Telecommunications (Deemed Functional Separation Undertaking) Determination 2020

The Determination builds on concepts defined in the Telecommunications Act and in its own definitions (s 4). Key concepts and how the instrument uses them follow.

• Deemed standard functional separation undertaking. Section 6 is the gateway: once a qualifying corporation elects in writing to the ACCC and other conditions are met, the Act treats the corporation as having given a standard functional separation undertaking in the precise terms of s 7. This is a legal fiction with practical consequences: rather than negotiating an individual undertaking, the corporation is bound by the Determination’s template.

• Wholesale business unit and retail business unit. Both terms are defined in the Act (s 4 refers to the Act’s s 142A for their meanings). The Determination prescribes which operational activities must be performed by each unit (s 7(1)(b)-(c)): the wholesale unit is assigned network planning, marketing and sale of local access line services to wholesale customers, order processing, fault handling, wholesale billing and wholesale pricing and responses to wholesale complaints (s 7(1)(b)(i)-(ix)); the retail unit must handle retail marketing, value-added service supply, taking service orders (for activation by wholesale), retail billing and retail pricing and retail complaint handling (s 7(1)(c)(i)-(vi)). The Determination therefore imposes functional clarity on who performs which activity.

• Protected information. The Determination defines protected information expansively (s 4): it includes confidential or commercially sensitive information relating to a wholesale customer or customer of a wholesale customer that the wholesale unit obtains in supplying services (s 4(a)); confidential or commercially sensitive information the retail unit obtains from carriers or carriage service providers, other than wholesale business unit information, for the purpose of acquiring services (s 4(b)); and information of the kinds listed in subsections 7(8)-7(11) (s 4(c)). The rules in s 7(8)-(11) then operationalise the non-disclosure and non-use obligations.

• Arm’s length functional separation. The Determination requires not merely nominal separation but arm’s length separation implemented through physical segregation of workers, management and remuneration policies tied to the particular business unit, separate planning and investment approval processes, system access restrictions and documentation, and training and transfer controls (s 7(2)-(5)). Shared corporate services are permitted (eg finance, HR, IT), but they must be subject to measures preventing divulging protected information between units (s 7(4)(c)).

• Transparency and comparability of pricing. The Determination requires the corporation to document terms and conditions on which the wholesale unit supplies local access line services to its retail unit (s 7(3)), and to prepare the documentation to allow direct comparison between wholesale price-related terms and the retail unit’s published retail pricing offers (s 7(3A)). The documentation must include a table formatted like the retail pricing table and list all tariffs and short‑ and long‑term discounts, credits and rebates, including names, amounts, conditions and offer periods (s 7(3A)(a)-(b)). The corporation must promptly update these documents whenever price-related terms change for either side (s 7(3B), (6B)) and publish wholesale offers on its website (s 7(6), (6A), (6B)).

• Customer interface parity. The Determination mandates that the same customer interface be used by the wholesale business unit for dealings with external wholesale customers and for dealings with the retail business unit (s 7(12)). The Determination clarifies that this includes complaints escalation systems and requires equivalent functionality and access to the same set of local access line services for wholesale customers and the retail unit (s 7(12A)).

• Reporting and governance instruments. The Determination requires a written compliance plan to be prepared and lodged with the ACCC within three months of election (s 7(15)(a)), and requires annual written reports to the ACCC by 31 July each year setting out customer numbers, a statement of compliance with the Determination (including where applicable sections 151ZF and 151ZG of the Act), details of non‑compliance and complaints from wholesale customers asserting non‑compliance, and actions taken in response (s 7(14)(a)-(e)). Each annual report must include copies of the wholesale terms and published wholesale standard form agreements in effect during the reporting period (s 7(14A)).

• Specified carrier information exceptions. The Determination recognises that certain information supplied by carriers or carriage service providers to the retail unit may legitimately be disclosed to the wholesale unit for specific transactional purposes. Section 9 defines what kinds of carrier information are “specified information” for the purpose of s 7(10)-(11). These include retail‑to‑retail disclosures of wholesale pricing terms, network coverage information used to obtain equivalent wholesale offers (s 9(2)(a)-(c)), and operational resilience, infrastructure access requests and regulatory compliance guidance related to continuity or resilience when disclosed for appropriate purposes (s 9(3)(a)-(c)).

These concepts interlock: the arm’s length and access restrictions are intended to prevent misuse of protected information while the documentation, publication and customer interface parity provisions are designed to promote transparent wholesale access and comparability between what a retail unit charges its customers and what the wholesale business may charge the retail unit. The Determination makes certain of these obligations “fundamental” (s 8), a label that imports higher legal significance under the Act.

The Determination directly affects several distinct groups. Primary effects are on the corporation that elects to be bound (the electing corporation), its retail and wholesale business units, the corporation’s workforce, its wholesale customers and prospective wholesale customers, and the ACCC as regulator.

• Electing corporation. Section 6 conditions the deemed undertaking on a corporation that supplies superfast carriage services to no more than 50,000 residential customers using local access lines and that is in a position to exercise control of those lines. The corporation must elect by written notice to the ACCC to be bound (s 6(b)), prepare and give the ACCC a compliance plan within three months (s 7(15)), submit annual compliance reports and supporting documentation (s 7(14), (14A)), update published wholesale terms promptly (s 7(6B)) and notify the ACCC within 14 days if it exceeds the customer threshold (s 7(16)). The corporation bears the operational costs of implementing separation, training, access restrictions, and ongoing compliance reporting.

• Wholesale customers and prospective wholesale customers. They gain statutory entitlements of access to local access line services from the wholesale business unit on published terms and conditions, and, if they request, must be supplied on the terms published at the time of request (s 7(7)). Wholesale customers are also to be promptly notified in writing each time the corporation updates published wholesale terms (s 7(6C)). Wholesale customers’ confidential information provided to the wholesale business unit is protected from disclosure to the retail unit (s 7(8), (9)).

• Retail customers. The retail business unit continues to market, sell and bill retail customers and supply value-added services (s 7(1)(c)). Retail customers are affected insofar as the retail pricing and non-price terms must be comparable and publicly documentable against wholesale pricing, because the corporation must prepare documentation that allows direct comparison of price‑related terms between wholesale arrangements and the retail unit’s published retail pricing offers (s 7(3A)). Retail customers’ data and certain retail‑obtained carrier information may not be disclosable to the wholesale unit except as specified in s 9 (s 7(10), (11), s 9).

• Workers. The Determination specifies worker-related controls. Workers who perform duties in the wholesale business unit must be different from those in the retail unit, save for allowed shared corporate services workers under conditions (s 7(4)). The Determination requires measures to physically separate workers in offices so they cannot access, engage in, see or overhear the other unit’s work (s 7(2)(a)(i)-(ii)), and requires that remuneration tied to corporation performance be connected only to the worker’s business unit (s 7(2)(b)). Transfers between units are permitted but must be documented and workers made aware of obligations (s 7(4)(d)).

• Carriers and carriage service providers. These parties are referenced because information they provide to the retail business unit is generally protected from disclosure to the wholesale business unit unless it falls within the kinds of information specified in s 9, which are narrowly described and tied to purposes such as obtaining equivalent wholesale offers or maintaining network resilience (s 9(2)-(3)).

• ACCC. The ACCC is the recipient of the corporation’s election and of required plans and annual reports (s 6(b), s 7(15), s 7(14)). It has the power to revoke an election under subsection 151B(7) of the Act, a power whose exercise removes the effect of the deemed undertaking (s 6(d)). The ACCC is therefore the regulator that monitors compliance and can act on notifications and annual reports.

• Prospective buyers, competitors and market analysts. The Determination’s requirements to publish wholesale terms and to prepare transparency tables that list tariffs and discounts (s 7(3A), (6), (6A)) will produce public data on a corporation’s wholesale pricing and discounts, affecting visibility into the corporation’s commercial arrangements.

Who pays, who decides, who is monitored: the electing corporation pays the compliance and implementation costs; the electing corporation decides internally on structuring separation, but must file a written election with the ACCC (s 6(b)) and give the ACCC plans and reports (s 7(15), (14)); and the ACCC is the decision‑maker for revocation and the monitoring recipient for compliance documents (s 6(d), s 7(14)). Wholesale customers gain a statutory right to be supplied on published terms when requested (s 7(7)), and the corporation must notify wholesale customers of updates in writing (s 7(6C)).

The Determination also establishes the scope of permitted disclosures between business units and sets out the carve-outs for specified carrier information (s 7(10)-(11), s 9). Those carve-outs limit the breadth of the non‑disclosure regime and circumscribe where the retail unit may share information with the wholesale unit for network resilience or to obtain matching wholesale offers (s 9(2)-(3)). The practical upshot is that the instrument imposes duties across corporate governance, IT access control, procurement and customer-facing processes, and it imposes recurring reporting burdens that are directed at the ACCC.

The Determination sets out a catalogue of duties that the electing corporation must satisfy and several rights for wholesale customers. The following are the principal, concrete duties and the direct rights that flow from the instrument.

Key duties of the electing corporation

• Maintain separate wholesale and retail business units and separate branding for each (s 7(1)). The Determination requires clearly allocated functional responsibilities for each unit. The wholesale unit must perform network planning with equal opportunity for input from the retail unit and other wholesale customers; market, sell and supply local access line services to wholesale customers; handle orders, provisioning, churn and portability; detect, handle and rectify line faults; bill wholesale customers; set wholesale prices and non-price terms; and respond to network and system complaints from the retail unit and other wholesale customers (s 7(1)(b)(i)-(ix)). The retail unit’s responsibilities include retail marketing and sales, providing value‑added services, taking service orders for activation by wholesale, billing retail customers, and setting retail prices and terms (s 7(1)(c)).

• Maintain arm’s length functional separation (s 7(2)). This includes: physical separation of workers (s 7(2)(a)); ensuring remuneration related to corporation performance is only related to the particular business unit in which the worker is based (s 7(2)(b)); and separate business planning and investment approval processes (s 7(2)(c)).

• Implement measures to ensure worker separation in practice (s 7(4)). Examples include management direction constraints (s 7(4)(a)), training obligations on all workers about the Determination (s 7(4)(b)), controlled use of shared corporate services workers subject to non‑disclosure measures (s 7(4)(c)), and documented processes for transfers between units (s 7(4)(d)).

• Implement access restrictions to operational support systems, business systems, communications systems and accounts to prevent sharing of protected information between units (s 7(5)).

• Document the terms and conditions (price-related and other) on which the wholesale unit supplies local access line services to the retail unit (s 7(3)). The corporation must prepare this documentation in a manner that allows price-related terms to be directly compared with the retail unit’s published retail pricing offers, including a table replicating the retail pricing table and listing all tariffs and all short‑term and long‑term discount, credit and rebate arrangements with details (s 7(3A)). The corporation must promptly update this documentation each time price-related terms change for either side (s 7(3B)).

• Publish on its website the wholesale terms and conditions (price and other) for supply to the retail unit and to wholesale customers, including all discounts, credits and rebates (s 7(6), (6A)). The corporation must promptly update the published terms whenever they change (s 7(6B)) and promptly notify existing wholesale customers in writing each time the corporation updates published wholesale terms (s 7(6C)).

• Supply a local access line service to a wholesale customer or prospective wholesale customer on request and do so on the terms and conditions that were published on the corporation’s website at the time the request was made (s 7(7)).

• Ensure that information provided to the wholesale unit by wholesale customers is not disclosed to the retail unit and that the retail unit does not obtain, access or use such information (s 7(8)-(9)).

• Ensure that information provided to the retail unit by a carrier or carriage service provider (other than the kinds specified in s 9) is not disclosed to the wholesale unit and that the wholesale unit does not obtain, access or use such information (s 7(10)-(11)).

• Use the same customer interface for dealings between the wholesale unit and wholesale customers as the wholesale unit uses with the retail unit, ensuring the interface provides the same functionality and access to the same set of local access line services (s 7(12), (12A)).

• Comply with any relevant requirements specified in determinations made under subsections 151A(14) and 151A(15) of the Act (s 7(13)).

• Prepare and provide to the ACCC a written plan within three months of giving the election that sets out actions to ensure compliance with subsections 7(1) to 7(13) (s 7(15)(a)), and give the ACCC any variations to the plan within seven days of making them (s 7(15)(b)).

• Give the ACCC an annual written report by 31 July each year that states the total number of residential customers served using controlled local access lines as at 30 June, a statement of compliance with subsections 7(1) to 7(13) (and, where applicable, sections 151ZF and 151ZG of the Act), details of non‑compliance and corrective action, complaints from wholesale customers alleging non‑compliance, and the action taken in response (s 7(14)(a)-(e)). Each annual report must include copies of the documentation of the wholesale terms to the retail unit and published wholesale standard forms of agreement in effect during the reporting period (s 7(14A)).

• Notify the ACCC in writing within 14 days if the corporation exceeds the customer threshold described in s 6(a) (s 7(16)).

Key rights and entitlements

• Right to elect. A corporation meeting the threshold is given the mechanism to elect to be bound by the Determination by written notice to the ACCC (s 6(b)). That election triggers the deemed undertaking if not cancelled or revoked (s 6(c)-(g)).

• Wholesale customer entitlement to supply on published terms. If requested by a wholesale customer or prospective wholesale customer, the corporation must supply the local access line service on the terms and conditions that were published on the corporation’s website at the time of the request (s 7(7)). This provides a concrete right to obtain service on the posted terms.

• Right to notification of changes. Wholesale customers must be promptly notified in writing each time the corporation updates its published wholesale terms and conditions (s 7(6C)). This is a procedural protection to ensure wholesale customers are informed of changes.

• Right to parity in customer interface functionality. Wholesale customers are entitled to a customer interface that provides the same functionality as the interface the wholesale unit uses with the retail business unit and access to the same set of local access line services (s 7(12A)).

Procedural and regulatory dimensions

• The ACCC is the gatekeeper and monitor: it must receive the corporation’s election and the compliance plan and annual reports, and has the power to revoke the election under the Act (s 6(b), s 7(15), s 7(14), s 6(d)). The Determination, by linking to subsections 151A(14)-(15) and to sections 151ZF and 151ZG of the Act, signals that compliance and enforcement mechanisms are to be exercised through the Telecommunications Act framework (s 7(13), s 7(14)).

Taken together, these duties prescribe operational separation, disclosure and reporting regimes intended to frame how small providers structure wholesale access, how they document and publish pricing and discounts, and how they protect customer and carrier information. The corporation must balance transparency obligations with measures to prevent improper information flows, and it must embed these arrangements in governance documents and training to meet its reporting obligations.

The Determination itself does not set out specific monetary penalties or administrative fines. Instead, it operates by creating a deemed standard functional separation undertaking under the Telecommunications Act 1997 and by referencing enforcement-relevant provisions of that Act. The Determination therefore relies on the Act’s enforcement architecture and the ACCC’s regulatory powers rather than prescribing standalone sanctions within the Determination text.

Mechanisms visible in the Determination

• Deeming and revocation. The Determination makes the Act operate as if the corporation had given an undertaking of the standard terms in s 7, and that undertaking is treated as accepted by the ACCC and in force from the election date (s 6(e)-(g)). The ACCC has the power under subsection 151B(7) of the Act to revoke an election, and s 6(d) explicitly ties the continued effect of the deemed undertaking to there being no such revocation. The ACCC’s revocation power is therefore a primary instrument of regulatory control over compliance.

• Fundamental provisions. The Determination designates subsections 7(1) to 7(12) as “fundamental provisions” (s 8). While the Determination itself does not state the consequences of breaching a “fundamental provision”, the term signals legal salience under the Telecommunications Act and places those provisions at the core of compliance reporting in s 7(14). The implication is that non‑compliance with fundamental provisions will be of particular interest to the ACCC and may attract more serious regulatory responses under the Act.

• Reporting obligations as enforcement inputs. The Determination imposes an annual reporting obligation to the ACCC that specifically requires disclosure of compliance or otherwise with subsections 7(1) to 7(13) and, where applicable, sections 151ZF and 151ZG of the Act (s 7(14)(b)). The reports must include details and reasons for any non‑compliance and the action taken to address non‑compliance (s 7(14)(c)), and must include copies of the documented terms and published wholesale standard forms of agreement (s 7(14A)). These reporting and documentary obligations create a factual record the ACCC can use to assess compliance and to consider enforcement action under the Act.

• Compliance plans and plan variations. The corporation must prepare and provide to the ACCC a written plan within three months of election setting out actions to ensure compliance with s 7(1) to (13) (s 7(15)(a)) and must give the ACCC any variation of the plan within seven days (s 7(15)(b)). These plans enable the ACCC to review intended compliance structures ex ante and to follow up on implementation, providing a forward-looking control mechanism.

Presumed enforcement instruments (by reference to the Act)

• The Determination expressly links to other parts of the Telecommunications Act (eg s 151A, subsections 151A(14) and (15), and sections 151ZF and 151ZG) and requires the corporation to comply with any determinations made under subsections 151A(14) and (15) (s 7(13)). Enforcement mechanisms and any statutory penalties, injunctive relief, or administrative remedies would therefore be found in the Telecommunications Act and related regulatory instruments rather than in the Determination itself. The Determination’s references to those Act provisions direct attention to the wider statutory enforcement framework the ACCC may use.

• The ACCC’s revocation power under s 151B(7) of the Act (referred to in s 6(d)) is a direct enforcement tool available to the ACCC if it considers the conditions for the election are not being met or if statutory grounds for revocation exist under the Act.

What the Determination does not specify

• No specific fines, penalties or criminal offences are set out in the Determination text. It does not quantify sanctions or provide a schedule of administrative penalties. Instead it creates compliance and reporting obligations and refers to enforcement under the Act. Consequently, assessing the precise legal consequences of a breach requires reference to the Telecommunications Act provisions the Determination invokes (sections 151A, 151B, 151ZF, 151ZG and any determinations made under subsections 151A(14) and (15)).

Implications for regulated entities

• The Determination imposes recurring documentation, publication and reporting duties that, if not complied with, will surface in the ACCC’s review of the annual reports and compliance plans. The ACCC’s ability to revoke the deemed undertaking is the immediate administrative lever. Any civil or administrative enforcement action, including penalties, will depend on statutory powers in the Act and the ACCC’s exercise of those powers in response to documented or observed non‑compliance.

In summary, enforcement is regime-based and anchored in the Telecommunications Act rather than in the Determination. The Determination creates reporting and documentary inputs that enable the ACCC to monitor and, where appropriate, act under the Act’s enforcement tools, including revocation of the deemed undertaking and any other powers available to it under the Telecommunications Act 1997.

The Determination is explicitly made under subsections 151A(13) and 151B(1) of the Telecommunications Act 1997 (s 3). It therefore operates as an instrument within the statutory framework established by the Act and must be read and enforced in that statutory context. The Determination’s provisions reference and import other areas of the Act and enable future determinations under the Act to augment or modify obligations. The Determination also interacts procedurally with general legislative interpretation rules.

Direct references to the Telecommunications Act

• Foundational authority and deeming. The Determination is made under s 151A(13) and s 151B(1) of the Telecommunications Act 1997 (s 3). Section 6 uses these powers to make the Act have effect as if the corporation had given a standard functional separation undertaking under s 151A (s 6(e)). That means legal consequences, remedies and enforcement mechanisms in the Act apply to the deemed undertaking.

• Definitions and cross-references. The Determination draws defined terms from the Act: corporation, customer interface, local access line, local access line service, retail/wholesale business unit, wholesale customer, worker and superfast carriage service are defined in the Act (s 4 and accompanying note). It refers to section 155A of the Act for what it means to be “in a position to exercise control of a line” (s 6 note). It also references sections 151ZF and 151ZG of the Act in relation to reporting (s 7(14)(b)).

• Future determinations under the Act. Section 7(13) obliges the corporation to comply with any relevant requirements specified in determinations made under subsections 151A(14) and 151A(15) of the Act. This creates explicit potential for the ACCC or the responsible minister to issue additional or clarified requirements under the Act that the deemed undertaking will incorporate.

Procedural and interpretive law

• References to legislative instruments and interpretation. Section 5 prescribes that references to other legislative instruments are to be read as references to those instruments as in force from time to time (s 5(a)), and that references to other instruments and writings are to be read as in force or in existence from time to time (s 5(b)). The Determination’s notes point to the Acts Interpretation Act 1901 for Commonwealth Acts (s 5 note). These interpretive rules mean that the Determination must be read in light of subsequent changes to the statutory instruments it references where those changes are operative.

Interactions with confidentiality, contractual and competition frameworks

• Contractual terms and commercial confidentiality. The Determination requires documention and website publication of wholesale price terms, including all discounts and rebates (s 7(3), (3A), (6), (6A)). That requirement interacts with a corporation’s existing contractual confidentiality obligations to wholesale customers and suppliers. The Determination creates a statutory obligation to publish certain details; where contractual confidentiality conflicts exist, resolution would require legal analysis of the priority between statutory obligations and contract terms. The Determination itself does not override private contracts except by imposing the statutory publication duty; any legal resolution of conflict is governed by statutory and common law principles outside the Determination text.

• Information sharing and specified carrier information. The Determination restricts disclosure between the retail and wholesale units (s 7(8)-(11)). Section 9 specifies narrow categories of carrier/carriage service provider information that may be shared where the retail unit discloses them to the wholesale unit for the purpose of obtaining an equivalent wholesale offer, or for resilience or regulatory continuity purposes (s 9(2)-(3)). The Determination therefore creates tailored exceptions to the non-disclosure approach for operational and procurement purposes.

• Interface with privacy and data protection law. The Determination restricts disclosure of “confidential or commercially sensitive information” obtained from wholesale customers or carriers (s 4). While the Determination does not expressly reference privacy legislation, its information-handling obligations operate alongside privacy and data protection regimes; any compliance strategy will need to account for both sets of obligations, though the Determination itself does not impose privacy law obligations.

Regulatory hierarchy and enforcement

• ACCC oversight and revocation. The ACCC is the primary regulator for receipt of elections, plans and reports and for potential revocation of elections under s 151B(7) of the Act (s 6(b), (d), s 7(14), s 7(15)). Enforcement steps available to the ACCC in respect of a deemed undertaking will depend on the powers accorded by the Telecommunications Act and other statutory enforcement regimes; the Determination binds the electing corporation into that regime.

Temporal and amendment interactions

• Amendments and the Acts Interpretation Act. Section 5 instructs that references to other instruments are to be read as those instruments exist from time to time, and the endnotes list specific amendments to the Determination in 2021 and 2024. That means the Determination’s operative obligations have changed over time (for instance, additions in 2024 include 7(3A)-(3B), 7(6A)-(6C), 7(12A), and 7(14A)), and those edits must be read alongside the Act. The Determination’s endnotes provide the amendment history that demonstrates how the instrument has evolved.

In sum, the Determination is not a standalone regulatory regime. It imports definitions and enforcement machinery from the Telecommunications Act, anticipates additional determinations under the Act, and creates statutory duties that will interact with contractual confidentiality, data protection, procurement and competition frameworks. Compliance therefore requires reading the Determination alongside the Telecommunications Act and any other relevant statutory or contractual frameworks.

The Determination includes a short but explicit amendment record in its endnotes. The instrument was originally made in 2020 and has been amended subsequently in 2021 and 2024. The endnotes and amendment table show which provisions were altered or added; the changes materially increase transparency and reporting obligations and clarify information‑handling exceptions.

Key chronological points

• Original making and commencement. The Telecommunications (Deemed Functional Separation Undertaking) Determination 2020 was registered on 19 October 2020 and commenced on 20 October 2020 (Endnote 3).

• Amendment Determination 2021 (No. 1). Registered 3 March 2021 and commenced 4 March 2021. Endnote 3 records this amendment; Endnote 4 indicates that section 9 was replaced by the 2021 amendment (s 9 rs. F2021L00195). Thus, s 9 as currently printed reflects the 2021 replacement and sets out the kinds of carrier/carriage service provider information that may be shared (s 9(1)-(3)).

• Amendment Determination 2024 (No. 1). Registered 5 January 2024 and commenced 6 January 2024. Endnote 3. The 2024 amendment added several new subprovisions: s 7(3A)-(3B), s 7(6A)-(6C), s 7(12A), and s 7(14A) (see Endnote 4). These additions focus on comparative documentation, publication of discounts and rebates, notification requirements for wholesale customers when terms change, parity in customer interface functionality, and a requirement to include specific documents in the annual reports.

Specific changes recorded in the amendment history (Endnote 4)

• s 7(3A) and s 7(3B), added by the 2024 amendment, require the corporation to prepare documentation so wholesale price-related terms can be directly compared to retail pricing offers (s 7(3A)) and to promptly update that documentation whenever price-related terms change (s 7(3B)). This adds prescriptive detail about the format and contents of the internal wholesale-retail comparative documentation.

• s 7(6A)-(6C), added by the 2024 amendment, clarify that published wholesale terms must include all short-term or long-term discounts, credits or rebates (s 7(6A)), must be updated promptly when terms change (s 7(6B)), and that wholesale customers must be promptly notified in writing whenever the corporation updates its published wholesale terms (s 7(6C)).

• s 7(12A), added in 2024, clarifies that the customer interface referred to in s 7(12) must provide the same functionality to wholesale customers and the retail business unit and must provide access to the same set of local access line services (s 7(12A)).

• s 7(14A), added in 2024, requires that annual written reports include copies of the documented terms on which the wholesale business unit supplied local access line services to the retail business unit and each published wholesale standard form of agreement in effect during the reporting period (s 7(14A)).

• s 9 was replaced by the 2021 amendment and now specifies the kinds of carrier/carriage service provider information that are permitted to be disclosed by the retail business unit to the wholesale business unit for specific purposes (s 9(2)-(3)).

Other notes

• Section 2 was subject to a repeal by a provision of another Act (s.2 rep.s.48D LA), noted in the endnote table. That is editorial and does not change the operational obligations described in s 7 and s 9.

• The operator should read the Determination with its compilation date in mind: the compilation shows text as in force on 6 January 2024 and the endnotes summarise the amendment history up to that date.

Practical effect of amendments

• The 2024 amendments increase transparency and require greater disclosure and documentation: comparative pricing tables, explicit listing of discounts and rebates, prompt updates and written notification to wholesale customers. These changes raise the compliance burden on electing corporations in terms of documentation, website publishing, and customer notifications. They also create more robust evidentiary records for the ACCC to monitor compliance via the annual reports, which must include copies of the terms and published standard form agreements.

• The 2021 replacement of s 9 clarified the categories of carrier information that may be shared for particular purposes, refining the operational carve-outs to the non-disclosure rules in s 7(10)-(11).

For a corporation contemplating election, the amendment history indicates a legislative trajectory toward more detailed transparency and reporting requirements. The Determination as amended should be reviewed in its current form (including the 2024 inserts) when preparing compliance plans and reporting mechanisms.

The Determination itself contains no judicial or tribunal decisions, and its endnotes record no litigation referenced in the instrument. The text does not name any cases and does not summarise judicial interpretations. As a legislative instrument, it is a regulatory template rather than a source of adjudicated legal principles.

What the Determination tells us about litigation risk and enforcement proceedings

• No cases named. The instrument makes no reference to judicial interpretations, precedent, or enforcement actions. Consequently, there is no litigation history contained in the instrument that would indicate how courts or tribunals have interpreted its provisions.

• Enforcement pathway via the Telecommunications Act. The Determination operates by deeming a corporation to have given a standard functional separation undertaking under the Telecommunications Act (s 6). Any litigation or enforcement actions related to breaches of the deemed undertaking would therefore arise under the Telecommunications Act and the ACCC’s enforcement powers under that Act, rather than through any separate enforcement regime created by the Determination. The Determination’s reporting, plan and documentation requirements (s 7(15), s 7(14), s 7(14A)) create a record the ACCC could use in investigations or civil enforcement actions under the Act.

• No precedent-guided interpretation. Because there is no litigation record within this instrument, practical interpretation of ambiguous obligations (for example, what constitutes sufficient “physical separation” of workers or what is an adequate “measure” to prevent disclosure by shared workers) will rely on guidance from the ACCC, any determinations issued under subsections 151A(14) and (15) of the Act (s 7(13)), and, where necessary, judicial interpretation under the Telecommunications Act if disputes progress to enforcement litigation.

Practical implications for regulated entities

• Lack of judicial guidance increases regulatory uncertainty for some operational details. Terms such as “arm’s length functional separation”, “physical separation”, and “prompt” updates are prescriptive in intent but leave factual questions about sufficiency. In the absence of court decisions interpreting these phrases within the Determination, the ACCC’s administrative guidance, determinations under the Act, and the corporation’s own documented compliance measures and plans will be crucial evidence in any enforcement situation.

• Record-keeping and documentary evidence become critical. Because the Determination emphasises documentation and annual reporting (s 7(3), (3A), (14), (14A)), those documents will likely be central to any ACCC compliance review or court proceeding arising from alleged non-compliance. Entities should therefore maintain meticulous records demonstrating how they implemented separation, access controls, training, customer interface parity, and pricing transparency.

Conclusion on litigation history

• The Determination has no internal litigation history and contains no cited cases. Any disputes arising from the Determination will be litigated, if at all, under the Telecommunications Act and related statutory powers; thus, the operative enforcement and judicial history relevant to the Determination will depend on subsequent ACCC action and any legal challenges or court decisions interpreting the Act and the Determination in practice.

The Determination contains several specific features and phrasing that create practical pitfalls for an electing corporation. These are concrete drafting and operational issues that can lead to inadvertent non‑compliance if not anticipated and managed.

1. Deeming operation and timing of effect (s 6(e)-(g))

   • Gotcha: The Determination operates by deeming the Act to have effect as if the corporation had given and the ACCC had accepted the standard undertaking, and states that the undertaking had come into force when the election was given to the ACCC (s 6(g)). This means the corporation becomes bound from the election date, including duties such as documentation and publication. Corporations should not assume there is a grace period before obligations apply; the undertaking attaches from election unless ACCC revokes under subsection 151B(7) of the Act (s 6(d)).

2. Narrow threshold but immediate notification obligations (s 6(a), s 7(16))

   • Gotcha: The eligibility condition requires supply of superfast carriage services to no more than 50,000 residential customers using local access lines “where that corporation is in a position to exercise control of those local access lines” (s 6(a)). The Determination refers to s 155A of the Act for what control means. If the electing corporation’s customer count grows beyond 50,000, s 7(16) requires notification to the ACCC within 14 days. The electing corporation remains subject to the deemed undertaking until revoked; the Determination does not say the undertaking automatically ceases on exceeding the threshold but does require prompt notification. Corporations must monitor customer numbers and have systems to trigger the 14‑day notification.

3. Fundamental provisions designation (s 8)

   • Gotcha: Subsections 7(1)-7(12) are labelled “fundamental provisions” (s 8). While the Determination does not itself define the legal consequences of breaching a fundamental provision, placing obligations within this category signals elevated importance under the Act and that annual reporting must address compliance with these specific subsections (s 7(14)(b)). Non‑compliance reported against fundamental provisions may prompt regulatory action.

4. Publication and disclosure obligations may conflict with commercial confidentiality (s 7(3), (6), (6A))

   • Gotcha: The Determination requires publication on the corporation’s website of price-related and other terms for wholesale supply, including all short-term and long-term discounts, credits or rebates (s 7(6), (6A)). Corporations that have previously treated certain discount schemes or negotiated pricing with wholesale customers as confidential will face a statutory obligation to publish those terms. There is no carve‑out for commercially sensitive discount structures in the Determination text.

5. Prompt update obligations (s 7(3B), (6B))

   • Gotcha: The Determination requires prompt updates to both the internal comparative documentation and the published wholesale terms whenever price-related terms change (s 7(3B), (6B)). The word “promptly” is not defined; implementing corporations need policies that define the timeframe for “prompt” updates to meet the ACCC’s expectations and to manage notification obligations under s 7(6C).

6. Supply on published terms at time of request (s 7(7))

   • Gotcha: If a wholesale or prospective wholesale customer requests supply, the corporation must supply on the terms that were published at the time the request was made (s 7(7)). Corporations must ensure that website publication timestamps and version control of terms are robust and that internal order processing references the correct published terms to avoid disputes about which terms were in force at the time of the request.

7. Shared workers allowed but restricted (s 7(4)(c))

   • Gotcha: The Determination permits shared corporate services workers (finance, HR, legal, IT, marketing and other ancillary services) but requires measures to ensure they do not divulge protected information between units (s 7(4)(c)). This is operationally challenging: access controls, role-based permissions, and audit logs must be implemented and documented to show how protected information flows are prevented.

8. Customer interface parity (s 7(12), (12A))

   • Gotcha: The Determination requires that the same customer interface be used by the wholesale unit for dealings with wholesale customers and for dealings with the retail unit (s 7(12)) and that it provides the same functionality and access to the same local access line services (s 7(12A)). If the retail unit has a proprietary interface or customised retail-only features, the corporation must ensure the wholesale interface provides equivalent functionality or modify interfaces to achieve parity. Failure to provide parity could be seen as anti-competitive differentiation.

9. Documentation and comparative formatting requirement (s 7(3A))

   • Gotcha: The documentation must include a table of price related terms in the same form as the retail unit’s published table of retail pricing offers, and list each discount, credit or rebate with names, amounts, qualifying conditions and offer period (s 7(3A)(a)-(b)). Corporations may need to redesign retail pricing publications or maintain separate comparative tables to meet this requirement, and to ensure they can track and report historical discount arrangements as required for annual reporting (s 7(14A)).

10. Specified information carve-outs are narrow and purpose-bound (s 9)

    • Gotcha: Section 9 specifies limited categories of carrier information that may be disclosed from the retail unit to the wholesale unit for the purpose of obtaining an equivalent wholesale offer, or for resilience/continuity and regulatory compliance contexts (s 9(2)-(3)). These carve-outs are purpose-tethered; broad sharing of carrier information from retail to wholesale without a qualifying purpose will remain prohibited.

11. Timing of plan and plan variations (s 7(15))

    • Gotcha: The corporation must prepare and give the ACCC a written plan within three months of giving an election under s 6(b) (s 7(15)(a)). Any variations to the plan must be provided to the ACCC within 7 days (s 7(15)(b)). Corporations should plan their governance and internal approvals to meet these tight deadlines and to document plan changes promptly.

12. Annual reporting specifics and supporting documents (s 7(14), (14A))

    • Gotcha: The annual report must include not just a statement of compliance but also details of non-compliance, complaints alleging non-compliance by wholesale customers, and actions taken in response (s 7(14)(c)-(e)). The 2024 addition (s 7(14A)) requires that every written report include copies of the terms and published wholesale standard form agreements in effect during the reporting period. Corporations must maintain archived copies of published terms and forms for the reporting period so they can be attached to the annual report.

13. Interaction with future determinations (s 7(13))

    • Gotcha: The corporation must comply with any relevant requirements specified in determinations made under subsections 151A(14) and 151A(15) of the Act (s 7(13)). This means electing corporations may face additional requirements in future determinations which will be binding and should be monitored.

Addressing these gotchas requires detailed operational planning, IT and access control work, document versioning and archiving, staff training, and careful coordination between commercial, compliance and legal teams. The Determination’s language creates precise obligations around timing and form of documentation, publication, and notification; failure to operationalise controls to meet those technical details is the principal risk.

Complying with this Determination requires an integrated, documented operational and governance programme. Below is a practical, step‑by‑step compliance roadmap strictly grounded in the Determination’s provisions, and a list of specific controls and records to maintain.

Initial decision and election

1. Determine eligibility. Confirm the corporation supplies superfast carriage services to no more than 50,000 residential customers on local access lines that the corporation can control (s 6(a)). Use the Act’s definition and section 155A for what “in a position to exercise control” means.

2. Elect to be bound. If eligible and electing, give the ACCC written notice of election under s 6(b). Record the date of giving the election because the deemed undertaking is treated as coming into effect on that date (s 6(g)).

3. Prepare an internal project plan. Immediately upon election, commence the plan required by s 7(15)(a). The plan must be prepared and given to the ACCC within three months of election and must set out actions to ensure compliance with subsections 7(1) to 7(13). The plan should be practical and include timeline, responsibilities and milestones for implementing separation, access restrictions, documentation, website publication, customer interface parity and training.

Operational separation and governance

4. Create and distinguish business units. Formally maintain a single wholesale business unit and a single retail business unit with separate branding (s 7(1)). Document the legal and operational boundaries between units, including the functional responsibilities listed in s 7(1)(b) and (c).

5. Physical separation and workplace controls. Implement measures to ensure physical separation of workers in offices so that wholesale workers cannot access or overhear retail unit work and vice versa (s 7(2)(a)). If co-location is unavoidable, implement physical partitions, scheduling, or dedicated floors/rooms and access badges to achieve separation consistent with the Determination.

6. Remuneration and management chains. Ensure that any remuneration of workers that is related to the corporation’s performance is tied only to the worker’s business unit (s 7(2)(b)), and ensure wholesale and retail units have separate business planning and investment approval processes (s 7(2)(c)). Document management lines, job descriptions, KPIs and remuneration structures.

7. Shared corporate services controls. If using shared workers for finance, HR, legal, IT, marketing or ancillary services, implement strict role-based access controls, confidentiality agreements and monitored workflows to prevent the sharing of protected information between units (s 7(4)(c)). Maintain written measures describing how shared workers are prevented from disclosing protected information.

8. Transfer protocols and training. Develop documented transfer procedures for workers moving between units; ensure transferred workers are made aware of the Determination’s obligations and document the transfer in writing (s 7(4)(d)). Provide training to all workers about the Determination and how to handle protected information (s 7(4)(b)).

Information and systems controls

9. Access restrictions. Implement access restrictions on operational support systems, business systems, communications systems and accounts to prevent sharing protected information between retail and wholesale units (s 7(5)). Deploy technical controls (segregated accounts, least-privilege access, logging, monitoring, role-based permissions) and document policy and technical implementation.

10. Document protected information flows. Inventory categories of protected information as defined in s 4, and document where such information is stored, who has access, and protocols for permitted disclosures (refer to s 9 for specified permitted carrier information). Maintain audit logs to evidence access attempts and disclosures.

Pricing documentation and publication

11. Document wholesale-retail supply terms. Document the terms and conditions relating to price or method of ascertaining price and other terms on which the wholesale unit supplies the retail unit (s 7(3)). Prepare the documentation so that price-related terms can be directly compared with the retail unit’s published retail pricing offers by including a comparative table in the same form as the retail pricing table. The comparative table must list tariffs and all short-term and long-term discounts, credits and rebates, names of arrangements, amounts, qualifying conditions and offer periods (s 7(3A)(a)-(b)).

12. Update documentation promptly. Put processes in place to promptly update documentation each time price related terms change for either the wholesale supply to the retail unit or the retail unit’s offers to customers (s 7(3B)). Define “promptly” in an internal policy (eg a specific number of business days) and document the policy rationale.

13. Publish wholesale terms on website. Publish on the corporation’s website the price-related terms and other terms on which the wholesale business unit offers local access line services to both the retail unit and to wholesale customers (s 7(6)). Ensure the publication includes all discounts, credits and rebates that apply (s 7(6A)) and has version control and timestamps.

14. Update published terms and notify wholesale customers. Promptly update published wholesale terms each time there is a change (s 7(6B)). Implement a system to notify wholesale customers in writing each time the corporation updates its published wholesale terms (s 7(6C)). Maintain an audit trail of notifications and receipts.

Order fulfilment and customer interface

15. Supply on published terms. Ensure that systems, contracts and operational processes allow the wholesale unit to supply a local access line service to a wholesale customer or prospective wholesale customer on the terms published on the website at the time the request was made (s 7(7)). This requires consistent time-stamping and order-tracing processes so disputes about effective terms can be resolved.

16. Customer interface parity. Use the same customer interface for dealings between the wholesale unit and wholesale customers and for dealings between the wholesale unit and the retail unit (s 7(12)). Ensure the interface provides the same functionality to wholesale customers and to the retail unit and provides access to the same set of local access line services (s 7(12A)). Test and document functional parity periodically.

Information handling and permitted disclosures

17. Ensure non-disclosure of wholesale customer information. Implement policies and controls to prevent the disclosure of information provided to the wholesale unit by wholesale customers to the retail unit and to prevent the retail unit from obtaining, accessing or using it (s 7(8)-(9)). Maintain access logs to show compliance.

18. Respect carrier information exceptions. For information provided to the retail unit by a carrier or carriage service provider, ensure it is not disclosed to the wholesale unit unless it falls within the specified categories in s 9 and is disclosed for the specified purposes (s 7(10)-(11), s 9(2)-(3)). Document the business purpose when such specified information is shared and retain supporting correspondence or requests.

Reporting and governance submission

19. Prepare the compliance plan. Within three months of election, prepare and give the ACCC a written plan setting out the actions to ensure compliance with s 7(1)-(13) (s 7(15)(a)). Ensure the plan includes timelines, responsible officers, key controls and a risk register addressing technical, operational and governance risks. Submit any variations to the plan to the ACCC within seven days (s 7(15)(b)).

20. Annual reporting. By 31 July each year, give the ACCC a written report containing the total number of residential customers supplied using controlled local access lines as at 30 June; a statement of compliance with subsections 7(1) to 7(13) and where applicable sections 151ZF and 151ZG of the Act; details and reasons for any non‑compliance and actions taken; and details of any complaints received from wholesale customers alleging non‑compliance and the action taken in response (s 7(14)(a)-(e)). Include copies of the documentation of terms supplied to the retail unit and each published wholesale standard form of agreement in effect during the reporting period (s 7(14A)). Retain copies of published terms and archived versions of the website to support the annual report.

21. Monitor the 50,000 customer threshold. Implement routine monitoring of residential customer counts for the relevant local access lines and notify the ACCC within 14 days if the corporation exceeds the threshold in s 6(a) (s 7(16)).

Audit, review and continuous improvement

22. Internal audit and evidence retention. Conduct periodic internal audits to verify compliance with separation measures, access controls, publication processes, notification systems and training completion. Retain audit reports, logs, training records and archived website copies as evidence for ACCC review and annual reporting.

23. Engage legal and compliance advice. Because the Determination interacts with the Telecommunications Act and may be affected by subsequent determinations under subsections 151A(14) and (15) (s 7(13)), maintain a process to review regulatory updates and to update the compliance plan accordingly. Document legal interpretations and decisions to provide a record of how compliance obligations were understood and implemented.

24. Designated officers and escalation. Appoint a compliance officer responsible for the Determination, a senior officer to sign the annual report, and a technical lead for systems changes. Establish an escalation pathway for incidents of potential non‑compliance and require immediate documentation of incidents and remedial steps.

Practical record list to maintain

• Written election notice to the ACCC and proof of delivery (s 6(b), (g)).
• Compliance plan and any variations, with dates (s 7(15)).
• Documentation of wholesale supply terms to retail unit (s 7(3)), including comparative table as required by s 7(3A).
• Archived copies of published wholesale terms and timestamps/version control (s 7(6), (6A)).
• Written notifications to wholesale customers when terms change and proof of dispatch (s 7(6C)).
• Training materials, attendance logs and transfer documentation for workers moving between units (s 7(4)(b), (d)).
• Access control policies and technical configuration records showing segregation of accounts and systems (s 7(5)).
• Incident logs, complaint registers and remediation records (s 7(14)(d)-(e)).
• Annual reports and supporting documents submitted to the ACCC (s 7(14), (14A)).
• Records of any disclosures of specified carrier information under s 9 including purpose and supporting carrier correspondence.

Role of the ACCC and ongoing monitoring

• Maintain open engagement with the ACCC. Given the ACCC’s role in receiving plans and annual reports and its revocation power under s 151B(7) of the Act (s 6(d)), consider proactive engagement with the ACCC about compliance plans and material changes to practices. Keep the ACCC informed of significant governance or organisational changes and retain proof of communication.

Summary

Compliance requires an integrated programme combining corporate governance, HR protocols, IT/system separation and controls, transparent publishing workflows for pricing and discounts, robust version control and notification systems, and disciplined record-keeping for the annual reporting obligations. The Determination’s specific timing obligations (three months for the plan, seven days for plan variations, prompt updates, 14 days notification on threshold exceedance, and 31 July annual reports) impose tight deadlines that must be embedded in the corporation’s compliance calendar.