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Portfolio: Transport and Communications
Purpose
To replace the current telecommunications regulatory regime. The central features of the proposed regime include:
*a scheme for the licensing of general and mobile telecommunication service providers;
*the reservation of certain telecommunication services to license holders;
*the provision of access rights of licence holders to networks and services of other licensees; and
*a scheme for the subsidisation of standard telephone services and payphones for those in remote areas.
Background
Outline Of Current Telecommunications Regulatory Regime
On 25 May 1988, the Minister for Transport and Communications released a statement titled - Australian telecommunications services: a new framework. The statement was presented in the context of the government's concern with micro-economic reform and outlined the future direction of the government's telecommunications policy. The policy directives set out in the statement were dealt with in terms of six objectives, including:
*to ensure universal access to standard telephone services throughout Australia on an equitable basis and at affordable prices;
*to maximise the efficiency of Telecom, OTC and AUSSAT (the carriers) in meeting their objectives, including fulfilment of specific community service obligations and the generation of appropriate returns on investment;
*to ensure the highest possible levels of accountability and responsiveness to customer and community needs; and
*to provide the capacity to achieve optimal rates of expansion and modernisation of the telecommunications system, including the introduction of new and diverse services.
In order to achieve these objectives the government proposed:
*to establish the Australian Telecommunications Authority (AUSTEL) as the statutory corporation responsible for the regulation of the telecommunications industry;
*the establishment of a licensing regime for certain valued added services (note: a value added service, in the context of telecommunications, is one delivered or accessed by telecommunications means and involving the addition of significant value to the basic switching and transmission functions) and private network services (note: a private network is an arrangement by which a user operates facilities such as PABX, which it has provided for its own internal communications needs);
*reservation of certain services and facilities to the carriers;
*promotion of carrier efficiency;
*separation of operational, regulatory, and policy functions;
*protection of consumer interests; and
*open competition in the customer equipment market.
The principal piece of legislation which gave effect to the decisions of the statement was the Telecommunications Act 1989. Basically, this Act established the current telecommunications regulatory regime.
(i) Main features of Telecommunications Act 1989
The objects of the Act include:
*ensuring that the standard telephone service supplied by Telecom is reasonably accessible to all Australians;
*maximising the efficiency of the carriers;
*ensuring carrier accountability; and
*promoting the development of other sectors of the economy through provision of telecommunications services at the lowest possible prices.
The separation of regulatory powers from the carriers is given effect to in the Act through the establishment of AUSTEL. AUSTEL was established as a corporation by the Act and its functions and powers include the:
*economic and technical regulation of the Australian telecommunications industry; protection of networks, facilities and services reserved to the carriers;
*protection of competitors from unfair practices of the carriers;
*protection of consumers; and
*promotion of efficiency of the carriers.
AUSTEL has the power, with a carriers agreement, to authorise a person to supply, install and maintain public payphones within Australia. AUSTEL may direct a carrier to make networks and facilities available to other carriers. In 1989-90, the operating revenue of AUSTEL totalled $5.888 million and expenses totalled $4.496 million.
Under the Act, the carriers, within certain limits, have the exclusive right to supply, install, maintain and operate all equipment, lines and other facilities that are connected to, and within, the boundaries of a telecommunications network operated by them. The supply, installation, maintenance and operation of all equipment, lines and other facilities that are connected to, but outside, the boundaries of a telecommunications network operated by the carriers, are open to competition. The Act contains certain exceptions to the reserved services of the carriers, including:
*a telecommunications network operated solely by means of radiocommunications;
*a telecommunications network operated by the Australian National Railways Commission or a State or Territory transport authority; and
*a telecommunications network operated by the ABC, SBS or a licence or permit holder under the Broadcasting Act 1942.
Under the Act Telecom has the exclusive right to supply public mobile telephone services in Australia. Basically, the only competition allowed is in respect of the supply of handsets. In 1987, Telecom introduced Australia's first cellular mobile telephone service - MobileNet, although Telecom had operated a non-cellular mobile service since 1981.
A central feature of the Act was the opening up to competition of value added services and private network services (these two services have been defined above). AUSTEL regulates the provision of value added and private network services through a scheme of licences. The scheme of licences provided under the Act allows AUSTEL to issue licences for value added services and private network services that specify how such services are to be supplied. Value added services and private network services are not allowed to infringe on the exclusive rights of carriers. Carriers are required to connect value added services or private network services to their networks where requested. Carriers are prohibited from discriminating against a supplier of a value added service under a licence through the price at which the service is supplied, the performance characteristics of the service supplied, or the terms and conditions under which the service is supplied.
Under the Act, a person may complain to AUSTEL about:
*the supply of, or failure to supply, a service;
*the connection, or failure to connect customer, equipment; and
the performance or supervision of, or failure to perform or supervise, cabling work. AUSTEL may investigate such complaints.
Under the Act, AUSTEL may, prior to investigating a complaint or after it has started an investigation, transfer a complaint to the Ombudsman or Trade Practices Commission when it is of the opinion that the complaint has or could have been made to those bodies.
The Minister is granted certain powers to give directions to AUSTEL under the Act. For example, the Minister may notify AUSTEL of general government policy and AUSTEL is to ensure that the policies are carried out. Similarly, the Minister may give directions to AUSTEL in relation to the performance of its functions. In addition, the Minister has the power, subject to disallowance by Parliament, to control charges relating to the supply of the reserved services of the carriers.
(ii) The November 1990 statement
On 8 November 1990, the Prime Minister and the Minister for Transport and Communications announced a telecommunications reform package. The stated aims of the proposed reforms included: *to promote competition and dynamism in the telecommunications industry;
*to guarantee community service obligations in telecommunications;
*to maintain quality of telecommunications services;
*to maintain Telecom and OTC in full public ownership;
*to maintain maximum possible Australian ownership in the industry;
*to ensure effective regulation; and
*to remove from Telecom and OTC all Government imposed constraints which limit their ability to respond effectively to competition and which do not serve the broader national interests.
In order to achieve these aims the government proposed certain reforms, including:
*the merging of Telecom and OTC;
*the introduction of a second, privately owned, telecommunications carrier;
*the sale of AUSSAT (note: it is proposed that the sale will be on the basis that the purchaser will be given the right to compete with Telecom/OTC as the second carrier);
*that Telecom/OTC will have to interconnect the new carrier to its network and provide access to ancillary facilities;
*that Telecom/OTC will remain subject to price-capping;
*that an interdepartmental committee will be set up to consider the funding and delivery of community service obligations under the new arrangements;
*that AUSTELs role as a regulatory body will be enhanced (e.g. it will be given a specific mandate to promote competition and will control the allocation of telephone numbers);
*the sale of AUSSAT and tender for the licence for the second carrier is to be completed by 31 December 1991;
*that the second carrier will be given a mobile phone licence;
*that the second carrier will be given complete access to all domestic and international telecommunications markets; and
*Telecom/OTC will be maintained as a wholly Commonwealth owned body.
Main Provisions
Note: The main provisions of this Bill which are the same, or substantially the same in effect, as those in the Telecommunications Act 1989 are not analysed in this Digest.
Commencement of Bill: Clause 2 provides that the Bill will have effect, except in relation to clauses 116 and 120 that deal with the exemption of a general telecommunication licence (GTL) holder or public mobile licence (PML) holder from State and Territory laws and State and Territory laws that discriminate against a GTL or PML, from 1 July 1991. Clauses 116 and 120 will have effect from 1 January 1992, if they have not come into effect on a day fixed by Proclamation before that date.
Objects of Bill: The objects of the Bill are contained in clause 3 and include ensuring that the standard telephone service is supplied as efficiently and economically as practicable; is reasonably accessible to all people in Australia on an equitable basis; maximising the efficiency of GTLs and PMLs; ensuring GTL and PML accountability; and promoting the development of other sectors of the economy through the commercial supply of telecommunications services at the lowest possible prices.
Boundaries of telecommunication networks: Clauses 6-11 deal with the boundaries of telecommunications networks. Basically, the boundary between GTL networks and private networks will, subject to the regulations, be the first main distribution frame on a property, or, if there is no main distribution frame on the property, the first telephone socket. Where there is no link line (e.g. where radiocommunications are used), the boundary will be the outside of the nearest supplying facility.
Establishment, functions and powers of AUSTEL: Part 4 of the Bill (clauses 34-54) deals with the establishment, functions and powers of AUSTEL. The functions and powers of AUSTEL are contained in clauses 36-45 and include the: economic and technical regulation of the Australian telecommunications industry; promotion of competition in the telecommunications industry; protection of consumers from unfair practices of GTLs and PMLs; managing the numbering of telecommunications services; licensing; setting technical standards; and administering the universal service levy arrangements. AUSTEL may give directions to GTLs and PMLs in connection with the performance of their promotion of competition, protection of consumers, numbering, reports to the Minister on competitive safeguards and GTL and PML performance, licensing and technical regulation functions (clause 46). Clauses 49 and 50 grant the Minister certain powers to give directions to
AUSTEL. For example, the Minister may notify AUSTEL of general government policy and AUSTEL is to ensure that the policies are carried out.
Licensing of GTLs and PMLs: Part 5 of the Bill (clauses 55-88) deals with the licensing of GTLs and PMLs. Clauses 55-61 of the Bill deal with the issuing, revocation and transfer of GTLs and PMLs. An eligible corporation (i.e. a corporation within the meaning of s. 51(xx) of the Constitution) may apply to the Minister for a GTL or PML, or for licence holders, or for the transfer of a GTL or PML to another eligible corporation (clauses 56 59). The Minister may defer consideration of an application for a GTL or PML, or a GTL or PML transfer, for as long as the Minister thinks appropriate; grant or refuse an application; and will not have to give reasons (note: under any Commonwealth Act, such as the Administrative Decisions (Judicial Review) Act 1977, the Administrative Appeals Tribunal Act 1975 and the Freedom of Information Act 1983) for refusing or deferring an application (clauses 57, 58 60) (Note: where the Minister's power to refuse or defer the granting of an application has been delegated to AUSTEL, reasons for refusing or deferring an application will have to be given (clause 61)). The Minister is to refuse an application if the applicant is not an eligible corporation and may revoke a GTL or PML where a GTL or PML holder requests it, or in the Minister's opinion is about to cease to be an eligible corporation. The revocation of a GTL or PML will not affect an obligation a GTL or PML holder had prior to the revocation.
Licence conditions: Clauses 62-73 of the Bill deal with the conditions GTLs and PMLs may be subject to. The Minister may declare conditions that all licences, GTLs or PMLs will be subject to, and may by writing vary or revoke a declaration (clauses 64 65). The conditions may include that a GTL or PML holder: not supply specified telecommunications services (i.e. a service for carrying communications by means of guided or unguided electromagnetic energy or both) except within specified areas; deal with inquiries and complaints; and not do specified activities (clause 63). Before imposing or varying a condition dealing with the expiration date of a GTL or PML, the Minister is to obtain the consent of the GTL or PML holder affected (clause 67). Before imposing or varying other GTL or PML conditions, the Minister is to consult with the GTL or PML holder affected (clause 68).
Clauses 74-79 of the Bill deal with GTL and PML holder obligations under international telecommunications agreements and dealings with international telecommunications operators. The Minister may set a Code of Practice, which will be subject to disallowance by Parliament, for GTL and PML holder dealings with international telecommunications operators and with which GTL and PML holders are to comply (clauses 77 78). AUSTEL may give written directions to GTL and PML holders about how they are to comply with the Code and an agreement made by a GTL or PML holder that is inconsistent with the Code will not be enforceable in a court (clause 79).
Clauses 80-87 of the Bill deal with GTL and PML accounting and charging procedures. AUSTEL is to develop a chart of accounts and a cost allocation manual for GTL and PML holder use (clause 80). A GTL or PML holder is to keep account books and records in accordance with the chart and manual and, to the extent required by AUSTEL, separate charges for different telecommunication services provided by them and any customer accounts which identify charges imposed for those services (clauses 83 and 84). AUSTEL may give directions to GTL and PML holders about how they are to comply with clause 83 and 84 obligations (clause 85).
Exclusive/Reserved rights of GTL and PML holders: Part 6 of the Bill (clauses 89-115) deals with the exclusive/reserved rights of GTL and PML holders. Clause 90 provides that GTL holders will have an exclusive right to maintain and install line links (i.e. a wire, cable, optical fibre, tube, conduit, waveguide or other physical medium used, or intended to be used, with carrying communications by guided electromagnetic energy). GTL holders will have an exclusive right to supply telecommunications services by satellite between distinct places (basically, between two or more separate places or persons) in Australia or between places in Australian and overseas (clause 92). GTL holders will have an exclusive right, other than within a prescribed external Territory, to supply, install and maintain public payphones within Australia (clause 93). PML holders will have an exclusive right, other than within a prescribed external territory, to supply public mobile telecommunications service within Australia, or between Australia and overseas (clause 94).
Clauses 96-103 of the Bill deal with exceptions to the proposed exclusive rights of GTL and PML holders. Proposed exceptions to GTL and PML holder exclusive rights include: acts done on behalf of GTL and PML holders (clause 96); the installation or maintenance of a line link by the Civil Aviation Authority, Australian National Railways Commission, a State or Territory Transport Authority, the ABC or SBS, for use of train, bus or tram services, or television broadcasting to the public (clauses 98 99); and the installation or maintenance of a line link by a defence organisation (clause 101).
Clauses 105-115 of the Bill deal with the authorisation of specified line links and satellite telecommunications services by persons other than GTL and PML holders. AUSTEL may, where directed by the Minister: authorise a person to install or maintain specified line links, or supply by satellite specified telecommunications services; attach terms and conditions to an authorisation; set
the duration of an authorisation; vary an authorisation; and revoke an authorisation (clauses 106-110, 112 113). AUSTEL may revoke an authorisation only where the person to whom it was given asks for the revocation, or where a term or condition of the authorisation has been broken (clause 113).
The Minister may give or vary a direction only if the Minister has consulted with each GTL or PML holder affected by a direction and, in the Minister's opinion, the direction would not unduly erode the value of GTL and PML holder rights (clause 106). Directions of the Minister will be subject to disallowance by Parliament (clause 106).
Exemption of GTL and PML holder from State and Territory laws: Part 7 of the Bill (clauses 116-135) deals with the exemption of GTL and PML holders from State and Territory laws, a National Code regulating the conduct of GTL and PML holders engaging in exempt activities, participation by GTL and PML holders in agreements and arrangements to which Telecom is currently a party, and powers of GTL and PML holders to enter land. The regulations may provide that prescribed GTL or PML holders may do prescribed activities despite State or Territory laws to the contrary (clause 116) (Note: clause 116 will not affect the liability of a GTL or PML holder to pay State or Territory tax). Clause 117 provides that the Minister may, subject to disallowance by Parliament, set a National Code, the purposes of which may include: providing for the technical, design, safety, environmental or other standards with which GTL or PML holders will have to comply in relation to their exempt activities; impose requirements or prohibitions on GTL or PML holders in relation to the effect of their exempt activities on the environment; and require GTL or PML holders, before engaging in exempt activities, to consult with officers and authorities of States and Territories about the effect of the exempt activities on their functions and powers. GTL and PML holders who are engaging in exempt activities will have to comply with the National Code (clause 118).
The effect of clauses 124-127 will be to allow GTL and PML holders to become parties on equal
terms to current Telecom agreements or arrangements that establish codes of practice or conduct relating to the co-ordination or co-operation between Telecom and Commonwealth, State or Territory public authorities, or bodies that supply certain basic public services such as water and energy. AUSTEL may where satisfied that a GTL or PML holder has negotiated in good faith to become a party to an arrangement on the same basis as Telecom, considers that the GTL or PML holder should be able to become a party on an equal basis to the arrangement, and has received a request from a GTL or PML for a direction, give certain directions. The directions AUSTEL may give include directing a party to an arrangement to do, or not to do, specified acts that AUSTEL is satisfied would apply if the GTL or PML were a party on the same basis as Telecom, and vary or revoke such a direction. Where a direction is breached, AUSTEL may, or a GTL or PML holder that is or would be affected by the breach, with AUSTELs consent, apply to the Federal Court for an injunction to stop the person engaging in the conduct, or requiring them to do a particular act (clause 127).
Access rights to networks and services: Part 8 of the Bill (clauses 136-172) deals with access rights of GTL and PML holders to networks and services of other GTL and PML holders, access agreements, and the arbitration of access disputes. It may be a condition of a GTL or PML that another GTL or PML holder will have the right to interconnect its facilities (e.g. any part of the infrastructure of a telecommunications network) to their network, on such terms and conditions as agreed between the GTL or PML holders, or where agreement cannot be reached, as decided by arbitration (Note: `network' is defined as a telecommunications network to supply telecommunications services between distinct places within Australia, or between places with Australia and overseas) (clause 138). The Minister may, subject to disallowance by Parliament, set the principles that are to be used by GTL or PML holders when deciding what charges will be payable for access to a network (clause 140). Where the charging principles are changed, agreements are to be changed to reflect the changed principles or they will be unenforceable (clause 142). AUSTEL is to keep a register of access agreements (clause 144) that parties to an agreement may lodge with it (clause 146). Access disputes between GTL or PML holders may be settled by arbitration, with AUSTEL to act as the arbiter (clause 154).
Supply of basic carriage services: Part 9 of the Bill (clauses 173-202) deals with the supply of basic carriage services (BCS) by GTL and PML holders. Basically, A BCS is a telecommunications service for basic communications carriage (i.e. functions involved in establishing, maintaining or terminating a connection across a network, or modifying a connection after it has been established, or carrying a communication across a network) between two or more distinct places and is supplied by means of at least one reserved line link, telecommunications facilities including at least one reserved line link, or by satellite-based telecommunications facilities (clause 174). AUSTEL may at any time hold a public inquiry about whether it should direct a GTL or PML holder to supply a basic carriage service to the public generally (clause 179). Where AUSTEL has held an inquiry it may direct a GTL or PML holder to supply the BCS (clause 181). AUSTEL must direct a GTL or PML holder to supply a BCS if satisfied of certain matters, including: whether it is technically feasible for the GTL or PML holder to supply and charge for that BCS; the GTL or PML holder is in a position to dominate a market for that BCS; and unless the direction is given there would be a lessening of competition in a market for any other telecommunications service.
A GTL or PML holder is not to discriminate in relation to fees for a service between buyers of BCSs, or in respect to the terms and conditions on which they are supplied unless the discrimination is the result of: different quantities in which services are supplied; different transmission capacity needed to supply services; different places from, or to which, services are supplied; different periods for which services are supplied; different performance characteristics at which services are supplied; or a prescribed reason (clauses 183 185). GTL and PML holders are not to discriminate in the fee they levy for a service when using their own BCS to supply a higher level service (i.e. a telecommunications service that is not a BCS) (clause 187). Certain requirements will be imposed on GTL and PML holders in relation to fees for BCSs, including: that they are not to supply a BCS unless they have given AUSTEL a list of fees and the amount of fee payable for a BCS has been determined in accordance with the BCS list of fees (clause 190). Clause 192 provide for the variation of a BCS list of fees by notice to AUSTEL. BCS fee requirements need not be complied with where BCS are supplied under a registered access agreement (clause 202).
Class licences: Part 10 of the Bill (clauses 203-242) deals with the supply of telecommunications services under class licences. Basically, a class licence relates to a service that is provided by someone other than a GTL or PML holder which supplies services in the same area and is interconnected to a network operated by a GTL or PML holder. In large part, the provisions contained in Part 10 of the Bill are the same as those contained in Part 4 (sections 70-104) of the Telecommunications Act 1989. The principal difference being that they apply to eligible services rather than value added services (note: a value added service is one delivered or accessed by telecommunications means and involving the addition of significant value to the basic switching and transmission functions, in the form of information processing, delay or other intervention) and private network services (private network services are an arrangement by which a user operates facilities, such as PABX, which it has provided for its own internal communications needs). A definition of an eligible service is provided by clause 18. Basically, an eligible service is: a telecommunications service supplied by someone other than a GTL or PML holder by way of at least one reserved line link, or facilities including at least one reserved line link; a telecommunications service supplied by someone other than a GTL or PML by way of satellite-based facilities between distinct places within Australia, or within Australia and overseas; or a public mobile telecommunications service or cordless telecommunications service supplied by a GTL which is not also a PML; or a public access cordless telecommunications service supplied by a PML.
Numbering of telecommunications services and supply of BCS not included in a list of fees: Clauses 237 239-242 of Part 11 of the Bill deal with the supply of BCS not included in a GTL or PML holders list of fees and the management of numbering telecommunications services. GTL and PML holders may refuse or not supply a BCS to another person if that service is not included in their BCS list of fees (clause 237). Clause 239 provides that AUSTEL is to prepare and administer a plan for the numbering of telecommunications services in Australia. The plan is to show the numbers that have been allocated by AUSTEL to each GTL and PML holder, to any other person, and set out the policies on which the plan is based. A telecommunications service is not to be provided across a public network unless the numbers used accord with the national numbering plan (clause 241). AUSTEL may allocate numbers for telecommunication services provided by a GTL or PML holder or other person across a public network and the allocation of numbers to customers is to be done in accordance with policies set out in the national numbering plan (clause 242).
Part 12 of the Bill (clauses 243-286) deal with technical regulation of customer equipment (e.g equipment intended to be connected to a network operated by a GTL or PML holder) and customer cabling (e.g. a line intended to be connected to a network operated by a GTL or PML holder). For the most part this Bill proposes to re-enact the provisions of Part 5 of the Telecommunications Act 1989. The following analysis is only in respect of those main provisions not contained in the 1989 Act. Clause 244 provides that the Minister may direct AUSTEL to determine a technical standard about network matters (`network matters' is defined to be a matter relating to, and within the boundaries of, telecommunications networks, or the supply of telecommunications services by means of telecommunications networks). In addition, the Minister may vary or revoke a direction and where this occurs, AUSTEL is to comply with that direction. AUSTEL may vary a technical standard of its own motion, but only to the extent that the varied standard complies with a direction. AUSTEL may, of its own motion, revoke a technical standard and determine a new standard that complies with a direction. Determinations of technical standards will be disallowable by Parliament. AUSTEL, subject to disallowance by Parliament, may by notice in the Gazette, declare that Division 6 of Part 12 of the Bill (clauses 253-267) (Note: these clauses deal with permits for customer equipment) or specified provisions of Division 6, do not apply to specified classes of customer equipment.
Universal service levy: Part 13 of the Bill (clauses 287-326) deals with a scheme for the subsidisation of standard telephone services and payphones to those in remote areas. The scheme will operate through the vehicle of a levy - the universal service levy (USL). The Minister may, subject to disallowance by Parliament, declare a GTL or PML to be a universal service carrier for Australia or a specified area (clause 290). Universal service carriers will have to fulfil the universal service obligation (clause 292). The universal service obligation is the obligation: to ensure that the standard telephone service and payphones is reasonably accessible to all Australians on an equitable basis wherever they reside or carry on business; to supply the standard telephone service to people in Australia; and supply, install and maintain payphones in Australia (note: the regulations may prescribe what is, or is not, necessary to ensure that payphones are reasonably accessible) (clause 288).
Liability to pay the levy and to receive funds from the levy are dealt with in proposed Division 3. The first step is for universal service carriers to calculate the cost to them of servicing areas where there is a net cost to the carrier. This amount, known as the net universal service cost for the carrier, is based on the avoidable cost less the revenue foregone. Avoidable cost is principally based on the additional operational, capital and depreciation costs involved in servicing areas that have been declared to be net cost areas (clause 294 provides for AUSTEL to declare such areas). Revenue foregone basically refers to the additional revenue gained from the net cost areas. AUSTEL may release determinations as to how these amounts are to be calculated (clause 302). Participating carriers (i.e. those declared under clause 4 of the Telecommunications (Universal Service Levy) Bill 1991 to be so) are then required to provide AUSTEL with a statement of their timed traffic in the year (clause 304), with a proportional allocation where two or more networks are involved (clause 306). AUSTEL is then to make a calculation of the carriers levy debit or credit. This is calculated using a formula based on the carriers timed traffic as a proportion of total timed traffic, multiplied by the total net universal service costs (clause 310). When this has been done, the carrier will have a levy debit balance if the amount so calculated is greater than their net universal service cost. A levy credit balance will exist where the balance is reversed. Where there is a levy debit balance, this amount becomes payable to AUSTEL (clause 317).
Proposed Division 6 establishes the Universal Service Fund (USF). The fund will consist of levies paid to AUSTEL, interest and any money appropriated for this purpose (clause 323) and the fund will mainly be used for payments to carriers under clause 325 and to reimburse the Commonwealth for certain costs associated with the operation of the levy. Clause 325 provides that where a carrier has a levy credit balance, an equal amount is payable to the carrier from the USF. No amounts are payable until all the carriers who have been assessed as liable for the levy have paid (clause 326).
Public inquiries: Part 14 of the Bill (clauses 327-332) deals with the holding of public inquiries by AUSTEL. AUSTEL is to hold a public inquiry about a specified telecommunications service or industry matter where the Minister directs it to, or where required by a provision of this Bill (clause 327). AUSTEL may hold a public inquiry where a provision of this Bill allows it to, or AUSTEL considers it appropriate and practicable to hold an inquiry about a matter relating to the performance or exercise of any of AUSTEL's functions and powers (clause 328). As soon as practicable after deciding to hold a public inquiry, AUSTEL is to prepare a discussion paper that identifies and sets out the issues and background material that, in AUSTEL's opinion, are relevant to the inquiry (clause 330). The public are to be informed about the inquiry, opportunity is to be provided for written submissions to AUSTEL about the inquiry and public hearings may be held (clauses 329, 331 332). There is no provision for private inquiries.
Part 15 of the Bill (clauses 333-346) deals with AUSTEL's powers to investigate complaints and its relationship with the Ombudsman and Trade Practices Commission. In large part, clauses 333-346 re-enact sections 147-156 of the Telecommunications Act 1989. The principal differences being that AUSTEL may, on its own motion or on a complaint, investigate: a breach of a GTL or PML holders anti-discrimination and fee list requirements; a GTL or PML holders licence conditions; a breach of the Code of Practice; or the supply of an eligible service other than under a class licence (clauses 333-335).
Enforcement of directions and conditions attaching to GTLs and PMLs: Clauses 347-359 of Part 16 of the Bill deal with the enforcement of certain AUSTEL directions and conditions attached to GTLs and PMLs. The Minister or AUSTEL may apply to the Federal Court for an injunction and/or declaration where a GTL or PML holder acts, or proposes to act, in a way that would breach certain AUSTEL directions, including complying with the Code of Practice; keeping accounts in accordance with the chart of accounts and cost allocation manual; promoting competition; protecting consumers; and complying with arbitration determinations (clause 348). Where the Court is satisfied a GTL or PML holder has breached a direction, it may impose for each breach a maximum fine of $5 million (only one penalty may be imposed where the breaches relate to the same conduct) (clause 349). Individuals who suffer loss or damage because of a GTL or PML holders breach of a direction, may apply to the Federal Court for damages (clause 353). Where the Court is satisfied a GTL or PML has breached a GTL or PML condition, it may impose for each breach a maximum fine of $5 million (only one penalty may be imposed where the breaches relate to the same conduct) (clause 356).
Select Bibliography
*Armstrong M (ed), Telecommunications Law - Australian Perspectives, 1990.
*AUSSAT Pty Ltd, 1990 Annual Report.
*Australian Telecommunications Authority, Public Mobile Telephone Services, May 1990.
*Australian Telecommunications Authority, Annual Report 1989-90.
*Evatt Foundation, Telefuture: Who Foots the Bill ?, April 1991.
*Kain J, The Mobile Phone Debate: Economic Issues, Parliamentary Research Service, August 1990.
*Leonard P Henderson K, Carrier Immunities and Powers in the Duopoly Regime, Australian Communications, March 1991.
*Leonard P Henderson K, Has the Government Properly got its `Act' Straight ?, Australian Communications, May 1991.
*OTC, 1989 Annual Report.
*Sharp D, Wakefield G McDonnell M, Telecommunications Reporter, Law Book Company Ltd.
*Statement by the Minister for Transport and Communications, Australian telecommunications services: a new framework, May 1988.
*Statement by the Minister for Transport and Communications, Reshaping the Transport and Communications Government Business Enterprises, May 1988.
*Statement by the Prime Minister, Transport and Telecommunications Reform, November 1990.
Bills Digest Service 14 May 1991
Parliamentary Research Service
For further information, if required, contact the Economics and Commerce Group on 06 2772460.
This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Commonwealth of Australia 1991
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Published by the Department of the Parliamentary Library, 1990.