Save Search

Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Telecommunications Legislation Amendment (National Broadband Network Measures—Access Arrangements) Bill 2011

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

2010-2011

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

Telecommunications Legislation Amendment (National Broadband Network Measures—Access Arrangements) Bill 2011

 

 

(1)     Schedule 1, page 12 (after line 22), after item 25, insert:

25A  Section 151AB

Insert:

NBN corporation has the same meaning as in the National Broadband Network Companies Act 2011 .

25B  Subsection 151AJ(7)

Omit “subsection (2) or (3)”, substitute “this section”.

25C  Subsection 151AJ(9)

Omit “subsection (2) or (3) of”.

25D  At the end of section 151AJ

Add:

           (10)  Despite anything in this section, a person does not engage in anti-competitive conduct if, under section 151DA, the conduct is authorised for the purposes of subsection 51(1).

[authorisation]

(2)     Schedule 1, page 13 (after line 6), after item 29, insert:

29A  At the end of Part XIB

Add:

Division 16 NBN corporations

151DA   Authorised conduct—subsection 51(1)

Objects

             (1)  The objects of this section are:

                     (a)  to promote the national interest in structural reform of the telecommunications industry; and

                     (b)  to promote uniform national pricing of eligible services supplied by NBN corporations by authorising, for the purposes of subsection 51(1), certain conduct engaged in by NBN corporations.

Note 1:       If conduct is authorised for the purposes of subsection 51(1), the conduct is disregarded in deciding whether a person has contravened Part IV.

Note 2:       See also subsection 151AJ(10).

Authorised conduct—points of interconnection

             (2)  If:

                     (a)  an NBN corporation is a carrier or carriage service provider; and

                     (b)  the NBN corporation:

                              (i)  owns or controls one or more facilities; or

                             (ii)  is a nominated carrier in relation to one or more facilities; and

                     (c)  the NBN corporation refuses to permit interconnection of those facilities at a particular location with one or more facilities of:

                              (i)  a service provider; or

                             (ii)  a utility; and

                     (d)  the location is not a listed point of interconnection;

the refusal is authorised for the purposes of subsection 51(1).

Note:          For listed point of interconnection , see section 151DB.

Authorised conduct—bundling of designated access services

             (3)  If:

                     (a)  an NBN corporation is a carrier or carriage service provider; and

                     (b)  the NBN corporation:

                              (i)  refuses to supply; or

                             (ii)  refuses to offer to supply;

                            a designated access service to a service provider or utility unless the service provider or utility acquires, or agrees to acquire, one or more other designated access services from the NBN corporation;

the refusal is authorised for the purposes of subsection 51(1).

Authorised conduct—cross-subsidisation

             (4)  If:

                     (a)  the price-related terms and conditions on which an NBN corporation supplies, or offers to supply, eligible services to one or more service providers or utilities are, to any extent, attributable to cross-subsidisation; and

                     (b)  either:

                              (i)  the extent of that cross-subsidisation is no greater than is reasonably necessary to achieve uniform national pricing of eligible services supplied by the NBN corporation to service providers and utilities; or

                             (ii)  if a special access undertaking given by the NBN corporation is in operation—that cross-subsidisation is consistent with the special access undertaking;

that cross-subsidisation is authorised for the purposes of subsection 51(1).

Uniform national pricing

             (5)  For the purposes of this section, uniform national pricing of an eligible service supplied, or offered to be supplied, by an NBN corporation to service providers and utilities is achieved, if, and only if, the price-related terms and conditions on which the NBN corporation supplies, or offers to supply, the eligible service to service providers and utilities are the same throughout Australia.

             (6)  For the purposes of this section, in determining whether there is uniform national pricing of an eligible service supplied, or offered to be supplied, by an NBN corporation, disregard any lawful discrimination that involves a discount, allowance, rebate or credit that is:

                     (a)  given or allowed; or

                     (b)  offered to be given or allowed.

             (7)  For the purposes of this section, in determining whether eligible services are characterised as:

                     (a)  the same eligible service; or

                     (b)  different eligible services;

it is immaterial whether the services are supplied, or offered to be supplied, using:

                     (c)  the same facilities or kinds of facilities; or

                     (d)  different facilities or kinds of facilities.

             (8)  For example, the same eligible service could be supplied, or offered to be supplied, using:

                     (a)  an optical fibre line; or

                     (b)  terrestrial radiocommuncations equipment; or

                     (c)  a satellite.

Definitions

             (9)  In this section:

access virtual circuit service means an eligible service that is known as:

                     (a)  an access virtual circuit service; or

                     (b)  the access virtual circuit component of a fibre access service.

connectivity virtual circuit service means an eligible service that is known as:

                     (a)  a connectivity virtual circuit service; or

                     (b)  the connectivity virtual circuit component of a fibre access service.

cross-subsidisation means either or both of the following:

                     (a)  cross-subsidisation in relation to the supply of an eligible service to service providers and utilities in different parts of Australia;

                     (b)  cross-subsidisation in relation to the supply of different eligible services to service providers and utilities.

designated access service means:

                     (a)  an access virtual circuit service; or

                     (b)  a connectivity virtual circuit service; or

                     (c)  a network-network interface service; or

                     (d)  a user network interface service; or

                     (e)  a voice telephony facilitation service.

eligible service has the same meaning as in section 152AL.

listed point of interconnection has the meaning given by section 151DB.

network-network interface service means an eligible service that is known as:

                     (a)  a network-network interface service; or

                     (b)  the network-network interface component of a fibre access service.

nominated carrier has the same meaning as in the Telecommunications Act 1997.

point of interconnection means a location for the interconnection of facilities.

price-related terms and conditions means terms and conditions relating to price or a method of ascertaining price.

service provider has the same meaning as in the Telecommunications Act 1997.

special access undertaking has the same meaning as in Part XIC.

telecommunications industry has the same meaning as in the Telecommunications Act 1997 .

uniform national pricing has the meaning given by subsections (5) and (6).

use , in relation to a facility, means use:

                     (a)  in isolation; or

                     (b)  in conjunction with one or more other things.

user network interface service means an eligible service that is known as:

                     (a)  a user network interface service; or

                     (b)  the user network interface service component of a fibre access service.

utility means:

                     (a)  Airservices Australia; or

                     (b)  a State or Territory transport authority; or

                     (c)  a rail corporation (within the meaning of the National Broadband Network Companies Act 2011 ); or

                     (d)  an electricity supply body (within the meaning of that Act); or

                     (e)  a gas supply body (within the meaning of that Act); or

                      (f)  a water supply body (within the meaning of that Act); or

                     (g)  a sewerage services body (within the meaning of that Act); or

                     (h)  a storm water drainage services body (within the meaning of that Act); or

                      (i)  a State or Territory road authority (within the meaning of that Act).

voice telephony facilitation service means a service that facilitates the supply of a carriage service that is a carriage service for the purpose of voice telephony.

151DB   Listed points of interconnection

             (1)  The Commission:

                     (a)  must prepare a written list setting out points of interconnection; and

                     (b)  may, by writing, vary that list with the agreement of an NBN corporation.

             (2)  For the purposes of this Division, a point of interconnection specified in a list in force under subsection (1) is a listed point of interconnection .

             (3)  The Commission must publish on its website a copy of a list in force under subsection (1).

             (4)  A list under subsection (1) is not a legislative instrument.

             (5)  A variation of a list under subsection (1) is not a legislative instrument.

[authorisation]

(3)     Schedule 1, item 50, page 19 (after line 16), after subsection 152AXB(3), insert:

          (3A)  Subsection (2) does not impose an obligation on an NBN corporation to supply a service in circumstances where a refusal by the NBN corporation to supply the service is authorised under section 151DA for the purposes of subsection 51(1).

[authorisation]

(4)     Schedule 1, item 50, page 19 (after line 34), after subsection 152AXB(4), insert:

          (4A)  Subsection (4) does not apply to an interconnection at a location that is not a listed point of interconnection (within the meaning of section 151DB).

[authorisation]

(5)     Schedule 1, item 50, page 22 (after line 30), at the end of section 152AXC, add:

Authorised conduct

           (12)  If conduct is authorised under section 151DA for the purposes of subsection 51(1), the conduct is taken not to be discrimination for the purposes of this section.

[authorisation]

(6)     Schedule 1, item 50, page 24 (after line 15), after subsection 152AXD(5), insert:

          (5A)  If conduct is authorised under section 151DA for the purposes of subsection 51(1), the conduct is taken not to be discrimination for the purposes of this section.

[authorisation]

(7)     Schedule 1, page 26 (after line 7), after item 58, insert:

58A  After subsection 152BCB(3A)

Insert:

          (3B)  The Commission must not make an access determination that would have the effect of:

                     (a)  requiring an NBN corporation to engage in conduct that is inconsistent with conduct authorised under subsection 151DA(2) or (3) for the purposes of subsection 51(1); or

                     (b)  preventing an NBN corporation from giving a refusal that is authorised under subsection 151DA(3) for the purposes of subsection 51(1).

          (3C)  The Commission must not make an access determination that would have the effect of preventing an NBN corporation from having cross-subsidisation in relation to the price-related terms and conditions on which an NBN corporation supplies, or offers to supply, eligible services to one or more service providers or utilities, so long as the extent of that cross-subsidisation is no greater than is reasonably necessary to achieve uniform national pricing of eligible services supplied by the NBN corporation to service providers and utilities.

          (3D)  In subsection (3C), cross-subsidisation, eligible services , price-related terms and conditions , uniform national pricing and utilities have the same meaning as in section 151DA.

[authorisation]

(8)     Schedule 1, item 60, page 27 (line 4), after “(3A)”, insert “, (3B), (3C)”.

[authorisation]

(9)     Schedule 1, page 27 (after line 31), after item 64, insert:

64A  After subsection 152BDA(3A)

Insert:

          (3B)  The Commission must not make binding rules of conduct that would have the effect of:

                     (a)  requiring an NBN corporation to engage in conduct that is inconsistent with conduct authorised under subsection 151DA(2) or (3) for the purposes of subsection 51(1); or

                     (b)  preventing an NBN corporation from giving a refusal that is authorised under subsection 151DA(3) for the purposes of subsection 51(1).

          (3C)  The Commission must not make binding rules of conduct that would have the effect of preventing an NBN corporation from having cross-subsidisation in relation to the price-related terms and conditions on which an NBN corporation supplies, or offers to supply, eligible services to one or more service providers or utilities, so long as the extent of that cross-subsidisation is no greater than is reasonably necessary to achieve uniform national pricing of eligible services supplied by the NBN corporation to service providers and utilities.

          (3D)  In subsection (3C), cross-subsidisation, eligible services , price-related terms and conditions , uniform national pricing and utilities have the same meaning as in section 151DA.

[authorisation]

(10)   Schedule 1, item 66, page 28 (line 30), after “(3A)”, insert “, (3B), (3C)”.

[authorisation]

(11)   Schedule 1, page 39 (after line 17), after item 76, insert:

76A  After subsection 152CBD(5)

Insert:

          (5A)  If:

                     (a)  the undertaking contains price-related terms and conditions relating to the supply of a service; and

                     (b)  the price-related terms and conditions are, to any extent, attributable to cross-subsidisation; and

                     (c)  the extent of that cross-subsidisation is no greater than is reasonably necessary to achieve uniform national pricing of eligible services supplied by the NBN corporation to service providers and utilities;

then:

                     (d)  the Commission must not reject the undertaking for a reason that concerns that cross-subsidisation; and

                     (e)  paragraph (2)(b) does not apply to that cross-subsidisation.

          (5B)  In subsection (5A), cross-subsidisation, eligible services , price-related terms and conditions , uniform national pricing and utilities have the same meaning as in section 151DA.

          (5C)  If a refusal is authorised under subsection 151DA(2) or (3) for the purposes of subsection 51(1):

                     (a)  the Commission must not reject the undertaking for a reason that concerns that refusal; and

                     (b)  paragraph (2)(b) of this section does not apply to that refusal.

[authorisation]

(12)   Schedule 1, heading to Part 3, page 47 (line 1), omit “ Ethernet ”.

[supply of Layer 2 bitstream services]

(13)   Schedule 1, item 85, page 47 (line 7), omit paragraph (a) of the definition of Layer 2 bitstream service , substitute:

                     (a)  either:

                              (i)  a Layer 2 Ethernet bitstream service; or

                             (ii)  a Layer 2 bitstream service specified in a legislative instrument made by the ACMA for the purposes of this subparagraph; and

[supply of Layer 2 bitstream services]

(14)   Schedule 1, item 86, page 47 (line 17) to page 48 (line 5), omit section 140, substitute:

140   Simplified outline

                   The following is a simplified outline of this Part:

•      A local access line that belongs to a telecommunications network (other than the national broadband network) must not be used to supply a fixed-line carriage service if:

               (a)     the network is used, or is proposed to be used, to supply a superfast carriage service wholly or principally to residential or small business customers, or prospective residential or small business customers, in Australia; and

              (b)     no Layer 2 bitstream service is available for supply to those customers or prospective customers using the network; and

               (c)     the network came into existence, or was upgraded, on or after 1 January 2011.

[supply of Layer 2 bitstream services]

(15)   Schedule 1, item 86, page 48 (line 8), omit “network unit”, substitute “local access line”.

[supply of Layer 2 bitstream services]

(16)   Schedule 1, item 86, page 48 (line 9), omit “network unit”, substitute “local access line”.

[supply of Layer 2 bitstream services]

(17)   Schedule 1, item 86, page 48 (lines 15 to 17), omit paragraph 141(1)(c), substitute:

                     (c)  the network is used, or is proposed to be used, to supply a superfast carriage service wholly or principally to residential or small business customers, or prospective residential or small business customers, in Australia; and

[supply of Layer 2 bitstream services]

(18)   Schedule 1, item 86, page 48 (lines 21 and 22), omit “after 25 November 2010”, substitute “on or after 1 January 2011”.

[supply of Layer 2 bitstream services]

(19)   Schedule 1, item 86, page 48 (lines 23 to 27), omit subparagraph 141(1)(e)(ii), substitute:

                             (ii)  the network was altered or upgraded on or after 1 January 2011 and, as a result of the alteration or upgrade, the network became capable of being used to supply a superfast carriage service to residential or small business customers, or prospective residential or small business customers, in Australia.

[supply of Layer 2 bitstream services]

(20)   Schedule 1, item 86, page 48 (lines 28 to 31), omit paragraph 141(1)(f).

[supply of Layer 2 bitstream services]

(21)   Schedule 1, item 86, page 48 (after line 31), at the end of subsection 141(1), add:

Note 1:       See also section 141B (deemed networks).

Note 2:       For exemptions, see section 141A.

[supply of Layer 2 bitstream services]

(22)   Schedule 1, item 86, page 49 (lines 1 to 15), omit subsections 141(2) and (3), substitute:

Sole owner of local access line

             (2)  If there is only one owner of the local access line, the owner of the local access line must not:

                     (a)  use the local access line, either alone or jointly with one or more other persons, to supply a fixed-line carriage service; or

                     (b)  allow or permit another person to use the local access line to supply a fixed-line carriage service.

Multiple owners of local access line

             (3)  If there are 2 or more owners of the local access line, an owner of the local access line must not:

                     (a)  use the local access line, either alone or jointly with one or more other persons, to supply a fixed-line carriage service; or

                     (b)  either alone or together with one or more other owners, allow or permit another person to use the local access line to supply a fixed-line carriage service.

[supply of Layer 2 bitstream services]

(23)   Schedule 1, item 86, page 49 (line 23) to page 50 (line 9), omit subsections 141(5) to (9).

[supply of Layer 2 bitstream services]

(24)   Schedule 1, item 86, page 50 (before line 12), before the definition of fixed-line carriage service in subsection 141(10), insert:

alter , in relation to a telecommunications network, has a meaning affected by section 141E.

[supply of Layer 2 bitstream services]

(25)   Schedule 1, item 86, page 50 (after line 16), after the definition of fixed-line carriage service in subsection 141(10), insert:

local access line has the meaning given by section 141D.

[supply of Layer 2 bitstream services]

(26)   Schedule 1, item 86, page 50 (after line 18), after the definition of national broadband network , insert:

small business customer has the meaning given by section 141G.

upgrade , in relation to a telecommunications network, has a meaning affected by section 141F.

[supply of Layer 2 bitstream services]

(27)   Schedule 1, item 86, page 50 (after line 25), at the end of Part 7, add:

141A   Exemptions

             (1)  The Minister may, by written instrument, exempt a specified network from section 141.

Note:          For specification by class, see the Acts Interpretation Act 1901 .

             (2)  The Minister may, by written instrument, exempt a specified local access line from section 141.

Note:          For specification by class, see the Acts Interpretation Act 1901 .

             (3)  The Minister may, by written instrument, exempt a specified owner from subsections 141(2) and (3).

Note:          For specification by class, see the Acts Interpretation Act 1901 .

             (4)  An instrument under subsection (1), (2) or (3) may be:

                     (a)  unconditional; or

                     (b)  subject to such conditions (if any) as are specified in the instrument.

             (5)  Before making an instrument under subsection (1), (2) or (3), the Minister must consult:

                     (a)  the ACCC; and

                     (b)  the ACMA.

             (6)  An instrument under subsection (1), (2) or (3) is not a legislative instrument.

             (7)  In this section:

local access line has the meaning given by section 141D.

141B   Deemed networks

             (1)  For the purposes of this Part, if:

                     (a)  a telecommunications network is altered or upgraded on or after 1 January 2011; and

                     (b)  as a result of the alteration or upgrade, a part of the network became capable of being used to supply a superfast carriage service to residential or small business customers, or prospective residential or small business customers, in Australia;

then:

                     (c)  that part is taken to be a network in its own right; and

                     (d)  the network referred to in paragraph (c) is taken to have come into existence on or after 1 January 2011.

             (2)  For the purposes of this Part, if:

                     (a)  a telecommunications network is extended on or after 1 January 2011; and

                     (b)  the extended part of the network is capable of being used to supply a superfast carriage service to residential or small business customers, or prospective residential or small business customers, in Australia;

then:

                     (c)  the extended part is taken to be a network in its own right; and

                     (d)  the network referred to in paragraph (c) is taken to have come into existence on or after 1 January 2011.

             (3)  If:

                     (a)  a part of the infrastructure of a telecommunications network is situated in a particular area that is being or was developed as a particular stage of a real estate development project (within the ordinary meaning of that expression); and

                     (b)  the network is extended to another area that is being, or is to be, developed as another stage of the project;

subsection (2) does not apply to the extension.

             (4)  If:

                     (a)  a telecommunications network was in existence immediately before 1 January 2011; and

                     (b)  the network is extended on or after 1 January 2011; and

                     (c)  no point on the infrastructure of the extension is located more than:

                              (i)  1 kilometre; or

                             (ii)  if a longer distance is specified in the regulations—that longer distance;

                            from a point on the infrastructure of the network as the network stood immediately before 1 January 2011;

subsection (2) does not apply to the extension.

             (5)  The regulations may provide that subsection (2) does not apply to a specified extension of a telecommunications network.

Note:          For specification by class, see the Acts Interpretation Act 1901 .

141C   Certain installations and connections are not taken to be an extension, alteration or upgrade

                   For the purposes of this Part, if:

                     (a)  a line is or was installed for the purposes of connecting particular premises to a telecommunications network; and

                     (b)  the installation of the line enables or enabled the occupier of the premises to become a customer in relation to carriage services supplied using the network; and

                     (c)  the premises are in close proximity to a line that forms part of the infrastructure of the network; and

                     (d)  the network is capable of being used to supply a superfast carriage service; and

                     (e)  the network came into existence before 1 January 2011;

neither the installation of the line mentioned in paragraph (a), nor the connection of the premises, is taken to be an extension, alteration or upgrade of the network.

141D   Local access line

             (1)  For the purposes of this Part, a local access line is a line that is part of the infrastructure of a local access network.

             (2)  However, a line does not form part of a local access line to the extent that the line is on the customer side of the boundary of a telecommunications network.

             (3)  For the purposes of this section, the boundary of a telecommunications network is to be determined in the same manner in which it is determined under section 22 for the purposes of sections 20, 21 and 30.

             (4)  For the purposes of this section, local access network has the meaning generally accepted within the telecommunications industry.

141E   Alteration

                   For the purposes of this Part, an alteration of a telecommunications network does not include an extension of the network.

141F   Upgrade of telecommunications network

                   For the purposes of this Part, an upgrade of a telecommunications network does not include an extension of the network.

141G   Small business customer

                   For the purposes of this Part, small business customer means:

                     (a)  a customer who is a small business employer (within the meaning of the Fair Work Act 2009 ); or

                     (b)  a customer who:

                              (i)  carries on a business; and

                             (ii)  does not have any employees.

For the purposes of paragraph (a) of this section, it is to be assumed that each reference in section 23 of the Fair Work Act 2009 to a national system employer were a reference to an employer (within the ordinary meaning of that expression).

[supply of Layer 2 bitstream services]

(28)   Schedule 1, item 86, page 50 (before line 26), after Part 7, insert:

Part 8 Superfast fixed-line networks

Division 1 Introduction

142   Simplified outline

                   The following is a simplified outline of this Part:

•      A controller of a telecommunications network (other than the national broadband network) must not use a local access line to supply an eligible service to a person other than a carrier or a service provider, if:

               (a)     the local access line is part of the infrastructure of the network; and

              (b)     the network is used, or is proposed to be used, to supply a superfast carriage service wholly or principally to residential or small business customers, or prospective residential or small business customers, in Australia; and

               (c)     the network came into existence, or was upgraded, on or after 1 January 2011.

142A   Definitions

                   In this Part:

alter , in relation to a telecommunications network, has a meaning affected by section 159.

electricity supply body has the same meaning as in the National Broadband Network Companies Act 2011 .

eligible service has the same meaning as in section 152AL of the Competition and Consumer Act 2010 .

gas supply body has the same meaning as in the National Broadband Network Companies Act 2011 .

local access line has the meaning given by section 158.

national broadband network has the same meaning as in the National Broadband Network Companies Act 2011 .

rail corporation has the same meaning as in the National Broadband Network Companies Act 2011 .

sewerage services body has the same meaning as in the National Broadband Network Companies Act 2011 .

small business customer means:

                     (a)  a customer who is a small business employer (within the meaning of the Fair Work Act 2009 ); or

                     (b)  a customer who:

                              (i)  carries on a business; and

                             (ii)  does not have any employees.

For the purposes of paragraph (a) of this definition, it is to be assumed that each reference in section 23 of the Fair Work Act 2009 to a national system employer were a reference to an employer (within the ordinary meaning of that expression).

State or Territory road authority has the same meaning as in the National Broadband Network Companies Act 2011 .

storm water drainage services has the same meaning as in the National Broadband Network Companies Act 2011 .

storm water drainage services body has the same meaning as in the National Broadband Network Companies Act 2011 .

superfast carriage service means a carriage service, where:

                     (a)  the carriage service enables end-users to download communications; and

                     (b)  the download transmission speed of the carriage service is normally more than 25 megabits per second; and

                     (c)  the carriage service is supplied using a line to premises occupied or used by an end-user.

upgrade , in relation to a telecommunications network, has a meaning affected by section 160.

water supply body has the same meaning as in the National Broadband Network Companies Act 2011 .

Division 2 Supply of eligible services to be on wholesale basis

143   Supply of eligible services to be on wholesale basis

Scope

             (1)  This section applies to a local access line if:

                     (a)  the local access line is part of the infrastructure of a telecommunications network in Australia; and

                     (b)  the network is used, or proposed to be used, to supply a superfast carriage service wholly or principally to residential or small business customers, or prospective residential or small business customers, in Australia; and

                     (c)  the network is not the national broadband network; and

                     (d)  either:

                              (i)  the network came into existence on or after 1 January 2011; or

                             (ii)  the network was altered or upgraded on or after 1 January 2011 and, as a result of the alteration or upgrade, the network became capable of being used to supply a superfast carriage service to residential or small business customers, or prospective residential or small business customers, in Australia.

Note 1:       See also section 156 (deemed networks).

Note 2:       For exemptions, see sections 144 to 151.

Person in position to exercise control of network

             (2)  A person who is in a position to exercise control of the network, or a person who is an associate of such a person, must not use the local access line, either alone or jointly with one or more other persons, to supply an eligible service unless the service is supplied to:

                     (a)  a carrier; or

                     (b)  a service provider.

Note 1:       For when a person is in a position to exercise control of a network, see section 155.

Note 2:       For control of a company, see section 154.

Offence

             (3)  A person commits an offence if:

                     (a)  the person is subject to a requirement under subsection (2); and

                     (b)  the person engages in conduct; and

                     (c)  the person’s conduct breaches the requirement.

Penalty:  20,000 penalty units.

144   Exemptions—Ministerial instrument

             (1)  The Minister may, by written instrument, exempt a specified network from section 143.

Note:          For specification by class, see the Acts Interpretation Act 1901 .

             (2)  The Minister may, by written instrument, exempt a specified local access line from section 143.

Note:          For specification by class, see the Acts Interpretation Act 1901 .

             (3)  The Minister may, by written instrument, exempt a specified person from subsection 143(2).

Note:          For specification by class, see the Acts Interpretation Act 1901 .

             (4)  An instrument under subsection (1), (2) or (3) may be:

                     (a)  unconditional; or

                     (b)  subject to such conditions (if any) as are specified in the instrument.

             (5)  Before making an instrument under subsection (1), (2) or (3), the Minister must consult:

                     (a)  the ACCC; and

                     (b)  the ACMA.

             (6)  An instrument under subsection (1), (2) or (3) is not a legislative instrument.

145   Exemption—transport authorities

             (1)  Subsection 143(2) does not apply if:

                     (a)  both:

                              (i)  the eligible service is a carriage service; and

                             (ii)  the sole use of the carriage service is use by Airservices Australia to carry communications necessary or desirable for the workings of aviation services; or

                     (b)  the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this subsection.

             (2)  Paragraph (1)(a) does not apply to a carriage service supplied to Airservices Australia unless the carriage service is supplied on the basis that Airservices Australia must not re-supply the carriage service.

             (3)  Subsection 143(2) does not apply if:

                     (a)  the eligible service is a carriage service, and the sole use of the carriage service is use by a State or Territory transport authority to carry communications necessary or desirable for the workings of the following services:

                              (i)  train services of a kind provided by the authority;

                             (ii)  bus or other road services of a kind provided by the authority;

                            (iii)  tram services of a kind provided by the authority; or

                     (b)  the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this subsection.

             (4)  Paragraph (3)(a) does not apply to a carriage service supplied to a State or Territory transport authority unless the carriage service is supplied on the basis that the State or Territory transport authority must not re-supply the carriage service.

             (5)  Subsection 143(2) does not apply if:

                     (a)  both:

                              (i)  the eligible service is a carriage service; and

                             (ii)  the sole use of the carriage service is use by a rail corporation to carry communications necessary or desirable for the workings of train services; or

                     (b)  the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this subsection.

             (6)  Paragraph (5)(a) does not apply to a carriage service supplied to a rail corporation unless the carriage service is supplied on the basis that the rail corporation must not re-supply the carriage service.

146   Exemption—electricity supply bodies

             (1)  Subsection 143(2) does not apply if:

                     (a)  the eligible service is a carriage service, and the sole use of the carriage service is use by an electricity supply body to carry communications necessary or desirable for:

                              (i)  managing the generation, transmission, distribution or supply of electricity; or

                             (ii)  charging for the supply of electricity; or

                     (b)  the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this section.

             (2)  Paragraph (1)(a) does not apply to a carriage service supplied to an electricity supply body unless the carriage service is supplied on the basis that the electricity supply body must not re-supply the carriage service.

147   Exemption—gas supply bodies

             (1)  Subsection 143(2) does not apply if:

                     (a)  the eligible service is a carriage service, and the sole use of the carriage service is use by a gas supply body to carry communications necessary or desirable for:

                              (i)  managing the transmission or distribution of natural gas in a pipeline; or

                             (ii)  charging for the supply of natural gas transmitted or distributed in a pipeline; or

                     (b)  the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this section.

             (2)  Paragraph (1)(a) does not apply to a carriage service supplied to a gas supply body unless the carriage service is supplied on the basis that the gas supply body must not re-supply the carriage service.

148   Exemption—water supply bodies

             (1)  Subsection 143(2) does not apply if:

                     (a)  the eligible service is a carriage service, and the sole use of the carriage service is use by a water supply body to carry communications necessary or desirable for:

                              (i)  managing the distribution of water in a pipeline; or

                             (ii)  charging for the supply of water distributed in a pipeline; or

                     (b)  the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this section.

             (2)  Paragraph (1)(a) does not apply to a carriage service supplied to a water supply body unless the carriage service is supplied on the basis that the water supply body must not re-supply the carriage service.

149   Exemption—sewerage services bodies

             (1)  Subsection 143(2) does not apply if:

                     (a)  the eligible service is a carriage service, and the sole use of the carriage service is use by a sewerage services body to carry communications necessary or desirable for:

                              (i)  managing the supply of sewerage services; or

                             (ii)  charging for the supply of sewerage services; or

                     (b)  the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this section.

             (2)  Paragraph (1)(a) does not apply to a carriage service supplied to a sewerage services body unless the carriage service is supplied on the basis that the sewerage services body must not re-supply the carriage service.

150   Exemption—storm water drainage services bodies

             (1)  Subsection 143(2) does not apply if:

                     (a)  the eligible service is a carriage service, and the sole use of the carriage service is use by a storm water drainage services body to carry communications necessary or desirable for:

                              (i)  managing the supply of storm water drainage services; or

                             (ii)  charging for the supply of storm water drainage services; or

                     (b)  the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this section.

             (2)  Paragraph (1)(a) does not apply to a carriage service supplied to a storm water drainage services body unless the carriage service is supplied on the basis that the storm water drainage services body must not re-supply the carriage service.

151   Exemption—State or Territory road authorities

             (1)  Subsection 143(2) does not apply if:

                     (a)  the eligible service is a carriage service, and the sole use of the carriage service is use by a State or Territory road authority to carry communications necessary or desirable for the management or control of road traffic; or

                     (b)  the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this section.

             (2)  Paragraph (1)(a) does not apply to a carriage service supplied to a State or Territory road authority unless the carriage service is supplied on the basis that the State or Territory road authority must not re-supply the carriage service.

Division 3 Other provisions

152   Associate

             (1)  For the purposes of this Part, an associate of a person (the controller ) in relation to control of:

                     (a)  a telecommunications network; or

                     (b)  a company;

is:

                     (c)  a partner of the controller; or

                     (d)  if the controller or another person who is an associate of the controller under another paragraph receives benefits or is capable of benefiting under a trust—the trustee of the trust; or

                     (e)  a person (whether a company or not) who:

                              (i)  acts, or is accustomed to act; or

                             (ii)  under a contract or an arrangement or understanding (whether formal or informal) is intended or expected to act;

                            in accordance with the directions, instructions or wishes of, or in concert with:

                            (iii)  the controller; or

                            (iv)  the controller and another person who is an associate of the controller under another paragraph; or

                      (f)  another company if:

                              (i)  the other company is a related body corporate of the controller for the purposes of the Corporations Act 2001 ; or

                             (ii)  the controller, or the controller and another person who is an associate of the controller under another paragraph, is or are in a position to exercise control of the other company.

             (2)  However, persons are not associates of each other if the ACCC is satisfied that:

                     (a)  they do not act together in any relevant dealings relating to the network or company; and

                     (b)  neither of them is in a position to exert influence over the business dealings of the other in relation to the network or company.

153   Control

                   In this Part, control includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights.

154   Control of a company

             (1)  For the purposes of this Part, the question of whether a person is in a position to exercise control of a company is to be determined under Schedule 1 to the Broadcasting Services Act 1992 .

             (2)  However, in determining that question:

                     (a)  the definition of associate in subsection 6(1) of the Broadcasting Services Act 1992 does not apply; and

                     (b)  the definition of associate in section 152 of this Act applies instead.

155   When a person is in a position to exercise control of a network

             (1)  For the purposes of this Part, a person (the controller ) is in a position to exercise control of a telecommunications network if:

                     (a)  the controller legally or beneficially owns the network (whether alone or together with one or more other persons); or

                     (b)  the controller is in a position, either alone or together with an associate of the controller and whether directly or indirectly:

                              (i)  to exercise control of the operation of all or part of the network; or

                             (ii)  to exercise control of the selection of the kinds of services that are supplied using the network; or

                            (iii)  to exercise control of the supply of services using the network; or

                     (c)  a company other than the controller legally or beneficially owns the network (whether alone or together with one or more other persons), and:

                              (i)  the controller is in a position, either alone or together with an associate of the controller, to exercise control of the company; or

                             (ii)  the controller, either alone or together with an associate of the controller, is in a position to veto any action taken by the board of directors of the company; or

                            (iii)  the controller, either alone or together with an associate of the controller, is in a position to appoint or secure the appointment of, or veto the appointment of, at least half of the board of directors of the company; or

                            (iv)  the controller, either alone or together with an associate of the controller, is in a position to exercise, in any other manner, whether directly or indirectly, direction or restraint over any substantial issue affecting the management or affairs of the company; or

                             (v)  the company or more than 50% of its directors act, or are accustomed to act, in accordance with the directions, instructions or wishes of, or in concert with, the controller, the controller and an associate of the controller acting together, or the directors of the controller; or

                            (vi)  the company or more than 50% of its directors, under a contract or an arrangement or understanding (whether formal or informal), are intended or expected to act in accordance with the directions, instructions or wishes of, or in concert with, the controller, the controller and an associate of the controller acting together, or the directors of the controller.

             (2)  An employee is not, except through an association with another person, to be regarded as being in a position to exercise control of a network under subsection (1) purely because of being an employee.

             (3)  More than one person may be in a position to exercise control of a network.

156   Deemed networks

             (1)  For the purposes of this Part, if:

                     (a)  a telecommunications network is altered or upgraded on or after 1 January 2011; and

                     (b)  as a result of the alteration or upgrade, a part of the network became capable of being used to supply a superfast carriage service to residential or small business customers, or prospective residential or small business customers, in Australia;

then:

                     (c)  that part is taken to be a network in its own right; and

                     (d)  the network referred to in paragraph (c) is taken to have come into existence on or after 1 January 2011.

             (2)  For the purposes of this Part, if:

                     (a)  a telecommunications network is extended on or after 1 January 2011; and

                     (b)  the extended part of the network is capable of being used to supply a superfast carriage service to residential or small business customers, or prospective residential or small business customers, in Australia;

then:

                     (c)  the extended part is taken to be a network in its own right; and

                     (d)  the network referred to in paragraph (c) is taken to have come into existence on or after 1 January 2011.

             (3)  If:

                     (a)  a part of the infrastructure of a telecommunications network is situated in a particular area that is being or was developed as a particular stage of a real estate development project (within the ordinary meaning of that expression); and

                     (b)  the network is extended to another area that is being, or is to be, developed as another stage of the project;

subsection (2) does not apply to the extension.

             (4)  If:

                     (a)  a telecommunications network was in existence immediately before 1 January 2011; and

                     (b)  the network is extended on or after 1 January 2011; and

                     (c)  no point on the infrastructure of the extension is located more than:

                              (i)  1 kilometre; or

                             (ii)  if a longer distance is specified in the regulations—that longer distance;

                            from a point on the infrastructure of the network as the network stood immediately before 1 January 2011;

subsection (2) does not apply to the extension.

             (5)  The regulations may provide that subsection (2) does not apply to a specified extension of a telecommunications network.

Note:          For specification by class, see the Acts Interpretation Act 1901 .

157   Certain installations and connections are not taken to be an extension, alteration or upgrade

                   For the purposes of this Part, if:

                     (a)  a line is or was installed for the purposes of connecting particular premises to a telecommunications network; and

                     (b)  the installation of the line enables or enabled the occupier of the premises to become a customer in relation to carriage services supplied using the network; and

                     (c)  the premises are in close proximity to a line that forms part of the infrastructure of the network; and

                     (d)  the network is capable of being used to supply a superfast carriage service; and

                     (e)  the network came into existence before 1 January 2011;

neither the installation of the line mentioned in paragraph (a), nor the connection of the premises, is taken to be an extension, alteration or upgrade of the network.

158   Local access line

             (1)  For the purposes of this Part, a local access line is a line that is part of the infrastructure of a local access network.

             (2)  However, a line does not form part of a local access line to the extent that the line is on the customer side of the boundary of a telecommunications network.

             (3)  For the purposes of this section, the boundary of a telecommunications network is to be determined in the same manner in which it is determined under section 22 for the purposes of sections 20, 21 and 30.

             (4)  For the purposes of this section, local access network has the meaning generally accepted within the telecommunications industry.

159   Alteration

                   For the purposes of this Part, an alteration of a telecommunications network does not include an extension of the network.

160   Upgrade of telecommunications network

                   For the purposes of this Part, an upgrade of a telecommunications network does not include an extension of the network.

[superfast fixed-line networks]

(29)   Schedule 1, item 88, page 52 (line 20), omit “subsection 46(3) of”.

[technical standards]

(30)   Schedule 1, item 93, page 53 (line 19), before “For”, insert “(1)”.

[designated superfast telecommunications network]

(31)   Schedule 1, item 93, page 53 (lines 20 to 25), omit paragraphs 152AGA(a) and (b), substitute:

                     (a)  a telecommunications network is used, or is proposed to be used, to supply one or more Layer 2 bitstream services wholly or principally to residential or small business customers, or prospective residential or small business customers, in Australia; and

                     (b)  the network is used, or is proposed to be used, to supply a superfast carriage service wholly or principally to residential or small business customers, or prospective residential or small business customers, in Australia; and

[designated superfast telecommunications network]

(32)   Schedule 1, item 93, page 53 (lines 28 and 29), omit “after 25 November 2010”, substitute “on or after 1 January 2011”.

[designated superfast telecommunications network]

(33)   Schedule 1, item 93, page 53 (line 30) to page 54 (line 3), omit subparagraph 152AGA(d)(ii), substitute:

                             (ii)  the network was altered or upgraded on or after 1 January 2011 and, as a result of the alteration or upgrade, the network became capable of being used to supply a superfast carriage service to residential or small business customers, or prospective residential or small business customers, in Australia;

[designated superfast telecommunications network]

(34)   Schedule 1, item 93, page 54 (lines 4 to 8), omit paragraph 152AGA(e).

[designated superfast telecommunications network]

(35)   Schedule 1, item 93, page 54 (after line 10), at the end of section 152AGA, add:

             (2)  A network is not a designated superfast telecommunications network for the purposes of this Part if, under subsection 141A(1), the network is exempt from section 141.

Note:          Section 141 deals with the supply of Layer 2 bitstream services.

Deemed networks

             (3)  For the purposes of this section, if:

                     (a)  a telecommunications network is altered or upgraded on or after 1 January 2011; and

                     (b)  as a result of the alteration or upgrade, a part of the network became capable of being used to supply a superfast carriage service to residential or small business customers, or prospective residential or small business customers, in Australia;

then:

                     (c)  that part is taken to be a network in its own right; and

                     (d)  the network referred to in paragraph (c) is taken to have come into existence on or after 1 January 2011.

             (4)  For the purposes of this section, if:

                     (a)  a telecommunications network is extended on or after 1 January 2011; and

                     (b)  the extended part of the network is capable of being used to supply a superfast carriage service to residential or small business customers, or prospective residential or small business customers, in Australia;

then:

                     (c)  the extended part is taken to be a network in its own right; and

                     (d)  the network referred to in paragraph (c) is taken to have come into existence on or after 1 January 2011.

             (5)  If:

                     (a)  a part of the infrastructure of a telecommunications network is situated in a particular area that is being or was developed as a particular stage of a real estate development project (within the ordinary meaning of that expression); and

                     (b)  the network is extended to another area that is being, or is to be, developed as another stage of the project;

subsection (4) does not apply to the extension.

             (6)  If:

                     (a)  a telecommunications network was in existence immediately before 1 January 2011; and

                     (b)  the network is extended on or after 1 January 2011; and

                     (c)  no point on the infrastructure of the extension is located more than:

                              (i)  1 kilometre; or

                             (ii)  if a longer distance is specified in the regulations—that longer distance;

                            from a point on the infrastructure of the network as the network stood immediately before 1 January 2011;

subsection (4) does not apply to the extension.

             (7)  The regulations may provide that subsection (4) does not apply to a specified extension of a telecommunications network.

Note:          For specification by class, see the Acts Interpretation Act 1901 .

Certain installations and connections are not taken to be an extension, alteration or upgrade

             (8)  For the purposes of this section, if:

                     (a)  a line is or was installed for the purposes of connecting particular premises to a telecommunications network; and

                     (b)  the installation of the line enables or enabled the occupier of the premises to become a customer in relation to carriage services supplied using the network; and

                     (c)  the premises are in close proximity to a line that forms part of the infrastructure of the network; and

                     (d)  the network is capable of being used to supply a superfast carriage service; and

                     (e)  the network came into existence before 1 January 2011;

neither the installation of the line mentioned in paragraph (a), nor the connection of the premises, is taken to be an extension, alteration or upgrade of the network.

Small business customer

             (9)  For the purposes of this section, small business customer means:

                     (a)  a customer who is a small business employer (within the meaning of the Fair Work Act 2009 ); or

                     (b)  a customer who:

                              (i)  carries on a business; and

                             (ii)  does not have any employees.

For the purposes of paragraph (a), it is to be assumed that each reference in section 23 of the Fair Work Act 2009 to a national system employer were a reference to an employer (within the ordinary meaning of that expression).

Alteration

           (10)  For the purposes of this section, an alteration of a telecommunications network does not include an extension of the network.

Upgrade

           (11)  For the purposes of this section, an upgrade of a telecommunications network does not include an extension of the network.

[designated superfast telecommunications network]