Telecommunications (Consumer Protection and Service Standards) Act 1999

• This Part establishes a universal service regime.

• The main object of the universal service regime is to ensure that all people in Australia, wherever they reside or carry on business, should have reasonable access, on an equitable basis, to:

standard telephone services; and

payphones.

• The universal service regime is to be phased out and replaced by alternative contractual arrangements.

• The Secretary is responsible for entering into contracts, and making grants, to support the provision of public interest telecommunications services.

• Public interest telecommunication services include:

standard telephone services; and

payphones; and

emergency call services; and

the National Relay Service.

• The Secretary will monitor the performance of contractors and grant recipients.

• The ACMA will assess and collect the levy imposed on carriers by the Telecommunications (Industry Levy) Act 2012.

• The proceeds of the levy will be used to:

pay contractors and grant recipients; and

pay eligible administrative costs.

In this Part:

contractor has the meaning given by section 14.

general Australian service area means the service area consisting of Australia.

grant recipient has the meaning given by section 14.

service area has the meaning given by section 8C.

(1) A reference in this Part to a standard telephone service is a reference to a standard telephone service (within the meaning of section 6) that has the characteristics (if any) specified in a determination under subsection (2).

The Minister may, by legislative instrument, determine specified characteristics for the purposes of subsection (1).

For the purposes of this Part, a service area is:

a geographical area within ; or

any area of land; or

any premises or part of premises;

regardless of size.

Initial declaration

During the period of 24 months that began at the commencement of this section, the Minister must make either of the following declarations:

a declaration that, in his or her opinion, there are satisfactory alternative contractual arrangements relating to standard telephone services;

(b) a declaration that the 24-month period starting immediately after the declaration is made is the declaration deferral period for the purposes of this section.

If:

a declaration is made under paragraph (1)(a) or (b); and

the declaration is not in force as at the later of the following times:

the end of the period of 26 months that began at the commencement of this section;

(ii) the start of the day immediately after the last day on which a resolution referred to in subsection 42(1) of the Legislation Act 2003 disallowing the declaration could be passed;

the 24-month period starting immediately after the declaration was made is the declaration deferral period for the purposes of this section.

Subsequent declarations

Before the end of the declaration deferral period, the Minister must make either of the following declarations:

a declaration that, in his or her opinion, there are satisfactory alternative contractual arrangements relating to standard telephone services;

a declaration that, in his or her opinion, there are not satisfactory alternative contractual arrangements relating to standard telephone services.

Criteria for making declaration

The Minister must not make a declaration under paragraph (1)(a) or (3)(a) unless:

Telstra has entered into a contract under section 14; and

the contract was entered into for a purpose relating to the achievement of the policy objective set out in paragraph 13(1)(a); and

the contract is in force; and

neither party to the contract has given notice of termination of the contract; and

the Minister is satisfied that Telstra is likely to substantially comply with the contract, having regard to:

Telstra’s record of compliance with its obligations under the contract; and

the nature of Telstra’s obligations under the contract; and

Telstra’s record of compliance with its obligations under this Part, to the extent that the obligations relate to the service obligation mentioned in paragraph 9(1)(a); and

Telstra’s record of compliance with its obligations under Part 5; and

such other matters (if any) as the Minister considers relevant; and

the Minister has obtained advice from:

the ACMA; and

the Secretary;

about the making of the declaration.

Subparagraphs (4)(e)(iii) and (iv) do not apply to an act, omission, matter or thing that occurs before the commencement of this section.

Subsection (4) does not limit the matters to which the Minister may have regard in making a declaration under this section.

Declarations

A declaration under this section cannot be varied or revoked.

A declaration under this section is a legislative instrument.

Initial declaration

During the period of 24 months that began at the commencement of this section, the Minister must make either of the following declarations:

a declaration that, in his or her opinion, there are satisfactory alternative contractual arrangements relating to payphones;

(b) a declaration that the 24-month period starting immediately after the declaration is made is the declaration deferral period for the purposes of this section.

If:

a declaration is made under paragraph (1)(a) or (b); and

the declaration is not in force as at the later of the following times:

the end of the period of 26 months that began at the commencement of this section;

(ii) the start of the day immediately after the last day on which a resolution referred to in subsection 42(1) of the Legislation Act 2003 disallowing the declaration could be passed;

the 24-month period starting immediately after the declaration was made is the declaration deferral period for the purposes of this section.

Subsequent declarations

Before the end of the declaration deferral period, the Minister must make either of the following declarations:

a declaration that, in his or her opinion, there are satisfactory alternative contractual arrangements relating to payphones;

a declaration that, in his or her opinion, there are not satisfactory alternative contractual arrangements relating to payphones.

Criteria for making declaration

The Minister must not make a declaration under paragraph (1)(a) or (3)(a) unless:

Telstra has entered into a contract under section 14; and

the contract was entered into for a purpose relating to the achievement of the policy objective set out in paragraph 13(1)(b); and

the contract is in force; and

neither party to the contract has given notice of termination of the contract; and

the Minister is satisfied that Telstra is likely to substantially comply with the contract, having regard to:

Telstra’s record of compliance with its obligations under the contract; and

the nature of Telstra’s obligations under the contract; and

Telstra’s record of compliance with its obligations under this Part, to the extent that the obligations relate to the service obligation mentioned in paragraph 9(1)(b); and

such other matters (if any) as the Minister considers relevant; and

the Minister has obtained advice from:

the ACMA; and

the Secretary;

about the making of the declaration.

Subparagraph (4)(e)(iii) does not apply to an act, omission, matter or thing that occurs before the commencement of this section.

Subsection (4) does not limit the matters to which the Minister may have regard in making a declaration under this section.

Declarations

A declaration under this section cannot be varied or revoked.

A declaration under this section is a legislative instrument.

(1) For the purposes of this Act, the universal service obligation is the obligation:

to ensure that standard telephone services are reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and

to ensure that payphones are reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business.

The obligation mentioned in paragraph (1)(a) includes the obligation to supply standard telephone services to people in Australia on request.

The obligation mentioned in paragraph (1)(b) includes the obligation to supply, install and maintain payphones in Australia.

(2AAA) If:

the Minister makes a declaration under section 8J that, in the Minister’s opinion, there are satisfactory alternative contractual arrangements relating to standard telephone services; and

(b) neither House of the Parliament passes a resolution under Legislation Act 2003 disallowing the declaration;section 42 of the

an obligation does not arise under paragraph (1)(a) or subsection (2) of this section after the last day on which such a resolution could have been passed by a House of the Parliament.

(2AA) If:

the Minister makes a declaration under section 8K that, in the Minister’s opinion, there are satisfactory alternative contractual arrangements relating to payphones; and

(b) neither House of the Parliament passes a resolution under Legislation Act 2003 disallowing the declaration;section 42 of the

an obligation does not arise under paragraph (1)(b) or subsection (2A) of this section after the last day on which such a resolution could have been passed by a House of the Parliament.

An obligation does not arise under paragraph (1)(a) or subsection (2) in relation to the supply of a standard telephone service to a person on request unless the request complies with the requirements (if any) set out in a determination under subsection (2D).

The Minister may, by legislative instrument, determine requirements for the purposes of subsection (2C).

An obligation does not arise under paragraph (1)(a) or subsection (2) in relation to the supply of a standard telephone service in the circumstances (if any) specified in a determination under subsection (3).

The Minister may, by legislative instrument, determine circumstances for the purposes of subsection (2E).

An obligation does not arise under paragraph (1)(a) or subsection (2) in relation to particular equipment, goods or services the supply of which is treated under section 9E as the supply of a standard telephone service if the customer concerned requests not to be supplied with the equipment, goods or services.

To avoid doubt, an obligation arising under paragraph (1)(a) or subsection (2) in relation to customer equipment requires the customer concerned to be given the option of hiring the equipment.

(1) Unless the Minister makes a determination under subsection (2), each of the following is a service obligation:

the obligation referred to in paragraph 9(1)(a) (dealing with the standard telephone services);

the obligation referred to in paragraph 9(1)(b) (dealing with payphones).

(2) The Minister may, by legislative instrument, determine the service obligations by dividing the universal service obligation in another way.

The determination must also specify, in respect of each service obligation, what must be supplied or done in order to fulfil the service obligation.

For the purposes of this Part, a payphone is a fixed telephone that:

is a means by which a standard telephone service is supplied; and

when in normal working order, cannot be used to make a telephone call (other than a free call or a call made with operator assistance) unless, as payment for the call, or to enable payment for the call to be collected:

money, or a token, card or other object, has been put into a device that forms part of, is attached to, or is located near, the telephone; or

an identification number, or a code or other information (in numerical or any other form) has been input into a device that forms part of, is attached to, or is located near, the telephone; or

a prescribed act has been done.

(1) A reference in this Part to the supply of a standard telephone service includes a reference to the supply of:

if the regulations prescribe customer equipment for the purposes of this paragraph—whichever of the following is applicable:

that customer equipment;

(ii) if other customer equipment is supplied, instead of the first-mentioned customer equipment, in order to comply with the Disability Discrimination Act 1992—that other customer equipment; and

if paragraph (a) does not apply—whichever of the following is applicable:

a telephone handset that does not have switching functions;

(ii) if other customer equipment is supplied, instead of such a handset, in order to comply with the Disability Discrimination Act 1992—that other customer equipment; and

other goods of a kind specified in the regulations; and

services of a kind specified in the regulations;

where the equipment, goods or services, as the case may be, are for use in connection with the standard telephone service.

(2) A reference in this Part to the supply of a standard telephone service includes a reference to the supply, to a person with a disability, of:

customer equipment of a kind specified in the regulations; and

other goods of a kind specified in the regulations; and

services of a kind specified in the regulations;

where the equipment, goods or services, as the case may be, are for use in connection with the standard telephone service.

(3) For the purposes of this section, supply, in relation to customer equipment or other goods, includes supply by way of hire.

(4) For the purposes of this section, disability has the same meaning as in the Disability Discrimination Act 1992.

Subdivision B—Primary universal service provider

(1) The Minister may determine in writing that a specified carrier or carriage service provider is the primary universal service provider for a service area in respect of a service obligation.

The Minister may determine under subsection (1):

different primary universal service providers in respect of different service obligations for the same service area; and

the same person as the primary universal service provider for one or more service areas in respect of one or more service obligations.

(2A) The Minister may determine, in writing, that each of 2 or more specified persons is a primary universal service provider in respect of a service obligation.

The Minister must not specify a person in a determination under subsection (2A) unless the person is a carrier or carriage service provider.

The Minister may determine under subsection (2A):

different primary universal service providers in respect of different service obligations; and

the same person as a primary universal service provider in respect of one or more service obligations.

The Minister must not make a determination under subsection (1) in respect of a service obligation if a determination in respect of that service obligation is in force under subsection (2A).

The Minister must not make a determination under subsection (2A) in respect of a service obligation if a determination in respect of that service obligation is in force under subsection (1).

In exercising the Minister’s powers under this section in relation to a service obligation, the Minister must ensure that at all times each point in Australia is within a service area for which there is at least one primary universal service provider in respect of that service obligation.

In deciding whether to make a determination that a person is a primary universal service provider, the Minister is limited to considering factors that are relevant to achieving the objects of this Act.

The Minister must give to the person and to the ACMA a copy of the determination.

A determination under this section is a legislative instrument.

Note: A determination that the Minister is taken to have made under this section because of section 12D is not a legislative instrument (see subsection 12D(2)).

A determination under section 12A takes effect on the day specified in the determination.

If such a determination is expressed to cease to have effect at a specified time, the determination ceases to have effect at that time.

A variation or revocation of a determination under section 12A takes effect on the day specified for the purpose in the instrument of variation or revocation.

If the Minister revokes a determination under section 12A, the Minister may determine in writing arrangements to deal with any issues of a transitional nature that may arise as a result of the revocation.

If there is only one primary universal service provider for a service area in respect of a service obligation, that service obligation, so far as it relates to that area, is imposed on that primary universal service provider.

If there are 2 or more primary universal service providers for a service area in respect of a service obligation:

that obligation, so far as it relates to that area, is imposed on each of those primary universal service providers, but may be discharged by any of those primary universal service providers; and

if the service obligation, so far as it relates to that area, is complied with by any of those primary universal service providers—the obligation, so far as it relates to that area, is taken to have been complied with by the other primary universal service provider or providers.

The Minister is taken to have made a determination under subsection 12A(1) that Telstra Limited is the primary universal service provider for so much of the general Australian service area as is not a special determined area in relation to that service obligation in respect of that service obligation.

Despite subsection 12A(6), the determination that the Minister is taken to have made is not a legislative instrument.

Subsection (1) does not apply to Telstra Limited unless Telstra Limited is a carrier or carriage service provider.

The following provisions have effect:

subsection (1) does not prevent the Minister from making a determination under subsection 12A(1) that a person (other than Telstra Limited) is the primary universal service provider for a service area in respect of a service obligation;

(b) if such a determination is in force—that area is a special determined area in relation to that service obligation.

The following provisions have effect:

subsection (1) does not prevent the Minister from making a determination under subsection 12A(2A) that each of 2 or more persons is a primary universal service provider for a service area in respect of a service obligation;

(b) if such a determination is in force—that area is a special determined area in relation to that service obligation.

The following provisions have effect:

subsection (1) does not prevent the Minister from making a determination under subsection 12A(1) that a person (other than Telstra Limited) is the primary universal service provider for the general Australian service area in respect of a service obligation;

if such a determination is in force—subsection (1) does not apply to that service obligation.

The following provisions have effect:

subsection (1) does not prevent the Minister from making a determination under subsection 12A(2A) that each of 2 or more persons is a primary universal service provider for the general Australian service area in respect of a service obligation;

if such a determination is in force—subsection (1) does not apply to that service obligation.

Scope

This section applies if:

(a) the Minister determines under current provider) is a primary universal service provider for a service area in respect of a service obligation; andsection 12A that a carrier or carriage service provider (the

(b) another person, who is or was a universal service provider for the service area in respect of the obligation, is determined to be a former provider under subsection (4).

This section also applies if:

either:

(i) the Minister revokes or varies a determination under former provider) ceases to be a universal service provider for a service area in respect of a service obligation; orsection 12A so that a person (the

(ii) a person (the former provider) otherwise ceases to be a universal service provider for a service area in respect of a service obligation; and

(b) another person (the current provider), who was also a universal service provider in respect of the service obligation, continues to be a universal service provider for the service area in respect of that obligation:

if subparagraph (a)(i) applies—after the revocation or variation; or

if subparagraph (a)(ii) applies—after the cessation.

Subsections (1) and (2) can apply before the determination, revocation or variation under section 12A takes effect.

Former provider

The Minister may determine in writing that a person is a former provider for the purposes of this section.

Requirement to give information

The current provider may, by written notice given to the former provider, require the former provider to give to the current provider specified information of the kind referred to in subsection (6). A notice of this kind cannot be given more than 6 months after:

if subsection (1) applies—the later of the following days:

the day on which the current provider became a universal service provider;

the day on which the determination under section 12A was made in respect of the current provider; or

if subsection (2) applies—the day on which the former provider ceases to be a universal service provider.

The information that may be required to be given must be information that will assist the current provider in doing something that the current provider is or will be required or permitted to do by or under a provision of this Part. The notice must identify the doing of that thing as the purpose for which the information is required.

Note 1: If, for example, information about service location and customer contact details will assist the current provider in fulfilling its obligation under section 12C, the former provider may be required to provide that kind of information.

Note 2: See also subsection (8), which allows the Minister to determine that a specified kind of information is information referred to in this subsection.

If a requirement made by a notice under subsection (5) is reasonable, the former provider must comply with the requirement as soon as practicable after receiving the notice. However, if the requirement is unreasonable, the former provider does not have to comply with it.

The Minister may, by legislative instrument, make a determination to the effect that, either generally or in a particular case, information of a kind specified in the determination is taken to be information that will assist a person in doing a specified thing that the person is or will be required or permitted to do by or under a provision of this Part.

If a former provider has been given notice of a requirement under subsection (5), the ACMA may, in writing, direct the former provider to comply with the requirement or with specified aspects of the requirement. The former provider must comply with the direction.

In deciding whether to give a direction under subsection (9), the ACMA must consider whether the requirement under subsection (5) is reasonable.

Subdivision C—USO standards and rules

Determination

The Minister may make a written determination setting out standards to be complied with by a primary universal service provider in relation to any or all of the following matters:

the terms and conditions of the supply of a standard telephone service to a customer, other than price-related terms and conditions;

the reliability of a standard telephone service supplied to a customer;

the supply of a temporary standard telephone service to a customer;

the maximum period within which a primary universal service provider must supply a standard telephone service following the making of a request by a prospective customer;

the maximum period within which a primary universal service provider must rectify a fault or service difficulty relating to a standard telephone service following the making of a report by a customer about the fault or service difficulty;

any other matter concerning the supply, or proposed supply, of a standard telephone service to a customer or prospective customer.

A determination under subsection (1) may be of general application or may be limited as provided in the determination.

(3) Subsection (2) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

Compliance

A primary universal service provider must comply with a standard in force under subsection (1).

Service supplied in fulfilment of the universal service obligation

This section does not apply to a standard telephone service unless the service is supplied, or proposed to be supplied, in fulfilment of the universal service obligation.

Determination is a legislative instrument

A determination under subsection (1) is a legislative instrument.

Determination

The Minister may make a written determination setting out standards to be complied with by a primary universal service provider in relation to any or all of the following matters:

the terms and conditions of the supply of a standard telephone service to a customer, other than price-related terms and conditions;

the reliability of a standard telephone service supplied to a customer;

the supply of a temporary standard telephone service to a customer;

the maximum period within which a primary universal service provider must supply a standard telephone service following the making of a request by a prospective customer;

the maximum period within which a primary universal service provider must rectify a fault or service difficulty relating to a standard telephone service following the making of a report by a customer about the fault or service difficulty;

any other matter concerning the supply, or proposed supply, of a standard telephone service to a customer or prospective customer.

A determination under subsection (1) may be of general application or may be limited as provided in the instrument.

(3) Subsection (2) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

Determination is a legislative instrument

A determination under subsection (1) is a legislative instrument.

Performance benchmarks

The Minister may, by legislative instrument, set minimum benchmarks in relation to compliance by a primary universal service provider with a standard in force under subsection (1).

An instrument under subsection (6) may be of general application or may be limited as provided in the instrument.

(8) Subsection (7) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

Provider must meet or exceed minimum benchmarks

A primary universal service provider must meet or exceed a minimum benchmark set by an instrument under subsection (6).

Clause 1 of Schedule 1 to the Telecommunications Act 1997 does not apply to a breach of a standard

(10) Clause 1 of Schedule 1 to the Telecommunications Act 1997 does not apply to a contravention of a standard in force under subsection (1).

Note: Clause 1 of Schedule 1 to the Telecommunications Act 1997 requires carriers to comply with this Act.

Clause 1 of Schedule 2 to the Telecommunications Act 1997 does not apply to a breach of a standard

(11) Clause 1 of Schedule 2 to the Telecommunications Act 1997 does not apply to a contravention of a standard in force under subsection (1).

Note: Clause 1 of Schedule 2 to the Telecommunications Act 1997 requires carriage service providers to comply with this Act.

Determination

The Minister may make a written determination setting out standards to be complied with by a primary universal service provider in relation to any or all of the following matters:

the characteristics of a payphone carriage service;

the supply, installation or maintenance of a payphone;

the supply of a payphone carriage service;

the reliability of a payphone;

the reliability of a payphone carriage service;

the maximum period within which a primary universal service provider must rectify a fault or service difficulty relating to a payphone following the making of a report about a fault or service difficulty;

the maximum period within which a primary universal service provider must rectify a fault or service difficulty relating to a payphone carriage service following the making of a report about a fault or service difficulty;

the handling of requests for the removal of a payphone;

any other matter concerning:

the supply, installation or maintenance of a payphone; or

the supply of a payphone carriage service.

A determination under subsection (1) may be of general application or may be limited as provided in the determination.

(3) Subsection (2) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

Compliance

A primary universal service provider must comply with a determination under subsection (1).

Determination is a legislative instrument

A determination under subsection (1) is a legislative instrument.

Determination

The Minister may make a written determination setting out standards to be complied with by a primary universal service provider in relation to any or all of the following matters:

the characteristics of a payphone carriage service;

the supply, installation or maintenance of a payphone;

the supply of a payphone carriage service;

the reliability of a payphone;

the reliability of a payphone carriage service;

the maximum period within which a primary universal service provider must rectify a fault or service difficulty relating to a payphone following the making of a report about a fault or service difficulty;

the maximum period within which a primary universal service provider must rectify a fault or service difficulty relating to a payphone carriage service following the making of a report about a fault or service difficulty;

the handling of requests for the removal of a payphone;

any other matter concerning:

the supply, installation or maintenance of a payphone; or

the supply of a payphone carriage service.

A determination under subsection (1) may be of general application or may be limited as provided in the determination.

(3) Subsection (2) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

Determination is a legislative instrument

A determination under subsection (1) is a legislative instrument.

Performance benchmarks

The Minister may, by legislative instrument, set minimum benchmarks in relation to compliance by a primary universal service provider with a standard in force under subsection (1).

An instrument under subsection (6) may be of general application or may be limited as provided in the instrument.

(8) Subsection (7) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

Provider must meet or exceed minimum benchmarks

A primary universal service provider must meet or exceed a minimum benchmark set by an instrument under subsection (6).

Clause 1 of Schedule 1 to the Telecommunications Act 1997 does not apply to a breach of a standard

(10) Clause 1 of Schedule 1 to the Telecommunications Act 1997 does not apply to a contravention of a standard in force under subsection (1).

Note: Clause 1 of Schedule 1 to the Telecommunications Act 1997 requires carriers to comply with this Act.

Clause 1 of Schedule 2 to the Telecommunications Act 1997 does not apply to a breach of a standard

(11) Clause 1 of Schedule 2 to the Telecommunications Act 1997 does not apply to a contravention of a standard in force under subsection (1).

Note: Clause 1 of Schedule 2 to the Telecommunications Act 1997 requires carriage service providers to comply with this Act.

The Minister may make a determination setting out rules to be complied with by a primary universal service provider in relation to the places or areas in which payphones are to be located.

Compliance

A primary universal service provider must comply with a determination under subsection (1).

If a primary universal service provider complies with a determination under subsection (1), the provider is taken to have complied with an obligation under paragraph 9(1)(b) or subsection 9(2A), to the extent to which the obligation relates to the location of payphones.

Determination is a legislative instrument

A determination under subsection (1) is a legislative instrument.

The Minister may make a determination setting out rules to be complied with by a primary universal service provider in relation to the process for public consultation on the location or removal of payphones.

The Minister must ensure that a determination under subsection (1) provides that, if:

a primary universal service provider makes a decision to remove a payphone from a particular location; and

that payphone is the only payphone at that location;

then:

the provider must undertake a process for public consultation on the removal of that payphone; and

if, in accordance with that process, a person makes a submission to the provider—the provider must notify the person, in writing, of the outcome of that process.

Compliance

A primary universal service provider must comply with a determination under subsection (1).

Determination is a legislative instrument

A determination under subsection (1) is a legislative instrument.

The Minister may make a determination setting out rules to be complied with by a primary universal service provider in relation to the process for resolution of complaints about the location or removal of payphones.

Compliance

A primary universal service provider must comply with a determination under subsection (1).

Determination is a legislative instrument

A determination under subsection (1) is a legislative instrument.

Scope

This section applies if:

a primary universal service provider has made a decision to remove a payphone from a particular location; and

a person notifies the ACMA, in writing, that the person objects to the removal; and

the ACMA is satisfied that:

the removal would breach, or has breached, a determination under subsection 12EF(1); or

the provider has breached a determination under subsection 12EG(1) in relation to the removal.

Direction

If the payphone has not been removed, the ACMA may, by written notice given to the provider, direct the provider not to remove the payphone from that location.

If the payphone has been removed, the ACMA may, by written notice given to the provider, direct the provider:

to supply and install a payphone at that location; and

to do so within the period specified in the notice.

A period specified under paragraph (3)(b) must not be shorter than 30 days after the notice is given.

A direction under subsection (2) or (3) must not be inconsistent with a determination under subsection 12EF(1).

Compliance

A primary universal service provider must comply with a direction under subsection (2) or (3).

Direction is not a legislative instrument

A direction under subsection (2) or (3) is not a legislative instrument.

The policy objectives of this Division are:

that standard telephone services are to:

be reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and

be supplied to people in Australia on request; and

that payphones are to:

be reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and

be supplied, installed and maintained in Australia; and

that end-users of standard telephone services in Australia are to have access, free of charge, to an emergency call service; and

that the National Relay Service is to be reasonably accessible to all persons in Australia who:

are deaf; or

have a hearing and/or speech impairment;

wherever they reside or carry on business; and

that there are to be such:

customer information programs; and

customer cabling installation programs; and

carriage service development programs; and

other measures (if any) as are specified in the regulations;

as are necessary to support the continuity of supply of carriage services during the transition to the national broadband network; and

that all persons in Australia outside a standard zone are to have access to untimed voice calls on a basis that is comparable to the access provided to persons in standard zones for voice calls made:

using a standard telephone service; or

using a payphone; and

that all persons in Australia outside a standard zone are to have access to untimed data calls on a basis that is comparable to the access provided to persons in standard zones for data calls made to an internet service provider using a data network access number; and

that an SMS relay service is reasonably accessible to all persons in Australia who:

are deaf; or

have a hearing and/or speech impairment; and

that a video relay service is reasonably accessible to all persons in Australia who communicate in Auslan; and

that a software application is reasonably available to assist all users of the National Relay Service in communication with emergency call services; and

the objectives (if any) specified in the regulations, where those objectives relate to the supply of carriage services.

(2) For the purposes of paragraphs (1)(f) and (g), standard zone has the meaning given by section 108.

Subdivision B—Contracts and grants

The Secretary may, on behalf of the Commonwealth:

enter into a contract; or

make a grant of financial assistance;

for a purpose relating to the achievement of any or all of the policy objectives of this Division.

Note 1: For the policy objectives, see subsection 13(1).

Note 2: For transitional provisions, see section 22.

(2) For the purposes of this Part, if the Secretary enters into a contract with a person under subsection (1), the person is a contractor.

(3) For the purposes of this Part, if the Secretary makes a grant of financial assistance to a person under subsection (1), the person is a grant recipient.

Scope

This section applies to a grant of financial assistance made under section 14.

Terms and conditions

The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the grant recipient.

An agreement under subsection (2) is to be entered into by the Secretary on behalf of the Commonwealth.

Subsection (2) does not apply to a condition under section 16.

Condition

It is a condition of:

a contract entered into under section 14; or

a grant made under section 14;

that the contractor or grant recipient, as the case may be, must comply with a determination under subsection (2) in so far as the determination applies to the contract or grant, as the case may be.

Determination

The Minister may, by legislative instrument, make a determination that sets out either or both of the following:

standards or rules that must be complied with by contractors or grant recipients, as the case may be, in relation to contracts entered into, or grants made, under section 14;

minimum benchmarks that must be met or exceeded by contractors or grant recipients, as the case may be, in relation to contracts entered into, or grants made, under section 14.

Application of determinations

A determination under subsection (2) may be of general application or may be limited as provided in the determination.

(4) Subsection (3) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

Other terms and conditions

This section does not, by implication, limit:

the terms and conditions that may be included in a contract entered into under section 14; or

the terms and conditions that may be included in an agreement under section 15.

Determination prevails over inconsistent contract or agreement

A term or condition:

of a contract entered into under section 14; or

set out in an agreement under section 15;

has no effect to the extent to which it is inconsistent with a determination under subsection (2) that applies to the contract or to the grant to which the agreement relates, as the case may be.

Despite subsection (6), a determination under subsection (2) has no effect to the extent to which it overrides a term or condition:

of a contract entered into under section 14; and

that gives the contractor a right to adjustment of payment for a change in the services, facilities or customer equipment to be supplied by the contractor in accordance with the contract.

Despite subsection (6), a determination under subsection (2) has no effect to the extent to which it specifies the price, or a method of ascertaining the price, for any of the services, facilities or customer equipment to be supplied by a contractor in accordance with a section 14 contract.

Despite subsection (6), a determination under subsection (2) has no effect to the extent to which it overrides a term or condition:

set out in an agreement under section 15; and

that gives the grant recipient a right to adjustment of payment for a change in the services, facilities or customer equipment to be supplied by the grant recipient in accordance with the terms and conditions of the grant.

Despite subsection (6), a determination under subsection (2) has no effect to the extent to which it specifies the price, or a method of ascertaining the price, for any of the services, facilities or customer equipment to be supplied by the grant recipient of a section 14 grant in accordance with the terms and conditions of the grant.

If:

a contract is in force as at the commencement of this section; and

the contract was entered into before 1 July 2012; and

(c) the contract was a designated transitional contract within the meaning of the repealed Telecommunications Universal Service Management Agency Act 2012;

the contract is exempt from a determination under subsection 16(2) of this Act.

The Secretary, on behalf of the Commonwealth, has all the rights, responsibilities, duties and powers of the Commonwealth in relation to the Commonwealth’s capacity as:

a party to a contract entered into under section 14; or

the grantor of a grant made under section 14.

Without limiting subsection (1):

an amount payable by the Commonwealth under a the Secretary on behalf of the Commonwealth; andsection 14 contract is to be paid by

an amount payable to the Commonwealth under a the Secretary on behalf of the Commonwealth; andsection 14 contract is to be paid to

a the Secretary on behalf of the Commonwealth; andsection 14 grant is to be paid by

an amount payable to the Commonwealth by way of the repayment of the whole or a part of a the Secretary on behalf of the Commonwealth; andsection 14 grant is to be paid to

the Secretary may institute an action or proceeding on behalf of the Commonwealth in relation to a matter that concerns:

a section 14 contract; or

a section 14 grant.

The Secretary may exercise a power conferred on the Secretary by:

a contract entered into under section 14; or

an agreement under section 14.

The Secretary must monitor, and report each financial year to the Minister on, all significant matters relating to:

the performance of contractors; and

the performance of grant recipients.

A report under subsection (1) for a financial year must set out details of the following matters:

the adequacy of each contractor’s compliance, during that year, with the terms and conditions of a section 14 contract;

the adequacy of each grant recipient’s compliance, during that year, with the terms and conditions of a section 14 grant;

any notice of breach by a contractor of a section 14 contract, where the notice was given during that year;

any notice of breach by a grant recipient of a term or condition of a section 14 grant, where the notice was given during that year;

any remedial action taken by the Secretary during that year in response to a breach of a section 14 contract;

any remedial action taken by the Secretary during that year in response to a breach of the terms or conditions of a section 14 grant;

the result of any such remedial action.

Subsection (2) does not limit subsection (1).

(4) A report under subsection (1) for a financial year must be included in the annual report prepared by the Secretary and given to the Minister under Public Governance, Performance and Accountability Act 2013 for the financial year.section 46 of the

This Division does not, by implication, limit the executive power of the Commonwealth.

If:

(a) a designated Telstra successor company (the first designated Telstra successor company) is a party to the section 14 contract known as the Telstra USO Performance Agreement; and

the Minister is satisfied that the first designated Telstra successor company has failed, is failing, or is likely to fail, to fulfil its obligations under the Telstra USO Performance Agreement;

the Minister may give:

Telstra Limited; or

another designated Telstra successor company; or

(e) a body corporate that is a related body corporate (within the meaning of the Corporations Act 2001) of the first designated Telstra successor company;

a written direction:

to do a specified act or thing; or

not to do a specified act or thing.

The Minister must not give a direction to a body corporate under subsection (1) to do an act or thing unless:

the Minister is satisfied that the act or thing will facilitate the first designated Telstra successor company fulfilling its obligations under the Telstra USO Performance Agreement; and

the Minister is satisfied that the body corporate:

has the capability (including the technical, operational and organisational capability) to comply with the direction; or

could reasonably acquire the capability (including the technical, operational and organisational capability) to comply with the direction; and

the body corporate:

is a constitutional corporation; or

carries on a telecommunications business covered by paragraph 581L(1)(a), (b) or (c).

The Minister must not give a direction to a body corporate under subsection (1) not to do an act or thing unless:

the Minister is satisfied that not doing the act or thing will facilitate the first designated Telstra successor company fulfilling its obligations under the Telstra USO Performance Agreement; and

the Minister is satisfied that the body corporate:

has the capability (including the technical, operational and organisational capability) to comply with the direction; or

could reasonably acquire the capability (including the technical, operational and organisational capability) to comply with the direction; and

the body corporate:

is a constitutional corporation; or

(ii) carries on a telecommunications business covered by paragraph 581L(1)(a), (b) or (c) of the Telecommunications Act 1997.

Compliance with requirement

A body corporate must comply with a direction under subsection (1).

Civil penalty

Subsection (4) is a civil penalty provision.

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

Consultation

Before giving or varying a direction under subsection (1), the Minister must:

make a copy of the draft direction or variation available on the Minister’s website; and

publish a notice on the Minister’s website:

stating that the Minister has prepared the draft; and

inviting interested persons to give written comments about the draft to the Minister within the period specified in the notice.

Subject to subsection (8), the period specified in the notice must run for at least 30 days after the publication of the notice.

The period specified in the notice may be shorter than 30 days if the Minister is satisfied that the shorter period is necessary due to urgent circumstances.

If interested persons have given comments in accordance with a notice under subsection (6), the Minister must have due regard to those comments in giving or varying the direction.

If:

a contract is in force as at the commencement of this section; and

the contract was entered into before 1 July 2012; and

(c) under Telecommunications Universal Service Management Agency Act 2012, that Act had effect as if the contract had been entered into under section 13 of that Act for a purpose relating to the achievement of a particular policy objective;section 22, 23, 24, 25 or 26 of the repealed

this Act, and any other law of the Commonwealth, has effect as if the contract had been entered into by the Secretary under section 14 of this Act for a purpose relating to the achievement of the corresponding policy objective.

If:

a contract is in force as at the commencement of this section; and

the contract was entered into on or after 1 July 2012; and

(c) the contract was entered into under Telecommunications Universal Service Management Agency Act 2012 for a purpose relating to the achievement of a particular policy objective;section 13 of the repealed

this Act, and any other law of the Commonwealth, has effect as if the contract had been entered into by the Secretary under section 14 of this Act for a purpose relating to the achievement of the corresponding policy objective.

(3) For the purposes of this section, contract includes a part of a contract.

Subdivision C—Relevant contracts entered into by designated Telstra successor companies

For the purposes of this Subdivision, relevant contract means a contract or agreement that is entered into:

by a designated Telstra successor company; and

for a purpose relating to either or both of the following:

the achievement of any or all of the policy objectives of this Division;

the transfer of one or more assets that were used in connection with the fulfilment of obligations imposed on the designated Telstra successor company by the section 14 contract known as the Telstra USO Performance Agreement.

For the purposes of this Subdivision, a transfer of an asset occurs if:

the legal ownership of the asset is transferred in whole or in part; or

the beneficial ownership of the asset is transferred in whole or in part (whether by way of a declaration of trust or in any other way); or

if the asset is the subject of a lease—the lease is transferred.

(1) For the purposes of this Subdivision, authorised officer means an SES employee, or an acting SES employee, who holds, or performs the duties of, a position designated under subsection (2).

Note: The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.

The Minister may, by notifiable instrument, designate one or more specified positions in the Department for the purposes of subsection (1).

Within 7 days after a designated Telstra successor company enters into:

a relevant contract; or

a variation of a relevant contract;

the company must give:

an authorised officer; or

if there is no authorised officer—the Minister;

a written statement that sets out the following information:

the names of the parties to the contract or variation, as the case requires;

the nature of the contract or variation, as the case requires;

the date the contract or variation, as the case requires, was entered into;

the date when the contract or variation, as the case requires, came, or is to come, into effect;

if the contract or variation (as the case requires) deals with the transfer of an asset—the name of the transferee;

such other information (if any) relating to the contract or variation, as the case requires, as is specified under subsection (2).

The Minister may, by legislative instrument, specify information for the purposes of paragraph (1)(j).

Civil penalty

Subsection (1) is a civil penalty provision.

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

If:

a designated Telstra successor company proposes to enter into a relevant contract; and

the contract is to be entered into for a purpose relating to the transfer of one or more assets that were used in connection with the fulfilment of obligations imposed on the company by the section 14 contract known as the Telstra USO Performance Agreement;

the company must, at least 30 days before entering into the contract, give:

an authorised officer; or

if there is no authorised officer—the Minister;

a written statement that sets out the following information:

the names of the parties to the contract;

the nature of the contract;

the date the contract is to be entered into;

the date when the contract is to come into effect;

the name of the transferee of the assets;

such other information (if any) relating to the contract as is specified under subsection (2).

The Minister may, by legislative instrument, specify information for the purposes of paragraph (1)(j).

Subsection (1) is a civil penalty provision.

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

Requirement to give copy of proposed contract or variation

If a designated Telstra successor company proposes to enter into:

a relevant contract; or

a variation of a relevant contract;

the Minister or an authorised officer may, by written notice given to the company, require the company to:

give:

an authorised officer; or

if there is no authorised officer—the Minister;

a copy of the proposed contract or variation, as the case requires; and

do so within 7 days after the notice is given.

Requirement to give copy of contract or variation

If a designated Telstra successor company has entered into:

a relevant contract; or

a variation of a relevant contract;

the Minister or an authorised officer may, by written notice given to the company, require the company to:

give:

an authorised officer; or

if there is no authorised officer—the Minister;

a copy of the contract or variation, as the case requires; and

do so within 7 days after the notice is given.

Compliance with requirement

A designated Telstra successor company must comply with a requirement under subsection (1) or (2).

Civil penalty

Subsection (3) is a civil penalty provision.

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

The Minister may, by legislative instrument, make rules that impose the following requirements to be complied with by a designated Telstra successor company that has entered into a relevant contract in a specified class of relevant contracts:

the requirement that, within 7 days after such a contract is entered into, the company must give:

an authorised officer; or

if there is no authorised officer—the Minister;

a copy of the contract;

the requirement that, within 7 days after the company enters into a variation of such a contract, the company must give:

an authorised officer; or

if there is no authorised officer—the Minister;

a copy of the variation.

Compliance with requirement

A designated Telstra successor company must comply with a requirement imposed by rules made under subsection (1).

Civil penalty

Subsection (2) is a civil penalty provision.

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

Scope

This section applies to a carriage service provider if the Secretary believes on reasonable grounds that the carriage service provider has information or a document that is relevant to the achievement of the policy objective set out in paragraph 13(1)(e).

Requirement

The Secretary may, by written notice given to the carriage service provider, require the carriage service provider:

to give to the Secretary, within the period and in the manner and form specified in the notice, any such information; or

to produce to the Secretary, within the period and in the manner specified in the notice, any such documents; or

to make copies of any such documents and to produce to the Secretary, within the period and in the manner specified in the notice, those copies.

A period specified under subsection (2) must not be shorter than 14 days after the notice is given.

Compliance

A carriage service provider must comply with a requirement under subsection (2) to the extent that the carriage service provider is capable of doing so.

A carriage service provider commits an offence if:

the Secretary has given a notice to the carriage service provider under subsection (2); and

the carriage service provider engages in conduct; and

the carriage service provider’s conduct contravenes a requirement in the notice.

Penalty for contravention of this subsection: 50 penalty units.

A carriage service provider is entitled to be paid by the Commonwealth reasonable compensation for complying with a requirement covered by paragraph 23(2)(c).

The Secretary may:

inspect a document or copy produced under subsection 23(2); and

make and retain copies of, or take and retain extracts from, such a document.

The Secretary may retain possession of a copy of a document produced in accordance with a requirement covered by paragraph 23(2)(c).

The Secretary may take, and retain for as long as is necessary, possession of a document produced under subsection 23(2).

The carriage service provider otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the Secretary to be a true copy.

The certified copy must be received in all courts and tribunals as evidence as if it were the original.

Until a certified copy is supplied, the Secretary must, at such times and places as the Secretary thinks appropriate, permit the carriage service provider otherwise entitled to possession of the document, or a person authorised by that carriage service provider, to inspect and make copies of, or take extracts from, the document.

This Subdivision does not affect the law relating to legal professional privilege.

Scope

This section applies to information that:

was obtained by the Secretary under section 23; or

is contained in a document, or a copy of a document, that was produced to the Secretary under section 23.

Disclosure

The Secretary may disclose the information to a carriage service provider if the disclosure is for a purpose relating to the achievement of the policy objective set out in paragraph 13(1)(e).

Scope

This section applies to a carriage service provider if:

(a) the Secretary believes on reasonable grounds that, if the carriage service provider were to consent to another person (the third person) contacting:

the carriage service provider’s customers; or

customers included in a particular class of the carriage service provider’s customers;

for a purpose relating to the achievement of the policy objective set out in paragraph 13(1)(e), that consent would be likely to facilitate the achievement of the policy objective set out in paragraph 13(1)(e); and

the carriage service provider is not a contractor in relation to a section 14 contract entered into for a purpose relating to the achievement of the policy objective set out in paragraph 13(1)(e); and

the carriage service provider is not a grant recipient in relation to a section 14 grant made for a purpose relating to the achievement of the policy objective set out in paragraph 13(1)(e).

Requirement

The Secretary may, by written notice given to the carriage service provider, require the carriage service provider:

to consent to the third person contacting:

if subparagraph (1)(a)(i) applies—the carriage service provider’s customers; or

if subparagraph (1)(a)(ii) applies—customers included in a specified class of the carriage service provider’s customers;

for a purpose relating to the achievement of the policy objective set out in paragraph 13(1)(e); and

to do so within the period and in the manner specified in the notice.

A period specified under subsection (2) must not be shorter than 14 days after the notice is given.

Compliance

A carriage service provider must comply with a requirement under subsection (2).

A carriage service provider commits an offence if:

the Secretary has given a notice to the carriage service provider under subsection (2); and

the carriage service provider engages in conduct; and

the carriage service provider’s conduct contravenes a requirement in the notice.

Penalty for contravention of this subsection: 50 penalty units.

Subdivision B—Access to information or documents held by an NBN corporation

Scope

This section applies to an NBN corporation if the Minister believes on reasonable grounds that the NBN corporation has information or a document that is relevant to the exercise of any of the Secretary’s powers under Division 3.

Requirement

The Minister may, by written notice given to the NBN corporation, require the NBN corporation:

to give to the Secretary, within the period and in the manner and form specified in the notice, any such information; or

to produce to the Secretary, within the period and in the manner specified in the notice, any such documents; or

to make copies of any such documents and to produce to the Secretary, within the period and in the manner specified in the notice, those copies.

A period specified under subsection (2) must not be shorter than 14 days after the notice is given.

Compliance

An NBN corporation must comply with a requirement under subsection (2) to the extent that the NBN corporation is capable of doing so.

An NBN corporation commits an offence if:

the Minister has given a notice to the NBN corporation under subsection (2); and

the NBN corporation engages in conduct; and

the NBN corporation’s conduct contravenes a requirement in the notice.

Penalty for contravention of this subsection: 50 penalty units.

An NBN corporation is entitled to be paid by the Commonwealth reasonable compensation for complying with a requirement covered by paragraph 30(2)(c).

The Secretary may:

inspect a document or copy produced under subsection 30(2); and

make and retain copies of, or take and retain extracts from, such a document.

The Secretary may retain possession of a copy of a document produced in accordance with a requirement covered by paragraph 30(2)(c).

The Secretary may take, and retain for as long as is necessary, possession of a document produced under subsection 30(2).

The NBN corporation otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the Secretary to be a true copy.

The certified copy must be received in all courts and tribunals as evidence as if it were the original.

Until a certified copy is supplied, the Secretary must, at such times and places as the Secretary thinks appropriate, permit the NBN corporation otherwise entitled to possession of the document, or a person authorised by that NBN corporation, to inspect and make copies of, or take extracts from, the document.

This Subdivision does not affect the law relating to legal professional privilege.

Without limiting its effect apart from this section, this Subdivision also has effect as provided by this section.

Corporations power

This Subdivision also has the effect it would have if:

subsection (3) had not been enacted; and

each reference in this Subdivision to an NBN corporation were, by express provision, confined to an NBN corporation that is a constitutional corporation.

Communications power

This Subdivision also has the effect it would have if:

subsection (2) had not been enacted; and

each reference in this Subdivision to an NBN corporation were, by express provision, confined to an NBN corporation that:

carries on; or

proposes to carry on; or

has the object of carrying on;

a business that consists of or includes the supply of a carriage service.

Subdivision C—Disclosure of information to certain bodies or persons

The Secretary may disclose information to any of the following bodies or persons:

the ACMA;

the ACCC;

the Telecommunications Industry Ombudsman;

the Regional Telecommunications Independent Review Committee;

if:

the information was obtained under, or for the purposes of, this Division; and

the Secretary is satisfied that the information will enable or assist the body or person to perform or exercise any of the functions or powers of the body or person.

The Secretary may, by writing, impose conditions to be complied with in relation to information disclosed under subsection (1).

An instrument made under subsection (2) that imposes conditions relating to one particular disclosure identified in the instrument is not a legislative instrument.

Otherwise, an instrument made under subsection (2) is a legislative instrument.

The Public Interest Telecommunications Services Special Account is established by this section.

(2) The Account is a Special Account for the purposes of the Public Governance, Performance and Accountability Act 2013.

The Account is to be administered by the Secretary.

There must be credited to the Public Interest Telecommunications Services Special Account:

an amount equal to an amount paid to the Commonwealth by way of levy; and

an amount equal to an amount paid to the Commonwealth under a section 14 contract; and

an amount equal to an amount paid to the Commonwealth by way of damages or compensation for a breach of a section 14 contract; and

an amount equal to an amount paid to the Commonwealth by way of the repayment of the whole or a part of a section 14 grant.

Note: An Appropriation Act may contain a provision to the effect that, if any of the purposes of a special account is a purpose that is covered by an item in the Appropriation Act (whether or not the item expressly refers to the special account), then amounts may be debited against the appropriation for that item and credited to that special account.

The purposes of Public Interest Telecommunications Services Special Account are as follows:

to pay amounts payable by the Commonwealth under a contract entered into under section 14;

to make grants under section 14;

to pay the eligible administrative costs of the Commonwealth;

to make distributions in accordance with section 40;

to pay refunds under section 62.

Note: See Public Governance, Performance and Accountability Act 2013 (which deals with special accounts).section 80 of the

The Secretary, on behalf of the Commonwealth, may distribute to persons who are or were participating persons any balance standing to the credit of the Public Interest Telecommunications Services Special Account that remains after all payments payable by the Commonwealth, in respect of debits from the Account for an eligible levy period, have been paid.

The Minister may, by legislative instrument, determine rules for making those distributions.

The Secretary must comply with any rules determined under subsection (2).

General rule

(1) For the purposes of this Act, the overall levy target amount for an eligible levy period (other than the first eligible levy period) is the sum of:

the total amount paid by the Secretary on behalf of the Commonwealth during the period under contracts made under section 14; and

the total amount paid by the Secretary on behalf of the Commonwealth during the period by way of grants made under section 14; and

the total amount of the eligible administrative costs of the Commonwealth incurred during the period;

reduced by the total of the amounts appropriated by Appropriation Acts for the purposes of:

making payments under section 14 contracts during the period; and

making section 14 grants during the period; and

the eligible administrative costs of the Commonwealth in relation to the period.

Note 1: The first eligible levy period is the 2014-15 financial year (see section 5).

Note 2: See also subsections 61(3) and (4) (set-off).

First eligible levy period

(2) For the purposes of this Act, the overall levy target amount for the first eligible levy period is the amount that would have been the overall levy target amount (within the meaning of section 88 of the repealed Telecommunications Universal Service Management Agency Act 2012) for the eligible levy period (within the meaning of that section) that began on 1 July 2014 if the 2014-15 financial year were treated as an eligible levy period for the purposes of that section.

Overall levy target amount

After the end of an eligible levy period, the Secretary must prepare a written statement setting out the overall levy target amount for the period.

Components of overall levy target amount—general rule

After the end of an eligible levy period (other than the first eligible levy period), the Secretary must prepare a written statement setting out the total amount paid by the Secretary on behalf of the Commonwealth during the period under contracts made under section 14.

Note 1: The first eligible levy period is the 2014-15 financial year (see section 5).

Note 2: See also subsection 61(3) (set-off).

After the end of an eligible levy period (other than the first eligible levy period), the Secretary must prepare a written statement setting out the total amount paid by the Secretary on behalf of the Commonwealth during the period by way of grants made under section 14.

Note 1: The first eligible levy period is the 2014-15 financial year (see section 5).

Note 2: See also subsection 61(4) (set-off).

After the end of an eligible levy period (other than the first eligible levy period), the Secretary must prepare a written statement setting out:

the total amount of the eligible administrative costs of the Commonwealth incurred during the period; and

a breakdown of the amount referred to in paragraph (a) into categories specified in the regulations.

Note: The first eligible levy period is the 2014-15 financial year (see section 5).

Components of overall levy target amount—first eligible levy period

(5) After the end of the first eligible levy period, the Secretary must prepare a written statement setting out the total amount paid by the Telecommunications Universal Service Management Agency on behalf of the Commonwealth during the period under contracts made under Telecommunications Universal Service Management Agency Act 2012.section 13 of the repealed

Note: The first eligible levy period is the 2014-15 financial year (see section 5).

(6) After the end of the first eligible levy period, the Secretary must prepare a written statement setting out the total amount paid by the Telecommunications Universal Service Management Agency on behalf of the Commonwealth during the period by way of grants made under Telecommunications Universal Service Management Agency Act 2012.section 13 of the repealed

Note: The first eligible levy period is the 2014-15 financial year (see section 5).

After the end of the first eligible levy period, the Secretary must prepare a written statement setting out:

(a) the total amount of the Telecommunications Universal Service Management Agency’s administrative costs (within the meaning of the repealed Telecommunications Universal Service Management Agency Act 2012) incurred during the period; and

a breakdown of the amount referred to in paragraph (a) into categories specified in the regulations.

Note: The first eligible levy period is the 2014-15 financial year (see section 5).

Timing

The Secretary must take all reasonable steps to ensure that a statement under this section is prepared within 4 months after the end of the eligible levy period to which the statement relates.

Other matters

The Secretary must give a copy of a statement under this section to the ACMA.

As soon as practicable after the Secretary gives the ACMA a copy of a statement under this section, the ACMA must cause the copy to be published on the ACMA’s website.

A statement under this section is not a legislative instrument.

Subdivision B—Eligible revenue of participating persons

A participating person for an eligible revenue period (other than the first eligible revenue period) must:

give the ACMA a written return of the person’s eligible revenue for that period; and

do so within the period specified in an instrument in force under subsection (5).

The return must be in a form approved in writing by the ACMA.

The approved form may require verification, by a statutory declaration, of statements made in the return.

The return must set out:

the eligible revenue for the eligible revenue period of the participating person; and

details of how the eligible revenue was worked out; and

such other information (if any) as the approved form of return requires.

The ACMA may, by legislative instrument, specify a period for the purposes of paragraph (1)(b). The period must begin at or after the end of the eligible revenue period.

Note: See also section 69 (offence of failing to lodge eligible revenue return).

(1) For the purposes of this Act, a person is a participating person for an eligible revenue period if:

the person was a carrier at any time during the eligible revenue period; or

both:

the Minister makes a written determination that carriage service providers are participating persons for the eligible revenue period; and

the person was a carriage service provider at any time during the eligible revenue period; or

at any time during the eligible revenue period, the person was in a class of persons specified in the regulations.

(2) However, a person is not a participating person for an eligible revenue period if the person is of a kind, determined in writing by the Minister for the purposes of this subsection, to be exempt from this section.

A determination under subsection (1) or (2) is a legislative instrument.

General rule

(1) For the purposes of this Act, eligible revenue of a person for an eligible revenue period (other than the first eligible revenue period) is the amount ascertained in accordance with a written determination made by the ACMA for the purposes of this subsection.

Subsection (1) has effect subject to subsection (3).

(3) The eligible revenue of a participating person for an eligible revenue period (other than the first eligible revenue period):

(a) is taken to be zero if the person’s eligible revenue is less than the amount (the threshold amount) determined in writing by the Minister for the purposes of this subsection; or

in any other case—must be reduced by the threshold amount.

To avoid doubt, a determination under subsection (1) may, in providing how to work out the eligible revenue of a person, refer to revenue of other persons.

A determination under subsection (1) must not provide that:

an amount payable under a contract entered into under section 14; or

a grant under section 14;

is included in a person’s eligible revenue.

A determination under subsection (1) or (3) is a legislative instrument.

First eligible revenue period

(7) For the purposes of this Act, eligible revenue of a person for the first eligible revenue period is the person’s eligible revenue (within the meaning of the repealed Telecommunications Universal Service Management Agency Act 2012) for the eligible revenue period (within the meaning of that Act) that began on 1 July 2013.

Note: The first eligible revenue period is the 2013-14 financial year (see section 5).

The ACMA may make whatever inquiries it thinks necessary or desirable in order to determine whether or not a participating person’s eligible revenue return for an eligible revenue period correctly states the person’s eligible revenue for that period.

The ACMA must make a written assessment of each participating person’s eligible revenue for an eligible revenue period (other than the first eligible revenue period).

Note: The assessment may be included in the same document as any other assessment the ACMA makes under this Division (see section 55).

The assessment must be based on:

the person’s eligible revenue return; and

the information and documents obtained by the ACMA because of its inquiries into the correctness of the return; and

any other information or documents that the ACMA has and that it thinks relevant to making the assessment.

Subsection (2) has effect subject to section 48.

The ACMA must give a copy of an assessment of a person’s eligible revenue to the person concerned.

The assessment is not a legislative instrument.

If a participating person fails to give the ACMA an eligible revenue return for an eligible revenue period (other than the first eligible revenue period), the ACMA may:

estimate the person’s eligible revenue for that period; and

make a written assessment under section 47 of the person’s eligible revenue for that period based on that estimate.

The ACMA must give the person at least 14 days’ written notice of:

the amount of eligible revenue proposed to be assessed; and

the ACMA’s proposal to make the assessment based on the estimate.

However, the ACMA is not required to:

give the person a notice under subsection (2); or

make a written assessment under section 47 of the person’s eligible revenue for the period based on the estimate;

if the estimate is nil.

The ACMA must not make an assessment based on an estimate after receiving an eligible revenue return for the period from the person concerned.

However, if the ACMA has made an assessment based on the estimate, the ACMA is not required to change it if an eligible revenue return is later given to the ACMA.

The rule in subsection (2) applies if the ACMA has assessed the eligible revenue of participating persons for an eligible revenue period.

For the eligible levy period starting immediately after the eligible revenue period, the ACMA must work out a levy contribution factor for each of those participating persons.

Note: The levy contribution factor is used to work out the levy amount of a participating person (see section 50).

(3) For the purposes of this Act, the levy contribution factor of a person for an eligible levy period is the amount worked out using the following formula:

where:

individual eligible revenue means the assessed eligible revenue of the person for the eligible revenue period ending immediately before the eligible levy period.

total eligible revenue means the total assessed eligible revenue, for the eligible revenue period ending immediately before the eligible levy period, of all the participating persons for the eligible revenue period.

Subdivision C—Levy amount

(1) If a person is a participating person for an eligible revenue period (the relevant eligible revenue period), then, for the purposes of this Act, the levy amount of the person for the eligible levy period starting immediately after the relevant eligible revenue period is the amount worked out using the formula:

where:

levy contribution factor means the person’s levy contribution factor for the eligible levy period worked out under section 49.

overall levy target amount means the overall levy target amount for the eligible levy period worked out under section 41.

Note: The Telecommunications (Industry Levy) Act 2012 imposes levy on the levy amount.

The Minister may, by legislative instrument, modify the formula in subsection (1).

For each eligible levy period, the ACMA must make a written assessment setting out the matters in subsection (2).

For each participating person for the eligible revenue period ending immediately before the eligible levy period, the assessment must set out:

the person’s levy amount under section 50 for the eligible levy period; and

the levy payable by the person on that amount.

Note: Section 56 sets out when the levy is payable.

The ACMA must act expeditiously in preparing its assessment. However, a failure to comply with this subsection does not affect the validity of the assessment.

The assessment is not a legislative instrument.

As soon as practicable after making an assessment under section 51, the ACMA must:

publish a copy of the assessment on the ACMA’s website; and

give a copy of the assessment to the participating person to whom the assessment relates.

Subdivision D—Assessments

The ACMA may vary an assessment made under this Division by making such alterations and additions as it thinks necessary, even if levy has been paid in respect of an assessment.

Unless the contrary intention appears, an amended assessment is taken, for the purposes of this Division, to be an assessment under section 47 or 51, as the case may be.

Despite anything in this Division, the ACMA may, for the purposes of making an assessment under this Division, partly or completely accept a statement in an eligible revenue return.

The ACMA may include in the same document more than one assessment made under this Division.

Subdivision E—Collection and recovery of levy

Levy assessed under section 51 becomes due and payable on:

the 28th day; or

such later day as is determined in writing by the ACMA;

after the ACMA gives a copy of the assessment to the participating person to whom the assessment relates.

A copy of a determination under paragraph (1)(b) must be published on the ACMA’s website.

A determination under paragraph (1)(b) is not a legislative instrument.

Levy:

is a debt due to the ACMA on behalf of the Commonwealth; and

may be recovered by the ACMA, on behalf of the Commonwealth, in a court of competent jurisdiction.

The validity of an assessment under this Division is not affected by a contravention of this Division.

Scope

This section applies if a document that purports to be a copy of an assessment under section 51 is produced in a proceeding.

Evidence

Except so far as the contrary is established, it must be presumed:

that the document is a copy of the assessment; and

that the ACMA has duly made the assessment; and

that the amounts and other particulars set out in the assessment are correct.

In any proceeding, the onus of establishing that an assessment under section 51 is incorrect is on the party making that assertion.

If:

(a) an amount of levy (the first amount) is payable by a person; and

(b) an amount (the second amount) is payable by the Commonwealth to the person:

under a section 14 contract; or

as a section 14 grant;

the ACMA may, on behalf of the Commonwealth, set off the whole or a part of the first amount against the whole or a part of the second amount.

Before doing so, the ACMA must consult the Secretary.

Overall levy target amount

For the purposes of sections 41 and 42, if the second amount is payable by the Commonwealth to the person under a the Secretary, on behalf of the Commonwealth, under a section 14 contract.section 14 contract, the amount set off is taken to have been paid by

For the purposes of sections 41 and 42, if the second amount is payable by the Commonwealth to the person as a the Secretary, on behalf of the Commonwealth, by way of a section 14 grant.section 14 grant, the amount set off is taken to have been paid by

Grant taken to be payable by the Commonwealth

For the purposes of this section, if a person is eligible to receive a section 14 grant, the amount of the grant is taken to be an amount payable by the Commonwealth to the person.

If there is an overpayment of levy, the overpayment is to be refunded by the Secretary on behalf of the Commonwealth.

Note: For the appropriation for the refund, see Public Governance, Performance and Accountability Act 2013.section 77 of the

This section cancels the effect of a provision of another Act that would have the effect of exempting a person from liability to pay levy.

(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 levy imposed by the Telecommunications (Industry Levy) Act 2012.

The Commonwealth is not liable to pay levy.

(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.

The Minister may, by written determination, require a person who has a liability to pay levy, or an anticipated liability to pay levy, to obtain, in accordance with the determination, performance bonds or guarantees in respect of the person’s liability or anticipated liability.

The person must comply with the determination.

A determination under this section is a legislative instrument.

In this section:

performance bond has the meaning given by the determination.

Subdivision F—Disclosure of information

A person may request the ACMA to make available to the person:

specified information or documents on the basis of which the ACMA may make, or has made, its assessment under section 51 for an eligible levy period; or

specified information about how the ACMA may work out, or has worked out, the matters mentioned in paragraphs 51(2)(a) and (b).

The ACMA must comply with a request as provided in section 68. This subsection has effect subject to subsection (3).

The ACMA must not make available under this section:

information (other than information prescribed for the purposes of this paragraph):

that was obtained from, or relates to, a person who is a participating person for an eligible revenue period; and

the making available of which under this section can reasonably be expected to cause substantial damage to the person’s commercial or other interests; or

information prescribed for the purposes of this paragraph; or

so much of a document as sets out information of a kind referred to in paragraph (a) or (b).

A person who is a participating person for an eligible revenue period may request the ACMA to make available to the person specified information or documents of a kind referred to in subsection 66(1) that subsection 66(3) prevents the ACMA from making available to the person under section 66.

The ACMA must comply with a request as provided for in section 68. This subsection has effect subject to subsection (3) of this section.

(3) The ACMA must not, under this section, make available to a person (the first person) information, or so much of a document as sets out information:

(a) that was obtained from, or relates to, another person (the second person) who is a participating person for an eligible revenue period; and

the making available of which to the first person can reasonably be expected to cause substantial damage to the second person’s commercial or other interests;

unless the ACMA is satisfied:

that the information could be obtained by the first person lawfully, and without the second person’s consent, from a source other than the ACMA; or

that:

the first person has made the request in good faith for the sole purpose of informing itself about the basis on which, or the methods by which, the ACMA made the assessment concerned; and

having regard to the policy objectives in section 13, the first person’s interest in being able to examine that basis and those methods in order to see how its liability to pay levy has been assessed outweighs the second person’s interest in avoiding the damage referred to in paragraph (b) of this subsection.

In determining the question referred to in paragraph (3)(b), the ACMA must have regard to:

whether any undertakings have been given under subsection (5) and, if so, the nature of those undertakings; and

such other matters (if any) as the ACMA considers relevant.

For the purposes of this section, a person may give the ACMA a written undertaking that, if specified information, or the whole or a part of a specified document, is made available to the person under this section, the person will not:

disclose the information, or the contents of the document, except to one or more specified persons; or

use the information, or the document, except for the purpose of informing itself about the basis on which, or the methods by which, the ACMA made the assessment concerned.

Note: Information, documents or persons may be specified by name, by inclusion in a class or in any other way.

If a person gives an undertaking under subsection (5), the person must comply with the undertaking.

The ACMA may comply with a request by a person under section 66 or 67 by:

communicating information to the person in writing or in some other form; or

making documents available for inspection by the person or by an employee, agent or professional adviser of the person; or

giving to the person copies of, extracts from, or summaries of, documents.

In this section:

document includes a part of a document.

Subdivision G—Other matters

A person commits an offence if:

the person is subject to a requirement under section 43; and

the person omits to do an act; and

the omission breaches the requirement.

Penalty: 50 penalty units.

An offence against subsection (1) is an offence of strict liability.

Note: For strict liability, see Criminal Code.section 6.1 of the

A person who contravenes subsection (1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.

(1) If an amount of levy that is payable by a person remains unpaid after the day on which it becomes due and payable, the person is liable to pay a penalty (late payment penalty) on the unpaid amount for each day until all of the levy has been paid.

The late payment penalty rate is 20% per year, or such lower rate as the ACMA determines in writing for the purposes of this subsection.

The ACMA may remit the whole or part of a late payment penalty that a person is liable to pay under subsection (2).

The late payment penalty for a day is due and payable at the end of that day.

Late payment penalty:

is a debt due to the ACMA on behalf of the Commonwealth; and

may be recovered by the ACMA, on behalf of the Commonwealth, in a court of competent jurisdiction.

If the amount of the late payment penalty for a day is not an amount of whole dollars, the late payment penalty is rounded to the nearest dollar (rounding 50 cents upwards).

A determination under subsection (2) is a legislative instrument.

The Secretary is to maintain a register, to be known as the Register of Public Interest Telecommunications Contracts, in which the Secretary includes the following for each section 14 contract that is in force:

the name of the contractor;

the duration of the contract;

a summary of the actions to be undertaken by the contractor under the contract;

a description of the services, facilities or customer equipment to be supplied by the contractor in accordance with the contract;

one of the following:

the total amount paid or to be paid by the Commonwealth under the contract;

an estimate of the total amount paid or to be paid by the Commonwealth under the contract;

the method of working out the total amount paid or to be paid by the Commonwealth under the contract.

The Register of Public Interest Telecommunications Contracts is to be maintained by electronic means.

The Register of Public Interest Telecommunications Contracts is to be made available for inspection on the Department’s website.

The Register of Public Interest Telecommunications Contracts is not a legislative instrument.

The Secretary is to maintain a register, to be known as the Register of Public Interest Telecommunications Grants, in which the Secretary includes the following for each section 14 grant that has been made:

the name of the grant recipient;

a summary of the terms and conditions of the grant that require action to be undertaken by the grant recipient;

a description of the services, facilities or customer equipment to be supplied by the grant recipient in accordance with the terms and conditions of the grant;

either:

the amount of the grant; or

the method for working out the amount of the grant.

The Register of Public Interest Telecommunications Grants is to be maintained by electronic means.

The Register of Public Interest Telecommunications Grants is to be made available for inspection on the Department’s website.

The Register of Public Interest Telecommunications Grants is not a legislative instrument.

The Minister may, by writing, delegate any or all of his or her functions or powers under this Part to a member of the staff of the ACMA who is:

an SES employee; or

an acting SES employee.

Note: The expressions SES employee and acting SES employee are defined in the Acts Interpretation Act 1901.

A delegate must comply with any written directions of the Minister.

The Secretary may, by writing, delegate any or all of his or her functions or powers under this Part to an SES employee, or acting SES employee, in the Department.

Note: The expressions SES employee and acting SES employee are defined in the Acts Interpretation Act 1901.

In exercising powers under a delegation, the delegate must comply with any directions of the Secretary.

• The Secretary is responsible for entering into contracts, and making grants, relating to:

fixed wireless broadband; and

satellite broadband.

• The ACMA will assess and collect the charge imposed on carriers by the Telecommunications (Regional Broadband Scheme) Charge Act 2020.

• The proceeds of the charge will be used to:

pay contractors and grant recipients; and

offset designated administrative costs.

In this Part:

administrative cost instalment of charge has the meaning given by subsection 102D(5).

amount includes a nil amount.

annual administrative cost amount, for a financial year, has the same meaning as in the Telecommunications (Regional Broadband Scheme) Charge Act 2020.

annual base amount, for a financial year, has the same meaning as in the Telecommunications (Regional Broadband Scheme) Charge Act 2020.

annual chargeable premises amount, for a financial year, has the same meaning as in the Telecommunications (Regional Broadband Scheme) Charge Act 2020.

associate has the same meaning as in Part 8 of the Telecommunications Act 1997.

base instalment of charge has the meaning given by subsection 102D(5).

broadcast television stream means a continuous stream of program material that is identical to the program material provided by: a licensed television broadcasting service; or a national television broadcasting service.

a licensed television broadcasting service; or

a national television broadcasting service.

charge means charge imposed by the Telecommunications (Regional Broadband Scheme) Charge Act 2020.

chargeable premises associated with a local access line of a person has the meaning given by section 93.

charge offset certificate means a certificate issued under section 98.

contractor has the meaning given by section 80.

declared service has the same meaning as in Part XIC of the Competition and Consumer Act 2010.

designated administrative costs means:

remuneration, and other employment-related costs and expenses, incurred in respect of APS employees whose duties relate to the performance of the ACMA’s functions, or the exercise of the ACMA’s powers, under this Part; or

any other costs, expenses and other obligations incurred by the ACMA in connection with the performance of the ACMA’s functions, or the exercise of the ACMA’s powers, under this Part; or

(c) remuneration, and other employment-related costs and expenses, incurred in respect of APS employees whose duties relate to the performance of the ACCC’s functions, or the exercise of the ACCC’s powers, under this Part or the Telecommunications (Regional Broadband Scheme) Charge Act 2020; or

(d) any other costs, expenses and other obligations incurred by the ACCC in connection with the performance of the ACCC’s functions, or the exercise of the ACCC’s powers, under this Part or the Telecommunications (Regional Broadband Scheme) Charge Act 2020;

but does not include:

amounts incurred under contracts made under section 80; and

amounts incurred by way of grants made under section 80.

designated broadband service has the meaning given by section 76AA.

designated start date means 1 January 2021.

eligible financial year has the meaning given by section 79.

eligible funding recipient has the meaning given by section 78.

eligible service has the same meaning as in section 152AL of the Competition and Consumer Act 2010.

exempt line has the meaning given by section 96.

exempt premises has the meaning given by section 95.

financial year has a meaning affected by section 78A.

fixed wireless broadband service has the meaning given by section 76AB.

grant recipient has the meaning given by section 80.

instalment of charge: see subsection 102D(5).

licensed television broadcasting service means a broadcasting service that: is provided in accordance with: (i) a licence allocated by the ACMA under the Broadcasting Services Act 1992; or (ii) a class licence determined by the ACMA under the Broadcasting Services Act 1992; and provides television programs.

is provided in accordance with:

(i) a licence allocated by the ACMA under the Broadcasting Services Act 1992; or

(ii) a class licence determined by the ACMA under the Broadcasting Services Act 1992; and

provides television programs.

local access line has the meaning given by section 76A.

month means calendar month.

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 television broadcasting service means a broadcasting service that: (a) is a national broadcasting service within the meaning of the Broadcasting Services Act 1992; and provides television programs.

(a) is a national broadcasting service within the meaning of the Broadcasting Services Act 1992; and

provides television programs.

NBN Co has the same meaning as in the National Broadband Network Companies Act 2011.

nominal funding entitlement of a person for a financial year means the amount specified in a nominal funding entitlement certificate that: is held by the person; and relates to the financial year.

is held by the person; and

relates to the financial year.

nominal funding entitlement certificate means a certificate issued under section 86.

potentially chargeable premises has the meaning given by section 94.

potentially concessional premises has the meaning given by section 96A.

premises has a meaning affected by section 79A.

recently connected greenfield premises, in relation to a person for a month, has the meaning given by section 96B.

Regional Broadband Scheme Special Account means the Regional Broadband Scheme Special Account established by section 89.

residential customer has the same meaning as in Part 8 of the Telecommunications Act 1997.

satellite broadband service has the meaning given by section 77.

small business customer means:

Note: See also subsection 100(5).

Note: See also subsection 100(11).

(a) a customer who is a small business employer (within the meaning of the Fair Work Act 2009); or

a customer who:

carries on a business; and

does not have any employees.

For the purposes of paragraph (a) of this definition, it is to be assumed that each reference in Fair Work Act 2009 to a national system employer were a reference to an employer (within the ordinary meaning of that expression).section 23 of the

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 to particular premises using a line.

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 to particular premises using a line.

Note: The line does not need to be physically connected to the premises. This is because using has an extended meaning—see subsection 5(1) of this Act and section 24 of the Telecommunications Act 1997 (when read together with section 18A of the Acts Interpretation Act 1901).

(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 (4).

(4) For the purposes of this Part, if a line in a multi-unit building is used to supply a carriage service to a unit in the building, the line is taken to be a local access line.

(5) 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 of the Telecommunications Act 1997 for the purposes of sections 20, 21 and 30 of that Act.

(6) For the purposes of this section, local access network has the meaning generally accepted within the telecommunications industry.

(1) For the purposes of this Part, designated broadband service means a carriage service that is supplied using a local access line, where:

the carriage service enables end-users to download communications; and

the local access line is part of the infrastructure of a telecommunications network in Australia; and

the local access line is technically capable of being used to supply a superfast carriage service;

but does not include:

a carriage service that can only be used by an end-user to make and receive voice calls; or

a carriage service that can only be used by an end-user to view one or more broadcast television streams; or

a carriage service that belongs to a class determined under subsection (2).

Note: See also section 102ZH.

The Minister may, by legislative instrument, determine one or more classes of carriage service for the purposes of paragraph (1)(f).

Note: See also section 102ZFB (disallowance of determinations).

(1) For the purposes of this Part, fixed wireless broadband service means a carriage service, where:

the carriage service is supplied using a fixed wireless technology platform; and

the carriage service is marketed to customers, or potential customers, as a fixed wireless service; and

the carriage service enables end-users to download communications; and

the peak download transmission speed of the carriage service is at least 25 megabits per second; and

the peak upload transmission speed of the carriage service is at least 5 megabits per second; and

the carriage service is not a public mobile telecommunications service; and

the carriage service is a listed carriage service; and

the conditions (if any) determined under subsection (2) are satisfied.

The Minister may, by legislative instrument, determine one or more conditions for the purposes of paragraph (1)(h).

(3) For the purposes of this section, fixed wireless technology platform has the meaning generally accepted within the telecommunications industry.

(1) For the purposes of this Part, satellite broadband service means a carriage service, where:

the carriage service is supplied using a satellite; and

the carriage service enables end-users to download communications; and

the peak download transmission speed of the carriage service is at least 25 megabits per second; and

the peak upload transmission speed of the carriage service is at least 5 megabits per second; and

the carriage service is not a public mobile telecommunications service; and

the carriage service is a listed carriage service; and

the conditions (if any) determined under subsection (2) are satisfied.

The Minister may, by legislative instrument, determine one or more conditions for the purposes of paragraph (1)(g).

(1) For the purposes of this Part, eligible funding recipient means a carrier that is:

an NBN corporation; or

determined under subsection (2).

The Minister may, by legislative instrument, determine one or more carriers for the purposes of paragraph (1)(b).

For the purposes of this Part (other than section 85), the 6-month period beginning on the designated start date is taken to be a financial year.

For the purposes of this Part, eligible financial year means:

the financial year beginning on the designated start date; or

a later financial year.

The Minister may, by legislative instrument, determine that, if a location satisfies one or more specified conditions, the location is taken to be premises for the purposes of this Part.

Note: See also section 102ZFB (disallowance of determinations).

The Minister may, by legislative instrument, determine that, if a location satisfies one or more specified conditions, the location is taken not to be premises for the purposes of this Part.

Note: See also section 102ZFB (disallowance of determinations).

A determination under subsection (1) or (2) must be of a legislative character.

The Secretary may, on behalf of the Commonwealth:

enter into a contract with; or

make a grant of financial assistance to;

an eligible funding recipient in relation to:

the connection of premises to a telecommunications network in order that a carriage service provider can provide:

fixed wireless broadband services to an end-user at the premises; or

satellite broadband services to an end-user at the premises; or

the supply of eligible services to a carriage service provider in order that the carriage service provider can provide:

fixed wireless broadband services to an end-user at premises; or

satellite broadband services to an end-user at premises; or

facilities that are used, or proposed to be used, to supply:

fixed wireless broadband services; or

satellite broadband services; or

a matter that is incidental or ancillary to a matter mentioned in paragraph (c), (d) or (e).

(2) For the purposes of this Part, if the Secretary enters into a contract with a person under subsection (1), the person is a contractor.

(3) For the purposes of this Part, if the Secretary makes a grant of financial assistance to a person under subsection (1), the person is a grant recipient.

A contract under subsection (1) may provide for the Commonwealth to reimburse, or partly reimburse, costs or expenses.

A grant under subsection (1) may be made by way of the reimbursement, or partial reimbursement, of costs or expenses.

Subsections (4) and (5) do not limit subsection (1).

(7) To avoid doubt, the use of the word “Regional” in:

(a) the short title of the Telecommunications (Regional Broadband Scheme) Charge Act 2020; or

the name of the Regional Broadband Scheme Special Account; or

section 92A;

does not limit subsection (1) of this section.

Scope

This section applies to a grant of financial assistance made under section 80.

Terms and conditions

The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the grant recipient.

An agreement under subsection (2) is to be entered into by the Secretary on behalf of the Commonwealth.

Subsection (2) does not apply to a condition under section 82.

Condition

It is a condition of:

a contract entered into under section 80; or

a grant made under section 80;

that the contractor or grant recipient, as the case may be, must comply with a determination under subsection (2) in so far as the determination applies to the contract or grant, as the case may be.

Determination

The Minister may, by legislative instrument, make a determination that sets out either or both of the following:

standards or rules that must be complied with by contractors or grant recipients, as the case may be, in relation to contracts entered into, or grants made, under section 80;

minimum benchmarks that must be met or exceeded by contractors or grant recipients, as the case may be, in relation to contracts entered into, or grants made, under section 80.

Application of determinations

A determination under subsection (2) may be of general application or may be limited as provided in the determination.

(4) Subsection (3) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

Other terms and conditions

This section does not, by implication, limit:

the terms and conditions that may be included in a contract entered into under section 80; or

the terms and conditions that may be included in an agreement under section 81.

Determination prevails over inconsistent contract or agreement

A term or condition:

of a contract entered into under section 80; or

set out in an agreement under section 81;

has no effect to the extent to which it is inconsistent with a determination under subsection (2) that applies to the contract or to the grant to which the agreement relates, as the case may be.

Despite subsection (6), a determination under subsection (2) has no effect to the extent to which it overrides a term or condition:

of a contract entered into under section 80; and

that gives the contractor a right to adjustment of payment for a change in the services, facilities or customer equipment to be supplied by the contractor in accordance with the contract.

Despite subsection (6), a determination under subsection (2) has no effect to the extent to which it specifies the price, or a method of ascertaining the price, for any of the services, facilities or customer equipment to be supplied by a contractor in accordance with a section 80 contract.

Despite subsection (6), a determination under subsection (2) has no effect to the extent to which it overrides a term or condition:

set out in an agreement under section 81; and

that gives the grant recipient a right to adjustment of payment for a change in the services, facilities or customer equipment to be supplied by the grant recipient in accordance with the terms and conditions of the grant.

Despite subsection (6), a determination under subsection (2) has no effect to the extent to which it specifies the price, or a method of ascertaining the price, for any of the services, facilities or customer equipment to be supplied by the grant recipient of a section 80 grant in accordance with the terms and conditions of the grant.

The Secretary, on behalf of the Commonwealth, has all the rights, responsibilities, duties and powers of the Commonwealth in relation to the Commonwealth’s capacity as:

a party to a contract entered into under section 80; or

the grantor of a grant made under section 80.

Without limiting subsection (1):

an amount payable by the Commonwealth under a the Secretary on behalf of the Commonwealth; andsection 80 contract is to be paid by

an amount payable to the Commonwealth under a the Secretary on behalf of the Commonwealth; andsection 80 contract is to be paid to

a the Secretary on behalf of the Commonwealth; andsection 80 grant is to be paid by

an amount payable to the Commonwealth by way of the repayment of the whole or a part of a the Secretary on behalf of the Commonwealth; andsection 80 grant is to be paid to

the Secretary may institute an action or proceeding on behalf of the Commonwealth in relation to a matter that concerns:

a section 80 contract; or

a section 80 grant.

The Secretary may exercise a power conferred on the Secretary by:

a contract entered into under section 80; or

an agreement under section 80.

The Secretary must monitor, and report each financial year to the Minister on, all significant matters relating to:

the performance of contractors; and

the performance of grant recipients.

A report under subsection (1) for a financial year must set out details of the following matters:

the adequacy of each contractor’s compliance, during that year, with the terms and conditions of a section 80 contract;

the adequacy of each grant recipient’s compliance, during that year, with the terms and conditions of a section 80 grant;

any notice of breach by a contractor of a section 80 contract, where the notice was given during that year;

any notice of breach by a grant recipient of a term or condition of a section 80 grant, where the notice was given during that year;

any remedial action taken by the Secretary during that year in response to a breach of a section 80 contract;

any remedial action taken by the Secretary during that year in response to a breach of the terms or conditions of a section 80 grant;

the result of any such remedial action.

Subsection (2) does not limit subsection (1).

(4) A report under subsection (1) for a financial year must be included in the annual report prepared by the Secretary and given to the Minister under Public Governance, Performance and Accountability Act 2013 for the financial year.section 46 of the

Funding financial year

(1) For the purposes of this section, funding financial year means:

the second eligible financial year; or

a later eligible financial year.

Issue of certificate

If a carrier is an eligible funding recipient at the start of 1 February in a funding financial year, the Secretary must:

issue to the carrier a certificate stating that a specified amount is the nominal funding entitlement of the carrier for the funding financial year; and

do so:

by the end of 31 March in the funding financial year; and

if the carrier has applied under subsection 98(1) for a charge offset certificate in relation to the previous financial year—before making a decision in response to the application.

(3) A certificate issued under subsection (1) is to be known as a nominal funding entitlement certificate.

Estimated balance of Regional Broadband Scheme Special Account

The following provisions have effect in relation to the issue of nominal funding entitlement certificates in relation to a funding financial year:

before issuing those certificates, the Secretary must make an estimate of so much of the balance of the Regional Broadband Scheme Special Account as at 7 May in the funding financial year as is attributable to amounts paid to the Commonwealth by way of:

so much of an amount of charge as is attributable to the annual base amount for a financial year; or

a base instalment of charge; and

in issuing those certificates, the Secretary must have regard to that estimate.

Payments to holder of certificate

If:

a carrier is an eligible funding recipient; and

the carrier is the holder of a nominal funding entitlement certificate in relation to a funding financial year;

the Secretary must take all reasonable steps to ensure that the total of:

the amounts that have, or will, become due and payable by the Commonwealth to the carrier under section 80 contracts during the funding financial year; and

the section 80 grants that were, or will be, made to the carrier during the funding financial year;

equals whichever of the following amounts is applicable:

if the carrier holds a charge offset certificate for the previous financial year—the nominal funding entitlement of the carrier for the funding financial year, reduced by the amount specified in the charge offset certificate;

if the carrier does not hold a charge offset certificate for the previous financial year—the nominal funding entitlement of the carrier for the funding financial year.

Copy of certificate to be given to the ACMA

If the Secretary issues a nominal funding entitlement certificate, the Secretary must give a copy of the certificate to the ACMA.

Publication of certificate

If the Secretary issues a nominal funding entitlement certificate, the Secretary must publish a copy of the certificate on the Department’s website.

Certificate cannot be transferred

A nominal funding entitlement certificate cannot be transferred.

The Minister may, by legislative instrument, make rules to be complied with by the Secretary in relation to the performance of the Secretary’s functions, or the exercise of the Secretary’s powers, under this Division.

The Secretary must comply with any rules in force under subsection (1).

This Division does not, by implication, limit the executive power of the Commonwealth.

The Regional Broadband Scheme Special Account is established by this section.

(2) The Account is a special account for the purposes of the Public Governance, Performance and Accountability Act 2013.

There must be credited to the Regional Broadband Scheme Special Account:

an amount equal to an amount paid to the Commonwealth by way of:

charge; or

an instalment of charge; and

an amount equal to an amount paid to the Commonwealth under a section 80 contract; and

an amount equal to an amount paid to the Commonwealth by way of damages or compensation for a breach of a section 80 contract; and

an amount equal to an amount paid to the Commonwealth by way of the repayment of the whole or a part of a section 80 grant.

Note: An Appropriation Act may contain a provision to the effect that, if any of the purposes of a special account is a purpose that is covered by an item in the Appropriation Act (whether or not the item expressly refers to the special account), then amounts may be debited against the appropriation for that item and credited to that special account.

If:

the whole or a part of the balance standing to the credit of the Regional Broadband Scheme Special Account at a particular time is attributable to charge paid by particular carriers; and

a determination is in force under subsection (2);

the Secretary may, on behalf of the Commonwealth, distribute to those carriers the whole or a part of the balance.

The Minister may, by legislative instrument, determine:

rules to be complied with by the Secretary in relation to the timing of distributions under subsection (1); and

a method to be applied by the Secretary in making distributions under subsection (1).

The Secretary must comply with a determination in force under subsection (2).

The purposes of the Regional Broadband Scheme Special Account are as follows:

to pay amounts payable by the Commonwealth under a contract entered into under section 80;

to make grants under section 80;

to make distributions in accordance with section 91;

to pay refunds under section 99 or 102J.

Note: See Public Governance, Performance and Accountability Act 2013 (which deals with special accounts).section 80 of the

The Secretary may, by notifiable instrument, direct that a specified amount is to be debited from the Regional Broadband Scheme Special Account.

The total of the amounts debited under subsection (1) must not exceed whichever is the lesser of the following:

the total of the relevant Budget amounts (see subsection (3));

the total of the amounts paid to the Commonwealth by way of:

so much of an amount of charge as is attributable to the annual administrative cost amount for a financial year; or

an administrative cost instalment of charge.

(3) For the purposes of this section, relevant Budget amounts are to be ascertained using the following table.

For the purposes of this Part, if:

a person is a carrier; and

particular premises are potentially chargeable premises in relation to the person for a month; and

the premises are not exempt premises in relation to the person for the month;

the premises are chargeable premises associated with a local access line of the person for the month.

If:

a person is a carrier; and

during a period comprising the whole or a part of a month in an eligible financial year, either:

the person owns a local access line, but no nominated carrier declaration is in force in relation to the line; or

under a nominated carrier declaration, the person is the nominated carrier in relation to a local access line; and

the line is not an exempt line in relation to the person for the month; and

during the whole or a part of the period, a carriage service provider (who may be the person) supplies a designated broadband service to particular premises in Australia using the line;

the premises are potentially chargeable premises in relation to the person for the month.

Note: The line does not need to be physically connected to the premises. This is because using has an extended meaning—see subsection 5(1) of this Act and section 24 of the Telecommunications Act 1997 (when read together with section 18A of the Acts Interpretation Act 1901).

If:

a person is a member of an associated group during the whole or a part of a month; and

the total number of potentially chargeable premises in relation to the members of the group for that month is less than 2,000; and

one or more of those potentially chargeable premises are potentially chargeable premises in relation to the person for that month;

each of the potentially chargeable premises mentioned in paragraph (c) are exempt premises in relation to the person for that month.

If:

a person is not a member of an associated group during the whole or a part of a month; and

the total number of potentially chargeable premises in relation to the person for that month is less than 2,000;

each of those potentially chargeable premises are exempt premises in relation to the person for that month.

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.

For the purposes of subsection (3), the question of whether a person is in a position to exercise control of:

a local access line; or

a telecommunications network;

is to be determined in the same manner in which that question is determined for the purposes of Part 8 of the Telecommunications Act 1997.

(5) For the purposes of subsection (3), the question of whether a person has one or more associates is to be determined in the same manner in which that question is determined for the purposes of Part 8 of the Telecommunications Act 1997.

Designated Telstra successor company

If:

a person is a carrier; and

during a period comprising the whole or a part of a month in an eligible financial year, either:

the person owns a local access line, but there is no nominated carrier declaration in force in relation to the line; or

under a nominated carrier declaration, the person is the nominated carrier in relation to a local access line; and

the line is not owned by an NBN corporation at any time during that month; and

the line is not used by an NBN corporation to supply a declared service at any time during that month; and

during the whole of that month, there was in force a legally enforceable agreement that satisfies the following conditions:

the agreement provides for the transfer of ownership or control of the line to an NBN corporation;

(ii) the agreement is covered by a determination made under subsection 577BA(9) of the Telecommunications Act 1997;

the agreement is not specified in an instrument under subsection (2);

the line is an exempt line in relation to the person for that month.

The Minister may, by legislative instrument, specify one or more agreements for the purposes of subparagraph (1)(e)(iii).

Optus

If:

a person is a carrier; and

during a period comprising the whole or a part of a month in an eligible financial year, either:

the person owns a local access line, but there is no nominated carrier declaration in force in relation to the line; or

under a nominated carrier declaration, the person is the nominated carrier in relation to a local access line; and

the line is not owned by an NBN corporation at any time during that month; and

the line is not used by an NBN corporation to supply a declared service at any time during that month; and

during the whole of that month, there was in force a contract that satisfies the following conditions:

the contract provides for the deactivation or decommissioning of lines that form part of the infrastructure of a hybrid fibre-coaxial network;

the contract was entered into between NBN Co and the listed Optus companies (see subsection (10));

the contract applies to the line;

the agreement is not specified in an instrument under subsection (4);

the line is an exempt line in relation to the person for that month.

The Minister may, by legislative instrument, specify one or more agreements for the purposes of subparagraph (3)(e)(iv).

Other networks

If:

a person is a carrier; and

during a period comprising the whole or a part of a month in an eligible financial year, either:

the person owns a local access line, but there is no nominated carrier declaration in force in relation to the line; or

under a nominated carrier declaration, the person is the nominated carrier in relation to a local access line; and

that month is one of the first 6 months of the first eligible financial year; and

the line is not owned by an NBN corporation at any time during that month; and

the line is not used by an NBN corporation to supply a declared service at any time during that month; and

during the whole of that month, there was in force a legally enforceable agreement that satisfies the following conditions:

the agreement provides for the transfer of ownership or control of the line to an NBN corporation;

the agreement was in force immediately before the commencement of this section;

the agreement is not covered by subparagraph (1)(e)(ii) or (3)(e)(ii);

the agreement is not specified in an instrument under subsection (6);

such other conditions (if any) as are determined under subsection (7);

the line is an exempt line in relation to the person for that month.

The Minister may, by legislative instrument, specify one or more agreements for the purposes of subparagraph (5)(f)(iv).

The Minister may, by legislative instrument, determine one or more conditions for the purposes of subparagraph (5)(f)(v).

When agreement comes into force

For the purposes of this section, an agreement is taken to come into force when the agreement is entered into.

No specification by class

(9) Subsection 13(3) of the Legislation Act 2003 does not apply to subsection (2), (4) or (6) of this section.

Listed Optus company

(10) 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).

For the purposes of this Part, if particular premises are potentially chargeable premises in relation to a person for a month because a carriage service provider (who may be the person) supplies a designated broadband service to:

a residential customer who occupies the premises; or

a small business customer who occupies the premises;

the premises are potentially concessional premises in relation to the person for that month.

If:

during a period comprising the whole or a part of a month in an eligible financial year, a person is a carrier; and

(b) a declaration made under subsection 63(2) of the Telecommunications Act 1997 was in force on 30 June 2018 in relation to the carrier licence held by the person; and

the declaration provides that the person must (upon request by an end-user at relevant premises) connect, or arrange for another person on the person’s behalf to connect, premises located in a development area (however described) specified in the declaration to a telecommunications network owned by the person (as specified in the declaration); and

the person, or another person on the person’s behalf:

has connected one or more premises located in the development area to the telecommunications network; and

has done so before the end of 30 June 2019; and

one or more of the connected premises are potentially chargeable premises in relation to the person for that month;

each of the potentially chargeable premises mentioned in paragraph (e) are recently connected greenfield premises in relation to the person for that month.

If:

a person is a carrier; and

during a period comprising the whole or a part of a month in an eligible financial year, the person supplies an eligible local bitstream access service using a local access line; and

during a whole or a part of that period, a carriage service provider supplies a designated broadband service to one or more premises using the line; and

one or more of those premises are potentially chargeable premises in relation to the person for that month;

each of the potentially chargeable premises mentioned in paragraph (d) are recently connected greenfield premises in relation to the person for that month.

In this section:

eligible local bitstream access service means a local bitstream access service that is first supplied at a time during the period:

beginning at the start of 1 January 2011; and

ending at the end of 30 June 2019.

local bitstream access service has the meaning given by a declaration that:

was made:

(i) under subsection 152AL(3) of the Competition and Consumer Act 2010; and

(ii) in compliance with repealed subsection 152AL(3C) of the Competition and Consumer Act 2010; and

(b) was in force immediately before the commencement of Schedule 1 to the Telecommunications Legislation Amendment (Competition and Consumer) Act 2020.

A carrier must not, either alone or together with one or more other persons, enter into, begin to carry out or carry out a scheme if it would be concluded that the carrier did so for the sole or dominant purpose of avoiding the application of:

section 93 of this Act; or

(b) any provision of the Telecommunications (Regional Broadband Scheme) Charge Act 2020 (other than section 20 of that Act);

in relation to:

the carrier; or

any other carrier.

(1A) A carrier must not, either alone or together with one or more other persons, enter into, begin to carry out or carry out a scheme if it would be concluded that the carrier did so for the sole or dominant purpose of obtaining the benefit of Telecommunications (Regional Broadband Scheme) Charge Act 2020 in relation to:section 20 of the

the carrier; or

any other carrier.

Ancillary contraventions

A person must not:

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

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

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

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

Civil penalty provisions

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

Note: Telecommunications Act 1997 provides for pecuniary penalties for breaches of civil penalty provisions.Part 31 of the

Offences

A carrier commits an offence if:

the carrier, either alone or together with one or more other persons, enters into, begins to carry out or carries out a scheme; and

the carrier did so for the sole or dominant purpose of avoiding the application of:

section 93 of this Act; or

(ii) any provision of the Telecommunications (Regional Broadband Scheme) Charge Act 2020 (other than section 20 of that Act);

in relation to:

the carrier; or

any other carrier.

Penalty: 10,000 penalty units.

A carrier commits an offence if:

the carrier, either alone or together with one or more other persons, enters into, begins to carry out or carries out a scheme; and

(b) the carrier did so for the sole or dominant purpose of obtaining the benefit of Telecommunications (Regional Broadband Scheme) Charge Act 2020 in relation to:section 20 of the

the carrier; or

any other carrier.

Penalty: 10,000 penalty units.

Validity of transactions

A contravention of subsection (1), (1A), (2), (4) or (4A) does not affect the validity of any transaction.

Scheme

(6) 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.

Application

If:

a person is an eligible funding recipient; and

(b) the ACMA has made an assessment under charge financial year);section 102 setting out the charge payable by the person for a financial year (the

the person may, at any time during the period:

beginning when the assessment was made; and

ending at the end of the standard due date (within the meaning of section 102D) for the charge financial year;

apply to the Secretary for the issue to the person of a charge offset certificate for the charge financial year.

An application under subsection (1) must:

be in writing; and

be in a form approved, in writing, by the Secretary; and

be accompanied by such information as is specified in rules made under subsection (9).

Issue of certificate

If:

an application under subsection (1) has been made for the issue to a person of a charge offset certificate for the charge financial year; and

the person is the holder of a nominal funding entitlement certificate in relation to the next financial year; and

rules made under subsection (9) for the purposes of this paragraph are in force; and

the conditions set out in those rules are satisfied;

the Secretary must:

issue a certificate stating that the person is entitled to a charge offset for the charge financial year equal to the amount specified in the certificate; and

do so by the end of 31 March next following the charge financial year.

The amount specified in the certificate:

must be the amount ascertained in accordance with rules made under subsection (9); and

must not exceed the nominal funding entitlement of the person for the next financial year; and

must not exceed the annual base amount of the person for the charge financial year.

(5) A certificate issued under subsection (3) is to be known as a charge offset certificate.

Refusal

If the Secretary decides to refuse to issue a charge offset certificate to a person, the Secretary must give written notice of the decision to the person.

Copy of certificate

If the Secretary issues a charge offset certificate, the Secretary must give a copy of the certificate to the ACMA.

Charge offset certificate cannot be transferred

A charge offset certificate cannot be transferred.

Rules

The Minister may, by legislative instrument, make rules for the purposes of this section.

Remission

If:

a person becomes the holder of a charge offset certificate for a financial year; and

a base instalment of charge is payable by the person in relation to the financial year; and

the base instalment of charge has not been paid;

the Secretary must, on behalf of the Commonwealth, remit so much of the base instalment of charge as equals the amount specified in the certificate.

Note: For base instalment of charge, see section 102D.

The Secretary must inform the ACMA of a remission of charge under subsection (1).

If:

the ACMA has made an assessment under section 102 setting out the charge payable by a person for a financial year; and

the base instalment of charge is remitted, to any extent, under subsection (1) of this section; and

the ACMA is informed of the remission;

the ACMA must, under subsection 102B(1), vary the assessment to reflect the remission.

Refund

If:

a person becomes the holder of a charge offset certificate for a financial year; and

a base instalment of charge was payable by the person in relation to the financial year; and

the base instalment of charge has been paid;

the Secretary must, on behalf of the Commonwealth, refund so much of the base instalment of charge as equals the amount specified in the certificate.

Note: For base instalment of charge, see section 102D.

If there are one or more chargeable premises associated with a local access line of a person for a month in an eligible financial year, the person must:

give the ACMA a written report about:

those chargeable premises; and

the chargeable premises (if any) associated with a local access line of the person for each of the other months in the financial year; and

do so before the end of 31 October next following the financial year.

The report must be in a form approved, in writing, by the ACMA.

The approved form may require verification, by a statutory declaration, of statements made in the report.

If, at any time during a month covered by the report, the person had an associate in relation to control of:

a telecommunications network; or

a company; or

a local access line;

the report must:

set out the name of the associate; and

set out the ACN (if any) of the associate; and

identify the network, company or line, as the case requires; and

(g) identify which paragraph or paragraphs of subsection 152(1) of the Telecommunications Act 1997 resulted in the person having the associate.

Transitional

If:

the report relates to:

the first eligible financial year; or

the second eligible financial year; or

the third eligible financial year; or

the fourth eligible financial year; or

the fifth eligible financial year; and

there are one or more potentially concessional premises in relation to the person for a month in the eligible financial year;

the report must set out the total number of potentially concessional premises in relation to the person for that month.

If:

particular premises are reported as potentially concessional premises in relation to the person for a month; and

apart from this subsection, the premises are not potentially concessional premises in relation to the person for the month; and

the person:

did not know; and

could not, with reasonable diligence, have ascertained;

that the premises are not potentially concessional premises in relation to the person for the month;

the premises are taken, for all purposes, to be potentially concessional premises in relation to the person for the month.

If:

the report relates to:

the first eligible financial year; or

the second eligible financial year; or

the third eligible financial year; or

the fourth eligible financial year; or

the fifth eligible financial year; and

during the whole or a part of a month in the eligible financial year, the person was the controller of an associated group;

the report must:

set out a statement to that effect; and

identify each of the members of the associated group; and

set out the circumstances that resulted in the person being the controller of the associated group.

Associated group

For the purposes of subsection (6), 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; and

the person is the controller of the associated group.

For the purposes of subsection (7), the question of whether a person is in a position to exercise control of:

a local access line; or

a telecommunications network;

is to be determined in the same manner in which that question is determined for the purposes of Part 8 of the Telecommunications Act 1997.

(9) For the purposes of subsection (7), the question of whether a person has one or more associates is to be determined in the same manner in which that question is determined for the purposes of Part 8 of the Telecommunications Act 1997.

Transitional—recently connected greenfield premises

If:

the report relates to:

the first eligible financial year; or

the second eligible financial year; or

the third eligible financial year; or

the fourth eligible financial year; or

the fifth eligible financial year; and

there are one or more recently connected greenfield premises in relation to the person for a month in the eligible financial year;

the report must set out the total number of recently connected greenfield premises in relation to the person for that month.

If:

particular premises are reported as recently connected greenfield premises in relation to the person for a month; and

apart from this subsection, the premises are not recently connected greenfield premises in relation to the person for the month; and

the person:

did not know; and

could not, with reasonable diligence, have ascertained;

that the premises are not recently connected greenfield premises in relation to the person for the month;

the premises are taken, for all purposes, to be recently connected greenfield premises in relation to the person for the month.

A person commits a strict liability offence if:

the person is subject to a requirement under section 100; and

the person omits to do an act; and

the omission breaches the requirement.

Penalty: 50 penalty units.

A person who contravenes subsection (1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.

Subdivision B—Assessments

If a person has given the ACMA a section 100 report in relation to a financial year before the end of 31 October next following the financial year, the ACMA must:

make a written assessment setting out:

the total number of chargeable premises (if any) associated with a local access line of the person for each of the months in the financial year; and

the person’s annual chargeable premises amount (if any) for the financial year; and

the person’s annual base amount (if any) for the financial year; and

the person’s annual administrative cost amount (if any) for the financial year; and

the charge (if any) payable by the person in relation to the financial year; and

do so by the assessment deadline for the financial year.

Note 1: Section 102D sets out when the charge is payable.

Note 2: If a month is in the first, second, third, fourth or fifth eligible financial year, the total number mentioned in paragraph (a) may be reduced—see subsection (6).

If a person has not given the ACMA a section 100 report in relation to a financial year before the end of 31 October next following the financial year, the ACMA may, before the assessment deadline for the financial year, make a written assessment setting out:

the total number of chargeable premises (if any) associated with a local access line of the person for each of the months in the financial year; and

the person’s annual chargeable premises amount (if any) for the financial year; and

the person’s annual base amount (if any) for the financial year; and

the person’s annual administrative cost amount (if any) for the financial year; and

the charge (if any) payable by the person in relation to the financial year.

Note 1: Section 102D sets out when the charge is payable.

Note 2: If a month is in the first, second, third, fourth or fifth eligible financial year, the total number mentioned in paragraph (a) may be reduced—see subsection (6).

An assessment under this section is not a legislative instrument.

Assessment deadline

(4) For the purposes of this section, the assessment deadline for a financial year is the end of:

30 November next following the financial year; or

if:

a later day is ascertained in accordance with a determination made under subsection (5); and

the day ascertained in accordance with the determination is not later than 2 months before the standard due date (within the meaning of section 102D) for the financial year;

the day ascertained in accordance with the determination.

The ACMA may, by legislative instrument, make a determination for the purposes of subparagraph (4)(b)(i).

Transitional—reduction of total number of chargeable premises

(6) Section 20 of the Telecommunications (Regional Broadband Scheme) Charge Act 2020 applies for the purposes of subparagraph (1)(a)(i) and paragraph (2)(a) in the same way that it applies for the purposes of that Act.

As soon as practicable after making an assessment under section 102, the ACMA must give a copy of the assessment to:

the person to whom the assessment relates; and

the Secretary.

The ACMA may vary an assessment made under this Division by making such alterations and additions as it thinks necessary, even if charge has been paid in respect of an assessment.

Unless the contrary intention appears, a varied assessment is taken, for the purposes of this Division, to be an assessment under section 102.

Despite anything in this Division, the ACMA may, for the purposes of making an assessment under this Division, partly or completely accept a statement in a report under section 100.

Subdivision C—Collection and recovery of charge

Person other than an eligible funding recipient

Charge payable by a person (other than an eligible funding recipient) in relation to a financial year becomes due and payable on:

the standard due date for the financial year; or

if the ACMA, by written notice given to the person, allows a later day—that later day.

A day allowed under paragraph (1)(b) must not be later than 28 February next following the financial year.

A copy of a notice under paragraph (1)(b) must be published on the ACMA’s website.

A notice under paragraph (1)(b) is not a legislative instrument.

Eligible funding recipient

If a person is an eligible funding recipient, charge payable by the person in relation to a financial year is payable in 2 instalments, as follows:

(a) an instalment (the base instalment) of so much of the amount of the charge as equals the annual base amount of the person for the financial year;

(b) an instalment (the administrative cost instalment) of so much of the amount of the charge as equals the annual administrative cost amount of the person for the financial year.

If a person is an eligible funding recipient, the base instalment of charge payable by the person in relation to a financial year becomes due and payable on:

if the person has made an application under subsection 98(1) for a charge offset certificate for the financial year—30 April next following the financial year; or

otherwise:

the standard due date for the financial year; or

if the ACMA, by written notice given to the person, allows a later day—that later day.

A day allowed under subparagraph (6)(b)(ii) must not be later than 28 February next following the financial year.

A copy of a notice under subparagraph (6)(b)(ii) must be published on the ACMA’s website.

A notice under subparagraph (6)(b)(ii) is not a legislative instrument.

If a person is an eligible funding recipient, the administrative cost instalment of charge payable by the person in relation to a financial year becomes due and payable on:

the standard due date for the financial year; or

if the ACMA, by written notice given to the person, allows a later day—that later day.

A day allowed under paragraph (10)(b) must not be later than 28 February next following the financial year.

A copy of a notice under paragraph (10)(b) must be published on the ACMA’s website.

A notice under paragraph (10)(b) is not a legislative instrument.

Standard due date

(14) For the purposes of this section, the standard due date for a financial year is:

31 December next following the financial year; or

if:

a later day is ascertained in accordance with a determination made under subsection (15); and

the day ascertained in accordance with the determination is not later than 28 February next following the financial year;

the day ascertained in accordance with the determination.

The ACMA may, by legislative instrument, make a determination for the purposes of subparagraph (14)(b)(i).

Charge, or an instalment of charge:

is a debt due to the ACMA on behalf of the Commonwealth; and

may be recovered by the ACMA, on behalf of the Commonwealth, in:

the Federal Court; or

the Federal Circuit and Family Court of Australia (Division 2); or

a court of a State or Territory that has jurisdiction in relation to the matter.

The validity of an assessment under this Division is not affected by a contravention of this Division.

Scope

This section applies if a document that purports to be a copy of an assessment under section 102 is produced in a proceeding.

Evidence

Except so far as the contrary is established, it must be presumed:

that the document is a copy of the assessment; and

that the ACMA has duly made the assessment; and

that the amounts and other particulars set out in the assessment are correct.

In any proceeding, the onus of establishing that an assessment under section 102 is incorrect is on the party making that assertion.

If there is an overpayment of:

charge; or

an instalment of charge;

the overpayment is to be refunded by the Secretary on behalf of the Commonwealth.

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.

(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 (Regional Broadband Scheme) Charge Act 2020.

The Commonwealth is not liable to pay charge.

(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.

Subdivision D—Other matters

If an amount of:

charge; or

an instalment of charge;

that is payable by a person remains unpaid after the day on which it becomes due and payable, the person is liable to pay a penalty (late payment penalty) on the unpaid amount for each day until all of:

the charge; or

the instalment of charge;

as the case may be, has been paid.

The late payment penalty rate is 20% per year, or such lower rate as the ACMA determines in writing for the purposes of this subsection.

The ACMA may remit the whole or part of a late payment penalty that a person is liable to pay under subsection (1).

The late payment penalty for a day is due and payable at the end of that day.

Late payment penalty:

is a debt due to the ACMA on behalf of the Commonwealth; and

may be recovered by the ACMA, on behalf of the Commonwealth, in:

the Federal Court; or

the Federal Circuit and Family Court of Australia (Division 2); or

a court of a State or Territory that has jurisdiction in relation to the matter.

If the amount of the late payment penalty for a day is not an amount of whole dollars, the late payment penalty is rounded to the nearest dollar (rounding 50 cents upwards).

A determination under subsection (2) is a legislative instrument.

Scope

This section applies to a carrier or carriage service provider if the ACMA believes on reasonable grounds that the carrier or carriage service provider has information or a document that is relevant to the operation of:

Division 4, 5, 6 or 7 of this Part; or

subsection 102ZFA(4); or

(c) the Telecommunications (Regional Broadband Scheme) Charge Act 2020.

Requirement

The ACMA may, by written notice given to the carrier or carriage service provider, require the carrier or carriage service provider:

to give to the ACMA, within the period and in the manner and form specified in the notice, any such information; or

to produce to the ACMA, within the period and in the manner specified in the notice, any such documents; or

to make copies of any such documents and to produce to the ACMA, within the period and in the manner specified in the notice, those copies.

A period specified under subsection (2) must not be shorter than 14 days after the notice is given.

Compliance

A carrier or carriage service provider must comply with a requirement under subsection (2) to the extent that the carrier or carriage service provider is capable of doing so.

A carrier or carriage service provider commits an offence if:

the ACMA has given a notice to the carrier or carriage service provider under subsection (2); and

the carrier or carriage service provider engages in conduct; and

the carrier’s conduct, or the carriage service provider’s conduct, contravenes a requirement in the notice.

Penalty for contravention of this subsection: 50 penalty units.

A carrier or carriage service provider is entitled to be paid by the ACMA reasonable compensation for complying with a requirement covered by paragraph 102P(2)(c).

The ACMA may:

inspect a document or copy produced under subsection 102P(2); and

make and retain copies of, or take and retain extracts from, such a document.

The ACMA may retain possession of a copy of a document produced in accordance with a requirement covered by paragraph 102P(2)(c).

The ACMA may take, and retain for as long as is necessary, possession of a document produced under subsection 102P(2).

The carrier or carriage service provider otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the ACMA to be a true copy.

The certified copy must be received in all courts and tribunals as evidence as if it were the original.

Until a certified copy is supplied, the ACMA must, at such times and places as the ACMA thinks appropriate, permit the carrier or carriage service provider otherwise entitled to possession of the document, or a person authorised by that carrier or carriage service provider, to inspect and make copies of, or take extracts from, the document.

This Subdivision does not affect the law relating to legal professional privilege.

Subdivision B—Access to information or documents held by an eligible funding recipient

Scope

(1) This section applies to an eligible funding recipient if the ACCC believes on reasonable grounds that the eligible funding recipient has information or a document that is relevant to the performance of any of the ACCC’s functions, or the exercise of any of the ACCC’s powers, under the Telecommunications (Regional Broadband Scheme) Charge Act 2020.

Requirement

The ACCC may, by written notice given to the eligible funding recipient, require the eligible funding recipient:

to give to the ACCC, within the period and in the manner and form specified in the notice, any such information; or

to produce to the ACCC, within the period and in the manner specified in the notice, any such documents; or

to make copies of any such documents and to produce to the ACCC, within the period and in the manner specified in the notice, those copies.

A period specified under subsection (2) must not be shorter than 14 days after the notice is given.

Compliance

An eligible funding recipient must comply with a requirement under subsection (2) to the extent that the eligible funding recipient is capable of doing so.

An eligible funding recipient commits an offence if:

the ACCC has given a notice to the eligible funding recipient under subsection (2); and

the eligible funding recipient engages in conduct; and

the eligible funding recipient’s conduct contravenes a requirement in the notice.

Penalty for contravention of this subsection: 50 penalty units.

An eligible funding recipient is entitled to be paid by the ACCC reasonable compensation for complying with a requirement covered by paragraph 102U(2)(c).

The ACCC may:

inspect a document or copy produced under subsection 102U(2); and

make and retain copies of, or take and retain extracts from, such a document.

The ACCC may retain possession of a copy of a document produced in accordance with a requirement covered by paragraph 102U(2)(c).

The ACCC may take, and retain for as long as is necessary, possession of a document produced under subsection 102U(2).

The eligible funding recipient otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the ACCC to be a true copy.

The certified copy must be received in all courts and tribunals as evidence as if it were the original.

Until a certified copy is supplied, the ACCC must, at such times and places as the ACCC thinks appropriate, permit the eligible funding recipient otherwise entitled to possession of the document, or a person authorised by that eligible funding recipient, to inspect and make copies of, or take extracts from, the document.

This Subdivision does not affect the law relating to legal professional privilege.

Subdivision C—Disclosure of information to certain bodies

The ACMA may disclose information to any of the following bodies:

the Department;

the ACCC;

the Regional Telecommunications Independent Review Committee;

(d) the Department administered by the Minister administering the Public Governance, Performance and Accountability Act 2013;

the Department administered by the Treasurer;

an authorised government agency (see subsection (2));

if:

the information was:

obtained under, or for the purposes of, this Division; or

set out in a report under section 100; and

the ACMA is satisfied that the information will enable or assist the body to perform or exercise any of the functions or powers of the body.

(2) The ACMA may, by notifiable instrument, declare that a specified department or authority of the Commonwealth, a State or a Territory is an authorised government agency for the purposes of paragraph (1)(f).

The ACMA may, by writing, impose conditions to be complied with in relation to information disclosed under subsection (1).

An instrument made under subsection (3) that imposes conditions relating to one particular disclosure identified in the instrument is a notifiable instrument.

Otherwise, an instrument made under subsection (3) is a legislative instrument.

The ACCC may disclose information to any of the following bodies:

the Department;

the ACMA;

the Regional Telecommunications Independent Review Committee;

(d) the Department administered by the Minister administering the Public Governance, Performance and Accountability Act 2013;

the Department administered by the Treasurer;

an authorised government agency (see subsection (2));

if:

the information was obtained under, or for the purposes of, this Division or section 102ZF; and

the ACCC is satisfied that the information will enable or assist the body to perform or exercise any of the functions or powers of the body.

(2) The ACCC may, by notifiable instrument, declare that a specified department or authority of the Commonwealth, a State or a Territory is an authorised government agency for the purposes of paragraph (1)(f).

The ACCC may, by writing, impose conditions to be complied with in relation to information disclosed under subsection (1).

An instrument made under subsection (3) that imposes conditions relating to one particular disclosure identified in the instrument is a notifiable instrument.

Otherwise, an instrument made under subsection (3) is a legislative instrument.

The Secretary is to maintain a register, to be known as the Register of Contracts for the Funding of Fixed Wireless Broadband and Satellite Broadband, in which the Secretary includes the following for each section 80 contract that is in force:

the name of the contractor;

the duration of the contract;

if the contract requires actions to be undertaken by the contractor—a summary of those actions;

if the contract requires services, facilities or customer equipment to be supplied by the contractor—a description of those services, facilities or customer equipment;

if the contract provides for the Commonwealth to reimburse, or partly reimburse, costs or expenses—a description of those costs or expenses;

one of the following:

the total amount paid or to be paid by the Commonwealth under the contract;

an estimate of the total amount paid or to be paid by the Commonwealth under the contract;

the method of working out the total amount paid or to be paid by the Commonwealth under the contract.

The Register of Contracts for the Funding of Fixed Wireless Broadband and Satellite Broadband is to be maintained by electronic means.

The Register of Contracts for the Funding of Fixed Wireless Broadband and Satellite Broadband is to be made available for inspection on the Department’s website.

The Register of Contracts for the Funding of Fixed Wireless Broadband and Satellite Broadband is not a legislative instrument.

The Secretary is to maintain a register, to be known as the Register of Grants for the Funding of Fixed Wireless Broadband and Satellite Broadband, in which the Secretary includes the following for each section 80 grant that has been made:

the name of the grant recipient;

if the terms and conditions of the grant require action to be undertaken by the grant recipient—a summary of those actions;

if services, facilities or customer equipment are to be supplied by the grant recipient in accordance with the terms and conditions of the grant—a description of those services, facilities or customer equipment;

if the grant is by way of the reimbursement, or partial reimbursement, of costs or expenses—a description of those costs or expenses;

either:

the amount of the grant; or

the method for working out the amount of the grant.

The Register of Grants for the Funding of Fixed Wireless Broadband and Satellite Broadband is to be maintained by electronic means.

The Register of Grants for the Funding of Fixed Wireless Broadband and Satellite Broadband is to be made available for inspection on the Department’s website.

The Register of Grants for the Funding of Fixed Wireless Broadband and Satellite Broadband is not a legislative instrument.

The ACMA must publish on its website a statement, for each eligible financial year, that sets out:

the total amount of charge paid by carriers in relation to the eligible financial year; and

the total of the amounts specified in charge offset certificates issued to carriers in relation to the eligible financial year.

The ACMA may give the ACCC information that is relevant to the performance of any of the ACCC’s functions, or the exercise of any of the ACCC’s powers, under the Telecommunications (Regional Broadband Scheme) Charge Act 2020.

Reportable premises

For the purposes of this section, if:

a person is a carrier; and

during a period comprising the whole or a part of the applicable reporting period, either:

the person owns a local access line, but there is no nominated carrier declaration in force in relation to the line; or

under a nominated carrier declaration, the person is the nominated carrier in relation to a local access line; and

during the whole or a part of the period, a carriage service provider (who may be the person) supplies a designated broadband service to particular premises in Australia using the line;

the premises are reportable premises in relation to the person for the applicable reporting period.

Report

Note: The line does not need to be physically connected to the premises. This is because using has an extended meaning—see subsection 5(1) of this Act and section 24 of the Telecommunications Act 1997 (when read together with section 18A of the Acts Interpretation Act 1901).

If:

a person is a carrier; and

there are one or more reportable premises in relation to the person for the applicable reporting period;

the person must:

give the ACCC a written report setting out:

the number of those premises; and

the number of potentially chargeable premises (if any) in relation to the person for the applicable reporting period (assuming paragraph 79(a) referred to 1 July 2019 instead of the designated start date); and

the number of chargeable premises (if any) associated with a local access line of the person for the applicable reporting period (assuming paragraph 79(a) referred to 1 July 2019 instead of the designated start date); and

the number of exempt premises (if any) in relation to the person for the applicable reporting period (assuming paragraph 79(a) referred to 1 July 2019 instead of the designated start date); and

the number of exempt lines (if any) in relation to the person for the applicable reporting period (assuming paragraph 79(a) referred to 1 July 2019 instead of the designated start date); and

the number of potentially concessional premises (if any) in relation to the person for the applicable reporting period (assuming paragraph 79(a) referred to 1 July 2019 instead of the designated start date); and

the number of recently connected greenfield premises (if any) in relation to the person for the applicable reporting period (assuming paragraph 79(a) referred to 1 July 2019 instead of the designated start date); and

do so within 60 days after the commencement of this section.

The report must be in a form approved, in writing, by the ACCC.

The approved form may require verification, by a statutory declaration, of statements made in the report.

If, at any time during the applicable reporting period, the person had an associate in relation to control of:

a telecommunications network; or

a company; or

a local access line;

the report must:

set out the name of the associate; and

set out the ACN (if any) of the associate; and

identify the network, company or line, as the case requires; and

(g) identify which paragraph or paragraphs of subsection 152(1) of the Telecommunications Act 1997 resulted in the person having the associate.

Offence of failing to lodge report

A person commits a strict liability offence if:

the person is subject to a requirement under subsection (2) or (4A); and

the person omits to do an act; and

the omission breaches the requirement.

Penalty: 50 penalty units.

A person who contravenes subsection (5) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.

Applicable reporting period

(7) For the purposes of this section, applicable reporting period means the month immediately preceding the month in which this section commenced.

The Minister must cause to be conducted a review of the following matters:

the operation of this Part;

the operation of the remaining provisions of this Act to the extent to which they relate to this Part;

(c) the operation of the Telecommunications Act 1997 to the extent to which that Act relates to this Part;

(d) the operation of the Telecommunications (Regional Broadband Scheme) Charge Act 2020;

whether this Part should be amended;

whether the remaining provisions of this Act, to the extent to which they relate to this Part, should be amended;

(g) whether the Telecommunications Act 1997, to the extent to which that Act relates to this Part, should be amended;

(h) whether the Telecommunications (Regional Broadband Scheme) Charge Act 2020 should be amended.

A review under subsection (1) must make provision for public consultation.

A review under subsection (1) must be conducted:

before the end of the period of 4 years after the commencement of this section; or

as soon as practicable after the end of that 4-year period.

Direction to the ACMA

The Minister may give the ACMA a written direction requiring the ACMA to make available specified information for the purposes of facilitating the conduct of a review under subsection (1).

The ACMA must comply with a direction under subsection (4).

Direction to the ACCC

The Minister may give the ACCC a written direction requiring the ACCC to make available specified information for the purposes of facilitating the conduct of a review under subsection (1).

The ACCC must comply with a direction under subsection (6).

Report

The Minister must cause to be prepared a report of a review under subsection (1).

The Minister must cause copies of the report to be tabled in each House of the Parliament within 25 sittings days of that House after the completion of the preparation of the report.

Scope

This section applies to a determination made under subsection 76AA(2), 79A(1) or (2).

Disallowance

Either House of the Parliament may, following a motion upon notice, pass a resolution disallowing the determination. For the resolution to be effective:

(a) the notice must be given in that House within 15 sitting days of that House after the copy of the determination was tabled in the House under Legislation Act 2003; andsection 38 of the

the resolution must be passed, in pursuance of the motion, within 15 sitting days of that House after the giving of that notice.

If neither House passes such a resolution, the determination takes effect on the day immediately after the last day upon which such a resolution could have been passed if it were assumed that notice of a motion to disallow the determination was given in each House on the last day of the 15 sitting day period of that House mentioned in paragraph (2)(a).

If:

(a) notice of a motion to disallow the determination is given in a House of the Parliament within 15 sitting days of that House after the copy of the determination was tabled in that House under Legislation Act 2003; andsection 38 of the

at the end of 15 sitting days of that House after the giving of that notice of motion:

the notice has not been withdrawn and the motion has not been called on; or

the motion has been called on, moved and (where relevant) seconded and has not been withdrawn or otherwise disposed of;

the determination is then taken to have been disallowed, and subsection (3) does not apply to the determination.

(4) Section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination.

Note 1: The 15 sitting day notice period mentioned in paragraph (2)(a) of this section is the same as the 15 sitting day notice period mentioned in paragraph 42(1)(a) of the Legislation Act 2003.

Note 2: The 15 sitting day disallowance period mentioned in paragraph (2)(b) of this section is the same as the 15 sitting day disallowance period mentioned in paragraph 42(1)(b) of the Legislation Act 2003.

The Secretary may, by writing, delegate any or all of the Secretary’s functions or powers under this Part to an SES employee, or acting SES employee, in the Department.

Note: The expressions SES employee and acting SES employee are defined in the Acts Interpretation Act 1901.

A delegate must comply with any written directions of the Secretary.

In determining the meaning of the expression capable when used in:

a provision of this Act (other than this Part); or

(b) the Telecommunications Act 1997;

disregard the expression technically capable when used in section 76AA.

The following is a simplified outline of this Part:

• The ACMA may make performance standards to be complied with by carriage service providers in relation to customer service.

• If a carriage service provider contravenes a performance standard, the carriage service provider is liable to pay damages to the customer for the contravention.

• The amount of damages payable for a particular contravention is equal to the relevant amount specified in the scale of damages determined by the ACMA.

• The Minister may make performance standards to be complied with by carriage service providers in relation to the supply of wholesale carriage services.

• The Minister may set minimum benchmarks in relation to compliance by carriage service providers with performance standards.

• The Telecommunications Industry Ombudsman may issue an evidentiary certificate in relation to a contravention of a performance standard.

In this Part:

customer includes prospective customer.

damages includes punitive damages.

(2) In determining the meaning that an expression has when used in a provision of the Telecommunications Act 1997, or in a provision of this Act other than this Part, subsection (1) is to be disregarded.

For the purposes of this Part, if:

(a) a carriage service provider (the first provider) supplies, or proposes to supply, a carriage service to another carriage service provider (the second provider); and

the carriage service is, or is to be, supplied to the second provider in order that the second provider can provide a carriage service;

then:

(c) the carriage service that is, or is to be, supplied to the second provider is a wholesale carriage service; and

(d) the second provider is a wholesale customer of the first provider.

The ACMA may, by written instrument, make standards to be complied with by carriage service providers in relation to:

the making of arrangements with customers about the period taken to comply with requests to connect customers to specified kinds of carriage services; and

the periods that carriage service providers may offer to customers when making those arrangements; and

the compliance by carriage service providers with the terms of those arrangements; and

the period taken to comply with requests to rectify faults or service difficulties relating to specified kinds of carriage services, where the rectification follows the making of a customer report about a fault or service difficulty; and

the keeping of appointments to meet customers, or representatives of customers, where the appointment relates to:

a connection of a kind covered by paragraph (a); or

a rectification of a kind covered by paragraph (d); and

any other matter concerning the supply, or proposed supply, of a carriage service to a customer.

A standard under this section that relates to a particular kind of carriage service does not apply to a particular carriage service provider in connection with the supply of that kind of service at a particular location unless the carriage service provider:

supplies that kind of service at that location; or

offers to supply that kind of service at that location.

A standard under this section does not apply in relation to matter concerning the supply, or proposed supply, of a wholesale carriage service.

The ACMA must not make a standard under this section unless it is directed to do so by the Minister under section 124.

(4) A standard under this section may be of general application or may be limited as provided in the standard. This subsection does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

An instrument under subsection (1) is a legislative instrument.

If:

a carriage service provider contravenes a standard in force under section 115; and

the contravention relates to a particular customer;

the carriage service provider is liable to pay damages to the customer for the contravention.

The amount of damages payable for a particular contravention is equal to the relevant amount specified in the scale in force under section 117.

However, if:

the carriage service provider:

credits an amount to an account that the customer has with the provider; or

pays an amount to the customer; and

the credit or payment was made as a result of a right or remedy that:

was available to the customer otherwise than under this Division; and

arose out of the same event or transaction as the contravention;

the amount of damages payable for the contravention is to be reduced (but not below zero) by the amount of the credit or payment.

The customer may recover the amount of the damages by action against the carriage service provider in a court of competent jurisdiction.

The liability of the carriage service provider under this section may be discharged:

by giving the customer a credit in an account the customer has with the carriage service provider; or

in any other manner agreed between the carriage service provider and the customer.

An action under this section must be instituted within 2 years after:

in the case of a contravention that continued throughout a period—the time when the contravention began; or

in any other case—the time when the contravention occurred.

(7) If the customer dies, a reference in this section to the customer includes a reference to the legal personal representative of the customer.

The ACMA may, by legislative instrument, specify a scale of damages for contraventions of standards under section 115.

The scale must:

specify categories of contraventions; and

specify a dollar amount as the amount of damages payable for contraventions covered by each of those categories.

A dollar amount specified in accordance with paragraph (2)(b) must not exceed $25,000.

A category may be specified by reference to contraventions that continue over a specified number of days.

Subsection (4) does not, by implication, limit the ways in which a category may be specified.

Decision whether to accept liability for damages

If, at a particular time, a carriage service provider first has reason to believe that an event has occurred that is reasonably likely to result in the carriage service provider being liable to pay damages to a particular customer under within 14 days after that time, the carriage service provider must decide whether to accept that liability.section 116, then,

In making a decision under subsection (1), the carriage service provider must have regard to whether there is any reasonable basis for the carriage service provider to dispute the liability.

If a carriage service provider makes a decision under subsection (1) not to accept a liability to pay damages to a particular customer, the carriage service provider must give the customer written notification of the decision within 14 weeks after the decision is made.

Crediting customer account

If:

a carriage service provider makes a decision under subsection (1) to accept a liability to pay damages to a particular customer; and

the liability is to be discharged by giving the customer a credit in an account the customer has with the carriage service provider;

the liability must be discharged within the period of 14 weeks after the decision is made and:

if it is practicable for the carriage service provider to give the customer the credit within that 14-week period and in time for the customer to be notified of the credit in the first bill sent to the customer during that period—by giving the customer the credit in time for the customer to be notified of the credit in that bill; or

if paragraph (c) does not apply, but it is practicable for the carriage service provider to give the customer the credit within that 14-week period and in time for the customer to be notified of the credit in the second bill sent to the customer during that period—by giving the customer the credit in time for the customer to be notified of the credit in that bill.

Other manner of discharging liability

If:

a carriage service provider makes a decision under subsection (1) to accept a liability to pay damages to a particular customer; and

the liability is not to be discharged by giving the customer a credit in an account the customer has with the carriage service provider;

the liability must be discharged within 14 weeks after the decision is made.

Customer

(6) If the customer dies, a reference in this section to the customer includes a reference to the legal personal representative of the customer.

Transitional

(7) The reference in subsection (1) to a particular time is a reference to a particular time after the end of the period of 12 months beginning on the date of commencement of this section.

The Minister may, by legislative instrument, set minimum benchmarks in relation to compliance by carriage service providers with a standard in force under section 115.

An instrument under this section may be of general application or may be limited as provided in the instrument.

(3) Subsection (2) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

Scope

(1) This section applies if an instrument under first provider).section 117B is applicable to a carriage service provider (the

Provider must meet or exceed minimum benchmark

The first provider must meet or exceed a minimum benchmark set by the instrument.

Contravention caused by another provider

(3) For the purposes of determining whether the first provider has met or exceeded a minimum benchmark set by the instrument, if:

the first provider has contravened a standard in force under section 115; and

the contravention is wholly or partly attributable to one or more acts or omissions of another carriage service provider;

the first provider is taken not to have contravened the standard.

The Minister may, by legislative instrument, make standards to be complied with by carriage service providers in relation to a matter that:

concerns the supply, or proposed supply, of wholesale carriage services to a wholesale customer; and

is capable of affecting the capacity or ability of a wholesale customer to comply with a standard in force under section 115 in relation to a matter concerning the supply, or proposed supply, of a carriage service by the wholesale customer.

A standard under this section may be of general application or may be limited as provided in the standard.

(3) Subsection (2) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

The Minister may, by legislative instrument, set minimum benchmarks in relation to compliance by carriage service providers with a standard in force under section 117D.

An instrument under this section may be of general application or may be limited as provided in the instrument.

(3) Subsection (2) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

Scope

(1) This section applies if an instrument under first provider).section 117E is applicable to a carriage service provider (the

Provider must meet or exceed minimum benchmark

The first provider must meet or exceed a minimum benchmark set by the instrument.

Contravention caused by another provider

(3) For the purposes of determining whether the first provider has met or exceeded a minimum benchmark set by the instrument, if:

the first provider has contravened a standard in force under section 117D; and

the contravention is wholly or partly attributable to one or more acts or omissions of another carriage service provider;

the first provider is taken not to have contravened the standard.

This section applies if a carriage service provider is subject to a standard in force under section 115 or 117D.

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, or is unlikely to contravene, the standard; or

requiring the provider to take such action as will ensure that the extent of the provider’s compliance with the standard reaches or exceeds a specified goal or target.

Note: Under the Minister may give the ACMA directions in relation to the exercise of its powers under this Part.section 124,

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

a direction that the provider implement effective administrative systems for monitoring compliance with a standard in force under section 115 or 117D;

a direction that the provider take such action as is necessary to ensure that the extent of the provider’s compliance with a standard in force under section 115, in so far as that standard relates to the keeping of appointments to meet customers in rural areas, reaches or exceeds a specified goal or target.

Before giving a direction under subsection (2), the ACMA must consult the Telecommunications Industry Ombudsman. However, this rule does not apply if the Minister, under section 124, required the ACMA to give the direction.

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

A direction under subsection (2) is a legislative instrument.

If:

(a) a carriage service provider (the first provider) contravenes a standard in force under section 115; and

the contravention relates to a particular customer; and

(c) the first provider is liable, under primary damages) to the customer for the contravention; andsection 116, to pay damages (the

(d) the contravention is wholly or partly attributable to one or more acts or omissions of another carriage service provider (the second provider); and

the first provider has discharged the liability for the primary damages;

the second provider is liable to pay damages (the secondary damages) to the first provider for the acts or omissions.

The amount of the secondary damages for the acts or omissions is:

if the contravention is wholly attributable to the acts or omissions—an amount equal to the primary damages; or

if the contravention is partly attributable to the acts or omissions—such amount (not exceeding the primary damages) as the court thinks fair and reasonable.

If the second provider makes a payment to the first provider as a result of a right or remedy that:

was available to the first provider otherwise than under this section; and

arose out of the same acts or omissions;

the amount of the secondary damages payable for the acts or omissions is to be reduced (but not below zero) by the amount of the payment.

The first provider may recover the amount of the secondary damages by action against the second provider in a court of competent jurisdiction.

An action under this section must be instituted within 2 years after the first provider discharged the liability for the primary damages.

(6) If the customer dies, a reference in this section to the customer includes a reference to the legal personal representative of the customer.

Paragraph (1)(a) does not apply to a contravention that occurs before the end of the period of 6 months beginning on the date of commencement of this section.

The Telecommunications Industry Ombudsman may issue a written certificate:

stating that a specified carriage service provider has contravened a standard in force under section 115; and

setting out particulars of that contravention.

In any proceedings under this Part, a certificate under subsection (1) is prima facie evidence of the matters in the certificate.

A document purporting to be a certificate under subsection (1) must, unless the contrary is established, be taken to be a certificate and to have been properly given.

Subsection (1) does not apply to the Telecommunications Industry Ombudsman unless the Telecommunications Industry Ombudsman gives the Minister a written notice consenting to the conferral of the powers conferred by that subsection.

If no notice is in force under subsection (4), subsection (1) has effect as if the reference in that subsection to the Telecommunications Industry Ombudsman were a reference to the ACMA.

The Minister must cause a copy of a notice under subsection (4) to be published on the Department’s website.

The continuity of a notice under subsection (4) 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.

The ACMA may, by written instrument, make provision for customers of carriage service providers to waive, in whole or in part, their protection and rights under this Part in relation to a particular carriage service supplied, or proposed to be supplied, by the carriage service provider concerned.

If such a waiver is made, then, to the extent of the waiver, the carriage service provider is not bound by, and need not comply with, any standards in force under section 115 in relation to the supply of that service to that customer.

A waiver must be made in accordance with the rules set out in the instrument.

A waiver must be in the form specified in the instrument.

The form must include a statement that summarises the consequences of the waiver.

(6) A waiver must not be set out in a standard form of agreement formulated by a carriage service provider for the purposes of Telecommunications Act 1997.section 479 of the

A customer is not entitled to waive, in whole or in part, the customer’s protection and rights under this Part in relation to a particular standard telephone service supplied, or proposed to be supplied, by the carriage service provider concerned if the service is supplied, or proposed to be supplied:

in fulfilment of the universal service obligation; or

in compliance with the obligations under a contract entered into under section 14 for a purpose relating to the achievement of the policy objective set out in paragraph 13(1)(a); or

in compliance with the terms and conditions of a grant made under section 14 for a purpose relating to the achievement of the policy objective set out in paragraph 13(1)(a).

An instrument under subsection (1) is a legislative instrument.

This Act does not prevent, and is taken never to have prevented, a carriage service provider from supplying, or proposing to supply, a particular carriage service to a customer on condition that the customer waives, in accordance with section 120, the customer’s protection and rights under this Part in relation to the carriage service.

This Part is not intended to exclude or limit the concurrent operation of any law of a State or Territory.

This Part does not limit, restrict or otherwise affect any right or remedy a person would have if this Part had not been enacted.

This Part does not limit, restrict or otherwise affect the operation of the Telecommunications Industry Ombudsman scheme. In particular, this Part does not affect a customer’s right to complain to the Telecommunications Industry Ombudsman.

Subsection (3) does not, by implication, limit subsection (2).

A contravention of a standard in force under section 115 or 117D is not an offence.

A contravention of section 117C or 117F is not an offence.

Clause 1 of Schedule 2 to the Telecommunications Act 1997 does not apply to a contravention of a standard in force under section 115 or 117D.

Note: Clause 1 of Schedule 2 to the Telecommunications Act 1997 requires carriage service providers to comply with this Act.

The Minister may give the ACMA written directions about how the ACMA is to exercise its powers under this Part.

The ACMA must comply with a direction under this section.

This section does not affect the Minister’s power to give the ACMA directions under other provisions about other matters.

A direction under this section is a legislative instrument.

(5) The Minister must not give the ACMA a direction under Australian Communications and Media Authority Act 2005 about how the ACMA is to exercise its powers under this Part.section 14 of the

This section applies to a direction under section 124 that requires the ACMA to make a standard under section 115.

If the Minister revokes a direction, the ACMA must revoke the section 115 standard that is in force because of the direction.

If the Minister varies a direction, the ACMA must either:

vary the section 115 standard that is in force because of the direction so that the standard complies with the varied direction; or

revoke the section 115 standard and determine a new section 115 standard that so complies.

If a section 115 standard is in force because of a direction:

the ACMA may vary the standard on its own initiative, but only in such a way that the varied standard still complies with the direction; and

the ACMA may, on its own initiative, revoke the standard and determine a new section 115 standard that so complies.

A revocation or variation of a section 115 standard must be in writing.

An instrument of revocation or variation of a section 115 standard is a legislative instrument.

The following is a simplified outline of this Part:

• The ACMA may impose requirements on any or all of the following:

carriers;

carriage service providers;

emergency call persons;

in relation to emergency call services.

• The ACMA may also give those persons an ECS direction, requiring them to provide information or consult with other persons in relation to emergency call services, or take certain action to develop policies, procedures and processes relating to emergency call services.

• The Triple Zero Custodian has functions relating to emergency call services, and may request the ACMA to give an ECS direction.

The ACMA must make a written determination imposing requirements on any or all of the following:

carriers;

carriage service providers;

emergency call persons;

in relation to emergency call services.

In making a determination under this section, the ACMA must have regard to the following:

the objective that a carriage service provider who supplies a standard telephone service should provide each end-user of that standard telephone service with access, free of charge, to an emergency call service, unless the ACMA considers that it would be unreasonable for such access to be provided;

the objective that, if a carriage service provider who supplies a standard telephone service is required to provide each end-user of that standard telephone service with access to an emergency call service operated by a recognised person, the recognised person should:

receive and handle calls made by those end-users to the relevant emergency service number; and

if appropriate—transfer such calls to an appropriate emergency service organisation; and

if appropriate—give information in relation to such calls to an appropriate emergency service organisation;

the objective that emergency service organisations should not be charged for services provided by a recognised person who operates an emergency call service, being services by way of:

receiving and handling calls to an emergency service number; or

transferring such calls to an emergency service organisation; or

giving information in relation to such calls to an emergency service organisation;

the objective that emergency service organisations should not be charged for the following carriage services:

carriage services used to connect calls made to an emergency service number;

carriage services used to transfer such calls to an emergency service organisation;

carriage services used to give information in relation to such calls to an emergency service organisation;

the objective that, as far as practicable, a common system is used to:

transfer calls made to an emergency service number to an emergency service organisation; and

give information in relation to such calls to an emergency service organisation;

the objective that calls made to an emergency service number are transferred to an appropriate emergency service organisation with the minimum of delay;

the objective that, from the perspective of an ordinary end-user of a standard telephone service, there appears to be a single national emergency call system;

the objective that reasonable community expectations for the handling of calls to emergency service numbers are met;

the objective that carriage services used to make calls to an emergency service number should, as far as practicable, provide the emergency call person concerned with automatic information about:

the location of the caller; and

the identity of the customer of the service being used by the caller;

the objective that carriers should provide carriage service providers with access to:

controlled carriage services of the carriers; and

controlled networks of the carriers; and

controlled facilities of the carriers;

in order that the providers can comply with their obligations under the determination;

the objective that carriage service providers should provide other carriage service providers with access to:

controlled carriage services of the first-mentioned providers; and

controlled networks of the first-mentioned providers; and

controlled facilities of the first-mentioned providers;

in order that the other providers can comply with their obligations under the determination;

the objective that a determination should be consistent with the following:

Australian Privacy Principle 6;

(ib) each registered APP code (as defined in the Privacy Act 1988), if any, that binds a participant in a section of the telecommunications industry;

(ii) codes registered under Part 6 of the Telecommunications Act 1997;

(iii) standards determined under Part 6 of the Telecommunications Act 1997.

Subsection (2) does not, by implication, limit the matters to which the ACMA may have regard.

A determination under this section may deal with ancillary or incidental matters, including the protection of the privacy of information transmitted in connection with a call to an emergency service number.

A determination under this section may deal with performance standards, including (but not limited to) performance standards relating to:

the answering of calls to emergency service numbers; and

delays in transferring calls made to an emergency service number to the appropriate emergency service organisation; and

the handling of complaints about emergency call services.

Subsections (4) and (5) do not, by implication, limit subsection (1).

A determination under this section is a legislative instrument.

In making a determination under this section, the ACMA may apply, adopt or incorporate (with or without modification) any matter contained in a code or standard proposed or approved by a body or association, either:

as in force or existing at a particular time; or

as in force or existing from time to time.

This subsection does not, by implication, limit Telecommunications Act 1997.section 589 of the

Before making a determination under this section, the ACMA must consult representatives of each of the following groups:

carriers;

carriage service providers;

recognised persons who operate an emergency call service;

emergency service organisations;

consumers of standard telephone services.

Before making a determination under this section, the ACMA must consult the Secretary.

A carriage service provider may provide the access referred to in paragraph (2)(a) itself or by arranging with another person for the access to be provided.

In this section:

emergency service organisation means an emergency service or a service for despatching an emergency service.

A person on whom a requirement is imposed by a determination in force under section 147 must comply with the determination.

Subsection (1) has effect subject to sections 149 and 151.

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).

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

Note: Telecommunications Act 1997 provides for pecuniary penalties for breaches of civil penalty provisions. This provision is a civil penalty provision for the purposes of that Act.Part 31 of the

This section applies if:

an emergency call service is operated by a recognised person; and

a determination under section 147 requires a carriage service provider who supplies a standard telephone service to provide each end-user of that standard telephone service with access to that emergency call service; and

a determination under section 147 requires the recognised person to:

receive and handle calls made by those end-users to the relevant emergency service number; and

if appropriate—transfer such calls to an appropriate emergency service; and

if appropriate—give information in relation to such calls to an appropriate emergency service.

The recognised person must comply with the requirement mentioned in paragraph (1)(c) on such terms and conditions as are:

agreed between the following parties:

the carriage service provider;

the recognised person; or

failing agreement, determined by an arbitrator appointed by the parties.

If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.

The regulations may make provision for and in relation to the conduct of an arbitration under this section.

The regulations may provide that, for the purposes of a particular arbitration conducted by the ACCC under this section, the ACCC may be constituted by a single member, or a specified number of members, of the ACCC. For each such arbitration, that member or those members are to be nominated in writing by the Chairperson of the ACCC.

Subsection (4) does not, by implication, limit subsection (3).

A determination made in an arbitration under this section must not be inconsistent with a Ministerial pricing determination in force under section 150.

The Minister may, by legislative instrument, make a determination setting out principles dealing with price-related terms and conditions relating to requirements of a kind referred to in subsection 149(1). The determination is to be known as a Ministerial pricing determination.

This section applies if a determination under section 147 requires a person to provide access as mentioned in paragraph 147(2)(j) or (k).

The person must provide that access in accordance with the requirements set out in the determination and on such terms and conditions as are:

agreed between the following parties:

the person;

the carriage service provider to whom access is required to be provided; or

failing agreement, determined by an arbitrator appointed by the parties.

If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.

The regulations may make provision for and in relation to the conduct of an arbitration under this section.

The regulations may provide that, for the purposes of a particular arbitration conducted by the ACCC under this section, the ACCC may be constituted by a single member, or a specified number of members, of the ACCC. For each such arbitration, that member or those members are to be nominated in writing by the Chairperson of the ACCC.

Subsection (4) does not, by implication, limit subsection (3).

(1) The ACMA may give a carrier, a carriage service provider or an emergency call person that is not an individual (the recipient) a written direction under subsection (2), (3) or (5) in relation to the following matters (the ECS matters):

the provision of access to an emergency call service;

the operation of an emergency call service;

the receiving, handling, transfer or carriage of calls to an emergency service number;

the handling, transfer or carriage of calls made by an emergency call person to an emergency service, or a service for despatching an emergency service, in connection with a call to an emergency service number;

matters that may affect, or be affected by, a matter mentioned in paragraph (a), (b), (c) or (d) in a manner that may pose a risk to the safety of the public or a section of the public.

Note 1: The ACMA may give an ECS direction on its own initiative or on request by the Custodian (see section 151L).

Note 2: The ACMA must give a copy of the direction to the Custodian as soon as practicable (see section 151C).

Direction to provide information relating to an ECS matter

The direction may require the recipient to provide to the ACMA information relating to an ECS matter, including information on any of the following:

policies, procedures or processes relating to an ECS matter;

the installation, operation, maintenance or testing of network units, cabling, equipment, facilities, networks or software which relate to an ECS matter.

Direction to provide information on a specified ECS outage event

The direction may require the recipient to provide to the ACMA information relating to a specified ECS outage event, including the following information:

details about the nature of the ECS outage event;

details about the services impacted by the ECS outage event;

details (including timeframes) relating to restoration and other actions to deal with the ECS outage event and its impact;

details about locations related to the ECS outage event;

(e) details about the effects of the ECS outage event, including the effects on any of the following (affected entities):

carriers;

carriage service providers;

emergency services or services for despatching emergency services;

Departments, agencies or authorities of the Commonwealth, a State or a Territory;

information relating to infrastructure affected by or related to the ECS outage event;

data on network performance and management before, during or after the ECS outage event;

details about the recipient’s interactions with other persons in relation to the ECS outage event, including with any affected entity;

details of the recipient’s public or internal communications relating to the ECS outage event.

(4) An event is an ECS outage event if the Custodian or the ACMA reasonably believes that the event:

is occurring or will occur; and

may result in:

one or more persons losing access to an emergency call service; or

an emergency call person being unable to receive or handle calls to an emergency service number, or to transfer such calls to an emergency service or a service for despatching an emergency service.

Direction to take specified action

The direction may require the recipient to do any of the following:

take specified action for the purpose of developing policies, procedures and processes relating to an ECS matter;

provide the information mentioned in subsection (2) or (3) to a specified person or body;

consult with, or take specified action in relation to consulting with, a specified person or body in relation to:

an ECS matter; or

information mentioned in subsection (2) or (3);

provide information to the ACMA in relation to any action the recipient is required to take under a direction made under this section.

Note: If the recipient provides information to a person under a direction, the person may use or disclose the information for the same purpose as the purpose for which the direction was given (see section 151E).

An ECS direction must specify the following:

(a) the period (the compliance period) within which the recipient of the direction must comply with the direction;

that the recipient may apply to the ACMA to extend the compliance period;

if the direction requires information to be provided:

the manner and form in which the information must be provided; and

(ii) that the provision of information as required by the direction is required or authorised by or under law for the purposes of Telecommunications Act 1997;Part 13 of the

if information provided under the direction must or can be provided verbally—that the recipient must, as soon as practicable after providing information verbally:

make a written record of the information provided; and

give a copy of the record to the ACMA;

that the recipient may apply to the ACMA to waive a requirement under subparagraph (d)(ii);

that, despite anything else in the direction, the direction does not impose on the recipient any requirement to the extent it is inconsistent with any requirement imposed on the recipient by a determination in force under section 147.

The ACMA may, at the request of the recipient and by written notice given to the recipient:

extend the compliance period; or

waive a requirement that the recipient give to the ACMA a copy of a written record of information provided verbally.

The ACMA must give a copy of an ECS direction to the Custodian as soon as practicable after giving the direction under section 151A.

A person on whom a requirement is imposed by an ECS direction must comply with the direction.

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: Telecommunications Act 1997 provides for pecuniary penalties for breaches of civil penalty provisions. This provision is a civil penalty provision for the purposes of that Act.Part 31 of the

This section applies if a person receives information that is:

provided to the person under an ECS direction; or

disclosed to the person under section 151F.

The person may use or disclose the information if the use or disclosure is for the same purpose as the purpose for which the direction was given or the information was disclosed.

Note 1: This subsection constitutes an authorisation for the purposes of Telecommunications Act 1997, the Privacy Act 1988 and other laws (including the common law).Part 13 of the

Note 2: This subsection does not limit any other authorisation in this Division (see section 151H).

(1) This section applies in relation to information (ECS information) obtained or generated by a person in the course of, or for the purposes of, performing functions or duties, or exercising powers, under this Division or Division 3 or 5.

The Custodian and the ACMA may use or disclose ECS information for the following purposes:

aiding preparation for, response to or recovery from an ECS outage event;

improving preparedness for ECS outage events;

maintaining an emergency call service;

matters relating to an emergency call service or an ECS matter.

Note 1: This subsection constitutes an authorisation for the purposes of Telecommunications Act 1997, the Privacy Act 1988 and other laws (including the common law).Part 13 of the

Note 2: This subsection does not limit any other authorisation in this Division (see section 151H).

Without limiting subsection (2), the Custodian and the ACMA may disclose ECS information for the purposes mentioned in that subsection to the following:

a carrier;

a carriage service provider;

an emergency call person;

an emergency service or a service for despatching an emergency service;

the National Emergency Management Agency;

the Minister;

a Department, agency or authority of the Commonwealth or a State or Territory.

Use or disclosure in performing functions or exercising powers under this Act

(1) The following persons (each an entrusted person) may use or disclose ECS information in performing functions or duties, or exercising powers, under or for the purposes of this Act:

the Minister;

the Secretary;

an APS employee in the Department;

(d) an ACMA official (within the meaning of the Australian Communications and Media Authority Act 2005);

a contractor engaged to provide services to the Department or the ACMA for the purposes of this Act;

an officer or employee of such a contractor.

Note 1: A provision of this section constitutes an authorisation for the purposes of Telecommunications Act 1997, the Privacy Act 1988 and other laws (including the common law).Part 13 of the

Note 2: An authorisation in this section does not limit any other authorisation in this Division (see section 151H).

Use or disclosure by ACMA in performing functions etc. in relation to ECS matters

The following persons may use or disclose ECS information in performing functions or duties, or exercising powers, relating to an ECS matter, under or for the purposes of an Act administered by the Minister:

(a) an ACMA official (within the meaning of the Australian Communications and Media Authority Act 2005);

a contractor engaged to provide services to the ACMA for the purposes of this Act;

an officer or employee of such a contractor.

Disclosure for purposes of proceedings

An entrusted person may disclose ECS information to a court or tribunal, or in accordance with an order of a court or tribunal, for the purposes of proceedings.

Use or disclosure for purposes of enforcement-related activity

An entrusted person may use ECS information, or disclose ECS information to:

(a) an enforcement agency (within the meaning of the Telecommunications (Interception and Access) Act 1979); or

(b) an enforcement body (within the meaning of the Privacy Act 1988);

if the person reasonably believes that the use or disclosure is reasonably necessary for, or directly related to, one or more enforcement-related activities (within the meaning of the Privacy Act 1988) being conducted by, or on behalf of, the enforcement agency or body.

(5) The enforcement agency or body may use or disclose information disclosed under subsection (4) for the purposes of one or more enforcement-related activities (within the meaning of the Privacy Act 1988) being conducted by, or on behalf of, that agency or body.

Use or disclosure required or authorised by another Australian law

An entrusted person may use or disclose ECS information if the use or disclosure is required or authorised under a law of:

the Commonwealth (other than this Act); or

a State or Territory.

Disclosure to person to whom information relates

An entrusted person may disclose ECS information to the person to whom the information relates.

Use or disclosure with consent

(8) An entrusted person (the first person) may use or disclose ECS information for a purpose if the person to whom the information relates has expressly consented to the first person using or disclosing the information for that purpose.

Disclosure to person who provided information

An entrusted person may disclose ECS information to the person who provided the information.

Use or disclosure of information that is already public

An entrusted person may use ECS information, or disclose ECS information to another person, if the information has already been lawfully made available to the public.

Disclosure for purposes of preventing serious threat to safety, health or well-being

An entrusted person may disclose ECS information if the disclosure is necessary to lessen or prevent a serious threat to the safety, health or well-being of another person.

An authorisation for the use and disclosure of information in this Division does not limit any other authorisation in this Division.

(1) There is to be a Triple Zero Custodian (the Custodian).

The person performing the functions of the Secretary is to be the Custodian.

The Custodian has the following functions:

aiding preparation for, response to or recovery from an ECS outage event;

improving preparedness for ECS outage events;

overseeing the effective functioning of emergency call services and the proper functioning of the ECS matters;

any other function conferred by this Act in relation to emergency call services;

any other function specified under subsection (2).

For the purposes of paragraph (1)(e), the Minister may, by legislative instrument, specify an additional function of the Custodian if the Minister is satisfied that the function is related to emergency call services.

The Custodian may request the ACMA to give an ECS direction to a carrier, a carriage service provider or an emergency call person that is not an individual if the Custodian considers it is necessary or appropriate for the performance of the Custodian’s functions.

The request must:

be in writing; and

specify:

the carrier, carriage service provider or emergency call person that is to be the recipient of the direction; and

the terms of the direction.

The ACMA must give the direction:

unless paragraph (b) applies—within 7 days of receiving the request; or

if the request so specifies—as soon as practicable;

or within such longer period as agreed to in writing by the Custodian.

The ACMA must give the direction:

to the person specified in the request; and

in the terms specified in the request;

subject to any changes agreed to in writing by the Custodian.

If the direction requires information to be provided to the ACMA, as soon as practicable after receiving the information, the ACMA must give to the Custodian:

the information; and

the ACMA’s views on the information (if any).

The Custodian may request the ACMA to give the Custodian:

information required to be provided to the ACMA under an ECS direction; or

ECS information held by the ACMA; or

any other information relating to an ECS matter; or

advice relating to an ECS matter;

if the Custodian considers it is necessary or appropriate for the performance of the Custodian’s functions.

The request must:

be in writing; and

specify the information or advice to be given by the ACMA.

The ACMA must give the information or advice:

unless paragraph (b) applies—within 7 days of receiving the request; or

if the request so specifies—as soon as practicable;

or within such longer period as agreed to in writing by the Custodian.

The ACMA must give the Custodian:

the information specified in the request (if any); and

the advice specified in the request (if any);

subject to any changes agreed to in writing by the Custodian.

(1) The Custodian may, in writing, refer a matter to the ACMA for investigation under Telecommunications Act 1997 if:Part 26 of the

the matter relates to an emergency call service; and

the matter relates to the performance of the ACMA’s telecommunications functions or the exercise of the ACMA’s telecommunications powers.

Note: The ACMA may, on its own initiative, decide to investigate such a matter under Telecommunications Act 1997 (see paragraphs 508(f) and 510(1)(c) of that Act).Part 26 of the

As part of the referral, the Custodian may disclose to the ACMA any relevant ECS information.

Note: This subsection constitutes an authorisation for the purposes of Telecommunications Act 1997, the Privacy Act 1988 and other laws (including the common law).Part 13 of the

The ACMA must decide, in writing, whether or not it will investigate the matter.

The decision must:

be made within 30 days of receiving the referral; and

be given to the Minister and the Custodian.

(5) If the ACMA decides to investigate the matter, paragraph 510(1)(c) of the Telecommunications Act 1997 is taken to apply to the investigation.

Note: The matter will be a matter covered by paragraph 508(f) of the Telecommunications Act 1997 (because of paragraph (1)(b) of this section), and the ACMA will investigate the matter, under paragraph 510(1)(c) of that Act, as a matter that the ACMA thinks that it is desirable to investigate (because of this subsection).

The Custodian may, by writing, delegate any or all of the Custodian’s functions or powers to an SES employee, or acting SES employee, in the Department.

Note: The expressions SES employee and acting SES employee are defined in the Acts Interpretation Act 1901.

A delegate must comply with any written directions of the Custodian.

The ACMA must, within 3 months after the end of each 6 month period starting on the commencement of this section, report in writing to the Minister on the following matters:

ECS directions given during the period;

matters referred for investigation under section 151N during the period;

the ACMA’s decisions on whether or not it will investigate those matters;

any other activities the ACMA has undertaken during the period using information obtained or generated by the ACMA in the course of, or for the purposes of, performing functions or duties, or exercising powers, under Divisions 3, 4 or 5.

The ACMA must provide a copy of the report to the Custodian.

The Minister may, in the second year after the commencement of this section, cause a review to be conducted of the effectiveness of Divisions 3, 4 and 5.

The RTIRC must conduct reviews of the adequacy of telecommunications services in regional, rural and remote parts of Australia.

Note: RTIRC means the Regional Telecommunications Independent Review Committee established by section 158R.

In determining the adequacy of those services, the RTIRC must have regard to whether people in regional, rural and remote parts of Australia have equitable access to telecommunications services that are:

significant to people in those parts of Australia; and

currently available in one or more urban parts of Australia.

Timing of reviews

The first review must start:

before the end of 2008; or

if, before 31 December 2008, the Minister makes a written determination specifying an earlier day—as soon as practicable after that earlier day.

Each subsequent review must be completed within 3 years after the last day on which a copy of a statement setting out the Commonwealth Government’s response to the recommendations of the previous review was tabled in a House of the Parliament under paragraph 158Q(6)(b). For this purpose, a review is completed when the report of the review is given to the Minister under section 158Q.

Consultation

In conducting a review, the RTIRC must make provision for:

public consultation; and

consultation with people in regional, rural and remote parts of Australia.

Relevant matters

In conducting a review, the RTIRC must have regard to:

any policies of the Commonwealth Government notified to the RTIRC by the Minister; and

such other matters as the RTIRC considers relevant.

Determination

Before making a determination under paragraph (3)(b), the Minister must consult:

the Prime Minister; and

the Treasurer; and

the Finance Minister; and

(d) the Minister administering the Urban and Regional Development (Financial Assistance) Act 1974.

(8) A determination under paragraph (3)(b) is a legislative instrument, but Legislation Act 2003 does not apply to the determination.section 42 (disallowance) of the

Australia

(9) Section 11 of the Telecommunications Act 1997 (as applied by section 7 of this Act) does not apply to a reference in this section to Australia.

Definitions

In this section:

Australia does not include an external Territory prescribed for the purposes of section 10 of the Telecommunications Act 1997.

telecommunications services includes:

carriage services; and

services provided by means of carriage services.

The RTIRC must:

prepare a report of a review under section 158P; and

give the report to the Minister.

The Minister must cause copies of the report to be tabled in each House of the Parliament within 15 sitting days of that House after receiving the report.

Recommendations

The report may set out recommendations to the Commonwealth Government.

In formulating a recommendation that the Commonwealth Government should take particular action, the RTIRC must assess the costs and benefits of that action.

Subsection (4) does not prevent the RTIRC from taking other matters into account in formulating a recommendation.

Government response to recommendations

If a report sets out one or more recommendations to the Commonwealth Government:

as soon as practicable after receiving the report, the Minister must cause to be prepared a statement setting out the Commonwealth Government’s response to the recommendations; and

within 6 months after receiving the report, the Minister must cause copies of the statement to be tabled in each House of the Parliament.

A statement prepared under paragraph (6)(a) must contain an explanation of how the Commonwealth Government’s response to the recommendations will improve telecommunications services in regional, rural or remote parts of Australia.

The Commonwealth Government’s response to the recommendations may have regard to the views of the following:

(a) participants in sections of the telecommunications industry (within the meaning of Part 6 of the Telecommunications Act 1997);

the ACMA;

the ACCC;

the Telecommunications Industry Ombudsman;

bodies or associations that represent the interests of consumers;

such other persons as the Minister considers relevant.

Definitions

In this section:

Australia has the same meaning as in section 158P.

telecommunications services has the same meaning as in section 158P.

There is to be a Regional Telecommunications Independent Review Committee.

The RTIRC has the functions that are conferred on it by this Part.

The RTIRC is to consist of a Chair and at least 2 other members.

A person may only be appointed as an RTIRC member if it appears to the Minister that the person has knowledge of, or experience in:

matters affecting regional, rural and remote parts of Australia; or

telecommunications.

The Minister must ensure that:

the RTIRC Chair is not a person covered by subsection (4); and

a majority of the other RTIRC members are not persons covered by subsection (4).

This subsection applies to the following persons:

an employee of the Commonwealth;

an employee of an authority of the Commonwealth;

a person who holds a full-time office under a law of the Commonwealth.

The Minister must ensure that at least one RTIRC member is nominated by an organisation that represents the interests of people, or bodies, in regional, rural or remote parts of Australia.

The Minister must ensure that no RTIRC member is:

a carriage service provider; or

a partner in a carriage service provider partnership; or

an officer or employee of a carrier; or

an officer or employee of a carriage service provider; or

an officer or employee of a partner in a carrier partnership; or

an officer or employee of a partner in a carriage service provider partnership; or

an officer or employee of a body corporate, where a related body corporate is:

a carrier; or

a carriage service provider; or

a partner in a carrier partnership; or

a partner in a carriage service provider partnership.

(6) Section 11 of the Telecommunications Act 1997 (as applied by section 7 of this Act) does not apply to a reference in this section to Australia.

In this section:

Australia does not include an external Territory prescribed for the purposes of section 10 of the Telecommunications Act 1997.

carriage service provider partnership means a partnership that is a carriage service provider.

carrier partnership means a partnership that is a carrier.

related body corporate has the same meaning as in the Corporations Act 2001.

The RTIRC members are to be appointed by the Minister by written instrument.

An RTIRC member holds office for the period specified in the instrument of appointment. The period must not exceed 4 years.

An RTIRC member holds office on a part-time basis.

The Minister may appoint an RTIRC member to act as the RTIRC Chair:

during a vacancy in the office of the RTIRC Chair, whether or not an appointment has previously been made to the office; or

during any period, or during all periods, when the RTIRC Chair is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.

Note: For rules that apply to acting appointments, see Acts Interpretation Act 1901.section 33A of the

The regulations may prescribe the procedures to be followed at or in relation to meetings of the RTIRC, including matters relating to the following:

the convening of meetings of the RTIRC;

the number of RTIRC members who are to constitute a quorum;

the selection of an RTIRC member to preside at meetings of the RTIRC in the absence of the RTIRC Chair;

the manner in which questions arising at a meeting of the RTIRC are to be decided.

A resolution is taken to have been passed at a meeting of the RTIRC if:

without meeting, a majority of RTIRC members indicate agreement with the resolution in accordance with the method determined by the RTIRC under subsection (3); and

all RTIRC members were informed of the proposed resolution, or reasonable efforts had been made to inform all RTIRC members of the proposed resolution.

Subsection (2) applies only if the RTIRC:

determines that it applies; and

determines the method by which RTIRC members are to indicate agreement with resolutions.

An RTIRC member who has a material personal interest in a matter being considered by the RTIRC must, as soon as possible after the relevant facts have come to the member’s knowledge, disclose the nature of the interest at a meeting of the RTIRC.

The disclosure is to be recorded in the minutes of the meeting and, unless the Minister or the RTIRC otherwise determines, the RTIRC member must not:

be present during any deliberation by the RTIRC about that matter; or

take part in any decision of the RTIRC relating to that matter.

For the purposes of the making of a determination by the RTIRC under subsection (2) in relation to an RTIRC member who has made a disclosure under subsection (1), an RTIRC member who has an interest in the matter to which the disclosure relates must not:

be present during any deliberation of the RTIRC for the purposes of making the determination; or

take part in the making by the RTIRC of the determination.

An RTIRC member is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed.

An RTIRC member is to be paid the allowances that are prescribed.

(3) This section has effect subject to the Remuneration Tribunal Act 1973.

The Minister may grant leave of absence to the RTIRC Chair on the terms and conditions that the Minister determines.

The RTIRC Chair may grant leave of absence to an RTIRC member on the terms and conditions that the RTIRC Chair determines.

An RTIRC member may resign his or her appointment by giving the Minister a written resignation.

The Minister may terminate the appointment of an RTIRC member for misbehaviour or physical or mental incapacity.

The Minister may terminate the appointment of an RTIRC member if:

the RTIRC member:

becomes bankrupt; or

applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

compounds with his or her creditors; or

makes an assignment of remuneration for the benefit of his or her creditors; or

the RTIRC member is absent, except on leave of absence, for 3 consecutive meetings of the RTIRC; or

the RTIRC member fails, without reasonable excuse, to comply with section 158X.

The Minister may terminate the appointment of the RTIRC Chair if the RTIRC Chair becomes a person covered by subsection 158T(4).

The Minister may terminate the appointment of an RTIRC member if the RTIRC member becomes a person covered by paragraph 158T(5)(a), (b), (c), (d), (e), (f) or (g).

An RTIRC member holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.

Any or all of the following:

the ACMA;

the ACCC;

the Department;

any other Department, agency or authority of the Commonwealth;

may assist the RTIRC in the performance of its functions.

The assistance may include the following:

the provision of information;

the provision of advice;

the making available of resources and facilities (including secretariat services and clerical assistance).

(3) A reference in Parts 26 and 27 of the Telecommunications Act 1997 to the ACMA’s telecommunications functions includes a reference to the function conferred on the ACMA by subsection (1).