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Legislation

Trade Practices Amendment (Telecommunications) Act 1997

 

Outline

From the original EM

"The Trade Practices Amendment (Telecommunications) Bill 1996 (`the Bill') is part of a package of legislation intended to create a new regulatory scheme to govern telecommunications from 1 July 1997. The Bill will amend the Trade Practices Act 1974 to provide special rules to control anti-competitive conduct by telecommunications carriers and carriage service providers and to deal with access to telecommunications services.

Proposed Part XIB of the Trade Practices Act, inserted by item 6 of Schedule 1 to the Bill, sets up a special regime for regulating anti-competitive conduct in the telecommunications industry. This regime will apply in addition to Part IV of that Act, which regulates restrictive trade practices in general.

Under proposed Part XIB, as well as being able to seek injunctions to stop anti-competitive conduct by a carrier or carriage service provider, the ACCC will be able to issue a competition notice stating that a carrier or carriage service provider has engaged in such conduct. The ACCC will be able to seek pecuniary penalties and a third party will be able to seek damages where anti-competitive conduct is engaged in after the ACCC has issued a competition notice and while the notice is in force. The ACCC will be able to make an order exempting specified conduct from the scope of the definition of anti-competitive conduct.

The ACCC will be able to direct carriers and carriage service providers to file tariff information with the ACCC. In addition, the ACCC will be empowered to make record-keeping rules with which specified carriers and carriage service providers will be required to comply.

Proposed Part XIC, also inserted by item 6 of Schedule 1, sets out an access regime for the telecommunications industry. The regime provides for the declaration of carriage services and related services by the ACCC either following a recommendation of the Telecommunications Access Forum or after a public inquiry. Once declared, standard access obligations apply to carriers or carriage service providers supplying those services (access providers), unless those persons are otherwise exempted. Standard access obligations require the supply of declared services and specified associated services in order that service providers can supply their own carriage services and/or content services.

The terms and conditions of access on which access providers comply with the standard access obligations are subject to commercial agreement, may be set out in an access undertaking or, failing agreement or the existence of a relevant access undertaking, determined by the ACCC in an arbitration.

An access undertaking may incorporate or adopt the model terms and conditions set out in a telecommunications access code prepared by the Telecommunications Access Forum or determined by the ACCC.

Access agreements reached commercially may be registered with the ACCC and enforced as though they are a determination made by the ACCC.

A carrier, carriage service provider or related body must not prevent or hinder access to a declared service."

From the amended EM:

"The proposed amendments will:

  • include notes to the various offences to be inserted in the Trade Practices Act 1974 to draw the reader's attention to relevant provisions of the Crimes Act 1914 which have a bearing on the penalties for those offences (Amendments (1)-(3), (5)-(9) and (11) and (12));

- giving effect to the Government's response to recommendation 9.7 of the Report by the Senate Environment, Recreation, Communications and the Arts Legislation Committee on the Telecommunications Bills Package 1996.

  • make the definition of 'content service' in proposed section 152AC of the Trade Practices Act 1974 consistent with the definition of 'carriage service' in that provision (Amendment (4)); and

- giving effect to the Government's response to recommendation 5.1 of the Report by the Senate Environment, Recreation, Communications and the Arts Legislation Committee on the Telecommunications Bills Package 1996

  • ┬áreduce the maximum penalty attaching to proposed section 152DI from 5 years to 12 months imprisonment for the purpose of maintaining consistency with a similar offence in the Trade Practices Act 1974 (Amendment (10))."

 

Key changes

Repealed and substituted ss 2B(1) as follows:

Subsection 2B(1) Repeal the subsection, substitute:

(1) The following provisions of this Act bind the Crown in right of each of the States, of the Northern Territory and of the Australian Capital Territory, so far as the Crown carries on a business, either directly or by an authority of the State or Territory:

(a) Part IV;

(b) Part XIB;

(c) the other provisions of this Act so far as they relate to the above provisions.

Inserted

Part XIB-The telecommunications industry: anti-competitive conduct and record-keeping rules