Telecommunications Act 1997

25 Simplified outline

The following is a simplified outline of this Part:

• The object of this Part is to define the expression network unit.

• There are 4 types of network unit:

a single line link connecting distinct places in Australia, where the line link meets certain minimum distance requirements;

multiple line links connecting distinct places in Australia, where the line links meet certain minimum distance requirements;

a designated radiocommunications facility;

a facility specified in a Ministerial determination.

26 Single line links connecting distinct places in Australia

If:

a line link connects distinct places in Australia; and

the distinct places are at least the statutory distance apart;

the line link is a network unit.

(2) For the purposes of this section, the statutory distance is:

500 metres; or

if a longer distance, not exceeding 50 kilometres, is specified in the regulations—that longer distance.

27 Multiple line links connecting distinct places in Australia

If:

the same person owns, or the same persons own, 2 or more line links; and

each of those line links connects distinct places in Australia; and

the aggregate of the distances between the distinct places is more than the statutory distance;

each of those line links is a network unit.

Note: Statutory distance is defined by subsection (3).

If:

the following conditions are satisfied in relation to 2 or more line links:

the owners of the line links are bodies corporate;

the owners of the line links are all members of the same related company group; and

each of those line links connects distinct places in Australia; and

the aggregate of the distances between the distinct places is more than the statutory distance;

each of those line links is a network unit.

Note: Statutory distance is defined by subsection (3).

(3) For the purposes of this section, the statutory distance is:

5 kilometres; or

if a longer distance, not exceeding 500 kilometres, is specified in the regulations—that longer distance.

In this section:

owner means legal or beneficial owner, and own has a corresponding meaning.

related company group means a group of 2 or more bodies corporate, where each member of the group is related to each other member of the group.

(5) For the purposes of this section, the question whether a body corporate is related to another body corporate is to be determined in the same manner as that question is determined under the Corporations Act 2001.

28 Designated radiocommunications facility

(1) If a designated radiocommunications facility is used, or is for use, to supply a carriage service between a point in Australia and one or more other points in Australia, the facility is a network unit.

It does not matter whether the supply involves:

the use of a satellite; or

the use of a line or other facility outside Australia.

(3) For the purposes of this section, a point includes a mobile or potentially mobile point, whether on land, underground, in the atmosphere, in outer space, underwater, at sea or anywhere else.

For the purposes of this section, a point that is:

in the atmosphere; and

in or below the stratosphere; and

above Australia;

is taken to be a point in Australia.

For the purposes of this section, a point that is:

on a satellite; and

above the stratosphere;

is taken to be a point outside Australia.

29 Facilities specified in Ministerial determination

(1) The Minister may, by legislative instrument, determine that a specified facility is a network unit for the purposes of this Act.

The determination has effect accordingly.

To avoid doubt, nothing in the other provisions of this Part limits the power conferred by subsection (1).

30 Line links

A line constitutes a line link.

If:

a line is connected to another line; and

the other line constitutes, or forms part of, a line link;

the first-mentioned line, and the line link referred to in paragraph (b), together constitute a line link.

Subsection (2) is recursive, that is, the reference in paragraph (2)(b) to a line link is a reference to something that is a line link because of any other application or applications of this section.

For the purposes of subsection (2), a line is connected to another line if, and only if:

the lines are connected to each other; or

each of the lines is connected to the same facility (other than a line);

in such a way that a communication can be carried, by means of the 2 lines, or by means of facilities including the 2 lines, in the same way as if the 2 lines were a single line.

A line does not form part of any line link to the extent that the line is on the customer side of the boundary of a telecommunications network.

Note: Boundary of a telecommunications network is defined by section 22.

A facility other than a line does not form part of any line link.

31 Designated radiocommunications facility

(1) A reference in this Act to a designated radiocommunications facility is a reference to:

a base station used, or for use, to supply a public mobile telecommunications service; or

a base station that is part of a terrestrial radiocommunications customer access network; or

a fixed radiocommunications link; or

a satellite-based facility; or

a radiocommunications transmitter of a kind specified in a determination under subsection (2); or

a radiocommunications receiver of a kind specified in a determination under subsection (3);

but does not include a reference to:

a base station of a kind declared under subsection (5) to be exempt from this section; or

a fixed radiocommunications link of a kind declared under subsection (5) to be exempt from this section; or

a satellite-based facility of a kind declared under subsection (5) to be exempt from this section.

Note 1: Public mobile telecommunications service is defined by section 32.

Note 2: Base station that is part of a terrestrial radiocommunications customer access network is defined by section 34.

Note 3: Fixed radiocommunications link is defined by section 35.

Note 4: Satellite-based facility is defined by section 7.

The Minister may, by legislative instrument, make a determination for the purposes of paragraph (1)(e).

The Minister may, by legislative instrument, make a determination for the purposes of paragraph (1)(f).

The Minister may, by legislative instrument, make a declaration for the purposes of paragraph (1)(g), (h) or (i).

To avoid doubt, nothing in the other provisions of this Part limits a power conferred by subsection (2), (3) or (5).

32 Public mobile telecommunications service

For the purposes of this Act, if:

an end-user can use a carriage service while moving continuously between places; and

the customer equipment used for or in relation to the supply of the service is not in physical contact with any part of the telecommunications network by means of which the service is supplied; and

the service is supplied by use of a telecommunications network that has intercell hand-over functions; and

the service is not an exempt service (as defined by subsection (2), (3) or (4));

the service is a public mobile telecommunications service.

(2) For the purposes of this section, a carriage service is an exempt service if:

(a) the service is supplied by means of a telecommunications network (a primary network) that is connected to one or more line links or other facilities that, apart from this section, are eligible network units; and

the principal function of the primary network is to supply carriage services between customer equipment connected to the primary network and other such equipment; and

the supply of carriage services between such equipment and equipment connected to the network units is, at most, an ancillary function of the primary network; and

despite the connection or connections referred to in paragraph (a), the primary network cannot be used in carrying a communication, as a single transaction, between equipment connected to the network units and other such equipment.

(3) For the purposes of this section, a carriage service is an exempt service if the service is:

a one-way only, store-and-forward communications service; or

a service that performs the same functions as such a service.

(4) For the purposes of this section, a carriage service is an exempt service if all of the end-users of the service are located at the same distinct place.

In this section:

eligible network unit means a network unit:

that is owned by one or more carriers; or

in relation to which a nominated carrier declaration is in force.

33 Intercell hand-over functions

(1) For the purposes of this Act, a telecommunications network is taken to have intercell hand-over functions if, and only if:

(a) the facilities of the network include at least 2 base stations each of which transmits and receives signals to and from customer equipment (mobile equipment) that is:

used for or in relation to the supply of an eligible mobile telecommunications service; and

(ii) located within a particular area (a cell); and

the network includes the functions necessary to do the following while the network is carrying a communication made to or from particular mobile equipment:

determine in which cell the equipment is located and cause the base station in that cell to transmit and receive signals to and from the equipment;

when the equipment moves from one cell to another, cause the base station in the one cell to stop, and the base station in the other cell to start, transmitting and receiving signals to and from the equipment.

(2) For the purposes of this section, a carriage service is an eligible mobile telecommunications service if:

an end-user can use it while moving continuously between places; and

customer equipment used for or in relation to the supply of the service is not in physical contact with any part of the telecommunications network by means of which the service is supplied.

34 When a base station is part of a terrestrial radiocommunications customer access network

For the purposes of this Act, a base station is part of a terrestrial radiocommunications customer access network if, and only if:

the base station is part of a telecommunications network; and

the base station is not an exempt base station (as defined by subsection (2)); and

the base station is used, or for use, in connection with the supply of a carriage service; and

customer equipment used for or in relation to the supply of the service is not in physical contact with any part of the telecommunications network by means of which the service is supplied; and

the service is wholly or principally used, or wholly or principally for use, by each end-user:

at premises occupied or used by the end-user; or

in the immediate vicinity of those premises; and

the network does not have intercell hand-over functions; and

the conditions (if any) specified in the regulations are satisfied; and

the network is not an exempt network (as defined by subsection (3)).

(2) For the purposes of paragraph (1)(b), a base station is an exempt base station if the sole use of the base station is use by a broadcaster to:

supply broadcasting services to the public; or

supply a secondary carriage service by means of the main carrier signal of a primary broadcasting service;

or both.

(3) For the purposes of paragraph (1)(h), a network is an exempt network if:

the network is used, or for use, for the sole purpose of supplying carriage services on a non-commercial basis; or

the network is of a kind specified in the regulations.

In this section:

broadcaster means:

the Australian Broadcasting Corporation; or

the Special Broadcasting Service Corporation; or

(c) the holder of a licence under the Broadcasting Services Act 1992; or

(d) a person who provides a broadcasting service under a class licence under the Broadcasting Services Act 1992.

35 Fixed radiocommunications link

(1) For the purposes of this Act, a fixed radiocommunications link is a facility, or a combination of facilities, where:

the facility or combination is used, or for use, in connection with the supply of a carriage service between 2 or more fixed points by means of radiocommunication; and

some or all of the communications carried by means of the facility or combination have the characteristic of double-ended interconnection (as defined by subsection (3)); and

the facility or combination does not consist of:

one or more base stations that are part of a terrestrial radiocommunications customer access network; or

one or more base stations that would be part of such a network if paragraph 34(1)(h) had not been enacted.

(2) For the purposes of this section, a fixed point is a fixed point on:

land; or

a building or structure on land.

For the purposes of this section, if:

a communication is carried over a line link or other facility that, apart from this section, is an eligible network unit; and

the communication is then carried (immediately or with a transmission delay of not longer than 30 seconds), by means of radiocommunication, between 2 or more fixed points; and

the communication is then carried (immediately or with a transmission delay of not longer than 30 seconds) over another line link or other facility that, apart from this section, is an eligible network unit;

the communication referred to in paragraph (b) has the characteristic of double-ended interconnection.

In this section:

eligible network unit means a network unit:

that is owned by one or more carriers; or

in relation to which a nominated carrier declaration is in force.

36 Distinct places—basic rules

Places are distinct unless they are all in the same area because of subsection (2), (3) or (4).

Places are in the same area if they are all situated in the same property as defined by section 37.

Places are in the same area if they are situated in properties each of which forms part of a combined area as defined by section 38 and:

the same person or persons is or are the principal user (as defined by section 39) of all the properties that together constitute that combined area; or

because of a determination in force under section 40, that combined area is an eligible combined area for the purposes of this paragraph.

Places are in the same area if they are all situated in the same eligible Territory.

The later provisions of this Division have effect only for the purposes of this Division.

37 Properties

An area of land is a property if:

there is a single freehold or leasehold title in relation to that area (whether or not that title is registered under a law of a State or Territory relating to the registration of interests in land); and

no part of that area is subject to a lease granted by the holder of that title; and

the title to the area is defined by reference to geographical coordinates.

If:

there is a single freehold or leasehold title (as mentioned in paragraph (1)(a)) in relation to an area of land; and

some but not all of that area is subject to a lease granted by the holder of that title;

then, an area of land:

all of which is within the area referred to in paragraph (a) of this subsection; and

none of which is subject to such a lease;

is a property unless it is only part of another such area.

An area of land is not a property except as provided in this section.

The regulations may prescribe the circumstances in which an area of land in relation to which there is a single freehold or leasehold title is not to constitute a property for the purposes of this Division.

Despite paragraph (1)(c), the regulations may prescribe the circumstances in which an area of land, the title to which is defined otherwise than by reference to geographical coordinates, is a property.

In this section:

land includes premises and a part of premises, but does not include unalienated Crown land.

lease includes sublease and leasehold title has a corresponding meaning.

38 Combined areas

2 contiguous properties form a combined area.

If:

a property is contiguous with another property; and

the other property forms part of a combined area;

the first-mentioned property, and the combined area referred to in paragraph (b), together form a combined area.

Subsection (2) is recursive, that is, the reference in paragraph (2)(b) to a combined area is a reference to something that is a combined area because of any other application or applications of this section.

39 Principal user of a property

The principal user of a property is the person who:

occupies the property; or

uses the property for the purpose that is the sole or principal purpose for which the property is used.

However, if 2 or more persons:

together occupy a property; or

together use a property for the purpose that is the sole or principal purpose for which the property is used;

they are taken to together be the principal user of the property.

40 Eligible combined areas

The Minister may, by legislative instrument, determine that specified combined areas are eligible combined areas for the purposes of paragraph 36(3)(b).

41 Simplified outline

The following is a simplified outline of this Part:

• The owner of a network unit that is used to supply carriage services to the public must hold a carrier licence unless:

a nominated carrier declaration is in force in relation to the network unit; or

an exemption applies.

• Carrier licences are granted by the ACMA.

• The holder of a carrier licence is known as a carrier.

• If responsibility for a network unit is transferred from the owner of the unit to a carrier, the ACMA may make a nominated carrier declaration that declares the carrier to be the nominated carrier in relation to the unit.

• Carrier licences are subject to conditions.

42 Network unit not to be used without carrier licence or nominated carrier declaration

If there is only one owner of a network unit, the owner of the network unit must not use the unit, either alone or jointly with one or more other persons, to supply a carriage service to the public, unless:

the owner holds a carrier licence; or

a nominated carrier declaration is in force in relation to the unit.

If there is only one owner of a network unit, the owner of the network unit must not allow or permit another person to use the unit to supply a carriage service to the public unless:

the owner holds a carrier licence; or

a nominated carrier declaration is in force in relation to the unit.

If there are 2 or more owners of a network unit, an owner of the network unit must not use the unit, either alone or jointly with one or more other persons, to supply a carriage service to the public, unless:

the owner holds a carrier licence; or

a nominated carrier declaration is in force in relation to the unit.

If there are 2 or more owners of a network unit, an owner of the network unit must not, either alone or together with one or more other owners, allow or permit another person to use the unit to supply a carriage service to the public unless:

the owner holds a carrier licence; or

a nominated carrier declaration is in force in relation to the unit.

A person who contravenes subsection (1), (2), (3) or (4) commits an offence punishable on conviction by a fine not exceeding 20,000 penalty units.

Note: See also sections 4AA and 4B of the Crimes Act 1914.

43 Continuing offences

A person who contravenes section 42 commits a separate offence in respect of each day (including a day of a conviction under this section or any later day) during which the contravention continues.

44 Supply to the public

This section sets out the circumstances in which a network unit is taken, for the purposes of section 42, to be used to supply a carriage service to the public.

If:

there is only one owner of a network unit; and

no nominated carrier declaration is in force in relation to the unit; and

any of the following conditions is satisfied:

the unit is used for the carriage of communications between 2 end-users, where each end-user is outside the immediate circle of the owner of the unit;

the unit is used to supply point-to-multipoint services to end-users, where at least one end-user is outside the immediate circle of the owner of the unit;

the unit is used to supply designated content services (other than point-to-multipoint services) to one or more end-users, where at least one end-user is outside the immediate circle of the owner of the unit;

the unit is used to supply a carriage service to the public.

If:

there are 2 or more owners of a network unit; and

no nominated carrier declaration is in force in relation to the unit; and

any of the following conditions is satisfied:

the unit is used for the carriage of communications between 2 end-users, where each end-user is outside the overlap of the immediate circles of the owners of the unit;

the unit is used to supply point-to-multipoint services to end-users, where at least one end-user is outside the overlap of the immediate circles of the owners of the unit;

the unit is used to supply designated content services (other than point-to-multipoint services) to one or more end-users, where at least one end-user is outside the overlap of the immediate circles of the owners of the unit;

the unit is used to supply a carriage service to the public.

If:

a nominated carrier declaration is in force in relation to a network unit; and

any of the following conditions is satisfied:

the unit is used for the carriage of communications between 2 end-users, where each end-user is outside the immediate circle of the nominated carrier in relation to the unit;

the unit is used to supply point-to-multipoint services to end-users, where at least one end-user is outside the immediate circle of the nominated carrier in relation to the unit;

the unit is used to supply designated content services (other than point-to-multipoint services) to one or more end-users, where at least one end-user is outside the immediate circle of the nominated carrier in relation to the unit;

the unit is used to supply a carriage service to the public.

For the purposes of this section, a person is outside the overlap of the immediate circles of the owners of a network unit unless the person is:

within the immediate circles of each of the owners of the unit; or

the owner, or one of the owners, of the unit.

(6) For the purposes of this section, a designated content service is a content service of a kind specified in a written determination made by the Minister.

A determination under subsection (6) is a legislative instrument.

45 Exemption—defence

If the sole use of a network unit is use by, or on behalf of, a defence organisation to carry communications necessary or desirable for defence purposes, section 42 does not apply to the unit.

If:

the principal use of a network unit is use by, or on behalf of, a defence organisation to carry communications necessary or desirable for defence purposes; and

the remaining use of the unit is use by one or more carriers, or by one or more exempt network-users, to supply carriage services and/or content services;

section 42 does not apply to the unit.

In this section:

defence organisation means:

the Defence Department; or

the Australian Defence Force; or

an organisation of a foreign country, so far as the organisation:

has functions corresponding to functions of, or of a part of, the Defence Department or the Australian Defence Force; and

is authorised by the Commonwealth to operate or train in Australia or an external Territory; or

a part of such an organisation or body.

46 Exemption—intelligence operations

Section 42 does not apply to a network unit that is used wholly or principally:

by the Australian Secret Intelligence Service; or

by the Australian Security Intelligence Organisation; or

by the Australian Signals Directorate.

47 Exemption—transport authorities

Section 42 does not apply to a network unit if the sole use of the unit is use by Airservices Australia to carry communications necessary or desirable for the workings of aviation services.

Section 42 does not apply to a network unit if the sole use of the unit is use by a State or Territory transport authority to carry communications necessary or desirable for the workings of any or all of the following services:

train services of a kind provided by the authority;

bus or other road services of a kind provided by the authority;

tram services of a kind provided by the authority.

Section 42 does not apply to a network unit if the sole use of the unit is use by a rail corporation to carry communications necessary or desirable for the workings of train services.

Section 42 does not apply to a network unit if:

the principal use of the unit is use by Airservices Australia to carry communications necessary or desirable for the workings of aviation services; and

the remaining use of the unit is use by one or more carriers, or by one or more exempt network-users, to supply carriage services and/or content services.

Section 42 does not apply to a network unit if:

the principal use of the unit is use by a State or Territory transport authority to carry communications necessary or desirable for the workings of any or all of the following services:

train services of a kind provided by the authority;

bus or other road services of a kind provided by the authority;

tram services of a kind provided by the authority; and

the remaining use of the unit is use by one or more carriers, or by one or more exempt network-users, to supply carriage services and/or content services.

Section 42 does not apply to a network unit if:

the principal use of the unit is use by a rail corporation to carry communications necessary or desirable for the workings of train services; and

the remaining use of the unit is use by one or more carriers, or by one or more exempt network-users, to supply carriage services and/or content services.

In this section:

rail corporation means a body corporate that manages or operates either or both of the following:

rail transport services;

rail transport infrastructure.

48 Exemption—broadcasting services

If :

the sole use of a network unit is use to carry communications that are necessary or desirable for either or both of the following purposes:

the supply of broadcasting services to the public;

the supply of a secondary carriage service by means of the main carrier signal of a primary broadcasting service; and

the unit does not consist of, or include, a facility used to carry communications between:

the head end of a cable transmission system; and

the equipment used by an end-user to receive a broadcasting service; and

the unit does not consist of a broadcasting transmitter transmitting a signal of a broadcasting service to its intended audience;

section 42 does not apply to the unit.

If:

the principal use of a network unit is use to carry communications that are necessary or desirable for either or both of the following purposes:

the supply of broadcasting services to the public;

the supply of a secondary carriage service by means of the main carrier signal of a primary broadcasting service; and

the unit does not consist of, or include, a facility used to carry communications between:

the head end of a cable transmission system; and

the equipment used by an end-user to receive a broadcasting service; and

the unit does not consist of a broadcasting transmitter transmitting a signal of a broadcasting service to its intended audience; and

the remaining use of the unit is use by one or more carriers, or by one or more exempt network-users, to supply carriage services and/or content services;

section 42 does not apply to the unit.

(3) If the sole use of a line link is use for the purpose of a re-transmission of a kind mentioned in paragraph 212(1)(a) or (b) of the Broadcasting Services Act 1992, section 42 of this Act does not apply to the line link.

If:

(a) the principal use of a line link is use for the purpose of a re-transmission of a kind mentioned in paragraph 212(1)(a) or (b) of the Broadcasting Services Act 1992; and

the remaining use of the line link is use by one or more carriers, or by one or more exempt network-users, to supply carriage services and/or content services;

section 42 of this Act does not apply to the line link.

(4A) For the purposes of this section, disregard subsection 212(3) of the Broadcasting Services Act 1992.

In this section:

broadcasting transmitter means a radiocommunications transmitter used, or for use, to deliver a broadcasting service.

head end of a cable transmission system means a facility that:

is connected to a line link; and

is used, or for use, in connection with the delivery of a broadcasting service; and

processes signals for delivery by the line link to end-users having equipment appropriate for receiving the service.

49 Exemption—electricity supply bodies

If the sole use of a network unit is use by an electricity supply body to carry communications necessary or desirable for:

managing the generation, transmission, distribution or supply of electricity; or

charging for the supply of electricity;

section 42 does not apply to the unit.

If:

the principal use of a network unit is use by an electricity supply body to carry communications necessary or desirable for:

managing the generation, transmission, distribution or supply of electricity; or

charging for the supply of electricity; and

the remaining use of the unit is use by one or more carriers, or by one or more exempt network-users, to supply carriage services and/or content services;

section 42 does not apply to the unit.

In this section:

electricity supply body means an authority, or a body corporate, that carries on a business, or performs a function, of:

generating, transmitting, distributing or supplying electricity; or

managing the generation, transmission, distribution or supply of electricity.

50 Exemption—line links authorised by or under previous laws

If:

(a) a line link consists of facilities in relation to which an authorisation was in force under paragraph 13(1)(a) of the Telecommunications Act 1975 immediately before the repeal of that Act; and

the sole use of the line link is use as provided in, and in accordance with any conditions specified in, the authorisation;

section 42 of this Act does not apply to the line link.

If:

(a) a line link consists of facilities in relation to which an authorisation was in force under paragraph 13(1)(a) of the Telecommunications Act 1975 immediately before the repeal of that Act; and

the principal use of the line link is use as provided in, and in accordance with any conditions specified in, the authorisation; and

the remaining use of the line link is use by one or more carriers, or by one or more exempt network-users, to supply carriage services and/or content services;

section 42 of this Act does not apply to the line link.

If a line link consists of facilities that:

(a) were installed before the repeal of Telecommunications Act 1989; andsection 45 of the

immediately before that repeal, were permitted by that section to be maintained and operated;

section 42 of this Act does not apply to the line link.

If:

(a) a line link consists of facilities in relation to which an authorisation was in force under Telecommunications Act 1989 immediately before the repeal of that Act; andsection 46 of the

the sole use of the line link is use as provided in, and in accordance with any conditions specified in, the authorisation;

section 42 of this Act does not apply to the line link.

If:

(a) a line link consists of facilities in relation to which an authorisation was in force under Telecommunications Act 1989 immediately before the repeal of that Act; andsection 46 of the

the principal use of the line link is use as provided in, and in accordance with any conditions specified in, the authorisation; and

the remaining use of the line link is use by one or more carriers, or by one or more exempt network-users, to supply carriage services and/or content services;

section 42 of this Act does not apply to the line link.

If:

(a) a line link consists of facilities in relation to which an authorisation was in force under Telecommunications Act 1991 immediately before the repeal of that Act; andsection 108 of the

the sole use of the line link is use as provided in, and in accordance with any conditions specified in, the authorisation;

section 42 of this Act does not apply to the line link.

If:

(a) a line link consists of facilities in relation to which an authorisation was in force under Telecommunications Act 1991 immediately before the repeal of that Act; andsection 108 of the

the principal use of the line link is use as provided in, and in accordance with any conditions specified in, the authorisation; and

the remaining use of the line link is use by one or more carriers, or by one or more exempt network-users, to supply carriage services and/or content services;

section 42 of this Act does not apply to the line link.

51 Exemption—Ministerial determination

The Minister may, by legislative instrument, determine that section 42 does not apply in relation to:

a specified network unit; or

a specified person; or

a specified use of a network unit.

A determination under this section may be unconditional or subject to such conditions (if any) as are specified in the determination.

A determination under this section has effect accordingly.

52 Applications for carrier licence

A person may apply to the ACMA for a carrier licence, so long as the person is:

a constitutional corporation; or

an eligible partnership; or

a public body.

53 Form of application etc.

An application must be:

in writing; and

in accordance with the form approved in writing by the ACMA.

53A Copy of application to be given to Communications Access Coordinator

The ACMA must give a copy of the application to a Communications Access Coordinator.

For the purposes of sections 56A and 59, the application is taken not to have been received by the ACMA until the copy is received by a Communications Access Coordinator.

54 Application to be accompanied by charge

An application must be accompanied by the charge (if any) imposed on the application by Part 2 of the Telecommunications (Carrier Licence Charges) Act 1997.

55 Further information

The ACMA may, within 20 business days after an application is made, request the applicant to give the ACMA, within the period specified in the request, further information about the application.

The ACMA may refuse to consider the application until the applicant gives the ACMA the information.

In this section:

business day means a day on which the ACMA is open for business in the Australian Capital Territory and in Victoria.

56 Grant of licence

After considering an application, the ACMA may grant a carrier licence in accordance with the application.

If the ACMA grants a carrier licence to a person, the ACMA must give the person a written notice stating that the licence has been granted.

(3) If the ACMA grants a carrier licence, the ACMA must cause to be published in the Gazette a notice stating that the licence has been granted.

56AA Deemed carrier licence—designated Telstra successor company

Scope

This section applies to a body corporate if:

(a) either of the following conditions are satisfied in relation to a particular time (the relevant time):

the relevant time occurs immediately after the commencement of this section, and the body corporate is a designated Telstra successor company at the relevant time;

the relevant time occurs after the commencement of this section, and the body corporate becomes a designated Telstra successor company at the relevant time; and

the body corporate does not hold a carrier licence at the relevant time; and

the body corporate is a constitutional corporation at the relevant time; and

the body corporate is the owner, or one of the owners, of a network unit at the relevant time; and

no nominated carrier declaration is in force in relation to that network unit at the relevant time.

Deemed carrier licence

(2) The ACMA is taken to have granted a carrier licence (the deemed carrier licence) to the body corporate under section 56 immediately after the relevant time.

Application for carrier licence

The body corporate must:

apply under section 52 for a carrier licence; and

do so within 5 business days after the relevant time.

If the body corporate fails to comply with subsection (3), the body corporate is taken, at the end of the period of 5 business days, to have applied under section 52 for a carrier licence.

(5) The application mentioned in subsection (3) or (4) is exempt from charge imposed by Part 2 of the Telecommunications (Carrier Licence Charges) Act 1997.

The ACMA must decide the application mentioned in subsection (3) or (4) as if the deemed carrier licence did not exist.

Duration of deemed carrier licence

The deemed carrier licence remains in force until:

the ACMA grants a carrier licence to the body corporate in response to the application mentioned in subsection (3) or (4); or

if the ACMA refuses to grant a carrier licence to the body corporate in response to the application mentioned in subsection (3) or (4)—the latest of the following times:

the end of the 28-day period beginning when the body corporate is informed by the ACMA of the refusal;

if, during that 28-day period, the body corporate applies under section 558 for the ACMA to reconsider the refusal—the end of the 28-day period beginning when the ACMA makes its decision on reconsideration of the refusal;

(iii) if, during the 28-day period last mentioned in subparagraph (ii), the body corporate makes an application under first appeal period) within which an appeal from the decision of the Administrative Review Tribunal may be made to the Federal Court under section 172 of the Administrative Review Tribunal Act 2024;section 562 to the Administrative Review Tribunal for review of the refusal decision—the end of the period (the

(iv) if, during the first appeal period, the President of the Administrative Review Tribunal refers the decision on the application mentioned in subparagraph (iii) to the guidance and appeals panel of the Tribunal—the end of the period (the second appeal period) within which an appeal from the decision of the guidance and appeals panel may be made to the Federal Court under section 172 of the Administrative Review Tribunal Act 2024;

(v) if, during the first appeal period or the second appeal period, the body corporate appeals to the Federal Court under Administrative Review Tribunal Act 2024 from the decision of the Administrative Review Tribunal mentioned in subparagraph (iii), or the decision of the guidance and appeals panel—when the appeal is determined.section 172 of the

Section 56A does not apply

Section 56A does not apply to the deemed carrier licence.

56A Consultation with Communications Access Coordinator

The ACMA must not grant a carrier licence unless it has consulted a Communications Access Coordinator about the licence application.

Within 15 business days after the date on which the ACMA received the licence application, a Communications Access Coordinator may give a written notice to the ACMA, stating that no further consultation about the application is required. The notice cannot be revoked.

Note: Under section 53A, the application is treated as not being received by the ACMA until a copy has been received by a Communications Access Coordinator.

Within 15 business days after the date on which the ACMA received the licence application, a Communications Access Coordinator may give a written notice to the ACMA:

stating that, while the notice remains in force, the ACMA must not grant the carrier licence; and

specifying the period during which the notice remains in force (unless earlier revoked), which period cannot end more than 3 months after the date of the notice.

However, a Communications Access Coordinator cannot give such a notice if a Communications Access Coordinator has earlier given a notice under subsection (2) in relation to the application.

At any time while a notice is in force under subsection (3), or under this subsection, a Communications Access Coordinator may give a further written notice to the ACMA:

stating that, while the notice remains in force, the ACMA must not grant the carrier licence; and

specifying the period during which the notice remains in force (unless earlier revoked), which period cannot end more than 3 months after the date of the notice or more than 12 months after the date of the notice under subsection (3).

A Communications Access Coordinator may, by notice in writing to the ACMA, revoke a notice under subsection (3) or (4).

A Communications Access Coordinator cannot issue a further notice under subsection (3) or (4) in respect of the application after a Communications Access Coordinator has revoked such a notice.

The ACMA must give the applicant a copy of each notice that the ACMA receives from a Communications Access Coordinator under subsection (3), (4) or (5).

The ACMA must not grant the carrier licence while a notice is in force under subsection (3) or (4).

In this section:

business day means a day on which the ACMA is open for business in the Australian Capital Territory and in Victoria.

57 Carrier licence has effect subject to this Act

A carrier licence has effect subject to this Act.

In this section:

this Act includes the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act.

58 Refusal of carrier licence—disqualified applicant

The ACMA may refuse to grant a carrier licence to an applicant if, immediately before the ACMA makes its decision on the application, the applicant is disqualified.

When body corporate is disqualified

(2) For the purposes of this section, a body corporate is disqualified at a particular time (the test time) if:

at any time before the test time, a carrier licence held by the body corporate was cancelled under subsection 72(1), (2A) or (2B); or

at any time before the test time, a carrier licence held by a partnership in which the body corporate was a partner was cancelled under subsection 72(1), (2A) or (2B); or

at the test time, any of the following individuals is disqualified:

a director of the body corporate;

the secretary of the body corporate;

a person (by whatever name called and whether or not a director of the body corporate) who is concerned in, or takes part in, the management of the body corporate.

When individual is disqualified—failure to pay annual charge

(3) For the purposes of subsection (2), an individual is disqualified at a particular time (the test time) if:

at any time before the test time, a carrier licence held by a body corporate or partnership was cancelled under subsection 72(1) because of a failure by the body corporate or partnership to pay in full the charge referred to in that subsection; and

in the case of a body corporate—at the time when the charge referred to in subsection 72(1) was due and payable, the individual was:

a director of the body corporate; or

the secretary of the body corporate; or

a person (by whatever name called and whether or not a director of the body corporate) who was concerned in, or took part in, the management of the body corporate; and

in the case of a partnership—at the time when the charge referred to in subsection 72(1) was due and payable, the individual:

was an employee of the partnership; and

was concerned in, or took part in, the management of the partnership; and

the individual:

aided, abetted, counselled or procured the failure of the body corporate or partnership; or

was in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the failure of the body corporate or partnership.

When individual is disqualified—failure to pay industry levy

(4A) For the purposes of subsection (2), an individual is disqualified at a particular time (the test time) if:

at any time before the test time, a carrier licence held by a body corporate or partnership was cancelled under subsection 72(2A) because of a failure by the body corporate or partnership to pay in full the industry levy referred to in that subsection; and

in the case of a body corporate—at the time when the industry levy referred to in subsection 72(2A) was due and payable, the individual was:

a director of the body corporate; or

the secretary of the body corporate; or

a person (by whatever name called and whether or not a director of the body corporate) who was concerned in, or took part in, the management of the body corporate; and

in the case of a partnership—at the time when the industry levy referred to in subsection 72(2A) was due and payable, the individual:

was an employee of the partnership; and

was concerned in, or took part in, the management of the partnership; and

the individual:

aided, abetted, counselled or procured the failure of the body corporate or partnership; or

was in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the failure of the body corporate or partnership.

When individual is disqualified—failure to pay funding charge

(4B) For the purposes of subsection (2), an individual is disqualified at a particular time (the test time) if:

at any time before the test time, a carrier licence held by a body corporate or partnership was cancelled under subsection 72(2B) because of a failure by the body corporate or partnership to pay in full the charge referred to in that subsection; and

in the case of a body corporate—at the time when the charge referred to in subsection 72(2B) was due and payable, the individual was:

a director of the body corporate; or

the secretary of the body corporate; or

a person (by whatever name called and whether or not a director of the body corporate) who was concerned in, or took part in, the management of the body corporate; and

in the case of a partnership—at the time when the charge referred to in subsection 72(2B) was due and payable, the individual:

was an employee of the partnership; and

was concerned in, or took part in, the management of the partnership; and

the individual:

aided, abetted, counselled or procured the failure of the body corporate or partnership; or

was in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the failure of the body corporate or partnership.

When partnership is disqualified

(5) For the purposes of this section, a partnership is disqualified at a particular time (the test time) if:

at any time before the test time, a carrier licence held by the partnership was cancelled under subsection 72(1), (2A) or (2B); or

at the test time, any of the partners is disqualified; or

at the test time, an individual who:

is an employee of the partnership; and

is concerned in, or takes part in, the management of the partnership;

is disqualified.

This section does not limit grounds for refusal to grant carrier licence

This section does not, by implication, limit the grounds on which the ACMA may refuse to grant a carrier licence.

58A Refusal of carrier licence—security

If the Home Affairs Minister, after consulting the Prime Minister and the Minister administering this Act, considers that the grant of a carrier licence to a particular person would be prejudicial to security, the Home Affairs Minister may give a written direction to the ACMA not to grant a carrier licence to the person.

The ACMA must comply with a direction under subsection (1).

While a direction is in force under this section:

the ACMA cannot reconsider a non-compulsory refusal to grant a carrier licence to the person; and

the Administrative Review Tribunal cannot consider an application for review of a non-compulsory refusal to grant a carrier licence to the person.

If an application for a carrier licence is pending at the time when the Home Affairs Minister gives a direction to the ACMA under this section, then the application lapses.

Note: Section 73A provides for refund of the application charge.

In this section:

non-compulsory refusal means a refusal to grant a carrier licence, other than a refusal that is required by section 56A or this section.

security has the same meaning as in the Australian Security Intelligence Organisation Act 1979.

59 Time limit on licence decision

Deemed refusal of licence application if no decision by deadline

If the ACMA neither grants, nor refuses to grant, a carrier licence before the end of the deadline day worked out under the following subsections, then the ACMA is taken, at the end of that day, to have refused to grant the licence.

Case 1: no section 55 request and no section 56A notice in force

If:

the ACMA did not give a section 55 request; and

there is no section 56A notice in force at the end of the 20th business day after the application day;

then the deadline day is the 20th business day after the application day.

Case 2: no section 55 request but section 56A notice in force

If:

the ACMA did not give a section 55 request; and

there is a section 56A notice in force at the end of the 20th business day after the application day;

then the deadline day is the fifth business day after the section 56A expiration day is the first day after the end of that 20th business day on which there is no notice in force under section 56A.section 56A expiration day. For this purpose, the

Case 3: section 55 request complied with and no section 56A notice in force

If:

the ACMA gave a section 55 request; and

the request was complied with; and

there is no section 56A notice in force at the end of the tenth business day after the day on which the request was complied with;

then the deadline day is the tenth business day after the day on which the request was complied with.

Case 4: section 55 request complied with and section 56A notice in force

If:

the ACMA gave a section 55 request; and

the request was complied with; and

there is a section 56A notice in force at the end of the tenth business day after the day on which the request was complied with;

then the deadline day is the fifth business day after the section 56A expiration day is the first day after the end of that tenth business day on which there is no notice in force under section 56A.section 56A expiration day. For this purpose, the

Case 5: section 55 request not complied with and no section 56A notice in force

If:

the ACMA gave a section 55 request; and

the request was not complied with; and

there is no section 56A notice in force at the end of the tenth business day after the day specified in the section 55 request;

then the deadline day is the tenth business day after the day specified in the section 55 request.

Case 6: section 55 request not complied with and section 56A notice in force

If:

the ACMA gave a section 55 request; and

the request was not complied with; and

there is a section 56A notice in force at the end of the tenth business day after the day specified in the section 55 request;

then the deadline day is the fifth business day after the section 56A expiration day is the first day after the end of that tenth business day on which there is no notice in force under section 56A.section 56A expiration day. For this purpose, the

In this section:

application day means the day on which the ACMA received the licence application.

business day means a day on which the ACMA is open for business in the Australian Capital Territory and in Victoria.

section 55 request means a request under section 55 in relation to the licence application.

section 56A notice means a notice under subsection 56A(3) or (4) in relation to the licence application.

Note: Under section 53A, the application is treated as not being received by the ACMA until a copy has been received by a Communications Access Coordinator.

60 Notification of refusal of application

If the ACMA refuses to grant a carrier licence, the ACMA must give written notice of the refusal to the applicant.

61 Conditions of carrier licence specified in Schedule 1

A carrier licence is subject to the conditions specified in Schedule 1.

62 Condition of carrier licence set out in section 152AZ of the Competition and Consumer Act 2010

A carrier licence is subject to the condition set out in Competition and Consumer Act 2010.section 152AZ of the

Note: Section 152AZ of the Competition and Consumer Act 2010 deals with standard access obligations.

62A Condition of carrier licence set out in section 152BCO of the Competition and Consumer Act 2010

A carrier licence is subject to the condition set out in Competition and Consumer Act 2010.section 152BCO of the

Note: Section 152BCO of the Competition and Consumer Act 2010 deals with access determinations.

62B Condition of carrier licence set out in section 152BDF of the Competition and Consumer Act 2010

A carrier licence is subject to the condition set out in Competition and Consumer Act 2010.section 152BDF of the

Note: Section 152BDF of the Competition and Consumer Act 2010 deals with binding rules of conduct.

62C Condition of carrier licence set out in section 152BEC of the Competition and Consumer Act 2010

A carrier licence is subject to the condition set out in Competition and Consumer Act 2010.section 152BEC of the

Note: Section 152BEC of the Competition and Consumer Act 2010 deals with access agreements.

62D Condition of carrier licence set out in section 152CJC of the Competition and Consumer Act 2010

A carrier licence held by an NBN corporation is subject to the condition set out in Competition and Consumer Act 2010.section 152CJC of the

Note: Section 152CJC of the Competition and Consumer Act 2010 deals with rules about the supply of services by NBN corporations.

62E Condition of carrier licence set out in section 37 of the National Broadband Network Companies Act 2011

A carrier licence held by an NBN corporation is subject to the condition set out in National Broadband Network Companies Act 2011.section 37 of the

Note: Section 37 of the National Broadband Network Companies Act 2011 deals with rules about:

the supply of goods and services by NBN corporations; and

the investment of money by NBN corporations; and

the functional separation of NBN corporations; and

the divestment of assets by NBN corporations.

63 Conditions of carrier licence declared by Minister

Conditions applying to each carrier licence

The Minister may, by legislative instrument, declare that each carrier licence is subject to such conditions as are specified in the instrument.

Conditions applying to specified existing carrier licences

The Minister may, by legislative instrument, declare that a specified carrier licence is subject to such conditions as are specified in the instrument.

Note: A licence may be specified by name, by inclusion in a specified class or in any other way.

Conditions applying to specified future carrier licences

The Minister may, by legislative instrument, declare that, in the event that a carrier licence is granted to a specified person during a specified period, the carrier licence is subject to such conditions as are specified in the instrument.

Declarations have effect

A declaration under this section has effect accordingly.

Variation of conditions

The Minister may, by legislative instrument, vary an instrument under subsection (1), (2) or (3).

Revocation of conditions

The Minister may, by legislative instrument, revoke an instrument under subsection (1), (2) or (3).

Notification of conditions—existing licences

As soon as practicable after the Minister makes an instrument under subsection (1), (2), (5) or (6) that relates to a licence, the Minister must give the holder of the licence a copy of the instrument.

Notification of conditions—future licences

As soon as practicable after the Minister makes an instrument under subsection (3) that relates to a licence, the Minister must give the applicant for the licence a copy of the instrument.

Validity not affected by failure to notify conditions

A contravention of subsection (7) or (8) does not affect the validity of an instrument.

Date of effect—future licences

An instrument under subsection (3) relating to a licence takes effect when the licence is granted.

63A Conditions of a carrier licence held by Telstra Limited

Until the first occasion after the commencement of this section on which a declaration under subsection 63(2) takes effect in relation to a carrier licence held by Telstra Limited:

(a) the carrier licence is subject to the conditions set out in sections 7, 8, 9, 10, 12, 13, 14, 15, 16, 17 and 18 of the Telecommunications (Carrier Licence Conditions - Telstra Corporation Limited) Declaration 2019 as in force immediately before the commencement of this section; and

for that purpose, a reference in those sections (and Schedule 1 to that declaration) to the licensee is to be read as a reference to Telstra Limited.

Until the first occasion after the commencement of this section on which a declaration under subsection 63(2) takes effect in relation to a carrier licence held by Telstra Limited:

(a) the carrier licence is subject to the conditions set out in Telecommunications (Carrier Licence Conditions - Telstra Infraco Limited) Declaration 2019; andsection 11 of the

for that purpose, a reference in that section to the licensee is to be read as a reference to Telstra Limited.

If:

(a) a carrier licence held by a particular Telstra company (the first Telstra company) is (whether in accordance with subsection (2) of this section or otherwise) subject to a condition set out in section 11 of the Telecommunications (Carrier Licence Conditions - Telstra Infraco Limited) Declaration 2019; and

a carrier licence held by another Telstra company is also subject to the condition (whether in accordance with subsection (2) of this section or otherwise); and

the other Telstra company complies with the condition;

the first Telstra company is taken to have complied with the condition.

Until the first occasion after the commencement of this section on which a declaration under subsection 63(2) takes effect in relation to a carrier licence held by Telstra Limited:

the carrier licence is subject to:

the conditions set out in an interim Telstra carrier licence condition declaration; and

(ii) the interim conditions set out in the Telecommunications (Carrier Licence Conditions - Telstra Infraco Limited) Declaration 2019; and

for that purpose, a reference in those conditions to the licensee is to be read as a reference to Telstra Limited.

If:

(a) a carrier licence held by a particular Telstra company (the first Telstra company) is (whether in accordance with subsection (4) of this section or otherwise) subject to:

a condition set out in an interim Telstra carrier licence condition declaration; or

(ii) an interim condition set out in the Telecommunications (Carrier Licence Conditions - Telstra Infraco Limited) Declaration 2019; and

a carrier licence held by another Telstra company is also subject to the condition (whether in accordance with subsection (4) of this section or otherwise); and

the other Telstra company complies with the condition;

the first Telstra company is taken to have complied with the condition.

(6) For the purposes of this section, Telstra company means:

Telstra Infraco Limited; or

Telstra Limited.

Note: See also section 581U (transitional—references in legislation to Telstra Infraco Limited).

(7) For the purposes of this section, interim Telstra carrier licence condition declaration means a declaration under subsection 63(2) that:

relates to a carrier licence held by Telstra Infraco Limited; and

came into force during the period:

beginning at the start of the day on which the Bill for the Act that inserted this section was introduced into the Parliament; and

ending immediately before the commencement of this section.

Note: See also section 581U (transitional—references in legislation to Telstra Infraco Limited).

(8) For the purposes of this section, an interim condition set out in the Telecommunications (Carrier Licence Conditions - Telstra Infraco Limited) Declaration 2019 means a condition inserted in that declaration (when the declaration was known as the Telecommunications (Carrier Licence Conditions - Telstra Corporation Limited) Declaration 2019) during the period:

beginning at the start of the day on which the Bill for the Act that inserted this section was introduced into the Parliament; and

ending immediately before the commencement of this section.

64 Consultation about declared licence conditions

Before making an instrument under subsection 63(1), (2), (5) or (6) that relates to a licence, the Minister must first:

cause the holder of the licence to be given a written notice setting out a draft version of the instrument and inviting the holder to make submissions to the Minister on the draft; and

consider any submissions that were received within the time limit specified in the notice.

The time limit specified in a notice under subsection (1) must be at least 30 days.

Before making an instrument under subsection 63(3) that relates to a licence, the Minister must first:

cause the applicant for the licence to be given a written notice setting out a draft version of the instrument and inviting the applicant to make submissions to the Minister on the draft; and

consider any submissions that were received within the time limit specified in the notice.

65 Conditions about foreign ownership or control

A condition of a carrier licence may relate to the extent of foreign ownership or control (whether direct or indirect) of the holder.

Subsection (1) does not, by implication, limit the conditions that may be declared under section 63.

67 Carrier licence conditions—special provisions

(1) A condition of a carrier licence held by a carrier has effect subject to the provisions of a licence under the Radiocommunications Act 1992 under which the carrier is authorised to do something.

A condition of a carrier licence held by a carrier may remove or restrict a right or privilege that the carrier would otherwise have under a provision of this Act (whether or not in the carrier’s capacity as a carrier).

In this section:

this Act includes the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act.

68 Compliance with conditions

A carrier must not contravene a condition of the carrier licence held by the carrier.

A person must not:

aid, abet, counsel or procure a contravention of subsection (1); or

induce, whether by threats or promises or otherwise, a contravention of subsection (1); or

be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or

conspire with others to effect a contravention of subsection (1).

(3) Subsections (1) and (2) are civil penalty provisions.

Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

69 Remedial directions—breach of condition

This section applies if a carrier has contravened, or is contravening, a condition of the carrier licence held by the carrier.

The ACMA may give the carrier a written direction requiring the carrier to take specified action directed towards ensuring that the carrier does not contravene the condition, or is unlikely to contravene the condition, in the future.

The following are examples of the kinds of direction that may be given to a carrier under subsection (2):

a direction that the carrier implement effective administrative systems for monitoring compliance with a condition of the licence;

a direction that the carrier implement a system designed to give the carrier’s employees, agents and contractors a reasonable knowledge and understanding of the requirements of a condition of the licence, in so far as those requirements affect the employees, agents or contractors concerned.

A carrier must not contravene a direction under subsection (2).

Subsection (1) does not apply to a condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH or 151ZI.

Note: Sections 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH and 151ZI are set out in Part 8 (local access lines).

Subsection (1) does not apply to a condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 369.

Note: Section 369 deals with Rules of Conduct under section 367.

Subsection (1) does not apply to a condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 577AD, 577CD or 577ED.

Note: Sections 577AD, 577CD and 577ED deal with undertakings given, or originally given, by Telstra.

Subsection (1) does not apply to a condition set out in Part 3, 4 or 5 of Schedule 1.

Note: Parts 3, 4 and 5 of Schedule 1 deal with access to network information and access to facilities.

Subsection (1) does not apply to the condition set out in clause 84 of Schedule 1.

Note: Clause 84 of Schedule 1 deals with control by Telstra of certain spectrum licences.

(7) Subsection (1) does not apply to the condition set out in Competition and Consumer Act 2010.section 152AZ of the

Note: Section 152AZ of the Competition and Consumer Act 2010 deals with standard access obligations.

(7A) Subsection (1) does not apply to the condition set out in Competition and Consumer Act 2010.section 152BCO of the

Note: Section 152BCO of the Competition and Consumer Act 2010 deals with access determinations.

(7B) Subsection (1) does not apply to the condition set out in Competition and Consumer Act 2010.section 152BDF of the

Note: Section 152BDF of the Competition and Consumer Act 2010 deals with binding rules of conduct.

(7C) Subsection (1) does not apply to the condition set out in Competition and Consumer Act 2010.section 152BEC of the

Note: Section 152BEC of the Competition and Consumer Act 2010 deals with access agreements.

(7D) Subsection (1) does not apply to the condition set out in Competition and Consumer Act 2010.section 152CJC of the

Note: Section 152CJC of the Competition and Consumer Act 2010 deals with rules about the supply of services by NBN corporations.

(7E) Subsection (1) does not apply to the condition set out in National Broadband Network Companies Act 2011.section 37 of the

Note: Section 37 of the National Broadband Network Companies Act 2011 deals with rules about:

the supply of goods and services by NBN corporations; and

the investment of money by NBN corporations; and

the functional separation of NBN corporations; and

the divestment of assets by NBN corporations.

(7F) Subsection (1) does not apply to a condition covered by National Broadband Network Companies Act 2011.section 41 of the

Note: Section 41 of the National Broadband Network Companies Act 2011 deals with rules about the supply of services by NBN corporations.

A direction under subsection (2) is not a legislative instrument.

69AA Remedial directions—breach of conditions relating to access

Scope

This section applies if:

a carrier has contravened, or is contravening, a condition of the carrier licence held by the carrier; and

the condition is set out in Part 3, 4 or 5 of Schedule 1.

Note: Parts 3, 4 and 5 of Schedule 1 deal with access to network information and access to facilities.

Direction

The ACCC may give the carrier a written direction requiring the carrier to take specified action directed towards ensuring that the carrier does not contravene the condition, or is unlikely to contravene the condition, in the future.

The following are examples of the kinds of direction that may be given to a carrier under subsection (2):

a direction that the carrier implement effective administrative systems for monitoring compliance with the condition;

a direction that the carrier implement a system designed to give the carrier’s employees, agents and contractors a reasonable knowledge and understanding of the requirements of the condition, in so far as those requirements affect the employees, agents or contractors concerned.

The ACCC must not give a direction under subsection (2) if the direction would have the effect of:

preventing a designated Telstra successor company from complying with an undertaking in force under section 577A; or

preventing Telstra from complying with an undertaking in force under section 577C or 577E; or

if a final migration plan is in force—requiring a designated Telstra successor company to engage in conduct in connection with matters covered by the final migration plan.

A carrier must not contravene a direction under subsection (2).

A direction under subsection (2) is not a legislative instrument.

70 Formal warnings—breach of condition

The ACMA may issue a formal warning if a carrier contravenes a condition of the carrier licence held by the carrier.

Subsection (1) does not apply to a condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH or 151ZI.

Note: Sections 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH and 151ZI are set out in Part 8 (local access lines).

Subsection (1) does not apply to a condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 369.

Note: Section 369 deals with Rules of Conduct under section 367.

Subsection (1) does not apply to a condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 577AD, 577CD or 577ED.

Note: Sections 577AD, 577CD and 577ED deal with undertakings given, or originally given, by Telstra.

Subsection (1) does not apply to a condition set out in Part 3, 4 or 5 of Schedule 1.

Note: Parts 3, 4 and 5 of Schedule 1 deal with access to network information and access to facilities.

Subsection (1) does not apply to the condition set out in clause 84 of Schedule 1.

Note: Clause 84 of Schedule 1 deals with control by Telstra of certain spectrum licences.

(4) Subsection (1) does not apply to the condition set out in Competition and Consumer Act 2010.section 152AZ of the

Note: Section 152AZ of the Competition and Consumer Act 2010 deals with standard access obligations.

(4A) Subsection (1) does not apply to the condition set out in Competition and Consumer Act 2010.section 152BCO of the

Note: Section 152BCO of the Competition and Consumer Act 2010 deals with access determinations.

(4B) Subsection (1) does not apply to the condition set out in Competition and Consumer Act 2010.section 152BDF of the

Note: Section 152BDF of the Competition and Consumer Act 2010 deals with binding rules of conduct.

(4C) Subsection (1) does not apply to the condition set out in Competition and Consumer Act 2010.section 152BEC of the

Note: Section 152BEC of the Competition and Consumer Act 2010 deals with access agreements.

(4D) Subsection (1) does not apply to the condition set out in Competition and Consumer Act 2010.section 152CJC of the

Note: Section 152CJC of the Competition and Consumer Act 2010 deals with rules about the supply of services by NBN corporations.

(4E) Subsection (1) does not apply to the condition set out in National Broadband Network Companies Act 2011.section 37 of the

Note: Section 37 of the National Broadband Network Companies Act 2011 deals with rules about:

the supply of goods and services by NBN corporations; and

the investment of money by NBN corporations; and

the functional separation of NBN corporations; and

the divestment of assets by NBN corporations.

(4F) Subsection (1) does not apply to a condition covered by National Broadband Network Companies Act 2011.section 41 of the

Note: Section 41 of the National Broadband Network Companies Act 2011 deals with rules about the supply of services by NBN corporations.

The ACCC may issue a formal warning if a carrier contravenes any of the following conditions of the carrier licence held by the carrier:

the condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH or 151ZI;

the condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 369;

the condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 577AD, 577CD or 577ED;

a condition set out in Part 3, 4 or 5 of Schedule 1;

(c) the condition set out in Competition and Consumer Act 2010;section 152AZ of the

(d) the condition set out in Competition and Consumer Act 2010;section 152BCO of the

(e) the condition set out in Competition and Consumer Act 2010;section 152BDF of the

(f) the condition set out in Competition and Consumer Act 2010;section 152BEC of the

(g) the condition set out in Competition and Consumer Act 2010;section 152CJC of the

(h) the condition set out in National Broadband Network Companies Act 2011;section 37 of the

(i) a condition covered by National Broadband Network Companies Act 2011.section 41 of the

71 Surrender of carrier licence

A carrier may, by written notice given to the ACMA, surrender the carrier licence held by the carrier.

72 Cancellation of carrier licence

Failure to pay annual charge

(1) The ACMA may cancel a carrier licence held by a carrier if the carrier fails to pay in full any annual charge on or before the date on which the charge becomes due and payable. For this purpose, annual charge means charge imposed by Part 3 of the Telecommunications (Carrier Licence Charges) Act 1997.

Failure to pay industry levy

The ACMA may cancel a carrier licence held by a carrier if the carrier fails to pay in full any industry levy on or before the date on which the industry levy becomes due and payable.

Note: Industry levy is defined by section 7 to mean levy imposed by the Telecommunications (Industry Levy) Act 2012.

Failure to pay funding charge

(2B) The ACMA may cancel a carrier licence held by a carrier if the carrier fails to pay in full any funding charge on or before the date on which the funding charge becomes due and payable. For this purpose, funding charge means charge imposed by the Telecommunications (Regional Broadband Scheme) Charge Act 2020.

Becoming a disqualified body corporate

If the holder of a carrier licence becomes a disqualified body corporate (within the meaning of section 58), the ACMA may cancel the licence.

Becoming a disqualified partnership

If the holder of a carrier licence becomes a disqualified partnership (within the meaning of section 58), the ACMA may cancel the licence.

Ceasing to be a constitutional corporation, eligible partnership or public body

If, at a particular time, the holder of a carrier licence is none of the following:

a constitutional corporation;

an eligible partnership;

a public body;

the licence is taken to have been cancelled at that time.

Submissions relating to proposed cancellation

The ACMA must not cancel a carrier licence under subsection (1), (2), (3) or (4) unless the ACMA has first:

given the carrier a written notice:

setting out a proposal to cancel the licence; and

inviting the carrier to make a submission to the ACMA on the proposal; and

considered any submission that was received within the time limit specified in the notice.

Time limit

A time limit specified in the notice under subsection (6) must run for at least 7 days.

Notification of cancellation

If a carrier licence held by a person is cancelled, the ACMA must give written notice of the cancellation to the person.

73 Collection of charges relating to carrier licences

Definitions

In this section:

annual charge means charge imposed by Part 3 of the Telecommunications (Carrier Licence Charges) Act 1997.

application charge means charge imposed by Part 2 of the Telecommunications (Carrier Licence Charges) Act 1997.

late payment penalty means an amount that is payable by way of penalty in accordance with a determination under subsection (4).

When application charge due and payable

Application charge imposed on an application for a carrier licence is due and payable when the application is made.

When annual charge due and payable

Annual charge is due and payable at the time ascertained in accordance with a written determination made by the ACMA.

Late payment penalty

The ACMA may, by written instrument, determine that, if any annual charge payable by a person remains unpaid after the time when it became due for payment, the person is liable to pay to the Commonwealth, by way of penalty, an amount calculated at the rate of:

20% per annum; or

if the determination specifies a lower percentage—that lower percentage per annum;

on the amount unpaid, computed from that time.

Determination has effect

A determination under subsection (4) has effect accordingly.

Remission of penalty

A determination under subsection (4) may authorise the ACMA to make decisions about the remission of the whole or a part of an amount of late payment penalty.

Payment of charge and late payment penalty

Annual charge, application charge and late payment penalty are payable to the ACMA on behalf of the Commonwealth.

Recovery of charge and penalty

Annual charge, application charge and late payment penalty may be recovered by the ACMA, on behalf of the Commonwealth, as debts due to the Commonwealth.

Payment to the Commonwealth

Amounts received by way of annual charge, application charge or late payment penalty must be paid to the Commonwealth.

Legislative instrument

A determination under subsection (3) or (4) is a legislative instrument.

73A Refund of application charge

This section applies to application charge that has been paid in respect of an application for a carrier licence if:

the application lapses under section 58A; or

the application has been refused and there is no longer any possibility of the refusal decision being set aside.

The ACMA, on behalf of the Commonwealth, must refund the application charge to the applicant.

The Consolidated Revenue Fund is appropriated for payments under this section.

In this section:

application charge means charge imposed by Part 2 of the Telecommunications (Carrier Licence Charges) Act 1997.

74 Collection of charges on behalf of the Commonwealth

The ACMA may enter into an arrangement with a person under which the person may, on behalf of the Commonwealth, collect payments of charge imposed by the Telecommunications (Carrier Licence Charges) Act 1997.

75 Cancellation of certain exemptions from charge

(1) This section cancels the effect of a provision of another Act that would have the effect of exempting a person from liability to pay charge imposed by the Telecommunications (Carrier Licence Charges) Act 1997.

(2) The cancellation does not apply if the provision of the other Act is enacted after the commencement of this section and refers specifically to charge imposed by the Telecommunications (Carrier Licence Charges) Act 1997.

76 Commonwealth not liable to charge

(1) The Commonwealth is not liable to pay charge imposed by the Telecommunications (Carrier Licence Charges) Act 1997.

(2) A reference in this section to the Commonwealth includes a reference to an authority of the Commonwealth that cannot, by law of the Commonwealth, be made liable to taxation by the Commonwealth.

77 Applications for nominated carrier declarations

A carrier may apply to the ACMA for a nominated carrier declaration in relation to one or more specified network units.

Note: A network unit may be specified by name, by inclusion in a specified class or in any other way.

78 Application to be accompanied by charge etc.

An application must be accompanied by:

(a) the charge (if any) fixed by a determination under Australian Communications and Media Authority Act 2005; andsection 60 of the

the consent of the owner, or each of the owners, of the network units; and

the election of the applicant accepting responsibility for the units for the purposes of this Act.

In this section:

this Act includes the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act.

79 Form of application etc.

The application, consent and election must be:

in writing; and

in accordance with a form approved in writing by the ACMA.

80 Further information

The ACMA may request the applicant to give the ACMA, within the period specified in the request, further information about the application.

The ACMA may refuse to consider the application until the applicant gives the ACMA the information.

81 Making a nominated carrier declaration

After considering the application, the ACMA may declare in writing that the applicant is the nominated carrier in relation to the network units if the ACMA is satisfied that:

if the declaration were made, the applicant would be in a position to comply with all of the obligations imposed on the applicant in the applicant’s capacity as the nominated carrier in relation to the units; and

the making of the declaration will not impede the efficient administration of this Act.

The ACMA may only declare one carrier to be the nominated carrier in relation to the network units.

The ACMA must give a copy of the declaration to:

the applicant; and

the owner, or each of the owners, of the network units.

(4) A copy of the declaration is to be published in the Gazette.

In this section:

this Act includes the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act.

81A Obligations of nominated carrier

If at any time the nominated carrier does not own or operate the network units, this Act nevertheless applies to the nominated carrier in relation to the network units as if they were owned or operated by the nominated carrier.

Subsection (1) does not affect the application of this Act in relation to any other person who owns or operates the network units.

In this section:

this Act includes the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act.

82 Notification of refusal of application

If the ACMA refuses to make a nominated carrier declaration, the ACMA must give written notice of the refusal to:

the applicant; and

the owner, or each of the owners, of the network units.

83 Revocation of nominated carrier declaration

The ACMA may, by writing, revoke a nominated carrier declaration relating to a nominated carrier if the ACMA is satisfied that, if it were assumed that the nominated carrier were to apply for the declaration, the ACMA would refuse to make the declaration.

The ACMA must, by writing, revoke the nominated carrier declaration relating to a nominated carrier and relating to one or more network units if:

the owner, or any of the owners, of the network units gives the ACMA a written notice stating that the owner does not consent to the continued operation of the declaration; or

the nominated carrier gives the ACMA a written notice stating that it does not accept responsibility for the units for the purposes of this Act.

The ACMA must give a copy of the revocation to:

the former nominated carrier; and

the owner, or each of the owners, of the network units concerned.

(4) A copy of the revocation must be published in the Gazette.

A revocation under subsection (1) or (2) takes effect on the date specified in the revocation.

The ACMA must not revoke a nominated carrier declaration under subsection (1) unless the ACMA has first:

given the nominated carrier a written notice:

setting out a proposal to revoke the declaration; and

inviting the nominated carrier to make a submission to the ACMA on the proposal; and

considered any submission that was received within the time limit specified in the notice.

A time limit specified in a notice under subsection (6) must run for at least 7 days.

In this section:

this Act includes the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act.

84 Register of nominated carrier declarations and carrier licences

The ACMA is to maintain a Register in which the ACMA includes:

all nominated carrier declarations currently in force; and

all carrier licences currently in force; and

all conditions of such licences.

The Register may be maintained by electronic means.

(3) A person may, on payment of the charge (if any) fixed by a determination under Australian Communications and Media Authority Act 2005:section 60 of the

inspect the Register; and

make a copy of, or take extracts from, the Register.

For the purposes of this section, if the Register is maintained by electronic means, a person is taken to have made a copy of, or taken an extract from, the Register if the ACMA gives the person a printout of, or of the relevant parts of, the Register.

If a person requests that a copy be provided in an electronic form, the ACMA may provide the relevant information:

on a data processing device; or

by way of electronic transmission.

85 Simplified outline

The following is a simplified outline of this Part:

• A service provider is:

a carriage service provider; or

a content service provider.

• A carriage service provider is a person who supplies, or proposes to supply, certain carriage services.

• A content service provider is a person who supplies, or proposes to supply, certain content services.

• Service providers must comply with the service provider rules.

86 Service providers

For the purposes of this Act, a service provider is:

a carriage service provider; or

a content service provider.

Note 1: Carriage service provider is defined by section 87.

Note 2: Content service provider is defined by section 97.

87 Carriage service providers

Basic definition

For the purposes of this Act, if a person supplies, or proposes to supply, a listed carriage service to the public using:

a network unit owned by one or more carriers; or

a network unit in relation to which a nominated carrier declaration is in force;

the person is a carriage service provider.

International carriage service providers

For the purposes of this Act, if:

a person supplies, or proposes to supply, a listed carriage service to the public using:

a line link connecting a place in Australia and a place outside Australia; or

a satellite-based facility; and

the carriage service is mentioned in paragraph 16(1)(b) or (c);

the person is a carriage service provider.

Secondary users of exempt network units

For the purposes of this Act, if:

a carrier or an exempt network-user supplies a carriage service as mentioned in any of the following provisions:

paragraph 45(2)(b);

paragraph 47(5)(b);

paragraph 47(7)(b);

paragraph 47(8)(b);

paragraph 48(2)(d);

paragraph 48(4)(b);

paragraph 49(2)(b);

paragraph 50(2)(c);

paragraph 50(5)(c);

paragraph 50(7)(c); and

the carriage service is supplied to the public;

the carrier or the exempt network-user, as the case may be, is a carriage service provider.

Declared carriage service providers

(4) The Minister may, by legislative instrument, declare that a specified person who supplies, or proposes to supply, a specified listed carriage service is a carriage service provider for the purposes of this Act. A declaration under this subsection has effect accordingly.

Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.

Intermediaries

For the purposes of this Act, if:

(a) a person (the first person), for reward, arranges, or proposes to arrange, for the supply of a listed carriage service by a carriage service provider to a third person; and

the first person would be a carriage service provider under subsection (1) or (2) if the person had supplied that carriage service; and

the commercial relationship between the first person and the third person is, or is to be, governed (in whole or in part) by an agreement between the first person and the third person that deals with one or more matters relating to the continuing supply of the service (whether or not that supply is, or is to be, for a readily ascertainable period); and

the conditions (if any) specified in a determination under subsection (8) are satisfied;

the person is a carriage service provider.

Note: Under carriage service intermediary is defined to mean a person who is a carriage service provider under this subsection.section 7,

For the purposes of paragraph (5)(a), it does not matter whether the first person makes arrangements as agent for:

the carriage service provider; or

the third person; or

any other person.

(7) The reference in paragraph (5)(a) to reward does not include a reference to remuneration received in the capacity of employee.

The Minister may, by legislative instrument, make a determination for the purposes of paragraph (5)(d).

88 Supply to the public

This section sets out the circumstances in which a carriage service is taken, for the purposes of subsections 87(1), (2) and (3), to be supplied to the public.

If:

a carriage service is used for the carriage of communications between 2 end-users; and

each end-user is outside the immediate circle of the supplier of the service;

the service is supplied to the public.

If:

a carriage service is used to supply point-to-multipoint services to end-users; and

at least one end-user is outside the immediate circle of the supplier of the service;

the service is supplied to the public.

If:

a carriage service is used to supply designated content services (other than point-to-multipoint services) to end-users; and

at least one end-user is outside the immediate circle of the supplier of the service;

the service is supplied to the public.

(5) For the purposes of this section, a designated content service is a content service of a kind specified in a written determination made by the Minister.

A determination under subsection (5) is a legislative instrument.

89 Exemption from definition—customers located on the same premises

If:

the supplier of a carriage service manages a business or other activity carried on at particular premises; and

that business or activity is the sole or principal use of the premises; and

all of the customers of the service are physically present on the premises;

subsections 87(1) and (2) do not apply to the carriage service.

In this section:

premises includes:

land; and

a group of buildings that is located in the same vicinity.

90 Exemption from definition—defence

If the sole or principal use of a carriage service is use by, or on behalf of, a defence organisation to carry communications necessary or desirable for defence purposes, subsections 87(1) and (2) do not apply to the service.

In this section:

defence organisation means:

the Defence Department; or

the Australian Defence Force; or

an organisation of a foreign country, so far as the organisation:

has functions corresponding to functions of, or of a part of, the Defence Department or the Australian Defence Force; and

is authorised by the Commonwealth to operate or train in Australia or an external Territory; or

a part of such an organisation or body.

91 Exemption from definition—intelligence operations

Subsections 87(1) and (2) do not apply to a carriage service that is used wholly or principally:

by the Australian Secret Intelligence Service; or

by the Australian Security Intelligence Organisation; or

by the Australian Signals Directorate.

92 Exemption from definition—transport authorities

Subsections 87(1) and (2) do not apply to a carriage service if the sole or principal use of the carriage service is use by Airservices Australia to carry communications necessary or desirable for the workings of aviation services.

Subsections 87(1) and (2) do not apply to a carriage service if the sole or principal use of the unit is use by a State or Territory transport authority to carry communications necessary or desirable for the workings of the following services:

train services of a kind provided by the authority;

bus or other road services of a kind provided by the authority;

tram services of a kind provided by the authority.

Subsections 87(1) and (2) do not apply to a carriage service if the sole or principal use of the carriage service is use by a rail corporation to carry communications necessary or desirable for the workings of train services.

In this section:

rail corporation means a body corporate that manages or operates either or both of the following: rail transport services; rail transport infrastructure.

rail transport services;

rail transport infrastructure.

93 Exemption from definition—broadcasting services

If:

the sole or principal use of a carriage service is use to carry communications that are necessary or desirable for either or both of the following purposes:

the supply of broadcasting services to the public;

the supply of a secondary carriage service by means of the main carrier signal of a primary broadcasting service; and

those communications are neither:

communications carried between the head end of a cable transmission system and the equipment used by an end-user to receive a broadcasting service; nor

communications carried from a broadcasting transmitter transmitting a signal of a broadcasting service to its intended audience;

subsections 87(1) and (2) do not apply to the carriage service.

(2) If the sole or principal use of a carriage service is use for the purpose of a re-transmission of a kind mentioned in paragraph 212(1)(a) or (b) of the Broadcasting Services Act 1992, subsections 87(1) and (2) of this Act do not apply to the service.

(2A) For the purposes of this section, disregard subsection 212(3) of the Broadcasting Services Act 1992.

In this section:

broadcasting transmitter means a radiocommunications transmitter used, or for use, to deliver a broadcasting service.

head end of a cable transmission system means a facility that: is connected to a line link; and is used, or for use, in connection with the delivery of a broadcasting service; and processes signals for delivery by the line link to end-users having equipment appropriate for receiving the service.

is connected to a line link; and

is used, or for use, in connection with the delivery of a broadcasting service; and

processes signals for delivery by the line link to end-users having equipment appropriate for receiving the service.

94 Exemption from definition—electricity supply bodies

If the sole or principal use of a carriage service is use by an electricity supply body to carry communications necessary or desirable for:

managing the generation, transmission, distribution or supply of electricity; or

charging for the supply of electricity;

subsection 87(1) does not apply to the service.

In this section:

electricity supply body means an authority, or a body corporate, that carries on a business, or performs a function, of: generating, transmitting, distributing or supplying electricity; or managing the generation, transmission, distribution or supply of electricity.

generating, transmitting, distributing or supplying electricity; or

managing the generation, transmission, distribution or supply of electricity.

95 Exemption from definition—Ministerial determination

The Minister may, by legislative instrument, determine that a specified eligible definition provision does not apply in relation to:

a specified carriage service; or

a specified person.

Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.

A determination under this section may be unconditional or subject to such conditions (if any) as are specified in the determination.

A determination under this section has effect accordingly.

(5) For the purposes of this section, each of the following provisions is an eligible definition provision:

subsection 87(1);

subsection 87(2);

subsection 87(3);

subsection 87(5).

96 Exemption from certain regulatory provisions—Ministerial determination

(1) The Minister may, by legislative instrument, determine that a specified regulatory provision does not apply to a specified person in the person’s capacity as a designated carriage service provider. For this purpose, a designated carriage service provider is a person who is a carriage service provider under subsection 87(4) or (5).

Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.

A determination under this section may be unconditional or subject to such conditions (if any) as are specified in the determination.

A determination under this section has effect accordingly.

(5) For the purposes of this section, a regulatory provision is a provision of:

this Act; or

any other law of the Commonwealth;

that contains a reference to a carriage service provider or to carriage service providers.

97 Content service providers

(1) For the purposes of this Act, if a person uses, or proposes to use, a listed carriage service to supply a content service to the public, the person is a content service provider.

For the purposes of subsection (1), a content service is supplied to the public if, and only if, at least one end-user of the content service is outside the immediate circle of the supplier of the content service.

98 Service provider rules

(1) For the purposes of this Act, the following are the service provider rules:

the rules set out in Schedule 2;

the rules (if any) set out in service provider determinations in force under section 99.

(2) In addition to the rules mentioned in subsection (1), the rule set out in subsection 152BA(2) of the Competition and Consumer Act 2010 is a service provider rule for the purposes of this Act.

Note: Subsection 152BA(2) of the Competition and Consumer Act 2010 provides that a carriage service provider must comply with any standard access obligations that are applicable to the provider.

(3) In addition to the rules mentioned in subsection (1), the rule set out in subsection 152BCP(2) of the Competition and Consumer Act 2010 is a service provider rule for the purposes of this Act.

Note: Subsection 152BCP(2) of the Competition and Consumer Act 2010 provides that a carriage service provider must comply with any access determinations that are applicable to the provider.

(4) In addition to the rules mentioned in subsection (1), the rule set out in subsection 152BDG(2) of the Competition and Consumer Act 2010 is a service provider rule for the purposes of this Act.

Note: Subsection 152BDG(2) of the Competition and Consumer Act 2010 provides that a carriage service provider must comply with any binding rules of conduct that are applicable to the provider.

(5) In addition to the rules mentioned in subsection (1), the rule set out in subsection 152BED(2) of the Competition and Consumer Act 2010 is a service provider rule for the purposes of this Act.

Note: Subsection 152BED(2) of the Competition and Consumer Act 2010 deals with access agreements.

(6) In addition to the rules mentioned in subsection (1), the rule set out in subsection 152CJD(2) of the Competition and Consumer Act 2010 is a service provider rule for the purposes of this Act.

Note: Subsection 152CJD(2) of the Competition and Consumer Act 2010 deals with rules about the supply of services by NBN corporations.

(7) In addition to the rules mentioned in subsection (1), the rule set out in subsection 38(2) of the National Broadband Network Companies Act 2011 is a service provider rule for the purposes of this Act.

Note: Subsection 38(2) of the National Broadband Network Companies Act 2011 deals with rules about:

the supply of goods and services by NBN corporations; and

the investment of money by NBN corporations; and

the functional separation of NBN corporations; and

the divestment of assets by NBN corporations.

99 Service provider determinations

The ACMA may, by legislative instrument, make a determination setting out rules that apply to service providers in relation to the supply of either or both of the following:

specified carriage services;

specified content services.

The determination is called a service provider determination.

(1A) The Minister may, by legislative instrument, make a determination setting out rules that apply to carriage service providers in relation to the supply of specified carriage services. The determination is called a service provider determination.

A service provider determination has effect only to the extent that:

it is authorised by paragraph 51(v) of the Constitution (either alone or when read together with paragraph 51(xxxix) of the Constitution); or

both:

it is authorised by section 122 of the Constitution; and

it would have been authorised by paragraph 51(v) of the Constitution (either alone or when read together with paragraph 51(xxxix) of the Constitution) if section 51 of the Constitution extended to the Territories.

The ACMA must not make a service provider determination unless the determination relates to a matter specified in the regulations or in section 346.

Before making a service provider determination, the ACMA must consult the ACCC.

A service provider determination may make provision for or in relation to a particular matter by empowering the ACMA to make decisions of an administrative character.

A service provider determination under subsection (1) has no effect to the extent to which it is inconsistent with a service provider determination under subsection (1A).

100 Exemptions from service provider rules

The Minister may, by legislative instrument, determine that a specified service provider is exempt from the service provider rules.

The Minister may, by legislative instrument, determine that a specified service provider is exempt from a specified service provider rule.

A determination under this section may be unconditional or subject to such conditions (if any) as are specified in the determination.

A determination under this section has effect accordingly.

101 Service providers must comply with service provider rules

A service provider must comply with the service provider rules that apply to the provider.

Note: Service provider rules is defined by section 98.

A person must not:

aid, abet, counsel or procure a contravention of subsection (1); or

induce, whether by threats or promises or otherwise, a contravention of subsection (1); or

be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or

conspire with others to effect a contravention of subsection (1).

(3) Subsections (1) and (2) are civil penalty provisions.

Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

102 Remedial directions—breach of service provider rules

This section applies if a service provider has contravened, or is contravening, a service provider rule.

The ACMA may give the provider a written direction requiring the provider to take specified action directed towards ensuring that the provider does not contravene the rule, or is unlikely to contravene the rule, in the future.

The following are examples of the kinds of direction that may be given to a service provider under subsection (2):

a direction that the provider implement effective administrative systems for monitoring compliance with a service provider rule;

a direction that the provider implement a system designed to give the provider’s employees, agents and contractors a reasonable knowledge and understanding of the requirements of a service provider rule, in so far as those requirements affect the employees, agents or contractors concerned.

A service provider must not contravene a direction under subsection (2).

Subsection (1) does not apply to the rule set out in Part 1 of Schedule 2 in so far as that rule relates to section 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH or 151ZI.

Note: Sections 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH and 151ZI are set out in Part 8 (local access lines).

Subsection (1) does not apply to the rule set out in Part 1 of Schedule 2 in so far as that rule relates to section 369.

Note: Section 369 deals with Rules of Conduct under section 367.

(6) Subsection (1) does not apply to the rule set out in subsection 152BA(2) of the Competition and Consumer Act 2010.

Note: Subsection 152BA(2) of the Competition and Consumer Act 2010 provides that a carriage service provider must comply with any standard access obligations that are applicable to the provider.

(6A) Subsection (1) does not apply to the rule set out in subsection 152BCP(2) of the Competition and Consumer Act 2010.

Note: Subsection 152BCP(2) of the Competition and Consumer Act 2010 provides that a carriage service provider must comply with any access determinations that are applicable to the provider.

(6B) Subsection (1) does not apply to the rule set out in subsection 152BDG(2) of the Competition and Consumer Act 2010.

Note: Subsection 152BDG(2) of the Competition and Consumer Act 2010 provides that a carriage service provider must comply with any binding rules of conduct that are applicable to the provider.

(6C) Subsection (1) does not apply to the rule set out in subsection 152BED(2) of the Competition and Consumer Act 2010.

Note: Subsection 152BED(2) of the Competition and Consumer Act 2010 deals with access agreements.

(6D) Subsection (1) does not apply to the rule set out in subsection 152CJD(2) of the Competition and Consumer Act 2010.

Note: Subsection 152CJD(2) of the Competition and Consumer Act 2010 deals with rules about the supply of services by NBN corporations.

(6E) Subsection (1) does not apply to the rule set out in subsection 38(2) of the National Broadband Network Companies Act 2011.

Note: Subsection 38(2) of the National Broadband Network Companies Act 2011 deals with rules about:

the supply of goods and services by NBN corporations; and

the investment of money by NBN corporations; and

the functional separation of NBN corporations; and

the divestment of assets by NBN corporations.

A direction under subsection (2) is not a legislative instrument.

103 Formal warnings—breach of service provider rules

The ACMA may issue a formal warning if a person contravenes a service provider rule.

Subsection (1) does not apply to the rule set out in Part 1 of Schedule 2 in so far as that rule relates to section 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH or 151ZI.

Note: Sections 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH and 151ZI are set out in Part 8 (local access lines).

Subsection (1) does not apply to the rule set out in Part 1 of Schedule 2 in so far as that rule relates to section 369.

Note: Section 369 deals with Rules of Conduct under section 367.

(3) Subsection (1) does not apply to the rule set out in subsection 152BA(2) of the Competition and Consumer Act 2010.

Note: Subsection 152BA(2) of the Competition and Consumer Act 2010 provides that a carriage service provider must comply with any standard access obligations that are applicable to the provider.

(3A) Subsection (1) does not apply to the rule set out in subsection 152BCP(2) of the Competition and Consumer Act 2010.

Note: Subsection 152BCP(2) of the Competition and Consumer Act 2010 provides that a carriage service provider must comply with any access determinations that are applicable to the provider.

(3B) Subsection (1) does not apply to the rule set out in subsection 152BDG(2) of the Competition and Consumer Act 2010.

Note: Subsection 152BDG(2) of the Competition and Consumer Act 2010 provides that a carriage service provider must comply with any binding rules of conduct that are applicable to the provider.

(3C) Subsection (1) does not apply to the rule set out in subsection 152BED(2) of the Competition and Consumer Act 2010.

Note: Subsection 152BED(2) of the Competition and Consumer Act 2010 deals with access agreements.

(3D) Subsection (1) does not apply to the rule set out in subsection 152CJD(2) of the Competition and Consumer Act 2010.

Note: Subsection 152CJD(2) of the Competition and Consumer Act 2010 deals with rules about the supply of services by NBN corporations.

(3E) Subsection (1) does not apply to the rule set out in subsection 38(2) of the National Broadband Network Companies Act 2011.

Note: Subsection 38(2) of the National Broadband Network Companies Act 2011 deals with rules about:

the supply of goods and services by NBN corporations; and

the investment of money by NBN corporations; and

the functional separation of NBN corporations; and

the divestment of assets by NBN corporations.

(4) The ACCC may issue a formal warning if a person contravenes the service provider rule set out in subsection 152BA(2) of the Competition and Consumer Act 2010.

(4A) The ACCC may issue a formal warning if a person contravenes the service provider rule set out in subsection 152BCP(2) of the Competition and Consumer Act 2010.

(4B) The ACCC may issue a formal warning if a person contravenes the service provider rule set out in subsection 152BDG(2) of the Competition and Consumer Act 2010.

(4C) The ACCC may issue a formal warning if a person contravenes the service provider rule set out in subsection 152BED(2) of the Competition and Consumer Act 2010.

(4D) The ACCC may issue a formal warning if a person contravenes the service provider rule set out in subsection 152CJD(2) of the Competition and Consumer Act 2010.

(4E) The ACCC may issue a formal warning if a person contravenes the service provider rule set out in subsection 38(2) of the National Broadband Network Companies Act 2011.

The ACCC may issue a formal warning if a person contravenes the service provider rule set out in Part 1 of Schedule 2 in so far as that rule relates to section 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH or 151ZI.

The ACCC may issue a formal warning if a person contravenes the service provider rule set out in Part 1 of Schedule 2 in so far as that rule relates to section 369.

106 Simplified outline

The following is a simplified outline of this Part.

• Bodies and associations that represent sections of the telecommunications industry, the telemarketing industry or the fax marketing industry may develop industry codes.

• Industry codes may be registered by the ACMA.

• Compliance with an industry code is voluntary unless the ACMA directs a particular participant in the telecommunications industry, the telemarketing industry or the fax marketing industry to comply with the code.

• The ACMA has a reserve power to make an industry standard if there are no industry codes or if an industry code is deficient.

• Compliance with industry standards is mandatory.

107 Industry codes

For the purposes of this Part, an industry code is a code developed under this Part (whether or not in response to a request under this Part).

108 Industry standards

For the purposes of this Part, an industry standard is a standard determined under this Part.

108A Electronic messaging service provider

(1) For the purposes of this Part, if a person supplies, or proposes to supply, an electronic messaging service to the public, the person is an electronic messaging service provider.

For the purposes of subsection (1), a service is supplied to the public if, and only if, at least one end-user of the service is outside the immediate circle of the supplier of the service.

In this section:

electronic message has the same meaning as in the Spam Act 2003.

electronic messaging service means a service that enables any or all of the following electronic messages to be sent or received:

web-based email;

instant messages;

text messages;

messages of a kind specified in the regulations.

message has the same meaning as in the Spam Act 2003.

108B Telecommunications industry

For the purposes of this Part, the telecommunications industry includes an industry that involves carrying on business as an electronic messaging service provider.

109 Telecommunications activity

For the purposes of this Part, a telecommunications activity is an activity that consists of:

carrying on business as a carrier; or

carrying on business as a carriage service provider; or

supplying goods or services for use in connection with the supply of a listed carriage service; or

supplying a content service using a listed carriage service; or

manufacturing or importing customer equipment or customer cabling; or

installing, maintaining, operating or providing access to:

a telecommunications network; or

a facility;

used to supply a listed carriage service; or

carrying on business as an electronic messaging service provider.

109B Telemarketing activity

(1) For the purposes of this Part, a telemarketing activity is an activity to which subsection (2), (3) or (4) applies.

This subsection applies to an activity that:

(a) is carried on by a person (the first person) under a contract or arrangement (other than a contract of employment); and

consists of:

using telemarketing calls to market, advertise or promote goods or services, where the first person is not the supplier or prospective supplier of the goods or services; or

using telemarketing calls to advertise or promote a supplier or prospective supplier of goods or services, where the first person is not the supplier or prospective supplier of the goods or services; or

using telemarketing calls to market, advertise or promote land or interests in land, where the first person is not the supplier or prospective supplier of the land or interests in land; or

using telemarketing calls to advertise or promote a supplier or prospective supplier of land or interests in land, where the first person is not the supplier or prospective supplier of the land or interests in land; or

using telemarketing calls to market, advertise or promote business opportunities or investment opportunities, where the first person is not the provider or prospective provider of the business opportunities or investment opportunities; or

using telemarketing calls to advertise or promote a provider, or prospective provider, of business opportunities or investment opportunities, where the first person is not the provider or prospective provider of the business opportunities or investment opportunities.

This subsection applies to an activity carried on by a person if the activity consists of:

using telemarketing calls to market, advertise or promote goods or services, where the person is the supplier or prospective supplier of the goods or services; or

using telemarketing calls to advertise or promote a supplier or prospective supplier of goods or services, where the person is the supplier or prospective supplier of the goods or services; or

using telemarketing calls to market, advertise or promote land or interests in land, where the person is the supplier or prospective supplier of the land or interests in land; or

using telemarketing calls to advertise or promote a supplier or prospective supplier of land or interests in land, where the person is the supplier or prospective supplier of the land or interests in land; or

using telemarketing calls to market, advertise or promote business opportunities or investment opportunities, where the person is the provider or prospective provider of the business opportunities or investment opportunities; or

using telemarketing calls to advertise or promote a provider, or prospective provider, of business opportunities or investment opportunities, where the person is the provider or prospective provider of the business opportunities or investment opportunities.

This subsection applies to an activity carried on by a person if the activity consists of:

using telemarketing calls to solicit donations; or

using telemarketing calls to conduct opinion polling; or

using telemarketing calls to carry out standard questionnaire-based research.

(5) An expression (other than telemarketing call) used in this section and in section 5 of the Do Not Call Register Act 2006 has the same meaning in this section as it has in that section.

109C Fax marketing activity

(1) For the purposes of this Part, a fax marketing activity is an activity to which subsection (2), (3) or (4) applies.

This subsection applies to an activity that:

(a) is carried on by a person (the first person) under a contract or arrangement (other than a contract of employment); and

consists of:

using marketing faxes to market, advertise or promote goods or services, where the first person is not the supplier or prospective supplier of the goods or services; or

using marketing faxes to advertise or promote a supplier or prospective supplier of goods or services, where the first person is not the supplier or prospective supplier of the goods or services; or

using marketing faxes to market, advertise or promote land or interests in land, where the first person is not the supplier or prospective supplier of the land or interests in land; or

using marketing faxes to advertise or promote a supplier or prospective supplier of land or interests in land, where the first person is not the supplier or prospective supplier of the land or interests in land; or

using marketing faxes to market, advertise or promote business opportunities or investment opportunities, where the first person is not the provider or prospective provider of the business opportunities or investment opportunities; or

using marketing faxes to advertise or promote a provider, or prospective provider, of business opportunities or investment opportunities, where the first person is not the provider or prospective provider of the business opportunities or investment opportunities.

This subsection applies to an activity carried on by a person if the activity consists of:

using marketing faxes to market, advertise or promote goods or services, where the person is the supplier or prospective supplier of the goods or services; or

using marketing faxes to advertise or promote a supplier or prospective supplier of goods or services, where the person is the supplier or prospective supplier of the goods or services; or

using marketing faxes to market, advertise or promote land or interests in land, where the person is the supplier or prospective supplier of the land or interests in land; or

using marketing faxes to advertise or promote a supplier or prospective supplier of land or interests in land, where the person is the supplier or prospective supplier of the land or interests in land; or

using marketing faxes to market, advertise or promote business opportunities or investment opportunities, where the person is the provider or prospective provider of the business opportunities or investment opportunities; or

using marketing faxes to advertise or promote a provider, or prospective provider, of business opportunities or investment opportunities, where the person is the provider or prospective provider of the business opportunities or investment opportunities.

This subsection applies to an activity carried on by a person if the activity consists of:

using marketing faxes to solicit donations; or

using marketing faxes to conduct opinion polling; or

using marketing faxes to carry out standard questionnaire-based research.

(5) An expression (other than marketing fax) used in this section and in section 5B of the Do Not Call Register Act 2006 has the same meaning in this section as it has in that section.

110 Sections of the telecommunications industry

(1) For the purposes of this Part, sections of the telecommunications industry are to be ascertained in accordance with this section.

(2) For the purposes of this Part, each of the following groups is a section of the telecommunications industry:

carriers;

service providers;

carriage service providers;

carriage service providers who supply standard telephone services;

carriage service providers who supply public mobile telecommunications services;

content service providers;

persons who perform cabling work (within the meaning of Division 9 of Part 21);

persons who manufacture or import customer equipment or customer cabling;

electronic messaging service providers;

persons who install:

optical fibre lines; or

facilities used, or for use, in or in connection with optical fibre lines.

The ACMA may, by written instrument, determine that persons carrying on, or proposing to carry on, one or more specified kinds of telecommunications activity constitute a section of the telecommunications industry for the purposes of this Part.

The section must be identified in the determination by a unique name and/or number.

A determination under subsection (3) has effect accordingly.

Sections of the telecommunications industry determined under subsection (3):

need not be mutually exclusive; and

may consist of the aggregate of any 2 or more sections of the telecommunications industry mentioned in subsection (2) or determined under subsection (3); and

may be subsets of a section of the telecommunications industry mentioned in subsection (2) or determined under subsection (3).

Subsection (6) does not, by implication, limit subsection (3).

(8) A copy of a determination under subsection (3) is to be published in the Gazette.

110B Sections of the telemarketing industry

(1) For the purposes of this Part, sections of the telemarketing industry are to be ascertained in accordance with this section.

If no determination is in force under subsection (3), all of the persons carrying on, or proposing to carry on, telemarketing activities constitute a single section of the telemarketing industry for the purposes of this Part.

The ACMA may, by legislative instrument, determine that persons carrying on, or proposing to carry on, one or more specified kinds of telemarketing activity constitute a section of the telemarketing industry for the purposes of this Part.

The section must be identified in the determination by a unique name and/or number.

A determination under subsection (3) has effect accordingly.

Sections of the telemarketing industry determined under subsection (3):

need not be mutually exclusive; and

may consist of the aggregate of any 2 or more sections of the telemarketing industry mentioned in subsection (2) or determined under subsection (3); and

may be subsets of a section of the telemarketing industry mentioned in subsection (2) or determined under subsection (3).

Subsection (6) does not, by implication, limit subsection (3).

110C Sections of the fax marketing industry

(1) For the purposes of this Part, sections of the fax marketing industry are to be ascertained in accordance with this section.

If no determination is in force under subsection (3), all of the persons carrying on, or proposing to carry on, fax marketing activities constitute a single section of the fax marketing industry for the purposes of this Part.

The ACMA may, by legislative instrument, determine that persons carrying on, or proposing to carry on, one or more specified kinds of fax marketing activity constitute a section of the fax marketing industry for the purposes of this Part.

The section must be identified in the determination by a unique name and/or number.

A determination under subsection (3) has effect accordingly.

Sections of the fax marketing industry determined under subsection (3):

need not be mutually exclusive; and

may consist of the aggregate of any 2 or more sections of the fax marketing industry mentioned in subsection (2) or determined under subsection (3); and

may be subsets of a section of the fax marketing industry mentioned in subsection (2) or determined under subsection (3).

Subsection (6) does not, by implication, limit subsection (3).

111 Participants in a section of the telecommunications industry

For the purposes of this Part, if a person is a member of a group that constitutes a section of the telecommunications industry, the person is a participant in that section of the telecommunications industry.

111AA Participants in a section of the telemarketing industry

For the purposes of this Part, if a person is a member of a group that constitutes a section of the telemarketing industry, the person is a participant in that section of the telemarketing industry.

111AB Participants in a section of the fax marketing industry

For the purposes of this Part, if a person is a member of a group that constitutes a section of the fax marketing industry, the person is a participant in that section of the fax marketing industry.

111B Unsolicited commercial electronic messages

(1) For the purposes of this Part, an unsolicited commercial electronic message is a commercial electronic message that is sent:

without the consent of the relevant electronic account-holder; or

to a non-existent electronic address.

(2) An expression used in this section and in the Spam Act 2003 has the same meaning in this section as it has in that Act.

112 Statement of regulatory policy

(1) The Parliament intends that bodies or associations that the ACMA is satisfied represent sections of the telecommunications industry should develop codes (industry codes) that are to apply to participants in the respective sections of the industry in relation to the telecommunications activities of the participants.

(1B) The Parliament intends that bodies or associations that the ACMA is satisfied represent sections of the telemarketing industry should develop codes (industry codes) that are to apply to participants in the respective sections of the industry in relation to the telemarketing activities of the participants.

(1C) The Parliament intends that bodies or associations that the ACMA is satisfied represent sections of the fax marketing industry should develop codes (industry codes) that are to apply to participants in the respective sections of the industry in relation to the fax marketing activities of the participants.

The Parliament intends that the ACMA, in exercising its powers under sections 117, 118, 119, 123, 124, 125, 125AA, 125A and 125B, will act in a manner that, in the opinion of the ACMA, enables public interest considerations to be addressed in a way that does not impose undue financial and administrative burdens on participants in sections of the telecommunications industry, the telemarketing industry or the fax marketing industry.

In determining whether public interest considerations are being addressed in a way that does not impose undue financial and administrative burdens on participants in sections of the telecommunications industry (other than electronic messaging service providers), the ACMA must have regard to:

the number of customers who would be likely to benefit from the code or standard concerned; and

the extent to which those customers are residential or small business customers; and

the legitimate business interests of participants in sections of the telecommunications industry; and

the public interest, including the public interest in the efficient, equitable and ecologically sustainable supply of:

carriage services; and

goods for use in connection with carriage services; and

services for use in connection with carriage services;

in a manner that reflects the legitimate expectations of the Australian community.

In determining whether public interest considerations are being addressed in a way that does not impose undue financial and administrative burdens on participants in the section of the telecommunications industry that consists of electronic messaging service providers, the ACMA must have regard to:

the number of end-users who would be likely to benefit from the code or standard concerned; and

the extent to which those end-users are residential or small business end-users; and

the legitimate business interests of electronic messaging service providers.

In determining whether public interest considerations are being addressed in a way that does not impose undue financial and administrative burdens on participants in sections of the telemarketing industry, the ACMA must have regard to:

the number of persons who would be likely to benefit from the code or standard concerned; and

the extent to which those persons are householders or small business operators; and

the legitimate business interests of participants in sections of the telemarketing industry.

In determining whether public interest considerations are being addressed in a way that does not impose undue financial and administrative burdens on participants in sections of the fax marketing industry, the ACMA must have regard to:

the number of persons who would be likely to benefit from the code or standard concerned; and

the extent to which those persons are householders or small business operators; and

the legitimate business interests of participants in sections of the fax marketing industry.

Subsections (3), (3A), (3B), (3C) and (3D) do not, by implication, limit the matters to which regard may be had.

113 Examples of matters that may be dealt with by industry codes and industry standards

This section sets out examples of matters that may be dealt with by industry codes and industry standards.

The applicability of a particular example will depend on which section of the telecommunications industry, the telemarketing industry or the fax marketing industry is involved.

The examples are as follows:

telling customers about:

goods or services on offer; and

the prices of those goods or services; and

the other terms and conditions on which those goods or services are offered;

giving customers information about performance indicators customers can use to evaluate the quality of services;

regular reporting to customers about performance against those performance indicators;

the internal handling of customer complaints;

reporting about customer complaints;

privacy and, in particular:

the protection of personal information; and

the intrusive use of telecommunications by carriers or service providers; and

the monitoring or recording of communications; and

calling number display; and

the provision of directory products and services;

the “churning” of customers;

security deposits given by customers;

debt collection practices;

customer credit practices;

disconnection of customers;

ensuring that customers have an informed basis on which to enter into agreements of a kind mentioned in paragraph 22(2)(d) or (e) or (4)(a) (which deal with boundaries of telecommunications networks);

the quality of standard telephone services;

the accuracy of billing of customers of carriage service providers in relation to the supply of standard telephone services;

the timeliness and comprehensibility of bills;

the procedures to be followed in order to generate standard billing reports to assist in the investigation of customer complaints about bills;

the design features of:

optical fibre lines; or

facilities used, or for use, in or in connection with optical fibre lines;

performance requirements to be met by:

optical fibre lines; or

facilities used, or for use, in or in connection with optical fibre lines;

the characteristics of carriage services supplied using optical fibre lines;

performance requirements to be met by carriage services supplied using optical fibre lines;

procedures to be followed by:

internet service providers; and

electronic messaging service providers;

in dealing with unsolicited commercial electronic messages (including procedures relating to the provision or use of regularly updated software for filtering unsolicited commercial electronic messages);

giving customers information about the availability, use and appropriate application of software for filtering unsolicited commercial electronic messages;

action to be taken to assist in the development and evaluation of software for filtering unsolicited commercial electronic messages;

action to be taken in order to minimise or prevent the sending or delivery of unsolicited commercial electronic messages, including:

the configuration of servers so as to minimise or prevent the sending or delivery of unsolicited commercial electronic messages; and

the shutdown of open relay servers;

action to be taken to ensure responsible practices in relation to the use of commercial electronic messages to market, advertise or promote goods or services to individuals who are under 18 years of age;

(v) procedures to be followed in relation to the giving of consent by relevant electronic account-holders (within the meaning of the Spam Act 2003) to the sending of commercial electronic messages;

record-keeping practices to be followed in relation to telemarketing calls made or attempted to be made;

action to be taken to limit the total number of telemarketing calls attempted to be made, by a particular participant in a section of the telemarketing industry, during a particular period, where the recipient answers the attempted call, but the attempted call does not have any content;

action to be taken to limit the total number of telemarketing calls made, or attempted to be made, by a particular participant in a section of the telemarketing industry, during a particular period to a particular Australian number;

record-keeping practices to be followed in relation to marketing faxes sent or attempted to be sent;

action to be taken to limit the total number of marketing faxes sent or attempted to be sent, by a particular participant in a section of the fax marketing industry, during a particular period to a particular Australian number.

114 Industry codes and industry standards may confer powers on the Telecommunications Industry Ombudsman

If the Telecommunications Industry Ombudsman consents, an industry code or industry standard may confer functions and powers on the Telecommunications Industry Ombudsman.

The continuity of a consent under subsection (1) is not affected by:

a change in the occupancy of the position of Telecommunications Industry Ombudsman; or

a vacancy in the position of Telecommunications Industry Ombudsman that does not continue for more than 4 months.

115 Industry codes and industry standards not to deal with certain design features and performance requirements

For the purposes of this Part, an industry code or an industry standard has no effect:

to the extent (if any) to which compliance with the code or standard is likely to have the effect (whether direct or indirect) of requiring customer equipment, customer cabling, a telecommunications network or a facility:

to have particular design features; or

to meet particular performance requirements; or

to the extent (if any) to which it deals with the content of content services.

The rule in subsection (1) does not apply to an industry code or an industry standard to the extent (if any) to which compliance with the code or standard is likely:

to have the indirect effect of requiring customer equipment, customer cabling, a telecommunications network or a facility to have particular design features that relate to:

the accuracy of billing of customers of carriage service providers in relation to the supply of standard telephone services; or

the quality of standard telephone services; or

a matter specified in the regulations; or

to have the direct or indirect effect of requiring customer equipment, customer cabling, a telecommunications network or a facility to meet performance requirements that relate to:

the accuracy of billing of customers of carriage service providers in relation to the supply of standard telephone services; or

the quality of standard telephone services; or

a matter specified in the regulations.

The rule in subsection (1) does not apply to an industry code or an industry standard to the extent (if any) to which the code or standard deals with a matter referred to in paragraph 113(3)(f) or (t).

(4) The rule in subsection (1) does not apply to an industry code made for the purposes of Copyright Act 1968.Division 2AA of Part V of the

The rule in subsection (1) does not apply to an industry code or an industry standard to the extent (if any) to which compliance with the code or standard is likely to have the effect (whether direct or indirect) of requiring:

optical fibre lines; or

facilities used, or for use, in or in connection with optical fibre lines;

to:

have particular design features; or

meet particular performance requirements.

116 Industry codes and industry standards not to deal with matters dealt with by codes and standards under Part 9 of the Broadcasting Services Act

For the purposes of this Part, an industry code or an industry standard that deals with a matter relating to a content service has no effect to the extent (if any) to which the matter is dealt with by a code registered, or standard determined, under Part 9 of the Broadcasting Services Act 1992.

116A Industry codes and standards do not affect Privacy Act 1988

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 (as defined in that Act).

117 Registration of industry codes

This section applies if:

the ACMA is satisfied that a body or association represents a particular section of the telecommunications industry, the telemarketing industry or the fax marketing industry; and

that body or association develops an industry code that applies to participants in that section of the industry and deals with one or more matters relating to the telecommunications activities, telemarketing activities or fax marketing activities, as the case may be, of those participants; and

the body or association gives a copy of the code to the ACMA; and

the ACMA is satisfied that:

in a case where the code deals with matters of substantial relevance to the community—the code provides appropriate community safeguards for the matters covered by the code; or

in a case where the code does not deal with matters of substantial relevance to the community—the code deals with the matters covered by the code in an appropriate manner; and

the ACMA is satisfied that, before giving the copy of the code to the ACMA:

the body or association published a draft of the code on its website, and invited participants in that section of the industry to make submissions to the body or association about the draft within a specified period; and

the body or association gave consideration to any submissions that were received from participants in that section of the industry within that period; and

the body or association complied with the section 119B publication requirements in relation to any submissions that were received from participants in that section of the industry within that period; and

the ACMA is satisfied that, before giving the copy of the code to the ACMA:

the body or association published a draft of the code on its website, and invited members of the public to make submissions to the body or association about the draft within a specified period; and

the body or association gave consideration to any submissions that were received from members of the public within that period; and

the body or association complied with the section 119B publication requirements in relation to any submissions that were received from members of the public within that period; and

the ACMA is satisfied that the ACCC has been consulted about the development of the code; and

except in a case where:

the code applies to participants in a section of the telemarketing industry and deals with one or more matters relating to the telemarketing activities of those participants; or

the code applies to participants in a section of the fax marketing industry and deals with one or more matters relating to the fax marketing activities of those participants;

the ACMA is satisfied that the Telecommunications Industry Ombudsman has been consulted about the development of the code; and

the ACMA is satisfied that at least one body or association that represents the interests of consumers has been consulted about the development of the code; and

in a case where the code deals with a matter set out in paragraph 113(3)(f)—the ACMA is satisfied that the Information Commissioner has been consulted by the body or association about the development of the code before the body or association gave the copy of the code to the ACMA; and

the ACMA has consulted the Information Commissioner about the code and consequently believes that he or she is satisfied with the code, if the code deals directly or indirectly with a matter dealt with by:

the Australian Privacy Principles; or

(ii) other provisions of the Privacy Act 1988 that relate to those principles; or

a registered APP code (as defined in that Act) that binds a participant in that section of the telecommunications industry, the telemarketing industry or the fax marketing industry; or

provisions of that Act that relate to the registered APP code

The ACMA must register the code by including it in the Register of industry codes kept under section 136.

A period specified under subparagraph (1)(e)(i) or (1)(f)(i) must run for at least 30 days.

If:

(a) an industry code (the new code) is registered under this Part; and

the new code is expressed to replace another industry code;

the other code ceases to be registered under this Part when the new code is registered.

Note: An industry code also ceases to be registered when it is removed from the Register of industry codes under section 122A.

118 ACMA may request codes

If the ACMA is satisfied that a body or association represents a particular section of the telecommunications industry, the telemarketing industry or the fax marketing industry, the ACMA may, by written notice given to the body or association, request the body or association to:

develop an industry code that applies to participants in that section of the industry and deals with one or more specified matters relating to the telecommunications activities, telemarketing activities or fax marketing activities, as the case may be, of those participants; and

give the ACMA a copy of the code within the period specified in the notice.

Note: The ACMA may request the body or association to develop the industry code to replace an earlier industry code that the Information Commissioner (exercising functions under the Privacy Act 1988) has advised the ACMA is inconsistent with the Australian Privacy Principles or a relevant registered APP code (as defined in that Act).

The period specified in a notice under subsection (1) must run for at least 120 days.

The ACMA must not make a request under subsection (1) in relation to a particular section of the telecommunications industry, the telemarketing industry or the fax marketing industry unless the ACMA is satisfied that:

the development of the code is necessary or convenient in order to:

provide appropriate community safeguards; or

otherwise deal with the performance or conduct of participants in that section of the industry; and

in the absence of the request, it is unlikely that an industry code would be developed within a reasonable period.

The ACMA must not make a request under subsection (1) in relation to a code if:

the code would deal with a matter referred to in paragraph 113(3)(f) (which relates to privacy); and

compliance with the code would be likely to have the effect (whether direct or indirect) of requiring customer equipment, customer cabling, a telecommunications network or a facility:

to have particular design features; or

to meet particular performance requirements.

However, this rule does not apply if the ACMA is satisfied that the benefits to the community from the operation of the code would outweigh the costs of compliance with the code.

(4AA) The rule in subsection (4) does not apply to a code to the extent (if any) to which compliance with the code is likely to have the effect (whether direct or indirect) of requiring:

optical fibre lines; or

facilities used, or for use, in or in connection with optical fibre lines;

to:

have particular design features; or

meet particular performance requirements.

The ACMA must consult the Information Commissioner before making a request under subsection (1) for the development of an industry code that could reasonably be expected to deal directly or indirectly with a matter dealt with by:

the Australian Privacy Principles; or

(b) other provisions of the Privacy Act 1988 relating to those principles; or

a registered APP code (as defined in that Act) that binds one or more participants in the section of the telecommunications industry, the telemarketing industry or the fax marketing industry to which the request relates; or

provisions of that Act that relate to the registered APP code.

The ACMA may vary a notice under subsection (1) by extending the period specified in the notice.

(6) Subsection (5) does not, by implication, limit the application of subsection 33(3) of the Acts Interpretation Act 1901.

A notice under subsection (1) may specify indicative targets for achieving progress in the development of the code (for example, a target of 60 days to develop a preliminary draft of the code).

119 Publication of notice where no body or association represents a section of the telecommunications industry, the telemarketing industry or the fax marketing industry

(1) If the ACMA is satisfied that a particular section of the telecommunications industry, the telemarketing industry or the fax marketing industry is not represented by a body or association, the ACMA may publish a notice in the Gazette:

stating that, if such a body or association were to come into existence within a specified period, the ACMA would be likely to give a notice to that body or association under subsection 118(1); and

setting out the matter or matters relating to telecommunications activities, telemarketing activities or fax marketing activities, as the case may be, that would be likely to be specified in the subsection 118(1) notice.

The period specified in a notice under subsection (1) must run for at least 60 days.

119A Variation of industry codes

Scope

This section applies if:

an industry code is registered under this Part; and

the code:

applies to participants in a particular section of the telecommunications industry, the telemarketing industry or the fax marketing industry; and

deals with one or more matters relating to the telecommunications activities, telemarketing activities or fax marketing activities, as the case may be, of those participants; and

the body or association that developed the code gives a draft variation of the code to the ACMA; and

disregarding any provisions of the code that are not affected (whether directly or indirectly) by the variation, the ACMA is satisfied that:

in a case where the code (as proposed to be varied) deals with matters of substantial relevance to the community—the code (as proposed to be varied) provides appropriate community safeguards for the matters covered by the code (as proposed to be varied); or

in a case where the code (as proposed to be varied) does not deal with matters of substantial relevance to the community—the code (as proposed to be varied) deals with the matters covered by the code (as proposed to be varied) in an appropriate manner; and

except in a case where the draft variation is of a minor nature—the ACMA is satisfied that, before giving the copy of the draft variation to the ACMA:

the body or association published the draft variation on its website and invited participants in that section of the industry to make submissions to the body or association about the draft variation within a specified period; and

the body or association gave consideration to any submissions that were received from participants in that section of the industry within that period; and

the body or association complied with the section 119B publication requirements in relation to any submissions that were received from participants in that section of the industry within that period; and

except in a case where the draft variation is of a minor nature—the ACMA is satisfied that, before giving the copy of the draft variation to the ACMA:

the body or association published the draft variation on its website and invited members of the public to make submissions to the body or association about the draft variation within a specified period; and

the body or association gave consideration to any submissions that were received from members of the public within that period; and

the body or association complied with the section 119B publication requirements in relation to any submissions that were received from members of the public within that period; and

the ACMA is satisfied that the ACCC has been consulted about the development of the draft variation; and

except in a case where:

the code (as proposed to be varied) applies to participants in a section of the telemarketing industry and deals with one or more matters relating to the telemarketing activities of those participants; or

the code (as proposed to be varied) applies to participants in a section of the fax marketing industry and deals with one or more matters relating to the fax marketing activities of those participants;

the ACMA is satisfied that the Telecommunications Industry Ombudsman has been consulted about the development of the draft variation; and

the ACMA is satisfied that at least one body or association that represents the interests of consumers has been consulted about the development of the draft variation; and

in a case where the draft variation deals with a matter set out in paragraph 113(3)(f)—the ACMA is satisfied that the Information Commissioner has been consulted by the body or association about the development of the draft variation before the body or association gave the copy of the draft variation to the ACMA; and

the ACMA has consulted the Information Commissioner about the draft variation and consequently believes that he or she is satisfied with the draft variation, if the draft variation deals directly or indirectly with a matter dealt with by:

the Australian Privacy Principles; or

other provisions of that Act that relate to those Principles; or

an approved privacy code (as defined in that Act) that binds a participant in that section of the telecommunications industry, the telemarketing industry or the fax marketing industry; or

provisions of that Act that relate to the approved privacy code.

Approval of variation

The ACMA must, by written notice given to the body or association, approve the draft variation.

If the ACMA approves the draft variation, the code is varied accordingly.

Period for making submissions

A period specified under subparagraph (1)(e)(i) or (1)(f)(i) must run for at least 30 days.

119B Publication requirements for submissions

This section sets out the publication requirements that apply to submissions that:

are about a particular draft; and

were received by a body or association as mentioned in:

subparagraph 117(1)(e)(iii); or

subparagraph 117(1)(f)(iii); or

subparagraph 119A(1)(e)(iii); or

subparagraph 119A(1)(f)(iii).

Publication of submissions

The body or association must publish those submissions on its website.

Subsection (2) has effect subject to subsections (4) and (6).

Confidential or commercially sensitive material

If:

a submission made by a person consists wholly or partly of material that is claimed by the person to be confidential or commercially sensitive; and

the person has requested the body or association not to publish the material; and

the body or association is satisfied that the material is confidential or commercially sensitive;

then:

if the submission consists wholly of the material—the body or association is not required to publish the submission on its website; or

if:

the submission consists partly of the material; and

it is practicable for the body or association to remove the material from the submission;

the body or association may remove the material from the submission before publishing the submission on its website; or

if:

the submission consists partly of the material; and

it is not practicable for the body or association to remove the material from the submission;

the body or association is not required to publish the submission on its website.

If, under subsection (4), the body or association removes material from a submission before publishing the submission on its website, the body or association must publish on its website a statement to the effect that confidential or commercially sensitive material in the submission has not been published.

Defamatory material

If the body or association considers that a submission consists wholly or partly of material that is, or is likely to be, defamatory:

if the submission consists wholly of the material—the body or association is not required to publish the submission on its website; or

if:

the submission consists partly of the material; and

it is practicable for the body or association to remove the material from the submission;

the body or association may remove the material from the submission before publishing the submission on its website; or

if:

the submission consists partly of the material; and

it is not practicable for the body or association to remove the material from the submission;

the body or association is not required to publish the submission on its website.

If, under subsection (6), the body or association removes material from a submission before publishing the submission on its website, the body or association must publish on its website a statement to the effect that material in the submission has not been published on the grounds that the material is, or is likely to be, defamatory.

Statistical statement

The body or association must publish on its website a statement that sets out:

the total number of those submissions; and

if a number of those submissions have not been published, or have been published in a modified form, because of subsection (4) or (6)—that number.

120 Replacement of industry codes

Changes to an industry code may be achieved by replacing the code instead of varying the code. However, this does not prevent the ACMA from removing under section 122A an industry code, or a provision of an industry code, from the Register of industry codes kept under this Part.

121 Directions about compliance with industry codes

If:

a person is a participant in a particular section of the telecommunications industry, the telemarketing industry or the fax marketing industry; and

the ACMA is satisfied that the person has contravened or is contravening an industry code that:

is registered under this Part; and

applies to participants in that section of the industry;

the ACMA may, by written notice given to the person, direct the person to comply with the industry code.

(1A) If the ACMA is satisfied that the contravention of the industry code relates directly or indirectly to a matter dealt with by the Australian Privacy Principles or by a registered APP code (within the meaning of the Privacy Act 1988), the ACMA must consult the Information Commissioner before giving the direction.

If:

(a) at a time when an industry code (the original code) was registered under this Part, a direction could have been given to a person under subsection (1) in respect of the original code; and

the original code has been replaced by another code that is registered under this Part; and

the person could have been given a direction under subsection (1) in respect of the replacement code, if the conduct concerned had occurred after the replacement code was registered;

then, during the period when the replacement code is registered under this Part, the person may be given a direction under subsection (1) in respect of the replacement code.

A person must comply with a direction under subsection (1).

A person must not:

aid, abet, counsel or procure a contravention of subsection (2); or

induce, whether by threats or promises or otherwise, a contravention of subsection (2); or

be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (2); or

conspire with others to effect a contravention of subsection (2).

(4) Subsections (2) and (3) are civil penalty provisions.

Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

A direction under subsection (1) is not a legislative instrument.

122 Formal warnings—breach of industry codes

This section applies to a person who is a participant in a particular section of the telecommunications industry, the telemarketing industry or the fax marketing industry.

The ACMA may issue a formal warning if the person contravenes an industry code registered under this Part.

(3) If the ACMA is satisfied that the contravention of the industry code relates directly or indirectly to a matter dealt with by the Australian Privacy Principles or by a registered APP code (within the meaning of the Privacy Act 1988), the ACMA must consult the Information Commissioner before issuing the warning.

If:

(a) at a time when an industry code (the original code) was registered under this Part, a formal warning could have been given to a person under subsection (2) in respect of the original code; and

the original code has been replaced by another code that is registered under this Part; and

the person could have been given a formal warning under subsection (2) in respect of the replacement code, if the conduct concerned had occurred after the replacement code was registered;

then, during the period when the replacement code is registered under this Part, the person may be given a formal warning under subsection (2) in respect of the replacement code.

122A De-registering industry codes and provisions of industry codes

The ACMA may remove from the Register of industry codes kept under section 136:

an industry code; or

a provision of an industry code.

An industry code ceases to be registered when it is removed from the Register.

If the ACMA removes a provision of an industry code from the Register, this Part has effect in relation to things occurring after the removal of the provision as if the code registered under this Part did not include the provision removed.

123 ACMA may determine an industry standard if a request for an industry code is not complied with

This section applies if:

the ACMA has made a request under subsection 118(1) in relation to the development of a code that is to:

apply to participants in a particular section of the telecommunications industry, the telemarketing industry or the fax marketing industry; and

deal with one or more matters relating to the telecommunications activities, telemarketing activities or fax marketing activities, as the case may be, of those participants; and

any of the following conditions is satisfied:

the request is not complied with;

if indicative targets for achieving progress in the development of the code were specified in the notice of request—any of those indicative targets were not met;

the request is complied with, but the ACMA subsequently refuses to register the code; and

the ACMA is satisfied that it is necessary or convenient for the ACMA to determine a standard in order to:

provide appropriate community safeguards in relation to that matter or those matters; or

otherwise regulate adequately participants in that section of the industry in relation to that matter or those matters.

(2) The ACMA may, by legislative instrument, determine a standard that applies to participants in that section of the industry and deals with that matter or those matters. A standard under this subsection is to be known as an industry standard.

Before determining an industry standard under this section, the ACMA must consult the body or association to whom the request mentioned in paragraph (1)(a) was made.

124 ACMA may determine industry standard where no industry body or association formed

This section applies if:

the ACMA is satisfied that a particular section of the telecommunications industry, the telemarketing industry or the fax marketing industry is not represented by a body or association; and

the ACMA has published a notice under subsection 119(1) relating to that section of the industry; and

that notice:

states that, if such a body or association were to come into existence within a particular period, the ACMA would be likely to give a notice to that body or association under subsection 118(1); and

sets out one or more matters relating to the telecommunications activities, telemarketing activities or fax marketing activities, as the case may be, of the participants in that section of the industry; and

no such body or association comes into existence within that period; and

the ACMA is satisfied that it is necessary or convenient for the ACMA to determine a standard in order to:

provide appropriate community safeguards in relation to that matter or those matters; or

otherwise regulate adequately participants in that section of the industry in relation to that matter or those matters.

(2) The ACMA may, by legislative instrument, determine a standard that applies to participants in that section of the industry and deals with that matter or those matters. A standard under this subsection is to be known as an industry standard.

125 ACMA may determine industry standards where industry codes fail

This section applies if:

an industry code that:

applies to participants in a particular section of the telecommunications industry, the telemarketing industry or the fax marketing industry; and

deals with one or more matters relating to the telecommunications activities, telemarketing activities or fax marketing activities, as the case may be, of those participants;

has been registered under this Part for at least 180 days; and

the ACMA is satisfied that the code is deficient (as defined by subsection (7)); and

the ACMA has given the body or association that developed the code a written notice requesting that deficiencies in the code be addressed within a specified period; and

that period ends and the ACMA is satisfied that it is necessary or convenient for the ACMA to determine a standard that applies to participants in that section of the industry and deals with that matter or those matters.

The period specified in a notice under paragraph (1)(c) must run for at least 30 days.

(3) The ACMA may, by legislative instrument, determine a standard that applies to participants in that section of the industry and deals with that matter or those matters. A standard under this subsection is to be known as an industry standard.

If the ACMA is satisfied that a body or association represents that section of the industry, the ACMA must consult the body or association before determining an industry standard under subsection (3).

The industry code ceases to be registered under this Part on the day on which the industry standard comes into force.

(7) For the purposes of this section, an industry code that applies to participants in a particular section of the telecommunications industry, the telemarketing industry or the fax marketing industry and deals with one or more matters relating to the telecommunications activities, telemarketing activities or fax marketing activities, as the case may be, of those participants is deficient if, and only if:

the code is not operating to provide appropriate community safeguards in relation to that matter or those matters; or

the code is not otherwise operating to regulate adequately participants in that section of the industry in relation to that matter or those matters.

125AA ACMA must determine an industry standard if directed by the Minister

The ACMA may, by legislative instrument, determine a standard that:

applies to participants in a particular section of the telecommunications industry; and

deals with one or more matters relating to the telecommunications activities of those participants.

Note 1: For examples of matters that may be dealt with by industry standards, see section 113.

Note 2: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.

(2) A standard under subsection (1) is to be known as an industry standard.

If the ACMA is satisfied that a body or association represents that section of the telecommunications industry, the ACMA must consult the body or association before determining a standard under subsection (1).

The Minister may, in writing, direct the ACMA to:

determine a standard under subsection (1) that:

applies to participants in a specified section of the telecommunications industry; and

deals with one or more specified matters relating to the telecommunications activities of those participants; and

do so within a specified period.

The ACMA must not determine a standard under subsection (1) unless it does so in accordance with a direction under subsection (4).

125A ACMA must determine certain industry standards relating to the telemarketing industry

(1) Before the commencement of Part 2 of the Do Not Call Register Act 2006, the ACMA must, by legislative instrument, determine a standard that:

applies to participants in each section of the telemarketing industry; and

deals with the following matters relating to the telemarketing activities of those participants:

restricting the hours and/or days during which telemarketing calls may be made or attempted to be made;

requiring that a telemarketing call must contain specified information about the relevant participant;

requiring that, if a person other than the relevant participant caused a telemarketing call to be made, the call must contain specified information about the person who caused the call to be made;

requiring the relevant participant to terminate a telemarketing call if a specified event happens;

requiring the relevant participant to ensure that calling line identification is enabled in respect of the making of a telemarketing call; and

(c) is expressed to commence at the same time as the commencement of Part 2 of the Do Not Call Register Act 2006.

(2) A standard under subsection (1) is to be known as an industry standard.

If the ACMA is satisfied that a body or association represents a section of the telemarketing industry, the ACMA must consult the body or association before determining a standard under subsection (1).

(4) The ACMA must ensure that a standard is in force under subsection (1) at all times after the commencement of Part 2 of the Do Not Call Register Act 2006.

125B ACMA must determine certain industry standards relating to the fax marketing industry

The ACMA may, by legislative instrument, determine a standard that:

applies to participants in each section of the fax marketing industry; and

deals with the following matters relating to the fax marketing activities of those participants:

restricting the hours and/or days during which marketing faxes may be sent, or attempted to be sent, to an Australian number;

requiring that a marketing fax sent to an Australian number must contain specified information about the person who authorised the sending of the fax;

restricting the total number of marketing faxes sent, or attempted to be sent, by the relevant participant during a particular period to a particular Australian number;

(iv) requiring that, if a marketing fax sent to an Australian number is authorised by a particular person (the authorising person), the fax must contain information about how the recipient of the fax may send a message to the effect that the recipient does not want to receive any marketing faxes authorised by the authorising person.

Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.

(2) A standard under subsection (1) is to be known as an industry standard.

If the ACMA is satisfied that a body or association represents a section of the fax marketing industry, the ACMA must consult the body or association before determining a standard under subsection (1).

The ACMA must ensure that a standard is in force under subsection (1) at all times after the commencement of this section.

(5) For the purposes of this section, authorise, when used in relation to a marketing fax, has the same meaning as in the Do Not Call Register Act 2006.

126 Industry standards not to be determined for certain privacy matters

The ACMA must not determine an industry standard if:

the standard would deal with a matter referred to in paragraph 113(3)(f) (which relates to privacy); and

compliance with the standard would be likely to have the effect (whether direct or indirect) of requiring customer equipment, customer cabling, a telecommunications network or a facility:

to have particular design features; or

to meet particular performance requirements.

However, this rule does not apply if the ACMA is satisfied that the benefits to the community from the operation of the standard would outweigh the costs of compliance with the standard.

128 Compliance with industry standards

If an industry standard that applies to participants in a particular section of the telecommunications industry, the telemarketing industry or the fax marketing industry is registered under this Part, each participant in that section of the industry must comply with the standard.

A person must not:

aid, abet, counsel or procure a contravention of subsection (1); or

induce, whether by threats or promises or otherwise, a contravention of subsection (1); or

be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or

conspire with others to effect a contravention of subsection (1).

(3) Subsections (1) and (2) are civil penalty provisions.

Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

129 Formal warnings—breach of industry standards

This section applies to a person who is a participant in a particular section of the telecommunications industry, the telemarketing industry or the fax marketing industry.

The ACMA may issue a formal warning if the person contravenes an industry standard registered under this Part.

130 Variation of industry standards

The ACMA may, by legislative instrument, vary an industry standard that applies to participants in a particular section of the telecommunications industry, the telemarketing industry or the fax marketing industry if it is satisfied that it is necessary or convenient to do so to:

provide appropriate community safeguards in relation to one or more matters relating to the telecommunications activities, telemarketing activities or fax marketing activities, as the case may be, of those participants; and

otherwise regulate adequately those participants in relation to one or more matters relating to the telecommunications activities, telemarketing activities or fax marketing activities, as the case may be, of those participants.

Note: The ACMA may be satisfied that it is necessary or convenient to vary an industry standard that is inconsistent with the Australian Privacy Principles or a registered APP code (as defined in the Privacy Act 1988), following advice given by the Information Commissioner in the exercise of his or her functions under that Act.

131 Revocation of industry standards

The ACMA may, by legislative instrument, revoke an industry standard.

If:

an industry code is registered under this Part; and

the code is expressed to replace an industry standard;

the industry standard is revoked when the code is registered.

132 Public consultation on industry standards

Before determining or varying an industry standard, the ACMA must:

cause to be published in a newspaper circulating in each State a notice:

stating that the ACMA has prepared a draft of the industry standard or variation; and

stating that free copies of the draft will be made available to members of the public during normal office hours throughout the period specified in the notice; and

specifying the place or places where the copies will be available; and

inviting interested persons to give written comments about the draft to the ACMA within the period specified under subparagraph (ii); and

make copies of the draft available in accordance with the notice.

The period specified under subparagraph (1)(a)(ii) must run for at least 30 days after the publication of the notice.

Subsection (1) does not apply to a variation if the variation is of a minor nature.

If interested persons have given comments in accordance with a notice under subsection (1), the ACMA must have due regard to those comments in determining or varying the industry standard, as the case may be.

In this section:

State includes the Northern Territory and the Australian Capital Territory.

133 Consultation with ACCC and the Telecommunications Industry Ombudsman

Before determining or varying an industry standard, the ACMA must consult the ACCC.

Before determining or varying an industry standard (other than an industry standard under section 125A or 125B), the ACMA must consult the Telecommunications Industry Ombudsman.

Before revoking an industry standard under subsection 131(1), the ACMA must consult the ACCC and the Telecommunications Industry Ombudsman.

134 Consultation with Information Commissioner

This section applies to an industry standard that deals with a matter set out in paragraph 113(3)(f), including a matter dealt with by:

the Australian Privacy Principles; or

(b) other provisions of the Privacy Act 1988 relating to those principles; or

a registered APP code (as defined in that Act); or

provisions of that Act that relate to a registered APP code.

Before determining or varying the industry standard, the ACMA must consult the Information Commissioner.

Before revoking the industry standard under subsection 131(1), the ACMA must consult the Information Commissioner.

135 Consultation with consumer body

Before determining or varying an industry standard, the ACMA must consult at least one body or association that represents the interests of consumers.

Before revoking an industry standard under subsection 131(1), the ACMA must consult at least one body or association that represents the interests of consumers.

135A Consultation with the States and Territories

Before determining or varying an industry standard under section 125A or 125B, the ACMA must consult:

each State; and

the Australian Capital Territory; and

the Northern Territory.

136 ACMA to maintain Register of industry codes and industry standards

The ACMA is to maintain a Register in which the ACMA includes:

all industry codes required to be registered under this Part, as those codes are in force from time to time; and

all industry standards; and

all requests made under section 118; and

all notices under section 119; and

all directions given under section 121.

Paragraph (1)(a) does not require the ACMA to continue to include in the Register an industry code, or a provision of an industry code, removed from the Register under section 122A.

The Register may be maintained by electronic means.

(3) A person may, on payment of the charge (if any) fixed by a determination under Australian Communications and Media Authority Act 2005:section 60 of the

inspect the Register; and

make a copy of, or take extracts from, the Register.

For the purposes of this section, if the Register is maintained by electronic means, a person is taken to have made a copy of, or taken an extract from, the Register if the ACMA gives the person a printout of, or of the relevant parts of, the Register.

If a person requests that a copy be provided in an electronic form, the ACMA may provide the relevant information:

on a data processing device; or

by way of electronic transmission.

136A Application for eligibility for reimbursement of costs of development or variation of consumer-related industry code

If a body or association proposes to develop or vary an industry code that:

applies to participants in a particular section of the telecommunications industry; and

deals with one or more matters relating to the telecommunications activities of those participants; and

deals wholly or mainly with one or more matters relating to the relationship between carriage service providers and their retail customers;

the body or association may apply to the ACMA for a declaration that the body or association is eligible for reimbursement of refundable costs incurred by it in developing the code or varying the code, as the case may be.

Form of application etc.

Note: For refundable cost, see section 136E.

An application must be:

in writing; and

in accordance with the form approved in writing by the ACMA; and

accompanied by:

an estimate of the total of the refundable costs likely to be incurred by the body or association in developing the code or varying the code, as the case may be; and

a statement breaking down that estimate into categories of refundable costs.

Further information

The ACMA may, within 20 business days after an application is made, request the applicant to give the ACMA, within the period specified in the request, further information about the application.

The ACMA may refuse to consider the application until the applicant gives the ACMA the information.

Definition

In this section:

business day means a day on which the ACMA is open for business in the Australian Capital Territory and in Victoria.

136B Declaration of eligibility for reimbursement of costs of development or variation of consumer-related industry code

Development of code

If a body or association makes an application under subsection 136A(1) for a declaration in relation to the development of a code, the ACMA must make the declaration if it is satisfied that:

the body or association represents the section of the telecommunications industry referred to in paragraph 136A(1)(a); and

the code will deal wholly or mainly with one or more matters relating to the relationship between carriage service providers and their retail customers; and

the process for developing the code, as outlined in the application, is likely to ensure that the interests of those retail customers are adequately represented in relation to the development of the code; and

the total of the refundable costs likely to be incurred by the body or association in developing the code, as set out in the estimate that accompanied the application, is reasonable.

If the ACMA is not satisfied as to the matters set out in subsection (1), the ACMA must, by written notice given to the applicant, refuse to make the declaration.

Variation of code

If a body or association makes an application under subsection 136A(1) for a declaration in relation to the variation of a code, the ACMA must make the declaration if it is satisfied that:

the body or association represents the section of the telecommunications industry referred to in paragraph 136A(1)(a); and

the code is registered under this Part; and

the code deals wholly or mainly with one or more matters relating to the relationship between carriage service providers and their retail customers; and

the process for varying the code, as outlined in the application, is likely to ensure that the interests of those retail customers are adequately represented in relation to the variation of the code; and

the total of the refundable costs likely to be incurred by the body or association in varying the code, as set out in the estimate that accompanied the application, is reasonable.

If the ACMA is not satisfied as to the matters set out in subsection (2A), the ACMA must, by written notice given to the applicant, refuse to make the declaration.

General provisions

A declaration under this section is irrevocable, and remains in force for 2 years.

A declaration under this section is not a legislative instrument.

136C Reimbursement of costs of developing or varying consumer-related industry code

Reimbursement of costs—development of code

If:

a section 136B declaration was made in relation to the development of an industry code by a body or association; and

when the section 136B declaration was in force, the body or association gave a copy of the code to the ACMA under section 117; and

the ACMA is satisfied that the code deals wholly or mainly with one or more matters relating to the relationship between carriage service providers and their retail customers; and

the ACMA is satisfied that the process for the development of the code ensured that the interests of those retail customers were adequately represented in relation to the development of the code; and

the copy of the code was accompanied by:

a written statement itemising one or more costs incurred by the body or association in developing the code; and

a written claim for reimbursement of those costs; and

a written declaration by an approved auditor that he or she is of the opinion that the subparagraph (i) statement complies with the approved auditing requirements; and

a written statement describing the process for the development of the code; and

the ACMA is satisfied that each of the costs itemised in the subparagraph (e)(i) statement:

is a refundable cost incurred by the body or association in developing the code; and

was incurred when the section 136B declaration was in force;

the ACMA must, by written notice given to the body or association, determine that the body or association is entitled to be paid a specified amount.

Note: For refundable cost, see section 136E.

The specified amount must be equal to whichever is the lesser of the following:

the total of the costs itemised in the subparagraph (1)(e)(i) statement;

the estimate that accompanied the application for the section 136B declaration.

The ACMA, on behalf of the Commonwealth, must pay the specified amount to the body or association within 30 days after the day on which the body or association was notified under subsection (1) of its entitlement to be paid that amount.

Reimbursement of costs—variation of code

If:

a section 136B declaration was made in relation to the variation of an industry code by a body or association; and

when the section 136B declaration was in force, the body or association gave a copy of the variation to the ACMA under section 119A; and

the ACMA is satisfied that the code deals wholly or mainly with one or more matters relating to the relationship between carriage service providers and their retail customers; and

the ACMA is satisfied that the process for the variation of the code ensured that the interests of those retail customers were adequately represented in relation to the variation of the code; and

the copy of the variation was accompanied by:

a written statement itemising one or more costs incurred by the body or association in varying the code; and

a written claim for reimbursement of those costs; and

a written declaration by an approved auditor that he or she is of the opinion that the subparagraph (i) statement complies with the approved auditing requirements; and

a written statement describing the process for the variation of the code; and

the ACMA is satisfied that each of the costs itemised in the subparagraph (e)(i) statement:

is a refundable cost incurred by the body or association in varying the code; and

was incurred when the section 136B declaration was in force;

the ACMA must, by written notice given to the body or association, determine that the body or association is entitled to be paid a specified amount.

Note: For refundable cost, see section 136E.

The specified amount must be equal to whichever is the lesser of the following:

the total of the costs itemised in the subparagraph (3A)(e)(i) statement;

the estimate that accompanied the application for the section 136B declaration.

The ACMA, on behalf of the Commonwealth, must pay the specified amount to the body or association within 30 days after the day on which the body or association was notified under subsection (3A) of its entitlement to be paid that amount.

Appropriation

The Consolidated Revenue Fund is appropriated for payments under this section.

Approved auditors and approved auditing requirements

The ACMA may make a written determination specifying:

(a) the persons who are to be approved auditors for the purposes of this section; and

(b) the requirements that are to be approved auditing requirements for the purposes of this section.

Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.

A determination under subsection (5) has effect accordingly.

A determination under subsection (5) is a legislative instrument.

136D Costs—transactions between persons not at arm’s length

If:

a body or association has incurred a cost in connection with a transaction where the parties to the transaction are not dealing with each other at arm’s length in relation to the transaction; and

apart from this section, the cost is counted for the purposes of the application of this Division to the body or association; and

the amount of the cost is greater than is reasonable;

the amount of the cost is taken, for the purposes of the application of this Division in relation to the body or association, to be the amount that would have been reasonable if the parties were dealing with each other at arm’s length.

136E Refundable cost

(1) For the purposes of this Division, a refundable cost incurred by a body or association in developing or varying a code is a cost incurred by the body or association in developing the code or varying the code, as the case may be, other than a cost specified in a written determination made by the ACMA under this subsection.

Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.

A determination under subsection (1) is a legislative instrument.

137 Protection from civil proceedings

Civil proceedings do not lie against:

an internet service provider; or

an electronic messaging service provider;

in respect of anything done by the provider in connection with:

an industry code registered under this Part; or

an industry standard;

in so far as the code or standard deals with the procedures referred to in paragraph 113(3)(q).

138 Implied freedom of political communication

This Part does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.

139 Agreements for the carrying on of telemarketing activities or fax marketing activities must require compliance with this Part

(1) A person (the first person) must not enter into a contract or arrangement, or arrive at an understanding, with another person, if:

under the contract, arrangement or understanding, the other person undertakes to carry on one or more telemarketing activities or fax marketing activities; and

the contract, arrangement or understanding does not contain an express provision to the effect that the other person will comply with this Part in relation to the telemarketing activities or fax marketing activities covered by the contract, arrangement or understanding.

Ancillary contraventions

A person must not:

aid, abet, counsel or procure a contravention of subsection (1); or

induce, whether by threats or promises or otherwise, a contravention of subsection (1); or

be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or

conspire with others to effect a contravention of subsection (1).

Civil penalty provisions

(3) Subsections (1) and (2) are civil penalty provisions.

Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

Validity of contracts, arrangements or understandings

A failure to comply with subsection (1) does not affect the validity of any contract, arrangement or understanding.

142 Simplified outline of this Part

• A controller of a local access line (other than a line that is part of the infrastructure of the national broadband network) must not use the line to supply an eligible service to a person other than a carrier or a service provider, if:

the line came into existence, or was upgraded, on or after the designated commencement date; and

the line is used, or is proposed to be used, to supply a superfast carriage service wholly or principally to residential customers, or prospective residential customers, in Australia; and

no functional separation undertaking is in force.

• A controller of a telecommunications network (other than the national broadband network) must not use a local access line to supply an eligible service to a person other than a carrier or a service provider, if:

the line is part of the infrastructure of the network; and

the network came into existence, or was upgraded, on or after 1 January 2011, but before the designated commencement date; and

the network is used, or is proposed to be used, to supply a superfast carriage service wholly or principally to residential customers, or prospective residential customers, in Australia; and

no functional separation undertaking is in force.

142A Definitions

In this Part:

alter, in relation to a telecommunications network or line, has a meaning affected by section 159.

associate has the meaning given by section 152.

business unit means a part of a corporation.

close proximity has a meaning affected by section 162.

corporation means a body corporate.

customer interface means an interface for the purposes of: ordering; and provisioning; and billing; and service activation; and fault rectification; in relation to the supply of local access line services.

ordering; and

provisioning; and

billing; and

service activation; and

fault rectification;

in relation to the supply of local access line services.

declared service has the same meaning as in Part XIC of the Competition and Consumer Act 2010.

designated carriage service has the meaning given by section 142BD.

designated commencement date means the date on which Schedule 2 to the Telecommunications Legislation Amendment (Competition and Consumer) Act 2020 commences.

electricity supply body has the same meaning as in the National Broadband Network Companies Act 2011.

eligible service has the same meaning as in section 152AL of the Competition and Consumer Act 2010.

fixed-line carriage service means a carriage service that is supplied using a line to premises occupied or used by an end-user.

functional includes organisational.

functional separation undertaking means:

a standard functional separation undertaking; or

a joint functional separation undertaking.

fundamental provision of a functional separation undertaking has the meaning given by subsection 151A(9) or 151C(9).

gas supply body has the same meaning as in the National Broadband Network Companies Act 2011.

joint functional separation undertaking means an undertaking under section 151C.

local access line has the meaning given by section 158.

local access line service means an eligible service supplied using a local access line.

multi-unit building means:

a building that has 2 or more units for occupation as a place of residence or business; or

a building in a complex, where each building has 2 or more units for occupation as a place of residence or business.

national broadband network has the same meaning as in the National Broadband Network Companies Act 2011.

rail corporation has the same meaning as in the National Broadband Network Companies Act 2011.

residential customer has a meaning affected by section 161.

retail business unit of a corporation means a business unit by which the corporation deals with the corporation’s retail customers in relation to the supply of local access line services.

retail customer means a customer other than a wholesale customer.

retailer, when used in relation to a joint functional separation undertaking, means a person identified in the undertaking as the retailer, or one of the retailers, for the purposes of the undertaking.

sewerage services body has the same meaning as in the National Broadband Network Companies Act 2011.

standard functional separation undertaking means an undertaking under section 151A.

State or Territory road authority has the same meaning as in the National Broadband Network Companies Act 2011.

storm water drainage services has the same meaning as in the National Broadband Network Companies Act 2011.

storm water drainage services body has the same meaning as in the National Broadband Network Companies Act 2011.

superfast carriage service means a carriage service, where: the carriage service enables end-users to download communications; and the download transmission speed of the carriage service is normally 25 megabits per second or more; and the carriage service is supplied using a line to premises occupied or used by an end-user.

Note: See paragraph 151C(2)(a).

the carriage service enables end-users to download communications; and

the download transmission speed of the carriage service is normally 25 megabits per second or more; and

the carriage service is supplied using a line to premises occupied or used by an end-user.

supply includes supply of the service by a corporation to itself. This definition does not apply to subsection 142C(2) or 143(2).

unsatisfactory compliance record has a meaning affected by section 142BC.

upgrade, in relation to a telecommunications network or line, has a meaning affected by section 160.

water supply body has the same meaning as in the National Broadband Network Companies Act 2011.

wholesale business unit of a corporation means a business unit by which the corporation deals with its wholesale customers, and its retail business unit, in relation to the supply of local access line services.

wholesale customer means a customer that is: a carrier; or a service provider. wholesaler, when used in relation to a joint functional separation undertaking, means a person identified in the undertaking as the wholesaler, or one of the wholesalers, for the purposes of the undertaking.

a carrier; or

a service provider.

wholesaler, when used in relation to a joint functional separation undertaking, means a person identified in the undertaking as the wholesaler, or one of the wholesalers, for the purposes of the undertaking.

worker means an individual who is: an employee; or a contractor or subcontractor; or an employee of a contractor or subcontractor.

Note: See paragraph 151C(2)(a).

an employee; or

a contractor or subcontractor; or

an employee of a contractor or subcontractor.

142B Functional separation undertaking given by a person

A reference in this Part to a functional separation undertaking given by a person is a reference to a functional separation undertaking given by the person either:

alone; or

jointly with one or more other persons.

142BA Promotion of the long-term interests of end-users of carriage services and of services supplied by means of carriage services

For the purposes of this Part, the question whether a particular thing promotes the long-term interests of end-users of carriage services or of services supplied by means of carriage services is to be determined in the same manner as it is determined for the purposes of Competition and Consumer Act 2010.Part XIC of the

142BB Terms and conditions

For the purposes of this Part:

a notional contract (however described) between a corporation’s business units is to be treated as if it were an actual contract; and

any terms and conditions (whether or not relating to price or a method of ascertaining price) in such a notional contract are to be treated as if they were actual terms and conditions.

142BC Unsatisfactory compliance record

For the purposes of this Part, the question of whether a person has an unsatisfactory compliance record in relation to functional separation is to be determined having regard only to:

any breaches by the person of functional separation undertakings given by the person, so long as the breaches occurred when the undertakings were in force; and

any contraventions by the person of section 143B, 151ZA, 151ZB, 151ZF, 151ZG, 151ZH or 151ZI.

142BD Designated carriage service

(1) For the purposes of this Part, designated carriage service means:

if a carriage service is specified in an instrument under subsection (2)—that carriage service; or

otherwise—a Layer 2 bitstream service.

The ACCC may, by legislative instrument, specify a carriage service for the purposes of paragraph (1)(a).

The ACCC must not specify a carriage service under subsection (2) unless:

the carriage service enables end-users to download communications; and

the download transmission speed of the carriage service is normally 25 megabits per second or more; and

the carriage service is supplied using a line to premises occupied or used by an end-user; and

(d) there is in force a declaration under subsection 152AL(3) of the Competition and Consumer Act 2010 that relates to the carriage service.

142C Supply of eligible services to be on wholesale basis—lines that come into existence on or after the designated commencement date etc.

Scope

This section applies to a local access line if:

the line is part of the infrastructure of a telecommunications network in Australia; and

the network is not the national broadband network; and

the line is 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

either:

the line came into existence on or after the designated commencement date; or

the line was altered or upgraded on or after the designated commencement date, and as a result of the alteration or upgrade, the line became capable of being used to supply a superfast carriage service to residential customers in Australia.

Note 1: See also section 156A (certain lines deemed to have come into existence on or after the designated commencement date).

Note 2: See also section 158A (certain line extensions deemed to be local access lines in their own right, and to have come into existence on or after the designated commencement date).

Note 3: For exemptions, see sections 143A to 151.

Use of line

(2) If a person (the first person):

is in a position to exercise control of the line; or

is an associate of a person who is in a position to exercise control of the line;

the first person must not, on or after the designated commencement date, use the line, either alone or jointly with one or more other persons, to supply an eligible service unless the service is supplied to:

a carrier; or

a service provider.

Note: For when a person is in a position to exercise control of a line, see section 155A.

Subsection (2) does not apply to the use of the line if a functional separation undertaking given by the first person is in force, unless:

the ACCC has given a notice under section 151W revoking the undertaking; and

the revocation has not taken effect; and

the line came into existence after the notice was given.

Note 1: A functional separation undertaking relates to the supply of eligible services using a local access line, irrespective of when the line came into existence.

Note 2: See also section 142B.

Ancillary contraventions

A person must not:

aid, abet, counsel or procure a contravention of subsection (2); or

induce, whether by threats or promises or otherwise, a contravention of subsection (2); or

be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (2); or

conspire with others to effect a contravention of subsection (2).

Civil penalty provisions

(5) Subsections (2) and (4) are civil penalty provisions.

Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

143 Supply of eligible services to be on wholesale basis—networks in existence before the designated commencement date etc.

Scope

This section applies to a local access line if:

the local access line is part of the infrastructure of a telecommunications network in Australia; and

the network is 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 network is not the national broadband network; and

either:

the network came into existence on or after 1 January 2011, but before the designated commencement date; or

the network was altered or upgraded on or after 1 January 2011, but before the designated commencement date, and, as a result of the alteration or upgrade, the network became capable of being used to supply a superfast carriage service to residential customers, or prospective residential customers, in Australia.

Note 1: See also section 156 (deemed networks).

Note 2: For exemptions, see sections 143A to 151.

Use of network

(2) If a person (the first person):

is in a position to exercise control of the network; or

is an associate of a person who is in a position to exercise control of the network;

the first person must not use the line, either alone or jointly with one or more other persons, to supply an eligible service unless the service is supplied to:

a carrier; or

a service provider.

Note: For when a person is in a position to exercise control of a network, see section 155.

Subsection (2) does not apply to the use of the line if a functional separation undertaking given by the first person is in force, unless:

the ACCC has given a notice under section 151W revoking the undertaking; and

the revocation has not taken effect; and

the line came into existence after the notice was given.

Note 1: A functional separation undertaking relates to the supply of eligible services using a local access line, irrespective of when the line came into existence.

Note 2: See also section 142B.

Subsection (2) does not apply to the use of the line if:

(a) the Carrier Licence Conditions (Networks supplying Superfast Carriage Services to Residential Customers) Declaration 2014 is in force; and

the line is part of the infrastructure of a designated telecommunications network (within the meaning of that declaration); and

a carrier owns or operates the network; and

as a result of the application of section 5 of that declaration to the network, the carrier licence held by the carrier is subject to the conditions set out in subsections 6(5), (5A), (6), (7) and (8) of that declaration.

Ancillary contraventions

A person must not:

aid, abet, counsel or procure a contravention of subsection (2); or

induce, whether by threats or promises or otherwise, a contravention of subsection (2); or

be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (2); or

conspire with others to effect a contravention of subsection (2).

Civil penalty provisions

(6) Subsections (2) and (5) are civil penalty provisions.

Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

143AA Judicial enforcement of prohibitions

If the Federal Court is satisfied that a person has, on or after the designated commencement date, contravened subsection 142C(2) or (4) or 143(2) or (5), the Court may, on the application of:

the ACCC; or

a carrier; or

a carriage service provider;

make all or any of the following orders:

an order directing the person to comply with that subsection;

an order directing the person to compensate any other person (who may be the applicant) who has suffered loss or damage as a result of the contravention;

any other order that the Court thinks appropriate.

The Federal Court may discharge or vary an order granted under this section.

143A Class exemptions

Determination providing for exemption

The ACCC may, by legislative instrument, determine that, if:

a person is included in a specified class of persons; and

the person has, by written notice given to the ACCC, elected to be bound by the determination; and

the person has not, by written notice given to the ACCC, cancelled the election; and

in a case where the person is not a member of an associated group—the number of residential customers to whom the person supplies fixed-line carriage services does not exceed:

2,000; or

if a higher number (not exceeding 12,000) is specified in the regulations—that higher number; and

in a case where the person is a member of an associated group—the total number of residential customers to whom the members of the group supply fixed-line carriage services does not exceed:

2,000; or

if a higher number (not exceeding 12,000) is specified in the regulations—that higher number;

the person is exempt from section 142C.

Note: For associated group, see subsection (10) of this section.

The ACCC may, by legislative instrument, determine that, if:

a person is included in a specified class of persons; and

the person has, by written notice given to the ACCC, elected to be bound by the determination; and

the person has not, by written notice given to the ACCC, cancelled the election; and

in a case where the person is not a member of an associated group—the number of residential customers to whom the person supplies fixed-line carriage services does not exceed:

2,000; or

if a higher number (not exceeding 12,000) is specified in the regulations—that higher number; and

in a case where the person is a member of an associated group—the total number of residential customers to whom the members of the group supply fixed-line carriage services does not exceed:

2,000; or

if a higher number (not exceeding 12,000) is specified in the regulations—that higher number;

the person is exempt from section 143.

Note: For associated group, see subsection (10) of this section.

A determination under subsection (1) or (2) is subject to the following conditions and limitations:

the person must ensure that a designated carriage service is available for supply to wholesale customers, or prospective wholesale customers, of the person;

the person must not discriminate between the person’s wholesale customers, or the person’s prospective wholesale customers, in relation to the supply of designated carriage services;

the person must not discriminate in favour of itself in relation to the supply of designated carriage services;

the person must not, in carrying on any of the following activities, discriminate between the person’s wholesale customers or the person’s prospective wholesale customers:

developing a new eligible service;

enhancing an eligible service;

extending or enhancing the capability of a facility or telecommunications network by means of which an eligible service is, or is to be, supplied;

planning for a facility or telecommunications network by means of which an eligible service is, or is to be, supplied;

an activity that is preparatory to the supply of an eligible service;

an activity that is ancillary or incidental to the supply of an eligible service;

giving information to service providers about any of the above activities;

the person must not discriminate in favour of itself in relation to the carrying on of any of the following activities:

developing a new eligible service;

enhancing an eligible service;

extending or enhancing the capability of a facility or telecommunications network by means of which an eligible service is, or is to be, supplied;

planning for a facility or telecommunications network by means of which an eligible service is, or is to be, supplied;

an activity that is preparatory to the supply of an eligible service;

an activity that is ancillary or incidental to the supply of an eligible service;

giving information to service providers about any of the above activities;

such other conditions and limitations as are specified in the determination.

Note 1: For compliance with conditions and limitations, see section 143B.

Note 2: For judicial enforcement of conditions and limitations, see section 143C.

The rule in paragraph (3)(b) does not prevent discrimination against a wholesale customer, or prospective wholesale customer, if the person has reasonable grounds to believe that the wholesale customer or prospective wholesale customer would fail, to a material extent, to comply with the terms and conditions on which the person supplies designated carriage services.

Examples of grounds for believing as mentioned in subsection (4) include:

evidence that the wholesale customer or prospective wholesale customer is not creditworthy; and

repeated failures by the wholesale customer or prospective wholesale customer to comply with the terms and conditions on which the person supplied eligible services (whether or not using the line).

A determination under subsection (1) or (2) must not specify a condition or limitation of a kind specified in a determination under subsection (7).

The Minister may, by legislative instrument, determine one or more kinds of condition or limitation for the purposes of subsection (6).

Criteria for making determination

In deciding whether to make a determination under subsection (1) or (2), the ACCC must have regard to:

whether the determination promotes the long-term interests of end-users of carriage services or of services supplied by means of carriage services; and

the matters (if any) specified in a determination under subsection (9); and

such other matters (if any) as the ACCC considers relevant.

The Minister may, by legislative instrument, determine one or more matters for the purposes of paragraph (8)(b).

Associated group

For the purposes of this section, if:

a person is in a position to exercise control of:

a local access line; or

a telecommunications network; and

the person has one or more associates;

then:

the person is taken to belong to an associated group; and

the associated group consists of the person and those associates.

143B Compliance with conditions and limitations of exemption determinations

A person must, on or after the designated commencement date, comply with the conditions or limitations of a determination under subsection 143A(1) or (2).

Ancillary contraventions

A person must not:

aid, abet, counsel or procure a contravention of subsection (1); or

induce, whether by threats or promises or otherwise, a contravention of subsection (1); or

be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or

conspire with others to effect a contravention of subsection (1).

Civil penalty provisions

(3) Subsections (1) and (2) are civil penalty provisions.

Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

143C Judicial enforcement of conditions and limitations of exemption determinations

If the Federal Court is satisfied that a person has, on or after the designated commencement date, contravened any of the conditions or limitations of a determination under subsection 143A(1) or (2), the Court may, on the application of:

the ACCC; or

a carrier; or

a carriage service provider;

make all or any of the following orders:

an order directing the person to comply with the condition or limitation;

an order directing the person to compensate any other person (who may be the applicant) who has suffered loss or damage as a result of the contravention;

any other order that the Court thinks appropriate.

The Federal Court may discharge or vary an order granted under this section.

143D Publication of list of persons who have elected to be bound by exemption determinations

If a determination is in force under subsection 143A(1) or (2), the ACCC must publish on its website a list setting out the names of the persons who:

have elected to be bound by the determination; and

have not cancelled the election concerned.

143E Exemptions—certain real estate development projects etc.

If:

a part of the infrastructure of a telecommunications network is situated in a particular area that:

on 1 January 2011, was being developed as a particular stage of a real estate development project; or

before 1 January 2011, was developed as a particular stage of a real estate development project; and

on or after the designated commencement date, the network is extended to another area that is being, or is to be, developed as another stage of the project; and

a carrier installs telecommunications network infrastructure; and

the infrastructure mentioned in paragraph (c) is part of the extension;

the infrastructure mentioned in paragraph (c) is exempt from sections 142C and 143.

If:

a part of the infrastructure of a telecommunications network is situated in a particular area that:

on 1 January 2011, was being developed as a particular stage of a real estate development project; or

before 1 January 2011, was developed as a particular stage of a real estate development project; and

during the period:

beginning at the start of the designated commencement date; and

(ii) ending when the Minister made a declaration under repealed National Broadband Network Companies Act 2011 that, in the Minister’s opinion, the national broadband network should be treated as built and fully operational;section 48 of the

the network is extended to an area that is:

the project area of a real estate development project specified under subsection (3); or

the project area of a real estate development project that belongs to a class of real estate development projects specified under subsection (5); or

the project area of a building redevelopment project specified under subsection (6); or

the project area of a building redevelopment project that belongs to a class of building redevelopment projects specified under subsection (8); and

a carrier installs telecommunications network infrastructure; and

the infrastructure mentioned in paragraph (c) is part of the extension;

the infrastructure mentioned in paragraph (c) is exempt from sections 142C and 143.

Note: For the purposes of subparagraph (2)(b)(ii), the declaration under repealed National Broadband Network Companies Act 2011 was made on 11 December 2020.section 48 of the

The Minister may, by notifiable instrument, specify one or more real estate development projects for the purposes of subparagraph (2)(b)(iii).

(4) Subsection 13(3) of the Legislation Act 2003 does not apply to subsection (3) of this section.

The Minister may, by legislative instrument, specify one or more classes of real estate development projects for the purposes of subparagraph (2)(b)(iv).

The Minister may, by notifiable instrument, specify one or more building redevelopment projects for the purposes of subparagraph (2)(b)(v).

(7) Subsection 13(3) of the Legislation Act 2003 does not apply to subsection (6) of this section.

The Minister may, by legislative instrument, specify one or more classes of building redevelopment projects for the purposes of subparagraph (2)(b)(vi).

Building redevelopment project

(9) For the purposes of this section, a project is a building redevelopment project if the project involves:

the significant refurbishment or repurposing of one or more buildings so as to bring into existence one or more building units; and

the making available of any or all of those building units for sale or lease.

(10) For the purposes of this section, the area or areas occupied by the building or buildings are the project area for the building redevelopment project.

For the purposes of subsection (9), it is immaterial whether:

the project has been, is being, or will be, implemented in stages; or

different elements of the project have been, are being, or will be, carried out by different persons; or

one or more approvals are given, are required, or will be required, under a law of the Commonwealth, a State or a Territory, for the project, or any element of the project.

143F Exemptions—lines installed in close proximity to other lines

If:

a telecommunications network came into existence on or after 1 January 2011; and

a line came into existence on or after the designated commencement date for the purposes of connecting particular premises to the network; and

the coming into existence of the line enables or enabled the occupier of the premises to become a customer in relation to carriage services supplied using the line; and

the premises are in close proximity to a line that forms part of the infrastructure of the network as the network stood immediately before the designated commencement date; and

the line mentioned in paragraph (b) is used to supply a superfast carriage service;

the line mentioned in paragraph (b) is exempt from section 142C.

Note 1: See also section 156A (certain lines deemed to have come into existence on or after the designated commencement date).

Note 2: See also section 158A (certain line extensions deemed to be local access lines in their own right, and to have come into existence on or after the designated commencement date).

If:

(a) a designated telecommunications network (within the meaning of the Carrier Licence Conditions (Networks supplying Superfast Carriage Services to Residential Customers) Declaration 2014) was in existence immediately before the designated commencement date; and

a line came into existence on or after the designated commencement date for the purposes of connecting particular premises to the network; and

the coming into existence of the line enables or enabled the occupier of the premises to become a customer in relation to carriage services supplied using the line; and

the premises are in close proximity to a line that forms part of the infrastructure of the network as the network stood immediately before the designated commencement date; and

the line mentioned in paragraph (b) is used to supply a superfast carriage service;

the line mentioned in paragraph (b) is exempt from section 142C.

Note 1: See also section 156A (certain lines deemed to have come into existence on or after the designated commencement date).

Note 2: See also section 158A (certain line extensions deemed to be local access lines in their own right, and to have come into existence on or after the designated commencement date).

143G Exemptions—networks covered by exemption instruments

If:

(a) the Telecommunications (Network Exemption—TransACT Very Small Scale Networks) Instrument 2012 was in force at the start of the designated commencement date; and

a line came into existence on or after the designated commencement date; and

the line forms part of the infrastructure of:

an ACT Very Small Scale Network that is a FTTP network or a VDSL network (within the meaning of that instrument); or

a Victorian Very Small Scale Network that is a FTTP network, a VDSL network or a HFC network (within the meaning of that instrument); and

that instrument has not ceased to be in force;

the line is exempt from section 142C.

Note 1: See also section 156A (certain lines deemed to have come into existence on or after the designated commencement date).

Note 2: See also section 158A (certain line extensions deemed to be local access lines in their own right, and to have come into existence on or after the designated commencement date).

If:

(a) the Telecommunications (Network Exemption—Telstra South Brisbane Network) Instrument 2012 was in force at the start of the designated commencement date; and

a line came into existence on or after the designated commencement date; and

the line forms part of the infrastructure of the Telstra South Brisbane Network (within the meaning of that instrument); and

that instrument has not ceased to be in force;

the line is exempt from section 142C.

Note 1: See also section 156A (certain lines deemed to have come into existence on or after the designated commencement date).

Note 2: See also section 158A (certain line extensions deemed to be local access lines in their own right, and to have come into existence on or after the designated commencement date).

If:

(a) the Telecommunications (Network Exemption—TransACT Upgraded VDSL Networks) Instrument 2012 was in force at the start of the designated commencement date; and

a line came into existence on or after the designated commencement date; and

the line forms part of the infrastructure of a TransACT Upgraded VDSL Network (within the meaning of that instrument); and

that instrument has not ceased to be in force;

the line is exempt from section 142C.

Note 1: See also section 156A (certain lines deemed to have come into existence on or after the designated commencement date).

Note 2: See also section 158A (certain line extensions deemed to be local access lines in their own right, and to have come into existence on or after the designated commencement date).

If:

(a) the Telecommunications (Network Exemption—Specified Velocity Networks) Instrument 2012 was in force at the start of the designated commencement date; and

a line came into existence on or after the designated commencement date; and

the line forms part of the infrastructure of a Specified Velocity Network (within the meaning of that instrument); and

that instrument has not ceased to be in force;

the line is exempt from section 142C.

Note 1: See also section 156A (certain lines deemed to have come into existence on or after the designated commencement date).

Note 2: See also section 158A (certain line extensions deemed to be local access lines in their own right, and to have come into existence on or after the designated commencement date).

(5) For the purposes of paragraph (4)(c) of this section, assume that paragraph (c) of the definition of Specified Velocity Network in the Telecommunications (Network Exemption—Specified Velocity Networks) Instrument 2012 were modified by omitting all the words from and including “in accordance with” to and including “project”.

143H Exemption—networks marketed as business networks

If:

a local access line is part of the infrastructure of a telecommunications network operated by a carrier; and

the network is marketed by the carrier exclusively as a business network; and

the line is 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

that use or proposed use, when considered in relation to the use or proposed use of all of the local access lines that are part of the infrastructure of the network, is minor; and

the other conditions (if any) determined under subsection (2) have been satisfied;

the line is exempt from section 142C.

The Minister may, by legislative instrument, determine one or more conditions for the purposes of paragraph (1)(e).

144 Exemptions—Ministerial instrument

The Minister may, by written instrument, exempt a specified network from section 143.

Note: For specification by class, see the Acts Interpretation Act 1901.

The Minister may, by written instrument, exempt a specified local access line from section 143.

Note: For specification by class, see the Acts Interpretation Act 1901.

The Minister may, by written instrument, exempt a specified person from subsection 143(2).

Note: For specification by class, see the Acts Interpretation Act 1901.

An instrument under subsection (1), (2) or (3) may be:

unconditional; or

subject to such conditions (if any) as are specified in the instrument.

Before making an instrument under subsection (1), (2) or (3), the Minister must consult:

the ACCC; and

the ACMA.

An instrument under subsection (1), (2) or (3) is not a legislative instrument.

The Minister must not make an instrument under subsection (1), (2) or (3) on or after the designated commencement date.

Subsection (7) does not prevent the Minister from varying an instrument that was in force immediately after the start of the designated commencement date.

145 Exemption—transport authorities

Subsections 142C(2) and 143(2) do not apply if:

both:

the eligible service is a carriage service; and

the sole use of the carriage service is use by Airservices Australia to carry communications necessary or desirable for the workings of aviation services; or

the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this subsection.

Paragraph (1)(a) does not apply to a carriage service supplied to Airservices Australia unless the carriage service is supplied on the basis that Airservices Australia must not re-supply the carriage service.

Subsections 142C(2) and 143(2) do not apply if:

the eligible service is a carriage service, and the sole use of the carriage service is use by a State or Territory transport authority to carry communications necessary or desirable for the workings of the following services:

train services of a kind provided by the authority;

bus or other road services of a kind provided by the authority;

tram services of a kind provided by the authority; or

the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this subsection.

Paragraph (3)(a) does not apply to a carriage service supplied to a State or Territory transport authority unless the carriage service is supplied on the basis that the State or Territory transport authority must not re-supply the carriage service.

Subsections 142C(2) and 143(2) do not apply if:

both:

the eligible service is a carriage service; and

the sole use of the carriage service is use by a rail corporation to carry communications necessary or desirable for the workings of train services; or

the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this subsection.

Paragraph (5)(a) does not apply to a carriage service supplied to a rail corporation unless the carriage service is supplied on the basis that the rail corporation must not re-supply the carriage service.

146 Exemption—electricity supply bodies

Subsections 142C(2) and 143(2) do not apply if:

the eligible service is a carriage service, and the sole use of the carriage service is use by an electricity supply body to carry communications necessary or desirable for:

managing the generation, transmission, distribution or supply of electricity; or

charging for the supply of electricity; or

the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this section.

Paragraph (1)(a) does not apply to a carriage service supplied to an electricity supply body unless the carriage service is supplied on the basis that the electricity supply body must not re-supply the carriage service.

147 Exemption—gas supply bodies

Subsections 142C(2) and 143(2) do not apply if:

the eligible service is a carriage service, and the sole use of the carriage service is use by a gas supply body to carry communications necessary or desirable for:

managing the transmission or distribution of natural gas in a pipeline; or

charging for the supply of natural gas transmitted or distributed in a pipeline; or

the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this section.

Paragraph (1)(a) does not apply to a carriage service supplied to a gas supply body unless the carriage service is supplied on the basis that the gas supply body must not re-supply the carriage service.

148 Exemption—water supply bodies

Subsections 142C(2) and 143(2) do not apply if:

the eligible service is a carriage service, and the sole use of the carriage service is use by a water supply body to carry communications necessary or desirable for:

managing the distribution of water in a pipeline; or

charging for the supply of water distributed in a pipeline; or

the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this section.

Paragraph (1)(a) does not apply to a carriage service supplied to a water supply body unless the carriage service is supplied on the basis that the water supply body must not re-supply the carriage service.

149 Exemption—sewerage services bodies

Subsections 142C(2) and 143(2) do not apply if:

the eligible service is a carriage service, and the sole use of the carriage service is use by a sewerage services body to carry communications necessary or desirable for:

managing the supply of sewerage services; or

charging for the supply of sewerage services; or

the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this section.

Paragraph (1)(a) does not apply to a carriage service supplied to a sewerage services body unless the carriage service is supplied on the basis that the sewerage services body must not re-supply the carriage service.

150 Exemption—storm water drainage services bodies

Subsections 142C(2) and 143(2) do not apply if:

the eligible service is a carriage service, and the sole use of the carriage service is use by a storm water drainage services body to carry communications necessary or desirable for:

managing the supply of storm water drainage services; or

charging for the supply of storm water drainage services; or

the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this section.

Paragraph (1)(a) does not apply to a carriage service supplied to a storm water drainage services body unless the carriage service is supplied on the basis that the storm water drainage services body must not re-supply the carriage service.

151 Exemption—State or Territory road authorities

Subsections 142C(2) and 143(2) do not apply if:

the eligible service is a carriage service, and the sole use of the carriage service is use by a State or Territory road authority to carry communications necessary or desirable for the management or control of road traffic; or

the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this section.

Paragraph (1)(a) does not apply to a carriage service supplied to a State or Territory road authority unless the carriage service is supplied on the basis that the State or Territory road authority must not re-supply the carriage service.

151A Standard functional separation undertaking

(1) If a person is a corporation, the person may give a written undertaking (a standard functional separation undertaking) to the ACCC.

The undertaking must:

provide that the person will maintain:

a single wholesale business unit; and

a single retail business unit; and

provide that the person will maintain arm’s length functional separation between:

the person’s wholesale business unit; and

the person’s retail business unit; and

provide that the person will ensure that:

the terms and conditions relating to price or a method of ascertaining price; and

other terms and conditions;

on which the person’s wholesale business unit supplies local access line services to the person’s retail business unit are documented; and

provide that the person will, to the extent specified in the undertaking, ensure that the workers who perform their duties for the person’s wholesale business unit are different from the workers who perform their duties for the person’s retail business unit; and

provide that the person will, to the extent specified in the undertaking, ensure that there are separate:

operational support systems; and

business systems; and

communications systems; and

accounts;

for:

the person’s wholesale business unit; and

the person’s retail business unit; and

provide that the person will publish on the person’s website:

the terms and conditions relating to price or a method of ascertaining price; and

other terms and conditions;

on which the person’s wholesale business unit offers to supply local access line services to the following:

the person’s retail business unit;

the person’s wholesale customers or prospective wholesale customers; and

provide that the person will:

if requested to do so by a wholesale customer or prospective wholesale customer, supply a local access line service to the wholesale customer or prospective wholesale customer; and

do so on the terms and conditions that were published on the person’s website at the time when the request was made; and

provide that the person will ensure that information provided to the person’s wholesale business unit by the person’s wholesale customers is not disclosed to the person’s retail business unit; and

provide that the person will ensure that the person’s retail business unit does not obtain, access or use information provided to the person’s wholesale business unit by the person’s wholesale customers; and

provide that the person will ensure that information provided to the person’s retail business unit by a carrier or carriage service provider (other than information of a kind specified in a determination under subsection (13)) is not disclosed to the person’s wholesale business unit; and

provide that the person will ensure that the person’s wholesale business unit does not obtain, access or use information provided to the person’s retail business unit by a carrier or carriage service provider (other than information of a kind specified in a determination under subsection (13)); and

provide that the person will use the same customer interface for dealings between:

the person’s wholesale business unit; and

the person’s wholesale customers;

as the person uses for dealings between:

the person’s wholesale business unit; and

the person’s retail business unit; and

contain such other provisions (if any) as are specified in a determination under subsection (14); and

not contain a provision of a kind specified in a determination under subsection (15).

Note: A standard functional separation undertaking is supplemented by section 151ZF (which requires eligible services to be supplied on a non-discriminatory basis) and section 151ZG (which requires related activities to be carried on on a non-discriminatory basis).

An extent specified under paragraph (2)(d) or (e) may be a nil extent.

Form etc.

The undertaking must:

be in a form approved in writing by the ACCC; and

be accompanied by such information as is reasonably likely to assist the ACCC to decide whether to accept or reject the undertaking; and

be accompanied by the fee (if any) specified in, or ascertained in accordance with, a determination under subsection (16).

Expiry time

The undertaking must specify the expiry time of the undertaking.

The expiry time of the undertaking may be described by reference to the end of a period beginning when the undertaking comes into force.

Subsection (6) does not, by implication, limit subsection (5).

The expiry time of the undertaking must not be more than 10 years after the undertaking comes into force.

Fundamental provisions

The undertaking:

must state that the provisions of the undertaking covered by paragraphs (2)(a), (b), (c), (f), (g), (h), (i), (j) and (k) are fundamental provisions; and

may state that one or more other provisions of the undertaking are fundamental provisions.

Compliance reports

The undertaking must provide that the person will give the ACCC periodic reports (to be known as compliance reports) that:

relate to the person’s compliance with the undertaking; and

are in a form approved in writing by the ACCC.

Note: See section 151ZJ (self-incrimination).

Compliance plans

The undertaking must provide that the person will:

prepare a plan (to be known as a compliance plan) setting out the actions to be taken by the person for the purpose of ensuring that the person complies with the undertaking; and

give the ACCC:

a copy of the compliance plan; and

a copy of any variation of the compliance plan.

ACCC may perform functions or exercise powers

If the undertaking provides for the ACCC to perform functions or exercise powers in relation to the undertaking, the ACCC may perform those functions, and exercise those powers, in accordance with the undertaking.

Determinations

The ACCC may, by legislative instrument, determine one or more kinds of information for the purposes of paragraphs (2)(j) and (k).

The Minister may, by legislative instrument, determine one or more provisions for the purposes of paragraph (2)(m).

The Minister may, by legislative instrument, determine one or more kinds of provisions for the purposes of paragraph (2)(n).

The ACCC may, by legislative instrument, determine a fee, or a method of ascertaining a fee, for the purposes of paragraph (4)(c).

A fee determined under, or ascertained in accordance with, subsection (16) must not be such as to amount to taxation.

151B Deemed standard functional separation undertaking

The ACCC may, by legislative instrument, determine that, if:

a corporation is included in a specified class of corporations; and

the corporation has, by written notice given to the ACCC, elected to be bound by the determination; and

the corporation has not, by written notice given to the ACCC, cancelled the election; and

the ACCC has not revoked the election under subsection (7);

this Act has effect as if:

the corporation had given a standard functional separation undertaking in the terms set out in the determination; and

the ACCC had accepted the undertaking; and

if the election was given before the designated commencement date—the undertaking had come into force on the designated commencement date; and

if the election was given on or after the designated commencement date—the undertaking had come into force when the election was given to the ACCC.

A functional separation undertaking covered by a determination under subsection (1) must comply with the following provisions:

paragraphs 151A(2)(a) to (m);

subsections 151A(9), (10) and (11).

A functional separation undertaking covered by a determination under subsection (1) must not contain a provision of a kind specified in a determination under subsection 151A(15).

The following provisions do not apply to a functional separation undertaking covered by a determination under subsection (1):

subsections 151A(4) to (8);

section 151N;

section 151P;

section 151Q;

section 151W.

If, as a result of an election under a determination under subsection (1), a corporation is taken to have given a standard functional separation undertaking:

this Act does not prevent the corporation from giving the ACCC another standard functional separation undertaking; and

if the other standard functional separation undertaking comes into force—the corporation is taken to have cancelled the election immediately before the other standard functional separation undertaking comes into force.

If, as a result of an election under a determination under subsection (1), a corporation is taken to have given a standard functional separation undertaking:

this Act does not prevent the corporation, together with one or more other persons, from giving the ACCC a joint functional separation undertaking; and

if the joint functional separation undertaking comes into force—the corporation is taken to have cancelled the election immediately before the joint functional separation undertaking comes into force.

Before making a determination under subsection (1), the ACCC must:

publish on the ACCC’s website a notice:

setting out the draft determination; and

inviting persons to make submissions to the ACCC about the draft determination within the time limit specified in the notice; and

consider any submissions received within the time limit specified in the notice.

The time limit must not be shorter than 15 business days after the notice is published.

If:

a standard functional separation undertaking is in force as the result of an election made by a person as mentioned in paragraph (1)(b); and

any of the following conditions is satisfied:

the person has breached a fundamental provision of the undertaking;

the person has contravened section 151ZF or 151ZG;

the ACCC is satisfied that the person has an unsatisfactory compliance record in relation to functional separation;

the ACCC may, by written notice given to the person, revoke the election.

151C Joint functional separation undertaking

(1) If 2 or more persons are corporations, those persons may give a joint written undertaking (a joint functional separation undertaking) to the ACCC.

The undertaking must:

identify:

one or more (but not all) of those persons as the wholesaler or wholesalers for the purposes of the undertaking; and

the remaining person or persons as the retailer or retailers for the purposes of the undertaking; and

provide that a wholesaler will not supply a local access line service to a person unless the person is a wholesale customer; and

provide that a retailer will not supply a local access line service to a person unless the person is a retail customer; and

provide that a wholesaler will, to the extent specified in the undertaking, ensure that the wholesaler’s workers will perform their duties exclusively for the wholesaler; and

provide that a retailer will, to the extent specified in the undertaking, ensure that the retailer’s workers will perform their duties exclusively for the retailer; and

provide that a wholesaler will, to the extent specified in the undertaking, ensure that the workers who:

are engaged by persons other than the wholesaler; and

perform duties for the wholesaler;

are different from the workers who:

are engaged by persons other than the wholesaler; and

perform duties for a retailer; and

provide that a retailer will, to the extent specified in the undertaking, ensure that the workers who:

are engaged by persons other than the retailer; and

perform duties for the retailer;

are different from the workers who:

are engaged by persons other than the retailer; and

perform duties for a wholesaler; and

provide that a wholesaler will ensure that no director of the wholesaler is a director of a retailer; and

provide that a retailer will ensure that no director of the retailer is a director of a wholesaler; and

provide that:

the wholesaler or wholesalers; and

the retailer or retailers;

will, to the extent specified in the undertaking, have separate:

operational support systems; and

business systems; and

communications systems; and

accounts; and

provide that a wholesaler will publish on the wholesaler’s website:

the terms and conditions relating to price or a method of ascertaining price; and

other terms and conditions;

on which the wholesaler offers to supply local access line services to the following:

a retailer;

its wholesale customers or prospective wholesale customers; and

provide that a wholesaler will:

if requested to do so by a wholesale customer or prospective wholesale customer, supply a local access line service to the wholesale customer or prospective wholesale customer; and

do so on the terms and conditions that were published on the wholesaler’s website at the time when the request was made; and

provide that a wholesaler will ensure that information provided by its wholesale customers (other than the retailer or retailers) is not disclosed to any of the retailers; and

provide that a retailer will ensure that it does not obtain, access or use information provided to any of the wholesalers by the wholesaler’s wholesale customers; and

provide that a retailer will ensure that information provided to the retailer by a carrier or carriage service provider, other than:

information provided by a wholesaler; or

information of a kind specified in a determination under subsection (15);

is not disclosed to any of the wholesalers; and

provide that a wholesaler will ensure that it does not obtain, access or use information provided to any of the retailers by a carrier or carriage service provider, other than:

information provided by a wholesaler; or

information of a kind specified in a determination under subsection (15); and

provide that a wholesaler will use the same customer interface for dealings between:

the wholesaler; and

the wholesaler’s wholesale customers (other than the retailer or retailers);

as the wholesaler uses for dealings between:

the wholesaler; and

a retailer; and

contain such other provisions (if any) as are specified in a determination under subsection (16); and

not contain a provision of a kind specified in a determination under subsection (17).

Note: A joint functional separation undertaking is supplemented by section 151ZF (which requires eligible services to be supplied on a non-discriminatory basis) and section 151ZG (which requires related activities to be carried on on a non-discriminatory basis).

An extent specified under paragraph (2)(d), (e), (f), (g) or (j) may be a nil extent.

Form etc.

The undertaking must:

be in a form approved in writing by the ACCC; and

be accompanied by such information as is reasonably likely to assist the ACCC to decide whether to accept or reject the undertaking; and

be accompanied by the fee (if any) specified in, or ascertained in accordance with, a determination under subsection (18).

Expiry time

The undertaking must specify the expiry time of the undertaking.

The expiry time of the undertaking may be described by reference to the end of a period beginning when the undertaking comes into force.

Subsection (6) does not, by implication, limit subsection (5).

The expiry time of the undertaking must not be more than 10 years after the undertaking comes into force.

Fundamental provisions

The undertaking:

must state that the provisions of the undertaking covered by paragraphs (2)(a), (b), (c), (h), (i), (k), (l), (m), (n), (o) and (p) are fundamental provisions; and

may state that one or more other provisions of the undertaking are fundamental provisions.

Compliance reports

The undertaking must provide that a wholesaler will give the ACCC periodic reports (to be known as compliance reports) that:

relate to the wholesaler’s compliance with the undertaking; and

are in a form approved in writing by the ACCC.

Note: See section 151ZJ (self-incrimination).

The undertaking must provide that a retailer will give the ACCC periodic reports (to be known as compliance reports) that:

relate to the retailer’s compliance with the undertaking; and

are in a form approved in writing by the ACCC.

Note: See section 151ZJ (self-incrimination).

Compliance plans

The undertaking must provide that a wholesaler will:

prepare a plan (to be known as a compliance plan) setting out the actions to be taken by the wholesaler for the purpose of ensuring that the wholesaler complies with the undertaking; and

give the ACCC:

a copy of the compliance plan; and

a copy of any variation of the compliance plan.

The undertaking must provide that a retailer will:

prepare a plan (to be known as a compliance plan) setting out the actions to be taken by the retailer for the purpose of ensuring that the retailer complies with the undertaking; and

give the ACCC:

a copy of the compliance plan; and

a copy of any variation of the compliance plan.

ACCC may perform functions or exercise powers

If the undertaking provides for the ACCC to perform functions or exercise powers in relation to the undertaking, the ACCC may perform those functions, and exercise those powers, in accordance with the undertaking.

Determinations

The ACCC may, by legislative instrument, determine one or more kinds of information for the purposes of paragraphs (2)(o) and (p).

The Minister may, by legislative instrument, determine one or more provisions for the purposes of paragraph (2)(r).

The Minister may, by legislative instrument, determine one or more kinds of provisions for the purposes of paragraph (2)(s).

The ACCC may, by legislative instrument, determine a fee, or a method of ascertaining a fee, for the purposes of paragraph (4)(c).

A fee determined under, or ascertained in accordance with, subsection (18) must not be such as to amount to taxation.

151D Further information about undertaking

Scope

This section applies if:

a person gives the ACCC a standard functional separation undertaking; or

2 or more persons give the ACCC a joint functional separation undertaking.

Request for further information

The ACCC may request the person or persons to give the ACCC further information about the undertaking.

The ACCC may refuse to consider the undertaking until the person or persons give the ACCC the information.

The ACCC may withdraw its request for further information, in whole or in part.

151E Withdrawal of undertaking that is under consideration

Scope

This section applies if:

a person gives the ACCC a standard functional separation undertaking; or

2 or more persons give the ACCC a joint functional separation undertaking.

Withdrawal

The person or persons may withdraw the undertaking at any time before the ACCC makes a decision to accept or reject the undertaking.

This Act does not prevent the person or persons from giving a fresh undertaking.

Refund of fee

If:

the person or persons withdraw the undertaking; and

the person or persons have paid a fee in relation to the undertaking;

the ACCC may, on behalf of the Commonwealth, refund the whole or a part of the fee.

151F ACCC to accept or reject functional separation undertaking

Scope

This section applies if:

a person gives the ACCC a standard functional separation undertaking; or

2 or more persons give the ACCC a joint functional separation undertaking.

Decision to accept or reject undertaking

After considering the undertaking, the ACCC must:

accept the undertaking; or

reject the undertaking.

Notice of decision

If the ACCC accepts the undertaking, the ACCC must give the person or persons a written notice stating that the undertaking has been accepted.

If the ACCC rejects the undertaking, the ACCC must give the person or persons a written notice:

stating that the undertaking has been rejected; and

setting out the reasons for the rejection.

ACCC to make decision within 3 months

The ACCC must take all reasonable steps to ensure that a decision about the undertaking is made under subsection (2) within 3 months after receiving the undertaking.

In calculating the 3-month period referred to in subsection (5), disregard:

if:

the ACCC has given a notice under section 151K in relation to the undertaking; and

no varied undertaking was given to the ACCC in response to the notice;

a day in the period specified in the notice; and

if:

the ACCC has given a notice under section 151K in relation to the undertaking; and

a varied undertaking was given to the ACCC in response to the notice;

a day in the period:

beginning on the day on which the notice was given; and

ending at the end of the time limit specified by the ACCC when it published the varied undertaking under section 151G; and

if the ACCC has not given a notice under section 151K in relation to the undertaking—a day in the period:

beginning on the day on which the ACCC published the undertaking under section 151G; and

ending at the end of the time limit specified by the ACCC when it published the undertaking under section 151G; and

if the ACCC has requested further information under section 151D in relation to the undertaking—a day during any part of which the request, or any part of the request, remains unfulfilled.

Extension of decision-making period

(7) The ACCC may, by written notice given to the person or persons, extend the 3-month period referred to in subsection (5) (the initial 3-month period), so long as:

the extension is for a period of not more than 3 months; and

the notice includes a statement explaining why the ACCC has been unable to make a decision on the undertaking within the initial 3-month period.

As soon as practicable after the ACCC gives a notice under subsection (7), the ACCC must publish a copy of the notice on the ACCC’s website.

151G Consultation—acceptance or rejection of undertaking

Scope

This section applies if:

a person gives the ACCC a standard functional separation undertaking; or

2 or more persons give the ACCC a joint functional separation undertaking.

Consultation

Before making a decision to accept or reject the undertaking, the ACCC must:

publish on the ACCC’s website a notice:

setting out the undertaking; and

inviting persons to make submissions to the ACCC about the undertaking within the time limit specified in the notice; and

consider any submissions received within the time limit specified in the notice.

The time limit must not be shorter than 15 business days after the notice is published.

151H Serial undertakings

If:

(a) a person gives the ACCC a standard functional separation undertaking (the first functional separation undertaking); and

the ACCC rejects the first functional separation undertaking; and

the person subsequently gives the ACCC another standard functional separation undertaking; and

the ACCC is satisfied that any or all of the provisions of the first functional separation undertaking are materially similar to any or all of the provisions of the other functional separation undertaking;

the ACCC may refuse to consider the other functional separation undertaking.

If:

(a) 2 or more persons give the ACCC a joint functional separation undertaking (the first functional separation undertaking); and

the ACCC rejects the first functional separation undertaking; and

those persons subsequently give the ACCC another joint functional separation undertaking; and

the ACCC is satisfied that any or all of the provisions of the first functional separation undertaking are materially similar to any or all of the provisions of the other functional separation undertaking;

the ACCC may refuse to consider the other functional separation undertaking.

Refund of fee

If:

the ACCC refuses to consider a functional separation undertaking under this section; and

a person or persons have paid a fee in relation to the undertaking;

the ACCC must, on behalf of the Commonwealth, refund the fee.

151J Criteria for accepting functional separation undertaking

Scope

This section applies if:

a person gives the ACCC a standard functional separation undertaking; or

2 or more persons give the ACCC a joint functional separation undertaking.

Criteria

In deciding whether to accept the undertaking, the ACCC must have regard to:

whether the undertaking promotes the long-term interests of end-users of carriage services or of services supplied by means of carriage services; and

the matters (if any) specified in a determination that was in force under subsection (3) at the time the undertaking was given; and

such other matters (if any) as the ACCC considers relevant.

The Minister may, by legislative instrument, determine one or more matters for the purposes of paragraph (2)(b).

151K Variation of functional separation undertaking that is under consideration

Scope

This section applies if:

(a) a person gives the ACCC a standard functional separation undertaking (the original undertaking); or

(b) 2 or more persons give the ACCC a joint functional separation undertaking (the original undertaking).

Notice

The ACCC may give the person or persons a written notice stating that, if:

the person makes, or the persons make, such variations to the original undertaking as are specified in the notice; and

the person gives, or the persons give, the varied undertaking to the ACCC within the period specified in the notice;

the ACCC will consider the varied undertaking under section 151F as if the varied undertaking had been given to the ACCC instead of the original undertaking.

Treatment of varied undertaking

If the person gives, or the persons give, the ACCC a varied undertaking in response to the notice, the ACCC must consider the varied undertaking under section 151F as if the varied undertaking had been given to the ACCC instead of the original undertaking.

No duty to consider whether to give a notice

The ACCC does not have a duty to consider whether to give a notice under subsection (2).

151L Replacement of functional separation undertaking that is under consideration

Scope

(1) This section applies if a person gives the ACCC a standard functional separation undertaking (the original undertaking).

Notice

The ACCC may give the person a written notice stating that, if:

the person withdraws the original undertaking; and

the person, together with one or more other persons specified in the notice, gives a joint functional separation undertaking in the terms specified in the notice; and

the person does the things mentioned in paragraphs (a) and (b) within the time limit specified in the notice;

the ACCC would be inclined to accept the joint functional separation undertaking.

The ACCC does not have a duty to consider whether to give a notice under subsection (2).

151M Renewal of functional separation undertaking

If:

(a) a standard functional separation undertaking (the existing undertaking) given by a person is in force; and

at least 12 months before the expiry of the existing undertaking, the person gives the ACCC another standard functional separation undertaking;

the other undertaking may be expressed to be given by way of renewal of the existing undertaking.

Note: For acceptance or rejection of the other undertaking, see section 151F.

If:

(a) a joint functional separation undertaking (the existing undertaking) given by 2 or more persons is in force; and

at least 12 months before the expiry of the existing undertaking, those persons give another joint functional separation undertaking to the ACCC;

the other undertaking may be expressed to be given by way of renewal of the existing undertaking.

Note 1: For acceptance or rejection of the other undertaking, see section 151F.

Note 2: For consultation on a decision to accept or reject the other undertaking, see section 151G.

151N Variation of expiry time of certain functional separation undertakings

Standard functional separation undertaking

If:

(a) a standard functional separation undertaking (the existing undertaking) given by a person is in force; and

another functional separation undertaking is given to the ACCC by the person; and

the ACCC rejects the other undertaking;

the ACCC may, by written notice given to the person, vary the existing undertaking by:

omitting the expiry time specified in the existing undertaking; and

substituting the expiry time specified in the notice.

Note: See also section 142B.

The expiry time specified in the notice:

must be later than the rejection of the other undertaking; and

must not be later than 12 months after the rejection of the other undertaking.

Subsection 151A(8) does not apply to an expiry time specified in a notice under subsection (1).

Joint functional separation undertaking

If:

(a) a joint functional separation undertaking (the existing undertaking) given by 2 or more persons is in force; and

another functional separation undertaking is given to the ACCC by a person who is one of the persons mentioned in paragraph (a); and

the ACCC rejects the other undertaking;

the ACCC may, by written notice given to each of the persons mentioned in paragraph (a), vary the existing undertaking by:

omitting the expiry time specified in the existing undertaking; and

substituting the expiry time specified in the notice.

Note: See also section 142B.

The expiry time specified in the notice:

must be later than the rejection of the other undertaking; and

must not be later than 12 months after the rejection of the other undertaking.

Subsection 151C(8) does not apply to an expiry time specified in a notice under subsection (4).

Consultation

Before making a decision under this section to vary a functional separation undertaking, the ACCC must:

publish on the ACCC’s website a notice:

setting out the proposed variation; and

inviting persons to make submissions to the ACCC about the proposed variation within the time limit specified in the notice; and

consider any submissions received within the time limit specified in the notice.

The time limit must not be shorter than 15 business days after the notice is published.

151P Duration of functional separation undertaking

Scope

This section applies if:

either:

(i) a person gives the ACCC a standard functional separation undertaking (the new undertaking); or

(ii) 2 or more persons give the ACCC a joint functional separation undertaking (the new undertaking); and

the ACCC accepts the new undertaking.

Duration

If the new undertaking is not expressed to be given by way of renewal of another functional separation undertaking:

in a case where the new undertaking is accepted before the designated commencement date—the new undertaking comes into force:

on the designated commencement date; or

if a later day is specified in the new undertaking—on that day; and

in a case where the new undertaking is accepted on or after the designated commencement date—the new undertaking comes into force:

on the day after it is accepted; or

if a later day is specified in the new undertaking—on that day; and

unless sooner revoked, the new undertaking continues in force until it expires.

If the new undertaking is expressed to be given by way of renewal of another functional separation undertaking:

the new undertaking comes into force immediately after the expiry of the other undertaking; and

unless sooner revoked, the new undertaking continues in force until it expires.

151Q Variation of functional separation undertaking that is in force

Scope

This section applies if:

a standard functional separation undertaking given by a person is in force; or

a joint functional separation undertaking given by 2 or more persons is in force.

Variation

The person or persons may give the ACCC a variation of the undertaking.

If the undertaking is a standard functional separation undertaking, the undertaking as varied must comply with subsections 151A(2), (5), (8), (9), (10) and (11) and paragraph 151A(4)(a).

If the undertaking is a joint functional separation undertaking, the undertaking as varied must comply with subsections 151C(2), (5), (8), (9), (10), (11), (12) and (13) and paragraph 151C(4)(a).

Form etc.

The variation must:

be accompanied by such information as is reasonably likely to assist the ACCC to decide whether to accept or reject the variation; and

be accompanied by the fee (if any) specified in, or ascertained in accordance with, a determination under subsection (6).

The ACCC may, by legislative instrument, determine a fee, or a method of ascertaining a fee, for the purposes of paragraph (5)(b).

A fee determined under, or ascertained in accordance with, subsection (6) must not be such as to amount to taxation.

151R Further information about variation of functional separation undertaking

Scope

This section applies if:

a person gives the ACCC a variation of a standard functional separation undertaking; or

2 or more persons give the ACCC a variation of a joint functional separation undertaking.

Request for further information

The ACCC may request the person or persons to give the ACCC further information about the variation.

The ACCC may refuse to consider the variation until the person or persons give the ACCC the information.

The ACCC may withdraw its request for further information, in whole or in part.

151S Withdrawal of variation that is under consideration

Scope

This section applies if:

a person gives the ACCC a variation of a standard functional separation undertaking; or

2 or more persons give the ACCC a variation of a joint functional separation undertaking.

Withdrawal

The person or persons may withdraw the variation at any time before the ACCC makes a decision to accept or reject the variation.

This Act does not prevent the person or persons from giving a fresh variation.

Refund of fee

If:

the person or persons withdraw the variation; and

the person or persons have paid a fee in relation to the variation;

the ACCC may, on behalf of the Commonwealth, refund the whole or a part of the fee.

151T ACCC to accept or reject variation

Scope

This section applies if:

a person gives the ACCC a variation of a standard functional separation undertaking; or

2 or more persons give the ACCC a variation of a joint functional separation undertaking.

Decision to accept or reject variation

After considering the variation, the ACCC must:

accept the variation; or

reject the variation.

Notice of decision

If the ACCC accepts the variation, the ACCC must give the person or persons a written notice:

stating that the variation has been accepted; and

setting out the terms of the variation.

If the ACCC rejects the variation, the ACCC must give the person or persons a written notice:

stating that the variation has been rejected; and

setting out the reasons for the rejection.

ACCC to make decision within 3 months

The ACCC must take all reasonable steps to ensure that a decision about the variation is made under subsection (2) within 3 months after receiving the variation.

In calculating the 3-month period referred to in subsection (5), disregard:

a day in the period:

beginning on the day on which the ACCC published the variation under section 151U; and

ending at the end of the time limit specified by the ACCC when it published the variation under section 151U; and

if the ACCC has requested further information under section 151R in relation to the variation—a day during any part of which the request, or any part of the request, remains unfulfilled.

Extension of decision-making period

(7) The ACCC may, by written notice given to the person or persons, extend the 3-month period referred to in subsection (5) (the initial 3-month period), so long as:

the extension is for a period of not more than 3 months; and

the notice includes a statement explaining why the ACCC has been unable to make a decision on the variation within the initial 3-month period.

As soon as practicable after the ACCC gives a notice under subsection (7), the ACCC must publish a copy of the notice on the ACCC’s website.

151U Consultation—acceptance or rejection of variation

Scope

This section applies if:

a person gives the ACCC a variation of a standard functional separation undertaking; or

2 or more persons give the ACCC a variation of a joint functional separation undertaking.

Consultation

Before making a decision to accept or reject the variation, the ACCC must:

publish on the ACCC’s website a notice:

setting out the variation; and

inviting persons to make submissions to the ACCC about the variation within the time limit specified in the notice; and

consider any submissions received within the time limit specified in the notice.

The time limit must not be shorter than 15 business days after the notice is published.

151V Criteria for accepting variation

Scope

This section applies if:

a person gives the ACCC a variation of a standard functional separation undertaking; or

2 or more persons give the ACCC a variation of a joint functional separation undertaking.

Criteria

In deciding whether to accept the variation, the ACCC must have regard to:

whether the variation promotes the long-term interests of end-users of carriage services or of services supplied by means of carriage services; and

the matters (if any) specified in a determination under subsection (3); and

such other matters (if any) as the ACCC considers relevant.

The Minister may, by legislative instrument, determine one or more matters for the purposes of paragraph (2)(b).

151W Revocation of functional separation undertaking

Standard functional separation undertaking

If:

a standard functional separation undertaking given by a person is in force; and

the person has:

breached a fundamental provision of the undertaking; or

contravened section 151ZF or 151ZG;

the ACCC may, by written notice given to the person, revoke the undertaking.

If:

a standard functional separation undertaking given by a person is in force; and

the ACCC is satisfied that the person has an unsatisfactory compliance record in relation to functional separation;

the ACCC may, by written notice given to the person, revoke the undertaking.

If:

a standard functional separation undertaking given by a person is in force; and

the person requests the ACCC, in writing, to revoke the undertaking;

the ACCC must, by written notice given to the person, revoke the undertaking.

A revocation under subsection (1), (2) or (3) takes effect at the time specified in the notice of revocation. The specified time:

must not be earlier than the time the notice is given; and

must not be later than 12 months after the notice is given.

After the giving of a notice of revocation of a standard functional separation undertaking under subsection (1), (2) or (3):

the undertaking does not apply to local access line services supplied using a local access line that came into existence after the notice was given; and

(b) the definitions of retail business unit and wholesale business unit in section 142A (in so far as those definitions relate to the undertaking) have effect as if references in those definitions to the supply of local access line services did not include the supply of local access line services using a local access line that came into existence after the notice was given.

Joint functional separation undertaking

If:

a joint functional separation undertaking given by 2 or more persons is in force; and

any of those persons has:

breached a fundamental provision of the undertaking; or

contravened section 151ZF or 151ZG;

the ACCC may, by written notice given to each of those persons, revoke the undertaking.

If:

a joint functional separation undertaking given by 2 or more persons is in force; and

the ACCC is satisfied that any of those persons has an unsatisfactory compliance record in relation to functional separation;

the ACCC may, by written notice given to each of those persons, revoke the undertaking.

If:

a joint functional separation undertaking given by 2 or more persons is in force; and

those persons request the ACCC, in writing, to revoke the undertaking;

the ACCC must, by written notice given to each of those persons, revoke the undertaking.

A revocation under subsection (6), (7) or (8) takes effect at the time specified in the notice of revocation. The specified time:

must not be earlier than the time the notice is given; and

must not be later than 12 months after the notice is given.

After the giving of a notice of revocation of a joint functional separation undertaking under subsection (6), (7) or (8), the undertaking does not apply to local access line services supplied using a local access line that came into existence after the notice was given.

Matters to which the ACCC must have regard

In exercising its powers under this section, the ACCC must have regard to the following matters:

whether arrangements to maintain the continuity of the supply of superfast carriage services to residential customers using local access lines:

have been made; or

can be made before the relevant revocation takes effect;

in the case of a revocation under subsection (1) or (6)—the consequences of the breach;

in the case of a revocation under subsection (2) or (7)—the consequences of the person’s unsatisfactory compliance record;

such other matters (if any) as the ACCC considers relevant.

151X Consultation—revocation of functional separation undertaking

Revocation of standard functional separation undertaking

Before making a decision under subsection 151W(1) or (2) to revoke a standard functional separation undertaking given by a person, the ACCC must:

give the person a written notice:

stating that the ACCC proposes to revoke the undertaking; and

inviting the person to make a submission to the ACCC about the revocation within the time limit specified in the notice; and

consider any submission received within the time limit specified in the notice.

The time limit must not be shorter than 15 business days after the notice is given.

Revocation of joint functional separation undertaking

Before making a decision under subsection 151W(6) or (7) to revoke a joint functional separation undertaking given by 2 or more persons, the ACCC must:

give each of those persons a written notice:

stating that the ACCC proposes to revoke the undertaking; and

inviting those persons to make submissions to the ACCC about the revocation within the time limit specified in the notice; and

consider any submissions received within the time limit specified in the notice.

The time limit must not be shorter than 15 business days after the notice is given.

151Y Notification that a person is at risk of having an unsatisfactory compliance record in relation to functional separation

Scope

This section applies to:

a breach by a person of a functional separation undertaking given by the person, so long as the breach occurred when the undertaking was in force; and

a contravention by a person of section 143B, 151ZA, 151ZB, 151ZF, 151ZG, 151ZH or 151ZI.

Note: See section 142B.

Notification

If:

a functional separation undertaking given by a person is in force; and

the ACCC is aware of one or more breaches or contraventions by the person; and

the ACCC is satisfied that those breaches or contraventions do not mean that the person has an unsatisfactory compliance record in relation to functional separation; and

the ACCC is satisfied that, if there were to be a particular kind of additional breach or contravention by the person, the person would have an unsatisfactory compliance record in relation to functional separation;

the ACCC must:

give the person a written notice:

stating that the ACCC considers that the person is at risk of having an unsatisfactory compliance record in relation to functional separation; and

informing the person that an unsatisfactory compliance record is a ground for revoking the undertaking; and

do so as soon as practicable after becoming satisfied as mentioned in paragraph (d).

Note: See section 142B.

A failure to comply with subsection (2) does not affect the validity of a revocation of a functional separation undertaking.

151Z Variation of functional separation undertaking following giving of revocation notice

Standard functional separation undertaking

If:

the ACCC has given a notice under section 151W revoking a standard functional separation undertaking; and

the revocation has not taken effect;

the ACCC may, by written notice given to the person who gave the undertaking, vary the undertaking.

The ACCC must not vary a standard functional separation undertaking under subsection (1) unless the variation:

addresses the matter or matters that constituted the grounds for the revocation of the undertaking under section 151W; and

does not address any other matter.

Joint functional separation undertaking

If:

the ACCC has given a notice under section 151W revoking a joint functional separation undertaking; and

the revocation has not taken effect;

the ACCC may, by written notice given to each of the persons who gave the undertaking, vary the undertaking.

The ACCC must not vary a joint functional separation undertaking under subsection (3) unless the variation:

addresses the matter or matters that constituted the grounds for the revocation of the undertaking under section 151W; and

does not address any other matter.

When variation takes effect

A variation under subsection (1) or (3) takes effect at the time the notice is given.

151ZA Reporting obligations following giving of revocation notice

Standard functional separation undertaking

If:

the ACCC has given a notice under section 151W revoking a standard functional separation undertaking; and

the revocation has not taken effect;

the ACCC may, by written notice given to the person who gave the undertaking, direct the person:

to give the ACCC:

a report about the person’s compliance with the undertaking; or

information about the person’s compliance with the undertaking; or

a report about action that the person has taken, is taking, or proposes to take for the purpose of ensuring that the person complies with sections 142C and 143 after the revocation takes effect; or

information about action that the person has taken, is taking, or proposes to take for the purpose of ensuring that the person complies with sections 142C and 143 after the revocation takes effect; and

to do so within the period specified in the direction.

Note: See section 151ZJ (self-incrimination).

Joint functional separation undertaking

If:

the ACCC has given a notice under section 151W revoking a joint functional separation undertaking; and

the revocation has not taken effect;

the ACCC may, by written notice given to a person who gave the undertaking jointly with one or more other persons, direct the person:

to give the ACCC:

a report about the person’s compliance with the undertaking; or

information about the person’s compliance with the undertaking; or

a report about action that the person has taken, is taking, or proposes to take for the purpose of ensuring that the person complies with sections 142C and 143 after the revocation takes effect; or

information about action that the person has taken, is taking, or proposes to take for the purpose of ensuring that the person complies with sections 142C and 143 after the revocation takes effect; and

to do so within the period specified in the direction.

Note: See section 151ZJ (self-incrimination).

Compliance with direction

A person must comply with a direction under subsection (1) or (2).

Ancillary contraventions

A person must not:

aid, abet, counsel or procure a contravention of subsection (3); or

induce, whether by threats or promises or otherwise, a contravention of subsection (3); or

be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (3); or

conspire with others to effect a contravention of subsection (3).

Civil penalty provisions

(5) Subsections (3) and (4) are civil penalty provisions.

Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

151ZB Requirement to notify changes in control of person who gave undertaking

Notification by person who gave undertaking

If:

(a) a functional separation undertaking given by a person (the first person) is in force; and

the first person becomes aware that:

a person who was not in a position to exercise control of the first person has become in a position to exercise control of the first person; or

a person who was in a position to control the first person has ceased to be in that position;

the first person must:

notify the ACCC, in writing, of that event; and

do so as soon as practicable, but not later than 10 business days, after becoming so aware.

Note: See section 154.

The notice must be in a form approved, in writing, by the ACCC.

Notification by controller of person who gave undertaking

If:

(a) a functional separation undertaking given by a person (the first person) is in force; and

another person becomes aware that the other person is in a position to exercise control of the first person;

the other person must:

notify the ACCC, in writing, of that position; and

do so as soon as practicable, but not later than 10 business days, after becoming so aware.

Note: See section 154.

The notice must be in a form approved, in writing, by the ACCC.

Ancillary contraventions

A person must not:

aid, abet, counsel or procure a contravention of subsection (1) or (3); or

induce, whether by threats or promises or otherwise, a contravention of subsection (1) or (3); or

be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1) or (3); or

conspire with others to effect a contravention of subsection (1) or (3).

Civil penalty provisions

(6) Subsections (1), (3) and (5) are civil penalty provisions.

Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

151ZC Register of functional separation undertakings

The ACCC is to maintain a Register in which the ACCC includes:

all functional separation undertakings that have been accepted by the ACCC (including those that are no longer in force); and

in the case of a functional separation undertaking that, under section 151B, is taken to have been given by a corporation:

the name of the corporation; and

the date the undertaking came into force; and

all variations of functional separation undertakings.

The Register is to be maintained by electronic means.

The Register is to be made available for inspection on the ACCC’s website.

The Register is not a legislative instrument.

151ZD Compliance with functional separation undertaking

If a functional separation undertaking given by a person is in force, the person must comply with the undertaking.

Note: See also section 142B.

Ancillary contraventions

A person must not:

aid, abet, counsel or procure a contravention of subsection (1); or

induce, whether by threats or promises or otherwise, a contravention of subsection (1); or

be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or

conspire with others to effect a contravention of subsection (1).

Civil penalty provisions

(3) Subsections (1) and (2) are civil penalty provisions.

Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

151ZE Enforcement of functional separation undertaking

If:

a functional separation undertaking given by a person is in force; and

the Federal Court is satisfied, on the application of:

the ACCC; or

a carrier; or

a carriage service provider;

that the person has breached the undertaking;

the Court may make any or all of the following orders:

an order directing the person to comply with the undertaking;

an order directing the disposal of network units, lines, shares or other assets;

an order restraining the exercise of any rights attached to shares;

an order prohibiting or deferring the payment of any sums due to a person in respect of shares held by the person;

an order that any exercise of rights attached to shares be disregarded;

an order directing the person to pay to the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;

any order that the Court considers appropriate directing the person to compensate any other person (who may be the applicant) who has suffered loss or damage as a result of the breach;

any other order that the Court considers appropriate.

Note: See also section 142B.

In addition to the Federal Court’s powers under subsection (1), the Court:

has power, for the purpose of securing compliance with any other order made under this section, to make an order directing any person to do, or refrain from doing, a specified act; and

has power to make an order containing such ancillary or consequential provisions as the Court thinks just.

The Federal Court may, before making an order under this section, direct that notice of the application be given to such persons as it thinks fit or be published in such manner as it thinks fit, or both.

The Federal Court may, by order, rescind, vary or discharge an order made by it under this section or suspend the operation of such an order.

151ZF Eligible services to be supplied on a non-discriminatory basis

No discrimination between wholesale customers

If:

an eligible service is supplied, or proposed to be supplied, by a person using a local access line; and

any of the following conditions is satisfied:

section 142C applies to the line;

section 143 applies to the line;

neither section 142C nor section 143 applies to the line, and there is in force a functional separation undertaking that relates to local access line services supplied, or proposed to be supplied, using the line;

the person must not, on or after the designated commencement date, discriminate between the person’s wholesale customers, or the person’s prospective wholesale customers, in relation to the supply of eligible services using the line.

The rule in subsection (1) does not prevent discrimination against a wholesale customer, or prospective wholesale customer, if the person has reasonable grounds to believe that the wholesale customer or prospective wholesale customer would fail, to a material extent, to comply with the terms and conditions on which the person supplies eligible services using the line.

Examples of grounds for believing as mentioned in subsection (2) include:

evidence that the wholesale customer or prospective wholesale customer is not creditworthy; and

repeated failures by the wholesale customer or prospective wholesale customer to comply with the terms and conditions on which the person supplied eligible services (whether or not using the line).

No discrimination by a person in favour of itself

If:

a person supplies, or proposes to supply, an eligible service using a local access line:

to itself; and

to its wholesale customers or prospective wholesale customers; and

any of the following conditions is satisfied:

section 142C applies to the line;

section 143 applies to the line;

neither section 142C nor section 143 applies to the line, and there is in force a functional separation undertaking that relates to local access line services supplied, or proposed to be supplied, using the line;

the person must not, on or after the designated commencement date, discriminate in favour of itself in relation to the supply of the eligible service.

Ancillary contraventions

A person must not:

aid, abet, counsel or procure a contravention of subsection (1) or (4); or

induce, whether by threats or promises or otherwise, a contravention of subsection (1) or (4); or

be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1) or (4); or

conspire with others to effect a contravention of subsection (1) or (4).

Civil penalty provisions

(6) Subsections (1), (4) and (5) are civil penalty provisions.

Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

151ZG Eligible services—related activities to be carried on on a non-discriminatory basis

Scope

This section applies to a person, on and after the designated commencement date, if:

an eligible service is supplied, or proposed to be supplied, by a person using a local access line; and

any of the following conditions is satisfied:

section 142C applies to the line;

section 143 applies to the line;

neither section 142C nor section 143 applies to the line, and there is in force a functional separation undertaking that relates to local access line services supplied, or proposed to be supplied, using the line.

No discrimination between wholesale customers

The person must not, in carrying on any of the following activities, discriminate between the person’s wholesale customers or the person’s prospective wholesale customers:

developing a new eligible service;

enhancing an eligible service;

extending or enhancing the capability of a facility or telecommunications network by means of which an eligible service is, or is to be, supplied;

planning for a facility or telecommunications network by means of which an eligible service is, or is to be, supplied;

an activity that is preparatory to the supply of an eligible service;

an activity that is ancillary or incidental to the supply of an eligible service;

giving information to service providers about any of the above activities.

No discrimination by a person in favour of itself

The person must not discriminate in favour of itself in relation to the carrying on of any of the following activities:

developing a new eligible service;

enhancing an eligible service;

extending or enhancing the capability of a facility or telecommunications network by means of which an eligible service is, or is to be, supplied;

planning for a facility or telecommunications network by means of which an eligible service is, or is to be, supplied;

an activity that is preparatory to the supply of an eligible service;

an activity that is ancillary or incidental to the supply of an eligible service;

giving information to service providers about any of the above activities.

Ancillary contraventions

A person must not:

aid, abet, counsel or procure a contravention of subsection (2) or (3); or

induce, whether by threats or promises or otherwise, a contravention of subsection (2) or (3); or

be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (2) or (3); or

conspire with others to effect a contravention of subsection (2) or (3).

Civil penalty provisions

(5) Subsections (2), (3) and (4) are civil penalty provisions.

Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

151ZH Statement about the differences between an access agreement and an offer etc.

If:

an access agreement is entered into by a person on or after the designated commencement date; and

the eligible service to which the access agreement relates is an eligible service supplied, or proposed to be supplied, by the person using a local access line; and

any of the following conditions is satisfied:

section 142C applies to the line;

section 143 applies to the line;

neither section 142C nor section 143 applies to the line, and there is in force a functional separation undertaking that relates to local access line services supplied, or proposed to be supplied, using the line; and

immediately before the access agreement was entered into, there was published on the person’s website:

the terms and conditions relating to price or a method of ascertaining price; or

other terms and conditions;

on which the person offers to supply eligible services using the line; and

the terms and conditions set out in the access agreement are not the same as the terms and conditions set out in the offer;

the person must, within 5 business days after the day on which the access agreement was entered into, publish on the person’s website a statement, in a form approved in writing by the ACCC:

identifying the parties to the access agreement; and

describing the differences between the terms and conditions set out in the access agreement and the terms and conditions set out in the offer; and

setting out such other information (if any) about the access agreement as is required by the form.

Note: For access agreement, see subsection (5).

Variation agreement

If:

a variation agreement is entered into by a person on or after the designated commencement date; and

the eligible service to which the relevant access agreement relates is an eligible service supplied, or proposed to be supplied, by the person using a local access line; and

any of the following conditions is satisfied:

section 142C applies to the line;

section 143 applies to the line;

neither section 142C nor section 143 applies to the line, and there is in force a functional separation undertaking that relates to local access line services supplied, or proposed to be supplied, using the line; and

immediately before the variation agreement was entered into, there was published on the person’s website:

the terms and conditions relating to price or a method of ascertaining price; or

other terms and conditions;

on which the person offers to supply eligible services using the line; and

the terms and conditions set out in the relevant access agreement (as varied by the variation agreement) are not the same as the terms and conditions set out in the offer;

the person must, within 5 business days after the day on which the variation agreement was entered into, publish on the person’s website a statement, in a form approved in writing by the ACCC:

identifying the parties to the relevant access agreement (as varied by the variation agreement); and

describing the differences between the terms and conditions set out in the relevant access agreement (as varied by the variation agreement) and the terms and conditions set out in the offer; and

setting out such other information (if any) about the relevant access agreement (as varied by the variation agreement) as is required by the form.

Note: For variation agreement, see subsection (5).

Publication of offer

If:

a person offers to supply eligible services to the person’s wholesale customers, or prospective wholesale customers, using a local access line; and

any of the following conditions is satisfied:

section 142C applies to the line;

section 143 applies to the line;

neither section 142C nor section 143 applies to the line, and there is in force a functional separation undertaking that relates to local access line services supplied, or proposed to be supplied, using the line;

the person must publish on the person’s website:

the terms and conditions relating to price or a method of ascertaining price; or

other terms and conditions;

on which the person offers to supply eligible services to the person’s wholesale customers, or prospective wholesale customers, using the line.

Ancillary contraventions

A person must not:

aid, abet, counsel or procure a contravention of subsection (1), (2) or (2A); or

induce, whether by threats or promises or otherwise, a contravention of subsection (1), (2) or (2A); or

be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1), (2) or (2A); or

conspire with others to effect a contravention of subsection (1), (2) or (2A).

Civil penalty provisions

(4) Subsections (1), (2), (2A) and (3) are civil penalty provisions.

Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

Access agreement and variation agreement

(5) For the purposes of this section, access agreement and variation agreement have the same respective meanings as in Part XIC of the Competition and Consumer Act 2010. For this purpose, assume that:

each reference in section 152AF, subsections 152AG(1) and (3) and section 152BE of that Act to a declared service were a reference to an eligible service; and

subsection 152BE(2) of that Act had not been enacted.

151ZHA Judicial enforcement of non-discrimination rules

If the Federal Court is satisfied that a person has, on or after the designated commencement date, contravened subsection 151ZF(1), (4) or (5), 151ZG(2), (3) or (4) or 151ZH(1), (2), (2A) or (3), the Court may, on the application of:

the ACCC; or

a carrier; or

a carriage service provider;

make all or any of the following orders:

an order directing the person to comply with that subsection;

an order directing the person to compensate any other person (who may be the applicant) who has suffered loss or damage as a result of the contravention;

any other order that the Court thinks appropriate.

The Federal Court may discharge or vary an order granted under this section.

151ZI Anti-avoidance

A corporation must not, either alone or together with one or more other persons:

enter into a scheme; or

begin to carry out a scheme; or

carry out a scheme;

for the sole or dominant purpose of avoiding the application of any provision of this Part in relation to:

the corporation; or

any other corporation.

Ancillary contraventions

A person must not:

aid, abet, counsel or procure a contravention of subsection (1); or

induce, whether by threats or promises or otherwise, a contravention of subsection (1); or

be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or

conspire with others to effect a contravention of subsection (1).

Civil penalty provisions

(3) Subsections (1) and (2) are civil penalty provisions.

Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

Scheme

(4) For the purposes of this section, scheme means:

any agreement, arrangement, understanding, promise or undertaking, whether express or implied; or

any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise;

but does not include a functional separation undertaking.

151ZJ Self-incrimination

A person is not excused from:

giving a report in compliance with a provision of a functional separation undertaking covered by subsection 151A(10) or 151C(10) or (11); or

giving a report or information under section 151ZA:

on the ground that the report or information might tend to incriminate the person or expose the person to a penalty.

However, in the case of an individual:

the report or information; or

giving the report or information; or

any information, document or thing obtained as a direct or indirect consequence of giving the report or information;

is not admissible in evidence against the individual:

in civil proceedings for the recovery of a penalty; or

(e) in criminal proceedings (other than proceedings for an offence against Criminal Code that relates to the report).section 137.1 or 137.2 of the

151ZK Delegation

The ACCC may, by writing, delegate to a person who is:

a member of the staff of the ACCC; and

an SES employee or acting SES employee;

the ACCC’s powers under any of the following provisions:

subsection 103(4F) (formal warning);

section 151D (further information);

subsection 151F(7) (extension of decision-making period);

section 151H (serial undertakings);

section 151R (further information);

subsection 151T(7) (extension of decision-making period).

151ZL Review by the Australian Competition Tribunal

If the ACCC makes a decision under section 151F to reject a functional separation undertaking that was given by a person or persons, the person or persons may apply to the Australian Competition Tribunal for a review of the decision.

If the ACCC makes a decision under section 151N to vary a functional separation undertaking that was given by a person or persons, the person or persons may apply to the Australian Competition Tribunal for a review of the decision.

If the ACCC makes a decision under section 151T to reject a variation that was given by a person or persons, the person or persons may apply to the Australian Competition Tribunal for a review of the decision.

If the ACCC makes a decision under section 151W to revoke a functional separation undertaking that was given by a person or persons, the person or persons may apply to the Australian Competition Tribunal for a review of the decision.

If the ACCC makes a decision under section 151Z to vary a functional separation undertaking that was given by a person or persons, the person or persons may apply to the Australian Competition Tribunal for a review of the decision.

An application under this section for a review of a decision must be:

in writing; and

in the case of an application under subsection (1), (3), (4) or (5)—made within 21 days after the ACCC made the decision; and

in the case of an application under subsection (2)—made within 14 days after the ACCC made the decision.

If the Australian Competition Tribunal receives an application under this section for a review of a decision, the Australian Competition Tribunal must review the decision.

151ZM Functions and powers of the Australian Competition Tribunal etc.

Decision on review

On a review of a decision of the ACCC of a kind mentioned in section 151ZL, the Australian Competition Tribunal may make a decision:

affirming the ACCC’s decision; or

setting aside the ACCC’s decision;

and, for the purposes of the review, the Australian Competition Tribunal may perform all the functions and exercise all the powers of the ACCC.

A decision by the Australian Competition Tribunal:

affirming a decision of the ACCC; or

setting aside a decision of the ACCC;

is taken, for the purposes of this Act (other than this section or section 151ZL), to be a decision of the ACCC.

If the Australian Competition Tribunal sets aside a decision of the ACCC under section 151F to reject a functional separation undertaking, subsection 151F(5) has effect as if the undertaking had been received by the ACCC immediately after the decision was set aside.

Note: This subsection resets the start of the 3-month decision-making period set out in subsection 151F(5).

If the Australian Competition Tribunal sets aside a decision of the ACCC under section 151T to reject a variation, subsection 151T(5) has effect as if the variation had been received by the ACCC immediately after the decision was set aside.

Note: This subsection resets the start of the 3-month decision-making period set out in subsection 151T(5).

Conduct of review

For the purposes of a review by the Australian Competition Tribunal, the member of the Australian Competition Tribunal presiding at the review may require the ACCC to give such information, make such reports and provide such other assistance to the Australian Competition Tribunal as the member specifies.

For the purposes of a review, the Australian Competition Tribunal may have regard to any information given, documents produced or evidence given to the ACCC in connection with the making of the decision to which the review relates.

(7) Paragraphs 103(1)(a) and (b) and 108(b) of the Competition and Consumer Act 2010 have effect, in relation to a review, as if a reference in those paragraphs to that Act included a reference to this Part.

Note: Competition and Consumer Act 2010 applies to proceedings before the Australian Competition Tribunal.Division 2 of Part IX of the

151ZN Provisions that do not apply in relation to an Australian Competition Tribunal review

Competition and Consumer Act 2010 does not apply in relation to a review by the Australian Competition Tribunal of a decision of the ACCC of a kind mentioned in section 151ZL of this Act.Division 1 of Part IX of the

152 Associate

(1) For the purposes of this Part, an associate of a person (the controller) in relation to control of:

a telecommunications network; or

a line; or

a company;

is:

a partner of the controller; or

if the controller or another person who is an associate of the controller under another paragraph receives benefits or is capable of benefiting under a trust—the trustee of the trust; or

a person (whether a company or not) who:

acts, or is accustomed to act; or

under a contract or an arrangement or understanding (whether formal or informal) is intended or expected to act;

in accordance with the directions, instructions or wishes of, or in concert with:

the controller; or

the controller and another person who is an associate of the controller under another paragraph; or

another company if:

(i) the other company is a related body corporate of the controller for the purposes of the Corporations Act 2001; or

the controller, or the controller and another person who is an associate of the controller under another paragraph, is or are in a position to exercise control of the other company.

(2) However, persons are not associates of each other if the ACCC is satisfied that:

they do not act together in any relevant dealings relating to the network, line or company; and

neither of them is in a position to exert influence over the business dealings of the other in relation to the network, line or company.

153 Control

In this Part, control includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights.

154 Control of a company

(1) For the purposes of this Part, the question of whether a person is in a position to exercise control of a company is to be determined under Schedule 1 to the Broadcasting Services Act 1992.

However, in determining that question:

(a) the definition of associate in subsection 6(1) of the Broadcasting Services Act 1992 does not apply; and

(b) the definition of associate in section 152 of this Act applies instead.

155 When a person is in a position to exercise control of a network

(1) For the purposes of this Part, a person (the controller) is in a position to exercise control of a telecommunications network if:

the controller legally or beneficially owns the network (whether alone or together with one or more other persons); or

the controller is in a position, either alone or together with an associate of the controller and whether directly or indirectly:

to exercise control of the operation of all or part of the network; or

to exercise control of the selection of the kinds of services that are supplied using the network; or

to exercise control of the supply of services using the network; or

a company other than the controller legally or beneficially owns the network (whether alone or together with one or more other persons), and:

the controller is in a position, either alone or together with an associate of the controller, to exercise control of the company; or

the controller, either alone or together with an associate of the controller, is in a position to veto any action taken by the board of directors of the company; or

the controller, either alone or together with an associate of the controller, is in a position to appoint or secure the appointment of, or veto the appointment of, at least half of the board of directors of the company; or

the controller, either alone or together with an associate of the controller, is in a position to exercise, in any other manner, whether directly or indirectly, direction or restraint over any substantial issue affecting the management or affairs of the company; or

the company or more than 50% of its directors act, or are accustomed to act, in accordance with the directions, instructions or wishes of, or in concert with, the controller, the controller and an associate of the controller acting together, or the directors of the controller; or

the company or more than 50% of its directors, under a contract or an arrangement or understanding (whether formal or informal), are intended or expected to act in accordance with the directions, instructions or wishes of, or in concert with, the controller, the controller and an associate of the controller acting together, or the directors of the controller.

An employee is not, except through an association with another person, to be regarded as being in a position to exercise control of a network under subsection (1) purely because of being an employee.

More than one person may be in a position to exercise control of a network.

Subsections (1) to (3) do not apply in determining the meaning of an expression used in:

section 142C; or

sections 151ZF, 151ZG and 151ZH, to the extent to which they relate to a line to which section 142C applies; or

any other provision of this Part, so far as that provision relates to:

section 142C; or

section 151ZF, 151ZG or 151ZH, to the extent to which that section relates to a line to which section 142C applies.

155A When a person is in a position to exercise control of a line

(1) For the purposes of this Part, a person (the controller) is in a position to exercise control of a line if:

the controller legally or beneficially owns the line (whether alone or together with one or more other persons); or

the controller is in a position, either alone or together with an associate of the controller and whether directly or indirectly:

to exercise control of the operation of all or part of the line; or

to exercise control of the selection of the kinds of services that are supplied using the line; or

to exercise control of the supply of services using the line; or

a company other than the controller legally or beneficially owns the line (whether alone or together with one or more other persons), and:

the controller is in a position, either alone or together with an associate of the controller, to exercise control of the company; or

the controller, either alone or together with an associate of the controller, is in a position to veto any action taken by the board of directors of the company; or

the controller, either alone or together with an associate of the controller, is in a position to appoint or secure the appointment of, or veto the appointment of, at least half of the board of directors of the company; or

the controller, either alone or together with an associate of the controller, is in a position to exercise, in any other manner, whether directly or indirectly, direction or restraint over any substantial issue affecting the management or affairs of the company; or

the company or more than 50% of its directors act, or are accustomed to act, in accordance with the directions, instructions or wishes of, or in concert with, the controller, the controller and an associate of the controller acting together, or the directors of the controller; or

the company or more than 50% of its directors, under a contract or an arrangement or understanding (whether formal or informal), are intended or expected to act in accordance with the directions, instructions or wishes of, or in concert with, the controller, the controller and an associate of the controller acting together, or the directors of the controller.

An employee is not, except through an association with another person, to be regarded as being in a position to exercise control of a line under subsection (1) purely because of being an employee.

More than one person may be in a position to exercise control of a line.

Subsections (1) to (3) do not apply in determining the meaning of an expression used in:

section 143; or

sections 151ZF, 151ZG and 151ZH, to the extent to which they relate to a line to which section 143 applies; or

any other provision of this Part, so far as that provision relates to:

section 143; or

section 151ZF, 151ZG or 151ZH, to the extent to which that section relates to a line to which section 143 applies.

156 Deemed networks etc.

For the purposes of this Part, if:

a telecommunications network is altered or upgraded on or after 1 January 2011, but before the designated commencement date; and

as a result of the alteration or upgrade, a part of the network became capable of being used to supply a superfast carriage service to residential customers, or prospective residential customers, in Australia;

then:

that part is taken to be a network in its own right; and

the network referred to in paragraph (c) is taken to have come into existence on or after 1 January 2011, but before the designated commencement date.

For the purposes of this Part, if:

a telecommunications network is extended on or after 1 January 2011, but before the designated commencement date; and

the extended part of the network is capable of being used to supply a superfast carriage service to residential customers, or prospective residential customers, in Australia;

then:

the extended part is taken to be a network in its own right; and

the network referred to in paragraph (c) is taken to have come into existence on or after 1 January 2011, but before the designated commencement date.

If:

a part of the infrastructure of a telecommunications network is situated in a particular area that is being or was developed as a particular stage of a real estate development project (within the ordinary meaning of that expression); and

before the designated commencement date, the network is extended to another area that is being, or is to be, developed as another stage of the project;

subsection (2) does not apply to the extension.

If:

a telecommunications network was in existence immediately before 1 January 2011; and

the network is extended on or after 1 January 2011; and

no point on the infrastructure of the extension is located more than:

1 kilometre; or

if a longer distance is specified in the regulations—that longer distance;

from a point on the infrastructure of the network as the network stood immediately before 1 January 2011;

then:

subsection (2) does not apply to the extension at any time before the designated commencement date; and

if, at a time that occurs on or after the designated commencement date, there is in force a legally enforceable agreement that satisfies the following conditions:

the agreement provides for the transfer of ownership or control of the infrastructure of the extension to an NBN corporation;

the agreement is covered by a determination made under subsection 577BA(9);

subsection (2) of this section does not apply to the extension at that time; and

if, at a time that occurs on or after the designated commencement date, there is in force a legally enforceable agreement that satisfies the following conditions:

the contract provides for the deactivation or decommissioning of the infrastructure of the extension;

the contract was entered into between NBN Co and the listed Optus companies (see subsection (7));

subsection (2) does not apply to the extension at that time.

The regulations may provide that subsection (2) does not apply to a specified extension of a telecommunications network.

Note: For specification by class, see the Acts Interpretation Act 1901.

Subsections (1) and (2) do not apply in determining the meaning of an expression used in:

section 142C; or

sections 151ZF, 151ZG and 151ZH, to the extent to which they relate to a line to which section 142C applies; or

any other provision of this Part, so far as that provision relates to:

section 142C; or

section 151ZF, 151ZG or 151ZH, to the extent to which that section relates to a line to which section 142C applies.

Listed Optus company

(7) For the purposes of this section, listed Optus company means:

Optus Networks Pty Limited (ACN 008 570 330); or

Optus Internet Pty Limited (ACN 083 164 532); or

Optus Vision Pty Limited (ACN 066 518 821); or

Optus Vision Media Pty Limited (ACN 070 870 647); or

Optus Systems Pty Limited (ACN 056 541 167); or

SingTel Optus Pty Limited (ACN 052 833 208).

156A Certain lines deemed to have come into existence on or after the designated commencement date

For the purposes of this Part, if:

a local access line came into existence before the designated commencement date; and

before the designated commencement date, the line was used wholly or principally to supply a superfast carriage service to non-residential customers in Australia; and

on or after the designated commencement date, following:

the construction or alteration of premises; or

changes to the activities carried out at premises;

the line is used wholly or principally to supply a superfast carriage service to residential customers in Australia;

the line is taken to have come into existence on or after the designated commencement date.

Subsection (1) does not apply in determining the meaning of an expression used in:

section 143; or

sections 151ZF, 151ZG and 151ZH, to the extent to which they relate to a line to which section 143 applies; or

any other provision of this Part, so far as that provision relates to:

section 143; or

section 151ZF, 151ZG or 151ZH, to the extent to which that section relates to a line to which section 143 applies.

157 Certain installations and connections are not taken to be an extension, alteration or upgrade of a network

For the purposes of this Part, if:

a line is or was installed for the purposes of connecting particular premises to a telecommunications network; and

the installation of the line enables or enabled the occupier of the premises to become a customer in relation to carriage services supplied using the network; and

the premises are in close proximity to a line that forms part of the infrastructure of the network; and

the network is capable of being used to supply a superfast carriage service; and

the network came into existence before 1 January 2011;

neither the installation of the line mentioned in paragraph (a), nor the connection of the premises, is taken to be an extension, alteration or upgrade of the network.

Subsection (1) does not apply in determining the meaning of an expression used in:

section 142C; or

sections 151ZF, 151ZG and 151ZH, to the extent to which they relate to a line to which section 142C applies; or

any other provision of this Part, so far as that provision relates to:

section 142C; or

section 151ZF, 151ZG or 151ZH, to the extent to which that section relates to a line to which section 142C applies.

158 Local access line

(1) For the purposes of this Part, a local access line is a line that is part of the infrastructure of a local access network.

(2) However, a line does not form part of a local access line to the extent that the line is on the customer side of the boundary of a telecommunications network.

Subsection (2) has effect subject to subsection (2B).

For the purposes of:

section 142C; and

sections 151ZF, 151ZG and 151ZH, to the extent to which they relate to a line to which section 142C applies; and

any other provision of this Part, so far as that provision relates to:

section 142C; or

section 151ZF, 151ZG or 151ZH, to the extent to which that section relates to a line to which section 142C applies;

if a line in a multi-unit building is used to supply a superfast carriage service to a residential customer living in a unit in the building:

(d) the line is taken to be a local access line; and

the line is taken to form part of the infrastructure of a telecommunications network.

(3) For the purposes of this section, the boundary of a telecommunications network is to be determined in the same manner in which it is determined under section 22 for the purposes of sections 20, 21 and 30.

(4) For the purposes of this section, local access network has the meaning generally accepted within the telecommunications industry.

158A Deemed local access lines

For the purposes of this Part, if:

a local access line was in existence immediately before the designated commencement date; and

the line is extended on or after the designated commencement date;

then:

the extension is taken to be a local access line in its own right; and

the local access line referred to in paragraph (c) is taken to have come into existence on or after the designated commencement date.

Subsection (1) does not apply in determining the meaning of an expression used in:

section 143; or

sections 151ZF, 151ZG and 151ZH, to the extent to which they relate to a line to which section 143 applies; or

any other provision of this Part, so far as that provision relates to:

section 143; or

section 151ZF, 151ZG or 151ZH, to the extent to which that section relates to a line to which section 143 applies.

159 Alteration

(1) For the purposes of this Part, an alteration of a telecommunications network does not include an extension of the network.

(2) For the purposes of this Part, an alteration of a line does not include an extension of the line.

160 Upgrade of telecommunications network

(1) For the purposes of this Part, an upgrade of a telecommunications network does not include an extension of the network.

(2) For the purposes of this Part, an upgrade of a line does not include an extension of the line.

161 Extended meaning of residential customer

Home-based business carried on by an individual

For the purposes of this Part, if a business is carried on (otherwise than in the capacity of trustee) by an individual, and:

most or all of the work of the business is carried out at the residence of the individual; or

the business does not occupy any premises other than the residence of the individual;

the individual, in the individual’s capacity as a customer, is taken to be a residential customer.

Home-based business carried on by a partnership

For the purposes of this Part, if a business is carried on by a partnership, and:

most or all of the work of the business is carried out at the residence of an individual who is:

one of the partners of the partnership; or

the director, or one of the directors, of a corporation that is one of the partners of the partnership; or

the business does not occupy any premises other than the residence of an individual who is:

one of the partners of the partnership; or

the director, or one of the directors, of a corporation that is one of the partners of the partnership;

the partnership, in its capacity as a customer, is taken to be a residential customer.

Home-based business carried on by a corporation

For the purposes of this Part, if a business is carried on (otherwise than in the capacity of trustee) by a corporation, and:

most or all of the work of the business is carried out at the residence of an individual who is the director, or one of the directors, of the corporation; or

the business does not occupy any premises other than the residence of an individual who is the director, or one of the directors, of the corporation;

the corporation, in its capacity as a customer, is taken to be a residential customer.

Home-based business carried on by a trust

For the purposes of this Part, if a business is carried on by a trust, and:

most or all of the work of the business is carried out at the residence of an individual who is:

a trustee of the trust; or

the director, or one of the directors, of a corporation that is a trustee of the trust; or

the business does not occupy any premises other than the residence of an individual who is:

a trustee of the trust; or

the director, or one of the directors, of a corporation that is a trustee of the trust;

a trustee of the trust, in the trustee’s capacity as a customer, is taken to be a residential customer.

162 Close proximity

The Minister may, by legislative instrument, determine that, if specified circumstances exist in relation to premises and a line, the premises are taken, for the purposes of this Part, to be in close proximity to the line.

The Minister may, by legislative instrument, determine that, if specified circumstances exist in relation to premises and a line, the premises are taken, for the purposes of this Part, not to be in close proximity to the line.

A determination under subsection (1) or (2) must be of a legislative character.

Delegation to the ACCC

The Minister may, by writing, delegate to the ACCC any or all of the Minister’s powers under the following provisions:

subsection (1);

subsection (2).

In performing a delegated function or exercising a delegated power, the ACCC must comply with any written directions of the Minister.

270 Simplified outline

The following is a simplified outline of this Part:

• Carriers, carriage service providers, number-database operators, emergency call persons and their respective associates must protect the confidentiality of information that relates to:

the contents of communications that have been, or are being, carried by carriers or carriage service providers; and

carriage services supplied by carriers and carriage service providers; and

the affairs or personal particulars of other persons.

• The disclosure or use of protected information is authorised in limited circumstances (for example, disclosure or use for purposes relating to the enforcement of the criminal law).

• An authorised recipient of protected information may only disclose or use the information for an authorised purpose.

• Certain record-keeping requirements are imposed in relation to authorised disclosures or uses of information.

271 Eligible person

For the purposes of this Part, an eligible person is a person who is:

a carrier; or

a carriage service provider; or

an employee of a carrier; or

an employee of a carriage service provider; or

a telecommunications contractor; or

an employee of a telecommunications contractor.

272 Number-database operator and eligible number-database person

(1) For the purposes of this Part, a number-database operator is a person in respect of which a determination is in force under subsection 472(1).

(2) For the purposes of this Part, an eligible number-database person is a person who is:

a number-database operator; or

an employee of a number-database operator; or

a number-database contractor; or

an employee of a number-database contractor.

273 Information

A reference in this Part to information includes a reference to opinion.

274 Telecommunications contractor

A reference in this Part to a telecommunications contractor is a reference to a person who performs services for or on behalf of:

a carrier; or

a carriage service provider;

but does not include a reference to a person who performs such services in the capacity of an employee of the carrier or provider.

275 Number-database contractor

A reference in this Part to a number-database contractor is a reference to a person who performs services for or on behalf of a number-database operator, but does not include a reference to a person who performs such services in the capacity of an employee of the operator.

275A Location information

For the purposes of this Part, information about the location of:

a mobile telephone handset; or

any other mobile communications device;

is taken to be information that relates to the affairs of the customer responsible for the handset or device.

For the purposes of this Part, a document about the location of:

a mobile telephone handset; or

any other mobile communications device;

is taken to be a document that relates to the affairs of the customer responsible for the handset or device.

This section is enacted for the avoidance of doubt.

275B Emergency management person

In this Part:

emergency management person means a person who holds, occupies or performs the duties of an office or position specified under subsection (2).

(2) The AFP Minister may, by legislative instrument, specify either or both of the following for the purposes of the definition of emergency management person in subsection (1) of this section:

offices;

positions.

Offices or positions established by or under a law of a State or Territory may be specified under subsection (2).

Subsection (3) does not limit subsection (2).

Before making an instrument under subsection (2), the AFP Minister must consult the Minister administering this Act.

275C Emergency

In this Part:

emergency means an emergency or disaster (however described) within the meaning of an emergency law.

275D Emergency law

In this Part:

emergency law means a law specified under subsection (2).

(2) The AFP Minister may, by legislative instrument, specify a law of a State or a Territory for the purposes of the definition of emergency law in subsection (1) of this section.

275E Relevant information

In this Part:

relevant information means information, or the contents of a document, disclosed as permitted by section 285A.

276 Primary disclosure/use offence—eligible persons

Current eligible persons

An eligible person must not disclose or use any information or document that:

relates to:

the contents or substance of a communication that has been carried by a carrier or carriage service provider; or

the contents or substance of a communication that is being carried by a carrier or carriage service provider (including a communication that has been collected or received by such a carrier or provider for carriage by it but has not been delivered by it); or

carriage services supplied, or intended to be supplied, to another person by a carrier or carriage service provider; or

the affairs or personal particulars (including any unlisted telephone number or any address) of another person; and

comes to the person’s knowledge, or into the person’s possession:

if the person is a carrier or carriage service provider—in connection with the person’s business as such a carrier or provider; or

if the person is an employee of a carrier or carriage service provider—because the person is employed by the carrier or provider in connection with its business as such a carrier or provider; or

if the person is a telecommunications contractor—in connection with the person’s business as such a contractor; or

if the person is an employee of a telecommunications contractor—because the person is employed by the contractor in connection with its business as such a contractor.

Former eligible persons

A person who has been an eligible person must not disclose or use any information or document that:

relates to a matter mentioned in paragraph (1)(a); and

came to the person’s knowledge, or into the person’s possession:

if the person was a carrier or carriage service provider—in connection with the person’s business as such a carrier or provider; or

if the person was an employee of a carrier or carriage service provider—because the person was employed by the carrier or provider in connection with its business as such a carrier or provider; or

if the person was a telecommunications contractor—in connection with the person’s business as such a contractor; or

if the person was an employee of a telecommunications contractor—because the person was employed by the contractor in connection with its business as such a contractor.

Offence

A person who contravenes this section commits an offence punishable on conviction by imprisonment for a term not exceeding 2 years.

Note 1: This section is subject to the exceptions in Telecommunications (Interception and Access) Act 1979.Division 3 of this Part and in Chapter 4 of the

Note 2: See also sections 4AA and 4B of the Crimes Act 1914.

Scope of subsection (1)—carriage by means of electromagnetic energy

Subparagraphs (1)(a)(i) and (ii) do not apply to a communication that is or has been carried by a carrier or carriage service provider unless the carriage was by means of, is by means of, or is proposed to be delivered by means of, guided and/or unguided electromagnetic energy.

277 Primary disclosure/use offence—eligible number-database persons

Current eligible number-database persons

An eligible number-database person must not disclose or use any information or document that:

relates to:

carriage services supplied, or intended to be supplied, to another person by a carrier or carriage service provider; or

the affairs or personal particulars (including any unlisted telephone number or any address) of another person; and

comes to the person’s knowledge, or into the person’s possession:

if the person is a number-database operator—in connection with the person’s business as such an operator; or

if the person is an employee of a number-database operator—because the person is employed by the operator in connection with its business as such an operator; or

if the person is a number-database contractor—in connection with the person’s business as such a contractor; or

if the person is an employee of a number-database contractor—because the person is employed by the contractor in connection with its business as such a contractor.

Former eligible number-database persons

A person who has been an eligible number-database person must not disclose or use any information or document that:

relates to a matter mentioned in paragraph (1)(a); and

came to the person’s knowledge, or into the person’s possession:

if the person was a number-database operator—in connection with the person’s business as such an operator; or

if the person was an employee of a number-database operator—because the person was employed by the operator in connection with its business as such an operator; or

if the person was a number-database contractor—in connection with the person’s business as such a contractor; or

if the person was an employee of a number-database contractor—because the person was employed by the contractor in connection with its business as such a contractor.

Offence

A person who contravenes this section commits an offence punishable on conviction by imprisonment for a term not exceeding 2 years.

Note 1: This section is subject to the exceptions in Telecommunications (Interception and Access) Act 1979.Division 3 of this Part and in Chapter 4 of the

Note 2: See also sections 4AA and 4B of the Crimes Act 1914.

278 Primary disclosure/use offence—emergency call persons

Current emergency call persons

An emergency call person must not disclose or use any information or document that:

relates to:

the contents or substance of a communication that has been carried by a carrier or carriage service provider; or

the contents or substance of a communication that is being carried by a carrier or carriage service provider; or

the affairs or personal particulars (including any unlisted telephone number or any address) of another person; and

comes to the person’s knowledge, or into the person’s possession, in connection with the operation of an emergency call service.

Former emergency call persons

A person who has been an emergency call person must not disclose or use any information or document that:

relates to a matter mentioned in paragraph (1)(a); and

came to the person’s knowledge, or into the person’s possession, in connection with the operation of an emergency call service.

Offence

A person who contravenes this section commits an offence punishable on conviction by imprisonment for a term not exceeding 2 years.

Note 1: This section is subject to the exceptions in Telecommunications (Interception and Access) Act 1979. Division 3 of this Part and in Chapter 4 of the

Note 2: See also sections 4AA and 4B of the Crimes Act 1914.

Scope of subsection (1)—carriage by means of electromagnetic energy

Subparagraphs (1)(a)(i) and (ii) do not apply to a communication that is or has been carried by a carrier or carriage service provider unless the carriage was by means of, is by means of, or is proposed to be delivered by means of, guided and/or unguided electromagnetic energy.

279 Performance of person’s duties

Section 276 does not prohibit a disclosure or use by a person of information or a document if:

the person is an employee of:

a carrier; or

a carriage service provider; or

a telecommunications contractor; and

the disclosure or use is made in the performance of the person’s duties as such an employee.

Section 276 does not prohibit a disclosure or use by a person of information or a document if:

the person is a telecommunications contractor; and

the disclosure or use is made in the performance of the person’s duties as such a contractor.

Section 277 does not prohibit a disclosure or use by a person of information or a document if:

the person is an employee of:

a number-database operator; or

a number-database contractor; and

the disclosure or use is made in the performance of the person’s duties as such an employee.

Section 277 does not prohibit a disclosure or use by a person of information or a document if:

the person is a number-database contractor; and

the disclosure or use is made in the performance of the person’s duties as such a contractor.

Section 278 does not prohibit a disclosure or use by a person of information or a document if:

the person is an employee of:

a recognised person who operates an emergency call service; or

an emergency call contractor; and

the disclosure or use is made in the performance of the person’s duties as such an employee.

Section 278 does not prohibit a disclosure or use by a person of information or a document if:

the person is an emergency call contractor; and

the disclosure or use is made in the performance of the person’s duties as such a contractor.

280 Authorisation by or under law

Division 2 does not prohibit a disclosure or use of information or a document if:

in a case where the disclosure or use is in connection with the operation of an enforcement agency—the disclosure or use is required or authorised under a warrant; or

in any other case—the disclosure or use is required or authorised by or under law.

(1A) In applying paragraph (1)(a) to the National Anti-Corruption Commission, the reference in that paragraph to the operation of an enforcement agency is taken to be a reference to the performance of the functions of the National Anti-Corruption Commissioner (within the meaning of the National Anti-Corruption Commission Act 2022).

Subject to subsection (1C), paragraph (1)(b) does not apply to a disclosure of information or a document if:

the disclosure is required or authorised because of:

a subpoena; or

a notice of disclosure; or

an order of a court;

in connection with a civil proceeding; and

(b) the information or document is kept, by a service provider (within the meaning of the Telecommunications (Interception and Access) Act 1979), solely for the purpose of complying with Part 5-1A of that Act; and

the information or document is not used or disclosed by the service provider for any purpose other than one or more of the following purposes:

complying with Part 5-1A of that Act;

complying with the requirements of warrants under Chapters 2 and 3 of that Act or authorisations under Chapter 4 of that Act;

complying with requests or requirements to make disclosures provided for by sections 284 to 288 of this Act;

(iv) providing persons with access to their personal information in accordance with the Privacy Act 1988;

a purpose prescribed by the regulations;

a purpose incidental to any of the purposes referred to in subparagraphs (i) to (v).

Subsection (1B) does not apply:

in circumstances of a kind prescribed by the regulations; or

(b) to a disclosure to an enforcement agency (within the meaning of the Telecommunications (Interception and Access) Act 1979); or

to a disclosure that occurs during the implementation phase (within the meaning of that Act).

In this section:

enforcement agency has the same meaning as in the Telecommunications (Interception and Access) Act 1979.

281 Witnesses

Division 2 does not prohibit a disclosure by a person of information or a document if the person makes the disclosure as a witness summoned to give evidence or to produce documents.

Subject to subsection (3), this section does not apply to a disclosure of information or a document by a person as a witness in a civil proceeding if the information or document:

(a) is kept, by a service provider (within the meaning of the Telecommunications (Interception and Access) Act 1979), solely for the purpose of complying with Part 5-1A of that Act; and

is not used or disclosed by the service provider for any purpose other than one or more of the following purposes:

complying with Part 5-1A of that Act;

complying with the requirements of warrants under Chapters 2 and 3 of that Act or authorisations under Chapter 4 of that Act;

complying with requests or requirements to make disclosures provided for by sections 284 to 288 of this Act;

(iv) providing persons with access to their personal information in accordance with the Privacy Act 1988;

a purpose prescribed by the regulations;

a purpose incidental to any of the purposes referred to in subparagraphs (i) to (v).

Subsection (2) does not apply:

in circumstances of a kind prescribed by the regulations; or

(b) to a disclosure to an enforcement agency (within the meaning of the Telecommunications (Interception and Access) Act 1979); or

to a disclosure that occurs during the implementation phase (within the meaning of that Act).

284 Assisting the ACMA, the eSafety Commissioner, the ACCC or the Telecommunications Industry Ombudsman

Sections 276 and 277 do not prohibit a disclosure by a person of information or a document if:

the disclosure is made to, or to a member of the staff of, the ACMA; and

the information or document may assist the ACMA to carry out its functions or powers.

Sections 276 and 277 do not prohibit a disclosure by a person of information or a document if:

the disclosure is made to:

the eSafety Commissioner; or

a member of the staff of the ACMA whose duties relate to the performance of the eSafety Commissioner’s functions; and

the information or document may assist the eSafety Commissioner to carry out his or her functions or powers.

Sections 276 and 277 do not prohibit a disclosure by a person of information or a document if:

the disclosure is made to, or to a member of the staff of, the ACCC; and

the information or document may assist the ACCC to carry out its telecommunications functions and powers.

Sections 276 and 277 do not prohibit a disclosure by a person of information or a document if:

the disclosure is made to the Telecommunications Industry Ombudsman, or to an employee of the Telecommunications Industry Ombudsman; and

the information or document may assist the Telecommunications Industry Ombudsman in the consideration of a complaint made to the Telecommunications Industry Ombudsman.

285 Integrated public number database

Permitted uses—general

Sections 276 and 277 do not prohibit a use by a person of information or a document if:

the information or document relates to information (other than information relating to an unlisted telephone number) contained in an integrated public number database; and

the information or document relates to:

carriage services supplied, or intended to be supplied, to another person by a carrier or carriage service provider; or

the affairs or personal particulars of another person (other than an address relating to an unlisted telephone number); and

the use is made for purposes connected with:

the provision of directory assistance services by or on behalf of a carriage service provider; or

the publication and maintenance of a public number directory.

Permitted disclosures—general

Sections 276 and 277 do not prohibit a disclosure by a person of information or a document if:

the information or document relates to information (other than information relating to an unlisted telephone number) contained in an integrated public number database; and

the information or document relates to:

carriage services supplied, or intended to be supplied, to another person by a carrier or carriage service provider; or

the affairs or personal particulars of another person (other than an address relating to an unlisted telephone number); and

the disclosure is made to another person for purposes connected with:

the provision of directory assistance services by or on behalf of a carriage service provider; or

the publication and maintenance of a public number directory; or

the conduct of research of a kind specified in an instrument under subsection (3); and

if the disclosure to the other person is for a purpose covered by subparagraph (c)(ii) or (iv)—the other person holds an authorisation in force under the integrated public number database scheme permitting the other person to use and disclose the information or document.

Permitted uses and disclosures—calls to emergency service numbers

Sections 276 and 277 do not prohibit a use or disclosure by a person of information or a document if:

the information or document relates to information contained in an integrated public number database; and

the information or document relates to:

carriage services supplied, or intended to be supplied, to another person by a carrier or carriage service provider; or

the affairs or personal particulars of another person; and

the use or disclosure is made for purposes connected with dealing with the matter or matters raised by a call to an emergency service number; and

it is unreasonable or impracticable to obtain the other person’s consent to the disclosure or use.

Definitions

In this section:

business includes a venture or concern in trade or commerce, whether or not conducted on a regular, repetitive or continuous basis.

educational institution includes:

a pre-school; and

a school; and

a college; and

a university.

integrated public number database means:

an integrated public number database maintained by Telstra Limited as mentioned in Part 4 of Schedule 2; or

an integrated public number database maintained by a person as mentioned in section 472.

public number means a number specified for use in connection with the supply of carriage services to the public in Australia (within the meaning of subsection 456(2)), but does not include an unlisted number.

public number directory means a record:

that contains either or both of the following:

the names of persons and their public numbers (whether or not it also contains their addresses);

the names of bodies and their public numbers (whether or not it also contains their addresses); and

that, in relation to a person or body that is not a qualifying entity, contains no other information about the person or body; and

that, in relation to a person or body that is a qualifying entity, contains no other information about the person or body apart from information:

that is of a kind specified in an instrument under subsection (4); and

that is applicable in relation to the person or body; and

that:

does not enable a person who only knows the public number of an end-user of a carriage service to readily identify the end-user’s name and/or address; and

does not enable a person who only knows the whole or a part of the address of an end-user of a carriage service to readily identify the end-user’s name and/or public number; and

that satisfies each requirement specified in an instrument under subsection (5).

qualifying entity means:

a person, or body, that is:

carrying on a business; and

(ii) registered under the Australian Charities and Not-for-profits Commission Act 2012, or not an ACNC type of entity; or

a registered charity; or

an educational institution that is:

(i) registered under the Australian Charities and Not-for-profits Commission Act 2012; or

not an ACNC type of entity; or

a department of the Commonwealth, a State or a Territory; or

an agency, authority or instrumentality of the Commonwealth, a State or a Territory; or

any other person or body of a kind specified in an instrument under subsection (6) that is:

(i) registered under the Australian Charities and Not-for-profits Commission Act 2012; or

not an ACNC type of entity.

Research

The Minister may, by legislative instrument, specify kinds of research for the purposes of subparagraph (1A)(c)(iv). The Minister must not specify a kind of research unless the Minister is satisfied that the kind of research is in the public interest.

Additional information in public number directory

(4) The Minister may, by legislative instrument, specify kinds of information for the purposes of subparagraph (c)(i) of the definition of public number directory in subsection (2). The Minister may specify different kinds of information in relation to different kinds of qualifying entities.

Further requirements for public number directory

(5) The Minister may, by legislative instrument, specify requirements for the purposes of paragraph (e) of the definition of public number directory in subsection (2).

Qualifying entities

(6) The Minister may, by legislative instrument, specify kinds of persons or bodies for the purposes of paragraph (g) of the definition of qualifying entity in subsection (2).

285A Data for emergency warnings

(1) Sections 276 and 277 do not prohibit a disclosure by a person (the discloser) of information or a document if:

the information is, or the document consists of, information (including unlisted telephone numbers) contained in an integrated public number database; and

the disclosure is made to an emergency management person; and

the emergency management person has given the discloser a written notice stating that the disclosure is for the purpose of the information, or the contents of the document, being later used or disclosed for either or both of the following:

for a purpose connected with persons being alerted to an emergency or a likely emergency;

for the purpose of reasonable testing of whether, in the event of an emergency occurring, persons would be able to be alerted to that emergency.

A notice given as mentioned in paragraph (1)(c) may cover one or more disclosures (including each disclosure in a series of disclosures under an arrangement between the discloser and the emergency management person).

A notice given as mentioned in paragraph (1)(c) is not a legislative instrument.

In this section:

integrated public number database means:

an integrated public number database maintained by Telstra Limited as mentioned in Part 4 of Schedule 2; or

an integrated public number database maintained by a person as mentioned in section 472.

286 Calls to emergency service number

Division 2 does not prohibit a disclosure by a person of information or a document if:

the information or document came to the person’s knowledge, or into the person’s possession, because of a call to an emergency service number; and

the information, or the contents of the document, consists of any or all of the following:

a name;

a telephone number;

an address;

a location;

the matter or matters raised by the call; and

the disclosure is made to:

an emergency service; or

a service for despatching an emergency service; or

an emergency call person; or

for purposes connected with dealing with the matter or matters raised by the call.

287 Threat to person’s life or health

first person) of information or a document if:Division 2 does not prohibit a disclosure or use by a person (the

the information or document relates to the affairs or personal particulars (including any unlisted telephone number or any address) of another person; and

it is unreasonable or impracticable to obtain the other person’s consent to the disclosure or use; and

the first person believes on reasonable grounds that the disclosure or use is reasonably necessary to prevent or lessen a serious threat to the life or health of a person.

288 Communications for maritime purposes

Division 2 does not prohibit a disclosure or use of information or a document if:

the disclosure or use is reasonably necessary for the purpose of the preservation of human life at sea; or

the disclosure or use:

relates to the location of a vessel at sea; and

is made for maritime communications purposes.

289 Knowledge or consent of person concerned

Division 2 does not prohibit a disclosure or use by a person of information or a document if:

the information or document relates to the affairs or personal particulars (including any unlisted telephone number or any address) of another person; and

the other person:

is reasonably likely to have been aware or made aware that information or a document of that kind is usually disclosed, or used, as the case requires, in the circumstances concerned; or

has consented to the disclosure, or use, as the case requires, in the circumstances concerned.

290 Implicit consent of sender and recipient of communication

Section 276 does not prohibit a disclosure or use by a person if:

the information or document relates to the contents or substance of a communication made by another person; and

having regard to all the relevant circumstances, it might reasonably be expected that the sender and the recipient of the communication would have consented to the disclosure or use, if they had been aware of the disclosure or use.

291 Business needs of other carriers or service providers

Section 276 does not prohibit a disclosure or use by a person of information or a document if:

the disclosure or use is made by or on behalf of:

(i) a carrier (the first carrier); or

(ii) a carriage service provider (the first provider); and

the disclosure or use is made for a purpose of, or is connected with, any other carrier or service provider carrying on its business as such a carrier or provider; and

(c) the information or document relates to a person (the third person) who is a customer or former customer of:

the first carrier or the first provider; or

the other carrier or the other provider; and

the disclosure or use is made for a purpose of, or is connected with:

the supply, or proposed supply, by the other carrier or other provider to the third person of a carriage service or a content service; or

the supply, or proposed supply, by the other carrier or other provider to the third person of goods or services for use in connection with the supply of a carriage service or a content service; or

the installation, maintenance, operation or provision of access to a telecommunications network or a facility, where the network or facility is used, or for use, by the other carrier or the other provider to supply a carriage service or a content service to the third person; and

if the information or document relates to the location of:

a mobile telephone handset; or

any other mobile communications device;

the third person has consented to the disclosure, or use, as the case requires, in the circumstances concerned.

Section 276 does not prohibit a disclosure or use by a person of information or a document if:

the disclosure or use is made by or on behalf of a carriage service provider; and

the disclosure or use is made for a purpose of, or is connected with, an arrangement, or proposed arrangement, made by a carriage service intermediary for the supply of a carriage service by the provider to a third person; and

the information or document relates to the third person; and

the disclosure or use is made for a purpose of, or is connected with:

the supply, or proposed supply, by the provider to the third person of that service; or

the supply, or proposed supply, by the provider to the third person of goods or services for use in connection with the supply of the first-mentioned service; or

the installation, maintenance, operation or provision of access to a telecommunications network or a facility, where the network or facility is used, or for use, by the provider to supply the first-mentioned service to the third person; and

if the information or document relates to the location of:

a mobile telephone handset; or

any other mobile communications device;

the third person has consented to the disclosure, or use, as the case requires, in the circumstances concerned.

Section 276 does not prohibit a disclosure or use by a person of information or a document if:

the disclosure or use is made by or on behalf of a carriage service intermediary; and

the disclosure or use is made for a purpose of, or is connected with, an arrangement, or proposed arrangement, made by the intermediary for the supply of a carriage service by a carriage service provider to a third person; and

the information or document relates to the third person; and

the disclosure or use is made for a purpose of, or is connected with:

the supply, or proposed supply, by the provider to the third person of that service; or

the supply, or proposed supply, by the provider to the third person of goods or services for use in connection with the supply of the first-mentioned service; or

the installation, maintenance, operation or provision of access to a telecommunications network or a facility, where the network or facility is used, or for use, by the provider to supply the first-mentioned service to the third person; and

if the information or document relates to the location of:

a mobile telephone handset; or

any other mobile communications device;

the third person has consented to the disclosure, or use, as the case requires, in the circumstances concerned.

291A Location dependent carriage services

Sections 276 and 277 do not prohibit a disclosure by a person of information or a document if:

the information or document relates to information (other than information relating to an unlisted telephone number) contained in an integrated public number database; and

the disclosure is to a carrier or a carriage service provider; and

the disclosure is made for a purpose of, or is connected with, the supply, or proposed supply, by a person of a location dependent carriage service.

Sections 276 and 277 do not prohibit a disclosure or use by a carrier or a carriage service provider of information or a document if:

the information or document relates to information (other than information relating to an unlisted telephone number) contained in an integrated public number database; and

the disclosure or use is made for a purpose of, or is connected with, the supply, or proposed supply, by a person of a location dependent carriage service.

In this section:

integrated public number database means:

an integrated public number database maintained by Telstra Limited as mentioned in Part 4 of Schedule 2; or

an integrated public number database maintained by a person as mentioned in section 472.

location dependent carriage service means a carriage service that depends for its provision on the availability of information about the addresses of end users of the carriage service.

292 Circumstances prescribed in the regulations

Section 276 does not prohibit a disclosure or use of information or a document in circumstances specified in the regulations.

Section 277 does not prohibit a disclosure or use of information or a document in circumstances specified in the regulations.

Section 278 does not prohibit a disclosure or use of information or a document in circumstances specified in the regulations.

293 Uses connected with exempt disclosures

Section 276 does not prohibit a use of information or a document if:

the use is made for the purposes of, or in connection with, a disclosure of the information or document by the person; and

because of this Division, the disclosure is not prohibited by section 276.

Section 277 does not prohibit a use of information or a document if:

the use is made for the purposes of, or in connection with, a disclosure of the information or document by the person; and

because of this Division, the disclosure is not prohibited by section 277.

Section 278 does not prohibit a use of information or a document if:

the use is made for the purposes of, or in connection with, a disclosure of the information or document by the person; and

because of this Division, the disclosure is not prohibited by section 278.

294 Effect of this Subdivision

Nothing in this Subdivision limits the generality of anything else in it or in Divisions 3 to 5 of Telecommunications (Interception and Access) Act 1979.Part 4-1 of the

Subdivision B—Burden of proof

295 Burden of proof

(1) For the purposes of determining the persuasive burden of proof in proceedings for an offence against Telecommunications (Interception and Access) Act 1979 are taken to be part of the description of the offence.Division 2, the exceptions set out in this Division or in Chapter 4 of the

(2) In proceedings for an offence against Telecommunications (Interception and Access) Act 1979.Division 2, the defendant bears the evidential burden in relation to an exception set out in this Division or in Chapter 4 of the

In this section:

evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

295A ACMA to make integrated public number database scheme

The ACMA must, by legislative instrument, make a scheme (the integrated public number database scheme) for the granting of authorisations for the purposes of paragraph 285(1A)(d).

Note 1: The ACMA may make determinations fixing charges for any matter in relation to which expenses are incurred by the ACMA under the scheme: see Australian Communications and Media Authority Act 2005.section 60 of the

Note 2: Various decisions under the scheme are reviewable: see section 555 and paragraphs 1(ma) to (md) of Schedule 4.

295B Scheme must deal with certain matters

The scheme must make provision for and in relation to the following matters:

the making of applications for authorisations;

the assessment of applications;

the period for which authorisations are to be in force;

the notification of decisions under the scheme (including to the person who maintains the integrated public number database referred to in paragraph 285(1A)(a)).

The scheme must require an applicant for an authorisation to specify the purpose for which the authorisation is sought.

Note: The relevant purposes are purposes connected with the publication and maintenance of a public number directory or with the conduct of particular research.

295C Applications may be treated differently

The scheme may make different provision for different kinds of authorisation applications.

295D Scope of authorisations

The scheme may make provision for authorisations to be in respect of:

all information or documents that satisfy the matters referred to in paragraphs 285(1A)(a) and (b); or

specified information or specified documents that satisfy those matters.

295E Provisional and final authorisations

The scheme may make provision for provisional authorisations and final authorisations.

295F Conditions

The scheme may make provision for the imposition of conditions on the grant of authorisations.

Note 1: Section 295P also allows the Minister to determine that authorisations are granted subject to conditions.

Note 2: Section 295R creates an offence for breaching a condition of an authorisation.

295G Varying or revoking authorisations

The scheme may make provision for the variation or revocation of authorisations. For example, the variation may be the imposition of new conditions or the variation or removal of existing conditions.

295H Scheme may confer administrative powers on the ACMA

The scheme may make provision for or in relation to a particular matter by empowering the ACMA to make decisions of an administrative character.

Note: Sections 50 and 51 of the Australian Communications and Media Authority Act 2005 deal with the delegation of the ACMA’s powers.

295J Ancillary or incidental provisions

The scheme may contain such ancillary or incidental provisions as the ACMA considers appropriate.

295K Scheme-making power not limited

Sections 295B to 295J do not, by implication, limit section 295A.

295L Variation of scheme

(1) The scheme may be varied, but not revoked, in accordance with subsection 33(3) of the Acts Interpretation Act 1901.

(2) Subsection (1) does not limit the application of subsection 33(3) of the Acts Interpretation Act 1901 to other instruments under this Act.

295M Consultation

Making the scheme

Before making the scheme, the ACMA:

(a) must consult the Information Commissioner in relation to matters that relate to the privacy functions (within the meaning of the Australian Information Commissioner Act 2010) and have regard to any submissions made by the Information Commissioner because of that consultation; and

(b) must consult the Secretary of the Department that is administered by the Minister administering the Privacy Act 1988 and have regard to any submissions made by that Secretary because of that consultation; and

may consult such other persons as the ACMA considers appropriate and have regard to any submissions made by those persons because of that consultation.

Decisions under the scheme

Before making a decision under the scheme, the ACMA may consult such persons as the ACMA considers appropriate and have regard to any submissions made by those persons because of that consultation.

Subdivision B—Ministerial instruments

295N Criteria for deciding authorisation applications

The Minister must, by legislative instrument, specify criteria for deciding authorisation applications made under the integrated public number database scheme.

The Minister may specify different criteria for different kinds of authorisation applications.

In deciding an authorisation application, the ACMA:

must apply the criteria applicable to that application; and

may have regard to any other matters that it thinks are relevant.

295P Conditions

The Minister may, by legislative instrument, do either or both of the following:

determine that all authorisations under the integrated public number database scheme are granted subject to specified conditions;

determine that a specified kind of authorisation under that scheme is granted subject to specified conditions.

An authorisation under that scheme is granted subject to any condition specified in an instrument under this section that is applicable to that authorisation.

Note 1: An authorisation may also be granted subject to conditions imposed in accordance with that scheme: see section 295F.

Note 2: Section 295R creates an offence for breaching a condition of an authorisation.

295Q Other reviewable decisions

The Minister may, by legislative instrument, specify decisions under the integrated public number database scheme for the purposes of paragraph 1(md) of Schedule 4.

Subdivision C—Enforcing compliance with conditions of authorisations

295R Offence of breaching a condition

A person commits an offence if:

the person is the holder of an authorisation under the integrated public number database scheme; and

the person does an act or omits to do an act; and

the act or omission breaches a condition of the authorisation.

Penalty: 60 penalty units.

295S Remedial directions for breaching a condition

This section applies if the ACMA is satisfied that a person has contravened, or is contravening, a condition of an authorisation in force under the integrated public number database scheme.

The ACMA may give the person a written direction requiring the person to take specified action directed towards ensuring that the person does not contravene the condition, or is unlikely to contravene the condition, in the future.

A person must not contravene a direction under subsection (2).

(4) Subsection (3) is a civil penalty provision.

Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

A direction given under subsection (2) is not a legislative instrument.

295T Formal warnings for breaching a condition

The ACMA may issue a formal warning if the ACMA is satisfied that a person has contravened, or is contravening, a condition of an authorisation in force under the integrated public number database scheme.

Subdivision D—Report to Minister

295U Report to Minister

(1) At the time an annual report prepared by the Chair of the ACMA is given to the Minister under Public Governance, Performance and Accountability Act 2013, the ACMA must give the Minister a separate report on the following matters:section 46 of the

the compliance by persons with authorisations granted under the integrated public number database scheme;

any other matter relating to the operation of that scheme that the ACMA considers appropriate.

The ACMA is not required to include in the separate report any material:

that is of a confidential nature; or

the disclosure of which is likely to prejudice the fair trial of a person.

The Minister must cause a copy of the separate report to be tabled in each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the separate report.

295V Use or disclosure of information by emergency management persons

Likely emergencies

If an emergency management person believes on reasonable grounds that an emergency is likely to occur, the person may use or disclose relevant information (other than the names of persons) for a purpose connected with persons being alerted to that likely emergency.

Actual emergencies

If an emergency occurs, an emergency management person may use or disclose relevant information (other than the names of persons) for a purpose connected with persons being alerted to that emergency.

Testing

An emergency management person may use or disclose relevant information (other than the names of persons) for the purpose of reasonable testing of whether, in the event of an emergency occurring, persons would be able to be alerted to that emergency.

Other

An emergency management person may disclose relevant information (other than the names of persons) to another person for the purpose of the information being later used or disclosed for a purpose connected with persons being alerted to an emergency or a likely emergency.

295W Use or disclosure of information by other persons

Actual or likely emergencies

If information is disclosed to a person as permitted by subsection 295V(1) or (2) or this subsection, the person may use or disclose the information for a purpose connected with persons being alerted to the emergency or likely emergency concerned.

Testing

If information is disclosed to a person as permitted by subsection 295V(3) or this subsection, the person may use or disclose the information for the purpose of reasonable testing of whether, in the event of an emergency occurring, persons would be able to be alerted to that emergency.

Other

If information is disclosed to a person as permitted by subsection 295V(4) or this subsection, the person may use or disclose the information for a purpose connected with persons being alerted to an emergency or a likely emergency.

295X Effect on telecommunications network

In using or disclosing information that is permitted by section 295V or 295W, a person must take reasonable steps to ensure that the use or disclosure does not adversely affect the operation of a telecommunications network.

295Y Coronial and other inquiries

The disclosure of relevant information to:

a coronial inquiry; or

another inquiry specified by the AFP Minister, by legislative instrument, for the purposes of this paragraph;

in relation to an emergency or likely emergency is taken, for the purposes of this Division, to be a disclosure for a purpose connected with persons being alerted to the emergency or likely emergency concerned.

295Z Offence—use or disclosure of information by emergency management persons

An emergency management person commits an offence if:

the person uses or discloses relevant information; and

the use or disclosure is not permitted under section 295V.

Penalty: Imprisonment for 2 years.

295ZA Offence—use or disclosure of information by other persons

A person commits an offence if:

information is disclosed to the person as permitted by subsection 295V(1) or (2) or 295W(1); and

the person uses or discloses the information; and

the use or disclosure referred to in paragraph (b) of this subsection is not for a purpose connected with persons being alerted to the emergency or likely emergency concerned.

Penalty: Imprisonment for 2 years.

A person commits an offence if:

information is disclosed to the person as permitted by subsection 295V(3) or 295W(2); and

the person uses or discloses the information; and

the use or disclosure referred to in paragraph (b) of this subsection is not for the purpose of reasonable testing of whether, in the event of an emergency occurring, persons would be able to be alerted to that emergency.

Penalty: Imprisonment for 2 years.

A person commits an offence if:

information is disclosed to the person as permitted by subsection 295V(4) or 295W(3); and

the person uses or discloses the information; and

the use or disclosure referred to in paragraph (b) of this subsection is not for a purpose connected with persons being alerted to an emergency or a likely emergency.

Penalty: Imprisonment for 2 years.

295ZB Reports of access

If an emergency management person discloses relevant information, the person must give a written report to the AFP Minister and to the ACMA that covers the following matters:

if the disclosure occurred under subsection 295V(1) or (2)—a description of the emergency or likely emergency concerned and its location;

in any case—the number of telephone numbers that were disclosed and the day that disclosure occurred;

in any case—the number of persons to whom the emergency management person disclosed those numbers and the purpose of each disclosure.

The emergency management person must give the report to the AFP Minister and to the ACMA as soon as practicable after the last disclosure referred to in paragraph (1)(c) of this section occurs (disregarding section 295Y).

295ZC Annual reports to the ACMA and Information Commissioner

If an emergency management person discloses relevant information during a financial year, the person must, within 2 months after the end of that financial year, give a written report to the ACMA and to the Information Commissioner that covers the following matters in relation to each such disclosure:

if the disclosure occurred under subsection 295V(1) or (2)—a description of the emergency or likely emergency concerned and its location;

in any case—the number of telephone numbers that were disclosed and the day that disclosure occurred;

in any case—the number of persons to whom the emergency management person disclosed those numbers and the purpose of each disclosure (whether the disclosure occurred in that financial year or the following financial year).

295ZD Arrangements with States and Territories

The AFP Minister may make arrangements with a Minister of a State or a Territory with respect to the performance of functions or duties, or the exercise of powers, by an emergency management person under this Division.

An instrument by which an arrangement under this section is made is not a legislative instrument.

295ZE Commonwealth immunity

No action, suit or proceeding lies against the Commonwealth in relation to loss, damage or injury to any person or property as a result of the use or disclosure of relevant information:

for a purpose connected with persons being alerted to an emergency or a likely emergency; or

for the purpose of reasonable testing of whether, in the event of an emergency occurring, persons would be able to be alerted to that emergency.

296 Performance of person’s duties

If:

information or a document is disclosed to a person for a particular purpose as permitted by section 279 or this section; and

the information or the contents of the document does not relate to the person’s affairs or personal particulars;

the person must not disclose or use the information or document except for that purpose.

297 Authorisation by or under law

If information or a document is disclosed to a person for a particular purpose as permitted by section 280 or this section, the person must not disclose or use the information or document unless the disclosure or use is required or authorised by or under law.

299 Assisting the ACMA, the eSafety Commissioner, the ACCC or the Telecommunications Industry Ombudsman

If information or a document is disclosed to a person as permitted by subsection 284(1) or this subsection, the person must not disclose or use the information or document except for the purpose of, or in connection with, the carrying out of the ACMA’s functions and powers.

If information or a document is disclosed to a person as permitted by subsection 284(1A) or this subsection, the person must not disclose or use the information or document except for the purpose of, or in connection with, the carrying out of the eSafety Commissioner’s functions and powers.

If information or a document is disclosed to a person as permitted by subsection 284(2) or this subsection, the person must not disclose or use the information or document except for the purpose of, or in connection with, the carrying out of the ACCC’s telecommunications functions and powers.

If information or a document is disclosed to a person as permitted by subsection 284(3) or this subsection, the person must not disclose or use the information or document except for the purpose of, or in connection with, assisting the Telecommunications Industry Ombudsman in the consideration of a complaint made to the Telecommunications Industry Ombudsman.

Note: Section 284 deals with the disclosure or use of information or documents to assist the ACMA, the eSafety Commissioner, the ACCC or the Telecommunications Industry Ombudsman.

299A Integrated public number database

Public number directory

If:

information or a document is disclosed to a person as permitted by subsection 285(1A); and

the disclosure is for a purpose covered by subparagraph 285(1A)(c)(ii);

then:

during the period the person holds an authorisation in force under the integrated public number database scheme in relation to the information or document—the person must not disclose or use the information or document except for that purpose; and

if the person does not hold such an authorisation—the person must not disclose or use the information or document.

Research

If:

information or a document is disclosed to a person as permitted by subsection 285(1A); and

the disclosure is for a purpose covered by subparagraph 285(1A)(c)(iv);

then:

during the period the person holds an authorisation in force under the integrated public number database scheme in relation to the information or document—the person must not disclose or use the information or document except for that purpose; and

if the person does not hold such an authorisation—the person must not disclose or use the information or document.

If information or a document is disclosed to a person for a particular purpose as permitted by subsection (2) or this subsection, the person must not disclose or use the information or document except for that purpose.

300 Threat to person’s life or health

This section applies if:

(a) information or a document is disclosed to a person (the first person) as permitted by section 287 or this section; and

the information or the contents of the document relate to the affairs or personal particulars (including any unlisted telephone number or any address) of another person.

The first person must not disclose or use the information or document unless:

it is unreasonable or impracticable to obtain the other person’s consent to the disclosure or use; and

either of the following apply:

the disclosure or use is for the purpose of, or in connection with, preventing or lessening a serious threat to the life or health of a person;

the first person believes on reasonable grounds that the disclosure or use is reasonably necessary to prevent or lessen a serious threat to the life or health of a person.

Note: Section 287 deals with the disclosure or use of information or documents by a person where the person believes on reasonable grounds that the disclosure or use is reasonably necessary to prevent or lessen a serious threat to the life or health of a person.

301 Communications for maritime purposes

If information or a document is disclosed to a person as permitted by section 288 or this section, the person must not disclose or use the information or document unless:

the disclosure or use is reasonably necessary for the purpose of the preservation of human life at sea; or

the disclosure or use:

relates to the location of a vessel at sea; and

is made for maritime communications purposes.

Note: Section 288 deals with the disclosure or use of information or documents where the disclosure or use is made for certain maritime purposes.

302 Business needs of other carriers or service providers

If information or a document is disclosed to a person as permitted by section 291 or this section, a person must not disclose or use the information or document except for:

the purpose of, or in connection with, the carrying on by:

a carrier; or

a service provider;

of its business as such a carrier or provider; and

the purpose of, or in connection with:

the supply, or proposed supply, by a carrier or service provider of a carriage service or a content service; or

the supply, or proposed supply, by a carrier or service provider of goods or services for use in connection with the supply of a carriage service or a content service; or

the installation, maintenance, operation or provision of access to a telecommunications network or a facility, where the network or facility is used, or for use, by a carrier or service provider to supply a carriage service or a content service to a person.

Note: Section 291 deals with the disclosure or use of information or documents for the purposes of a carrier or a service provider carrying on its business as such a carrier or provider.

302A Location dependent carriage services

If information or a document is disclosed to a person as permitted by section 291A or this subsection, a person must not disclose or use the information or document except for the purpose of, or in connection with, the supply, or proposed supply, by a person of a location dependent carriage service.

Note: Section 291A deals with the disclosure or use of information or documents for the purposes of the supply, or proposed supply, by a person of a location dependent carriage service.

In this section:

location dependent carriage service means a carriage service that depends for its provision on the availability of information about the addresses of end users of the carriage service.

303 Secondary offence—contravening this Division

A person who contravenes this Division commits an offence punishable on conviction by imprisonment for a term not exceeding 2 years.

Note: See also sections 4AA and 4B of the Crimes Act 1914.

303A Generality of Division not limited

Nothing in this Division limits the generality of anything else in it.

303B Acts taken to be authorised by this Act for purposes of Privacy Act

(1) If a disclosure or use of information by a person would be prohibited by Privacy Act 1988, and of a registered APP code (as defined in that Act), to be authorised by this Act.Division 2 apart from a provision of Division 3, the disclosure or use is taken for the purposes of the

(2) If a disclosure or use of information by a person would be prohibited by a provision of Privacy Act 1988, and of a registered APP code (as defined in that Act), to be authorised by this Act.Division 4 apart from the fact that the disclosure or use is covered by an exception in that provision to the prohibition, the disclosure or use is taken for the purposes of the

303C Prosecution of an offence against this Part does not affect proceedings under the Privacy Act 1988

(1) The prosecution of an offence against Privacy Act 1988 or a registered APP code (as defined in that Act) in relation to the disclosure or use.Division 2 or 4 of this Part for disclosure or use of information or a document does not prevent civil proceedings or administrative action from being taken under the

This section applies regardless of the outcome of the prosecution.

(3) This section does not affect the operation of Privacy Act 1988.section 49 of the

304 Associate

A reference in this Division to an associate of a carrier, carriage service provider or number-database operator is a reference to:

an employee of the carrier, provider or operator; or

a person (other than an employee) who performs services for or on behalf of the carrier, provider or operator; or

an employee of a person covered by paragraph (b).

305 Authorisations under the Telecommunications (Interception and Access) Act 1979

This section applies if:

a carrier, carriage service provider or number-database operator; or

an associate of a carrier, carriage service provider or number-database operator;

is notified of an authorisation made under Telecommunications (Interception and Access) Act 1979.Division 4 or 4A of Part 4-1 of the

Note: Section 184 of the Telecommunications (Interception and Access) Act 1979 deals with notification of such authorisations.

The carrier, carriage service provider or number-database operator must retain the notification for 3 years.

306 Record of disclosures—general

This section applies if:

an eligible person or an eligible number-database person discloses information or a document; and

the disclosure is authorised by:

a provision of Division 3 (other than section 279, 285, 285A, 290, 291 or 291A); or

(ii) Telecommunications (Interception and Access) Act 1979.section 177, 178 or 179, subsection 180(3) or section 180A of the

If the person is a carrier, carriage service provider or number-database operator, the carrier, provider or operator must:

make a record of the disclosure as soon as practicable after the disclosure and, in any event, within 5 days after the disclosure; and

retain that record for 3 years.

If the person is an associate of a carrier, carriage service provider or number-database operator, the person must:

make a record of the disclosure as soon as practicable after the disclosure and, in any event, within 5 days after the disclosure; and

give a copy of that record to the carrier, provider or operator within 5 days after the making of the record.

If a copy of a record is given to a carrier, carriage service provider or number-database operator under subsection (3), the carrier, provider or operator must retain that copy for 3 years.

A record made under subsection (2) or (3) must set out:

the name of the person who disclosed the information or document concerned; and

the date of the disclosure; and

a statement of the grounds for the disclosure; and

if the disclosure is required or authorised under a warrant and paragraph 280(1)(a) applies to the disclosure:

the provision of the law under which the warrant was issued; and

the name of the person who issued the warrant; and

the date of the issuing of the warrant; and

if the disclosure is required or authorised by or under law and paragraph 280(1)(b) applies to the disclosure—the provision of the law (besides paragraph 280(1)(b)) which required or authorised the disclosure; and

(d) if the disclosure is made on the grounds of an authorisation under the Telecommunications (Interception and Access) Act 1979:

the name of the person who made the authorisation; and

the date of the making of the authorisation; and

if paragraph (d) does not apply and the disclosure was at the request of another body or person:

the name of the body or person; and

the date of the request; and

if the information or document relates to the contents or substance of a communication that was carried by means of a carriage service—particulars of that carriage service; and

if the information or document is or includes information of a kind specified in one or more items of the table specified in subsection (5A):

the numbers of those items; and

a description of the content of those items to the extent that the content relates to the information or document.

For the purposes of paragraph (5)(g), the specified table is:

if a determination under subsection (5B) is in force—the table set out in that determination; or

(b) otherwise—the table in subsection 187AA(1) of the Telecommunications (Interception and Access) Act 1979.

For the purposes of paragraph (5A)(a), the Minister may, by legislative instrument, make a determination setting out a table that specifies, in numbered items, kinds of information.

A record, or a copy of a record, may be made, given or retained under this section:

in written form; or

in electronic form.

A person who contravenes this section commits an offence punishable on conviction by a fine not exceeding 300 penalty units.

Note: See also sections 4AA and 4B of the Crimes Act 1914.

306A Record of disclosures—prospective authorisation under the Telecommunications (Interception and Access) Act 1979

This section applies if:

an eligible person or an eligible number-database person discloses information or a document; and

(b) the disclosure or disclosures are authorised by an authorisation under Telecommunications (Interception and Access) Act 1979 (in so far as the authorisation is of a kind referred to in subsection 180(2) or 180B(2) of that Act).section 180 or 180B of the

If the person is a carrier, carriage service provider or number-database operator, the carrier, provider or operator must:

make a record of the disclosure or disclosures as soon as practicable after the day on which the authorisation ceases to be in force and, in any event, within 5 days after that day; and

retain that record for 3 years.

If the person is an associate of a carrier, carriage service provider or number-database operator, the person must:

make a record of the disclosure or disclosures as soon as practicable after the day on which the authorisation ceases to be in force and, in any event, within 5 days after that day; and

give a copy of that record to the carrier, provider or operator within 5 days after the making of the record.

If a copy of a record is given to a carrier, carriage service provider or number-database operator under subsection (3), the carrier, provider or operator must retain that copy for 3 years.

A record made under subsection (2) or (3) must set out:

the name of the person or persons who made the disclosure or disclosures; and

one of the following:

if only 1 disclosure is made because of the authorisation—the date of the disclosure;

if more than 1 disclosure is made because of the authorisation—the date of the first disclosure and the date of the last disclosure; and

a statement of the grounds for the disclosure or disclosures; and

the name of the person who made the authorisation and the date of the making of the authorisation.

A record, or a copy of a record, may be made, given or retained under this section:

in written form; or

in electronic form.

A person who contravenes this section commits an offence punishable on conviction by a fine not exceeding 300 penalty units.

Note: See also sections 4AA and 4B of the Crimes Act 1914.

307 Incorrect records

A person must not, in purported compliance with section 306 or 306A, make a record of any matter or thing in such a way that it does not correctly record the matter or thing.

A person who contravenes subsection (1) commits an offence punishable on conviction by imprisonment for a term not exceeding 6 months.

Note: See also sections 4AA and 4B of the Crimes Act 1914.

308 Annual reports to the ACMA by carriers, carriage service providers or number-database operators

If:

information or a document is disclosed during a financial year; and

either:

under section 306 or 306A, a carrier, carriage service provider or number-database operator makes a record of the disclosure; or

under section 306 or 306A, a carrier, carriage service provider or number-database operator is given a copy of a record of the disclosure;

the carrier, carriage service provider or number-database operator must, within 2 months after the end of the financial year, give the ACMA a written report relating to the disclosure.

The report must set out such information about the disclosure as the ACMA requires.

309 Monitoring by the Information Commissioner

(1) In addition to the functions conferred on the Information Commissioner by the Privacy Act 1988, the Information Commissioner has the function of monitoring compliance with this Division.

(1A) The function conferred on the Information Commissioner by subsection (1) is a privacy function for the purposes of the Australian Information Commissioner Act 2010.

In particular, the function conferred on the Information Commissioner by subsection (1) includes monitoring:

whether a record made under section 306 or 306A sets out a statement of the grounds for a disclosure; and

(b) whether that statement is covered by Telecommunications (Interception and Access) Act 1979 (which deal with exceptions).Division 3 of this Part or Chapter 4 of the

A carrier, carriage service provider or number-database operator must give the Information Commissioner such access to the records of the carrier, provider or operator as the Information Commissioner reasonably requires for the purposes of the performance of the function conferred by subsection (1).

The Information Commissioner may give the Minister a written report about any matters arising out of the performance of the function conferred by subsection (1).

310 Instrument-making powers not limited

This Part does not, by implication, limit a power conferred by or under this Act to make an instrument.

This Part does not, by implication, limit the matters that may be dealt with by codes or standards referred to in Part 6.

(3) This section does not, by implication, limit subsection 33(3B) of the Acts Interpretation Act 1901.

Telecommunications Act 1997

No. 47, 1997

Compilation No.   117

Compilation date: 4 June 2026

Includes amendments: Act No. 75, 2025

This compilation is in 3 volumes

Volume 1: sections 1-310

Volume 2: sections 311 - 594

Volume 3: Schedules

Endnotes

Each volume has its own contents

About this compilation

This compilation

This is a compilation of the Telecommunications Act 1997 that shows the text of the law as amended and in force on 4 June 2026 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au).

Application, saving and transitional provisions

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Presentational changes

The Legislation Act 2003 provides for First Parliamentary Counsel to make presentational changes to a compilation. Presentational changes are applied to give a more consistent look and feel to legislation published on the Register, and enable the user to more easily navigate those documents.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. Any modifications affecting the law are accessible on the Register.

Self - repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

Contents

Part 14—National interest matters 1

Division 1—Simplified outline 1

311 Simplified outline 1

Division 2—Obligations of ACMA and carriers and carriage service providers 2

312 ACMA’s obligations 2

313 Obligations of carriers and carriage service providers 2

314 Terms and conditions on which help is to be given 7

Division 4—Carriage service provider may suspend supply of carriage service in an emergency 9

315 Suspension of supply of carriage service in an emergency 9

Division 9—Generality of Part not limited 11

316 Generality of Part not limited 11

Part 15—Industry assistance 12

Division 1—Introduction 12

317A Simplified outline of this Part 12

317B Definitions 14

317C Designated communications provider etc. 21

317D Electronic service 24

317E Listed acts or things 25

317F Extension to external Territories 27

Division 2—Voluntary technical assistance 28

317G Voluntary technical assistance provided to ASIO, the Australian Secret Intelligence Service, the Australian Signals Directorate or an interception agency 28

317H Form of technical assistance request 31

317HAA Provision of advice to designated communications providers 32

317HAB Notification obligations 33

317HA Duration of technical assistance request 34

317J Specified period etc. 35

317JAA Decision-making criteria 35

317JA Variation of technical assistance requests 36

317JB Revocation of technical assistance requests 40

317JC Whether a technical assistance request is reasonable and proportionate 43

317K Contract etc. 44

Division 3—Technical assistance notices 45

317L Technical assistance notices 45

317LA Approval of technical assistance notices given by the chief officer of an interception agency of a State or Territory 46

317M Form of technical assistance notice 46

317MAA Provision of advice to designated communications providers 47

317MAB Notification obligations 49

317MA Duration of technical assistance notice 49

317N Compliance period etc. 51

317P Decision-making criteria 51

317PA Consultation about a proposal to give a technical assistance notice 51

317Q Variation of technical assistance notices 52

317R Revocation of technical assistance notices 55

317RA Whether requirements imposed by a technical assistance notice are reasonable and proportionate 56

Division 4—Technical capability notices 58

317S Attorney-General may determine procedures and arrangements relating to requests for technical capability notices 58

317T Technical capability notices 58

317TAAA Approval of technical capability notice 61

317TAA Provision of advice to designated communications providers 62

317TAB Notification obligations 62

317TA Duration of technical capability notice 63

317U Compliance period etc. 65

317V Decision-making criteria 65

317W Consultation about a proposal to give a technical capability notice 66

317WA Assessment and report 68

317X Variation of technical capability notices 72

317XA Approval of variation of technical capability notice 74

317Y Consultation about a proposal to vary a technical capability notice 76

317YA Assessment and report 77

317Z Revocation of technical capability notices 81

317ZAA Whether requirements imposed by a technical capability notice are reasonable and proportionate 82

Division 5—Compliance and enforcement 84

317ZA Compliance with notices—carriers and carriage service providers 84

317ZB Compliance with notices—designated communications provider (other than a carrier or carriage service provider) 84

317ZC Civil penalty provision 85

317ZD Enforceable undertakings 86

317ZE Injunctions 87

Division 6—Unauthorised disclosure of information etc. 88

317ZF Unauthorised disclosure of information 88

317ZFA Powers of a court 99

Division 7—Limitations 100

317ZG Designated communications provider must not be requested or required to implement or build a systemic weakness or systemic vulnerability etc. 100

317ZGA Limits on technical capability notices 101

317ZH General limits on technical assistance requests, technical assistance notices and technical capability notices 102

Division 8—General provisions 107

317ZJ Immunity 107

317ZK Terms and conditions on which help is to be given etc. 107

317ZKA Notification obligations 114

317ZL Service of notices etc. 116

317ZM Interception agency—chief officer and officer 118

317ZN Delegation by Director-General of Security 121

317ZP Delegation by Director-General of the Australian Secret Intelligence Service 122

317ZQ Delegation by Director-General of the Australian Signals Directorate 122

317ZR Delegation by the chief officer of an interception agency 123

317ZRA Relationship of this Part to parliamentary privileges and immunities 126

317ZRB Inspection of records 126

317ZS Annual reports 127

317ZT Alternative constitutional basis 128

Part 16—Defence requirements and disaster plans 129

Division 1—Introduction 129

333 Simplified outline 129

334 Defence authority 129

Division 2—Supply of carriage services 130

335 Requirement to supply carriage services for defence purposes or for the management of natural disasters 130

Division 3—Defence planning 132

336 Definitions 132

337 Preparation of draft agreement 132

338 ACMA’s certification of draft agreement 133

339 Requirement to enter into certified agreement 134

340 Compliance with agreement 134

341 Withdrawal of certification of agreement 134

342 Duration of agreement 135

343 Variation of agreement 135

Division 4—Disaster plans 137

344 Designated disaster plans 137

345 Carrier licence conditions about designated disaster plans 137

346 Service provider determinations about designated disaster plans 137

346A Carrier and carriage service provider immunity 137

Division 5—Delegation 139

347 Delegation 139

Part 17—Pre-selection in favour of carriage service providers 140

348 Simplified outline 140

349 Requirement to provide pre-selection 140

349A Local access line 146

350 When pre-selection is provided in favour of a carriage service provider 146

350A Declared carriage services 148

351 Pre-selection to be provided 148

352 Exemptions from requirement to provide pre-selection 149

353 Use of over-ride dial codes 150

Part 18—Calling line identification 152

354 Simplified outline 152

355 Calling line identification 152

356 Exemptions from calling line identification requirement 152

Part 19—Statutory infrastructure providers 154

Division 1—Introduction 154

360 Simplified outline of this Part 154

360A Definitions 154

360AA Qualifying fixed wireless carriage service 157

360AB Associate 158

360AC Control 159

360AD Control of a company 159

360AE When a person is in a position to exercise control of a facility 160

Division 2—Service areas and statutory infrastructure providers 162

Subdivision AA—Introduction 162

360B Simplified outline of this Division 162

360C Service area 163

Subdivision B—Service areas and statutory infrastructure providers 164

360F General service area 164

360G Statutory infrastructure provider for the general service area 164

360H Nominated service area—declaration made by a carrier 164

360HA Nominated service area—anticipatory notice to be given to the ACMA by a carrier 170

360HB Nominated service area—declaration made by a carriage service provider 174

360HC Nominated service area—anticipatory notice to be given to the ACMA by a carriage service provider 179

360J Nominated service area—carrier licence conditions declarations 184

360K Statutory infrastructure provider for a nominated service area 185

360KA Anticipated service area 187

360KB Statutory infrastructure provider for an anticipated service area 188

360L Designated service area and statutory infrastructure provider 189

Subdivision D—Format of description of areas 190

360LA Format of description of areas 190

Subdivision E—Exempt projects 192

360M Exempt real estate development projects 192

360N Exempt building redevelopment projects 193

360NA Proximity to a project area 195

Division 3—Obligations of statutory infrastructure provider 196

360P Obligation of statutory infrastructure provider to connect premises 196

360Q Obligation of statutory infrastructure provider to supply eligible services—premises 200

360R Notification obligations of statutory infrastructure provider 205

360RA Rules may impose additional notification obligations on a statutory infrastructure provider 206

360RB Statutory infrastructure provider must have a website 207

360S Targets for NBN Co 207

Division 3A—Notification obligations of carriage service provider 209

360SA Notification obligations of carriage service provider 209

360SB Rules may impose additional notification obligations on a carriage service provider 209

Division 4—Standards, benchmarks and rules 211

360U Standards and benchmarks 211

360V Rules 215

Division 4A—Compensation 217

Subdivision A—Introduction 217

360VA Simplified outline 217

360VB Definitions 217

360VC Meaning of certain expressions 218

Subdivision B—Damages for breach of standards or rules by statutory infrastructure providers 218

360VD Damages for breach of a designated compensable standard or designated compensable rule 218

360VE Time for payment of damages 220

360VF Evidentiary certificate issued by the Telecommunications Industry Ombudsman 221

Subdivision C—Miscellaneous 223

360VG Savings of other laws and remedies 223

360VH Compensation rules 223

Division 5—Offers to be made available 224

360W Offer to be made available etc.—connection of premises 224

360X Offer to be made available—supply of eligible services 224

Division 5A—Information-gathering powers 226

360XAA Secretary may obtain information and documents from carriers and carriage service providers 226

360XAB Copying documents—compensation 227

360XAC Copies of documents 227

360XAD Secretary may retain documents 227

360XAE Law relating to legal professional privilege not affected 228

360XAF Disclosure of information to the ACMA 228

360XAG Delegation by the Secretary 228

Division 6—Miscellaneous 230

360XAH Compliance audits 230

360XAI Additional functions of the ACMA 230

360XA Periodic compliance reports 231

360Y Building redevelopment projects etc. 232

360Z Register of statutory infrastructure providers and anticipatory notices 233

360ZA Delegation 234

Part 20—International aspects of activities of the telecommunications industry 237

Division 1—Simplified outline 237

364 Simplified outline 237

Division 2—Compliance with international agreements 238

365 INTELSAT and Inmarsat—directions to Signatories 238

366 Compliance with conventions 238

Division 3—Rules of conduct about dealings with international telecommunications operators 240

367 Rules of conduct about dealings with international telecommunications operators 240

368 ACCC to administer Rules of Conduct 242

369 Rules of Conduct to bind carriers and carriage service providers 243

370 Unenforceability of agreements 243

371 Investigations by the ACCC 243

372 Reviews of the operation of this Division 244

Part 20A—Deployment of optical fibre etc. 245

Division 1—Simplified outline 245

372A Simplified outline 245

Division 2—Deployment of optical fibre lines 247

372B Deployment of optical fibre lines to building lots 247

372C Deployment of optical fibre lines to building units 249

372D Exemptions—Ministerial instrument 251

Division 3—Installation of fibre-ready facilities 252

Subdivision A—Installation obligations 252

372E Installation of fibre-ready facilities—building lots 252

372F Installation of fibre-ready facilities—building units 253

Subdivision B—Sale of building lots and building units 255

372G Sale of building lots and building units—subdivisions 255

372H Sale of building units—other projects 258

372J Acquisition of property 260

Subdivision C—Remedial notices 260

372JA Remedial notices 260

372JB Contents of remedial notices 261

372JC Compliance with remedial notice 262

372JD Extension of time for compliance with remedial notices 262

372JE Variation of remedial notices 263

372JF Revocation of remedial notices 263

372JG Formal irregularities or defects in remedial notices 264

372JH Designated civil penalty provision 264

Subdivision D—Exemptions 264

372K Exemptions—Ministerial instrument 264

Division 4—Third party access regime 267

372L Third party access regime 267

372M Terms and conditions of access 269

372N Exemptions—Ministerial instrument 270

372NA Code relating to access 270

Division 5—Exemption of certain projects 272

372P Exemption of certain projects 272

Division 6—Miscellaneous 273

372Q Real estate development projects etc. 273

372R Subdivision of an area of land 275

372S Building units 275

372T Sale of building lots 275

372U Sale of building units 276

372V Fixed-line facilities 276

372W Fibre-ready facility 277

372X Installation of a facility 277

372Y Installation of a fibre-ready facility in proximity to a building lot or building unit 278

372Z Sewerage services, electricity or water supplied to a building lot or building unit 278

372ZA Supply to the public 280

372ZB Concurrent operation of State and Territory laws 280

372ZD NBN Co 280

Part 21—Technical regulation 282

Division 1—Simplified outline 282

373 Simplified outline 282

Division 2—Interpretative provisions 284

374 Part applies to networks or facilities in Australia operated by carriers or carriage service providers 284

375 Manager of network or facility 284

Division 3—Technical standards about customer equipment and customer cabling 285

376 ACMA’s power to make technical standards 285

376A ACMA must make technical standards if directed by the Minister 287

377 Adoption of voluntary standards 287

378 Procedures for making technical standards 287

379 Making technical standards in cases of urgency 288

Division 4—Disability standards 290

380 Disability standards 290

381 Adoption of voluntary standards 290

382 Procedures for making disability standards 291

383 Effect of compliance with disability standards 292

Division 5—Technical standards about the interconnection of facilities 293

384 ACMA’s power to make technical standards 293

385 Adoption of voluntary standards 294

386 Procedures for making technical standards 294

387 Procedures for making technical standards 295

388 Provision of access 296

389 Promotion of the long-term interests of end-users of carriage services and of services supplied by means of carriage services 296

Division 5A—Technical standards relating to Layer 2 bitstream services 297

389A ACMA’s power to determine technical standards 297

389B Compliance with technical standards 297

Division 6—Connection permits and connection rules 299

Subdivision A—Connection permits authorising the connection of non-standard customer equipment and non-standard cabling 299

390 Application for connection permit 299

391 Form of application 299

392 Application to be accompanied by charge 300

393 Further information 300

394 Issue of connection permits 300

395 Connection permit has effect subject to this Act 301

396 Nominees of holder 301

397 Duration of connection permits 301

398 Conditions of connection permits 302

399 Offence of contravening condition 302

400 Formal warnings—breach of condition 303

401 Surrender of connection permit 303

402 Cancellation of connection permit 303

403 Register of connection permits 304

Subdivision B—Connection rules 305

404 Connection rules 305

405 Procedures for making connection rules 305

Division 7—Labelling of customer equipment and customer cabling 307

406 Application of labels 307

406A Application of Division to agent of manufacturer or importer 307

407 Labelling requirements 307

408 Requirements to apply labels—ancillary matters 308

409 Recognised testing authorities and competent bodies 310

410 Certification bodies 310

411 Connection of customer equipment or customer cabling—breach of section 376 standards 310

412 Connection of labelled customer equipment or customer cabling not to be refused 312

413 Supply of unlabelled customer equipment or unlabelled customer cabling 314

414 Applying labels before satisfying requirements under subsection 408(5) 314

415 Failure to retain records etc. 315

416 Application of labels containing false statements about compliance with standards 316

Division 8—Protected symbols 317

417 Protected symbols 317

Division 9—Cabling providers 321

418 Cabling work 321

419 Types of cabling work 321

420 Prohibition of unauthorised cabling work 321

421 Cabling provider rules 322

422 Procedures for making cabling provider rules 323

423 Application for cabling licence 324

424 Form of application 324

425 Application to be accompanied by charge 324

426 Further information 324

427 Grant of cabling licence 324

428 Time limit on licence decision 325

429 Notification of refusal of application 326

430 Cabling licence has effect subject to this Act 326

431 Duration of cabling licence 326

432 Conditions of cabling licence 326

433 Procedures for changing licence conditions 327

434 Offence in relation to contravening condition 327

435 Formal warnings—breach of condition 328

436 Surrender of cabling licence 328

437 Suspension of cabling licence 329

438 Cancellation of cabling licence 329

439 ACMA may limit application of Division in relation to customer cabling 330

440 Ministerial directions 330

441 Delegation 331

442 Register of cabling licences 332

Division 10—Remedies for unauthorised connections to telecommunications networks etc. 333

443 Civil action for unauthorised connections to telecommunications networks etc. 333

444 Remedy for contravention of labelling requirements 334

445 Remedies for connection of unlabelled customer equipment or unlabelled customer cabling 335

446 Disconnection of dangerous customer equipment or customer cabling 337

447 Disconnection of customer equipment or customer cabling—protection of the integrity of networks and facilities 339

448 Civil action for dangerous connections to telecommunications networks etc. 340

449 Other remedies not affected 341

Division 11—Prohibited customer equipment and prohibited customer cabling 342

450 Declaration of prohibited customer equipment or prohibited customer cabling 342

452 Operation of prohibited customer equipment or customer cabling 342

Division 12—Pre-commencement labels 344

453 Pre-commencement labels 344

Division 13—Penalties payable instead of prosecution 345

453A Penalties payable instead of prosecution 345

Part 22—Numbering of carriage services and regulation of electronic addressing 346

Division 1—Simplified outline 346

454 Simplified outline 346

Division 2—Numbering of carriage services 347

Subdivision AA—Management by numbering scheme manager 347

454A Minister may determine numbering scheme manager 347

454B No property rights in numbers 347

454C Numbering scheme principles 347

454D Revocation of determination 349

454E Directions to numbering scheme manager 349

454F Numbering scheme manager providing information to the ACMA 350

454G Directions to comply with rules 351

454H Numbering scheme documents are not legislative instruments 351

Subdivision A—Management by the ACMA 351

455A Application 351

455 Numbering plan 352

456 Numbering plan—supply to the public 353

457 Numbering plan—allocation otherwise than in accordance with an allocation system 354

458 Numbering plan—rules about portability of allocated numbers 354

459 ACMA to administer numbering plan 355

459A Delegation 355

460 Consultation about numbering plan 356

461 Consultation with ACCC 357

461A Making numbering plan in cases of urgency 357

462 Compliance with the numbering plan 358

Subdivision B—Allocation system for numbers 359

463A Numbering scheme manager 359

463 Allocation system for numbers 360

464 Consultation about an allocation system 361

Subdivision C—Miscellaneous 361

465 Register of allocated numbers 361

466 Emergency service numbers 363

468 Collection of numbering charges 364

469 Collection of charges on behalf of the Commonwealth 366

470 Cancellation of certain exemptions from charge 366

471 Commonwealth not liable to charge 366

472 Integrated public number database 367

473 Letters and symbols taken to be numbers 368

Division 3—Regulation of electronic addressing 369

474 Declared manager of electronic addressing 369

475 ACMA may give directions to declared manager of electronic addressing 369

476 ACCC may give directions to declared manager of electronic addressing 370

477 ACCC’s directions to prevail over the ACMA’s directions 372

Part 23—Standard agreements for the supply of carriage services 373

478 Simplified outline 373

479 Standard terms and conditions apply unless excluded 373

482 Concurrent operation of State/Territory laws 374

483 Competition and Consumer Act not affected by this Part 375

Part 24—Carriers’ powers and immunities 376

484 Schedule 3 376

Part 24A—Submarine cables 377

484A Schedule 3A 377

Part 24B—SMS Sender ID Register 378

484B Simplified outline of this Part 378

484C Definition of sender identification 378

484D Definition of spoofing sender identification 379

484E SMS Sender ID Register 379

484F Application for approval under this section 381

484G Application for registration of sender identifications 383

484H Removal of entries from the SMS Sender ID Register 385

484J Automation of administrative action 386

484K Oversight and safeguards for automation of administrative action 387

484L Determinations relating to SMS Sender ID Register 388

484M Application of the Privacy Act 1988 to a contracted service provider 390

Part 25—Public inquiries 391

Division 1—Simplified outline 391

485 Simplified outline 391

Division 2—Inquiries by the ACMA 392

486 When inquiry must be held 392

487 When inquiry may be held 392

488 Informing the public about an inquiry 393

489 Discussion paper 393

490 Written submissions and protection from civil actions 394

491 Hearings 394

492 Hearing to be in public except in exceptional cases 395

493 Confidential material not to be published 396

494 Direction about private hearings 397

495 Reports on inquiries 398

Division 3—Inquiries by the ACCC 399

496 When inquiry must be held 399

497 When inquiry may be held 399

498 Informing the public about an inquiry 399

499 Discussion paper 400

500 Written submissions and protection from civil actions 400

501 Hearings 401

502 Hearing to be in public except in exceptional cases 402

503 Confidential material not to be published 402

504 Direction about private hearings 403

505 Reports on inquiries 404

505A ACCC may use material presented to a previous public inquiry 405

505B ACCC may adopt a finding from a previous public inquiry 406

506 ACCC’s other powers not limited 406

Part 26—Investigations 407

507 Simplified outline 407

508 Matters to which this Part applies 407

509 Complaints to the ACMA 408

510 Investigations by the ACMA 410

511 Preliminary inquiries 411

512 Conduct of investigations 411

513 Complainant and certain other persons to be informed of various matters 412

514 Reference of matters to Ombudsman or other responsible person 413

515 Reference of matters to the ACCC 414

515A Reference of matters to Information Commissioner 415

516 Reports on investigations 416

517 Publication of reports 417

518 Person adversely affected by report to be given opportunity to comment 418

519 Protection from civil actions 418

Part 27—The ACMA’s information-gathering powers 420

Division 1—Simplified outline 420

520 Simplified outline 420

Division 2—Information-gathering powers 421

521 The ACMA may obtain information and documents from carriers and service providers 421

522 The ACMA may obtain information and documents from other persons 422

523 Copying documents—reasonable compensation 424

524 Self-incrimination 424

525 Giving false or misleading information or evidence 425

527 Copies of documents 425

528 ACMA may retain documents 425

Division 3—Record-keeping rules 427

529 ACMA may make record-keeping rules 427

530 Compliance with record-keeping rules 428

531 Incorrect records 428

Part 28—Enforcement 429

Division 1—Introduction 429

532 Simplified outline 429

532A References to the Spam Act 2003 430

Division 2—Inspectors and identity cards 431

533 Inspectors 431

534 Identity cards 432

Division 3—Search warrants relating to breaches of the Spam Act 2003 or Part 21 of this Act 433

535 Magistrate may issue warrant 433

536 Reasonable grounds for issuing warrant etc. 434

537 Contents of warrant 434

538 Warrants may be issued by telephone etc. 434

539 Provisions relating to issue of warrant by telephone etc. 434

540 Proceedings involving warrant issued by telephone etc. 436

Division 4—Searches and seizures relating to breaches of the Spam Act 2003 or Part 21 of this Act 437

541 When is a thing connected with an offence? 437

541A When is a thing connected with a breach of the Spam Act 2003? 437

542 Searches and seizures 437

543 Production of identity card etc. 438

544 Evidence of commission of other offences against Spam Act 2003 439Part 21 of this Act or other breaches of the

545 Emergency entry, search and seizure 440

546 Retention of things seized 441

Division 5—Searches to monitor compliance with Part 21 442

547 Searches to monitor compliance with Part 21 442

Division 5A—Searches to monitor compliance with the Spam Act 2003 443

547A Powers available to inspectors for monitoring compliance 443

547B Monitoring powers 443

547C Production of identity card etc. 445

547D Monitoring warrants 445

547E Details of warrant to be given to occupier etc. 447

547F Announcement before entry 447

547G Compensation for damage to equipment 447

547H Occupier entitled to be present during search 448

Division 5B—Access to computer data that is relevant to the Spam Act 2003 450

547J Access to computer data that is relevant to the Spam Act 2003 450

Division 6—Other powers of inspectors 452

548 General powers of inspectors 452

549 Power to require information etc. 453

550 Retention of documents 455

Division 7—Forfeiture 456

551 Court may order forfeiture 456

552 Forfeited goods may be sold 456

Division 8—Future offences 457

553 Offences that are going to be committed 457

Part 29—Review of decisions 458

554 Simplified outline 458

555 Decisions that may be subject to reconsideration by the ACMA 458

556 Deadlines for reaching certain decisions 458

557 Statements to accompany notification of decisions 459

558 Applications for reconsideration of decisions 459

559 Reconsideration by the ACMA 460

560 Deadlines for reconsiderations 460

561 Statements to accompany notification of decisions on reconsideration 460

562 Review by the Administrative Review Tribunal 461

Part 30—Injunctions 462

563 Simplified outline 462

564 Injunctions 462

565 Interim injunctions 466

566 Discharge etc. of injunctions 466

567 Certain limits on granting injunctions not to apply 466

568 Other powers of the court unaffected 467

Part 31—Civil penalties 468

569 Simplified outline 468

570 Pecuniary penalties for contravention of civil penalty provisions 468

571 Civil action for recovery of pecuniary penalties 470

572 Criminal proceedings not to be brought for contravention of civil penalty provisions 473

Part 31A—Enforceable undertakings 474

572A Simplified outline 474

572B Acceptance of undertakings 474

572C Enforcement of undertakings 475

Part 31B—Infringement notices for contraventions of civil penalty provisions 476

572D Simplified outline 476

572E When an infringement notice can be given 476

572F Matters to be included in an infringement notice 480

572G Amount of penalty 482

572H Withdrawal of an infringement notice 482

572J What happens if the penalty is paid 483

572K Effect of this Part on civil proceedings 483

572L Appointment of authorised infringement notice officer 484

572M Guidelines relating to infringement notices 485

572N Regulations 486

Part 32—Vicarious liability 487

573 Simplified outline 487

574 Proceedings under this Act 487

574A Definition 487

575 Liability of corporations 488

576 Liability of persons other than corporations 489

Part 33—Voluntary undertakings originally given by Telstra 491

Division 1—Introduction 491

577 Simplified outline 491

Division 2—Structural separation 493

Subdivision A—Undertaking about structural separation 493

577A Acceptance of undertaking about structural separation 493

577AA Acceptance of undertaking about structural separation may be subject to the occurrence of events 498

577AB When undertaking about structural separation comes into force 500

577AC Publication requirements for undertaking about structural separation 501

577ACA Repointing of undertaking about structural undertaking to certain designated Telstra successor companies 502

577ACB Directions—facilitation of undertaking about structural separation 503

577AD Compliance with undertaking about structural separation 504

577B Variation of undertaking about structural separation 505

577BA Authorised conduct—subsection 51(1) of the Competition and Consumer Act 2010 506

577BAA Directions—facilitation of contract or agreement 515

Subdivision B—Migration plan 518

577BB Migration plan principles 518

577BC Migration plan 519

577BD Approval of draft migration plan by the ACCC—plan given after undertaking about structural separation comes into force 521

577BDA Approval of draft migration plan by the ACCC—plan given before undertaking about structural separation comes into force 522

577BDB Approval of draft migration plan by the ACCC—plan given in compliance with a direction 524

577BDC Approval of draft migration plan by the ACCC—plan given in response to a request 526

577BE Effect of approval of draft migration plan 527

577BEA Repointing of final migration plan to certain designated Telstra successor companies 528

577BEB Directions—facilitation of final migration plan 529

577BF Variation of final migration plan 531

Division 3—Hybrid fibre-coaxial networks 533

577C Acceptance of undertaking about hybrid fibre-coaxial networks 533

577CA Acceptance of undertaking about hybrid fibre-coaxial networks may be subject to the occurrence of events 534

577CB When undertaking about hybrid fibre-coaxial networks comes into force 536

577CC Publication requirements for undertaking about hybrid fibre-coaxial networks 537

577CD Compliance with undertaking about hybrid fibre-coaxial networks 538

577D Variation of undertaking about hybrid fibre-coaxial networks 538

Division 4—Subscription television broadcasting licences 540

577E Acceptance of undertaking about subscription television broadcasting licences 540

577EA Acceptance of undertaking about subscription television broadcasting licences may be subject to the occurrence of events 541

577EB When undertaking about subscription television broadcasting licences comes into force 543

577EC Publication requirements for undertaking about subscription television broadcasting licences 544

577ED Compliance with undertaking about subscription television broadcasting licences 545

577F Variation of undertaking about subscription television broadcasting licences 545

Division 5—Enforcement of undertakings 547

577FA Enforcement of undertakings in force under section 577A 547

577G Enforcement of undertakings in force under section 577C or 577E 548

Division 6—Limits on allocation of spectrum licences etc. 550

577GA Excluded spectrum regime 550

577H Designated part of the spectrum 550

577J Limits on allocation of certain spectrum licences to Telstra 550

577K Limits on use of certain spectrum licences by Telstra 553

577L Limits on assignment of certain spectrum licences to Telstra etc. 555

Division 7—Other provisions 557

577M Associate 557

577N Control 559

577P Control of a company 559

577Q When Telstra or a designated Telstra successor company is in a position to exercise control of a network 559

Part 34—Special provisions relating to conventions and directions 563

579 Simplified outline 563

580 ACMA must have regard to conventions 563

581 Power to give directions to carriers and service providers 564

Part 34A—Telstra successor companies and designated Telstra successor companies 566

Division 1—Introduction 566

581A Simplified outline of this Part 566

581B Object of this Part 567

581C Company 567

581D Telecommunications law 567

581E Prescribed telecommunications law 567

Division 2—Telstra successor company and designated Telstra successor company 569

581F Telstra successor company 569

581G Designated Telstra successor company 571

581H Declarations—criteria 572

581J Demerged Telstra company 573

581K ACMA to maintain register of Telstra successor companies and designated Telstra successor companies etc. 574

Division 3—Transfer of business 576

581L Telecommunications business 576

581M Notification of transfer of telecommunications business 576

581MA Notification of proposed transfer of prescribed business 578

Division 4—Transfer of assets 579

581N Telecommunications asset 579

581P Notification of transfer of telecommunications asset 579

581PA Notification of proposed transfer of prescribed asset 580

581Q Transfer of an asset 581

Division 5—Consultation relating to declarations 583

581R Consultation relating to declarations 583

Division 6—Directions 584

581TA Facilitation of compliance with a direction given by the ACMA 584

581TB Facilitation of obligations imposed on a named designated Telstra successor company 586

Division 7—Transitional 588

581U Transitional—references in legislation to Telstra Infraco Limited 588

Part 34B—Access to supplementary facilities and telecommunications transmission towers 589

Division 1—Introduction 589

581V Simplified outline of this Part 589

581W Carrier company group 589

581X Eligible company 590

581XA Deemed bodies corporate 590

Division 2—Access to supplementary facilities 592

581Y Access to supplementary facilities 592

581Z Terms and conditions of access 594

581ZA Ministerial pricing determinations 596

Division 3—Access to telecommunications transmission towers 597

581ZB Definitions 597

581ZBA Telecommunications transmission tower 597

581ZC Extended meaning of access 598

581ZD Access to telecommunications transmission towers 598

581ZE Terms and conditions of access 600

581ZF Code relating to access 602

581ZG This Division does not limit Division 2 602

Division 4—Review of corporate control percentage 603

581ZH Review of corporate control percentage 603

Part 35—Miscellaneous 604

582 Simplified outline 604

583 Penalties for certain continuing offences 605

584 Procedure relating to certain continuing offences 606

585 Treatment of partnerships 606

586 Giving of documents to partnerships 607

587 Nomination of address for service of documents 607

588 Service of summons or process on foreign corporations—criminal proceedings 608

589 Instruments under this Act may provide for matters by reference to other instruments 609

590 Arbitration—acquisition of property 610

591 Compensation—constitutional safety net 611

592 Act not to affect performance of State or Territory functions 612

593 Funding of consumer representation, and of research, in relation to telecommunications 612

593A Removal of Optus Networks’ tax losses 613

594 Regulations 614

311 Simplified outline

The following is a simplified outline of this Part:

• The ACMA, carriers and carriage service providers must prevent, so far as it is reasonably practicable to do so, telecommunications networks and facilities from being used to commit offences.

• The ACMA, carriers and carriage service providers must give the authorities such help as is reasonably necessary for the purposes of:

enforcing the criminal law and laws imposing pecuniary penalties; and

protecting the public revenue; and

safeguarding national security.

• A carriage service provider may suspend the supply of a carriage service in an emergency if requested to do so by a senior police officer.

312 ACMA’s obligations

The ACMA must, in performing its telecommunications functions or exercising its telecommunications powers, prevent, so far as it is reasonably practicable to do so:

telecommunications networks; and

facilities;

from being used in, or in relation to, the commission of offences against the laws of the Commonwealth and of the States and Territories.

The ACMA must, in performing its telecommunications functions or exercising its telecommunications powers, give officers and authorities of the Commonwealth and of the States and Territories such help as is reasonably necessary for the following purposes:

enforcing the criminal law and laws imposing pecuniary penalties;

protecting the public revenue;

safeguarding national security.

The ACMA is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in performance of the duty imposed by subsection (1) or (2).

An officer, employee or agent of the ACMA is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in connection with an act done or omitted by the ACMA as mentioned in subsection (3).

313 Obligations of carriers and carriage service providers

A carrier or carriage service provider must, in connection with:

the operation by the carrier or provider of telecommunications networks or facilities; or

the supply by the carrier or provider of carriage services;

prevent, so far as it is reasonably practicable to do so, telecommunications networks and facilities from being used in, or in relation to, the commission of offences against the laws of the Commonwealth or of the States and Territories.

A carriage service intermediary must prevent, so far as it is reasonably practicable to do so, telecommunications networks and facilities from being used in, or in relation to, the commission of offences against the laws of the Commonwealth or of the States and Territories.

A carrier or carriage service provider must, in connection with:

the operation by the carrier or provider of telecommunications networks or facilities; or

the supply by the carrier or provider of carriage services;

give officers and authorities of the Commonwealth and of the States and Territories such help as is reasonably necessary for the following purposes:

enforcing the criminal law and laws imposing pecuniary penalties;

assisting the enforcement of the criminal laws in force in a foreign country;

assisting the investigation and prosecution of:

(i) crimes within the jurisdiction of the ICC (within the meaning of the International Criminal Court Act 2002); and

(ii) Tribunal offences (within the meaning of the International War Crimes Tribunals Act 1995);

protecting the public revenue;

safeguarding national security.

Note: Section 314 deals with the terms and conditions on which such help is to be provided.

A carriage service intermediary who arranges for the supply by a carriage service provider of carriage services must, in connection with:

the operation by the provider of telecommunications networks or facilities; or

the supply by the provider of carriage services;

give officers and authorities of the Commonwealth and of the States and Territories such help as is reasonably necessary for the following purposes:

enforcing the criminal law and laws imposing pecuniary penalties;

assisting the enforcement of the criminal laws in force in a foreign country;

assisting the investigation and prosecution of:

(i) crimes within the jurisdiction of the ICC (within the meaning of the International Criminal Court Act 2002); and

(ii) Tribunal offences (within the meaning of the International War Crimes Tribunals Act 1995);

protecting the public revenue;

safeguarding national security.

Note: Section 314 deals with the terms and conditions on which such help is to be provided.

A carrier or carriage service provider must, in connection with:

the operation by the carrier or provider of telecommunications networks or facilities; or

the supply by the carrier or provider of carriage services;

give officers and authorities of the Commonwealth and of the States and Territories such help as is reasonably necessary for the following purposes:

(c) if a national emergency declaration (within the meaning of the National Emergency Declaration Act 2020) is in force—preparing for, responding to or recovering from an emergency to which the declaration relates;

preparing for, responding to or recovering from a disaster or emergency that has been declared to be a disaster or a state of emergency (as the case may be) by or with the approval of a Minister of a State or Territory under the law of the State or Territory;

if a declaration made for the purpose of subsection (4D) is in force—preparing for, responding to or recovering from an emergency to which the declaration relates.

Note: Section 314 deals with the terms and conditions on which such help is to be provided.

A carriage service intermediary who arranges for the supply by a carriage service provider of carriage services must, in connection with:

the operation by the provider of telecommunications networks or facilities; or

the supply by the provider of carriage services;

give officers and authorities of the Commonwealth and of the States and Territories such help as is reasonably necessary for the following purposes:

(c) if a national emergency declaration (within the meaning of the National Emergency Declaration Act 2020) is in force—preparing for, responding to or recovering from an emergency to which the declaration relates;

preparing for, responding to or recovering from a disaster or emergency that has been declared to be a disaster or a state of emergency (as the case may be) by or with the approval of a Minister of a State or Territory under the law of the State or Territory;

if a declaration made for the purpose of subsection (4D) is in force—preparing for, responding to or recovering from an emergency to which the declaration relates.

Note: Section 314 deals with the terms and conditions on which such help is to be provided.

Subsections (4A) and (4B) do not limit subsection (3) or (4).

The Minister may, in writing, declare that an emergency exists for the purposes of this subsection.

The Minister must publish, by electronic or other means, a copy of the declaration made under subsection (4D) as soon as practicable after making the declaration.

(4F) A declaration made under subsection (4D) is a legislative instrument, but Legislation Act 2003 does not apply to the declaration.section 42 (disallowance) of the

In requiring help for the purposes of subsection (4A) or (4B), the officer or authority of the Commonwealth, State or Territory making the requirement must have regard to any guidelines in force under subsection (4H).

The Minister may, by legislative instrument, formulate guidelines for the purposes of subsection (4G).

A carrier or carriage service provider is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith:

in performance of the duty imposed by subsection (1), (2), (3), (4), (4A) or (4B); or

in compliance with a direction that the ACMA gives in good faith in performance of its duties under section 312.

An officer, employee or agent of a carrier or of a carriage service provider is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in connection with an act done or omitted by the carrier or provider as mentioned in subsection (5).

A reference in this section to giving help includes a reference to giving help by way of:

(a) the provision of interception services, including services in executing an interception warrant under the Telecommunications (Interception and Access) Act 1979; or

giving effect to a stored communications warrant under that Act; or

providing relevant information about:

any communication that is lawfully intercepted under such an interception warrant; or

any communication that is lawfully accessed under such a stored communications warrant; or

giving effect to authorisations under section 31A of that Act; or

complying with a domestic preservation notice or a foreign preservation notice that is in force under Part 3-1A of that Act; or

giving effect to authorisations under Division 3 or 4 of Part 4-1 of that Act; or

disclosing information or a document in accordance with section 280 of this Act.

Note: Additional obligations concerning interception capability and delivery capability are, or may be, imposed on a carrier or carriage service provider under Chapter 5 of the Telecommunications (Interception and Access) Act 1979.

314 Terms and conditions on which help is to be given

This section applies if a person is required to give help to an officer or authority of the Commonwealth, a State or a Territory as mentioned in subsection 313(3), (4), (4A) or (4B).

The person must comply with the requirement on the basis that the person neither profits from, nor bears the costs of, giving that help.

The person must comply with the requirement on such terms and conditions as are:

agreed between the following parties:

the person;

the Commonwealth, the State or the Territory, as the case may be; or

failing agreement, determined by an arbitrator appointed by the parties.

If the parties fail to agree on the appointment of an arbitrator, the ACMA is to appoint the arbitrator.

An arbitrator appointed by the ACMA under subsection (3) must be a person specified in a written determination made by the Minister.

Note: A person may be specified by name, by inclusion in a specified class or in any other way.

Before making a determination under subsection (4), the Minister must consult the Attorney-General.

If an arbitration under this section is conducted by an arbitrator appointed by the ACMA, the cost of the arbitration must be apportioned equally between the parties.

The regulations may make provision for and in relation to the conduct of an arbitration under this section.

(8) This section does not apply in relation to the obligation of carriers or carriage service providers under Telecommunications (Interception and Access) Act 1979 (about data retention, interception capability and delivery capability).Part 5-1A, 5-3 or 5-5 of the

Note: Telecommunications (Interception and Access) Act 1979 contains provisions about the allocation of costs in relation to interception capability and delivery capability.Part 5-6 of the

315 Suspension of supply of carriage service in an emergency

If a senior officer of a police force or service has reasonable grounds to believe that:

an individual has access to a particular carriage service; and

the individual has:

done an act that has resulted, or is likely to result, in loss of life or in the infliction of serious personal injury; or

made an imminent threat to kill, or seriously injure, another person; or

made an imminent threat to cause serious damage to property; or

made an imminent threat to take the individual’s own life; or

made an imminent threat to do an act that will, or is likely to, endanger the individual’s own life or create a serious threat to the individual’s health or safety; and

the suspension of the supply of the carriage service is reasonably necessary to:

prevent a recurrence of the act mentioned in subparagraph (b)(i); or

prevent or reduce the likelihood of the carrying out of a threat mentioned in subparagraph (b)(ii), (iii), (iv) or (v);

the officer may request a carriage service provider to suspend the supply of the carriage service.

The carriage service provider may comply with the request.

This section does not, by implication, limit any other powers that the provider may have to suspend the supply of the carriage service.

The provider is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in compliance with the request.

An officer, employee or agent of the provider is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in connection with an act done or omitted by the provider as mentioned in subsection (3A).

In this section:

senior officer, in relation to a police force or service, means a commissioned officer of the force or service who holds a rank not lower than the rank of Assistant Commissioner.

316 Generality of Part not limited

Nothing in this Part limits the generality of anything else in it.

317A Simplified outline of this Part

• The Director-General of Security, the Director-General of the Australian Secret Intelligence Service, the Director-General of the Australian Signals Directorate or the chief officer of an interception agency may give a technical assistance request to a designated communications provider.

• A technical assistance request may ask the provider to do acts or things on a voluntary basis that are directed towards ensuring that the provider is capable of giving certain types of help to ASIO, the Australian Secret Intelligence Service, the Australian Signals Directorate or an interception agency in relation to:

in the case of ASIO—safeguarding national security; or

in the case of the Australian Secret Intelligence Service—the interests of Australia’s national security, the interests of Australia’s foreign relations or the interests of Australia’s national economic well-being; or

in the case of the Australian Signals Directorate—providing material, advice and other assistance on matters relating to the security and integrity of information that is processed, stored or communicated by electronic or similar means; or

in the case of an interception agency—enforcing the criminal law, so far as it relates to serious Australian offences; or

in the case of an interception agency—assisting the enforcement of the criminal laws in force in a foreign country, so far as those laws relate to serious foreign offences.

• A technical assistance request may ask the provider to give help to ASIO, the Australian Secret Intelligence Service, the Australian Signals Directorate or an interception agency on a voluntary basis in relation to:

in the case of ASIO—safeguarding national security; or

in the case of the Australian Secret Intelligence Service—the interests of Australia’s national security, the interests of Australia’s foreign relations or the interests of Australia’s national economic well-being; or

in the case of the Australian Signals Directorate—providing material, advice and other assistance on matters relating to the security and integrity of information that is processed, stored or communicated by electronic or similar means; or

in the case of an interception agency—enforcing the criminal law, so far as it relates to serious Australian offences; or

in the case of an interception agency—assisting the enforcement of the criminal laws in force in a foreign country, so far as those laws relate to serious foreign offences.

• The Director-General of Security or the chief officer of an interception agency may give a designated communications provider a notice, to be known as a technical assistance notice, that requires the provider to do acts or things by way of giving certain types of help to ASIO or the agency in relation to:

enforcing the criminal law, so far as it relates to serious Australian offences; or

assisting the enforcement of the criminal laws in force in a foreign country, so far as those laws relate to serious foreign offences; or

safeguarding national security.

• The Attorney-General may give a designated communications provider a notice, to be known as a technical capability notice.

• A technical capability notice may require the provider to do acts or things directed towards ensuring that the provider is capable of giving certain types of help to ASIO or an interception agency in relation to:

enforcing the criminal law, so far as it relates to serious Australian offences; or

assisting the enforcement of the criminal laws in force in a foreign country, so far as those laws relate to serious foreign offences; or

safeguarding national security.

• A technical capability notice may require the provider to do acts or things by way of giving certain types of help to ASIO or an interception agency in relation to:

enforcing the criminal law, so far as it relates to serious Australian offences; or

assisting the enforcement of the criminal laws in force in a foreign country, so far as those laws relate to serious foreign offences; or

safeguarding national security.

317B Definitions

In this Part:

access, when used in relation to material, includes:

access that is subject to a pre-condition (for example, the use of a password); and

access by way of push technology; and

access by way of a standing request.

ASIO affiliate has the same meaning as in the Australian Security Intelligence Organisation Act 1979.

ASIO employee has the same meaning as in the Australian Security Intelligence Organisation Act 1979.

chief officer of an interception agency has the meaning given by section 317ZM.

contracted service provider means a person who performs services for or on behalf of the provider, but does not include a person who performs such services in the capacity of an employee of the provider.

designated communications provider has the meaning given by section 317C.

electronic protection includes:

authentication; and

encryption.

electronic service has the meaning given by section 317D.

eligible activities of a designated communications provider has the meaning given by section 317C.

entrusted ASD person means a person who: is a staff member of the Australian Signals Directorate; or has entered into a contract, agreement or arrangement with the Australian Signals Directorate; or is an employee or agent of a person who has entered into a contract, agreement or arrangement with the Australian Signals Directorate.

is a staff member of the Australian Signals Directorate; or

has entered into a contract, agreement or arrangement with the Australian Signals Directorate; or

is an employee or agent of a person who has entered into a contract, agreement or arrangement with the Australian Signals Directorate.

entrusted ASIO person means an entrusted person (within the meaning of the Australian Security Intelligence Organisation Act 1979).

entrusted ASIS person means a person who: is a staff member or agent of the Australian Secret Intelligence Service; or has entered into a contract, agreement or arrangement with the Australian Secret Intelligence Service; or is an employee or agent of a person who has entered into a contract, agreement or arrangement with the Australian Secret Intelligence Service. giving help: when used in relation to ASIO—includes giving help to an ASIO employee or an ASIO affiliate; or when used in relation to the Australian Secret Intelligence Service—includes giving help to a staff member of the Australian Secret Intelligence Service; or when used in relation to the Australian Signals Directorate—includes giving help to a staff member of the Australian Signals Directorate; or when used in relation to an interception agency—includes giving help to an officer of the agency.

is a staff member or agent of the Australian Secret Intelligence Service; or

has entered into a contract, agreement or arrangement with the Australian Secret Intelligence Service; or

is an employee or agent of a person who has entered into a contract, agreement or arrangement with the Australian Secret Intelligence Service.

giving help:

when used in relation to ASIO—includes giving help to an ASIO employee or an ASIO affiliate; or

when used in relation to the Australian Secret Intelligence Service—includes giving help to a staff member of the Australian Secret Intelligence Service; or

when used in relation to the Australian Signals Directorate—includes giving help to a staff member of the Australian Signals Directorate; or

when used in relation to an interception agency—includes giving help to an officer of the agency.

Home Affairs Minister means the Minister administering the Telecommunications (Interception and Access) Act 1979.

interception agency means:

the Australian Federal Police; or

the Australian Crime Commission; or

the National Anti-Corruption Commission; or

the Police Force of a State or the Northern Territory; or

the Independent Commission Against Corruption of New South Wales; or

the New South Wales Crime Commission; or

the Law Enforcement Conduct Commission of New South Wales; or

the Independent Broad-based Anti-corruption Commission of Victoria; or

the Crime and Corruption Commission of Queensland; or

the Independent Commission Against Corruption of South Australia; or

the Corruption and Crime Commission of Western Australia.

listed act or thing has the meaning given by section 317E.

material means material: whether in the form of text; or whether in the form of data; or whether in the form of speech, music or other sounds; or whether in the form of visual images (moving or otherwise); or whether in any other form; or whether in any combination of forms. member of the staff of the Independent Commission Against Corruption of South Australia means a person who is engaged under subsection 12(1) of the Independent Commission Against Corruption Act 2012 (SA).

whether in the form of text; or

whether in the form of data; or

whether in the form of speech, music or other sounds; or

whether in the form of visual images (moving or otherwise); or

whether in any other form; or

whether in any combination of forms.

member of the staff of the Independent Commission Against Corruption of South Australia means a person who is engaged under subsection 12(1) of the Independent Commission Against Corruption Act 2012 (SA).

officer of an interception agency has the meaning given by section 317ZM.

Ombudsman official means:

the Commonwealth Ombudsman; or

a Deputy Commonwealth Ombudsman; or

(c) a person who is a member of the staff referred to in subsection 31(1) of the Ombudsman Act 1976.

serious Australian offence means an offence against a law of the Commonwealth, a State or a Territory that is punishable by a maximum term of imprisonment of 3 years or more or for life.

serious foreign offence means an offence against a law in force in a foreign country that is punishable by a maximum term of imprisonment of 3 years or more or for life.

staff member, when used in relation to the Australian Secret Intelligence Service or the Australian Signals Directorate, has the same meaning as in the Intelligence Services Act 2001.

State or Territory inspecting authority means the authority that, under the law of the State or Territory concerned, has the function of making inspections of a similar kind to those provided for in section 55 of the Surveillance Devices Act 2004 when the interception agency is exercising powers under the law of that State or Territory that is of a similar nature to that Act.

supply:

when used in relation to:

a facility; or

customer equipment; or

a component;

includes supply (including re-supply) by way of sale, exchange, lease, hire or hire-purchase; and

when used in relation to software—includes provide, grant or confer rights, privileges or benefits.

systemic vulnerability means a vulnerability that affects a whole class of technology, but does not include a vulnerability that is selectively introduced to one or more target technologies that are connected with a particular person. For this purpose, it is immaterial whether the person can be identified.

systemic weakness means a weakness that affects a whole class of technology, but does not include a weakness that is selectively introduced to one or more target technologies that are connected with a particular person. For this purpose, it is immaterial whether the person can be identified.

target technology:

(a) for the purposes of this Part, a particular carriage service, so far as the service is used, or is likely to be used, (whether directly or indirectly) by a particular person, is a target technology that is connected with that person; and

(b) for the purposes of this Part, a particular electronic service, so far as the service is used, or is likely to be used, (whether directly or indirectly) by a particular person, is a target technology that is connected with that person; and

for the purposes of this Part, particular software installed, or to be installed, on:

a particular computer; or

a particular item of equipment;

used, or likely to be used, (whether directly or indirectly) by a particular person is a target technology that is connected with that person; and

for the purposes of this Part, a particular update of software that has been installed on:

a particular computer; or

a particular item of equipment;

used, or likely to be used, (whether directly or indirectly) by a particular person is a target technology that is connected with that person; and

(e) for the purposes of this Part, a particular item of customer equipment used, or likely to be used, (whether directly or indirectly) by a particular person is a target technology that is connected with that person; and

(f) for the purposes of this Part, a particular data processing device used, or likely to be used, (whether directly or indirectly) by a particular person is a target technology that is connected with that person.

For the purposes of paragraphs (a), (b), (c), (d), (e) and (f), it is immaterial whether the person can be identified.

technical assistance notice means a notice given under section 317L.

technical assistance notice information means:

information about any of the following:

the giving of a technical assistance notice;

consultation relating to the giving of a technical assistance notice;

the existence or non-existence of a technical assistance notice;

the variation of a technical assistance notice;

the revocation of a technical assistance notice;

the requirements imposed by a technical assistance notice;

any act or thing done in compliance with a technical assistance notice; or

any other information about a technical assistance notice.

technical assistance request means a request under paragraph 317G(1)(a).

technical assistance request information means:

information about any of the following:

the giving of a technical assistance request;

the existence or non-existence of a technical assistance request;

the acts or things covered by a technical assistance request;

any act or thing done in accordance with a technical assistance request; or

any other information about a technical assistance request.

technical capability notice means a notice given under section 317T.

technical capability notice information means:

information about any of the following:

the giving of a technical capability notice;

consultation relating to the giving of a technical capability notice;

the existence or non-existence of a technical capability notice;

the variation of a technical capability notice;

consultation relating to the variation of a technical capability notice;

the revocation of a technical capability notice;

the requirements imposed by a technical capability notice;

any act or thing done in compliance with a technical capability notice; or

any other information about a technical capability notice.

317C Designated communications provider etc.

For the purposes of this Part, the following table defines:

(a) designated communications provider; and

(b) the eligible activities of a designated communications provider.

Note 1: See also sections 317HAA, 317MAA and 317TAA (provision of advice to designated communications providers).

Note 2: See also section 317ZT (alternative constitutional basis).

317D Electronic service

(1) For the purposes of this Part, electronic service means:

a service that allows end-users to access material using a carriage service; or

a service that delivers material to persons having equipment appropriate for receiving that material, where the delivery of the service is by means of a carriage service;

but does not include:

a broadcasting service; or

(d) a datacasting service (within the meaning of the Broadcasting Services Act 1992).

(2) For the purposes of subsection (1), service includes a website.

For the purposes of this Part, a person does not provide an electronic service merely because the person supplies a carriage service that enables material to be accessed or delivered.

For the purposes of this Part, a person does not provide an electronic service merely because the person provides a billing service, or a fee collection service, in relation to an electronic service.

(5) A reference in this section to the use of a thing is a reference to the use of the thing either:

in isolation; or

in conjunction with one or more other things.

317E Listed acts or things

(1) For the purposes of the application of this Part to a designated communications provider, listed act or thing means:

removing one or more forms of electronic protection that are or were applied by, or on behalf of, the provider; or

providing technical information; or

installing, maintaining, testing or using software or equipment; or

ensuring that information obtained in connection with the execution of a warrant or authorisation is given in a particular format; or

an act or thing done to assist in, or facilitate:

giving effect to a warrant or authorisation under a law of the Commonwealth, a State or a Territory; or

the effective receipt of information in connection with a warrant or authorisation under a law of the Commonwealth, a State or a Territory; or

facilitating or assisting access to whichever of the following are the subject of eligible activities of the provider:

a facility;

customer equipment;

a data processing device;

a listed carriage service;

a service that facilitates, or is ancillary or incidental to, the supply of a listed carriage service;

an electronic service;

a service that facilitates, or is ancillary or incidental to, the provision of an electronic service;

software used, for use, or likely to be used, in connection with a listed carriage service;

software used, for use, or likely to be used, in connection with an electronic service;

software that is capable of being installed on a computer, or other equipment, that is, or is likely to be, connected to a telecommunications network; or

assisting with the testing, modification, development or maintenance of a technology or capability; or

notifying particular kinds of changes to, or developments affecting, eligible activities of the designated communications provider, if the changes are relevant to the execution of a warrant or authorisation; or

modifying, or facilitating the modification of, any of the characteristics of a service provided by the designated communications provider; or

substituting, or facilitating the substitution of, a service provided by the designated communications provider for:

another service provided by the provider; or

a service provided by another designated communications provider; or

an act or thing done to conceal the fact that any thing has been done covertly in the performance of a function, or the exercise of a power, conferred by a law of the Commonwealth, a State or a Territory, so far as the function or power relates to:

enforcing the criminal law, so far as it relates to serious Australian offences; or

assisting the enforcement of the criminal laws in force in a foreign country, so far as those laws relate to serious foreign offences; or

the interests of Australia’s national security, the interests of Australia’s foreign relations or the interests of Australia’s national economic well-being.

Paragraph (1)(j) does not apply to:

making a false or misleading statement; or

engaging in dishonest conduct.

317F Extension to external Territories

This Part extends to every external Territory.

317G Voluntary technical assistance provided to ASIO, the Australian Secret Intelligence Service, the Australian Signals Directorate or an interception agency

If:

any of the following persons:

the Director-General of Security;

the Director-General of the Australian Secret Intelligence Service;

the Director-General of the Australian Signals Directorate;

the chief officer of an interception agency;

requests a designated communications provider to do one or more specified acts or things that:

are in connection with any or all of the eligible activities of the provider; and

are covered by subsection (2); and

the provider does an act or thing:

in accordance with the request; or

in good faith purportedly in accordance with the request;

then:

the provider is not subject to any civil liability for, or in relation to, the act or thing mentioned in paragraph (b); and

an officer, employee or agent of the provider is not subject to any civil liability for, or in relation to, an act or thing done by the officer, employee or agent in connection with the act or thing mentioned in paragraph (b).

The specified acts or things must:

be directed towards ensuring that the designated communications provider is capable of giving help to:

in a case where the request is made by the Director-General of Security—ASIO; or

in a case where the request is made by the Director-General of the Australian Secret Intelligence Service—the Australian Secret Intelligence Service; or

in a case where the request is made by the Director-General of the Australian Signals Directorate—the Australian Signals Directorate; or

in a case where the request is made by the chief officer of an interception agency—the agency;

in relation to:

the performance of a function, or the exercise of a power, conferred by or under a law of the Commonwealth, a State or a Territory, so far as the function or power relates to a relevant objective; or

a matter that facilitates, or is ancillary or incidental to, a matter covered by subparagraph (v); or

be by way of giving help to:

in a case where the request is made by the Director-General of Security—ASIO; or

in a case where the request is made by the Director-General of the Australian Secret Intelligence Service—the Australian Secret Intelligence Service; or

in a case where the request is made by the Director-General of the Australian Signals Directorate—the Australian Signals Directorate; or

in a case where the request is made by the chief officer of an interception agency—the agency;

in relation to:

the performance of a function, or the exercise of a power, conferred by or under a law of the Commonwealth, a State or a Territory, so far as the function or power relates to a relevant objective; or

a matter that facilitates, or is ancillary or incidental to, a matter covered by subparagraph (v).

(3) A request under paragraph (1)(a) is to be known as a technical assistance request.

Subparagraph (1)(b)(ii) does not apply to an act or thing done by a designated communications provider unless the act or thing is in connection with any or all of the eligible activities of the provider.

Relevant objective

(5) For the purposes of this section, relevant objective means:

in relation to a technical assistance request given by the Director-General of Security—safeguarding national security; or

in relation to a technical assistance request given by the Director-General of the Australian Secret Intelligence Service—the interests of Australia’s national security, the interests of Australia’s foreign relations or the interests of Australia’s national economic well-being; or

(c) in relation to a technical assistance request given by the Director-General of the Australian Signals Directorate—providing material, advice and other assistance to a person or body mentioned in subsection 7(2) of the Intelligence Services Act 2001 on matters relating to the security and integrity of information that is processed, stored or communicated by electronic or similar means; or

in relation to a technical assistance request given by the chief officer of an interception agency:

enforcing the criminal law, so far as it relates to serious Australian offences; or

assisting the enforcement of the criminal laws in force in a foreign country, so far as those laws relate to serious foreign offences.

Listed acts or things

The acts or things that may be specified in a technical assistance request given to a designated communications provider include (but are not limited to) listed acts or things, so long as those acts or things:

are in connection with any or all of the eligible activities of the provider; and

are covered by subsection (2).

Note: For listed acts or things, see section 317E.

317H Form of technical assistance request

A technical assistance request may be given:

orally; or

in writing.

A technical assistance request must not be given orally unless:

an imminent risk of serious harm to a person or substantial damage to property exists; and

the technical assistance request is necessary for the purpose of dealing with that risk; and

it is not practicable in the circumstances to give the technical assistance request in writing.

If a technical assistance request is given orally by:

the Director-General of Security; or

the Director-General of the Australian Secret Intelligence Service; or

the Director-General of the Australian Signals Directorate; or

the chief officer of an interception agency;

the Director-General of Security, the Director-General of the Australian Secret Intelligence Service, the Director-General of the Australian Signals Directorate or the chief officer, as the case requires, must:

make a written record of the request; and

do so within 48 hours after the request was given.

If, under subsection (3):

the Director-General of Security; or

the Director-General of the Australian Secret Intelligence Service; or

the Director-General of the Australian Signals Directorate; or

the chief officer of an interception agency;

makes a written record of a technical assistance request, the Director-General of Security, the Director-General of the Australian Secret Intelligence Service, the Director-General of the Australian Signals Directorate or the chief officer, as the case requires, must:

give a copy of the record to the designated communications provider concerned; and

do so as soon as practicable after the record was made.

If, under subsection (3):

the Director-General of Security; or

the Director-General of the Australian Secret Intelligence Service; or

the Director-General of the Australian Signals Directorate; or

the chief officer of an interception agency;

makes a written record of a technical assistance request, the Director-General of Security, the Director-General of the Australian Secret Intelligence Service, the Director-General of the Australian Signals Directorate or the chief officer, as the case requires, must retain the record while the request is in force.

317HAA Provision of advice to designated communications providers

If the Director-General of Security gives a technical assistance request to a designated communications provider, the Director-General of Security must advise the provider that compliance with the request is voluntary.

If the Director-General of the Australian Secret Intelligence Service gives a technical assistance request to a designated communications provider, the Director-General of the Australian Secret Intelligence Service must advise the provider that compliance with the request is voluntary.

If the Director-General of the Australian Signals Directorate gives a technical assistance request to a designated communications provider, the Director-General of the Australian Signals Directorate must advise the provider that compliance with the request is voluntary.

If the chief officer of an interception agency gives a technical assistance request to a designated communications provider, the chief officer must advise the provider that compliance with the request is voluntary.

Form of advice

Advice under subsection (1), (2), (3) or (4) may be given:

orally; or

in writing.

If advice under subsection (1), (2), (3) or (4) is given orally by:

the Director-General of Security; or

the Director-General of the Australian Secret Intelligence Service; or

the Director-General of the Australian Signals Directorate; or

the chief officer of an interception agency;

the Director-General of Security, the Director-General of the Australian Secret Intelligence Service, the Director-General of the Australian Signals Directorate or the chief officer, as the case requires, must:

make a written record of the advice; and

do so within 48 hours after the advice was given.

317HAB Notification obligations

If the Director-General of Security gives a technical assistance request, the Director-General of Security must, within 7 days after the request is given, notify the Inspector-General of Intelligence and Security that the request has been given.

If the Director-General of the Australian Secret Intelligence Service gives a technical assistance request, the Director-General of the Australian Secret Intelligence Service must, within 7 days after the request is given, notify the Inspector-General of Intelligence and Security that the request has been given.

If the Director-General of the Australian Signals Directorate gives a technical assistance request, the Director-General of the Australian Signals Directorate must, within 7 days after the request is given, notify the Inspector-General of Intelligence and Security that the request has been given.

If the chief officer of an interception agency gives a technical assistance request, the chief officer must, within 7 days after the request is given, notify the following person that the request has been given:

if the interception agency is the Australian Crime Commission—the Inspector-General of Intelligence and Security;

otherwise—the Commonwealth Ombudsman.

A failure to comply with subsection (1), (2), (3) or (4) does not affect the validity of a technical assistance request.

317HA Duration of technical assistance request

A technical assistance request:

comes in force:

when it is given; or

if a later time is specified in the request—at that later time; and

unless sooner revoked, remains in force:

if an expiry date is specified in the request—until the start of the expiry date; or

otherwise—at end of the 90-day period beginning when the request was given.

If a technical assistance request expires, this Part does not prevent the giving of a fresh technical assistance request in the same terms as the expired technical assistance request.

317J Specified period etc.

A technical assistance request may include a request that a specified act or thing be done within a specified period.

A technical assistance request may include a request that a specified act or thing be done:

in a specified manner; or

in a way that meets one or more specified conditions.

Subsections (1) and (2) of this section do not limit subsections 317G(1) and (2).

317JAA Decision-making criteria

The Director-General of Security must not give a technical assistance request to a designated communications provider unless the Director-General of Security is satisfied that:

the request is reasonable and proportionate; and

compliance with the request is:

practicable; and

technically feasible.

Note: See also section 317JC.

The Director-General of the Australian Secret Intelligence Service must not give a technical assistance request to a designated communications provider unless the Director-General of the Australian Secret Intelligence Service is satisfied that:

the request is reasonable and proportionate; and

compliance with the request is:

practicable; and

technically feasible.

Note: See also section 317JC.

The Director-General of the Australian Signals Directorate must not give a technical assistance request to a designated communications provider unless the Director-General of the Australian Signals Directorate is satisfied that:

the request is reasonable and proportionate; and

compliance with the request is:

practicable; and

technically feasible.

Note: See also section 317JC.

The chief officer of an interception agency must not give a technical assistance request to a designated communications provider unless the chief officer is satisfied that:

the request is reasonable and proportionate; and

compliance with the request is:

practicable; and

technically feasible.

Note: See also section 317JC.

317JA Variation of technical assistance requests

If a technical assistance request has been given to a designated communications provider by the Director-General of Security, the Director-General of Security may vary the request.

If a technical assistance request has been given to a designated communications provider by the Director-General of the Australian Secret Intelligence Service, the Director-General of the Australian Secret Intelligence Service may vary the request.

If a technical assistance request has been given to a designated communications provider by the Director-General of the Australian Signals Directorate, the Director-General of the Australian Signals Directorate may vary the request.

If a technical assistance request has been given to a designated communications provider by the chief officer of an interception agency, the chief officer may vary the request.

Form of variation

A variation may be made:

orally; or

in writing.

A variation must not be made orally unless:

an imminent risk of serious harm to a person or substantial damage to property exists; and

the variation is necessary for the purpose of dealing with that risk; and

it is not practicable in the circumstances to make the variation in writing.

If a variation is made orally by:

the Director-General of Security; or

the Director-General of the Australian Secret Intelligence Service; or

the Director-General of the Australian Signals Directorate; or

the chief officer of an interception agency;

the Director-General of Security, the Director-General of the Australian Secret Intelligence Service, the Director-General of the Australian Signals Directorate or the chief officer, as the case requires, must:

make a written record of the variation; and

do so within 48 hours after the variation was made.

If, under subsection (7):

the Director-General of Security; or

the Director-General of the Australian Secret Intelligence Service; or

the Director-General of the Australian Signals Directorate; or

the chief officer of an interception agency;

makes a written record of a variation, the Director-General of Security, the Director-General of the Australian Secret Intelligence Service, the Director-General of the Australian Signals Directorate or the chief officer, as the case requires, must:

give a copy of the record to the designated communications provider concerned; and

do so as soon as practicable after the record was made.

Acts or things specified in a varied technical assistance request

The acts or things specified in a varied technical assistance request must be:

in connection with any or all of the eligible activities of the designated communications provider concerned; and

covered by subsection 317G(2).

The acts or things that may be specified in a varied technical assistance request include (but are not limited to) listed acts or things, so long as those acts or things:

are in connection with any or all of the eligible activities of the designated communications provider concerned; and

are covered by subsection 317G(2).

Note: For listed acts or things, see section 317E.

Decision-making criteria

The Director-General of Security must not vary a technical assistance request unless the Director-General of Security is satisfied that:

the varied request is reasonable and proportionate; and

compliance with the varied request is:

practicable; and

technically feasible.

Note: See also section 317JC.

The Director-General of the Australian Secret Intelligence Service must not vary a technical assistance request unless the Director-General of the Australian Secret Intelligence Service is satisfied that:

the varied request is reasonable and proportionate; and

compliance with the varied request is:

practicable; and

technically feasible.

Note: See also section 317JC.

The Director-General of the Australian Signals Directorate must not vary a technical assistance request unless the Director-General of the Australian Signals Directorate is satisfied that:

the varied request is reasonable and proportionate; and

compliance with the varied request is:

practicable; and

technically feasible.

Note: See also section 317JC.

The chief officer of an interception agency must not vary a technical assistance request unless the chief officer is satisfied that:

the varied request is reasonable and proportionate; and

compliance with the varied request is:

practicable; and

technically feasible.

Note: See also section 317JC.

Notification obligations

If the Director-General of Security varies a technical assistance request, the Director-General of Security must, within 7 days after varying the request, notify the Inspector-General of Intelligence and Security that the request has been varied.

If the Director-General of the Australian Secret Intelligence Service varies a technical assistance request, the Director-General of the Australian Secret Intelligence Service must, within 7 days after varying the request, notify the Inspector-General of Intelligence and Security that the request has been varied.

If the Director-General of the Australian Signals Directorate varies a technical assistance request, the Director-General of the Australian Signals Directorate must, within 7 days after varying the request, notify the Inspector-General of Intelligence and Security that the request has been varied.

If the chief officer of an interception agency varies a technical assistance request, the chief officer must, within 7 days after varying the request, notify the following person that the request has been varied:

if the interception agency is the Australian Crime Commission—the Inspector-General of Intelligence and Security;

otherwise—the Commonwealth Ombudsman.

A failure to comply with subsection (15), (16), (17) or (18) does not affect the validity of a variation of a technical assistance request.

317JB Revocation of technical assistance requests

If a technical assistance request has been given to a person by the Director-General of Security, the Director-General of Security may, by written notice given to the person, revoke the request.

If a technical assistance request has been given to a person by the Director-General of Security, and the Director-General of Security is satisfied that:

the request is not reasonable and proportionate; or

compliance with the request is not:

practicable; and

technically feasible;

the Director-General of Security must, by written notice given to the person, revoke the request.

If a technical assistance request has been given to a person by the Director-General of the Australian Secret Intelligence Service, the Director-General of the Australian Secret Intelligence Service may, by written notice given to the person, revoke the request.

If a technical assistance request has been given to a person by the Director-General of the Australian Secret Intelligence Service, and the Director-General of the Australian Secret Intelligence Service is satisfied that:

the request is not reasonable and proportionate; or

compliance with the request is not:

practicable; and

technically feasible;

the Director-General of the Australian Secret Intelligence Service must, by written notice given to the person, revoke the request.

If a technical assistance request has been given to a person by the Director-General of the Australian Signals Directorate, the Director-General of the Australian Signals Directorate may, by written notice given to the person, revoke the request.

If a technical assistance request has been given to a person by the Director-General of the Australian Signals Directorate, and the Director-General of the Australian Signals Directorate is satisfied that:

the request is not reasonable and proportionate; or

compliance with the request is not:

practicable; and

technically feasible;

the Director-General of the Australian Signals Directorate must, by written notice given to the person, revoke the request.

If a technical assistance request has been given to a person by the chief officer of an interception agency, the chief officer may, by written notice given to the person, revoke the request.

If a technical assistance request has been given to a person by the chief officer of an interception agency, and the chief officer is satisfied that:

the request is not reasonable and proportionate; or

compliance with the request is not:

practicable; and

technically feasible;

the chief officer must, by written notice given to the person, revoke the request.

Notification obligations

If the Director-General of Security revokes a technical assistance request, the Director-General of Security must, within 7 days after revoking the request, notify the Inspector-General of Intelligence and Security that the request has been revoked.

If the Director-General of the Australian Secret Intelligence Service revokes a technical assistance request, the Director-General of the Australian Secret Intelligence Service must, within 7 days after revoking the request, notify the Inspector-General of Intelligence and Security that the request has been revoked.

If the Director-General of the Australian Signals Directorate revokes a technical assistance request, the Director-General of the Australian Signals Directorate must, within 7 days after revoking the request, notify the Inspector-General of Intelligence and Security that the request has been revoked.

If the chief officer of an interception agency revokes a technical assistance request, the chief officer must, within 7 days after revoking the request, notify the following person that the request has been revoked:

if the interception agency is the Australian Crime Commission—the Inspector-General of Intelligence and Security;

otherwise—the Commonwealth Ombudsman.

A failure to comply with subsection (6), (7), (8) or (9) does not affect the validity of a revocation of a technical assistance request.

317JC Whether a technical assistance request is reasonable and proportionate

In considering whether a technical assistance request or a varied technical assistance request is reasonable and proportionate, the Director-General of Security, the Director-General of the Australian Secret Intelligence Service, the Director-General of the Australian Signals Directorate or the chief officer of an interception agency, as the case requires, must have regard to the following matters:

the interests of national security;

the interests of law enforcement;

the legitimate interests of the designated communications provider to whom the request relates;

the objectives of the request;

the availability of other means to achieve the objectives of the request;

whether the request, when compared to other forms of industry assistance known to the Director-General of Security, the Director-General of the Australian Secret Intelligence Service, the Director-General of the Australian Signals Directorate or the chief officer, as the case requires, is the least intrusive form of industry assistance so far as the following persons are concerned:

persons whose activities are not of interest to ASIO;

persons whose activities are not of interest to the Australian Secret Intelligence Service;

persons whose activities are not of interest to the Australian Signals Directorate;

persons whose activities are not of interest to interception agencies;

whether the request is necessary;

the legitimate expectations of the Australian community relating to privacy and cybersecurity;

such other matters (if any) as the Director-General of Security, the Director-General of the Australian Secret Intelligence Service, the Director-General of the Australian Signals Directorate or the chief officer, as the case requires, considers relevant.

317K Contract etc.

Any of the following persons:

the Director-General of Security;

the Director-General of the Australian Secret Intelligence Service;

the Director-General of the Australian Signals Directorate;

the chief officer of an interception agency;

may enter into a contract, agreement or arrangement with a designated communications provider in relation to acts or things done by the provider in accordance with a technical assistance request.

317L Technical assistance notices

The Director-General of Security or the chief officer of an interception agency may give a designated communications provider a notice, to be known as a technical assistance notice, that requires the provider to do one or more specified acts or things that:

are in connection with any or all of the eligible activities of the provider; and

are covered by subsection (2).

Note: Section 317ZK deals with the terms and conditions on which such a requirement is to be complied with.

The specified acts or things must be by way of giving help to:

in a case where the technical assistance notice is given by the Director-General of Security—ASIO; or

in a case where the technical assistance notice is given by the chief officer of an interception agency—the agency;

in relation to:

the performance of a function, or the exercise of a power, conferred by or under a law of the Commonwealth, a State or a Territory, so far as the function or power relates to:

enforcing the criminal law, so far as it relates to serious Australian offences; or

assisting the enforcement of the criminal laws in force in a foreign country, so far as those laws relate to serious foreign offences; or

safeguarding national security; or

a matter that facilitates, or is ancillary or incidental to, a matter covered by paragraph (c).

The specified acts or things must not be directed towards ensuring that a designated communications provider is capable of giving help to ASIO or an interception agency.

Listed acts or things

The acts or things specified in a technical assistance notice given to a designated communications provider must be listed acts or things, so long as those acts or things:

are in connection with any or all of the eligible activities of the provider; and

are covered by subsection (2).

Note: For listed acts or things, see section 317E.

317LA Approval of technical assistance notices given by the chief officer of an interception agency of a State or Territory

The chief officer of an interception agency of a State or Territory must not give a technical assistance notice to a designated communications provider unless:

the chief officer has given the AFP Commissioner a written notice setting out a proposal to give the technical assistance notice; and

the AFP Commissioner has approved the giving of the technical assistance notice.

An approval under paragraph (1)(b) may be given:

orally; or

in writing.

If an approval under paragraph (1)(b) is given orally, the AFP Commissioner must:

make a written record of the approval; and

do so within 48 hours after the approval was given.

(4) For the purposes of this section, AFP Commissioner means the Commissioner (within the meaning of the Australian Federal Police Act 1979).

317M Form of technical assistance notice

A technical assistance notice may be given:

orally; or

in writing.

A technical assistance notice must not be given orally unless:

an imminent risk of serious harm to a person or substantial damage to property exists; and

the technical assistance notice is necessary for the purpose of dealing with that risk; and

it is not practicable in the circumstances to give the technical assistance notice in writing.

If a technical assistance notice is given orally by the Director-General of Security or the chief officer of an interception agency, the Director-General of Security or the chief officer, as the case requires, must:

make a written record of the notice; and

do so within 48 hours after the notice was given.

If, under subsection (3), the Director-General of Security or the chief officer of an interception agency makes a written record of a technical assistance notice, the Director-General of Security or the chief officer, as the case requires, must:

give a copy of the record to the designated communications provider concerned; and

do so as soon as practicable after the record was made.

If, under subsection (3), the Director-General of Security or the chief officer of an interception agency makes a written record of a technical assistance notice, the Director-General of Security or the chief officer, as the case requires, must retain the record while the notice is in force.

317MAA Provision of advice to designated communications providers

If the Director-General of Security gives a technical assistance notice to a designated communications provider, the Director-General of Security must give the provider advice relating to the provider’s obligations under whichever of sections 317ZA and 317ZB is applicable, so far as those obligations relate to the notice.

If the chief officer of an interception agency gives a technical assistance notice to a designated communications provider, the chief officer must give the provider advice relating to the provider’s obligations under whichever of sections 317ZA and 317ZB is applicable, so far as those obligations relate to the notice.

(3) If the Director-General of Security gives a technical assistance notice to a designated communications provider, the Director-General of Security must notify the provider of the provider’s right to make a complaint about the notice to the Inspector-General of Intelligence and Security under the Inspector-General of Intelligence and Security Act 1986.

If:

the chief officer of an interception agency gives a technical assistance notice to a designated communications provider; and

the provider has a right to make a complaint about the conduct of the chief officer, or the interception agency, in relation to the notice to:

the Commonwealth Ombudsman; or

the Inspector-General of Intelligence and Security; or

an authority that is the State or Territory inspecting agency in relation to the interception agency;

the chief officer must notify the provider of the provider’s right to make such a complaint.

Form of advice or notification

Advice under subsection (1) or (2), or notification under subsection (3) or (4), may be given:

orally; or

in writing.

If advice under subsection (1) or (2), or notification under subsection (3) or (4), is given orally by the Director-General of Security or the chief officer of an interception agency, the Director-General of Security or the chief officer, as the case requires, must:

make a written record of the advice or notification; and

do so within 48 hours after the advice or notification was given.

317MAB Notification obligations

If the Director-General of Security gives a technical assistance notice, the Director-General of Security must, within 7 days after the notice is given, notify the Inspector-General of Intelligence and Security that the notice has been given.

If the chief officer of an interception agency gives a technical assistance notice, the chief officer must, within 7 days after the notice is given, notify the following person that the notice has been given:

if the interception agency is the Australian Crime Commission—the Inspector-General of Intelligence and Security;

otherwise—the Commonwealth Ombudsman.

A failure to comply with subsection (1) or (2) does not affect the validity of a technical assistance notice.