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Telecommunications Bill 1996
House: House of Representatives
Portfolio: Communication and the Arts
Commencement: The operative provisions of the Bill commence on 1 July 1997. The introduction, material definitions and certain provisions in relation to inquiries by the ACCC commence on the date of Royal Assent.
This Bill is one of a package of Bills, the purpose of which is to implement a new regulatory framework for the telecommunications industry. Most significantly this Bill:
. prescribes carrier licence conditions
. provides for monitoring of carriers and service providers by the Australian Communications Authority (ACA)
. sets out a regime for the development of industry codes and standards
. re- enacts the universal service regime
. provides a customer service guarantee and ensures that residential customers receive the standard telephone service
. reinforces the protection of confidentiality of information
. provides for the phasing out of the analogue mobile phone system
. prescribes a regime for the creation of technical rules and standards
. provides for regulation of numbering.
On the 5 December 1996 the Government introduced a telecommunications legislative package consisting of eleven Bills. Together, these Bills will provide for the establishment of a new competitive telecommunications regime beginning on 1 July 1997 in place of the current telecommunications duopoly (and triopoly for mobile telephones). The origins of this process go back to September 1990 when the Labor Government decided that the future model of the telecommunications industry would involve competition in all aspects of the network. In September 1994 the Issues Paper, Beyond the Duopoly, was released by the Department of Communications and the Arts. On 1 August 1995 the Government announced its Telecommunications Policy Principles: Post 1997 which would provide the policy framework for the new legislation. The major features were:
. full competition for carriers and service providers from 1 July 1997
. alignment of telecommunications law with the concepts embodied in the Trade Practices Act 1974 to the greatest extent practicable, with responsibility for telecommunications specific competition policy to be transferred from AUSTEL to the Australian Competition and Consumer Commission ( ACCC)
. remaining AUSTEL functions to be merged with the Spectrum Management Authority ( SMA).
The previous Government also released an exposure draft of legislation dealing with carrier licensing, codes of practice, access and competition matters.
In May 1996 the new Government issued the Discussion Paper Post 1997 Telecommunications Legislation. This was followed by the release of draft legislation in three tranches, with final public comment due by 11 October 1996.
While the amount of published discussion on the draft legislation has been limited, a number of issues have been raised by commentators and interested parties. These include the following:
1. Competition questions
. it has been reported that 'Telstra has argued that the competition rules are too narrow and will not catch major players from outside the telecommunications sector if they choose to misuse their power to enter the telecommmunications market' and that the corporation has also expressed concern that the ACCC's powers to prevent anti- competitive conduct by carriers will mean that carriers are found' guilty until proven innocent'. (2)
. Paul Budde has argued that the proposed 'framework for carrier powers and immunites' will make it virtually impossible for new carriers to build infrastructure because the approval system will be unworkable. This will entrench Telstra and Optus who have been able to build their networks under more favourable conditions. (3)
. Budde has also argued that the transition provisions will mean that real competition will be postponed for 1 to 2 years because of the six month period of grace protecting the current carriers and the fact that it will take the ACCC time to develop the necessary processes, expertise and databases. (4)
2. Tariff filing
. Telstra has claimed that ACCC powers to require tariff filing where it suspects a carrier of anti- competitive conduct are too broad.
. The Service Providers Action Network ( SPAN) has argued that the ACCC will be unable to exercise its power to require tariff filing for sometime after 1 July 1997 'without facing an immediate legal challenge on evidentiary grounds' because there will be no record of the results of Telstra's conduct. Telstra will thus have no constraints on its behaviour for at least a year. (5)
3. Regulatory roles and powers
. Telstra has claimed that the proposed ACA will retain too much power and that it should be made subordinate to the ACCC. In particular, the ACA's powers to:
- exclude firms from bidding for spectrum
- make interconnection standards
- require and direct number portability. (6)
. the lack of a requirement for the ACA to report annually on carrier performance, competition issues and consumer protection has been criticised. AUSTEL is currently required to make such reports under its legislation. (7)
4. Network boundaries
. under current legislation the network boundary for most consumers is their telephone socket. This means the carrier is responsible for the cabling. Under the new legislation the network boundary will be either set by regulations or by agreement between carrier and customer. It has been argued that this will remove certainty for residential customers. (8)
5. Access regime
. doubts were expressed about the new access regime at a forum organised by AUSTEL in December 1996. Service providers feared that they would be forced to wait a long time for fair pricing to be negotiated. It was claimed that access seekers would have no leverage in their dealings with the carriers and that it was essential that the regulators be closely involved in the first phase of the market deregulation. (9)
6. State/Territory planning controls
. The Australian Local Government Association has claimed that the 'proposal to mix a return to the State planning controls with a national appeals process is almost certainly unworkable'. (10)
Outline of the Legislative Package
The Telecommunications Bill 1996
The major piece of legislation is the Telecommunications Bill 1996. This is in three volumes: Vol.1 (Parts 1-11), Vol.2 (Parts 12-35) and Vol.3 (Schedules). The Bill establishes the framework for the regulation of telecommunications. In particular, the Bill sets out:
. the conditions for carrier licences (Part 3 and Schedule 1)
. carriers' powers and immunities (Part 24 and Schedule 3)
. rules for those who provide content services (Part 4 and Schedule 2)
. monitoring of carriers and service providers by the ACA (Part 5 and Schedule 4)
. industry codes and standards (Part 6)
. the universal service regime (Part 7)
. the requirement for untimed local calls (Part 8) and emergency call services (Part 12)
. the customer service guarantee (Part 9) and provisions to ensure that residential customers receive the standard telephone service (Part 11)
. the Telecommunications Industry Ombudsman scheme (Part 10)
. provisions for the protection of confidentiality of information (Part 13)
. the duties of carriers and service providers with regard to the national interest (Part 14), cooperation with law enforcement agencies(Part 15), defence and disaster planning (Part 16)
. requirements for pre- selection (Part 17) and calling line identification (Part 18)
. provisions for the phasing out of the analogue mobile phone system (Part 19)
. compliance with international agreements and rules of conduct for dealing with international operators (Part 20)
. technical rules and standards (Part 21)
. regulation of numbering and electronic addressing (Part 22)
. powers of the ACA to conduct public inquiries (Part 25) andinvestigations (Part 26), to gather information (Part 27) and to givedirections to carriers and providers (Part 34)
. powers of the ACCC to conduct inquiries (Part 25)
. provisions for the review of decisions by the ACA (Part 29)
. provisions for enforcement, penalties and liability (Parts 28 to 35).
The Australian Communications Authority Bill 1996 establishes the ACA and its membership (Part 3 of that Bill), sets out its functions and powers (Part 2 of that Bill), the terms of its meetings (Part 4 of that Bill) as well as providing for the administration of the Authority (Part 5 of that Bill). The ACA's staffing will comprise those parts of the Australian Telecommunications Authority (or AUSTEL) not concerned with competition regulation together with that of the Spectrum Management Authority (SMA). Briefly, the functions of the ACA will be to regulate the telecommunications industry in accordance with the proposed Telecommunications Act 1996 and to manage the radiofrequency spectrum in accordance with the Radiocommunications Act 1992, as amended by the Radiocommunications Amendment Bill 1996.
AUSTEL staff concerned with competition regulation will be transferred to the ACCC. They will be responsible for administering the provisions of the Trade Practices Amendment (Telecommunications) Bill 1996 which inserts a new Part XIB in the Trade Practices Act 1974 for the purpose of regulating anti- competitive conduct in the telecommunications industry. These provisions will apply in addition to those of Part IV of the Act, which deal with anti- competitive conduct generally. Part XIB provides for:
. the definition of market power (Division 1) and anti- competitive conduct (Division 2)
. the issue of notices and exemptions relating to anti- competitive conduct (Divison 3)
. tariff filing (Division 4)
. record- keeping rules (Division 5)
. enforcement measures (Division 6)
. review of decisions (Division 9)
. annual reports by the ACCC on competitive safeguards within the telecommunications industry (Division 10)
. monitoring of charges paid by consumers (Division 11)
. a review of the operation of the Part before 1 July 2000 (Division 12).
The Trade Practices Amendment (Telecommunications) Bill 1996 also inserts a new Part XIC which sets out the telecommunications access regime. The Part provides for:
. the creation of a Telecommunications Access Forum with a membership open to all carriers and service providers (Division 1)
. the declaration of particular carriage and related services (Division 2) for which carriers and service providers are required to comply with standard access obligations (Division 3)
. the approval of a Telecommunications access code (Division 4)
. 'access undertakings' by which carriers and providers agree to comply with the relevant standard access obligations (Division 5)
. Ministerial pricing determinations (Division 6)
. the resolution of disputes over access (Division 8)
. enforcement of the prohibition on hindering access (Division 10).
The legislation package contains six separate Bills which contain or amend revenue raising measures. The Radiocommunications (Receiver Licence Tax) Amendment Bill 1996 and the Radiocommunications (Transmitter Licence Tax) Amendment Bill 1996 will make consequential amendments to their respective Principal Acts to take into account the establishment of the ACA in place of the SMA and AUSTEL. The four remaining Bills deal with fees and charges arising from the new telecommunications regime.
The Telecommunications (Carrier Licence Charges) Bill 1996 will impose application charges (Part 2) and annual charges (Part 3) in respect of carrier licences from 1 July 1998. The Telecommmunications (Carrier Licence Fees) Termination Bill 1996 will repeal the current legislation imposing carrier licence fees (the Telecommunications (Carrier Licence Fees) Act 1991) on 1 July 1998. It will also provide for current carriers to pay fees on 1 July 1997 to cover the transitional costs of the new regime.
The Telecommunications (Universal Service Levy) Bill 1996 will impose a levy on carriers to meet the cost of the universal service obligation as provided for by Part 7 of the Telecommunications Bill 1996. The Telecommunications (Numbering Charges) Bill 1996 will impose charges on carriage service providers for the numbers they are allocated under Part 22 of the Telecommunications Bill 1996. The Bill will also impose an annual charge on providers for the numbers they hold after 1 July 1997.
The Radiocommunications Amendment Bill 1996 amends the Radiocommunications Act 1992 to ensure that the management of the radiofrequency spectrum is consistent with the future deregulated telecommunications environment. The major amendments will:
. enable the price- based allocation by public auction of radiofrequency spectrum
. apply trade practices rules on anti- competitive acquisitions to the allocation and issue of radiocommunication licences
. allow the Minister to set limits on the acquisition of spectrum or licences
. extend the SMA's authority on standards to cover non- radiocommunications devices that can cause electromagnetic interference, and to allow the setting of health and safety standards with regard to radiocommunications devices.
The Telecommunications (Transitional Provisions and Consequential Amendments) Bill 1996 contains transitional provisions relating to the Telecommunications Bill 1996. The major areas it deals with are:
. the merger of AUSTEL and the SMA
. the transfer of competition policy resources from AUSTEL to the ACCC
. the telecommunications access regime
. the universal service regime.
Related Legislation before Parliament
On 30 October 1996, the Telecommunications Amendment Bill 1996 and the Telecommunications (Numbering Fees) Amendment Bill 1996 were introduced in the House of Representatives. The latter Bill amends the Telecommunications (Numbering Fees) Act 1991 to provide for the payment of annual charges by carriers and service providers for the numbers that are held by them for services that are provided across public telecommunications networks. The former Bill amends the Telecommunications Act 1991 ( 1991 Act) to empower AUSTEL to make determinations in respect of these annual charges for numbers.
It is the writer's intention that this digest highlight the significant differences between the 1991 Act and the Telecommunications Bill 1996. It is beyond the scope of the digest to comprehensively explain all of the provisions of the new legislation. However, questions in respect of topics covered by the Bill but not raised in this digest can be directed to the writer.
Part 1 - Introduction
'Standard Telephone Service' is a reference to a carriage service for each of the following purposes:
. voice telephony
. if voice telephony is not practical for a particular end- user with a disability and another form of communication that is equivalent to voice telephony would be required to be supplied to the end- user in order to comply with the Disability Discrimination Act 1992, the purpose of that form of communication
. a purpose declared by regulations to be a designated purpose for the purposes of the provision,
. the person supplied with the service is ordinarily able to communicate, by means of the service, with each other end- user who is supplied with the same service for the same purpose, whether or not the end- users are connected to the same telecommunications network, and
. the service has the characteristics (if any) declared by the regulations to be the designated characteristics in relation to that service for the purposes of the provision.
It should be noted that a relay service for speech and/or hearing impaired people is not a carriage service and that service is not an element of the standard telephone service.
The primary difference between this definition and the definition contained in the 1991 Act is that the new definition makes no reference to a public switched telephone service but instead is based on 'voice telephony'. The concept of the standard telephone service is no longer tied to a particular service technology.
Part 2 - Network Units
The term 'Network Unit' is a new term created by this Bill. The term is central to the prohibition contained in Clause 42 (refer Part 3 below) that the owner of a network unit must not use it or permit it to be used to supply a carriage service (defined as a service for carrying communications by means of guided and/or unguided electromagnetic energy) to the public unless
a) the owner holds a carrier licence
b) another person has been declared a nominated carrier (refer Part 3 below) in respect of the network unit, or
c) an exemption applies.
Clauses 26 - 29 provide for 4 types of network units:
. a single line link connecting distinct places in Australia where the distinct places are at least 500 metres apart (unless a longer distance is specified in the regulations)
. a multiple line link connecting distinct places in Australia where the same person owns 2 or more line links and the aggregate distance between the distinct places is more than 5 kilometres (unless a longer distance is specified in the regulations)
. a designated radiocommunications facility used to supply a carriage service between one point in Australia and one or more other points in Australia
. a facility determined by the Minister to be a network unit.
Part 3 - Carriers
The prohibition on the owner of a network unit supplying carriage services to the public, mentioned above, is contained in this part ( Clause 42).
Exemptions from this prohibition include network units used for defence and intelligence operations and network units used by broadcasters, transport authorities and electricity supply bodies when used for certain purposes ( Clauses 45 to 51).
Applications for carrier licences are made to the ACA. Under the 1991 Act only corporations could apply for carrier licences. Partnerships of corporations and public bodies are now permitted to apply ( Clause 52).
Clause 61 provides that a carrier licence is subject to the conditions specified in Schedule 1. The Minister is empowered to impose licence conditions in addition to those set out in the Schedule but is obliged to consult the affected licence holders beforehand ( Clauses 62 and 63).
Clause 76 allows a carrier to apply to the ACA for a nominated carrier declaration in relation to one or more specified network units. The nominated carrier has all of the obligations and responsibilities of a carrier in relation to those network units.
Part 4 - Service Providers
A 'Service Provider' is a 'Carriage Service Provider' or a 'Content Service Provider' ( Clause 85).
A Carriage Service Provider has 5 definitions ( Clause 86):
. a person who supplies a listed carriage service (i.e. a carriage service between 2 points in Australia or a point inside Australia and a point outside Australia) to the public using a network unit owned by a carrier or in relation to which a nominated carrier declaration is in force
. a person who supplies a listed carriage service to the public using a line link connecting a place in Australia and a place outside Australia or a satellite- based facility
. an exempt network user where the excess capacity of the network is supplied to the public
. a person declared by the Minister to be a carriage service provider.
A Content Service Provider ( Clause 96) is a person who uses a listed carriage service to supply a content service to the public. A Content Service (Clause 15) is a broadcasting service, on- line information service or a service of a kind specified by the Minister in a determination.
Service Provider Rules are set out in Schedule 2 of the Bill (see below for a summary). The Minister may make further rules by determination under Clause 98. The Minister can exempt specified service providers from the rules ( Clause 99).
Part 5 - Monitoring of the Performance of Carriers and Service Providers
The ACA must monitor and report to the Minister each year on all significant matters relating to the performance of carriers and service providers. The report must particularly refer to consumer satisfaction, consumer benefits and quality of service ( Clause 104).
Part 6 - Industry Codes and Industry Standards
Clause 115 provides that industry codes developed by bodies or associations representing a particular section of the telecommunications industry must be registered by the ACA providing certain conditions are satisfied:
. appropriate community safeguards are provided for matters covered by the code
. sufficient opportunity has been provided for industry participants and the public to make submissions, and
. the Telecommunications Industry Ombudsman has been consulted.
The ACA may request a body or association to develop an industry code in respect of one or more specified matters ( Clause 116).
If a person contravenes an industry code, the ACA may give written notice to the person to comply with the code (Clause 119).
Clauses 121 and 123 provide that the ACA may write industry standards in the following circumstances:
. where the ACA makes a request under Clause 116 to a body or association to develop an industry code in respect of certain matters and that request is not complied with or the code developed is not satisfactory
. where the ACA is satisfied that an industry code is deficient and hasrequested the body or association that developed the code to addressthe deficiencies and that has not occurred within a specified time.
In terms of compliance, the distinction between industry codes and industry standards is that non- compliance with an industry code may result in the person being issued with a direction to comply by the ACA. Failure to comply with that direction will result in the incurrence of a civil penalty. Non- compliance with an industry standard will immediately result in the incurrence of a civil penalty (however, the ACA has a discretion to issue a formal warning).
Part 7 - Universal Service Regime
The universal service regime has only been the subject of relatively minor change:
. the new definition of 'standard telephone service' has been mentioned above
. there is provision for regulations to be made prescribing carriage services which are to be included as part of the universal service obligation ( USO)
. the Minister may determine a selection system for the purpose of selecting a carrier to be the national universal service provider ( Clause 147)
. regulations may be made authorising the Minister to declare that 2 or more carriers are to be national universal service providers ( Clause 150)
. universal service providers must submit a universal service plan for approval by the Minister ( Clause 152). In deciding whether to approve the plan, the Minister must have regard to whether the plan provides for the USO to be fulfilled:
a) as efficiently and economically as practicable, and
b) at performance standards that reasonably meet the needs of the community ( Clause 156).
. the contribution by participating carriers to the total net universal service cost is now based on that carriers proportion of total eligible revenue (a term defined by regulation) as opposed to timed traffic
. new telecommunications carriers (i.e. those carriers not holding a licence under the 1991 Act) must provide a bank guarantee in respect of their obligation to pay the universal service levy.
Part 8 - Continued Access to Untimed Local Calls
There are no substantial changes to the obligation on carriage service providers being required to provide an untimed local call option in certain circumstances.
Part 9 - Customer Service Guarantee
The Minister can direct the ACA to make standards to be complied with by carriage service providers in respect of certain matters relating to the time taken to connect customers to carriage services and the time taken to rectify faults or services ( Clauses 224 and 232).
Contravention of a standard will result in the carriage service provider being liable to pay damages to the customer ( Clause 225). The ACA may specify the scale of damages for contraventions. The amount of damages payable may not exceed $3,000 ( Clause 226).
Part 10 - The Telecommunications Industry Ombudsman (TIO)
Clause 236 provides for the continuation of the TIO scheme. Carriers and Eligible Service Providers (being carriage service providers who supply the standard telephone service to residential or small business customers or a public mobile telecommunications service) must enter into the scheme.
The scheme must provide for the TIO to investigate, make determinations relating to and give directions relating to complaints about carriage services by end- users of those services.
The Bill provides that an example of such a complaint would be about billing or the manner of charging for the supply of carriage services.
The ACA is empowered to exempt a carrier or eligible carriage service provider from the obligation to enter into the scheme ( Clause 237)
Part 11 - Protection for Residential Customers Against Failure by Carriage Service Providers to Provide Standard Carriage Services
Under this part, the ACA is given the option of formulating one or more schemes designed to protect residential customers in the event of a carriage service provider failing to supply the standard telephone service. The schemes include:
. imposing an obligation on carriage service providers to ensure that the customer is supplied with the standard carriage service. If there is a failure to supply the service, the Bill contemplates that the carriage service provider will arrange for another carriage service provider to supply equivalent service at no extra charge to the customer
. requiring a carriage service provider to reimburse the customer on a pro- rata basis in proportion to the period during which the carriage service provider has failed to supply the service to the customer
. requiring a carriage service provider to provide a proportionate reimbursement when there is a failure to supply (as mentioned above) and to maintain insurance for the purpose of ensuring that liability is discharged
. requiring a carriage service provider to provide a proportionate reimbursement when there is a failure to supply (as mentioned above) and to hold the payments it receives in advance for the provision of the standard telephone service on trust for customers with a stipulation that amounts can only be transferred to a general account in accordance with rules set out in the scheme.
Part 12 - Provision of Emergency Call Services
At present, obligations on carriers in respect of emergency call services are set out in Telecommunications (General Telecommunications Licences) Declaration (No.2) of 1991 and Telecommunications (Public Mobile Licences) Declaration (No.2) 1991.
The ACA is obliged to make a written determination imposing requirements on carriers, carriage service providers and emergency call persons in relation to emergency call services. The Bill sets out certain objectives which the ACA must have regard to in making a determination. The objectives include:
. that each user of a standard telephone service should have direct access, free of charge, to an emergency service number
. that the emergency call person should be automatically provided with information about the location of the caller and the identity of the customer of the service being used by the caller.
Apart from specifying these objective, the ACA is largely unfettered in making its determination.
Part 13 - Protection of Communications
This part is a re- enactment of section 88 of the 1991 Act with some minor changes.
The only addition of note is the creation of an offence in respect of secondary disclosures or use. Secondary disclosure or use of information occurs where a person discloses or uses information which has been legitimately disclosed to them under an exemption to the general rule of non- disclosure.
Part 14 - National Interest Matters
This part is a re- enactment of section 47 of the 1991 Act.
The basic obligations of the ACA, carriers and carriage service providers are:
. do their best to prevent telecommunications networks and facilities from being used in relation to the commission of offences against the laws of the Commonwealth, States and Territories
. give officers and authorities of the Commonwealth, States and Territories such help as is reasonably necessary for enforcing the criminal law and imposing pecuniary penalties, protecting public revenue and safeguarding national security.
The significant addition to the existing legislation is contained in Clause 300. Senior officers of a police force are entitled to request a carriage service provider to suspend the supply of carriage services in an emergency. A curious aspect of the provision is that it is not obligatory that the carriage service provider comply with the request.
Part 15 - Co- operation with Law Enforcement Agencies
At present, clauses 3.1 and 3.2 of the Telecommunications (General Telecommunications Licences) Declaration (No.2) of 1991 and clauses 8.1 and 8.2 of the Telecommunications (Public Mobile Licences) require carriers to have interception capability. This part substantially enacts those provisions and extends them to carriage service providers.
Part 16 - Defence Requirements and Disaster Plans
Clause 320 allows a defence authority to require a carriage service provider to supply a specified carriage service to the Department of Defence or the Defence Force. A notice can only be issued where the service is required for defence purposes or the purposes of managing a natural disaster. If the parties cannot agree on the terms and conditions of the supply of the services, an arbitrator must be appointed.
A defence authority may prepare a draft agreement with a carrier or carriage service provider, for certification by the ACA, in relation to:
. planning for network survivability, or
. operational requirements in times of crisis.
The ACA must determine whether the draft agreement is reasonable and, in doing so, must consult with the parties. Upon the ACA being satisfied that the draft is reasonable, the ACA may certify the agreement ( Clause 323).
Licence conditions (declared under Clause 63) may make provision for or in relation to compliance by the carrier with one or more disaster plans ( Clause 330). Similarly, service provider determinations (made under Clause 98) may make provision for or in relation to compliance by 1 or more carriage service providers with 1 or more disasters ( Clause 331).
Part 17 - Pre- selection in Favour of Carriage Service Providers
In respect of:
. calls made using a standard telephone service, the ACA must make a determination requiring each carrier or carriage service provider who supplies a standard telephone service to provide a pre- selection infavour of a specified carriage service provider,
. specified carriage services, the ACA may make a determination requiring each carrier or carriage service provider who supplies a specified carriage service to provide a pre- selection in favour of a specified carriage service provider ( Clause 334).
A carriage service provider must ensure that each end- user of the carriage service can select an alternative carriage service provider on a call- by- call basis.
Part 18 - Calling Line Identification
The requirements in relation to calling line identification are currently contained in clause 2.1 of each of Telecommunications (General Telecommunications Licences) Declaration No.2 of 1991 and Telecommunications (Public Mobile Licences) Declaration No.2 of 1991. This Part re- enacts those provisions.
The requirement that a switching system be capable of providing calling line identification only applies to systems installed after 1 July 1997 and systems which, before that date, were capable of providing calling line identification.
The ACA may exempt a person from this requirement and in doing so must balance the reasonableness of imposing the requirement and the public interest.
Part 19 - Advanced Mobile Phone System (AMPS)
The AMPS network is essentially what is known as the analogue mobile phone network. The provisions relating to the phasing out this network (so as to require the conversion of users to the digital mobile phone network) are presently set out in Telecommunications (Public Mobile Licences) Declaration No.1 of 1992.
AMPS is to be phased out by 1 January 2000. Telstra can continue to operate its AMPS network until that date ( Clause 346).
The Minister may allow the installation or operation of an AMPS network after 1 January 2000 in certain circumstances ( Clause 347).
Part 20 - International Aspects of Activities of the Telecommunications Industry
The Convention and Operating Agreement on the International Maritime Satellite Organization (INMARSAT) came into force generally and for Australia on 16 July 1979. INMARSAT is an organization, the purpose of which is to make provision for the space segment (defined as the satellites and related facilities) necessary for improving maritime communications, thereby assisting in improving distress and safety of life at sea communications, efficiency and management of ships, maritime public correspondence services and radiodetermination capabilities.
The Agreement relating to the International Telecommunications Satellite Organization (INTELSAT) and Operating Agreement came into force on 14 February 1973. The prime objective of INTELSAT is the provision, on a commercial basis, of the space segment required for international public telecommunications services of high quality and reliability to be available on a non- discriminatory basis to all areas of the world.
Both the INMARSAT Convention and the INTELSAT Agreement(Articles II(b) and 2(3) respectively) allow the relevant party to designate a telecommunications entity to sign the Operating Agreement. In each case OTC was Australia's designated telecommunications entity. The role was assumed by AOTC as the successor to Telecom and OTC and is now Telstra's responsibility.
Clause 350 allows the Minister to give directions to the signatory or signatories to the operating agreements as the Minister thinks necessary in relation to the performance ofthe functions of a signatory. The Minister may also declare that a carrier or carriage service provider or class of them is bound by a specified convention ( Clause 351).
Part 21 - Technical Regulation
This part has 12 divisions. Some of those divisions are merely re- enactments of the existing legislation whilst others introduce new provisions. It is appropriate to consider each division in turn.
Division 1 and Division 2 are the outline and interpretative provisions.
Division 3 relates to technical standards about customer equipment and customer cabling. The division substantially re- enacts and expands upon section 246 of the 1991 Act. Clause 361 contains the power under which the ACA may make technical standards in respect of customer equipment and customer cabling.
Division 4 deals with disability standards. The ACA may make standards relating to specified customer equipment if the equipment is for use in connection with the standard telephone service and the standard relates to the features ofthe equipment that are designed to cater for any or all of the special needs of persons with disabilities.
Division 5 sets out the ACA's powers in respect of the creation of technical standards about the interconnection of facilities. The ACA may only create such a standard on the direction of the ACCC. The ACCC must not give a direction unless it is necessary to do so in order to:
. promote the long- term interests of end- users of carriage services or of services supplied by means of carriage services, or
. reduce or eliminate the likelihood of hindrance to the provision of access to declared services (as that term is defined under Part XIC of the Trade Practices Act 1974).
Division 6 allows the ACA to issue connection permits in respect of non- standard customer equipment and non- standard cabling, authorising the applicant to connect the equipment or cabling to a telecommunications network and maintain the connection ( Clause 375). In deciding whether to issue the connection permit the ACA must have regard to:
. the protection of the integrity of the telecommunications network, and
. the protection of the health and safety of person who operate, work on or use the telecommunications network.
The ACA may have regard to:
. whether the purpose for which the permit is sought is related to education, research, testing of customer equipment or cabling;
. the knowledge and experience of the applicant ( Clause 379).
The ACA may make rules relating to the connection and maintenance of specified customer equipment and cabling.
Division 7 relates to labelling of customer equipment and customer cabling. The ACA is empowered to require a manufacturer or importer of customer equipment or cabling to apply label to that equipment or cabling indicating whether it meets the technical standards created under Clause 361 (see Clause 391).
A general prohibition is created against persons connecting customer equipment or cabling to a network where a label has not been applied in circumstances where it was required under Clause 391. The prohibition is not contravened where the connection is in accordance with a connection permit issued under Division 6 or where the manager of the telecommunications network or facility has consented to the connection ( Clause 395).
Manufacturers and importers of customer equipment and cabling are prohibited from supplying that equipment or cabling unless a label has been applied, in circumstances where a label is required to be applied under Clause 391.
Division 8 prohibits the unauthorised use of symbols which indicate compliance by customer equipment or cabling with applicable Clause 361 standards.
Division 9 relates to cabling providers. A person cannot perform cabling work unless the person is subject to the cabling provider rules or is under the supervision of a person who is subject to the rules or holds a cabling licence ( Clause 404).
The ACA is empowered to make rules, expressed to apply to specified persons, relating to the performance and supervision of the performance of cabling work (Clause 405).
Division 10 sets out remedies available to network and facility managers in circumstances where their network or facility is damaged as a result of unauthorised connections.
If a person connects customer equipment or cabling in contravention of the prohibition contained in division 7 and the network or the facility is damaged, the manager of the network or facility may apply to the Federal Court for remedial relief. The remedies include an injunction and damages or an account of profits.
Division 11 allows the ACA to declare the operation, possession or supply of specified customer equipment or cabling to be prohibited. The declaration must set out the reasons for the prohibition which must related to:
. the protection or integrity of a telecommunications network or facility, or
. the protection of the health or safety of persons who operate, work on or use a telecommunications network or facility.
Division 12 is a transitional provision in relation to labelling.
Part 22 - Numbering of Carriage Services and Regulation of Electronic Addressing
Sections 239 to 242B of the 1991 Act deal with numbering of telecommunications services. AUSTEL is required to establish and administer a numbering plan. A telecommunications service must not be provided across a public telecommunications network unless the numbers used accord with the national numbering plan.
The 1996 Bill has these requirements as its basis. However, it is the ACA who must make a numbering plan in consultation with the ACCC ( Clauses 439, 443 and 445). The plan may set out rules about:
. the allocation of numbers to carriage service providers
. the transfer of allocated numbers between carriage service providers
. the surrender or withdrawal of allocated numbers
. the portability of allocated numbers (portability refers to the ability of a customer of a carriage service provider to change their carriage service provider but retain the same phone number).
The ACA may determine a system for allocating numbers to service providers, in consultation with the ACCC ( Clause 447).
The ACA must maintain a register of allocated numbers including the names of the persons to whom the numbers have been allocated ( Clause 449).
Digest Comment: The Bill does not appear to address the issue ofwhether a carrier may reserve or allocate special numbers (i.e. with a unique numerical sequence) at a premium to customers.
Part 23 - Standard Agreement for the Supply of Carriage Services
The provisions of this Part are based on sections 200 and 201 of the 1991 Act.
In respect ofthe terms and conditions of supply of a standard telephone service (and carriage services, ancillary goods and ancillary services of a kind specified in the regulations) carriage service providers may lodge a copy of a set of standard terms and conditions (referred to a standard form of agreement) with the ACA.
The consequence of this is, that where goods and services are supplied to a person by a carriage service provider and the parties have not agreed on the terms and conditions of supply, the terms and conditions are taken to be those set out in the standard form of agreement.
The carriage service provider is obliged to make copies of the agreement available for inspection and purchase at its business offices and must supply a copy of the agreement to a person upon payment of a reasonable charge.
Part 24 - Carriers' Powers and Immunities
This Part gives effect to Schedule 3 (discussed below).
Part 25 - Public Inquiries
Division 2 of Part 25 in respect of inquiries by the ACA essentially re- enacts sections 327 to 332 of the 1991 Act.
Division 3 of Part 25 allows the Minister to direct the ACCC to hold an inquiry about carriage services, content services (but not the content of content services) or the telecommunications industry ( Clause 480). The ACCC may itself initiate an inquiry ( Clause 481). The public must be informed about the inquiry. A discussion paper setting out the background and identifying the issues must be prepared and made available for purchase. A reasonable opportunity must be given to the public to make written submissions to the inquiry.
Part 26 - Investigations
This part re- enacts sections 333 to 346 of the 1991 Act without any substantial amendments.
Part 27 - The ACA's Information- gathering Powers
If the ACA has reason to believe that a carrier or service provider or any person (i.e. a carriage service provider or content service provider) has information or a document or is capable of giving evidence relevant to:
. the performance of any of the ACA's telecommunications function, or
. the exercise of any of the ACA's telecommunications powers,
the ACA may give notice to the carrier or provider requiring the carrier or provider to give the information to the ACA ( Clause 505 and 506).
An individual is not excused from giving information or evidence or producing a document on the ground that the information or evidence might tend to incriminate the individual or expose the individual to a penalty ( Clause 508). However, the information or evidence (and any information obtained as a consequence of it) is not admissible in evidence against the individual in criminal proceedings or for the recovery of a pecuniary penalty imposed under the civil penalty provisions.
Part 28 - Enforcement
Appointment of Inspectors
The ACA is empowered to appoint inspectors. A person is automatically an inspector if the person is a member of the Australian Federal Police or of the police force of a Territory ( Clause 517).
Issue of Warrants
A Magistrate may issue a search warrant to an inspector if the inspector suspects on reasonable grounds that an offence against Part 21 (Technical Regulation) has been committed ( Clause 519). The Magistrate must be satisfied that there are reasonable grounds for issuing the warrant ( Clause 520). The Bill makes provision for the application for and the issue of a warrant by telephone, telex, fax or other electronic means.
Entry, Search and Seizure
An inspector may, with the consent of the owner or occupier of land or in accordance with a warrant, enter and search a property (be it land, premises, a vessel, an aircraft or vehicle), break open and search cupboards, drawers, boxes, etc. and examine and seize anything the inspector suspects on reasonable grounds to be connected with the offence ( Clause 526).
If an inspector has reasonable grounds to believe a person is carrying or there is anything on any property (be it land, premises, a vessel, an aircraft or vehicle) connected to an offence against Part 21 and the circumstances are of such seriousness and urgency as to require and justify the immediate exercise of those powers without the authority of a warrant, the inspector may search the person or property and seize anything found without a warrant. That power is only exercisable where its exercise is necessary to prevent the concealment, loss or destruction of the thing connected with the offence ( Clause 529).
Searches to Monitor Compliance with Part 21
For the purpose of ensuring compliance with Part 21, inspectors may inspect and remove documents from premises (not residential unless the occupier consents) that the inspector reasonably believes are premises in which Part 21 regulated activities are engaged.
Part 29 - Review of Decisions
An application may be made to the ACA to reconsider decisions of a kind specified in Part 1 of Schedule 4 ( Clause 539). Some of the more significant types of decisions referred to in Part 1 of Schedule 4 are:
. refusal to grant a carrier licence
. the giving of a remedial direction to a carrier who has contravened acondition of a carrier licence
. cancellation of a carrier licence
. refusal to make or a revocation of a nominated carrier declaration (see Part 3)
. the giving of a remedial direction to a service provider who has contravened a service provider rule
. refusal to register an industry code
. the giving of a direction to comply with an industry code
. the giving of a direction to a carriage service provider to join the Telecommunications Industry Ombudsman scheme
. refusal to issue and cancellation of a connection permit for the connection of non- standard customer equipment or cabling to a telecommunications network
. refusal to grant or cancellation of a cabling licence.
An application for reconsideration must be made within 28 days of being informed of the decision. If the ACA affirms its decision, the applicant may apply to the Administrative Appeals Tribunal for review ( Clause 546).
Part 34 - Special Provisions Relating to the ACA's Telecommunications Functions and Powers
The ACA must have regard to Australia's obligations under any international convention of which the Minister has notified the ACA in writing. See Part 20 as a related Part.
The ACA may give directions to carriers and service providers in connection with the ACA's performance of its telecommunications functions and the exercise of its telecommunications powers.
Part 35 - Miscellaneous
This Part deals with a number of minor matters. The only matter worthy of mention is the Governor- General's regulation making power contained in Clause 577.
Schedule 1 - Standard Carrier Licence Conditions
Industry Development Plans
A carrier must have a current industry development plan. That plan must be given to the Minister for Industry, Science and Tourism ( Item 4). The industry development plan is a plan for the development in Australia, in connection with the carrier's business as a carrier, of industries involved in the manufacture, development or supply of facilities and research and development relating to those industries.
The plan must include relevant details of the carrier's strategic commercial relationships, research and development activities, involvement in industry and export facilitation plans ( Item 6).
A summary of the plan must be made available to the public ( Item 8).
Within 90 days of the end of each financial year, the carrier must give the Industry Minister a report setting out the details of progress made by the carrier in implementing the plan during that year and make a summary of that report available to the public ( Item 12).
Access to Supplementary Facilities
The provisions of Part 3 of Schedule 1 include a re- enactment of Clause 6 of each of Telecommunications (General Telecommunication Licence) Declaration (No.1) of 1991 and Telecommunications (Public Mobile Licences) Declaration (No.1) of 1991.
The new Part specifically provides that the terms and condition of access to facilities are as agreed between the carrier or failing agreement, as determined by an arbitrator ( Item 15). Item 16 empowers the Minister to make determinations setting out principles dealing with price- related terms and conditions in respect of the access obligations.
Access to Network Information
The provisions of Part 3 of Schedule 1 include a re- enactment of Clause 5 of each of Telecommunications (General Telecommunication Licence) Declaration (No.1) of 1991 and Telecommunications (Public Mobile Licences) Declaration (No.1) of 1991.
If a carrier supplies carriage services to another carrier the first carrier must supply certain information to the second carrier. That information includes ( Items 18 to 22):
. information about the first carrier's operations support systems;
. traffic flow information;
. information that is contained in the first carrier's databases;
. information relating to the manner in which the first carrier's telecommunications network treats calls of a particular kind;
. timely and detailed telecommunications network planning information sufficient to enable the second carrier to undertake planning for the second carrier's own telecommunications network;
. timely and detailed information relating to likely changes to facilities on a telecommunication network of the first carrier;
Access to Telecommunications Transmission Towers and to Underground Facilities
A carrier who:
. owns or operates a transmission tower; or
. owns, occupies or controls a site on which a telecommunications transmission tower is situate; or
. owns or operates an underground facility used to hold communication lines,
must give other carriers access to those facilities where:
. the access is provided for the sole purpose of enabling the second carrier to install a facility used, or for use, in connection with the supply of a carriage service; and
. that other carrier gives reasonable notice that it requires access ( Items 29 to 31).
The first carrier must provide access on the terms and conditions agreed or failing agreement as determined by an arbitrator.
Inspection of Facilities
. keep records of the kind and location of facilities and their capacity to hold extra lines;
. regularly inspect their facilities;
. promptly investigate facilities if the carrier has reasonable grounds to suspect the condition of the facility is likely to endanger health or safety of persons or property;
. take remedial action that is reasonably required following an investigation.
Schedule 2 - Standard Service Provider Rules
This Schedule deals with the services which must be provided as a part of the provision of a standard telephone service.
Those services are:
. Directory assistance - which are services that are provided to an end- user of a standard telephone service to help the end- user find the number of another end- user of standard telephone service and are provided by an operator or by means of an automated voice response system;
. Itemised billing - this does not include local calls ( Item 13).
Where a carriage service provider provides a carriage service to an end- user and the end- user has a public number, the carriage service provider must give Telstra such information that Telstra reasonably requires to fulfil its obligation to maintain an integrated public number database ( Item 10).
Schedule 3 - Carriers Powers and Immunities
Division 2 - Inspection of Land
For the purpose of determining whether any land is suitable for its purposes, a carrier may enter on and inspect the land ( Item 4).
Divisions 3 - Installation of Facilities
For purposes connected with the supply of carriage services, a carrrier may install a facility if:
. the carrier is authorised to do so by a facility installation permit (see below)
. the facility is a low- impact facility (as determined by the Minister)
. the facility is a temporary facility for use by a defence organisationfor defence purposes, or
. the installation occurs before 1 July 2000 and is carried out for the sole purpose of connecting a building to a network which was in existence on 30 June 1997 ( Item 5).
Division 4 - Maintenance of Facilities
A carrier may, at any time, maintain a facility. For the purpose of maintaining a facility a carrier may enter onto and occupy land ( Item 6).
Divison 5 - Conditions Relating to the Carrying Out of Authorised Activities
A carrier is obliged to cause as little detriment and inconvenience and do as little damage as practicable when engaging in an activity under Division 2, 3 or 4, i.e. inspecting land, installing a facility and maintaining a facility ( Item 7).
Divison 6 - Facility Installation Permits
A carrier may apply to the ACA for a permit authorising the carrier to carry out the installation of one or more facilities. The permit is called a facility installation permit.
The ACA must not issue a facility installation permit unless the carrier satisfies the ACA that:
. the carrier has made reasonable efforts to negotiate in good faith with each proprietor whose approval is required for carrying out the installation and at least one of those approvals has not been obtained within 20 business days after beginning the negotiations, and
. where none of the facilities consists of a designated overhead line - the carrier has made reasonable efforts to negotiate in good faith with each administrative authority whose approval is required for carrying out the installation and at least one of those approvals has not been obtained within 6 months after beginning the negotiations, and
. where any of the facilities consists of a designated overhead line - each administrative authority whose approval is required has given that approval, and
. the telecommunications network to which the facilities relate is of national significance, and
. the facilities are an important part of the telecommunications network to which the facilities relate, and
. either the greater part of the infrastructure of the telecommunications network to which the facility relates has already been installed or relevant administrative authorities are reasonably likely to approve the installation of the greater part of the infrastructure of the telcommunications network to which the facility relates, and
. the advantages likely to be derived from the operation of the facilities outweigh any form of degradation of the environmental amenity that is likely to result from the installation of the facilities (there are matters to be considered when determining whether this is so).
Division 7 - Exemption from State and Territory Laws
Carriers are not authorised, by Schedule 3, to engage in activities to the extent that the carrying out of the activity would be inconsistent with the provisions of a law of a State or Territory.
However, carriers may engage in an activity despite a law of a State or Territory about:
. the assessment of the environmental effects of engaging in the activity
. the protection of places or items of significance to Australia's natural or cultural heritage
. town planning
. the planning, design, siting, construction, alteration or removal of a structure
. the powers and functions of a local government body
. the use of land;
. the supply of fuel or power.
Division 8 - Miscellaneous
Carriers are obliged to pay reasonable compensation to any person who suffers loss or damage because of anything done under Division 2, 3 or 4.
Schedule 4 - Reviewable Decisions of the ACA
See Part 29.
1. A detailed discussion of policy development in telecommunications can be found in R. Joseph, 'The Redefinition of Australian Telecomunications Policy: An Historical Overview', Telecommunication Journal of Australia, Vol.46, No.2 (1996), pp.51-63.
2. 'Telstra fears dominant players', exchange, 25 October 1996, p.7
3. 'Government legislates monopolies', Australasian Superhighways, November 1996, pp.171-2. See also "Telco rules could bar new players', Financial Review, 31 October 1996, p.1.
4. 'Privatisation or competition', Telecommunications, November 1996, p.198
5. 'Draft legislation incomplete and flawed', exchange, 11 October 1996, p.21
7. Holly Raiche,'Looking after the public', Communications Update, October 1996, pp.8-9.
9. 'Key players condemn access regime', Financial Review, 4 December 1996.
10. 'Heat on Canberra rises over telecom law reform', Financial Review, 1 November 1997.