Telecommunications (Transitional Provisions and Consequential Amendments) Act 1997

The Act had its primary effect on:

• The ACA and its predecessor agencies: The merger of AUSTEL and the SMA into the ACA was the central regulatory event the Act managed. All existing licences, permits, instruments and functions of both predecessor agencies were transferred or attributed to the ACA.
• Telstra: As the dominant carrier, Telstra was specifically addressed in provisions dealing with existing carrier licences, section 39 declarations, mobile service obligations (section 40), connection obligations (section 41), and deemed agreements relating to terms and conditions (section 46).
• Other carriers and service providers: All carriers holding licences under the Telecommunications Act 1991 were affected by Division 13's transition to the new carrier licence regime.
• The ACCC: The ACCC gained important new functions in administering the telecommunications access regime under Part XIC of the Trade Practices Act 1974, and section 39 required the ACCC to act immediately before deregulation to preserve continuity of access to declared services.
• Businesses accessing the telecommunications network: Companies that held access agreements registered under section 144 of the Telecommunications Act 1991 as at 13 September 1996 could be designated under section 39, affecting their rights under the new access regime.
• Telecommunications Industry Ombudsman: Section 90 carried over existing consents by the Telecommunications Industry Ombudsman, and section 21 continued the transfer of pre-existing Ombudsman investigations to the ACA.

ACCC obligation to prepare the section 39 statement. The ACCC was required to prepare and publish a written statement under section 39(1) before 1 July 1997, specifying eligible services covered by pre-commencement access agreements. This was a mandatory statutory obligation with a hard deadline. The ACCC's exercise of this power was the subject of significant litigation in the Federal Court in the Telstra, Foxtel and Seven Cable Television decisions of 2000.

Ministerial obligations for asset transfer declarations. The Minister was required to make the necessary declarations under sections 6, 8, 27 and 29 to give legal effect to the transfer of assets and liabilities from the predecessor agencies to the ACA. Once declared, these transfers had effect under the applicable provisions of the Act.

Record keeping. Section 15 required the ACA to receive the records and documents that had been in the possession of the SMA, and corresponding provisions applied to AUSTEL records.

Continued operation of instruments. Many instruments that were in force under the old regime were continued in force by the various Divisions of Part 3. The holders of those instruments had no further obligation to do anything to maintain their validity under the transitional provisions, but would need to seek replacement or variation under the new regime when the transitional provisions expired.

The Minister held a broad power to make declarations transferring assets and liabilities from predecessor agencies to the ACA, retransferring them, and attributing specific instruments. These were non-reviewable administrative decisions.

The ACCC held discretion in section 39(2) to decide not to include a service in the deeming statement if it considered including it would not promote the long-term interests of end-users. The ACCC also could not specify a service that would deprive anyone of a protected contractual right under section 152AR(4)(d) of the Trade Practices Act 1974.

Under section 50, AUSTEL could receive carrier licence applications before 1 July 1997, allowing carriers to have their new licences ready from the commencement of the new regime.

The Act does not create standalone offence provisions. Enforcement of obligations that originated in instruments continued in force under Part 3 Divisions operated through the existing enforcement mechanisms of those instruments and the applicable parent legislation.

The constitutional safety net provisions in sections 4, 42 and 47 ensure that if the Act's operation resulted in an acquisition of property otherwise than on just terms under paragraph 51(xxxi) of the Constitution, the Commonwealth would be liable to pay reasonable compensation. This is a standard provision in Commonwealth legislation effecting property transfers.

The Act operated to the following key timeline:

• Royal Assent (before 1 July 1997): Parts 1, 2 (other than certain specified provisions) commenced on Royal Assent.
• Before 1 July 1997 (mandatorily): The ACCC was required to prepare the section 39 deeming statement specifying services covered by pre-commencement access agreements.
• 1 July 1997: Parts 2, most of Part 3, Part 4, and Schedules 1, 2 and 5 commenced. This was the date of telecommunications deregulation, when the Telecommunications Act 1997 and associated legislation came into force and the Telecommunications Act 1991 framework was replaced.
• Before 1 January 1998: Re-transfer of assets or liabilities from the ACA back to the Commonwealth under sections 7 and 9 had to occur before this date. After that, the transfers were permanent.
• On commencement of related Acts: Schedules 3 and 4 commenced when the Commonwealth Authorities and Companies Act 1997 and the Financial Management and Accountability Act 1997 respectively commenced.

The Act is fundamentally a bridging statute. It interacts extensively with:

• Telecommunications Act 1997 (Cth): The new principal Act which the transitional provisions were designed to support.
• Telecommunications Act 1991 (Cth): The old principal Act repealed by Part 2 (and Schedule 5). Pre-existing instruments, carrier licences, access agreements and obligations under the 1991 Act were carried over by the transitional provisions.
• Trade Practices Act 1974 (Cth) Part XIC: The access regime for telecommunications services. Section 39's deeming of declared services was directly connected to the obligations in Part XIC, including section 152AR's access obligations and the concept of protected contractual rights.
• Radiocommunications Act 1992 (Cth): The SMA's functions under this Act transferred to the ACA. Acts done by the SMA under the Radiocommunications Act were attributed to the ACA after the merging time (section 16).
• Trade Practices Act 1974 Part XIB: Section 71 provided for modified application of Part XIB (telecommunications-specific competition provisions) before 1 July 1997.
• Broadcasting Services Act 1992 (Cth): Consequential amendments were made to this Act, including amendments to section 171 (section 2(5)).
• Legislative Instruments Act 1997: Amendments made contingent on that Act's commencement (section 2(6)).
• Commonwealth Authorities and Companies Act 1997: Schedule 3 commenced on commencement of this Act.
• Financial Management and Accountability Act 1997: Schedule 4 commenced on commencement of this Act.
• Lands Acquisition Act 1989 (Cth): Sections 13 and 34 exclude the Lands Acquisition Act from applying to asset transfers under the Act, removing the need for compulsory acquisition procedures.

Section 39 deeming is not permanent access. The deeming of services as declared services under section 39 was a transitional mechanism. It preserved access obligations that existed under the old regime while the new declared services list was established under Part XIC of the Trade Practices Act. However, the new declared services regime could diverge from the section 39 list over time. Businesses that relied on section 39-deemed access needed to engage with the new ACCC declaration process under the Trade Practices Act.

Protected contractual rights acted as a ceiling on ACCC deeming. The ACCC could not include a service in the section 39 statement if doing so would deprive any person of a protected contractual right. This created a constraint on the ACCC's power that interacted with complex commercial arrangements between carriers, particularly those between Telstra and its joint venture partners.

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The Act is primarily historical. While the Act remains nominally in force, most of its operative provisions served their purpose in 1997 and the transitional period immediately following. The ongoing relevance of the Act is limited mainly to questions about the legal effect of particular actions taken during the transition period and the interpretation of instruments that trace their legal authority back to the transitional framework.

An access seeker relying on a section 39 declaration (1997-2000). Seven Cable Television sought access to Telstra Multimedia's broadcast carriage services for the 2000 Sydney Olympics. The ACCC had issued a deeming statement under section 39 before 1 July 1997 specifying broadcast access services as declared services. Seven argued this entitled it to access under section 152AR of the Trade Practices Act, while Telstra argued that FOXTEL held a protected contractual right that prevented access from being required. The litigation turned on the meaning of "protected contractual right" in section 152AR(4)(d) and the interpretation of commercial agreements executed before the merging time.

A carrier transitioning its licence. Under section 49, existing carrier licences issued under the Telecommunications Act 1991 were replaced by licences under the Telecommunications Act 1997. The replacement occurred by operation of Division 13 of Part 3. No action was required by the carrier to maintain its licence during the transition; the Act gave automatic legal continuity.

Transfer of AUSTEL's pending proceedings. If AUSTEL had a pending court proceeding immediately before the merging time relating to a Telecommunications Act 1991 matter, section 17 (which operated for SMA proceedings) and the corresponding AUSTEL provision substituted the ACA for AUSTEL as a party to those proceedings. No application to the court was required; substitution occurred by force of the Act.