Commonwealth Consolidated Acts Commonwealth Consolidated ActsNote: See section 61.
Part 1 -- Compliance with this Act
(1) A carrier must comply with this Act.
(2) In this clause:
"this Act" includes the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act and Chapter 5 of the Telecommunications (Interception and Access) Act 1979 .
Part 3 -- Access to supplementary facilities
The following is a simplified outline of this Part:
• Carriers must provide other carriers with access to facilities for the purpose of enabling the other carriers to:
(a) provide competitive facilities and competitive carriage services; or
(b) establish their own facilities.
17 Access to supplementary facilities
(1) A carrier (the first carrier ) must, if requested to do so by another carrier (the second carrier ) give the second carrier access to facilities owned or operated by the first carrier.
Note: See also section 581Y.
(2) The first carrier is not required to comply with subclause (1) unless:
(a) the access is provided for the sole purpose of enabling the second carrier:
(i) to provide competitive facilities and competitive carriage services; or
(ii) to establish its own facilities; and
(b) the second carrier's request is reasonable; and
(c) the second carrier gives the first carrier reasonable notice that the second 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 first carrier solely by means of commercial negotiation.
(2A) Subclause (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;
(aa) preventing a designated Telstra successor company from complying with an undertaking in force under section 577A;
(b) preventing Telstra from complying with an undertaking in force under section 577C or 577E;
(c) 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.
(2B) 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 (2A)(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.
(3) For the purposes of this clause, in determining whether the second 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 .
(4) Subclause (3) is intended to limit the matters to which regard may be had.
(4A) For the purposes of subclause (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 clause, 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.
(5) A reference in this clause 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.
(6) In this clause:
"NBN corporation" has the same meaning as in section 577BA.
18 Terms and conditions of access
(1) The first carrier (within the meaning of clause 17) must comply with subclause 17(1) on such terms and conditions as are:
(a) agreed between the following parties:
(i) the first carrier;
(ii) the second carrier (within the meaning of that clause); or
(b) 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.
(2) The regulations may make provision for and in relation to the conduct of an arbitration under this clause.
(3) The regulations may provide that, for the purposes of a particular arbitration conducted by the ACCC under this clause, 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.
(4) Subclause (3) does not, by implication, limit subclause (2).
(5) A determination made in an arbitration under this clause must not be inconsistent with a Ministerial pricing determination in force under clause 19.
(6) An arbitrator must not make a determination under this clause if the determination would have the effect of:
(aa) preventing a designated Telstra successor company from complying with an undertaking in force under section 577A; or
(a) preventing Telstra from complying with an undertaking in force under section 577C or 577E; or
(b) 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.
(7) If:
(a) an agreement mentioned in paragraph (1)(a) is in force; and
(b) the agreement is in writing;
a determination under this clause has no effect to the extent to which it is inconsistent with the agreement.
19 Ministerial pricing determinations
(1) The Minister may, by legislative instrument, make a determination setting out principles dealing with price - related terms and conditions relating to the obligations imposed by subclause 17(1). The determination is to be known as a Ministerial pricing determination .
(3) In this clause:
"price-related terms and conditions" means terms and conditions relating to price or a method of ascertaining price.
Part 4 -- Access to network information
The following is a simplified outline of this Part:
• Carriers must provide other carriers with access to certain information relating to the operation of telecommunications networks.
21 Access to network information
(1) This clause applies to a carrier (the first carrier ) if the first carrier supplies carriage services to another carrier (the second carrier ).
(2) The first carrier must, if requested to do so by the second carrier, provide the second carrier with reasonable access to:
(a) timely and detailed information from the first carrier's operations support systems; and
(b) timely and detailed traffic flow information.
(3) The first carrier is not required to comply with subclause (2) unless:
(a) a purpose of the access is to enable the second carrier to undertake planning, maintenance or reconfiguration of the second carrier's telecommunications network; and
(b) the second carrier's request is reasonable.
(4) If information is requested by the second carrier under subclause (2), the first carrier must make the information available to the second carrier as soon as practicable after the request is made.
(5) Clauses 22, 23, 24, 25 and 29 do not, by implication, limit this clause.
22 Access to information in databases
(1) This clause applies to a carrier (the first carrier ) if the first carrier supplies carriage services to another carrier (the second carrier ).
(2) The first carrier must, if requested to do so by the second carrier, provide the second carrier with reasonable access to timely and detailed information that:
(a) is contained in the first carrier's databases; and
(b) relates to the manner in which the first carrier's telecommunications network treats calls of a particular kind.
(3) The first carrier is not required to comply with subclause (2) unless:
(a) a purpose of the access is to enable the second carrier to undertake planning, maintenance or reconfiguration of the second carrier's telecommunications network; and
(b) the second carrier's request is reasonable.
(4) If information is requested by the second carrier under subclause (2), the first carrier must make the information available to the second carrier as soon as practicable after the request is made.
23 Access to network planning information
(1) This clause applies to a carrier (the first carrier ) if the first carrier supplies carriage services to another carrier (the second carrier ).
(2) The first carrier must, if requested to do so by the second carrier, provide the second carrier with timely and detailed telecommunications network planning information.
(3) The information is to include (but is not limited to) information relating to the following:
(a) the volume or characteristics of traffic being offered by the first carrier to a telecommunications network of the second carrier;
(b) the telecommunications network performance standards (if any) that have been set by the first carrier.
(4) The first carrier is not required to comply with subclause (2) unless:
(a) a purpose of the provision of the information is to enable the second carrier to undertake planning for its own telecommunications network; and
(b) the second carrier's request is reasonable.
(5) If information is requested by the second carrier under subclause (2), the first carrier must make the information available to the second carrier as soon as practicable after the request is made.
24 Access to information about likely changes to network facilities--completion success rate of calls
(1) This clause applies to a carrier (the first carrier ) if the first carrier supplies carriage services to another carrier (the second carrier ).
(2) The first carrier must, if requested to do so by the second carrier, provide the second carrier with timely and detailed information that:
(a) relates to likely changes to facilities on a telecommunications network of the first carrier; and
(b) will affect the completion success rate of calls offered by the second carrier.
(3) The first carrier is not required to comply with subclause (2) unless:
(a) a purpose of the provision of the information is to enable the second carrier to undertake planning for its own telecommunications network; and
(b) the second carrier's request is reasonable.
(4) If information is requested by the second carrier under subclause (2), the first carrier must make the information available to the second carrier as soon as practicable after the request is made.
25 Access to quality of service information etc.
(1) This clause applies to a carrier (the first carrier ) if the first carrier supplies carriage services to another carrier (the second carrier ).
(2) The first carrier must, if requested to do so by the second carrier, provide the second carrier with timely and detailed information relating to:
(a) conditions affecting the quality of service experienced by customers of the second carrier; and
(b) localisation of telecommunications network conditions affecting traffic offered by the second carrier to the first carrier's telecommunications network; and
(c) routing information allowing the second carrier to determine in which telecommunications network calls have failed; and
(d) identification of switching or other equipment or facilities in each of the first carrier's telecommunications networks which contribute to a level of uncompleted calls, affecting the second carrier's offered traffic, beyond the threshold agreed by the first carrier and the second carrier and consistent with terms used in the relevant ITU(T) Recommendations; and
(e) periodic summaries, in relation to the second carrier's traffic, of unsuccessful call ratios across the first carrier's telecommunications network, categorised by cause of call failure and including separate identification of telecommunications network difficulties and congestion; and
(f) telecommunications network control actions taken by the first carrier which would affect the completion success rate of calls offered to the first carrier by the second carrier; and
(g) such other matters (if any) as are specified in the regulations.
(3) The first carrier is not required to comply with subclause (2) unless the second carrier's request is reasonable.
(4) If information is requested by the second carrier under subclause (2), the first carrier must make the information available to the second carrier as soon as practicable after the request is made.
(5) In this clause:
"ITU(T) Recommendations" means the E500, E600 and E700 series of recommendations dealing with quality of service, telecommunications network management and traffic engineering promulgated by the International Telecommunication Union, being recommendations in force on:
(a) 1 July 1997; or
(b) such later date (if any) as is specified in the regulations.
(1) A carrier (the first carrier ) is not required to give another carrier (the second carrier ) information, or access to information, under clause 21, 22, 23, 24 or 25 unless the second carrier has in place security procedures:
(a) agreed between the first carrier and the second carrier; or
(b) failing agreement--determined in writing by the ACCC.
(2) For the purposes of subclause (1), security procedures are procedures designed to protect the confidentiality of information.
27 Terms and conditions of compliance
(1) The first carrier (within the meaning of clause 21, 22, 23, 24 or 25) must comply with a requirement imposed on the first carrier by that clause on such terms and conditions as are:
(a) agreed between the following parties:
(i) the first carrier;
(ii) the second carrier (within the meaning of that clause); or
(b) 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.
(2) The regulations may make provision for and in relation to the conduct of an arbitration under this clause.
(3) The regulations may provide that, for the purposes of a particular arbitration conducted by the ACCC under this clause, 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.
(4) Subclause (3) does not, by implication, limit subclause (2).
(5) A determination made in an arbitration under this clause must not be inconsistent with a Ministerial pricing determination in force under clause 28.
27A Code relating to access to information
(1) The ACCC may, by legislative instrument, make a Code setting out conditions that are to be complied with in relation to the provision of information, or access to information, under clause 21, 22, 23, 24 or 25.
(2) A carrier must comply with the Code.
(3) This clause does not, by implication, limit a power conferred by or under this Act to make an instrument.
(4) This clause does not, by implication, limit the matters that may be dealt with by codes or standards referred to in Part 6.
(5) Subclauses (3) and (4) do not, by implication, limit subsection 33(3B) of the Acts Interpretation Act 1901 .
28 Ministerial pricing determinations
(1) The Minister may, by legislative instrument, make a determination setting out principles dealing with price - related terms and conditions relating to an obligation imposed by clause 21, 22, 23, 24 or 25. The determination is to be known as a Ministerial pricing determination .
(3) In this clause:
"price-related terms and conditions" means terms and conditions relating to price or a method of ascertaining price.
29 Consultation about reconfiguration etc.
(1) This clause applies to a carrier (the first carrier ) if the first carrier supplies carriage services to another carrier (the second carrier ).
(2) The first carrier must, if requested to do so by the second carrier, consult with the second carrier before modifying or reconfiguring the first carrier's telecommunications network.
(3) The first carrier is not required to comply with subclause (2) unless the modification or reconfiguration has a bearing on the second carrier's:
(a) telecommunications network planning activities; or
(b) telecommunications network maintenance activities; or
(c) telecommunications network reconfiguration activities.
(4) The first carrier must comply with the requirement set out in subclause (2) on such terms and conditions as are:
(a) agreed between the following parties:
(i) the first carrier;
(ii) the second carrier; or
(b) 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.
(5) The regulations may make provision for and in relation to the conduct of an arbitration under this clause.
(6) The regulations may provide that, for the purposes of a particular arbitration conducted by the ACCC under this clause, 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.
(7) Subclause (6) does not, by implication, limit subclause (5).
29A Code relating to consultation
(1) The ACCC may, by legislative instrument, make a Code setting out conditions that are to be complied with in relation to consultations under clause 29.
(2) The Code may specify the manner and form in which a consultation is to occur.
(3) Subclause (2) does not, by implication, limit subclause (1).
(4) A carrier must comply with the Code.
(5) This clause does not, by implication, limit a power conferred by or under this Act to make an instrument.
(6) This clause does not, by implication, limit the matters that may be dealt with by codes or standards referred to in Part 6.
(7) Subclauses (5) and (6) do not, by implication, limit subsection 33(3B) of the Acts Interpretation Act 1901 .
Part 5 -- Access to telecommunications transmission towers and to underground facilities
The following is a simplified outline of this Part:
• Carriers must provide other carriers with access to:
(a) telecommunications transmission towers; and
(b) the sites of telecommunications transmission towers; and
(c) underground facilities that are designed to hold lines.
In this Part:
"eligible underground facility" means an underground facility that is used, installed ready to be used, or intended to be used, to hold lines.
"NBN corporation" has the same meaning as in section 577BA.
"site" means:
(a) land; or
(b) a building on land; or
(c) a structure on land.
"telecommunications transmission tower" means:
(a) a tower; or
(b) a pole; or
(c) a mast; or
(d) a similar structure;
used to supply a carriage service by means of radiocommunications.
(1) For the purposes of this Part, giving access to a tower includes replacing the tower with another tower located on the same site and giving access to the replacement tower.
(2) For the purposes of this Part, giving access to a site on which is situated a tower includes replacing the tower with another tower located on the site.
33 Access to telecommunications transmission towers
(1) A carrier (the first carrier ) must, if requested to do so by another carrier (the second carrier ), give the second carrier access to a telecommunications transmission tower owned or operated by the first carrier.
Note: See also section 581ZD.
(2) The first carrier is not required to comply with subclause (1) unless:
(a) the access is provided for the sole purpose of enabling the second carrier to install a facility used, or for use, in connection with the supply of a carriage service by means of radiocommunications; and
(b) the second carrier gives the first carrier reasonable notice that the second carrier requires the access.
(3) The first carrier is not required to comply with subclause (1) in relation to a particular telecommunications transmission tower if there is in force a written certificate issued by the ACCC stating that, in the ACCC's opinion, compliance with subclause (1) in relation to that tower is not technically feasible.
(4) In determining whether compliance with subclause (1) in relation to a tower is technically feasible, the ACCC must have regard to:
(a) whether compliance is likely to result in significant difficulties of a technical or engineering nature; and
(b) whether compliance is likely to result in a significant threat to the health or safety of persons who operate, or work on, the tower; and
(c) if compliance is likely to have a result referred to in paragraph (a) or (b)--whether there are practicable means of avoiding such a result, including (but not limited to):
(i) changing the configuration or operating parameters of a facility situated on the tower; and
(ii) making alterations to the tower; and
(d) such other matters (if any) as the ACCC considers relevant.
(4A) Before issuing a certificate under subclause (3), the ACCC may consult the ACMA.
(5) If the ACCC receives a request to make a decision about the issue of a certificate under subclause (3), the ACCC must use its best endeavours to make that decision within 10 business days after the request was made.
(6) Subclause (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;
(aa) preventing a designated Telstra successor company from complying with an undertaking in force under section 577A;
(b) preventing Telstra from complying with an undertaking in force under section 577C or 577E;
(c) 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.
(7) 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 (6)(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.
(8) For the purposes of subclause (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 a telecommunications transmission tower owned or operated by the designated Telstra successor company ; and
(c) apart from this clause, the agreement would result in the NBN corporation being the operator of the telecommunications transmission tower;
the NBN corporation is taken not to be the operator of the telecommunications transmission tower.
34 Access to sites of telecommunications transmission towers
(1) A carrier (the first carrier ) must, if requested to do so by another carrier (the second carrier ), give the second carrier access to a site if:
(a) either:
(i) the site is owned, occupied or controlled by the first carrier; or
(ii) the first carrier has a right (whether conditional or unconditional) to use the site; and
(b) there is situated on the site a telecommunications transmission tower owned or operated by the first carrier.
(2) The first carrier is not required to comply with subclause (1) unless:
(a) the access is provided for the sole purpose of enabling the second carrier to install a facility used, or for use, in connection with the supply of a carriage service by means of radiocommunications; and
(b) the second carrier gives the first carrier reasonable notice that the second carrier requires the access.
(3) The first carrier is not required to comply with subclause (1) in relation to a particular site if there is in force a written certificate issued by the ACCC stating that, in the ACCC's opinion, compliance with subclause (1) in relation to that site is not technically feasible.
(4) In determining whether compliance with subclause (1) in relation to a site is technically feasible, the ACCC must have regard to:
(a) whether compliance is likely to result in significant difficulties of a technical or engineering nature; and
(b) whether compliance is likely to result in a significant threat to the health or safety of persons who operate, or work on, a facility situated on the site; and
(c) if compliance is likely to have a result referred to in paragraph (a) or (b)--whether there are practicable means of avoiding such a result, including (but not limited to):
(i) changing the configuration or operating parameters of a facility situated on the site; and
(ii) making alterations to a facility situated on the site; and
(d) such other matters (if any) as the ACCC considers relevant.
(4A) Before issuing a certificate under subclause (3), the ACCC may consult the ACMA.
(5) If the ACCC receives a request to make a decision about the issue of a certificate under subclause (3), the ACCC must use its best endeavours to make that decision within 10 business days after the request was made.
(6) Subclause (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;
(aa) preventing a designated Telstra successor company from complying with an undertaking in force under section 577A;
(b) preventing Telstra from complying with an undertaking in force under section 577C or 577E;
(c) 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.
(7) 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 (6)(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.
(8) For the purposes of subclause (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 the site of a telecommunications transmission tower, where:
(i) the site is owned, operated or controlled by Telstra or the designated Telstra successor company; or
(ii) Telstra or the designated Telstra successor company has a right (whether conditional or unconditional) to use the site; and
(c) apart from this clause, the agreement would result in the NBN corporation:
(i) being the occupier or controller of the site; or
(ii) having a right (whether conditional or unconditional) to use the site;
the NBN corporation is taken:
(d) not to be the occupier or controller of the site; and
(e) not to have a right (whether conditional or unconditional) to use the site.
35 Access to eligible underground facilities
(1) A carrier (the first carrier ) must, if requested to do so by another carrier (the second carrier ), give the second carrier access to an eligible underground facility owned or operated by the first carrier.
(2) The first carrier is not required to comply with subclause (1) unless:
(a) the access is provided for the sole purpose of enabling the second carrier to install a line used, or for use, in connection with the supply of a carriage service; and
(b) the second carrier gives the first carrier reasonable notice that the second carrier requires the access.
(3) The first carrier is not required to comply with subclause (1) in relation to a particular eligible underground facility if there is in force a written certificate issued by the ACCC stating that, in the ACCC's opinion, compliance with subclause (1) in relation to that facility is not technically feasible.
(4) In determining whether compliance with subclause (1) in relation to an eligible underground facility is technically feasible, the ACCC must have regard to:
(a) whether compliance is likely to result in significant difficulties of a technical or engineering nature; and
(b) whether compliance is likely to result in a significant threat to the health or safety of persons who operate, or work on, the eligible underground facility; and
(c) if compliance is likely to have a result referred to in paragraph (a) or (b)--whether there are practicable means of avoiding such a result, including (but not limited to):
(i) changing the configuration or operating parameters of the eligible underground facility; and
(ii) making alterations to the eligible underground facility; and
(d) such other matters (if any) as the ACCC considers relevant.
(4A) Before issuing a certificate under subclause (3), the ACCC may consult the ACMA.
(5) If the ACCC receives a request to make a decision about the issue of a certificate under subclause (3), the ACCC must use its best endeavours to make that decision within 10 business days after the request was made.
(6) Subclause (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;
(aa) preventing a designated Telstra successor company from complying with an undertaking in force under section 577A;
(b) preventing Telstra from complying with an undertaking in force under section 577C or 577E;
(c) 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.
(7) 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 (6)(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.
(8) For the purposes of subclause (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 an eligible underground facility owned or operated by Telstra or the designated Telstra successor company; and
(c) apart from this clause, the agreement would result in the NBN corporation being the operator of the eligible underground facility;
the NBN corporation is taken not to be the operator of the eligible underground facility.
36 Terms and conditions of access
(1) The first carrier (within the meaning of clause 33) must comply with subclause 33(1) on such terms and conditions as are:
(a) agreed between the following parties:
(i) the first carrier;
(ii) the second carrier (within the meaning of that clause); or
(b) 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.
(2) The first carrier (within the meaning of clause 34) must comply with subclause 34(1) on such terms and conditions as are:
(a) agreed between the following parties:
(i) the first carrier;
(ii) the second carrier (within the meaning of that clause); or
(b) 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.
(3) The first carrier (within the meaning of clause 35) must comply with subclause 35(1) on such terms and conditions as are:
(a) agreed between the following parties:
(i) the first carrier;
(ii) the second carrier (within the meaning of that clause); or
(b) 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.
(4) The regulations may make provision for and in relation to the conduct of an arbitration under this clause.
(5) The regulations may provide that, for the purposes of a particular arbitration conducted by the ACCC under this clause, 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.
(6) Subclause (5) does not, by implication, limit subclause (4).
(7) An arbitrator must not make a determination under this clause if the determination would have the effect of:
(aa) preventing a designated Telstra successor company from complying with an undertaking in force under section 577A; or
(a) preventing Telstra from complying with an undertaking in force under section 577C or 577E; or
(b) 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.
(8) If:
(a) an agreement mentioned in paragraph (1)(a), (2)(a) or (3)(a) is in force; and
(b) the agreement is in writing;
a determination under this clause has no effect to the extent to which it is inconsistent with the agreement.
(1) The ACCC may, by legislative instrument, make a Code setting out conditions that are to be complied with in relation to the provision of access under this Part.
(2) A carrier must comply with the Code.
(3) This clause does not, by implication, limit a power conferred by or under this Act to make an instrument.
(4) This clause does not, by implication, limit the matters that may be dealt with by codes or standards referred to in Part 6.
(5) Subclauses (3) and (4) do not, by implication, limit subsection 33(3B) of the Acts Interpretation Act 1901 .
38 Industry co - operation about sharing of sites and eligible underground facilities
A carrier, in planning the provision of future carriage services, must co - operate with other carriers to share sites and eligible underground facilities.
39 This Part does not limit Part 3 of this Schedule
This Part does not, by implication, limit Part 3 of this Schedule.
Part 6 -- Inspection of facilities etc.
The following is a simplified outline of this Part:
• Carriers must keep records about their designated overhead lines, telecommunications transmission towers and underground facilities.
• Carriers must inspect their facilities regularly.
• Carriers must investigate their facilities if there are reasonable grounds to suspect that the facilities are likely to endanger:
(a) the health or safety of persons; or
(b) property.
• Carriers must take any remedial action that is reasonably required following such an inspection or investigation.
41 Records relating to underground facilities
(1) If a carrier owns or operates designated overhead lines, the carrier must keep and maintain records of the kind and location of those lines.
(2) If a carrier owns or operates telecommunications transmission towers, the carrier must keep and maintain records of the kind and location of those towers.
(3) If a carrier owns or operates underground facilities, the carrier must keep and maintain records of:
(a) the kind and location of those facilities; and
(b) if any of those facilities is an eligible underground facility--the capacity of that facility to hold further lines.
(4) A carrier must not, in purported compliance with subclause (1), (2) or (3), make a record of any matter or thing in such a way that it does not correctly record the matter or thing.
(5) In this clause:
"designated overhead line" has the same meaning as in Schedule 3.
"eligible underground facility" means an underground facility that is used, installed ready to be used, or intended to be used, to hold lines.
"telecommunications transmission tower" means:
(a) a tower; or
(b) a pole; or
(c) a mast; or
(d) a similar structure;
used to supply a carriage service by means of radiocommunications.
42 Regular inspection of facilities
(1) If a facility is owned or operated by a carrier, the carrier must inspect that facility regularly.
(2) In determining the regularity of inspections required by subclause (1), regard must be had to good engineering practice.
43 Prompt investigation of dangerous facilities
If:
(a) a facility is owned or operated by a carrier; and
(b) the carrier has reasonable grounds to suspect that the condition of the facility is likely to endanger:
(i) the health or safety of persons; or
(ii) property;
the carrier must investigate promptly the condition of the facility.
(1) A carrier must take any remedial action that is reasonably required following an inspection under clause 42.
(2) A carrier must take any remedial action that is reasonably required following an investigation under clause 43.
(3) A carrier must comply with subclause (1) or (2) as soon as practicable after the carrier becomes aware of the need to take the remedial action concerned.
Part 7 -- Any - to - any connectivity
The following is a simplified outline of this Part:
• If a carriage service provider's telecommunications network is interconnected with a carrier's telecommunications network, the carrier must obtain a designated interconnection service from the carriage service provider for the purpose of ensuring any - to - any connectivity.
In this Part:
"active declared service" means:
(a) an active declared service within the meaning of section 152AR of the Competition and Consumer Act 2010 ; or
(b) a declared service (within the meaning of subsection 152AL(8A) of the Competition and Consumer Act 2010 ) that an NBN corporation supplies (whether to itself or to other persons); or
(c) a declared service within the meaning of subsection 152AL(8D) or (8E) of the Competition and Consumer Act 2010 .
Note: Subsections 152AL(8A), (8D) and (8E) of the Competition and Consumer Act 2010 deal with services supplied by an NBN corporation.
"designated interconnection service" has the meaning given by clause 47.
"eligible service" has the same meaning as in section 152AL of the Competition and Consumer Act 2010 .
(1) If:
(a) a carrier owns, or supplies a carriage service over, a telecommunications network (the carrier's telecommunications network ); and
(b) a carriage service provider supplies a carriage service over a telecommunications network (the carriage service provider's telecommunications network ); and
(c) any of the following subparagraphs applies:
(i) the carriage service provider's telecommunications network is interconnected with the carrier's telecommunications network;
(ii) the carriage service provider's telecommunications network is to be interconnected with the carrier's telecommunications network;
(iii) the carriage service provider is seeking to have the carriage service provider's telecommunications network interconnected with the carrier's telecommunications network; and
(d) the carriage service provider requests the carrier to obtain from the carriage service provider a designated interconnection service for the purpose of ensuring that each end - user who is:
(i) connected to the carrier's telecommunications network; and
(ii) supplied with a carriage service that involves communication between end - users;
is able to communicate, by means of that carriage service, with an end - user who is connected to the carriage service provider's telecommunications network;
the carrier must obtain the designated interconnection service from the carriage service provider.
(2) The designated interconnection service is to be obtained on such terms and conditions as are:
(a) agreed between the carrier and the carriage service provider; or
(b) 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.
(3) The regulations may make provision for and in relation to the conduct of an arbitration under this clause.
(4) The regulations may provide that, for the purposes of a particular arbitration conducted by the ACCC under this clause, 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.
(5) Subclause (4) does not, by implication, limit subclause (3).
47 Designated interconnection services
(1) The Minister may, by written instrument, declare that a specified eligible service is a designated interconnection service for the purposes of this Part.
(2) A declaration under subclause (1) has effect accordingly.
(3) Before making a declaration under subclause (1) in relation to a service that is not an active declared service, the Minister must, by writing, request the ACCC to give a written report about whether the proposed declaration would promote the achievement of the objective of any - to - any connectivity (as defined by subsection 152AB(8) of the Competition and Consumer Act 2010 ).
(4) The ACCC must give the report to the Minister within 30 days after receiving the request.
(5) In deciding whether to make the declaration, the Minister must have regard to:
(a) the ACCC's report; and
(b) such other matters (if any) as the Minister considers relevant.
(6) A declaration under subclause (1) is a legislative instrument.
Part 9 -- Functional separation of Telstra
The following is a simplified outline of this Part:
• Telstra must prepare a draft functional separation undertaking.
• A final functional separation undertaking is a draft functional separation undertaking that has been approved by the Minister.
• Telstra must comply with a final functional separation undertaking.
• However, Telstra is not required to prepare a draft functional separation undertaking if an undertaking about structural separation is in force under section 577A.
In this Part:
"business unit" means a part of Telstra.
"declared network service" has the meaning given by clause 70.
"eligible service" has the same meaning as in section 152AL of the Competition and Consumer Act 2010 .
"equivalence" means:
(a) equivalence in relation to terms and conditions relating to price or a method of ascertaining price; and
(b) equivalence in relation to other terms and conditions.
"functional" includes organisational.
"functional separation principles" means the principles set out in clause 74.
"functional separation requirements determination" means a determination under clause 75.
"quarter" means a period of 3 months beginning on 1 January, 1 April, 1 July or 1 October.
"regulated service" has the meaning given by clause 71.
"retail business unit" means a business unit by which Telstra deals with its retail customers.
"supply" , in relation to a service, includes supply by Telstra of the service to itself.
"wholesale/network business unit" means the business unit of Telstra:
(a) that supplies the following:
(i) fault detection, handling and rectification;
(ii) service activation and provisioning;
(iii) declared network services;
to Telstra's retail business units, and Telstra's wholesale customers, in relation to eligible services; and
(b) by which Telstra deals with its wholesale customers.
For the purposes of this Part, a declared network service is a service specified in a legislative instrument made by the Minister for the purposes of this clause.
(1) For the purposes of this Part, a regulated service is a declared service within the meaning of Part XIC of the Competition and Consumer Act 2010 .
(2) Subclause (1) has effect subject to subclause (3).
(3) The Minister may, by legislative instrument, determine that a specified service is not a regulated service for the purposes of this Part.
(4) The Minister may, by legislative instrument, determine that a specified eligible service is a regulated service for the purposes of this Part.
For the purposes of this Part:
(a) a notional contract (however described) between any of Telstra's business units is to be treated as if it were an actual contract; and
(b) any terms and conditions (whether or not relating to price or a method of ascertaining price) in such a notional contract are to be treated as if they were actual terms and conditions.
Division 2 -- Functional separation undertaking
73 Contents of draft or final functional separation undertaking
(1) A draft or final functional separation undertaking must:
(a) comply with the functional separation principles; and
(b) contain provisions requiring Telstra to establish and maintain a committee to be known as the Oversight and Equivalence Board; and
(c) contain provisions requiring Telstra to require the Oversight and Equivalence Board:
(i) within a specified period after the end of each quarter during which a final functional separation undertaking is in force, to prepare a report about the extent (if any) to which Telstra complied with the undertaking during that quarter; and
(ii) to give a copy of the report to the ACCC and to Telstra's board of directors; and
(d) comply with such requirements (if any) as are specified in a functional separation requirements determination.
Note 1: For the functional separation principles, see clause 74.
Note 2: For the functional separation requirements determination, see clause 75.
(2) For the purposes of subparagraph (1)(c)(i), if a final functional separation undertaking is in force throughout a part, but not the whole, of a particular quarter, that part is taken to be a quarter in its own right.
(3) If a final functional separation undertaking provides for the ACCC to perform functions or exercise powers in relation to the undertaking, the ACCC may perform those functions, and exercise those powers, in accordance with the undertaking.
74 Functional separation principles
(1) The functional separation principles are as follows:
(a) the principle that there should be equivalence in relation to the supply by Telstra of regulated services to:
(i) Telstra's wholesale customers; and
(ii) Telstra's retail business units;
(b) the principle that Telstra should maintain:
(i) one or more retail business units; and
(ii) a wholesale/network business unit;
(c) the principle that Telstra should maintain arm's length functional separation between:
(i) its wholesale/network business unit; and
(ii) its retail business units;
(d) the principle that Telstra should have systems, procedures and practices that relate to:
(i) compliance with a final functional separation undertaking; and
(ii) monitoring of, and reporting on, compliance with a final functional separation undertaking; and
(iii) the development of performance measures relating to compliance with a final functional separation undertaking; and
(iv) independent audit, and other checks, of compliance with a final functional separation undertaking;
(e) the principle that Telstra's wholesale/network business unit should not consult Telstra's retail business units about:
(i) proposed services to be supplied by Telstra's wholesale/network business unit; or
(ii) proposed developments in connection with services supplied by Telstra's wholesale/network business unit;
unless Telstra's wholesale/network business unit also consults Telstra's wholesale customers at the same time and in the same manner.
(2) In determining the principle of equivalence covered by paragraph (1)(a), regard must be had to whether:
(a) the terms and conditions relating to price or a method of ascertaining price; and
(b) other terms and conditions;
on which Telstra supplies regulated services to its wholesale customers are no less favourable than the terms and conditions on which Telstra supplies those services to its retail business units.
(3) Subclause (2) does not limit the matters to which regard may be had.
(4) To avoid doubt, this clause does not affect the meaning of anything in Part 33.
75 Functional separation requirements determination
(1) The Minister may make a written determination (a functional separation requirements determination ) specifying requirements to be complied with by a draft or final functional separation undertaking.
(2) A functional separation requirements determination may deal with the manner in which the functional separation principles are to be implemented.
(3) A functional separation requirements determination may deal with the manner in which a requirement set out in paragraph 73(1)(b) or (c) is to be met.
Note: Clause 73 deals with the contents of a draft or final functional separation undertaking.
(4) Subclauses (2) and (3) do not limit subclause (1).
(4A) Before making or varying a functional separation requirements determination, the Minister must:
(a) cause to be published on the Department's website a notice:
(i) setting out the determination or variation; and
(ii) inviting persons to make submissions to the Minister about the determination or variation within 14 days after the notice is published; and
(b) give the ACCC a copy of the notice; and
(c) consider any submissions received within the 14 - day period mentioned in paragraph (a); and
(d) ask the ACCC to give advice to the Minister, within 28 days after the publication of the notice, about the determination or variation; and
(e) have regard to any advice given by the ACCC.
(4B) Subclause (4A) does not, by implication, prevent the Minister from asking the ACCC to give the Minister additional advice about a matter arising under this clause.
(5) The Minister must ensure that a functional separation requirements determination comes into force within 90 days after the commencement of this clause.
(5A) Subclause (5) does not apply if, before the end of the period applicable under subclause (5):
(a) the following conditions are satisfied:
(i) an undertaking given by Telstra is in force under section 577A;
(ii) the undertaking requires Telstra to give the ACCC a draft migration plan;
(iii) in accordance with the undertaking, Telstra has given the ACCC a draft migration plan;
(iv) the ACCC has approved the draft migration plan under section 577BD, 577BDA, 577BDB or 577BDC; or
(b) both:
(i) an undertaking given by Telstra is in force under section 577A; and
(ii) the undertaking does not require Telstra to give the ACCC a draft migration plan.
Note: Section 577A deals with undertakings about structural separation.
(5B) The Minister may, by writing, extend or further extend the 90 - day period referred to in subclause (5) so long as the extension, or the total of the extensions, does not exceed 18 months.
(5C) The Minister must not make an instrument under subclause (5B) unless:
(a) Telstra satisfies the Minister that Telstra is preparing an undertaking under section 577A; or
(b) both:
(i) Telstra has given the ACCC an undertaking under section 577A; and
(ii) the ACCC has not decided whether to accept the undertaking; or
(c) the following conditions are satisfied:
(i) Telstra has given the ACCC an undertaking under section 577A;
(ii) the ACCC has decided to accept the undertaking;
(iii) that decision is expressed to be subject to the occurrence of one or more specified events within a specified period;
(iv) the undertaking is not in force;
(v) that period has not ended; or
(d) the following conditions are satisfied:
(i) an undertaking given by Telstra is in force under section 577A;
(ii) the undertaking requires Telstra to give the ACCC a draft migration plan;
(iii) Telstra satisfies the Minister that Telstra is preparing a draft migration plan to be given to the ACCC in accordance with the undertaking; or
(e) the following conditions are satisfied:
(i) an undertaking given by Telstra is in force under section 577A;
(ii) the undertaking requires Telstra to give the ACCC a draft migration plan;
(iii) Telstra has given the ACCC a draft migration plan in accordance with the undertaking;
(iv) the ACCC has not decided whether to approve the draft migration plan under section 577BD, 577BDA, 577BDB or 577BDC.
Note: Section 577A deals with undertakings about structural separation.
(5D) The Minister must cause a copy of an instrument under subclause (5B) to be tabled in each House of the Parliament within 15 sitting days of that House after making the instrument.
(5E) If:
(a) before the end of the period applicable under subclause (5), the ACCC accepts an undertaking given by Telstra under section 577A; and
(b) the decision to accept the undertaking is expressed to be subject to the occurrence of one of more specified events within a specified period (the post - acceptance period ) after the undertaking is accepted; and
(c) the post - acceptance period ends after the end of the period applicable under subclause (5); and
(d) the undertaking does not come into force before the end of the post - acceptance period;
then:
(e) subclause (5) does not apply; and
(f) the Minister must ensure that a functional separation requirements determination comes into force within 90 days after the end of the post - acceptance period.
Note: Section 577A deals with undertakings about structural separation.
(5EA) If:
(a) before the end of the period applicable under subclause (5), the ACCC accepts an undertaking given by Telstra under section 577A; and
(b) the decision to accept the undertaking is expressed to be subject to the occurrence of one of more specified events within a specified period (the post - acceptance period ) after the undertaking is accepted; and
(c) the post - acceptance period ends after the end of the period applicable under subclause (5); and
(d) the undertaking comes into force before the end of the post - acceptance period; and
(e) the undertaking requires Telstra to give the ACCC a draft migration plan; and
(f) a final migration plan does not come into force before the end of the post - acceptance period;
then:
(g) subclause (5) does not apply; and
(h) the Minister must ensure that a functional separation requirements determination comes into force within 90 days after the end of the post - acceptance period.
Note: Section 577A deals with undertakings about structural separation.
(5EB) Subclause (5) does not apply if:
(a) before the end of the period applicable under subclause (5), the ACCC accepts an undertaking given by Telstra under section 577A; and
(b) the decision to accept the undertaking is expressed to be subject to the occurrence of one of more specified events within a specified period (the post - acceptance period ) after the undertaking is accepted; and
(c) the post - acceptance period ends after the end of the period applicable under subclause (5); and
(d) the undertaking comes into force before the end of the post - acceptance period; and
(e) the undertaking does not require Telstra to give the ACCC a draft migration plan.
Note: Section 577A deals with undertakings about structural separation.
(5EC) Subclause (5) does not apply if:
(a) before the end of the period applicable under subclause (5), the ACCC accepts an undertaking given by Telstra under section 577A; and
(b) the decision to accept the undertaking is expressed to be subject to the occurrence of one of more specified events within a specified period (the post - acceptance period ) after the undertaking is accepted; and
(c) the post - acceptance period ends after the end of the period applicable under subclause (5); and
(d) the undertaking comes into force before the end of the post - acceptance period; and
(e) the undertaking requires Telstra to give the ACCC a draft migration plan; and
(f) a final migration plan has come into force before the end of the post - acceptance period.
Note: Section 577A deals with undertakings about structural separation.
(5F) The Minister is not required to observe any requirements of procedural fairness in relation to the making of an instrument under subclause (5B).
(5G) The Minister does not have a duty to consider whether to make an instrument under subclause (5B), whether at the request of a person or in any other circumstances.
(6) A determination under subclause (1) is not a legislative instrument.
(7) An instrument under subclause (5B) is not a legislative instrument.
76 Draft functional separation undertaking to be given to Minister
(1) Telstra must give the Minister a draft functional separation undertaking:
(a) within 90 days after the first functional separation requirements determination comes into force; or
(b) if a longer period is specified in an instrument under subclause (3)--within that longer period.
(2) However, subclause (1) does not apply if:
(a) the following conditions are satisfied:
(i) an undertaking given by Telstra is in force under section 577A;
(ii) the undertaking requires Telstra to give the ACCC a draft migration plan;
(iii) in accordance with the undertaking, Telstra has given the ACCC a draft migration plan;
(iv) the ACCC has approved the draft migration plan under section 577BD, 577BDA, 577BDB or 577BDC; or
(b) both:
(i) an undertaking given by Telstra is in force under section 577A; and
(ii) the undertaking does not require Telstra to give the ACCC a draft migration plan.
Note: Section 577A deals with undertakings about structural separation.
(3) The Minister may, by writing, specify a period for the purposes of paragraph (1)(b).
(4) The Minister must not specify a period under subclause (3) unless:
(a) Telstra satisfies the Minister that Telstra is preparing an undertaking under section 577A; or
(b) both:
(i) Telstra has given the ACCC an undertaking under section 577A; and
(ii) the ACCC has not decided whether to accept the undertaking; or
(c) the following conditions are satisfied:
(i) Telstra has given the ACCC an undertaking under section 577A;
(ii) the ACCC has decided to accept the undertaking;
(iii) that decision is expressed to be subject to the occurrence of one or more specified events within a specified period;
(iv) the undertaking is not in force;
(v) that period has not ended; or
(d) the following conditions are satisfied:
(i) an undertaking given by Telstra is in force under section 577A;
(ii) the undertaking requires Telstra to give the ACCC a draft migration plan;
(iii) Telstra satisfies the Minister that Telstra is preparing a draft migration plan to be given to the ACCC in accordance with the undertaking; or
(e) the following conditions are satisfied:
(i) an undertaking given by Telstra is in force under section 577A;
(ii) the undertaking requires Telstra to give the ACCC a draft migration plan;
(iii) Telstra has given the ACCC a draft migration plan in accordance with the undertaking;
(iv) the ACCC has not decided whether to approve the draft migration plan under section 577BD, 577BDA, 577BDB or 577BDC.
Note: Section 577A deals with undertakings about structural separation.
(5) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a power conferred on the Minister by subclause (3). However, the Minister must not revoke a subclause (3) instrument.
(6) A period specified in a subclause (3) instrument may be a period ascertained wholly or partly by reference to the occurrence of a specified event.
(6A) The Minister is not required to observe any requirements of procedural fairness in relation to the making of a subclause (3) instrument.
(7) The Minister does not have a duty to consider whether to exercise the power to make a subclause (3) instrument, whether he or she is requested to do so by Telstra or by any other person, or in any other circumstances.
(8) The Minister must cause a copy of an instrument under subclause (3) to be published on the Department's website.
(9) An instrument under subclause (3) is not a legislative instrument.
77 Approval of draft functional separation undertaking by Minister
(1) This clause applies if Telstra gives the Minister a draft functional separation undertaking (the original undertaking ).
(2) The Minister must, by writing:
(a) approve the original undertaking; or
(b) both:
(i) vary the original undertaking; and
(ii) approve the original undertaking as varied; or
(c) both:
(i) determine that Telstra is taken to have given the Minister another draft functional separation undertaking (the replacement undertaking ) in the terms specified in the determination, instead of the original undertaking; and
(ii) approve the replacement undertaking.
Consultation
(3) Before making a decision under subclause (2), the Minister must:
(a) cause to be published on the Department's website a notice:
(i) setting out the original undertaking; and
(ii) inviting persons to make submissions to the Minister about the original undertaking within 14 days after the notice is published; and
(b) give the ACCC a copy of the notice; and
(c) cause to be published on the Department's website a copy of each submission received within the 14 - day period mentioned in paragraph (a); and
(d) consider any submissions received within the 14 - day period mentioned in paragraph (a); and
(e) ask the ACCC to give advice to the Minister, within 44 days after the notice is published, about the original undertaking; and
(f) have regard to any advice given by the ACCC.
Consultation--variation of original undertaking
(4) Before making a decision under paragraph (2)(b) to approve the original undertaking as varied, the Minister must:
(a) give Telstra a notice:
(i) setting out the original undertaking as proposed to be varied; and
(ii) inviting Telstra to make submissions to the Minister, within 14 days after the notice is given, about the original undertaking as proposed to be varied; and
(b) consider any submissions received from Telstra within the 14 - day period mentioned in paragraph (a).
Consultation--replacement undertaking
(5) Before making a decision under paragraph (2)(c) to approve the replacement undertaking, the Minister must:
(a) give Telstra a notice:
(i) setting out the proposed replacement undertaking; and
(ii) inviting Telstra to make submissions to the Minister about the proposed replacement undertaking within 14 days after the notice is given; and
(b) consider any submissions received from Telstra within the 14 - day period mentioned in paragraph (a).
Advice by the ACCC
(6) Subclause (3) does not, by implication, prevent the Minister from asking the ACCC to give the Minister additional advice about a matter arising under this clause.
Notification of decision
(7) As soon as practicable after making a decision under subclause (2), the Minister must notify Telstra in writing of the decision.
Instrument is not a legislative instrument
(8) An instrument made under subclause (2) is not a legislative instrument.
78 Time limit for making an approval decision
(1) This clause applies if Telstra gives the Minister a draft functional separation undertaking (the original undertaking ).
(2) The Minister must use his or her best endeavours to make a decision under subclause 77(2) in relation to the original undertaking within 6 months after the original undertaking was given to the Minister.
(1) If the Minister approves a draft functional separation undertaking under subclause 77(2), the undertaking becomes a final functional separation undertaking.
(2) A final functional separation undertaking comes into force on the day after notice of the relevant decision is given to Telstra in accordance with subclause 77(7).
(3) A final functional separation undertaking may not be withdrawn.
Undertaking is not a legislative instrument
(4) A final functional separation undertaking is not a legislative instrument.
80 Variation of final functional separation undertaking
(1) This clause applies if a final functional separation undertaking is in force.
Variation
(2) The Minister may, in writing, vary the final functional separation undertaking:
(a) at the request of Telstra or another person; or
(b) on the Minister's own initiative.
(3) The Minister does not have a duty to consider whether to exercise the power to vary a final functional separation undertaking, whether he or she is requested to do so by Telstra or by any other person, or in any other circumstances.
Consultation
(4) Before varying a final functional separation undertaking, the Minister must:
(a) cause to be published on the Department's website a notice:
(i) setting out the proposed variation; and
(ii) inviting persons to make submissions to the Minister about the proposed variation within 14 days after the notice is published; and
(b) give the ACCC a copy of the notice; and
(c) cause to be published on the Department's website a copy of each submission received within the 14 - day period mentioned in paragraph (a); and
(d) consider any submissions received within the 14 - day period mentioned in paragraph (a); and
(e) ask the ACCC to give advice to the Minister, within 44 days after the notice is published, about the proposed variation; and
(f) have regard to any advice given by the ACCC.
Minor variation
(5) Subclause (4) does not apply to a proposed variation if the variation is of a minor nature.
(6) If the proposed variation:
(a) is of a minor nature; and
(b) is not made at the request of Telstra;
then, before making the proposed variation, the Minister must:
(c) give Telstra a notice:
(i) setting out the proposed variation; and
(ii) inviting Telstra to make submissions to the Minister about the proposed variation within 14 days after the notice is given; and
(d) consider any submissions received from Telstra within that 14 - day period.
Advice by the ACCC
(7) Subclause (4) does not, by implication, prevent the Minister from asking the ACCC to give the Minister additional advice about a matter arising under this clause.
Notification of variation
(8) As soon as practicable after varying a final functional separation undertaking, the Minister must notify Telstra in writing of the variation.
When variation comes into force
(9) A variation of a final functional separation undertaking comes into force on the day after the notice of the variation is given to Telstra in accordance with subclause (8).
Variation is not a legislative instrument
(10) A variation of a final functional separation undertaking is not a legislative instrument.
81 Publication of final functional separation undertaking
(1) As soon as practicable after a final functional separation undertaking comes into force, Telstra must make a copy of the undertaking available on Telstra's website.
(2) As soon as practicable after a variation of a final functional separation undertaking comes into force, Telstra must make a copy of the varied final functional separation undertaking available on Telstra's website.
82 Compliance with final functional separation undertaking
(1) If a final functional separation undertaking is in force, Telstra must comply with the undertaking.
(2) However, subclause (1) does not apply if an undertaking given by Telstra is in force under section 577A.
Note: Section 577A deals with undertakings about structural separation.
Part 10 -- Control and use by Telstra of certain spectrum licences
The following is a simplified outline of this Part:
• If the excluded spectrum regime applies to Telstra, and a spectrum licence relates to a designated part of the spectrum, Telstra must not be in a position to exercise control of the licence unless the following undertakings given by Telstra are in force:
(a) an undertaking about structural separation;
(b) an undertaking about hybrid fibre - coaxial networks;
(c) an undertaking about subscription television broadcasting licences.
• However, the Minister may exempt Telstra from the requirement to have an undertaking about hybrid fibre - coaxial networks or subscription television broadcasting licences if the Minister is satisfied that Telstra's undertaking about structural separation is sufficient to address concerns about the degree of Telstra's power in telecommunications markets.
Division 2 -- Control and use by Telstra of certain spectrum licences
84 Control by Telstra of certain spectrum licences
(1) If:
(a) the excluded spectrum regime applies to Telstra; and
(b) a spectrum licence relates to a designated part of the spectrum;
Telstra must not be in a position to exercise control of the licence.
Note 1: For excluded spectrum regime, see section 577GA.
Note 2: For when Telstra is in a position to exercise control of a spectrum licence, see clause 88.
(2) However, the rule in subclause (1) does not apply if:
(a) both:
(i) an undertaking given by Telstra is in force under section 577A; and
(ii) the undertaking is covered by subclause (3); and
(b) either:
(i) an undertaking given by Telstra is in force under section 577C; or
(ii) a declaration is in force under subsection 577J(3); and
(c) either:
(i) an undertaking given by Telstra is in force under section 577E; or
(ii) a declaration is in force under subsection 577J(5).
Note 1: Section 577A deals with undertakings about structural separation.
Note 2: Section 577C deals with undertakings about hybrid fibre - coaxial networks.
Note 3: Section 577E deals with undertakings about subscription television broadcasting licences.
(3) This subclause covers a section 577A undertaking if:
(a) the following conditions are satisfied:
(i) the undertaking requires Telstra to give the ACCC a draft migration plan;
(ii) in accordance with the undertaking, Telstra has given the ACCC a draft migration plan;
(iii) the ACCC has approved the draft migration plan under section 577BD, 577BDA, 577BDB or 577BDC; or
(b) the undertaking does not require Telstra to give the ACCC a draft migration plan.
85 Use by Telstra of certain spectrum licences
(1) If:
(a) the excluded spectrum regime applies to Telstra; and
(b) a spectrum licence relates to a designated part of the spectrum;
Telstra must not supply a carriage service using a radiocommunications device the operation of which is authorised under the licence.
Note: For excluded spectrum regime, see section 577GA.
(2) However, the rule in subclause (1) does not apply if:
(a) both:
(i) an undertaking given by Telstra is in force under section 577A; and
(ii) the undertaking is covered by subclause (3); and
(b) either:
(i) an undertaking given by Telstra is in force under section 577C; or
(ii) a declaration is in force under subsection 577J(3); and
(c) either:
(i) an undertaking given by Telstra is in force under section 577E; or
(ii) a declaration is in force under subsection 577J(5).
Note 1: Section 577A deals with undertakings about structural separation.
Note 2: Section 577C deals with undertakings about hybrid fibre - coaxial networks.
Note 3: Section 577E deals with undertakings about subscription television broadcasting licences.
(3) This subclause covers a section 577A undertaking if:
(a) the following conditions are satisfied:
(i) the undertaking requires Telstra to give the ACCC a draft migration plan;
(ii) in accordance with the undertaking, Telstra has given the ACCC a draft migration plan;
(iii) the ACCC has approved the draft migration plan under section 577BD, 577BDA, 577BDB or 577BDC; or
(b) the undertaking does not require Telstra to give the ACCC a draft migration plan.
Division 3 -- Other provisions
(1) In this Part, an associate of Telstra in relation to control of a spectrum licence is:
(a) a partner of Telstra; or
(b) if Telstra or another person who is an associate of Telstra under another paragraph receives benefits or is capable of benefiting under a trust--the trustee of the trust; or
(c) a person (whether a company or not) who:
(i) acts, or is accustomed to act; or
(ii) under a contract or an arrangement or understanding (whether formal or informal) is intended or expected to act;
in accordance with the directions, instructions or wishes of, or in concert with:
(iii) Telstra; or
(iv) Telstra and another person who is an associate of Telstra under another paragraph; or
(d) another company if:
(i) the other company is a related body corporate of Telstra for the purposes of the Corporations Act 2001 ; or
(ii) Telstra, or Telstra and another person who is an associate of Telstra under another paragraph, are in a position to exercise control of the other company.
(2) However, persons are not associates of each other if the ACCC is satisfied that:
(a) they do not act together in any relevant dealings relating to the spectrum licence; and
(b) neither of them is in a position to exert influence over the business dealings of the other in relation to the spectrum licence.
In this Part, control includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights.
88 When Telstra is in a position to exercise control of a spectrum licence
(1) For the purposes of this Part, Telstra is in a position to exercise control of a spectrum licence if:
(a) Telstra is the licensee; or
(b) Telstra, either alone or together with an associate of Telstra, is in a position to exercise control of the spectrum licensee; or
(c) Telstra, either alone or together with an associate of Telstra, is in a position to exercise (whether directly or indirectly) control of the selection of radiocommunications devices authorised to operate under the licence; or
(d) Telstra, either alone or together with an associate of Telstra, is in a position to exercise (whether directly or indirectly) control of a significant proportion of the operations of radiocommunications devices authorised to operate under the licence; or
(e) Telstra, either alone or together with an associate of Telstra, is in a position to:
(i) veto any action taken by the board of directors of the licensee; or
(ii) appoint or secure the appointment of, or veto the appointment of, at least half of the board of directors of the licensee; or
(iii) exercise, in any other manner, whether directly or indirectly, direction or restraint over any substantial issue affecting the management or affairs of the licensee; or
(f) the licensee or more than 50% of its directors:
(i) act, or are accustomed to act; or
(ii) under a contract or an arrangement or understanding (whether formal or informal) are intended or expected to act;
in accordance with the directions, instructions or wishes of, or in concert with, Telstra or of Telstra and an associate of Telstra acting together or of the directors of Telstra.
(2) An employee of a licensee is not, except through an association with another person, to be regarded as being in a position to exercise control of a spectrum licence under subclause (1) purely because of being an employee.
(3) More than one person may be in a position to exercise control of a spectrum licence.