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Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

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7005

2010

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

 

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

 

 

(1)     Schedule 1, item 30, page 9 (line 1), omit “ Voluntary undertakings given by Telstra ”, substitute “ Structural separation of Telstra ”.

[structural separation requirements determination]

(2)     Schedule 1, item 30, page 9 (after line 24), after Division 1, insert:

Division 1A—Separation requirements

577AAA  Structural separation requirements determination

             (1)  Subject to section 577AAB, the Minister may make a written determination (a structural separation requirements determination ) specifying requirements to be complied with by:

                     (a)  a fixed line carriage service undertaking; and

                     (b)  a hybrid fibre-coaxial network undertaking; and

                     (c)  a subscription television broadcasting licence undertaking.

             (2)  A structural separation requirements determination must specify the matters the Minister is to take into account in deciding whether the Minister is satisfied that an undertaking given by Telstra and in force under section 577A is sufficient to address concerns about the degree of Telstra’s power in telecommunications markets, for the purposes of subsection 577J(4) or (6).

Note:          Subsections 577J(4) and (6) require the Minister to be satisfied of matters relating to Telstra’s market power before declaring Telstra exempt from the requirement to have undertakings under sections 577C and 577E, respectively.

             (3)  Subsection (2) does not limit subsection (1).

             (4)  The Minister must ensure that a structural separation requirements determination first comes into force:

                     (a)  within 60 days after the commencement of this section; and

                     (b)  on the same day as a functional separation requirements determination first comes into force.

             (5)  A determination under subsection (1) is not a legislative instrument.

577AAB  Consultation

             (1)  Before making a structural separation requirements determination, the Minister must:

                     (a)  cause to be published on the Department’s website a notice:

                              (i)  setting out a draft of the determination (the draft determination ); and

                             (ii)  inviting persons to make submissions to the Minister about the draft determination within 14 days after the notice is published; and

                     (b)  give a copy of the notice to the ACCC; and

                     (c)  ask the ACCC to give advice to the Minister, within 14 days after the notice is published, about the draft determination.

             (2)  Having regard to the submissions received and advice given in accordance with subsection (1), the Minister must:

                     (a)  make a determination under subsection 577AAA(1) in the form of the draft determination; or

                     (b)  both:

                              (i)  revise the draft determination; and

                             (ii)  undertake further consultation in accordance with subsection (3).

Consultation—revised draft determination

             (3)  Before making the revised draft determination, the Minister must:

                     (a)  give Telstra a notice:

                              (i)  setting out the revised draft determination; and

                             (ii)  inviting Telstra to make submissions to the Minister about the revised draft determination within 14 days after the notice is given; and

                     (b)  give the ACCC a copy of the notice; and

                     (c)  ask the ACCC to give advice to the Minister about the revised draft determination, within 14 days after the notice is given.

             (4)  Having regard to the submissions received and advice given in accordance with subsection (3), the Minister must:

                     (a)  make a determination under subsection 577AAA(1) in the form of the revised draft determination; or

                     (b)  both:

                              (i)  further revise the draft determination; and

                             (ii)  make a determination under subsection 577AAA(1) in the form of the draft determination as further revised.

Advice by the ACCC

             (5)  Subsections (1) and (3) do not, by implication, prevent the Minister from asking the ACCC to give the Minister additional advice about a matter arising under this section.

Publications of submissions and advice

             (6)  The Minister must cause a copy of:

                     (a)  each submission received; and

                     (b)  any advice given by the ACCC;

under this section to be published on the Department’s website, within 7 days of its receipt.

577AAC  Application

             (1)  Divisions 2 to 7 of this Part do not apply unless the Minister has made a structural separation requirements determination under section 577AAA.

             (2)  The ACCC must not accept:

                     (a)  an undertaking under section 577A, 577C or 577E; or

                     (b)  a variation of an undertaking under section 577B, 577D or 577F;

unless the ACCC is satisfied that the undertaking or the variation, as the case may be, complies with the structural separation requirements determination.

[structural separation requirements determination]

(3)     Schedule 1, item 30, page 10 (line 4), after “Telstra”, insert “(a fixed line carriage service undertaking )”.

[structural separation requirements determination]

(4)     Schedule 1, item 30, page 10 (after line 19), after subsection 577A(1), insert:

          (1A)  Before deciding whether to accept an undertaking under subsection (1), the ACCC must:

                     (a)  publish on its website a notice:

                              (i)  setting out the undertaking; and

                             (ii)  inviting persons to make submissions to the ACCC about the undertaking within 14 days after the notice is published; and

                     (b)  publish on its website a copy of each submission received within the 14-day period mentioned in paragraph (a); and

                     (c)  hold a public hearing on the matter.

          (1B)  If the ACCC decides not to accept the undertaking, the ACCC may, in writing, recommend to Telstra:

                     (a)  a variation of the undertaking; or

                     (b)  another draft undertaking;

that the ACCC would be prepared to accept.

          (1C)  The ACCC must publish its reasons for deciding to accept or not to accept a draft structural separation undertaking, including the reasons underpinning the ACCC’s view as to whether the benefits to public arising from draft structural separation undertaking would outweigh the detriment constituted by any lessening of competition that has resulted, or is likely to result, from giving effect to the draft structural separation undertaking.

[consultation on structural separation undertakings]

(5)     Schedule 1, item 30, page 11 (after line 6), after subsection 577A(3), insert:

          (3A)  The ACCC must not accept an undertaking under this section unless the ACCC is satisfied in all the circumstances that:

                     (a)  the undertaking is likely to result in a benefit to the public; and

                     (b)  the benefit outweighs or would outweigh the detriment to the public constituted by any lessening of competition that is likely to result from giving effect to the undertaking.

[consultation on structural separation undertakings]

(6)     Schedule 1, item 30, page 11 (after line 25), after paragraph 577A(6)(a), insert:

                    (aa)  any submissions received under subsection (1A) in respect of the undertaking; and

                   (ab)  any evidence in respect of the undertaking given at a public hearing; and

 [consultation on structural separation undertakings]

(7)     Schedule 1, item 30, page 18 (after line 3), after subsection 577B(3), insert:

          (3A)  Before making a decision under subsection (3), the ACCC must:

                     (a)  publish on its website a notice:

                              (i)  setting out the proposed variation; and

                             (ii)  inviting persons to make submissions to the ACCC about the proposed variation within 14 days after the notice is published; and

                     (b)  publish on its website a copy of each submission received within the 14-day period mentioned in paragraph (a).

          (3B)  Subsection (3A) does not apply to a proposed variation if the variation is of a minor nature.

[consultation on structural separation undertakings]

(8)     Schedule 1, item 30, page 18 (after line 7), after paragraph 577B(4)(a), insert:

                    (aa)  any submissions received under subsection (3A) in respect of the variation; and

[consultation on structural separation undertakings]

(9)     Schedule 1, item 30, page 35 (line 29), after “Telstra”, insert “(a hybrid fibre-coaxial network undertaking )”.

[structural separation requirements determination]

(10)   Schedule 1, item 30, page 36 (after line 4), after subsection 577C(1), insert:

          (1A)  Before deciding whether to accept an undertaking under subsection (1), the ACCC must:

                     (a)  publish on its website a notice:

                              (i)  setting out the undertaking; and

                             (ii)  inviting persons to make submissions to the ACCC about the undertaking within 14 days after the notice is published; and

                     (b)  publish on its website a copy of each submission received within the 14-day period mentioned in paragraph (a).

          (1B)  If the ACCC decides not to accept the undertaking, the ACCC may, in writing, propose to Telstra:

                     (a)  a variation of the undertaking; or

                     (b)  another draft undertaking;

that the ACCC would be prepared to accept.

          (1D)  In deciding whether to accept an undertaking under subsection (1), the ACCC must have regard to:

                     (a)  any submissions made under subsection (1A) in respect of the undertaking; and

                     (b)  such other matters (if any) as the ACCC considers relevant.

[consultation on structural separation undertakings]

(11)   Schedule 1, item 30, page 40 (after line 1), after subsection 577D(3), insert:

          (3A)  Before making a decision under subsection (3), the ACCC must:

                     (a)  publish on its website a notice:

                              (i)  setting out the proposed variation; and

                             (ii)  inviting persons to make submissions to the ACCC about the proposed variation within 14 days after the notice is published; and

                     (b)  publish on its website a copy of each submission received within the 14-day period mentioned in paragraph (a).

          (3B)  Subsection (3A) does not apply to a proposed variation if the variation is of a minor nature.

          (3C)  In deciding whether to accept the variation, the ACCC must have regard to:

                     (a)  any submissions received under subsection (3A) in respect of the variation; and

                     (b)  such other matters (if any) as the ACCC considers relevant.

 [consultation on structural separation undertakings]

(12)   Schedule 1, item 30, page 40 (line 8), after “Telstra”, insert “(a subscription television broadcasting licence undertaking )”.

[structural separation requirements determination]

(13)   Schedule 1, item 30, page 40 (after line 15), after subsection 577E(1), insert:

          (1A)  Before deciding whether to accept an undertaking under subsection (1), the ACCC must:

                     (a)  publish on its website a notice:

                              (i)  setting out the undertaking; and

                             (ii)  inviting persons to make submissions to the ACCC about the undertaking within 14 days after the notice is published; and

                     (b)  publish on its website a copy of each submission received within the 14-day period mentioned in paragraph (a).

          (1B)  If the ACCC decides not to accept the undertaking, the ACCC may, in writing, propose to Telstra:

                     (a)  a variation of the undertaking; or

                     (b)  another draft structural separation undertaking;

that the ACCC would be prepared to accept.

          (1C)  In deciding whether to accept an undertaking under subsection (1), the ACCC must have regard to:

                     (a)  any submissions received under subsection (1A) in respect of the undertaking; and

                     (b)  such other matters (if any) as the ACCC considers relevant.

[consultation on structural separation undertakings]

(14)   Schedule 1, item 30, page 44 (after line 21), after subsection 577F(3), insert:

          (3A)  Before making a decision under subsection (3), the ACCC must:

                     (a)  publish on its website a notice:

                              (i)  setting out the proposed variation; and

                             (ii)  inviting persons to make submissions to the ACCC about the proposed variation within 14 days after the notice is published; and

                     (b)  publish on its website a copy of each submission received within the 14-day period mentioned in paragraph (a).

          (3B)  Subsection (3A) does not apply to a proposed variation if the variation is of a minor nature.

          (3C)  In deciding whether to accept the variation, the ACCC must have regard to:

                     (a)  any submissions received under subsection (3A) in respect of the variation; and

                     (b)  such other matters (if any) as the ACCC considers relevant.

[consultation on structural separation undertakings]

(15)   Schedule 1, item 30, page 45 (after line 4), after subsection 577G(1), insert:

          (1A)  If:

                     (a)  the circumstances in paragraphs (1)(a) and (b) exist; and

                     (b)  the ACCC decides not to apply to the Federal Court for an order under subsection (2);

the ACCC must publish on its website the reasons for that decision.

[ACCC must seek to enforce undertakings or publish reasons]

(16)   Schedule 1, item 30, page 48 (after line 27), after subsection 577J(6), insert:

       (6AA)  Before making a declaration under subsection (3) or (5), the Minister must:

                     (a)  cause to be published on the Department’s website a notice:

                              (i)  setting out a draft of the declaration (the draft declaration ); and

                             (ii)  inviting persons to make submissions to the Minister about the draft declaration within 14 days after the notice is published; and

                     (b)  give a copy of the notice to the ACCC; and

                     (c)  ask the ACCC to give advice to the Minister, within 14 days after the notice is published, about the draft declaration.

       (6AB)  In deciding whether to make a declaration under subsection (3) or (5), the Minister must have regard to:

                     (a)  the matters (if any) set out in the structural separation requirements determination for the purposes of subsection (4) or (6), as the case requires;

                     (b)  any submissions received under subsection (6AA) in respect of the variation; and

                     (c)  any advice given by the ACCC in respect of the variation.

       (6AC)  The Minister must cause a copy of:

                     (a)  each submission received; and

                     (b)  any advice given by the ACCC;

under this section to be published on the Department’s website, within 7 days of its receipt.

[consultation on structural separation undertakings]

(17)   Schedule 1, item 31, page 58 (lines 13 to 16), omit paragraph 74(a), substitute:

                     (a)  the principle that there should be no discrimination in pricing, terms and conditions in relation to the supply by Telstra or NBN Co of regulated services, so that these services are offered to:

                              (i)  Telstra’s wholesale customers; and

                             (ii)  Telstra’s retail business units;

                            on the same terms and conditions;

[non-discrimination in pricing, terms and conditions]

(18)   Schedule 1, item 31, page 58 (after line 23), after paragraph 74(c), insert:

                    (ca)  the principle that Telstra’s wholesale/network business unit should have discrete branding and identity to that of its retail business units;

                   (cb)  the principle that Telstra’s management and personnel should be strictly separated between:

                              (i)  its wholesale/network business unit; and

                             (ii)  its retail business units;

                            and that remuneration should be tied to business unit performance, not group performance;

                    (cc)  the principle that Telstra should maintain strict information barriers between:

                              (i)  its wholesale/network business unit; and

                             (ii)  its retail business units;

                            and that Telstra’s retail business units and its wholesale customers should interact with Telstra’s wholesale/network business units using the same information systems;

                    (ce)  the principle that Telstra should maintain separate financial accounting between:

                              (i)  its wholesale/network business unit; and

                             (ii)  its retail business units;

[functional separation principles]

(19)   Schedule 1, item 31, page 59 (line 9), omit “The”, substitute “Subject to clause 75A, the”.

[consultation on functional separation requirements determination]

(20)   Schedule 1, item 31, page 63 (after line 19), after clause 75, insert:

75A  Consultation

             (1)  Before making a functional separation requirements determination, the Minister must:

                     (a)  cause to be published on the Department’s website a notice:

                              (i)  setting out a draft of the determination (the draft determination ); and

                             (ii)  inviting persons to make submissions to the Minister about the draft determination within 14 days after the notice is published; and

                     (b)  give a copy of the notice to the ACCC; and

                     (c)  ask the ACCC to give advice to the Minister, within 14 days after the notice is published, about the draft determination.

             (2)  Having regard to the submissions received and advice given in accordance with subsection (1), the Minister must:

                     (a)  make a determination under subsection 75(1) in the form of the draft determination; or

                     (b)  both:

                              (i)  revise the draft determination; and

                             (ii)  undertake further consultation in accordance with subsection (3).

Consultation—revised draft determination

             (3)  Before making the revised draft determination, the Minister must:

                     (a)  give Telstra a notice:

                              (i)  setting out the revised draft determination; and

                             (ii)  inviting Telstra to make submissions to the Minister about the revised draft determination within 14 days after the notice is given; and

                     (b)  give the ACCC a copy of the notice; and

                     (c)  ask the ACCC to give advice to the Minister about the revised draft determination, within 14 days after the notice is given.

             (4)  Having regard to the submissions received and advice given in accordance with subsection (3), the Minister must:

                     (a)  make a determination under subsection 75(1) in the form of the revised draft determination; or

                     (b)  both:

                              (i)  further revise the draft determination; and

                             (ii)  make a determination under subsection 75(1) in the form of the draft determination as further revised.

Advice by the ACCC

             (5)  Subsections (1) and (3) do not, by implication, prevent the Minister from asking the ACCC to give the Minister additional advice about a matter arising under this section.

Publications of submissions and advice

             (6)  The Minister must cause a copy of:

                     (a)  each submission received; and

                     (b)  any advice given by the ACCC;

under this section to be published on the Department’s website, within 7 days of its receipt.

[consultation on functional separation requirements determination]

(21)   Schedule 1, item 31, page 70 (after line 17), at the end of Part 9, add:

82A   Enforcement of undertakings

             (1)  If:

                     (a)  a final functional separation undertaking is in force; and

                     (b)  the ACCC considers that Telstra has breached the undertaking;

the ACCC must apply to the Federal Court for an order under subsection (2).

             (2)  If the Federal Court is satisfied that Telstra has breached the undertaking, the court may make any or all of the following orders:

                     (a)  an order directing Telstra to comply with the undertaking;

                     (b)  an order directing the disposal of network units, shares or other assets;

                     (c)  an order restraining the exercise of any rights attached to shares;

                     (d)  an order prohibiting or deferring the payment of any sums due to a person in respect of shares held by Telstra;

                     (e)  an order that any exercise of rights attached to shares be disregarded;

                      (f)  an order directing Telstra to pay to the Commonwealth an amount up to the amount of any financial benefit that Telstra has obtained directly or indirectly and that is reasonably attributable to the breach;

                     (g)  any order that the Court considers appropriate directing Telstra to compensate any other person who has suffered loss or damage as a result of the breach;

                     (h)  any other order that the Court considers appropriate.

             (3)  In addition to the Federal Court’s powers under subsection (2), the court:

                     (a)  has power, for the purpose of securing compliance with any other order made under this section, to make an order directing any person to do or refrain from doing a specified act; and

                     (b)  has power to make an order containing such ancillary or consequential provisions as the court thinks just.

             (4)  The Federal Court may, before making an order under this section, direct that notice of the application be given to such persons as it thinks fit or be published in such manner as it thinks fit, or both.

             (5)  The Federal Court may, by order, rescind, vary or discharge an order made by it under this section or suspend the operation of such an order.

[enforcement of functional separation undertakings]

(22)   Schedule 1, page 83 (after line 8), after item 64, insert:

64A  At the end of Part 5

Add:

105B   Monitoring of compliance by Telstra with structural separation undertaking s

             (1)  The ACCC must monitor, and report every 12 months ending on 30 June each year to the Minister on, the compliance by Telstra with each of the following:

                     (a)  an undertaking given by Telstra in force under section 577A;

                     (b)  an undertaking given by Telstra in force under section 577C;

                     (c)  an undertaking given by Telstra in force under section 577E.

             (2)  The ACCC must give a report under subsection (1) to the Minister as soon as practicable after the end of the 12-month period to which the report relates.

             (3)  The Minister must cause a copy of a report under subsection (1) to be tabled in each House of the Parliament within 15 sitting days of that House after receiving the report.

[monitoring of compliance with structural separation undertakings]

(23)   Schedule 1, page 84 (after line 3), after Part 1, insert:

Part 1A—Allocation of spectrum licences

Radiocommunications Act 1992

67A  After subsection 60(1)

Insert:

          (1A)  Procedures determined under subsection (1) must provide for limits on the allocation of spectrum licences under this Subdivision, so that:

                     (a)  in relation to metropolitan areas, other than in the market area covering the Australian Capital Territory—no more than 25 per cent of the available spectrum may be used by any one person; and

                     (b)  in relation to the market area covering the Australian Capital Territory—no more than 33 per cent of the available spectrum may be used by any one person; and

                     (c)  in relation to regional areas—no more than 50 per cent of the available spectrum may be used by any one person.

[competition limits on the allocation of spectrum]

(24)   Schedule 1, item 160, page 143 (after line 25), after section 152BEA, insert:

152BEAA   Register of Access Agreements

             (1)  The Commission is to maintain a register, to be known as the Register of Access Agreements, in which the Commission must include all access agreements given to the Commission under section 152BEA.

             (2)  The Register is to be maintained by electronic means.

             (3)  The Register is to be made available for inspection on the Commission’s website.

             (4)  The Register is not a legislative instrument.

             (5)  If the Commission is satisfied that:

                     (a)  publication of a particular provision of an access agreement could reasonably be expected to prejudice substantially the commercial interests of a person; and

                     (b)  the prejudice outweighs the public interest in the publication of the provision;

the Commission may remove the provision from the version of the agreement that is included in the Register.

             (6)  If the Commission does so, the Commission must include in the Register an annotation to that effect.

[register of access agreements]