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Monday, 21 June 1999
Page: 5816


Senator ROBERT RAY (10:44 PM) —Under standing order 195 could the chair read out the amendments?


The CHAIRMAN —Government amendment No. 5:

Clause 4, page 4 (after line 1), after:

. Telstra is subject to price control arrangements.

insert:

. This act regulates telephone sex services.

Government amendment 39:

Page 110 (after line 25), after Part 9, insert:

Part 9A—Telephone sex services

Order! The time being after 10.45 p.m., we shall now proceed to putting the question. The question is that government amendments Nos 5 and 39—


Senator Robert Ray —I raise a point of order, Madam Chair. I do not think that even a guillotine motion overrides standing order 195. I still require the question to be read.


The CHAIRMAN —It is the remaining stages of the guillotine motion, Senator Ray.


Senator Brown —I do not understand that response. Was Senator Ray's request for the amendment to be read out completed, or is the chair saying that it is not to be completed? I understand that Senator Ray is absolutely right, that standing order 195 is not overridden by the guillotine.


The CHAIRMAN —The time for the proceedings of the bill had expired. The question is that government amendments Nos 5 and 39 on sheet ER229 be agreed to.

Question resolved in the affirmative.


The CHAIRMAN —We now proceed to government amendments Nos 37 and 38 on sheet ER229 and government amendment No. 1 on sheet EK225. The question is that the following amendments be agreed to:

(37) Page 80 (after line 6), after clause 117, insert:

117A Time for payment of damages for breach of performance standards

Decision whether to accept liability for damages

(1) If, at a particular time, a carriage service provider first has reason to believe that an event has occurred that is reasonably likely to result in the carriage service provider being liable to pay damages to a particular customer under section 116, then, within 14 days after that time, the carriage service provider must decide whether to accept that liability.

(2) In making a decision under subsection (1), the carriage service provider must have regard to whether there is any reasonable basis for the carriage service provider to dispute the liability.

(3) If a carriage service provider makes a decision under subsection (1) to accept, or not to accept, a liability to pay damages to a particular customer, the carriage service provider must give the customer written notification of the decision within 14 weeks after the decision is made.

Crediting customer account

(4) If:

(a) a carriage service provider makes a decision under subsection (1) to accept a liability to pay damages to a particular customer; and

(b) the liability is to be discharged by giving the customer a credit in an account the customer has with the carriage service provider;

the liability must be discharged within the period of 14 weeks after the decision is made and:

(c) if it is practicable for the carriage service provider to give the customer the credit within that 14-week period and in time for the customer to be notified of the credit in the first bill sent to the customer during that period—by giving the customer the credit in time for the customer to be notified of the credit in that bill; or

(d) if paragraph (c) does not apply, but it is practicable for the carriage service provider to give the customer the credit within that 14-week period and in time for the customer to be notified of the credit in the second bill sent to the customer during that period—by giving the customer the credit in time for the customer to be notified of the credit in that bill.

Other manner of discharging liability

(5) If:

(a) a carriage service provider makes a decision under subsection (1) to accept a liability to pay damages to a particular customer; and

(b) the liability is not to be discharged by giving the customer a credit in an account the customer has with the carriage service provider;

the liability must be discharged within 14 weeks after the decision is made.

Customer

(6) If the customer dies, a reference in this section to the customer includes a reference to the legal personal representative of the customer.

Transitional

(7) The reference in subsection (1) to a particular time is a reference to a particular time after the end of the period of 6 months beginning on the date of commencement of this section.

(38) Page 81 (after line 6), after clause 118, insert:

118A Right of contribution

(1) If:

(a) a carriage service provider (the first provider ) contravenes a standard in force under section 115; and

(b) the contravention relates to a particular customer; and

(c) the first provider is liable, under section 116, to pay damages (the primary damages ) to the customer for the contravention; and

(d) the contravention is wholly or partly attributable to one or more acts or omissions of another carriage service provider (the second provider ); and

(e) the first provider has discharged the liability for the primary damages;

the second provider is liable to pay damages (the secondary damages ) to the first provider for the acts or omissions.

(2) The amount of the secondary damages for the acts or omissions is:

(a) if the contravention is wholly attributable to the acts or omissions—an amount equal to the primary damages; or

(b) if the contravention is partly attributable to the acts or omissions—such amount (not exceeding the primary damages) as the court thinks fair and reasonable.

(3) If the second provider makes a payment to the first provider as a result of a right or remedy that:

(a) was available to the first provider otherwise than under this section; and

(b) arose out of the same acts or omissions;

the amount of the secondary damages payable for the acts or omissions is to be reduced (but not below zero) by the amount of the payment.

(4) The first provider may recover the amount of the secondary damages by action against the second provider in a court of competent jurisdiction.

(5) An action under this section must be instituted within 2 years after the first provider discharged the liability for the primary damages.

(6) If the customer dies, a reference in this section to the customer includes a reference to the legal personal representative of the customer.

(7) Paragraph (1)(a) does not apply to a contravention that occurs before the end of the period of 6 months beginning on the date of commencement of this section.

(1) Proposed subclause 117A(7), omit "6 months", substitute "12 months".

Question resolved in the affirmative.


The CHAIRMAN —If any non-government parties wish to have their amendments considered, could they please so indicate.

Amendments (by Senator Allison)—by leave—not agreed to:

(2) Page 60 (after line 9), at the end of Part 2, add:

Division 7—Review of the Universal Service Obligation by the Telecommunications Review Committee

92A Telecommunications Review Committee

(1) The Minister must establish a committee, to be known as the Telecommunications Review Committee, with two members drawn from each of the following:

(a) telecommunications industry groups;

(b) telecommunications-focussed consumer groups;

and one member drawn from each of the following:

(c) the Department;

(d) a group which represents the interests of people in rural and remote parts of Australia and has a knowledge of telecommunications issues in those areas.

(2) A member of the committee holds office for such period as is specified in the instrument of appointment, and is eligible for re-appointment.

(3) A member of the committee may resign from office by writing signed and delivered to the Minister.

(4) Three members of the committee constitute a quorum for the purposes of a meeting of the committee.

(5) The Minister may approve a member of the committee to be the Chairperson of the committee.

(6) The Chairperson has a casting vote if votes before the committee are equally divided.

(7) Where:

(a) a member has a direct or indirect pecuniary interest in a matter being considered, or about to be considered, by the committee; and

(b) the interest could conflict with the proper performance of the member's duties in relation to the consideration of the matter;

the member must, as soon as practicable after the relevant facts have come to the member's knowledge, disclose the nature of the interest at a meeting of the committee.

(8) A disclosure made under subsection (7) must be recorded in the minutes of the meeting.

(9) If the Minister decides that a member of the committee should be remunerated, that member shall be paid such remuneration as is determined by the Remuneration Tribunal.

(10) A member of the committee is to be paid such allowances as are prescribed.

(11) Subsections (9) and (10) have effect subject to the Remuneration Tribunal Act 1973 .

92B Review of the Universal Service Obligation

(1) Every 4 years, commencing on or after 1 July 1999, the Telecommunications Review Committee must initiate a review of:

(a) the operation and adequacy of the Universal Service Obligation arrangements; and

(b) whether any aspect of the service or equipment provided under the Universal Service Obligation should be upgraded; and

(c) any other matter relating to the Universal Service Obligation.

(2) The committee must give a written report of the review and any recommendations to the Minister as soon as practicable, but in any event no later than 31 December of the year in which the inquiry was commenced.

(3) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.

(4) Subsections 34C(4) to (7) of the Acts Interpretation Act 1901 apply to a report under this section as if it were a periodic report as defined in subsection 34C(1) of that Act.

(5) As soon as practicable after receiving the report, but in any event not later than 3 months after receiving the report, the Minister must cause a copy of the Government's response to the recommendations in the report to be tabled in each House of the Parliament.

92C Telecommunications Review Committee to determine affordable price for digital access

(1) Subject to subsection (3), the Telecommunications Review Committee must determine an affordable price for the service referred to in paragraph 13(1)(aa).

(2) For the purpose of determining an affordable price, the committee may invite submissions from the public and may call witnesses to give evidence at public hearings.

(3) The committee may set two prices, one for business customers and one for residential customers, but may not set prices based on any other factor, such as geographical location.

(4) The committee must review the price or prices determined under subsection (1) at least once every two years.

(7) Page 84 (after line 18), at the end of Part 5, add:

125A Review of Customer Service Guarantee

(1) Every 4 years, commencing on or after 1 July 2001, the Telecommunications Review Committee must:

(a) review the operation and adequacy of the customer service guarantee and any other relevant consumer protection measures; and

(b) make recommendations for enhancing consumer protection in the context of technological developments and changing social requirements.

(2) The committee must give a written report of the review and any recommendations to the Minister as soon as practicable, but in any event not later than 31 December of the year in which the review was commenced.

(3) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.

(4) Subsections 34C(4) to (7) of the Acts Interpretation Act 1901 apply to a report under this section as if it were a periodic report as defined in subsection 34C(1) of that Act.

(5) As soon as practicable after receiving the report, but in any event not later than 3 months after receiving the report, the Minister must cause a copy of the Government's response to the recommendations in the report to be tabled in each House of the Parliament.

Amendments (by Senator Bishop)—by leave—not agreed to:

(21) Page 72 (after line 19), after clause 116, insert:

116A Carrier liable for breach of performance standards in certain circumstances

(1) If, in relation to a particular customer:

(a) a contravention of a standard in force under section 115 is caused by a fault or service difficulty in the carrier's network; and

(b) the carrier is not the customer's carriage service provider for the supply of the service subject to the fault or service difficulty;

then the carrier is liable to pay damages to the customer for the contravention.

(2) For the purpose of subsection (1), a fault or service difficulty is in the carrier's network if it is caused by the carrier, regardless of whether the cause is technical or human error.

(3) Section 116 applies to a breach of performance standards covered by this section as if a reference in section 116 to a carriage service provider was deemed to be a reference to a carrier.

(4) Any performance standard made under section 115 which is inconsistent with this section is invalid to the extent of the inconsistency.

(5) This section applies in respect of a fault or service difficulty detected or reported after the commencement of this section.

Amendments (by Senator Margetts)—by leave—not agreed to:

(1) Clause 116, page 78 (line 15), omit "is liable to pay", substitute "must pay".

(5) Clause 116, page 79 (after line 19), at the end of the clause, add:

(8) A carrier must comply with the time limits imposed by section 117A for the payment of damages.

(9) Subsection (8) is a civil penalty provision.

Note: Part 31 of the Telecommunications Act 1997 provides for pecuniary penalties for braches of civil penalty provisions. This provision is a civil penalty provision for the purposes of that Act.

(5A) Clause 117, page 79 (lines 25 and 26), at the end of subclause (2), add:

and ;(c) specify the circumstances in which:

(i) damages are payable for each day that a contravention continues: or

(ii) for each day that a contravention continues, the amount of damage payable in respect of that day is an amount which is not more than twice the amount payable in respect of the preceding day.

(6) Clause 117, page 79 (line 28), omit "$25,000", substitute "$250,000".

TELECOMMUNICATIONS LEGISLATION AMENDMENT BILL 1998


The CHAIRMAN —It being after 10.45 p.m. and these amendments having been circulated for more than two hours, I put the question that the following government amendments Nos 1 to 16 on sheet EK209 be agreed to:

(1) Schedule 1, page 4 (before line 24), before item 6, insert:

5A Section 151AA

Omit:

. The Commission may issue a notice stating that a specified carrier or carriage service provider has contravened, or is contravening, the competition rule. The notice is called a competition notice .

. A competition notice is prima facie evidence of the matters in the notice.

substitute:

. The Commission may issue a notice stating that a specified carrier or carriage service provider has engaged, or is engaging, in anti-competitive conduct. The notice is called a Part A competition notice .

. Proceedings for the enforcement of the competition rule (other than proceedings for injunctive relief) must not be instituted unless the alleged conduct is of a kind dealt with in a Part A competition notice that was in force at the time when the alleged conduct occurred.

. The Commission may issue a notice stating that a specified carrier or carriage service provider has contravened, or is contravening, the competition rule. The notice is called a Part B competition notice .

. A Part B competition notice is prima facie evidence of the matters in the notice.

(2) Schedule 1, page 5 (after line 6), after item 6, insert:

6A Section 151AB (definition of competition notice )

Repeal the definition, substitute:

competition notice means:

(a) a Part A competition notice; or

(b) a Part B competition notice.

(3) Schedule 1, page 5 (after line 14), after item 8, insert:

8A Section 151AB

Insert:

Part A competition notice means a notice issued under subsection 151AKA(1) or (2).

8B Section 151AB

Insert:

Part B competition notice means a notice issued under subsection 151AL(1).

8C Paragraph 151AJ(2)(b)

Repeal the paragraph, substitute:

(b) either:

(i) takes advantage of that power with the effect, or likely effect, of substantially lessening competition in that or any other telecommunications market; or

(ii) takes advantage of that power, and engages in other conduct on one or more occasions, with the combined effect, or likely combined effect, of substantially lessening competition in that or any other telecommunications market.

8D Before section 151AL

Insert:

151AKA Part A competition notices

Particular anti-competitive conduct

(1) The Commission may issue a written notice stating that a specified carrier or carriage service provider has engaged, or is engaging, in a specified instance of anti-competitive conduct.

Kind of anti-competitive conduct

(2) The Commission may issue a written notice stating that a specified carrier or carriage service provider has engaged, or is engaging, in at least one instance of anti-competitive conduct of a kind described in the notice.

Part A competition notice

(3) A notice under subsection (1) or (2) is to be known as a Part A competition notice .

Part A competition notices under subsection (2)

(4) For the purposes of this Part, a kind of anti-competitive conduct described in a Part A competition notice under subsection (2) is taken to be conduct of a kind dealt with in the notice.

(5) To avoid doubt, a Part A competition notice under subsection (2) is not required to specify any instance of anti-competitive conduct.

(6) In deciding how to describe a kind of anti-competitive conduct in a Part A competition notice under subsection (2), the Commission may have regard to:

(a) whether the carrier or carriage service provider concerned could, by varying its conduct, continue to engage in anti-competitive conduct and avoid proceedings against it under one or more provisions of Division 7; and

(b) any other matters that the Commission thinks are relevant.

Threshold for issuing Part A competition notices

(7) The Commission may issue a Part A competition notice under subsection (1) that specifies an instance of anti-competitive conduct if the Commission has reason to believe that the carrier or carriage service provider concerned has engaged, or is engaging, in that instance of anti-competitive conduct.

(8) The Commission may issue a Part A competition notice under subsection (2) that describes a kind of anti-competitive conduct if the Commission has reason to believe that the carrier or carriage service provider concerned has engaged, or is engaging, in at least one instance of anti-competitive conduct of that kind.

Note: For the effect of a Part A competition notice, see subsections 151BY(3), 151CB(3), 151CC(3) and 151CE(5).

8E Subsection 151AL(2)

Omit " competition notice ", substitute " Part B competition notice ".

Note: The heading to section 151AL is altered by omitting "Competition " and substituting "Part B competition ".

8F At the end of section 151AL

Add:

Threshold for issuing Part B competition notices

(3) The Commission may issue a Part B competition notice relating to a particular contravention if the Commission has reason to believe that the carrier or carriage service provider concerned has committed, or is committing, the contravention.

Notice may be issued after proceedings have been instituted

(4) To avoid doubt, a Part B competition notice may be issued even if any relevant proceedings under Division 7 have been instituted.

Note: For the effect of a Part B competition notice, see subsection 151AN(1).

8G Subsection 151AN(1)

Before "competition notice", insert "Part B".

8H Section 151AO

Before "competition notice" (wherever occurring), insert "Part A".

Note: The heading to section 151AO is altered by omitting "competition " and substituting "Part A competition ".

8J Subsection 151AO(2)

Omit "151AL", substitute "151AKA".

8K After section 151AO

Insert:

151AOA Variation of competition notice

(1) If a competition notice is in force in relation to a carrier or carriage service provider, the Commission may vary the competition notice so long as the variation is of a minor nature.

(2) If a Part A competition notice is in force in relation to a carrier or carriage service provider, the Commission may vary the competition notice by omitting the time at which the notice is expressed to come into force and substituting a later time.

(3) If a competition notice is varied, the Commission must give the carrier or carriage service provider concerned a written notice setting out the terms of the variation.

151AOB Revocation of competition notice

(1) The Commission may revoke a competition notice.

(2) If a competition notice is revoked, the Commission must give the carrier or carriage service provider concerned a written notice stating that the notice has been revoked.

8L After section 151AQ

Insert:

151AQA Stay of proceedings relating to competition notices

(1) Paragraphs 15(1)(a) and (b) of the Administrative Decisions (Judicial Review) Act 1977 do not apply to a decision to issue a competition notice.

(2) If a person applies to the Federal Court under subsection 39B(1) of the Judiciary Act 1903 for a writ or injunction in relation to a decision to issue a competition notice, the Court must not make any orders staying or otherwise affecting the operation or implementation of the decision pending the finalisation of the application. However, this subsection does not apply to an order under subsection (3).

(3) If:

(a) either:

(i) a person applies to the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 for review of a decision to issue a competition notice; or

(ii) a person applies to the Federal Court under subsection 39B(1) of the Judiciary Act 1903 for a writ or injunction in relation to a decision to issue a competition notice; and

(b) any relevant proceedings have been instituted under Division 7 of this Part;

the Federal Court or a Judge of the Federal Court may, by order, on such conditions as the Court or the Judge thinks fit, stay those proceedings.

151AQB Advisory notices

(1) This section applies if a Part A competition notice is in force in relation to a carrier or carriage service provider.

(2) The Commission may give the carrier or carriage service provider a written notice advising the carrier or carriage service provider of the action it should take, or consider taking, in order to ensure that it does not engage, or continue to engage, in the kind of conduct dealt with in the Part A competition notice.

(3) A notice under subsection (2) is an instrument of an advisory character.

(4) A notice under subsection (2) that relates to a Part A competition notice ceases to be in force if the Part A competition notice ceases to be in force.

(5) The Commission may vary or revoke a notice under subsection (2).

(6) If a notice under subsection (2) is varied, the Commission must give the carrier or carriage service provider concerned a written notice setting out the terms of the variation.

(7) If a notice under subsection (2) is revoked, the Commission must give the carrier or carriage service provider con cerned a written notice stating that the notice under subsection (2) has been revoked.

(4) Schedule 1, page 19 (after line 2), after item 23, insert:

23A Subsection 151BY(3)

Omit "competition notice that was in force" (wherever occurring), substitute "Part A competition notice that was in force in relation to the carrier or carriage service provider concerned".

(5) Schedule 1, page 19 (after line 12), after item 26, insert:

26A Subsection 151CB(3)

Omit "competition notice that was in force", substitute "Part A competition notice that was in force in relation to the carrier or carriage service provider concerned".

26B Subsection 151CC(3)

Omit "competition notice that was in force", substitute "Part A competition notice that was in force in relation to the carrier or carriage service provider concerned".

26C Subsection 151CE(5)

Omit "competition notice that was in force", substitute "Part A competition notice that was in force in relation to the carrier or carriage service provider concerned".

(6) Schedule 1, page 23 (after line 2), after item 31, insert:

31A Paragraph 152AN(2)(d)

Repeal the paragraph, substitute:

(d) the Commission must ensure that each inquiry is covered by a report under section 505 of that Act, whether the report relates:

(i) to a single one of those inquiries; or

(ii) to any 2 or more of those inquiries.

(7) Schedule 1, page 28 (after line 19), after item 36, insert:

36A Section 152CL

Insert:

final determination means a determination other than an interim determination.

36B Section 152CL

Insert:

interim determination means a determination that is expressed to be an interim determination.

36C Subsections 152CN(1) and (2)

Before "determination" (wherever occurring), insert "final".

36D Subsection 152CN(3)

Repeal the subsection, substitute:

(3) If the notification is withdrawn:

(a) the Commission must not make a final determination in relation to the access dispute; and

(b) if the Commission has not already made an interim determination in relation to the access dispute—the Commission must not make an interim determination in relation to the access dispute.

36E After section 152CP

Insert:

152CPA Interim determination by Commission

(1) A determination may be expressed to be an interim determination.

(2) The making of an interim determination does not terminate an arbitration or relieve the Commission from its duty to make a final determination.

Objection by access seeker

(3) The Commission must not make an interim determination if, at any time within the objection period, the access seeker gave the Commission a written notice objecting to the determination. For this purpose, the objection period is the period specified in a written notice issued by the Commission at the same time as a draft of the determination was issued by the Commission. The specified period must not be shorter than 7 business days after the draft of the determination was issued by the Commission.

Duration

(4) An interim determination has effect on the date specified in the determination.

(5) Unless sooner revoked, an interim determination remains in force until the end of the period specified in the determination. The period must not be longer than 12 months.

Revocation

(6) The Commission may revoke an interim determination.

(7) The Commission must revoke an interim determination if requested to do so by the parties to the determination.

(8) If:

(a) an interim determination relating to an access dispute is in force; and

(b) the notification of the dispute is withdrawn under section 152CN;

the interim determination is taken to have been revoked when the withdrawal occurs.

(9) If:

(a) an interim determination relating to an access dispute is in force; and

(b) a final determination relating to the access dispute takes effect;

the interim determination is taken to have been revoked when the final determination takes effect.

Variation

(10) The Commission may vary an interim determination.

(11) Sections 152CQ and 152CR apply to a variation under subsection (10) as if:

(a) in a case where the interim determination was made in arbitration of an access dispute relating to an earlier final determination of an access dispute (the eligible access dispute ) between the access seeker and the carrier or provider:

(i) an access dispute (the notional access dispute ) arising out of the interim determination had been notified at the time when the eligible access dispute was notified; and

(ii) the notional access dispute were an access dispute relating to the earlier final determination; and

(iii) the variation were the making of an interim determination in the terms of the varied interim determination; or

(b) in any other case:

(i) an access dispute arising out of the interim determination had been notified at the time when the original access dispute was notified; and

(ii) the variation were the making of an interim determination in the terms of the varied interim determination.

Definition

(12) In this section:

business day means a day that is not a Saturday, a Sunday or a public holiday in the Australian Capital Territory.

36F Subsection 152CR(1)

After "making a", insert "final".

36G At the end of section 152CR

Add:

(3) The Commission may take the following matters into account in making an interim determination:

(a) a matter referred to in a paragraph of subsection (1);

(b) any other matters that it thinks are relevant.

(4) In making an interim determination, the Commission does not have a duty to consider whether to take into account a matter referred to in a paragraph of subsection (1).

(8) Schedule 1, page 29 (after line 11), after item 39, insert:

39A At the end of section 152CV

Add:

(2) To avoid doubt, a member of the Commission is not disqualified from constituting the Commission (with other members) for the purposes of an arbitration of a dispute about a particular matter merely because the member has performed functions, or exercised powers, in relation to the matter or a related matter.

(3) Subsection (2) has effect in addition to subsection 152BBC(5).

(4) In determining the operation of a provision of this Act other than this Division or section 152BBC, subsection (2) of this section and subsection 152BBC(5) are to be disregarded.

39B Section 152DN

Repeal the section, substitute:

152DN Operation of determinations

(1) A final determination has effect 21 days after the determination is made.

Stay of determination by the Tribunal

(2) However, if a party to an arbitration applies to the Tribunal under section 152DO for a review of the Commission's final determination, the Tribunal may make any orders staying or otherwise affecting the operation or implementation of the final determination that the Tribunal thinks appropriate to secure the effectiveness of the review by the Tribunal.

(3) If an order is in force under subsection (2) (including an order previously varied under this subsection), the Tribunal may make an order varying or revoking the first-mentioned order.

(4) An order in force under subsection (2) (including an order previously varied under subsection (3)):

(a) is subject to any conditions that are specified in the order; and

(b) has effect until:

(i) the end of any period for the operation of the order that is specified in the order; or

(ii) the finalisation of the review;

whichever is earlier.

Interim determination to remain in force if final determination stayed

(5) If:

(a) an order is made under subsection (2) in connection with a final determination relating to an access dispute; and

(b) an interim determination relating to the access dispute was in force immediately before the final determination took effect;

the interim determination remains in force until:

(c) the end of any period for the operation of the order that is specified in the order; or

(d) the finalisation of the review; or

(e) the revocation of the interim determination;

whichever is earliest.

Commission may make interim determination while final determination stayed

(6) If:

(a) an order is made under subsection (2) in connection with a final determination relating to an access dispute; and

(b) no interim determination relating to the access dispute was in force immediately before the final determination took effect;

this Part does not prevent the Commission from making an interim determination relating to the access dispute while the order is in force. Such an interim determination ceases to have effect:

(c) at the end of any period for the operation of the order that is specified in the order; or

(d) on the finalisation of the review; or

(e) on the revocation of the interim determination;

whichever is earliest.

Duration of interim determination

(7) Subsections (5) and (6) have effect despite anything in section 152CPA.

When final determination takes effect

(8) For the purposes of subsections (5) and (6), in determining the time when a final determination took effect, an order under subsection (2) is to be disregarded.

152DNA Backdating of final determinations

(1) Any or all of the provisions of a final determination may be expressed to have taken effect on a specified date that is earlier than the date on which the determination took effect.

(2) The specified date must not be earlier than the date of notification of the access dispute concerned.

(3) For the purposes of subsections 152CPA(9) and 152DN(5) and (6), in determining the time when a final determination takes effect, a provision covered by subsection (1) of this section is to be disregarded.

(4) A provision of a final determination may be expressed to cease to have effect on a specified date.

(5) This section has effect despite anything in subsection 152DN(1).

152DNB Stay of determinations

(1) Paragraphs 15(1)(a) and (b) of the Administrative Decisions (Judicial Review) Act 1977 do not apply to a decision of the Commission to make a determination.

(2) If a person applies to the Federal Court under subsection 39B(1) of the Judiciary Act 1903 for a writ or injunction in relation to a decision of the Commission to make a determination, the Court must not make any orders staying or otherwise affecting the operation or implementation of the decision pending the finalisation of the application.

39C Subsection 152DO(1)

Omit "determination" (wherever occurring), substitute "final determination".

39D At the end of subsection 152DO(4)

Add:

To avoid doubt, the Tribunal has power to make, vary or revoke an interim determination.

39E Section 152DT

Omit "determination" (wherever occurring), substitute "final determination".

39F After subsection 152DU(1)

Insert:

(1A) The revocation of a determination does not affect any remedy under subsection (1) in respect of a contravention of the determination that occurred when the determination was in force.

(9) Schedule 1, page 29 (after line 25), after item 41, insert:

41A Transitional—interim determinations

An interim determination may be made in relation to an arbitration under Division 8 of Part XIC of the Trade Practices Act 1974 , whether the access dispute was notified before, at or after the commencement of this item.

41B Transitional—backdating of final determinations

A final determination made by the Commission under Division 8 of Part XIC of the Trade Practices Act 1974 has no effect to the extent (if any) to which any provision of the determination is expressed to have taken effect on a date earlier than the date of commencement of this item.

(10) Schedule 1, page 29, after item 41, insert:

41C Transitional—pre-commencement competition notices

(1) Despite the amendments made by items 5A, 6A, 8A, 8B, 8D, 8E, 8F, 8G, 8H, 8J, 8L, 23A, 26A, 26B and 26C of this Schedule, Part XIB of the Trade Practices Act 1974 continues to apply, after the commencement of this item, in relation to a competition notice in force immediately before the commencement of this item, as if those amendments had not been made.

(2) Subsection 151AOA(2) of the Trade Practices Act 1974 applies to a competition notice in force immediately before the commencement of this item in a corresponding way to the way in which it applies to a Part A competition notice.

(11) Schedule 1, page 29 (after line 31), at the end of the Schedule, add:

43 Transitional—interpretation of pre-commencement provisions of the Trade Practices Act 1974

In determining the meaning that a provision of the Trade Practices Act 1974 had before the commencement of this item, the amendments made by this Schedule are to be disregarded.

(12) Schedule 3, item 13, page 34 (line 25), omit "1998 .", substitute "1998 ; or".

(13) Schedule 3, page 34 (after line 25), after paragraph (l), insert:

(m) subsection 158B(1) of the Telecommunications (Consumer Protection and Service Standards) Act 1998 ; or

(n) subsection 158B(4) of the Telecommunications (Consumer Protection and Service Standards) Act 1998 ; or

(o) subsection 158C(1) of the Telecommunications (Consumer Protection and Service Standards) Act 1998 ; or

(p) subsection 158D(3) of the Telecommunications (Consumer Protection and Service Standards) Act 1998 ; or

(q) subsection 158E(1) of the Telecommunications (Consumer Protection and Service Standards) Act 1998 .

(14) Schedule 4, page 47 (after line 25), after item 4, insert:

4A Section 7

Insert:

digital data service provider has the same meaning as in the Telecommunications (Consumer Protection and Service Standards) Act 1998 .

(15) Schedule 4, page 48 (after line 22), after item 12, insert:

12A After paragraph 105(3)(e)

Insert:

(ea) the adequacy of each digital data service provider's compliance with its obligations under Part 2 of the Telecommunications (Consumer Protection and Service Standards) Act 1998 ;

(16) Schedule 4, page 49 (after line 5), after item 15, insert:

15A At the end of subsection 151CM(1)

Add:

; and (d) the adequacy of each digital data service provider's compliance with its obligations under Division 5A of Part 2 of the Telecommunications (Consumer Protection and Service Standards) Act 1998 (which deals with regulation of digital data service charges).

15B Subsection 151CM(5)

Insert:

digital data service provider has the same meaning as in the Telecommunications (Consumer Protection and Service Standards) Act 1998 .

15C Subsection 151CM(5)

Insert:

universal service provider has the same meaning as in the Telecommunications (Consumer Protection and Service Standards) Act 1998 .

Question resolved in the affirmative.

TELECOMMUNICATIONS (UNIVERSAL SERVICE LEVY) AMENDMENT BILL 1998


The CHAIRMAN —The question is that the following government amendment No. 1 on sheet DJ212 be agreed to:

(1) Schedule 1, page 3 (before line 6), before item 1, insert:

1A Title

Omit "payphones and prescribed carriage services ", substitute "payphones, prescribed carriage services and digital data services ".

Question resolved in the affirmative.


The CHAIRMAN —The question is that the bills as amended be agreed to.


Senator Margetts —Can I just ask whether there was a running sheet at all for those last two bills?


The CHAIRMAN —An amendments list was circulated.


Senator Margetts —No; if we are being told that these bills must be rushed through, you would think the government would actually have a running sheet for the bills about phone sex that they are rushing through in the middle of the night.


The CHAIRMAN —I am sorry, Senator Margetts; I have a running sheet which we have quickly done here, but it has not been circulated.


Senator Brown —Madam Chair, on a point of order: can I ask that the running sheet be distributed so that we know what we are voting on?


The CHAIRMAN —The running sheets are the abbreviated ones bringing the government amendments together. You have got that running sheet. For the last one that I dealt with, the Telecommunications Legislation Amendment Bill, the revised sheet was circulated on 27 May at 8.20 p.m. The question is that the bills, as amended, be agreed to.

Question resolved in the affirmative.

Bills reported with amendments; report adopted.