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Telecommunications (Consumer Protection and Service Standards) Bill 1998

Part 2 Universal Service Regime

Division 1 Introduction

8   Simplified outline

                   The following is a simplified outline of this Part:

•    This Part establishes a universal service regime.

•    The main object of the universal service regime is to ensure that all people in Australia, wherever they reside or carry on business, should have reasonable access, on an equitable basis, to:

               (a)     standard telephone services; and

               (b)     payphones; and

               (c)     prescribed carriage services; and

               (d)     digital data services.

•      The key elements of the universal service regime are as follows:

               (a)     the specification of the universal service obligation and the digital data service obligation;

               (b)     the declaration of universal service providers and digital data service providers;

               (c)     the carrying out of universal service plans and digital data service plans;

               (d)     the regulation of universal service charges and digital data service charges;

               (e)     the assessment, collection, recovery and distribution of the levy imposed by the Telecommunications (Universal Service Levy) Act 1997 .

9   Objects

                   The objects of this Part are to give effect to the following policy principles:

                     (a)  all people in Australia, wherever they reside or carry on business, should have reasonable access, on an equitable basis, to:

                              (i)  standard telephone services; and

                             (ii)  payphones; and

                            (iii)  prescribed carriage services; and

                            (iv)  digital data services;

                     (b)  the universal service obligation described in section 19 should be fulfilled as efficiently and economically as practicable;

                    (ba)  the digital data service obligation described in section 19A should be fulfilled as efficiently and economically as practicable;

                     (c)  the losses that result from supplying loss-making services in the course of fulfilling the universal service obligation should be shared among carriers;

                     (d)  information on the basis of which, and the methods by which, those losses and those carriers’ respective shares in those losses are to be determined should be open to scrutiny by:

                              (i)  those carriers; and

                             (ii)  the public;

                            to the greatest extent possible without undue damage to a carrier’s interests being caused by the disclosure of confidential commercial information;

                     (e)  certain costs associated with fulfilling the digital data service obligation should be shared among carriers.

10   Special meaning of Australia

             (1)  A reference in this Part to Australia includes a reference to:

                     (a)  the Territory of Christmas Island; and

                     (b)  the Territory of Cocos (Keeling) Islands; and

                     (c)  an external Territory specified in the regulations.

             (2)  The definition of Australia in section 7 of the Telecommunications Act 1997 does not apply to this Part.

11   Payphones

                   For the purposes of this Part, a payphone is a fixed telephone that:

                     (a)  is a means by which a standard telephone service is supplied; and

                     (b)  when in normal working order, cannot be used to make a telephone call (other than a free call or a call made with operator assistance) unless, as payment for the call, or to enable payment for the call to be collected:

                              (i)  money, or a token, card or other object, has been put into a device that forms part of, is attached to, or is located near, the telephone; or

                             (ii)  an identification number, or a code or other information (in numerical or any other form) has been input into a device that forms part of, is attached to, or is located near, the telephone; or

                            (iii)  a prescribed act has been done.

12   Prescribed carriage services

                   For the purposes of this Part, a prescribed carriage service is a carriage service specified in the regulations.

12A   Digital data services

             (1)  For the purposes of this Act, a digital data service is:

                     (a)  a general digital data service (see subsection (2)); or

                     (b)  a special digital data service (see subsection (3)).

General digital data service

             (2)  For the purposes of this Act, a general digital data service is a carriage service that provides a digital data capability broadly comparable to that provided by a data channel with a data transmission speed of 64 kilobits per second supplied to end-users as part of the designated basic rate ISDN service.

Special digital data service

             (3)  For the purposes of this Act, a special digital data service is a carriage service that provides for a capability for the delivery of digital data to an end-user broadly comparable to the corresponding capability provided by a data channel with a data transmission speed of 64 kilobits per second supplied to end-users as part of the designated basic rate ISDN service.

Designated basic rate ISDN service

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

                     (a)  immediately before 1 July 1997, Telstra supplied a basic rate Integrated Services Digital Network (ISDN) service; and

                     (b)  the service complied with any of the standards for ISDN services made by the European Telecommunications Standards Institute (ETSI);

the service is a designated basic rate ISDN service .

Comparability of digital data capability

             (5)  For the purposes of subsection (2), the determination of the comparability of the digital data capability of a carriage service is to be based solely on a comparison of the data transmission speed available to an end-user of the service.

13   Supply of standard telephone services

             (1)  A reference in this Part to the supply of a standard telephone service includes a reference to the supply of:

                     (a)  if the regulations prescribe customer equipment for the purposes of this paragraph—whichever of the following is applicable:

                              (i)  that customer equipment;

                             (ii)  if other customer equipment is supplied, instead of the first-mentioned customer equipment, in order to comply with the Disability Discrimination Act 1992 —that other customer equipment; and

                     (b)  if paragraph (a) does not apply—whichever of the following is applicable:

                              (i)  a telephone handset that does not have switching functions;

                             (ii)  if other customer equipment is supplied, instead of such a handset, in order to comply with the Disability Discrimination Act 1992 —that other customer equipment; and

                     (c)  other goods of a kind specified in the regulations; and

                     (d)  services of a kind specified in the regulations;

where the equipment, goods or services, as the case may be, are for use in connection with the standard telephone service.

             (2)  A reference in this Part to the supply of a standard telephone service includes a reference to the supply, to a person with a disability, of:

                     (a)  customer equipment of a kind specified in the regulations; and

                     (b)  other goods of a kind specified in the regulations; and

                     (c)  services of a kind specified in the regulations;

where the equipment, goods or services, as the case may be, are for use in connection with the standard telephone service.

             (3)  In this section:

disability has the same meaning as in the Disability Discrimination Act 1992 .

14   Supply of prescribed carriage services

                   A reference in this Part to the supply of a prescribed carriage service includes a reference to the supply of:

                     (a)  customer equipment of a kind specified in the regulations; and

                     (b)  other goods of a kind specified in the regulations; and

                     (c)  services of a kind specified in the regulations;

where the equipment, goods or services, as the case may be, are for use in connection with the prescribed carriage service.

14A   Supply of digital data services

General digital data service

             (1)  A reference in this Part to the supply of a general digital data service includes a reference to the supply of:

                     (a)  customer equipment of a kind specified in the regulations; and

                     (b)  other goods of a kind specified in the regulations; and

                     (c)  services of a kind specified in the regulations;

where:

                     (d)  the equipment, goods or services, as the case may be, are for use in connection with the general digital data service; and

                     (e)  the supply complies with such requirements, restrictions or conditions (if any) as are specified in the regulations.

             (2)  Regulations made for the purposes of paragraph (1)(e) may require that the supply of a specified kind of customer equipment is to be by way of hire. If those regulations impose such a requirement, this Part has effect, in relation to the customer equipment concerned, as if a reference to supply were a reference to supply by way of hire.

             (3)  Regulations made for the purposes of paragraph (1)(e) may require that specified customer equipment is to be supplied on the basis that the customer concerned enters into a legally enforceable agreement containing such terms and conditions relating to the ownership, possession, location, disposal or use of the equipment, as are specified in, or ascertained in accordance with, the regulations.

             (4)  Subsections (2) and (3) do not, by implication, limit paragraph (1)(e).

Special digital data service

             (5)  A reference in this Part to the supply of a special digital data service includes a reference to the supply of:

                     (a)  customer equipment of a kind specified in the regulations; and

                     (b)  other goods of a kind specified in the regulations; and

                     (c)  services of a kind specified in the regulations;

where:

                     (d)  the equipment, goods or services, as the case may be, are for use in connection with the special digital data service; and

                     (e)  the supply complies with such requirements, restrictions or conditions (if any) as are specified in the regulations.

             (6)  Regulations made for the purposes of paragraph (5)(e) may require that the supply of a specified kind of customer equipment is to be by way of hire. If those regulations impose such a requirement, this Part has effect, in relation to the customer equipment concerned, as if a reference to supply were a reference to supply by way of hire.

             (7)  Regulations made for the purposes of paragraph (5)(e) may require that specified customer equipment is to be supplied on the basis that the customer concerned enters into a legally enforceable agreement containing such terms and conditions relating to the ownership, possession, location, disposal or use of the equipment, as are specified in, or ascertained in accordance with, the regulations.

             (8)  Subsections (6) and (7) do not, by implication, limit paragraph (5)(e).

15   Service area

                   For the purposes of this Part, a service area is:

                     (a)  a geographical area within Australia; or

                     (b)  any area of land; or

                     (c)  any premises or part of premises;

regardless of size.

16   Participating carriers

             (1)  For the purposes of this Part, a person is a participating carrier in relation to a financial year if the person was a carrier at any time during the financial year.

             (2)  This section does not apply to a person if the person is of a kind declared by the regulations to be exempt from this section.

17   Eligible revenue

                   For the purposes of this Part, the eligible revenue of a participating carrier for a financial year is the amount that, under the regulations, is taken to be the eligible revenue of the carrier for the financial year.

18   Approved auditor

             (1)  A reference in this Part to an approved auditor is a reference to a person included in a class of persons specified in a written determination made by the ACA for the purposes of this section.

             (2)  A copy of a determination under subsection (1) is to be published in the Gazette .



 

Division 2 Universal service obligation

19   Universal service obligation

             (1)  For the purposes of this Act, the universal service obligation is the obligation:

                     (a)  to ensure that standard telephone services are reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and

                     (b)  to ensure that payphones are reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and

                     (c)  to ensure that prescribed carriage services are reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business.

             (2)  To the extent necessary to achieve the obligation mentioned in subsection (1), it is part of the universal service obligation:

                     (a)  to supply standard telephone services to people in Australia on request; and

                     (b)  to supply, install and maintain payphones in Australia; and

                     (c)  to supply prescribed carriage services to people in Australia on request.

             (3)  The Minister may make a written determination that it is part of the universal service obligation to supply, install and maintain payphones at specified locations in Australia. The determination has effect accordingly.

             (4)  A copy of a determination under subsection (3) must be published in the Gazette .

             (5)  The regulations may prescribe, for the purpose of paragraph (1)(b), what is, or is not, necessary to ensure that payphones are reasonably accessible as mentioned in that paragraph, including:

                     (a)  criteria for determining the locations of payphones; and

                     (b)  the process for public consultation on the location of payphones; and

                     (c)  the process for resolution of any complaints about the location of payphones.

             (6)  Subsection (3) does not limit the generality of subsection (5).

             (7)  Subsection (5) does not limit the generality of subsection (3).

             (8)  An obligation does not arise under paragraph (2)(a) in relation to particular equipment, goods or services the supply of which is treated under section 13 as the supply of a standard telephone service if the customer concerned requests not to be supplied with the equipment, goods or services.

             (9)  An obligation does not arise under paragraph (2)(c) in relation to particular equipment, goods or services the supply of which is treated under section 14 as the supply of a prescribed carriage service if the customer concerned requests not to be supplied with the equipment, goods or services.

           (10)  To avoid doubt, an obligation arising under paragraph (2)(a) in relation to customer equipment requires the customer concerned to be given the option of hiring the equipment.



 

Division 2A Digital data service obligation

19A   Digital data service obligation

             (1)  For the purposes of this Act, the digital data service obligation is the obligation:

                     (a)  to ensure that one or other of the following:

                              (i)  general digital data services;

                             (ii)  special digital data services;

                            are reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and

                     (b)  to ensure that general digital data services are reasonably accessible to at least 96% of the Australian population on an equitable basis; and

                     (c)  to ensure that special digital data services are reasonably accessible to the remainder of the Australian population on an equitable basis.

General digital data service obligation

             (2)  For the purposes of this Act, the general digital data service obligation is the obligation to ensure that general digital data services are reasonably accessible to all people in general digital data service areas on an equitable basis.

             (3)  To the extent necessary to achieve the general digital data service obligation, it is part of that obligation to supply general digital data services to people in general digital data service areas on request.

Special digital data service obligation

             (4)  For the purposes of this Act, the special digital data service obligation is the obligation to ensure that special digital data services are reasonably accessible to all people in special digital data service areas on an equitable basis.

             (5)  To the extent necessary to achieve the special digital data service obligation, it is part of that obligation to supply special digital data services to people in special digital data service areas on request.

Supply of customer equipment or other goods or services

             (6)  An obligation does not arise under subsection (3) in relation to particular equipment, goods or services the supply of which is treated under subsection 14A(1) as the supply of a general digital data service if the customer concerned requests not to be supplied with the equipment, goods or services.

             (7)  An obligation does not arise under subsection (5) in relation to particular equipment, goods or services the supply of which is treated under subsection 14A(5) as the supply of a special digital data service if the customer concerned requests not to be supplied with the equipment, goods or services.

Rebate system

             (8)  The regulations may provide that:

                     (a)  an obligation that arises under subsection (3) in relation to particular customer equipment the supply of which is treated under subsection 14A(1) as the supply of a general digital data service; or

                     (b)  an obligation that arises under subsection (5) in relation to particular customer equipment the supply of which is treated under subsection 14A(5) as the supply of a special digital data service;

is taken to have been fulfilled by a person (in so far as the obligation relates to a particular customer) if:

                     (c)  the customer acquires or hires the equipment from a third person; and

                     (d)  the customer is entitled to a rebate from the first-mentioned person in respect of that acquisition or hire; and

                     (e)  the amount of the rebate is equal to the amount ascertained in accordance with the regulations; and

                      (f)  the liability to pay the rebate has been discharged; and

                     (g)  the entitlement to the rebate complies with such requirements, restrictions and conditions (if any) as are specified in the regulations.

             (9)  Regulations made for the purposes of paragraph (8)(g) may require that the customer be given the option of assigning the customer’s right to the rebate to the third person.

           (10)  Subsection (9) does not, by implication, limit subsection (8).

19B   General digital data service areas

             (1)  The Minister may make a written determination that a service area ascertained in accordance with the determination is a general digital data service area for the purposes of this Act. The determination has effect accordingly.

             (2)  A copy of a determination under subsection (1) must be published in the Gazette .

             (3)  The Minister must exercise the powers conferred by this section in a manner that is consistent with the fulfilment of the digital data service obligation.

19C   Special digital data service areas

             (1)  The Minister may make a written determination that a service area ascertained in accordance with the determination is a special digital data service area for the purposes of this Act. The determination has effect accordingly.

             (2)  A copy of a determination under subsection (1) must be published in the Gazette .

             (3)  The Minister must exercise the powers conferred by this section in a manner that is consistent with the fulfilment of the digital data service obligation.



 

Division 3 Universal service providers

20   Universal service providers

             (1)  The Minister may make a written declaration stating that a specified carrier is the national universal service provider .

Note:          If a selection system has been determined under section 22, a declaration under this subsection must be consistent with the system.

             (2)  The Minister may make a written declaration stating that a specified carrier is the regional universal service provider for a specified service area.

Note:          If a selection system has been determined under section 23, a declaration under this subsection must be consistent with the system.

             (3)  A declaration under subsection (1) or (2) has effect accordingly.

             (4)  The Minister must exercise his or her powers under this section in such a way that:

                     (a)  at any particular time, there is not more than one declaration in force under subsection (1); and

                     (b)  no service area in relation to which a declaration is in force under subsection (2) overlaps (either wholly or in part) with another service area.

             (5)  A declaration under this section:

                     (a)  takes effect at the start of the next financial year after the one in which it is made; and

                     (b)  if it specifies a financial year at whose end it ceases to have effect—ceases to have effect at the end of that financial year, unless sooner revoked.

This subsection has effect subject to subsections (7), (8) and (9).

             (6)  A revocation of a declaration under this section takes effect:

                     (a)  if it specifies a financial year at whose end it is to take effect—at the end of that financial year; or

                     (b)  otherwise—at the end of the financial year in which it is made.

This subsection has effect subject to subsections (7) and (8).

             (7)  If:

                     (a)  a declaration (the original declaration ) is in force under subsection (1) in relation to a particular carrier; and

                     (b)  a fresh declaration is made under subsection (1); and

                     (c)  the fresh declaration is expressed to replace the original declaration with effect from a specified time; and

                     (d)  the fresh declaration specifies another carrier;

then:

                     (e)  the fresh declaration takes effect at that time; and

                      (f)  the original declaration ceases to have effect at that time.

             (8)  If:

                     (a)  a declaration (the original declaration ) is in force under subsection (2) in relation to a particular carrier and in relation to a particular service area; and

                     (b)  a fresh declaration is made under subsection (2); and

                     (c)  the fresh declaration is expressed to replace the original declaration with effect from a specified time; and

                     (d)  the fresh declaration specifies another carrier; and

                     (e)  the service area specified in the fresh declaration is the same as the service area specified in the original declaration;

then:

                      (f)  the fresh declaration takes effect at that time; and

                     (g)  the original declaration ceases to have effect at that time.

             (9)  If:

                     (a)  a declaration is in force under subsection (2) in relation to a particular carrier; and

                     (b)  at a particular time, the carrier ceases to hold a carrier licence;

the declaration ceases to be in force at that time.

           (10)  A declaration under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

           (11)  A reference in this section to a carrier does not include a reference to a person of a kind declared by the regulations to be exempt from section 16.

21   Effect of universal service provider declaration

             (1)  The national universal service provider is the universal service provider:

                     (a)  for Australia, except each service area in relation to which a declaration is in force under subsection 20(2); and

                     (b)  for so much of any service area as is not within such an area.

             (2)  A regional universal service provider in relation to a particular service area is the universal service provider:

                     (a)  for that area; and

                     (b)  for each service area that is within that area.

Note:          If, at a particular time during a financial year, a carrier ceases to be the regional universal service provider for a particular service area and is not replaced as the regional universal service provider for that area by another carrier, the national universal service provider automatically becomes the universal service provider for that area.

             (3)  For the purposes of this Part, a person in relation to whom a declaration is in force under subsection 20(1) or (2) at any time during a financial year is a universal service provider in relation to the financial year.

             (4)  For the purposes of this Part, the areas for which a person is a universal service provider are taken to be a single area.

             (5)  The universal service provider for an area must take all reasonable steps to fulfil the universal service obligation, so far as the obligation relates to that area.

22   Selection system for national universal service provider

             (1)  The Minister may, by written instrument, determine a selection system for the purpose of selecting a carrier to be the national universal service provider in relation to specified financial years.

             (2)  A system so determined must require the selected carrier to have elected that:

                     (a)  an amount specified in the election will be the carrier’s net universal service cost for the financial year concerned; or

                     (b)  a method of ascertaining an amount, being a method specified in the election, will apply for the purposes of determining the carrier’s net universal service cost for the financial year concerned.

             (3)  A system so determined may require an applicant for selection to give the Minister a copy of the document that the applicant would be required to give to the Minister under section 27 in the event that the applicant is successful. This subsection does not, by implication, limit subsection (1).

             (4)  If a system has been determined under this section, the Minister must not exercise the powers conferred by subsection 20(1) in a way that is inconsistent with the system.

             (5)  This Part does not prevent a method mentioned in paragraph (2)(b) from being the same as a method that would have applied if the system concerned had not been determined.

             (6)  A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

23   Selection system for regional universal service providers

             (1)  The Minister may, by written instrument, determine a selection system for the purpose of selecting carriers to be regional universal service providers for specified service areas in relation to specified financial years.

             (2)  A system so determined must require the selected carrier to have elected that:

                     (a)  an amount specified in the election will be the carrier’s net universal service cost for the financial year concerned; or

                     (b)  a method of ascertaining an amount, being a method specified in the election, will apply for the purposes of determining the carrier’s net universal service cost for the financial year concerned.

             (3)  A system so determined may require an applicant for selection to give the Minister a copy of the document that the applicant would be required to give to the Minister under section 27 in the event that the applicant is successful. This subsection does not, by implication, limit subsection (1).

             (4)  If a system has been determined under this section, the Minister must not exercise the powers conferred by subsection 20(2) in a way that is inconsistent with the system.

             (5)  This Part does not prevent a method mentioned in paragraph (2)(b) from being the same as a method that would have applied if the system concerned had not been determined.

             (6)  A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

24   Selection systems—information-gathering powers

             (1)  If the Minister has reason to believe that a carrier or carriage service provider has information that is relevant to:

                     (a)  the exercise of the powers conferred on the Minister by subsection 22(1) or 23(1); or

                     (b)  the administration of a system determined under subsection 22(1) or 23(1);

the Minister may, by written notice given to the carrier or provider, require the carrier or provider to give to the Minister, within the period and in the manner and form specified in the notice, any such information.

             (2)  A carrier or carriage service provider must comply with a requirement under subsection (1).

25   Multiple national universal service providers

             (1)  The regulations may authorise the Minister to declare that 2 or more carriers are to be national universal service providers.

             (2)  The regulations may also authorise the Minister to declare that this Act has effect, in relation to any such declared provider, as if the universal service obligation applicable to the provider were limited as set out in the declaration. However, declarations may only be made in accordance with this subsection for the purpose of dividing the universal service obligation between 2 or more declared providers.

             (3)  A declaration made in accordance with this section has effect accordingly.

             (4)  The regulations may provide that this Part applies in relation to any such declared providers subject to such modifications as are specified in the regulations.

             (5)  In this section:

modifications includes additions, omissions and substitutions.

26   Multiple regional universal service providers

             (1)  The regulations may authorise the Minister to declare that 2 or more carriers are to be regional universal service providers for the same service area.

             (2)  The regulations may also authorise the Minister to declare that this Act has effect, in relation to any such declared provider, as if the universal service obligation applicable to the provider were limited as set out in the declaration. However, declarations may only be made in accordance with this subsection for the purpose of dividing the universal service obligation between 2 or more declared providers.

             (3)  A declaration made in accordance with this section has effect accordingly.

             (4)  The regulations may provide that this Part applies in relation to any such declared providers subject to such modifications as are specified in the regulations.

             (5)  In this section:

modifications includes additions, omissions and substitutions.



 

Division 3A Digital data service providers

26A   Digital data service providers

             (1)  The Minister may make a written declaration stating that a specified carrier is a general digital data service provider for a specified general digital data service area.

Note:          If a selection system has been determined under section 26C, a declaration under this subsection must be consistent with the system.

             (2)  The Minister may make a written declaration stating that a specified carrier is a special digital data service provider for a specified special digital data service area.

Note:          If a selection system has been determined under section 26D, a declaration under this subsection must be consistent with the system.

             (3)  A declaration under subsection (1) or (2) has effect accordingly.

             (4)  A declaration under this section:

                     (a)  takes effect:

                              (i)  if the declaration is the first declaration under subsection (1) or (2), as the case may be—on the date specified in the declaration; or

                             (ii)  in any other case—at the start of the next financial year after the one in which it is made; and

                     (b)  if it specifies a financial year at whose end it ceases to have effect—ceases to have effect at the end of that financial year, unless sooner revoked.

This subsection has effect subject to subsections (6), (7) and (8).

             (5)  A revocation of a declaration under this section takes effect:

                     (a)  if it specifies a financial year at whose end it is to take effect—at the end of that financial year; or

                     (b)  otherwise—at the end of the financial year in which it is made.

This subsection has effect subject to subsections (6) and (7).

             (6)  If:

                     (a)  a declaration (the original declaration ) is in force under subsection (1) in relation to a particular carrier; and

                     (b)  a fresh declaration is made under subsection (1); and

                     (c)  the fresh declaration is expressed to replace the original declaration with effect from a specified time; and

                     (d)  the fresh declaration specifies another carrier; and

                     (e)  the service area specified in the fresh declaration is the same as the service area specified in the original declaration;

then:

                      (f)  the fresh declaration takes effect at that time; and

                     (g)  the original declaration ceases to have effect at that time.

             (7)  If:

                     (a)  a declaration (the original declaration ) is in force under subsection (2) in relation to a particular carrier and in relation to a particular service area; and

                     (b)  a fresh declaration is made under subsection (2); and

                     (c)  the fresh declaration is expressed to replace the original declaration with effect from a specified time; and

                     (d)  the fresh declaration specifies another carrier; and

                     (e)  the service area specified in the fresh declaration is the same as the service area specified in the original declaration;

then:

                      (f)  the fresh declaration takes effect at that time; and

                     (g)  the original declaration ceases to have effect at that time.

             (8)  If:

                     (a)  a declaration is in force under subsection (1) or (2) in relation to a particular carrier; and

                     (b)  at a particular time, the carrier ceases to hold a carrier licence;

the declaration ceases to be in force at that time.

             (9)  A declaration under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

           (10)  A reference in this section to a carrier does not include a reference to a person of a kind declared by the regulations to be exempt from section 16.

26B   Effect of digital data service provider declaration

             (1)  A digital data service provider in relation to a particular service area is a digital data service provider:

                     (a)  for that area; and

                     (b)  for each service area that is within that area.

             (2)  For the purposes of this Part, a person in relation to whom a declaration is in force under subsection 26A(1) or (2) at any time during a financial year is a digital data service provider in relation to the financial year.

             (3)  For the purposes of this Part, the areas for which a person is a digital data service provider are taken to be a single area.

             (4)  A general digital data service provider for a general digital data service area must take all reasonable steps to fulfil the general digital data service obligation, so far as the obligation relates to that area.

             (5)  A special digital data service provider for a special digital data service area must take all reasonable steps to fulfil the special digital data service obligation, so far as the obligation relates to that area.

26C   Selection system for general digital data service providers

             (1)  The Minister may, by written instrument, determine a selection system for the purpose of selecting carriers to be general digital data service providers for specified general digital data service areas in relation to specified financial years.

             (2)  A system so determined must require the selected carrier to have elected that:

                     (a)  an amount specified in the election will be the carrier’s digital data cost for the financial year concerned; or

                     (b)  a method of ascertaining an amount, being a method specified in the election, will apply for the purposes of determining the carrier’s digital data cost for the financial year concerned.

             (3)  A system so determined may require an applicant for selection to give the Minister a copy of the document that the applicant would be required to give to the Minister under section 40A in the event that the applicant is successful. This subsection does not, by implication, limit subsection (1).

             (4)  If a system has been determined under this section, the Minister must not exercise the powers conferred by subsection 26A(1) in a way that is inconsistent with the system.

             (5)  This Part does not prevent a method mentioned in paragraph (2)(b) from being the same as a method that would have applied if the system concerned had not been determined.

             (6)  A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

26D   Selection system for special digital data service providers

             (1)  The Minister may, by written instrument, determine a selection system for the purpose of selecting carriers to be special digital data service providers for specified special digital data service areas in relation to specified financial years.

             (2)  A system so determined must require the selected carrier to have elected that:

                     (a)  an amount specified in the election will be the carrier’s digital data cost for the financial year concerned; or

                     (b)  a method of ascertaining an amount, being a method specified in the election, will apply for the purposes of determining the carrier’s digital data cost for the financial year concerned.

             (3)  A system so determined may require an applicant for selection to give the Minister a copy of the document that the applicant would be required to give to the Minister under section 40A in the event that the applicant is successful. This subsection does not, by implication, limit subsection (1).

             (4)  If a system has been determined under this section, the Minister must not exercise the powers conferred by subsection 26A(2) in a way that is inconsistent with the system.

             (5)  This Part does not prevent a method mentioned in paragraph (2)(b) from being the same as a method that would have applied if the system concerned had not been determined.

             (6)  A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

26E   Selection systems—information-gathering powers

             (1)  If the Minister has reason to believe that a carrier or carriage service provider has information that is relevant to:

                     (a)  the exercise of the powers conferred on the Minister by subsection 26C(1) or 26D(1); or

                     (b)  the administration of a system determined under subsection 26C(1) or 26D(1);

the Minister may, by written notice given to the carrier or provider, require the carrier or provider to give to the Minister, within the period and in the manner and form specified in the notice, any such information.

             (2)  A carrier or carriage service provider must comply with a requirement under subsection (1).



 

Division 4 Universal service plans

27   Universal service provider must submit universal service plan

             (1)  A universal service provider for a particular area must give the Minister a draft universal service plan for that area.

             (2)  The provider must give the Minister the plan within 90 days after the provider became the universal service provider for that area.

28   Universal service plans

                   A draft or approved universal service plan for an area is a plan that sets out how the universal service provider for that area will progressively fulfil the universal service obligation (in so far as the obligation relates to that area).

Note:          An approved universal service plan is a draft universal service plan that has been approved by the Minister.

29   Replacement of approved universal service plan

                   If an approved universal service plan (the original plan ) for an area is in force, a draft universal service plan for the area may be expressed to replace the original plan. When the draft plan becomes an approved universal service plan, the original plan ceases to be in force.

30  Approval of draft universal service plan by Minister

             (1)  If a universal service provider gives the Minister a draft universal service plan, the Minister must:

                     (a)  approve the draft plan; or

                     (b)  refuse to approve the draft plan.

             (2)  If the Minister approves the draft plan, the draft plan becomes an approved universal service plan.

             (3)  If the Minister refuses to approve the draft plan, the Minister may, by written notice given to the provider, direct the provider to give the Minister, within the period and in the terms specified in the direction, a fresh draft universal service plan for the area concerned. The provider must comply with the direction.

31   Public comment—draft plan

             (1)  Before giving the Minister a draft universal service plan under section 30, a universal service provider must:

                     (a)  publish a preliminary version of the draft plan and invite members of the public to make submissions to the provider about the preliminary version within a specified period; and

                     (b)  give consideration to any submissions received from members of the public within that period.

             (2)  The period specified in the invitation must run for at least 30 days.

             (3)  This section does not apply to a draft plan given to the Minister in accordance with a direction under subsection 30(3).

             (4)  This section does not apply to a draft plan given to the Minister in accordance with a notice under section 38.

32   Minister to have regard to certain matters

             (1)  In deciding whether to approve a draft universal service plan for an area, the Minister must have regard to whether:

                     (a)  the plan provides for the universal service obligation (in so far as it relates to that area) to be fulfilled:

                              (i)  as efficiently and economically as practicable; and

                             (ii)  at performance standards that reasonably meet the social, industrial and commercial needs of the Australian community; and

                            (iii)  progressively throughout that area within such period as the Minister considers reasonable; and

                     (b)  the draft plan complies with any requirements in force under section 33.

             (2)  Subsection (1) does not, by implication, limit the matters to which regard may be had.

33   Minister may formulate requirements for draft plans

             (1)  The Minister may, by writing, formulate requirements to be complied with by draft universal service plans.

             (2)  The following are examples of requirements:

                     (a)  timetables for the supply of services;

                     (b)  performance standards relating to the fulfilment of the universal service obligation;

                     (c)  the form of a draft universal service plan.

             (3)  An instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

34   Notification of decision

             (1)  After deciding whether to approve a draft universal service plan for an area, the Minister must give a written notice setting out the decision to:

                     (a)  the universal service provider for the area; and

                     (b)  the ACA.

             (2)  A copy of a notice under subsection (1) must be published in the Gazette .

             (3)  If the Minister refuses to approve a draft universal service plan for an area, the Minister must give a written notice setting out the reasons for the refusal to the universal service provider for the area.

35   Variation of approved universal service plan

             (1)  This section applies if:

                     (a)  an approved universal service plan for an area (the current plan ) is in force; and

                     (b)  the universal service provider for the area gives the Minister a draft variation of the plan.

             (2)  The Minister must:

                     (a)  approve the variation; or

                     (b)  refuse to approve the variation.

             (3)  The Minister must not approve the variation unless the Minister is satisfied that, if it were assumed that the universal service provider were to give the Minister a draft universal service plan in the same terms as the current plan (as proposed to be varied), the Minister would approve that draft plan.

             (4)  After deciding whether to approve the variation, the Minister must give a written notice setting out the decision to:

                     (a)  the universal service provider; and

                     (b)  the ACA.

             (5)  A copy of a notice under subsection (4) must be published in the Gazette .

             (6)  If the Minister refuses to approve the variation, the Minister must give a written notice setting out the reasons for the refusal to the universal service provider.

             (7)  If the Minister approves the variation, the current plan is varied accordingly.

36   Public comment—variation of plan

             (1)  Before giving the Minister a draft variation of a plan under section 35, a universal service provider must:

                     (a)  publish a preliminary version of the draft variation and invite members of the public to make submissions to the provider about the preliminary version within a specified period; and

                     (b)  give consideration to any submissions that were received from members of the public within that period.

             (2)  The period specified in the invitation must run for at least 30 days.

             (3)  This section does not apply to a draft variation given to the Minister in accordance with a notice under section 38.

37   Minister may direct the ACA to give reports and/or advice

             (1)  Before deciding whether to approve a draft universal service plan or a draft variation of an approved universal service plan, the Minister may direct the ACA to give the Minister such reports and/or advice as the Minister requires to assist in making the decision.

             (2)  The ACA must comply with the direction.

             (3)  This section does not, by implication, limit the Minister’s powers under section 486 of the Telecommunications Act 1997 (which deals with public inquiries).

38   Minister may direct variation or replacement of plan

             (1)  This section applies if an approved universal service plan (the current plan ) for an area is in force.

             (2)  The Minister may give the universal service provider for the area a written notice requiring the provider:

                     (a)  within the period and in the terms set out in the notice, to give the Minister a draft variation of the current plan; or

                     (b)  within the period and in the terms set out in the notice, to give the Minister a fresh draft universal service plan for the area that is expressed to replace the current plan.

             (3)  The provider must comply with the notice.

39   Compliance with approved universal service plan

                   If an approved universal service plan for an area is in force, the universal service provider for the area must take all reasonable steps to ensure that the plan is complied with.

40   Register of universal service plans

             (1)  The ACA is to maintain a Register in which the ACA includes all approved universal service plans currently in force.

             (2)  The Register may be maintained by electronic means.

             (3)  A person may, on payment of the charge (if any) fixed by a determination under section 53 of the Australian Communications Authority Act 1997 :

                     (a)  inspect the Register; and

                     (b)  make a copy of, or take extracts from, the Register.

             (4)  For the purposes of this section, if the Register is maintained by electronic means, a person is taken to have made a copy of, or taken an extract from, the Register if the ACA gives the person a printout of, or of the relevant parts of, the Register.

             (5)  If a person requests that a copy be provided in an electronic form, the ACA may provide the relevant information:

                     (a)  on a data processing device; or

                     (b)  by way of electronic transmission.



 

Division 4A Digital data service plans

40A   Digital data service provider must submit digital data service plan

             (1)  A digital data service provider for a particular area must give the Minister a draft digital data service plan for that area.

             (2)  The provider must give the Minister the plan within 90 days after the provider became a digital data service provider for that area.

40B   Digital data service plans

                   A draft or approved digital data service plan for an area is a plan that sets out how a digital data service provider for that area will progressively fulfil:

                     (a)  if that area is a general digital data service area—the general digital data service obligation (in so far as the obligation relates to that area); or

                     (b)  if that area is a special digital data service area—the special digital data service obligation (in so far as the obligation relates to that area).

Note:          An approved digital data service plan is a draft digital data service plan that has been approved by the Minister.

40C   Replacement of approved digital data service plan

                   If an approved digital data service plan (the original plan ) for an area is in force, a draft digital data service plan for the area may be expressed to replace the original plan. When the draft plan becomes an approved digital data service plan, the original plan ceases to be in force.

40D   Approval of draft digital data service plan by Minister

             (1)  If a digital data service provider gives the Minister a draft digital data service plan, the Minister must:

                     (a)  approve the draft plan; or

                     (b)  refuse to approve the draft plan.

             (2)  If the Minister approves the draft plan, the draft plan becomes an approved digital data service plan.

             (3)  If the Minister refuses to approve the draft plan, the Minister may, by written notice given to the provider, direct the provider to give the Minister, within the period and in the terms specified in the direction, a fresh draft digital data service plan for the area concerned. The provider must comply with the direction.

40E   Public comment—draft plan

             (1)  Before giving the Minister a draft digital data service plan under section 40D, a digital data service provider must:

                     (a)  publish a preliminary version of the draft plan and invite members of the public to make submissions to the provider about the preliminary version within a specified period; and

                     (b)  give consideration to any submissions received from members of the public within that period.

             (2)  The period specified in the invitation must run for at least 30 days.

             (3)  This section does not apply to a draft plan given to the Minister in accordance with a direction under subsection 40D(3).

             (4)  This section does not apply to a draft plan given to the Minister in accordance with a notice under section 40M.

40F   Minister to have regard to certain matters

             (1)  In deciding whether to approve a draft digital data service plan for a general digital data service area, the Minister must have regard to whether:

                     (a)  the plan provides for the general digital data service obligation (in so far as it relates to that area) to be fulfilled:

                              (i)  as efficiently and economically as practicable; and

                             (ii)  at performance standards that reasonably meet the social, industrial and commercial needs of the Australian community; and

                            (iii)  progressively throughout that area within such period as the Minister considers reasonable; and

                     (b)  the draft plan complies with any requirements in force under section 40G.

             (2)  Subsection (1) does not, by implication, limit the matters to which regard may be had.

             (3)  In deciding whether to approve a draft digital data service plan for a special digital data service area, the Minister must have regard to whether:

                     (a)  the plan provides for the special digital data service obligation (in so far as it relates to that area) to be fulfilled:

                              (i)  as efficiently and economically as practicable; and

                             (ii)  at performance standards that reasonably meet the social, industrial and commercial needs of the Australian community; and

                            (iii)  progressively throughout that area within such period as the Minister considers reasonable; and

                     (b)  the draft plan complies with any requirements in force under section 40G.

             (4)  Subsection (3) does not, by implication, limit the matters to which regard may be had.

40G   Minister may formulate requirements for draft plans

             (1)  The Minister may, by writing, formulate requirements to be complied with by draft digital data service plans.

             (2)  The following are examples of requirements:

                     (a)  timetables for the supply of services;

                     (b)  performance standards relating to the fulfilment of the digital data service obligation;

                     (c)  the form of a draft digital data service plan.

             (3)  An instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

40H   Notification of decision

             (1)  After deciding whether to approve a draft digital data service plan for an area, the Minister must give a written notice setting out the decision to:

                     (a)  the digital data service provider concerned; and

                     (b)  the ACA.

             (2)  A copy of a notice under subsection (1) must be published in the Gazette .

             (3)  If the Minister refuses to approve a draft digital data service plan for an area, the Minister must give a written notice setting out the reasons for the refusal to the digital data service provider concerned.

40J   Variation of approved digital data service plan

             (1)  This section applies if:

                     (a)  an approved digital data service plan for an area (the current plan ) is in force; and

                     (b)  the digital data service provider concerned gives the Minister a draft variation of the plan.

             (2)  The Minister must:

                     (a)  approve the variation; or

                     (b)  refuse to approve the variation.

             (3)  The Minister must not approve the variation unless the Minister is satisfied that, if it were assumed that the digital data service provider were to give the Minister a draft digital data service plan in the same terms as the current plan (as proposed to be varied), the Minister would approve that draft plan.

             (4)  After deciding whether to approve the variation, the Minister must give a written notice setting out the decision to:

                     (a)  the digital data service provider concerned; and

                     (b)  the ACA.

             (5)  A copy of a notice under subsection (4) must be published in the Gazette .

             (6)  If the Minister refuses to approve the variation, the Minister must give a written notice setting out the reasons for the refusal to the digital data service provider concerned.

             (7)  If the Minister approves the variation, the current plan is varied accordingly.

40K   Public comment—variation of plan

             (1)  Before giving the Minister a draft variation of a plan under section 40J, a digital data service provider must:

                     (a)  publish a preliminary version of the draft variation and invite members of the public to make submissions to the provider about the preliminary version within a specified period; and

                     (b)  give consideration to any submissions received from members of the public within that period.

             (2)  The period specified in the invitation must run for at least 30 days.

             (3)  This section does not apply to a draft variation given to the Minister in accordance with a notice under section 40M.

40L   Minister may direct the ACA to give reports and/or advice

             (1)  Before deciding whether to approve a draft digital data service plan or a draft variation of an approved digital data service plan, the Minister may direct the ACA to give the Minister such reports and/or advice as the Minister requires to assist in making the decision.

             (2)  The ACA must comply with the direction.

             (3)  This section does not, by implication, limit the Minister’s powers under section 486 of the Telecommunications Act 1997 (which deals with public inquiries).

40M   Minister may direct variation or replacement of plan

             (1)  This section applies if an approved digital data service plan (the current plan ) for an area is in force.

             (2)  The Minister may give the digital data service provider concerned a written notice requiring the provider:

                     (a)  within the period and in the terms set out in the notice, to give the Minister a draft variation of the current plan; or

                     (b)  within the period and in the terms set out in the notice, to give the Minister a fresh draft digital data service plan for the area that is expressed to replace the current plan.

             (3)  The provider must comply with the notice.

40N   Compliance with approved digital data service plan

             (1)  If an approved digital data service plan for a general digital data service area is in force, the general digital data service provider concerned must take all reasonable steps to ensure that the plan is complied with.

             (2)  If an approved digital data service plan for a special digital data service area is in force, the special digital data service provider concerned must take all reasonable steps to ensure that the plan is complied with.

40P   Register of digital data service plans

             (1)  The ACA is to maintain a Register in which the ACA includes all approved digital data service plans currently in force.

             (2)  The Register may be maintained by electronic means.

             (3)  A person may, on payment of the charge (if any) fixed by a determination under section 53 of the Australian Communications Authority Act 1997 :

                     (a)  inspect the Register; and

                     (b)  make a copy of, or take extracts from, the Register.

             (4)  For the purposes of this section, if the Register is maintained by electronic means, a person is taken to have made a copy of, or taken an extract from, the Register if the ACA gives the person a printout of, or of the relevant parts of, the Register.

             (5)  If a person requests that a copy be provided in an electronic form, the ACA may provide the relevant information:

                     (a)  on a data processing device; or

                     (b)  by way of electronic transmission.



 

Division 5 Regulation of universal service charges

41   Universal service charges

             (1)  This section applies if a person is the universal service provider for a particular area.

             (2)  For the purposes of this Division, a universal service charge is a charge imposed, or proposed to be imposed, by the person for:

                     (a)  the supply of standard telephone services to persons in the area; or

                     (b)  calls made from payphones in the area; or

                     (c)  the supply of prescribed carriage services to persons in the area.

42   Declaration subjecting universal service charges to price control arrangements

             (1)  The Minister may, by notice published in the Gazette , declare that specified universal service charges are subject to price control arrangements under this Division.

             (2)  A declaration under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

43   Price control determinations

             (1)  This section applies if a declaration is in force under section 42 in relation to a particular universal service charge.

             (2)  The Minister may make a written determination setting out:

                     (a)  price-cap arrangements and other price control arrangements that are to apply in relation to the charge; or

                     (b)  principles or rules in accordance with which the universal service provider may impose or alter the charge;

or both.

             (3)  A determination has effect accordingly.

             (4)  A determination under this section takes effect at the start of the next financial year after the one in which it is made.

             (5)  A determination under this section may make different provision with respect to different customers. This section does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901 .

             (6)  A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

44   Content of price control determinations

             (1)  A determination under section 43 relating to a universal service charge may:

                     (a)  prohibit the charge from being imposed or altered without the Minister’s consent; or

                     (b)  prohibit the charge from being imposed or altered without the ACCC’s consent; or

                     (c)  prohibit the charge from being imposed or altered without prior notice being given to the Minister; or

                     (d)  prohibit the charge from being imposed or altered without prior notice being given to the ACCC; or

                     (e)  empower the Minister to direct the ACCC to give the Minister such reports and advice as the Minister requires for the purposes of assisting the Minister in deciding whether to give a consent in accordance with the determination.

             (2)  Subsection (1) does not, by implication, limit section 43.

45   Price control determinations subject to determinations under Part 9

             (1)  This section applies if a determination under subsection 154(1) or 157(1) is in force in relation to a charge imposed, or proposed to be imposed, by Telstra.

             (2)  A determination under this Division is of no effect in so far as it relates to that charge.

46   Compliance with price control determinations

                   A universal service provider must comply with a determination in force under this Division.



 

Division 5A Regulation of digital data service charges

46A   Digital data service charges

             (1)  For the purposes of this Division, if a person is a general digital data service provider for a particular area, a digital data service charge is a charge imposed, or proposed to be imposed, by the person for the supply of general digital data services to persons in the area.

             (2)  For the purposes of this Division, if a person is a special digital data service provider for a particular area, a digital data service charge is a charge imposed, or proposed to be imposed, by the person for the supply of special digital data services to persons in the area.

46B   Declaration subjecting digital data service charges to price control arrangements

             (1)  The Minister may, by notice published in the Gazette , declare that specified digital data service charges are subject to price control arrangements under this Division.

             (2)  A declaration under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

46C   Price control determinations

             (1)  This section applies if a declaration is in force under section 46B in relation to a particular digital data service charge.

             (2)  The Minister may make a written determination setting out:

                     (a)  price-cap arrangements and other price control arrangements that are to apply in relation to the charge; or

                     (b)  principles or rules in accordance with which the digital data service provider may impose or alter the charge;

or both.

             (3)  A determination has effect accordingly.

             (4)  A determination under this section takes effect at the time specified in the determination.

             (5)  A determination under this section may make different provision with respect to different customers. This section does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901 .

             (6)  A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

46D   Content of price control determinations

             (1)  A determination under section 46C relating to a digital data service charge may:

                     (a)  prohibit the charge from being imposed or altered without the Minister’s consent; or

                     (b)  prohibit the charge from being imposed or altered without the ACCC’s consent; or

                     (c)  prohibit the charge from being imposed or altered without prior notice being given to the Minister; or

                     (d)  prohibit the charge from being imposed or altered without prior notice being given to the ACCC; or

                     (e)  empower the Minister to direct the ACCC to give the Minister such reports and advice as the Minister requires for the purposes of assisting the Minister in deciding whether to give a consent in accordance with the determination.

             (2)  Subsection (1) does not, by implication, limit section 46C.

46E   Price control determinations subject to determinations under Part 9

             (1)  This section applies if a determination under subsection 154(1) or 157(1) is in force in relation to a charge imposed, or proposed to be imposed, by Telstra.

             (2)  A determination under this Division is of no effect in so far as it relates to that charge.

46F   Compliance with price control determinations

                   A digital data service provider must comply with a determination in force under this Division.



 

Division 6 Assessment, collection, recovery and distribution of universal service levy

Subdivision A Introduction

47   Simplified outline

                   The following is a simplified outline of this Division:

•      This Division sets out a scheme under which losses that result from supplying services in the course of fulfilling the universal service obligation, and certain costs that are associated with fulfilling the digital data service obligation, are shared among carriers.

•      If a universal service provider incurs a loss (called a net universal service cost ) from supplying services to certain areas ( net cost areas ) in the course of fulfilling the universal service obligation, or a digital data service provider incurs certain costs (called digital data costs ) in the course of fulfilling the digital data service obligation, the provider may be entitled to a payment (a levy credit ) to recoup those losses or costs.

•      A levy credit is funded out of the proceeds of the levy imposed on carriers by the Telecommunications (Universal Service Levy) Act 1997 .

•      Certain information about the operation of the scheme is available to the public.

•      The ACA is required to make an annual assessment of levies and levy credits.

•      The ACA may make advances on account of levy credits.

•      Certain carriers are required to obtain guarantees given by third persons in relation to the discharge of the carriers’ liability for levy.

48   Financial year

                   A reference in this Part to a financial year is a reference to the 1999-2000 financial year or a later financial year.

Subdivision B Net cost areas

49   Universal service provider must propose service areas for declaration as net cost areas—ordinary declaration

             (1)  This section applies if a person is a universal service provider on the first day of a financial year.

             (2)  Within 60 days after the beginning of the financial year, the person must give the ACA a written notice that:

                     (a)  specifies service areas for which the person is the universal service provider and that, in the person’s opinion, the ACA should declare under section 50 as net cost areas for the financial year; and

                     (b)  sets out why, in the person’s opinion, the ACA should so declare the specified areas.

             (3)  A notice under subsection (2) must be in a form approved in writing by the ACA.

             (4)  In addition to the matters set out in paragraphs (2)(a) and (b), a notice under subsection (2) must contain such other information (if any) as the approved form of notice requires.

50   Net cost areas—ordinary declarations

             (1)  The ACA must comply with this section within 60 days after receiving a notice under section 49 from a person.

             (2)  For each service area specified in the notice, the ACA must decide:

                     (a)  to declare the area as a net cost area for the financial year; or

                     (b)  to declare as a net cost area for the financial year a service area if:

                              (i)  the person is the universal service provider for the area; and

                             (ii)  the area includes the whole or a part of the service area specified in the notice; or

                     (c)  not to declare as mentioned in paragraph (a) or (b).

             (3)  If the ACA makes a decision under paragraph (2)(a) or (b), the ACA must make a written declaration stating that the area concerned is a net cost area for the financial year. The declaration has effect accordingly.

             (4)  Before making a decision under subsection (2), the ACA may make whatever inquiries it thinks necessary or desirable in order to determine what decision it should make under that subsection.

             (5)  In making a decision under subsection (2), the ACA must:

                     (a)  have regard to the reasons specified in accordance with paragraph 49(2)(b); and

                     (b)  comply with any directions in force under section 53.

51   Universal service provider may propose service areas for declaration as net cost areas—special declaration

             (1)  This section applies if a person is a universal service provider on the first day of a financial year.

             (2)  During the financial year, or within 45 days after the end of the financial year, the person may give the ACA written notice that:

                     (a)  specifies service areas for which the person is the universal service provider and that, in the person’s opinion, the ACA should declare under section 52 as net cost areas for the financial year; and

                     (b)  sets out why, in the person’s opinion, the ACA should so declare the specified areas.

             (3)  A notice under subsection (2) must be in a form approved in writing by the ACA.

             (4)  In addition to the matters set out in paragraphs (2)(a) and (b), a notice under subsection (2) must contain such other information (if any) as the approved form of notice requires.

52   Net cost areas—special declarations

             (1)  The ACA must comply with this section within 30 days after receiving a notice under section 51 from a person.

             (2)  For each service area specified in the notice, the ACA must decide:

                     (a)  to declare the area as a net cost area for the financial year; or

                     (b)  not to declare as mentioned in paragraph (a).

             (3)  If the ACA makes a decision under paragraph (2)(a), the ACA must make a written declaration stating that the area concerned is a net cost area for the financial year. The declaration has effect accordingly.

             (4)  Before making a decision under subsection (2), the ACA may make whatever inquiries it thinks necessary or desirable in order to determine what decision it should make under that subsection.

             (5)  In making a decision under subsection (2), the ACA must:

                     (a)  have regard to the reasons specified in accordance with paragraph 51(2)(b); and

                     (b)  comply with any directions in force under section 53.

             (6)  The ACA must not make a declaration under this section stating that an area is a net cost area for the financial year unless the ACA is satisfied that:

                     (a)  the person has incurred, or is likely to incur, a substantial loss attributable to the supply by the person of services to the area during the financial year; and

                     (b)  the loss is wholly the result of circumstances beyond the person’s control; and

                     (c)  when the person became aware of those circumstances, the person took all reasonable steps to minimise the loss.

             (7)  A reference in subsection (6) to a person supplying services to an area during a financial year is a reference to the person:

                     (a)  supplying standard telephone services to persons in the area; or

                     (b)  supplying, installing or maintaining payphones in the area; or

                     (c)  supplying prescribed carriage services in the area;

during that financial year.

53   Minister may give directions about declaring net cost areas

                   The Minister may give the ACA written directions about:

                     (a)  the criteria it should apply; or

                     (b)  the matters to which it should have regard;

in deciding whether or not to declare an area as a net cost area for a financial year.

Subdivision C Assessment of liability for levy and of entitlement to levy distributions

54   Claims for levy credit

             (1)  This section applies to a financial year if a person is a universal service provider, or a digital data service provider, in relation to the financial year.

             (2)  Within the period of 90 days after the end of the financial year, the person may give the ACA a written claim for a levy credit for that financial year.

             (3)  The claim must be in a form approved in writing by the ACA.

             (4)  If the person is a universal service provider in relation to the financial year, the claim must set out:

                     (a)  the person’s net universal service cost for the financial year (worked out under section 57); and

                     (b)  details of how that net universal service cost has been worked out; and

                     (c)  such other information (if any) as the approved form of claim requires.

          (4A)  If the person is a digital data service provider in relation to the financial year, the claim must set out:

                     (a)  the person’s digital data cost for the financial year (worked out under section 61A); and

                     (b)  details of how that digital data cost has been worked out; and

                     (c)  such other information (if any) as the approved form of claim requires.

             (5)  The claim must be accompanied by a report of an approved auditor that:

                     (a)  is in a form approved in writing by the ACA; and

                     (b)  states that the auditor has been given sufficient access to the person’s records in order to audit the claim; and

                     (c)  states that the auditor has audited the claim; and

                     (d)  contains a declaration of the opinion of the auditor, being a declaration in the terms specified in the form.

             (6)  A form approved by the ACA for the purposes of subsection (3) may provide for verification by a statutory declaration of statements in claims for levy credits.

55   No levy payable unless at least one claim for a levy credit is made

             (1)  This section applies to a financial year if, at the end of the period of 90 days after the end of the financial year, no claim for a levy credit for that financial year has been lodged under section 54.

             (2)  No person is liable to pay an amount of levy in respect of the financial year.

56   ACA to give copies of claims to other participating carriers

             (1)  This section applies if a claim for a levy credit for a financial year is lodged under section 54.

             (2)  As soon as practicable, and in any case within 14 days, after the lodgment, the ACA must give a copy of the claim to each person (other than the person who lodged the claim) who is a participating carrier for that financial year.

57   Net universal service cost of a universal service provider for a financial year

             (1)  A person’s net universal service cost for a financial year depends on which of the following paragraphs is applicable for that financial year:

                     (a)  if:

                              (i)  the person is a universal service provider in relation to that financial year because of the operation of a selection system determined under section 22 or 23; and

                             (ii)  the person has elected that a specified amount will be the person’s net universal service cost for the financial year;

                            the person’s net universal service cost for the financial year is equal to that amount;

                     (b)  if:

                              (i)  the person is a universal service provider in relation to that financial year because of the operation of a selection system determined under section 22 or 23; and

                             (ii)  the person has elected that a specified method of ascertaining an amount will apply for the purposes of determining the person’s net universal service cost for the financial year;

                            the person’s net universal service cost for the financial year is worked out using that method;

                     (c)  if:

                              (i)  the person is a universal service provider in relation to that financial year; and

                             (ii)  the person is not a universal service provider in relation to that financial year because of the operation of a selection system determined under section 22 or 23; and

                            (iii)  a determination is in force under subsection (6) in relation to that financial year;

                            the person’s net universal service cost for the financial year is worked out in accordance with the determination;

                     (d)  if:

                              (i)  the person is a universal service provider in relation to that financial year; and

                             (ii)  the person is not a universal service provider in relation to that financial year because of the operation of a selection system determined under section 22 or 23; and

                            (iii)  no determination is in force under subsection (6) in relation to that financial year;

                            then:

                            (iv)  if the amount worked out using the formula in subsection (2) is greater than zero dollars—the person’s net universal service cost for the financial year is equal to that amount; or

                             (v)  if the amount worked out using the formula in subsection (2) is not greater than zero dollars—the person’s net universal service cost for the financial year is zero dollars.

             (2)  The formula is:

where:

avoidable costs means:

                     (a)  if a determination is in force under subsection (9)—the amount ascertained in accordance with the determination; or

                     (b)  if no determination is in force under subsection (9)—the total of:

                              (i)  the amount (if any) by which the total costs (in this definition called the operating costs ) incurred by the person during that financial year (other than the allowances, costs and amounts referred to in subparagraphs (ii), (iii) and (iv)) exceed what it is reasonable to expect that the operating costs would have been if the person had not supplied services to net cost areas during the financial year; and

                             (ii)  the amount (if any) by which the total allowances made by the person for depreciation during that financial year of capital items exceed what it is reasonable to expect that the total allowances so made would have been if the person had not supplied services to net cost areas during the financial year; and

                            (iii)  the amount (if any) by which the person’s total opportunity costs of capital for that financial year exceed what it is reasonable to expect that those costs would have been if the person had not supplied services to net cost areas during the financial year; and

                            (iv)  the amounts (if any) specified, for the purposes of this paragraph, in such provisions of determinations under section 60 as apply in relation to the person, in relation to the financial year, because of section 61.

revenue forgone means an amount equal to so much of the revenue earned by the person during that financial year as it is reasonable to expect that the person would not have earned during that financial year if the person had not supplied services to net cost areas during that financial year.

             (3)  A reference in subsection (2) to a person supplying services to net cost areas during a financial year is a reference to the person:

                     (a)  supplying standard telephone services to persons in the net cost areas for that financial year for which the person was the universal service provider; or

                     (b)  supplying, installing or maintaining payphones in those areas; or

                     (c)  supplying prescribed carriage services in those areas;

during that financial year.

             (4)  If the person was a carrier for part only of the financial year, a reference in subsection (2) or (3) to the financial year is a reference to that part of the financial year.

             (5)  An amount applicable to a person under subsection (2) for a financial year must be determined in accordance with such provisions of determinations under section 60 as apply in relation to the person, in relation to the financial year, because of section 61.

             (6)  The Minister may make a written determination specifying a method of ascertaining an amount for the purposes of paragraph (1)(c). The determination has no effect unless each person who was a participating carrier immediately before the determination was made gave a written consent to the making of the determination.

             (7)  The amount worked out under a determination under subsection (6) may be zero dollars.

             (8)  A copy of a determination under subsection (6) must be published in the Gazette .

             (9)  The ACA may make a written determination specifying a method of ascertaining an amount for the purposes of paragraph (a) of the definition of avoidable costs in subsection (2).

           (10)  A determination under subsection (9) must provide for an amount to be ascertained wholly or partly by reference to an indexation factor.

           (11)  A determination under subsection (9):

                     (a)  may only be made with the Minister’s consent; and

                     (b)  is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

           (12)  Before making a determination under subsection (9), the ACA must consult each person who was a participating carrier immediately before the determination was made.

58   Reduction of excessive costs etc.

             (1)  The Minister may, by written instrument, formulate principles that are to be applied in determining the extent (if any) to which costs, allowances or opportunity costs of a kind mentioned in subparagraph (b)(i), (ii) or (iii) of the definition of avoidable costs in subsection 57(2) are to be treated as excessive for the purposes of subsection (2) of this section.

             (2)  For the purposes of the calculation of the formula in subsection 57(2) in relation to a particular financial year, if:

                     (a)  any of the following conditions are satisfied:

                              (i)  a person has incurred costs of a kind mentioned in subparagraph (b)(i) of the definition of avoidable costs in subsection 57(2);

                             (ii)  a person has made allowances of a kind mentioned in subparagraph (b)(ii) of that definition;

                            (iii)  a person has opportunity costs of a kind mentioned in subparagraph (b)(iii) of that definition; and

                     (b)  the costs, allowances or opportunity costs are treated, under the principles in force under subsection (1), as excessive to any extent;

the amount of the costs, allowances or opportunity costs, as the case may be, is to be reduced by the amount of the excess.

             (3)  An instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

59   Shortfalls in revenue earned

             (1)  The Minister may, by written instrument, formulate principles that are to be applied in determining the extent (if any) to which there is taken, for the purposes of subsection (2), to be a shortfall in relation to revenue earned as mentioned in the definition of revenue forgone in subsection 57(2).

             (2)  For the purposes of the calculation of the formula in subsection 57(2) in relation to a particular financial year, if:

                     (a)  a person has earned revenue as mentioned in the definition of revenue forgone in subsection 57(2); and

                     (b)  under the principles in force under subsection (1), there is taken to be a shortfall in relation to that revenue;

the amount of the revenue is to be increased by the amount of the shortfall.

             (3)  An instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

60   ACA determinations about working out a universal service provider’s net universal service cost

             (1)  The ACA may make written determinations:

                     (a)  for or in relation to specifying methods of calculating an amount referred to in:

                              (i)  subparagraph (b)(i), (ii) or (iii) of the definition of avoidable costs in subsection 57(2); or

                             (ii)  the definition of revenue forgone in subsection 57(2);

                            as applying in relation to a universal service provider in relation to a financial year; or

                     (b)  specifying amounts for the purposes of subparagraph (b)(iv) of the definition of avoidable costs in subsection 57(2) as so applying.

             (2)  An instrument under this section:

                     (a)  may only be made with the Minister’s consent; and

                     (b)  is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

             (3)  Before making a determination in relation to a financial year under this section, the ACA must consult each person who was a participating carrier immediately before the determination was made.

61   Application of determinations under section 60

             (1)  Except so far as the contrary intention appears in a determination under section 60, a provision of such a determination applies in relation to:

                     (a)  the first financial year that ends after the commencement of the last-mentioned provision; and

                     (b)  each later financial year.

             (2)  Despite anything in an instrument under section 60, but subject to subsection (4) of this section, a provision of a determination under that section does not apply in relation to a financial year ending before the commencement of that provision.

             (3)  A person may elect in writing that a provision that, apart from subsection (4), does not apply in relation to the person in relation to a particular financial year is to apply in relation to the person in relation to that financial year.

             (4)  An election under subsection (3) has effect accordingly.

             (5)  In this section:

commencement , in relation to a provision of a determination under section 60, means:

                     (a)  in the case of such a provision as originally in effect—the time when the provision took effect; or

                     (b)  in the case of a provision as varied by another provision of an instrument under section 60—the time when the last-mentioned provision took effect.

61A   Digital data cost of a digital data service provider for a financial year

             (1)  A person’s digital data cost for a financial year depends on which of the following paragraphs is applicable for that financial year:

                     (a)  if:

                              (i)  the person is a digital data service provider in relation to that financial year because of the operation of a selection system determined under section 26C or 26D; and

                             (ii)  the person has elected that a specified amount will be the person’s digital data cost for the financial year;

                            the person’s digital data cost for the financial year is equal to that amount;

                     (b)  if:

                              (i)  the person is a digital data service provider in relation to that financial year because of the operation of a selection system determined under section 26C or 26D; and

                             (ii)  the person has elected that a specified method of ascertaining an amount will apply for the purposes of determining the person’s digital data cost for the financial year;

                            the person’s digital data cost for the financial year is worked out using that method;

                     (c)  if:

                              (i)  the person is a digital data service provider in relation to that financial year; and

                             (ii)  the person is not a digital data service provider in relation to that financial year because of the operation of a selection system determined under section 26C or 26D; and

                            (iii)  a determination is in force under subsection (4) in relation to that financial year;

                            the person’s digital data cost for the financial year is worked out in accordance with the determination;

                     (d)  if:

                              (i)  the person is a digital data service provider in relation to that financial year; and

                             (ii)  the person is not a digital data service provider in relation to that financial year because of the operation of a selection system determined under section 26C or 26D; and

                            (iii)  no determination is in force under subsection (4) in relation to that financial year;

                            then:

                            (iv)  if the amount worked out using the formula in subsection (3) is greater than zero dollars—the person’s digital data cost for the financial year is equal to that amount; or

                             (v)  if the amount worked out using the formula in subsection (3) is not greater than zero dollars—the person’s digital data cost for the financial year is zero dollars.

             (2)  For the purposes of this section, if a person is a digital data service provider for an area in relation to a financial year, the person’s customer equipment costs for the financial year is an amount equal to the sum of:

                     (a)  the total costs incurred by the person in acquiring customer equipment that:

                              (i)  is covered by a declaration that was in force under section 46B during the financial year in relation to charges imposed, or proposed to be imposed, by the person for the supply of customer equipment of a kind specified in regulations made for the purposes of paragraph 14A(1)(a) or (5)(a); and

                             (ii)  was supplied by the person during the financial year to persons in the area; and

                     (b)  the total rebates that became payable during the financial year by the person, in accordance with regulations made for the purposes of subsection 19A(8), in respect of customer equipment acquired or hired by persons in the area.

             (3)  The formula referred to in paragraph (1)(d) is as follows:

where:

customer charges means the total amount payable by persons in the area referred to in subsection (2) by way of charges for the supply by the person during the financial year of customer equipment covered by paragraph (2)(a).

customer equipment costs means the person’s customer equipment costs for the financial year.

supplementary amount means the amount (if any) specified in, or ascertained in accordance with, regulations made for the purposes of this definition.

             (4)  The Minister may make a written determination specifying a method of ascertaining an amount for the purposes of paragraph (1)(c). The determination has no effect unless each person who was a participating carrier immediately before the determination was made gave a written consent to the making of the determination.

             (5)  The amount worked out under a determination under subsection (4) may be zero dollars.

             (6)  A copy of a determination under subsection (4) must be published in the Gazette .

61B   Reduction of excessive costs

             (1)  The Minister may, by written instrument, formulate principles or rules that are to be applied in determining the extent (if any) to which costs are to be treated as excessive for the purposes of subsection 61A(2).

             (2)  For the purposes of the application of subsection 61A(2) in relation to a particular financial year, if:

                     (a)  a person has incurred costs of a kind mentioned in paragraph 61A(2)(a); and

                     (b)  the costs are treated, under the principles or rules in force under subsection (1), as excessive to any extent;

the amount of the costs is to be reduced by the amount of the excess.

             (3)  An instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

62   Participating carriers must lodge returns of eligible revenue

             (1)  Within 90 days after the end of a financial year, each participating carrier in relation to that financial year must give the ACA a written return of the carrier’s eligible revenue for that financial year.

             (2)  The return must be in a form approved in writing by the ACA.

             (3)  The return must set out:

                     (a)  the carrier’s eligible revenue for that financial year; and

                     (b)  details of how that eligible revenue was worked out; and

                     (c)  such other information (if any) as the approved form of return requires.

             (4)  A person who intentionally or recklessly contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding 50 penalty units.

Note:          See also sections 4AA and 4B of the Crimes Act 1914 .

             (5)  A form approved by the ACA for the purposes of subsection (2) may provide for verification by a statutory declaration of statements in returns under this section.

             (6)  The return must be accompanied by a report of an approved auditor that:

                     (a)  is in a form approved in writing by the ACA; and

                     (b)  states that the auditor has been given sufficient access to the person’s records in order to audit the return; and

                     (c)  states that the auditor has audited the return; and

                     (d)  contains a declaration of the opinion of the auditor, being a declaration in the terms specified in the form.

63   ACA may inquire into the correctness of a claim or return

                   The ACA may make whatever inquiries it thinks necessary or desirable in order to determine:

                     (a)  whether or not a claim by a universal service provider for a levy credit for a financial year correctly states the universal service provider’s net universal service cost for that financial year; or

                    (aa)  whether or not a claim by a digital data service provider for a levy credit for a financial year correctly states the digital data service provider’s digital data cost for that financial year; or

                     (b)  whether or not a return by a participating carrier of the carrier’s eligible revenue for a financial year correctly states the carrier’s eligible revenue for that financial year.

64   ACA to assess liabilities and entitlement

             (1)  For each financial year, the ACA must make a written assessment for the purposes of this Part.

             (2)  The assessment must set out, for each participating carrier in relation to that financial year:

                     (a)  the carrier’s eligible revenue for the financial year; and

                     (b)  the carrier’s levy debit under section 67 for the financial year; and

                     (c)  the carrier’s levy debit balance (if any) under section 68 for the financial year; and

                     (d)  if the assessment sets out a levy debit balance of the carrier for the financial year—the levy payable by the carrier on that levy debit balance.

             (3)  The assessment must set out, for each universal service provider in relation to that financial year:

                     (a)  the universal service provider’s net universal service cost for the financial year; and

                     (b)  the universal service provider’s levy credit balance (if any) under section 69 for the financial year; and

                     (c)  if the assessment sets out a levy credit balance of the universal service provider for the financial year—the amount payable to the universal service provider under section 85 for the financial year.

          (3A)  The assessment must set out, for each digital data service provider in relation to that financial year:

                     (a)  the digital data service provider’s digital data cost for the financial year; and

                     (b)  the digital data service provider’s levy credit balance (if any) under section 69 for the financial year; and

                     (c)  if the assessment sets out a levy credit balance of the digital data service provider for the financial year—the amount payable to the digital data service provider under section 85 for the financial year.

             (4)  The assessment must be made on the basis of:

                     (a)  the respective claims for levy credits lodged by universal service providers and digital data service providers in relation to the financial year; and

                     (b)  the respective returns under section 62 lodged by the participating carriers in relation to the financial year; and

                     (c)  the information and documents obtained by the ACA because of its inquiries under section 63; and

                     (d)  any other information or documents that the ACA has and that it thinks relevant to making the assessment.

             (5)  Despite anything in this Part, the ACA may, for the purposes of making its assessment, accept, either in whole or in part, a statement in a claim or return.

65   Explanation to the Minister if assessment not made within 270 days

             (1)  This section applies if the ACA has not made its assessment under section 64 in relation to a financial year within 270 days after the end of the financial year.

             (2)  The ACA must give the Minister a written statement explaining why the ACA has not made its assessment within that 270-day period.

             (3)  In this section:

assessment does not include an amended assessment.

66   Amendment of assessments

             (1)  The ACA may amend its assessment by making such alterations and additions as it thinks necessary, even if levy credits or levy has been paid in respect of the assessment.

             (2)  Unless the contrary intention appears, an amended assessment is taken, for the purposes of this Part, to be an assessment under section 64.

67   Levy debit of a participating carrier for a financial year

             (1)  A participating carrier’s levy debit for a financial year is the amount worked out using the formula:

where:

contribution factor has the meaning given by subsection (2).

total digital data cost means the total digital data costs for the financial year of all the digital data service providers in relation to the financial year.

total net universal service cost means the total net universal service costs for the financial year of all the universal service providers in relation to the financial year.

             (2)  The contribution factor for the financial year depends on whether a determination is in force under subsection (3) in relation to the financial year:

                     (a)  if a determination is in force under subsection (3) in relation to the financial year—the contribution factor is ascertained in accordance with the determination;

                     (b)  if no determination is in force under subsection (3) in relation to the financial year—the contribution factor is worked out using the following formula:

                            where:

                            carrier’s eligible revenue means the participating carrier’s eligible revenue for the financial year.

                            total eligible revenue means the total eligible revenue for the financial year of all the participating carriers in relation to the financial year.

             (3)  The Minister may make a written determination specifying a method of ascertaining the contribution factor for the purposes of paragraph (2)(a). The determination has no effect unless each person who was a participating carrier immediately before the determination was made gave a written consent to the making of the determination.

             (4)  A copy of a determination under subsection (3) must be published in the Gazette .

68   Levy debit balance of a participating carrier for a financial year

                   If a person’s levy debit under subsection 67(1) for a financial year exceeds the sum of:

                     (a)  the person’s net universal service cost for that financial year; and

                     (b)  the person’s digital data cost for that financial year;

then:

                     (c)  the person has a levy debit balance for that financial year; and

                     (d)  the amount of that balance is the amount of the excess.

69   Levy credit balance for a financial year

                   If the sum of:

                     (a)  a person’s net universal service cost for a financial year; and

                     (b)  the person’s digital data cost for that financial year;

exceeds the person’s levy debit under subsection 67(1) for that financial year:

                     (c)  the person has a levy credit balance for that financial year; and

                     (d)  the amount of that balance is the amount of the excess.

70   Publication of assessment

                   As soon as practicable after making an assessment under section 64 for a financial year, the ACA must:

                     (a)  cause a copy of the assessment to be published in the Gazette ; and

                     (b)  give a copy of the assessment to each participating carrier in relation to that financial year.

Subdivision D Disclosure by the ACA of information about decisions relating to net cost areas and assessments

71   Public may request information

             (1)  A person may request the ACA to make available to the person:

                     (a)  specified information or documents on the basis of which the ACA has made its assessment under section 64 for a financial year; or

                     (b)  specified information about how the ACA has worked out the matters that such an assessment sets out because of subsection 64(2), (3) or (3A); or

                     (c)  specified information or documents relating to a decision by the ACA under section 50 or 52 to declare an area as a net cost area for a financial year.

             (2)  The ACA must comply with a request as provided in section 73. This subsection has effect subject to subsection (3).

             (3)  The ACA must not make available under this section:

                     (a)  information (other than information prescribed for the purposes of this paragraph):

                              (i)  that was obtained from, or relates to, a person who is a universal service provider, or a digital data service provider, in relation to a financial year; and

                             (ii)  the making available of which under this section can reasonably be expected to cause substantial damage to the person referred to in subparagraph (i); or

                     (b)  information prescribed for the purposes of this paragraph; or

                     (c)  so much of a document as sets out information of a kind referred to in paragraph (a) or (b).

72   Request for information that is unavailable under section 71

             (1)  For the purposes of this section, each of the following persons is an eligible person :

                     (a)  a person who is a universal service provider in relation to a financial year;

                    (aa)  a person who is a digital data service provider in relation to a financial year;

                     (b)  a person who is a participating carrier in relation to a financial year.

             (2)  An eligible person may request the ACA to make available to it specified information or documents of a kind referred to in subsection 71(1) that subsection 71(3) prevents the ACA from making available to the eligible person under section 71.

             (3)  The ACA must comply with a request as provided for in section 73. This section has effect subject to subsection (4).

             (4)  The ACA must not, under this section, make available to an eligible person (in this section called the first eligible person ) information, or so much of a document as sets out information:

                     (a)  that was obtained from, or relates to, another eligible person; and

                     (b)  the making available of which to the first eligible person can reasonably be expected to cause substantial damage to the other eligible person’s commercial or other interests;

unless the ACA is satisfied:

                     (c)  that the information could be obtained by the first eligible person lawfully, and without the other eligible person’s consent, from a source other than the ACA; or

                     (d)  in the case of a request under paragraph 71(1)(a) or (b)—that:

                              (i)  the first eligible person has made the request in good faith for the sole purpose of informing itself about the basis on which, or the methods by which, the ACA made the assessment concerned; and

                             (ii)  having regard to the policy principles in section 9, the first eligible person’s interest in being able to examine that basis and those methods in order to see how its liability to pay levy, or its entitlement to a payment under section 85, as the case requires, has been assessed outweighs the other eligible person’s interest in avoiding the damage referred to in paragraph (b); or

                     (e)  in the case of a request under paragraph 71(1)(c)—that:

                              (i)  the first eligible person has made the request in good faith for the sole purpose of informing itself about the basis on which, or the methods by which, the ACA made the decision to make the declaration concerned; and

                             (ii)  having regard to the policy principles in section 9, the first eligible person’s interest in being able to examine that decision outweighs the other eligible person’s interest in avoiding the damage referred to in paragraph (b).

             (5)  In determining the question referred to in paragraph (4)(b), the ACA must have regard to:

                     (a)  whether any undertakings have been given under subsection (6) and, if so, the nature of those undertakings; and

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

             (6)  For the purposes of this section, a person may give the ACA a written undertaking that, in the event that specified information, or the whole or a part of a specified document, is made available to the person under this section, the person will not disclose the information, or the contents of the document, except to one or more specified persons.

Note:          Information, documents or persons may be specified by name, by inclusion in a class or in any other way.

             (7)  If a person gives an undertaking under subsection (6), the person must comply with the undertaking.

73   How the ACA is to comply with a request

             (1)  The ACA may comply with a request by a person under section 71 or 72 by:

                     (a)  communicating information to the person in writing or in some other form; or

                     (b)  making documents available for inspection by the person or by an employee, agent or professional adviser of the person; or

                     (c)  giving to the person copies of, extracts from, or summaries of, documents.

             (2)  In this section:

document includes a part of a document.

Subdivision E Collection and recovery of levy

74   When levy payable

                   Levy assessed under section 64 becomes due and payable on the 28th day after the ACA gives a copy of the assessment to the participating carrier in respect of which the levy has been assessed.

75   Levy a debt due to the Commonwealth

                   Levy may be recovered in a court of competent jurisdiction as a debt due to the Commonwealth.

76   Validity of assessment

                   The validity of an assessment under section 64 is not affected by a contravention of this Act.

77   Evidence of assessment

             (1)  This section applies if there is produced:

                     (a)  a copy of the Gazette that sets out what purports to be a copy of an assessment made under section 64; or

                     (b)  a document that purports to be such a copy.

             (2)  Except so far as the contrary is established, it must be presumed:

                     (a)  that the copy of the Gazette sets out, or that the document is, as the case may be, a copy of such an assessment; and

                     (b)  that the ACA has duly made the assessment; and

                     (c)  that the amounts and other particulars set out in the assessment are correct.

78   Onus of establishing incorrectness of assessment

                   In any proceeding, the onus of establishing that an assessment under section 64 is incorrect is on the party making that assertion.

79   Refund of overpayment of levy

                   If there is an overpayment of levy, the overpayment is to be refunded.

80   Cancellation of certain exemptions from levy

             (1)  This section cancels the effect of a provision of another Act that would have the effect of exempting a person from liability to pay levy.

             (2)  The cancellation does not apply if the provision of the other Act is enacted after the commencement of this section and refers specifically to levy imposed by the Telecommunications (Universal Service Levy) Act 1997.

81   Commonwealth not liable to levy

             (1)  The Commonwealth is not liable to pay levy.

             (2)  A reference in this section to the Commonwealth includes a reference to an authority of the Commonwealth that cannot, by law of the Commonwealth, be made liable to taxation by the Commonwealth.

Subdivision F Distribution of levy

82   Universal Service Reserve

             (1)  The Universal Service Reserve that was, immediately before the commencement of this section, in existence because of section 211 of the Telecommunications Act 1997 continues in existence under and subject to the provisions of this Act.

             (2)  The Universal Service Reserve is a component of the Reserved Money Fund.

             (3)  The Universal Service Reserve is to be administered by the Department.

83   Payments into Universal Service Reserve

                   There must be transferred to the Universal Service Reserve from the Consolidated Revenue Fund:

                     (a)  amounts equal to amounts of levy paid under this Part; and

                     (b)  money appropriated by law for the Universal Service Reserve’s purposes; and

                     (c)  amounts equal to interest from the investment of money in the Universal Service Reserve; and

                     (d)  amounts equal to amounts that were overpaid under section 85 and have been recovered; and

                     (e)  amounts equal to amounts paid under section 89.

84   Purposes of Universal Service Reserve

             (1)  The purposes of the Universal Service Reserve are:

                     (a)  making payments under section 85 or 88; and

                     (b)  refunding any overpaid amounts of levy; and

                     (c)  refunding any other amounts paid into the Universal Service Reserve in error; and

                     (d)  reimbursing the Commonwealth for:

                              (i)  the costs or expenses incurred by the Commonwealth or the ACA in administering the Telecommunications (Universal Service Levy) Act 1997 and this Division during any period; and

                             (ii)  without limiting subparagraph (i), costs or expenses incurred in connection with recovering levy; and

                            (iii)  costs incurred by the Commonwealth during the period in collecting, compiling, analysing and publishing information about the operation of that Act and this Division.

             (2)  For the purposes of paragraph (1)(d), the Minister administering the Financial Management and Accountability Act 1997 may, from time to time, determine the amount of a reimbursement to be made to the Commonwealth in relation to a period on such basis as he or she thinks appropriate.

             (3)  Despite subsection (2), the total of the amounts reimbursed under paragraph (1)(d) must not exceed the total of the amounts paid into the Universal Service Reserve under paragraphs 83(b) and (c).

85   Levy distribution

                   If a person has a levy credit balance for a financial year because of section 69, an amount equal to the amount of that balance is payable to the person out of the Universal Service Reserve.

86   Levy not to be distributed until paid

                   No amount is payable under section 85 in relation to a financial year unless and until:

                     (a)  the ACA has made an assessment under section 64 for that financial year; and

                     (b)  each participating carrier in respect of which levy was assessed has paid the levy.

87   Recovery of overpayments

             (1)  For the purposes of this section, an overpaid amount is so much of an amount paid under section 85 as represents an overpayment.

             (2)  An overpaid amount is a debt due to the Commonwealth.

             (3)  An overpaid amount may be recovered by the Commonwealth by action in a court of competent jurisdiction.

             (4)  If a person is liable to pay an overpaid amount, the overpaid amount may be deducted from one or more other amounts that are payable to the person under this Part, and if it is so deducted, the other amounts are taken to have been paid in full to the person.

Subdivision G Advance on account of distribution of levy

88  Advance on account of distribution of levy

                   If the ACA is satisfied that, because of special circumstances, it is appropriate to do so, the ACA may, on behalf of the Commonwealth, make an advance on account of payments that may become payable to a person under section 85 in relation to a financial year.

89   Repayment of excess advances

             (1)  If:

                     (a)  a person has received a total amount, by way of advances on account of payments that may become payable to the person under section 85 in relation to a particular financial year; and

                     (b)  that total amount is greater than the amount that became payable to the person under section 85 in relation to that financial year;

the person is liable to pay to the Commonwealth the amount of the excess.

             (2)  If a person is liable to pay an amount to the Commonwealth under subsection (1):

                     (a)  the amount may be recovered, as a debt due to the Commonwealth, by action in a court of competent jurisdiction; or

                     (b)  the amount may be deducted from any other amount that is payable to the person under this Part, and if the amount is so deducted, the other amount is taken to have been paid in full to the person.

Subdivision H Levy guarantee

90   Levy guarantee

             (1)  This section applies to a person (the first person ) at a particular time if:

                     (a)  the first person is a carrier at that time; or

                     (b)  the first person ceased to be a carrier during the 2-year period that ended at that time.

             (2)  The first person must ensure that, at that time, there is in force a guarantee given by a third person in respect of the discharge of the first person’s liability (if any) for levy.

             (3)  The third person must be:

                     (a)  a body corporate that is an ADI (authorised deposit-taking institution) for the purposes of the Banking Act 1959 ; or

                     (b)  the Reserve Bank of Australia; or

                     (c)  a body corporate formed under the law of a State or Territory to carry on the business of banking within Australia; or

                     (d)  a body corporate whose sole or principal business is the provision of financial accommodation to other persons, where the body corporate is a registered corporation within the meaning of the Financial Corporations Act 1974 ; or

                     (e)  a body corporate accredited in writing by the ACA for the purposes of this paragraph.

             (4)  A reference in this section to a carrier does not include a reference to a person who, under subsection 16(2), is exempt from section 16.

91   Exemptions from levy guarantee

             (1)  A person is exempt from section 90 if the person held a general telecommunications licence, or a public mobile licence, that was in force under the Telecommunications Act 1991 on 30 June 1997.

             (2)  The ACA may make a written determination exempting a specified person from section 90 if:

                     (a)  in the ACA’s opinion, there is no reasonable likelihood that the person will incur a liability for levy; or

                     (b)  both:

                              (i)  the person has held a carrier licence for at least 2 years; and

                             (ii)  in the ACA’s opinion, there is no significant risk that the person will fail to discharge fully the person’s liability for levy.

             (3)  A determination under subsection (2) has effect accordingly.

92   Compliance with levy guarantee obligations

             (1)  A person must not contravene section 90.

             (2)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of subsection (1); or

                     (b)  induce, whether by threats or promises or otherwise, a contravention of subsection (1); or

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or

                     (d)  conspire with others to effect a contravention of subsection (1).

             (3)  Subsections (1) and (2) are civil penalty provisions .

Note:          Part 31 of the Telecommunications Act 1997 provides for pecuniary penalties for breaches of civil penalty provisions.