Telecommunications Act 1997

Key concepts include carriage service, listed carriage service, carrier, carriage service provider, content service provider, telecommunications network, facility, customer cabling, customer equipment and network boundary under section 7 and sections 20 to 22. Network units comprise single line links, multiple line links, designated radiocommunications facilities and facilities specified in Ministerial determinations. Places are distinct unless they fall within the same property, combined area or eligible Territory under sections 36 to 40. Protected information covers the contents or substance of a communication carried or being carried by a carrier or carriage service provider, carriage services supplied or intended to be supplied, and the affairs or personal particulars, including unlisted telephone numbers or addresses, of another person under sections 276 to 278. Eligible persons are carriers, carriage service providers, their employees and telecommunications contractors under section 271. Eligible number-database persons are number-database operators determined under section 472(1), their employees and contractors under section 272. Emergency call persons are recognised persons operating an emergency call service, their employees and contractors under section 273 and section 19. The integrated public number database is maintained by Telstra Limited under Part 4 of Schedule 2 or by a person under section 472 under section 285(2). Emergency management persons and emergency laws are specified by legislative instrument made by the AFP Minister under sections 275B to 275D. Relevant information for emergency warnings excludes names of persons under section 275E. Local access line means a line that is part of the infrastructure of a local access network, excluding the customer side of the network boundary under section 158(1) and (2), with lines in multi-unit buildings used for superfast carriage services to residential customers deemed local access lines forming part of network infrastructure under section 158(2B). Superfast carriage service means a carriage service enabling end-users to download communications at a normally 25 megabits per second or more speed, supplied using a line to premises occupied or used by an end-user under section 142A. Designated carriage service means a Layer 2 bitstream service or a carriage service specified by the ACCC by legislative instrument that enables end-users to download communications at a normally 25 megabits per second or more speed, supplied using a line to premises occupied or used by an end-user, and subject to a declaration under section 152AL(3) of the Competition and Consumer Act 2010 under section 142BD. Functional separation undertaking means a standard functional separation undertaking under section 151A or a joint functional separation undertaking under section 151C under section 142A. Fundamental provision means a provision stated as such under section 151A(9) or section 151C(9) under section 142A. Unsatisfactory compliance record in relation to functional separation is determined having regard only to breaches of functional separation undertakings while in force and contraventions of sections 143B, 151ZA, 151ZB, 151ZF, 151ZG, 151ZH or 151ZI under section 142BC. A person is in a position to exercise control of a telecommunications network or line if the person legally or beneficially owns it, alone or with others, or is in a position, alone or with an associate, directly or indirectly, to exercise control of its operation, the selection of services supplied using it, or the supply of services using it under sections 155(1) and 155A(1). Associate of a controller includes partners, trustees of trusts where the controller benefits, persons acting or expected to act in accordance with the controller's directions or in concert, and related bodies corporate or companies under common control under section 152(1). Industry code means a code developed under Part 6 under section 107. Industry standard means a standard determined under Part 6 under section 108. Sections of the telecommunications industry, telemarketing industry and fax marketing industry are ascertained under sections 110, 110B and 110C. Participant is defined in sections 111, 111AA and 111AB.

The provisions affect carriers, carriage service providers, content service providers, number-database operators, recognised emergency call service operators, their employees, telecommunications contractors, number-database contractors and emergency call contractors. They also affect enforcement agencies, the ACMA, the eSafety Commissioner, the ACCC, the Telecommunications Industry Ombudsman, emergency management persons, emergency services, despatching services, qualifying entities, researchers, directory publishers and persons receiving disclosures under exceptions. The Act applies to owners of network units used to supply carriage services to the public under Part 2 and to persons making or receiving disclosures of protected information under Part 13. Part 8 affects persons in a position to exercise control of local access lines or telecommunications networks, or their associates, under sections 142C(2) and 143(2), corporations giving standard or joint functional separation undertakings under sections 151A and 151C, persons electing to be bound by class exemptions or deemed undertakings under sections 143A and 151B, carriers and carriage service providers receiving supplies or seeking access, the ACCC, the Federal Court, the ACMA, the Minister and the Australian Competition Tribunal. Part 6 affects bodies or associations representing sections of the telecommunications industry, telemarketing industry or fax marketing industry, participants in those sections, including carriers, carriage service providers, electronic messaging service providers, telemarketers and fax marketers, the ACMA, the ACCC, the Telecommunications Industry Ombudsman, consumer representative bodies, the Information Commissioner and State, Territory and Australian Capital Territory governments.

Carriers and carriage service providers must hold carrier licences to use network units to supply carriage services to the public unless a nominated carrier declaration applies under Part 3. Service providers must comply with service provider rules under Part 4 and Schedule 2. Eligible persons, eligible number-database persons and emergency call persons must not disclose or use protected information or documents except as permitted under sections 276 to 278. Employees and contractors may disclose or use information in the performance of their duties under section 279. Disclosure or use is permitted if required or authorised under a warrant in connection with an enforcement agency or otherwise by or under law under section 280, subject to limitations on civil proceeding disclosures of information kept solely for compliance with Part 5-1A of the Telecommunications (Interception and Access) Act 1979 under sections 280(1B) to (1C). Disclosure is permitted as a witness summoned to give evidence or produce documents, again subject to the same civil proceeding limitations under section 281. Disclosure to the ACMA, eSafety Commissioner, ACCC or Telecommunications Industry Ombudsman is permitted to assist their functions or powers under section 284. Use or disclosure of integrated public number database information, excluding unlisted telephone numbers, is permitted for directory assistance services, publication and maintenance of public number directories or specified research, provided the recipient holds an authorisation under the integrated public number database scheme where required under section 285(1) to (1A). Disclosure of integrated public number database information, including unlisted numbers, to an emergency management person is permitted for alerting to an emergency or likely emergency or for reasonable testing of alerting systems, upon written notice under section 285A. Disclosure of information derived from an emergency service number call is permitted to an emergency service, despatching service or emergency call person for dealing with the matter raised under section 286. Disclosure or use relating to affairs or personal particulars is permitted where consent is unreasonable or impracticable and the discloser believes on reasonable grounds it is reasonably necessary to prevent or lessen a serious threat to life or health under section 287, or for preservation of human life at sea or vessel location for maritime communications under section 288. Disclosure or use is permitted where the person concerned is reasonably likely to have been aware of usual practice or has consented under section 289, or where sender and recipient would reasonably be expected to consent to disclosure of communication contents or substance under section 290. Disclosure or use by or on behalf of a carrier or carriage service provider is permitted for connected business, supply or network purposes, with consent required for mobile handset or device location information under section 291. Disclosure or use of non-unlisted integrated public number database information is permitted for supply of a location dependent carriage service under section 291A. Disclosure or use is permitted in circumstances prescribed by regulations under section 292 or for purposes connected with a permitted disclosure under section 293. Recipients of permitted disclosures must not further disclose or use the information except for the original purpose or as otherwise authorised under sections 296 to 302A. Carriers, carriage service providers and number-database operators must retain notifications of authorisations under Division 4 or 4A of Part 4-1 of the Telecommunications (Interception and Access) Act 1979 for three years under section 305. Eligible persons making authorised disclosures must make and retain records containing prescribed details within five days under section 306, with equivalent obligations for prospective authorisations under section 306A. Carriers, carriage service providers and number-database operators must provide the ACMA with an annual written report on disclosures under section 308. The ACMA must establish and maintain the SMS Sender ID Register and may make industry codes and standards registerable under Part 6. The Information Commissioner monitors compliance with Division 5 record-keeping requirements under section 309. Under Part 8, a person in a position to exercise control of a local access line, or an associate, must not use the line, alone or jointly, to supply an eligible service unless supplied to a carrier or service provider, where the line is part of a telecommunications network in Australia, not the national broadband network, used or proposed to be used to supply a superfast carriage service wholly or principally to residential customers or prospective residential customers in Australia, and the line came into existence or was altered or upgraded on or after the designated commencement date and became capable of supplying a superfast carriage service to residential customers under section 142C(2). Equivalent obligations apply to local access lines where the network came into existence or was altered or upgraded on or after 1 January 2011 but before the designated commencement date under section 143(2). A corporation may give a standard functional separation undertaking to the ACCC under section 151A(1). The undertaking must provide for maintenance of a single wholesale business unit and a single retail business unit with arm's length functional separation between them under section 151A(2)(a) and (b), documentation of terms and conditions under section 151A(2)(c), separation of workers to the extent specified under section 151A(2)(d), separate operational support systems, business systems, communications systems and accounts to the extent specified under section 151A(2)(e), publication on the website of terms and conditions under section 151A(2)(f), supply of a local access line service to a wholesale customer or prospective wholesale customer on request on the published terms and conditions under section 151A(2)(g), protection of information provided to the wholesale business unit by wholesale customers from disclosure to the retail business unit under section 151A(2)(h), protection of information provided to the retail business unit by a carrier or carriage service provider from disclosure to the wholesale business unit under section 151A(2)(i), use of the same customer interface for dealings between the wholesale business unit and wholesale customers as for dealings between the wholesale business unit and the retail business unit under section 151A(2)(j), other provisions specified by the Minister under section 151A(2)(k), and must not contain provisions of a kind specified by the Minister under section 151A(2)(l). The undertaking must specify an expiry time not more than 10 years after coming into force under section 151A(5) and state that provisions covered by paragraphs (2)(a), (b), (c), (f), (g), (h), (i), (j) and (k) are fundamental provisions under section 151A(9). It must provide for periodic compliance reports in a form approved by the ACCC and for preparation and giving of compliance plans and variations under section 151A(10) and (11). Two or more corporations may give a joint functional separation undertaking identifying wholesaler or wholesalers and retailer or retailers under section 151C(1). It must prevent wholesalers supplying to non-wholesale customers and retailers to non-retail customers under section 151C(2)(a) and (b), ensure to the specified extent exclusive or separate workers, systems and accounts under section 151C(2)(c) to (e), ensure no overlapping directors under section 151C(2)(f), require wholesalers to publish and supply on published terms under section 151C(2)(g) and (h), protect wholesale customer information and prevent retailers obtaining or using it under section 151C(2)(i), protect certain retail information and prevent wholesalers obtaining or using it under section 151C(2)(j), use the same customer interface under section 151C(2)(k), include other specified provisions and exclude prohibited kinds under section 151C(2)(l) and (m). Fundamental provisions must include those on identification, customer restrictions, director separation, publication, supply on request and information protection under section 151C(9). The undertaking must provide for compliance reports and plans from wholesalers and retailers under section 151C(10) to (13). Expiry must be specified, not more than 10 years, under section 151C(5). The ACCC may request further information about undertakings and refuse to consider until provided under section 151D. A person may withdraw an undertaking before ACCC decision, with possible refund of fees under section 151E. The ACCC must accept or reject undertakings after considering them, giving written notice with reasons for rejection under section 151F(1) and (2). The ACCC must decide within 3 months, disregarding periods for notices, variations, publication and information requests, with power to extend by up to 3 months with reasons under section 151F(3) to (5). The ACCC must publish undertakings on its website and invite submissions, minimum 15 business days, before deciding to accept or reject under section 151G. The ACCC may refuse to consider subsequent undertakings that are materially similar to rejected ones, with fee refund under section 151H. When deciding to accept an undertaking, the ACCC must have regard to promotion of long-term interests of end-users, matters in Ministerial determinations and other relevant matters under section 151J. The ACCC may give notice inviting variations to original undertakings, after which it considers the varied version under section 151K. The ACCC may give notice inviting withdrawal of a standard undertaking and submission of a specified joint one under section 151L. Undertakings may be expressed as renewals if given at least 12 months before expiry of an existing one under section 151M. The ACCC may vary the expiry time of an existing undertaking, by up to 12 months after rejection of another, after consultation, resetting the 3-month period under section 151N. Accepted undertakings come into force on the designated commencement date, or later specified day, if accepted before that date, or the day after acceptance, or later day, if accepted on or after, and continue until expiry or revocation under section 151P. Renewed undertakings commence immediately after the prior expiry under section 151P(3). The ACCC may revoke an undertaking if satisfied a person has breached a fundamental provision, contravened sections 151ZF or 151ZG, or has an unsatisfactory compliance record under section 151W. A person must not discriminate between wholesale customers or prospective wholesale customers in relation to the supply of eligible services or in carrying on activities such as developing or enhancing eligible services, extending or enhancing facilities or networks, planning, preparatory or ancillary activities, or giving information to service providers under section 151ZF. A person must not discriminate in favour of itself in relation to the supply of eligible services or in carrying on such activities under section 151ZG. A person must publish on its website a statement about the differences between an access agreement and an offer or standard form of agreement under section 151ZH. A person must not enter into or carry out a scheme with the sole or dominant purpose of avoiding Part 8 provisions under section 151ZI. On review of an ACCC decision under section 151ZL, the Tribunal may affirm or set aside the decision and perform all ACCC functions and powers under section 151ZM(1). A Tribunal decision affirming or setting aside an ACCC decision is taken as an ACCC decision for purposes of the Act other than sections 151ZM and 151ZL under section 151ZM(2). If the Tribunal sets aside an ACCC decision rejecting a functional separation undertaking under section 151F, section 151F(5) applies as if the undertaking was received immediately after the set-aside, resetting the 3-month decision-making period under section 151ZM(3). Equivalent resetting applies for variations under section 151T under section 151ZM(4). The presiding Tribunal member may require the ACCC to provide information, reports and assistance under section 151ZM(5). The Tribunal may have regard to information, documents or evidence given to the ACCC in connection with the reviewed decision under section 151ZM(6). Paragraphs 103(1)(a) and (b) and 108(b) of the Competition and Consumer Act 2010 apply to reviews as if references to that Act included this Part under section 151ZM(7). Division 1 of Part IX of the Competition and Consumer Act 2010 does not apply to Tribunal reviews of ACCC decisions under section 151ZL under section 151ZN. Under Part 6, bodies or associations must publish drafts of codes or variations on their website and invite submissions for at least 30 days, consider submissions received and comply with publication requirements for submissions under section 119B. The ACMA must register a code if satisfied of the matters in section 117(1), including appropriate community safeguards or appropriate dealing with matters, consultation with the ACCC, Telecommunications Industry Ombudsman, except for telemarketing or fax marketing codes, at least one consumer body and the Information Commissioner on privacy matters. Participants must comply with registered codes when directed by the ACMA under section 121(1) and with registered industry standards under section 128(1). Ancillary contraventions are prohibited. A person must not enter a contract, arrangement or understanding for another to carry on telemarketing or fax marketing activities unless it contains an express provision requiring compliance with Part 6 under section 139(1). Bodies or associations may apply for reimbursement of refundable costs of developing or varying consumer-related codes under section 136A. The ACMA must determine by legislative instrument a standard applying to participants in each section of the telemarketing industry dealing with restricting hours and or days for telemarketing calls, requiring specified information about the participant or the person causing the call, terminating calls on specified events, and enabling calling line identification under section 125A(1). The standard must commence at the same time as Part 2 of the Do Not Call Register Act 2006 and remain in force at all times thereafter under section 125A(4). The ACMA may determine by legislative instrument a standard applying to participants in each section of the fax marketing industry dealing with restricting hours and or days for marketing faxes to Australian numbers, requiring specified information about the authorising person, restricting the total number of faxes to a particular Australian number in a period, and providing information on how recipients may opt out of faxes authorised by a particular person under section 125B(1). Authorise has the same meaning as in the Do Not Call Register Act 2006 under section 125B(5). The standard must remain in force at all times after the commencement of section 125B under section 125B(4). The ACMA must consult the ACCC before determining or varying an industry standard under section 133(1), consult the Telecommunications Industry Ombudsman before determining or varying a standard other than one under section 125A or 125B under section 133(1A), and consult both before revoking under section 131(1) under section 133(2). The ACMA must consult the Information Commissioner before determining, varying or revoking an industry standard dealing with a matter in paragraph 113(3)(f) under section 134. The ACMA must consult at least one consumer representative body or association before determining, varying or revoking an industry standard under section 135, and consult each State, the Australian Capital Territory and the Northern Territory before determining or varying a standard under section 125A or 125B under section 135A. The ACMA must maintain a Register under section 136(1) including all registered industry codes, all industry standards, requests under section 118, notices under section 119 and directions under section 121. The Register may be maintained electronically under section 136(2), with public inspection and copying available on payment of any charge under sections 136(3) to (5). A body or association proposing to develop or vary a code applying to a section of the telecommunications industry and dealing wholly or mainly with carriage service provider-retail customer relationships may apply to the ACMA for a declaration of eligibility for reimbursement of refundable costs under section 136A(1). The application must be in writing, in an approved form, and accompanied by an estimate of total refundable costs and a breakdown under section 136A(2). The ACMA may request further information within 20 business days and refuse to consider until provided under sections 136A(3) and (4). Business day means a day the ACMA is open in the Australian Capital Territory and Victoria under section 136A(5). The ACMA must make a declaration for code development if satisfied the body or association represents the relevant section, the code will deal wholly or mainly with retail customer relationships, the development process will adequately represent retail customer interests, and the estimated refundable costs are reasonable under section 136B(1). Equivalent provisions apply for variation under sections 136B(2A) and (2B). A declaration is irrevocable and remains in force for 2 years under section 136B(3) and is not a legislative instrument under section 136B(4). The ACMA must determine entitlement to a specified amount for code development if a section 136B declaration was in force, the code was given under section 117, the ACMA is satisfied the code deals wholly or mainly with retail customer relationships and the process adequately represented interests, the copy was accompanied by an itemised statement of costs, a claim, an approved auditor's declaration of compliance with auditing requirements, and a process description, and the ACMA is satisfied each cost is a refundable cost incurred during the declaration period under section 136C(1). The amount is limited to the lesser of total itemised costs or the estimate under section 136C(2), with payment within 30 days under section 136C(3). Parallel provisions apply for variation under sections 136C(3A) to (3C). The Consolidated Revenue Fund is appropriated under section 136C(4). The ACMA may determine approved auditors and auditing requirements by legislative instrument under sections 136C(5) to (7). If a cost is incurred in a non-arm's length transaction and is greater than reasonable, only the reasonable amount counts for the purposes of Division 6A under section 136D. A refundable cost is a cost incurred in developing or varying a code other than a cost specified in an ACMA determination under section 136E(1). Such a determination is a legislative instrument under section 136E(2). Civil proceedings do not lie against an internet service provider or electronic messaging service provider for anything done in connection with a registered industry code or industry standard dealing with procedures in paragraph 113(3)(q) under section 137. Part 6 does not apply to the extent that it would infringe the constitutional doctrine of implied freedom of political communication under section 138.

Contravention of sections 276, 277 or 278 is an offence punishable by imprisonment for up to two years under sections 276(3), 277(3) and 278(3). Contravention of Division 4 secondary disclosure offences is punishable by imprisonment for up to two years under section 303. Breach of a condition of an integrated public number database authorisation is an offence punishable by 60 penalty units under section 295R. Failure to make or retain required records under sections 306 or 306A is an offence punishable by a fine of up to 300 penalty units under section 306. Making an incorrect record in purported compliance with sections 306 or 306A is an offence punishable by imprisonment for up to six months under section 307. Unauthorised use or disclosure of relevant information by an emergency management person or recipient is an offence punishable by imprisonment for up to two years under sections 295Z to 295ZA. The ACMA may give remedial directions, civil penalty provisions, for breach of authorisation conditions under section 295S or for other contraventions, and may issue formal warnings. The ACMA monitors and reports annually on significant performance matters for carriers and carriage service providers under Part 5. The Information Commissioner has functions to monitor compliance with Division 5, including access to records, and may report to the Minister under section 309. The Commonwealth has immunity from actions for loss, damage or injury resulting from permitted use or disclosure under Division 3B under section 295ZE. Contraventions of sections 142C(2) or (4), 143(2) or (5), 143B(1) or (2), 151ZA, 151ZB, 151ZF, 151ZG, 151ZH or 151ZI are civil penalty provisions. The Federal Court may make orders directing compliance, compensation for loss or damage, or any other appropriate order on application by the ACCC, a carrier or a carriage service provider under sections 143AA, 143C, 151ZE and 151ZHA. The Court may discharge or vary such orders. The ACCC may give remedial directions for contravention of IPND authorisation conditions under section 295S and issue formal warnings under section 295T. The ACMA may issue formal warnings for condition breaches under the IPND scheme under section 295T. The Information Commissioner monitors compliance with Part 13, including access to records under section 309. The ACCC monitors compliance with Part 8, including unsatisfactory compliance records under section 142BC. Subsections 128(1) and (2) are civil penalty provisions. Section 129 allows the ACMA to issue a formal warning to a participant who contravenes a registered industry standard. Subsections 139(1) and (2) are civil penalty provisions. The ACMA may direct a participant to comply with a registered code under section 121(1), issue a formal warning for contravention of a registered code under section 122(2) or registered industry standard under section 129(2), and remove a code or provision from the Register under section 122A. The Australian Competition Tribunal may affirm or set aside reviewable decisions on undertakings and has the powers of the ACCC under section 151ZM. Division 1 of Part IX of the Competition and Consumer Act 2010 does not apply to such reviews under section 151ZN. Reports or information given under functional separation undertakings or section 151ZA are not admissible in civil penalty or certain criminal proceedings against an individual under section 151ZJ.

The Act has effect subject to the Radiocommunications Act 1992, but Radiocommunications Act authorisations do not override prohibitions under this Act under section 12. Exceptions in Division 3 and Chapter 4 of the Telecommunications (Interception and Access) Act 1979 apply to the primary offences under the notes to sections 276 to 278. Disclosures in civil proceedings involving information kept solely for compliance with Part 5-1A of the Telecommunications (Interception and Access) Act 1979 are subject to specific limitations under sections 280(1B) to (1C) and 281(2) to (3). A disclosure or use permitted by Division 3 or covered by an exception in Division 4 is taken to be authorised by this Act for the purposes of the Privacy Act 1988 and any registered APP code under section 303B. Prosecution under Division 2 or 4 does not prevent civil proceedings or administrative action under the Privacy Act 1988 or a registered APP code under section 303C. The objects in section 3(1) are to be read with Parts XIB and XIC of the Competition and Consumer Act 2010. Chapter 2 of the Criminal Code, except Part 2.5, applies to all offences under section 11A. The ACMA scheme for integrated public number database authorisations interacts with the Privacy Act 1988 through required consultation with the Information Commissioner under section 295M. The AFP Minister may make arrangements with State or Territory Ministers for performance of emergency management functions under section 295ZD. If a disclosure or use would be prohibited by Division 2 apart from a Division 3 provision, or prohibited by a Division 4 provision apart from an exception in that provision, it is taken to be authorised by this Act for the purposes of the Privacy Act 1988 and registered APP codes under section 303B. Prosecution of an offence against Division 2 or 4 does not prevent civil proceedings or administrative action under the Privacy Act 1988 or a registered APP code, regardless of outcome, and does not affect section 49 of that Act under section 303C. The ACMA must consult the Information Commissioner, on privacy functions, and the Secretary of the Department administering the Privacy Act 1988 before making the IPND scheme and have regard to submissions under section 295M. Nothing in Subdivision A of Division 3 limits the generality of anything else in it or in Divisions 3 to 5 of Part 4-1 of the Telecommunications (Interception and Access) Act 1979 under section 294. Exceptions in this Division or Chapter 4 of the Telecommunications (Interception and Access) Act 1979 are part of the description of the offence for persuasive burden purposes under section 295. Record-keeping applies to notifications under Division 4 or 4A of Part 4-1 of the Telecommunications (Interception and Access) Act 1979 under section 305 and authorised disclosures under specified TIA Act provisions under section 306. Whether a thing promotes the long-term interests of end-users of carriage services or of services supplied by means of carriage services is determined in the same manner as it is determined for the purposes of Part XIC of the Competition and Consumer Act 2010 under section 142BA. Designated carriage service requires a declaration under section 152AL(3) of the Competition and Consumer Act 2010 under section 142BD(3). Eligible service has the same meaning as in section 152AL of the Competition and Consumer Act 2010 under section 142A. The ACCC must have regard to promotion of long-term interests of end-users when deciding class exemptions under section 143A(8) and accepting functional separation undertakings under section 151J. The Tribunal applies provisions of the Competition and Consumer Act 2010 to reviews under section 151ZM(7). Definitions of electricity supply body, gas supply body, rail corporation, sewerage services body, storm water drainage services body, water supply body and State or Territory road authority have the same meanings as in the National Broadband Network Companies Act 2011 under section 142A. Exemptions under section 143E(2) apply until the Minister's declaration under repealed section 48 of the National Broadband Network Companies Act 2011 under section 143E(2). National broadband network has the same meaning as in the National Broadband Network Companies Act 2011 under section 142A. Access agreement and variation agreement have the meanings in Part XIC of the Competition and Consumer Act 2010, with modifications treating references to declared services as references to eligible services and disregarding section 152BE(2) under section 151ZH(5). Provisions of the Competition and Consumer Act 2010 apply with modifications to Tribunal reviews under section 151ZM(7), including paragraphs 103(1)(a) and (b) and 108(b), while Division 1 of Part IX does not apply under section 151ZN and Division 2 of Part IX applies. Control of a company is determined under Schedule 1 to the Broadcasting Services Act 1992 with the section 152 associate definition substituted under section 154. Ancillary contraventions are addressed under Part 31 for pecuniary penalties. The core prohibitions in sections 142C and 143 interact directly, as undertakings modify their application and revocation affects ongoing supply obligations for new lines under section 151W(5) and (10). References to the Do Not Call Register Act 2006 for authorise under section 125B(5) and commencement timing under sections 125A(1) and 125B(4). Privacy Act 1988 and Australian Privacy Principles in consultation requirements under section 134, and section 116A that industry codes and standards do not derogate from requirements under the Privacy Act 1988 or registered APP code. Competition and Consumer Act 2010 Part XIC for long-term interests of end-users under section 142BA, eligible service definition under section 142A, and access or variation agreements under section 151ZH. Legislation Act 2003 for specification by class under section 136E(2) and instrument rules. National Broadband Network Companies Act 2011 for NBN definition and repealed section 48 declaration under section 143E. Broadcasting Services Act 1992 Part 9 for content services under section 116. Copyright Act 1968 Division 2AA of Part V for codes under section 115(4). Australian Communications and Media Authority Act 2005 section 60 for charges under section 136(3). Telecommunications (Interception and Access) Act 1979 Part 5-1A for data retention carve-outs under section 280. Criminal Code for perjury-related exceptions under section 151ZJ. An industry code or standard has no effect to the extent that compliance is likely to require customer equipment, customer cabling, a telecommunications network or a facility to have particular design features or meet particular performance requirements, or to the extent that it deals with the content of content services under section 115, subject to exceptions for indirect effects on billing accuracy, quality of standard telephone services or matters in paragraph 113(3)(f) or (t), and for codes made for the purposes of Division 2AA of Part V of the Copyright Act 1968. An industry code or standard dealing with a matter relating to a content service has no effect to the extent that the matter is dealt with by a code registered or standard determined under Part 9 of the Broadcasting Services Act 1992 under section 116. Neither an industry code nor an industry standard derogates from a requirement made by or under the Privacy Act 1988 or a registered APP code under section 116A. The ACMA must consult the Information Commissioner before requesting development of a code that could reasonably be expected to deal with Australian Privacy Principles or related provisions under section 118, and before determining, varying or revoking a standard dealing with a matter in paragraph 113(3)(f) under section 134. Standards under sections 125A and 125B relate to the Do Not Call Register Act 2006. Exemptions under sections 143E and 143G refer to the National Broadband Network Companies Act 2011. Civil proceedings do not lie against an internet service provider or electronic messaging service provider for anything done in connection with a registered industry code or industry standard dealing with procedures in paragraph 113(3)(q) under section 137. Part 6 does not apply to the extent that it would infringe the constitutional doctrine of implied freedom of political communication under section 138.

The designated commencement date is the date on which Schedule 2 to the Telecommunications Legislation Amendment (Competition and Consumer) Act 2020 commences under section 142A. This date triggers the application of sections 142C, 143AA, 143B, 143C and related provisions, and the commencement of accepted functional separation undertakings under section 151P. The Minister's declaration under repealed section 48 of the National Broadband Network Companies Act 2011, made 11 December 2020, marks the end of the period for certain real estate development project exemptions under section 143E(2). The Carrier Licence Conditions (Networks supplying Superfast Carriage Services to Residential Customers) Declaration 2014 continues to provide an exception under section 143(4) where in force. The 2012 exemption instruments for specified networks remain relevant for section 143G exemptions while in force. Section 143G provides that lines forming part of specified networks remain exempt where the relevant 2012 exemption instrument was in force at the start of the designated commencement date and remains in force. Section 143E provides exemptions for extensions during the period from the designated commencement date until the Minister's declaration under repealed section 48 of the National Broadband Network Companies Act 2011, made 11 December 2020. Section 144 provides that no Ministerial exemption instrument may be made on or after the designated commencement date, but existing instruments may be varied. Section 125B requires the ACMA to ensure an industry standard for the fax marketing industry remains in force after commencement of that section. The designated commencement date is defined as the commencement of Schedule 2 to the Telecommunications Legislation Amendment (Competition and Consumer) Act 2020 under section 142A, updating the regime for superfast carriage services on non-NBN networks to require wholesale-only supply or functional separation undertakings.

No court challenges or controversies are detailed in the source text.

Exceptions in Division 3 or Chapter 4 of the Telecommunications (Interception and Access) Act 1979 form part of the description of the primary offences, so the defendant bears the evidential burden of adducing or pointing to evidence suggesting a reasonable possibility that an exception applies under section 295. Civil proceeding disclosures of data retention information kept solely for Part 5-1A compliance are excluded from the general law-authorisation exception unless prescribed circumstances apply, the disclosure is to an enforcement agency or it occurs during the implementation phase under sections 280(1B) to (1C) and 281(2) to (3). A notice given by an emergency management person for integrated public number database disclosures may cover one or more disclosures or a series under an arrangement and is not a legislative instrument under section 285A(1A) and (1B). Records under sections 306 and 306A must include specific prescribed details, including content of items from the table in section 187AA(1) of the Telecommunications (Interception and Access) Act 1979 or a Ministerial determination. The integrated public number database scheme may be varied but not revoked under section 295L. The ACMA must consult the Information Commissioner and the Secretary of the Department administering the Privacy Act 1988 before making the scheme under section 295M. Annual reports on disclosures under section 308 and on the integrated public number database scheme under section 295U must be provided within strict timeframes and exclude confidential or prejudicial material. Subsections 155(1) to (3) and 155A(1) to (3) do not apply in determining expressions used in section 142C or sections 151ZF to 151ZH, to the extent they relate to a line to which section 142C applies, or other provisions relating to those sections under sections 155(4) and 155A(4). Subsections 156(1) and (2), 156A(1), 157(1) and 158A(1) do not apply in determining expressions used in sections 142C, 143 or sections 151ZF to 151ZH, to the extent they relate to lines to which those sections apply under sections 156(6), 156A(2), 157(2) and 158A(2). A functional separation undertaking in force provides an exception to wholesale supply obligations unless the ACCC has given a revocation notice under section 151W that has not taken effect and the line came into existence after the notice under sections 142C(3) and 143(3). Exemptions under section 143A are subject to conditions including availability of designated carriage service and non-discrimination. Compliance is a civil penalty provision. Listed Optus companies are specifically defined for the purposes of section 156(4) under section 156(7). Location information about a mobile handset or device is taken to relate to the responsible customer's affairs under section 275A. The burden of proof for exceptions in Division 3 of Part 13 is evidential on the defendant under section 295. Records of authorised disclosures must be made within 5 days under section 306. The ACMA scheme for integrated public number database authorisations must be made by legislative instrument and may be varied but not revoked under section 295L(1). Failure to notify under section 151Y does not affect the validity of any revocation under section 151W. After a revocation notice, the undertaking does not apply to local access line services supplied using a local access line that came into existence after the notice, with definitions of retail business unit and wholesale business unit in section 142A modified accordingly under section 151W(5) and (10). The ACCC may vary an undertaking after a revocation notice but only to address the matters constituting the grounds for revocation under section 151Z. Serial undertakings that are materially similar to a previously rejected undertaking may be refused consideration under section 151H. The 3-month decision-making period under sections 151F and 151T is reset if the Tribunal sets aside a rejection under section 151ZM(3) and (4). Self-incrimination protections under section 151ZJ apply only to individuals and exclude Criminal Code offences relating to the report. The register under section 151ZC is not a legislative instrument. Deemed networks and lines apply for alterations, upgrades, extensions, real estate stages and close proximity under sections 156 to 158A. A person is in a position to exercise control of a network or line if they own it, control its operation, service selection or supply, or control the owning company under sections 155 to 155A, with employee and multiple controller provisions. Associate is defined in section 152, including partners, trustees, persons acting in concert or under direction, related bodies corporate. Unsatisfactory compliance record is determined having regard only to breaches of functional separation undertakings while in force and contraventions of the listed sections under section 142BC. A scheme does not include a functional separation undertaking under section 151ZI(4). If a cost from a non-arm's length transaction exceeds a reasonable amount, only the reasonable amount counts for Division 6A under section 136D. A direction under section 121 or formal warning under section 122 may be given in respect of a replacement code during the period it is registered. The ACMA need not retain codes or provisions removed under section 122A in the Register under section 136(1A). Publication of submissions under section 119B is subject to rules for confidential, commercially sensitive or defamatory material. Failure to comply with the express provision requirement under section 139(1) does not affect validity of the contract, arrangement or understanding under section 139(4). An industry standard is automatically revoked on registration of a replacing code under section 131(2). Reimbursement under section 136C is limited to the lesser of total itemised costs or the estimate accompanying the section 136B application. Class exemptions under section 143A are subject to customer number limits, 2,000 or higher prescribed up to 12,000, and associated group aggregation, with conditions including non-discrimination. Revocation of a functional separation undertaking under section 151W limits application to new lines post-revocation. Self-incrimination does not excuse compliance with reporting under functional separation undertakings or section 151ZA directions, but derivative use immunity applies for individuals under section 151ZJ, except specific Criminal Code offences. Non-arm's length transaction costs are taken as the reasonable arm's length amount under section 136D. Standards dealing with privacy under paragraph 113(3)(f) are subject to the design feature limit under section 126 unless community benefits outweigh costs. Codes and standards have no effect to the extent they deal with content of content services under section 116 or require design features or performance requirements under section 115, with exceptions for billing accuracy, quality of standard telephone services, privacy, unsolicited commercial electronic messages, optical fibre lines and Copyright Act codes.

Carriers, carriage service providers and number-database operators must ensure network units are not used to supply carriage services to the public without a carrier licence or nominated carrier declaration under Part 3. Eligible persons must limit disclosure or use of protected information to the performance of duties under section 279 or other permitted exceptions, and must not further disclose or use information received under an exception except for the original purpose under sections 296 to 302A. For integrated public number database disclosures for directory or research purposes, obtain and hold an authorisation under the ACMA scheme and comply with its conditions under sections 285(1A) and 295A to 295U. For emergency warning disclosures, ensure written notice from the emergency management person and take reasonable steps to avoid adverse effects on network operation under sections 285A and 295X. Make and retain records of authorised disclosures within five days, including all prescribed details, and retain them for three years under sections 305 to 306A. Provide annual reports to the ACMA on disclosures within two months after the end of the financial year under section 308. Comply with any remedial directions or formal warnings issued by the ACMA. Consult the integrated public number database scheme, Ministerial criteria and conditions, and relevant legislative instruments before making or relying on disclosures. Ensure all disclosures involving data retention information account for the civil proceeding limitations in sections 280(1B) to (1C) and 281(2) to (3). Controllers of local access lines or networks must assess whether lines or networks are covered by sections 142C or 143, including via deeming rules in sections 156 to 158A, and either supply eligible services only to carriers or service providers, obtain a functional separation undertaking accepted by the ACCC, or qualify for an exemption under sections 143A to 151. Persons giving undertakings must maintain arm's length separation, publish terms, supply on published terms, and comply with non-disclosure and non-discrimination obligations. Eligible persons, number-database persons and emergency call persons must not disclose or use protected information except under an exception in Division 3, performance of duties under section 279, authorisation by or under law including warrants under section 280, witness disclosures under section 281, assistance to regulators or ombudsman under section 284, IPND uses under section 285, emergency warnings under section 285A, emergency service calls under section 286, threats to life or health under section 287, maritime purposes under section 288, knowledge or consent under section 289, implicit consent under section 290, business needs of other carriers or providers under section 291, location-dependent services under section 291A, or prescribed circumstances under section 292. Authorised recipients must limit further use or disclosure to the original purpose under sections 296 to 302A. Carriers, carriage service providers and number-database operators must retain TIA Act authorisation notifications for three years under section 305 and make and retain records of authorised disclosures within five days for three years with required particulars under section 306. Emergency management persons must take reasonable steps to avoid adverse network effects under section 295X and comply with reporting obligations under sections 295ZB to 295ZC. The ACMA must operate the IPND authorisation scheme in accordance with the legislative instrument requirements under sections 295A to 295U. All persons must ensure compliance with civil penalty provisions to avoid Federal Court orders for compliance, compensation or disposal of assets. For telemarketing and fax marketing participants, ensure calls and faxes comply with the hours or days restrictions, information requirements, termination events, calling line identification, total number limits and opt-out information as set out in the standards determined under sections 125A(1) and 125B(1). For bodies or associations developing or varying consumer-related industry codes, follow pre-submission consultation with industry participants and the public, at least 30-day periods, publish drafts and submissions on the website, subject to confidential, commercially sensitive or defamatory material rules under section 119B, consult the ACCC, Telecommunications Industry Ombudsman, except for telemarketing or fax marketing codes, consumer bodies and Information Commissioner, for privacy matters, and submit to the ACMA under sections 117 and 119A. Apply for a section 136B declaration with estimate and breakdown, ensure the process adequately represents retail customer interests, incur only refundable costs, excluding those specified by ACMA determination, obtain approved auditor declarations, and submit itemised statements and process descriptions for reimbursement under section 136C. For controllers of local access lines in non-NBN networks used or proposed for superfast carriage services to residential customers, supply eligible services only to carriers or service providers under sections 142C(2) and 143(2), or obtain a functional separation undertaking accepted by the ACCC, maintaining separate business units, arm's length dealings, publication of terms, information protection, compliance reports and plans, with expiry not more than 10 years, or elect to be bound by a class exemption under section 143A and comply with all conditions, including designated carriage service availability to wholesale customers and non-discrimination in supply, development and planning activities, or qualify for a specific exemption under sections 143E to 151, for example, close proximity lines, specified networks, business networks with minor residential use, sole-use by authorities. Publish offers and statements of differences from access agreements within five business days under section 151ZH. For eligible persons under Part 13, disclose or use information only under an exception in Division 3, for example, performance of duties, law authorisation, ACMA, eSafety, ACCC, TIO assistance, integrated public number database uses, threat to life or health, maritime, consent, business needs, location dependent services, prescribed circumstances, ensure secondary recipients use or disclose only for the authorised purpose, and maintain three-year records of authorised disclosures with required particulars. Consult the Information Commissioner before actions relating to Australian Privacy Principles or registered APP codes. Maintain records of control and associate relationships for Part 8 purposes. Submit a prior section 136B declaration, code under section 117 or 119A, itemised costs, claim, approved auditor declaration and process description to the ACMA for reimbursement under section 136C, using an approved auditor and complying with approved auditing requirements determined by legislative instrument. Include an express compliance provision in any contract, arrangement or understanding for telemarketing or fax marketing activities under section 139(1). For local access lines, elect to be bound by a class exemption under section 143A where customer numbers are within thresholds, make designated carriage services available to wholesale customers and comply with non-discrimination conditions. Give a standard or joint functional separation undertaking to the ACCC meeting all requirements of sections 151A or 151C, including separate business units, publication of terms, information protection, same customer interface, fundamental provisions, compliance reports and plans, and pay any determined fees. Comply with in-force undertakings under section 151ZD, notify changes in control under section 151ZB and provide reports or information under section 151ZA directions. Publish offers and statements of differences under section 151ZH. Avoid schemes with the sole or dominant purpose of avoiding Part 8 provisions under section 151ZI. Maintain confidentiality of communications, permit only authorised disclosures and restrict secondary use under section 270. Apply for judicial enforcement orders or Tribunal review where appropriate. Check the ACCC website for lists of persons bound by exemption determinations under section 143D and the Register of functional separation undertakings under section 151ZC. Ensure associated group customer counts comply with section 143A(10) rules.