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Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

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7005-Revised

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 10 (line 20), omit the heading to subsection 577A(2), substitute:

Transparency and equivalence

[undertaking about structural separation]

(2)     Schedule 1, item 30, page 10 (line 21), after “relating to”, insert “transparency and”.

[undertaking about structural separation]

(3)     Schedule 1, item 30, page 10 (line 32), after “provides for”, insert “transparency and”.

[undertaking about structural separation]

 

(4)     Schedule 1, item 30, page 11 (after line 9), after subsection 577A(4), insert:

Independent telecommunications adjudicator

          (4A)  The ACCC must not accept an undertaking under this section unless the ACCC is satisfied that the undertaking provides for an independent telecommunications adjudicator (within the meaning of section 152EQ of the Competition and Consumer Act 2010 as inserted by item 67 of Schedule 1 to the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2010 ). For this purpose, assume that that item had commenced at the same time as this subsection.

[undertaking about structural separation]

(5)     Schedule 1, item 30, page 11 (before line 26), before paragraph 577A(6)(b), insert:

                    (aa)  the national interest in structural reform of the telecommunications industry; and

                   (ab)  the impact of that structural reform on:

                              (i)  consumers; and

                             (ii)  competition in telecommunications markets; and

[undertaking about structural separation]

(6)     Schedule 1, item 30, page 11 (after line 28), after subsection 577A(7), insert:

          (7A)  Before making or varying an instrument under subsection (7), the Minister must:

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

                              (i)  setting out the draft instrument or variation; and

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

                     (b)  consider any submissions received within the 14-day period mentioned in paragraph (a).

[undertaking about structural separation]

(7)     Schedule 1, item 30, page 14 (after line 10), after the definition of fixed-line carriage service , insert:

telecommunications market has the same meaning as in Part XIB of the Competition and Consumer Act 2010 .

[undertaking about structural separation]

(8)     Schedule 1, item 30, page 18 (after line 10), after subsection 577B(5), insert:

          (5A)  Before making or varying an instrument under subsection (5), the Minister must:

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

                              (i)  setting out the draft instrument or variation; and

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

                     (b)  consider any submissions received within the 14-day period mentioned in paragraph (a).

[undertaking about structural separation]

(9)     Schedule 1, item 30, page 26 (after line 24), after subsection 577BC(5), insert:

Consultation

          (5A)  Before making an instrument under subsection (3) or (4), the Minister must:

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

                              (i)  setting out the proposed instrument; and

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

                     (b)  cause to be published on the Department’s website a copy of each submission received within the 14-day period mentioned in paragraph (a); and

                     (c)  consider any submissions received within the 14-day period mentioned in paragraph (a).

[consultation on migration plan requirements]

(10)   Schedule 1, item 30, page 36 (after line 14), at the end of section 577C, add:

             (6)  The Minister must cause a copy of an instrument under subsection (1B) to be published on the Department’s website.

             (7)  An instrument under subsection (1B) is not a legislative instrument.

[undertaking about hybrid fibre-coaxial networks]

(11)   Schedule 1, item 30, page 40 (after line 4), at the end of section 577D, add:

             (6)  The Minister must cause a copy of an instrument under subsection (3B) to be published on the Department’s website.

             (7)  An instrument under subsection (3B) is not a legislative instrument.

[undertaking about hybrid fibre-coaxial networks]

(12)   Schedule 1, item 30, page 40 (after line 29), at the end of section 577E, add:

             (7)  The Minister must cause a copy of an instrument under subsection (1B) to be published on the Department’s website.

             (8)  An instrument under subsection (1B) is not a legislative instrument.

[undertaking about subscription television broadcasting licences]

(13)   Schedule 1, item 30, page 44 (after line 24), at the end of section 577F, add:

             (6)  The Minister must cause a copy of an instrument under subsection (3B) to be published on the Department’s website.

             (7)  An instrument under subsection (3B) is not a legislative instrument.

[undertaking about subscription television broadcasting licences]

(14)   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]

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

                     (b)  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]

(16)   Schedule 1, item 31, page 59 (after line 7), at the end of clause 74, add:                 

                    (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;

             (2)  In determining the principle of equivalence covered by paragraph (1)(a), regard must be had to whether:

                     (a)  the terms and conditions relating to price or a method of ascertaining price; and

                     (b)  other terms and conditions;

on which Telstra supplies regulated services to its wholesale customers are no less favourable than the terms and conditions on which Telstra supplies those services to its retail business units.

             (3)  Subclause (2) does not limit the matters to which regard may be had.

             (4)  Disregard subclause (2) for the purposes of subsections 577A(2) and (3).

[functional separation principles]

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

[consultation on functional separation requirements determination]

(18)   Schedule 1, item 31, page 59 (after line 21), after subclause 75(4), insert:

          (4A)  Before making or varying a functional separation requirements determination, the Minister must:

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

                              (i)  setting out the determination or variation; and

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

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

                     (c)  consider any submissions received within the 14-day period mentioned in paragraph (a); and

                     (d)  ask the ACCC to give advice to the Minister, within 28 days after the publication of the notice, about the determination or variation; and

                     (e)  have regard to any advice given by the ACCC.

          (4B)  Subclause (4A) does not, by implication, prevent the Minister from asking the ACCC to give the Minister additional advice about a matter arising under this clause.

[functional separation requirements determination]

(19)   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]

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

64A  Section 104

After:

•      The ACMA may be directed by the Minister to monitor, and report on, specified matters relating to the performance of carriers and carriage service providers.

insert:

•      The ACCC is to monitor, and report each financial year to the Minister on, breaches by Telstra of an undertaking about structural separation.

64B  At the end of Part 5

Add:

105C   Monitoring of breaches by Telstra of an undertaking about structural separation

Monitoring

             (1)  The ACCC must monitor, and report each financial year to the Minister on, breaches by Telstra of an undertaking in force under section 577A.

Report

             (2)  The ACCC must give a report under subsection (1) to the Minister as soon as practicable after the end of the financial year concerned.

             (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.

[undertaking about structural separation]

(21)   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]

(22)   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]