1) have effect despite anything in this Division.
Division 3—Distinct places
12 Basic rules
(1) Places are distinct unless they are all in the same area because of subsection (2), (3) or (4).
(2) Places are in the same area if they are all situated in the same property as defined by section 13.
(3) Places are in the same area if they are situated in properties each of which forms part of a combined area as defined by section 14 and:
(a) the same person or persons is or are the principal user (as defined by section 15) of all the properties that together constitute that combined area; or
(b) because of a determination in force under section 16, that combined area is an eligible combined area for the purposes of this paragraph.
(4) Places are in the same area if they are all situated in the same prescribed external Territory.
(5) The later provisions of this Division have effect only for the purposes of this Division.
13 Properties
(1) An area of land is a property if:
(a) there is a single freehold or leasehold title in relation to that area (whether or not that title is registered under a law of a State or Territory relating to the registration of interests in land); and
(b) no part of that area is subject to a lease granted by the holder of that title; and
(c) the title to the area is defined by reference to geographical coordinates.
(2) If:
(a) there is a single freehold or leasehold title (as mentioned in paragraph (1)(a)) in relation to an area of land; and
(b) some but not all of that area is subject to a lease granted by the holder of that title;
then, an area of land:
(c) all of which is within the area referred to in paragraph (a) of this subsection; and
(d) none of which is subject to such a lease;
is a property unless it is only part of another such area.
(3) An area of land is not a property except as provided in this section.
(3A) The regulations may prescribe the circumstances in which an area of land in relation to which there is a single freehold or leasehold title is not to constitute a property for the purposes of this Act.
(3B) Despite paragraph (1)(c), the regulations may prescribe the circumstances in which an area of land, the title to which is defined otherwise than by reference to geographical coordinates, is a property if:
(a) the Minister has consulted each general carrier whose interests may, in the Minister’s opinion, be affected by the proposed regulation; and
(b) in the Minister’s opinion, the regulation will not erode unduly the practical value of the general carriers’ rights under sections 90 and 92.
(4) In this section:
land includes premises and a part of premises, but does not include unalienated Crown land.
lease includes sublease and leasehold title has a corresponding meaning.
14 Combined areas
(1) Two contiguous properties form a combined area.
(2) Where:
(a) a property is contiguous with another property; and
(b) the other property forms part of a combined area;
the first-mentioned property, and the combined area referred to in paragraph (b), together form a combined area.
(3) Subsection (2) is recursive, that is, the reference in paragraph (2)(b) to a combined area is a reference to something that is a combined area because of any other application or applications of this section.
15 Principal user of a property
(1) The principal user of a property is the person who:
(a) occupies the property; or
(b) uses the property for the purpose that is the sole or principal purpose for which the property is used.
(2) However, if 2 or more persons:
(a) together occupy a property; or
(b) together use a property for the purpose that is the sole or principal purpose for which the property is used;
they are taken to together be the principal user of the property.
16 Eligible combined areas
(1) The Minister may by writing determine that specified combined areas are eligible combined areas for the purposes of paragraph 12(3)(b).
(2) The Minister may make or vary a determination under subsection (1) only if:
(a) he or she has consulted each general carrier whose interests may, in his or her opinion, be affected by the determination, or by the determination as varied, as the case may be; and
(b) in his or her opinion, the determination, or the determination as varied, as the case may be, will not erode unduly the practical value of the general carriers’ rights under sections 90 and 92.
(3) An instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Division 4—Interpreting other expressions
17 Equipment etc. connected to network
Equipment, or a line or other facility, is connected to a telecommunications network if the equipment, line or other facility (either by itself or in conjunction with any other thing) is being used to supply, or is installed or connected for use to supply, telecommunications services by means of the network, whether or not the equipment, line or other facility is comprised in, or is in physical contact with any part of, the network.
18 Eligible services
(1) Subject to this section, a telecommunications service that is supplied by means of:
(a) at least one reserved line link; or
(b) facilities including at least one reserved line link;
is an eligible service.
(2) Subject to this section, a telecommunications service:
(a) between distinct places within Australia; or
(b) between places within Australia and places outside Australia;
that is supplied by the use of satellite-based facilities is an eligible service.
(3) A telecommunications service (other than a public mobile telecommunications service or a public access cordless telecommunications service) that is supplied by a general carrier is not an eligible service.
(4) A public mobile telecommunications service that is supplied by a mobile carrier is not an eligible service.
(5) The fact that subsection (3) or (4) prevents a telecommunications service of a particular kind from being an eligible service because it is supplied by a general carrier or a mobile carrier, as the case may be, must be disregarded in determining whether a telecommunications service of that kind that is supplied by a person other than such a carrier is an eligible service because of subsection (1) or (2).
19 What constitutes supply of an eligible service under a class licence
An eligible service is supplied under a class licence if:
(a) supplying the service is permitted under the class licence; and
(b) the service is supplied in accordance with the conditions of the licence.
20 Meaning of customer equipment of same type
An item of customer equipment is of the same type as another item of customer equipment if:
(a) the items were produced to specifications that differ in no material respect; and
(b) the respective ways in which the items were produced differ in no material respect; and
(c) the form and functions of the one item differ in no material respect from the form and functions of the other item.
21 Inclusion of a service in a BCS tariff
A basic carriage service of a particular kind is included in a carrier’s BCS tariff if, and only if, the tariff complies, or purports to comply, with subsections 190(5), (6) and (8) in relation to that kind of basic carriage service.
22 Line links
(1) A line constitutes a line link.
(2) Where:
(a) a line is connected to another line; and
(b) the other line constitutes, or forms part of, a line link;
the first-mentioned line, and the line link referred to in paragraph (b), together constitute a line link.
(3) Subsection (2) is recursive, that is, the reference in paragraph (2)(b) to a line link is a reference to something that is a line link because of any other application or applications of this section.
(4) For the purposes of subsection (2), a line is connected to another line if, and only if:
(a) the lines are connected to each other; or
(b) each of the lines is connected to the same facility (other than a line);
in such a way that a communication can be carried, by means of the 2 lines, or by means of facilities including the 2 lines, in the same way as if the 2 lines were a single line.
(5) A facility other than a line does not form part of any line link.
23 Facilities ancillary to a line link
A reference to a facility ancillary to a line link is a reference to:
(a) a tunnel, hole, pit, duct, pipe, sheath, conduit or similar thing; or
(b) a pole, tower, mast or similar structure;
so far as it is used, or intended for use, to contain, support or protect:
(c) a line or lines constituting, or forming part of, the line link; or
(d) equipment connecting 2 or more such lines.
24 Reserved line links
(1) A reserved line link is:
(a) a line link between distinct places within Australia; or
(b) a line link between a place within Australia and a place outside Australia;
whether or not installed or maintained by a general carrier.
(2) Where:
(a) but for this subsection, the whole of a line link would be a reserved line link; and
(b) a line that forms part of that line link is beyond the boundary of a reserved line link that also forms part of the first-mentioned line link;
then, despite subsection (1), that line is not, and does not form part of, a reserved line link.
25 Public mobile telecommunications service
(1) A telecommunications service is a public mobile telecommunications service if, and only if:
(a) it is not a public access cordless telecommunications service (as defined by section 26); and
(b) it is offered to the public generally; and
(c) a person can use it while moving continuously between places; and
(d) customer equipment used for or in relation to the supply of the service is not in physical contact with any part of the telecommunications network by means of which the service is supplied; and
(e) a facility that is used for or in relation to supplying the service is connected to a telecommunications network operated by a general carrier; and
(f) neither of subsections (2) and (3) prevents the service from being a public mobile telecommunications service.
(2) A telecommunications service is not a public mobile telecommunications service if:
(a) it is supplied by means of a telecommunications network (in this subsection called the primary network) that is connected to:
(i) a telecommunications network (in this subsection called a general network) operated by a general carrier; or
(ii) each of 2 or more general networks; and
(b) the principal function of the primary network is to supply telecommunications services between equipment connected to the primary network and other such equipment; and
(c) the supply of telecommunications services between such equipment and equipment connected to a general network is at most an ancillary function of the primary network; and
(d) despite the connection or connections referred to in paragraph (a), the primary network cannot be used in carrying a communication, as a single transaction, between equipment connected to a general network and other such equipment.
(3) A telecommunications service is not a public mobile telecommunications service if it is:
(a) a one-way only, store-and-forward communications service; or
(b) a service that performs the same functions as such a service.
26 Public access cordless telecommunications services
(1) A telecommunications service that, but for paragraph 25(1)(a), would be a public mobile telecommunications service is a public access cordless telecommunications service unless:
(a) the service is supplied by the use of facilities that include at least 2 fixed facilities (called base stations) each of which transmits and receives signals to and from customer equipment (called mobile equipment) that is:
(i) used for or in relation to the supply of the service; and
(ii) located within a particular area (called a cell); and
(b) the service includes the functions necessary to do the following while the service is carrying a communication made to or from particular mobile equipment:
(i) determine in which cell the equipment is located and cause the base station in that cell to transmit and receive signals to and from the equipment;
(ii) when the equipment moves from one cell to another, cause the base station in the one cell to stop, and the base station in the other cell to start, transmitting and receiving signals to and from the equipment.
(2) The regulations may provide that paragraphs (1)(a) and (b) must be disregarded in determining whether prescribed telecommunications services are public access cordless telecommunications services.
(3) The regulations may provide that prescribed telecommunications services are not public access cordless telecommunications services.
(4) The regulations may provide that the supply of prescribed equipment is not a public access cordless telecommunications service.
27 Different kinds of telecommunications services
(1) A telecommunications service for carrying communications between one geographical area and another may be taken for a particular purpose to be of a kind different from:
(a) a telecommunications service for carrying communications between one of those areas and a third geographical area; or
(b) a telecommunications service for carrying communications between a third geographical area and a fourth;
even if 2 or more of those areas overlap and even if the services are alike in other respects.
(2) Subsection (1) does not limit the matters that may be considered in determining for a particular purpose whether a telecommunications service is of the same kind as another telecommunications service.
28 When a carrier is in a position to dominate a market
A carrier is taken to be in a position to dominate a market if, and only if, the carrier is taken, for the purposes of section 50 of the Trade Practices Act 1974 (as in force immediately before the commencement of the Trade Practices Legislation Amendment Act 1992), to be in a position to dominate that market, or would be so taken if the market were a market within the meaning of that section.
Part 3—Application of Act
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29 Extraterritorial operation
This Act applies both within and outside Australia.
30 Extension to external Territories
This Act extends to such external Territories (if any) as are prescribed.
31 Extension to adjacent areas
(1) Subject to subsection (2), this Act applies in relation to the adjacent areas of the States and eligible Territories as if references to Australia included references to those adjacent areas.
(2) The application of this Act in relation to the adjacent areas of the States and eligible Territories extends only in relation to acts, matters and things touching, concerning, arising out of or connected with the exploration of, or the exploitation of the resources of, the continental shelf of Australia.
(3) Without limiting subsection (2), the application of this Act in relation to the adjacent areas of the States and eligible Territories because of subsection (1) extends in relation to all acts done by or in relation to, and all matters, circumstances and things affecting, any person who is in the adjacent area of a State or eligible Territory for a reason touching, concerning, arising out of or connected with the exploration of, or the exploitation of the resources of, the continental shelf of Australia.
32 Act binds the Crown
This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory, of the Northern Territory and of Norfolk Island.
33 Act subject to Radiocommunications Act
(1) This Act has effect subject to the Radiocommunications Act 1992.
(2) However, to avoid doubt, the fact that a person is authorised to do something under a licence under the Radiocommunications Act 1992 does not entitle the person to do that thing if he or she is prohibited by or under this Act from doing it, unless a condition of the licence requires the person to do it.
Part 4—Establishment, Functions and Powers of AUSTEL
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34 AUSTEL
The body corporate that was, immediately before the commencement of this Part, in existence because of section 16 of the Telecommunications Act 1989 under the name Australian Telecommunications Authority continues in existence by force of this section as a body corporate, under and subject to the provisions of this Act, under that name.
35 AUSTEL is body corporate etc.
The Australian Telecommunications Authority:
(a) is a body corporate with perpetual succession; and
(b) is to have a common seal; and
(c) may sue and be sued in its corporate name.
36 General functions—overall responsibilities of AUSTEL
The functions of AUSTEL include responsibility for:
(a) economic and technical regulation of the Australian telecommunications industry, including in particular:
(i) the promotion of fair and efficient market conduct within the industry; and
(ii) the implementation of the Commonwealth Government’s industry policies relating to telecommunications (including policies relating to the development of an internationally competitive telecommunications industry); and
(b) giving advice and assistance to the Australian telecommunications industry; and
(c) giving reports and advice to the Minister in relation to the industry.
37 General functions—promotion of competition
The functions of AUSTEL include promoting competition in the telecommunications industry, within the regulatory framework established by the Parliament, and, for that purpose:
(a) protecting persons who, within that framework, supply telecommunications services, or supply facilities, from practices of the carriers that are damaging to competition; and
(b) facilitating the entry, into markets for such services and facilities, of persons wishing so to supply such services and facilities; and
(c) promoting competition among the carriers; and
(d) protecting carriers from misuse of market power of other carriers; and
(e) arbitrating disputes between carriers under Part 8; and
(f) receiving and investigating complaints under Part 15; and
(g) referring matters to the Australian Competition and Consumer Commission, as appropriate; and
(h) preventing the misuse of market power by international telecommunications operators, by administering the Code of Practice in force under section 77 and the class licence system under Part 10; and
(i) advising the Minister on ways of promoting competition within the telecommunications industry.
38 General functions—protection of public interest and consumers
(1) The functions of AUSTEL include ensuring that the provisions of this Act are carried out with due regard to the public interest.
(2) The functions of AUSTEL include protecting consumers from unfair practices of carriers and other persons in connection with the supply of telecommunications services, the supply, installation or maintenance of customer equipment or the performance of cabling work and, for that purpose:
(a) receiving and investigating consumer complaints, including complaints about charges for telecommunications services; and
(b) developing indicative performance standards relating to:
(i) the quality of standard telephone services that carriers supply to consumers; and
(ii) the quality of goods and services that carriers supply to consumers in connection with supplying standard telephone services to them; and
(iii) the quality of other telecommunications services in relation to which AUSTEL thinks it appropriate to develop such standards; and
(iv) matters associated with, or incidental to, the supply of goods or services referred to in subparagraph (i), (ii) or (iii); and
(c) monitoring, and reporting to the Minister on, the performance of carriers and other persons in meeting the standards developed under paragraph (b); and
(d) referring consumer complaints to the Ombudsman, the Telecommunications Industry Ombudsman or the Australian Competition and Consumer Commission in appropriate cases; and
(e) monitoring, and reporting to the Minister on, charges paid by consumers.
(3) When developing standards under paragraph (2)(b), AUSTEL must have regard to the best international practice performance indicators available to it.
(4) The matters referred to in subparagraph (2)(b)(iv) include (but are not limited to):
(a) the timeliness and comprehensibility of bills; and
(b) the procedures to be followed by carriers to generate standard billing reports in order to assist in the investigation of consumer complaints about bills; and
(c) any other matter relating to customer billing.
39 General functions—numbering
The functions of AUSTEL include managing the numbering of telecommunications services in Australia.
40 General functions—reports to Minister on competitive safeguards and carrier performance
The functions of AUSTEL include reviewing, and reporting to the Minister on, all significant matters relating to the operation of Parts 5, 8 and 9, including:
(a) the operation of competitive safeguards; and
(b) carrier performance, measured against the best international practice performance indicators available to AUSTEL, and with particular reference to consumer satisfaction, consumer benefits and quality of service.
41 General functions—licensing
The functions of AUSTEL include:
(a) issuing class licences, licences and permits as provided by this Act; and
(b) in relation to licences and permits issued under this Act, whether by AUSTEL or the Minister:
(i) monitoring the conduct of the holders of such licences and permits; and
(ii) enforcing conditions of such licences and permits; and
(c) monitoring the conduct of persons who supply eligible services under class licences; and
(d) enforcing conditions included in class licences.
42 General functions—technical regulation and setting of technical standards
(1) The functions of AUSTEL include ensuring the safety and quality of telecommunications services and, for that purpose:
(a) determining under Part 12 technical standards about:
(i) network matters; and
(ii) the connection of customer equipment to telecommunications networks; and
(iii) the performance of cabling work; and
(b) regulating the connection of customer equipment to telecommunications networks; and
(c) regulating the performance of cabling work.
(2) The functions of AUSTEL include managing Australia’s input into the setting of international technical standards for telecommunications, except so far as the Standards Association of Australia is responsible for managing Australia’s input into the setting of such standards.
43 General functions—administering universal service levy arrangements
The functions of AUSTEL include administering Part 13 in relation to assessing:
(a) the liability of carriers to pay levy that the Telecommunications (Universal Service Levy) Act 1991 imposes in connection with ensuring that standard telephone services, and payphones, are reasonably accessible to all people in Australia; and
(b) the entitlement of carriers to payments out of the Universal Service Fund, into which that levy is paid.
44 Other functions
In addition to its functions under sections 36 to 43 (inclusive), AUSTEL has such other functions as are conferred on it by this or any other Act.
45 General powers
(1) AUSTEL has power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions.
(2) Subsection (1) is not limited by any other provision of this or any other Act that confers a power on AUSTEL.
46 Power to give directions to carriers
(1) AUSTEL may give written directions to a carrier in connection with performing any of AUSTEL’s functions under sections 37 (promotion of competition), 38 (protection of consumers), 39 (numbering), 40 (reports to Minister on competitive safeguards and carrier performance), 41 (licensing), 42 (technical regulation) and 43 (administering universal service levy).
(2) This section is not limited by any other provision of an Act that confers a power on AUSTEL.
47 AUSTEL, carriers and service providers to prevent use of networks and facilities in commission of offences
(1) AUSTEL, the carriers, and the persons who supply eligible services, must, in exercising their respective powers, do their best to prevent telecommunications networks and facilities operated by carriers, or by such persons, from being used in, or in relation to, the commission of offences against the laws of the Commonwealth and of the States and Territories.
(2) AUSTEL, the carriers, and the persons who supply eligible services, must give to officers and authorities of the Commonwealth and of the States and Territories such help as is reasonably necessary for any of the following purposes:
(a) enforcing the criminal law and laws imposing pecuniary penalties;
(b) protecting the public revenue;
(c) safeguarding national security.
(3) AUSTEL is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in performance or purported performance of the duty imposed by subsection (1) or (2).
(4) A carrier is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith:
(a) in performance or purported performance of the duty imposed by subsection (1) or (2); or
(b) in compliance or purported compliance with a condition of a general telecommunications licence or public mobile licence held by the carrier, being:
(i) a condition that is expressed to have the purpose of giving effect to subsection (1) or (2); or
(ii) a condition of the kind referred to in paragraph 63(4)(m); or
(c) in compliance or purported compliance with a direction that AUSTEL has given in good faith:
(i) in performance or purported performance of the duty imposed by subsection (1) or (2); or
(ii) under a condition of the kind referred to in paragraph 63(4)(m).
(5) A person who supplies eligible services is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith:
(a) in performance or purported performance of the duty imposed by subsection (1) or (2); or
(b) in compliance or purported compliance with a condition included in a class licence under which the person supplies eligible services, being a condition that is expressed to have the purpose of giving effect to subsection (1) or (2); or
(c) in compliance or purported compliance with a direction that AUSTEL has given in good faith:
(i) in performance or purported performance of the duty imposed by subsection (1) or (2); or
(ii) under a condition of a kind referred to in paragraph (b) of this subsection.
(6) An officer, employee or agent of AUSTEL, of a carrier, or of a person who supplies eligible services, is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in connection with an act done or omitted by AUSTEL, the carrier, or the person, as mentioned in subsection (3), (4) or (5), as the case may be.
(7) Nothing in this section limits the generality of anything else in it.
48 General governmental obligations of AUSTEL
AUSTEL must perform its functions in a manner consistent with:
(a) any policies of the Commonwealth Government notified by the Minister under section 49; and
(b) any directions given by the Minister under section 50; and
(c) Australia’s obligations under any convention of which the Minister has notified AUSTEL in writing.
49 Minister may notify AUSTEL of policies of Commonwealth Government
(1) The Minister may notify AUSTEL of general policies of the Commonwealth Government that are to apply in relation to AUSTEL.
(1A) The Minister may notify AUSTEL of policies of the Commonwealth Government, relating to the development of an internationally competitive customer equipment industry, that are to apply to the issue, variation or cancellation of permits for customer equipment under Division 6 of Part 12. This subsection does not, by implication, limit the operation of subsection (1).
(2) AUSTEL must ensure that the policies are carried out.
(3) A notification under this section must be given in writing.
50 Minister may give directions to AUSTEL
(1) The Minister may give written directions to AUSTEL in relation to the performance of its functions and the exercise of its powers.
(2) A direction under subsection (1) must be published in the Gazette.
(3) The Minister must not give under subsection (1) a direction:
(aa) that he or she is empowered to give under section 87P; or
(a) that he or she is empowered to give under section 106, or would apart from subsection 106(2) be empowered to give under section 106; or
(b) about a matter that he or she is empowered to determine under section 140; or
(c) that he or she is empowered to give under section 204, or would apart from section 205 be empowered to give under section 204; or
(ca) that he or she is empowered to give under section 238C, or would apart from section 238D be empowered to give under section 238C; or
(d) that he or she is empowered to give under section 244; or
(e) that he or she is empowered to give under section 250, or would apart from section 251 be empowered to give under section 250.
51 AUSTEL not otherwise subject to government direction
Except as otherwise provided by or under this or any other Act, AUSTEL is not subject to direction by or on behalf of the Commonwealth Government.
52 Consultation
In performing its functions and exercising its powers, AUSTEL must, where it is appropriate and practicable to do so, consult with:
(a) government, commercial, industrial, consumer and standards bodies and organisations (for example, carriers); and
(b) other relevant bodies and organisations.
53 Advisory committees
(1) AUSTEL may, by writing, establish advisory committees to assist it in performing any of its functions (other than its functions under Division 5 of Part 8).
(2) An advisory committee consists of such persons as AUSTEL from time to time appoints to the committee.
(3) AUSTEL may give an advisory committee written directions as to:
(a) the way in which the committee is to carry out its functions; and
(b) procedures to be followed in relation to meetings.
54 Exercise of certain powers
In exercising a power under Part 6 or 10 or its power to give directions under subsection 46(1), AUSTEL must have regard to the rights of each carrier under Part 6.
Part 5—Licensing, and General Obligations, of Carriers
Division 1—Objects of Part
55 Objects
The objects of this Part are to help achieve the objects of this Act by:
(a) establishing a system for licensing general carriers, on the basis that they are to be:
(i) the primary providers of Australia’s line-based and satellite-based public telecommunications capacity; and
(ii) the primary suppliers of telecommunications services by the use of line links and satellite-based facilities; and
(b) establishing a system for licensing mobile carriers, on the basis that they are to be the primary suppliers of public mobile telecommunications services; and
(c) providing for a Code of Practice that:
(i) relates to dealings by carriers with international telecommunications operators and with other persons; and
(ii) is to operate, together with the class licence system established by Part 10, to prevent the misuse of market power by international telecommunications operators; and
(d) providing for accounting separation of the various business activities of each carrier, in order to:
(i) identify cross-subsidisation between business activities that do not face strong competition and those that do; and
(ii) encourage each carrier to improve each of the main parts of its business; and
(e) providing for a customer service guarantee that requires carriers to comply with certain performance standards.
Division 2—Grant of licence
56 Applications for general telecommunications licences and certain public mobile licences
(1) An eligible corporation may apply to the Minister, in a manner and form approved by the Minister, for a general telecommunications licence.
(1A) An eligible corporation:
(a) that is the holder of a public mobile licence that the corporation proposes to replace when the licence ceases to have effect; or
(b) to whom it is sought to transfer such a licence under section 59;
may apply to the Minister, in a manner and form approved by the Minister, for a public mobile licence.
(2) The Minister may require an applicant for a licence to give the Minister such further information in relation to the application as he or she thinks necessary.
57 Decision on application
(1) Where a corporation applies under section 56 for a general telecommunications licence or a public mobile licence, the Minister:
(a) may defer consideration of the application for as long as he or she thinks appropriate; and
(b) subject to subsection (2) and to subsection 60(4), may, in his or her absolute discretion, either grant the licence or refuse the application.
(2) The Minister must refuse the application if the applicant is not an eligible corporation.
(3) The Minister must cause a copy of each licence to be laid before each House of the Parliament within 15 sitting days of that House after the licence is granted, but failure to do so does not affect the validity of a licence.
57A Allocation system for certain public mobile licences
(1) The Minister is to determine, in writing, an allocation system for the purpose of granting public mobile licences to eligible corporations, other than eligible corporations to which subsection 56(1A) applies.
(2) Without limiting the operation of subsection (1), an allocation system may:
(a) provide, whether by means of a tendering process or otherwise, for the grantee of a licence under the allocation system to pay for the grant of the licence; and
(b) specify criteria to which the Minister is to have regard in considering whether or not to grant a licence under the allocation system.
(3) The Minister may vary or revoke a determination made under subsection (1).
(4) The Minister may grant, or refuse to grant, a public mobile licence to an eligible corporation, other than an eligible corporation to which subsection 56(1A) applies, in accordance with a system determined under subsection (1).
(5) The Minister must cause a copy of each licence to be laid before each House of the Parliament within 15 sitting days of that House after the licence is granted, but failure to do so does not affect the validity of a licence.
58 Revocation of licence
(1) The Minister may by writing revoke a licence if:
(a) the holder of the licence so requests in writing; or
(b) in his or her opinion, the holder of the licence is about to cease to be an eligible corporation.
(2) A licence is revoked by force of this subsection if at any time the holder of the licence is not an eligible corporation.
(3) Revocation of a licence does not affect an obligation of the holder of the licence to do an act if the obligation arose before the revocation, whether it arose under this Act or a condition of the licence or otherwise.
59 Application for transfer of licence
(1) The holder of a licence may apply to the Minister, in a manner and form approved by the Minister, to transfer the licence to another eligible corporation.
(2) An application under subsection (1) must be accompanied by an application by the other corporation under section 56 for a general telecommunications licence or a public mobile licence, as the case requires.
(3) The Minister may require an applicant under subsection (1) to give the Minister such further information in relation to the application as he or she thinks necessary.
60 Decision on application
(1) This section applies where the holder of a licence applies under section 59 to transfer the licence to another corporation.
(2) The Minister:
(a) may defer consideration of the application for as long as he or she thinks appropriate; and
(b) subject to subsection (3), may, in his or her absolute discretion, either grant or refuse the application.
(3) The Minister must refuse the application if the other corporation is not an eligible corporation.
(4) If the Minister grants the application, he or she must:
(a) revoke the licence; and
(b) grant under paragraph 57(1)(b) a general telecommunications licence or a public mobile licence, as the case requires, to the other corporation.
61 Minister may delegate certain powers
(1) The Minister may by writing delegate to AUSTEL all or any of the Minister’s functions and powers under this Part (other than section 87P).
(2) In the performance of a function, or the exercise of a power, delegated under this section, the delegate is subject to the Minister’s directions.
Division 3—Licence conditions
62 Conditions to which a licence is subject
A licence is subject to:
(a) a condition that the holder of the licence comply with this Act and the regulations; and
(b) a condition that the holder of the licence comply with any direction, determination or order that this Act provides for AUSTEL to give or make; and
(c) such conditions as are specified in declarations for the time being in force under section 64 in relation to:
(i) all licences; or
(ii) all general telecommunications licences, or all public mobile licences, as the case requires; and
(d) such conditions as are specified in declarations for the time being in force under section 65 in relation to the licence; and
(e) in the case of a general telecommunications licence—the condition for which section 72 provides; and
(f) the conditions for which sections 73A, 74 and 76 provide; and
(g) the condition for which section 245 provides; and
(h) the condition for which section 292 provides.
63 Conditions about certain matters
(1) Subject to subsection (3), a condition of a licence must not be inconsistent with an Act, or regulations under an Act.
(2) A condition of a licence held by a carrier has effect subject to the provisions of a licence under the Radiocommunications Act 1992 under which the carrier is authorised to do something.
(3) A condition of a licence held by a carrier may abrogate or restrict a right or privilege that the carrier would otherwise have under a provision of this Act or the regulations.
(4) A condition or conditions of any of the following kinds may be imposed under section 64 or 65 on a licence:
(a) a condition that the licence ceases to be in effect at the end of a specified period or on the happening of a specified event;
(b) a condition that the holder of the licence must engage in specified activities or conduct, as provided in the condition;
(c) a condition that the holder must not supply specified telecommunications services except for carrying communications:
(i) within a specified geographical area; or
(ii) between a specified geographical area and places outside that area;
(d) a condition that the holder must not engage in specified activities or conduct at all, or except as provided in the condition;
(e) a condition about what the holder must do in connection with developing the telecommunications industry in Australia;
(f) a condition about the extent of foreign ownership or control (whether direct or indirect) of the holder;
(g) a supplementary access condition (as defined by subsection 138(1));
(h) a condition about how the holder is to ensure and maintain quality in connection with its supply of telecommunications services;
(i) a condition about how the holder is to deal with inquiries and complaints from the persons to whom it supplies telecommunications services;
(j) a condition about what the holder must do to maintain appropriate technical standards in its telecommunications activities;
(k) a condition that the holder must install and operate new telecommunications network infrastructure as provided in the condition;
(l) a condition that the holder must, in accordance with directions by AUSTEL, consult with Commonwealth, State and Territory law enforcement agencies about the holder’s proposals to use new technology in its telecommunications activities or to develop new technology in order to so use it;
(m) a condition that the holder must, in accordance with directions by AUSTEL, give to officers and authorities of the Commonwealth and of the States and Territories such help as is reasonably necessary for any of the following purposes:
(i) enforcing the criminal law and laws imposing pecuniary penalties;
(ii) protecting the public revenue;
(iii) safeguarding national security;
(n) a condition that the holder must, as soon as practicable and in association with other carriers, enter into an Ombudsman scheme, providing for investigation and report to AUSTEL in relation to complaints by consumers about all matters relating to service, billing and the manner of charging for telecommunications services.
(5) A reference in paragraph (4)(b) or (d) to activities or conduct includes a reference to activities or conduct having no direct or indirect connection with supplying telecommunications services or operating telecommunications networks.
(6) A licence that is subject to a condition of a kind referred to in paragraph (4)(a) ceases to be in effect as provided by the condition.
(7) Nothing in this section limits the generality of anything else in it, or of section 64 or 65.
(8) As soon as practicable after the day on which this Act receives the Royal Assent, the Minister shall cause to be laid before each House of the Parliament a copy of the form of a licence.
64 Declaration of conditions of licences in a class
(1) The Minister may by writing declare that:
(a) all licences; or
(b) all general telecommunications licences; or
(c) all public mobile licences;
are subject to conditions specified in the declaration.
(2) The Minister may by writing vary or revoke a declaration in force under this section.
65 Declaration of conditions of particular licences
(1) The Minister may by writing declare that a licence specified in the declaration is subject to conditions so specified.
(2) A declaration under this section may be included in the licence or may be made while the licence is in force.
(3) The Minister may by writing vary or revoke a declaration in force under this section.
66 Notification and date of effect of instruments under sections 64 and 65
(1) As soon as practicable after making an instrument under section 64 or 65, the Minister must:
(a) cause a copy to be published in the Gazette; and
(b) if the instrument was made under section 64—give a copy to each carrier that holds a licence of a kind to which the instrument relates that is in effect when the instrument takes effect; and
(c) if the instrument was made under section 65—give a copy to the carrier that holds the licence; and
(d) give a copy to each carrier that section 68 required the Minister to consult with before making the instrument.
(2) An instrument under section 64 or 65 takes effect:
(a) at the end of the day on which the Minister complies with paragraph (1)(a), and paragraph (1)(b) or (c), as the case requires, in relation to the instrument; or
(b) if the instrument states that it takes effect on a later day—on that later day.
(3) Subject to subsection (2), a contravention of this section does not affect the validity of an instrument.
(4) An instrument made by the Minister under section 64 or 65 is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
67 Carrier consent required for change in licence period
(1) Before making under section 64 an instrument having the effect of imposing or varying a condition of a kind referred to in paragraph 63(4)(a), the Minister must obtain the written consent of each carrier that holds a licence that would be affected by the instrument.
(2) Before making under section 65 an instrument:
(a) relating to a licence that is in force; and
(b) having the effect of imposing or varying a condition of a kind referred to in paragraph 63(4)(a);
the Minister must obtain the written consent of the carrier that holds the licence.
68 Minister to consult with carriers before changing licence conditions
(1) The Minister must comply with this section before:
(a) making an instrument under section 64; or
(b) making under section 65 an instrument relating to a licence that is in force.
(2) Unless the sole effect of the instrument would be to remove a condition (other than a supplementary access condition) of a licence or licences, the Minister must consult with the carrier that holds the licence, or each carrier that holds a licence, as the case requires, affected by the instrument.
(3) If the instrument would have the effect of imposing a supplementary access condition on a licence, the Minister must consult with each carrier on which, or in whose favour, obligations would be imposed by a supplementary access condition that the instrument would impose.
(4) If the instrument would have the effect of varying a supplementary access condition of a licence, the Minister must consult with each carrier on which, or in whose favour:
(a) obligations are imposed by a supplementary access condition that the instrument would vary; or
(b) obligations would be imposed by such a condition as varied by the instrument.
(5) If the instrument would have the effect of removing a supplementary access condition of a licence, the Minister must consult with each carrier on which, or in whose favour, obligations are imposed by a supplementary access condition that the instrument would remove.
69 Reports by AUSTEL on proposed instruments about licence conditions
(1) Where the Minister proposes:
(a) to make an instrument under subsection 71(3); or
(b) to make under section 64 or 65 an instrument that would have the effect of varying or removing a prescribed carrier obligation of a carrier;
the Minister must by writing request AUSTEL to give a written report about the question whether, having regard to such matters (if any) as are specified in the request, it is in the public interest to make the proposed instrument.
(2) Subject to subsection (1), where the Minister proposes:
(a) to make an instrument under section 64; or
(b) to make under section 65 an instrument relating to a licence that is in force;
the Minister may by writing request AUSTEL to give a written report about the question whether, having regard to such matters (if any) as are specified in the request, it is in the public interest to make the proposed instrument.
(3) As soon as practicable after receiving a request, and in any event within such period (if any) as the request specifies, AUSTEL must comply with the request by:
(a) holding a public inquiry under Part 14 about that question; and
(b) giving to the Minister a written report about that question based on the findings AUSTEL has made as a result of the inquiry.
(4) For the purposes of Part 14, that question is the matter to which the public inquiry relates.
70 Agreement with carrier about licences
(1) The Minister, acting on the Commonwealth’s behalf, may make a written agreement with a carrier about the exercise of one or more of the following:
(a) the power to grant a licence under section 57 or 57A;
(b) the power to make under section 64 an instrument relating to:
(i) in any case—all licences; or
(ii) if the carrier is a general carrier—all general telecommunications licences; or
(iii) if the carrier is a mobile carrier—all public mobile licences;
(c) the power to make under section 65 an instrument relating to a licence held by the carrier.
(2) Without limiting subsection (1), an agreement under that subsection may prevent or restrict, either generally or as otherwise provided in the agreement, the exercise of a power, for example, by providing:
(a) that the power may only be exercised in a particular way or in particular circumstances; or
(b) that a particular licence condition is not to be varied.
(3) Without limiting subsection (1), an agreement under that subsection may provide that if a power to which the agreement relates is exercised in a way that contravenes the agreement, the Commonwealth must pay to the carrier an amount specified in, or worked out in accordance with, the agreement.
(4) The Minister, acting on the Commonwealth’s behalf, and the other party to an agreement in force under this section may agree in writing to vary or terminate the agreement.
(5) Subsection (4) does not prevent an agreement from being discharged or terminated otherwise than under that subsection, for example:
(a) in accordance with the terms of the agreement itself; or
(b) for breach of the agreement.
(6) Where an agreement is in force under this section, the Minister must exercise in accordance with the agreement the power, or each power, to which the agreement relates.
(7) Where an agreement in force under this section provides as mentioned in subsection (3):
(a) an amount may become payable under the provision whether or not the amount represents a reasonable estimate of the loss or damage that the carrier is likely to suffer because the power concerned was exercised in a way that contravened the agreement; and
(b) if an amount becomes payable under the provision—the Commonwealth must pay that amount to the carrier.
(8) As soon as practicable after the day on which this Act receives the Royal Assent, the Minister shall cause to be laid before each House of the Parliament a copy of a form of agreement with carriers about licences.
(9) The Minister must cause a copy of each agreement under subsection (1) or (4) to be laid before each House of the Parliament within 15 sitting days of that House after the agreement is made, but failure to do so does not affect the validity of an agreement.
71 Prescribed carrier obligations
(1) A licence may declare that a specified condition of the licence is a prescribed carrier obligation of the carrier that holds the licence.
(2) A declaration under subsection (1) may be included in the licence when it is granted.
(3) The Minister may by writing vary a licence by inserting, varying or omitting a declaration under subsection (1).
(4) A variation under subsection (3) takes effect:
(a) when a copy of the variation is given to the carrier; or
(b) if the variation states that it takes effect on a later date—that later date.
(5) An instrument under subsection (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
72 Prescribed carrier obligation about untimed calls
(1) A general telecommunications licence is subject to a condition that the holder of the licence must not contravene section 73.
(2) The condition for which subsection (1) provides is a prescribed carrier obligation of the general carrier that holds the licence.
(3) A contravention of section 73 does not constitute an offence, and the only consequences of such a contravention are those resulting from the contravention of the condition for which subsection (1) of this section provides.
73 Continued access to untimed calls made using the standard telephone service
(1) This section applies where:
(a) at the commencement of this section, Telecom supplies, or offers to supply, to persons within a particular area within Australia, a telecommunications service that is at that commencement the standard telephone service; and
(b) under the terms and conditions on which Telecom supplies, or would supply, that service to persons in that area, the charges for calls of a particular kind made using the service are, or would be, worked out by reference to the number of such calls made during a particular period, regardless of how long each call lasted.
(2) A general carrier must not supply a standard telephone service to a customer in that area except on terms and conditions under which:
(a) the customer may choose, on connection of the service, to have the charges for calls of that kind that are made using the service worked out as mentioned in paragraph (1)(b); and
(b) if the customer chooses as mentioned in paragraph (a), the carrier must not work out the charges for such calls in any other way except with the customer’s written consent; and
(c) if the customer:
(i) does not choose as mentioned in paragraph (a); or
(ii) consents to having the charges for such calls worked out otherwise than as mentioned in paragraph (1)(b);
the customer may later give the carrier a written notice to the effect that the customer wishes the charges for such calls to be worked out as mentioned in paragraph (1)(b); and
(d) if the customer gives the carrier such a notice, the carrier:
(i) must, in respect of the earliest practicable period beginning after it receives the notice, work out the charges for such calls as mentioned in paragraph (1)(b); and
(ii) must not, in respect of a period after the period referred to in subparagraph (i), work out the charges for such calls in any other way except with the customer’s written consent.
(3) In this section:
Australia does not include the prescribed external Territories.
73A Interception capability
When section applies
(1) This section applies to the holder of a general telecommunications licence or a public mobile licence.
Licence condition
(2) It is a condition of the licence that the holder must comply with subsection (4).
Minister may require interception capability
(3) The Minister may give the holder a written notice requiring that a telecommunications system operated, or proposed to be operated, by the holder have a specified kind of interception capability.
Note: Interception capability is defined by subsection (8).
Interception capability to be provided
(4) If a requirement is in force, the holder must provide the interception capability in accordance with the requirement and on such terms and conditions as are:
(a) agreed between the following parties:
(i) the holder;
(ii) the agency or agencies specified by the Minister in the notice; or
(b) failing agreement, determined by an arbitrator appointed by the parties.
If the parties fail to agree on the appointment of an arbitrator, the arbitrator is to be appointed by AUSTEL.
Terms and conditions—compliance with principles
(5) The terms and conditions on which the holder is to provide an interception capability are to comply with the following principles:
(a) the principle that the holder is to incur the costs (whether of a capital nature or otherwise) relating to the creation or development of the interception capability;
(b) the principle that the holder may recover those costs, over time, from the other party or parties.
This subsection does not, by implication, limit subsection (4).
Terms and conditions—timing of implementation of requirement
(6) Without limiting subsection (4), a term or condition agreed or determined, as the case requires, under that subsection may relate to the period within which the requirement is to be implemented.
Conduct of arbitration
(7) The regulations may make provision for and in relation to the conduct of an arbitration under this section.
Meaning of interception capability
(8) For the purposes of this section, a telecommunications system operated, or proposed to be operated, by the holder has an interception capability if, and only if:
(a) assuming that a warrant were issued to an agency; and
(b) assuming that the warrant authorised the interception of a communication passing over the system;
the system would be capable of enabling that communication to be intercepted.
Expressions to have the same meaning as in the Telecommunications (Interception) Act 1979
(9) Unless the contrary intention appears, an expression used in this section and in the Telecommunications (Interception) Act 1979 has the same meaning in this section as it has in that Act.
Meaning of agency
(10) In this section:
agency means:
(a) an agency within the meaning of Part VI of the Telecommunications (Interception) Act 1979; or
(b) the Australian Security Intelligence Organization.
References to agency in subsection (4)
(11) A reference in subsection (4) to an agency includes a reference to:
(a) in the case of an agency of a State—the State on behalf of the agency; and
(b) in the case of an agency of the Commonwealth—the Commonwealth on behalf of the agency.
Severability
(12) This section has no effect to the extent (if any) to which it purports to authorise:
(a) the imposition of taxation (within the meaning of section 55 of the Constitution); or
(b) the acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) otherwise than on just terms (within the meaning of that paragraph).
Division 4—International aspects of carriers’ activities
74 Signatory must give effect to policies of Commonwealth Government
(1) This section applies where:
(a) a carrier is a Signatory within the meaning of the INTELSAT Agreement because the carrier has been designated, by or on behalf of the Commonwealth and in accordance with Article II(b) of that Agreement, to sign the INTELSAT Operating Agreement; or
(b) a carrier is a Signatory within the meaning of the Convention on the International Maritime Satellite Organization (INMARSAT) because the carrier has been designated, by or on behalf of the Commonwealth and in accordance with Article 2(3) of that Convention, to sign the Operating Agreement on the International Maritime Satellite Organization (INMARSAT).
(2) The Minister may notify the carrier in writing of the general policies of the Commonwealth Government that are to apply in relation to the carrier’s performance of its functions as a Signatory within the meaning of that Agreement or Convention.
(3) The Minister may give the carrier such written directions as he or she thinks necessary in order to give effect to the policies set out in notices under subsection (2).
(4) It is a condition of each licence held by the carrier that the carrier must perform its functions as a Signatory within the meaning of that Agreement or Convention in a way that is consistent with notices under subsection (2) and directions under subsection (3).
75 Minister may notify carriers about conventions
The Minister may give to a carrier written notice of a convention if he or she thinks that the carrier is likely to be affected by obligations under the convention, whether because of a licence condition for which subsection 76(1) provides or otherwise.
76 Carriers to comply with relevant conventions and foreign laws
(1) A licence is subject to a condition that the holder of the licence must:
(a) exercise its rights and powers, and perform its duties, under the licence; and
(b) otherwise act;
in a way consistent with Australia’s obligations under any convention of which the carrier has been notified under section 75.
(2) A licence is subject to a condition that the holder of the licence must not, outside Australia, do an act, or make an omission, that is not in accordance with the law (whether written or unwritten) in force where it is done or made.
77 Minister may determine Code of Practice relating to dealings with international telecommunications operators
(1) With a view to preventing the misuse of market power by international telecommunications operators, the Minister may by writing determine a Code of Practice relating to dealings by carriers with such operators and with other persons.
(2) An instrument under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
78 Code of Practice binding on carriers
A carrier must comply with the Code of Practice in force under section 77.
79 Enforcement of Code of Practice
(1) AUSTEL may give written directions to a carrier about how the carrier should comply with the Code of Practice.
(2) Where a provision of an agreement made by a carrier is inconsistent with the Code of Practice, the provision is unenforceable (as provided for in section 396).
Division 5—Accounting and charging procedures
80 Preparation of chart of accounts and cost allocation manual
(1) AUSTEL must develop a chart of accounts and a cost allocation manual for use by the carriers.
(2) AUSTEL may from time to time revise the chart of accounts or cost allocation manual.
(3) AUSTEL must give to each carrier a copy of the chart of accounts and cost allocation manual and of any revised chart or manual.
81 When chart or manual binds carrier
Subject to section 82, a chart of accounts or cost allocation manual is binding on a carrier from the later of the following days:
(a) the day after a copy of the chart or manual is received by the carrier; or
(b) the day specified in the chart or manual as its day of effect.
82 AUSTEL may modify chart or manual as binding on a particular carrier
(1) AUSTEL may declare that the chart of accounts or cost allocation manual that would otherwise be binding on a particular carrier is binding on that carrier with such modifications as the declaration specifies.
(2) AUSTEL may only make a declaration under subsection (1) if it is satisfied that making the declaration is desirable in order to help achieve the objects of this Part.
(3) A declaration under subsection (1):
(a) may be made on AUSTEL’s own initiative or at the request of the carrier concerned; and
(b) must be made by writing given to the carrier.
(4) A declaration under subsection (1) has effect, according to its tenor, from:
(a) if the declaration is made before the day when the chart or manual would, apart from the declaration, become binding on the carrier—that day; or
(b) the day after the carrier receives the declaration; or
(c) the day specified in the declaration as its day of effect;
whichever is later or latest.
83 Carrier to keep books and records in accordance with chart and manual
A carrier must:
(a) keep such books of account and other records as are necessary in order to comply with the chart of accounts and the cost allocation manual that are binding on it from time to time under section 81 or 82; and
(b) keep those books and records in accordance with the chart and the manual.
84 Individual services to be priced and charged for separately
(1) A carrier must, to the extent required by AUSTEL from time to time:
(a) separately identify charges for different basic carriage services that the carrier supplies or offers to supply (including any rental fee or other charge for or in relation to facilities used, or intended to be used, in relation to the supply of those services); and
(b) separately identify charges for different higher level services that the carrier supplies or offers to supply (including any rental fee or other charge for or in relation to facilities used, or intended to be used, in relation to the supply of those services); and
(c) in any written communication with a customer of the carrier about the customer’s account, separately identify the charges for different telecommunications services supplied to the customer.
(2) A requirement under subsection (1) may only be imposed by written notice to the carrier concerned.
85 AUSTEL may give directions about accounting and charging requirements
AUSTEL may give written directions to a carrier about how the carrier should comply with its obligations under section 83 or 84.
86 AUSTEL may, for the purposes of this Part, inspect carrier’s books and records
(1) AUSTEL may, by writing given to a carrier, direct the carrier to permit a specified person of a kind referred to in paragraph 405(a), (b) or (c) to inspect, and to make copies of, or take extracts from, specified books of account or other records of the carrier, for such of the following purposes as the direction specifies:
(a) to determine whether the carrier is complying with its obligations under sections 83 and 84;
(b) any other purpose connected with achieving the objects of this Part.
(2) A direction may specify a reasonable period within which the carrier must comply with it.
(3) This section does not limit AUSTEL’s powers under section 400 or any other provision.
87 Compliance with other laws
(1) The obligations of a carrier under sections 83 and 84 are additional to, and do not derogate from, obligations imposed by or under any other law of the Commonwealth or a law of a State or Territory, for example, the Income Tax Assessment Act 1997 or the Corporations Law.
(2) In particular, if the only way for a carrier to comply with its obligations under sections 83 and 84 as well as with obligations of a kind referred to in subsection (1) is by keeping additional books of account or other records, the carrier must do that.
(3) Subsection (2) does not limit the cases where a carrier may comply as mentioned in that subsection by keeping additional books of account or other records.
Division 5A—Collection and recovery of public mobile licence charge
87A Definition
In this Division:
charge means the charge imposed by section 4 of the Telecommunications (Public Mobile Licence Charge) Act 1992.
87B When charge is payable
(1) Subject to subsection (2), charge is to be paid at the time a public mobile licence is granted under section 57A.
(2) The Minister may determine, in writing, that charge is to be paid:
(a) on a day determined by the Minister; or
(b) in instalments of such amounts, payable at such times, as the Minister determines.
(3) The Minister may vary a determination made under subsection (2).
87C Unpaid charge is a debt due to Commonwealth
An amount of charge that is payable but has not been paid may be recovered in a court of competent jurisdiction as a debt due to the Commonwealth.
Division 6—Customer service guarantee
87D Interpretation
(1) In this Division:
customer includes prospective customer.
damages includes punitive damages.
service provider means a person, other than a carrier, who supplies an eligible service.
Note: For eligible service see section 18 of the Telecommunications Act.
(2) In determining the meaning that an expression has when used in a provision of this Act other than this Division, subsection (1) is to be disregarded.
87E Performance standards
(1) AUSTEL may, by written instrument, make standards to be complied with by carriers and service providers in relation to:
(a) the making of arrangements with customers about the period taken to comply with requests to connect customers to specified kinds of telecommunications services; and
(b) the periods that carriers or service providers may offer to customers when making those arrangements; and
(c) the compliance by carriers and service providers with the terms of those arrangements; and
(d) the period taken to comply with requests to rectify faults or service difficulties relating to specified kinds of telecommunications services, where the rectification follows the making of a customer report about a fault or service difficulty; and
(e) the keeping of appointments to meet customers, or representatives of customers, where the appointment relates to:
(i) a connection of a kind covered by paragraph (a); or
(ii) a rectification of a kind covered by paragraph (d); and
(f) any other matter in relation to which AUSTEL thinks it appropriate to develop standards.
(2) A standard under this section that relates to a particular kind of telecommunications service does not apply to a particular carrier or service provider in connection with the supply of that kind of service at a particular location unless the carrier or service provider:
(a) supplies that kind of service at that location; or
(b) offers to supply that kind of service at that location.
(3) AUSTEL must not make a standard under this section unless it is directed to do so by the Minister under section 87P.
(4) A standard under this section may be of general application or may be limited as provided in the standard. This subsection does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.
(5) A standard under this section takes effect:
(a) if the instrument making the standard specifies a day for the purpose—on that day; or
(b) otherwise—on the day on which the standard was notified in the Gazette.
(6) A standard under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
87F Damages for breach of performance standards
(1) If:
(a) a carrier or service provider contravenes a standard in force under section 87E; and
(b) the contravention relates to a particular customer;
the carrier or service provider is liable to pay damages to the customer for the contravention.
(2) The amount of damages payable for a particular contravention is equal to the relevant amount specified in the scale in force under section 87G.
(3) The customer may recover the amount of the damages by action against the carrier or service provider in a court of competent jurisdiction.
(4) The liability of the carrier or service provider under this section may be discharged:
(a) by giving the customer a credit in an account the customer has with the carrier or service provider; or
(b) in any other manner agreed between the carrier or service provider and the customer.
(5) An action under this section must be instituted within 2 years after:
(a) in the case of a contravention that continued throughout a period—the time when the contravention began; or
(b) in any other case—the time when the contravention occurred.
(6) If the customer dies, a reference in this section to the customer includes a reference to the legal personal representative of the customer.
87G Scale of damages for breach of performance standards
(1) AUSTEL may, by written instrument, specify a scale of damages for contraventions of standards under section 87E.
(2) The scale must:
(a) specify categories of contraventions; and
(b) specify a dollar amount as the amount of damages payable for contraventions covered by each of those categories.
(3) A dollar amount specified in accordance with paragraph (2)(b) must not exceed $25,000.
(4) A category may be specified by reference to contraventions that continue over a specified number of days.
(5) Subsection (4) does not, by implication, limit the ways in which a category may be specified.
(6) An instrument under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
87H Evidentiary certificate issued by the Telecommunications Industry Ombudsman
(1) The Telecommunications Industry Ombudsman may issue a written certificate:
(a) stating that a specified carrier or service provider has contravened a standard in force under section 87E; and
(b) setting out particulars of that contravention.
(2) In any proceedings under this Division, a certificate under subsection (1) is prima facie evidence of the matters in the certificate.
(3) A document purporting to be a certificate under subsection (1) must, unless the contrary is established, be taken to be a certificate and to have been properly given.
(4) Subsection (1) does not apply to the Telecommunications Industry Ombudsman unless the Telecommunications Industry Ombudsman gives the Minister a written notice consenting to the conferral of the powers conferred by that subsection.
(5) If no notice is in force under subsection (4), subsection (1) has effect as if the reference in that subsection to the Telecommunications Industry Ombudsman were a reference to AUSTEL.
(6) The Minister must cause a copy of a notice under subsection (4) to be published in the Gazette.
(7) The continuity of a notice under subsection (4) is not affected by:
(a) a change in the occupancy of the position of Telecommunications Industry Ombudsman; or
(b) a vacancy in the position of Telecommunications Industry Ombudsman that does not continue for more than 4 months.
(8) Nothing in this section affects the right of a customer to complain to the Telecommunications Industry Ombudsman about a breach of a performance standard.
87J Waiver of customer service guarantee
(1) AUSTEL may, by written instrument, make provision for customers of carriers to waive, in whole or in part, their protection and rights under this Division in relation to a particular telecommunications service supplied, or proposed to be supplied, by the carrier concerned.
(2) If such a waiver is made, then, to the extent of the waiver, the carrier is not bound by, and need not comply with, any standards in force under section 87E in relation to the supply of that service to that customer.
(3) A waiver must be made in accordance with the rules set out in the instrument.
(4) An instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
87K Savings of other laws and remedies
(1) This Division is not intended to exclude or limit the concurrent operation of any law of a State or Territory.
(2) This Division does not limit, restrict or otherwise affect any right or remedy a person would have if this Division had not been enacted.
87L Sections 121 and 122 do not apply to actions under this Division
Sections 121 and 122 do not apply to a cause of action under this Division.
Note: Sections 121 and 122 deal with limitation of tort liability.
87M Breach of performance standard is not an offence
A contravention of a standard in force under section 87E is not an offence.
87N Paragraph 62(a) does not apply to a breach of a performance standard
Paragraph 62(a) does not apply to a contravention of a standard in force under section 87E.
Note: Paragraph 62(a) imposes a licence condition that requires compliance with this Act.
87P Minister may direct AUSTEL about the use of its powers under this Division
(1) The Minister may give AUSTEL written directions about how AUSTEL is to exercise its powers under this Division.
(2) AUSTEL must comply with a direction under this section.
(3) This section does not affect the Minister’s power to give AUSTEL directions under other provisions about other matters.
(4) A direction under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
87Q Review of performance standards following Ministerial direction
(1) This section applies to a direction under section 87P that requires AUSTEL to make a standard under section 87E.
(2) If the Minister revokes a direction, AUSTEL must revoke the section 87E standard that is in force because of the direction.
(3) If the Minister varies a direction, AUSTEL must either:
(a) vary the section 87E standard that is in force because of the direction so that the standard complies with the varied direction; or
(b) revoke the section 87E standard and determine a new section 87E standard that so complies.
(4) If a section 87E standard is in force because of a direction:
(a) AUSTEL may vary the standard on its own initiative, but only in such a way that the varied standard still complies with the direction; and
(b) AUSTEL may, on its own initiative, revoke the standard and determine a new section 87E standard that so complies.
Part 5A—Protection of Communications
Do not delete : Division placeholder
88 Carriers, suppliers and their employees not to disclose or use contents of communications etc.
(1) A prescribed person must not disclose or use any information or document that:
(a) relates to:
(i) the contents or substance of a communication that has been carried by a carrier or supplier or a communication in the course of telecommunications carriage; or
(ii) telecommunications services supplied, or intended to be supplied, to another person by a carrier or supplier; or
(iii) the affairs or personal particulars (including any unlisted telephone number or any address) of another person; and
(b) comes to the person’s knowledge, or into the person’s possession, because the person is a prescribed person.
Penalty: Imprisonment for 2 years.
(2) A person who has been a prescribed person must not disclose or use any information or document that:
(a) relates to a matter mentioned in paragraph (1)(a); and
(b) came to the person’s knowledge, or into the person’s possession, because the person was a prescribed person.
Penalty: Imprisonment for 2 years.
(3) This section does not prohibit a disclosure by a person of information or a document:
(a) if the disclosure is made in the performance of the person’s duties as a prescribed person; or
(b) if the disclosure is made as a witness summoned to give evidence or to produce documents; or
(c) if the disclosure is made:
(i) to an officer or employee of the Australian Security Intelligence Organization authorised in writing by the Director-General of Security to receive the disclosure; and
(ii) in connection with the performance by the Organization of its functions; or
(e) if the information or document relates to the affairs or personal particulars (including any unlisted telephone number or any address) of another person and:
(i) the other person is reasonably likely to have been aware or made aware that information or a document of that kind is usually disclosed in the circumstances concerned; or
(ii) the other person has consented to the disclosure in the circumstances concerned; or
(iii) the person who makes the disclosure believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of a person; or
(f) if the disclosure is required or authorised by or under law; or
(g) if the disclosure is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue; or
(h) if:
(i) the person who made the disclosure is an employee of a carrier or supplier; and
(ii) the disclosure is made to, or to an employee of, another carrier or supplier; and
(iii) the information or document relates to:
(A) the operation or maintenance of a telecommunications network or facility operated by the other carrier or supplier; or
(B) the supply of services by the other carrier or supplier by means of a telecommunications network or facility; and
(iv) the disclosure is made for the purpose of the carrying on by the other carrier or supplier of its business relating to the supply of services by means of a telecommunications network or facility operated by the other carrier or supplier; or
(ha) if:
(i) the person who made the disclosure is a supplier; and
(ii) the disclosure is made to, or to an employee of, a carrier or another supplier; and
(iii) the information or document relates to:
(A) the operation or maintenance of a telecommunications network or facility operated by the carrier or other supplier; or
(B) the supply of services by the carrier or other supplier by means of a telecommunications network or facility; and
(iv) the disclosure is made for the purpose of the carrying on by the carrier or other supplier of its business relating to the supply of services by means of a telecommunications network or facility operated by the carrier or other supplier; or
(i) if:
(i) the person who made the disclosure is an employee of a carrier or supplier; and
(ii) the disclosure is made to, or to an employee of, another carrier or supplier; and
(iii) the information or document relates to:
(A) the operation or maintenance of a telecommunications network or facility operated by the first-mentioned carrier or supplier; or
(B) the supply of services by the first-mentioned carrier or supplier by means of a telecommunications network or facility; and
(iv) the disclosure is made for the purpose of the carrying on by the other carrier or supplier of its business relating to the supply of services by means of a telecommunications network or facility operated by the first-mentioned carrier or supplier; or
(ia) if:
(i) the person who made the disclosure is a supplier; and
(ii) the disclosure is made to, or to an employee of, a carrier or other supplier; and
(iii) the information or document relates to:
(A) the operation or maintenance of a telecommunications network or facility operated by the first-mentioned supplier; or
(B) the supply of services by the first-mentioned supplier by means of a telecommunications network or facility; and
(iv) the disclosure is made for the purpose of the carrying on by the carrier or other supplier of its business relating to the supply of services by means of a telecommunications network or facility operated by the first-mentioned supplier; or
(j) if the disclosure is reasonably necessary for the purpose of the preservation of human life at sea; or
(k) if the disclosure:
(i) relates to the location of a vessel at sea; and
(ii) is made for maritime communications purposes; or
(l) if:
(i) the person who made the disclosure is or has been a prescribed person; and
(ii) the disclosure is made to, or to a member of the staff of, AUSTEL; and
(iii) the information or document may assist AUSTEL in the performance of any of its functions or the exercise of any of its powers under this Act or any other law of the Commonwealth; or
(la) if:
(i) the disclosure is made to the Telecommunications Industry Ombudsman, or to an employee of the Telecommunications Industry Ombudsman; and
(ii) the information or document may assist the Telecommunications Industry Ombudsman in the consideration of a complaint made to the Telecommunications Industry Ombudsman; or
(m) if the disclosure is made in prescribed circumstances.
(3A) This section does not prohibit a disclosure by a person of information or a document if:
(a) the information or document came to the person’s knowledge, or into the person’s possession, because of a call to an emergency service number; and
(b) the information, or the contents of the document, consists of any or all of the following:
(i) a name;
(ii) a telephone number;
(iii) an address;
(iv) a location;
(v) the matter or matters raised by the call; and
(c) the disclosure is made to:
(i) a member of a police force or service; or
(ii) a member of a fire service; or
(iii) a member of an ambulance service; or
(iv) an emergency call person; or
(v) a member of a service specified in the national numbering plan for the purposes of this subparagraph;
for purposes connected with dealing with the matter or matters raised by the call.
(4) This section does not prohibit a use by a person of information or a document:
(a) if the use is made for the purposes of or in connection with a disclosure of the information or document by the person, being a disclosure to which subsection (3) or (3A) applies; or
(b) if the use is made in the performance of the person’s duties as a prescribed person; or
(c) if the information or document relates to the affairs or personal particulars (including any unlisted telephone number or any address) of another person and:
(i) the other person is reasonably likely to have been aware or made aware that information or a document of that kind is usually used in the circumstances concerned; or
(ii) the other person has consented to the use in the circumstances concerned; or
(iii) the person who makes the use believes on reasonable grounds that the use is necessary to prevent or lessen a serious and imminent threat to the life or health of a person; or
(d) if the use is required or authorised by or under law; or
(e) if the use is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue; or
(f) if:
(i) the person who made the use is an employee of a carrier or supplier; and
(ii) the information or document relates to:
(A) the operation or maintenance of a telecommunications network or facility operated by another carrier or supplier; or
(B) the supply of services by another carrier or supplier by means of a telecommunications network or facility; and
(iii) the use is made for the purpose of the carrying on by the other carrier or supplier of its business relating to the supply of services by means of a telecommunications network or facility operated by the other carrier or supplier; or
(fa) if:
(i) the person who made the use is a supplier; and
(ii) the information or document relates to:
(A) the operation or maintenance of a telecommunications network or facility operated by a carrier or other supplier; or
(B) the supply of services by a carrier or other supplier by means of a telecommunications network or facility; and
(iii) the use is made for the purpose of the carrying on by the carrier or other supplier of its business relating to the supply of services by means of a telecommunications network or facility operated by the carrier or other supplier; or
(g) if:
(i) the person who made the use is an employee of a carrier or supplier; and
(ii) the information or document relates to:
(A) the operation or maintenance of a telecommunications network or facility operated by the carrier or supplier; or
(B) the supply of services by the carrier or supplier by means of a telecommunications network or facility; and
(iii) the use is made for the purpose of the carrying on by any other carrier or supplier of its business relating to the supply of services by means of a telecommunications network or facility operated by the first-mentioned carrier or supplier; or
(ga) if:
(i) the person who made the use is a supplier; and
(ii) the information or document relates to:
(A) the operation or maintenance of a telecommunications network or facility operated by the supplier; or
(B) the supply of services by the supplier by means of a telecommunications network or facility; and
(iii) the use is made for the purpose of the carrying on by a carrier or other supplier of its business relating to the supply of services by means of a telecommunications network or facility operated by the first-mentioned supplier; or
(h) if the use is reasonably necessary for the purpose of the preservation of human life at sea; or
(i) if the use:
(i) relates to the location of a vessel at sea; and
(ii) is made for maritime communications purposes; or
(j) if the use is made in prescribed circumstances.
(5) In this section:
communication in the course of telecommunications carriage means a communication that is being carried by a carrier or supplier, and includes a communication that has been collected or received by a carrier or supplier for carriage by it but has not been delivered by it.
emergency call person has the meaning given by section 88A.
employee, in relation to a carrier or a supplier, includes:
(a) a person who performs services for or on behalf of the carrier or supplier; and
(b) an employee of such a person.
information includes opinion.
prescribed person means:
(a) an employee of a carrier; or
(b) a supplier; or
(c) an employee of a supplier.
supplier means a person who supplies an eligible service under a class licence.
88A Emergency call persons
(1) For the purposes of this Part, an emergency call person is:
(a) a recognised person who operates an emergency call service; or
(b) an employee of such a person; or
(c) an emergency call contractor; or
(d) an employee of an emergency call contractor.
(2) A reference in this section to an emergency call service is a reference to a service for:
(a) receiving and handling calls to an emergency service number; and
(b) providing information about such calls to:
(i) a police force or service; or
(ii) a fire service; or
(iii) an ambulance service; or
(iv) a service specified in the national numbering plan for the purposes of this subparagraph;
for purposes connected with dealing with the matter or matters raised by the call.
(3) A reference in this section to a recognised person who operates an emergency call service is a reference to a person who:
(a) operates an emergency call service; and
(b) is specified, in a written determination made by AUSTEL for the purposes of this paragraph, as:
(i) a national operator of emergency call services; or
(ii) a regional operator of emergency call services.
(4) A copy of a determination under paragraph (3)(b) is to be published in the Gazette.
(5) A reference in this section to an emergency call contractor is a reference to a person who performs services for or on behalf of a recognised person who operates an emergency call service, but does not include a reference to a person who performs such services in the capacity of an employee of the person who operates the emergency call service.
Part 6—Reserved Rights of Carriers
Division 1—Declarations of policy
89 Declarations
It is the Parliament’s intention:
(a) that the general carriers, as the primary providers of Australia’s public telecommunications infrastructure and networks, should have certain reserved rights in relation to the following aspects of that infrastructure and those networks:
(i) the provision of line links;
(ii) the use of satellite-based facilities;
(iii) the provision of public payphones; and
(b) that the mobile carriers, as the primary suppliers of public mobile telecommunications services, should have certain reserved rights in relation to the supply of such services; and
(c) that, subject to Part 9, the carriers should be able to use facilities under their control to supply telecommunications services in a way that enables the carriers to exploit the economies of scale and scope available to them because they control those facilities; and
(d) that, subject to subparagraph (a)(iii), the supply, installation, maintenance and operation of all equipment, lines and other facilities that are connected to, but beyond the boundaries of, the carriers’ telecommunications networks should be open to competition; and
(e) that nothing in this Part limits the right of the general carriers to supply, or should discourage them from supplying, telecommunications services by means of radiocommunication or by any other means, whether or not the supply also involves the use of line links or satellite-based facilities.
Division 2—Reserved rights
90 Reserved line links
(1) Subject to this section, a person must not install or maintain a reserved line link.
(2) A general carrier may install or maintain a reserved line link.
(3) A person may, together with, or for or on behalf of, a person who is, or persons at least one of whom is, a general carrier, install or maintain a reserved line link between a place within Australia and a place outside Australia.
91 Facilities ancillary to reserved line links
A person must not install or maintain a facility ancillary to a reserved line link unless the person is authorised by or under this Act to install or maintain that line link.
92 Supply of telecommunications services by satellite-based facilities
(1) Subject to this section, a person must not supply a telecommunications service:
(a) between distinct places within Australia; or
(b) between a place within Australia and a place outside Australia;
by the use of satellite-based facilities.
(2) A general carrier may supply a telecommunications service as mentioned in subsection (1).
(3) A person may supply a telecommunications service as mentioned in subsection (1) if the only use of satellite-based facilities for or in relation to the supply of that service is use for or in relation to the supply of a telecommunications service that, or of 2 or more telecommunications services each of which, is supplied by a general carrier and:
(a) is used by the person for or in relation to the supply of the first-mentioned service; or
(b) is the first in a series of telecommunications services:
(i) the last telecommunications service in which is the first-mentioned service; and
(ii) each telecommunications service in which (other than the last) is used for or in relation to the supply of the next telecommunications service in the series.
93 Provision of public payphones
(1) A person must not supply, install or maintain a public payphone within Australia.
(2) A general carrier may supply, install or maintain a public payphone within Australia.
(3) In this section:
Australia does not include the prescribed external Territories.
94 Supply of public mobile telecommunications services
(1) Subject to this section, a person must not supply a public mobile telecommunications service:
(a) for carrying communications between distinct places within Australia; or
(b) for carrying communications between Australia and places outside Australia.
(2) In subsection (1):
Australia does not include the prescribed external Territories.
(3) A mobile carrier may supply a public mobile telecommunications service of a kind referred to in subsection (1).
(4) A person may supply a public mobile telecommunications service of a kind referred to in subsection (1) if a public mobile telecommunications service supplied by a mobile carrier:
(a) is used by the person for or in relation to the supply of the first-mentioned service; or
(b) is the first in a series of telecommunications services:
(i) the last telecommunications service in which is the first-mentioned service; and
(ii) each telecommunications service in which (other than the last) is used for or in relation to the supply of the next telecommunications service in the series.
95 Action to enforce this Part
(1) Where a person has engaged, or is proposing to engage, in conduct that involves, or would involve, a contravention of section 90, 91, 92, 93, 102, 109 or 111, a general carrier may, with AUSTEL’s written consent, apply to the Federal Court for relief.
(2) Where a person has engaged, or is proposing to engage, in conduct that involves, or would involve, a contravention of section 94, a mobile carrier may, with AUSTEL’s written consent, apply to the Federal Court for relief.
(3) The relief that may be granted includes an injunction and, at the plaintiff’s option, either damages or an account of profits.
(4) Section 395 applies to an application under this section.
Division 3—General exceptions
96 Acts done on behalf of a carrier
(1) None of sections 90, 91, 92, 93, 102, 109 and 111 prevents a person from doing anything for or on behalf of a general carrier.
(2) Section 94 does not prevent a person from doing anything for or on behalf of a mobile carrier.
Division 4—Exceptions relating to line links
97 Interpretation
(1) A reference in subsection (2) or section 98, 99, 100, 101 or 102 to maintaining a reserved line link includes a reference to maintaining such a line link that was installed before the commencement of this section.
(2) A reference in section 98, 99, 100, 101 or 102 to installing or maintaining a reserved line link for a particular purpose includes a reference to installing or maintaining such a line link for 2 purposes, of which:
(a) that purpose is the dominant purpose; and
(b) the other is the purpose of using the line link for or in relation to supply of a telecommunications service to or by a general carrier.
98 Line links used by transport authorities
Despite section 90, Airservices Australia, the Australian National Railways Commission, or a State or Territory transport authority, may install or maintain a reserved line link for the purpose of using it to carry communications necessary or desirable for the workings of aviation services, train services, bus or other road services, or tram services, for which Airservices Australia, Commission or transport authority is responsible.
99 Line links used by broadcasters
(1) Despite section 90, a broadcaster may install or maintain a reserved line link for the purpose of using it for or in relation to:
(a) the supply of radio or television broadcasting services, by that or another broadcaster, to members of the public; or
(b) the supply by the broadcaster of prescribed telecommunications services by means of facilities that include a radiocommunications transmitter that the broadcaster is authorised to operate under a licence of a prescribed kind that is in force under the Radiocommunications Act 1992.
(2) In this section:
broadcaster means the Australian Broadcasting Corporation, the Special Broadcasting Service Corporation, or the holder of a licence under the Broadcasting Services Act 1992, the provider of a broadcasting service under a class licence under that Act or a person providing a service referred to in section 212 of that Act.
100 Line links authorised by or under previous laws
(1) A person may install or maintain a reserved line link so far as it consists of facilities in relation to which an authorisation was in force under paragraph 13(1)(a) of the Telecommunications Act 1975 immediately before the repeal of that Act.
(2) A person may maintain a reserved line link so far as it consists of facilities that:
(a) were installed before the repeal of section 45 of the Telecommunications Act 1989; and
(b) immediately before that repeal, were permitted by that section to be maintained and operated.
(3) A person may maintain a reserved line link so far as it consists of facilities in relation to which an authorisation was in force under section 46 of the Telecommunications Act 1989 immediately before the repeal of that Act.
(4) This section has effect despite section 90.
101 Defence line links
(1) Despite section 90, a defence organisation may install or maintain a reserved line link for the purpose of using it to carry communications necessary or desirable for defence purposes.
(2) In this section:
defence organisation means:
(a) the Department of Defence or any part of it; or
(b) the Defence Force or any part of it; or
(c) an organisation or body of a foreign country, so far as the organisation or body:
(i) has functions corresponding to functions of, or of a part of, the Department of Defence or the Defence Force; and
(ii) is authorised by the Commonwealth to operate or train in Australia or an external Territory; or
(d) a part of such an organisation or body.
defence purposes means any one or more of the following:
(a) the operation of command and control systems;
(b) the operation, direction or use of a defence organisation;
(c) the operation of intelligence systems;
(d) the collection or dissemination of information relevant to the security or defence of the Commonwealth, or of a foreign country that is allied or associated with the Commonwealth;
(e) the operation or control of weapons systems, including any thing that, by itself or together with any other thing or things, is intended for defensive or offensive use in combat;
(f) any other prescribed matter.
foreign country means a country outside Australia and the external Territories.
102 Restriction on use or disposal of certain reserved line links
(1) A person whom section 98 or subsection 99(1) or 101(1) permits to install or maintain a reserved line link for the purpose of using it as mentioned in that section or subsection:
(a) must not use the line link except:
(i) as so mentioned; or
(ii) for or in relation to the supply of a telecommunications service to or by a general carrier; and
(b) must not dispose of the line link except to a general carrier.
(2) A person whom subsection 100(1) or (3) permits to install or maintain a reserved line link:
(a) must not use the line link except:
(i) as provided in, and in accordance with any conditions specified in, the authorisation; or
(ii) for or in relation to the supply of a telecommunications service to or by a general carrier; and
(b) must not dispose of the line link except to a general carrier.
(3) If a reserved line link that is permitted to be installed or maintained under section 98 or subsection 99(1) or 101(1) is vested in, transferred to or otherwise acquired by another person by operation of law or otherwise, that other person:
(a) must not use the line link except:
(i) for the purpose of using it as mentioned in that section or subsection; or
(ii) for or in relation to the supply of a telecommunications service to or by a general carrier; and
(b) must not dispose of the line link except to a general carrier.
(4) If a reserved line link, which is permitted to be installed or maintained under subsection 100(1) or 100(3), is vested in, transferred to or otherwise acquired by another person by operation of law or otherwise, that other person:
(a) must not use the line link except:
(i) as provided in, and in accordance with any conditions specified in, the authorisation; or
(ii) for or in relation to the supply of a telecommunications service to or by a general carrier; and
(b) must not dispose of the line link except to a general carrier.
Division 5—Exceptions relating to satellite-based facilities
103 Supply by satellite of international service to operator of licensed earth station
(1) A person may supply an international service to another person by the use of satellite-based facilities if:
(a) the other person is authorised under a licence under the Radiocommunications Act 1992 to operate a prescribed earth station; and
(b) the service is supplied by the use of the prescribed earth station.
(2) A person may supply an international service by use of satellite-based facilities if:
(a) the person is authorised under a licence under the Radiocommunications Act 1992 to operate a prescribed earth station; and
(b) the service is supplied by the use of the prescribed earth station.
(3) This section has effect despite section 92.
104 Satellite services for defence purposes
(1) Despite section 92, a person (including a defence organisation) may supply a telecommunications service by the use of satellite-based facilities if the service is exclusively for the use of a defence organisation in carrying communications necessary or desirable for defence purposes, except to the extent (if any) that a general carrier uses the service for or in relation to the supply by the carrier of a telecommunications service.
(2) In subsection (1):
defence organisation and defence purposes have the same respective meanings as in section 101.
Division 6—Use of certain facilities under AUSTEL authorisations
105 This Division not limited by Division 3, 4 or 5
Nothing in Division 3, 4 or 5 limits the generality of anything in this Division.
106 Minister may direct AUSTEL in the use of its powers under this Division
(1) The Minister may give AUSTEL written directions about:
(a) what authorisations AUSTEL may or must give under this Division; and
(b) what terms and conditions (if any) may or must be included in authorisations under this Division; and
(c) how AUSTEL is to exercise its other powers under this Division.
(2) The Minister may give or vary a direction only if:
(a) he or she has consulted each general carrier whose interests may, in his or her opinion, be affected by the direction, or by the direction as varied, as the case may be; and
(b) in his or her opinion, the direction, or the direction as varied, as the case may be, will not erode unduly the practical value of the general carriers’ rights under sections 90 and 92.
(3) This section does not affect the Minister’s power to give AUSTEL directions under other provisions about other matters.
(4) An instrument under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
107 AUSTEL to comply with Ministerial directions
AUSTEL may only exercise a power under this Division as required or permitted by a direction in force under section 106, but must exercise such a power as and when so required.
108 AUSTEL may authorise use of certain facilities
On application by a person, AUSTEL may by writing authorise the person:
(a) to install, maintain, use or dispose of specified line links; or
(b) to supply, by the use of specified satellite-based facilities, specified telecommunications services.
109 Terms and conditions of authorisation
(1) An authorisation under paragraph 108(a) may include terms and conditions relating to the installation, maintenance, use or disposal of the specified line links.
(2) An authorisation under paragraph 108(b) may include terms and conditions relating to the use of the specified satellite-based facilities or the supply or use of the specified telecommunications services.
(3) The person to whom an authorisation is given must, while it has effect, comply with terms and conditions included in it under this section.
(4) However, nothing in this Division prevents a person from:
(a) using, or permitting another to use, a line link for or in relation to the supply of a telecommunications service to or by a general carrier; or
(b) disposing of a line link to a general carrier.
110 How long authorisation has effect
(1) An authorisation under this Division has effect:
(a) if it specifies a period for which it has effect—for that period; or
(b) if it provides that it has effect until a specified event happens—until that event happens; or
(c) otherwise—until it is revoked under section 113.
(2) An authorisation may be varied or revoked under this Division even if it specifies or provides as mentioned in paragraph (1)(a) or (b).
111 Dealing with line link after authorisation ceases
After an authorisation under paragraph 108(a) ceases to have effect, the person to whom it was given must not:
(a) use; or
(b) permit another to use; or
(c) dispose of;
any of the specified line links except as mentioned in subsection 109(4).
112 Variation of authorisations
(1) On application by the person to whom an authorisation in force under this Division was given, AUSTEL may vary the authorisation in accordance with the application or as otherwise agreed in writing with the person.
(2) AUSTEL may, of its own motion, vary an authorisation given to a person, but only if the person agrees in writing.
(3) AUSTEL must not vary an authorisation so as to make it inconsistent with a direction in force under section 106.
113 Revocation
(1) AUSTEL may revoke an authorisation if, and only if, the person to whom it was given:
(a) asks for the revocation; or
(b) has contravened a term or condition included in the authorisation under this Division.
(2) AUSTEL may revoke an authorisation under paragraph (1)(b) only if it has given the person an opportunity to make submissions and give evidence to it in relation to the matter.
(3) As soon as practicable after AUSTEL decides to revoke an authorisation under paragraph (1)(b) it must give the person written reasons for the decision.
114 Effect of authorisation
An authorisation in force under this Division has effect despite sections 90, 92 and 102.
115 Reconsideration of decisions
(1) An application may be made to AUSTEL for reconsideration of a decision described in Column 1 of the following table:
TABLE
ItemNo.
Column 1Decision
Column 2Applicant
1.
A decision not to give an authorisation under section 108
The person who applied for the authorisation
2.
The inclusion, under subsection 109(1) or (2), of terms and conditions in an authorisation
The person who applied for the authorisation
3.
The specifying, under subsection 110(1), of a period for which, or an event until the happening of which, an authorisation has effect
The person who applied for the authorisation
4.
A decision not to vary an authorisation under subsection 112(1)
The person who applied for the variation
5.
A decision to revoke an authorisation under paragraph 113(1)(b)
The person to whom the authorisation was given
(2) An application for reconsideration of a decision described in Column 1 of an item in the table in subsection (1) may be made by a person described in Column 2 of the same item (in this section called the applicant).
(3) An application must be made within:
(a) 21 days after the applicant is informed of the decision concerned; or
(b) if, as a result of a request made by the applicant within 21 days after being informed of the decision, AUSTEL extends the period within which an application for reconsideration of the decision may be made—the extended period granted by AUSTEL for making the application.
(4) An application must be in the form approved by AUSTEL.
(5) The approved form of application may provide for verification by statutory declarations of statements in applications.
(6) Where an application for reconsideration is made, AUSTEL must reconsider the decision to which the application relates and may:
(a) affirm the decision; or
(b) (where applicable) vary the decision; or
(c) revoke the decision; or
(d) (where applicable) revoke the decision and substitute a fresh decision.
(7) AUSTEL’s decision on reconsideration of a decision has effect as if it had been made under the provision under which the original decision was made.
(8) AUSTEL must not, under subsection (6), vary the decision, or revoke the decision and substitute a fresh decision, in such a way that the decision as varied, or as substituted, could not have been made under the provision under which the original decision was made.
(9) AUSTEL must give to the applicant a notice stating its decision on the reconsideration, together with a statement of its reasons for its decision.
Part 7—Carriers’ Powers and Immunities
Division 1—General
116 Regulations may exempt carriers from State and Territory laws
(1) The regulations may provide that specified carriers may engage in specified exempt activities despite specified laws of a State or Territory.
(2) A regulation in force because of subsection (1) has effect, according to its tenor, because of this subsection.
(3) It is the Parliament’s intention that, where a regulation in force because of subsection (1) entitles a carrier to engage in specified exempt activities despite specified laws of a State or Territory, nothing in the regulation or in this section is to affect the operation of any other law of a State or Territory, so far as that other law is capable of operating concurrently with this Act.
(4) Nothing in this section affects the liability of a carrier to taxation under a law of a State or Territory.
117 National Code about carriers’ exempt activities
(1) The Minister must by writing determine a National Code that does one or more of the following:
(a) provides for technical, design, safety, environmental or other standards with which carriers must comply in connection with their exempt activities;
(b) imposes requirements or prohibitions on carriers in relation to:
(i) the development or use of land, or the erection, maintenance or use of buildings or other structures, in connection with the carriers’ exempt activities; or
(ii) the effect of the carriers’ exempt activities on the environment; or
(iii) any other matter connected with the carriers’ exempt activities;
(c) requires carriers, before engaging in exempt activities, to consult with officers and authorities of States and Territories about the effect of the exempt activities on matters of a kind in relation to which those officers and authorities perform functions or exercise powers.
(2) Where a regulation in force because of subsection 116(1) entitles a carrier to engage in an exempt activity despite particular laws of a State or Territory, a National Code determined under subsection (1) of this section may, in relation to that exempt activity, make provision in respect of matters in respect of which those laws make provision.
(3) Nothing in either of subsections (1) and (2) limits the generality of anything else in either of those sections.
(4) An instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(5) Before determining a National Code under subsection (1), the Minister must:
(a) publish a draft of the Code and invite the public to comment on the draft; and
(b) cause a public inquiry to be held for the purposes of receiving and considering submissions about the draft.
(6) The Minister may comply with paragraph (5)(b):
(a) by giving to AUSTEL an appropriate direction under paragraph 327(b) to hold a public inquiry under Part 14; or
(b) by arranging for a person, authority or body (other than AUSTEL) to hold a public inquiry.
(7) Where the Minister arranges under paragraph (6)(b) for a person, authority or body to hold a public inquiry, Part 14 applies in relation to the person, authority or body, in relation to the inquiry, in the same way, as nearly as practicable, as that Part applies in relation to AUSTEL in relation to an inquiry under that part.
118 National Code binding on carriers
(1) This section applies where a regulation in force because of subsection 116(1) entitles a carrier to engage in an exempt activity despite particular laws of a particular State or Territory.
(2) The carrier must, so far as it engages in that exempt activity in that State or Territory, comply with the National Code in force under section 117, so far as that Code applies in relation to that exempt activity and makes provision in respect of any of the matters in respect of which those laws make provision.
119 AUSTEL may give directions about complying with National Code
AUSTEL may give written directions to a carrier about how the carrier should comply with its obligations under section 118.
120 State and Territory laws that discriminate against carriers
A carrier is not subject to any requirement, obligation, liability, penalty or disability under a law of a State or Territory, so far as that law would, apart from this section:
(a) apply in relation to that carrier, or carriers including that carrier; and
(b) so apply as to discriminate against that carrier or those carriers.
121 AUSTEL may limit carriers’ tort liability in respect of supplying basic carriage services
(1) AUSTEL may by writing determine the maximum amount recoverable in tort in relation to an act done, or an omission made, in relation to the supply of a specified basic carriage service.
(2) An instrument made by AUSTEL under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
122 Effect of limitation determined by AUSTEL
(1) This section applies where:
(a) a person has suffered, or may suffer, loss or damage because of an act or omission (whether negligent or not) done or made by or on behalf of a carrier in relation to the supply by the carrier of a basic carriage service; and
(b) when the act was done, or the omission was made, a determination under section 121 was in force in relation to that basic carriage service.
(2) The most that can be recovered by way of damages under:
(a) if the person has only one cause of action in tort against that carrier or any other person in relation to loss or damage that the first-mentioned person has suffered, or may suffer, because of that act or omission—that cause of action; or
(b) if the person has 2 or more such causes of action—all of those causes of action;
is the maximum amount specified in the determination.
123 Ownership of telecommunications facilities
Unless the circumstances indicate otherwise, a facility, or part of a facility, that is supplied, installed, maintained or operated by a general carrier remains the property of the carrier, whether or not it has become (either in whole or in part) a fixture.
Division 2—Industry codes of practice
124 Declaration of policy
It is the Parliament’s intention that, in order to achieve the objects of Part 8, all carriers should be able to become parties, on an equal basis, to certain agreements or arrangements:
(a) to which Telecom is a party at the commencement of this section; and
(b) that establish codes of practice or conduct relating to co- ordination of the respective activities of, or to co-operation between, Telecom and any of the following:
(i) public authorities of the Commonwealth or of a State or Territory;
(ii) other bodies that supply services to the public generally, for example, energy, water, sewerage or transport services.
125 Carrier may request AUSTEL to give directions about a prescribed arrangement
(1) Where, at the commencement of this section, Telecom is a party to an agreement or arrangement prescribed for the purposes of this section (in this Division called the prescribed arrangement), a carrier (other than Telecom or its successor in law) may request AUSTEL to give directions under this Division.
(2) Nothing in section 124 affects the validity of regulations purporting to be made for the purposes of this section.
126 When AUSTEL may give directions
(1) This section applies where a carrier has made a request under section 125 and AUSTEL is satisfied that:
(a) the carrier has negotiated in good faith with the other parties to the prescribed arrangement, and has done everything else it reasonably can, in order to become a party to the arrangement on a basis that is not materially different from the basis on which Telecom is such a party; and
(b) it is desirable, having regard to the declaration in section 124, for AUSTEL to give directions under this Division in order to put the carrier in the same position, as nearly as practicable, as if it were a party to the arrangement on that basis.
(2) AUSTEL may direct a party to the prescribed arrangement to do, or not to do, specified acts that AUSTEL is satisfied the arrangement would provide for that party to do, or not to do, if the applicant were a party to the arrangement on the basis referred to in paragraph (1)(a).
(3) Without limiting subsection (2), AUSTEL may, in a direction under that subsection, specify acts by reference to provisions of the arrangement as in force at a particular time or from time to time.
(4) AUSTEL may give a direction under subsection (2) even if the prescribed arrangement is not itself legally binding.
(5) AUSTEL may direct the requesting carrier or any other person (whether or not a party to the prescribed arrangement) to do, or not to do, specified acts that AUSTEL is satisfied need to be done or prevented in order to give practical effect to a direction under subsection (2).
(6) AUSTEL may vary or revoke a direction under subsection (2) or (5).
(7) A direction under subsection (2) or (5), or a variation or revocation, must be in writing given to the persons affected by the direction, variation or revocation.
(8) A direction under subsection (2) or (5) has effect despite anything in the prescribed arrangement or in any other agreement or arrangement.
127 Enforcement of directions against persons other than carriers
(1) Where a person (other than a carrier) has contravened, or proposes to contravene, a direction under subsection 126(2) or (5):
(a) AUSTEL may; or
(b) a carrier that is or would be affected by the contravention may, with AUSTEL’s written consent;
apply to the Federal Court for an injunction restraining the person from engaging in particular conduct, or requiring the person to do a particular act.
(2) Section 395 applies to an application under this section.
Division 3—Carriers’ powers to enter land
127A Land Access Code for carriers
(1) The Minister must by writing determine a Land Access Code that does one or more of the following:
(a) sets out procedures that carriers must follow in exercising powers under this Division relating to land;
(b) sets out procedures that carriers must follow in complying with obligations under this Division relating to owners or occupiers of land;
(c) sets out procedures to be followed for consultation between owners or occupiers of land and carriers if there is disagreement about:
(i) a carrier exercising powers relating to land under this Division; or
(ii) a carrier complying with obligations under this Division relating to owners or occupiers of land;
(d) sets out procedures to be followed for consultation between carriers concerning the sharing of facilities if carriers propose to install or construct new facilities in the vicinity of existing facilities.
(2) A determination is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
127B Land Access Code binding on carriers
A carrier must, when exercising a power in relation to land under this Division, comply with the Code in force under section 127A.
127C AUSTEL may give directions about complying with Land Access Code
AUSTEL may give written directions to a carrier about how the carrier should comply with its obligations under section 127B.
128 Power to inspect land etc.
(1) A carrier may:
(a) for the purpose of determining whether any land is suitable for its purposes:
(i) enter on, and inspect, the land; and
(ii) do anything on the land that is necessary or desirable for that purpose, including, for example, making surveys, taking levels, sinking bores, taking samples, digging pits and examining the soil; and
(b) for the purpose of surveying or obtaining information in relation to any land that, in the carrier’s opinion, is or may be suitable for its purposes:
(i) enter on any other land; and
(ii) do anything on the entered land that is necessary or desirable for that purpose, including, for example, making surveys and taking levels.
(2) Before exercising its powers under subsection (1) in relation to any land, a carrier must give reasonable written notice of its intention to do so to:
(a) the owner of the land; and
(b) if the land is occupied by a person other than the owner—the occupier.
(3) The notice must specify the purpose for which the carrier intends to exercise its powers in relation to the land.
129 Powers relating to installation of facilities etc.
(1) Subject to subsections (5) and (6), a carrier may, for purposes connected with the supply of a telecommunications service:
(a) construct a facility on, over or under any land; or
(b) attach a facility to any building or other structure.
(2) Without limiting subsection (1) or section 131, but subject to subsections (5) and (6) of this section, a carrier may, for purposes connected with the installation, maintenance or operation of a facility:
(a) enter on, and occupy, any land; and
(b) on, over or under the land do anything necessary or desirable for those purposes, including, for example:
(i) constructing, erecting and placing any plant, machinery, equipment and goods; and
(ii) felling and lopping trees and clearing and removing other vegetation and undergrowth; and
(iii) making cuttings and excavations; and
(iv) restoring the surface of the land and, for that purpose, removing and disposing of soil, vegetation and other material; and
(v) erecting temporary workshops, sheds and other buildings; and
(vi) levelling the surface of the land and making roads.
(3) Before exercising its powers under this section in relation to any land, a carrier must give reasonable written notice of its intention to do so to:
(a) the owner of the land; and
(b) if the land is occupied by a person other than the owner—the occupier.
(4) The notice must specify the purpose for which the carrier intends to exercise its powers in relation to the land.
(5) A carrier must not:
(a) close, divert or narrow a road or bridge; or
(b) install a facility on, over or under a road or bridge; or
(c) alter the position of a water, sewerage or gas main or pipe; or
(d) alter the position of an electricity cable or wire;
unless it has given reasonable written notice of its intention to do so to the person or authority responsible for the care and management of the road, bridge, main, pipe, cable or wire.
(6) A carrier must ensure that a facility installed over a road, bridge, path or navigable water is installed in a way that will allow reasonable passage by persons, vehicles and vessels.
130 Trees may be cut etc.
(1) If any tree, undergrowth or vegetation on or over land owned or occupied by the Commonwealth or a State or Territory, or an authority of the Commonwealth or of a State or Territory, obstructs, or is likely to obstruct, the operation of a facility, a carrier may cut down or lop the tree or clear the undergrowth or vegetation.
(2) Before exercising its powers under subsection (1) in relation to any land a carrier must give reasonable written notice of its intention to do so to the person or authority responsible for the care and management of the land.
(3) If any tree, undergrowth or vegetation on or over any private land obstructs, or is likely to obstruct, the operation of a facility, a carrier may, by written notice served on the owner of the land, require the owner to cut down or lop the tree, or to clear and remove the undergrowth or vegetation, in the manner, and within the period, specified in the notice.
(4) If the owner does not comply with the requirement, the carrier may enter the land and cut down or lop the tree, or clear and remove the undergrowth or vegetation, in the manner specified in the notice.
131 A carrier may replace, repair and maintain facilities etc.
(1) A carrier may, at any time, alter, move, remove, replace or maintain:
(a) a facility constructed on, over or under any land; or
(b) a facility attached to a building or other structure.
(2) For the purpose of exercising powers under subsection (1), a carrier may enter on, and occupy, land and may remove, or erect a gate in, any fence.
(3) Before removing, or erecting a gate in, a fence, a carrier must take all reasonable steps to give written notice of its intention to do so to the owner of the land on which, or on the boundary of which, the fence is erected.
132 Subdivider to pay for necessary alterations
(1) Where it becomes necessary, in the opinion of a carrier, because of the subdivision of any land, to remove, or alter the position of, a facility on, over or under the land, the carrier may enter the land and do anything necessary or desirable for that purpose.
(2) The person who subdivided the land is liable to pay to the carrier the reasonable cost of anything reasonably done by the carrier under subsection (1) and that amount may be recovered in a court of competent jurisdiction as a debt due to the carrier.
133 Power extends to carrier’s employees etc.
Where, under a provision of this Division, a carrier is empowered to enter on land, inspect land, occupy land or do anything else on, over or under land, the provision also empowers an employee of the carrier, a person acting for the carrier under a contract, or an employee of such a person, to do that thing.
134 Carrier to do as little damage as practicable etc.
(1) In exercising its powers under this Division, a carrier must take all reasonable steps to ensure that it causes as little detriment and inconvenience, and does as little damage, as is practicable.
(2) If a person suffers financial loss or damage because of anything done by a carrier under section 128, 129 or 131 in relation to any property owned by the person or in which the person has an interest, there is payable to the person by the carrier such reasonable amount of compensation as is agreed between them or, failing agreement, as is determined by a court of competent jurisdiction.
(3) Compensation payable under subsection (2) includes (without limitation) compensation in relation to:
(a) damage of a temporary character as well as of a permanent character; and
(b) the taking of sand, soil, stone, gravel, timber, water and other things.
(4) In this section:
court of competent jurisdiction, in relation to property, means:
(a) the Federal Court; or
(b) the Supreme Court of the State or Territory in which the property is situated or was situated at the time of the relevant loss or damage; or
(c) an inferior court that has jurisdiction:
(i) for the recovery of debts up to an amount not less than the amount of compensation claimed by the person; and
(ii) in relation to the locality in which the property, or part of the property, is situated or was situated at the time of the relevant loss or damage.
inferior court means:
(a) a County Court, District Court or local Court of a State or Territory; or
(b) a court of summary jurisdiction exercising civil jurisdiction.
135 Service of notices
(1) If:
(a) a carrier is unable, after diligent inquiry, to find out who owns particular land; or
(b) a carrier is unable to serve a notice under this Division on the owner of land either personally or by post;
the carrier may serve a notice under this Division on the owner of the land by publishing a copy of the notice in a newspaper circulating in a district in which the land is situated and:
(c) if the land is occupied—serving a copy of the notice on the occupier; or
(d) if the land is not occupied—attaching, if practicable, a copy of the notice to a conspicuous part of the land.
(2) If a carrier is unable, after diligent inquiry, to find out:
(a) whether particular land is occupied; or
(b) who occupies particular land;
it may treat the land as unoccupied land.
(3) If a carrier is unable to serve a notice under this Division on the occupier of land either personally or by post, the carrier may serve a notice under this Division on the occupier by:
(a) publishing a copy of the notice in a newspaper circulating in a district in which the land is situated; and
(b) attaching, if practicable, a copy of the notice to a conspicuous part of the land.
(4) This section does not affect the operation of any other law of the Commonwealth, or of any law of a State or Territory, that authorises the service of a document otherwise than as provided in this section.
Part 8—Access by Carriers to Networks and Services of other Carriers
Division 1—Objects of Part
136 Objects
(1) The object of this Part is to promote the long-term interests of consumers of telecommunications services by:
(a) promoting and protecting competition in the telecommunications industry generally and among carriers; and
(b) enabling the carriers to compete with each other on an equal basis in providing telecommunications networks and supplying telecommunications services.
(2) This object will be achieved by:
(a) protecting each carrier from the misuse of market power by other carriers in relation to access to essential facilities or access to consumers; and
(b) giving each carrier the right:
(i) to interconnect its facilities to telecommunications networks of other carriers; and
(ia) to have other carriers supply telecommunications services to it for the purposes of its supply of telecommunications services; and
(ii) to obtain access to other services supplied by other carriers;
and to do so on terms and conditions that:
(iii) are fair to the first-mentioned carrier and to the other carriers concerned; and
(iv) promote the long-term interests of consumers of telecommunications services; and
(c) removing obstacles to consumers having equal access to the telecommunications services supplied by the various carriers; and
(d) encouraging the efficient use of, and investment in, telecommunications infrastructure.
Division 2—Access rights of carriers
137 Carriers’ rights to interconnection to networks of, and supply of telecommunications services by, other carriers
(1) In this section:
domestic or international service means a telecommunications service:
(a) between distinct places within Australia; or
(b) between a place within Australia and a place outside Australia.
network means a telecommunications network within Australia to supply domestic or international services and, in relation to a carrier, means so much of such a network as is:
(a) operated by the carrier (even if owned or maintained by another person); or
(b) owned and maintained by the carrier (even if operated by another person); or
(c) the subject of rights of use that the carrier has under an agreement or arrangement (even if, because of an agreement or arrangement with another person, the carrier does not in fact exercise those rights itself).
network facilities, in relation to a carrier, means facilities that the carrier operates or uses, or intends to operate or use, as part of, in, or in connection with, a network of the carrier, even if another person also operates or uses, or intends to operate or use, some or all of the facilities.
reasonable means reasonable having regard to section 136 and to any other relevant matter.
(2) A carrier has the right to interconnect its network facilities to a network or networks of any other carrier or carriers:
(a) for the purpose of the other carrier or carriers supplying telecommunications services to the first-mentioned carrier under subsection (3); and
(b) on such reasonable terms and conditions as the carriers agree on or, failing agreement, as AUSTEL determines under section 154.
(3) Where a carrier reasonably requests another carrier or carriers to supply telecommunications services to the requesting carrier, the other carrier or carriers must supply those telecommunications services to the requesting carrier:
(a) so far as is necessary or desirable for the purposes of the requesting carrier supplying:
(i) if the requesting carrier is both a general carrier and a mobile carrier—domestic or international services; or
(ii) if the requesting carrier is a general carrier but not a mobile carrier—domestic or international services other than public mobile telecommunications services; or
(iii) if the requesting carrier is a mobile carrier but not a general carrier—domestic or international services that are public mobile telecommunications services; and
(b) on such reasonable terms and conditions as the carriers agree on or, failing agreement, as AUSTEL determines under section 154.
(4) Subsection (3) has effect whether or not network facilities of the requesting carrier are, or are to be, interconnected because of subsection (2) to a network or networks of the other carrier or carriers.
138 Supplementary access conditions of licences
(1) The licence conditions that may be imposed under section 64 or 65 include conditions (called supplementary access conditions of the licence) that impose on the holder of the licence obligations relating to:
(a) in any case—the grant by the holder to other carriers of rights or interests in relation to facilities, or in relation to land in or on which facilities are located; or
(b) if:
(i) other carriers supply telecommunications services by means of facilities interconnected to telecommunications networks of the holder; or
(ii) the holder supplies telecommunications services to other carriers for the purposes of the other carriers supplying telecommunications services;
the supply by the holder, to the other carriers, of specified goods or services in connection with matters associated with, or incidental to, the supply by the other carriers of:
(iii) the services referred to in subparagraph (i); or
(iv) the services last referred to in subparagraph (ii);
as the case may be.
(1A) Examples of matters of a kind referred to in paragraph (1)(b) are:
(a) customer billing and operator assistance (including directory assistance); and
(b) published directories of telecommunications services.
(2) Without limiting subsection (1), a supplementary access condition may require a carrier to grant rights or interests, or to supply goods or services, on such reasonable terms and conditions as the carrier and the acquirer of the rights, interests, goods or services agree on or, failing agreement, as AUSTEL determines under section 154.
(3) Without limiting the terms and conditions that may be agreed on or determined for the purposes of a supplementary access condition that requires as mentioned in subsection (2), those terms and conditions may include terms and conditions about charges payable for the grant of the rights or interests, or the supply of the goods or services, as the case requires, or for related matters.
(4) Nothing in this section limits the generality of anything in section 63, 64 or 65.
139 AUSTEL’s role in negotiations for access agreements
(1) Where 2 or more carriers propose to negotiate, or are negotiating, with a view to:
(a) agreeing on terms and conditions for the purposes of subsection 137(2) or (3) or of one or more supplementary access conditions; or
(b) agreeing on a variation of an access agreement to which they are parties;
any or all of them may request AUSTEL in writing to arrange for a representative of AUSTEL to attend the negotiations.
(2) AUSTEL must comply with the request or requests by taking steps to ensure that a person of a kind referred to in paragraph 405(a), (b) or (c) attends the negotiations on its behalf.
Division 3—Charging principles
140 Minister may determine principles to govern charging for access
(1) The Minister may determine in writing principles that are to be applied in agreeing on or determining terms and conditions about charges payable by a specified carrier or carriers to any other specified carrier or carriers for:
(a) interconnection of facilities to networks of the other carrier or carriers under subsection 137(2); or
(b) the supply of telecommunications services to the first-mentioned carrier or carriers by the other carrier or carriers under subsection 137(3); or
(c) the supply of facilities for the purposes of such interconnection, or in connection with the supply of services as mentioned in paragraph (b) of this subsection; or
(d) the grant of rights or interests, or the supply of goods or services, as required by a supplementary access condition or conditions; or
(e) matters related to a matter of a kind referred to in a preceding paragraph.
(2) A determination under subsection (1) may require the terms and conditions to include:
(a) specified price-cap provisions, or other price control provisions, relating to the charges; or
(b) specified provisions in accordance with which the charges are to be altered;
or both.
(3) A determination under subsection (1) may require the terms and conditions:
(a) to fix, at amounts or rates specified in the determination, charges for matters that are so specified and each of which is of a kind referred to in a paragraph of subsection (1); or
(b) to provide for charges for such matters to be worked out in accordance with methods so specified.
(4) Nothing in any of subsections (1), (2) and (3) limits the generality of anything else in any of those subsections.
(5) An instrument under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
141 Access agreements must comply with charging principles
(1) This section applies where:
(a) a determination is in force under section 140 in relation to charges payable by a carrier or carriers to any other carrier or carriers; and
(b) some or all of those carriers propose:
(i) to make an access agreement under which charges in relation to which the determination applies would be payable; or
(ii) to vary an access agreement under which charges in relation to which the determination applies are payable.
(2) The other carrier or carriers must give AUSTEL a written notice setting out:
(a) the terms and conditions of the proposed agreement or variation; and
(b) the reasons why the proposed agreement, or the agreement as proposed to be varied, as the case may be, is in accordance with the determination.
(3) Within 28 days after receiving a notice under subsection (2), AUSTEL must give the other carrier or carriers a written notice stating that, in AUSTEL’s opinion, the proposed agreement, or the agreement as proposed to be varied, as the case may be, is, or is not, as the case requires, in accordance with the determination.
(4) AUSTEL may, by written notice given to the other carrier or carriers, extend, or further extend, the period within which AUSTEL must comply with subsection (3).
(5) A notice under subsection (4) may be given only if the period, or the period as last extended, as the case may be, has not yet ended.
(6) A notice under subsection (4) must state that AUSTEL:
(a) needs more time in order to determine whether or not the proposed agreement, or the agreement as proposed to be varied, as the case may be, is in accordance with the determination; and
(b) is extending, or further extending, as the case requires, to the end of a specified day the period within which it must comply with subsection (3).
(7) The carriers must not make or vary, as the case may be, the agreement unless:
(a) AUSTEL gives the other carrier or carriers a written notice stating that AUSTEL is satisfied that the proposed agreement, or the agreement as proposed to be varied, as the case may be, is in accordance with the determination; or
(b) AUSTEL fails to comply with subsection (3).
(8) An agreement made in contravention of this section is unenforceable (as provided for in section 396).
(9) A variation made in contravention of this section is of no effect.
142 Access agreements must be varied when charging principles change
(1) This section applies where:
(a) while an access agreement is in force:
(i) a determination is made under section 140 in relation to charges payable under the agreement; or
(ii) a determination in force under section 140 in relation to such charges is varied; and
(b) the agreement is not in accordance with the determination, or the determination as varied, as the case may be; and
(c) at the end of 90 days after the day when the determination was made or varied, the agreement:
(i) is still in force (whether in the same or a different form); and
(ii) is still not in accordance with the determination, or the determination as varied, as the case may be.
(2) After the end of those 90 days the agreement is unenforceable (as provided for in section 396).
(3) In counting those 90 days, a day must be disregarded if it is part of a period that:
(a) began on the day when a party to the agreement gave to AUSTEL a notice under subsection 141(2) in relation to a proposed variation of the agreement; and
(b) ended on the day when AUSTEL gave to that party a notice under subsection 141(3) in relation to the agreement as proposed to be varied.
143 AUSTEL may advise carriers when to vary access agreements
Where AUSTEL is of the opinion that an access agreement needs to be varied to avoid becoming unenforceable because of section 142, it may notify the parties in writing:
(a) that it is of that opinon; and
(b) why it is of that opinion; and
(c) in what respects it thinks the agreement needs to be varied.
Division 4—Registration of access agreements
144 AUSTEL to keep register
(1) AUSTEL must keep a register of access agreements for the purposes of this Division.
(2) The register must consist of a public part and a confidential part.
(3) The public part must be open to public inspection.
(4) Nothing in this Division affects the operation of the Freedom of Information Act 1982.
145 Effect of registration
Section 236 provides for the consequences of registration under this Division.
146 Application for registration
(1) A party to an access agreement may, by writing accompanied by a copy of the agreement, apply to AUSTEL for registration of the agreement under this Division.
(2) If AUSTEL is satisfied that:
(a) the agreement was made for the purposes of either or both of subsections 137(2) and (3) and contains only terms and conditions dealing with some or all of the matters described in subsection 154(5); or
(b) the agreement was made for the purposes of one or more supplementary access conditions of a licence or licences and contains only terms and conditions reasonably necessary for the purposes of complying with the condition or conditions; or
(c) the agreement:
(i) was made as mentioned in paragraph (a) and also as mentioned in paragraph (b); and
(ii) contains only terms and conditions of a kind referred to in paragraph (a) and terms and conditions of a kind referred to in paragraph (b);
then, subject to subsection (3) of this section and to sections 149 and 150, AUSTEL must:
(d) register the agreement by including a copy of it in the public part of the register; and
(e) give to each party to the agreement written notice of the registration.
(3) AUSTEL may refuse the application if it is satisfied that:
(a) the agreement is, or registration of the agreement under this Division would be, detrimental to achieving the objects of this Part; or
(b) the agreement was made in contravention of this Act, or of an obligation imposed under this Act; or
(c) giving effect to the agreement would involve a contravention of this Act, or of an obligation imposed under this Act.
(4) If subsection (2) does not apply, AUSTEL must refuse the application.
(5) If it refuses the application, AUSTEL must:
(a) give to each party to the agreement a written notice:
(i) stating that the application is refused; and
(ii) setting out the reasons for the refusal; and
(b) return to the applicant the copy of the agreement that accompanied the application.
147 Request for material to be put in the confidential part of the register
(1) Where an application is or has been made under section 146, a party to the agreement may request AUSTEL to include in the confidential part of the register a copy of the whole, or of a specified part, of the agreement.
(2) A request must be in writing and may be made even if the agreement has already been registered.
(3) Where a request is made and the application under section 146 has not yet been determined, AUSTEL must defer consideration of the request until the application is determined.
148 Decision on request
(1) This section applies where:
(a) a party has made a request under section 147; and
(b) AUSTEL has decided to register the agreement or has registered it.
(2) If AUSTEL thinks it desirable to do so because matters in the agreement are confidential, AUSTEL may direct in writing that a copy of the whole, or of a specified part, of the agreement be included in the confidential part of the register.
(3) Otherwise, AUSTEL must refuse the request.
(4) For the purposes of this Division (other than subsection (3) and this subsection), AUSTEL is also taken to refuse the request if it makes under subsection (2) a direction that would result in a copy of a part of the agreement being included in the public part of the register, not in the confidential part as provided for in the request.
(5) AUSTEL must give to each party to the agreement a written notice that:
(a) sets out its decision on the request; and
(b) if it refuses the request—sets out the reasons for the decision.
149 Effect of direction to include material in the confidential part
(1) This section applies where AUSTEL directs under subsection 148(2) that a copy of the whole, or of a specified part, of an agreement be included in the confidential part of the register.
(2) Subject to section 150, if the agreement is not already registered, AUSTEL must register it by:
(a) including in the confidential part of the register a copy of the whole, or of the specified part, as the case may be, of the agreement; and
(b) unless AUSTEL includes in the confidential part a copy of the whole of the agreement—including in the public part of the register a copy of the remainder of the agreement.
(3) If the agreement is already registered, AUSTEL must:
(a) include in the confidential part of the register a copy of the whole, or of the specified part, as the case may be, of the agreement; and
(b) unless AUSTEL includes in the confidential part a copy of the whole of the agreement—include in the public part of the register a copy of the remainder of the agreement; and
(c) remove from the public part the copy of the whole, or each copy of a part, as the case requires, of the agreement that was included in the public part before AUSTEL complied with paragraph (b).
(4) On complying with subsection (2) or (3), AUSTEL must give to each party to the agreement written notice of what it has done.
(5) On complying with subsection (2) or (3), AUSTEL must include in the public part of the register a notice that:
(a) specifies the agreement and the parties to it; and
(b) states that the whole or a part, as the case may be, of the agreement has been included in the confidential part of the register; and
(c) summarises what the agreement, or that part of it, as the case may be, is about, but without disclosing any matter that AUSTEL considers to be confidential.
(6) An agreement is taken to be registered under this Division for so long as a copy of the whole, or of a part, of the agreement is included in the public part, or the confidential part, of the register.
150 Agreement not to be registered pending determination of request; effect of refusal
(1) This section applies where a party makes a request under section 147 and the agreement is not already registered.
(2) Until the end of 14 days after it gives the party notice under subsection 148(5) of its decision on the request, AUSTEL must not register the agreement in a way that results in a copy of the whole or a part of the agreement being included in the public part of the register, not in the confidential part as provided for in the request.
(3) If AUSTEL refuses the request and, within those 14 days, the party requires AUSTEL to return to the party who applied under section 146 for registration of the agreement the copy of the agreement that accompanied the application, AUSTEL:
(a) must so return the copy; and
(b) must not register the agreement pursuant to that application.
151 Deregistration of agreements
(1) AUSTEL must deregister an access agreement if the parties to it request AUSTEL in writing to deregister the agreement.
(2) AUSTEL may deregister an access agreement if:
(a) in the case of a determination made under section 154 because of an arbitration—a party to the arbitration gave to AUSTEL, for the purposes of the arbitration; or
(b) in any case—a party to the agreement gave to AUSTEL, in connection with the application to register the agreement;
information that was false or misleading in a material particular.
(3) AUSTEL may deregister an access agreement if it is satisfied that:
(a) there has been a material change in circumstances since the agreement was registered; and
(b) that change is such that AUSTEL would now be entitled to refuse under subsection 146(3) an application for registration of the agreement if it were not already registered.
(4) Deregistration of an access agreement consists of removing from the register the copy of the whole, or each copy of a part, as the case requires, of the agreement.
152 Certificate of registration under this Division
(1) Where an agreement is, or has been but is no longer, registered under this Division, AUSTEL must, if so requested by a party to the agreement, give to the party a certificate that:
(a) is signed by a member of AUSTEL; and
(b) specifies the day when it is so signed; and
(c) specifies the agreement and either:
(i) states that the agreement is registered under this Division on that day and specifies the day when the agreement last became registered under this Division; or
(ii) specifies a period during which the agreement was registered under this Division;
as the case requires.
(2) A document that purports to be a certificate given under subsection (1) and to be signed by a member of AUSTEL:
(a) is to be received in evidence without further proof; and
(b) is evidence of the matters to which it relates.
153 Application of Division in relation to variation of access agreement
This Division applies in relation to a variation of an access agreement as if:
(a) subject to paragraph (b), a reference in this Division to an access agreement were a reference to the variation; and
(b) the agreement referred to in paragraphs 146(2)(a), (b) and (c) were the first-mentioned access agreement as varied by the variation.
Division 5—Arbitration
154 Arbitration by AUSTEL of terms of access
(1) Where 2 or more carriers cannot agree on terms and conditions for the purposes of subsection 137(2) or (3) or of a supplementary access condition of a licence held by one of them, any or all of them may by writing submit the matter to AUSTEL for arbitration under this Division.
(2) Within 28 days after the end of an arbitration, AUSTEL must make a written determination about the matter to which the arbitration relates.
(3) A determination made for the purposes of subsection 137(2) must:
(a) specify the facilities and the network or networks concerned; and
(b) set out the terms and conditions of the interconnection.
(4) A determination made for the purposes of subsection 137(3) must:
(a) specify the telecommunications services concerned; and
(b) state how far it is necessary or desirable for a carrier or carriers to supply those telecommunications services to any other carrier or carriers for the purposes of the other carrier or carriers supplying telecommunications services; and
(c) set out the terms and conditions on which the carrier is, or carriers are, as the case may be, so to supply those telecommunications services.
(5) The terms and conditions set out under paragraph (3)(b) or (4)(c) must only relate to such of the following as are appropriate in the particular case:
(a) technical standards for interconnection;
(b) points of interconnection;
(c) supply of facilities for the purposes of the interconnection, or in connection with the supply of the telecommunications services;
(d) supply by a carrier or carriers to any other carrier or carriers of:
(i) information about traffic carried on the network or networks concerned; or
(ii) any other information necessary to ensure the efficient supply of telecommunications services by means of the facilities and network or networks concerned;
(e) charges payable for the interconnection or the supply of the telecommunications services, for the supply of such facilities or information, or for related matters;
(ea) any other matters that it is reasonably necessary to deal with for the purposes of the interconnection, or in connection with the supply of the telecommunications services;
(f) matters incidental to a matter of a kind referred to in a preceding paragraph.
(6) A determination made for the purposes of one or more supplementary access conditions of one or more licences held by a carrier or carriers must set out:
(a) the obligations of the carrier or carriers under the condition or conditions so far as they relate to the matter to which the arbitration relates; and
(b) the terms and conditions on which the carrier or carriers must comply with those obligations.
(7) AUSTEL must not make a determination under this section of terms and conditions about charges payable to a carrier or carriers as mentioned in subsection 140(1) that is inconsistent with a determination by the Minister in force under that subsection.
(8) In determining terms and conditions under this section (other than terms and conditions about charges payable to a carrier or carriers as mentioned in subsection 140(1)), AUSTEL must have regard to:
(a) submissions and comments made by the parties to the arbitration; and
(b) AUSTEL’s own analysis of the issues involved in the arbitration, including where relevant an analysis of costs likely to be incurred by each party in connection with the matters for arbitration.
155 AUSTEL may extend time for giving its determination
(1) AUSTEL may, by written notice given to each of the parties to an arbitration, extend, or further extend, the period within which AUSTEL must comply with subsection 154(2) in relation to the arbitration.
(2) A notice under subsection (1) may be given only if the period, or the period as last extended, as the case may be, has not yet ended.
(3) A notice under subsection (1) must state that AUSTEL:
(a) needs more time in order to make its determination in relation to the arbitration; and
(b) is extending, or further extending, as the case requires, to the end of a specified day the period within which it must comply with subsection 154(2) in relation to the arbitration.
156 Determination under section 154 taken to be an access agreement
(1) A determination made under section 154 because of an arbitration:
(a) is taken to be an access agreement between the carriers who were parties to the arbitration; and
(b) may be varied by those carriers, and enforced by each of them, as if it were a contract between them.
(2) Paragraph (1)(a) has effect for the purposes of:
(a) sections 157 and 158, Division 4 and section 236; and
(b) any other provision of this Act, except subparagraph 141(1)(b)(i), this section and any provision that expressly distinguishes between an access agreement and a determination made under section 154.
(3) Paragraph (1)(b) does not affect Division 1 of Part 16.
(4) Subsection (1) does not apply in relation to a determination made as mentioned in subsection 157(4).
157 Arbitration where carriers cannot agree on variation of access agreement
(1) Where:
(a) 2 or more carriers are parties to an access agreement made for particular purposes; and
(b) any or all of the carriers cannot agree on whether to vary the agreement, or on how to vary it;
then, for the purposes of section 154, the carriers are taken to be unable to agree on terms and conditions for those purposes.
(2) Where a matter is submitted to arbitration because of subsection (1), AUSTEL may:
(a) decline to conduct, or to further conduct, the arbitration; or
(b) decline to make a determination about the matter;
if it is satisfied that there is no sufficient reason why the access agreement should not continue to have effect in its present form.
(3) For the purposes of subsection (2), AUSTEL must have regard to:
(a) how long it is since the access agreement was made, or last varied, as the case requires; and
(b) the nature of the matters in dispute between the parties to the arbitration; and
(c) such other matters as AUSTEL thinks relevant.
(4) Where a matter is submitted to arbitration because of subsection (1), AUSTEL may make its determination about the matter in the form of a variation of the access agreement, but may only do so if:
(a) the agreement, as varied by the determination:
(i) will deal with all the matters that section 154 would require the determination to deal with if it were not made in that form; and
(ii) will deal with those matters in accordance with section 154; and
(b) the determination does not vary the agreement in relation to matters that the determination could not deal with if it were not made in that form.
(5) A determination made as mentioned in subsection (4) has effect for all purposes (except those of subparagraph 141(1)(b)(ii)) as if it were a variation made by a contract between the carriers who were parties to the arbitration.
158 Determination supersedes previous agreements and determinations
A determination made under section 154 because of an arbitration has effect despite:
(a) any agreement between the parties to the arbitration; and
(b) any variation of such an agreement;
that was made before the determination was made.
159 AUSTEL’s way of operating
(1) AUSTEL must, in conducting an arbitration for the purposes of section 154, pursue the objective of providing a mechanism of arbitration that is fair, just, economical, informal and quick.
(2) AUSTEL, in conducting an arbitration:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case; and
(c) must have regard to:
(ia) section 136; and
(i) the rights of the carriers under section 137; and
(ii) any applicable licence conditions, including supplementary access conditions; and
(iii) any applicable determination in force under section 140.
160 Constitution of AUSTEL for conduct of arbitration
(1) For the purposes of a particular arbitration, AUSTEL is to be constituted by the member or members nominated by the Chairperson.
(2) A nomination must be in writing.
161 Presiding member
(1) This section applies in relation to an arbitration for which AUSTEL is constituted by 2 or more members.
(2) If the Chairperson is one of the members of AUSTEL as constituted for the arbitration, he or she must preside at the arbitration.
(3) If the Chairperson is not one of the members of AUSTEL as constituted for the arbitration, he or she must specify which of the members is to preside at the arbitration.
(4) The specification must be included in the written nomination under section 160.
162 Reconstitution of AUSTEL
(1) This section applies where a member who constitutes AUSTEL, or who is one of the members who constitute AUSTEL, for the purposes of a particular arbitration (in this section called the unavailable member):
(a) stops being a member; or
(b) for any reason, is not available for the purpose of the arbitration at the place where the arbitration is being conducted.
(2) If the unavailable member constitutes AUSTEL, the Chairperson must direct another member or members to constitute AUSTEL for the purpose of finishing the arbitration.
(3) If the unavailable member is one of the members who constitute AUSTEL, the Chairperson must either:
(a) direct that AUSTEL is to be constituted for the purposes of finishing the arbitration by the remaining member or members; or
(b) direct that AUSTEL is to be constituted for that purpose by the remaining member or members together with another member or members.
(4) Where a direction under subsection (2) or (3) is given, AUSTEL as constituted in accordance with the direction must continue and finish the arbitration and may, for that purpose, have regard to any record of the proceedings of the arbitration made by AUSTEL as previously constituted.
(5) In exercising powers under this section, the Chairperson must have regard to the objective set out in subsection 159(1).
163 Determination of questions
(1) Where AUSTEL is constituted for an arbitration by 3 or more members, any question before AUSTEL is to be decided:
(a) unless paragraph (b) applies—according to the opinion of the majority of those members; or
(b) if the members are evenly divided on the question—according to the opinion of the presiding member.
(2) Where AUSTEL is constituted for an arbitration by 2 members, any question before AUSTEL is to be decided:
(a) if the 2 members are of the same opinion—according to that opinion; or
(b) in any other case—according to the opinion of the presiding member.
164 Previous activities as member of AUSTEL do not disqualify a member from participating in an arbitration
A member is not disqualified from constituting AUSTEL (whether alone or with other members) for a particular arbitration merely because:
(a) the member gave advice to the Minister in relation to the exercise of the Minister’s powers under section 140; or
(b) under section 139, the member represented AUSTEL at negotiations about the matter for arbitration.
165 Arbitration to be conducted in private unless the parties agree otherwise
(1) An arbitration is to be conducted in private.
(2) AUSTEL may determine the persons who may be present at an arbitration conducted in private.
(3) Where the parties to the arbitration agree, an arbitration or part of an arbitration may be conducted in public.
166 Steps to be taken in the arbitration
(1) For the purposes of an arbitration, AUSTEL must take the following steps:
(a) invite each party to make written submissions about the matters for arbitration;
(b) give to each party a copy of the submissions made by each other party (other than so much of a party’s submission as contains confidential commercial information that AUSTEL thinks should not be given to another party);
(c) invite each party to make written comments about each other party’s submissions;
(d) prepare a preliminary analysis of the issues involved in the arbitration, including where relevant an analysis of costs likely to be incurred by each party in connection with the matters for arbitration;
(e) give to each party a copy of the preliminary analysis (other than so much of the analysis as contains confidential commercial information that AUSTEL thinks should not be given to that party);
(f) invite each party to make written comments about the preliminary analysis;
(g) give each party to the arbitration an opportunity to appear before it to give evidence and to present that party’s case in relation to the matters for arbitration.
(2) Where AUSTEL invites a party to make written submissions or comments under subsection (1), AUSTEL must specify a date by which the party must give the submission or comments to AUSTEL.
(3) AUSTEL must give each party the opportunity required by paragraph (1)(g) after the last date specified under subsection (2) for giving submissions or comments to AUSTEL in relation to the arbitration.
(4) A party to an arbitration is entitled to be represented before AUSTEL by any officer or employee of the party.
167 Party may request AUSTEL to treat material as confidential
(1) A party to an arbitration may:
(a) inform AUSTEL that, in the party’s opinion, a specified part of:
(i) a submission made by the party; or
(ii) the preliminary analysis prepared under paragraph 166(1)(d);
contains confidential commercial information; and
(b) request AUSTEL not to give a copy of that part to another party or parties.
(2) On receiving a request, AUSTEL must:
(a) inform the other party or parties that the request has been made and of the general nature of the matters to which the relevant part of the submission or analysis relates; and
(b) ask the other party or parties whether there is any objection to AUSTEL complying with the request.
(3) If there is an objection to AUSTEL complying with a request, a party objecting may inform AUSTEL of its objection and of the reasons for it.
(4) After considering:
(a) a request; and
(b) any objection; and
(c) any further submissions that any party has made, at AUSTEL’s invitation, in relation to the request;
AUSTEL may decide not to give to any other party a copy of so much of the requesting party’s submission, or of the preliminary analysis, as the case may be, as contains confidential commercial information that AUSTEL thinks should not be so given.
(5) This section does not affect AUSTEL’s power to decide under paragraph 166(1)(b) or (e), otherwise than because of a request, not to give to a party all or part of another party’s submission, or of a preliminary analysis.
168 AUSTEL may set up advisory panel
(1) AUSTEL may by writing establish a panel to advise it on a matter connected with an arbitration if AUSTEL considers that it would benefit by obtaining the panel’s advice on that matter.
(2) The instrument establishing a panel must specify, as the persons who are to constitute the panel:
(a) for each party to the arbitration, at least one person nominated by that party; and
(b) at least one person of a kind referred to in paragraph 405(a), (b) or (c).
(3) AUSTEL may give a panel written directions about:
(a) how the panel is to perform its functions; and
(b) what procedures the panel is to follow in relation to meetings.
169 Public inquiry about matter involved in arbitration
(1) Subsections (3) and (4) apply where AUSTEL considers that a matter involved in an arbitration is likely to have an effect on consumers of telecommunications services that is both significant and direct.
(2) An example of such a matter is a proposal, as part of the arrangements for access by one carrier to another’s networks and services, for a major change in the way telephone calls are made—such as the introduction of a dialling prefix to be used by customers of a particular carrier.
(3) AUSTEL may hold a public inquiry under Part 14 about the matter unless it considers that such an inquiry cannot be held without substantially delaying the conclusion of the arbitration.
(4) If AUSTEL holds such an inquiry, it must do so in a way that does not substantially delay the conclusion of the arbitration.
170 The end of the arbitration
For the purposes of subsection 154(2), an arbitration is taken to have ended when each party has either:
(a) appeared before AUSTEL as mentioned in paragraph 166(1)(g); or
(b) notified AUSTEL in writing that it does not wish to appear before AUSTEL in connection with the arbitration.
171 Carriers must help AUSTEL conduct arbitration
A carrier that is a party to an arbitration must do everything that it reasonably can to help AUSTEL in the conduct of the arbitration.
172 AUSTEL’s arbitration jurisdiction is exclusive
(1) A carrier must not, alone or together with another person, submit a matter to arbitration otherwise than under subsection 154(1) if the matter may be submitted to arbitration under that subsection.
(2) An agreement is void in so far as it provides for the doing of an act that subsection (1) prohibits.
Part 9—Supply of Basic Carriage Services by Carriers
Division 1—Declarations of policy
173 Declarations
It is the Parliament’s intention:
(a) that the carriers, as the primary providers of Australia’s public telecommunications infrastructure and networks, and the principal suppliers of telecommunications services in Australia, should be able to exploit fully, in their supply of basic carriage services, the economies of scale and scope available to them because of the facilities they control; and
(b) that the use of telecommunications services supplied by carriers to other persons (including use for or in relation to the supply of telecommunications services by those persons) should be free of restrictions other than those that AUSTEL imposes under Part 10 by including conditions in class licences; and
(c) that, in relation to the supply of higher level services, there should be competition, on an equitable basis, among suppliers of such services (whether carriers or other persons); and
(d) that, in order to promote competition in markets for telecommunications services, in a way that is orderly and consistent with the declaration in paragraph (a), AUSTEL should be empowered to require a carrier to unbundle basic carriage services progressively; and
(e) that, in order to promote competition, and to reduce information-gathering costs to consumers of telecommunications services, the carriers should be required to prepare tariffs of the basic carriage services they supply; and
(f) that a carrier that is in a position to dominate a market for telecommunications services should not abuse its market power by discriminating between persons who acquire such services in that market; and
(g) that, in view of the declaration in paragraph (b), a carrier should not, in its supply of telecommunications services in a market, discriminate between resellers who acquire such services in that market and other persons who so acquire such services.
Division 2—What constitutes a basic carriage service
174 Basic carriage services
(1) A telecommunications service is a basic carriage service if, and only if, it is a service for basic communications carriage between 2 or more distinct places and is supplied:
(a) by means of:
(i) at least one reserved line link; or
(ii) facilities including at least one reserved line link; or
(b) by the use of satellite-based facilities.
(2) A service for basic communications carriage is a telecommunications service that consists only of functions each of which is involved in:
(a) establishing, maintaining or terminating a connection across the telecommunications network by means of which the service is supplied; or
(b) modifying a connection after it has been so established; or
(c) carrying a communication across the network.
(3) To avoid doubt, the supply of customer equipment is not a basic carriage service.
175 Functions necessary for basic communications carriage
The regulations:
(a) may provide that specified functions are, or are not; or
(b) may otherwise make provision for or in relation to determining what functions are or are not;
to be taken, for the purposes of section 174, to be involved in:
(c) establishing, maintaining or terminating a connection across a telecommunications network by means of which a telecommunications service is supplied; or
(d) modifying a connection after it has been so established; or
(e) carrying a communication across a telecommunications network by means of which a telecommunications service is supplied.
176 AUSTEL may give opinions about what is a basic carriage service
(1) AUSTEL may, at a person’s request or of its own motion, give a written opinion about whether or not a particular telecommunications service is a basic carriage service within the meaning of this Act.
(2) An opinion must set out the reasons for the conclusion reached.
(3) Without limiting subsection (2), if the conclusion is based to any extent on regulations made because of section 175, the opinion must:
(a) specify the regulations; and
(b) state how the regulations affect that conclusion.
177 Public register of AUSTEL opinions
(1) AUSTEL must keep a register of the opinions it gives under section 176.
(2) The register must be open to public inspection.
178 AUSTEL opinions are advisory only
(1) A party to a proceeding in a court or before a tribunal may request the court or tribunal to consider an opinion given under section 176.
(2) However, the court or tribunal need not comply with the request and, if it does, the opinion is in no way binding on it.
(3) An opinion under section 176 is not otherwise binding on a court or tribunal, or on any other authority, body or person whatever.
(4) In this section:
tribunal means:
(a) a tribunal in Australia; or
(b) any other body, authority or person in Australia having power, by law or by consent of parties, to hear, receive or examine evidence.
Division 3—Direction to a carrier to unbundle a basic carriage service
179 AUSTEL may inquire into the unbundling of a basic carriage service
(1) AUSTEL may at any time hold a public inquiry under Part 14 about whether it should direct a particular carrier to supply a particular basic carriage service to the public generally.
(2) AUSTEL may hold such an inquiry because of a request under section 180 or on its own initiative.
180 Request to AUSTEL to hold unbundling inquiry
(1) A person may request AUSTEL to hold a public inquiry under Part 14 about whether AUSTEL should direct a carrier specified in the request to supply to the public generally a basic carriage service so specified.
(2) As soon as practicable after deciding not to hold a public inquiry that a person has requested under subsection (1), AUSTEL must notify the person in writing of the decision and of the reasons for it.
181 Direction to carrier following inquiry
(1) This section applies where, because of section 179, AUSTEL has held a public inquiry under Part 14.
(2) AUSTEL must direct the carrier to supply the service to the public generally if AUSTEL is satisfied that:
(a) having regard to the matters referred to in subsection (3), it is technically feasible for the carrier to supply, and charge for, that service as a service distinct from any other telecommunications service; and
(b) the carrier is in a position to dominate a market for that service; and
(c) unless the direction is given, there will be a substantial lessening of competition, within the meaning of the Trade Practices Act 1974, in a market for any other telecommunications service; and
(d) complying with the direction will not significantly reduce the carrier’s ability to use facilities under its control to supply other telecommunications services in a way that enables the carrier to exploit the economies of scale and scope available to it because it controls those facilities; and
(e) the carrier’s compliance with the direction will not unduly affect the practical ability of the carriers to be the primary suppliers of telecommunications services in Australia.
(3) In determining whether it is satisfied that it is technically feasible for the carrier to supply, and charge for, the service as mentioned in paragraph (2)(a), AUSTEL must have regard to:
(a) the technology used by, or available to, the carrier; and
(b) whether the costs that would be involved in so supplying, and charging for, the service are reasonable; and
(c) the effects that so supplying, and charging for, that service would have on the operation and performance of the telecommunications networks that the carrier operates.
(4) If AUSTEL is not satisfied as mentioned in subsection (2), it must decide not to direct the carrier so to supply the service.
(5) The direction under subsection (3), or the decision under subsection (4), must be in writing, and AUSTEL must:
(a) give a copy of it to the carrier; and
(b) publish its contents in whatever way AUSTEL thinks appropriate.
182 How carrier must comply with direction
A direction under section 181 is taken to include a direction:
(a) to comply with section 194 in relation to the service; and
(b) to supply the service on reasonable terms and conditions.
Division 4—Prohibition of discrimination
183 Dominant carrier not to discriminate between acquirers of telecommunications services
(1) A carrier that is in a position to dominate a market for a particular kind of telecommunications service must not discriminate, between persons who acquire in that market telecommunications services of that kind, in relation to:
(a) the charges for the services; or
(b) the terms and conditions on which the services are supplied.
(2) Subsection (1) does not apply in relation to prescribed telecommunications services.
(3) Subsection (1) does not apply in relation to discrimination by a carrier in favour of:
(a) a person who is a concessional beneficiary within the meaning of Part VII of the National Health Act 1953; or
(b) a person to whom, or in respect of whom, a pension or allowance is being paid under the Veterans’ Entitlements Act 1986; or
(c) any other person that the carrier reasonably believes is disadvantaged on financial or health grounds.
184 Carrier not to discriminate against resuppliers
(1) A carrier must not, in relation to the supply of basic carriage services, discriminate against a person for the reason, or for reasons including the reason, that the person:
(a) supplies, or proposes to supply, eligible services under a class licence; or
(b) uses, or wishes to use, eligible services supplied under a class licence.
(2) In subsection (1):
discriminate includes discriminate in relation to:
(a) the charges for the service concerned; or
(b) the performance characteristics of the service concerned; or
(c) other terms and conditions on which the service concerned is supplied.
185 Exceptions
(1) Neither of sections 183 and 184 apply if, at the time of the discrimination, there is in force a decision by AUSTEL under section 185A that the discrimination, or discrimination of that kind, should be permitted.
(2) Subject to subsection (2A), neither of sections 183 and 184 apply if the carrier committing the discrimination has applied to AUSTEL for a decision under section 185A that the discrimination, or discrimination of that kind, should be permitted.
(2A) Subsection (2) does not apply, and is taken never to have applied, if AUSTEL notifies the carrier in writing that it refuses to make a decision under section 185A that the discrimination, or discrimination of that kind, should be permitted.
(2B) Section 183 does not apply if:
(a) the discrimination consists of:
(i) supplying a telecommunications service to a customer on terms and conditions that differ from the terms and conditions on which services of that particular kind are supplied to other customers; or
(ii) charging a customer for that service in a way that differs from the way in which other customers are charged for services of that particular kind; and
(b) each of the services is supplied under a legitimate charging option (whether or not each of the services is supplied under the same legitimate charging option).
(2C) For the purposes of paragraph (2B)(b), a telecommunications service is supplied by a carrier under a legitimate charging option if, at the time it is supplied, supply of the carrier’s services of that particular kind on the same terms and conditions as the terms and conditions on which that service is supplied, is available to:
(a) all, or all but an insubstantial minority of, customers to whom supply of those services is technically feasible; or
(b) all, or all but an insubstantial minority of, business customers to whom supply of those services is technically feasible; or
(c) all, or all but an insubstantial minority of, residential customers to whom supply of those services is technically feasible; or
(d) all, or all but an insubstantial minority of, customers:
(i) who are included in a class of persons that AUSTEL determines in writing to be a class of persons to whom this paragraph applies; and
(ii) to whom supply of those services is technically feasible.
(2D) Without limiting what is or is not technically feasible for the purposes of subsection (2C), supply of a telecommunications service of a particular kind to customers is, for those purposes, not technically feasible if, at the time in question, supply is not feasible using the facilities available to the carrier at that time for supplying such a service to those customers.
(2E) In deciding whether to make a determination under subparagraph (2C)(d)(i), AUSTEL must have regard to:
(a) the objects of this Act; and
(b) AUSTEL’s general functions set out in section 37.
(2F) Determinations under subparagraph (2C)(d)(i) are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.
(3) In a proceeding for a contravention of section 183 or 184, the onus of establishing that that section or subsection does not apply because of subsection (1), (2) or (2B) of this section is on the party asserting that.
(4) In this section:
customers, in relation to telecommunications services of a particular kind, means the persons who acquire or propose to acquire, or who might reasonably be expected to acquire or propose to acquire, telecommunications services of that kind.
terms and conditions, in relation to supply of a telecommunications service, includes terms and conditions about charges for that service.
185A Decisions permitting discrimination
(1) AUSTEL may, in writing, decide that discrimination by a particular carrier that is:
(a) discrimination specified in the decision; or
(b) discrimination of the kind specified in the decision;
should be permitted.
(2) AUSTEL must not so decide unless satisfied that the discrimination, or discrimination of that kind, as the case requires, is justified by:
(a) a difference in costs borne by the carrier (other than a difference that is insignificant) that will be, or is likely to be, related to the discrimination; or
(b) the community interest in promotion of the objects referred to in subparagraphs 3(a)(ii) and (iii); or
(c) the desirability of trial programs, pilot programs and demonstrations being conducted that promote the objects of this Act.
(3) Without limiting the matters to which AUSTEL may have regard in considering whether to make such a decision on the ground referred to in paragraph (2)(a), it may have regard to any of the following:
(a) the quantities in which telecommunications services that would be affected by the decision are supplied;
(b) the transmission capacity needed to supply the services;
(c) the places from or to which the services are supplied;
(d) the periods for which the services are supplied;
(e) the performance characteristics at which the services are supplied;
(f) network matters relating to supply of the services;
(g) the administrative and/or operational costs in relation to the services.
(4) AUSTEL may, in writing, revoke or vary a decision under subsection (1) (including such a decision as varied under this subsection) if it is satisfied that:
(a) there has been a material change in the cirumstances to which the decision relates, and the decision would have been different if AUSTEL had had regard to the circumstances as so changed; or
(b) information on which the decision was based was incorrect in a material respect, and the decision would have been different if AUSTEL had not based it on that information; or
(c) there has been a material change in the cirumstances to which the decision relates and information on which the decision was based was incorrect in a material respect, and the decision would have been different if:
(i) AUSTEL had had regard to the circumstances as so changed; and
(ii) AUSTEL had not based the decision on that information.
(5) For the purposes of subsection 185(1), a decision is taken to be in force on and from the day it is made, and:
(a) if the discrimination in question is provided for in or arises from a tariff that was in force immediately before the commencement of the Telecommunications Amendment Act 1994—is also taken to have been in force since that commencement; or
(b) if the discrimination in question is provided for in or arises from a tariff that came into force during the period between that commencement and that Act receiving the Royal Assent—is also taken to have been in force since that tariff came into force.
(6) Any such revocation or variation has no effect in relation to discrimination that occurred before the revocation or variation.
(7) Decisions, and revocations or variations of decisions, are to be made public in the way AUSTEL thinks appropriate.
(8) A decision under this section that discrimination should be permitted does not prevent AUSTEL exercising any power it has under this Act to disallow a tariff, even if the act or omission constituting the discrimination is required or permitted under the tariff.
186 Action for discrimination
(1) Where a carrier contravenes, or proposes to contravene, section 183 or 184:
(a) any person who is, or would be, subjected to discrimination; or
(b) any other aggrieved person;
may apply to the Federal Court for relief.
(2) The relief that may be granted includes an injunction and damages.
(3) Section 395 applies to an application under subsection (1) of this section.
187 Dominant carrier not to favour itself when using its own basic carriage services to supply certain services
(1) This section has effect for the purposes of section 183 where:
(a) a carrier supplies a basic carriage service (in this section called the primary service) of a particular kind and uses it for or in relation to the supply by the carrier of a higher level service (in this section called the secondary service) of a particular kind; and
(b) the carrier is in a position to dominate a market for that kind of basic carriage service, being a market in which other suppliers of higher level services of that kind acquire basic carriage services of that kind for use for or in relation to their supply of such higher level services.
(2) This section also has effect for the purposes of section 183 where:
(a) because of a direction under section 181, a carrier must supply a basic carriage service of a particular kind to the public generally; and
(b) the carrier uses a basic carriage service of that kind (in this section also called the primary service) for or in relation to the supply by the carrier of a telecommunications service (in this section also called the secondary service) of a particular kind; and
(c) the carrier is in a position to dominate a market for that kind of basic carriage service, being a market in which other suppliers of telecommunications services of that kind acquire basic carriage services of that kind for use for or in relation to their supply of such telecommunications services.
(3) The carrier is taken to acquire the primary service in that market.
(4) The charges for the primary service are taken to be so much of the total of the amounts shown in the carrier’s books of account as the costs of supplying the secondary service as those books treat as being attributable to the supply of the primary service.
(5) The terms and conditions on which the primary service is supplied are taken to be the terms and conditions on which it is reasonable to expect that the primary service would have been supplied if:
(a) the part of the carrier’s undertaking that is concerned with the supply of basic carriage services of the same kind as the primary service; and
(b) the part of that undertaking that is concerned with the supply of higher level services or telecommunications services, as the case may be, of the same kind as the secondary service;
had respectively belonged to distinct legal persons dealing with each other at arm’s length.
188 In other cases, carrier may favour itself when using its own basic carriage service to supply a service
(1) Except as provided in section 187, a carrier is not taken for the purposes of section 183 to acquire a basic carriage service that the carrier supplies, and uses for or in relation to the supply by the carrier of a telecommunications service.
(2) Subsection (1) is enacted to avoid doubt.
189 Direction to carrier to make available information about its supply of basic carriage services
AUSTEL may direct a carrier in writing to publish, or otherwise make available, in a specified manner and form, information the carrier has derived from supplying basic carriage services, for example, metering and traffic analyses.
189A Operation of Part IV of the Trade Practices Act 1974
To avoid doubt, nothing in this Division authorises or approves any act or thing, or any kind of act or thing, for the purposes of paragraph 51(1)(a) of the Trade Practices Act 1974.
Division 5—Tariffs of basic carriage services
190 Tariff of basic services
(1) A carrier may give to AUSTEL a written tariff of the carrier’s charges for basic carriage services that complies with this section.
(2) The tariff must be in a form approved by AUSTEL.
(3) The tariff must state the period (in this section called the term of the tariff) for which it is to be in force.
(4) The term must not begin before the third business day after the tariff is given to AUSTEL, or at a time when a previous BCS tariff of the carrier is still in force because its term has not expired or because a revocation of it under section 192 has not taken effect.
(4A) Subsection (4) of this section does not affect the operation of section 238B.
(5) In relation to each kind of basic carriage service that the carrier proposes to offer during the term, the tariff must set out:
(a) a description of the service; and
(b) details of the nature and amounts of the charges payable for the service.
(6) If the charges payable for a particular service vary, in their nature, in their amounts or both, according to any of the matters set out in subsection (7), the tariff must set out, in relation to each matter according to which the charges vary:
(a) details of that matter; and
(b) details of how the charges vary according to that matter.
(7) The following matters are set out for the purposes of subsection (6):
(a) the quantity in which the service is supplied;
(b) the transmission capacity needed to supply the service in particular circumstances;
(c) the place from or to which the service is supplied;
(d) the period for which the service is supplied;
(e) the performance characteristics at which the service is supplied;
(f) the terms and conditions on which the service is supplied;
(g) any other prescribed matter.
(8) The tariff must be precise and detailed enough to be used to work out the nature and amounts of charges payable for the supply of basic carriage services in particular cases.
(9) In preparing the tariff, the carrier must have regard to its obligations under sections 83 and 84.
(10) The tariff must be prepared in such a way that complying with section 197 or 198 in relation to the tariff will not result in a contravention of section 183 or 184.
(11) The tariff may set out, in relation to a kind, or each of 2 or more kinds, of higher level service that the carrier proposes to offer during the term of the tariff:
(a) a description of the service; and
(b) details of the nature and amounts of the charges payable for the service.
(12) The tariff may set out, or may be accompanied by a document setting out, other terms and conditions on which the carrier proposes to supply services described in the tariff.
(13) If the tariff is accompanied by a document of a kind referred to in subsection (12), the document is taken to be part of the tariff.
191 AUSTEL may disallow non-complying tariff
Where:
(a) a carrier gives to AUSTEL a document that purports to be a tariff of the carrier’s charges for basic carriage services; and
(b) in AUSTEL’s opinion, the document does not comply with section 190;
AUSTEL may, within 2 business days after receiving the document, give the carrier a written notice:
(c) stating that AUSTEL is disallowing the document because it does not so comply; and
(d) setting out why AUSTEL thinks that the document does not so comply.
Note: Section 238A confers on AUSTEL a further power to disallow tariffs as anti-competitive.
192 Variation and revocation of BCS tariff
(1) Subject to this section, a carrier’s BCS tariff is in force for the period stated in the tariff under subsection 190(3).
(2) A carrier may vary or revoke its BCS tariff by writing given to AUSTEL.
(3) A variation or revocation takes effect:
(a) on the third business day after it is given to AUSTEL; or
(b) if it provides for it to take effect on a later day—on that later day.
(3A) Subsection (3) of this section does not affect the operation of section 238B.
(4) A tariff must not be varied so as to cease to comply with section 190.
(5) In preparing a variation, a carrier must have regard to its obligations under sections 83 and 84.
(6) A variation must be prepared in such a way that complying with section 197 or 198 in relation to the varied tariff will not result in a contravention of section 183 or 184.
(7) A carrier must vary its BCS tariff as and when necessary to ensure that:
(a) the carrier complies with its obligations under sections 83 and 84; and
(b) complying with section 197 or 198 in relation to the tariff will not result in a contravention of section 183 or 184.
193 AUSTEL may disallow variation that is contrary to section 192
(1) Where:
(a) a carrier gives to AUSTEL a document that purports to be a variation of a BCS tariff of the carrier; and
(b) in AUSTEL’s opinion, the proposed variation would contravene section 192;
AUSTEL may, within 2 business days after receiving the document, give the carrier a written notice:
(c) stating that AUSTEL is disallowing the variation because it would contravene section 192; and
(d) setting out why AUSTEL thinks that the variation would contravene section 192.
(2) Despite subsection 192(3), a variation that has been disallowed under this section is of no effect.
Note: Section 238A confers on AUSTEL a further power to disallow tariffs as anti-competitive.
194 Basic carriage service must be tariffed if supplied to a person other than a carrier
(1) A carrier must not supply a basic carriage service to a person other than a carrier unless:
(a) a BCS tariff of the carrier is in force; and
(b) the service is included in the tariff.
(2) Subsection (1) does not apply in relation to the supply by a carrier of a particular basic carriage service unless:
(a) the period of 6 months starting at the commencement of this section has ended; or
(b) that service has at some time been included in a BCS tariff of the carrier.
(3) Subsection (1) does not apply in relation to such basic carriage services, or in such circumstances, (if any) as are prescribed.
195 Dominant carrier may not use untariffed basic carriage services in supplying higher level services
(1) Except as permitted by subsection (2), a carrier must not supply a basic carriage service of a particular kind for use by the carrier for or in relation to its supply of a higher level service of a particular kind if the carrier is in a position to dominate a market for that kind of basic carriage service, being a market in which other suppliers of higher level services of that kind acquire basic carriage services of that kind for use for or in relation to their supply of such higher level services.
(2) The carrier may supply a basic carriage service of that kind for use by the carrier for or in relation to its supply of a higher level service of that kind if:
(a) a BCS tariff of the carrier is in force; and
(b) the basic carriage service is included in the tariff.
196 When carrier may restrict use of tariffed basic carriage service to use in supplying specified higher level service
(1) Where:
(a) a basic carriage service of a particular kind is included in a carrier’s BCS tariff; and
(b) terms and conditions set out in the tariff include the condition that a person to whom the carrier supplies a service of that kind must not use the service except for or in relation to the supply by the person of a specified higher level service or of any of 2 or more specified higher level services;
the carrier may supply a basic carriage service of that kind to a person on terms and conditions that include that condition, unless the carrier:
(c) also supplies a basic carriage service of that kind, on terms and conditions that do not include that condition, to a person other than the carrier; or
(d) uses a basic carriage service of that kind for or in relation to the supply by the carrier of a higher level service other than the service or services referred to in paragraph (b).
(2) Subsection (1) has effect subject to sections 183 and 184.
197 Dominant carrier must charge in accordance with its BCS tariff
(1) This section applies where:
(a) a carrier is in a position to dominate a market for a particular kind of basic carriage service; and
(b) a BCS tariff of the carrier was in force in the same form throughout a period during which the carrier supplied a basic carriage service of that kind, in that market, to a person; and
(c) that kind of basic carriage service was included in that tariff as in force in that form.
(2) The carrier must not demand or receive payment of a charge for the supply of that service to the person unless so much (if any) of the charge as is attributable to that period is worked out in accordance with the tariff as in force in that form.
(3) To avoid doubt, disallowance of a BCS tariff, or provisions of a BCS tariff, under this Act does not have the effect of applying subsection (2) to a demand or receipt in relation to charge attributable to a period that occurred before that disallowance.
198 Non-dominant carrier must not exceed charges in its BCS tariff
(1) This section applies where:
(a) a carrier is not in a position to dominate a particular market for a particular kind of basic carriage service; and
(b) a BCS tariff of the carrier was in force in the same form throughout a period during which the carrier supplied a basic carriage service of that kind, in that market, to a person; and
(c) that kind of basic carriage service was included in that tariff as in force in that form.
(2) The carrier must not demand or receive payment of a charge for the supply of that service to the person unless so much (if any) of the charge as is attributable to that period does not exceed the amount of the charge that, in accordance with the tariff as in force in that form, would be payable for the supply of the service to that person during that period.
199 Effect of sections 197 and 198
Sections 197 and 198 have effect subject to sections 183 and 184, but despite anything in an agreement.
200 Terms and conditions in BCS tariff apply unless excluded
(1) Subject to any express provision of this or another Act, the terms and conditions on which a carrier supplies a telecommunications service to a person (including a person who is not authorised by the carrier to use the service) are:
(a) so far as the carrier and the person agree on the terms and conditions on which the service is supplied—the agreed terms and conditions; and
(b) if the carrier and the person do not agree on terms and conditions but terms and conditions are set out in a BCS tariff of the carrier that is in force and in which the service is included—the terms and conditions so set out, so far as they are applicable to the supply of the service.
(2) To avoid doubt, but without limiting subsection (1), a reference in that subsection to terms and conditions includes a reference to terms and conditions about charges for a telecommunications service.
201 BCS tariffs to be publicly available
(1) A carrier must ensure that copies of its BCS tariff (if any) are made available for inspection and purchase at each of its business offices.
(2) A person may request a carrier to give the person a copy of the whole, or of a specified part, of a BCS tariff of the carrier.
(3) A carrier must comply with a request under subsection (2) on payment, by the person who made the request, of such reasonable charge (if any) as the carrier requires.
(4) AUSTEL may by writing direct a carrier to publish, in a specified manner and form, the whole or a specified part of a BCS tariff of the carrier.
201A Operation of Part IV of the Trade Practices Act 1974
To avoid doubt, nothing in this Division authorises or approves any act or thing, or any kind of act or thing, for the purposes of paragraph 51(1)(a) of the Trade Practices Act 1974.
Division 6—Exception for registered access agreements
202 Supply of basic carriage service under registered access agreement
In determining whether this Part has been contravened, the following must be disregarded:
(a) the supply of a basic carriage service under:
(i) an agreement that is registered under Division 4 of Part 8; or
(ii) an agreement that is so registered, as varied by a variation that is so registered;
(b) anything done or omitted in connection with the supply of such a service under such an agreement.
Part 10—Supply of Telecommunications Services under Class Licences
Division 1—Objects of Part
203 Objects
(1) These are the objects of this Part:
(a) to ensure that eligible services, and the facilities used in supplying them, meet technical and operational standards determined by AUSTEL for the purpose of:
(i) maintaining the integrity and efficiency of telecommunications networks operated by carriers; and
(ii) maintaining at international standards the standards of eligible services supplied in Australia;
(b) to ensure that telecommunications networks are not used in an unlawful way, or for unlawful purposes, in connection with the supply of eligible services;
(c) to promote and safeguard a fair and efficient market in the supply of telecommunications services and to ensure that the supply of higher level services is open to full competition;
(d) provide a means of regulating the activities of persons who supply eligible international services, in order to prevent the misuse of market power by persons who operate telecommunications networks outside Australia for or in relation to the supply of such services;
(e) provide a means of regulating the supply of eligible services (other than public mobile telecommunications services) by means of facilities that include a radcom facility:
(i) that is owned or operated by a person other than a general carrier; and
(ii) is connected to a network operated by a general carrier;
(f) provide a means of regulating the supply of eligible services by means of a network that:
(i) is owned or operated by a person other than a general carrier; and
(ii) is also used, is intended to be also used, or can also be used, to supply telecommunications services between places that are all in the same area because of subsection 12(2) or (3); and
(iii) is interconnected to a network operated by a general carrier;
(g) provide a means of regulating the supply of eligible services by means of:
(i) a reserved line link between a place within Australia and a place outside Australia; or
(ii) facilities including such a line link.
(2) The purpose of regulating the supply of eligible services as mentioned in paragraph (1)(e), (f) or (g) is to prevent undue erosion of the practical value of the general carriers’ rights under Parts 6 and 9.
Division 2—Ministerial directions
204 Minister may give directions to AUSTEL
(1) The Minister may, by written notice, give to AUSTEL directions about how AUSTEL is to perform its functions under Division 3.
(2) Without limiting subsection (1), a direction under that subsection may set out what policy goals concerning matters relating to the supply of eligible international services AUSTEL is to pursue in performing its functions under Division 3.
(3) Without limiting subsection (1), a direction under that subsection may set out what restrictions AUSTEL is to impose, by including conditions in class licences, on the use, for or in relation to the supply of eligible services under the class licences, of:
(a) radcom facilities of the kind referred to in paragraph 203(1)(e); or
(b) networks of the kind referred to in paragraph 203(1)(f); or
(c) line links or facilities of the kind referred to in paragraph 203(1)(g).
(4) This section does not affect the Minister’s power to give AUSTEL directions under other provisions about other matters.
(5) An instrument under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
205 Directions to have general application only
(1) A direction under section 204 must not concern the way in which AUSTEL is to deal with:
(a) a particular application for the variation of a class licence under Subdivision B of Division 3; or
(b) a particular application for registration, under a class licence, of an eligible service under Subdivision C of Division 3; or
(c) whether or not to declare a particular eligible service to be an unlicensed service under Subdivision D of Division 3; or
(d) a particular application under section 220, 224 or 230 for reconsideration of a decision.
(2) A direction under section 204 must not require AUSTEL to include in a class licence a condition that is expressed to apply to particular persons.
(3) A direction is invalid so far as it contravenes subsection (1) or (2).
206 Directions not to affect pre-existing rights to supply services
A direction under section 204 is invalid so far as it would have the effect of preventing a person from supplying a telecommunications service that the person was permitted by or under the Telecommunications Act 1989 to supply.
207 Carrier may ask Minister to give direction about use of interconnected radcom facilities
(1) A carrier may by writing request the Minister to give under section 204 a direction setting out restrictions that AUSTEL is to impose, by including conditions in class licences, on the use, for or in relation to the supply of eligible services under the class licences, of radcom facilities of the kind referred to in paragraph 203(1)(e).
(2) A request must:
(a) specify the class licences, and the eligible services, to which the direction would relate; and
(b) set out the restrictions that, in the carrier’s opinion, should be so imposed; and
(c) specify the radcom facilities on whose use the restrictions would be so imposed; and
(d) specify how and why failure to give the direction would result in undue erosion of the practical value of the carriers’ rights under Parts 6 and 9.
(3) As soon as practicable after deciding:
(a) not to give a direction under section 204 as a result of a request; or
(b) to give, as a result of a request, a direction under section 204 that is substantially different from the direction requested;
the Minister must notify the carrier in writing of the decision and of the reasons for it.
208 Minister to consult carriers before varying or revoking a direction
The Minister may vary or revoke a direction under section 204 only if he or she has consulted each carrier whose interests may, in his or her opinion, be affected by the variation or revocation.
Division 3—Class licences
Subdivision A—General
209 Issuing of class licences
(1) AUSTEL may, by notice published in the Gazette, issue class licences specifying eligible services that persons are, subject to the conditions set out in the licences, permitted to supply.
(2) AUSTEL may include in a class licence any conditions it thinks necessary or desirable to achieve the objects of this Part, including, for example:
(a) conditions relating to technical and operational standards for the supply of eligible services; and
(b) conditions relating to compliance with technical standards about network matters in force under Division 3 of Part 12; and
(c) conditions relating to how eligible services specified in the licence are to be supplied; and
(d) conditions relating to prohibition of the supply of eligible services for illegal purposes; and
(e) conditions relating to prohibition of the use of telecommunications networks in an unlawful way or for unlawful purposes; and
(f) a condition that a supplier of eligible services must, in accordance with directions by AUSTEL, consult with Commonwealth, State and Territory law enforcement agencies about any proposal by the supplier to use new technology in its telecommunications activities or to develop new technology in order to so use it; and
(g) a condition that the supplier must, in accordance with directions by AUSTEL, give to officers and authorities of the Commonwealth and of the States and Territories such help as is reasonably necessary for any of the following purposes:
(i) enforcing the criminal law and laws imposing pecuniary penalties;
(ii) protecting the public revenue;
(iii) safeguarding national security.
(3) A class licence, or a condition, may be expressed to apply in relation to specified persons.
(4) Subsection (3) does not limit subsection (1) or (2).
(5) AUSTEL must not issue a class licence unless it is satisfied that the conditions included in the licence are sufficient to ensure that any customer equipment, customer cabling, or other equipment, that will be used in the supply of an eligible service under the licence will comply with technical standards determined under Divisions 2 and 3 of Part 12.
(6) AUSTEL must not issue a class licence that is inconsistent with directions given by the Minister under Division 2.
(7) In deciding whether or not to issue a particular class licence, AUSTEL must have regard to the carriers’ rights under Parts 6 and 9.
(8) A class licence has effect on and from the day specified in the notice published under subsection (1).
210 Consultation with carriers on proposed class licences
(1) Subject to subsection (5), before issuing a class licence, AUSTEL must send to each carrier a copy of the proposed licence.
(2) A carrier may, within 21 days after receipt of the notice, make written representations to AUSTEL concerning the proposed licence.
(3) AUSTEL must, before issuing a class licence, give due consideration to any representations so made, and may alter the proposed licence.
(4) Failure to comply strictly with subsection (1) does not affect the validity of a class licence if the requirements of that subsection are substantially complied with.
(5) This section does not apply to the issuing of a class licence before the end of the period of one month after the commencement of this section.
211 Variation of class licences
(1) AUSTEL may, by notice published in the Gazette, vary a class licence.
(2) The power to vary a class licence includes the power to:
(a) specify further eligible services that persons are to be permitted to supply under the licence in addition to the services already specified in the licence; or
(b) vary or revoke descriptions of any services specified in the licence; or
(c) add to the conditions in the licence; or
(d) vary or revoke any of the conditions.
(3) AUSTEL must not vary a class licence under this section unless it is satisfied that the conditions included in the licence as varied are sufficient to ensure that any customer equipment, customer cabling or other equipment that will be used in supplying an eligible service under the licence will comply with technical standards determined under Divisions 2 and 3 of Part 12.
(4) AUSTEL must not vary a class licence in a manner that is inconsistent with directions given by the Minister under Division 2.
(5) A class licence varied under this section has effect, as varied, on and from the day specified in the notice published under subsection (1).
212 Consultation with carriers on proposed variations of class licences
(1) Before varying a class licence, AUSTEL must send to each carrier a copy of the proposed variation.
(2) A carrier may, within 21 days after receipt of the notice, make written representations to AUSTEL concerning the proposed variation.
(3) AUSTEL must, before varying a class licence, give due consideration to any representations so made, and may alter the proposed variation.
(4) Failure to comply strictly with subsection (1) does not affect the validity of the variation of a class licence if the requirements of that subsection are substantially complied with.
213 Publication of proposed restrictive variations of class licences
(1) This section applies where AUSTEL proposes to vary a class licence so that:
(a) an eligible service that is permitted to be supplied under the licence would no longer be so permitted; or
(b) the conditions under which an eligible service is permitted to be supplied under the licence would become more onerous on a supplier of the service.
(2) Before varying the class licence, AUSTEL must, by notice in writing, published under subsection (5):
(a) state that it proposes to vary the class licence specified in the notice; and
(b) state the subject matter of the variation; and
(c) specify a place or places at which copies of the licence, and of the proposed variation to the licence, may be bought; and
(d) invite interested persons to make representations concerning the proposed variation by a specified date that is at least 1 month after the date of publication of the notice; and
(e) specify an address or addresses to which representations concerning the proposed variation may be sent.
(3) A person may, not later than the date specified in the notice, make representations to AUSTEL concerning the proposed variation.
(4) AUSTEL must, before varying the class licence, give due consideration to any representations so made.
(5) The notice must:
(a) be published in the Gazette; and
(b) where regulations made for the purposes of this subsection provide for additional requirements in relation to the publication of notices—be published in accordance with those additional requirements.
(6) Failure to comply strictly with subsection (2) does not affect the validity of the notice, or the validity of a variation of the class licence, if the requirements of that subsection are substantially complied with.
Subdivision B—Applications for variation of class licences
214 Applications for variation of class licences
(1) A person who proposes to supply an eligible service may apply to AUSTEL for a class licence to be varied in such a way that the service would be supplied under the licence.
(2) The application must:
(a) describe in sufficient detail the nature of the eligible service; and
(b) be in the form approved by AUSTEL; and
(c) be accompanied by the payment of the appropriate fee.
(3) The approved form of application may provide for verification by statutory declaration of statements in applications.
215 Carriers to be consulted on proposed variations
(1) Subject to subsection (2), where an application is made under section 214, AUSTEL must send to each carrier who is, in AUSTEL’s opinion, likely to be interested in the application:
(a) a copy of a proposed variation of the class licence concerned that AUSTEL proposes it would make if it were to accept the application; and
(b) if AUSTEL considers it necessary to give to the carrier information contained in the application for the purpose of enabling the carrier to make representations to AUSTEL concerning the proposed variation—a statement setting out such of that information as AUSTEL considers necessary to give to the carrier for that purpose.
(2) AUSTEL must not give a carrier a statement under paragraph (1)(b) unless it has reached agreement with the applicant as to the information to be set out in the statement.
(3) Subject to subsection (4), if no agreement is necessary or each necessary agreement is reached, AUSTEL must accept the application and, by written notice, inform the applicant that it has been accepted.
(4) If:
(a) AUSTEL considers it necessary for a statement of a kind referred to in paragraph (1)(b) to be given to a carrier for the purpose of enabling the carrier to make representations to AUSTEL concerning the proposed variation but is unable to reach agreement with the applicant as to the information to be set out in the statement; or
(b) AUSTEL is satisfied that it would not be possible to comply with subsection 217(3) in varying the class licence concerned in order to permit the supply of the eligible service to which the application relates;
AUSTEL must refuse to accept the application.
(5) On refusing to accept the application, AUSTEL must:
(a) give to the applicant written notice:
(i) stating that AUSTEL refuses to accept the application; and
(ii) giving its reasons for its refusal; and
(b) return the application, and any documents that accompanied the application, to the applicant.
216 Carriers may make representations on proposed variations
Where, under section 215, AUSTEL sends to a carrier a copy of a proposed variation of a class licence, the carrier may, within 21 days after receiving the copy, make written representations to AUSTEL concerning the proposed variation.
217 Variation of class licences
(1) Where an application has been accepted under subsection 215(3), AUSTEL may, by written notice given to the applicant, vary a class licence in such a way that the eligible service that is the subject of the application will be supplied under the class licence.
(2) AUSTEL must, before deciding whether to vary the class licence, give due consideration to any representations made under section 216 by carriers concerning the proposed variation of the licence.
(3) AUSTEL must not vary a class licence under this section unless it is satisfied that the conditions included in the licence, as varied, are sufficient to ensure that any customer equipment, customer cabling or other equipment that will be used in supplying an eligible service under the licence will comply with technical standards determined under Divisions 2 and 3 of Part 12.
(4) AUSTEL must not vary a class licence in a way that is inconsistent with directions given by the Minister under Division 2.
(5) AUSTEL must not vary a class licence under this section so that:
(a) an eligible service that was previously permitted to be supplied under the licence would no longer be permitted; or
(b) the conditions under which an eligible service is permitted to be supplied under the licence would become more onerous on a supplier of the service.
(6) A class licence varied under this section has effect, as varied, on and from the day on which notice of the variation is given under subsection (1).
(7) Where AUSTEL varies a class licence under this section, it must:
(a) under section 222, register under the class licence the eligible service in relation to which the application for the variation was made; and
(b) cause to be published in the Gazette a notice:
(i) specifying the class licence that has been varied; and
(ii) setting out the text of the variation; and
(iii) specifying the day on and from which the variation has effect; and
(c) give a copy of the text of the variation to each carrier; and
(d) subject to subsection (9), give a copy of its reasons for varying the licence to each carrier (if any) that has made representations concerning the application under section 216.
(8) AUSTEL must include in the notice given under subsection (1) a statement that the eligible service concerned has been registered under the class licence.
(9) AUSTEL must remove any confidential commercial information from the documents that it gives to a carrier under subsection (7).
(10) If AUSTEL decides not to vary the licence under this section, it must:
(a) give to the applicant written notice that the application is refused together with reasons for the refusal; and
(b) give to each carrier to whom notice of the application was given under subsection 215(1) written notice that the application is refused.
218 Deemed refusal of applications etc.
(1) If, at the end of 30 days after an application for the variation of a class licence is made, AUSTEL has not accepted the application, AUSTEL is taken, for the purposes of section 220:
(a) to have refused to accept the application on the last day of the 30 days; and
(b) to have informed the applicant accordingly on that day.
(2) If, at the end of 30 days after an application for the variation of a class licence has been accepted under subsection 215(3), AUSTEL has not varied the licence, AUSTEL is taken, for the purposes of section 220:
(a) to have decided, on the last of the 30 days, not to vary the licence; and
(b) to have informed the applicant accordingly on that day.
219 Notice of right to seek reconsideration
Where AUSTEL gives to an applicant for the variation of a class licence a notice of a decision of a kind referred to in Column 1 of the table in subsection 220(1), it must include in the notice a statement that the applicant may, within 21 days after the notice is received, apply to AUSTEL for reconsideration of the decision.
220 Reconsideration of decisions
(1) An application may be made to AUSTEL for reconsideration of a decision described in Column 1 of the following table:
TABLE
ItemNo.
Column 1Decision
Column 2Applicant
1.
A refusal, under subsection 215(4), to accept an application for the variation of a class licence
The person who applied for the variation
2.
A decision to vary a class licence under section 217
A carrier who made representations under section 216 concerning the application for the variation
3.
A decision not to vary a class licence under section 217
The person who applied for the variation
(2) An application for reconsideration of a decision described in Column 1 of an item in the table in subsection (1) may be made by a person described in Column 2 of the same item (in this section called the applicant).
(3) An application must be made within:
(a) 21 days after the applicant is informed of the decision concerned; or
(b) if, as a result of a request made by the applicant within 21 days after being informed of the decision, AUSTEL extends the period within which an application for reconsideration of the decision may be made—the extended period granted by AUSTEL for making the application.
(4) An application must be in the form approved by AUSTEL.
(5) The approved form of application may provide for verification by statutory declaration of statements in applications.
(6) Where a carrier applies for reconsideration of a decision to vary a class licence under section 217, AUSTEL must send to the person who applied for the variation:
(a) a copy of the carrier’s application; and
(b) a notice inviting the person to make representations to AUSTEL, within 21 days after receiving the notice, concerning the reconsideration of the decision.
(7) A person who receives such a notice may make representations to AUSTEL, within 21 days after receiving the notice, concerning reconsideration of the decision.
(8) AUSTEL must, in reconsidering the decision to vary the licence, give due consideration to any representations so made.
(9) AUSTEL must reconsider the decision to which the application for reconsideration relates and may:
(a) affirm the decision; or
(b) (where applicable) vary the decision; or
(c) revoke the decision; or
(d) (where applicable) revoke the decision and substitute a fresh decision.
(10) AUSTEL’s decision on reconsideration of a decision has effect as if it had been made under the provision under which the original decision was made.
(11) AUSTEL must not, under subsection (9), vary a decision, or revoke the decision and substitute a fresh decision, if the decision as varied, or as substituted, could not have been made under the provision under which the original decision was made.
(12) AUSTEL must give to the applicant, and (where applicable) to a person who made representations under subsection (7) concerning the reconsideration:
(a) a written notice stating its decision on the reconsideration; and
(b) a statement of the reasons for its decision.
Subdivision C—Registration of eligible services
221 Register of eligible services
(1) AUSTEL must maintain a register of eligible services in respect of each class licence that is in force.
(2) The register must be open to public inspection.
(3) Subject to subsection 231(1), if a particular eligible service is registered under a class licence, the supply of that service is taken, for the purposes of this Act, to be under the class licence.
(4) An eligible service (other than a service to which subsection 231(1) applies) may be taken to be supplied under a class licence even though it is not registered under the class licence.
222 Registration of eligible services
(1) A person may apply in writing to AUSTEL for the registration under a class licence of a particular eligible service that the person is supplying or proposing to supply.
(2) The application must:
(a) describe in sufficient detail the nature of the eligible service; and
(b) specify the class licence under which the service is sought to be registered; and
(c) be in the form approved by AUSTEL; and
(d) be accompanied by the payment of the appropriate fee.
(3) If AUSTEL is satisfied that:
(a) the application complies with subsection (2) (other than paragraph (2)(d)); and
(b) the eligible service is being, or will be, supplied under the class licence specified in the application; and
(c) the fee referred to in paragraph (2)(d) has been paid;
AUSTEL must register the service under the class licence and give to the applicant written notice of the registration.
(4) Otherwise, AUSTEL must refuse the application and give to the applicant written notice:
(a) stating that the application is refused; and
(b) setting out the reasons for the refusal; and
(c) stating that the applicant may, within 21 days after the day on which the notice is given, request AUSTEL to reconsider the application.
223 Deemed refusal of application for registration
If, at the end of 30 days after an application for the registration of a particular eligible service under a class licence has been made under section 222, AUSTEL has not given to the applicant a notice under section 222 indicating its decision concerning the application, AUSTEL is taken, for the purposes of section 224:
(a) to have refused the application on the last day of the 30 days; and
(b) to have informed the applicant accordingly on that day.
224 Reconsideration of refusals of applications for registration
(1) Where AUSTEL refuses an application for the registration of an eligible service, the applicant may, within:
(a) 21 days after being informed of the refusal; or
(b) if, as a result of a request made by the applicant within 21 days after being informed of the refusal, AUSTEL extends the period within which an application for reconsideration of the refusal may be made—the extended period granted by AUSTEL for making the application;
make a written request to AUSTEL for reconsideration of the refusal.
(2) On receiving such a request, AUSTEL must reconsider the application.
(3) If, on reconsidering the application, AUSTEL is satisfied as described in subsection 222(3), it must register the eligible service under the class licence concerned and give to the applicant written notice of the registration.
(4) Otherwise, AUSTEL must reject the application and give to the applicant written notice of the rejection, together with its reasons for rejecting the application.
Subdivision D—Enrolment of suppliers
225 Class licence conditions requiring suppliers to enrol
(1) AUSTEL may include in a class licence a condition that a person must not supply under the licence eligible services of a specified kind unless the person is enrolled under this Subdivision as a supplier of eligible services of that kind.
(2) Because of this subsection, AUSTEL is taken to have included in each class licence a condition that a person must not supply under the licence a public access cordless telecommunications service unless the person is enrolled under this Subdivision as a supplier of public access cordless telecommunications services.
(3) Subsection (2) does not limit AUSTEL’s power to specify any kind of eligible service in a condition that it includes under subsection (1) in a class licence, even if eligible services of that kind are, or include, public access cordless telecommunications services.
(4) Nothing in this section limits subsection 209(2).
226 Roll of suppliers
(1) Where there is included in a class licence a condition of a kind referred to in subsection 225(1) or (2), AUSTEL must keep, in respect of each kind of eligible services to which the condition relates, a roll of suppliers of eligible services of that kind.
(2) The roll must be open to public inspection.
227 Enrolment of suppliers
(1) A person may apply in writing to AUSTEL for enrolment as a supplier of eligible services of a kind in respect of which AUSTEL keeps a roll under this Subdivision.
(2) The application must:
(a) set out the person’s name and the address of the person’s principal place of business; and
(b) specify the kind of eligible services and the class licence under which the person proposes to supply eligible service of that kind; and
(c) set out the prescribed matters (if any); and
(d) be in the form approved by AUSTEL; and
(e) if it is for enrolment as a supplier of public access cordless telecommunications services—be accompanied by the payment of the appropriate fee.
(3) If AUSTEL is satisfied that the application complies with subsection (2), it must:
(a) enrol the person as a supplier of eligible services of that kind; and
(b) give the person written notice of the enrolment.
(4) Otherwise, AUSTEL must refuse the application and give the person a written notice:
(a) stating that the application is refused; and
(b) setting out the reasons for the refusal.
Subdivision E—Unlicensed services
228 Declarations that services are unlicensed
(1) Where AUSTEL has reasonable cause to suspect that:
(a) a person is supplying, or proposes to supply, an eligible service; and
(b) the service is not being, or would not be, supplied under any class licence;
AUSTEL may give the person a written notice under this section.
(2) The notice must:
(a) specify the service concerned; and
(b) invite the person to make representations to AUSTEL as to why the service should not be declared to be an unlicensed service; and
(c) specify a date, not being later than 28 days after the notice is sent to the person, by which such representations may be made.
(3) The notice may, in addition, require the person to give to AUSTEL, in writing, such information relating to the service concerned as is required by the notice.
(4) AUSTEL may, if it is satisfied:
(a) that the person is supplying, or proposes to supply, the service concerned; and
(b) that:
(i) the service is not being, or would not be, supplied under any class licence; or
(ii) the person has failed to comply, to the best of the person’s ability, with a requirement under subsection (3);
give to the person a written declaration that the service is an unlicensed service.
(5) Before giving the declaration to the person, AUSTEL must give due consideration to any representations made by the person on or before the date referred to in paragraph (2)(c).
(6) A declaration given to a person must be accompanied by a statement informing the person that the person may, within 21 days after the day on which the declaration is given, request AUSTEL to reconsider its decision to give the declaration.
(7) A declaration given to a person under subsection (4) has effect:
(a) if the person does not, within the period for making an application under section 230 for reconsideration of the decision to give the declaration, make such an application to AUSTEL under that section—on and from the day occurring 30 days after the declaration is given to the person; or
(b) if the person makes such an application within that period—on and from the day occurring 30 days after the making of the application for reconsideration of the decision to give the declaration.
(8) Where AUSTEL:
(a) gives a notice under subsection (1) to a person in respect of an eligible service; and
(b) later decides not to give the person a declaration under subsection (4) in respect of the service;
AUSTEL must give the person a notice to the effect that it has decided not to declare the service to be an unlicensed service.
229 Declarations in respect of registered eligible services
(1) AUSTEL must not give a declaration in respect of an eligible service that is, under section 222, registered under a class licence unless, in addition to the requirements of section 228, it is satisfied that, since the registration of the service, the conditions of the class licence concerned have been varied so that the service is no longer being, or would no longer be, supplied under the class licence.
(2) Where AUSTEL gives to a person a declaration under section 228 in respect of a service that is, under section 222, registered under a class licence:
(a) the registration of the service ceases to have effect on and from the day on which the declaration has effect; and
(b) AUSTEL must remove the service from the register maintained under subsection 221(1) in respect of the class licence concerned.
230 Reconsideration of declarations
(1) Where AUSTEL gives a person a declaration under section 228 in respect of a service, the person may make a written request to AUSTEL for reconsideration of its decision to give the declaration.
(2) The written request must be made within:
(a) 21 days after the person is given the declaration; or
(b) if, as a result of a request made by the applicant within 21 days after being given the declaration, AUSTEL extends the period within which an application for reconsideration of its decision may be made—the extended period granted by AUSTEL for making the application.
(3) On receiving such a request, AUSTEL must reconsider its decision.
(4) If, after reconsidering its decision, AUSTEL is no longer satisfied as to the matters as to which it is required to be satisfied in order to give a declaration under section 228, it must revoke the declaration concerned and give to the person written notice accordingly.
(5) If, after reconsidering its decision, AUSTEL is still satisfied as to those matters, it must affirm its declaration and give to the person written notice of its decision, together with its reasons.
231 Effect of declarations
(1) If a declaration under section 228 that a particular service is an unlicensed service has effect, the supplying of the service is taken, for the purposes of this Act, not to be under any class licence.
(2) An eligible service (other than such a service that is registered under a class licence) may be taken not to be supplied under any class licence even though no declaration under section 228 in respect of the service has been given or has effect.
232 Registration of unlicensed services
(1) Where:
(a) a declaration has been given that an eligible service is an unlicensed service; and
(b) since the declaration was given, AUSTEL has issued a new class licence or has varied a class licence;
a person wishing to supply the service may apply in writing under section 222 for registration of the service under the class licence concerned.
(2) If AUSTEL registers the service under section 222, the declaration ceases to have effect on and from the day of registration.
Division 4—Use of telecommunications networks for the supply of eligible services
233 Connection etc. of unlicensed services
(1) Where, under section 228, AUSTEL declares an eligible service to be an unlicensed service, it must give to each carrier a written notice:
(a) stating that the declaration has been made; and
(b) specifying the service concerned; and
(c) specifying the person to whom the declaration was given; and
(d) directing the carrier:
(i) if the service concerned is already connected to a telecommunications network operated by the carrier—to take the necessary action to ensure that the service is no longer so connected; or
(ii) if the service concerned is not already so connected—not to connect the service to any telecommunications network that it operates.
(2) Where:
(a) under section 228, AUSTEL declares an eligible service to be an unlicensed service; and
(b) AUSTEL knows of a person (other than a carrier) to whose facilities the service is connected, or is intended to be connected;
AUSTEL must give to each such person of whom it knows (in this subsection called the supplier) a written notice:
(c) stating that the declaration has been made; and
(d) specifying the service concerned; and
(e) specifying the person to whom the declaration was given; and
(f) directing the supplier:
(i) if the service concerned is already connected to facilities of the supplier—to take the necessary action to ensure that the service is no longer so connected; or
(ii) if the service concerned is not already connected—not to connect the service to any of the supplier’s facilities.
(3) A person who contravenes a direction under subsection (2) is guilty of an offence punishable on conviction by a fine of an amount not exceeding $12,000.
234 Carriers must connect eligible services
(1) Where a person wishing to supply an eligible service gives a carrier that operates a telecommunications network that will need to be used in the supply of the service a request to connect the service to the network, the carrier must connect the service.
(2) Subsection (1) does not apply if a direction has been given to the carrier under subsection 233(1) in relation to the service.
(3) Subsection (1) does not require a carrier to connect an eligible service to a telecommunications network if there is included in another carrier’s BCS tariff each telecommunications service that the first-mentioned carrier would supply to the person because of that connection.
(4) A carrier does not contravene an obligation under subsection (1) to connect a service to a network if the connection is delayed:
(a) for a period that:
(i) is reasonable in the circumstances; and
(ii) is not substantially longer than the delay normally experienced for connection of a service of that type, and in that locality, to the network; or
(b) because a connection of the service is not technically feasible; or
(c) for reasons beyond the carrier’s control.
(5) Paragraph (4)(b) does not apply in relation to the connection of an eligible service to a telecommunications network operated by a carrier unless there is in force a written notice, given by AUSTEL to the carrier, certifying that connection of an eligible service of that kind to a telecommunications network is not technically feasible.
(6) Where AUSTEL is satisfied that it has become technically feasible to connect an eligible service of a kind in respect of which a notice under subsection (5) is in force, AUSTEL must, by written notice given to the carrier to whom the notice under subsection (5) was given, revoke the notice under subsection (5).
(7) Subsection (1) does not apply if the carrier has reasonable grounds for believing that a person to whom the carrier would supply a telecommunications service because of the connection would fail, to a material extent, to comply with the terms and conditions on which the carrier would supply the service to the person.
(8) Examples of the grounds a carrier might have for believing as mentioned in subsection (7) include:
(a) evidence that the person is not creditworthy; and
(b) repeated failures by the person to comply with the terms and conditions on which that or another carrier has supplied to the person a telecommunications service of the same or a similar kind.
(9) A reference in this section to connecting a service to a network includes a reference to connecting to the network a facility used for or in relation to supplying the service.
235 Action for failure to connect eligible services
(1) Where a carrier contravenes, or proposes to contravene, section 234 by refusing or failing to connect a service to a network at a person’s request, that person or any other aggrieved person may apply to the Federal Court for relief.
(2) The relief that may be granted includes an injunction and damages.
(3) Section 395 applies to an application under subsection (1) of this section.
Part 11—Supply of Telecommunications Services Generally
Division 1—Competition
235A Part IIIA of Trade Practices Act not to apply to supply of certain services
Part IIIA of the Trade Practices Act 1974 does not apply in relation to the supply of a telecommunications service by a carrier or under a class licence.
236 Certain acts done under this Act do not breach Part IV of the Trade Practices Act
(1) This Act specifically authorises the doing of an act, or the making of an omission, that is necessary to comply with, or otherwise to give effect to:
(a) a condition of a general telecommunications licence or public mobile licence; or
(b) a direction given, or determination made, under this Act by the Minister or AUSTEL (including, without limitation, the Code of Practice determined under section 77); or
(c) an agreement that is registered under Division 4 of Part 8; or
(d) an agreement that is so registered, as varied by a variation that is so registered.
(2) Where an agreement or variation is, or has been but is no longer, registered under Division 4 of Part 8, this Act is taken to have specifically authorised the making of the agreement or variation.
237 Carrier may refuse to supply basic carriage service not included in its BCS tariff
(1) A carrier may refuse or fail to supply to another person a basic carriage service that is not included in the carrier’s BCS tariff, even if the carrier supplies a basic carriage service of the same kind for use by the carrier for or in relation to its supply of a basic carriage service.
(2) Without limiting subsection (1), a carrier may refuse or fail to supply a facility of a particular kind to another person, unless supply of a facility of that kind is a basic carriage service included in the carrier’s BCS tariff.
(3) Without prejudice to their effect under section 238, subsections (1) and (2) of this section have effect subject to:
(a) Part 8; and
(b) a direction under section 181; and
(c) section 234.
238 This Division does not limit other Trade Practices Act exceptions
Sections 236 and 237 have effect for the purposes of subsection 51(1) of the Trade Practices Act 1974, but do not affect by implication the application of section 51 of that Act otherwise than because of those sections.
238A AUSTEL may disallow anti-competitive tariff
(1) This section applies in relation to a tariff if:
(a) a carrier is in a position to dominate a market for a particular kind of telecommunications service; and
(b) that kind of telecommunications service is included in a tariff of the carrier.
(2) If, in AUSTEL’s opinion, the operation or continued operation of the tariff would be anti-competitive in any market for any telecommunications service, AUSTEL must give the carrier written notice stating that AUSTEL is disallowing all or any of the provisions of the tariff.
(3) The notice must set out why AUSTEL is of the opinion that the operation or continued operation of those provisions of the tariff would be anti-competitive in that market.
(4) AUSTEL’s power to disallow provisions of a tariff under this section may be exercised:
(a) at any time during which the tariff is in force; and
(b) if the tariff is a BCS tariff—at any time after a carrier gives AUSTEL a copy of the tariff or a variation of the tariff and before the tariff comes into force.
(5) To avoid doubt, AUSTEL’s powers of disallowance under this section may be exercised in relation to provisions of a BCS tariff whether or not complying with section 197 in relation to the tariff will result in a contravention of section 183 or 184.
(6) Subject to subsection (11), the disallowance takes effect on the day specified in the notice for that purpose.
(7) The day so specified must not be a day occurring more than 5 days after the day on which the notice was given.
(8) Subject to subsection (10), AUSTEL may state in the notice that the disallowance does not apply:
(a) for specified purposes; or
(b) in relation to persons of a specified kind to whom the carrier supplies the service; or
(c) for specified purposes in relation to persons of a specified kind to whom the carrier supplies the service.
(9) AUSTEL may revoke or vary such a statement at any time.
(10) The statement (including such a statement as varied under subsection (9)) must not relate to supply of the service to persons to whom the carrier was not supplying the service at the time the disallowance takes effect.
(11) If the statement so specifies, the tariff, or the disallowed provisions of the tariff, continue to apply as specified in the statement:
(a) for the period specified in the statement for the purposes of that continued application; or
(b) if no such period is specified—for so long as the tariff remains in force.
(12) Notices, and revocations or variations of statements in notices, are to be made public in the way AUSTEL thinks appropriate.
(13) A carrier must not demand or receive payment of a charge for the supply of a telecommunications service to a person if:
(a) the charge is worked out in accordance with a tariff, or provisions of a tariff, that have been disallowed under this section; and
(b) the whole or a part of the charge is attributable to a period occurring after the tariff, or the provisions of the tariff, were disallowed.
(14) For the purposes of this section, the operation or continued operation of a tariff is taken to be anti-competitive in a market if and only if:
(a) the operation or continued operation of the tariff, or provisions of the tariff; or
(b) the operation or continued operation of the tariff, or provisions of the tariff, in conjunction with other tariffs or commercial arrangements;
has, or is likely to have, the effect of materially and adversely affecting the development and/or maintenance of commercially sustainable competition in that market.
238B Certain tariffs, and variations of certain tariffs, not to come into force for an extended period
(1) Subject to subsection (3), a BCS tariff of a carrier that is a tariff in relation to which section 238A applies does not come into force before:
(a) the 15th business day after a carrier has given AUSTEL a copy of the tariff; or
(b) if AUSTEL notifies the carrier in writing that the tariff may come into force on an earlier day—that day.
(2) Subject to subsection (3), a variation of a BCS tariff of a carrier that is a tariff in relation to which section 238A applies does not come into force before:
(a) the 15th business day after a carrier has given AUSTEL a copy of the variation; or
(b) if AUSTEL notifies the carrier in writing that the variation may come into force on an earlier day—that day.
(3) Subsection (1) does not apply to a tariff, and subsection (2) does not apply to a variation of a tariff, if the tariff or variation was already in force at the commencement of this section.
(4) The giving of a notice under paragraph (1)(b) or (2)(b) in relation to a tariff or variation of a tariff does not prevent AUSTEL exercising any power it has under this Act to disallow the tariff or variation.
(5) This section does not affect the operation of subsection 190(4) or 192(3).
238C Minister may give directions to AUSTEL
(1) The Minister may, by written notice, give to AUSTEL directions about how AUSTEL is to perform its functions under section 238A.
(2) Without limiting subsection (1), a direction under that subsection may contain any one or more of the following:
(a) a requirement that AUSTEL develop a decision-making framework for the performance of its functions under section 238A;
(b) principles to which AUSTEL must have regard in considering whether to disallow provisions of a tariff under section 238A;
(c) requirements about the way in which AUSTEL is to develop the decision-making framework;
(d) the matters to which AUSTEL must have regard in considering whether the operation or continued operation of a tariff would (within the meaning of section 238A) be anti-competitive in a market for a telecommunications service;
(e) a description (whether exhaustive or not) of circumstances in which AUSTEL must consider whether the operation or continued operation of a tariff would (within the meaning of section 238A) be anti-competitive in a market for a telecommunications service;
(f) a requirement that AUSTEL develop procedures that it is to follow in considering whether to disallow provisions of a tariff under section 238A.
(3) This section does not affect:
(a) the Minister’s power to give AUSTEL directions under other provisions; or
(b) AUSTEL’s power to give carriers directions under section 46;
about other matters.
(4) A direction under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
238D Directions to have general application only
(1) A direction under section 238C must not direct AUSTEL to disallow provisions of a particular tariff, or particular provisions of a tariff.
(2) A direction is invalid so far as it contravenes subsection (1).
Division 2—Management of numbering of telecommunications services
239 National numbering plan
(1) AUSTEL must prepare a written plan for the numbering of telecommunications services in Australia and for the use of numbers in connection with the supply of such services.
(2) The plan must, among other things:
(a) specify the numbers (if any) that have been allocated by AUSTEL to each carrier and to any other person; and
(b) set out the policies on which the plan is based.
(3) AUSTEL must administer the plan.
240 Matters affecting national numbering plan
(1) In preparing or varying the national numbering plan AUSTEL must have regard to:
(a) recognised international standards; and
(b) the objects of this Act; and
(c) such of AUSTEL’s other functions as are relevant.
(2) So far as AUSTEL thinks necessary for the purposes of preparing or varying the national numbering plan, it must consult with the Standards Association of Australia.
241 Services to be provided in accordance with national numbering plan
A telecommunications service must not be provided across a public telecommunications network unless the numbers used accord with the national numbering plan.
241A Allocation of numbers to be in accordance with section 242
On and after the commencement of this section, any allocation of a number in respect of telecommunications services to be provided across a public telecommunications network must be made in accordance with section 242.
242 Allocation of numbers
(1) AUSTEL may, on application by a carrier or another person, allocate numbers for telecommunications services provided by that carrier or other person across a public telecommunications network.
(2) An application must be in a form approved by AUSTEL.
(3) If a person (including a carrier):
(a) is, or has been, allocated a number by AUSTEL under subsection (1); or
(b) is, or has been, otherwise allocated a number in respect of telecommunications services to be provided across a public telecommunications network; or
(c) otherwise controls the allocation of a number in respect of such telecommunications services;
the person may allocate that number to another person in respect of such telecommunications services only under this subsection.
(4) An allocation of a number under subsection (1) or (3) must be made in accordance with:
(a) the policies set out in the national numbering plan; and
(b) any determination under section 242B applicable in relation to that number.
242A Charges in respect of allocation or use of numbers
(1) In this section:
numbers means numbers in respect of telecommunications services to be provided across a public telecommunications network.
use, in relation to a number, means the continuing use of that number by a person after the allocation of that number to that person.
(2) This section applies to:
(a) the use, after this section commences, of numbers allocated before or after this section commences; and
(b) any further allocation, after this section commences, of numbers allocated before or after this section commences; and
(c) any allocation of numbers made after this section commences.
(3) Subject to subsection (4), nothing in this Act or the Telecommunications (Numbering Charges) Act 1991 prevents a person from charging a fee in respect of any allocation or use of numbers to which this section applies.
(4) Such a fee may only be charged in accordance with:
(a) the policies set out in the national numbering plan; and
(b) any determination under section 242B applicable in relation to that number.
242B Conditions in respect of allocation or use of numbers
(1) In this section:
numbers means numbers in respect of telecommunications services to be provided across a public telecommunications network.
use, in relation to a number, means the continuing use of that number by a person after the allocation of that number to that person.
(2) This section applies to:
(a) the use, after this section commences, of numbers allocated before or after this section commences; and
(b) any further allocation, after this section commences, of numbers allocated before or after this section commences; and
(c) any allocation of numbers made after this section commences.
(3) AUSTEL may, in writing, determine conditions that are applicable in relation to any allocation or use of numbers to which this section applies.
(4) A determination is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(5) AUSTEL must not determine conditions that are inconsistent with the policies set out in the national numbering plan.
(6) Without limiting subsection (3), AUSTEL may determine under that subsection conditions including:
(a) conditions relating to the prohibition of, or any restrictions on, the allocation or use of numbers; or
(b) conditions relating to the charging of fees in relation to the allocation or use of numbers.
Note 1: An example of a condition referred to in paragraph (6)(a) is a condition to the effect that a number which was allocated by a carrier to a user of telecommunications services provided by that carrier does not revert to that carrier merely because the user has elected to have the services provided by another carrier.
Note 2: An example of a condition referred to in paragraph (6)(b) is a condition specifying the basis on which a fee in relation to the allocation of a number is to be calculated. Another example of a condition referred to in that paragraph is a condition prohibiting the charging of fees in relation to classes of numbers.
Note 3: AUSTEL may issue directions to a carrier in respect of compliance of these conditions (see sections 39 and 46).
242C Emergency service numbers
(1) The object of this section is to identify numbers for use in connection with emergencies that are likely to require the provision of assistance by any or all of the following services:
(a) a police force or service;
(b) a fire service;
(c) an ambulance service;
(d) a service specified in the national numbering plan for the purposes of this paragraph.
(2) For the purposes of this Act, an emergency service number is a number specified in the national numbering plan for the purposes of this subsection.
(3) The national numbering plan may specify different numbers for use in different areas.
(4) The national numbering plan may specify different numbers for use in connection with different types of services.
242D Collection of numbering charges
Definitions
(1) In this section:
late payment penalty means an amount that is payable by way of penalty in accordance with a determination under subsection (3).
numbering charge means a charge imposed by the Telecommunications (Numbering Charges) Act 1991.
When numbering charge due and payable
(2) A numbering charge is due and payable at the time ascertained in accordance with a written determination made by AUSTEL. The time must not be later than 15 June in the financial year in which the numbering charge is imposed.
Late payment penalty
(3) AUSTEL may, by written instrument, determine that, if any numbering charge payable by a person remains unpaid after the time when it became due for payment, the person is liable to pay the Commonwealth, by way of penalty, an amount calculated at the rate of:
(a) 20% per annum; or
(b) if the determination specifies a lower percentage—that lower percentage per annum;
on the amount unpaid, computed from that time.
Determination has effect
(4) A determination under subsection (3) has effect accordingly.
Remission of penalty
(5) A determination under subsection (3) may authorise AUSTEL to make decisions about the remission of the whole or a part of an amount of late payment penalty.
Payment of numbering charge and late payment penalty
(6) Numbering charge and late payment penalty are payable to AUSTEL on behalf of the Commonwealth.
Recovery of numbering charge and penalty
(7) Numbering charge and late payment penalty may be recovered by AUSTEL, on behalf of the Commonwealth, as debts due to the Commonwealth.
Payment into Consolidated Revenue Fund
(8) Amounts received by way of numbering charge or late payment penalty must be paid into the Consolidated Revenue Fund.
Withdrawal of number for non-payment of numbering charge
(9) If any numbering charge payable by a person in relation to a number remains unpaid after the time when it became due for payment, AUSTEL may, by written notice given to the person, withdraw the number. A number withdrawn under this subsection is taken to be recovered by AUSTEL in accordance with the national numbering plan.
Disallowable instrument
(10) A determination under subsection (2) or (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
242E Collection of charges on behalf of the Commonwealth
AUSTEL may enter into an arrangement with a person under which the person may, on behalf of the Commonwealth, collect payment of charge imposed by the Telecommunications (Numbering Charges) Act 1991.
Part 12—Technical Regulation
Division 1—Objects of Part
243 Objects
The objects of this Part are:
(a) to provide for AUSTEL to determine, in accordance with directions by the Minister, technical standards about network matters; and
(b) to provide for AUSTEL to determine technical standards for customer equipment, and for customer cabling, being standards relating to:
(i) protecting the integrity of telecommunications networks and the safety of persons working on, or using services supplied by means of, telecommunications networks; and
(ii) ensuring the interoperability of customer equipment, or customer cabling, with a telecommunications network to which it is connected; and
(iii) ensuring compliance with recognised international standards concerning the interfacing of customer equipment or customer cabling to telecommunications networks; and
(iv) the end-to-end quality of telecommunications services for or in relation to the supply of which customer equipment or customer cabling is used; and
(v) containing interference to radiocommunications and to any uses or functions of devices; and
(vi) establishing for the uses and functions of devices an adequate level of immunity from electromagnetic disturbance; and
(c) to provide for directions to be given by the Minister to AUSTEL about the issuing, varying or cancelling of permits or cabling licences; and
(d) by providing for a system of permits for connection of customer equipment to telecommunications networks, to ensure that all customer equipment so connected complies with:
(i) technical standards determined by AUSTEL under this Part; and
(ii) directions given by the Minister under this Part; and
(e) by providing for the licensing of persons engaged in the supply, installation and maintenance of customer cabling connected to telecommunications networks, to ensure that all customer cabling so connected complies with:
(i) technical standards determined by AUSTEL under this Part; and
(ii) directions given by the Minister under this Part.
Division 2—Technical standards about network matters
244 Determination of technical standards
(1) The Minister may direct AUSTEL in writing to determine a technical standard about network matters.
(2) Without limiting subsection (1), a direction under that subsection need not specify directly the network matters to which the standard is to relate, but may leave AUSTEL to determine them by reference to some other matter specified in the direction, for example, the purpose that the standard is meant to achieve.
(3) An instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(4) AUSTEL must comply with a direction under subsection (1).
(5) Where the Minister revokes a direction in force under subsection (1), AUSTEL must revoke the technical standard that is in force because of the direction.
(6) Where the Minister varies a direction in force under subsection (1), AUSTEL must either:
(a) vary the technical standard that is in force because of the direction so that the standard complies with the varied direction; or
(b) revoke the standard and determine a new technical standard that so complies.
(7) Where a technical standard is in force because of a direction in force under subsection (1):
(a) AUSTEL may vary the standard on its own initiative, but only in such a way that the varied standard still complies with the direction; and
(b) AUSTEL may, on its own initiative, revoke the standard and determine a new technical standard that so complies.
(8) A technical standard determined under this section:
(a) must be in the form of a notice published in the Gazette; and
(b) has effect on and from the day specified in the notice; and
(c) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(9) For the purposes of this Act (in particular, subsection (8) of this section and Division 4 of this Part), a variation of a technical standard under this section is taken to be a technical standard determined under this section.
(10) This section does not affect the Minister’s power to give AUSTEL directions under other provisions about other matters.
245 Carriers to comply with network standards
It is a condition of a general telecommunications licence or public mobile licence that the holder of the licence must comply with technical standards about network matters in force under this Division.
Division 3—Technical standards about customer equipment and customer cabling
246 Determination of technical standards
(1) AUSTEL may, by notice published in the Gazette, determine a technical standard relating to customer equipment, or customer cabling, that is connected to a telecommunications network.
(2) Subject to subsection (3), AUSTEL may only determine such a standard where it believes it to be necessary or desirable to do so in order to:
(a) protect the integrity of a telecommunications network or the safety of persons working on, or using services supplied by means of, a telecommunications network; or
(b) ensure the interoperability of customer equipment, or customer cabling, with a telecommunications network to which it is connected; or
(c) ensure that customer equipment, or customer cabling, connected to a telecommunications network complies with recognised international standards concerning the interfacing of customer equipment or customer cabling to a telecommunications network; or
(d) maintain or improve the end-to-end quality of telecommunications services for or in relation to the supply of which customer equipment or customer cabling is used; or
(e) contain interference to radiocommunications or to any uses or functions of devices; or
(f) establish for the uses or functions of devices an adequate level of immunity from electromagnetic disturbance.
(3) A standard determined under this section may vary or revoke another standard determined under this section.
(4) A standard determined under this section has effect on and from the day specified in the notice published under subsection (1).
(5) A standard determined under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Division 4—Technical standards generally
247 Publication etc. of proposed technical standards
(1) Subject to section 248, before determining a technical standard under section 244 or 246, AUSTEL must, by notice published under subsection (4):
(a) state that it proposes to determine a technical standard; and
(b) state the subject matter of the proposed standard; and
(c) specify a place or places at which copies of the proposed standard may be bought; and
(d) invite interested persons to make representations concerning the proposed standard by a specified date that is at least 60 days after the date of publication; and
(e) specify an address or addresses to which representations concerning the proposed standard may be sent.
(2) A person may, not later than the date specified in the notice, make representations to AUSTEL concerning the proposed standard.
(3) AUSTEL must, before determining a technical standard, give due consideration to any representations so made and may alter the proposed standard.
(4) A notice is published under this subsection if:
(a) it is published in the Gazette; and
(b) where regulations made for the purposes of this subsection provide for additional requirements in relation to the publication of notices—it is published in accordance with those additional requirements.
(5) Failure to comply strictly with subsection (1) does not affect the validity of the notice, or the validity of a technical standard, if the requirements of that subsection are substantially complied with.
248 Emergency determination of technical standards
(1) Section 247 does not apply to the determining of a technical standard because of a direction under subsection 244(1) if:
(a) the direction states that it is necessary to determine the standard to meet an emergency; and
(b) the standard states that the direction so states.
(2) Section 247 does not apply to the determining of a technical standard under section 246 if:
(a) AUSTEL is satisfied that it is necessary to determine the standard to meet an emergency; and
(b) the standard states that AUSTEL is so satisfied.
(3) A standard that states as mentioned in paragraph (1)(b) or (2)(b) ceases to have effect 3 months after it is determined.
249 Adoption of technical standards
In determining a technical standard under section 244 or 246, AUSTEL may apply, adopt or incorporate, with or without modification, any matter contained in a standard proposed or approved by the Standards Association of Australia, or by any other association or body, as in force or existing at a particular time.
Division 5—Ministerial directions about permits and licences
250 Minister may give directions to AUSTEL
(1) The Minister may give AUSTEL written directions about how it is to perform its functions or exercise its powers relating to the issuing, varying or cancelling of permits under Division 6 or the issuing, varying or cancelling of cabling licences under Division 7.
(2) The Minister may give AUSTEL written directions about how it is to exercise its powers under sections 267 and 280 to limit the application of Divisions 6 and 7, respectively.
(3) This section does not affect the Minister’s power to give AUSTEL directions under other provisions about other matters.
(4) An instrument under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
251 Directions to have general application only
(1) A direction under section 250 must not concern the way in which AUSTEL is to deal with a particular application for:
(a) a permit under Division 6; or
(b) a cabling licence under Division 7; or
(c) an order to be made under subsection 281(6); or
(d) reconsideration of a decision under section 284.
(2) A direction is invalid so far as it purports to deal with any of those matters.
252 Inconsistency with technical standards
Where a direction under section 250 is inconsistent with a technical standard determined by AUSTEL under section 246, AUSTEL must determine a new standard under section 246 that varies the first-mentioned standard so that it is consistent with the direction.
Division 6—Permits for customer equipment
253 Connection of customer equipment for which there is no permit
(1) A person must not knowingly or recklessly connect to a telecommunications network customer equipment in respect of which a permit for connection to a telecommunications network is not in force.
Penalty: 120 penalty units.
(2) For the purposes of subsection (1), a permit for connection of customer equipment to a telecommunications network is taken to be in force if such a permit is in force in respect of customer equipment that is of the same type as the first-mentioned customer equipment.
(3) This section does not apply to customer equipment that is connected to a telecommunications network in such a way that it cannot be used for or in relation to the supply of telecommunications services by the use of telecommunications services supplied by a carrier.
254 Disconnection of customer equipment for which there is no permit
Where:
(a) a person has under his or her control customer equipment connected to a telecommunications network; and
(b) there is no permit in force for connection of the customer equipment to a telecommunications network; and
(c) AUSTEL gives to the person a written notice stating that:
(i) there is no permit in force for the connection of the customer equipment to a telecommunications network; and
(ii) the person must disconnect the customer equipment from any telecommunications network to which it is connected within 7 days, or such longer period as is specified in the notice, after the notice is given;
the person must comply with the notice.
Penalty: 120 penalty units.
255 Sale of customer equipment for which there is no permit
A person must not sell or supply, or offer to sell or supply, to another person customer equipment that the person knows, or ought reasonably to know, is customer equipment the connection of which to a telecommunications network would be contrary to subsection 253(1), without first notifying the other person, as prescribed by the regulations:
(a) that there is no permit in force for connection of the equipment to a telecommunications network; and
(b) if the regulations so provide—about the consequences of connecting the equipment to such a network without a permit.
Penalty: 120 penalty units.
256 Register of customer equipment
(1) AUSTEL must maintain a register of permits for the connection of customer equipment, or types of customer equipment.
(2) The register must be open to public inspection.
257 Applications for permits
(1) A person may apply to AUSTEL for a permit for the connection to a telecommunications network of customer equipment, or a type of customer equipment.
(2) The application must:
(a) give a detailed description of the nature of the customer equipment, or type of customer equipment; and
(b) be accompanied by:
(i) a report issued by an accredited test house on whether connection of the equipment to a telecommunications network would comply with technical standards determined under Division 3; or
(ii) such other technical information as AUSTEL requires the applicant to provide; and
(c) be in the form approved by AUSTEL; and
(d) be accompanied by the payment of the appropriate fee.
(3) The approved form of application may provide for verification by statutory declaration of statements in applications.
258 Issue of permits
(1) Where an application has been made under section 257, AUSTEL may, by notice in writing given to the applicant, issue a permit for the connection to a telecommunications network of customer equipment or a type of customer equipment.
(2) AUSTEL may include conditions in the permit including, for example, conditions:
(a) requiring the customer equipment to be labelled in the specified manner; and
(b) requiring the customer equipment to be inspected by carriers before being connected to a telecommunications network.
(3) AUSTEL must not issue a permit unless it is satisfied that:
(a) the application complies with subsection 257(2); and
(b) connection of the customer equipment concerned, in accordance with the conditions included in the permit, would comply with technical standards determined by AUSTEL under Division 3; and
(c) the issuing of the permit is not contrary to directions given by the Minister under Division 5; and
(d) the issuing of the permit is not contrary to policies notified by the Minister under subsection 49(1A).
(4) In deciding whether it is satisfied as to whether connection of customer equipment to a telecommunications network would comply with technical standards determined under Division 3, AUSTEL may reach a conclusion contrary to any conclusion reached on that matter in a report, by an accredited test house, that accompanied the application for the permit concerned.
(5) Where AUSTEL issues a permit, it must include in the notice under subsection (1) a statement to the effect that the applicant may, within 21 days after receiving the notice, apply to AUSTEL for reconsideration of the conditions included in the permit.
(6) Where AUSTEL decides not to issue a permit, it must give to the applicant written notice that the application is refused, together with:
(a) its reasons for the refusal; and
(b) a statement to the effect that the applicant may, within 21 days after receiving the notice, apply to AUSTEL for reconsideration of the refusal.
259 Deemed refusal of permits
If, at the end of 30 days after an application for the issue of a permit has been made under section 257, AUSTEL has not issued the permit, AUSTEL is taken, for the purposes of section 284:
(a) to have decided, on the last of the 30 days, not to issue the permit; and
(b) to have informed the applicant accordingly on that day.
260 Variation of permits
(1) AUSTEL may, by written notice given to the holder of a permit, vary the permit.
(2) The power to vary a permit includes the power to:
(a) vary the conditions of the permit; or
(b) add further conditions; or
(c) revoke any of the conditions.
(3) AUSTEL must not vary a permit unless it is satisfied that:
(a) connection of the customer equipment, to which the permit relates, to a telecommunications network in accordance with the conditions included in the permit, as varied, would comply with technical standards determined by AUSTEL under Division 3; and
(b) the variation is not contrary to directions given by the Minister under Division 5; and
(c) the variation is not contrary to policies notified by the Minister under subsection 49(1A).
(4) A permit varied under this section has effect, as varied, on and from the day after the day on which notice of the variation is given to the holder of the permit.
(5) Where AUSTEL varies a permit, it must include in the notice under subsection (1):
(a) the text of the variation; and
(b) AUSTEL’s reasons for the variation; and
(c) a statement to the effect that the applicant may, within 21 days after receiving the notice, apply to AUSTEL for reconsideration of the variation.
261 Applications for variation of permits
(1) A person may apply to AUSTEL to vary a permit under section 260.
(2) The application must:
(a) be in the form approved by AUSTEL; and
(b) be accompanied by the payment of the appropriate fee.
(3) The approved form of application may provide for verification by statutory declaration of statements in applications.
(4) Where AUSTEL decides not to vary the permit, it must give to the applicant written notice that the application is refused, together with:
(a) its reasons for the refusal; and
(b) a statement to the effect that the applicant may, within 21 days after receiving the notice, apply to AUSTEL for reconsideration of the refusal.
(5) If, at the end of 30 days after an application under this section for the variation of a permit has been made, AUSTEL has not varied the permit, or given to the applicant a notice under subsection 262(1) for variation of the permit, AUSTEL is taken, for the purposes of section 284:
(a) to have decided, on the last of the 30 days, not to vary the permit; and
(b) to have informed the applicant accordingly on that day.
262 Representations concerning variation of permits
(1) Before varying a permit, AUSTEL:
(a) must give to the holder of the permit; and
(b) may give to such other persons as AUSTEL considers to have an interest in the permit;
a notice:
(c) setting out the text of the proposed variation; and
(d) inviting each person to whom the notice is given to make representations to AUSTEL, within 21 days after receiving the notice, concerning the proposed variation.
(2) A person who receives such a notice may, within 21 days after receiving the notice, make such representations to AUSTEL.
(3) AUSTEL must give due consideration to any representations so made.
(4) Failure to comply strictly with subsection (1) does not affect the validity of the notice, or a variation of a permit, if the requirements of that subsection are substantially complied with.
263 Cancellation of permits
(1) AUSTEL may cancel a permit, by written notice given to the holder of the permit, if:
(a) AUSTEL is satisfied that the holder of a permit has contravened the conditions of the permit; or
(b) the cancellation is authorised by policies notified to AUSTEL under subsection 49(1A).
(2) Where AUSTEL cancels a permit, it must include in the notice under subsection (1):
(a) AUSTEL’s reasons for the cancellation; and
(b) a statement to the effect that the applicant may, within 21 days after receiving the notice, apply to AUSTEL for reconsideration of the cancellation.
(3) The cancellation of a permit has effect on and from the day after the day on which notice of the cancellation is given to the holder of the permit.
264 Representations concerning cancellation of permits
(1) Before cancelling a permit, AUSTEL:
(a) must give to the holder of the permit; and
(b) may give to such other persons as AUSTEL considers to have an interest in the permit;
a written notice:
(c) stating that it proposes to cancel the permit; and
(d) inviting each person to whom the notice is given to make representations to AUSTEL, within 21 days after receiving the notice, concerning the proposed cancellation.
(2) A person who receives such a notice may, within 21 days after receiving the notice, make such representations to AUSTEL.
(3) AUSTEL must give due consideration to any representations so made.
(4) If AUSTEL decides not to proceed with the cancellation, it must give to the holder of the permit written notice to that effect.
(5) Failure to comply strictly with subsection (1) does not affect the validity of the notice, or of a cancellation of a permit, if the requirements of that subsection are substantially complied with.
265 Transfer of permits
(1) The holder of a permit may, at any time, transfer the permit to another person.
(2) The transfer of a permit does not have effect before AUSTEL has been given a notice in writing:
(a) stating that the permit has been transferred; and
(b) specifying the name and address of the person to whom the permit has been transferred.
266 Accreditation etc. of test houses
The regulations may provide for:
(a) the accreditation of test houses by AUSTEL; and
(b) the testing of customer equipment by accredited test houses; and
(c) the removal of the accreditation of test houses; and
(d) the review of administrative decisions made in connection with the accreditation, or the removal of the accreditation, of test houses; and
(e) the payment of the appropriate fee for applications for the accreditation of test houses; and
(f) any matter related to a matter referred to in paragraph (a), (b), (c), (d) or (e).
267 AUSTEL may limit application of Division in relation to customer equipment
(1) AUSTEL may, by written notice published in the Gazette, declare that this Division, or specified provisions of it, do not apply in relation to specified classes of customer equipment.
(2) A notice under subsection (1) may specify a class of customer equipment:
(a) by reference to the technical characteristics of the equipment; or
(b) by reference to the functions of the equipment.
(3) This Division has effect in accordance with a notice in force under subsection (1).
(4) Subject to a direction under section 250, AUSTEL may make a declaration under subsection (1) on its own initiative or at the request of any person.
(5) An instrument under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Division 7—Licensing of cabling providers
268 Performance of cabling work without licence etc.
(1) A person must not perform cabling work unless:
(a) the person is a licensee; or
(b) the person performs work under the supervision of a licensee.
Penalty: 120 penalty units.
(2) A licensee must not, in performing cabling work, knowingly or recklessly contravene the conditions of his or her cabling licence.
Penalty: 120 penalty units.
(3) A licensee must take all reasonable steps to ensure that cabling work performed under his or her supervision does not contravene the conditions of his or her cabling licence.
Penalty: 120 penalty units.
(4) This section does not apply to the performance of cabling work if the customer cabling concerned is connected to a telecommunications network in such a way that it cannot be used for or in relation to the supply of telecommunications services by the use of telecommunications services supplied by a carrier.
269 Register of cabling licences
(1) AUSTEL must maintain a register of cabling licences.
(2) The register must be open to public inspection.
270 Applications for cabling licences
(1) A natural person may apply to AUSTEL for a cabling licence.
(2) The application must:
(a) describe the knowledge and experience of the applicant to perform cabling work; and
(b) be in the form approved by AUSTEL; and
(c) be accompanied by the payment of the appropriate fee.
(3) The approved form of application may provide for verification by statutory declaration of statements in applications.
271 Issue of cabling licences
(1) Where an application has been made under section 270, AUSTEL may, by written notice given to the applicant, issue a cabling licence.
(2) AUSTEL may include conditions in a cabling licence, including, for example, conditions relating to:
(a) the types of premises in or on which the licensee may perform cabling work; and
(b) requiring customer cabling in relation to which the licensee has performed cabling work to be inspected by carriers or AUSTEL; and
(c) the duration of the licence.
(3) AUSTEL must not issue a cabling licence unless it is satisfied that:
(a) the application complies with subsection 270(2); and
(b) the applicant has the necessary knowledge and experience to perform cabling work; and
(c) cabling work performed in accordance with the conditions included in the licence would comply with technical standards determined by AUSTEL under Division 3; and
(d) the issuing of the licence is not contrary to directions given by the Minister under Division 5.
(4) Where AUSTEL issues a cabling licence, it must include in the notice under subsection (1) a statement to the effect that the applicant may, within 21 days after receiving the notice, apply to AUSTEL for reconsideration of the conditions included in the licence.
(5) Where AUSTEL decides not to issue a cabling licence, it must give to the applicant written notice that the application is refused, together with:
(a) its reasons for the refusal; and
(b) a statement to the effect that the applicant may, within 21 days after receiving the notice, apply to AUSTEL for reconsideration of the refusal.
272 Deemed refusal of cabling licences
If, at the end of 30 days after an application for the issue of a cabling licence has been made under section 270, AUSTEL has not issued the licence, AUSTEL is taken, for the purposes of section 284:
(a) to have decided, on the last of the 30 days, not to issue the licence; and
(b) to have informed the applicant accordingly on that day.
273 Variation of cabling licences
(1) AUSTEL may, by written notice given to a licensee, vary the cabling licence concerned.
(2) The power to vary a cabling licence includes the power to:
(a) vary the conditions of the licence; or
(b) add further conditions; or
(c) revoke any of the conditions.
(3) AUSTEL must not vary a cabling licence unless it is satisfied that:
(a) cabling work performed in accordance with the conditions included in the licence, as varied, would comply with technical standards determined by AUSTEL under Division 3; and
(b) the variation is not contrary to directions given by the Minister under Division 5.
(4) A cabling licence varied under this section has effect, as varied, on and from the day after the day on which notice of the variation is given to the licensee.
(5) Where AUSTEL varies a cabling licence, it must include in the notice under subsection (1):
(a) the text of the variation; and
(b) AUSTEL’s reasons for the variation; and
(c) a statement to the effect that the licensee may, within 21 days after receiving the notice, apply to AUSTEL for reconsideration of the variation.
274 Applications for variation of cabling licences
(1) A person may apply to AUSTEL to vary a cabling licence under section 273.
(2) The application must:
(a) be in the form approved by AUSTEL; and
(b) be accompanied by the payment of the appropriate fee.
(3) The approved form of application may provide for verification by statutory declaration of statements in applications.
(4) Where AUSTEL decides not to vary the licence, it must give to the applicant written notice that the application is refused, together with:
(a) its reasons for the refusal; and
(b) a statement to the effect that the applicant may, within 21 days after receiving the notice, apply to AUSTEL for reconsideration of the refusal.
(5) If, at the end of 30 days after an application under this section for the variation of a cabling licence has been made, AUSTEL has not varied the licence, or given to the applicant notice under subsection 275(1) for variation of the licence, AUSTEL is taken, for the purposes of section 284:
(a) to have decided, on the last of the 30 days, not to vary the licence; and
(b) to have informed the applicant accordingly on that day.
275 Representations concerning variation of cabling licences
(1) Before varying a cabling licence, AUSTEL must give to the licensee a notice:
(a) setting out the text of the proposed variation; and
(b) inviting the licensee to make representations to AUSTEL, within 21 days after receiving the notice, concerning the proposed variation.
(2) The licensee may, within 21 days after receiving the notice, make such representations to AUSTEL.
(3) AUSTEL must give due consideration to any representation so made.
(4) Failure to comply strictly with subsection (1) does not affect the validity of the notice, or of a variation of a cabling licence, if the requirements of that subsection are substantially complied with.
276 Cancellation of cabling licences
(1) Where AUSTEL is satisfied that a licensee has contravened the conditions of his or her cabling licence, AUSTEL may cancel the licence by written notice given to the licensee.
(2) Where AUSTEL cancels a cabling licence, it must include in the notice under subsection (1):
(a) AUSTEL’s reasons for the cancellation; and
(b) a statement to the effect that the licensee may, within 21 days after receiving the notice, apply to AUSTEL for reconsideration of the cancellation.
(3) The cancellation of a cabling licence has effect on and from the day on which notice of the cancellation is given to the licensee.
277 Representations concerning cancellation of cabling licence
(1) Before cancelling a cabling licence, AUSTEL must give to the licensee a written notice:
(a) stating that it proposes to cancel the licence; and
(b) inviting the licensee to make representations to AUSTEL, within 21 days after receiving the notice, concerning the proposed cancellation.
(2) The licensee may, within 21 days after receiving the notice, make such representations to AUSTEL.
(3) AUSTEL must give due consideration to any representations so made.
(4) If AUSTEL decides not to proceed with the cancellation, it must give to the licensee written notice to that effect.
(5) Failure to comply strictly with subsection (1) does not affect the validity of the notice, or of a cancellation of a cabling licence, if the requirements of that subsection are substantially complied with.
278 Surrender of cabling licences
(1) A licensee may, at any time, surrender his or her cabling licence by:
(a) returning it to AUSTEL; and
(b) giving AUSTEL written notice that it is surrendered.
(2) The surrender of a cabling licence takes effect (unless the licence is sooner cancelled):
(a) if the notice of surrender specifies a day on which the surrender is to take effect—at the end of that day; or
(b) in any other case—on the day on which the notice is given.
279 Delegation of licensing
(1) AUSTEL may, in writing, delegate to another person or body such of its functions and powers under this Division as are specified in the instrument.
(2) AUSTEL must not delegate under this section its power:
(a) to refuse an application for a cabling licence (subsection 271(5)); or
(b) to vary a cabling licence (section 273); or
(c) to refuse an application for variation of a cabling licence (subsection 274(4)); or
(d) to cancel a cabling licence (section 276); or
(e) to make a declaration under section 280.
280 AUSTEL may limit application of Division in relation to customer cabling
(1) AUSTEL may, by written notice published in the Gazette, declare that this Division, or specified provisions of it, do not apply in relation to specified kinds of customer cabling.
(2) A notice under subsection (1) may specify a kind of customer cabling:
(a) by reference to the technical characteristics of the cabling; or
(b) by reference to the functions of the cabling.
(3) This Division has effect in accordance with a notice in force under subsection (1).
(4) Subject to a direction under section 250, AUSTEL may make a declaration under subsection (1) on its own initiative or at the request of any person.
(5) An instrument under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Division 8—Connection of customer equipment and customer cabling to telecommunications networks
281 Disconnection etc. of customer equipment or customer cabling
(1) A carrier may cease supplying a service to a person by means of a telecommunications network operated by the carrier if, through the use of the service, there is connected to the network customer equipment or customer cabling that is a threat to:
(a) the safety or proper functioning of the network; or
(b) the safety of any person.
(2) A carrier may refuse to supply to a person a service of a kind normally provided by the carrier by means of a telecommunications network operated by the carrier if the carrier is satisfied that the person intends, through the use of the service, to connect or have connected to the network customer equipment or customer cabling that is a threat to:
(a) the safety or proper functioning of the network; or
(b) the safety of any person.
(3) Where a carrier stops providing a service to a person under subsection (1) or refuses to provide a service to a person under subsection (2), the person may apply to AUSTEL for an order under subsection (6).
(4) AUSTEL must, by notice in writing:
(a) inform the carrier concerned of the making of the application; and
(b) invite the carrier to make representations to AUSTEL, within 7 days after receiving the notice, about whether an order should be made under subsection (6).
(5) In deciding whether to make an order under subsection (6), AUSTEL must give due consideration to any representations so made.
(6) Where, on an application having been made, AUSTEL is satisfied that the connection to a telecommunications network, operated by the carrier concerned, of the customer equipment or customer cabling to which the application relates is not a threat to:
(a) the safety or proper functioning of the network; or
(b) the safety of any person;
AUSTEL must, by written notice:
(c) order the carrier to supply the service that is necessary for connection of the customer equipment or customer cabling to the network; and
(d) inform the applicant that the order has been made.
(7) Where AUSTEL decides not to make an order under subsection (6), it must give to the applicant written notice that the application is refused, together with:
(a) its reasons for the refusal; and
(b) a statement to the effect that the person may, within 21 days after receiving the notice, apply to AUSTEL for reconsideration of the refusal.
(8) If, at the end of 30 days after an application for the making of an order under subsection (6) has been made, AUSTEL has not made such an order, AUSTEL is taken, for the purposes of section 284:
(a) to have decided, on the last of the 30 days, not to make such an order; and
(b) to have informed the person accordingly on that day.
282 Directions to pay compensation
(1) Where:
(a) under subsection 281(6), AUSTEL orders a carrier to supply a service; and
(b) AUSTEL is satisfied that the applicant for the order has suffered loss as a result of the carrier ceasing, or refusing, to supply the service;
AUSTEL may include in the order under subsection 281(6) a direction that the carrier pay compensation to the applicant for the loss, or the part of the loss, specified in the direction.
(2) Where AUSTEL includes such a direction in an order made under subsection 281(6) it must give to the applicant, and any carrier concerned, a written notice:
(a) stating that the direction has been so included; and
(b) including a statement to the effect that the applicant, or the carrier, as the case may be, may, within 21 days after receiving the notice, apply to AUSTEL for reconsideration of its decision to include the direction.
(3) Where AUSTEL decides not to include such a direction in an order made under subsection 281(6), it must give to the applicant for the order a written notice:
(a) stating that it has so decided; and
(b) including a statement to the effect that the applicant may, within 21 days after receiving the notice, apply to AUSTEL for reconsideration of its decision not to include such a direction.
(4) A notice under subsection (2) or (3) may be incorporated with a notice given by AUSTEL under subsection 281(6).
283 Action for unauthorised connection to telecommunications network of customer equipment or customer cabling
(1) Where:
(a) a person:
(i) connects customer equipment to a telecommunications network contrary to section 253; or
(ii) has under his or her control customer equipment connected to a telecommunications network that was so connected by another person contrary to section 253; or
(iii) has under his or her control customer equipment connected to a telecommunication network that, contrary to section 254, has not been disconnected from the network; or
(iv) connects customer cabling to a telecommunications network contrary to section 268; or
(v) has under his or her control customer cabling connected to a telecommunications network that was so connected by another person contrary to section 268; and
(b) as a result of:
(i) the connection of the customer equipment or customer cabling to the network; or
(ii) the customer equipment or customer cabling being used while it was so connected; or
(iii) the customer equipment not being disconnected from the network; or
(iv) the customer equipment being used after it was required to be disconnected from the network;
damage is caused to the network, or the carrier operating the network suffers a loss or incurs a liability;
the carrier operating the network may apply to the Federal Court for relief.
(2) The relief that may be granted includes an injunction and, at the option of the carrier, either damages or an account of profits.
(3) Section 395 applies to an application under subsection (1) of this section.
Division 9—Miscellaneous
284 Reconsideration of decisions
(1) An application may be made to AUSTEL for reconsideration of a decision described in Column 1 of the following table:
TABLE
ItemNo.
Column 1Decision
Column 2Applicant
1.
The inclusion, under subsection 258(2), of conditions in a permit
The person who applied for the permit
2.
A refusal to issue a permit under section 258
The person who applied for the permit
3.
A decision to vary a permit under section 260
The holder of the permit
4.
A decision not to vary a permit where an application for variation has been made under section 261
The person who applied for the variation
5.
A decision to cancel a permit under section 263
The holder of the permit
6.
The inclusion, under subsection 271(2), of conditions in a cabling licence
The person who applied for the licence
7.
A refusal to issue a cabling licence under section 271
The person who applied for the licence
8.
A decision to vary a cabling licence under section 273
The licensee
9.
A decision not to vary a cabling licence where an application for variation has been made under section 274
The person who applied for the variation
10.
A decision to cancel a cabling licence under section 276
The licensee
11.
A decision refusing an application for an order to be made under subsection 281(6)
The person who applied for the order under subsection 281(6)
12.
A decision to include a direction under section 282 in an order made under subsection 281(6)
The person who applied for the order under subsection 281(6), or the carrier against whom the order was made
13.
A decision not to include a direction under section 282 in an order made under subsection 281(6)
The person who applied for the order under subsection 281(6)
(2) An application for reconsideration of a decision described in Column 1 of an item in the table in subsection (1) may be made by a person described in Column 2 of the same item (in this section called the applicant).
(3) An application must be made within:
(a) 21 days after the applicant is informed of the decision concerned; or
(b) if, as a result of a request made by the applicant within 21 days after being informed of the decision, AUSTEL extends the period within which an application for reconsideration of the decision may be made—the extended period granted by AUSTEL for making the application.
(4) An application must be in the form approved by AUSTEL.
(5) The approved form of application may provide for verification by statutory declarations of statements in applications.
(6) Where a carrier applies for reconsideration of a decision to include a direction under section 282 in an order made under subsection 281(6), AUSTEL must send to the person who applied for the order under subsection 281(6):
(a) a copy of the carrier’s application; and
(b) a notice inviting the person to make representations to AUSTEL, within 21 days after receiving the notice, concerning the reconsideration of the decision.
(7) Where a person (other than a carrier) applies for reconsideration of a decision:
(a) to include a direction under section 282; or
(b) not to include such a direction;
in an order under subsection 281(6), AUSTEL must send to the carrier against whom the order under subsection 281(6) was made:
(c) a copy of the person’s application for reconsideration of the decision; and
(d) a notice inviting the carrier to make representations to AUSTEL, within 21 days after receiving the notice, concerning the reconsideration of the decision.
(8) A person who receives such a notice under subsection (6) or (7) may make representations to AUSTEL, within 21 days after receiving the notice, concerning reconsideration of the decision concerned.
(9) AUSTEL must, in reconsidering the decision concerned, give due consideration to any representations so made.
(10) Where an application for reconsideration is made, AUSTEL must reconsider the decision to which the application relates and may:
(a) affirm the decision; or
(b) (where applicable) vary the decision; or
(c) revoke the decision; or
(d) (where applicable) revoke the decision and substitute a fresh decision.
(11) AUSTEL’s decision on reconsideration of a decision has effect as if it had been made under the provision under which the original decision was made.
(12) AUSTEL must not, under subsection (10), vary the decision, or revoke the decision and substitute a fresh decision, in such a way that the decision as varied, or as substituted, could not have been made under the provision under which the original decision was made.
(13) AUSTEL must give to the applicant a notice stating its decision on the reconsideration, together with a statement of its reasons for its decision.
285 Effect on operation of other laws
The fact that:
(a) a permit is in force for the connection of customer equipment to a telecommunications network; or
(b) cabling work has been performed by a licensee;
does not affect the operation of any law of the Commonwealth or of a State or a Territory that prohibits or regulates the sale, installation, maintenance, use or disposal of the customer equipment or customer cabling, as the case may be.
286 Evidence
(1) A certificate issued by AUSTEL stating any matter in relation to customer equipment, customer cabling or a permit or cabling licence is prima facie evidence of the matter.
(2) Without limiting subsection (1), the matters that may be certified under that subsection include:
(a) whether there is in force a permit for the connection to a telecommunications network of particular customer equipment, or customer equipment of the same type; or
(b) whether a person is a licensee; or
(c) whether the performance of particular cabling work contravenes conditions included in a particular cabling licence.
(3) A document purporting to be a certificate under subsection (1) must, unless the contrary is established, be taken to be a certificate and to have been properly given.
Part 13—Assessment, Collection and Distribution of Universal Service Levy
Division 1—Preliminary
287 Declarations of policy
(1) It is the Parliament’s intention:
(a) that all people in Australia, wherever they reside or carry on business, will continue to have reasonable access, on an equitable basis, to standard telephone services and payphones; and
(b) that the universal service obligation described in section 288 should be fulfilled as efficiently and economically as practicable; and
(c) that the losses that result from supplying loss-making services in the course of fulfilling the universal service obligation should be shared among carriers on an equitable basis, namely, in direct proportion to each carrier’s share of the interconnect time between those carriers’ trunk and international networks and all local access networks; and
(d) that the information on the basis of which, and the methods by which, those losses and those carriers’ respective shares in those losses are determined should be open to scrutiny by those carriers, and by the public, to the greatest extent possible without undue damage to a carrier’s interests being caused by the disclosure of confidential commercial information.
(2) This Part provides accordingly for the assessment, collection, recovery and distribution of the levy imposed by the Telecommunications (Universal Service Levy) Act 1991.
288 Universal service obligation
(1) The universal service obligation is the obligation:
(a) to ensure that the standard telephone service is reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and
(b) to supply the standard telephone service to people in Australia; and
(c) to ensure that payphones are reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and
(d) to supply, install and maintain payphones in Australia.
(2) The Minister may determine that it is part of the universal service obligation to supply, install and maintain payphones at specified locations in Australia.
(3) A determination under subsection (2) must be made by notice published in the Gazette.
(4) The regulations may prescribe, for the purposes of paragraph (1) (c), what is, or is not, necessary to ensure that payphones are reasonably accessible as mentioned in that paragraph.
(5) Neither of subsections (2) and (4) limits the generality of the other.
(6) In this section:
Australia does not include the prescribed external Territories to which this Act extends.
Division 2—Universal service carriers and net cost areas
289 Participating carriers
A carrier in relation to which a declaration under subsection 4(1) of the Telecommunications (Universal Service Levy) Act 1991 was in force at the end of a financial year is a participating carrier in relation to that financial year.
290 Minister may declare universal service carriers
(1) The Minister may by writing declare a carrier to be the universal service carrier for Australia.
(2) The Minister may by writing declare a carrier to be the universal service carrier for a specified service area.
(3) The Minister may make a declaration under subsection (1) or (2) in relation to a carrier only if a declaration under subsection 4(1) of the Telecommunications (Universal Service Levy) Act 1991 is in force in relation to the carrier.
(4) The Minister must exercise his or her powers under this section in such a way that:
(a) at any particular time, there is one declaration in force under subsection (1); and
(b) no service area in relation to which a declaration is in force under subsection (2) overlaps (either wholly or in part) with another such area.
(5) A declaration under this section:
(a) takes effect at the start of the next financial year after the one in which it is made; and
(b) if it specifies a financial year at whose end it ceases to have effect—ceases to have effect at the end of that financial year, unless it is sooner revoked.
(6) A revocation of a declaration under this section takes effect:
(a) if it specifies a financial year at whose end it is to take effect—at the end of that financial year; or
(b) otherwise—at the end of the financial year in which it is made.
(7) An instrument under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(8) Despite paragraph (5)(a), a declaration under subsection (1) that is made during the financial year beginning on 1 July 1991 is taken to have taken effect on that day.
291 Effect of declaration: meaning of universal service carrier
(1) The carrier in relation to which a declaration is in force under subsection 290(1) is the universal service carrier:
(a) for Australia, except each service area in relation to which a declaration is in force under subsection 290(2); and
(b) for so much of any service area as is not within such an area.
(2) A carrier in relation to which a declaration is in force under subsection 290(2) in relation to a specified service area is the universal service carrier:
(a) for that area; and
(b) for each service area that is within that area.
(3) A carrier in relation to which a declaration is in force under subsection 290(1) or (2) on the first day of a financial year is a universal service carrier in relation to that financial year.
292 Prescribed carrier obligation of universal service carrier
(1) For so long as a carrier is the universal service carrier for a service area, a general telecommunications licence or public mobile licence held by the carrier is subject to the condition that the carrier must fulfil the universal service obligation, so far as it relates to that service area.
(2) The condition for which subsection (1) provides is a prescribed carrier obligation of the carrier that holds the licence.
293 Universal service carrier must propose service areas for declaration as net cost areas
(1) A carrier that is a universal service carrier in relation to a financial year must, within the first 60 days of that financial year, give to AUSTEL a written notice that:
(a) specifies service areas for which the carrier is the universal service carrier and that, in the carrier’s opinion, AUSTEL should declare under section 294 as net cost areas for the financial year; and
(b) sets out why, in the carrier’s opinion, AUSTEL should so declare the specified areas.
(2) Despite subsection (1), a carrier that, because of a declaration under subsection 290(1) or (2), is a universal service carrier in relation to the financial year beginning on 1 July 1991 must give to AUSTEL a notice of the kind referred to in subsection (1) of this section within 60 days after the later of:
(a) the commencement of this subsection; and
(b) notification of the declaration in the Gazette.
294 AUSTEL may declare net cost areas
(1) AUSTEL must comply with this section within 60 days after receiving from a carrier a notice under section 293.
(2) For each service area specified in the notice, AUSTEL must decide:
(a) to declare the area as a net cost area for the financial year; or
(b) to declare as a net cost area for the financial year a service area for which the carrier is the universal service carrier and that includes all or part of that service area; or
(c) not to declare as mentioned in paragraph (a) or (b).
(3) AUSTEL must by writing declare as net cost areas for the financial year the service areas (if any) that it has decided under subsection (2) so to declare.
(4) In making a decision under subsection (2), AUSTEL must:
(a) have regard to the reasons that the request sets out under paragraph 293(b); and
(b) comply with directions in force under section 295.
295 Minister may give directions about declaring net cost areas
The Minister may give AUSTEL written directions about:
(a) the criteria it should apply; or
(b) the matters to which it should have regard;
in deciding whether or not to declare an area as a net cost area for a financial year.
Division 3—Assessment of liability for levy and of entitlement to levy distributions
296 When a claim for a levy credit may be made
Within 28 days after the end of a financial year, a participating carrier that is a universal service carrier in relation to that financial year may lodge with AUSTEL a claim for a levy credit for that financial year that complies with section 300.
297 No levy payable unless at least one claim for a levy credit is made
If, as at the end of 28 days after the end of a financial year, no claim for a levy credit for that financial year has been lodged under section 296, no carrier is liable to pay an amount of levy in respect of that financial year.
298 AUSTEL to give other participating carriers copies of claims
As soon as practicable, and in any case within 14 days, after a claim for a levy credit for a financial year is lodged under section 296 or 299, AUSTEL must give a copy of the claim to each person (other than the person who lodged the claim) who is a participating carrier in relation to that financial year.
299 When a claim for a levy credit must be made
(1) Within 28 days after a participating carrier that is a universal service carrier in relation to a financial year receives under section 298 a copy of a claim for a levy credit for that financial year, the carrier must, unless it has already done so, lodge with AUSTEL a claim for a levy credit for that financial year that complies with section 300.
(2) The period within which a participating carrier in relation to a financial year must comply with subsection (1) is not extended if the carrier later receives under section 298 a copy of another claim for a levy credit for the financial year.
300 Requirements with which a claim for a levy credit must comply
(1) A claim for a levy credit for a financial year must be in writing and in a form approved by AUSTEL.
(2) The claim must set out:
(a) the participating carrier’s net universal service cost under section 301 for the financial year; and
(b) details of how the carrier has worked out its net universal service cost for the financial year; and
(c) such other information (if any) as the approved form of claim requires.
(3) A form that AUSTEL approves for the purposes of this section may provide for verification by statutory declaration of statements in claims for levy credits.
301 Net universal service cost of a carrier for a financial year
(1) A participating carrier’s net universal service cost for a financial year is:
(a) if the carrier is a universal service carrier in relation to that financial year and the amount worked out using the formula in subsection (2) is greater than zero dollars—that amount; or
(b) otherwise—zero dollars.
(2) The formula is:
Avoidable costs — Revenue forgone
where:
Avoidable costs means the total of:
(a) the amount (if any) by which the total costs (in this definition called the operating costs) incurred by the carrier during that financial year (other than the allowances, costs and amounts referred to in paragraphs (b), (c) and (d)) exceed what it is reasonable to expect that the operating costs would have been if the carrier had not supplied services to net cost areas during the financial year; and
(b) the amount (if any) by which the total allowances made by the carrier for depreciation during that financial year of capital items exceed what it is reasonable to expect that the total allowances so made would have been if the carrier had not supplied services to net cost areas during the financial year; and
(c) the amount (if any) by which the carrier’s total opportunity costs of capital for that financial year exceed what it is reasonable to expect that those costs would have been if the carrier had not supplied services to net cost areas during the financial year; and
(d) the amounts (if any) specified, for the purposes of this paragraph, in such provisions of determinations under section 302 as apply in relation to the carrier, in relation to the financial year, because of section 303;
Revenue forgone means an amount equal to so much of the revenue earned by the carrier during that financial year as it is reasonable to expect that the carrier would not have earned during that financial year if the carrier had not supplied services to net cost areas during that financial year.
(3) A reference in subsection (2) to a carrier supplying services to net cost areas during a financial year is a reference to the carrier:
(a) supplying standard telephone services to persons in the net cost areas for that financial year for which the carrier was the universal service carrier; or
(b) supplying, installing or maintaining payphones in those areas;
during that financial year.
(4) A participating carrier’s net universal service cost under this section for a financial year must be determined in accordance with such provisions of determinations under section 302 as apply in relation to the carrier, in relation to the financial year, because of section 303.
302 AUSTEL determinations about working out a carrier’s net universal service cost
(1) AUSTEL may make written determinations:
(a) for or in relation to determining the amount referred to in:
(i) paragraph (a), (b) or (c) of the definition of Avoidable costs in subsection 301(2); or
(ii) the definition of Revenue forgone in subsection 301(2);
as applying in relation to a carrier in relation to a financial year; or
(b) specifying amounts for the purposes of paragraph (d) of the definition of Avoidable costs in subsection 301(2) as so applying.
(2) AUSTEL may by writing vary or revoke a determination under this section.
(3) An instrument under this section:
(a) may only be made with the Minister’s consent; and
(b) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
303 Application of determinations under section 302
(1) Except so far as the contrary intention appears in a determination under section 302, a provision of such a determination applies in relation to:
(a) the first financial year that ends after the commencement of the last-mentioned provision; and
(b) each later financial year.
(2) Despite anything in an instrument under section 302, but subject to subsection (4) of this section, a provision of a determination under that section does not apply in relation to a financial year ending before the commencement of that provision.
(3) A carrier may elect in writing that a provision that, apart from subsection (4), does not apply in relation to the carrier in relation to a particular financial year is to apply in relation to the carrier in relation to that financial year.
(4) An election under subsection (3) has effect accordingly.
(5) In this section:
commencement, in relation to a provision of a determination under section 302, means:
(a) in the case of such a provision as originally in effect—the time when the provision took effect; or
(b) in the case of a provision as varied by another provision of an instrument under section 302—the time when the last-mentioned provision took effect.
304 Participating carrier must lodge return of timed traffic
(1) Within 28 days after a participating carrier in relation to a financial year receives under section 298 a copy of a claim for a levy credit for that financial year, the carrier must lodge with AUSTEL a return of its timed traffic for that financial year.
(2) The return must be in writing and in a form approved by AUSTEL.
(3) The return must set out:
(a) the number of minutes of timed traffic under section 305 of the carrier for that financial year; and
(b) details of how the carrier worked out that number; and
(c) such other information (if any) as the approved form of return requires.
(4) A form that AUSTEL approves for the purposes of this section may provide for verification by statutory declaration of statements in returns under this section.
(5) The period within which a participating carrier in relation to a financial year must comply with this section is not extended if the carrier later receives under section 298 a copy of another claim for a levy credit for the financial year.
305 Timed traffic of a carrier for a financial year
(1) The number of minutes of timed traffic of a carrier for a financial year is the total (expressed in minutes) of the respective durations of all timed connections established during that financial year across telecommunications networks in Australia operated by the carrier.
(2) A timed connection is a connection (other than a prescribed connection) some or all of whose duration is measured by equipment forming part of a telecommunications network across which the connection is established.
(3) For the purposes of subsections (1) and (4), if only part of the duration of a connection is measured as mentioned in subsection (2), so much of that duration as is not so measured must be disregarded.
(4) For the purposes of subsection (1), the duration of a timed connection must be measured, as mentioned in subsection (2), at a single point in the telecommunications network, or in one of the telecommunications networks, across which the connection is established.
(5) The regulations may provide that, for the purposes of subsection (1), so much of the duration of a timed connection as is prescribed must be disregarded.
306 Timed traffic across networks operated by different carriers
(1) Where a single timed connection (in this section called the shared connection) is established across 2 or more telecommunications networks in Australia, not all of which are operated by the same carrier, this section applies for the purposes of subsection 305(1) as it applies in relation to each carrier that operates one or more of those networks.
(2) The shared connection is taken to be a connection (in this section called the notional connection) across such of those networks as that carrier operates.
(3) The duration of the notional connection is taken to be the time worked out in accordance with the formula:
Duration of shared connection
Number of sharing carriers
where:
Duration of shared connection means the duration of the shared connection;
Number of sharing carriers means the number of carriers that respectively operate the networks referred to in subsection (1).
307 AUSTEL may inquire into the correctness of a claim or return
AUSTEL may make whatever inquiries it thinks necessary or desirable in order to determine:
(a) whether or not a claim by a participating carrier for a levy credit for a financial year correctly states the carrier’s net universal service cost for that financial year; or
(b) whether or not a return by a participating carrier of the carrier’s timed traffic for a financial year correctly states the number of minutes of timed traffic of the carrier for that financial year.
308 AUSTEL to assess liabilities and entitlements
(1) For each financial year, AUSTEL must make a written assessment for the purposes of this Part.
(2) The assessment must set out, in relation to each participating carrier in relation to that financial year:
(a) the carrier’s net universal service cost for the financial year; and
(b) the number of minutes of timed traffic of the carrier for the financial year; and
(c) the carrier’s levy debit under section 310 for the financial year; and
(d) the carrier’s levy debit balance (if any) under section 311, or levy credit balance (if any) under section 312, for the financial year; and
(e) if the assessment sets out a levy debit balance of the carrier for the financial year—the levy payable by the carrier on that levy debit balance; and
(f) if the assessment sets out a levy credit balance of the carrier for the financial year—the amount payable to the carrier under section 325 for that financial year.
(3) The assessment must be made on the basis of:
(a) the respective claims for levy credits lodged by participating carriers in relation to the financial year; and
(b) the respective returns under section 304 lodged by the participating carriers in relation to the financial year; and
(c) the information and documents obtained by AUSTEL because of its inquiries under section 307; and
(d) any other information and documents that AUSTEL has and that it thinks relevant to making the assessment.
(4) This section does not apply to a financial year in respect of which, because of section 297, no carrier is liable to pay an amount of levy.
309 Period within which assessment must be made
(1) AUSTEL must make its assessment under section 308 for a financial year as soon as practicable, but in any event within the first 90 days after that financial year.
(2) However, AUSTEL may, by written notice given to each participating carrier in relation to the financial year, extend, or further extend, the period within which AUSTEL must make the assessment.
(3) A notice under subsection (2) may be given only if the period, or the period as last extended, as the case may be, has not yet ended.
(4) A notice under subsection (2) must state that AUSTEL:
(a) needs more time in order to make its assessment under section 308 for the financial year; and
(b) is extending, or further extending, as the case requires, to the end of a specified day the period within which it must make the assessment.
310 Levy debit of a carrier for a financial year
A carrier’s levy debit for a financial year is the amount worked out using the formula:
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where:
Carrier’s timed traffic means the number of minutes of timed traffic of the first-mentioned carrier under section 305 for that financial year;
Total timed traffic means the total of the respective numbers of minutes of timed traffic under section 305 for that financial year of all the participating carriers;
Total NUSC [Total Net Universal Service Cost] means the total of all the participating carriers’ respective net universal service costs under section 301 for that financial year.
311 Levy debit balance of a carrier for a financial year
Where a carrier’s levy debit under section 310 for a financial year exceeds the carrier’s net universal service cost under section 301 for that financial year:
(a) the carrier has a levy debit balance for that financial year; and
(b) the amount of that balance is the amount of the excess.
312 Levy credit balance of a carrier for a financial year
Where a carrier’s net universal service cost under section 301 for a financial year exceeds the carrier’s levy debit under section 310 for that financial year:
(a) the carrier has a levy credit balance for that financial year; and
(b) the amount of that balance is the amount of the excess.
313 Publication of assessment
As soon as practicable after making an assessment under section 308 for a financial year, AUSTEL must:
(a) cause a copy of the assessment to be published in the Gazette; and
(b) give a copy of the assessment to each participating carrier in relation to that financial year.
Division 4—Disclosure by AUSTEL of information about the basis and methods of an assessment
314 Public may request information
(1) A person may request AUSTEL to make available to the person:
(a) specified information or documents on the basis of which AUSTEL has made its assessment under section 308 for a financial year; or
(b) specified information about how AUSTEL has worked out the matters that such an assessment sets out because of subsection 308(2).
(2) Subject to subsection (3), AUSTEL must comply with a request as provided in section 316.
(3) AUSTEL must not make available under this section:
(a) information (other than information prescribed for the purposes of this paragraph):
(i) that was obtained from, or relates to, a carrier; and
(ii) the making available of which under this section can reasonably be expected to cause substantial damage to the carrier’s commercial or other interests; or
(b) information prescribed for the purposes of this paragraph; or
(c) so much of a document as sets out information of a kind referred to in paragraph (a) or (b).
315 Carrier may request information that is unavailable under section 314
(1) A carrier may request AUSTEL to make available to it specified information or documents of a kind referred to in subsection 314 (1) that subsection 314(3) prevents AUSTEL from making available to the carrier under section 314.
(2) Subject to subsection (3), AUSTEL must comply with a request as provided for in section 316.
(3) AUSTEL must not, under this section, make available to a carrier (in this section called the first carrier) information, or so much of a document as sets out information:
(a) that was obtained from, or relates to, another carrier; and
(b) the making available of which to the first carrier can reasonably be expected to cause substantial damage to the other carrier’s commercial or other interests;
unless AUSTEL is satisfied:
(c) that the information could be obtained by the first carrier lawfully, and without the other carrier’s consent, from a source other than AUSTEL; or
(d) that:
(i) the first carrier has made the request in good faith for the sole purpose of informing itself about the basis on which, or the methods by which, AUSTEL made the assessment concerned; and
(ii) having regard to the declarations of policy in section 287, the first carrier’s interest in being able to examine that basis and those methods in order to see how its liability to pay levy, or its entitlement to a payment under section 325, as the case requires, has been assessed outweighs the other carrier’s interest in avoiding the damage referred to in paragraph (b).
316 How AUSTEL to comply with a request
(1) AUSTEL may comply with a request by a person under section 314 or 315 by:
(a) communicating information to the person in writing or in some other form; or
(b) making documents available for inspection by the person or by an employee, agent or professional adviser of the person; or
(c) giving to the person copies of, extracts from, or summaries of, documents.
(2) In this section:
document includes a part of a document.
Division 5—Collection and recovery of levy
317 When levy payable
Levy assessed under section 308 becomes due and payable on the 14th day after AUSTEL gives a copy of the assessment to the carrier in respect of which the levy has been assessed.
318 Levy a debt due to the Commonwealth
Levy that is due and payable but has not been paid may be recovered in a court of competent jurisdiction as a debt due to the Commonwealth.
319 Validity of assessment
The validity of an assessment under section 308 is not affected by a contravention of this Act.
320 Evidence of assessment
(1) This section applies where there is produced:
(a) a copy of the Gazette that sets out what purports to be a copy of an assessment made under section 308; or
(b) a document that purports to be such a copy.
(2) Except so far as the contrary is established, it must be presumed:
(a) that the copy of the Gazette sets out, or that the document is, as the case may be, a copy of such an assessment; and
(b) that AUSTEL has duly made the assessment; and
(c) that the amounts and other particulars set out in the assessment are correct.
321 Onus of establishing incorrectness of assessment
In any proceeding, the onus of establishing that an assessment under section 308 is incorrect is on the party asserting that.
Division 6—Distribution of levy
322 Universal Service Fund
This section establishes an account called the Universal Service Fund, which is a trust account for the purposes of section 62A of the Audit Act 1901 and is to be administered by the Department.
323 Payments into Fund
There must be paid into the Fund:
(a) amounts of levy paid under this Part; and
(b) money appropriated by law for the Fund’s purposes; and
(c) interest from the investment of money in the Fund; and
(d) amounts that were overpaid under section 325 and have been recovered.
324 Purposes of Fund
(1) The purposes of the Fund are:
(a) making payments under section 325; and
(b) refunding any overpaid amounts of levy; and
(c) refunding any other amounts paid into the Fund in error; and
(d) reimbursing the Commonwealth for:
(i) the costs or expenses incurred by the Commonwealth or AUSTEL in administering this Part and the Telecommunications (Universal Service Levy) Act 1991 during any period; and
(ii) without limiting subparagraph (i), costs or expenses incurred in connection with recovering levy; and
(iii) costs incurred by the Commonwealth during the period in collecting, compiling, analysing and publishing information about the operation of this Part and that Act.
(2) For the purposes of paragraph (1)(d), the Minister for Finance may, from time to time, determine the amount of a reimbursement to be made to the Commonwealth in relation to a period on such basis as he or she thinks appropriate.
(3) Despite subsection (2), the total of the amounts reimbursed under paragraph (1)(d) must not exceed the total of the amounts paid into the Fund under paragraphs 323(b) and (c).
325 Levy distribution to participating carrier
Where a participating carrier has a levy credit balance for a financial year because of section 312, an amount equal to the amount of that balance is payable to the carrier out of the Fund.
326 Levy not to be distributed until paid
No amount is payable under section 325 in relation to a financial year unless and until:
(a) AUSTEL has made an assessment under section 308 for that financial year; and
(b) each carrier in respect of which levy was assessed has paid the levy.
Part 14—Public Inquiries
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327 When inquiry must be held
Where:
(a) AUSTEL is required by or under a provision of this Act to hold a public inquiry under this Part about a matter; or
(b) the Minister directs AUSTEL in writing to hold a public inquiry under this Part about a specified matter concerning telecommunications services or the telecommunications industry;
AUSTEL must hold such an inquiry about that matter.
328 When inquiry may be held
Where:
(a) a provision of this Act empowers AUSTEL to hold a public inquiry under this Part about a matter; or
(b) AUSTEL considers that it is appropriate and practicable to hold a public inquiry under this Part about a matter relating to the performance or exercise of any of AUSTEL’s functions and powers;
AUSTEL may hold such an inquiry about that matter.
329 Informing the public about an inquiry
(1) Where AUSTEL holds a public inquiry, it must publish, in whatever ways it thinks appropriate, notice of:
(a) the fact that it is holding the inquiry; and
(b) the period during which the inquiry is to be held; and
(c) the nature of the matter to which the inquiry relates; and
(d) the period within which, and the form in which, members of the public may make submissions to AUSTEL about that matter; and
(e) the matters that AUSTEL would like such submissions to deal with.
(2) AUSTEL need not publish at the same time or in the same way notice of all the matters referred to in subsection (1).
330 Discussion paper
(1) As soon as practicable after deciding to hold a public inquiry about a matter, AUSTEL must cause to be prepared a discussion paper that:
(a) identifies the issues that, in AUSTEL’s opinion, are relevant to that matter; and
(b) sets out such background material about, and discussion of, those issues as AUSTEL thinks appropriate.
(2) AUSTEL must ensure that copies of the discussion paper are available for purchase, for a reasonable price, at each of AUSTEL’s offices and at one or more other places in each State and eligible Territory.
331 Written submissions; protection from civil actions
(1) AUSTEL must provide a reasonable opportunity for any member of the public to make a written submission to AUSTEL about the matter to which a public inquiry relates.
(2) Civil proceedings do not lie against a person in respect of loss, damage or injury of any kind suffered by another person because of the making in good faith of a statement, or the giving in good faith of a document or information, to AUSTEL in connection with a public inquiry under this Part, whether or not the statement is made, or the document or information is given, in connection with a written submission or a public hearing.
332 Public hearings
(1) AUSTEL may hold public hearings for the purposes of a public inquiry, for example:
(a) in order to receive submissions about the matter to which the inquiry relates; or
(b) in order to provide a forum for public discussion of issues relevant to that matter.
(2) At a public hearing, AUSTEL may be constituted by a member or members determined in writing by the Chairperson for the purposes of that hearing.
(3) The Chairperson is to preside at all public hearings at which he or she is present.
(4) If the Chairperson is not present at a public hearing, the member specified, in an instrument under subsection (2), as the member who is to preside at the hearing is to preside.
(5) AUSTEL may regulate the conduct of proceedings at a public hearing as it thinks appropriate.
Part 15—Investigations
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333 Matters AUSTEL may investigate
AUSTEL may investigate, as provided by this Part:
(aa) a failure by a carrier or service provider to comply with an obligation, or discharge a liability, under Division 6 of Part 5; or
(a) a contravention of Division 4 or 5 of Part 9, or of section 234; or
(b) a contravention of a condition of a general telecommunications licence or public mobile licence; or
(c) the supply of, or a failure to supply, a telecommunications service; or
(d) a contravention of the Code of Practice in force under section 77; or
(e) the supply of an eligible service otherwise than under a class licence; or
(f) the connection of, or a failure to connect, customer equipment; or
(g) the performance of, or supervision of the performance of, or failure to perform or supervise the performance of, cabling work.
334 Complaints
(1) A person may complain to AUSTEL about a matter of a kind referred to in section 333.
(2) A complaint must be in writing.
(3) A complaint must specify, as the respondent in respect of the complaint, the person against whom the complaint is made.
335 Investigations
(1) AUSTEL may investigate a matter of a kind referred to in section 333 if:
(a) a complaint is made under section 334; or
(b) AUSTEL thinks that it is desirable to investigate the matter.
(2) AUSTEL must not conduct such an investigation if it thinks that the subject matter of the investigation would not be a matter relevant to the performance of any of its functions.
(3) AUSTEL must investigate:
(a) a matter of a kind referred to in section 333; or
(b) any other matter concerning telecommunications services or the telecommunications industry;
if the Minister requests AUSTEL so to investigate.
336 Preliminary inquiries
Where a complaint has been made to AUSTEL under section 334, AUSTEL may make inquiries of the respondent for the purposes of determining:
(a) whether AUSTEL has power to investigate the matter to which the complaint relates; or
(b) whether AUSTEL should, in its discretion, investigate the matter.
337 Conduct of investigations
(1) Before commencing an investigation of a matter to which a complaint relates, AUSTEL must inform the respondent that the matter is to be investigated.
(2) An investigation under this Part must be conducted as AUSTEL thinks fit.
(3) AUSTEL may, for the purposes of an investigation, obtain information from such persons, and make such inquiries, as it thinks fit.
(4) Subject to subsection (5), it is not necessary for a complainant or a respondent to be afforded an opportunity to appear before AUSTEL in connection with an investigation.
(5) AUSTEL must not, as a result of the investigation, make a finding that is adverse to a complainant or a respondent unless it has afforded the complainant or respondent an opportunity to make submissions in relation to the matter to which the investigation relates.
338 Complainant and certain other persons to be informed of various matters
Where AUSTEL decides not to investigate, or not to investigate further, a matter to which a complaint relates, it must, as soon as practicable and in such manner as it thinks fit, inform the complainant and the respondent of the decision and of the reasons for the decision.
339 Reference of matters to Ombudsman or Telecommunications Industry Ombudsman
(1) Where, before AUSTEL starts, or after it has started, an investigation of a matter to which a complaint relates, AUSTEL forms the opinion that:
(a) a complaint relating to that matter has been, or could have been, made by the complainant to the Ombudsman under the Ombudsman Act 1976 or the Telecommunications Industry Ombudsman; and
(b) the matter could be more conveniently or effectively dealt with by the Ombudsman or the Telecommunications Industry Ombudsman;
it may decide not to investigate the matter, or not to investigate the matter further, as the case may be.
(2) If AUSTEL so decides, it must:
(a) transfer the complaint to the Ombudsman or to the Telecommunications Industry Ombudsman; and
(b) give written notice to the complainant stating that the complaint has been so transferred; and
(c) give to the Ombudsman or to the Telecommunications Industry Ombudsman any information or documents that relate to the complaint and that are in AUSTEL’s possession or under its control.
(3) A complaint transferred under subsection (2) to the Ombudsman is taken to be a complaint made to the Ombudsman under the Ombudsman Act 1976.
340 Reference of matters to Australian Competition and Consumer Commission
(1) Where, before AUSTEL commences, or after it has commenced, an investigation of a matter to which a complaint relates, AUSTEL forms the opinion that the matter could be more conveniently or effectively dealt with by the Australian Competition and Consumer Commission, it may decide not to investigate the matter, or not to investigate the matter further, as the case may be.
(2) If AUSTEL so decides, it must:
(a) transfer the complaint to the Australian Competition and Consumer Commission; and
(b) give written notice to the complainant stating that the complaint has been so transferred; and
(c) give to the Australian Competition and Consumer Commission any information or documents that relate to the complaint and that are in AUSTEL’s possession or under its control.
(3) The Australian Competition and Consumer Commission may hold an investigation into the matter and, if it decides to do so, it must report to AUSTEL on:
(a) the conduct of the investigation; and
(b) any findings that it has made as a result of the investigation.
(4) If the Australian Competition and Consumer Commission decides not to hold an investigation into the matter, it must give to AUSTEL a written notice informing AUSTEL of its decision and of the reasons for its decision.
341 Effect of investigation by Auditor-General
Where AUSTEL becomes aware that a matter being investigated by it is, or is related to, a matter that is under investigation by the Auditor-General, AUSTEL must not, unless the Auditor-General consents, continue to investigate the matter until the investigation by the Auditor-General has been completed.
342 Reports on investigations
(1) After concluding an investigation under subsection 335(1), AUSTEL may prepare and give to the Minister a report under this section.
(2) After concluding an investigation under subsection 335(3) AUSTEL must prepare and give to the Minister a report under this section.
(3) A report under this section must cover:
(a) the conduct of the investigation concerned; and
(b) any findings that AUSTEL has made as a result of the investigation.
343 AUSTEL may direct carrier to remedy breach of licence condition
(1) This section applies where, as a result of an investigation under section 335, AUSTEL is satisfied that a carrier has contravened a condition of a general telecommunications licence or public mobile licence held by the carrier.
(2) If AUSTEL is satisfied that the contravention consists of failure to do an act required by the condition, AUSTEL may direct the carrier in writing to do that act.
(3) If AUSTEL is satisfied that the contravention consists of engaging in conduct prohibited by the condition, AUSTEL may direct the carrier in writing to stop engaging in that conduct, or not to engage in it again, or both, as the case requires.
(4) AUSTEL may give a direction under subsection (3) whether or not it appears that the carrier intends to continue to engage in that conduct or to engage in it again.
(5) A direction under subsection (2) or (3) may also direct the carrier to do specified acts that AUSTEL thinks necessary to help remedy the contravention.
344 AUSTEL may direct carrier to fulfil prescribed carrier obligation
Where, as a result of an investigation under section 335, AUSTEL is satisfied that a carrier has unreasonably contravened a prescribed carrier obligation, AUSTEL may direct the carrier in writing to comply with that obligation, in relation to a specified service or services, in a manner specified in the direction.
345 Protection from civil actions
(1) Civil proceedings do not lie against a person in respect of loss, damage or injury of any kind suffered by another person because of any of the following acts done in good faith:
(a) the making of a complaint under section 334;
(b) the making of a statement to, or the giving of a document or information to, AUSTEL in connection with an investigation under section 335; or
(c) the making of a complaint to the Telecommunications Industry Ombudsman; or
(d) subject to subsection (2), the making of a statement to, or the giving of a document or information to, the Telecommunications Industry Ombudsman in connection with the consideration by the Telecommunications Industry Ombudsman of a complaint.
(2) Paragraph (1)(d) does not apply to the making of a statement, or the giving of a document or information, by:
(a) a carrier; or
(b) a person who supplies an eligible service and who is participating in the Ombudsman scheme under which the Telecommunications Industry Ombudsman has been appointed.
346 Public register of information about investigations
(1) AUSTEL must keep a register of its investigations under this Part.
(2) The register must be open to public inspection.
(3) For each complaint under section 334, the register must set out the following:
(a) the name and address of the complainant;
(b) the name of the respondent;
(c) a short summary of the nature of the complaint;
(d) if AUSTEL has decided to investigate the complaint:
(i) when the investigation began;
(ii) when it ended;
(iii) a summary of its outcome;
(e) if AUSTEL has decided not to investigate the complaint—that AUSTEL has so decided.
(4) For each matter that AUSTEL investigates otherwise than because of a complaint, the register must set out the following:
(a) a short summary of the nature of the matter;
(b) the names of the persons (if any) to whom the matter relates;
(c) when the investigation began;
(d) when it ended;
(e) a summary of its outcome.
(5) As soon as practicable after it has enough information to enter in the register a matter that a provision of subsection (3) or (4) requires the register to set out, AUSTEL must so enter that matter.
Part 16—Enforcement
Division 1—AUSTEL directions
347 Application
This Division provides for the enforcement of the following (in this Division called directions):
(a) a direction under section 46;
(b) a direction under section 79;
(c) a direction under section 85;
(d) a direction under section 86;
(e) a direction under section 119;
(f) a direction under subsection 126(2) or (5);
(fa) a direction under section 127C;
(g) a determination under subsection 154(2);
(h) a direction under section 181;
(i) a direction under section 189;
(j) a direction under section 201;
(k) a direction under subsection 233(1);
(l) an order under subsection 281(6);
(m) a direction under subsection 282(1);
(n) a direction under section 343;
(o) a direction under section 344;
(p) a direction under section 400.
348 Enforcement of AUSTEL directions
(1) This section applies where a carrier:
(a) has engaged in conduct that involves; or
(b) proposes to engage in conduct that would involve;
a contravention of a direction.
(2) The Minister or AUSTEL may apply to the Federal Court for:
(a) if paragraph (1)(a) applies—an injunction, a declaration or both; or
(b) if paragraph (1)(b) applies—an injunction.
(3) Section 395 applies to an application under this section.
(4) Where the Minister or AUSTEL applies under this section for an injunction, the Federal Court must not require the applicant or any other person, as a condition of granting an interim injunction, to give an undertaking as to damages.
349 Pecuniary penalties for contraventions of AUSTEL directions
(1) If the Federal Court is satisfied that a carrier has contravened a direction, the Court may order the carrier to pay to the Commonwealth such pecuniary penalty (not exceeding $10,000,000 in respect of each contravention) as the Court determines to be appropriate having regard to all relevant matters including:
(a) the nature and extent of the contravention and of any loss or damage suffered as a result of the contravention; and
(b) the circumstances in which the contravention took place; and
(c) whether the carrier has previously been found by the Court in proceedings under this Act to have engaged in any similar conduct.
(2) If conduct constitutes a contravention of 2 or more directions, a proceeding may be instituted under this section against a carrier in relation to the contravention of any one or more of the directions, but a carrier is not liable to more than one pecuniary penalty under this section in respect of the same conduct.
350 Civil action for recovery of pecuniary penalties
(1) The Minister or AUSTEL may apply to the Federal Court to recover on behalf of the Commonwealth a pecuniary penalty referred to in section 349.
(2) A proceeding under subsection (1) may be commenced within 6 years after the contravention of the direction concerned.
351 Remedies may be pursued at the same time
(1) Nothing in section 348 prevents the recovery of a pecuniary penalty under section 350.
(2) Nothing in section 349 prevents the making of an application, or the granting of relief, under section 348.
352 Criminal proceedings not to be brought for contraventions of AUSTEL directions
Criminal proceedings do not lie against a carrier merely because the carrier has contravened a direction.
353 Recovery of damages for contravention of section 344 direction
A person who suffers loss or damage because of a carrier’s contravention of a direction under section 344 may apply to the Federal Court to recover damages in respect of that loss or damage.
Division 2—Conditions of carrier licences
354 Application
(1) This Division provides for the enforcement by the Minister of the conditions of licences held by carriers.
(2) A reference in this Division to a condition of a licence does not include a reference to a condition for which paragraph 62(b) provides.
355 Enforcement of licence condition
(1) This section applies where a carrier:
(a) has engaged in conduct that involves; or
(b) proposes to engage in conduct that would involve;
a contravention of a condition of a licence held by the carrier.
(2) The Minister may apply to the Federal Court for:
(a) if paragraph (1)(a) applies—an injunction, a declaration or both; or
(b) if paragraph (1)(b) applies—an injunction.
(3) Section 395 applies to an application under this section.
(4) Where the Minister applies under this section for an injunction, the Federal Court must not require the applicant or any other person, as a condition of granting an interim injunction, to give an undertaking as to damages.
356 Pecuniary penalty for contravention of licence condition
(1) If the Federal Court is satisfied that a carrier has contravened a condition of a licence held by the carrier, the Court may order the carrier to pay to the Commonwealth such pecuniary penalty (not exceeding $10,000,000 in respect of each contravention) as the Court determines to be appropriate having regard to all relevant matters including:
(a) the nature and extent of the contravention and of any loss or damage suffered as a result of the contravention; and
(b) the circumstances in which the contravention took place; and
(c) whether the carrier has previously been found by the Court in proceedings under this Act to have engaged in any similar conduct.
(2) If conduct constitutes a contravention of 2 or more conditions, a proceeding may be instituted under this section against a carrier in relation to the contravention of any one or more of the conditions, but a carrier is not liable to more than one pecuniary penalty under this section in respect of the same conduct.
357 Civil action for recovery of pecuniary penalties
(1) The Minister may apply to the Federal Court to recover on behalf of the Commonwealth a pecuniary penalty referred to in section 356.
(2) A proceeding under subsection (1) may be commenced within 6 years after the contravention of the condition concerned.
358 Remedies may be pursued at the same time
(1) Nothing in section 355 prevents the recovery of a pecuniary penalty under section 357.
(2) Nothing in section 356 prevents the making of an application, or the granting of relief, under section 355.
359 Criminal proceedings not to be brought for contravention of licence condition
Criminal proceedings do not lie against a carrier merely because the carrier has contravened a condition of a licence.
Division 3—Powers of entry, search and seizure
360 Appointment of inspectors
The Chairperson may, by signed writing, appoint members of the staff of AUSTEL to be inspectors for the purposes of this Act.
361 Identity cards
(1) The Chairperson must cause to be issued to each person appointed under section 360 an identity card that specifies the name and appointment of the person and to which is attached a recent photograph of the person.
(2) A person who was appointed under section 360 must not, upon ceasing to be an inspector, fail, without reasonable excuse, to return to the Chairperson the identity card issued to him or her under this section.
Penalty for a contravention of this subsection: $100.
362 Searches to monitor compliance with Act etc.
(1) Subject to subsections (2) and (3), an inspector may, to the extent that it is reasonably necessary for the purpose of ascertaining whether Divisions 6 and 7 of Part 12 have been complied with, enter, at any time during the day or night, any premises that the inspector has reasonable cause to believe are premises to which this section applies and:
(a) search the premises; or
(b) inspect and take photographs, or make sketches, of the premises or any substance or thing at the premises; or
(c) inspect any book, record or document kept at the premises; or
(d) remove, or make copies of, any such book, record or document.
(2) An inspector may not, under subsection (1), enter premises that are a residence unless the occupier of the premises has consented to the entry.
(3) An inspector is not entitled to exercise any powers under subsection (1) in relation to premises if:
(a) the occupier of the premises has required the inspector to produce his or her identity card for inspection by the occupier; and
(b) the inspector fails to comply with the requirement.
(4) This section applies to premises at which:
(a) activities that are the subject of regulation under Division 6 or 7 of Part 12 are engaged in; or
(b) records relating to any such activities are kept.
363 Offence-related searches and seizures
(1) Where an inspector has reasonable grounds for suspecting that there may be on or in any premises a particular thing that may afford evidence as to the commission of an offence to which this section applies, the inspector may:
(a) with the consent of the occupier of the premises; or
(b) under a warrant issued under subsection (2);
enter the premises and:
(c) search the premises for the thing; and
(d) if the inspector finds the thing on or in the premises—seize the thing.
(2) Where an information on oath is laid before a Magistrate alleging that there are reasonable grounds for suspecting that there may be on or in any premises a particular thing that may afford evidence as to the commission of an offence to which this section applies and the information sets out those grounds, the Magistrate may issue a search warrant in accordance with the form prescribed for the purposes of this subsection authorising an inspector named in the warrant, with such assistance, and by such force, as are necessary and reasonable, to enter the premises and exercise the powers referred to in paragraphs (1)(c) and (d) in respect of the thing.
(3) A Magistrate must not issue a warrant under subsection (2) unless:
(a) the informant or some other person has given to the Magistrate, either orally or by affidavit, such further information (if any) as the Magistrate requires concerning the grounds on which the issue of the warrant is being sought; and
(b) the Magistrate is satisfied that there are reasonable grounds for issuing the warrant.
(4) There must be stated in a warrant issued under subsection (2):
(a) the purpose for which the warrant is issued, and the nature of the offence in relation to which the entry, search and seizure are authorised; and
(b) whether entry is authorised to be made at any time of the day or night or during specified hours of the day or night; and
(c) a description of the kind of things to be seized; and
(d) a day, not being later than one week after the day of issue of the warrant, upon which the warrant ceases to have effect.
(5) If, in the course of searching, under a warrant issued under this section, for a particular thing in relation to a particular offence, an inspector finds a thing that the inspector believes, on reasonable grounds, to be:
(a) a thing that will afford evidence as to the commission of the offence, although not the thing specified in the warrant; or
(b) a thing that will afford evidence as to the commission of another offence to which this section applies;
and the inspector believes, on reasonable grounds, that it is necessary to seize that thing in order to prevent its concealment, loss or destruction, or its use in committing, continuing or repeating the offence or the other offence, the warrant is taken to authorise the inspector to seize that thing.
(6) Where an inspector seizes any thing under this section, the inspector may retain the thing until the end of 60 days after the seizure or, if proceedings for an offence to which this section applies in respect of which the thing may afford evidence are brought within that period, until the proceedings (including any appeal to a court in relation to those proceedings) are completed.
(7) AUSTEL may authorise any thing seized under this section to be released to the owner, or to the person from whom the thing was seized, either unconditionally or on such conditions as AUSTEL thinks fit.
(8) In this section:
offence to which this section applies means:
(a) an offence against Division 6 or 7 of Part 12; or
(b) an offence against:
(i) section 6, 7 or 7A of the Crimes Act 1914; or
(ii) subsection 86(1) of that Act by virtue of paragraph (a) of that subsection;
being an offence that relates to an offence against Division 6 or 7 of Part 12.
364 Warrants may be granted by telephone
(1) Where, because of circumstances of urgency, an inspector considers it necessary to do so, the inspector may apply for a warrant under subsection 363(2), by telephone, in accordance with this section.
(2) Before so applying, an inspector must prepare an information of a kind referred to in subsection 363(2) that sets out the grounds on which the issue of the warrant is being sought, but may, if it is necessary to do so, apply before the information has been sworn.
(3) Where a Magistrate to whom an application under subsection (1) is made is satisfied:
(a) after having considered the terms of the information prepared in accordance with subsection (2); and
(b) after having received such further information (if any) as the Magistrate requires concerning the grounds on which the issue of the warrant is being sought;
that there are reasonable grounds for issuing the warrant, the Magistrate must complete and sign such a search warrant as the Magistrate would have issued under section 363 if the application had been made in accordance with that section.
(4) Where a Magistrate signs a warrant under subsection (3):
(a) the Magistrate must notify the inspector of the terms of the warrant and the date on which and the time at which it was signed, and write on it the reasons for the granting of the warrant; and
(b) the inspector must complete a form of warrant in the terms notified to the inspector by the Magistrate and write on it the name of the Magistrate and the date on which and the time at which the warrant was signed.
(5) Where an inspector completes a form of warrant in accordance with subsection (4), the inspector must, not later than the day after the date of expiry or execution, whichever is the earlier, of the warrant send to the Magistrate who signed the warrant the form of warrant completed by the inspector and the information duly sworn in connection with the warrant.
(6) Upon receiving the documents referred to in subsection (5), the Magistrate must attach to them the warrant signed by the Magistrate and deal with the documents in the manner in which the Magistrate would have dealt with the information if the application for the warrant had been made in accordance with section 363.
(7) A form of warrant duly completed by an inspector in accordance with subsection (4) is, if it is in accordance with the terms of the warrant signed by the Magistrate, authority for any entry, search or seizure that the warrant so signed authorises.
(8) Where it is material, in any proceedings, for a court to be satisfied that an entry, search or seizure was authorised in accordance with this section, and the warrant signed by a Magistrate in accordance with this section, authorising the entry, search or seizure is not produced in evidence, the court must assume, unless the contrary is proved, that the entry, search or seizure was not authorised by such a warrant.
365 Power to require information etc.
(1) Subject to subsection (2), an inspector who has entered premises under this Division may, to the extent that it is reasonably necessary for the purpose of ascertaining whether Divisions 6 and 7 of Part 12 have been complied with, require a person to answer any questions put by the inspector and to produce any books, records or documents requested by the inspector.
(2) An inspector is not entitled to make a requirement of a person under subsection (1) unless the inspector produces his or her identity card for inspection by the person.
(3) A person must not, without reasonable excuse, refuse or fail to comply with a requirement made of the person under subsection (1).
Penalty: $2,000.
366 Retention of books, records and documents
Where an inspector removes a book, record or document from the premises under subsection 362(1) or seizes a book, record or document under section 363 or a person produces a book, record or document to an inspector in accordance with a requirement under subsection 364(1):
(a) the inspector may retain possession of the book, record or document for such period as is necessary and reasonable for the purpose of ascertaining whether Divisions 6 and 7 of Part 12 have been complied with; and
(b) during that period the inspector must permit a person who would be entitled to inspect the book, record or document if it were not in the inspector’s possession to inspect the book, record or document at all reasonable times.
Part 17—Constitution of AUSTEL
Division 1—Membership of AUSTEL
367 Membership
AUSTEL consists of the following members:
(a) a Chairperson;
(b) 2 other members.
368 Appointment of members
(1) The members of AUSTEL are to be appointed by the Governor‑General.
(2) The Chairperson is to be appointed as a full time member.
(3) A member, other than the Chairperson, may be appointed as a full time member or as a part time member.
369 Associate members
(1) The Minister may, in writing, appoint such associate members as he or she thinks fit.
(2) The Minister may, in writing, direct an associate member to perform the duties of a member, either generally or in relation to the matters specified in the instrument.
370 Qualification of members
A person is not to be appointed as a member unless he or she appears to the appointing authority to be qualified for appointment because of his or her knowledge of, or experience in, one or more of the following fields:
(a) industry;
(b) commerce;
(c) technology;
(d) consumer affairs;
(e) economics;
(f) law;
(g) public administration.
Division 2—Meetings of AUSTEL
371 Times and places of meetings
(1) AUSTEL is to hold such meetings as is necessary for the efficient performance of its functions.
(2) Subject to subsections (3) and (4), meetings are to be held at such times and places as AUSTEL determines.
(3) The Minister or the Chairperson may call a meeting at any time.
(4) The Chairperson must call a meeting if requested to do so in writing by at least 2 of the other members.
372 Notice of meetings
(1) Each member, and each associate member directed to perform the duties of a member generally, is entitled to receive notice of AUSTEL’s meetings.
(2) An associate member directed to perform the duties of a member in relation to specified matters is entitled to receive notice of a meeting of AUSTEL if it is likely that AUSTEL will consider at the meeting:
(a) any of those matters; or
(b) a matter related to any of those matters.
373 Presiding at meetings
(1) The Chairperson presides at all meetings at which he or she is present.
(2) If the Chairperson is not present at a meeting, the members present are to appoint one of their number to preside.
374 Quorum
A majority of the members constitutes a quorum.
375 Voting at meetings
(1) A question is decided by a majority of the votes of the members present and voting.
(2) The person presiding at a meeting has a deliberative vote and, if necessary, also a casting vote.
376 Conduct of meetings
(1) AUSTEL may, subject to this Division, regulate proceedings at its meetings as it considers appropriate.
(2) Without limiting subsection (1), AUSTEL may permit a member to participate in a meeting by telephone or any other means of communication.
(3) A member who is permitted to participate in a meeting under subsection (2) is taken to be present at that meeting.
377 Resolutions without meetings
(1) A resolution is taken to have been passed at a meeting of AUSTEL if, without meeting, a sufficient number of members indicate agreement with the resolution in accordance with the method determined by AUSTEL under subsection (2).
(2) Subsection (1) applies only if AUSTEL determines that it applies, and determines the method by which members are to indicate agreement with resolutions.
(3) In this section:
sufficient number of members means, in relation to a resolution, a majority of the number of members who would have been entitled to vote on the resolution at a meeting of AUSTEL if they had been present at the meeting.
378 Minutes
AUSTEL must keep minutes of its meetings.
379 Disclosure of interests
(1) A member who has a direct or indirect pecuniary interest in a matter being considered by AUSTEL must, as soon as possible after the relevant facts have come to the member’s knowledge, disclose the nature of the interest at a meeting of AUSTEL.
(2) A disclosure must be recorded in the minutes of the meeting and the member must not, unless the Minister or AUSTEL otherwise determines:
(a) be present during any deliberation by AUSTEL about that matter; or
(b) take part in any decision of AUSTEL relating to that matter.
(3) For the purpose of AUSTEL making such a determination in relation to a member who has made a disclosure, a member who has a direct or indirect pecuniary interest in the matter to which the disclosure relates must not:
(a) be present during any deliberation by AUSTEL for the purpose of making the determination; or
(b) take part in making the determination.
Division 3—Provisions relating to members
380 Term of appointment
(1) A member is to be appointed for the period, not exceeding 5 years, specified in the instrument of appointment.
(2) A member is eligible for reappointment.
381 Age limit
(1) A person who is aged 65 years or more is not to be appointed as a full time member.
(2) A person is not to be appointed as a full time member for a period that extends beyond the day on which he or she will turn 65.
382 Remuneration and allowances
(1) A member is to be paid such remuneration as is determined by the Remuneration Tribunal.
(2) If no determination of that remuneration is in operation, a member is to be paid such remuneration as is prescribed.
(3) A member is to be paid such allowances as are prescribed.
(4) This section has effect subject to the Remuneration Tribunal Act 1973.
(5) In this section:
member includes a member of an advisory committee established under section 53.
383 Outside employment
(1) A full time member must not engage in any paid employment outside the duties of his or her office without the Minister’s written approval.
(2) A part time member must not engage in any paid employment that, in the Minister’s opinion, conflicts, or may conflict, with the proper performance of the member’s duties.
(3) This section does not apply in relation to the holding by a member of an office or appointment in the Defence Force.
384 Leave of absence
(1) Subject to section 87E of the Public Service Act 1922, a full time member has such recreation leave entitlements as are determined by the Remuneration Tribunal.
(2) The Minister may grant the Chairperson leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines in writing.
(3) The Chairperson may grant another full time member leave of absence, other than recreation leave on such terms and conditions as to remuneration or otherwise as the Minister determines in writing.
(4) The Chairperson may grant leave to a part time member to be absent from a meeting or meetings of AUSTEL.
385 Resignation
A member may resign by writing signed and delivered to the appointing authority.
386 Termination of appointment
(1) The appointing authority may terminate the appointment of a member for misbehaviour or mental incapacity.
(2) If:
(a) a member becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of remuneration for their benefit; or
(b) a full time member:
(i) engages, except with the Minister’s approval, in paid employment outside the duties of his or her office; or
(ii) is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(c) a part time member:
(i) engages in paid employment that, in the Minister’s opinion, conflicts with the proper performance of the member’s duties; or
(ii) is absent, except on leave of absence, from 3 consecutive meetings of AUSTEL; or
(d) a member fails, without reasonable excuse, to comply with section 379;
the appointing authority may terminate the member’s appointment.
387 Terms and conditions of appointment etc.
A member holds office on such terms and conditions (in respect of matters not provided for by this Act) as are determined by the appointing authority.
388 Acting appointments
(1) The Minister may appoint a member or another person to act as the Chairperson:
(a) during a vacancy in the office of Chairperson (whether or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when the Chairperson is absent from duty or from Australia or is, for any other reason, unable to perform the duties of the office.
(2) The Minister may appoint a person to act as a member:
(a) during a vacancy in the office of a member (whether or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when a member is acting as the Chairperson, is absent from duty or from Australia, or is, for any other reason, unable to perform the duties of the office.
(3) A person appointed to act during a vacancy must not continue to act for more than 12 months.
(4) Anything done by a person purporting to act under an appointment under this section is not invalid merely because:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect or irregularity in, or in connection with, the appointment; or
(c) the appointment had ceased to have effect; or
(d) the occasion for the person to act had not arisen or had ceased.
Division 4—Finance
389 Money of AUSTEL
(1) There is payable to AUSTEL such money as is appropriated by the Parliament for the purposes of AUSTEL.
(2) The Minister for Finance may give directions as to the amounts in which, and the times at which, money referred to in subsection (1) is to be paid to AUSTEL.
390 Application and investment of money
(1) Subject to subsection (2), the money of AUSTEL may only be applied:
(a) in payment or discharge of the expenses, charges, obligations or liabilities incurred or undertaken by AUSTEL in or in connection with the performance of its functions or the exercise of its powers; and
(b) in payment of any remuneration or allowances payable under this Act; and
(c) in making any other payments that are required by this Act to be made out of AUSTEL’s money.
(2) Money of AUSTEL that is not immediately required for the purposes of AUSTEL may be invested:
(a) on fixed deposit with an approved bank; or
(b) in securities of the Commonwealth; or
(c) in any other manner approved by the Treasurer.
(3) In subsection (2):
approved bank means the Reserve Bank of Australia or a bank approved by the Treasurer for the purposes of this section.
391 Estimates
(1) AUSTEL must prepare estimates, in such form as the Minister directs, of its receipts and expenditure for each financial year and, if the Minister so directs, for any other period specified by the Minister.
(2) AUSTEL must submit estimates so prepared to the Minister not later than such date as the Minister directs.
(3) AUSTEL’s money must not be expended otherwise than in accordance with the estimates of expenditure approved by the Minister.
392 Limitation on contracts
AUSTEL must not, without the approval of the Minister enter into a contract under which AUSTEL is to pay or receive an amount exceeding $1,000,000 or, if a higher amount is prescribed by the regulations, that higher amount.
393 Application of Division 3 of Part XI of the Audit Act
(1) AUSTEL is a public authority to which Division 3 of Part XI of the Audit Act 1901 applies.
(2) Each annual report submitted by AUSTEL under section 63M of the Audit Act 1901, as that section applies because of subsection (1) of this section, must include:
(a) a copy of each instrument that:
(i) AUSTEL gave to a carrier under subsection 46(1) during the financial year to which the annual report relates; and
(ii) in AUSTEL’s opinion, contains no confidential information; and
(b) in relation to each instrument that AUSTEL gave as mentioned in subparagraph (a)(i) and that, in AUSTEL’s opinion, contains confidential information:
(i) if, in AUSTEL’s opinion, part of the instrument can be reproduced in the annual report without disclosing confidential information—a copy of that part; and
(ii) if subparagraph (i) does not apply—a statement specifying the instrument and the carrier to which, and the day on which, it was so given; and
(iii) a statement that, because of confidential information contained in the instrument, or in a part of it, as the case requires, the instrument or part is not reproduced in the annual report; and
(iv) a note summarising so much of the instrument as is not so reproduced, but without disclosing any information that, in AUSTEL’s opinion, is confidential; and
(c) particulars of each notification of general policies of the Commonwealth Government under section 49 of this Act, being a notification given during the financial year to which the annual report relates; and
(d) a report on:
(i) the number and types of complaints made under Part 15 during the financial year; and
(ii) the investigations conducted under Part 15 during the financial year as a result of complaints made under Part 15; and
(iii) the results of those investigations.
394 Liability to taxation
(1) Subject to subsection (2), AUSTEL is not subject to taxation under a law of the Commonwealth or of a State or Territory and, in particular, sales tax is not payable by AUSTEL, or by any other person, on goods that are for use by AUSTEL.
(2) The regulations may provide that subsection (1) does not apply in relation to taxation under a specified law.
Part 18—Miscellaneous
Do not delete : Division placeholder
395 Federal Court powers relating to injunctions
(1) On an application to which this section applies because of another provision of this Act, the Federal Court may, if in its opinion it is desirable to do so, grant an interim injunction pending determination of the application.
(2) The Federal Court’s power to grant under this Act an injunction restraining a person from engaging in conduct may be exercised:
(a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in such conduct; and
(b) whether or not the person has previously engaged in such conduct; and
(c) whether or not there is imminent danger of substantial damage to any person if the first-mentioned person engages in such conduct.
(3) The Federal Court’s power to grant under this Act an injunction requiring a person to do an act may be exercised:
(a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act; and
(b) whether or not the person has previously refused or failed to do that act; and
(c) whether or not there is imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that act.
396 Nature of unenforceability of agreements
(1) This section applies where an agreement, or a provision of an agreement, is unenforceable because of a provision of this Act.
(2) A party to the agreement is not entitled, as against any other party:
(a) to enforce the agreement or provision, as the case may be, whether directly or indirectly; or
(b) to rely on the agreement or provision, as the case may be, whether directly or indirectly and whether by way of defence or otherwise.
(3) A party to the agreement is not entitled to recover by any means (including, for example, set-off, a quasi-contractual claim or a claim for a restitutionary remedy) any amount that, but for this section, another party would have been liable to pay to the first-mentioned party under or in connection with the agreement or provision, as the case may be.
397 Review of decisions
(1) Applications may be made to the Administrative Appeals Tribunal for the review of the following decisions of AUSTEL:
(a) a decision under section 115 reconsidering a decision of AUSTEL under another provision of Division 6 of Part 6;
(b) a decision under section 220 reconsidering a decision of AUSTEL under Subdivision B of Division 3 of Part 10;
(c) a decision under section 224 reconsidering a decision of AUSTEL to refuse an application for the registration of an eligible service;
(d) a decision under section 230 reconsidering a decision of AUSTEL to declare a service to be an unlicensed service;
(da) a decision of a kind referred to in subsection 242D(5) (which deals with remission of late payment penalty);
(db) a decision under subsection 242D(9) (which deals with the withdrawal of numbers);
(e) a decision under section 284 reconsidering a decision of AUSTEL under Part 12;
(f) a decision of AUSTEL under section 115, 220, 224, 230 or 284 refusing to grant, or granting, an extension of the period of time within which an application for reconsideration may be made under section 115, 220, 224, 230 or 284, as the case may be.
(2) If, at the end of 30 days after an application for the reconsideration of a decision of AUSTEL is made under section 115, 220, 224, 230 or 284, AUSTEL has not informed the applicant of its decision on the reconsideration, AUSTEL is taken, for the purposes of this section:
(a) to have decided, on the last day of the 30 days, to affirm the decision in respect of which the application for reconsideration was made; and
(b) to have informed the applicant accordingly on that day.
(3) If, at the end of 14 days after a request has been made under section 115, 220, 224, 230 or 284 for an extension of the period within which an application for reconsideration may be made under section 115, 220, 224, 230 or 284, as the case may be, AUSTEL has not informed the person who made the request of its decision whether to grant an extension of the period, AUSTEL is taken, for the purposes of this section:
(a) to have decided, on the last day of the 14 days, to refuse to grant an extension to the period; and
(b) to have informed the person accordingly on that day.
398 Statement to accompany notification of decision
(1) Where a decision of a kind referred to in section 397 is made and a notice in writing of the decision is given to a person whose interests are affected by the decision, the notice must include:
(a) a statement to the effect that application may be made to the Administrative Appeals Tribunal under the Administrative Appeals Tribunal Act 1975 for review of the decision; and
(b) a statement to the effect that a person who is entitled to apply to the Administrative Appeals Tribunal for the review of a decision may, under section 28 of that Act, request a statement that includes reasons for the decision.
(2) Paragraph (1)(b) does not apply in relation to a case to which subsection 28(4) of the Administrative Appeals Tribunal Act 1975 applies.
(3) A contravention of subsection (1) in relation to a decision does not affect the validity of the decision.
399 AUSTEL to review and report to Minister on competitive safeguards and carrier performance
(1) AUSTEL must review, and report to the Minister on, competitive safeguards within the telecommunications industry, including:
(a) matters relating to the operation of Parts 5, 8 and 9; and
(b) such other matters relating to competition in the telecommunications industry as AUSTEL thinks appropriate.
(2) AUSTEL must review, and report to the Minister on, carrier performance, including:
(a) the efficiency with which each of the carriers supplies services and facilities; and
(b) the adequacy and quality of the services and facilities supplied by each of the carriers; and
(ba) compliance by the carriers or service providers with the standards developed under subparagraph 38(2)(b)(iv); and
(c) the appropriateness and adequacy of the strategies and policies that the carriers are following to carry out their prescribed carrier obligations (if any); and
(d) the efficiency with which the carriers are carrying out those obligations; and
(da) the appropriateness and adequacy of the approaches taken by the carriers or service providers in carrying out their obligations, and discharging their liabilities, under Division 6 of Part 5; and
(e) such other matters relating to carrier performance as AUSTEL thinks appropriate.
(3) When reviewing, and reporting on, the matters referred to in paragraphs (2)(a) and (b), AUSTEL must have regard to the performance standards it has developed under paragraph 38(2)(b).
(4) AUSTEL must report to the Minister under subsections (1) and (2) as soon as practicable after:
(a) 1 July 1992; and
(b) each subsequent 1 July.
(5) The Minister must cause a copy of a report under subsection (1) or (2) to be laid before each House of the Parliament within 15 sitting days of that House after receiving the report.
400 AUSTEL may obtain information and documents from carriers
(1) If AUSTEL has reason to believe that a carrier has information or a document that is relevant to the performance of any of AUSTEL’s functions or the exercise of any of its powers, AUSTEL may by written notice given to the carrier, direct the carrier, within the time and in the manner specified in the notice, to give the information to AUSTEL in writing, or to produce the document to AUSTEL, as the case requires.
(2) A notice under subsection (1) that relates to the giving of information may require the information to be given in a specified form.
401 AUSTEL may obtain information and documents from persons other than carriers
(1) If AUSTEL has reason to believe that a person other than a carrier has information or a document that is relevant to the performance of any of AUSTEL’s functions or the exercise of any of its powers, AUSTEL may by written notice given to the person, require the person, within the time and in the manner specified in the notice, to give the information to AUSTEL in writing, or to produce the document to AUSTEL, as the case requires.
(1A) A notice under subsection (1) that relates to the giving of information may require the information to be given in a specified form.
(2) A person must comply with a notice under subsection (1).
Penalty: 20 penalty units.
(3) A person must not, in purported compliance with such a notice, knowingly give information that is false or misleading.
Penalty for a contravention of this subsection: Imprisonment for 6 months.
402 AUSTEL may waive fees
AUSTEL may, in its discretion, on behalf of the Commonwealth, wholly or partly waive a fee that would otherwise be payable by a person under the Telecommunications (Application Fees) Act 1991.
402A Person not to use protected name or protected symbol
(1) A person must not, unless AUSTEL consents in writing:
(a) use in relation to a business, trade, profession or occupation; or
(b) use as the name, or as part of the name, of any firm, body corporate, institution, premises, vehicle, ship or craft (including aircraft); or
(c) apply, as a trade mark or otherwise, to goods imported, manufactured, produced, sold, offered for sale or let or hire; or
(d) use in relation to:
(i) goods or services; or
(ii) the promotion, by any means, of supply or use of goods or services;
either:
(e) a protected name, or a name so closely resembling a protected name as to be likely to be mistaken for it; or
(f) the protected symbol, or a symbol so closely resembling the protected symbol as to be likely to be mistaken for it.
Penalty: 30 penalty units.
(2) Nothing in subsection (1) limits anything else in that subsection.
(3) Nothing in subsection (1), so far as it applies in relation to a protected name or in relation to the protected symbol, affects rights conferred by law on a person in relation to:
(a) a trade mark that is registered under the Trade Marks Act 1955; or
(b) a design that is registered under the Designs Act 1906;
and was so registered immediately before the commencement of Part 10 of the Transport and Communications Legislation Amendment Act (No. 2) 1992 in relation to the name or symbol.
(4) Nothing in this section, so far as it applies to a protected name or in relation to the protected symbol, affects the use, or rights conferred by law relating to the use, of the name or symbol by a person in a particular manner if, immediately before the commencement of Part 10 of the Transport and Communications Legislation Amendment Act (No. 2) 1992, the person:
(a) was using the name or the symbol in good faith in that manner; or
(b) would have been entitled to prevent another person from passing off, by means of the use of the name or the symbol or a similar name or symbol, goods or services as the goods or services of the first-mentioned person.
(5) This section does not apply to a person who uses or applies a protected name or the protected symbol for the purpose of labelling customer equipment in accordance with a permit in force under subsection 258(1).
(6) In this section:
protected name means:
(a) AUSTEL; or
(b) Australian Telecommunications Authority.
protected symbol means the official symbol of AUSTEL, the design of which is set out in the regulations.
403 Staff
(1) AUSTEL’s staff consists of persons appointed or employed under the Public Service Act 1922.
(2) The Chairperson has all the powers of a Secretary under the Public Service Act 1922 as they relate to the branch of the Australian Public Service comprising AUSTEL’s staff.
(3) AUSTEL may make an arrangement with an authority of the Commonwealth for the services of officers or employees of that authority to be made available for the purposes of AUSTEL.
404 Consultants
AUSTEL may engage such persons as it thinks fit as consultants to advise AUSTEL in respect of the exercise of its powers and the performance of its functions.
405 Delegation
AUSTEL may, in writing, delegate all or any of its powers under this Act (other than Division 7 of Part 12) to:
(a) a member; or
(b) a staff member; or
(c) a person whose services are made available to AUSTEL under subsection 403(3).
406 Regulations
(1) The Governor-General may make regulations, not inconsistent with this Act, 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.
(2) The regulations may make provision for penalties by way of a fine not exceeding 10 penalty units for offences against the regulations.
407 Instrument under this Act may provide for matters by reference to any other instrument
(1) In this section:
instrument under this Act means the regulations or any other instrument made under this Act.
(2) An instrument under this Act may make provision in relation to a matter by applying, adopting or incorporating (with or without modifications) provisions of any Act, or of any regulations or rules under an Act, as in force at a particular time or as in force from time to time.
(3) An instrument under this Act may make provision in relation to a matter by applying, adopting or incorporating (with or without modifications) matter contained in any other instrument or writing whatever:
(a) as in force or existing at a particular time; or
(b) as in force or existing from time to time;
even if the other instrument or writing does not yet exist when the instrument under this Act is made.
(4) A reference in subsection (3) to any other instrument or writing includes a reference to an instrument or writing:
(a) made by any person or body in Australia or elsewhere (including, for example, the Commonwealth, a State or Territory, an officer or authority of the Commonwealth or of a State or Territory, or an overseas entity); and
(b) whether of a legislative, administrative or other official nature, or of any other nature; and
(c) whether or not having any legal force or effect;
for example:
(d) a State Act, a law of a Territory, or regulations or any other instrument made under such an Act or law; or
(e) an international technical standard or performance indicator; or
(f) a written agreement or arrangement or an instrument or writing made unilaterally.
(5) Nothing in this section limits the generality of anything else in it.
(6) Since this section deals differently with the topic dealt with by section 49A of the Acts Interpretation Act 1901, that section does not apply in relation to an instrument under this Act.
408 Disallowance of regulations tabled after 14 November 1991 and before 31 December 1991
(1) This section applies to regulations:
(a) made under this Act, whether before, at or after the commencement of this section; and
(b) laid before either House, or each House, of the Parliament after 14 November 1991 and before 31 December 1991.
(2) Subject to subsection (3) of this section, the provisions of subsections 48(4), (5) and (5A) and 48B(1) and (2) of the Acts Interpretation Act 1901 apply in relation to those regulations as if each reference in those provisions to 15 sitting days were a reference to 5 sitting days.
(3) If, after those regulations were or are laid before a House of the Parliament, that House passes a resolution approving those regulations, the provisions of subsections 48(4), (5) and (5A) and 48B(1) and (2) of the Acts Interpretation Act 1901 cease to apply in relation to those regulations in relation to that House.
(4) Except as provided in subsections (2) and (3) of this section, the application of sections 48, 48A, 48B and 49 of the Acts Interpretation Act 1901 in relation to those regulations is not affected.
409 Disallowance of instruments tabled after 14 November 1991 and before 31 December 1991
(1) This section applies to an instrument that:
(a) was or is made under this Act, whether before, at or after the commencement of this section; and
(b) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901; and
(c) was or is laid before either House, or each House, of the Parliament after 14 November 1991 and before 31 December 1991.
(2) Subject to subsection (3) of this section, the provisions of subsections 48(4), (5) and (5A) and 48B(1) and (2) of the Acts Interpretation Act 1901, as applying in relation to the instrument because of section 46A of that Act, so apply as if each reference in those provisions to 15 sitting days were a reference to 5 sitting days.
(3) If, after the instrument was or is laid before a House of the Parliament, that House passes a resolution approving the instrument, the provisions of subsections 48(4), (5) and (5A) and 48B(1) and (2) of the Acts Interpretation Act 1901, as applying in relation to the instrument because of section 46A of that Act, cease to apply in relation to the instrument in relation to that House.
(4) Except as provided in subsections (2) and (3) of this section, the application of sections 48, 48A, 48B and 49 of the Acts Interpretation Act 1901 in relation to the instrument because of section 46A of that Act is not affected.