Part XIC - Telecommunications Access Regime
The following is a simplified outline of this Part:
• This Part sets out a telecommunications access regime.
• The Commission may declare carriage services and related services to be declared services.
• Carriers and carriage service providers who provide declared services are required to comply with standard access obligations in relation to those services.
• The standard access obligations facilitate the provision of access to declared services by service providers in order that service providers can provide carriage services and/or content services.
• The terms and conditions on which carriers and carriage service providers are required to comply with the standard access obligations are subject to agreement.
• If agreement cannot be reached, but the carrier or carriage service provider has given an access undertaking, the terms and conditions are as set out in the access undertaking.
• If agreement cannot be reached, but no access undertaking is in operation, the terms and conditions are to be determined by the Commission acting as an arbitrator.
• An access undertaking (other than a special access undertaking) may adopt the terms and conditions set out in a telecommunications access code.
• The Commission may conduct an
arbitration of a dispute about access to declared services. The Commission’s
determination on the arbitration must not be inconsistent with the standard
access obligations or an access undertaking.
• The Commission may register agreements about access to declared services.
• A carrier, carriage service provider or related body must not prevent or hinder the fulfilment of a standard access obligation.
Object
(1) The object of this Part is to promote the long‑term interests of end‑users of carriage services or of services provided by means of carriage services.
Promotion of the long‑term interests of end‑users
(2) For the purposes of this Part, in determining whether a particular thing promotes the long‑term interests of end‑users of either of the following services (the listed services):
(a) carriage services;
(b) services supplied by means of carriage services;
regard must be had to the extent to which the thing is likely to result in the achievement of the following objectives:
(c) the objective of promoting competition in markets for listed services;
(d) the objective of achieving any‑to‑any connectivity in relation to carriage services that involve communication between end‑users;
(e) the objective of encouraging the economically efficient use of, and the economically efficient investment in:
(i) the infrastructure by which listed services are supplied; and
(ii) any other infrastructure by which listed services are, or are likely to become, capable of being supplied.
Subsection (2) limits matters to which regard may be had
(3) Subsection (2) is intended to limit the matters to which regard may be had.
Promoting competition
(4) In determining the extent to which a particular thing is likely to result in the achievement of the objective referred to in paragraph (2)(c), regard must be had to the extent to which the thing will remove obstacles to end‑users of listed services gaining access to listed services.
Subsection (4) does not limit matters to which regard may be had
(5) Subsection (4) does not, by implication, limit the matters to which regard may be had.
Encouraging efficient use of infrastructure etc.
(6) In determining the extent to which a particular thing is likely to result in the achievement of the objective referred to in paragraph (2)(e), regard must be had to the following matters:
(a) whether it is, or is likely to become, technically feasible for the services to be supplied and charged for, having regard to:
(i) the technology that is in use, available or likely to become available; and
(ii) whether the costs that would be involved in supplying, and charging for, the services are reasonable or likely to become reasonable; and
(iii) the effects, or likely effects, that supplying, and charging for, the services would have on the operation or performance of telecommunications networks;
(b) the legitimate commercial interests of the supplier or suppliers of the services, including the ability of the supplier or suppliers to exploit economies of scale and scope;
(c) the incentives for investment in:
(i) the infrastructure by which the services are supplied; and
(ii) any other infrastructure by which the services are, or are likely to become, capable of being supplied.
Subsection (6) does not limit matters to which regard may be had
(7) Subsection (6) does not, by implication, limit the matters to which regard may be had.
Investment risks
(7A) For the purposes of paragraph (6)(c), in determining incentives for investment, regard must be had to the risks involved in making the investment.
(7B) Subsection (7A) does not, by implication, limit the matters to which regard may be had.
Achieving any‑to‑any connectivity
(8) For the purposes of this section, the objective of any‑to‑any connectivity is achieved if, and only if, each end‑user who is supplied with a carriage service that involves communication between end‑users is able to communicate, by means of that service, with each other end‑user who is supplied with the same service or a similar service, whether or not the end‑users are connected to the same telecommunications network.
In this Part, unless the contrary intention appears:
ACMA means the Australian Communications and Media Authority.
access has the meaning given by section 152AF.
access seeker has the meaning given by section 152AG.
access undertaking means an ordinary access undertaking or a special access undertaking.
carriage service has the same meaning as in the Telecommunications Act 1997, and includes a proposed carriage service.
carriage service provider has the same meaning as in the Telecommunications Act 1997.
carrier has the same meaning as in the Telecommunications Act 1997.
carrier licence has the same meaning as in the Telecommunications Act 1997.
conditional‑access customer equipment means customer equipment that:
(a) consists of or incorporates a conditional access system that allows a service provider to determine whether an end‑user is able to receive a particular service; and
(b) either:
(i) is for use in connection with the supply of a content service; or
(ii) is of a kind specified in the regulations.
constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.
content service has the same meaning as in the Telecommunications Act 1997, and
includes a proposed content service.
customer equipment has the same meaning as in the Telecommunications Act 1997.
data processing device means any article or material (for example, a disk) from which information is capable of being reproduced, with or without the aid of any other article or device.
declared service has the meaning given by section 152AL.
facility has the same meaning as in the Telecommunications Act 1997.
Federal Court means the Federal Court of Australia.
Ministerial pricing determination means a determination under section 152CH.
modifications includes additions, omissions and substitutions.
nominated carrier has the same meaning as in the Telecommunications Act 1997.
ordinary access undertaking means an undertaking under Subdivision A of Division 5.
person includes a partnership.
Note: Section 152EN sets out additional rules about partnerships.
Procedural Rules means Procedural Rules made under section 152ELA.
service providerhas the same meaning as in the Telecommunications Act 1997.
special access undertaking means an undertaking under Subdivision B of Division 5.
standard access obligation has the meaning given by section 152AR.
telecommunications access code means a code made under section 152BJ.
telecommunications networkhas the same meaning as in the Telecommunications Act 1997.
152AD This Part binds the Crown
(1) The following provisions of this Act bind the
Crown in right of the Commonwealth, of each of the States, of the
(a) this Part;
(b) the other provisions of this Act so far as they relate to this Part.
(2) This Part does not make the Crown liable to be prosecuted for an offence.
(3) The protection in subsection (2) does not apply to an authority of the Commonwealth or an authority of a State or Territory.
152AE Extension to external Territories
This Part, and the other provisions of this Act so far as they relate to this Part, extend to each eligible Territory (within the meaning of the Telecommunications Act 1997).
(1) A reference in this Part to access, in relation to a declared service, is a reference to access by a service provider in order that the service provider can provide carriage services and/or content services.
(2) For the purposes of this Part, anything done by a carrier or carriage service provider in fulfilment of a standard access obligation is taken to be an aspect of access to a declared service.
(1) This section sets out the circumstances in which a person is taken to be an access seeker in relation to a declared service for the purposes of this Part.
(2) A service provider is an access seeker in relation to a declared service if the provider makes, or proposes to make, a request in relation to that service under section 152AR (which deals with the standard access obligations), whether or not:
(a) the request is refused; or
(b) the request is being complied with.
(3) A service provider is an access seeker in relation to a declared service if:
(a) the provider wants access to the service; or
(b) the provider wants to change some aspect of the provider’s existing access to the service; or
(c) the supplier of the service wants to change some aspect of the provider’s existing access to the service.
152AH Reasonableness—terms and conditions
(1) For the purposes of this Part, in determining whether particular terms and conditions are reasonable, regard must be had to the following matters:
(a) whether the terms and conditions promote the long‑term interests of end‑users of carriage services or of services supplied by means of carriage services;
(b) the legitimate business interests of the carrier or carriage service provider concerned, and the carrier’s or provider’s investment in facilities used to supply the declared service concerned;
(c) the interests of persons who have rights to use the declared service concerned;
(d) the direct costs of providing access to the declared service concerned;
(e) the operational and technical requirements necessary for the safe and reliable operation of a carriage service, a telecommunications network or a facility;
(f) the economically efficient operation of a carriage service, a telecommunications network or a facility.
(2) Subsection (1) does not, by implication, limit the matters to which regard may be had.
152AJ Interpretation of Part IIIA not affected by this Part
In determining the meaning of a provision of Part IIIA, the provisions of this Part (other than section 152CK) are to be ignored.
152AK Operation of Parts IV and VII not affected by this Part
This Part does not affect the operation of Parts IV and VII.
Eligible service
(1) For the purposes of this section, an eligible service is:
(a) a listed carriage service (within the meaning of the Telecommunications Act 1997); or
(b) a service that facilitates the supply of a listed carriage service (within the meaning of that Act);
where the service is supplied, or is capable of being supplied, by a carrier or a carriage service provider (whether to itself or to other persons).
Declaration made after public inquiry
(3) The Commission may, by written instrument, declare that a specified eligible service is a declared service if:
(a) the Commission has held a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make the declaration; and
(b) the Commission has prepared a report about the inquiry under section 505 of the Telecommunications Act 1997; and
(c) the report was published during the 180‑day period ending when the declaration was made; and
(d) the Commission is satisfied that the making of the declaration will promote the long‑term interests of end‑users of carriage services or of services provided by means of carriage services.
Note: Eligible services may be specified by name, by inclusion in a specified class or in any other way.
Declaration has effect
(4) A declaration under this section has effect accordingly.
Gazettal of declaration
(5) A copy of a declaration under this section is to be published in the Gazette.
Related services
(6) A reference in paragraph (1)(b) to a service that facilitates the supply of a carriage service does not include a reference to the use of intellectual property except to the extent that it is an integral but subsidiary part of the first‑mentioned service.
Services covered by special access undertakings
(7) If:
(a) a person gives the Commission a special access undertaking in relation to a service or a proposed service; and
(b) the undertaking is in operation; and
(c) the person supplies the service or proposed service (whether to itself or to other persons);
the service supplied by the person is a declared service. To avoid doubt, if the undertaking is subject to limitations, the service supplied by the person is a declared service only to the extent to which the service falls within the scope of the limitations.
(8) The Commission may declare a service under subsection (3) even if the service is, to any extent, covered by subsection (7).
Declaration is not a legislative instrument
(9) A declaration under this section is not, and is taken never to have been, a legislative instrument for the purposes of the Legislative Instruments Act 2003.
(10) A variation of a declaration made under this section is not, and is taken never to have been, a legislative instrument for the purposes of the Legislative Instruments Act 2003.
(11) A revocation of a declaration made under this section is not, and is taken never to have been, a legislative instrument for the purposes of the Legislative Instruments Act 2003.
(12) If:
(a) a declaration was made under this section before the commencement of this subsection; and
(b) the declaration ceased to be in force before the commencement of this subsection;
then:
(c) the declaration is taken never to have been a legislative instrument for the purposes of the Legislative Instruments Act 2003; and
(d) if the declaration was varied or revoked before the commencement of this subsection—the variation or revocation is taken never to have been a legislative instrument for the purposes of the Legislative Instruments Act 2003.
(13) For the purposes of paragraph (12)(b), assume that the Legislative Instruments Act 2003 had never been enacted.
(14) Subsections (9) to (12) are enacted for the avoidance of doubt.
152ALA Duration of declaration
Expiry date
(1) A declaration under section 152AL must specify an expiry date for the declaration.
(2) An expiry date must occur in the 5‑year period beginning when the declaration was made.
(3) Subsection (2) has effect subject to subsection (4).
Extension of expiry date
(4) The Commission may, by notice published in the Gazette, extend or further extend the expiry date of a specified declaration under section 152AL, so long as the extension or further extension is for a period of not more than 5 years.
Duration of declaration
(5) Unless sooner revoked, a declaration under section 152AL ceases to be in force on the expiry date of the declaration.
Fresh declaration
(6) If a declaration under section 152AL expires, this Part does not prevent the Commission from making a fresh declaration under section 152AL in the same terms as the expired declaration.
Public inquiry during 12‑month period ending on the expiry date of a declaration
(7) The Commission must:
(a) during the 12‑month period ending on the expiry date of a declaration, hold a public inquiry under Part 25 of the Telecommunications Act 1997 about:
(i) whether to extend or further extend the expiry date of the declaration; and
(ii) whether to revoke the declaration; and
(iii) whether to vary the declaration; and
(iv) whether to allow the declaration to expire without making a new declaration under section 152AL; and
(v) whether to allow the declaration to expire and then to make a new declaration under section 152AL; and
(b) prepare a report about the inquiry under section 505 of the Telecommunications Act 1997; and
(c) publish the report during the 180‑day period ending on the expiry date of the first‑mentioned declaration.
(8) If:
(a) after holding a public inquiry under subsection (7) in relation to a declaration, the Commission allows the declaration to expire and then makes a new declaration under section 152AL; and
(b) the report mentioned in paragraph (7)(b) was published during the 180‑day period ending when the new declaration was made;
the Commission is taken to have complied with paragraphs 152AL(3)(a), (b) and (c) in relation to the new declaration.
(9) If:
(a) after holding a public inquiry under subsection (7) in relation to a declaration, the Commission revokes or varies the declaration; and
(b) the report mentioned in paragraph (7)(b) was published during the 180‑day period ending at the time of the revocation or variation;
the Commission is taken to have complied with paragraphs 152AL(3)(a), (b) and (c) in relation to the revocation or variation (as those paragraphs apply to the power of revocation and variation because of subsection 152AO(1)).
Extension notice is not a legislative instrument
(10) A notice under subsection (4) is not, and is taken never to have been, a legislative instrument for the purposes of the Legislative Instruments Act 2003.
(11) If:
(a) a declaration was made under section 152AL before the commencement of this subsection; and
(b) a notice relating to the declaration was published under subsection (4) of this section before the commencement of this subsection; and
(c) the declaration ceased to be in force before the commencement of this subsection;
the notice is taken never to have been a legislative instrument for the purposes of the Legislative Instruments Act 2003.
(12) For the purposes of paragraph (11)(c), assume that the Legislative Instruments Act 2003 had never been enacted.
(13) Subsections (10) and (11) are enacted for the avoidance of doubt.
152AM Inquiries about proposals to declare services
(1) This section applies to a public inquiry of a kind mentioned in paragraph 152AL(3)(a) or 152ALA(7)(a).
(2) The Commission may hold the inquiry:
(a) on its own initiative; or
(b) if requested in writing to do so by a person.
(3) If the Commission decides not to hold a public inquiry that a person has requested under paragraph (2)(b), the Commission must notify the person in writing of the decision and of the reasons for the decision.
(4) The Commission must give the ACMA a copy of the report about the inquiry prepared in accordance with section 505 of the Telecommunications Act 1997.
(5) If the inquiry is held at the request of a person, the Commission must give the person a copy of the report about the inquiry prepared under section 505 of the Telecommunications Act 1997.
152AN Combined inquiries about proposals to declare services
(1) The Commission may decide to combine 2 or more public inquiries of a kind mentioned in paragraph 152AL(3)(a) or 152ALA(7)(a).
(2) If the Commission makes such a decision:
(a) the Commission may publish a single notice relating to the combined inquiry under section 498 of the Telecommunications Act 1997; and
(b) the Commission may prepare a single discussion paper about the combined inquiry under section 499 of that Act; and
(c) the Commission may hold hearings relating to the combined inquiry under section 501 of that Act; and
(d) the Commission must ensure that each inquiry is covered by a report under section 505 of that Act, whether the report relates:
(i) to a single one of those inquiries; or
(ii) to any 2 or more of those inquiries.
152AO Variation or revocation of declaration
(1) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a power conferred on the Commission by section 152AL, but it applies with the following changes.
(1A) If:
(a) a declaration under section 152AL relates to a particular service; and
(b) in the Commission’s opinion, the service is of minor importance;
the Commission is not required to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to revoke the declaration.
(3) If a variation of a declaration under subsection 152AL(3) is a variation that, under the Procedural Rules, is taken to be a variation of a minor nature, the Commission is not required to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about the proposed variation.
152AQ Register of declared services
(1) The Commission must keep a Register in relation to declarations under section 152AL.
(2) The Register must include the following:
(a) particulars of all such declarations (including declarations that have been revoked);
(b) particulars of variations and revocations of such declarations;
(c) copies of reports prepared in accordance with section 505 of the Telecommunications Act 1997 in relation to inquiries mentioned in paragraph 152AL(3)(a) or 152ALA(7)(a) of this Act.
(3) The Register may be maintained by electronic means.
(4) A person may, on payment of the fee (if any) specified in the regulations:
(a) inspect the Register; and
(b) make a copy of, or take extracts from, the Register.
(5) 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 Commission gives the person a printout of, or of the relevant parts of, the Register.
(6) If a person requests that a copy be provided in an electronic form, the Commission may provide the relevant information:
(a) on a data processing device; or
(b) by way of electronic transmission.
Determination
(1) The Commission must, by writing, determine principles relating to the price of access to a declared service.
Note: See subsection (6) for the effect of the determination.
(2) The determination may also contain price‑related terms and conditions relating to access to the declared service.
Timing
(3) The Commission must make such a determination at the same time as, or as soon as practicable after:
(a) the Commission declares a service to be a declared service; and
(b) if the Commission varies a declared service—that variation.
Consultation
(4) Before making such a determination, the Commission must:
(a) publish a draft of the determination and invite people to make submissions to the Commission on the draft determination; and
(b) consider any submissions that are received within the time limit specified by the Commission when it published the draft determination.
Publication
(5) The Commission must publish the determination in such manner as it considers appropriate (including in electronic form).
Arbitration
(6) The Commission must have regard to the determination if it is required to arbitrate an access dispute under Division 8 in relation to the declared service.
Ministerial pricing determinations prevail
(7) A determination under this section has no effect to the extent that it is inconsistent with any Ministerial pricing determination.
Other powers not limited
(7A) To avoid doubt, neither:
(a) this section; nor
(b) a determination under this section;
limits the Commission’s powers under the following provisions:
(c) Division 4 (which deals with the telecommunications access code);
(d) Division 5 (which deals with access undertakings).
Definition
(8) In this section:
price‑related terms and conditions means terms and conditions relating to price or a method of ascertaining price.
152AQB Model terms and conditions relating to access to core services
Core services
(1) For the purposes of this section, each of the following declared services is a core service:
(a) the Domestic PSTN Originating Access Service (as described in the relevant declaration);
(b) the Domestic PSTN Terminating Access Service (as described in the relevant declaration);
(c) the Unconditioned Local Loop Service (as described in the relevant declaration);
(d) the Local Carriage Service (as described in the relevant declaration);
(e) a declared service specified in the regulations.
Determination setting out model terms and conditions
(2) The Commission must make a written determination setting out model terms and conditions relating to access to each core service.
Timing
(3) The Commission must take all reasonable steps to ensure that a determination relating to a core service referred to in paragraph (1)(a), (b), (c) or (d) is made within 6 months after the commencement of this section.
(4) The Commission must take all reasonable steps to ensure that a determination relating to a core service specified in the regulations is made within 6 months after the relevant regulation takes effect.
Public consultation
(5) Before making a determination under this section, the Commission must:
(a) publish a draft of the determination and invite people to make submissions to the Commission on the draft determination; and
(b) consider any submissions that are received within the time limit specified by the Commission when it published the draft determination.
Consultation with ACMA
(6) Before making a determination under this section, the Commission must consult the ACMA.
Publication
(7) The Commission must publish a determination under this section in such manner as it considers appropriate (including in electronic form).
Duration of determination
(8) Unless sooner revoked, a determination under this section relating to a particular core service ceases to be in force at the end of:
(a) the period of 5 years beginning on the day on which the determination was made; or
(b) if a longer period is specified in the regulations in relation to the determination—that longer period.
Arbitration
(9) The Commission must have regard to a determination under this section if it is required to arbitrate an access dispute under Division 8 in relation to a core service covered by the determination.
Ministerial pricing determinations prevail etc.
(10) A determination under this section has no effect to the extent that it is inconsistent with:
(a) any Ministerial pricing determination; or
(b) any determination under section 152AQA.
Other powers not limited
(11) To avoid doubt, neither:
(a) this section; nor
(b) a determination under this section;
limits the Commission’s powers under the following provisions:
(c) Division 4 (which deals with the telecommunications access code);
(d) Division 5 (which deals with access undertakings).
152AQC Compensation for acquisition of property
(1) If the operation of any or all of the following provisions:
(a) subsection 152AL(9), (10), (11), (12), (13) or (14);
(b) subsection 152ALA(10), (11), (12) or (13);
would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.
(2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
(3) In this section:
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.
Division 3—Standard access obligations
152AR Standard access obligations
(1) This section sets out the standard access obligations.
Access provider and active declared services
(2) For the purposes of this section, if a carrier or a carriage service provider supplies declared services, whether to itself or to other persons:
(a) the carrier or provider is an access provider; and
(b) the declared services are active declared services.
Supply of active declared service to service provider
(3) An access provider must, if requested to do so by a service provider:
(a) supply an active declared service to the service provider in order that the service provider can provide carriage services and/or content services; and
(b) take all reasonable steps to ensure that the technical and operational quality of the active declared service supplied to the service provider is equivalent to that which the access provider provides to itself; and
(c) take all reasonable steps to ensure that the service provider receives, in relation to the active declared service supplied to the service provider, fault detection, handling and rectification of a technical and operational quality and timing that is equivalent to that which the access provider provides to itself.
Limit on paragraph (3)(a) obligation
(4) Paragraph (3)(a) does not impose an obligation to the extent (if any) to which the imposition of the obligation would have any of the following effects:
(a) preventing a service provider who already has access to the declared service from obtaining a sufficient amount of the service to be able to meet the service provider’s reasonably anticipated requirements, measured at the time when the request was made;
(b) preventing the access provider from obtaining a sufficient amount of the service to be able to meet the access provider’s reasonably anticipated requirements, measured at the time when the request was made;
(c) preventing a person from obtaining, by the exercise of a pre‑request right, a sufficient level of access to the declared service to be able to meet the person’s actual requirements;
(d) depriving any person of a protected contractual right.
Ordering and provisioning—paragraph (3)(b)
(4A) To avoid doubt, ordering and provisioning are taken to be aspects of technical and operational quality referred to in paragraph (3)(b).
(4B) The regulations may provide that, for the purposes of subsection (4A), a specified act or thing is taken to be ordering.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(4C) The regulations may provide that, for the purposes of subsection (4A), a specified act or thing is taken to be provisioning.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
Interconnection of facilities
(5) If an access provider:
(a) owns or controls one or more facilities; or
(b) is a nominated carrier in relation to one or more facilities;
the access provider must, if requested to do so by a service provider:
(c) permit interconnection of those facilities with the facilities of the service provider for the purpose of enabling the service provider to be supplied with active declared services in order that the service provider can provide carriage services and/or content services; and
(d) take all reasonable steps to ensure that:
(i) the technical and operational quality and timing of the interconnection is equivalent to that which the access provider provides to itself; and
(ii) if a standard is in force under section 384 of the Telecommunications Act 1997—the interconnection complies with the standard; and
(e) take all reasonable steps to ensure that the service provider receives, in relation to the interconnection, fault detection, handling and rectification of a technical and operational quality and timing that is equivalent to that which the access provider provides to itself.
Provision of billing information
(6) If a service provider uses active declared services supplied by an access provider in accordance with subsection (3), the access provider must, if requested to do so by the service provider, give the service provider billing information in connection with matters associated with, or incidental to, the supply of those active declared services.
Timing and content of billing information
(7) The billing information referred to in subsection (6) must:
(a) be given at such times or intervals as are ascertained in accordance with the regulations; and
(b) be given in a manner and form ascertained in accordance with the regulations; and
(c) set out such particulars as are ascertained in accordance with the regulations.
Conditional‑access customer equipment
(8) If an access provider supplies an active declared service by means of conditional‑access customer equipment, the access provider must, if requested to do so by a service provider who has made a request referred to in subsection (3), supply to the service provider any service that is necessary to enable the service provider to supply carriage services and/or content services by means of the active declared service and using the equipment.
Exceptions
(9) This section does not impose an obligation on an access provider if there are reasonable grounds to believe that:
(a) the access seeker would fail, to a material extent, to comply with the terms and conditions on which the access provider complies, or on which the access provider is reasonably likely to comply, with that obligation; or
(b) the access seeker would fail, in connection with that obligation, to protect:
(i) the integrity of a telecommunications network; or
(ii) the safety of individuals working on, or using services supplied by means of, a telecommunications network or a facility.
Examples—paragraph (9)(a) grounds
(10) Examples of grounds for believing as mentioned in paragraph (9)(a) include:
(a) evidence that the access seeker is not creditworthy; and
(b) repeated failures by the access seeker to comply with the terms and conditions on which the same or similar access has been provided (whether or not by the access provider).
Starting date for obligations
(11) An obligation imposed by this section does not
arise before
Definitions
(12) In this section:
pre‑request right, in relation to a request made for the purposes of paragraph (3)(a), means a right under a contract, or under a determination (within the meaning of Division 8), that was in force at the time when the request was made.
protected contractual right means a right under a contract that
was in force at the beginning of
152AS Ordinary class exemptions from standard access obligations
(1) The Commission may, by written instrument, determine that each of the members of a specified class of carrier or of a specified class of carriage service provider are exempt from any or all of the obligations referred to in section 152AR.
(2) A determination under this section may be unconditional or subject to such conditions or limitations as are specified in the determination.
Note: For judicial enforcement of conditions and limitations, see section 152BBAA.
(3) A determination under this section has effect accordingly.
(4) The Commission must not make a determination under this section unless the Commission is satisfied that the making of the determination will promote the long‑term interests of end‑users of carriage services or of services supplied by means of carriage services.
(5) If, in the Commission’s opinion, the making of a determination under this section is likely to have a material effect on the interests of a person, then, before making the determination, the Commission must first:
(a) publish a draft of the determination and invite people to make submissions to the Commission on the question of whether the draft determination should be made; and
(b) consider any submissions that were received within the time limit specified by the Commission when it published the draft determination.
(6) An instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Note: For variation and revocation of instruments under subsection (1), see subsection 33(3) of the Acts Interpretation Act 1901.
152ASA Anticipatory class exemptions from standard access obligations
Determination providing for exemption
(1) The Commission may, by written instrument, determine that, in the event that a specified service or proposed service becomes an active declared service, each of the members of a specified class of carrier or of a specified class of carriage service provider are exempt from any or all of the obligations referred to in section 152AR, to the extent to which the obligations relate to the active declared service.
(2) A determination under this section may be unconditional or subject to such conditions or limitations as are specified in the determination.
Note: For judicial enforcement of conditions and limitations, see section 152BBAA.
(3) A determination under this section has effect accordingly.
Criteria for making determination
(4) The Commission must not make a determination under this section unless the Commission is satisfied that the making of the determination will promote the long‑term interests of end‑users of carriage services or of services supplied by means of carriage services.
Expiry time of determination
(8) A determination under this section must specify the expiry time of the determination. If a determination expires, this Part does not prevent the Commission from making:
(a) a fresh determination under this section in the same terms as the expired determination; or
(b) if the service or proposed service has become an active declared service—a determination under section 152AS in relation to the service.
(9) The expiry time of the determination may be described by reference to the end of a period beginning when the service or proposed service becomes an active declared service.
(10) Subsection (9) does not, by implication, limit subsection (8).
Consultation
(11) If, in the Commission’s opinion, the making of a determination under this section is likely to have a material effect on the interests of a person, then, before making the determination, the Commission must first:
(a) publish a draft of the determination and invite people to make submissions to the Commission on the question of whether the draft determination should be made; and
(b) consider any submissions that were received within the time limit specified by the Commission when it published the draft determination.
Disallowable instrument
(12) An instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Definition
(13) In this section:
active declared service has the same meaning as in section 152AR.
Note: For variation and revocation of instruments under subsection (1), see subsection 33(3) of the Acts Interpretation Act 1901.
152AT Ordinary individual exemptions from standard access obligations
Application for exemption order
(1) A carrier or a carriage service provider may apply to the Commission for a written order exempting the carrier or provider from all or any of the obligations referred to in section 152AR.
(2) An application under subsection (1) must be:
(a) in writing; and
(b) in a form approved in writing by the Commission for the purposes of this paragraph.
(2A) Before the Commission makes a decision under subsection (3) in relation to the application, the applicant may, by written notice given to the Commission within the time allowed by the Procedural Rules, modify the application, so long as the modification is a modification that, under the Procedural Rules, is taken to be a modification of a minor nature.
Commission must make exemption order or refuse application
(3) After considering the application, the Commission must:
(a) make a written order exempting the applicant from one or more of the obligations referred to in section 152AR; or
(b) refuse the application.
Criteria for making exemption order
(4) The Commission must not make an order under paragraph (3)(a) unless the Commission is satisfied that the making of the order will promote the long‑term interests of end‑users of carriage services or of services provided by means of carriage services.
Exemption orders
(5) An order under paragraph (3)(a) may be unconditional or subject to such conditions or limitations as are specified in the order.
Note: For judicial enforcement of conditions and limitations, see section 152BBAA.
(6) An order under paragraph (3)(a) has effect accordingly.
(7) An order under paragraph (3)(a) may be expressed to come into effect:
(a) immediately after it is made; or
(b) on a later date specified in the order.
Expiry date for exemption order
(8) An order under paragraph (3)(a) may specify an expiry date for the order. If an order expires, this Part does not prevent the Commission from making a fresh order under paragraph (3)(a) in the same terms as the expired order.
Consultation
(9) If, in the Commission’s opinion, the making of an order under paragraph (3)(a) is likely to have a material effect on the interests of a person, then, before making the order, the Commission must first:
(a) publish the application for the order and invite people to make submissions to the Commission on the question of whether the order should be made; and
(b) consider any submissions that were received within the time limit specified by the Commission when it published the application.
Commission to make decision within 6 months
(10) If the Commission does not make a decision on an application under subsection (1) within 6 months after receiving the application, the Commission is taken to have made, at the end of that 6‑month period, an order under paragraph (3)(a) in accordance with the terms of the application.
(11) In calculating the 6‑month period referred to in subsection (10), disregard:
(a) if the Commission has published the application under subsection (9)—a day in the period:
(i) beginning on the date of publication; and
(ii) ending at the end of the time limit specified by the Commission when it published the application; and
(b) if the Commission has requested further information under section 152AU in relation to the application—a day during any part of which the request, or any part of the request, remains unfulfilled.
Extension of decision‑making period
(12) The Commission may, by written notice given to the applicant, extend or further extend the 6‑month period referred to in subsection (10), so long as:
(a) the extension or further extension is for a period of not more than 3 months; and
(b) the notice includes a statement explaining why the Commission has been unable to make a decision on the application within that 6‑month period or that 6‑month period as previously extended, as the case may be.
(13) As soon as practicable after the Commission gives a notice under subsection (12), the Commission must cause a copy of the notice to be made available on the Internet.
Notification of refusal of application
(14) If the Commission makes a decision refusing an application under subsection (1), the Commission must give the applicant a written statement setting out the reasons for the refusal.
Note: For variation and revocation of orders, see subsection 33(3) of the Acts Interpretation Act 1901.
152ATA Anticipatory individual exemptions from standard access obligations
Application for exemption order
(1) A person who is, or expects to be, a carrier or a carriage service provider may apply to the Commission for a written order that, in the event that a specified service or proposed service becomes an active declared service, the person is exempt from any or all of the obligations referred to in section 152AR, to the extent to which the obligations relate to the active declared service.
(2) An application under subsection (1) must be:
(a) in writing; and
(b) in a form approved in writing by the Commission for the purposes of this paragraph.
(2A) Before the Commission makes a decision under subsection (3) in relation to the application, the applicant may, by written notice given to the Commission within the time allowed by the Procedural Rules, modify the application, so long as the modification is a modification that, under the Procedural Rules, is taken to be a modification of a minor nature.
Commission must make exemption order or refuse application
(3) After considering the application, the Commission must:
(a) make a written order that, in the event that the service or proposed service becomes an active declared service, the applicant is exempt from one or more of the obligations referred to in section 152AR, to the extent to which the obligations relate to the active declared service; or
(b) refuse the application.
(4) An order under paragraph (3)(a) may be unconditional or subject to such conditions or limitations as are specified in the order.
Note: For judicial enforcement of conditions and limitations, see section 152BBAA.
(5) An order under paragraph (3)(a) has effect accordingly.
Criteria for making exemption order
(6) The Commission must not make an order under paragraph (3)(a) unless the Commission is satisfied that the making of the order will promote the long‑term interests of end‑users of carriage services or of services provided by means of carriage services.
Expiry time for exemption order
(10) An order under paragraph (3)(a) must specify the expiry time for the order. If an order expires, this Part does not prevent the Commission from making:
(a) a fresh order under paragraph (3)(a) in the same terms as the expired order; or
(b) if the service or proposed service has become an active declared service—an order under section 152AT in relation to the service.
(10A) The expiry time for the order may be described by reference to the end of a period beginning when the service or proposed service becomes an active declared service.
(10B) Subsection (10A) does not, by implication, limit subsection (10).
Consultation
(11) If, in the Commission’s opinion, the making of an order under paragraph (3)(a) is likely to have a material effect on the interests of a person, then, before making the order, the Commission must first:
(a) publish the application for the order and invite people to make submissions to the Commission on the question of whether the order should be made; and
(b) consider any submissions that were received within the time limit specified by the Commission when it published the application.
Commission to make decision within 6 months
(12) If the Commission does not make a decision on an application under this section within 6 months after receiving the application, the Commission is taken to have made, at the end of that 6‑month period, an order under paragraph (3)(a) in accordance with the terms of the application.
(13) In calculating the 6‑month period referred to in subsection (12), disregard:
(a) if the Commission has published the application under subsection (11)—a day in the period:
(i) beginning on the date of publication; and
(ii) ending at the end of the time limit specified by the Commission when it published the application; and
(b) if the Commission has requested further information under section 152AU in relation to the application—a day during any part of which the request, or any part of the request, remains unfulfilled.
Extension of decision‑making period
(14) The Commission may, by written notice given to the applicant, extend or further extend the 6‑month period referred to in subsection (12), so long as:
(a) the extension or further extension is for a period of not more than 3 months; and
(b) the notice includes a statement explaining why the Commission has been unable to make a decision on the application within that 6‑month period or that 6‑month period as previously extended, as the case may be.
(15) As soon as practicable after the Commission gives a notice under subsection (14), the Commission must cause a copy of the notice to be made available on the Internet.
Notification of refusal of application
(16) If the Commission makes a decision refusing an application under subsection (1), the Commission must give the applicant a written statement setting out the reasons for the refusal.
Definition
(18) In this section:
active declared service has the same meaning as in section 152AR.
Note: For variation and revocation of orders, see subsection 33(3) of the Acts Interpretation Act 1901.
152AU Individual exemptions—request for further information
(1) This section applies to an application under subsection 152AT(1) or 152ATA(1).
(2) The Commission may request the applicant to give the Commission further information about the application.
(2A) If:
(a) the Procedural Rules make provision for or in relation to a time limit for giving the information; and
(b) the applicant does not give the Commission the information within the time limit allowed by the Procedural Rules;
the Commission may, by written notice given to the applicant, refuse the application.
(2B) Subsection (2A) has effect despite anything in this Division.
(3) If the Procedural Rules do not make provision for or in relation to a time limit for giving the information, the Commission may refuse to consider the application until the applicant gives the Commission the information.
(4) The Commission may withdraw its request for further information, in whole or in part.
152AV Review by Tribunal of exemption order decision
(1) A person whose interests are affected by a decision of the Commission under section 152AT or 152ATA may apply in writing to the Tribunal for a review of the decision.
(2) The application must be made within 21 days after the Commission made the decision.
(3) The Tribunal must review the decision.
152AW Functions and powers of Tribunal
Decision on review
(1) On a review of a decision of the Commission under section 152AT or 152ATA, the Tribunal may make a decision:
(a) in any case—affirming the Commission’s decision; or
(b) in the case of a review of a decision of the Commission to make an order under paragraph 152AT(3)(a) or paragraph 152ATA(3)(a)—setting aside or varying the Commission’s decision; or
(c) in the case of a review of a decision of the Commission under section 152AT refusing an application for an order—both:
(i) setting aside the Commission’s decision; and
(ii) in substitution for the decision so set aside, making an order under paragraph 152AT(3)(a); or
(d) in the case of a review of a decision of the Commission under section 152ATA refusing an application for an order—both:
(i) setting aside the Commission’s decision; and
(ii) in substitution for the decision so set aside, making an order under paragraph 152ATA(3)(a); or
(e) in the case of a review of a decision of the Commission under section 152AT or 152ATA varying an order—setting aside or varying the Commission’s decision; or
(f) in the case of a review of a decision of the Commission under section 152AT or 152ATA refusing to vary an order—both:
(i) setting aside the Commission’s decision; and
(ii) in substitution for the decision so set aside, varying the order; or
(g) in the case of a review of a decision of the Commission under section 152AT or 152ATA revoking an order—a decision setting aside the Commission’s decision; or
(h) in the case of a review of a decision of the Commission under section 152AT or 152ATA refusing to revoke an order—both:
(i) setting aside the Commission’s decision; and
(ii) in substitution for the decision so set aside, revoking the order;
and, for the purposes of the review, the Tribunal may perform all the functions and exercise all the powers of the Commission.
(2) A decision by the Tribunal:
(a) affirming a decision of the Commission; or
(b) varying a decision of the Commission; or
(c) setting aside a decision of the Commission; or
(d) made in substitution for a decision of the Commission;
is taken, for the purposes of this Act (other than section 152AV or this section), to be a decision of the Commission.
Conduct of review
(3) For the purposes of a review by the Tribunal, the member of the Tribunal presiding at the review may require the Commission to give such information, make such reports and provide such other assistance to the Tribunal as the member specifies.
(4) For the purposes of a review, the Tribunal may have regard only to:
(a) any information given, documents produced or evidence given to the Commission in connection with the making of the decision to which the review relates; and
(b) any other information that was referred to in the Commission’s reasons for making the decision to which the review relates.
Tribunal to make decision within 6 months
(5) If:
(a) a person applies to the Tribunal for a review of a decision of the Commission under section 152AT or 152ATA; and
(b) the Tribunal does not make a decision under subsection (1) of this section on the review within 6 months after receiving the application for review;
the Tribunal is taken to have made, at the end of that 6‑month period, whichever of the following decisions is applicable:
(c) in the case of a review of a decision of the Commission to make an order under paragraph 152AT(3)(a) or paragraph 152ATA(3)(a), where the applicant for review is seeking to have the Tribunal set aside the Commission’s decision—a decision setting aside the Commission’s decision;
(d) in the case of a review of a decision of the Commission to make an order under paragraph 152AT(3)(a) or paragraph 152ATA(3)(a), where the applicant for review is seeking to have the Tribunal vary the Commission’s decision—a decision varying the Commission’s decision in accordance with the terms of the application for review;
(e) in the case of a review of a decision of the Commission under section 152AT refusing an application for an order—both:
(i) a decision setting aside the Commission’s decision; and
(ii) in substitution for the decision so set aside, a decision to make an order under paragraph 152AT(3)(a) in accordance with the terms of the application;
(f) in the case of a review of a decision of the Commission under section 152ATA refusing an application for an order—both:
(i) a decision setting aside the Commission’s decision; and
(ii) in substitution for the decision so set aside, a decision to make an order under paragraph 152ATA(3)(a) in accordance with the terms of the application;
(g) in the case of a review of a decision of the Commission under section 152AT or 152ATA varying an order, where the applicant for review is seeking to have the Tribunal set aside the Commission’s decision—a decision setting aside the Commission’s decision;
(h) in the case of a review of a decision of the Commission under section 152AT or 152ATA varying an order, where the applicant for review is seeking to have the Tribunal vary the Commission’s decision—a decision varying the Commission’s decision in the manner sought by the applicant for review;
(i) in the case of a review of a decision of the Commission under section 152AT or 152ATA refusing to vary an order—both:
(i) a decision setting aside the Commission’s decision; and
(ii) in substitution for the decision so set aside, a decision to vary the order in accordance with the terms of the application for variation;
(j) in the case of a review of a decision of the Commission under section 152AT or 152ATA revoking an order—a decision setting aside the Commission’s decision;
(k) in the case of a review of a decision of the Commission under section 152AT or 152ATA refusing to revoke an order—both:
(i) a decision setting aside the Commission’s decision; and
(ii) in substitution for the decision so set aside, a decision to revoke the order.
Extension of decision‑making period
(6) The Tribunal may, by written notice given to the applicant for review, extend or further extend the 6‑month period referred to in subsection (5), so long as:
(a) the extension or further extension is for a period of not more than 3 months; and
(b) the notice includes a statement explaining why the Tribunal has been unable to make a decision on the review within that 6‑month period or that 6‑month period as previously extended, as the case may be.
(7) As soon as practicable after the Tribunal gives a notice under subsection (6), the Tribunal must cause a copy of the notice to be made available on the Internet.
Note: Division 2 of Part IX applies to proceedings before the Tribunal.
152AX Provisions that do not apply in relation to a Tribunal review
Division 1 of Part IX does not apply in relation to a review by the Tribunal of a decision made by the Commission under section 152AT or 152ATA.
152AXA Statement of reasons for reviewable decision—specification of documents
(1) If the Commission:
(a) makes a decision under section 152AT or 152ATA; and
(b) gives a person a written statement setting out the reasons for the decision;
the statement must specify the documents that the Commission examined in the course of making the decision.
(2) If a document is specified under subsection (1), information in the document is taken, for the purposes of paragraph 152AW(4)(b), to be referred to in the Commission’s reasons for making the decision.
152AY Compliance with standard access obligations
(1) This section applies if a carrier or carriage service provider is required to comply with any or all of the standard access obligations.
(2) The carrier or carriage service provider must comply with the obligations:
(a) on such terms and conditions as are agreed between the following parties:
(i) the carrier or carriage service provider, as the case requires;
(ii) the access seeker; or
(b) failing agreement:
(i) if an access undertaking given by the carrier or carriage service provider is in operation and specifies terms and conditions about a particular matter—on such terms and conditions relating to that matter as are set out in the undertaking; or
(ii) if an access undertaking given by the carrier or carriage service provider is in operation, but the undertaking does not specify terms and conditions about a particular matter—on such terms and conditions relating to that matter as are determined by the Commission under Division 8 (which deals with arbitration of disputes about access); or
(iii) if there is no such undertaking—on such terms and conditions as are determined by the Commission under Division 8 (which deals with arbitration of disputes about access).
Note: An agreement mentioned in paragraph (a) may be registered under Division 9.
152AYA Ancillary obligations—confidential information
If:
(a) a carrier or carriage service provider is required to comply with a standard access obligation that arose because of a request made by an access seeker; and
(b) at or after the time when the request was made, the access seeker gives particular information to the carrier or carriage service provider to enable the carrier or carriage service provider to comply with the standard access obligation; and
(c) at or before the time when the information was given, the access seeker gave the carrier or carriage service provider a written notice to the effect that:
(i) that information; or
(ii) a class of information that includes that information;
is to be regarded as having been given on a confidential basis for the purpose of enabling the carrier or carriage service provider to comply with the standard access obligation;
the carrier or carriage service provider must not, without the written consent of the access seeker, use that information for a purpose other than enabling the carrier or carriage service provider to comply with:
(d) the standard access obligation; or
(e) any other standard access obligation that arose because of a request made by the access seeker; or
(f) any other obligation imposed by a law.
152AZ Carrier licence condition
A carrier licence held by a carrier is subject to a condition that the carrier must comply with:
(a) any standard access obligations that are applicable to the carrier; and
(b) any obligations under section 152AYA that are applicable to the carrier.
(1) In addition to the rules mentioned in section 98 of the Telecommunications Act 1997, the rule set out in subsection (2) of this section is a service provider rule for the purposes of that Act.
(2) A carriage service provider must comply with:
(a) any standard access obligations that are applicable to the provider; and
(b) any obligations under section 152AYA that are applicable to the provider.
152BB Judicial enforcement of standard access obligations
(1) If the Federal Court is satisfied that a carrier or carriage service provider has contravened any of the standard access obligations that are applicable to the carrier or provider, the Court may, on the application of:
(a) the Commission; or
(b) any person whose interests are affected by the contravention;
make all or any of the following orders:
(c) an order directing the carrier or provider to comply with the obligation;
(d) an order directing the carrier or provider to compensate any other person who had suffered loss or damage as a result of the contravention;
(e) any other order that the Court thinks appropriate.
(1A) If the Federal Court is satisfied that a carrier or carriage service provider has contravened an obligation imposed by section 152AYA, the Court may, on the application of:
(a) the Commission; or
(b) the access seeker who gave the information concerned;
make all or any of the following orders:
(c) an order directing the carrier or carriage service provider to comply with the obligation;
(d) an order directing the carrier or carriage service provider to compensate any other person who has suffered loss or damage as a result of the contravention;
(e) any other order that the Court thinks appropriate.
(2) The Federal Court may discharge or vary an order granted under this section.
(3) This section does not limit section 152BBAA.
152BBAA Judicial enforcement of conditions and limitations of exemption determinations and orders
(1) If the Federal Court is satisfied that a person has contravened any of the conditions or limitations of:
(a) a determination under section 152AS or 152ASA; or
(b) an order under section 152AT or 152ATA;
the Court may, on the application of:
(c) the Commission; or
(d) any person whose interests are affected by the contravention;
make all or any of the following orders:
(e) an order directing the person to comply with the condition or limitation;
(f) an order directing the person to compensate any other person who had suffered loss or damage as a result of the contravention;
(g) any other order that the Court thinks appropriate.
(2) The Federal Court may discharge or vary an order granted under this section.
(3) This section does not limit section 152BB.
152BBA Commission may give directions in relation to negotiations
(1) This section applies if a carrier or carriage service provider is required to comply with any or all of the standard access obligations.
(2) If the following parties:
(a) the carrier or carriage service provider, as the case requires;
(b) the access seeker;
propose to negotiate, or are negotiating, with a view to agreeing on terms and conditions as mentioned in paragraph 152AY(2)(a), the Commission may, for the purposes of facilitating those negotiations, if requested in writing to do so by either party, give a party a written procedural direction requiring the party to do, or refrain from doing, a specified act or thing relating to the conduct of those negotiations.
(3) The following are examples of the kinds of procedural directions that may be given under subsection (2):
(a) a direction requiring a party to give relevant information to the other party;
(b) a direction requiring a party to carry out research or investigations in order to obtain relevant information;
(c) a direction requiring a party not to impose unreasonable procedural conditions on the party’s participation in negotiations;
(d) a direction requiring a party to respond in writing to the other party’s proposal or request in relation to the time and place of a meeting;
(e) a direction requiring a party, or a representative of a party, to attend a mediation conference;
(f) a direction requiring a party, or a representative of a party, to attend a conciliation conference.
(4) For the purposes of paragraph (3)(c), if a party (the first party) imposes, as a condition on the first party’s participation in negotiations, a requirement that the other party must not disclose to the Commission any or all information, or the contents of any or all documents, provided in the course of negotiations, that condition is taken to be an unreasonable procedural condition on the first party’s participation in those negotiations.
(5) A person must not contravene a direction under subsection (2).
(6) A person must not:
(a) aid, abet, counsel or procure a contravention of subsection (5); or
(b) induce, whether by threats or promises or otherwise, a contravention of subsection (5); or
(c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (5); or
(d) conspire with others to effect a contravention of subsection (5).
(7) In deciding whether to give a direction under subsection (2), the Commission must have regard to:
(a) any guidelines in force under subsection (8); and
(b) such other matters as the Commission considers relevant.
(8) The Commission may, by written instrument, formulate guidelines for the purposes of subsection (7).
(9) In addition to its effect apart from this subsection, this section also has the effect it would have if:
(a) each reference to a carrier were, by express provision, confined to a carrier that is a constitutional corporation; and
(b) each reference to a carriage service provider were, by express provision, confined to a carriage service provider that is a constitutional corporation; and
(c) each reference to an access seeker were, by express provision, confined to an access seeker that is a constitutional corporation.
152BBB Enforcement of directions
(1) If the Federal Court is satisfied that a person has contravened subsection 152BBA(5) or (6), the Court may order the person to pay to the Commonwealth such pecuniary penalty, in respect of each contravention, as the Court determines to be appropriate.
(2) In determining the pecuniary penalty, the Court must have regard to all relevant matters, including:
(a) the nature and extent of the contravention; and
(b) the nature and extent of any loss or damage suffered as a result of the contravention; and
(c) the circumstances in which the contravention took place; and
(d) whether the person has previously been found by the Court in proceedings under this Act to have engaged in any similar conduct.
(3) The pecuniary penalty payable under subsection (1) by a body corporate is not to exceed $250,000 for each contravention.
(4) The pecuniary penalty payable under subsection (1) by a person other than a body corporate is not to exceed $50,000 for each contravention.
(5) The Commission may institute a proceeding in the Federal Court for the recovery on behalf of the Commonwealth of a pecuniary penalty referred to in subsection (1).
(6) A proceeding under subsection (5) may be commenced within 6 years after the contravention.
(7) Criminal proceedings do not lie against a person only because the person has contravened subsection 152BBA(5) or (6).
152BBC Commission’s role in negotiations
(1) This section applies if a carrier or carriage service provider is required to comply with any or all of the standard access obligations.
(2) If the following parties:
(a) the carrier or carriage service provider, as the case requires;
(b) the access seeker;
propose to negotiate, or are negotiating, with a view to agreeing on terms and conditions as mentioned in paragraph 152AY(2)(a), the parties may jointly request the Commission in writing to arrange for a representative of the Commission to attend, or mediate at, those negotiations.
(3) The Commission may comply with the request if the Commission considers that compliance with the request would be likely to facilitate those negotiations.
(4) For the purposes of this section, each of the following persons may be a representative of the Commission:
(a) a member, or associate member, of the Commission; or
(b) a person referred to in subsection 27(1); or
(c) a person engaged under section 27A.
(5) A member of the Commission is not disqualified from constituting the Commission (with other members) for the purposes of an arbitration under Division 8 of a dispute about a particular matter, merely because the member or another person attended, or mediated at, negotiations in relation to the matter in accordance with a request under this section.
152BBD Reaching agreement on terms and conditions of access
The Commission must, in exercising its powers under sections 152BBA and 152BBC, have regard to the desirability of access providers (within the meaning of section 152AR) and access seekers agreeing on terms and conditions as mentioned in paragraph 152AY(2)(a) in a timely manner.
Division 4—Telecommunications access code
152BJ Telecommunications access code
Commission may make code
(1) The Commission may, by writing, make a telecommunications access code.
Disallowable instrument
(2) A telecommunications access code is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Only one code
(3) The Commission must ensure that not more than one code is in force at a particular time.
152BK Content of telecommunications access code
(1) A telecommunications access code must set out model terms and conditions:
(a) relating to compliance with the standard access obligations; and
(b) that are capable of being adopted by ordinary access undertakings.
(2) Different sets of model terms and conditions may be set out for:
(a) different kinds of obligations; or
(b) the same kind of obligation in so far as it applies to different kinds of declared services.
(3) The Commission must not make a telecommunications access code unless the Commission is satisfied that:
(a) the code is consistent with the standard access obligations; and
(b) if any part of the code deals with price or a method of ascertaining price—the code is consistent with any Ministerial pricing determination; and
(c) each set of model terms and conditions set out in the code is reasonable.
Note: Section 152AH contains a list of matters to be taken into account in determining whether terms and conditions are reasonable.
152BL Commission must invite public submissions on telecommunications access code
The Commission must not make a telecommunications access code unless the Commission has first:
(a) published the code and invited people to make submissions to the Commission on the code; and
(b) considered any submissions that were received within the time limit specified by the Commission when it published the code.
152BM Commission must consult the ACMA about code
Before making a telecommunications access code, the Commission must consult the ACMA.
152BN Copy of code to be given to the ACMA
If the Commission makes a telecommunications access code, the Commission must give the ACMA a copy of the code.
152BR Register of telecommunications access codes
(1) The Commission must maintain a Register that includes:
(a) all telecommunications access codes (including those that are no longer in force); and
(b) all variations of telecommunications access codes.
(2) The Register may be maintained by electronic means.
(3) A person may, on payment of the fee (if any) specified in the regulations:
(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 Commission 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 Commission may provide the relevant information:
(a) on a data processing device; or
(b) by way of electronic transmission.
Division 5—Access undertakings
Subdivision A—Ordinary access undertakings
152BS What is an ordinary access undertaking?
(1) For the purposes of this Part, an ordinary access undertaking is a written undertaking given by a carrier or a carriage service provider to the Commission under which the carrier or provider undertakes to comply with the terms and conditions specified in the undertaking in relation to the applicable standard access obligations.
Note: The undertaking need not specify all terms and conditions—see subparagraph 152AY(2)(b)(ii).
(2) For the purposes of subsection (1), the applicable standard access obligations are the standard access obligations that are applicable to the carrier or provider.
(3) The text of the terms and conditions may be specified in the undertaking.
(4) Alternatively, the terms and conditions may be specified by adopting a set of model terms and conditions set out in the telecommunications access code, as in force from time to time.
(5) The terms and conditions must not be specified by a combination of the methods described in subsections (3) and (4). However, this rule does not prevent the carrier or provider from giving 2 separate undertakings in relation to the same declared service, where one undertaking specifies some of the terms and conditions using the method described in subsection (3) and the other undertaking specifies other terms and conditions using the method described in subsection (4).
(6) The undertaking must be in a form approved in writing by the Commission.
(6A) The undertaking may be without limitations or may be subject to such limitations as are specified in the undertaking.
(7) If the undertaking specifies terms and conditions using the method described in subsection (3), the undertaking must specify the expiry time of the undertaking.
(8) The expiry time of the undertaking may be described by reference to the end of a period beginning when the undertaking comes into operation.
(9) Subsection (8) does not, by implication, limit subsection (7).
(9A) If an undertaking expires, this Part does not prevent the carrier or provider from giving a fresh undertaking in the same terms as the expired undertaking.
(10) The terms and conditions specified in an undertaking may be expressed to come into effect:
(a) immediately after the undertaking is accepted by the Commission; or
(b) at a later time ascertained in accordance with the undertaking.
152BT Further information about undertaking
(1) This section applies if an ordinary access undertaking is given to the Commission by a carrier or a carriage service provider.
(2) The Commission may request the carrier or provider to give the Commission further information about the undertaking.
(2A) If:
(a) the Procedural Rules make provision for or in relation to a time limit for giving the information; and
(b) the carrier or provider does not give the Commission the information within that time limit;
the Commission may, by written notice given to the carrier or provider, reject the undertaking.
(2B) Subsection (2A) has effect despite anything in this Division.
(2C) If the Commission makes a decision under subsection (2A) to reject the undertaking, subsection 152BU(5) has effect as if the decision had been made under subsection 152BU(2).
(3) If the Procedural Rules do not make provision for or in relation to a time limit for giving the information, the Commission may refuse to consider the undertaking until the carrier or provider gives the Commission the information.
(4) The Commission may withdraw its request for further information, in whole or in part.
152BU Commission to accept or reject access undertaking
(1) This section applies if an ordinary access undertaking is given to the Commission by a carrier or carriage service provider.
(1A) Before the Commission makes a decision under subsection (2) in relation to the undertaking, the carrier or provider may, by written notice given to the Commission within the time allowed by the Procedural Rules, modify the undertaking, so long as the modification is a modification that, under the Procedural Rules, is taken to be of a minor nature.
Decision to accept or reject undertaking
(2) After considering the undertaking, the Commission must:
(a) accept the undertaking; or
(b) reject the undertaking.
Notice of decision
(3) If the Commission accepts the undertaking, the Commission must give the carrier or provider a written notice stating that the undertaking has been accepted.
(4) If the Commission rejects the undertaking, the Commission must give the carrier or provider a written notice:
(a) stating that the undertaking has been rejected; and
(b) setting out the reasons for the rejection.
Commission to make decision within 6 months
(5) If the Commission does not make a decision under subsection (2) about the undertaking within 6 months after receiving the undertaking, the Commission is taken to have made, at the end of that 6‑month period, a decision under subsection (2) to accept the undertaking.
(6) In calculating the 6‑month period referred to in subsection (5), disregard:
(a) if the Commission has published the undertaking under paragraph 152BV(2)(a)—a day in the period:
(i) beginning on the date of publication; and
(ii) ending at the end of the time limit specified by the Commission when it published the undertaking; and
(b) if the Commission has requested further information under section 152BT in relation to the undertaking—a day during any part of which the request, or any part of the request, remains unfulfilled.
Extension of decision‑making period
(7) The Commission may, by written notice given to the carrier or provider, extend or further extend the 6‑month period referred to in subsection (5), so long as:
(a) the extension or further extension is for a period of not more than 3 months; and
(b) the notice includes a statement explaining why the Commission has been unable to make a decision on the undertaking within that 6‑month period or that 6‑month period as previously extended, as the case may be.
(8) As soon as practicable after the Commission gives a notice under subsection (7), the Commission must cause a copy of the notice to be made available on the Internet.
152BV Acceptance of access undertaking—model terms and conditions in access code not adopted
(1) This section applies if:
(a) an ordinary access undertaking is given to the Commission by a carrier or a carriage service provider; and
(b) the undertaking does not adopt a set of model terms and conditions set out in the telecommunications access code.
(2) The Commission must not accept the undertaking unless:
(a) the Commission has:
(i) published the undertaking and invited people to make submissions to the Commission on the undertaking; and
(ii) considered any submissions that were received within the time limit specified by the Commission when it published the undertaking; and
(b) the Commission is satisfied that the undertaking is consistent with the standard access obligations that are applicable to the carrier or provider; and
(c) if the undertaking deals with price or a method of ascertaining price—the Commission is satisfied that the undertaking is consistent with any Ministerial pricing determination; and
(d) the Commission is satisfied that the terms and conditions specified in the undertaking are reasonable; and
(e) the expiry time of the undertaking occurs within 3 years after the date on which the undertaking comes into operation.
Note: Section 152AH contains a list of matters to be taken into account in determining whether terms and conditions are reasonable.
152BW Acceptance of access undertaking—model terms and conditions in access code adopted
(1) This section applies if:
(a) an ordinary access undertaking is given to the Commission by a carrier or a carriage service provider; and
(b) the undertaking adopts a set of model terms and conditions set out in the telecommunications access code.
(2) The Commission must accept the undertaking.
152BX Duration of access undertaking
(1) This section applies if an ordinary access undertaking is given to the Commission.
(2) If the Commission accepts the undertaking:
(a) the undertaking comes into operation:
(i) if the terms and conditions specified in the undertaking are expressed to come into effect immediately after the undertaking is accepted by the Commission—at the time of acceptance; or
(ii) if the terms and conditions specified in the undertaking are expressed to come into effect at a later time ascertained in accordance with the undertaking—at that later time; and
(b) the undertaking continues in operation until:
(i) in the case of an undertaking that specifies an expiry time—the expiry time; or
(ii) in the case of an undertaking that adopts a set of model terms and conditions set out in the telecommunications access code—the code is revoked or is varied so as to omit that set of terms and conditions; or
(iii) in any case—the undertaking is withdrawn as mentioned in section 152CA or 152CB.
152BY Variation of access undertakings
(1) This section applies if an ordinary access undertaking given by a carrier or a carriage service provider is in operation.
(2) The carrier or provider may give the Commission a variation of the undertaking.
(2A) Before the Commission makes a decision under subsection (3) in relation to the variation, the carrier or provider may, by written notice given to the Commission within the time allowed by the Procedural Rules, modify the variation, so long as the modification is a modification that, under the Procedural Rules, is taken to be a modification of a