Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) An eligible company must, if requested to do so by a carrier, give the carrier access to facilities owned or operated by the eligible company.
Note 1: See also subsection (10) (when carrier is entitled to make a request).
Note 2: See also clause 17 of Schedule 1.
(2) Subsection (1) is a civil penalty provision.
Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.
(3) The eligible company is not required to comply with subsection (1) unless:
(a) the access is provided for the sole purpose of enabling the carrier:
(i) to provide facilities and carriage services; or
(ii) to establish its own facilities; and
(b) the carrier's request is reasonable; and
(c) the carrier gives the eligible company reasonable notice that the carrier requires the access; and
(d) in a case where the facilities do not consist of customer cabling or customer equipment--the facilities:
(i) were in place on 30 June 1991; or
(ii) were not in place on 30 June 1991, and were not obtained after that date by the eligible company solely by means of commercial negotiation.
(4) Subsection (1) does not impose an obligation to the extent (if any) to which the imposition of the obligation would have any of the following effects:
(a) depriving any person of a right under a contract that was in force at the time the request was made;
(b) preventing a designated Telstra successor company from complying with an undertaking in force under section 577A;
(c) preventing Telstra from complying with an undertaking in force under section 577C or 577E;
(d) if a final migration plan is in force--requiring a designated Telstra successor company to engage in conduct in connection with matters covered by the final migration plan.
(5) If, at the time the request was made:
(a) one or more provisions (the contingent provisions ) of a contract have not come into force because:
(i) the contingent provisions are subject to a condition precedent; and
(ii) the condition precedent has not been satisfied; and
(b) there is a possibility that the condition precedent could become satisfied; and
(c) assuming that the condition precedent had been satisfied:
(i) the contingent provisions would come into force; and
(ii) the person would have a right under the contingent provisions;
paragraph (4)(a) has effect, in relation to the contract, as if, at the time the request was made:
(d) the contract was in force; and
(e) the person had the right under the contract.
(6) For the purposes of this section, in determining whether the carrier's request is reasonable, regard must be had to the question whether compliance with the request will promote the long - term interests of end - users of carriage services or of services supplied by means of carriage services. That question is to be determined in the same manner as it is determined for the purposes of Part XIC of the Competition and Consumer Act 2010 .
(7) Subsection (6) is intended to limit the matters to which regard may be had.
(8) For the purposes of subsection (1), if:
(a) there is an agreement in force between Telstra or a designated Telstra successor company and an NBN corporation; and
(b) the agreement relates to the NBN corporation's access to facilities owned or operated by Telstra or the designated Telstra successor company; and
(c) apart from this section, the agreement would result in the NBN corporation being the operator of the facilities;
the NBN corporation is taken not to be the operator of the facilities.
(9) A reference in this section to a facility is a reference to:
(a) a facility as defined by section 7; or
(b) land on which a facility mentioned in paragraph (a) is located; or
(c) a building or structure on land referred to in paragraph (b); or
(d) customer equipment, or customer cabling, connected to a telecommunications network owned or operated by a carrier.
(10) A carrier is not entitled to make a request under subsection (1) of this section before the end of the 60 - day period beginning on the day after the day specified in the instrument made under subsection 581ZH(3).
(11) In this section:
"NBN corporation" has the same meaning as in section 577BA.