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Schedule 3—Amendments relating to contracts and agreements

Schedule 3 Amendments relating to contracts and agreements

   

Telecommunications Act 1997

1A  After subsection 577BA(10)

Insert:

        (10A)  If:

                     (a)  a body corporate enters into a contract, arrangement or understanding; and

                     (b)  the body corporate enters into the contract, arrangement or understanding in order to comply with a direction under subsection 577BAA(1);

then:

                     (c)  the entering into of the contract, arrangement or understanding by the body corporate; and

                     (d)  conduct engaged in by the body corporate in order to give effect to a provision of the contract, arrangement or understanding;

is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010 .

        (10B)  If a body corporate is subject to a direction under subsection 577BAA(1), conduct engaged in by the body corporate in order to comply with the direction is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010 .

1  At the end of Subdivision A of Division 2 of Part 33

Add:

577BAA   Directions—facilitation of contract or agreement

             (1)  If:

                     (a)  a contract or agreement:

                              (i)  is covered by a subsection of section 577BA; and

                             (ii)  was in force at the commencement of this section; and

                     (b)  a designated Telstra successor company (the first designated Telstra successor company ) is a party to the contract or agreement; and

                     (c)  the Minister is satisfied that the first designated Telstra successor company has failed, is failing, or is likely to fail, to fulfil its obligations under the contract or agreement;

the Minister may give:

                     (d)  another designated Telstra successor company; or

                     (e)  a body corporate that is a related body corporate (within the meaning of the Corporations Act 2001 ) of the first designated Telstra successor company;

a written direction to take specified action.

             (2)  The Minister must not give a direction to a body corporate under subsection (1) unless:

                     (a)  the Minister is satisfied that the action specified in the direction will facilitate the first designated Telstra successor company fulfilling its obligations under the contract or agreement; and

                     (b)  the Minister is satisfied that the body corporate:

                              (i)  has the capability (including the technical, operational and organisational capability) to comply with the direction; or

                             (ii)  could reasonably acquire the capability (including the technical, operational and organisational capability) to comply with the direction; and

                     (c)  the body corporate:

                              (i)  is a constitutional corporation; or

                             (ii)  carries on a telecommunications business covered by paragraph 581L(1)(a), (b) or (c).

Compliance with requirement

             (3)  A body corporate must comply with a direction under subsection (1).

Civil penalty

             (4)  Subsection (3) is a civil penalty provision.

Note:          Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

Consultation—public

             (5)  Before the Minister gives or varies a direction under subsection (1), the Minister must consult the ACCC.

             (6)  Subject to subsection (9), before giving or varying a direction under subsection (1), the Minister must:

                     (a)  make a copy of the draft direction or variation available on the Minister’s website; and

                     (b)  publish a notice on the Minister’s website:

                              (i)  stating that the Minister has prepared the draft; and

                             (ii)  inviting interested persons to give written comments about the draft to the Minister within the period specified in the notice.

             (7)  The period specified in the notice must run for at least 30 days after the publication of the notice.

             (8)  If interested persons have given comments in accordance with a notice under subsection (6), the Minister must have due regard to those comments in giving or varying the direction.

Consultation—affected companies

             (9)  If the Minister is satisfied that compliance with subsection (6) in relation to giving or varying a direction could reasonably be expected to prejudice the commercial interests of a person:

                     (a)  subsection (6) does not apply to giving or varying the direction; and

                     (b)  before giving or varying the direction, the Minister must give each affected company:

                              (i)  a copy of the draft direction or variation; and

                             (ii)  a notice inviting the affected company to give written comments about the draft to the Minister within the period specified in the notice.

           (10)  The period specified in the notice must run for at least 30 days after the giving of the notice.

           (11)  If affected companies have given comments in accordance with a notice under subsection (9), the Minister must have due regard to those comments in making or varying the direction.

           (12)  For the purposes of the application of this section to a direction that relates to a contract or agreement or to a variation of such a direction, each of the following is an affected company :

                     (a)  a body corporate that is a party to the contract or agreement;

                     (b)  a body corporate that is, or will be, subject to the direction.

Telecommunications (Consumer Protection and Service Standards) Act 1999

2  After section 21

Insert:

21A   Directions—facilitation of Telstra USO Performance Agreement

             (1)  If:

                     (a)  a designated Telstra successor company (the first designated Telstra successor company ) is a party to the section 14 contract known as the Telstra USO Performance Agreement; and

                     (b)  the Minister is satisfied that the first designated Telstra successor company has failed, is failing, or is likely to fail, to fulfil its obligations under the Telstra USO Performance Agreement;

the Minister may give:

                     (c)  Telstra Limited; or

                     (d)  another designated Telstra successor company; or

                     (e)  a body corporate that is a related body corporate (within the meaning of the Corporations Act 2001 ) of the first designated Telstra successor company;

a written direction:

                      (f)  to do a specified act or thing; or

                     (g)  not to do a specified act or thing.

             (2)  The Minister must not give a direction to a body corporate under subsection (1) to do an act or thing unless:

                     (a)  the Minister is satisfied that the act or thing will facilitate the first designated Telstra successor company fulfilling its obligations under the Telstra USO Performance Agreement; and

                     (b)  the Minister is satisfied that the body corporate:

                              (i)  has the capability (including the technical, operational and organisational capability) to comply with the direction; or

                             (ii)  could reasonably acquire the capability (including the technical, operational and organisational capability) to comply with the direction; and

                     (c)  the body corporate:

                              (i)  is a constitutional corporation; or

                             (ii)  carries on a telecommunications business covered by paragraph 581L(1)(a), (b) or (c).

             (3)  The Minister must not give a direction to a body corporate under subsection (1) not to do an act or thing unless:

                     (a)  the Minister is satisfied that not doing the act or thing will facilitate the first designated Telstra successor company fulfilling its obligations under the Telstra USO Performance Agreement; and

                     (b)  the Minister is satisfied that the body corporate:

                              (i)  has the capability (including the technical, operational and organisational capability) to comply with the direction; or

                             (ii)  could reasonably acquire the capability (including the technical, operational and organisational capability) to comply with the direction; and

                     (c)  the body corporate:

                              (i)  is a constitutional corporation; or

                             (ii)  carries on a telecommunications business covered by paragraph 581L(1)(a), (b) or (c) of the Telecommunications Act 1997 .

Compliance with requirement

             (4)  A body corporate must comply with a direction under subsection (1).

Civil penalty

             (5)  Subsection (4) is a civil penalty provision.

Note:          Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

Consultation

             (6)  Before giving or varying a direction under subsection (1), the Minister must:

                     (a)  make a copy of the draft direction or variation available on the Minister’s website; and

                     (b)  publish a notice on the Minister’s website:

                              (i)  stating that the Minister has prepared the draft; and

                             (ii)  inviting interested persons to give written comments about the draft to the Minister within the period specified in the notice.

             (7)  Subject to subsection (8), the period specified in the notice must run for at least 30 days after the publication of the notice.

             (8)  The period specified in the notice may be shorter than 30 days if the Minister is satisfied that the shorter period is necessary due to urgent circumstances.

             (9)  If interested persons have given comments in accordance with a notice under subsection (6), the Minister must have due regard to those comments in giving or varying the direction.