Telecommunications Legislation Amendment (Competition and Consumer Issues) Act 2005 No. 119, 2005 An Act to amend the law relating to telecommunications, and for other purposes Contents 1 Short title 2 Commencement 3 Schedule(s) Schedule 1—Industry development plans Telecommunications Act 1997 Schedule 2—Industry codes Telecommunications Act 1997 Schedule 3—Numbering plans Telecommunications Act 1997 Schedule 4—Penalties for breaches of the competition rule Trade Practices Act 1974 Schedule 5—Enforcement of conditions and limitations of exemption determinations and orders Trade Practices Act 1974 Schedule 6—Variation and revocation of exemption determinations Trade Practices Act 1974 Schedule 7—Procedural Rules Trade Practices Act 1974 Schedule 8—Any‑to‑any connectivity Telecommunications Act 1997 Schedule 9—Long‑term interests of end‑users Trade Practices Act 1974 Schedule 10—Enforceable undertakings Telecommunications Act 1997 Schedule 11—Operational separation of Telstra Telecommunications Act 1997 Trade Practices Act 1974 Schedule 12—Interim determinations about access Trade Practices Act 1974 Schedule 13—Remedial directions Telecommunications Act 1997 Telecommunications Legislation Amendment (Competition and Consumer Issues) Act 2005 No. 119, 2005 An Act to amend the law relating to telecommunications, and for other purposes [Assented to 23 September 2005] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Telecommunications Legislation Amendment (Competition and Consumer Issues) Act 2005. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day on which this Act receives the Royal Assent. 23 September 2005 2. Schedule 1 The day after this Act receives the Royal Assent. 24 September 2005 3. Schedule 2 The 28th day after the day on which this Act receives the Royal Assent. 21 October 2005 4. Schedules 3 to 6 The day after this Act receives the Royal Assent. 24 September 2005 5. Schedule 7, items 1 to 3 The day after this Act receives the Royal Assent. 24 September 2005 6. Schedule 7, item 4 A single day to be fixed by Proclamation. 23 March 2006 However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. 7. Schedule 7, items 5 to 12 The day after this Act receives the Royal Assent. 24 September 2005 8. Schedule 7, item 13 A single day to be fixed by Proclamation. 23 March 2006 However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. 9. Schedule 7, items 14 to 19 The day after this Act receives the Royal Assent. 24 September 2005 10. Schedule 7, item 20 A single day to be fixed by Proclamation. 23 March 2006 However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. 11. Schedule 7, items 21 to 28 The day after this Act receives the Royal Assent. 24 September 2005 12. Schedules 8 to 10 The day after this Act receives the Royal Assent. 24 September 2005 13. Schedule 11 A single day to be fixed by Proclamation. 1 January 2006 However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. (see F2005L04117) 14. Schedules 12 and 13 The day after this Act receives the Royal Assent. 24 September 2005 Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent. (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Industry development plans Telecommunications Act 1997 1 Part 2 of Schedule 1 Repeal the Part. 2 Transitional—clauses 14 and 15 of Schedule 1 to the Telecommunications Act 1997 (1) For the purposes of this item, a pre‑commencement reporting period is: (a) a financial year that: (i) began on or after 1 July 1997; and (ii) ended before the commencement of this item; or (b) if this item does not commence on a 1 July in any financial year—the period: (i) beginning at the start of the financial year in which this item commenced; and (ii) ending immediately before the commencement of this item. (2) Despite the amendment made by item 1, clauses 14 and 15 of Schedule 1 to the Telecommunications Act 1997 continue to apply as if: (a) each reference in those clauses to a financial year were a reference to a pre‑commencement reporting period; and (b) the amendment had not been made. Schedule 2—Industry codes Telecommunications Act 1997 1 After subsection 121(1A) Insert: (1B) If: (a) at a time when an industry code (the original code) was registered under this Part, a direction could have been given to a person under subsection (1) in respect of the original code; and (b) the original code has been replaced by another code that is registered under this Part; and (c) the person could have been given a direction under subsection (1) in respect of the replacement code, if the conduct concerned had occurred after the replacement code was registered; then, during the period when the replacement code is registered under this Part, the person may be given a direction under subsection (1) in respect of the replacement code. 2 At the end of section 122 Add: (4) If: (a) at a time when an industry code (the original code) was registered under this Part, a formal warning could have been given to a person under subsection (2) in respect of the original code; and (b) the original code has been replaced by another code that is registered under this Part; and (c) the person could have been given a formal warning under subsection (2) in respect of the replacement code, if the conduct concerned had occurred after the replacement code was registered; then, during the period when the replacement code is registered under this Part, the person may be given a formal warning under subsection (2) in respect of the replacement code. 3 Application of amendments The amendments made by this Schedule do not apply to conduct that occurred before the commencement of this item. Schedule 3—Numbering plans Telecommunications Act 1997 1 Paragraph 460(3)(a) Repeal the paragraph, substitute: (a) that a variation of a numbering plan: (i) will affect a number issued to a customer of a carriage service provider, being a customer located in a particular State; and (ii) is not a variation that, under a written declaration made by the ACMA under this subparagraph, is taken to be a minor variation; or 2 Subparagraphs 460(3)(c)(ii) and (iv) Omit "90 days", substitute "30 days". 3 After subsection 460(4) Insert: (4A) A declaration under subparagraph (3)(a)(ii) is a legislative instrument for the purposes of the Legislative Instruments Act 2003. 4 Application of amendments The amendments made by this Schedule do not apply in relation to a variation of a numbering plan if a notice relating to the variation was published under paragraph 460(3)(c) of the Telecommunications Act 1997 before the commencement of this item. Schedule 4—Penalties for breaches of the competition rule Trade Practices Act 1974 1 Paragraph 151BX(3)(a) Repeal the paragraph, substitute: (a) in the case of a contravention of the competition rule—for each contravention: (i) if the contravention continued for more than 21 days—the sum of $31 million and $3 million for each day in excess of 21 that the contravention continued; or (ii) otherwise—the sum of $10 million and $1 million for each day that the contravention continued; or 2 Application of amendment The amendment of section 151BX of the Trade Practices Act 1974 made by this Schedule applies to a contravention of the competition rule if: (a) in the case of a contravention that continued during a period—the period began after the commencement of this item; or (b) otherwise—the contravention occurred after the commencement of this item. Schedule 5—Enforcement of conditions and limitations of exemption determinations and orders Trade Practices Act 1974 1 At the end of subsection 152AS(2) Add: Note: For judicial enforcement of conditions and limitations, see section 152BBAA. 2 At the end of subsection 152ASA(2) Add: Note: For judicial enforcement of conditions and limitations, see section 152BBAA. 3 At the end of subsection 152AT(5) Add: Note: For judicial enforcement of conditions and limitations, see section 152BBAA. 4 At the end of subsection 152ATA(4) Add: Note: For judicial enforcement of conditions and limitations, see section 152BBAA. 5 At the end of section 152BB Add: (3) This section does not limit section 152BBAA. 6 After section 152BB Insert: 152BBAA Judicial enforcement of conditions and limitations of exemption determinations and orders (1) If the Federal Court is satisfied that a person has contravened any of the conditions or limitations of: (a) a determination under section 152AS or 152ASA; or (b) an order under section 152AT or 152ATA; the Court may, on the application of: (c) the Commission; or (d) any person whose interests are affected by the contravention; make all or any of the following orders: (e) an order directing the person to comply with the condition or limitation; (f) an order directing the person to compensate any other person who had suffered loss or damage as a result of the contravention; (g) any other order that the Court thinks appropriate. (2) The Federal Court may discharge or vary an order granted under this section. (3) This section does not limit section 152BB. Schedule 6—Variation and revocation of exemption determinations Trade Practices Act 1974 1 At the end of section 152AS Add: Note: For variation and revocation of instruments under subsection (1), see subsection 33(3) of the Acts Interpretation Act 1901. 2 At the end of section 152ASA Add: Note: For variation and revocation of instruments under subsection (1), see subsection 33(3) of the Acts Interpretation Act 1901. Schedule 7—Procedural Rules Trade Practices Act 1974 1 Subsection 25(1) Omit "Part VIIA)", substitute "Part VIIA or section 152ELA), Procedural Rules under Part XIC,". 2 Section 152AC Insert: modifications includes additions, omissions and substitutions. 3 Section 152AC Insert: Procedural Rules means Procedural Rules made under section 152ELA. 4 Subsection 152AO(3) Omit "of a minor nature", substitute "a variation that, under the Procedural Rules, is taken to be a variation of a minor nature". 5 After subsection 152AT(2) Insert: (2A) Before the Commission makes a decision under subsection (3) in relation to the application, the applicant may, by written notice given to the Commission within the time allowed by the Procedural Rules, modify the application, so long as the modification is a modification that, under the Procedural Rules, is taken to be a modification of a minor nature. 6 After subsection 152ATA(2) Insert: (2A) Before the Commission makes a decision under subsection (3) in relation to the application, the applicant may, by written notice given to the Commission within the time allowed by the Procedural Rules, modify the application, so long as the modification is a modification that, under the Procedural Rules, is taken to be a modification of a minor nature. 7 After subsection 152AU(2) Insert: (2A) If: (a) the Procedural Rules make provision for or in relation to a time limit for giving the information; and (b) the applicant does not give the Commission the information within the time limit allowed by the Procedural Rules; the Commission may, by written notice given to the applicant, refuse the application. (2B) Subsection (2A) has effect despite anything in this Division. 8 Subsection 152AU(3) Omit "The Commission", substitute "If the Procedural Rules do not make provision for or in relation to a time limit for giving the information, the Commission". 9 After subsection 152BT(2) Insert: (2A) If: (a) the Procedural Rules make provision for or in relation to a time limit for giving the information; and (b) the carrier or provider does not give the Commission the information within that time limit; the Commission may, by written notice given to the carrier or provider, reject the undertaking. (2B) Subsection (2A) has effect despite anything in this Division. (2C) If the Commission makes a decision under subsection (2A) to reject the undertaking, subsection 152BU(5) has effect as if the decision had been made under subsection 152BU(2). 10 Subsection 152BT(3) Omit "The Commission", substitute "If the Procedural Rules do not make provision for or in relation to a time limit for giving the information, the Commission". 11 After subsection 152BU(1) Insert: (1A) Before the Commission makes a decision under subsection (2) in relation to the undertaking, the carrier or provider may, by written notice given to the Commission within the time allowed by the Procedural Rules, modify the undertaking, so long as the modification is a modification that, under the Procedural Rules, is taken to be of a minor nature. 12 After subsection 152BY(2) Insert: (2A) Before the Commission makes a decision under subsection (3) in relation to the variation, the carrier or provider may, by written notice given to the Commission within the time allowed by the Procedural Rules, modify the variation, so long as the modification is a modification that, under the Procedural Rules, is taken to be a modification of a minor nature. 13 Subsection 152BY(4) Omit "of a minor nature", substitute "a variation that, under the Procedural Rules, is taken to be a variation of a minor nature". 14 After subsection 152BZ(2) Insert: (2A) If: (a) the Procedural Rules make provision for or in relation to a time limit for giving the information; and (b) the carrier or provider does not give the Commission the information within the time limit allowed by the Procedural Rules; the Commission may, by written notice given to the carrier or provider, reject the variation. (2B) Subsection (2A) has effect despite anything in this Division. (2C) If the Commission makes a decision under subsection (2A) to reject the variation, subsection 152BY(7) has effect as if the decision had been made under subsection 152BY(3). 15 Subsection 152BZ(3) Omit "The Commission", substitute "If the Procedural Rules do not make provision for or in relation to a time limit for giving the information, the Commission". 16 After subsection 152CBB(2) Insert: (2A) If: (a) the Procedural Rules make provision for or in relation to a time limit for giving the information; and (b) the person does not give the Commission the information within the time limit allowed by the Procedural Rules; the Commission may, by written notice given to the person, reject the undertaking. (2B) Subsection (2A) has effect despite anything in this Division. (2C) If the Commission makes a decision under subsection (2A) to reject the undertaking, subsection 152CBC(5) has effect as if the decision had been made under subsection 152CBC(2). 17 Subsection 152CBB(3) Omit "The Commission", substitute "If the Procedural Rules do not make provision for or in relation to a time limit for giving the information, the Commission". 18 After subsection 152CBC(1) Insert: (1A) Before the Commission makes a decision under subsection (2) in relation to the undertaking, the person may, by written notice given to the Commission within the time allowed by the Procedural Rules, modify the undertaking, so long as the modification is a modification that, under the Procedural Rules, is taken to be of a minor nature. 19 After subsection 152CBG(2) Insert: (2A) Before the Commission makes a decision under subsection (3) in relation to the variation, the person may, by written notice given to the Commission within the time allowed by the Procedural Rules, modify the variation, so long as the modification is a modification that, under the Procedural Rules, is taken to be a modification of a minor nature. 20 Subsection 152CBG(4) Omit "of a minor nature", substitute "a variation that, under the Procedural Rules, is taken to be a variation of a minor nature". 21 After subsection 152CBH(2) Insert: (2A) If: (a) the Procedural Rules make provision for or in relation to a time limit for giving the information; and (b) the person does not give the Commission the information within the time limit allowed by the Procedural Rules; the Commission may, by written notice given to the person, reject the variation. (2B) Subsection (2A) has effect despite anything in this Division. (2C) If the Commission makes a decision under subsection (2A) to reject the variation, subsection 152CBG(7) has effect as if the decision had been made under subsection 152CBG(3). 22 Subsection 152CBH(3) Omit "The Commission", substitute "If the Procedural Rules do not make provision for or in relation to a time limit for giving the information, the Commission". 23 After section 152CD Insert: 152CDA Deferral of consideration of an access undertaking etc. (1) The Procedural Rules may authorise the Commission to defer consideration of: (a) an access undertaking; or (b) a variation of an access undertaking. (2) Subsection (1) has effect despite anything in this Division. 24 At the end of section 152CLA Add: Procedural Rules (8) Subsections (2) to (7) may be displaced or modified by the Procedural Rules. (9) The Procedural Rules may authorise the Commission to defer consideration of an access dispute, in whole or in part. (10) Subsection (9) has effect despite anything in this Division. 25 At the end of section 152DB Add: (5) Paragraph (1)(c) and subsections (2), (3) and (4) may be displaced or modified by the Procedural Rules. 26 At the end of section 152DK Add: (5) Subsections (1), (2), (3) and (4) may be displaced or modified by the Procedural Rules. 27 At the end of section 152DMA Add: Procedural Rules (8) Subsections (1) to (7) may be displaced or modified by the Procedural Rules. 28 After Division 10 of Part XIC Insert: Division 10A—Procedural Rules 152ELA Procedural Rules (1) The Commission may, by written instrument, make rules: (a) making provision for or in relation to the practice and procedure to be followed by the Commission in performing functions, or exercising powers, under this Part; or (b) making provision for or in relation to all matters and things incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business of the Commission under this Part; or (c) prescribing matters required or permitted by any other provision of this Part to be prescribed by the Procedural Rules. (2) Rules under subsection (1) are to be known as Procedural Rules. (3) The Procedural Rules may make provision for or in relation to any or all of the following: (a) the confidentiality of information or documents given to the Commission by: (i) an applicant for an order under subsection 152AT(1) or 152ATA(1); or (ii) a person who gave the Commission an access undertaking or a variation of an access undertaking; or (iii) a party to the arbitration of an access dispute under Division 8; (b) matters to which the Commission must have regard in deciding whether to make an interim determination under Division 8; (c) the form and content of applications, undertakings, variations or other documents given to the Commission under this Part; (d) dispensing with the need for an oral hearing in relation to the arbitration of an access dispute under Division 8. (4) Subsection (3) does not limit subsection (1). (5) The Procedural Rules may make provision for or in relation to a matter by empowering the Commission to make decisions of an administrative character. (6) The Procedural Rules may require a power conferred on the Commission by the Procedural Rules in relation to an arbitration under Division 8 to be exercised by the Commission as constituted under section 152CV for the purposes of that arbitration. (7) Subsections (5) and (6) do not limit subsection (1). (8) An instrument under subsection (1) is a legislative instrument for the purposes of the Legislative Instruments Act 2003. Note: For variation and revocation of instruments under subsection (1), see subsection 33(3) of the Acts Interpretation Act 1901. 152ELB Public consultation (1) Before making any Procedural Rules, the Commission must: (a) publish a draft of the Procedural Rules on the Commission's Internet site and invite people to make submissions to the Commission on the draft Procedural Rules; and (b) consider any submissions that are received within the time limit specified by the Commission when it published the draft Procedural Rules. (2) The time limit specified by the Commission must be at least 30 days after the day of publication of the draft Procedural Rules. 152ELC Plan for the development of Procedural Rules (1) Within 6 months after the commencement of this section, the Commission must: (a) prepare a written plan setting out: (i) an outline of the Commission's proposals for making Procedural Rules; and (ii) an indicative timetable for making those Procedural Rules; and (b) make a copy of the plan available on the Commission's Internet site. (2) A failure to comply with the plan does not affect the validity of an instrument under subsection 152ELA(1). (3) The plan is not a legislative instrument for the purposes of the Legislative Instruments Act 2003. Schedule 8—Any‑to‑any connectivity Telecommunications Act 1997 1 At the end of Schedule 1 Add: Part 7—Any‑to‑any connectivity 44A Simplified outline 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. 45 Definitions In this Part: active declared service has the same meaning as in section 152AR of the Trade Practices Act 1974. designated interconnection service has the meaning given by clause 47. eligible service has the same meaning as in section 152AL of the Trade Practices Act 1974. 46 Carriers must obtain designated interconnection services from carriage service providers for the purpose of ensuring any‑to‑any connectivity (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 Trade Practices Act 1974). (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 for the purposes of the Legislative Instruments Act 2003. Schedule 9—Long‑term interests of end‑users Trade Practices Act 1974 1 Paragraph 152AB(2)(e) Repeal the paragraph, substitute: (e) the objective of encouraging the economically efficient use of, and the economically efficient investment in: (i) the infrastructure by which listed services are supplied; and (ii) any other infrastructure by which listed services are, or are likely to become, capable of being supplied. 2 Paragraph 152AB(6)(a) After "it is", insert ", or is likely to become,". 3 Subparagraph 152AB(6)(a)(i) Omit "or available", substitute ", available or likely to become available". 4 Subparagraph 152AB(6)(a)(ii) After "reasonable", insert "or likely to become reasonable". 5 Paragraph 152AB(6)(c) Repeal the paragraph, substitute: (c) the incentives for investment in: (i) the infrastructure by which the services are supplied; and (ii) any other infrastructure by which the services are, or are likely to become, capable of being supplied. 6 After subsection 152AB(7) Insert: Investment risks (7A) For the purposes of paragraph (6)(c), in determining incentives for investment, regard must be had to the risks involved in making the investment. (7B) Subsection (7A) does not, by implication, limit the matters to which regard may be had. Schedule 10—Enforceable undertakings Telecommunications Act 1997 1 Section 6 (after table item 9) Insert: 10 Enforceable undertakings Part 31A 2 After Part 31 Insert: Part 31A—Enforceable undertakings 572A Simplified outline The following is a simplified outline of this Part: • A person may give the ACMA an enforceable undertaking about compliance with this Act. 572B Acceptance of undertakings (1) The ACMA may accept any of the following undertakings: (a) a written undertaking given by a person that the person will, in order to comply with this Act, take specified action; (b) a written undertaking given by a person that the person will, in order to comply with this Act, refrain from taking specified action; (c) a written undertaking given by a person that the person will take specified action directed towards ensuring that the person does not contravene this Act, or is unlikely to contravene this Act, in the future. (2) The undertaking must be expressed to be an undertaking under this section. (3) The person may withdraw or vary the undertaking at any time, but only with the consent of the ACMA. (4) The ACMA may, by written notice given to the person, cancel the undertaking. (5) The ACMA may publish the undertaking on its Internet site. (6) In this section: this Act includes the Telecommunications (Consumer Protection and Service Standards) Act 1999. 572C Enforcement of undertakings (1) If: (a) a person has given an undertaking under section 572B; and (b) the undertaking has not been withdrawn or cancelled; and (c) the ACMA considers that the person has breached the undertaking; the ACMA may apply to the Federal Court for an order under subsection (2). (2) If the Federal Court is satisfied that the person has breached the undertaking, the Court may make any or all of the following orders: (a) an order directing the person to comply with the undertaking; (b) an order directing the person to pay to the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach; (c) any order that the Court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach; (d) any other order that the Court considers appropriate. Schedule 11—Operational separation of Telstra Telecommunications Act 1997 1 Section 61 Before "A carrier licence", insert "(1)". 2 At the end of section 61 Add: (2) At any time after the last day on which a report of a subsection 61A(1) review was tabled in a House of the Parliament, the Minister may, by written instrument, declare that Part 8 of Schedule 1 ceases to have effect on a specified day. The specified day must not be earlier than the last day on which a resolution disallowing the declaration could have been passed by a House of the Parliament under section 42 of the Legislative Instruments Act 2003. Note: A subsection 61A(1) review must be conducted before 1 July 2009. (3) A declaration under subsection (2) has effect accordingly. (4) A declaration under subsection (2) is a legislative instrument for the purposes of the Legislative Instruments Act 2003. 3 After section 61 Insert: 61A Review before 1 July 2009 of conditions relating to operational separation of Telstra (1) Before 1 July 2009, the Minister must cause to be conducted a review of the operation of Part 8 of Schedule 1. (2) A review under subsection (1) must have regard to the following matters: (a) the state of competition in telecommunications markets; (b) whether Telstra has a substantial degree of power in any telecommunications market; (c) technological developments that have, or might reasonably be expected to have, a significant impact on competition in telecommunications markets; (d) Telstra's commercial incentives for supplying wholesale eligible services; (e) costs and benefits of the operation of Part 8 of Schedule 1. (3) The Minister must cause to be prepared a report of a review under subsection (1). (4) The Minister must cause copies of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the completion of the preparation of the report. (5) In this section: eligible service has the same meaning as in section 152AL of the Trade Practices Act 1974. substantial degree of power in a telecommunications market has the same meaning as in Part XIB of the Trade Practices Act 1974. telecommunications market has the same meaning as in Part XIB of the Trade Practices Act 1974. 4 After section 69 Insert: 69A Remedial directions—breach by Telstra of conditions relating to operational separation (1) This section applies if Telstra has contravened, or is contravening, a condition set out in Part 8 of Schedule 1. (2) The ACCC may give Telstra a written direction requiring Telstra to take specified action directed towards ensuring that Telstra does not contravene the condition, or is unlikely to contravene the condition, in the future. (3) The following are examples of the kinds of direction that may be given to Telstra under subsection (2): (a) a direction that Telstra implement effective administrative systems for monitoring compliance with the condition; (b) a direction that Telstra implement a system designed to give Telstra's employees, agents and contractors a reasonable knowledge and understanding of the requirements of the condition, in so far as those requirements affect the employees, agents or contractors concerned. (4) Telstra must not contravene a direction under subsection (2). (5) A direction under subsection (2) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003. (6) This section does not limit section 69. 69B Review by the Australian Competition Tribunal of remedial directions given by the ACCC Application for review (1) If the ACCC gives a section 69A direction to Telstra, Telstra may apply to the Australian Competition Tribunal for a review of the direction. (2) An application under this section for a review of a section 69A direction must be: (a) in writing; and (b) made within 7 days after the ACCC gave the direction. Review (3) If the Australian Competition Tribunal receives an application under this section for review of a section 69A direction, the Australian Competition Tribunal must review the direction. Decision on review (4) On a review of a section 69A direction, the Australian Competition Tribunal may make a decision: (a) affirming the direction; or (b) setting aside the direction; or (c) setting aside the direction and, in substitution for the direction so set aside, making a section 69A direction; or (d) varying the direction; and, for the purposes of the review, the Australian Competition Tribunal may perform all the functions and exercise all the powers of the ACCC. (5) A decision by the Australian Competition Tribunal: (a) affirming a section 69A direction; or (b) setting aside a section 69A direction; or (c) made in substitution for a section 69A direction; or (d) varying a section 69A direction; is taken, for the purposes of this Act (other than this section), to be a decision of the ACCC. Conduct of review (6) For the purposes of a review by the Australian Competition Tribunal under this section, the member of the Tribunal presiding at the review may require the ACCC to give such information, make such reports and provide such other assistance to the Tribunal as the member specifies. (7) For the purposes of a review, the Australian Competition Tribunal may have regard to any information given, documents produced or evidence given to the ACCC in connection with the making of the section 69A direction to which the review relates. (8) To avoid doubt, Division 2 of Part IX of the Trade Practices Act 1974 applies to proceedings before the Australian Competition Tribunal under this section. 5 After paragraph 70(5)(b) Insert: (ba) if the carrier is Telstra—a condition set out in Part 8 of Schedule 1; 6 At the end of section 70 Add: (6) Paragraph (5)(ba) does not limit subsection (1). 7 At the end of Schedule 1 Add: Part 8—Operational separation of Telstra Division 1—Introduction 48 Aim and objects Aim (1) The aim of this Part is to promote the principles of transparency and equivalence in relation to the supply by Telstra of wholesale eligible services. Objects (2) The objects of this Part are as follows: (a) to promote a principle of equivalence in relation to the supply by Telstra of designated services to: (i) Telstra's wholesale customers; and (ii) Telstra's retail business units; (b) to require Telstra to maintain the following business units: (i) one or more wholesale business units; (ii) one or more retail business units; (iii) one or more key network services business units; (c) to promote a substantial degree of organisational and operational separation between: (i) Telstra's wholesale business units (considered as a group); and (ii) Telstra's retail business units (considered as a group); and (iii) Telstra's key network services business units (considered as a group); (d) to promote responsiveness by Telstra in meeting its wholesale customers' needs in relation to eligible services; (e) to require Telstra to have a plan (to be known as the final operational separation plan) to achieve the aim and other objects of this Part; (f) to ensure that Telstra has systems, procedures and processes that promote and facilitate: (i) compliance with the final operational separation plan; and (ii) monitoring of, and reporting on, compliance with the plan; and (iii) the development of performance measures relating to compliance with the plan; and (iv) audit, and other checks, of compliance with the plan; (g) to ensure that the achievement of: (i) the aim of this Part; and (ii) any of the above objects; does not impair Telstra's ability to compete on a fair and efficient basis. (3) In determining the principle of equivalence covered by paragraph (2)(a), regard must be had to: (a) terms and conditions relating to price or a method of ascertaining price; and (b) other terms and conditions. (4) Subclause (3) does not limit the matters to which regard may be had. (5) In determining, for the purposes of paragraph (2)(d), the needs of Telstra's wholesale customers in relation to eligible services, regard must be had to the following needs: (a) the need for those customers to be supplied by Telstra with eligible services on a basis that allows fair competition with eligible services supplied by Telstra's retail business units; (b) the need for disputes between those customers and Telstra about eligible services to be resolved in a fair and timely manner; (c) the need for confidentiality in relation to eligible services supplied by Telstra to those customers; (d) the need to be kept informed of relevant issues and developments in connection with: (i) Telstra's network, in so far as it relates to the supply of eligible services; and (ii) eligible services supplied by Telstra. (6) Subclause (5) does not limit the matters to which regard may be had. Note: See also subsection 61(2). 49 Simplified outline The following is a simplified outline of this Part: • Telstra must prepare a draft operational separation plan. The plan must be directed towards the achievement of the aim and objects of this Part. • A final operational separation plan is a draft operational separation plan that has been approved by the Minister. • If Telstra has contravened, or is contravening, a final operational separation plan, the Minister may require Telstra to prepare a draft rectification plan. • A final rectification plan is a draft rectification plan that has been approved by the Minister. • If a final rectification plan is in force, Telstra must comply with the plan. 50 Definitions In this Part: business unit means a part of Telstra. declared network service has the meaning given by clause 50B. designated service has the meaning given by clause 50A. draft operational separation plan means a draft operational separation plan under Division 2. draft rectification plan means a draft rectification plan under Division 3. eligible service has the same meaning as in section 152AL of the Trade Practices Act 1974. final operational separation plan means a final operational separation plan under Division 2. final rectification plan means a final rectification plan under Division 3. key network services business unit means a business unit of Telstra that supplies the following in relation to eligible services: (a) fault detection, handling and rectification; (b) service activation and provisioning; (c) a declared network service. 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 business unit means a business unit by which Telstra deals with its wholesale customers. 50A Designated services (1) For the purposes of this Part, a designated service is an eligible service specified in a written determination made by the Minister under this subclause. (2) The Minister must not make a determination under subclause (1) that specifies a service that is not an active declared service (within the meaning of section 152AR of the Trade Practices Act 1974) unless: (a) the determination is the first determination made under subclause (1); or (b) Telstra has given written consent to the making of the determination. (3) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a power conferred on the Minister by subclause (1), but it applies with the change set out in subclause (4). (4) The Minister must not vary a determination under subclause (1) so as to specify a service that is not an active declared service (within the meaning of section 152AR of the Trade Practices Act 1974) unless Telstra has given written consent to the variation of the determination. (5) Before making a determination under subclause (1), the Minister must consult Telstra. (6) A determination under subclause (1) is a legislative instrument for the purposes of the Legislative Instruments Act 2003. 50B Declared network services (1) For the purposes of this Part, a declared network service is a service specified in a written determination made by the Minister under this subclause. (2) A determination under subclause (1) is a legislative instrument for the purposes of the Legislative Instruments Act 2003. 50C Notional contracts 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—Operational separation plan 51 Contents of draft or final operational separation plan (1) A draft or final operational separation plan must: (a) be directed towards the achievement of the aim and objects of this Part; and (b) contain provisions requiring Telstra: (i) within a specified period after the end of each financial year, to prepare a report about the extent to which Telstra complied with the plan during that year; and (ii) to give the report to the Minister; and (iii) to make a copy of the report, or extracts from the report, available on Telstra's Internet site; and (c) contain provisions requiring Telstra: (i) within a specified period after the end of each financial year, to arrange for an independent audit of the extent to which Telstra complied with the plan during that year, and to obtain a report of that independent audit; and (ii) to give the report to the Minister; and (iii) to make a copy of the report, or extracts from the report, available on Telstra's Internet site; and (d) comply with such requirements (if any) as are specified in a written determination made by the Minister under this paragraph. (2) A paragraph (1)(d) requirement may deal with the manner in which a paragraph (1)(b) or (c) requirement is to be met. This subclause does not limit paragraph (1)(d). (3) A draft or final operational separation plan may make provision for, or in relation to, a matter by empowering the Minister, the ACCC or the ACMA to make decisions of an administrative character. (4) A determination under paragraph (1)(d) is a legislative instrument for the purposes of the Legislative Instruments Act 2003. Note: A final operational separation plan is a draft operational separation plan that has been approved by the Minister—see clause 55. 52 Draft operational separation plan to be given to Minister Telstra must give the Minister a draft operational separation plan within 90 days after the commencement of this clause. 53 Public comment—draft operational separation plan (1) Before giving the Minister a draft operational separation plan under clause 52, Telstra must: (a) cause to be published in a newspaper circulating generally in each State, the Australian Capital Territory and the Northern Territory a notice: (i) stating that Telstra has prepared a preliminary version of the draft plan; and (ii) stating that a copy of the preliminary version will be available on Telstra's Internet site throughout the period of 30 days after the publication of the notice; and (iii) inviting persons to give written comments about the preliminary version to Telstra within 30 days after the publication of the notice; and (b) make a copy of the preliminary version available on Telstra's Internet site in accordance with the notice. (2) If persons have given written comments about the preliminary version in accordance with the notice, Telstra must ensure that the draft plan given to the Minister is accompanied by a copy of those comments. 54 Approval of draft by Minister (1) This clause applies if Telstra gives the Minister a draft operational separation plan. (2) The Minister must: (a) approve the plan; or (b) refuse to approve the plan. (3) In deciding whether to approve the plan, the Minister must have regard to the following matters: (a) the extent to which the plan is likely to achieve the aim and objects of this Part; and (b) such other matters (if any) as are specified in a written determination made by the Minister under this paragraph. (4) Subclause (3) does not limit the matters to which the Minister may have regard. (5) If the Minister neither approves, nor refuses to approve, the plan before the end of the period of 90 days after the day on which the Minister received the draft plan, the Minister is taken, at the end of that period, to have approved the plan under subclause (2). (6) As soon as practicable after deciding whether to approve the plan, the Minister must notify Telstra in writing of the decision. (7) If the Minister refuses to approve the plan, the Minister must notify Telstra in writing of the Minister's reasons for the refusal. (8) If the Minister refuses to approve the plan, the Minister may, by written notice given to Telstra, direct Telstra to: (a) vary the draft plan in accordance with the direction; and (b) give the varied draft plan to the Minister under subclause (1). Telstra must give the varied draft plan to the Minister within 60 days after the day on which the direction was given. (9) A determination under paragraph (3)(b) is a legislative instrument for the purposes of the Legislative Instruments Act 2003. (10) A direction under subclause (8) is a legislative instrument for the purposes of the Legislative Instruments Act 2003. 55 Effect of approval (1) If the Minister approves a draft operational separation plan, the plan becomes a final operational separation plan. The final operational separation plan comes into force at the time when Telstra is notified of the approval. (2) A final operational separation plan is not a legislative instrument for the purposes of the Legislative Instruments Act 2003. (3) Compliance with a final operational separation plan is not a condition of Telstra's carrier licence. 56 Variation of final operational separation plan (1) This clause applies if: (a) a final operational separation plan is in force; and (b) Telstra gives the Minister a draft variation of the plan. (2) The Minister must: (a) approve the variation; or (b) refuse to approve the variation. (3) In deciding whether to approve the variation, the Minister must have regard to the following matters: (a) the extent to which the final operational separation plan, as proposed to be varied, is likely to achieve the aim and objects of this Part; and (b) such other matters (if any) as are specified in a written determination made by the Minister under this paragraph. (4) Subclause (3) does not limit the matters to which the Minister may have regard. (5) If the Minister neither approves, nor refuses to approve, the variation before the end of the period of 90 days after the day on which the Minister received the draft variation, the Minister is taken, at the end of that period, to have approved the variation under subclause (2). (6) As soon as practicable after deciding whether to approve the variation, the Minister must notify Telstra in writing of the decision. (7) If the Minister refuses to approve the variation, the Minister must notify Telstra in writing of the Minister's reasons for the refusal. (8) If the Minister approves the variation, the plan is varied accordingly. (9) A determination under paragraph (3)(b) is a legislative instrument for the purposes of the Legislative Instruments Act 2003. (10) A variation of a final operational separation plan is not a legislative instrument for the purposes of the Legislative Instruments Act 2003. 56A Minister may direct Telstra to vary final operational separation plan (1) This clause applies if a final operational separation plan is in force. (2) The Minister may, by written notice given to Telstra, direct Telstra to: (a) prepare a draft variation of the plan in accordance with the direction; and (b) give the draft variation to the Minister under subclause 56(1). Telstra must give the draft variation to the Minister within 60 days after the day on which the direction was given. (3) A direction under this clause is a legislative instrument for the purposes of the Legislative Instruments Act 2003. 57 Public comment—variation of final operational separation plan (1) This clause applies to a draft variation of a final operational separation plan unless: (a) the draft variation was given to the Minister as a result of a direction under subclause 56A(2); or (b) both: (i) Telstra had previously given the Minister a written outline of the draft variation; and (ii) the Minister, by written notice given to Telstra, had informed Telstra that the Minister was satisfied that the draft variation was of a minor nature. (2) Before giving the Minister a draft variation of a final operational separation plan under subclause 56(1), Telstra must: (a) cause to be published in a newspaper circulating generally in each State, the Australian Capital Territory and the Northern Territory a notice: (i) stating that Telstra has prepared a preliminary version of the draft variation; and (ii) stating that a copy of the preliminary version will be available on Telstra's Internet site throughout the period of 20 days after the publication of the notice; and (iii) inviting persons to give written comments about the preliminary version to Telstra within 20 days after the publication of the notice; and (b) make a copy of the preliminary version available on Telstra's Internet site in accordance with the notice. (3) If persons have given written comments about the preliminary version in accordance with the notice, Telstra must ensure that the draft variation given to the Minister is accompanied by a copy of those comments. (4) A notice under subparagraph (1)(b)(ii) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003. 58 Publication of final operational separation plan (1) As soon as practicable after a final operational separation plan comes into force, Telstra must make a copy of the plan available on Telstra's Internet site. (2) As soon as practicable after a variation of a final operational separation plan comes into force, Telstra must make a copy of the varied final operational separation plan available on Telstra's Internet site. Division 3—Rectification plan 59 Contents of draft or final rectification plan (1) The following matters must be set out in each draft or final rectification plan that relates to a contravention of a final operational separation plan: (a) the action to be taken by Telstra to ensure that the contravention ceases; (b) the action to be taken by Telstra directed towards ensuring that there is no repetition of the contravention in the future; (c) the action to be taken by Telstra by way of reporting to the Minister on any action taken by it as mentioned in paragraph (a) or (b). Note: A final rectification plan is a draft rectification plan that has been approved by the Minister—see clause 62. (2) A draft or final rectification plan may make provision for, or in relation to, a matter by empowering the Minister, the ACCC or the ACMA to make decisions of an administrative character. 60 Draft rectification plan to be given to Minister (1) This clause applies if Telstra has contravened, or is contravening, a final operational separation plan. (2) The Minister may give Telstra a written direction requiring Telstra to give the Minister a draft rectification plan that relates to that contravention. (3) Telstra must comply with the direction within 90 days after the day on which the direction was given. (4) A direction under this clause is a legislative instrument for the purposes of the Legislative Instruments Act 2003. 61 Approval of draft by Minister (1) This clause applies if Telstra gives the Minister a draft rectification plan that relates to a particular contravention. (2) The Minister must: (a) approve the plan; or (b) refuse to approve the plan. (3) In deciding whether to approve the plan, the Minister must have regard to the following matters: (a) the extent to which the action proposed to be taken by Telstra is likely to ensure that: (i) the contravention ceases; and (ii) there is no repetition of the contravention in the future; (b) such other matters (if any) as are specified in a written determination made by the Minister under this paragraph. (4) Subclause (3) does not limit the matters to which the Minister may have regard. (5) If the Minister neither approves, nor refuses to approve, the plan before the end of the period of 90 days after the day on which the Minister received the draft plan, the Minister is taken, at the end of that period, to have approved the plan under subclause (2). (6) As soon as practicable after deciding whether to approve the plan, the Minister must notify Telstra in writing of the decision. (7) If the Minister refuses to approve the plan, the Minister must notify Telstra in writing of the Minister's reasons for the refusal. (8) If the Minister refuses to approve the plan, the Minister may, by written notice given to Telstra, direct Telstra to: (a) vary the draft plan in accordance with the direction; and (b) give the varied draft plan to the Minister under subclause (1). Telstra must give the varied draft plan to the Minister within 60 days after the day on which the direction was given. (9) A determination under paragraph (3)(b) is a legislative instrument for the purposes of the Legislative Instruments Act 2003. (10) A direction under subclause (8) is a legislative instrument for the purposes of the Legislative Instruments Act 2003. 62 Effect of approval (1) If the Minister approves a draft rectification plan, the plan becomes a final rectification plan. The final rectification plan comes into force at the time when Telstra is notified of the approval. (2) A final rectification plan is not a legislative instrument for the purposes of the Legislative Instruments Act 2003. 63 Variation of final rectification plan (1) This clause applies if: (a) a final rectification plan is in force; and (b) the plan relates to a particular contravention; and (c) Telstra gives the Minister a draft variation of the plan. (2) The Minister must: (a) approve the variation; or (b) refuse to approve the variation. (3) In deciding whether to approve the variation, the Minister must have regard to the following matters: (a) the extent to which the action proposed to be taken by Telstra under the plan as proposed to be varied will be likely to ensure that: (i) the contravention ceases; and (ii) there is no repetition of the contravention in the future; (b) such other matters (if any) as are specified in a written determination made by the Minister under this paragraph. (4) Subclause (3) does not limit the matters to which the Minister may have regard. (5) If the Minister neither approves, nor refuses to approve, the variation before the end of the period of 90 days after the day on which the Minister received the draft variation, the Minister is taken, at the end of that period, to have approved the variation under subclause (2). (6) As soon as practicable after deciding whether to approve the variation, the Minister must notify Telstra in writing of the decision. (7) If the Minister refuses to approve the variation, the Minister must notify Telstra in writing of the Minister's reasons for the refusal. (8) If the Minister approves the variation, the plan is varied accordingly. (9) A determination under paragraph (3)(b) is a legislative instrument for the purposes of the Legislative Instruments Act 2003. (10) A variation of a final rectification plan is not a legislative instrument for the purposes of the Legislative Instruments Act 2003. 64 Minister may direct Telstra to vary final rectification plan (1) This clause applies if a final rectification plan is in force. (2) The Minister may, by written notice given to Telstra, direct Telstra to: (a) prepare a draft variation of the plan in accordance with the direction; and (b) give the draft variation to the Minister under subclause 63(1). The draft variation must be given to the Minister within 60 days after the day on which the direction was given. (3) A direction under this clause is a legislative instrument for the purposes of the Legislative Instruments Act 2003. 65 Compliance with final rectification plan If a final rectification plan is in force, Telstra must comply with the plan. 66 Publication of final rectification plan (1) As soon as practicable after a final rectification plan comes into force, Telstra must make a copy of the plan available on Telstra's Internet site. (2) As soon as practicable after a variation of a final rectification plan comes into force, Telstra must make a copy of the varied final rectification plan available on Telstra's Internet site. Trade Practices Act 1974 8 At the end of Part XIB Add: Division 14—Operational separation for Telstra 151CP Operational separation for Telstra (1) This section applies if Telstra has engaged in conduct in order to comply with a final operational separation plan in force under Part 8 of Schedule 1 to the Telecommunications Act 1997. (2) In performing a function, or exercising a power, under this Part in relation to Telstra, the Commission must have regard to the conduct to the extent that the conduct is relevant. 9 After section 152EP Insert: 152EQ Operational separation for Telstra (1) This section applies if Telstra has engaged in conduct in order to comply with a final operational separation plan in force under Part 8 of Schedule 1 to the Telecommunications Act 1997. (2) In performing a function, or exercising a power, under this Part in relation to Telstra, the Commission must have regard to the conduct to the extent that the conduct is relevant. Schedule 12—Interim determinations about access Trade Practices Act 1974 1 After subsection 152CPA(2) Insert: Procedural fairness (3) The Commission is not required to observe any requirements of procedural fairness in relation to the making of an interim determination if: (a) both: (i) the declared service is covered by a determination in force under section 152AQA; and (ii) the price‑related terms and conditions in the interim determination are consistent with the price‑related terms and conditions in the section 152AQA determination; or (b) both: (i) the declared service is covered by a determination in force under section 152AQB; and (ii) the price‑related terms and conditions in the interim determination are consistent with the price‑related terms and conditions in the section 152AQB determination. For this purpose, price‑related terms and conditions means terms and conditions relating to price or a method of ascertaining price. 2 After subsection 152CPA(5) Insert: (5A) The Commission may extend the period specified in an interim determination, so long as: (a) the extension is for a period of not more than 12 months; and (b) there has been no previous extension. (5B) The Commission is not required to observe any requirements of procedural fairness in relation to granting, or refusing to grant, an extension under subsection (5A). 3 At the end of section 152CPA Add: (12) The Commission is not required to observe any requirements of procedural fairness in relation to the variation under subsection (10) of an interim determination if: (a) both: (i) the declared service is covered by a determination in force under section 152AQA; and (ii) the price‑related terms and conditions in the varied interim determination are consistent with the price‑related terms and conditions in the section 152AQA determination; or (b) both: (i) the declared service is covered by a determination in force under section 152AQB; and (ii) the price‑related terms and conditions in the varied interim determination are consistent with the price‑related terms and conditions in the section 152AQB determination. For this purpose, price‑related terms and conditions means terms and conditions relating to price or a method of ascertaining price. Schedule 13—Remedial directions Telecommunications Act 1997 1 At the end of section 69 Add: (8) A direction under subsection (2) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003. 2 At the end of section 102 Add: (7) A direction under subsection (2) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003. 3 At the end of section 121 Add: (5) A direction under subsection (1) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003. [Minister's second reading speech made in— Senate on 8 September 2005 House of Representatives on 15 September 2005] (146/05)