Commonwealth Consolidated Acts Commonwealth Consolidated ActsObject
(1) The object of this section is to promote the national interest in structural reform of the telecommunications industry by authorising, for the purposes of subsection 51(1) of the Competition and Consumer Act 2010 , certain conduct engaged in by:
(a) Telstra; and
(b) NBN corporations; and
(c) certain other persons.
Note: If conduct is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010 , the conduct is disregarded in deciding whether a person has contravened Part IV of that Act.
Authorised conduct
(2) The giving by Telstra, before the commencement of section 577ACA, of:
(a) an undertaking under section 577A; or
(b) a variation of an undertaking in force under section 577A; or
(c) a draft migration plan in accordance with an undertaking in force under section 577A; or
(d) a variation of a final migration plan;
is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010 .
(2A) The giving by a designated Telstra successor company of:
(a) a variation of an undertaking in force under section 577A; or
(b) a variation of a final migration plan;
is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010 .
(3) If:
(a) Telstra enters into a contract, arrangement or understanding with an NBN corporation; and
(b) when the contract, arrangement or understanding is entered into, no undertaking is in force under section 577A; and
(c) the operative provisions of the contract, arrangement or understanding are subject to a condition precedent, namely, the coming into force of an undertaking under section 577A;
then:
(d) the entering into of the contract, arrangement or understanding by Telstra is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010 ; and
(e) the entering into of the contract, arrangement or understanding by the NBN corporation is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010 ; and
(f) if:
(i) the undertaking under section 577A comes into force; and
(ii) if the contract, arrangement or understanding was in writing--before the undertaking was accepted by the ACCC, Telstra or the NBN corporation gave the ACCC a copy of the contract, arrangement or understanding; and
(iii) if the contract, arrangement or understanding was not in writing--before the undertaking was accepted by the ACCC, the contract, arrangement or understanding was reduced to writing and Telstra or the NBN corporation gave the ACCC a copy of the contract, arrangement or understanding;
then:
(iv) conduct engaged in by Telstra or the NBN corporation after the undertaking comes into force in order to give effect to a provision of the contract, arrangement or understanding is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010 ; and
(v) conduct engaged in by another NBN corporation after the undertaking comes into force in order to facilitate the first - mentioned NBN corporation giving effect to a provision of the contract, arrangement or understanding is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010 .
(4) If:
(a) Telstra enters into a contract, arrangement or understanding with an NBN corporation; and
(b) the contract, arrangement or understanding contains a migration provision; and
(c) when the contract, arrangement or understanding is entered into, no undertaking is in force under section 577A;
then:
(d) the entering into of the contract, arrangement or understanding by Telstra is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010 , to the extent to which the contract, arrangement or understanding contains the migration provision; and
(e) the entering into of the contract, arrangement or understanding by the NBN corporation is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010 , to the extent to which the contract, arrangement or understanding contains the migration provision.
(5) If:
(a) Telstra enters into a contract, arrangement or understanding with an NBN corporation; and
(b) the contract, arrangement or understanding contains a migration provision; and
(c) Telstra or the NBN corporation engages in conduct in order to give effect to the migration provision; and
(d) when the conduct is engaged in, no undertaking is in force under section 577A;
the conduct is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010 unless, before the conduct was engaged in:
(e) the ACCC refused to accept the most recent undertaking given by Telstra under section 577A; or
(f) as a result of subsection 577AA(7) or (8), this Act (other than subclause 76(4) of Schedule 1) had effect as if the most recent undertaking given by Telstra under section 577A had never been accepted by the ACCC; or
(g) a final functional separation undertaking came into force.
(6) If a designated Telstra successor company is required to engage in conduct in order to comply with an undertaking in force under section 577A, the conduct is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010 .
(7) If:
(a) a person directly or indirectly acquires an asset from a designated Telstra successor company; and
(b) the disposal of the asset by the designated Telstra successor company is required for the compliance by the designated Telstra successor company with an undertaking in force under section 577A; and
(c) the person is identified in the undertaking as the person by whom the asset is to be directly or indirectly acquired;
the acquisition of the asset is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010 .
(8) If:
(a) Telstra or a designated Telstra successor company enters into a contract, arrangement or understanding with an NBN corporation; and
(b) Telstra or the designated Telstra successor company enters into the contract, arrangement or understanding in order to comply with an undertaking in force under section 577A;
then:
(c) the entering into of the contract, arrangement or understanding by Telstra or the designated Telstra successor company; and
(d) the entering into of the contract, arrangement or understanding by the NBN corporation; and
(e) conduct engaged in by Telstra or a designated Telstra successor company or the NBN corporation in order to give effect to a provision of the contract, arrangement or understanding; and
(f) conduct engaged in by another NBN corporation in order to facilitate the first - mentioned NBN corporation giving effect to a provision of the contract, arrangement or understanding; and
(g) conduct engaged in by a designated Telstra successor company in order to facilitate Telstra or a designated Telstra successor company giving effect to a provision of the contract, arrangement or understanding;
is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010 .
(9) If:
(a) an undertaking is in force under section 577A; and
(b) Telstra or a designated Telstra successor company enters into a contract, arrangement or understanding with an NBN corporation;
the Minister may, by legislative instrument, determine that subsection (8) applies, and is taken to have always applied, as if Telstra or the designated Telstra successor company had entered into the contract, arrangement or understanding in order to comply with the undertaking.
(10) If:
(a) a final migration plan is in force; and
(b) the final migration plan sets out a method for determining a timetable for the taking of the action specified in the plan in accordance with paragraph 577BC(2)(a); and
(c) a designated Telstra successor company or an NBN corporation engages in conduct for the purposes of determining the timetable; and
(d) the conduct is consistent with the method;
the conduct is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010 .
(10A) If:
(a) a body corporate enters into a contract, arrangement or understanding; and
(b) the body corporate enters into the contract, arrangement or understanding in order to comply with a direction under subsection 577BAA(1);
then:
(c) the entering into of the contract, arrangement or understanding by the body corporate; and
(d) conduct engaged in by the body corporate in order to give effect to a provision of the contract, arrangement or understanding;
is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010 .
(10B) If a body corporate is subject to a direction under subsection 577BAA(1), conduct engaged in by the body corporate in order to comply with the direction is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010 .
(10C) If:
(a) a contract, arrangement or understanding (the first contract, arrangement or understanding ) is covered by another subsection of this section; and
(b) the first contract, arrangement or understanding was in force immediately before the commencement of this subsection; and
(c) one or more designated Telstra successor companies and one or more NBN corporations enter into to another contract, arrangement or understanding; and
(d) the sole purpose of the other contract, arrangement or understanding is to do any or all of the following:
(i) provide that an obligation imposed on Telstra under the first contract, arrangement or understanding extends to one or more designated Telstra successor companies;
(ii) provide that a right conferred on Telstra under the first contract, arrangement or understanding extends to one or more designated Telstra successor companies;
(iii) provide that an obligation that an NBN corporation owes to Telstra under the first contract, arrangement or understanding extends so that the obligation is also owed to one or more designated Telstra successor companies;
(iv) provide that a right that an NBN corporation has against Telstra under the first contract, arrangement or understanding extends so that the right is also against one or more designated Telstra successor companies;
then:
(d) the entering into of the other contract, arrangement or understanding; and
(e) conduct engaged in by:
(i) a designated Telstra successor company; or
(ii) an NBN corporation; or
(iii) a body corporate that is a related body corporate (within the meaning of the Corporations Act 2001 ) of a designated Telstra successor company; or
(iv) a body corporate that is a related body corporate (within the meaning of the Corporations Act 2001 ) of an NBN corporation;
in order to give effect to the other contract, arrangement or understanding;
is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010 .
(11) If:
(a) Telstra enters into a contract, arrangement or understanding with an NBN corporation; and
(b) the contract, arrangement or understanding contains one or more provisions for:
(i) Telstra to cease to supply fixed - line carriage services to customers using a telecommunications network over which Telstra is in a position to exercise control; or
(ii) Telstra to cease to supply one or more types of fixed - line carriage services to customers using a telecommunications network over which Telstra is in a position to exercise control; or
(iii) Telstra to cease to supply, in particular circumstances, one or more types of fixed - line carriage services to customers using a telecommunications network over which Telstra is in a position to exercise control; or
(iv) Telstra to commence to supply fixed - line carriage services to customers using the national broadband network;
then:
(c) each of the provisions mentioned in paragraph (b) is a migration provision ; and
(d) if the contract, arrangement or understanding contains one or more provisions for Telstra to supply services to an NBN corporation in connection with any or all of the matters mentioned in paragraph (b)--each of those provisions is a migration provision ; and
(e) if the contract, arrangement or understanding contains one or more provisions for an NBN corporation to supply services to Telstra in connection with any or all of the matters mentioned in paragraph (b)--each of those provisions is a migration provision ; and
(f) if the contract, arrangement or understanding contains one or more provisions for Telstra to give information to an NBN corporation in connection with any or all of the matters mentioned in paragraph (b)--each of those provisions is a migration provision ; and
(g) if the contract, arrangement or understanding contains one or more provisions for an NBN corporation to give information to Telstra in connection with any or all of the matters mentioned in paragraph (b)--each of those provisions is a migration provision .
(12) In this section:
"asset" means:
(a) any legal or equitable estate or interest in real or personal property, including a contingent or prospective one; and
(b) any right, privilege or immunity, including a contingent or prospective one.
"enter into" :
(a) when used in relation to an arrangement--includes make; or
(b) when used in relation to an understanding--includes arrive at or reach.
"fixed-line carriage service" means:
(a) a carriage service that is supplied using a line to premises occupied or used by an end - user; or
(b) a service that facilitates the supply of a carriage service covered by paragraph (a).
"give effect to" , in relation to a provision of a contract, arrangement or understanding, has the same meaning as in the Competition and Consumer Act 2010.
"migration provision" has the meaning given by subsection (11).
"national broadband network" means a telecommunications network for the high - speed carriage of communications, where an NBN corporation has been, is, or is to be, involved in the creation or development of the network. To avoid doubt, it is immaterial whether the creation or development of the network is, to any extent, attributable to:
(a) the acquisition of assets that were used, or for use, in connection with another telecommunications network; or
(b) the obtaining of access to assets that are also used, or for use, in connection with another telecommunications network.
"NBN Co" means NBN Co Limited (ACN 136 533 741), as the company exists from time to time (even if its name is later changed).
"NBN corporation" means:
(a) NBN Co; or
(b) NBN Tasmania; or
(c) a company that is a related body corporate of NBN Co.
"NBN Tasmania" means NBN Tasmania Limited (ACN 138 338 271), as the company exists from time to time (even if its name is later changed).
"related body corporate" has the same meaning as in the Corporations Act 2001 .