Prepared by the Office of Parliamentary Counsel, Canberra
Telecommunications Act 1997
No. 47, 1997
Compilation No. 85
Compilation date: 23 June 2017
Includes amendments up to: Act No. 51, 2017
Registered: 30 June 2017
This compilation is in 2 volumes
Volume 1: sections 1–594
Volume 2: Schedules
Endnotes
Each volume has its own contents
Authorised Version C2017C00179 registered 30/06/2017
About this compilation
This compilation
This is a compilation of the Telecommunications Act 1997 that shows the text of
the law as amended and in force on 23 June 2017 (the compilation date).
The notes at the end of this compilation (the endnotes) include information
about amending laws and the amendment history of provisions of the compiled
law.
Uncommenced amendments
The effect of uncommenced amendments is not shown in the text of the
compiled law. Any uncommenced amendments affecting the law are accessible
on the Legislation Register (www.legislation.gov.au). The details of
amendments made up to, but not commenced at, the compilation date are
underlined in the endnotes. For more information on any uncommenced
amendments, see the series page on the Legislation Register for the compiled
law.
Application, saving and transitional provisions for provisions and
amendments
If the operation of a provision or amendment of the compiled law is affected by
an application, saving or transitional provision that is not included in this
compilation, details are included in the endnotes.
Editorial changes
For more information about any editorial changes made in this compilation, see
the endnotes.
Modifications
If the compiled law is modified by another law, the compiled law operates as
modified but the modification does not amend the text of the law. Accordingly,
this compilation does not show the text of the compiled law as modified. For
more information on any modifications, see the series page on the Legislation
Register for the compiled law.
Self-repealing provisions
If a provision of the compiled law has been repealed in accordance with a
provision of the law, details are included in the endnotes.
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Contents
Part 1—Introduction 1 1 Short title...........................................................................1
2 Commencement.................................................................1
3 Objects ..............................................................................1
4 Regulatory policy ..............................................................3
5 Simplified outline..............................................................3
6 Main index ........................................................................7
7 Definitions.........................................................................8
8 Crown to be bound ..........................................................22
9 Extra-territorial application .............................................22
10 Extension to external Territories .....................................22
11 Extension to offshore areas .............................................22
11A Application of the Criminal Code ...................................23
12 Act subject to Radiocommunications Act .......................23
13 Continuity of partnerships ...............................................24
14 Controlled carriage services, controlled networks
and controlled facilities ...................................................24
15 Content service................................................................25
16 Listed carriage services ...................................................26
18 Access to an emergency call service ...............................27
19 Recognised person who operates an emergency
call service.......................................................................27
20 Customer cabling.............................................................27
21 Customer equipment........................................................28
22 Customer cabling and customer equipment—
boundary of a telecommunications network ....................29
23 Immediate circle ..............................................................31
24 Extended meaning of use.................................................36
Part 2—Network units 37
Division 1—Simplified outline 37
25 Simplified outline............................................................37
Division 2—Basic definition 38
26 Single line links connecting distinct places in
Australia ..........................................................................38
27 Multiple line links connecting distinct places in
Australia ..........................................................................38
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28 Designated radiocommunications facility .......................39
29 Facilities specified in Ministerial determination..............40
Division 3—Related definitions 41
30 Line links.........................................................................41
31 Designated radiocommunications facility .......................41
32 Public mobile telecommunications service......................43
33 Intercell hand-over functions...........................................44
34 When a base station is part of a terrestrial
radiocommunications customer access network..............45
35 Fixed radiocommunications link .....................................46
Division 4—Distinct places 48
36 Distinct places—basic rules ............................................48
37 Properties.........................................................................48
38 Combined areas ...............................................................49
39 Principal user of a property .............................................50
40 Eligible combined areas ..................................................50
Part 3—Carriers 51
Division 1—Simplified outline 51
41 Simplified outline............................................................51
Division 2—Prohibitions relating to carriers 52
42 Network unit not to be used without carrier licence
or nominated carrier declaration......................................52
43 Continuing offences ........................................................53
44 Supply to the public.........................................................53
45 Exemption—defence .......................................................55
46 Exemption—intelligence operations ...............................56
47 Exemption—transport authorities....................................56
48 Exemption—broadcasting services .................................57
49 Exemption—electricity supply bodies.............................59
50 Exemption—line links authorised by or under
previous laws...................................................................60
51 Exemption—Ministerial determination ...........................62
Division 3—Carrier licences 64
52 Applications for carrier licence .......................................64
53 Form of application etc....................................................64
53A Copy of application to be given to
Communications Access Co-ordinator ............................64
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54 Application to be accompanied by charge .......................64
55 Further information .........................................................65
56 Grant of licence ...............................................................65
56A Consultation with Communications Access
Co-ordinator ....................................................................65
57 Carrier licence has effect subject to this Act ...................67
58 Refusal of carrier licence—disqualified applicant...........67
58A Refusal of carrier licence—security ................................70
59 Time limit on licence decision.........................................71
60 Notification of refusal of application...............................73
61 Conditions of carrier licence specified in
Schedule 1 .......................................................................73
62 Condition of carrier licence set out in
section 152AZ of the Competition and Consumer
Act 2010 ..........................................................................73
62A Condition of carrier licence set out in
section 152BCO of the Competition and
Consumer Act 2010 .........................................................74
62B Condition of carrier licence set out in
section 152BDF of the Competition and Consumer
Act 2010 ..........................................................................74
62C Condition of carrier licence set out in
section 152BEC of the Competition and Consumer
Act 2010 ..........................................................................74
62D Condition of carrier licence set out in
section 152CJC of the Competition and Consumer
Act 2010 ..........................................................................74
62E Condition of carrier licence set out in section 37 of
the National Broadband Network Companies Act
2011.................................................................................75
63 Conditions of carrier licence declared by Minister..........75
64 Consultation about declared licence conditions...............76
65 Conditions about foreign ownership or control ...............77
67 Carrier licence conditions—special provisions ...............77
68 Compliance with conditions ............................................78
69 Remedial directions—breach of condition ......................78
69AA Remedial directions—breach of conditions
relating to access .............................................................80
70 Formal warnings—breach of condition ...........................81
71 Surrender of carrier licence .............................................84
72 Cancellation of carrier licence.........................................84
73 Collection of charges relating to carrier licences.............85
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73A Refund of application charge...........................................87
74 Collection of charges on behalf of the
Commonwealth ...............................................................88
75 Cancellation of certain exemptions from charge .............88
76 Commonwealth not liable to charge ................................88
Division 4—Nominated carrier declarations 89
77 Applications for nominated carrier declarations..............89
78 Application to be accompanied by charge etc. ................89
79 Form of application etc....................................................89
80 Further information .........................................................89
81 Making a nominated carrier declaration ..........................90
81A Obligations of nominated carrier .....................................90
82 Notification of refusal of application...............................91
83 Revocation of nominated carrier declaration...................91
Division 5—Register of nominated carrier declarations and
carrier licences 93
84 Register of nominated carrier declarations and
carrier licences.................................................................93
Part 4—Service providers 94
Division 1—Simplified outline 94
85 Simplified outline............................................................94
Division 2—Service providers 95
86 Service providers.............................................................95
Division 3—Carriage service providers 96
87 Carriage service providers ...............................................96
88 Supply to the public.........................................................98
89 Exemption from definition—customers located on
the same premises............................................................99
90 Exemption from definition—defence ..............................99
91 Exemption from definition—intelligence
operations ......................................................................100
92 Exemption from definition—transport authorities.........100
93 Exemption from definition—broadcasting services ......101
94 Exemption from definition—electricity supply
bodies ............................................................................102
95 Exemption from definition—Ministerial
determination.................................................................102
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96 Exemption from certain regulatory provisions—
Ministerial determination ..............................................103
Division 4—Content service providers 104
97 Content service providers ..............................................104
Division 5—Service provider rules 105
98 Service provider rules....................................................105
99 Service provider determinations....................................106
100 Exemptions from service provider rules........................107
101 Service providers must comply with service
provider rules ................................................................107
102 Remedial directions—breach of service provider
rules...............................................................................108
103 Formal warnings—breach of service provider rules......110
Part 5—Monitoring of the performance of carriers and
carriage service providers 112 104 Simplified outline..........................................................112
105 Monitoring of performance—annual report ..................112
105A Monitoring of performance—additional report .............114
105C Monitoring of breaches by Telstra of an
undertaking about structural separation.........................115
Part 6—Industry codes and industry standards 116
Division 1—Simplified outline 116
106 Simplified outline..........................................................116
Division 2—Interpretation 117
107 Industry codes ...............................................................117
108 Industry standards .........................................................117
108A Electronic messaging service provider ..........................117
108B Telecommunications industry .......................................118
109 Telecommunications activity.........................................118
109B Telemarketing activity...................................................118
109C Fax marketing activity...................................................120
110 Sections of the telecommunications industry ................122
110B Sections of the telemarketing industry ..........................124
110C Sections of the fax marketing industry ..........................124
111 Participants in a section of the telecommunications
industry..........................................................................125
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111AA Participants in a section of the telemarketing
industry..........................................................................125
111AB Participants in a section of the fax marketing
industry..........................................................................126
111B Unsolicited commercial electronic messages ................126
Division 3—General principles relating to industry codes and
industry standards 127
112 Statement of regulatory policy ......................................127
113 Examples of matters that may be dealt with by
industry codes and industry standards ...........................129
114 Industry codes and industry standards may confer
powers on the Telecommunications Industry
Ombudsman ..................................................................132
115 Industry codes and industry standards not to deal
with certain design features and performance
requirements ..................................................................132
116 Industry codes and industry standards not to deal
with matters dealt with by codes and standards
under Part 9 of the Broadcasting Services Act ..............134
116A Industry codes and standards do not affect Privacy
Act 1988 ........................................................................134
Division 4—Industry codes 135
117 Registration of industry codes .......................................135
118 ACMA may request codes.............................................137
119 Publication of notice where no body or association
represents a section of the telecommunications
industry, the telemarketing industry or the fax
marketing industry.........................................................140
119A Variation of industry codes ...........................................140
119B Publication requirements for submissions .....................143
120 Replacement of industry codes......................................146
121 Directions about compliance with industry codes .........146
122 Formal warnings—breach of industry codes .................147
122A De-registering industry codes and provisions of
industry codes................................................................148
Division 5—Industry standards 149
123 ACMA may determine an industry standard if a
request for an industry code is not complied with .........149
124 ACMA may determine industry standard where no
industry body or association formed..............................150
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125 ACMA may determine industry standards where
industry codes fail .........................................................151
125AA ACMA must determine an industry standard if
directed by the Minister.................................................152
125A ACMA must determine certain industry standards
relating to the telemarketing industry ............................153
125B ACMA must determine certain industry standards
relating to the fax marketing industry............................154
126 Industry standards not to be determined for certain
privacy matters ..............................................................155
128 Compliance with industry standards..............................155
129 Formal warnings—breach of industry standards ...........156
130 Variation of industry standards......................................156
131 Revocation of industry standards ..................................157
132 Public consultation on industry standards .....................157
133 Consultation with ACCC and the
Telecommunications Industry Ombudsman ..................158
134 Consultation with Information Commissioner ..............158
135 Consultation with consumer body .................................159
135A Consultation with the States and Territories..................159
Division 6—Register of industry codes and industry standards 160
136 ACMA to maintain Register of industry codes and
industry standards..........................................................160
Division 6A—Reimbursement of costs of development or
variation of consumer-related industry codes 161
136A Application for eligibility for reimbursement of
costs of development or variation of
consumer-related industry code.....................................161
136B Declaration of eligibility for reimbursement of
costs of development or variation of
consumer-related industry code.....................................162
136C Reimbursement of costs of developing or varying
consumer-related industry code.....................................164
136D Costs—transactions between persons not at arm’s
length.............................................................................167
136E Refundable cost .............................................................167
Division 7—Miscellaneous 168
137 Protection from civil proceedings..................................168
138 Implied freedom of political communication ................168
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139 Agreements for the carrying on of telemarketing
activities or fax marketing activities must require
compliance with this Part ..............................................168
Part 7—Layer 2 bitstream services 170 140 Simplified outline..........................................................170
141 Supply of Layer 2 bitstream services.............................170
141A Exemptions....................................................................173
141B Deemed networks ..........................................................173
141C Certain installations and connections are not taken
to be an extension, alteration or upgrade .......................175
141D Local access line............................................................175
141E Alteration.......................................................................176
141F Upgrade of telecommunications network ......................176
141G Small business customer ...............................................176
Part 8—Superfast fixed-line networks 177
Division 1—Introduction 177
142 Simplified outline..........................................................177
142A Definitions.....................................................................177
Division 2—Supply of eligible services to be on wholesale basis 180
143 Supply of eligible services to be on wholesale
basis...............................................................................180
144 Exemptions—Ministerial instrument.............................181
145 Exemption—transport authorities..................................182
146 Exemption—electricity supply bodies...........................183
147 Exemption—gas supply bodies .....................................183
148 Exemption—water supply bodies..................................184
149 Exemption—sewerage services bodies..........................184
150 Exemption—storm water drainage services bodies .......185
151 Exemption—State or Territory road authorities ............185
Division 3—Other provisions 187
152 Associate .......................................................................187
153 Control ..........................................................................188
154 Control of a company ....................................................188
155 When a person is in a position to exercise control
of a network...................................................................188
156 Deemed networks ..........................................................190
157 Certain installations and connections are not taken
to be an extension, alteration or upgrade .......................191
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158 Local access line............................................................192
159 Alteration.......................................................................192
160 Upgrade of telecommunications network ......................192
Part 13—Protection of communications 193
Division 1—Introduction 193
270 Simplified outline..........................................................193
271 Eligible person...............................................................193
272 Number-database operator and eligible
number-database person ................................................194
273 Information....................................................................194
274 Telecommunications contractor ....................................194
275 Number-database contractor..........................................195
275A Location information.....................................................195
275B Emergency management person....................................195
275C Emergency.....................................................................196
275D Emergency law..............................................................196
275E Relevant information.....................................................196
Division 2—Primary disclosure/use offences 197
276 Primary disclosure/use offence—eligible persons.........197
277 Primary disclosure/use offence—eligible
number-database persons...............................................199
278 Primary disclosure/use offence—emergency call
persons ..........................................................................201
Division 3—Exceptions to primary disclosure/use offences 203
Subdivision A—Exceptions 203
279 Performance of person’s duties .....................................203
280 Authorisation by or under law.......................................204
281 Witnesses.......................................................................206
284 Assisting the ACMA, the eSafety Commissioner,
the ACCC or the Telecommunications Industry
Ombudsman ..................................................................207
285 Integrated public number database ................................208
285A Data for emergency warnings........................................212
286 Calls to emergency service number...............................213
287 Threat to person’s life or health.....................................213
288 Communications for maritime purposes........................214
289 Knowledge or consent of person concerned ..................214
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290 Implicit consent of sender and recipient of
communication ..............................................................214
291 Business needs of other carriers or service
providers........................................................................215
291A Location dependent carriage services ............................217
292 Circumstances prescribed in the regulations .................218
293 Uses connected with exempt disclosures.......................218
294 Effect of this Subdivision ..............................................219
Subdivision B—Burden of proof 219
295 Burden of proof .............................................................219
Division 3A—Integrated public number database authorisations 220
Subdivision A—ACMA scheme for the granting of authorisations 220
295A ACMA to make integrated public number database
scheme...........................................................................220
295B Scheme must deal with certain matters .........................220
295C Applications may be treated differently ........................221
295D Scope of authorisations .................................................221
295E Provisional and final authorisations ..............................221
295F Conditions .....................................................................221
295G Varying or revoking authorisations ...............................221
295H Scheme may confer administrative powers on the
ACMA...........................................................................222
295J Ancillary or incidental provisions .................................222
295K Scheme-making power not limited................................222
295L Variation of scheme.......................................................222
295M Consultation ..................................................................222
Subdivision B—Ministerial instruments 223
295N Criteria for deciding authorisation applications.............223
295P Conditions .....................................................................223
295Q Other reviewable decisions............................................224
Subdivision C—Enforcing compliance with conditions of
authorisations 224
295R Offence of breaching a condition ..................................224
295S Remedial directions for breaching a condition ..............224
295T Formal warnings for breaching a condition ...................225
Subdivision D—Report to Minister 225
295U Report to Minister .........................................................225
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Division 3B—Emergency warnings 226
295V Use or disclosure of information by emergency
management persons .....................................................226
295W Use or disclosure of information by other persons ........227
295X Effect on telecommunications network .........................227
295Y Coronial and other inquiries ..........................................227
295Z Offence—use or disclosure of information by
emergency management persons ...................................228
295ZA Offence—use or disclosure of information by
other persons .................................................................228
295ZB Reports of access ...........................................................229
295ZC Annual reports to the ACMA and Information
Commissioner ...............................................................229
295ZD Arrangements with States and Territories .....................230
295ZE Commonwealth immunity .............................................230
Division 4—Secondary disclosure/use offences 231
296 Performance of person’s duties .....................................231
297 Authorisation by or under law.......................................231
299 Assisting the ACMA, the eSafety Commissioner,
the ACCC or the Telecommunications Industry
Ombudsman ..................................................................231
299A Integrated public number database ................................232
300 Threat to person’s life or health.....................................233
301 Communications for maritime purposes........................234
302 Business needs of other carriers or service
providers........................................................................234
302A Location dependent carriage services ............................235
303 Secondary offence—contravening this Division ...........235
303A Generality of Division not limited.................................235
Division 4A—Relationship with the Privacy Act 1988 236
303B Acts taken to be authorised by this Act for
purposes of Privacy Act ................................................236
303C Prosecution of an offence against this Part does
not affect proceedings under the Privacy Act 1988 .......236
Division 5—Record-keeping requirements 237
304 Associate .......................................................................237
305 Authorisations under the Telecommunications
(Interception and Access) Act 1979 ...............................237
306 Record of disclosures—general.....................................237
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306A Record of disclosures—prospective authorisation
under the Telecommunications (Interception and
Access) Act 1979 ...........................................................239
307 Incorrect records............................................................240
308 Annual reports to the ACMA by carriers, carriage
service providers or number-database operators............241
309 Monitoring by the Information Commissioner ..............241
Division 6—Instrument-making powers not limited 243
310 Instrument-making powers not limited..........................243
Part 14—National interest matters 244 311 Simplified outline..........................................................244
312 ACMA’s obligations .....................................................244
313 Obligations of carriers and carriage service
providers........................................................................245
314 Terms and conditions on which help is to be given.......247
315 Suspension of supply of carriage service in an
emergency .....................................................................249
316 Generality of Part not limited ........................................250
Part 16—Defence requirements and disaster plans 251
Division 1—Introduction 251
333 Simplified outline..........................................................251
334 Defence authority ..........................................................251
Division 2—Supply of carriage services 252
335 Requirement to supply carriage services for
defence purposes or for the management of natural
disasters .........................................................................252
Division 3—Defence planning 254
336 Definitions.....................................................................254
337 Preparation of draft agreement ......................................254
338 ACMA’s certification of draft agreement......................255
339 Requirement to enter into certified agreement ..............256
340 Compliance with agreement ..........................................256
341 Withdrawal of certification of agreement ......................256
342 Duration of agreement...................................................257
343 Variation of agreement ..................................................257
Division 4—Disaster plans 259
344 Designated disaster plans ..............................................259
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345 Carrier licence conditions about designated
disaster plans .................................................................259
346 Service provider determinations about designated
disaster plans .................................................................259
346A Carrier and carriage service provider immunity ............259
Division 5—Delegation 261
347 Delegation .....................................................................261
Part 17—Pre-selection in favour of carriage service providers 262 348 Simplified outline..........................................................262
349 Requirement to provide pre-selection............................262
350 When pre-selection is provided in favour of a
carriage service provider ...............................................268
350A Declared carriage services .............................................269
351 Pre-selection to be provided ..........................................270
352 Exemptions from requirement to provide
pre-selection ..................................................................271
353 Use of over-ride dial codes............................................271
Part 18—Calling line identification 273 354 Simplified outline..........................................................273
355 Calling line identification ..............................................273
356 Exemptions from calling line identification
requirement ...................................................................273
Part 20—International aspects of activities of the
telecommunications industry 275
Division 1—Simplified outline 275
364 Simplified outline..........................................................275
Division 2—Compliance with international agreements 276
365 INTELSAT and Inmarsat—directions to
Signatories.....................................................................276
366 Compliance with conventions .......................................276
Division 3—Rules of conduct about dealings with international
telecommunications operators 278
367 Rules of conduct about dealings with international
telecommunications operators .......................................278
368 ACCC to administer Rules of Conduct .........................280
369 Rules of Conduct to bind carriers and carriage
service providers ...........................................................281
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370 Unenforceability of agreements.....................................281
371 Investigations by the ACCC..........................................281
372 Reviews of the operation of this Division .....................282
Part 20A—Deployment of optical fibre etc. 283
Division 1—Simplified outline 283
372A Simplified outline..........................................................283
Division 2—Deployment of optical fibre lines 285
372B Deployment of optical fibre lines to building lots .........285
372C Deployment of optical fibre lines to building units .......287
372D Exemptions—Ministerial instrument.............................289
Division 3—Installation of fibre-ready facilities 290
Subdivision A—Installation obligations 290
372E Installation of fibre-ready facilities—building lots........290
372F Installation of fibre-ready facilities—building
units...............................................................................291
Subdivision B—Sale of building lots and building units 293
372G Sale of building lots and building units—
subdivisions...................................................................293
372H Sale of building units—other projects ...........................295
Subdivision C—NBN Co may issue statement about the
non-installation of optical fibre lines 297
372J NBN Co may issue statement about the
non-installation of optical fibre lines.............................297
372JA Register of Statements about the Non-installation
of Optical Fibre Lines....................................................298
Subdivision D—Exemptions 298
372K Exemptions—Ministerial instrument.............................298
Division 4—Third party access regime 301
372L Third party access regime..............................................301
372M Terms and conditions of access .....................................303
372N Exemptions—Ministerial instrument.............................304
372NA Code relating to access ..................................................304
Division 5—Exemption of certain projects 306
372P Exemption of certain projects........................................306
Division 6—Miscellaneous 307
372Q Real estate development projects etc. ............................307
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372R Subdivision of an area of land .......................................309
372S Building units ................................................................309
372T Sale of building lots.......................................................309
372U Sale of building units.....................................................310
372V Fixed-line facilities........................................................310
372W Fibre-ready facility ........................................................311
372X Installation of a facility..................................................311
372Y Installation of a fibre-ready facility in proximity to
a building lot or building unit ........................................311
372Z Sewerage services, electricity or water supplied to
a building lot or building unit ........................................312
372ZA Supply to the public.......................................................313
372ZB Concurrent operation of State and Territory laws..........314
372ZD NBN Co.........................................................................314
Part 21—Technical regulation 315
Division 1—Simplified outline 315
373 Simplified outline..........................................................315
Division 2—Interpretative provisions 317
374 Part applies to networks or facilities in Australia
operated by carriers or carriage service providers .........317
375 Manager of network or facility......................................317
Division 3—Technical standards about customer equipment and
customer cabling 318
376 ACMA’s power to make technical standards ................318
376A ACMA must make technical standards if directed
by the Minister ..............................................................320
377 Adoption of voluntary standards ...................................320
378 Procedures for making technical standards ...................320
379 Making technical standards in cases of urgency............321
Division 4—Disability standards 323
380 Disability standards .......................................................323
381 Adoption of voluntary standards ...................................323
382 Procedures for making disability standards ...................324
383 Effect of compliance with disability standards..............325
Division 5—Technical standards about the interconnection of
facilities 326
384 ACMA’s power to make technical standards ................326
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385 Adoption of voluntary standards ...................................327
386 Procedures for making technical standards ...................327
387 Procedures for making technical standards ...................328
388 Provision of access ........................................................329
389 Promotion of the long-term interests of end-users
of carriage services and of services supplied by
means of carriage services.............................................329
Division 5A—Technical standards relating to Layer 2 bitstream
services 330
389A ACMA’s power to determine technical standards .........330
389B Compliance with technical standards ............................330
Division 6—Connection permits and connection rules 332
Subdivision A—Connection permits authorising the connection of
non-standard customer equipment and
non-standard cabling 332
390 Application for connection permit.................................332
391 Form of application .......................................................332
392 Application to be accompanied by charge .....................333
393 Further information .......................................................333
394 Issue of connection permits ...........................................333
395 Connection permit has effect subject to this Act ...........334
396 Nominees of holder .......................................................334
397 Duration of connection permits .....................................334
398 Conditions of connection permits..................................335
399 Offence of contravening condition ................................335
400 Formal warnings—breach of condition .........................336
401 Surrender of connection permit .....................................336
402 Cancellation of connection permit.................................336
403 Register of connection permits ......................................337
Subdivision B—Connection rules 338
404 Connection rules............................................................338
405 Procedures for making connection rules........................338
Division 7—Labelling of customer equipment and customer
cabling 340
406 Application of labels .....................................................340
406A Application of Division to agent of manufacturer
or importer.....................................................................340
407 Labelling requirements..................................................340
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408 Requirements to apply labels—ancillary matters ..........341
409 Recognised testing authorities and competent
bodies ............................................................................343
410 Certification bodies .......................................................343
411 Connection of customer equipment or customer
cabling—breach of section 376 standards .....................343
412 Connection of labelled customer equipment or
customer cabling not to be refused ................................345
413 Supply of unlabelled customer equipment or
unlabelled customer cabling ..........................................347
414 Applying labels before satisfying requirements
under subsection 408(5) ................................................347
415 Failure to retain records etc. ..........................................348
416 Application of labels containing false statements
about compliance with standards...................................349
Division 8—Protected symbols 350
417 Protected symbols .........................................................350
Division 9—Cabling providers 354
418 Cabling work.................................................................354
419 Types of cabling work ...................................................354
420 Prohibition of unauthorised cabling work .....................354
421 Cabling provider rules ...................................................355
422 Procedures for making cabling provider rules ...............356
423 Application for cabling licence......................................357
424 Form of application .......................................................357
425 Application to be accompanied by charge .....................357
426 Further information .......................................................357
427 Grant of cabling licence ................................................357
428 Time limit on licence decision.......................................358
429 Notification of refusal of application.............................359
430 Cabling licence has effect subject to this Act ................359
431 Duration of cabling licence ...........................................359
432 Conditions of cabling licence ........................................359
433 Procedures for changing licence conditions ..................360
434 Offence in relation to contravening condition ...............360
435 Formal warnings—breach of condition .........................361
436 Surrender of cabling licence..........................................361
437 Suspension of cabling licence .......................................362
438 Cancellation of cabling licence......................................362
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439 ACMA may limit application of Division in
relation to customer cabling ..........................................363
440 Ministerial directions.....................................................363
441 Delegation .....................................................................364
442 Register of cabling licences...........................................365
Division 10—Remedies for unauthorised connections to
telecommunications networks etc. 366
443 Civil action for unauthorised connections to
telecommunications networks etc..................................366
444 Remedy for contravention of labelling
requirements ..................................................................367
445 Remedies for connection of unlabelled customer
equipment or unlabelled customer cabling ....................368
446 Disconnection of dangerous customer equipment
or customer cabling .......................................................370
447 Disconnection of customer equipment or customer
cabling—protection of the integrity of networks
and facilities ..................................................................372
448 Civil action for dangerous connections to
telecommunications networks etc..................................373
449 Other remedies not affected...........................................374
Division 11—Prohibited customer equipment and prohibited
customer cabling 375
450 Declaration of prohibited customer equipment or
prohibited customer cabling ..........................................375
452 Operation of prohibited customer equipment or
customer cabling ...........................................................375
Division 12—Pre-commencement labels 377
453 Pre-commencement labels.............................................377
Division 13—Penalties payable instead of prosecution 378
453A Penalties payable instead of prosecution .......................378
Part 22—Numbering of carriage services and regulation of
electronic addressing 379
Division 1—Simplified outline 379
454 Simplified outline..........................................................379
Division 2—Numbering of carriage services 380
Subdivision A—Numbering plan 380
455 Numbering plan.............................................................380
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456 Numbering plan—supply to the public..........................382
457 Numbering plan—allocation otherwise than in
accordance with an allocation system............................382
458 Numbering plan—rules about portability of
allocated numbers..........................................................382
459 ACMA to administer numbering plan ...........................383
460 Consultation about numbering plan...............................383
461 Consultation with ACCC...............................................384
462 Compliance with the numbering plan............................385
Subdivision B—Allocation system for numbers 386
463 Allocation system for numbers......................................386
464 Consultation about an allocation system .......................387
Subdivision C—Miscellaneous 388
465 Register of allocated numbers .......................................388
466 Emergency service numbers..........................................389
467 Delegation .....................................................................390
468 Collection of numbering charges...................................391
469 Collection of charges on behalf of the
Commonwealth .............................................................393
470 Cancellation of certain exemptions from charge ...........393
471 Commonwealth not liable to charge ..............................393
472 Integrated public number database ................................394
473 Letters and symbols taken to be numbers ......................395
Division 3—Regulation of electronic addressing 396
474 Declared manager of electronic addressing ...................396
475 ACMA may give directions to declared manager
of electronic addressing.................................................396
476 ACCC may give directions to declared manager of
electronic addressing .....................................................397
477 ACCC’s directions to prevail over the ACMA’s
directions.......................................................................399
Part 23—Standard agreements for the supply of carriage
services 400 478 Simplified outline..........................................................400
479 Standard terms and conditions apply unless
excluded ........................................................................400
482 Concurrent operation of State/Territory laws ................401
483 Competition and Consumer Act not affected by
this Part .........................................................................402
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Part 24—Carriers’ powers and immunities 403 484 Schedule 3 .....................................................................403
Part 24A—Submarine cables 404 484A Schedule 3A ..................................................................404
Part 25—Public inquiries 405
Division 1—Simplified outline 405
485 Simplified outline..........................................................405
Division 2—Inquiries by the ACMA 406
486 When inquiry must be held............................................406
487 When inquiry may be held ............................................406
488 Informing the public about an inquiry ...........................407
489 Discussion paper ...........................................................407
490 Written submissions and protection from civil
actions ...........................................................................408
491 Hearings ........................................................................408
492 Hearing to be in public except in exceptional cases ......409
493 Confidential material not to be published......................410
494 Direction about private hearings....................................411
495 Reports on inquiries.......................................................412
Division 3—Inquiries by the ACCC 413
496 When inquiry must be held............................................413
497 When inquiry may be held ............................................413
498 Informing the public about an inquiry ...........................413
499 Discussion paper ...........................................................414
500 Written submissions and protection from civil
actions ...........................................................................414
501 Hearings ........................................................................415
502 Hearing to be in public except in exceptional cases ......416
503 Confidential material not to be published......................416
504 Direction about private hearings....................................417
505 Reports on inquiries.......................................................418
505A ACCC may use material presented to a previous
public inquiry ................................................................419
505B ACCC may adopt a finding from a previous public
inquiry ...........................................................................420
506 ACCC’s other powers not limited .................................420
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Part 26—Investigations 421 507 Simplified outline..........................................................421
508 Matters to which this Part applies..................................421
509 Complaints to the ACMA..............................................422
510 Investigations by the ACMA.........................................424
511 Preliminary inquiries .....................................................425
512 Conduct of investigations ..............................................425
513 Complainant and certain other persons to be
informed of various matters...........................................426
514 Reference of matters to Ombudsman or other
responsible person .........................................................427
515 Reference of matters to the ACCC ................................428
515A Reference of matters to Information Commissioner......429
516 Reports on investigations ..............................................431
517 Publication of reports ....................................................431
518 Person adversely affected by report to be given
opportunity to comment ................................................432
519 Protection from civil actions .........................................432
Part 27—The ACMA’s information-gathering powers 434
Division 1—Simplified outline 434
520 Simplified outline..........................................................434
Division 2—Information-gathering powers 435
521 The ACMA may obtain information and
documents from carriers and service providers .............435
522 The ACMA may obtain information and
documents from other persons.......................................436
523 Copying documents—reasonable compensation ...........438
524 Self-incrimination..........................................................438
525 Giving false or misleading information or
evidence ........................................................................439
527 Copies of documents .....................................................439
528 ACMA may retain documents.......................................439
Division 3—Record-keeping rules 441
529 ACMA may make record-keeping rules........................441
530 Compliance with record-keeping rules..........................442
531 Incorrect records............................................................442
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Part 28—Enforcement 443
Division 1—Introduction 443
532 Simplified outline..........................................................443
532A References to the Spam Act 2003 ..................................444
Division 2—Inspectors and identity cards 445
533 Inspectors ......................................................................445
534 Identity cards .................................................................446
Division 3—Search warrants relating to breaches of the Spam
Act 2003 or Part 21 of this Act 447
535 Magistrate may issue warrant ........................................447
536 Reasonable grounds for issuing warrant etc. .................448
537 Contents of warrant .......................................................448
538 Warrants may be issued by telephone etc. .....................448
539 Provisions relating to issue of warrant by
telephone etc..................................................................448
540 Proceedings involving warrant issued by telephone
etc. .................................................................................450
Division 4—Searches and seizures relating to breaches of the
Spam Act 2003 or Part 21 of this Act 451
541 When is a thing connected with an offence? .................451
541A When is a thing connected with a breach of the
Spam Act 2003?.............................................................451
542 Searches and seizures ....................................................451
543 Production of identity card etc.......................................452
544 Evidence of commission of other offences against
Part 21 of this Act or other breaches of the Spam
Act 2003 ........................................................................453
545 Emergency entry, search and seizure.............................454
546 Retention of things seized .............................................455
Division 5—Searches to monitor compliance with Part 21 456
547 Searches to monitor compliance with Part 21 ...............456
Division 5A—Searches to monitor compliance with the Spam
Act 2003 457
547A Powers available to inspectors for monitoring
compliance ....................................................................457
547B Monitoring powers ........................................................457
547C Production of identity card etc.......................................459
547D Monitoring warrants ......................................................459
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547E Details of warrant to be given to occupier etc. ..............461
547F Announcement before entry ..........................................461
547G Compensation for damage to equipment .......................461
547H Occupier entitled to be present during search................462
Division 5B—Access to computer data that is relevant to the
Spam Act 2003 464
547J Access to computer data that is relevant to the
Spam Act 2003...............................................................464
Division 6—Other powers of inspectors 466
548 General powers of inspectors ........................................466
549 Power to require information etc. ..................................467
550 Retention of documents.................................................469
Division 7—Forfeiture 470
551 Court may order forfeiture.............................................470
552 Forfeited goods may be sold..........................................470
Division 8—Future offences 471
553 Offences that are going to be committed .......................471
Part 29—Review of decisions 472 554 Simplified outline..........................................................472
555 Decisions that may be subject to reconsideration
by the ACMA................................................................472
556 Deadlines for reaching certain decisions .......................472
557 Statements to accompany notification of decisions .......473
558 Applications for reconsideration of decisions................473
559 Reconsideration by the ACMA .....................................474
560 Deadlines for reconsiderations ......................................474
561 Statements to accompany notification of decisions
on reconsideration .........................................................474
562 Review by the Administrative Appeals Tribunal...........475
Part 30—Injunctions 476 563 Simplified outline..........................................................476
564 Injunctions.....................................................................476
565 Interim injunctions ........................................................479
566 Discharge etc. of injunctions .........................................480
567 Certain limits on granting injunctions not to apply .......480
568 Other powers of the court unaffected ............................481
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Part 31—Civil penalties 482 569 Simplified outline..........................................................482
570 Pecuniary penalties for contravention of civil
penalty provisions .........................................................482
571 Civil action for recovery of pecuniary penalties............484
572 Criminal proceedings not to be brought for
contravention of civil penalty provisions ......................486
Part 31A—Enforceable undertakings 487 572A Simplified outline..........................................................487
572B Acceptance of undertakings ..........................................487
572C Enforcement of undertakings ........................................488
Part 31B—Infringement notices for contraventions of civil
penalty provisions 489 572D Simplified outline..........................................................489
572E When an infringement notice can be given ...................489
572F Matters to be included in an infringement notice ..........493
572G Amount of penalty.........................................................494
572H Withdrawal of an infringement notice ...........................494
572J What happens if the penalty is paid...............................495
572K Effect of this Part on civil proceedings..........................495
572L Appointment of authorised infringement notice
officer ............................................................................496
572M Guidelines relating to infringement notices...................496
572N Regulations....................................................................497
Part 32—Vicarious liability 498 573 Simplified outline..........................................................498
574 Proceedings under this Act ............................................498
574A Definition ......................................................................498
575 Liability of corporations ................................................499
576 Liability of persons other than corporations ..................500
Part 33—Voluntary undertakings given by Telstra 502
Division 1—Introduction 502
577 Simplified outline..........................................................502
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Division 2—Structural separation 503
Subdivision A—Undertaking about structural separation 503
577A Acceptance of undertaking about structural
separation ......................................................................503
577AA Acceptance of undertaking about structural
separation may be subject to the occurrence of
events ............................................................................508
577AB When undertaking about structural separation
comes into force ............................................................510
577AC Publication requirements for undertaking about
structural separation ......................................................511
577AD Compliance with undertaking about structural
separation ......................................................................512
577B Variation of undertaking about structural
separation ......................................................................512
577BA Authorised conduct—subsection 51(1) of the
Competition and Consumer Act 2010............................513
Subdivision B—Migration plan 520
577BB Migration plan principles ..............................................520
577BC Migration plan...............................................................521
577BD Approval of draft migration plan by the ACCC—
plan given after undertaking about structural
separation comes into force ...........................................523
577BDA Approval of draft migration plan by the ACCC—
plan given before undertaking about structural
separation comes into force ...........................................525
577BDB Approval of draft migration plan by the ACCC—
plan given in compliance with a direction .....................527
577BDC Approval of draft migration plan by the ACCC—
plan given in response to a request ................................528
577BE Effect of approval of draft migration plan .....................530
577BF Variation of final migration plan ...................................531
Division 3—Hybrid fibre-coaxial networks 533
577C Acceptance of undertaking about hybrid
fibre-coaxial networks ...................................................533
577CA Acceptance of undertaking about hybrid
fibre-coaxial networks may be subject to the
occurrence of events ......................................................534
577CB When undertaking about hybrid fibre-coaxial
networks comes into force.............................................536
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577CC Publication requirements for undertaking about
hybrid fibre-coaxial networks........................................537
577CD Compliance with undertaking about hybrid
fibre-coaxial networks ...................................................538
577D Variation of undertaking about hybrid
fibre-coaxial networks ...................................................538
Division 4—Subscription television broadcasting licences 540
577E Acceptance of undertaking about subscription
television broadcasting licences ....................................540
577EA Acceptance of undertaking about subscription
television broadcasting licences may be subject to
the occurrence of events ................................................541
577EB When undertaking about subscription television
broadcasting licences comes into force .........................543
577EC Publication requirements for undertaking about
subscription television broadcasting licences ................544
577ED Compliance with undertaking about subscription
television broadcasting licences ....................................545
577F Variation of undertaking about subscription
television broadcasting licences ....................................545
Division 5—Enforcement of undertakings 547
577G Enforcement of undertakings ........................................547
Division 6—Limits on allocation of spectrum licences etc. 549
577GA Excluded spectrum regime ............................................549
577H Designated part of the spectrum ....................................549
577J Limits on allocation of certain spectrum licences
to Telstra........................................................................549
577K Limits on use of certain spectrum licences by
Telstra............................................................................552
577L Limits on assignment of certain spectrum licences
to Telstra etc. .................................................................554
Division 7—Other provisions 556
577M Associate .......................................................................556
577N Control ..........................................................................557
577P Control of a company ....................................................557
577Q When Telstra is in a position to exercise control of
a network.......................................................................557
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Part 34—Special provisions relating to conventions and
directions 560 579 Simplified outline..........................................................560
580 ACMA must have regard to conventions ......................560
581 Power to give directions to carriers and service
providers........................................................................561
Part 35—Miscellaneous 563 582 Simplified outline..........................................................563
583 Penalties for certain continuing offences.......................564
584 Procedure relating to certain continuing offences .........565
585 Treatment of partnerships..............................................565
586 Giving of documents to partnerships.............................566
587 Nomination of address for service of documents ..........567
588 Service of summons or process on foreign
corporations—criminal proceedings..............................567
589 Instruments under this Act may provide for
matters by reference to other instruments......................568
590 Arbitration—acquisition of property .............................570
591 Compensation—constitutional safety net ......................570
592 Act not to affect performance of State or Territory
functions........................................................................571
593 Funding of consumer representation, and of
research, in relation to telecommunications ..................571
594 Regulations....................................................................572
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Introduction Part 1
Section 1
Telecommunications Act 1997 1
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An Act about telecommunications, and for related
purposes
Part 1—Introduction
1 Short title
This Act may be cited as the Telecommunications Act 1997.
2 Commencement
(1) The following provisions of this Act commence on the day on
which this Act receives the Royal Assent:
(a) this Part;
(b) Part 2;
(c) Divisions 2, 3 and 4 of Part 4;
(d) Division 3 of Part 25;
(f) section 589;
(g) section 594.
(2) Sections 52 to 55 (inclusive) commence on 5 June 1997.
(3) The remaining provisions of this Act commence on 1 July 1997.
3 Objects
(1) The main object of this Act, when read together with Parts XIB
and XIC of the Competition and Consumer Act 2010, is to provide
a regulatory framework that promotes:
(a) the long-term interests of end-users of carriage services or of
services provided by means of carriage services; and
(b) the efficiency and international competitiveness of the
Australian telecommunications industry; and
(c) the availability of accessible and affordable carriage services
that enhance the welfare of Australians.
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(2) The other objects of this Act, when read together with Parts XIB
and XIC of the Competition and Consumer Act 2010, are as
follows:
(a) to ensure that standard telephone services and payphones are:
(i) reasonably accessible to all people in Australia on an
equitable basis, wherever they reside or carry on
business; and
(ii) are supplied as efficiently and economically as
practicable; and
(iii) are supplied at performance standards that reasonably
meet the social, industrial and commercial needs of the
Australian community;
(c) to promote the supply of diverse and innovative carriage
services and content services;
(d) to promote the development of an Australian
telecommunications industry that is efficient, competitive
and responsive to the needs of the Australian community;
(e) to promote the effective participation by all sectors of the
Australian telecommunications industry in markets (whether
in Australia or elsewhere);
(f) to promote:
(i) the development of the technical capabilities and skills
of the Australian telecommunications industry; and
(ii) the development of the value-adding and
export-oriented activities of the Australian
telecommunications industry; and
(iii) research and development that contributes to the growth
of the Australian telecommunications industry;
(g) to promote the equitable distribution of benefits from
improvements in the efficiency and effectiveness of:
(i) the provision of telecommunications networks and
facilities; and
(ii) the supply of carriage services;
(h) to provide appropriate community safeguards in relation to
telecommunications activities and to regulate adequately
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participants in sections of the Australian telecommunications
industry;
(i) to promote the placement of lines underground, taking into
account economic and technical issues, where placing such
lines underground is supported by the affected community;
(j) to promote responsible practices in relation to the sending of
commercial electronic messages;
(k) to promote responsible practices in relation to the making of
telemarketing calls;
(l) to promote responsible practices in relation to the sending of
marketing faxes.
4 Regulatory policy
The Parliament intends that telecommunications be regulated in a
manner that:
(a) promotes the greatest practicable use of industry
self-regulation; and
(b) does not impose undue financial and administrative burdens
on participants in the Australian telecommunications
industry;
but does not compromise the effectiveness of regulation in
achieving the objects mentioned in section 3.
5 Simplified outline
The following is a simplified outline of this Act:
• This Act sets up a system for regulating telecommunications.
• The main entities regulated by this Act are carriers and
service providers.
• A carrier is the holder of a carrier licence granted under this
Act.
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• The owner of a network unit that is used to supply carriage
services to the public must hold a carrier licence unless
responsibility for the unit is transferred from the owner to a
carrier.
• There are 4 types of network unit:
(a) a single line link connecting distinct places in
Australia, where the line link meets certain
minimum distance requirements;
(b) multiple line links connecting distinct places in
Australia, where the line links meet certain
minimum distance requirements;
(c) a designated radiocommunications facility;
(d) a facility specified in a Ministerial determination.
• Carrier licences are subject to conditions.
• There are 2 types of service provider:
(a) a carriage service provider;
(b) a content service provider.
• A carriage service provider is a person who supplies, or
proposes to supply, certain carriage services.
• A content service provider is a person who supplies, or
proposes to supply, certain content services.
• Service providers must comply with the service provider
rules.
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• The Australian Communications and Media Authority
(ACMA) is to monitor, and report each year to the Minister
on, significant matters relating to the performance of carriers
and carriage service providers.
• Bodies and associations that represent sections of the
telecommunications industry, the telemarketing industry or
the fax marketing industry may develop industry codes.
• Industry codes may be registered by the ACMA.
• Compliance with an industry code is voluntary unless the
ACMA directs a particular participant in the
telecommunications industry, the telemarketing industry or
the fax marketing industry to comply with the code.
• The ACMA has a reserve power to make an industry standard
if there are no industry codes or if an industry code is
deficient.
• Compliance with industry standards is mandatory.
• Carriers and carriage service providers must protect the
confidentiality of communications.
• The ACMA, carriers and carriage service providers must do
their best to prevent telecommunications networks and
facilities from being used to commit offences.
• Carriers and carriage service providers must ensure that it is
possible to execute a warrant issued under the
Telecommunications (Interception and Access) Act 1979.
• Carriage service providers may be required to supply carriage
services for defence purposes or for the management of
natural disasters.
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• A carrier or carriage service provider may be required to enter
into an agreement with the Commonwealth about:
(a) planning for network survivability; or
(b) operational requirements in times of crisis.
• The ACMA may require certain carriers and carriage service
providers to provide pre-selection in favour of carriage service
providers in relation to calls made using a standard telephone
service.
• The ACMA must require certain carriers and carriage service
providers to provide pre-selection in favour of carriage service
providers in relation to calls made using a declared carriage
service.
• Carriers and carriage service providers may be required to
comply with certain international conventions.
• The Minister may make Rules of Conduct about dealings with
international telecommunications operators.
• Provision is made for the technical regulation of customer
equipment, customer cabling and cabling work.
• The ACMA may regulate numbering by means of a
numbering plan.
• Provision is made for standard agreements for the supply of
carriage services.
• The ACMA and the ACCC may hold public inquiries about
certain matters relating to telecommunications.
• The ACMA may investigate certain matters relating to
telecommunications.
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• Certain switching systems must be capable of providing
calling line identification.
• Provision is made for the following ancillary matters:
(a) information-gathering powers;
(b) powers of search, entry and seizure;
(c) review of decisions;
(d) injunctions.
6 Main index
The following is a main index to this Act:
Main Index
Item Topic Provisions
2 Calling line identification Part 18
3 Carriers’ powers and immunities Part 24, Schedule 3
4 Carrier licence conditions Part 3, Schedule 1
5 Carriers Part 3
6 Communications, protection of Part 13
8 Decisions, review of Part 29, Schedule 4
9 Defence requirements and disaster plans Part 16
10 Enforceable undertakings Part 31A
11 Enforcement Part 28
12 Industry codes and industry standards Part 6
13 Information-gathering powers Part 27
14 Injunctions Part 30
15 Inquiries, public Part 25
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Main Index
Item Topic Provisions
16 International aspects Part 20
17 Investigations Part 26
19 Liability, vicarious Part 32
21 National interest matters Part 14
22 Network units Part 2
23 Numbering and electronic addressing Part 22
24 Penalties, civil Part 31
25 Performance of carriers and carriage service
providers, monitoring of
Part 5
26 Pre-selection Part 17
28 Service provider rules Part 4, Schedule 2
29 Service providers Part 4
30 Standard agreements for the supply of carriage
services
Part 23
32 Technical regulation Part 21
7 Definitions
In this Act, unless the contrary intention appears:
ACCC means the Australian Competition and Consumer
Commission.
ACCC’s telecommunications functions and powers means the
functions and powers conferred on the ACCC by or under:
(a) this Act; or
(b) the Telecommunications (Consumer Protection and Service
Standards) Act 1999; or
(ba) the National Broadband Network Companies Act 2011; or
(c) Part XIB of the Competition and Consumer Act 2010; or
(d) Part XIC of the Competition and Consumer Act 2010; or
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(e) any other provision of the Competition and Consumer Act
2010, in so far as that provision applies to a matter connected
with telecommunications.
For this purpose, telecommunications means the carriage of
communications by means of guided and/or unguided
electromagnetic energy.
access, in relation to an emergency call service, has a meaning
affected by section 18.
ACMA means the Australian Communications and Media
Authority.
ACMA’s telecommunications functions means the functions that
are telecommunications functions, in relation to the ACMA, for the
purposes of the Australian Communications and Media Authority
Act 2005.
ACMA’s telecommunications powers means the powers conferred
on the ACMA by:
(a) this Act; or
(b) the Telecommunications (Consumer Protection and Service
Standards) Act 1999; or
(ba) Chapter 4 or 5 of the Telecommunications (Interception and
Access) Act 1979; or
(c) the Spam Act 2003; or
(ca) the Do Not Call Register Act 2006; or
(d) Part XIC of the Competition and Consumer Act 2010; or
(e) section 12 of the Australian Communications and Media
Authority Act 2005, in so far as that section relates to the
ACMA’s telecommunications functions.
ACNC type of entity means an entity that meets the description of a
type of entity in column 1 of the table in subsection 25-5(5) of the
Australian Charities and Not-for-profits Commission Act 2012.
aircraft includes a balloon.
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Australia, when used in a geographical sense, includes the eligible
Territories.
Australian number has the same meaning as in the Do Not Call
Register Act 2006.
authorised infringement notice officer means:
(a) the Chair of the ACMA; or
(b) a member of the staff of the ACMA appointed under
section 572L.
base station that is part of a terrestrial radiocommunications
customer access network has the meaning given by section 34.
broadcasting service has the same meaning as in the Broadcasting
Services Act 1992.
building lot has the meaning given by section 372Q.
building unit has the meaning given by section 372S.
cabling licence means a licence granted under section 427.
carriage service means a service for carrying communications by
means of guided and/or unguided electromagnetic energy.
carriage service intermediary means a person who is a carriage
service provider under subsection 87(5).
carriage service provider has the meaning given by section 87.
carrier means the holder of a carrier licence.
carrier licence means a licence granted under section 56.
carry includes transmit, switch and receive.
civil penalty provision means:
(a) a provision of this Act that is declared by this Act to be a
civil penalty provision; or
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(b) a provision of the Telecommunications (Consumer Protection
and Service Standards) Act 1999 that is declared by that Act
to be a civil penalty provision; or
(c) a provision of the Telecommunications (Interception and
Access) Act 1979 that is declared by that Act to be a civil
penalty provision for the purposes of this Act.
commercial electronic message has the same meaning as in the
Spam Act 2003.
communications includes any communication:
(a) whether between persons and persons, things and things or
persons and things; and
(b) whether in the form of speech, music or other sounds; and
(c) whether in the form of data; and
(d) whether in the form of text; and
(e) whether in the form of visual images (animated or
otherwise); and
(f) whether in the form of signals; and
(g) whether in any other form; and
(h) whether in any combination of forms.
Communications Access Co-ordinator has the meaning given by
section 6R of the Telecommunications (Interception and Access)
Act 1979.
connected, in relation to:
(a) a telecommunications network; or
(b) a facility; or
(c) customer cabling; or
(d) customer equipment;
includes connection otherwise than by means of physical contact,
for example, a connection by means of radiocommunication.
connection permit means a permit issued under section 394.
constitutional corporation means a corporation to which
paragraph 51(xx) of the Constitution applies.
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content service has the meaning given by section 15.
content service provider has the meaning given by section 97.
controlled carriage service has the meaning given by section 14.
controlled facility has the meaning given by section 14.
controlled network has the meaning given by section 14.
customer cabling has the meaning given by section 20.
customer equipment has the meaning given by section 21.
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.
Defence Department means the Department of State that deals
with defence and that is administered by the Minister administering
section 1 of the Defence Act 1903.
defence purposes means any one or more of the following:
(a) the operation of command or control systems;
(b) the operation, direction or use of a defence organisation;
(c) the operation of intelligence systems;
(d) the collection or dissemination of information relevant to the
security or defence of:
(i) the Commonwealth; or
(ii) a foreign country that is allied or associated with the
Commonwealth;
(e) the operation or control of weapons systems, including any
thing that, by itself or together with any other thing or things,
is intended for defensive or offensive use in combat;
(f) any other matter specified in the regulations.
designated part of the spectrum has the meaning given by
section 577H.
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designated radiocommunications facility has the meaning given
by section 31.
directory assistance services means services that are:
(a) provided to an end-user of a standard telephone service to
help the end-user find the number of another end-user of a
standard telephone service; and
(b) provided by an operator or by means of:
(i) an automated voice response system; or
(ii) another technology-based system.
distinct places has the meaning given by section 36.
draft functional separation undertaking means a draft functional
separation undertaking under Division 2 of Part 9 of Schedule 1.
draft migration plan means a draft migration plan under
Subdivision B of Division 2 of Part 33.
eligible partnership means a partnership where each partner is a
constitutional corporation.
eligible Territory means:
(a) the Territory of Christmas Island; or
(b) the Territory of Cocos (Keeling) Islands; or
(c) an external Territory prescribed for the purposes of
section 10.
emergency call contractor means a person who performs services
for or on behalf of a recognised person who operates an emergency
call service, but does not include a person who performs such
services in the capacity of an employee of the person who operates
the emergency call service.
Note: Recognised person who operates an emergency call service is
defined by section 19.
emergency call person means:
(a) a recognised person who operates an emergency call service;
or
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(b) an employee of such a person; or
(c) an emergency call contractor; or
(d) an employee of an emergency call contractor.
Note: Recognised person who operates an emergency call service is
defined by section 19.
emergency call service means a service for:
(a) receiving and handling calls to an emergency service
number; and
(b) transferring such calls to:
(i) a police force or service; or
(ii) a fire service; or
(iii) an ambulance service; or
(iv) a service specified in the numbering plan for the
purposes of this subparagraph; or
(v) a service for despatching a force or service referred to in
subparagraph (i), (ii), (iii) or (iv).
For the purposes of paragraph (b), transferring a call includes
giving information in relation to the call for purposes connected
with dealing with the matter or matters raised by the call.
emergency service number has the meaning given by section 466.
exempt network-user means:
(a) a person:
(i) who is entitled to use a network unit to supply a carriage
service; and
(ii) whose entitlement derives, directly or indirectly, from
rights granted to a carrier; or
(b) if:
(i) a police force or service; or
(ii) a fire service; or
(iii) an ambulance service; or
(iv) an emergency service specified in the regulations;
(the first force or service) uses a network unit for the sole or
principal purpose of enabling either or both of the following:
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(v) communication between the members of the first force
or service;
(vi) communication between the members of the first force
or service and the members of another force or service,
where the other force or service is of a kind covered by
subparagraph (i), (ii), (iii) or (iv);
the first force or service.
For the purposes of paragraph (b), an employee of a force or
service is taken to be a member of the force or service.
facility means:
(a) any part of the infrastructure of a telecommunications
network; or
(b) any line, equipment, apparatus, tower, mast, antenna, tunnel,
duct, hole, pit, pole or other structure or thing used, or for
use, in or in connection with a telecommunications network.
fax marketing industry means an industry that involves carrying
on a fax marketing activity (as defined by section 109C).
Federal Court means the Federal Court of Australia.
fibre-ready facility has the meaning given by section 372W.
final functional separation undertaking means a final functional
separation undertaking under Division 2 of Part 9 of Schedule 1.
final migration plan means a final migration plan under
Subdivision B of Division 2 of Part 33.
Finance Minister means the Minister administering the Public
Governance, Performance and Accountability Act 2013.
fixed-line facility has the meaning given by section 372V.
fixed radiocommunications link has the meaning given by
section 35.
hybrid fibre-coaxial network means a telecommunications
network:
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(a) that is for use for the transmission of any broadcasting
service; and
(b) that is also capable of being used to supply an internet
carriage service; and
(c) the line component of which consists of optical fibre to
connecting nodes, supplemented by coaxial cable
connections from the nodes to the premises of end-users.
immediate circle has the meaning given by section 23.
import means import into Australia.
industry levy means levy imposed by the Telecommunications
(Industry Levy) Act 2012.
infringement notice means an infringement notice under
section 572E.
inspector has the meaning given by section 533.
integrated public number database scheme means the scheme in
force under section 295A.
intercell hand-over functions has the meaning given by section 33.
internet carriage service means a carriage service that enables
end-users to access the internet.
internet service provider has the same meaning as in Schedule 5 to
the Broadcasting Services Act 1992.
Layer 2 bitstream service means a carriage service that is:
(a) either:
(i) a Layer 2 Ethernet bitstream service; or
(ii) a Layer 2 bitstream service specified in a legislative
instrument made by the ACMA for the purposes of this
subparagraph; and
(b) a listed carriage service; and
(c) supplied using a line to premises occupied or used by an
end-user.
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For this purpose, Layer 2 has the same meaning as in the Open
System Interconnection (OSI) Reference Model for data exchange.
line means a wire, cable, optical fibre, tube, conduit, waveguide or
other physical medium used, or for use, as a continuous artificial
guide for or in connection with carrying communications by means
of guided electromagnetic energy.
line link has the meaning given by section 30.
listed carriage service has the meaning given by section 16.
marketing fax means:
(a) a marketing fax (within the meaning of the Do Not Call
Register Act 2006) that is sent to an Australian number; or
(b) a fax (within the meaning of the Do Not Call Register Act
2006) that is sent to an Australian number, where, having
regard to:
(i) the content of the fax; and
(ii) the presentational aspects of the fax;
it would be concluded that the purpose, or one of the
purposes, of the fax is:
(iii) to conduct opinion polling; or
(iv) to carry out standard questionnaire-based research.
member means a member of the ACMA (and does not include an
associate member).
NBN corporation has the same meaning as in the National
Broadband Network Companies Act 2011. This definition does not
apply to:
(a) section 577BA; or
(b) section 577BC; or
(c) clause 17 of Schedule 1; or
(d) Part 5 of Schedule 1.
network unit has the meaning given by Division 2 of Part 2.
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nominated carrier means a carrier in respect of whom a nominated
carrier declaration is in force.
nominated carrier declaration means a declaration under
section 81.
numbering plan has the meaning given by section 455.
optical fibre line means a line that consists of, or encloses, optical
fibre.
owner, in relation to a network unit, means a person who legally
owns the unit (whether alone or together with one or more other
persons).
person includes a partnership.
point-to-multipoint service means a carriage service which allows
a person to transmit a communication to more than one end-user
simultaneously.
project area for a real estate development project has the meaning
given by section 372Q.
public body means:
(a) the Commonwealth, a State or a Territory; or
(b) an authority, or institution, of the Commonwealth, a State or
a Territory; or
(c) an incorporated company all the stock or shares in the capital
of which is beneficially owned by one of the following:
(i) the Commonwealth;
(ii) a State;
(iii) a Territory; or
(d) an incorporated company limited by guarantee, where the
interests and rights of the members in or in relation to the
company are beneficially owned by one of the following:
(i) the Commonwealth;
(ii) a State;
(iii) a Territory.
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public mobile telecommunications service has the meaning given
by section 32.
radiocommunication has the same meaning as in the
Radiocommunications Act 1992.
radiocommunications device has the same meaning as in the
Radiocommunications Act 1992.
radiocommunications receiver has the same meaning as in the
Radiocommunications Act 1992.
radiocommunications transmitter has the same meaning as in the
Radiocommunications Act 1992.
real estate development project has the meaning given by
section 372Q.
recognised person who operates an emergency call service has the
meaning given by section 19.
recognised testing authority has the meaning given by section 409.
record-keeping rule means a rule under section 529.
registered charity means an entity that is registered under the
Australian Charities and Not-for-profits Commission Act 2012 as
the type of entity mentioned in column 1 of item 1 of the table in
subsection 25-5(5) of that Act.
satellite-based facility means a radiocommunications transmitter,
or a radiocommunications receiver, in a satellite.
sell:
(a) when used in relation to a building lot—has the meaning
given by section 372T; or
(b) when used in relation to a building unit—has the meaning
given by section 372U.
service provider has the meaning given by section 86.
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service provider rules has the meaning given by section 98.
spectrum has the same meaning as in the Radiocommunications
Act 1992.
spectrum licence has the same meaning as in the
Radiocommunications Act 1992.
standard questionnaire-based research means research that
involves people being asked to answer one or more standard
questions, but does not include:
(a) opinion polling; or
(b) research of a kind specified in the regulations.
standard telephone service has the meaning given by section 6 of
the Telecommunications (Consumer Protection and Service
Standards) Act 1999.
subdivision of an area of land has a meaning affected by
section 372R.
subscription television broadcasting licence has the same meaning
as in the Broadcasting Services Act 1992.
telecommunications industry includes an industry that involves:
(a) carrying on business as a carrier; or
(b) carrying on business as a carriage service provider; or
(c) supplying goods or services for use in connection with the
supply of a listed carriage service; or
(d) supplying a content service using a listed carriage service; or
(e) manufacturing or importing customer equipment or customer
cabling; or
(f) installing, maintaining, operating or providing access to:
(i) a telecommunications network; or
(ii) a facility;
used to supply a listed carriage service.
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Telecommunications Industry Ombudsman has the same meaning
as in the Telecommunications (Consumer Protection and Service
Standards) Act 1999.
Telecommunications Industry Ombudsman scheme has the same
meaning as in the Telecommunications (Consumer Protection and
Service Standards) Act 1999.
telecommunications network means a system, or series of systems,
that carries, or is capable of carrying, communications by means of
guided and/or unguided electromagnetic energy.
telemarketing call means:
(a) a telemarketing call (within the meaning of the Do Not Call
Register Act 2006) that is made to an Australian number; or
(b) a voice call (within the meaning of the Do Not Call Register
Act 2006) that is made to an Australian number, where,
having regard to:
(i) the content of the call; and
(ii) the presentational aspects of the call;
it would be concluded that the purpose, or one of the
purposes, of the call is:
(iii) to conduct opinion polling; or
(iv) to carry out standard questionnaire-based research.
telemarketing industry means an industry that involves carrying on
a telemarketing activity (as defined by section 109B).
Telstra has the same meaning as in the Telstra Corporation Act
1991.
this Act includes the regulations.
universal service obligation has the same meaning as in the
Telecommunications (Consumer Protection and Service Standards)
Act 1999.
vessel means a vessel or boat of any description, and includes:
(a) an air-cushion vehicle; and
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(b) any floating structure.
8 Crown to be bound
(1) This Act binds the Crown in right of the Commonwealth, of each
of the States, of the Australian Capital Territory and of the
Northern Territory.
(2) This Act does not make the Crown liable to a pecuniary penalty or
to be prosecuted for an offence.
(3) The protection in subsection (2) does not apply to an authority of
the Crown.
9 Extra-territorial application
This Act applies both within and outside Australia.
10 Extension to external Territories
(1) This Act extends to:
(a) the Territory of Christmas Island; and
(b) the Territory of Cocos (Keeling) Islands; and
(c) such other external Territories (if any) as are prescribed.
(2) The operation of this Act in relation to Norfolk Island is not
affected by the amendments made by Division 1 of Part 1 of
Schedule 5 to the Territories Legislation Amendment Act 2016.
11 Extension to offshore areas
(1) This Act applies in relation to the offshore areas of:
(a) each of the States; and
(b) each of the eligible Territories;
as if references in this Act to Australia included references to those
offshore areas. This subsection has effect subject to subsection (2).
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(2) The application of this Act in accordance with subsection (1) in
relation to an offshore area extends only in relation to acts, matters
and things touching, concerning, arising out of or connected with:
(a) the exploration of the continental shelf of Australia; or
(b) the exploitation of the resources of the continental shelf of
Australia.
(3) The application of this Act in accordance with subsection (1) in
relation to an offshore area extends in relation to all acts done by or
in relation to, and all matters, circumstances and things affecting,
any person who is in the offshore area for a reason touching,
concerning, arising out of or connected with:
(a) the exploration of the continental shelf of Australia; or
(b) the exploitation of the resources of the continental shelf of
Australia.
(4) Subsection (3) does not, by implication, limit subsection (2).
(5) In this section:
offshore area, in relation to a State or Territory, has the same
meaning as in the Offshore Petroleum and Greenhouse Gas
Storage Act 2006.
11A Application of the Criminal Code
Chapter 2 of the Criminal Code (except Part 2.5) applies to all
offences against this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of
criminal responsibility.
12 Act subject to Radiocommunications Act
(1) This Act has effect subject to the Radiocommunications Act 1992.
(2) However, to avoid doubt, the fact that a person is authorised to do
something under a licence under the Radiocommunications Act
1992 does not entitle the person to do that thing if the person is
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prohibited by or under this Act from doing it, unless a condition of
the licence requires the person to do it.
13 Continuity of partnerships
For the purposes of this Act, a change in the composition of a
partnership does not affect the continuity of the partnership.
14 Controlled carriage services, controlled networks and controlled
facilities
Controlled carriage services
(1) For the purposes of this Act, if:
(a) a carrier or carriage service provider supplies, or proposes to
supply, a carriage service; and
(b) the carriage service involves, or will involve, the use of a
controlled network, or a controlled facility, of the carrier or
of the provider, as the case may be;
the carriage service is a controlled carriage service of the carrier
or the provider, as the case may be.
Controlled networks
(2) For the purposes of this Act, if:
(a) a carrier or carriage service provider operates a
telecommunications network; and
(b) the network satisfies the geographical test set out in
subsection (4);
the network is a controlled network of the carrier or the provider,
as the case may be.
Controlled facilities
(3) For the purposes of this Act, if:
(a) a carrier or carriage service provider operates a facility; and
(b) the facility satisfies the geographical test set out in
subsection (4);
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the facility is a controlled facility of the carrier or provider, as the
case may be.
Geographical test
(4) For the purposes of this section, a telecommunications network, or
a facility, satisfies the geographical test if:
(a) the whole or any part of the network or facility, as the case
requires, is, or will be, located in Australia; or
(b) all of the following conditions are satisfied:
(i) a person, or a group of persons, operates the network or
the facility, as the case requires;
(ii) the person, or at least one of the members of the group,
carries on, or will carry on, a
telecommunications-related business wholly or partly in
Australia;
(iii) the network, or the facility, as the case requires, is used,
or will be used, to supply a listed carriage service, or a
service that is ancillary or incidental to such a service.
Definition
(5) In this section:
telecommunications-related business means a business that
consists of, or includes:
(a) supplying a carriage service; or
(b) supplying goods or services for use in connection with the
supply of a carriage service; or
(c) supplying a content service; or
(d) installing, maintaining, operating or providing access to:
(i) a telecommunications network; or
(ii) a facility.
15 Content service
(1) For the purposes of this Act, a content service is:
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(a) a broadcasting service; or
(b) an on-line information service (for example, a dial-up
information service); or
(c) an on-line entertainment service (for example, a
video-on-demand service or an interactive computer game
service); or
(d) any other on-line service (for example, an education service
provided by a State or Territory government); or
(e) a service of a kind specified in a determination made by the
Minister for the purposes of this paragraph.
(2) The Minister may, by legislative instrument, make a determination
for the purposes of paragraph (1)(e).
16 Listed carriage services
(1) For the purposes of this Act, the following carriage services are
listed carriage services:
(a) a carriage service between a point in Australia and one or
more other points in Australia;
(b) a carriage service between a point and one or more other
points, where the first-mentioned point is in Australia and at
least one of the other points is outside Australia;
(c) a carriage service between a point and one or more other
points, where the first-mentioned point is outside Australia
and at least one of the other points is in Australia.
(2) For the purposes of this section, a point includes a mobile or
potentially mobile point, whether on land, underground, in the
atmosphere, in outer space, underwater, at sea or anywhere else.
(3) For the purposes of this section, a point that is:
(a) in the atmosphere; and
(b) in or below the stratosphere; and
(c) above Australia;
is taken to be a point in Australia.
(4) For the purposes of this section, a point that is:
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(a) on a satellite; and
(b) above the stratosphere;
is taken to be a point outside Australia.
18 Access to an emergency call service
For the purposes of this Act, a person is taken not to have access to
an emergency call service unless, in the event that the person
attempts to place a call to the relevant emergency service number,
the call can be established and maintained.
19 Recognised person who operates an emergency call service
(1) A reference in this Act to a recognised person who operates an
emergency call service is a reference to a person who:
(a) operates an emergency call service; and
(b) is specified, in a written determination made by the ACMA
for the purposes of this paragraph, as:
(i) a national operator of emergency call services; or
(ii) a regional operator of emergency call services.
(2) A copy of a determination under paragraph (1)(b) is to be
published in the Gazette.
(3) A person may be specified in a determination under
paragraph (1)(b) even if the person does not operate an emergency
call service at the time the determination is made.
(4) Subsection (3) is enacted for the avoidance of doubt.
20 Customer cabling
(1) For the purposes of this Act, customer cabling means a line that,
under the regulations, is treated as customer cabling.
(2) Regulations made for the purposes of subsection (1) may deal with
a matter by reference to the boundary of a telecommunications
network.
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Note: Boundary of a telecommunications network is defined by section 22.
(3) Subsection (2) does not, by implication, limit subsection (1).
(4) If no regulations are in force for the purposes of subsection (1),
then, for the purposes of this Act, customer cabling means a line
that is used, installed ready for use or intended for use on the
customer side of the boundary of a telecommunications network.
Note: Boundary of a telecommunications network is defined by section 22.
21 Customer equipment
(1) For the purposes of this Act, customer equipment means:
(a) any equipment, apparatus, tower, mast, antenna or other
structure or thing; or
(b) any system (whether software-based or otherwise);
that:
(c) is used, installed ready for use or intended for use in
connection with a carriage service; and
(d) under the regulations, is treated as customer equipment;
but does not include a line.
(2) Regulations made for the purposes of subsection (1) may deal with
a matter by reference to the boundary of a telecommunications
network.
Note: Boundary of a telecommunications network is defined by section 22.
(3) Subsection (2) does not, by implication, limit subsection (1).
(4) If no regulations are in force for the purposes of subsection (1),
then, for the purposes of this Act, customer equipment means:
(a) any equipment, apparatus, tower, mast, antenna or other
structure or thing that is used, installed ready for use or
intended for use on the customer side of the boundary of a
telecommunications network; or
(b) any system (whether software-based or otherwise) that is
used, installed ready for use or intended for use on the
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customer side of the boundary of a telecommunications
network;
but does not include:
(c) a line; or
(d) equipment of a kind specified in regulations made for the
purposes of this paragraph; or
(e) an apparatus, tower, mast, antenna or other structure or thing
that is of a kind specified in regulations made for the
purposes of this paragraph; or
(f) a system (whether software-based or otherwise) that is of a
kind specified in regulations made for the purposes of this
paragraph.
Note : Boundary of a telecommunications network is defined by section 22.
22 Customer cabling and customer equipment—boundary of a
telecommunications network
(1) For the purposes of sections 20, 21, 30, 349, 372B, 372C and
372V, the boundary of a telecommunications network is to be
ascertained in accordance with the regulations.
(2) Regulations made for the purposes of subsection (1) may deal with
a matter by reference to any or all of the following:
(a) the terms of an agreement between 2 or more carriers, where
the agreement is entered into for the purposes of those
regulations;
(b) the terms of an agreement between 2 or more carriage service
providers, where the agreement is entered into for the
purposes of those regulations;
(c) the terms of an agreement between a carrier and a carriage
service provider, where the agreement is entered into for the
purposes of those regulations;
(d) the terms of an agreement between a carrier and a customer
of the carrier, where the agreement is entered into for the
purposes of those regulations;
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(e) the terms of an agreement between a carriage service
provider and a customer of the provider, where the agreement
is entered into for the purposes of those regulations.
(3) Subsection (2) does not, by implication, limit subsection (1).
(4) If no regulations are in force for the purposes of subsection (1),
then, for the purposes of sections 20, 21, 30, 349, 372B, 372C and
372V, the boundary of a telecommunications network is:
(a) in a case where a telecommunications network is used to
supply a carriage service to an end-user in a building by
means of a line that enters the building—the point agreed
between the customer and the carrier or carriage service
provider who operates the telecommunications network, or,
failing agreement:
(i) if there is a main distribution frame in the building and
the line is connected to the frame—the side of the frame
nearest to the end-user; or
(ii) if subparagraph (i) does not apply but the line is
connected to a network termination device located in,
on or within close proximity to, the building—the side
of the device nearest to the end-user; or
(iii) if neither subparagraph (i) nor (ii) applies but the line is
connected to one or more sockets in the building—the
side nearest to the end-user of the first socket after the
building entry point; or
(b) in a case where a telecommunications network is used to
supply a carriage service to an end-user by means of a
satellite-based facility that transmits to, or receives
transmissions from, the point where the end user is located—
the outer surface of the satellite-based facility; or
(c) in a case where:
(i) a telecommunications network is used to supply a
carriage service to an end-user; and
(ii) paragraphs (a) and (b) do not apply;
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the outer surface of the fixed facility nearest to the end-user,
where the facility is used, installed ready for use or intended
for use to supply the carriage service.
(5) If, immediately before 1 July 1997, the boundary of a
telecommunications network used to supply a standard telephone
service to an end-user in a building by means of a line that enters
the building is the side of a main distribution frame, or a telephone
socket, nearest to the end-user, paragraph (4)(a) has effect, on and
after 1 July 1997, as if the customer and the carrier or carriage
service provider who operates the network had agreed to the
boundary at that point.
(6) Subsection (5) does not prevent the customer and the carrier or
carriage service provider agreeing to a boundary at a different
point.
(7) For the purposes of subsection (4), the building entry point is the
point at which a line that is used to provide a carriage service to an
end-user in a building meets the outer surface of that building,
immediately before entering the building.
(8) In this section:
building includes a structure, a caravan and a mobile home.
23 Immediate circle
(1) For the purposes of this Act, a person’s immediate circle consists
of the person, together with the following persons:
(a) if the person is an individual—an employee of the individual;
(b) if the person is a partnership—an employee of the
partnership;
(c) if the person is a body corporate:
(i) an officer of the body corporate;
(ii) if another body corporate is related to the
first-mentioned body corporate (within the meaning of
the Corporations Act 2001)—that other body corporate
and an officer of that other body corporate;
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(d) if the person is the Commonwealth:
(i) an authority or institution of the Commonwealth (other
than an authority or institution that carries on a business
as a core function) and a constituent member or an
employee of such an authority or institution;
(ii) an officer or employee of the Commonwealth;
(iii) a member of the Australian Defence Force;
(iv) a member of the Australian Federal Police;
(v) a member of the Parliament and a member of the staff
of a member of the Parliament;
(vi) a person who holds or performs the duties of an office
under the Constitution or a law of the Commonwealth;
(e) if the person is a State:
(i) an authority or institution of the State (other than an
authority or institution that carries on a business as a
core function) and a constituent member or an employee
of such an authority or institution;
(ii) an officer or employee of the State;
(iii) a member of the police force of the State;
(iv) a member of the Parliament of the State and a member
of the staff of a member of the Parliament of the State;
(v) a person who holds or performs the duties of an office
under a law of the State;
(f) if the person is a Territory:
(i) an authority or institution of the Territory (other than an
authority or institution that carries on a business as a
core function) and a constituent member or an employee
of such an authority or institution;
(ii) an officer or employee of the Territory;
(iii) a member of the police force of the Territory;
(iv) a member of the Legislative Assembly of the Territory
and a member of the staff of a member of the
Legislative Assembly of the Territory;
(v) a person who holds or performs the duties of an office
under a law of the Territory;
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(g) if the person is an authority or institution of the
Commonwealth (other than an authority or institution that
carries on a business as a core function):
(i) a constituent member or an employee of the authority or
institution;
(ii) the Commonwealth;
(iii) an officer or employee of the Commonwealth;
(iv) a member of the Australian Defence Force;
(v) a member of the Australian Federal Police;
(vi) a member of the Parliament and a member of the staff
of a member of the Parliament;
(vii) a person who holds or performs the duties of an office
under the Constitution or a law of the Commonwealth;
(viii) another authority or institution of the Commonwealth
(other than an authority or institution that carries on a
business as a core function) and a constituent member
or an employee of the other authority or institution;
(h) if the person is an authority or institution of the
Commonwealth, being an authority or institution that carries
on a business as a core function—a constituent member or an
employee of the authority or institution;
(i) if the person is an authority or institution of a State (other
than an authority or institution that carries on a business as a
core function):
(i) a constituent member or an employee of the authority or
institution;
(ii) the State;
(iii) an officer or employee of the State;
(iv) a member of the police force of the State;
(v) a member of the Parliament of the State and a member
of the staff of a member of the Parliament of the State;
(vi) a person who holds or performs the duties of an office
under a law of the State;
(vii) another authority or institution of the State (other than
an authority or institution that carries on a business as a
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core function) and a constituent member or an employee
of the other authority or institution;
(j) if the person is an authority or institution of a State, being an
authority or institution that carries on a business as a core
function—a constituent member or an employee of the
authority or institution;
(k) if the person is an authority or institution of a Territory (other
than an authority or institution that carries on a business as a
core function):
(i) a constituent member or an employee of the authority or
institution;
(ii) the Territory;
(iii) an officer or employee of the Territory;
(iv) a member of the police force of the Territory;
(v) a member of the Legislative Assembly of the Territory
and a member of the staff of a member of the
Legislative Assembly of the Territory;
(vi) a person who holds or performs the duties of an office
under a law of the Territory;
(vii) another authority or institution of the Territory (other
than an authority or institution that carries on a business
as a core function) and a constituent member or an
employee of the other authority or institution;
(l) if the person is an authority or institution of a Territory, being
an authority or institution that carries on a business as a core
function—a constituent member or employee of the authority
or institution;
(m) if the person is a tertiary education institution:
(i) a member of the governing body of the tertiary
education institution;
(ii) an officer or employee of the tertiary education
institution;
(iii) a student of the tertiary education institution;
(n) a person specified in a determination under subsection (2).
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(2) The Minister may, by legislative instrument, make a determination
specifying persons for the purposes of paragraph (1)(n).
(3) A determination under subsection (2) may be unconditional or
subject to such conditions (if any) as are specified in the
determination.
(4) Paragraphs (1)(a) to (m) (inclusive) do not, by implication, limit
subsections (2) and (3).
(5) The Minister may, by legislative instrument, make a determination
providing that a specified authority or specified institution is taken
to carry on a business as a core function for the purposes of
subsection (1).
(6) The Minister may, by legislative instrument, make a determination
providing that a specified authority or specified institution is taken
not to carry on a business as a core function for the purposes of
subsection (1).
(7) A determination under subsection (2), (5) or (6) has effect
accordingly.
(9) For the purposes of this section, a person who holds or performs
the duties of the office of Administrator of the Northern Territory
is taken to be an officer of that Territory.
(10) For the purposes of this section, the Australian Federal Police is
taken to be the police force of the Australian Capital Territory.
(11) In this section:
core function, in relation to an authority or institution, means a
function of the authority or institution other than a secondary or
incidental function.
director includes a constituent member of a body corporate
incorporated for a public purpose by a law of the Commonwealth,
a State or a Territory.
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executive officer, in relation to a body corporate, means a person,
by whatever name called and whether or not a director of the body,
who is concerned in, or takes part in, the management of the body.
officer, in relation to a body corporate, includes a director,
secretary, executive officer or employee of the body.
tertiary education institution means:
(a) a higher education institution (within the meaning of the
Student Assistance Act 1973); or
(b) a technical and further education institution (within the
meaning of that Act).
24 Extended meaning of use
Unless the contrary intention appears, a reference in this Act to the
use of a thing is a reference to the use of the thing either:
(a) in isolation; or
(b) in conjunction with one or more other things.
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Part 2—Network units
Division 1—Simplified outline
25 Simplified outline
The following is a simplified outline of this Part:
• The object of this Part is to define the expression network
unit.
• There are 4 types of network unit:
(a) a single line link connecting distinct places in
Australia, where the line link meets certain
minimum distance requirements;
(b) multiple line links connecting distinct places in
Australia, where the line links meet certain
minimum distance requirements;
(c) a designated radiocommunications facility;
(d) a facility specified in a Ministerial determination.
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Division 2—Basic definition
26 Single line links connecting distinct places in Australia
(1) If:
(a) a line link connects distinct places in Australia; and
(b) the distinct places are at least the statutory distance apart;
the line link is a network unit.
(2) For the purposes of this section, the statutory distance is:
(a) 500 metres; or
(b) if a longer distance, not exceeding 50 kilometres, is specified
in the regulations—that longer distance.
27 Multiple line links connecting distinct places in Australia
(1) If:
(a) the same person owns, or the same persons own, 2 or more
line links; and
(b) each of those line links connects distinct places in Australia;
and
(c) the aggregate of the distances between the distinct places is
more than the statutory distance;
each of those line links is a network unit.
Note: Statutory distance is defined by subsection (3).
(2) If:
(a) the following conditions are satisfied in relation to 2 or more
line links:
(i) the owners of the line links are bodies corporate;
(ii) the owners of the line links are all members of the same
related company group; and
(b) each of those line links connects distinct places in Australia;
and
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(c) the aggregate of the distances between the distinct places is
more than the statutory distance;
each of those line links is a network unit.
Note: Statutory distance is defined by subsection (3).
(3) For the purposes of this section, the statutory distance is:
(a) 5 kilometres; or
(b) if a longer distance, not exceeding 500 kilometres, is
specified in the regulations—that longer distance.
(4) In this section:
owner means legal or beneficial owner, and own has a
corresponding meaning.
related company group means a group of 2 or more bodies
corporate, where each member of the group is related to each other
member of the group.
(5) For the purposes of this section, the question whether a body
corporate is related to another body corporate is to be determined
in the same manner as that question is determined under the
Corporations Act 2001.
28 Designated radiocommunications facility
(1) If a designated radiocommunications facility is used, or is for use,
to supply a carriage service between a point in Australia and one or
more other points in Australia, the facility is a network unit.
(2) It does not matter whether the supply involves:
(a) the use of a satellite; or
(b) the use of a line or other facility outside Australia.
(3) For the purposes of this section, a point includes a mobile or
potentially mobile point, whether on land, underground, in the
atmosphere, in outer space, underwater, at sea or anywhere else.
(4) For the purposes of this section, a point that is:
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(a) in the atmosphere; and
(b) in or below the stratosphere; and
(c) above Australia;
is taken to be a point in Australia.
(5) For the purposes of this section, a point that is:
(a) on a satellite; and
(b) above the stratosphere;
is taken to be a point outside Australia.
29 Facilities specified in Ministerial determination
(1) The Minister may, by legislative instrument, determine that a
specified facility is a network unit for the purposes of this Act.
(2) The determination has effect accordingly.
(4) To avoid doubt, nothing in the other provisions of this Part limits
the power conferred by subsection (1).
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Division 3—Related definitions
30 Line links
(1) A line constitutes a line link.
(2) If:
(a) a line is connected to another line; and
(b) the other line constitutes, or forms part of, a line link;
the first-mentioned line, and the line link referred to in
paragraph (b), together constitute a line link.
(3) Subsection (2) is recursive, that is, the reference in
paragraph (2)(b) to a line link is a reference to something that is a
line link because of any other application or applications of this
section.
(4) For the purposes of subsection (2), a line is connected to another
line if, and only if:
(a) the lines are connected to each other; or
(b) each of the lines is connected to the same facility (other than
a line);
in such a way that a communication can be carried, by means of
the 2 lines, or by means of facilities including the 2 lines, in the
same way as if the 2 lines were a single line.
(4A) A line does not form part of any line link to the extent that the line
is on the customer side of the boundary of a telecommunications
network.
Note: Boundary of a telecommunications network is defined by section 22.
(5) A facility other than a line does not form part of any line link.
31 Designated radiocommunications facility
(1) A reference in this Act to a designated radiocommunications
facility is a reference to:
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(a) a base station used, or for use, to supply a public mobile
telecommunications service; or
(b) a base station that is part of a terrestrial radiocommunications
customer access network; or
(c) a fixed radiocommunications link; or
(d) a satellite-based facility; or
(e) a radiocommunications transmitter of a kind specified in a
determination under subsection (2); or
(f) a radiocommunications receiver of a kind specified in a
determination under subsection (3);
but does not include a reference to:
(g) a base station of a kind declared under subsection (5) to be
exempt from this section; or
(h) a fixed radiocommunications link of a kind declared under
subsection (5) to be exempt from this section; or
(i) a satellite-based facility of a kind declared under
subsection (5) to be exempt from this section.
Note 1: Public mobile telecommunications service is defined by section 32.
Note 2: Base station that is part of a terrestrial radiocommunications
customer access network is defined by section 34.
Note 3: Fixed radiocommunications link is defined by section 35.
Note 4: Satellite-based facility is defined by section 7.
(2) The Minister may, by legislative instrument, make a determination
for the purposes of paragraph (1)(e).
(3) The Minister may, by legislative instrument, make a determination
for the purposes of paragraph (1)(f).
(5) The Minister may, by legislative instrument, make a declaration for
the purposes of paragraph (1)(g), (h) or (i).
(7) To avoid doubt, nothing in the other provisions of this Part limits a
power conferred by subsection (2), (3) or (5).
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32 Public mobile telecommunications service
(1) For the purposes of this Act, if:
(a) an end-user can use a carriage service while moving
continuously between places; and
(b) the customer equipment used for or in relation to the supply
of the service is not in physical contact with any part of the
telecommunications network by means of which the service
is supplied; and
(c) the service is supplied by use of a telecommunications
network that has intercell hand-over functions; and
(d) the service is not an exempt service (as defined by
subsection (2), (3) or (4));
the service is a public mobile telecommunications service.
(2) For the purposes of this section, a carriage service is an exempt
service if:
(a) the service is supplied by means of a telecommunications
network (a primary network) that is connected to one or
more line links or other facilities that, apart from this section,
are eligible network units; and
(b) the principal function of the primary network is to supply
carriage services between customer equipment connected to
the primary network and other such equipment; and
(c) the supply of carriage services between such equipment and
equipment connected to the network units is, at most, an
ancillary function of the primary network; and
(d) despite the connection or connections referred to in
paragraph (a), the primary network cannot be used in
carrying a communication, as a single transaction, between
equipment connected to the network units and other such
equipment.
(3) For the purposes of this section, a carriage service is an exempt
service if the service is:
(a) a one-way only, store-and-forward communications service;
or
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(b) a service that performs the same functions as such a service.
(4) For the purposes of this section, a carriage service is an exempt
service if all of the end-users of the service are located at the same
distinct place.
(5) In this section:
eligible network unit means a network unit:
(a) that is owned by one or more carriers; or
(b) in relation to which a nominated carrier declaration is in
force.
33 Intercell hand-over functions
(1) For the purposes of this Act, a telecommunications network is
taken to have intercell hand-over functions if, and only if:
(a) the facilities of the network include at least 2 base stations
each of which transmits and receives signals to and from
customer equipment (mobile equipment) that is:
(i) used for or in relation to the supply of an eligible mobile
telecommunications service; and
(ii) located within a particular area (a cell); and
(b) the network includes the functions necessary to do the
following while the network is carrying a communication
made to or from particular mobile equipment:
(i) determine in which cell the equipment is located and
cause the base station in that cell to transmit and receive
signals to and from the equipment;
(ii) when the equipment moves from one cell to another,
cause the base station in the one cell to stop, and the
base station in the other cell to start, transmitting and
receiving signals to and from the equipment.
(2) For the purposes of this section, a carriage service is an eligible
mobile telecommunications service if:
(a) an end-user can use it while moving continuously between
places; and
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(b) customer equipment used for or in relation to the supply of
the service is not in physical contact with any part of the
telecommunications network by means of which the service
is supplied.
34 When a base station is part of a terrestrial radiocommunications
customer access network
(1) For the purposes of this Act, a base station is part of a terrestrial
radiocommunications customer access network if, and only if:
(a) the base station is part of a telecommunications network; and
(b) the base station is not an exempt base station (as defined by
subsection (2)); and
(c) the base station is used, or for use, in connection with the
supply of a carriage service; and
(d) customer equipment used for or in relation to the supply of
the service is not in physical contact with any part of the
telecommunications network by means of which the service
is supplied; and
(e) the service is wholly or principally used, or wholly or
principally for use, by each end-user:
(i) at premises occupied or used by the end-user; or
(ii) in the immediate vicinity of those premises; and
(f) the network does not have intercell hand-over functions; and
(g) the conditions (if any) specified in the regulations are
satisfied; and
(h) the network is not an exempt network (as defined by
subsection (3)).
(2) For the purposes of paragraph (1)(b), a base station is an exempt
base station if the sole use of the base station is use by a
broadcaster to:
(a) supply broadcasting services to the public; or
(b) supply a secondary carriage service by means of the main
carrier signal of a primary broadcasting service;
or both.
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(3) For the purposes of paragraph (1)(h), a network is an exempt
network if:
(a) the network is used, or for use, for the sole purpose of
supplying carriage services on a non-commercial basis; or
(b) the network is of a kind specified in the regulations.
(4) In this section:
broadcaster means:
(a) the Australian Broadcasting Corporation; or
(b) the Special Broadcasting Service Corporation; or
(c) the holder of a licence under the Broadcasting Services Act
1992; or
(d) a person who provides a broadcasting service under a class
licence under the Broadcasting Services Act 1992.
35 Fixed radiocommunications link
(1) For the purposes of this Act, a fixed radiocommunications link is
a facility, or a combination of facilities, where:
(a) the facility or combination is used, or for use, in connection
with the supply of a carriage service between 2 or more fixed
points by means of radiocommunication; and
(b) some or all of the communications carried by means of the
facility or combination have the characteristic of
double-ended interconnection (as defined by subsection (3));
and
(c) the facility or combination does not consist of:
(i) one or more base stations that are part of a terrestrial
radiocommunications customer access network; or
(ii) one or more base stations that would be part of such a
network if paragraph 34(1)(h) had not been enacted.
(2) For the purposes of this section, a fixed point is a fixed point on:
(a) land; or
(b) a building or structure on land.
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(3) For the purposes of this section, if:
(a) a communication is carried over a line link or other facility
that, apart from this section, is an eligible network unit; and
(b) the communication is then carried (immediately or with a
transmission delay of not longer than 30 seconds), by means
of radiocommunication, between 2 or more fixed points; and
(c) the communication is then carried (immediately or with a
transmission delay of not longer than 30 seconds) over
another line link or other facility that, apart from this section,
is an eligible network unit;
the communication referred to in paragraph (b) has the
characteristic of double-ended interconnection.
(4) In this section:
eligible network unit means a network unit:
(a) that is owned by one or more carriers; or
(b) in relation to which a nominated carrier declaration is in
force.
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Section 36
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Division 4—Distinct places
36 Distinct places—basic rules
(1) Places are distinct unless they are all in the same area because of
subsection (2), (3) or (4).
(2) Places are in the same area if they are all situated in the same
property as defined by section 37.
(3) Places are in the same area if they are situated in properties each of
which forms part of a combined area as defined by section 38 and:
(a) the same person or persons is or are the principal user (as
defined by section 39) of all the properties that together
constitute that combined area; or
(b) because of a determination in force under section 40, that
combined area is an eligible combined area for the purposes
of this paragraph.
(4) Places are in the same area if they are all situated in the same
eligible Territory.
(5) The later provisions of this Division have effect only for the
purposes of this Division.
37 Properties
(1) An area of land is a property if:
(a) there is a single freehold or leasehold title in relation to that
area (whether or not that title is registered under a law of a
State or Territory relating to the registration of interests in
land); and
(b) no part of that area is subject to a lease granted by the holder
of that title; and
(c) the title to the area is defined by reference to geographical
coordinates.
(2) If:
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(a) there is a single freehold or leasehold title (as mentioned in
paragraph (1)(a)) in relation to an area of land; and
(b) some but not all of that area is subject to a lease granted by
the holder of that title;
then, an area of land:
(c) all of which is within the area referred to in paragraph (a) of
this subsection; and
(d) none of which is subject to such a lease;
is a property unless it is only part of another such area.
(3) An area of land is not a property except as provided in this section.
(4) The regulations may prescribe the circumstances in which an area
of land in relation to which there is a single freehold or leasehold
title is not to constitute a property for the purposes of this Division.
(5) Despite paragraph (1)(c), the regulations may prescribe the
circumstances in which an area of land, the title to which is defined
otherwise than by reference to geographical coordinates, is a
property.
(6) In this section:
land includes premises and a part of premises, but does not include
unalienated Crown land.
lease includes sublease and leasehold title has a corresponding
meaning.
38 Combined areas
(1) 2 contiguous properties form a combined area.
(2) If:
(a) a property is contiguous with another property; and
(b) the other property forms part of a combined area;
the first-mentioned property, and the combined area referred to in
paragraph (b), together form a combined area.
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(3) Subsection (2) is recursive, that is, the reference in
paragraph (2)(b) to a combined area is a reference to something
that is a combined area because of any other application or
applications of this section.
39 Principal user of a property
(1) The principal user of a property is the person who:
(a) occupies the property; or
(b) uses the property for the purpose that is the sole or principal
purpose for which the property is used.
(2) However, if 2 or more persons:
(a) together occupy a property; or
(b) together use a property for the purpose that is the sole or
principal purpose for which the property is used;
they are taken to together be the principal user of the property.
40 Eligible combined areas
The Minister may, by legislative instrument, determine that
specified combined areas are eligible combined areas for the
purposes of paragraph 36(3)(b).
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Part 3—Carriers
Division 1—Simplified outline
41 Simplified outline
The following is a simplified outline of this Part:
• The owner of a network unit that is used to supply carriage
services to the public must hold a carrier licence unless:
(a) a nominated carrier declaration is in force in
relation to the network unit; or
(b) an exemption applies.
• Carrier licences are granted by the ACMA.
• The holder of a carrier licence is known as a carrier.
• If responsibility for a network unit is transferred from the
owner of the unit to a carrier, the ACMA may make a
nominated carrier declaration that declares the carrier to be
the nominated carrier in relation to the unit.
• Carrier licences are subject to conditions.
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52 Telecommunications Act 1997
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Division 2—Prohibitions relating to carriers
42 Network unit not to be used without carrier licence or nominated
carrier declaration
(1) If there is only one owner of a network unit, the owner of the
network unit must not use the unit, either alone or jointly with one
or more other persons, to supply a carriage service to the public,
unless:
(a) the owner holds a carrier licence; or
(b) a nominated carrier declaration is in force in relation to the
unit.
(2) If there is only one owner of a network unit, the owner of the
network unit must not allow or permit another person to use the
unit to supply a carriage service to the public unless:
(a) the owner holds a carrier licence; or
(b) a nominated carrier declaration is in force in relation to the
unit.
(3) If there are 2 or more owners of a network unit, an owner of the
network unit must not use the unit, either alone or jointly with one
or more other persons, to supply a carriage service to the public,
unless:
(a) the owner holds a carrier licence; or
(b) a nominated carrier declaration is in force in relation to the
unit.
(4) If there are 2 or more owners of a network unit, an owner of the
network unit must not, either alone or together with one or more
other owners, allow or permit another person to use the unit to
supply a carriage service to the public unless:
(a) the owner holds a carrier licence; or
(b) a nominated carrier declaration is in force in relation to the
unit.
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(5) A person who contravenes subsection (1), (2), (3) or (4) commits
an offence punishable on conviction by a fine not exceeding
20,000 penalty units.
Note: See also sections 4AA and 4B of the Crimes Act 1914.
43 Continuing offences
A person who contravenes section 42 commits a separate offence
in respect of each day (including a day of a conviction under this
section or any later day) during which the contravention continues.
44 Supply to the public
(1) This section sets out the circumstances in which a network unit is
taken, for the purposes of section 42, to be used to supply a
carriage service to the public.
(2) If:
(a) there is only one owner of a network unit; and
(b) no nominated carrier declaration is in force in relation to the
unit; and
(c) any of the following conditions is satisfied:
(i) the unit is used for the carriage of communications
between 2 end-users, where each end-user is outside the
immediate circle of the owner of the unit;
(ii) the unit is used to supply point-to-multipoint services to
end-users, where at least one end-user is outside the
immediate circle of the owner of the unit;
(iii) the unit is used to supply designated content services
(other than point-to-multipoint services) to one or more
end-users, where at least one end-user is outside the
immediate circle of the owner of the unit;
the unit is used to supply a carriage service to the public.
(3) If:
(a) there are 2 or more owners of a network unit; and
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(b) no nominated carrier declaration is in force in relation to the
unit; and
(c) any of the following conditions is satisfied:
(i) the unit is used for the carriage of communications
between 2 end-users, where each end-user is outside the
overlap of the immediate circles of the owners of the
unit;
(ii) the unit is used to supply point-to-multipoint services to
end-users, where at least one end-user is outside the
overlap of the immediate circles of the owners of the
unit;
(iii) the unit is used to supply designated content services
(other than point-to-multipoint services) to one or more
end-users, where at least one end-user is outside the
overlap of the immediate circles of the owners of the
unit;
the unit is used to supply a carriage service to the public.
(4) If:
(a) a nominated carrier declaration is in force in relation to a
network unit; and
(b) any of the following conditions is satisfied:
(i) the unit is used for the carriage of communications
between 2 end-users, where each end-user is outside the
immediate circle of the nominated carrier in relation to
the unit;
(ii) the unit is used to supply point-to-multipoint services to
end-users, where at least one end-user is outside the
immediate circle of the nominated carrier in relation to
the unit;
(iii) the unit is used to supply designated content services
(other than point-to-multipoint services) to one or more
end-users, where at least one end-user is outside the
immediate circle of the nominated carrier in relation to
the unit;
the unit is used to supply a carriage service to the public.
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(5) For the purposes of this section, a person is outside the overlap of
the immediate circles of the owners of a network unit unless the
person is:
(a) within the immediate circles of each of the owners of the
unit; or
(b) the owner, or one of the owners, of the unit.
(6) For the purposes of this section, a designated content service is a
content service of a kind specified in a written determination made
by the Minister.
(7) A determination under subsection (6) is a legislative instrument.
45 Exemption—defence
(1) If the sole use of a network unit is use by, or on behalf of, a
defence organisation to carry communications necessary or
desirable for defence purposes, section 42 does not apply to the
unit.
(2) If:
(a) the principal use of a network unit is use by, or on behalf of,
a defence organisation to carry communications necessary or
desirable for defence purposes; and
(b) the remaining use of the unit is use by one or more carriers,
or by one or more exempt network-users, to supply carriage
services and/or content services;
section 42 does not apply to the unit.
(3) In this section:
defence organisation means:
(a) the Defence Department; or
(b) the Australian Defence Force; or
(c) an organisation of a foreign country, so far as the
organisation:
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(i) has functions corresponding to functions of, or of a part
of, the Defence Department or the Australian Defence
Force; and
(ii) is authorised by the Commonwealth to operate or train
in Australia or an external Territory; or
(d) a part of such an organisation or body.
46 Exemption—intelligence operations
Section 42 does not apply to a network unit that is used wholly or
principally:
(a) by the Australian Secret Intelligence Service; or
(b) by the Australian Security Intelligence Organisation.
47 Exemption—transport authorities
(1) Section 42 does not apply to a network unit if the sole use of the
unit is use by Airservices Australia to carry communications
necessary or desirable for the workings of aviation services.
(3) Section 42 does not apply to a network unit if the sole use of the
unit is use by a State or Territory transport authority to carry
communications necessary or desirable for the workings of any or
all of the following services:
(a) train services of a kind provided by the authority;
(b) bus or other road services of a kind provided by the
authority;
(c) tram services of a kind provided by the authority.
(4) Section 42 does not apply to a network unit if the sole use of the
unit is use by a rail corporation to carry communications necessary
or desirable for the workings of train services.
(5) Section 42 does not apply to a network unit if:
(a) the principal use of the unit is use by Airservices Australia to
carry communications necessary or desirable for the
workings of aviation services; and
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(b) the remaining use of the unit is use by one or more carriers,
or by one or more exempt network-users, to supply carriage
services and/or content services.
(7) Section 42 does not apply to a network unit if:
(a) the principal use of the unit is use by a State or Territory
transport authority to carry communications necessary or
desirable for the workings of any or all of the following
services:
(i) train services of a kind provided by the authority;
(ii) bus or other road services of a kind provided by the
authority;
(iii) tram services of a kind provided by the authority; and
(b) the remaining use of the unit is use by one or more carriers,
or by one or more exempt network-users, to supply carriage
services and/or content services.
(8) Section 42 does not apply to a network unit if:
(a) the principal use of the unit is use by a rail corporation to
carry communications necessary or desirable for the
workings of train services; and
(b) the remaining use of the unit is use by one or more carriers,
or by one or more exempt network-users, to supply carriage
services and/or content services.
(9) In this section:
rail corporation means a body corporate that manages or operates
either or both of the following:
(a) rail transport services;
(b) rail transport infrastructure.
48 Exemption—broadcasting services
(1) If :
(a) the sole use of a network unit is use to carry communications
that are necessary or desirable for either or both of the
following purposes:
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(i) the supply of broadcasting services to the public;
(ii) the supply of a secondary carriage service by means of
the main carrier signal of a primary broadcasting
service; and
(b) the unit does not consist of, or include, a facility used to carry
communications between:
(i) the head end of a cable transmission system; and
(ii) the equipment used by an end-user to receive a
broadcasting service; and
(c) the unit does not consist of a broadcasting transmitter
transmitting a signal of a broadcasting service to its intended
audience;
section 42 does not apply to the unit.
(2) If:
(a) the principal use of a network unit is use to carry
communications that are necessary or desirable for either or
both of the following purposes:
(i) the supply of broadcasting services to the public;
(ii) the supply of a secondary carriage service by means of
the main carrier signal of a primary broadcasting
service; and
(b) the unit does not consist of, or include, a facility used to carry
communications between:
(i) the head end of a cable transmission system; and
(ii) the equipment used by an end-user to receive a
broadcasting service; and
(c) the unit does not consist of a broadcasting transmitter
transmitting a signal of a broadcasting service to its intended
audience; and
(d) the remaining use of the unit is use by one or more carriers,
or by one or more exempt network-users, to supply carriage
services and/or content services;
section 42 does not apply to the unit.
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(3) If the sole use of a line link is use for the purpose of a
re-transmission of a kind mentioned in paragraph 212(1)(a) or (b)
of the Broadcasting Services Act 1992, section 42 of this Act does
not apply to the line link.
(4) If:
(a) the principal use of a line link is use for the purpose of a
re-transmission of a kind mentioned in paragraph 212(1)(a)
or (b) of the Broadcasting Services Act 1992; and
(b) the remaining use of the line link is use by one or more
carriers, or by one or more exempt network-users, to supply
carriage services and/or content services;
section 42 of this Act does not apply to the line link.
(4A) For the purposes of this section, disregard subsection 212(3) of the
Broadcasting Services Act 1992.
(5) In this section:
broadcasting transmitter means a radiocommunications
transmitter used, or for use, to deliver a broadcasting service.
head end of a cable transmission system means a facility that:
(a) is connected to a line link; and
(b) is used, or for use, in connection with the delivery of a
broadcasting service; and
(c) processes signals for delivery by the line link to end-users
having equipment appropriate for receiving the service.
49 Exemption—electricity supply bodies
(1) If the sole use of a network unit is use by an electricity supply body
to carry communications necessary or desirable for:
(a) managing the generation, transmission, distribution or supply
of electricity; or
(b) charging for the supply of electricity;
section 42 does not apply to the unit.
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(2) If:
(a) the principal use of a network unit is use by an electricity
supply body to carry communications necessary or desirable
for:
(i) managing the generation, transmission, distribution or
supply of electricity; or
(ii) charging for the supply of electricity; and
(b) the remaining use of the unit is use by one or more carriers,
or by one or more exempt network-users, to supply carriage
services and/or content services;
section 42 does not apply to the unit.
(3) In this section:
electricity supply body means an authority, or a body corporate,
that carries on a business, or performs a function, of:
(a) generating, transmitting, distributing or supplying electricity;
or
(b) managing the generation, transmission, distribution or supply
of electricity.
50 Exemption—line links authorised by or under previous laws
(1) If:
(a) a line link consists of facilities in relation to which an
authorisation was in force under paragraph 13(1)(a) of the
Telecommunications Act 1975 immediately before the repeal
of that Act; and
(b) the sole use of the line link is use as provided in, and in
accordance with any conditions specified in, the
authorisation;
section 42 of this Act does not apply to the line link.
(2) If:
(a) a line link consists of facilities in relation to which an
authorisation was in force under paragraph 13(1)(a) of the
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Telecommunications Act 1975 immediately before the repeal
of that Act; and
(b) the principal use of the line link is use as provided in, and in
accordance with any conditions specified in, the
authorisation; and
(c) the remaining use of the line link is use by one or more
carriers, or by one or more exempt network-users, to supply
carriage services and/or content services;
section 42 of this Act does not apply to the line link.
(3) If a line link consists of facilities that:
(a) were installed before the repeal of section 45 of the
Telecommunications Act 1989; and
(b) immediately before that repeal, were permitted by that
section to be maintained and operated;
section 42 of this Act does not apply to the line link.
(4) If:
(a) a line link consists of facilities in relation to which an
authorisation was in force under section 46 of the
Telecommunications Act 1989 immediately before the repeal
of that Act; and
(b) the sole use of the line link is use as provided in, and in
accordance with any conditions specified in, the
authorisation;
section 42 of this Act does not apply to the line link.
(5) If:
(a) a line link consists of facilities in relation to which an
authorisation was in force under section 46 of the
Telecommunications Act 1989 immediately before the repeal
of that Act; and
(b) the principal use of the line link is use as provided in, and in
accordance with any conditions specified in, the
authorisation; and
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(c) the remaining use of the line link is use by one or more
carriers, or by one or more exempt network-users, to supply
carriage services and/or content services;
section 42 of this Act does not apply to the line link.
(6) If:
(a) a line link consists of facilities in relation to which an
authorisation was in force under section 108 of the
Telecommunications Act 1991 immediately before the repeal
of that Act; and
(b) the sole use of the line link is use as provided in, and in
accordance with any conditions specified in, the
authorisation;
section 42 of this Act does not apply to the line link.
(7) If:
(a) a line link consists of facilities in relation to which an
authorisation was in force under section 108 of the
Telecommunications Act 1991 immediately before the repeal
of that Act; and
(b) the principal use of the line link is use as provided in, and in
accordance with any conditions specified in, the
authorisation; and
(c) the remaining use of the line link is use by one or more
carriers, or by one or more exempt network-users, to supply
carriage services and/or content services;
section 42 of this Act does not apply to the line link.
51 Exemption—Ministerial determination
(1) The Minister may, by legislative instrument, determine that
section 42 does not apply in relation to:
(a) a specified network unit; or
(b) a specified person; or
(c) a specified use of a network unit.
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(2) A determination under this section may be unconditional or subject
to such conditions (if any) as are specified in the determination.
(3) A determination under this section has effect accordingly.
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Division 3—Carrier licences
52 Applications for carrier licence
A person may apply to the ACMA for a carrier licence, so long as
the person is:
(a) a constitutional corporation; or
(b) an eligible partnership; or
(c) a public body.
53 Form of application etc.
An application must be:
(a) in writing; and
(b) in accordance with the form approved in writing by the
ACMA.
53A Copy of application to be given to Communications Access
Co-ordinator
(1) The ACMA must give a copy of the application to the
Communications Access Co-ordinator.
(2) For the purposes of sections 56A and 59, the application is taken
not to have been received by the ACMA until the copy is received
by the Communications Access Co-ordinator.
54 Application to be accompanied by charge
An application must be accompanied by the charge (if any)
imposed on the application by Part 2 of the Telecommunications
(Carrier Licence Charges) Act 1997.
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55 Further information
(1) The ACMA may, within 20 business days after an application is
made, request the applicant to give the ACMA, within the period
specified in the request, further information about the application.
(2) The ACMA may refuse to consider the application until the
applicant gives the ACMA the information.
(3) In this section:
business day means a day on which the ACMA is open for
business in the Australian Capital Territory and in Victoria.
56 Grant of licence
(1) After considering an application, the ACMA may grant a carrier
licence in accordance with the application.
(2) If the ACMA grants a carrier licence to a person, the ACMA must
give the person a written notice stating that the licence has been
granted.
(3) If the ACMA grants a carrier licence, the ACMA must cause to be
published in the Gazette a notice stating that the licence has been
granted.
56A Consultation with Communications Access Co-ordinator
(1) The ACMA must not grant a carrier licence unless it has consulted
the Communications Access Co-ordinator about the licence
application.
(2) Within 15 business days after the date on which the ACMA
received the licence application, the Communications Access
Co-ordinator may give a written notice to the ACMA, stating that
the Communications Access Co-ordinator does not require any
further consultation about the application. The notice cannot be
revoked.
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Note: Under section 53A, the application is treated as not being received by
the ACMA until a copy has been received by the Communications
Access Co-ordinator.
(3) Within 15 business days after the date on which the ACMA
received the licence application, the Communications Access
Co-ordinator may give a written notice to the ACMA:
(a) stating that, while the notice remains in force, the ACMA
must not grant the carrier licence; and
(b) specifying the period during which the notice remains in
force (unless earlier revoked), which period cannot end more
than 3 months after the date of the notice.
However, the Communications Access Co-ordinator cannot give
such a notice if the Communications Access Co-ordinator has
earlier given a notice under subsection (2) in relation to the
application.
(4) At any time while a notice is in force under subsection (3), or
under this subsection, the Communications Access Co-ordinator
may give a further written notice to the ACMA:
(a) stating that, while the notice remains in force, the ACMA
must not grant the carrier licence; and
(b) specifying the period during which the notice remains in
force (unless earlier revoked), which period cannot end more
than 3 months after the date of the notice or more than 12
months after the date of the notice under subsection (3).
(5) The Communications Access Co-ordinator may, by notice in
writing to the ACMA, revoke a notice under subsection (3) or (4).
(6) The Communications Access Co-ordinator cannot issue a further
notice under subsection (3) or (4) in respect of the application after
it has revoked such a notice.
(7) The ACMA must give the applicant a copy of each notice that the
ACMA receives from the Communications Access Co-ordinator
under subsection (3), (4) or (5).
(8) The ACMA must not grant the carrier licence while a notice is in
force under subsection (3) or (4).
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(9) In this section:
business day means a day on which the ACMA is open for
business in the Australian Capital Territory and in Victoria.
57 Carrier licence has effect subject to this Act
(1) A carrier licence has effect subject to this Act.
(2) In this section:
this Act includes the Telecommunications (Consumer Protection
and Service Standards) Act 1999 and regulations under that Act.
58 Refusal of carrier licence—disqualified applicant
(1) The ACMA may refuse to grant a carrier licence to an applicant if,
immediately before the ACMA makes its decision on the
application, the applicant is disqualified.
When body corporate is disqualified
(2) For the purposes of this section, a body corporate is disqualified at
a particular time (the test time) if:
(a) at any time before the test time, a carrier licence held by the
body corporate was cancelled under subsection 72(1) or
(2A); or
(b) at any time before the test time, a carrier licence held by a
partnership in which the body corporate was a partner was
cancelled under subsection 72(1) or (2A); or
(c) at the test time, any of the following individuals is
disqualified:
(i) a director of the body corporate;
(ii) the secretary of the body corporate;
(iii) a person (by whatever name called and whether or not a
director of the body corporate) who is concerned in, or
takes part in, the management of the body corporate.
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When individual is disqualified—failure to pay annual charge
(3) For the purposes of subsection (2), an individual is disqualified at a
particular time (the test time) if:
(a) at any time before the test time, a carrier licence held by a
body corporate or partnership was cancelled under
subsection 72(1) because of a failure by the body corporate
or partnership to pay in full the charge referred to in that
subsection; and
(b) in the case of a body corporate—at the time when the charge
referred to in subsection 72(1) was due and payable, the
individual was:
(i) a director of the body corporate; or
(ii) the secretary of the body corporate; or
(iii) a person (by whatever name called and whether or not a
director of the body corporate) who was concerned in,
or took part in, the management of the body corporate;
and
(c) in the case of a partnership—at the time when the charge
referred to in subsection 72(1) was due and payable, the
individual:
(i) was an employee of the partnership; and
(ii) was concerned in, or took part in, the management of
the partnership; and
(d) the individual:
(i) aided, abetted, counselled or procured the failure of the
body corporate or partnership; or
(ii) was in any way, by act or omission, directly or
indirectly, knowingly concerned in, or party to, the
failure of the body corporate or partnership.
When individual is disqualified—failure to pay industry levy
(4A) For the purposes of subsection (2), an individual is disqualified at a
particular time (the test time) if:
(a) at any time before the test time, a carrier licence held by a
body corporate or partnership was cancelled under
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subsection 72(2A) because of a failure by the body corporate
or partnership to pay in full the industry levy referred to in
that subsection; and
(b) in the case of a body corporate—at the time when the
industry levy referred to in subsection 72(2A) was due and
payable, the individual was:
(i) a director of the body corporate; or
(ii) the secretary of the body corporate; or
(iii) a person (by whatever name called and whether or not a
director of the body corporate) who was concerned in,
or took part in, the management of the body corporate;
and
(c) in the case of a partnership—at the time when the industry
levy referred to in subsection 72(2A) was due and payable,
the individual:
(i) was an employee of the partnership; and
(ii) was concerned in, or took part in, the management of
the partnership; and
(d) the individual:
(i) aided, abetted, counselled or procured the failure of the
body corporate or partnership; or
(ii) was in any way, by act or omission, directly or
indirectly, knowingly concerned in, or party to, the
failure of the body corporate or partnership.
When partnership is disqualified
(5) For the purposes of this section, a partnership is disqualified at a
particular time (the test time) if:
(a) at any time before the test time, a carrier licence held by the
partnership was cancelled under subsection 72(1) or (2A); or
(b) at the test time, any of the partners is disqualified; or
(c) at the test time, an individual who:
(i) is an employee of the partnership; and
(ii) is concerned in, or takes part in, the management of the
partnership;
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is disqualified.
This section does not limit grounds for refusal to grant carrier
licence
(6) This section does not, by implication, limit the grounds on which
the ACMA may refuse to grant a carrier licence.
58A Refusal of carrier licence—security
(1) If the Attorney-General, after consulting the Prime Minister and
the Minister administering this Act, considers that the grant of a
carrier licence to a particular person would be prejudicial to
security, the Attorney-General may give a written direction to the
ACMA not to grant a carrier licence to the person.
(2) The ACMA must comply with a direction under subsection (1).
(3) While a direction is in force under this section:
(a) the ACMA cannot reconsider a non-compulsory refusal to
grant a carrier licence to the person; and
(b) the Administrative Appeals Tribunal cannot consider an
application for review of a non-compulsory refusal to grant a
carrier licence to the person.
(4) If an application for a carrier licence is pending at the time when
the Attorney-General gives a direction to the ACMA under this
section, then the application lapses.
Note: Section 73A provides for refund of the application charge.
(5) In this section:
non-compulsory refusal means a refusal to grant a carrier licence,
other than a refusal that is required by section 56A or this section.
security has the same meaning as in the Australian Security
Intelligence Organisation Act 1979.
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59 Time limit on licence decision
Deemed refusal of licence application if no decision by deadline
(1) If the ACMA neither grants, nor refuses to grant, a carrier licence
before the end of the deadline day worked out under the following
subsections, then the ACMA is taken, at the end of that day, to
have refused to grant the licence.
Case 1: no section 55 request and no section 56A notice in force
(2) If:
(a) the ACMA did not give a section 55 request; and
(b) there is no section 56A notice in force at the end of the 20th
business day after the application day;
then the deadline day is the 20th business day after the application
day.
Case 2: no section 55 request but section 56A notice in force
(3) If:
(a) the ACMA did not give a section 55 request; and
(b) there is a section 56A notice in force at the end of the 20th
business day after the application day;
then the deadline day is the fifth business day after the section 56A
expiration day. For this purpose, the section 56A expiration day is
the first day after the end of that 20th business day on which there
is no notice in force under section 56A.
Case 3: section 55 request complied with and no section 56A
notice in force
(4) If:
(a) the ACMA gave a section 55 request; and
(b) the request was complied with; and
(c) there is no section 56A notice in force at the end of the tenth
business day after the day on which the request was complied
with;
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then the deadline day is the tenth business day after the day on
which the request was complied with.
Case 4: section 55 request complied with and section 56A notice in
force
(5) If:
(a) the ACMA gave a section 55 request; and
(b) the request was complied with; and
(c) there is a section 56A notice in force at the end of the tenth
business day after the day on which the request was complied
with;
then the deadline day is the fifth business day after the section 56A
expiration day. For this purpose, the section 56A expiration day is
the first day after the end of that tenth business day on which there
is no notice in force under section 56A.
Case 5: section 55 request not complied with and no section 56A
notice in force
(6) If:
(a) the ACMA gave a section 55 request; and
(b) the request was not complied with; and
(c) there is no section 56A notice in force at the end of the tenth
business day after the day specified in the section 55 request;
then the deadline day is the tenth business day after the day
specified in the section 55 request.
Case 6: section 55 request not complied with and section 56A
notice in force
(7) If:
(a) the ACMA gave a section 55 request; and
(b) the request was not complied with; and
(c) there is a section 56A notice in force at the end of the tenth
business day after the day specified in the section 55 request;
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then the deadline day is the fifth business day after the section 56A
expiration day. For this purpose, the section 56A expiration day is
the first day after the end of that tenth business day on which there
is no notice in force under section 56A.
(8) In this section:
application day means the day on which the ACMA received the
licence application.
Note: Under section 53A, the application is treated as not being received by
the ACMA until a copy has been received by the Communications
Access Co-ordinator.
business day means a day on which the ACMA is open for
business in the Australian Capital Territory and in Victoria.
section 55 request means a request under section 55 in relation to
the licence application.
section 56A notice means a notice under subsection 56A(3) or (4)
in relation to the licence application.
60 Notification of refusal of application
If the ACMA refuses to grant a carrier licence, the ACMA must
give written notice of the refusal to the applicant.
61 Conditions of carrier licence specified in Schedule 1
A carrier licence is subject to the conditions specified in
Schedule 1.
62 Condition of carrier licence set out in section 152AZ of the
Competition and Consumer Act 2010
A carrier licence is subject to the condition set out in
section 152AZ of the Competition and Consumer Act 2010.
Note: Section 152AZ of the Competition and Consumer Act 2010 deals with
standard access obligations.
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62A Condition of carrier licence set out in section 152BCO of the
Competition and Consumer Act 2010
A carrier licence is subject to the condition set out in
section 152BCO of the Competition and Consumer Act 2010.
Note: Section 152BCO of the Competition and Consumer Act 2010 deals
with access determinations.
62B Condition of carrier licence set out in section 152BDF of the
Competition and Consumer Act 2010
A carrier licence is subject to the condition set out in
section 152BDF of the Competition and Consumer Act 2010.
Note: Section 152BDF of the Competition and Consumer Act 2010 deals
with binding rules of conduct.
62C Condition of carrier licence set out in section 152BEC of the
Competition and Consumer Act 2010
A carrier licence is subject to the condition set out in
section 152BEC of the Competition and Consumer Act 2010.
Note: Section 152BEC of the Competition and Consumer Act 2010 deals
with access agreements.
62D Condition of carrier licence set out in section 152CJC of the
Competition and Consumer Act 2010
A carrier licence held by an NBN corporation is subject to the
condition set out in section 152CJC of the Competition and
Consumer Act 2010.
Note: Section 152CJC of the Competition and Consumer Act 2010 deals
with rules about the supply of services by NBN corporations.
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62E Condition of carrier licence set out in section 37 of the National
Broadband Network Companies Act 2011
A carrier licence held by an NBN corporation is subject to the
condition set out in section 37 of the National Broadband Network
Companies Act 2011.
Note: Section 37 of the National Broadband Network Companies Act 2011
deals with rules about:
(a) the supply of goods and services by NBN corporations; and
(b) the investment of money by NBN corporations; and
(c) the functional separation of NBN corporations; and
(d) the divestment of assets by NBN corporations.
63 Conditions of carrier licence declared by Minister
Conditions applying to each carrier licence
(1) The Minister may, by legislative instrument, declare that each
carrier licence is subject to such conditions as are specified in the
instrument.
Conditions applying to specified existing carrier licences
(2) The Minister may, by legislative instrument, declare that a
specified carrier licence is subject to such conditions as are
specified in the instrument.
Note: A licence may be specified by name, by inclusion in a specified class
or in any other way.
Conditions applying to specified future carrier licences
(3) The Minister may, by legislative instrument, declare that, in the
event that a carrier licence is granted to a specified person during a
specified period, the carrier licence is subject to such conditions as
are specified in the instrument.
Declarations have effect
(4) A declaration under this section has effect accordingly.
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Variation of conditions
(5) The Minister may, by legislative instrument, vary an instrument
under subsection (1), (2) or (3).
Revocation of conditions
(6) The Minister may, by legislative instrument, revoke an instrument
under subsection (1), (2) or (3).
Notification of conditions—existing licences
(7) As soon as practicable after the Minister makes an instrument
under subsection (1), (2), (5) or (6) that relates to a licence, the
Minister must give the holder of the licence a copy of the
instrument.
Notification of conditions—future licences
(8) As soon as practicable after the Minister makes an instrument
under subsection (3) that relates to a licence, the Minister must
give the applicant for the licence a copy of the instrument.
Validity not affected by failure to notify conditions
(9) A contravention of subsection (7) or (8) does not affect the validity
of an instrument.
Date of effect—future licences
(12) An instrument under subsection (3) relating to a licence takes
effect when the licence is granted.
64 Consultation about declared licence conditions
(1) Before making an instrument under subsection 63(1), (2), (5) or (6)
that relates to a licence, the Minister must first:
(a) cause the holder of the licence to be given a written notice
setting out a draft version of the instrument and inviting the
holder to make submissions to the Minister on the draft; and
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(b) consider any submissions that were received within the time
limit specified in the notice.
(2) The time limit specified in a notice under subsection (1) must be at
least 30 days.
(3) Before making an instrument under subsection 63(3) that relates to
a licence, the Minister must first:
(a) cause the applicant for the licence to be given a written notice
setting out a draft version of the instrument and inviting the
applicant to make submissions to the Minister on the draft;
and
(b) consider any submissions that were received within the time
limit specified in the notice.
65 Conditions about foreign ownership or control
(1) A condition of a carrier licence may relate to the extent of foreign
ownership or control (whether direct or indirect) of the holder.
(2) Subsection (1) does not, by implication, limit the conditions that
may be declared under section 63.
67 Carrier licence conditions—special provisions
(1) A condition of a carrier licence held by a carrier has effect subject
to the provisions of a licence under the Radiocommunications Act
1992 under which the carrier is authorised to do something.
(2) A condition of a carrier licence held by a carrier may remove or
restrict a right or privilege that the carrier would otherwise have
under a provision of this Act (whether or not in the carrier’s
capacity as a carrier).
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(3) In this section:
this Act includes the Telecommunications (Consumer Protection
and Service Standards) Act 1999 and regulations under that Act.
68 Compliance with conditions
(1) A carrier must not contravene a condition of the carrier licence
held by the carrier.
(2) A person must not:
(a) aid, abet, counsel or procure a contravention of
subsection (1); or
(b) induce, whether by threats or promises or otherwise, a
contravention of subsection (1); or
(c) be in any way, directly or indirectly, knowingly concerned in,
or party to, a contravention of subsection (1); or
(d) conspire with others to effect a contravention of
subsection (1).
(3) Subsections (1) and (2) are civil penalty provisions.
Note: Part 31 provides for pecuniary penalties for breaches of civil penalty
provisions.
69 Remedial directions—breach of condition
(1) This section applies if a carrier has contravened, or is contravening,
a condition of the carrier licence held by the carrier.
(2) The ACMA may give the carrier a written direction requiring the
carrier to take specified action directed towards ensuring that the
carrier does not contravene the condition, or is unlikely to
contravene the condition, in the future.
(3) The following are examples of the kinds of direction that may be
given to a carrier under subsection (2):
(a) a direction that the carrier implement effective administrative
systems for monitoring compliance with a condition of the
licence;
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(b) a direction that the carrier implement a system designed to
give the carrier’s employees, agents and contractors a
reasonable knowledge and understanding of the requirements
of a condition of the licence, in so far as those requirements
affect the employees, agents or contractors concerned.
(4) A carrier must not contravene a direction under subsection (2).
(5) Subsection (1) does not apply to a condition set out in Part 1 of
Schedule 1 in so far as that condition relates to section 369.
Note: Section 369 deals with Rules of Conduct under section 367.
(5A) Subsection (1) does not apply to a condition set out in Part 1 of
Schedule 1 in so far as that condition relates to section 577AD,
577CD or 577ED.
Note: Sections 577AD, 577CD and 577ED deal with undertakings given by
Telstra.
(6) Subsection (1) does not apply to a condition set out in Part 3, 4 or 5
of Schedule 1.
Note: Parts 3, 4 and 5 of Schedule 1 deal with access to network information
and access to facilities.
(6B) Subsection (1) does not apply to the condition set out in clause 84
of Schedule 1.
Note: Clause 84 of Schedule 1 deals with control by Telstra of certain
spectrum licences.
(7) Subsection (1) does not apply to the condition set out in
section 152AZ of the Competition and Consumer Act 2010.
Note: Section 152AZ of the Competition and Consumer Act 2010 deals with
standard access obligations.
(7A) Subsection (1) does not apply to the condition set out in
section 152BCO of the Competition and Consumer Act 2010.
Note: Section 152BCO of the Competition and Consumer Act 2010 deals
with access determinations.
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(7B) Subsection (1) does not apply to the condition set out in
section 152BDF of the Competition and Consumer Act 2010.
Note: Section 152BDF of the Competition and Consumer Act 2010 deals
with binding rules of conduct.
(7C) Subsection (1) does not apply to the condition set out in
section 152BEC of the Competition and Consumer Act 2010.
Note: Section 152BEC of the Competition and Consumer Act 2010 deals
with access agreements.
(7D) Subsection (1) does not apply to the condition set out in
section 152CJC of the Competition and Consumer Act 2010.
Note: Section 152CJC of the Competition and Consumer Act 2010 deals
with rules about the supply of services by NBN corporations.
(7E) Subsection (1) does not apply to the condition set out in section 37
of the National Broadband Network Companies Act 2011.
Note: Section 37 of the National Broadband Network Companies Act 2011
deals with rules about:
(a) the supply of goods and services by NBN corporations; and
(b) the investment of money by NBN corporations; and
(c) the functional separation of NBN corporations; and
(d) the divestment of assets by NBN corporations.
(7F) Subsection (1) does not apply to a condition covered by section 41
of the National Broadband Network Companies Act 2011.
Note: Section 41 of the National Broadband Network Companies Act 2011
deals with rules about the supply of services by NBN corporations.
(8) A direction under subsection (2) is not a legislative instrument.
69AA Remedial directions—breach of conditions relating to access
Scope
(1) This section applies if:
(a) a carrier has contravened, or is contravening, a condition of
the carrier licence held by the carrier; and
(b) the condition is set out in Part 3, 4 or 5 of Schedule 1.
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Note: Parts 3, 4 and 5 of Schedule 1 deal with access to network information
and access to facilities.
Direction
(2) The ACCC may give the carrier a written direction requiring the
carrier to take specified action directed towards ensuring that the
carrier does not contravene the condition, or is unlikely to
contravene the condition, in the future.
(3) The following are examples of the kinds of direction that may be
given to a carrier under subsection (2):
(a) a direction that the carrier implement effective administrative
systems for monitoring compliance with the condition;
(b) a direction that the carrier implement a system designed to
give the carrier’s employees, agents and contractors a
reasonable knowledge and understanding of the requirements
of the condition, in so far as those requirements affect the
employees, agents or contractors concerned.
(4) The ACCC must not give a direction under subsection (2) if the
direction would have the effect of:
(a) preventing Telstra from complying with an undertaking in
force under section 577A, 577C or 577E; or
(b) if a final migration plan is in force—requiring Telstra to
engage in conduct in connection with matters covered by the
final migration plan.
(5) A carrier must not contravene a direction under subsection (2).
(6) A direction under subsection (2) is not a legislative instrument.
70 Formal warnings—breach of condition
(1) The ACMA may issue a formal warning if a carrier contravenes a
condition of the carrier licence held by the carrier.
(2) Subsection (1) does not apply to a condition set out in Part 1 of
Schedule 1 in so far as that condition relates to section 369.
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Note: Section 369 deals with Rules of Conduct under section 367.
(2A) Subsection (1) does not apply to a condition set out in Part 1 of
Schedule 1 in so far as that condition relates to section 577AD,
577CD or 577ED.
Note: Sections 577AD, 577CD and 577ED deal with undertakings given by
Telstra.
(3) Subsection (1) does not apply to a condition set out in Part 3, 4 or 5
of Schedule 1.
Note: Parts 3, 4 and 5 of Schedule 1 deal with access to network information
and access to facilities.
(3B) Subsection (1) does not apply to the condition set out in clause 84
of Schedule 1.
Note: Clause 84 of Schedule 1 deals with control by Telstra of certain
spectrum licences.
(4) Subsection (1) does not apply to the condition set out in
section 152AZ of the Competition and Consumer Act 2010.
Note: Section 152AZ of the Competition and Consumer Act 2010 deals with
standard access obligations.
(4A) Subsection (1) does not apply to the condition set out in
section 152BCO of the Competition and Consumer Act 2010.
Note: Section 152BCO of the Competition and Consumer Act 2010 deals
with access determinations.
(4B) Subsection (1) does not apply to the condition set out in
section 152BDF of the Competition and Consumer Act 2010.
Note: Section 152BDF of the Competition and Consumer Act 2010 deals
with binding rules of conduct.
(4C) Subsection (1) does not apply to the condition set out in
section 152BEC of the Competition and Consumer Act 2010.
Note: Section 152BEC of the Competition and Consumer Act 2010 deals
with access agreements.
(4D) Subsection (1) does not apply to the condition set out in
section 152CJC of the Competition and Consumer Act 2010.
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Note: Section 152CJC of the Competition and Consumer Act 2010 deals
with rules about the supply of services by NBN corporations.
(4E) Subsection (1) does not apply to the condition set out in section 37
of the National Broadband Network Companies Act 2011.
Note: Section 37 of the National Broadband Network Companies Act 2011
deals with rules about:
(a) the supply of goods and services by NBN corporations; and
(b) the investment of money by NBN corporations; and
(c) the functional separation of NBN corporations; and
(d) the divestment of assets by NBN corporations.
(4F) Subsection (1) does not apply to a condition covered by section 41
of the National Broadband Network Companies Act 2011.
Note: Section 41 of the National Broadband Network Companies Act 2011
deals with rules about the supply of services by NBN corporations.
(5) The ACCC may issue a formal warning if a carrier contravenes any
of the following conditions of the carrier licence held by the
carrier:
(a) the condition set out in Part 1 of Schedule 1 in so far as that
condition relates to section 369;
(aa) the condition set out in Part 1 of Schedule 1 in so far as that
condition relates to section 577AD, 577CD or 577ED;
(b) a condition set out in Part 3, 4 or 5 of Schedule 1;
(c) the condition set out in section 152AZ of the Competition
and Consumer Act 2010;
(d) the condition set out in section 152BCO of the Competition
and Consumer Act 2010;
(e) the condition set out in section 152BDF of the Competition
and Consumer Act 2010;
(f) the condition set out in section 152BEC of the Competition
and Consumer Act 2010;
(g) the condition set out in section 152CJC of the Competition
and Consumer Act 2010;
(h) the condition set out in section 37 of the National Broadband
Network Companies Act 2011;
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(i) a condition covered by section 41 of the National Broadband
Network Companies Act 2011.
71 Surrender of carrier licence
A carrier may, by written notice given to the ACMA, surrender the
carrier licence held by the carrier.
72 Cancellation of carrier licence
Failure to pay annual charge
(1) The ACMA may cancel a carrier licence held by a carrier if the
carrier fails to pay in full any annual charge on or before the date
on which the charge becomes due and payable. For this purpose,
annual charge means charge imposed by Part 3 of the
Telecommunications (Carrier Licence Charges) Act 1997.
Failure to pay industry levy
(2A) The ACMA may cancel a carrier licence held by a carrier if the
carrier fails to pay in full any industry levy on or before the date on
which the industry levy becomes due and payable.
Note: Industry levy is defined by section 7 to mean levy imposed by the
Telecommunications (Industry Levy) Act 2012.
Becoming a disqualified body corporate
(3) If the holder of a carrier licence becomes a disqualified body
corporate (within the meaning of section 58), the ACMA may
cancel the licence.
Becoming a disqualified partnership
(4) If the holder of a carrier licence becomes a disqualified partnership
(within the meaning of section 58), the ACMA may cancel the
licence.
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Ceasing to be a constitutional corporation, eligible partnership or
public body
(5) If, at a particular time, the holder of a carrier licence is none of the
following:
(a) a constitutional corporation;
(b) an eligible partnership;
(c) a public body;
the licence is taken to have been cancelled at that time.
Submissions relating to proposed cancellation
(6) The ACMA must not cancel a carrier licence under subsection (1),
(2), (3) or (4) unless the ACMA has first:
(a) given the carrier a written notice:
(i) setting out a proposal to cancel the licence; and
(ii) inviting the carrier to make a submission to the ACMA
on the proposal; and
(b) considered any submission that was received within the time
limit specified in the notice.
Time limit
(7) A time limit specified in the notice under subsection (6) must run
for at least 7 days.
Notification of cancellation
(8) If a carrier licence held by a person is cancelled, the ACMA must
give written notice of the cancellation to the person.
73 Collection of charges relating to carrier licences
Definitions
(1) In this section:
annual charge means charge imposed by Part 3 of the
Telecommunications (Carrier Licence Charges) Act 1997.
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86 Telecommunications Act 1997
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application charge means charge imposed by Part 2 of the
Telecommunications (Carrier Licence Charges) Act 1997.
late payment penalty means an amount that is payable by way of
penalty in accordance with a determination under subsection (4).
When application charge due and payable
(2) Application charge imposed on an application for a carrier licence
is due and payable when the application is made.
When annual charge due and payable
(3) Annual charge is due and payable at the time ascertained in
accordance with a written determination made by the ACMA.
Late payment penalty
(4) The ACMA may, by written instrument, determine that, if any
annual charge payable by a person remains unpaid after the time
when it became due for payment, the person is liable to pay to the
Commonwealth, by way of penalty, an amount calculated at the
rate of:
(a) 20% per annum; or
(b) if the determination specifies a lower percentage—that lower
percentage per annum;
on the amount unpaid, computed from that time.
Determination has effect
(5) A determination under subsection (4) has effect accordingly.
Remission of penalty
(6) A determination under subsection (4) may authorise the ACMA to
make decisions about the remission of the whole or a part of an
amount of late payment penalty.
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Section 73A
Telecommunications Act 1997 87
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Payment of charge and late payment penalty
(7) Annual charge, application charge and late payment penalty are
payable to the ACMA on behalf of the Commonwealth.
Recovery of charge and penalty
(8) Annual charge, application charge and late payment penalty may
be recovered by the ACMA, on behalf of the Commonwealth, as
debts due to the Commonwealth.
Payment to the Commonwealth
(9) Amounts received by way of annual charge, application charge or
late payment penalty must be paid to the Commonwealth.
Legislative instrument
(10) A determination under subsection (3) or (4) is a legislative
instrument.
73A Refund of application charge
(1) This section applies to application charge that has been paid in
respect of an application for a carrier licence if:
(a) the application lapses under section 58A; or
(b) the application has been refused and there is no longer any
possibility of the refusal decision being set aside.
(2) The ACMA, on behalf of the Commonwealth, must refund the
application charge to the applicant.
(3) The Consolidated Revenue Fund is appropriated for payments
under this section.
(4) In this section:
application charge means charge imposed by Part 2 of the
Telecommunications (Carrier Licence Charges) Act 1997.
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Section 74
88 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
74 Collection of charges on behalf of the Commonwealth
The ACMA may enter into an arrangement with a person under
which the person may, on behalf of the Commonwealth, collect
payments of charge imposed by the Telecommunications (Carrier
Licence Charges) Act 1997.
75 Cancellation of certain exemptions from charge
(1) This section cancels the effect of a provision of another Act that
would have the effect of exempting a person from liability to pay
charge imposed by the Telecommunications (Carrier Licence
Charges) Act 1997.
(2) The cancellation does not apply if the provision of the other Act is
enacted after the commencement of this section and refers
specifically to charge imposed by the Telecommunications
(Carrier Licence Charges) Act 1997.
76 Commonwealth not liable to charge
(1) The Commonwealth is not liable to pay charge imposed by the
Telecommunications (Carrier Licence Charges) Act 1997.
(2) A reference in this section to the Commonwealth includes a
reference to an authority of the Commonwealth that cannot, by law
of the Commonwealth, be made liable to taxation by the
Commonwealth.
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Nominated carrier declarations Division 4
Section 77
Telecommunications Act 1997 89
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Division 4—Nominated carrier declarations
77 Applications for nominated carrier declarations
A carrier may apply to the ACMA for a nominated carrier
declaration in relation to one or more specified network units.
Note: A network unit may be specified by name, by inclusion in a specified
class or in any other way.
78 Application to be accompanied by charge etc.
(1) An application must be accompanied by:
(a) the charge (if any) fixed by a determination under section 60
of the Australian Communications and Media Authority Act
2005; and
(b) the consent of the owner, or each of the owners, of the
network units; and
(c) the election of the applicant accepting responsibility for the
units for the purposes of this Act.
(2) In this section:
this Act includes the Telecommunications (Consumer Protection
and Service Standards) Act 1999 and regulations under that Act.
79 Form of application etc.
The application, consent and election must be:
(a) in writing; and
(b) in accordance with a form approved in writing by the
ACMA.
80 Further information
(1) The ACMA may request the applicant to give the ACMA, within
the period specified in the request, further information about the
application.
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Section 81
90 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(2) The ACMA may refuse to consider the application until the
applicant gives the ACMA the information.
81 Making a nominated carrier declaration
(1) After considering the application, the ACMA may declare in
writing that the applicant is the nominated carrier in relation to the
network units if the ACMA is satisfied that:
(a) if the declaration were made, the applicant would be in a
position to comply with all of the obligations imposed on the
applicant in the applicant’s capacity as the nominated carrier
in relation to the units; and
(b) the making of the declaration will not impede the efficient
administration of this Act.
(2) The ACMA may only declare one carrier to be the nominated
carrier in relation to the network units.
(3) The ACMA must give a copy of the declaration to:
(a) the applicant; and
(b) the owner, or each of the owners, of the network units.
(4) A copy of the declaration is to be published in the Gazette.
(5) In this section:
this Act includes the Telecommunications (Consumer Protection
and Service Standards) Act 1999 and regulations under that Act.
81A Obligations of nominated carrier
(1) If at any time the nominated carrier does not own or operate the
network units, this Act nevertheless applies to the nominated
carrier in relation to the network units as if they were owned or
operated by the nominated carrier.
(2) Subsection (1) does not affect the application of this Act in relation
to any other person who owns or operates the network units.
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Telecommunications Act 1997 91
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(3) In this section:
this Act includes the Telecommunications (Consumer Protection
and Service Standards) Act 1999 and regulations under that Act.
82 Notification of refusal of application
If the ACMA refuses to make a nominated carrier declaration, the
ACMA must give written notice of the refusal to:
(a) the applicant; and
(b) the owner, or each of the owners, of the network units.
83 Revocation of nominated carrier declaration
(1) The ACMA may, by writing, revoke a nominated carrier
declaration relating to a nominated carrier if the ACMA is satisfied
that, if it were assumed that the nominated carrier were to apply for
the declaration, the ACMA would refuse to make the declaration.
(2) The ACMA must, by writing, revoke the nominated carrier
declaration relating to a nominated carrier and relating to one or
more network units if:
(a) the owner, or any of the owners, of the network units gives
the ACMA a written notice stating that the owner does not
consent to the continued operation of the declaration; or
(b) the nominated carrier gives the ACMA a written notice
stating that it does not accept responsibility for the units for
the purposes of this Act.
(3) The ACMA must give a copy of the revocation to:
(a) the former nominated carrier; and
(b) the owner, or each of the owners, of the network units
concerned.
(4) A copy of the revocation must be published in the Gazette.
(5) A revocation under subsection (1) or (2) takes effect on the date
specified in the revocation.
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Section 83
92 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(6) The ACMA must not revoke a nominated carrier declaration under
subsection (1) unless the ACMA has first:
(a) given the nominated carrier a written notice:
(i) setting out a proposal to revoke the declaration; and
(ii) inviting the nominated carrier to make a submission to
the ACMA on the proposal; and
(b) considered any submission that was received within the time
limit specified in the notice.
(7) A time limit specified in a notice under subsection (6) must run for
at least 7 days.
(8) In this section:
this Act includes the Telecommunications (Consumer Protection
and Service Standards) Act 1999 and regulations under that Act.
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Register of nominated carrier declarations and carrier licences Division 5
Section 84
Telecommunications Act 1997 93
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Division 5—Register of nominated carrier declarations and
carrier licences
84 Register of nominated carrier declarations and carrier licences
(1) The ACMA is to maintain a Register in which the ACMA
includes:
(a) all nominated carrier declarations currently in force; and
(b) all carrier licences currently in force; and
(c) all conditions of such licences.
(2) The Register may be maintained by electronic means.
(3) A person may, on payment of the charge (if any) fixed by a
determination under section 60 of the Australian Communications
and Media Authority Act 2005:
(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 ACMA 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 ACMA may provide the relevant information:
(a) on a data processing device; or
(b) by way of electronic transmission.
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Part 4 Service providers
Division 1 Simplified outline
Section 85
94 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Part 4—Service providers
Division 1—Simplified outline
85 Simplified outline
The following is a simplified outline of this Part:
• A service provider is:
(a) a carriage service provider; or
(b) a content service provider.
• A carriage service provider is a person who supplies, or
proposes to supply, certain carriage services.
• A content service provider is a person who supplies, or
proposes to supply, certain content services.
• Service providers must comply with the service provider
rules.
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Service providers Division 2
Section 86
Telecommunications Act 1997 95
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Division 2—Service providers
86 Service providers
For the purposes of this Act, a service provider is:
(a) a carriage service provider; or
(b) a content service provider.
Note 1: Carriage service provider is defined by section 87.
Note 2: Content service provider is defined by section 97.
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Division 3 Carriage service providers
Section 87
96 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Division 3—Carriage service providers
87 Carriage service providers
Basic definition
(1) For the purposes of this Act, if a person supplies, or proposes to
supply, a listed carriage service to the public using:
(a) a network unit owned by one or more carriers; or
(b) a network unit in relation to which a nominated carrier
declaration is in force;
the person is a carriage service provider.
International carriage service providers
(2) For the purposes of this Act, if:
(a) a person supplies, or proposes to supply, a listed carriage
service to the public using:
(i) a line link connecting a place in Australia and a place
outside Australia; or
(ii) a satellite-based facility; and
(b) the carriage service is mentioned in paragraph 16(1)(b) or (c);
the person is a carriage service provider.
Secondary users of exempt network units
(3) For the purposes of this Act, if:
(a) a carrier or an exempt network-user supplies a carriage
service as mentioned in any of the following provisions:
(i) paragraph 45(2)(b);
(ii) paragraph 47(5)(b);
(iii) paragraph 47(6)(b);
(iv) paragraph 47(7)(b);
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Section 87
Telecommunications Act 1997 97
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(v) paragraph 47(8)(b);
(vi) paragraph 48(2)(d);
(vii) paragraph 48(4)(b);
(viii) paragraph 49(2)(b);
(ix) paragraph 50(2)(c);
(x) paragraph 50(5)(c);
(xi) paragraph 50(7)(c); and
(b) the carriage service is supplied to the public;
the carrier or the exempt network-user, as the case may be, is a
carriage service provider.
Declared carriage service providers
(4) The Minister may, by legislative instrument, declare that a
specified person who supplies, or proposes to supply, a specified
listed carriage service is a carriage service provider for the
purposes of this Act. A declaration under this subsection has effect
accordingly.
Note: For specification by class, see subsection 13(3) of the Legislation Act
2003.
Intermediaries
(5) For the purposes of this Act, if:
(a) a person (the first person), for reward, arranges, or proposes
to arrange, for the supply of a listed carriage service by a
carriage service provider to a third person; and
(b) the first person would be a carriage service provider under
subsection (1) or (2) if the person had supplied that carriage
service; and
(c) the commercial relationship between the first person and the
third person is, or is to be, governed (in whole or in part) by
an agreement between the first person and the third person
that deals with one or more matters relating to the continuing
supply of the service (whether or not that supply is, or is to
be, for a readily ascertainable period); and
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Section 88
98 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(d) the conditions (if any) specified in a determination under
subsection (8) are satisfied;
the person is a carriage service provider.
Note: Under section 7, carriage service intermediary is defined to mean a
person who is a carriage service provider under this subsection.
(6) For the purposes of paragraph (5)(a), it does not matter whether the
first person makes arrangements as agent for:
(a) the carriage service provider; or
(b) the third person; or
(c) any other person.
(7) The reference in paragraph (5)(a) to reward does not include a
reference to remuneration received in the capacity of employee.
(8) The Minister may, by legislative instrument, make a determination
for the purposes of paragraph (5)(d).
88 Supply to the public
(1) This section sets out the circumstances in which a carriage service
is taken, for the purposes of subsections 87(1), (2) and (3), to be
supplied to the public.
(2) If:
(a) a carriage service is used for the carriage of communications
between 2 end-users; and
(b) each end-user is outside the immediate circle of the supplier
of the service;
the service is supplied to the public.
(3) If:
(a) a carriage service is used to supply point-to-multipoint
services to end-users; and
(b) at least one end-user is outside the immediate circle of the
supplier of the service;
the service is supplied to the public.
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Section 89
Telecommunications Act 1997 99
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(4) If:
(a) a carriage service is used to supply designated content
services (other than point-to-multipoint services) to
end-users; and
(b) at least one end-user is outside the immediate circle of the
supplier of the service;
the service is supplied to the public.
(5) For the purposes of this section, a designated content service is a
content service of a kind specified in a written determination made
by the Minister.
(6) A determination under subsection (5) is a legislative instrument.
89 Exemption from definition—customers located on the same
premises
(1) If:
(a) the supplier of a carriage service manages a business or other
activity carried on at particular premises; and
(b) that business or activity is the sole or principal use of the
premises; and
(c) all of the customers of the service are physically present on
the premises;
subsections 87(1) and (2) do not apply to the carriage service.
(2) In this section:
premises includes:
(a) land; and
(b) a group of buildings that is located in the same vicinity.
90 Exemption from definition—defence
(1) If the sole or principal use of a carriage service is use by, or on
behalf of, a defence organisation to carry communications
necessary or desirable for defence purposes, subsections 87(1) and
(2) do not apply to the service.
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Section 91
100 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(2) In this section:
defence organisation means:
(a) the Defence Department; or
(b) the Australian Defence Force; or
(c) an organisation of a foreign country, so far as the
organisation:
(i) has functions corresponding to functions of, or of a part
of, the Defence Department or the Australian Defence
Force; and
(ii) is authorised by the Commonwealth to operate or train
in Australia or an external Territory; or
(d) a part of such an organisation or body.
91 Exemption from definition—intelligence operations
Subsections 87(1) and (2) do not apply to a carriage service that is
used wholly or principally:
(a) by the Australian Secret Intelligence Service; or
(b) by the Australian Security Intelligence Organisation.
92 Exemption from definition—transport authorities
(1) Subsections 87(1) and (2) do not apply to a carriage service if the
sole or principal use of the carriage service is use by Airservices
Australia to carry communications necessary or desirable for the
workings of aviation services.
(3) Subsections 87(1) and (2) do not apply to a carriage service if the
sole or principal use of the unit is use by a State or Territory
transport authority to carry communications necessary or desirable
for the workings of the following services:
(a) train services of a kind provided by the authority;
(b) bus or other road services of a kind provided by the
authority;
(c) tram services of a kind provided by the authority.
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Section 93
Telecommunications Act 1997 101
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(4) Subsections 87(1) and (2) do not apply to a carriage service if the
sole or principal use of the carriage service is use by a rail
corporation to carry communications necessary or desirable for the
workings of train services.
(5) In this section:
rail corporation means a body corporate that manages or operates
either or both of the following:
(a) rail transport services;
(b) rail transport infrastructure.
93 Exemption from definition—broadcasting services
(1) If:
(a) the sole or principal use of a carriage service is use to carry
communications that are necessary or desirable for either or
both of the following purposes:
(i) the supply of broadcasting services to the public;
(ii) the supply of a secondary carriage service by means of
the main carrier signal of a primary broadcasting
service; and
(b) those communications are neither:
(i) communications carried between the head end of a cable
transmission system and the equipment used by an
end-user to receive a broadcasting service; nor
(ii) communications carried from a broadcasting transmitter
transmitting a signal of a broadcasting service to its
intended audience;
subsections 87(1) and (2) do not apply to the carriage service.
(2) If the sole or principal use of a carriage service is use for the
purpose of a re-transmission of a kind mentioned in
paragraph 212(1)(a) or (b) of the Broadcasting Services Act 1992,
subsections 87(1) and (2) of this Act do not apply to the service.
(2A) For the purposes of this section, disregard subsection 212(3) of the
Broadcasting Services Act 1992.
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Section 94
102 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(3) In this section:
broadcasting transmitter means a radiocommunications
transmitter used, or for use, to deliver a broadcasting service.
head end of a cable transmission system means a facility that:
(a) is connected to a line link; and
(b) is used, or for use, in connection with the delivery of a
broadcasting service; and
(c) processes signals for delivery by the line link to end-users
having equipment appropriate for receiving the service.
94 Exemption from definition—electricity supply bodies
(1) If the sole or principal use of a carriage service is use by an
electricity supply body to carry communications necessary or
desirable for:
(a) managing the generation, transmission, distribution or supply
of electricity; or
(b) charging for the supply of electricity;
subsection 87(1) does not apply to the service.
(2) In this section:
electricity supply body means an authority, or a body corporate,
that carries on a business, or performs a function, of:
(a) generating, transmitting, distributing or supplying electricity;
or
(b) managing the generation, transmission, distribution or supply
of electricity.
95 Exemption from definition—Ministerial determination
(1) The Minister may, by legislative instrument, determine that a
specified eligible definition provision does not apply in relation to:
(a) a specified carriage service; or
(b) a specified person.
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Section 96
Telecommunications Act 1997 103
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Note: For specification by class, see subsection 13(3) of the Legislation Act
2003.
(2) A determination under this section may be unconditional or subject
to such conditions (if any) as are specified in the determination.
(3) A determination under this section has effect accordingly.
(5) For the purposes of this section, each of the following provisions is
an eligible definition provision:
(a) subsection 87(1);
(b) subsection 87(2);
(c) subsection 87(3);
(d) subsection 87(5).
96 Exemption from certain regulatory provisions—Ministerial
determination
(1) The Minister may, by legislative instrument, determine that a
specified regulatory provision does not apply to a specified person
in the person’s capacity as a designated carriage service provider.
For this purpose, a designated carriage service provider is a
person who is a carriage service provider under subsection 87(4) or
(5).
Note: For specification by class, see subsection 13(3) of the Legislation Act
2003.
(2) A determination under this section may be unconditional or subject
to such conditions (if any) as are specified in the determination.
(3) A determination under this section has effect accordingly.
(5) For the purposes of this section, a regulatory provision is a
provision of:
(a) this Act; or
(b) any other law of the Commonwealth;
that contains a reference to a carriage service provider or to
carriage service providers.
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Division 4 Content service providers
Section 97
104 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Division 4—Content service providers
97 Content service providers
(1) For the purposes of this Act, if a person uses, or proposes to use, a
listed carriage service to supply a content service to the public, the
person is a content service provider.
(2) For the purposes of subsection (1), a content service is supplied to
the public if, and only if, at least one end-user of the content
service is outside the immediate circle of the supplier of the
content service.
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Service providers Part 4
Service provider rules Division 5
Section 98
Telecommunications Act 1997 105
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Division 5—Service provider rules
98 Service provider rules
(1) For the purposes of this Act, the following are the service provider
rules:
(a) the rules set out in Schedule 2;
(b) the rules (if any) set out in service provider determinations in
force under section 99.
(2) In addition to the rules mentioned in subsection (1), the rule set out
in subsection 152BA(2) of the Competition and Consumer Act
2010 is a service provider rule for the purposes of this Act.
Note: Subsection 152BA(2) of the Competition and Consumer Act 2010
provides that a carriage service provider must comply with any
standard access obligations that are applicable to the provider.
(3) In addition to the rules mentioned in subsection (1), the rule set out
in subsection 152BCP(2) of the Competition and Consumer Act
2010 is a service provider rule for the purposes of this Act.
Note: Subsection 152BCP(2) of the Competition and Consumer Act 2010
provides that a carriage service provider must comply with any access
determinations that are applicable to the provider.
(4) In addition to the rules mentioned in subsection (1), the rule set out
in subsection 152BDG(2) of the Competition and Consumer Act
2010 is a service provider rule for the purposes of this Act.
Note: Subsection 152BDG(2) of the Competition and Consumer Act 2010
provides that a carriage service provider must comply with any
binding rules of conduct that are applicable to the provider.
(5) In addition to the rules mentioned in subsection (1), the rule set out
in subsection 152BED(2) of the Competition and Consumer Act
2010 is a service provider rule for the purposes of this Act.
Note: Subsection 152BED(2) of the Competition and Consumer Act 2010
deals with access agreements.
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Division 5 Service provider rules
Section 99
106 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(6) In addition to the rules mentioned in subsection (1), the rule set out
in subsection 152CJD(2) of the Competition and Consumer Act
2010 is a service provider rule for the purposes of this Act.
Note: Subsection 152CJD(2) of the Competition and Consumer Act 2010
deals with rules about the supply of services by NBN corporations.
(7) In addition to the rules mentioned in subsection (1), the rule set out
in subsection 38(2) of the National Broadband Network
Companies Act 2011 is a service provider rule for the purposes of
this Act.
Note: Subsection 38(2) of the National Broadband Network Companies Act
2011 deals with rules about:
(a) the supply of goods and services by NBN corporations; and
(b) the investment of money by NBN corporations; and
(c) the functional separation of NBN corporations; and
(d) the divestment of assets by NBN corporations.
99 Service provider determinations
(1) The ACMA may, by legislative instrument, make a determination
setting out rules that apply to service providers in relation to the
supply of either or both of the following:
(a) specified carriage services;
(b) specified content services.
The determination is called a service provider determination.
(2) A service provider determination has effect only to the extent that:
(a) it is authorised by paragraph 51(v) of the Constitution (either
alone or when read together with paragraph 51(xxxix) of the
Constitution); or
(b) both:
(i) it is authorised by section 122 of the Constitution; and
(ii) it would have been authorised by paragraph 51(v) of the
Constitution (either alone or when read together with
paragraph 51(xxxix) of the Constitution) if section 51 of
the Constitution extended to the Territories.
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Section 100
Telecommunications Act 1997 107
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(3) The ACMA must not make a service provider determination unless
the determination relates to a matter specified in the regulations or
in section 346.
(4) Before making a service provider determination, the ACMA must
consult the ACCC.
(5) A service provider determination may make provision for or in
relation to a particular matter by empowering the ACMA to make
decisions of an administrative character.
100 Exemptions from service provider rules
(1) The Minister may, by legislative instrument, determine that a
specified service provider is exempt from the service provider
rules.
(2) The Minister may, by legislative instrument, determine that a
specified service provider is exempt from a specified service
provider rule.
(3) A determination under this section may be unconditional or subject
to such conditions (if any) as are specified in the determination.
(4) A determination under this section has effect accordingly.
101 Service providers must comply with service provider rules
(1) A service provider must comply with the service provider rules that
apply to the provider.
Note: Service provider rules is defined by section 98.
(2) A person must not:
(a) aid, abet, counsel or procure a contravention of
subsection (1); or
(b) induce, whether by threats or promises or otherwise, a
contravention of subsection (1); or
(c) be in any way, directly or indirectly, knowingly concerned in,
or party to, a contravention of subsection (1); or
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(d) conspire with others to effect a contravention of
subsection (1).
(3) Subsections (1) and (2) are civil penalty provisions.
Note: Part 31 provides for pecuniary penalties for breaches of civil penalty
provisions.
102 Remedial directions—breach of service provider rules
(1) This section applies if a service provider has contravened, or is
contravening, a service provider rule.
(2) The ACMA may give the provider a written direction requiring the
provider to take specified action directed towards ensuring that the
provider does not contravene the rule, or is unlikely to contravene
the rule, in the future.
(3) The following are examples of the kinds of direction that may be
given to a service provider under subsection (2):
(a) a direction that the provider implement effective
administrative systems for monitoring compliance with a
service provider rule;
(b) a direction that the provider implement a system designed to
give the provider’s employees, agents and contractors a
reasonable knowledge and understanding of the requirements
of a service provider rule, in so far as those requirements
affect the employees, agents or contractors concerned.
(4) A service provider must not contravene a direction under
subsection (2).
(5) Subsection (1) does not apply to the rule set out in Part 1 of
Schedule 2 in so far as that rule relates to section 369.
Note: Section 369 deals with Rules of Conduct under section 367.
(6) Subsection (1) does not apply to the rule set out in
subsection 152BA(2) of the Competition and Consumer Act 2010.
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Note: Subsection 152BA(2) of the Competition and Consumer Act 2010
provides that a carriage service provider must comply with any
standard access obligations that are applicable to the provider.
(6A) Subsection (1) does not apply to the rule set out in
subsection 152BCP(2) of the Competition and Consumer Act 2010.
Note: Subsection 152BCP(2) of the Competition and Consumer Act 2010
provides that a carriage service provider must comply with any access
determinations that are applicable to the provider.
(6B) Subsection (1) does not apply to the rule set out in
subsection 152BDG(2) of the Competition and Consumer Act
2010.
Note: Subsection 152BDG(2) of the Competition and Consumer Act 2010
provides that a carriage service provider must comply with any
binding rules of conduct that are applicable to the provider.
(6C) Subsection (1) does not apply to the rule set out in
subsection 152BED(2) of the Competition and Consumer Act
2010.
Note: Subsection 152BED(2) of the Competition and Consumer Act 2010
deals with access agreements.
(6D) Subsection (1) does not apply to the rule set out in
subsection 152CJD(2) of the Competition and Consumer Act 2010.
Note: Subsection 152CJD(2) of the Competition and Consumer Act 2010
deals with rules about the supply of services by NBN corporations.
(6E) Subsection (1) does not apply to the rule set out in subsection 38(2)
of the National Broadband Network Companies Act 2011.
Note: Subsection 38(2) of the National Broadband Network Companies Act
2011 deals with rules about:
(a) the supply of goods and services by NBN corporations; and
(b) the investment of money by NBN corporations; and
(c) the functional separation of NBN corporations; and
(d) the divestment of assets by NBN corporations.
(7) A direction under subsection (2) is not a legislative instrument.
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103 Formal warnings—breach of service provider rules
(1) The ACMA may issue a formal warning if a person contravenes a
service provider rule.
(2) Subsection (1) does not apply to the rule set out in Part 1 of
Schedule 2 in so far as that rule relates to section 369.
Note: Section 369 deals with Rules of Conduct under section 367.
(3) Subsection (1) does not apply to the rule set out in
subsection 152BA(2) of the Competition and Consumer Act 2010.
Note: Subsection 152BA(2) of the Competition and Consumer Act 2010
provides that a carriage service provider must comply with any
standard access obligations that are applicable to the provider.
(3A) Subsection (1) does not apply to the rule set out in
subsection 152BCP(2) of the Competition and Consumer Act 2010.
Note: Subsection 152BCP(2) of the Competition and Consumer Act 2010
provides that a carriage service provider must comply with any access
determinations that are applicable to the provider.
(3B) Subsection (1) does not apply to the rule set out in
subsection 152BDG(2) of the Competition and Consumer Act
2010.
Note: Subsection 152BDG(2) of the Competition and Consumer Act 2010
provides that a carriage service provider must comply with any
binding rules of conduct that are applicable to the provider.
(3C) Subsection (1) does not apply to the rule set out in
subsection 152BED(2) of the Competition and Consumer Act
2010.
Note: Subsection 152BED(2) of the Competition and Consumer Act 2010
deals with access agreements.
(3D) Subsection (1) does not apply to the rule set out in
subsection 152CJD(2) of the Competition and Consumer Act 2010.
Note: Subsection 152CJD(2) of the Competition and Consumer Act 2010
deals with rules about the supply of services by NBN corporations.
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(3E) Subsection (1) does not apply to the rule set out in subsection 38(2)
of the National Broadband Network Companies Act 2011.
Note: Subsection 38(2) of the National Broadband Network Companies Act
2011 deals with rules about:
(a) the supply of goods and services by NBN corporations; and
(b) the investment of money by NBN corporations; and
(c) the functional separation of NBN corporations; and
(d) the divestment of assets by NBN corporations.
(4) The ACCC may issue a formal warning if a person contravenes the
service provider rule set out in subsection 152BA(2) of the
Competition and Consumer Act 2010.
(4A) The ACCC may issue a formal warning if a person contravenes the
service provider rule set out in subsection 152BCP(2) of the
Competition and Consumer Act 2010.
(4B) The ACCC may issue a formal warning if a person contravenes the
service provider rule set out in subsection 152BDG(2) of the
Competition and Consumer Act 2010.
(4C) The ACCC may issue a formal warning if a person contravenes the
service provider rule set out in subsection 152BED(2) of the
Competition and Consumer Act 2010.
(4D) The ACCC may issue a formal warning if a person contravenes the
service provider rule set out in subsection 152CJD(2) of the
Competition and Consumer Act 2010.
(4E) The ACCC may issue a formal warning if a person contravenes the
service provider rule set out in subsection 38(2) of the National
Broadband Network Companies Act 2011.
(5) The ACCC may issue a formal warning if a person contravenes the
service provider rule set out in Part 1 of Schedule 2 in so far as that
rule relates to section 369.
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Part 5 Monitoring of the performance of carriers and carriage service providers
Section 104
112 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Part 5—Monitoring of the performance of carriers
and carriage service providers
104 Simplified outline
The following is a simplified outline of this Part:
• The ACMA is to monitor, and report each year to the Minister
on, significant matters relating to the performance of carriers
and carriage service providers.
• The ACMA may be directed by the Minister to monitor, and
report on, specified matters relating to the performance of
carriers and carriage service providers.
• The ACCC is to monitor, and report each financial year to the
Minister on, breaches by Telstra of an undertaking about
structural separation.
105 Monitoring of performance—annual report
(1) The ACMA must monitor, and report each financial year to the
Minister on, all significant matters relating to the performance of:
(a) carriers; and
(b) carriage service providers;
with particular reference to:
(c) consumer satisfaction; and
(d) consumer benefits; and
(e) quality of service.
(2) In performing its functions under subsection (1), the ACMA must
have regard to such world best practice performance indicators as
the ACMA considers appropriate. This subsection does not, by
implication, limit subsection (1).
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(3) A report under subsection (1) must set out details of the following
matters:
(a) the efficiency with which carriers and carriage service
providers supply:
(i) carriage services; or
(ii) ancillary goods; or
(iii) ancillary services;
(b) the adequacy and quality of the:
(i) carriage services; or
(ii) billing services; or
(iii) billing information services; or
(iv) ancillary goods; or
(v) ancillary services;
supplied by carriers or carriage service providers;
(c) the adequacy of each carrier’s and each carriage service
provider’s compliance with its obligations under Part 6;
(d) the adequacy of each carrier’s and each carriage service
provider’s compliance with:
(i) codes registered under Part 6; and
(ii) standards determined under Part 6;
(e) if there are any obligations under Part 2 of the
Telecommunications (Consumer Protection and Service
Standards) Act 1999—the adequacy of compliance with
those obligations;
(ea) the operation of Parts 2 and 5 of the Telecommunications
(Consumer Protection and Service Standards) Act 1999;
(f) such other matters relating to the performance of carriers or
carriage service providers as the ACMA thinks appropriate.
(4) The ACMA must monitor, and report each financial year to the
Minister on, the appropriateness and adequacy of the approaches
taken by the carriage service providers in carrying out their
obligations, and discharging their liabilities, under Part 5 of the
Telecommunications (Consumer Protection and Service Standards)
Act 1999.
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Section 105A
114 Telecommunications Act 1997
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(5A) The ACMA must monitor, and report each financial year to the
Minister on:
(a) the operation of Part 14 and on the costs of compliance with
the requirements of that Part; and
(b) without limiting paragraph (a), the costs of compliance with
the requirements of Part 5-1A of the Telecommunications
(Interception and Access) Act 1979 (about data retention).
(6) The ACMA must give a report under subsection (1), (4) or (5A) to
the Minister as soon as practicable after the end of the financial
year concerned.
(7) The Minister must cause a copy of a report under subsection (1),
(4) or (5A) to be laid before each House of the Parliament within
15 sitting days of that House after receiving the report.
(8) In this section:
ancillary goods means goods for use in connection with a carriage
service.
ancillary service means a service for use in connection with a
carriage service.
105A Monitoring of performance—additional report
(1) The ACMA must monitor, and report to the Minister on, specified
matters relating to the performance of carriers and carriage service
providers in accordance with any written direction given by the
Minister to the ACMA.
(2) The ACMA must give a report under subsection (1) to the
Minister:
(a) if paragraph (b) does not apply—as soon as practicable after
the end of a period specified in the direction; or
(b) if the direction requires the report to be given before a
specified time—before that time.
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105C Monitoring of breaches by Telstra of an undertaking about
structural separation
Monitoring
(1) The ACCC must monitor, and report each financial year to the
Minister on, breaches by Telstra of an undertaking in force under
section 577A.
Report
(2) The ACCC must give a report under subsection (1) to the Minister
as soon as practicable after the end of the financial year concerned.
(3) The Minister must cause a copy of a report under subsection (1) to
be tabled in each House of the Parliament within 15 sitting days of
that House after receiving the report.
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Part 6 Industry codes and industry standards
Division 1 Simplified outline
Section 106
116 Telecommunications Act 1997
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Part 6—Industry codes and industry standards
Division 1—Simplified outline
106 Simplified outline
The following is a simplified outline of this Part.
• Bodies and associations that represent sections of the
telecommunications industry, the telemarketing industry or
the fax marketing industry may develop industry codes.
• Industry codes may be registered by the ACMA.
• Compliance with an industry code is voluntary unless the
ACMA directs a particular participant in the
telecommunications industry, the telemarketing industry or
the fax marketing industry to comply with the code.
• The ACMA has a reserve power to make an industry standard
if there are no industry codes or if an industry code is
deficient.
• Compliance with industry standards is mandatory.
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Division 2—Interpretation
107 Industry codes
For the purposes of this Part, an industry code is a code developed
under this Part (whether or not in response to a request under this
Part).
108 Industry standards
For the purposes of this Part, an industry standard is a standard
determined under this Part.
108A Electronic messaging service provider
(1) For the purposes of this Part, if a person supplies, or proposes to
supply, an electronic messaging service to the public, the person is
an electronic messaging service provider.
(2) For the purposes of subsection (1), a service is supplied to the
public if, and only if, at least one end-user of the service is outside
the immediate circle of the supplier of the service.
(3) In this section:
electronic message has the same meaning as in the Spam Act 2003.
electronic messaging service means a service that enables any or
all of the following electronic messages to be sent or received:
(a) web-based email;
(b) instant messages;
(c) text messages;
(d) messages of a kind specified in the regulations.
message has the same meaning as in the Spam Act 2003.
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118 Telecommunications Act 1997
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108B Telecommunications industry
For the purposes of this Part, the telecommunications industry
includes an industry that involves carrying on business as an
electronic messaging service provider.
109 Telecommunications activity
For the purposes of this Part, a telecommunications activity is an
activity that consists of:
(a) carrying on business as a carrier; or
(b) carrying on business as a carriage service provider; or
(c) supplying goods or services for use in connection with the
supply of a listed carriage service; or
(d) supplying a content service using a listed carriage service; or
(e) manufacturing or importing customer equipment or customer
cabling; or
(f) installing, maintaining, operating or providing access to:
(i) a telecommunications network; or
(ii) a facility;
used to supply a listed carriage service; or
(g) carrying on business as an electronic messaging service
provider.
109B Telemarketing activity
(1) For the purposes of this Part, a telemarketing activity is an activity
to which subsection (2), (3) or (4) applies.
(2) This subsection applies to an activity that:
(a) is carried on by a person (the first person) under a contract or
arrangement (other than a contract of employment); and
(b) consists of:
(i) using telemarketing calls to market, advertise or
promote goods or services, where the first person is not
the supplier or prospective supplier of the goods or
services; or
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(ii) using telemarketing calls to advertise or promote a
supplier or prospective supplier of goods or services,
where the first person is not the supplier or prospective
supplier of the goods or services; or
(iii) using telemarketing calls to market, advertise or
promote land or interests in land, where the first person
is not the supplier or prospective supplier of the land or
interests in land; or
(iv) using telemarketing calls to advertise or promote a
supplier or prospective supplier of land or interests in
land, where the first person is not the supplier or
prospective supplier of the land or interests in land; or
(v) using telemarketing calls to market, advertise or
promote business opportunities or investment
opportunities, where the first person is not the provider
or prospective provider of the business opportunities or
investment opportunities; or
(vi) using telemarketing calls to advertise or promote a
provider, or prospective provider, of business
opportunities or investment opportunities, where the
first person is not the provider or prospective provider
of the business opportunities or investment
opportunities.
(3) This subsection applies to an activity carried on by a person if the
activity consists of:
(a) using telemarketing calls to market, advertise or promote
goods or services, where the person is the supplier or
prospective supplier of the goods or services; or
(b) using telemarketing calls to advertise or promote a supplier
or prospective supplier of goods or services, where the
person is the supplier or prospective supplier of the goods or
services; or
(c) using telemarketing calls to market, advertise or promote
land or interests in land, where the person is the supplier or
prospective supplier of the land or interests in land; or
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(d) using telemarketing calls to advertise or promote a supplier
or prospective supplier of land or interests in land, where the
person is the supplier or prospective supplier of the land or
interests in land; or
(e) using telemarketing calls to market, advertise or promote
business opportunities or investment opportunities, where the
person is the provider or prospective provider of the business
opportunities or investment opportunities; or
(f) using telemarketing calls to advertise or promote a provider,
or prospective provider, of business opportunities or
investment opportunities, where the person is the provider or
prospective provider of the business opportunities or
investment opportunities.
(4) This subsection applies to an activity carried on by a person if the
activity consists of:
(a) using telemarketing calls to solicit donations; or
(b) using telemarketing calls to conduct opinion polling; or
(c) using telemarketing calls to carry out standard
questionnaire-based research.
(5) An expression (other than telemarketing call) used in this section
and in section 5 of the Do Not Call Register Act 2006 has the same
meaning in this section as it has in that section.
109C Fax marketing activity
(1) For the purposes of this Part, a fax marketing activity is an activity
to which subsection (2), (3) or (4) applies.
(2) This subsection applies to an activity that:
(a) is carried on by a person (the first person) under a contract or
arrangement (other than a contract of employment); and
(b) consists of:
(i) using marketing faxes to market, advertise or promote
goods or services, where the first person is not the
supplier or prospective supplier of the goods or services;
or
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(ii) using marketing faxes to advertise or promote a supplier
or prospective supplier of goods or services, where the
first person is not the supplier or prospective supplier of
the goods or services; or
(iii) using marketing faxes to market, advertise or promote
land or interests in land, where the first person is not the
supplier or prospective supplier of the land or interests
in land; or
(iv) using marketing faxes to advertise or promote a supplier
or prospective supplier of land or interests in land,
where the first person is not the supplier or prospective
supplier of the land or interests in land; or
(v) using marketing faxes to market, advertise or promote
business opportunities or investment opportunities,
where the first person is not the provider or prospective
provider of the business opportunities or investment
opportunities; or
(vi) using marketing faxes to advertise or promote a
provider, or prospective provider, of business
opportunities or investment opportunities, where the
first person is not the provider or prospective provider
of the business opportunities or investment
opportunities.
(3) This subsection applies to an activity carried on by a person if the
activity consists of:
(a) using marketing faxes to market, advertise or promote goods
or services, where the person is the supplier or prospective
supplier of the goods or services; or
(b) using marketing faxes to advertise or promote a supplier or
prospective supplier of goods or services, where the person is
the supplier or prospective supplier of the goods or services;
or
(c) using marketing faxes to market, advertise or promote land or
interests in land, where the person is the supplier or
prospective supplier of the land or interests in land; or
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(d) using marketing faxes to advertise or promote a supplier or
prospective supplier of land or interests in land, where the
person is the supplier or prospective supplier of the land or
interests in land; or
(e) using marketing faxes to market, advertise or promote
business opportunities or investment opportunities, where the
person is the provider or prospective provider of the business
opportunities or investment opportunities; or
(f) using marketing faxes to advertise or promote a provider, or
prospective provider, of business opportunities or investment
opportunities, where the person is the provider or prospective
provider of the business opportunities or investment
opportunities.
(4) This subsection applies to an activity carried on by a person if the
activity consists of:
(a) using marketing faxes to solicit donations; or
(b) using marketing faxes to conduct opinion polling; or
(c) using marketing faxes to carry out standard
questionnaire-based research.
(5) An expression (other than marketing fax) used in this section and
in section 5B of the Do Not Call Register Act 2006 has the same
meaning in this section as it has in that section.
110 Sections of the telecommunications industry
(1) For the purposes of this Part, sections of the telecommunications
industry are to be ascertained in accordance with this section.
(2) For the purposes of this Part, each of the following groups is a
section of the telecommunications industry:
(a) carriers;
(b) service providers;
(c) carriage service providers;
(d) carriage service providers who supply standard telephone
services;
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(e) carriage service providers who supply public mobile
telecommunications services;
(f) content service providers;
(g) persons who perform cabling work (within the meaning of
Division 9 of Part 21);
(h) persons who manufacture or import customer equipment or
customer cabling;
(i) electronic messaging service providers;
(j) persons who install:
(i) optical fibre lines; or
(ii) facilities used, or for use, in or in connection with
optical fibre lines.
(3) The ACMA may, by written instrument, determine that persons
carrying on, or proposing to carry on, one or more specified kinds
of telecommunications activity constitute a section of the
telecommunications industry for the purposes of this Part.
(4) The section must be identified in the determination by a unique
name and/or number.
(5) A determination under subsection (3) has effect accordingly.
(6) Sections of the telecommunications industry determined under
subsection (3):
(a) need not be mutually exclusive; and
(b) may consist of the aggregate of any 2 or more sections of the
telecommunications industry mentioned in subsection (2) or
determined under subsection (3); and
(c) may be subsets of a section of the telecommunications
industry mentioned in subsection (2) or determined under
subsection (3).
(7) Subsection (6) does not, by implication, limit subsection (3).
(8) A copy of a determination under subsection (3) is to be published
in the Gazette.
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110B Sections of the telemarketing industry
(1) For the purposes of this Part, sections of the telemarketing
industry are to be ascertained in accordance with this section.
(2) If no determination is in force under subsection (3), all of the
persons carrying on, or proposing to carry on, telemarketing
activities constitute a single section of the telemarketing industry
for the purposes of this Part.
(3) The ACMA may, by legislative instrument, determine that persons
carrying on, or proposing to carry on, one or more specified kinds
of telemarketing activity constitute a section of the telemarketing
industry for the purposes of this Part.
(4) The section must be identified in the determination by a unique
name and/or number.
(5) A determination under subsection (3) has effect accordingly.
(6) Sections of the telemarketing industry determined under
subsection (3):
(a) need not be mutually exclusive; and
(b) may consist of the aggregate of any 2 or more sections of the
telemarketing industry mentioned in subsection (2) or
determined under subsection (3); and
(c) may be subsets of a section of the telemarketing industry
mentioned in subsection (2) or determined under
subsection (3).
(7) Subsection (6) does not, by implication, limit subsection (3).
110C Sections of the fax marketing industry
(1) For the purposes of this Part, sections of the fax marketing
industry are to be ascertained in accordance with this section.
(2) If no determination is in force under subsection (3), all of the
persons carrying on, or proposing to carry on, fax marketing
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activities constitute a single section of the fax marketing industry
for the purposes of this Part.
(3) The ACMA may, by legislative instrument, determine that persons
carrying on, or proposing to carry on, one or more specified kinds
of fax marketing activity constitute a section of the fax marketing
industry for the purposes of this Part.
(4) The section must be identified in the determination by a unique
name and/or number.
(5) A determination under subsection (3) has effect accordingly.
(6) Sections of the fax marketing industry determined under
subsection (3):
(a) need not be mutually exclusive; and
(b) may consist of the aggregate of any 2 or more sections of the
fax marketing industry mentioned in subsection (2) or
determined under subsection (3); and
(c) may be subsets of a section of the fax marketing industry
mentioned in subsection (2) or determined under
subsection (3).
(7) Subsection (6) does not, by implication, limit subsection (3).
111 Participants in a section of the telecommunications industry
For the purposes of this Part, if a person is a member of a group
that constitutes a section of the telecommunications industry, the
person is a participant in that section of the telecommunications
industry.
111AA Participants in a section of the telemarketing industry
For the purposes of this Part, if a person is a member of a group
that constitutes a section of the telemarketing industry, the person
is a participant in that section of the telemarketing industry.
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111AB Participants in a section of the fax marketing industry
For the purposes of this Part, if a person is a member of a group
that constitutes a section of the fax marketing industry, the person
is a participant in that section of the fax marketing industry.
111B Unsolicited commercial electronic messages
(1) For the purposes of this Part, an unsolicited commercial electronic
message is a commercial electronic message that is sent:
(a) without the consent of the relevant electronic account-holder;
or
(b) to a non-existent electronic address.
(2) An expression used in this section and in the Spam Act 2003 has
the same meaning in this section as it has in that Act.
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Division 3—General principles relating to industry codes
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112 Statement of regulatory policy
(1) The Parliament intends that bodies or associations that the ACMA
is satisfied represent sections of the telecommunications industry
should develop codes (industry codes) that are to apply to
participants in the respective sections of the industry in relation to
the telecommunications activities of the participants.
(1B) The Parliament intends that bodies or associations that the ACMA
is satisfied represent sections of the telemarketing industry should
develop codes (industry codes) that are to apply to participants in
the respective sections of the industry in relation to the
telemarketing activities of the participants.
(1C) The Parliament intends that bodies or associations that the ACMA
is satisfied represent sections of the fax marketing industry should
develop codes (industry codes) that are to apply to participants in
the respective sections of the industry in relation to the fax
marketing activities of the participants.
(2) The Parliament intends that the ACMA, in exercising its powers
under sections 117, 118, 119, 123, 124, 125, 125AA, 125A and
125B, will act in a manner that, in the opinion of the ACMA,
enables public interest considerations to be addressed in a way that
does not impose undue financial and administrative burdens on
participants in sections of the telecommunications industry, the
telemarketing industry or the fax marketing industry.
(3) In determining whether public interest considerations are being
addressed in a way that does not impose undue financial and
administrative burdens on participants in sections of the
telecommunications industry (other than electronic messaging
service providers), the ACMA must have regard to:
(a) the number of customers who would be likely to benefit from
the code or standard concerned; and
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(b) the extent to which those customers are residential or small
business customers; and
(c) the legitimate business interests of participants in sections of
the telecommunications industry; and
(d) the public interest, including the public interest in the
efficient, equitable and ecologically sustainable supply of:
(i) carriage services; and
(ii) goods for use in connection with carriage services; and
(iii) services for use in connection with carriage services;
in a manner that reflects the legitimate expectations of the
Australian community.
(3A) In determining whether public interest considerations are being
addressed in a way that does not impose undue financial and
administrative burdens on participants in the section of the
telecommunications industry that consists of electronic messaging
service providers, the ACMA must have regard to:
(a) the number of end-users who would be likely to benefit from
the code or standard concerned; and
(b) the extent to which those end-users are residential or small
business end-users; and
(c) the legitimate business interests of electronic messaging
service providers.
(3C) In determining whether public interest considerations are being
addressed in a way that does not impose undue financial and
administrative burdens on participants in sections of the
telemarketing industry, the ACMA must have regard to:
(a) the number of persons who would be likely to benefit from
the code or standard concerned; and
(b) the extent to which those persons are householders or small
business operators; and
(c) the legitimate business interests of participants in sections of
the telemarketing industry.
(3D) In determining whether public interest considerations are being
addressed in a way that does not impose undue financial and
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administrative burdens on participants in sections of the fax
marketing industry, the ACMA must have regard to:
(a) the number of persons who would be likely to benefit from
the code or standard concerned; and
(b) the extent to which those persons are householders or small
business operators; and
(c) the legitimate business interests of participants in sections of
the fax marketing industry.
(4) Subsections (3), (3A), (3B), (3C) and (3D) do not, by implication,
limit the matters to which regard may be had.
113 Examples of matters that may be dealt with by industry codes
and industry standards
(1) This section sets out examples of matters that may be dealt with by
industry codes and industry standards.
(2) The applicability of a particular example will depend on which
section of the telecommunications industry, the telemarketing
industry or the fax marketing industry is involved.
(3) The examples are as follows:
(a) telling customers about:
(i) goods or services on offer; and
(ii) the prices of those goods or services; and
(iii) the other terms and conditions on which those goods or
services are offered;
(b) giving customers information about performance indicators
customers can use to evaluate the quality of services;
(c) regular reporting to customers about performance against
those performance indicators;
(d) the internal handling of customer complaints;
(e) reporting about customer complaints;
(f) privacy and, in particular:
(i) the protection of personal information; and
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(ii) the intrusive use of telecommunications by carriers or
service providers; and
(iii) the monitoring or recording of communications; and
(iv) calling number display; and
(v) the provision of directory products and services;
(g) the “churning” of customers;
(h) security deposits given by customers;
(i) debt collection practices;
(j) customer credit practices;
(k) disconnection of customers;
(l) ensuring that customers have an informed basis on which to
enter into agreements of a kind mentioned in
paragraph 22(2)(d) or (e) or (4)(a) (which deal with
boundaries of telecommunications networks);
(m) the quality of standard telephone services;
(n) the accuracy of billing of customers of carriage service
providers in relation to the supply of standard telephone
services;
(o) the timeliness and comprehensibility of bills;
(p) the procedures to be followed in order to generate standard
billing reports to assist in the investigation of customer
complaints about bills;
(pa) the design features of:
(i) optical fibre lines; or
(ii) facilities used, or for use, in or in connection with
optical fibre lines;
(pb) performance requirements to be met by:
(i) optical fibre lines; or
(ii) facilities used, or for use, in or in connection with
optical fibre lines;
(pc) the characteristics of carriage services supplied using optical
fibre lines;
(pd) performance requirements to be met by carriage services
supplied using optical fibre lines;
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(q) procedures to be followed by:
(i) internet service providers; and
(ii) electronic messaging service providers;
in dealing with unsolicited commercial electronic messages
(including procedures relating to the provision or use of
regularly updated software for filtering unsolicited
commercial electronic messages);
(r) giving customers information about the availability, use and
appropriate application of software for filtering unsolicited
commercial electronic messages;
(s) action to be taken to assist in the development and evaluation
of software for filtering unsolicited commercial electronic
messages;
(t) action to be taken in order to minimise or prevent the sending
or delivery of unsolicited commercial electronic messages,
including:
(i) the configuration of servers so as to minimise or prevent
the sending or delivery of unsolicited commercial
electronic messages; and
(ii) the shutdown of open relay servers;
(u) action to be taken to ensure responsible practices in relation
to the use of commercial electronic messages to market,
advertise or promote goods or services to individuals who are
under 18 years of age;
(v) procedures to be followed in relation to the giving of consent
by relevant electronic account-holders (within the meaning of
the Spam Act 2003) to the sending of commercial electronic
messages;
(w) record-keeping practices to be followed in relation to
telemarketing calls made or attempted to be made;
(x) action to be taken to limit the total number of telemarketing
calls attempted to be made, by a particular participant in a
section of the telemarketing industry, during a particular
period, where the recipient answers the attempted call, but
the attempted call does not have any content;
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(y) action to be taken to limit the total number of telemarketing
calls made, or attempted to be made, by a particular
participant in a section of the telemarketing industry, during a
particular period to a particular Australian number;
(z) record-keeping practices to be followed in relation to
marketing faxes sent or attempted to be sent;
(za) action to be taken to limit the total number of marketing
faxes sent or attempted to be sent, by a particular participant
in a section of the fax marketing industry, during a particular
period to a particular Australian number.
114 Industry codes and industry standards may confer powers on
the Telecommunications Industry Ombudsman
(1) If the Telecommunications Industry Ombudsman consents, an
industry code or industry standard may confer functions and
powers on the Telecommunications Industry Ombudsman.
(2) The continuity of a consent under subsection (1) is not affected by:
(a) a change in the occupancy of the position of
Telecommunications Industry Ombudsman; or
(b) a vacancy in the position of Telecommunications Industry
Ombudsman that does not continue for more than 4 months.
115 Industry codes and industry standards not to deal with certain
design features and performance requirements
(1) For the purposes of this Part, an industry code or an industry
standard has no effect:
(a) to the extent (if any) to which compliance with the code or
standard is likely to have the effect (whether direct or
indirect) of requiring customer equipment, customer cabling,
a telecommunications network or a facility:
(i) to have particular design features; or
(ii) to meet particular performance requirements; or
(b) to the extent (if any) to which it deals with the content of
content services.
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(2) The rule in subsection (1) does not apply to an industry code or an
industry standard to the extent (if any) to which compliance with
the code or standard is likely:
(a) to have the indirect effect of requiring customer equipment,
customer cabling, a telecommunications network or a facility
to have particular design features that relate to:
(i) the accuracy of billing of customers of carriage service
providers in relation to the supply of standard telephone
services; or
(ii) the quality of standard telephone services; or
(iii) a matter specified in the regulations; or
(b) to have the direct or indirect effect of requiring customer
equipment, customer cabling, a telecommunications network
or a facility to meet performance requirements that relate to:
(i) the accuracy of billing of customers of carriage service
providers in relation to the supply of standard telephone
services; or
(ii) the quality of standard telephone services; or
(iii) a matter specified in the regulations.
(3) The rule in subsection (1) does not apply to an industry code or an
industry standard to the extent (if any) to which the code or
standard deals with a matter referred to in paragraph 113(3)(f) or
(t).
(4) The rule in subsection (1) does not apply to an industry code made
for the purposes of Division 2AA of Part V of the Copyright Act
1968.
(5) The rule in subsection (1) does not apply to an industry code or an
industry standard to the extent (if any) to which compliance with
the code or standard is likely to have the effect (whether direct or
indirect) of requiring:
(a) optical fibre lines; or
(b) facilities used, or for use, in or in connection with optical
fibre lines;
to:
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(c) have particular design features; or
(d) meet particular performance requirements.
116 Industry codes and industry standards not to deal with matters
dealt with by codes and standards under Part 9 of the
Broadcasting Services Act
For the purposes of this Part, an industry code or an industry
standard that deals with a matter relating to a content service has
no effect to the extent (if any) to which the matter is dealt with by a
code registered, or standard determined, under Part 9 of the
Broadcasting Services Act 1992.
116A Industry codes and standards do not affect Privacy Act 1988
Neither an industry code nor an industry standard derogates from a
requirement made by or under the Privacy Act 1988 or a registered
APP code (as defined in that Act).
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Division 4—Industry codes
117 Registration of industry codes
(1) This section applies if:
(a) the ACMA is satisfied that a body or association represents a
particular section of the telecommunications industry, the
telemarketing industry or the fax marketing industry; and
(b) that body or association develops an industry code that
applies to participants in that section of the industry and deals
with one or more matters relating to the telecommunications
activities, telemarketing activities or fax marketing activities,
as the case may be, of those participants; and
(c) the body or association gives a copy of the code to the
ACMA; and
(d) the ACMA is satisfied that:
(i) in a case where the code deals with matters of
substantial relevance to the community—the code
provides appropriate community safeguards for the
matters covered by the code; or
(ii) in a case where the code does not deal with matters of
substantial relevance to the community—the code deals
with the matters covered by the code in an appropriate
manner; and
(e) the ACMA is satisfied that, before giving the copy of the
code to the ACMA:
(i) the body or association published a draft of the code on
its website, and invited participants in that section of the
industry to make submissions to the body or association
about the draft within a specified period; and
(ii) the body or association gave consideration to any
submissions that were received from participants in that
section of the industry within that period; and
(iii) the body or association complied with the section 119B
publication requirements in relation to any submissions
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that were received from participants in that section of
the industry within that period; and
(f) the ACMA is satisfied that, before giving the copy of the
code to the ACMA:
(i) the body or association published a draft of the code on
its website, and invited members of the public to make
submissions to the body or association about the draft
within a specified period; and
(ii) the body or association gave consideration to any
submissions that were received from members of the
public within that period; and
(iii) the body or association complied with the section 119B
publication requirements in relation to any submissions
that were received from members of the public within
that period; and
(g) the ACMA is satisfied that the ACCC has been consulted
about the development of the code; and
(h) except in a case where:
(i) the code applies to participants in a section of the
telemarketing industry and deals with one or more
matters relating to the telemarketing activities of those
participants; or
(ii) the code applies to participants in a section of the fax
marketing industry and deals with one or more matters
relating to the fax marketing activities of those
participants;
the ACMA is satisfied that the Telecommunications Industry
Ombudsman has been consulted about the development of
the code; and
(i) the ACMA is satisfied that at least one body or association
that represents the interests of consumers has been consulted
about the development of the code; and
(j) in a case where the code deals with a matter set out in
paragraph 113(3)(f)—the ACMA is satisfied that the
Information Commissioner has been consulted by the body or
association about the development of the code before the
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body or association gave the copy of the code to the ACMA;
and
(k) the ACMA has consulted the Information Commissioner
about the code and consequently believes that he or she is
satisfied with the code, if the code deals directly or indirectly
with a matter dealt with by:
(i) the Australian Privacy Principles; or
(ii) other provisions of the Privacy Act 1988 that relate to
those principles; or
(iii) a registered APP code (as defined in that Act) that binds
a participant in that section of the telecommunications
industry, the telemarketing industry or the fax marketing
industry; or
(iv) provisions of that Act that relate to the registered APP
code
(2) The ACMA must register the code by including it in the Register
of industry codes kept under section 136.
(3) A period specified under subparagraph (1)(e)(i) or (1)(f)(i) must
run for at least 30 days.
(4) If:
(a) an industry code (the new code) is registered under this Part;
and
(b) the new code is expressed to replace another industry code;
the other code ceases to be registered under this Part when the new
code is registered.
Note: An industry code also ceases to be registered when it is removed from
the Register of industry codes under section 122A.
118 ACMA may request codes
(1) If the ACMA is satisfied that a body or association represents a
particular section of the telecommunications industry, the
telemarketing industry or the fax marketing industry, the ACMA
may, by written notice given to the body or association, request the
body or association to:
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(a) develop an industry code that applies to participants in that
section of the industry and deals with one or more specified
matters relating to the telecommunications activities,
telemarketing activities or fax marketing activities, as the
case may be, of those participants; and
(b) give the ACMA a copy of the code within the period
specified in the notice.
Note: The ACMA may request the body or association to develop the
industry code to replace an earlier industry code that the Information
Commissioner (exercising functions under the Privacy Act 1988) has
advised the ACMA is inconsistent with the Australian Privacy
Principles or a relevant registered APP code (as defined in that Act).
(2) The period specified in a notice under subsection (1) must run for
at least 120 days.
(3) The ACMA must not make a request under subsection (1) in
relation to a particular section of the telecommunications industry,
the telemarketing industry or the fax marketing industry unless the
ACMA is satisfied that:
(a) the development of the code is necessary or convenient in
order to:
(i) provide appropriate community safeguards; or
(ii) otherwise deal with the performance or conduct of
participants in that section of the industry; and
(b) in the absence of the request, it is unlikely that an industry
code would be developed within a reasonable period.
(4) The ACMA must not make a request under subsection (1) in
relation to a code if:
(a) the code would deal with a matter referred to in
paragraph 113(3)(f) (which relates to privacy); and
(b) compliance with the code would be likely to have the effect
(whether direct or indirect) of requiring customer equipment,
customer cabling, a telecommunications network or a
facility:
(i) to have particular design features; or
(ii) to meet particular performance requirements.
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However, this rule does not apply if the ACMA is satisfied that the
benefits to the community from the operation of the code would
outweigh the costs of compliance with the code.
(4AA) The rule in subsection (4) does not apply to a code to the extent (if
any) to which compliance with the code is likely to have the effect
(whether direct or indirect) of requiring:
(a) optical fibre lines; or
(b) facilities used, or for use, in or in connection with optical
fibre lines;
to:
(c) have particular design features; or
(d) meet particular performance requirements.
(4A) The ACMA must consult the Information Commissioner before
making a request under subsection (1) for the development of an
industry code that could reasonably be expected to deal directly or
indirectly with a matter dealt with by:
(a) the Australian Privacy Principles; or
(b) other provisions of the Privacy Act 1988 relating to those
principles; or
(c) a registered APP code (as defined in that Act) that binds one
or more participants in the section of the telecommunications
industry, the telemarketing industry or the fax marketing
industry to which the request relates; or
(d) provisions of that Act that relate to the registered APP code.
(5) The ACMA may vary a notice under subsection (1) by extending
the period specified in the notice.
(6) Subsection (5) does not, by implication, limit the application of
subsection 33(3) of the Acts Interpretation Act 1901.
(7) A notice under subsection (1) may specify indicative targets for
achieving progress in the development of the code (for example, a
target of 60 days to develop a preliminary draft of the code).
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119 Publication of notice where no body or association represents a
section of the telecommunications industry, the
telemarketing industry or the fax marketing industry
(1) If the ACMA is satisfied that a particular section of the
telecommunications industry, the telemarketing industry or the fax
marketing industry is not represented by a body or association, the
ACMA may publish a notice in the Gazette:
(a) stating that, if such a body or association were to come into
existence within a specified period, the ACMA would be
likely to give a notice to that body or association under
subsection 118(1); and
(b) setting out the matter or matters relating to
telecommunications activities, telemarketing activities or fax
marketing activities, as the case may be, that would be likely
to be specified in the subsection 118(1) notice.
(2) The period specified in a notice under subsection (1) must run for
at least 60 days.
119A Variation of industry codes
Scope
(1) This section applies if:
(a) an industry code is registered under this Part; and
(b) the code:
(i) applies to participants in a particular section of the
telecommunications industry, the telemarketing industry
or the fax marketing industry; and
(ii) deals with one or more matters relating to the
telecommunications activities, telemarketing activities
or fax marketing activities, as the case may be, of those
participants; and
(c) the body or association that developed the code gives a draft
variation of the code to the ACMA; and
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(d) disregarding any provisions of the code that are not affected
(whether directly or indirectly) by the variation, the ACMA
is satisfied that:
(i) in a case where the code (as proposed to be varied)
deals with matters of substantial relevance to the
community—the code (as proposed to be varied)
provides appropriate community safeguards for the
matters covered by the code (as proposed to be varied);
or
(ii) in a case where the code (as proposed to be varied) does
not deal with matters of substantial relevance to the
community—the code (as proposed to be varied) deals
with the matters covered by the code (as proposed to be
varied) in an appropriate manner; and
(e) except in a case where the draft variation is of a minor
nature—the ACMA is satisfied that, before giving the copy
of the draft variation to the ACMA:
(i) the body or association published the draft variation on
its website and invited participants in that section of the
industry to make submissions to the body or association
about the draft variation within a specified period; and
(ii) the body or association gave consideration to any
submissions that were received from participants in that
section of the industry within that period; and
(iii) the body or association complied with the section 119B
publication requirements in relation to any submissions
that were received from participants in that section of
the industry within that period; and
(f) except in a case where the draft variation is of a minor
nature—the ACMA is satisfied that, before giving the copy
of the draft variation to the ACMA:
(i) the body or association published the draft variation on
its website and invited members of the public to make
submissions to the body or association about the draft
variation within a specified period; and
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(ii) the body or association gave consideration to any
submissions that were received from members of the
public within that period; and
(iii) the body or association complied with the section 119B
publication requirements in relation to any submissions
that were received from members of the public within
that period; and
(g) the ACMA is satisfied that the ACCC has been consulted
about the development of the draft variation; and
(h) except in a case where:
(i) the code (as proposed to be varied) applies to
participants in a section of the telemarketing industry
and deals with one or more matters relating to the
telemarketing activities of those participants; or
(ii) the code (as proposed to be varied) applies to
participants in a section of the fax marketing industry
and deals with one or more matters relating to the fax
marketing activities of those participants;
the ACMA is satisfied that the Telecommunications Industry
Ombudsman has been consulted about the development of
the draft variation; and
(i) the ACMA is satisfied that at least one body or association
that represents the interests of consumers has been consulted
about the development of the draft variation; and
(j) in a case where the draft variation deals with a matter set out
in paragraph 113(3)(f)—the ACMA is satisfied that the
Information Commissioner has been consulted by the body or
association about the development of the draft variation
before the body or association gave the copy of the draft
variation to the ACMA; and
(k) the ACMA has consulted the Information Commissioner
about the draft variation and consequently believes that he or
she is satisfied with the draft variation, if the draft variation
deals directly or indirectly with a matter dealt with by:
(i) the Australian Privacy Principles; or
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(ii) other provisions of that Act that relate to those
Principles; or
(iii) an approved privacy code (as defined in that Act) that
binds a participant in that section of the
telecommunications industry, the telemarketing industry
or the fax marketing industry; or
(iv) provisions of that Act that relate to the approved privacy
code.
Approval of variation
(2) The ACMA must, by written notice given to the body or
association, approve the draft variation.
(3) If the ACMA approves the draft variation, the code is varied
accordingly.
Period for making submissions
(4) A period specified under subparagraph (1)(e)(i) or (1)(f)(i) must
run for at least 30 days.
119B Publication requirements for submissions
(1) This section sets out the publication requirements that apply to
submissions that:
(a) are about a particular draft; and
(b) were received by a body or association as mentioned in:
(i) subparagraph 117(1)(e)(iii); or
(ii) subparagraph 117(1)(f)(iii); or
(iii) subparagraph 119A(1)(e)(iii); or
(iv) subparagraph 119A(1)(f)(iii).
Publication of submissions
(2) The body or association must publish those submissions on its
website.
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(3) Subsection (2) has effect subject to subsections (4) and (6).
Confidential or commercially sensitive material
(4) If:
(a) a submission made by a person consists wholly or partly of
material that is claimed by the person to be confidential or
commercially sensitive; and
(b) the person has requested the body or association not to
publish the material; and
(c) the body or association is satisfied that the material is
confidential or commercially sensitive;
then:
(d) if the submission consists wholly of the material—the body
or association is not required to publish the submission on its
website; or
(e) if:
(i) the submission consists partly of the material; and
(ii) it is practicable for the body or association to remove
the material from the submission;
the body or association may remove the material from the
submission before publishing the submission on its website;
or
(f) if:
(i) the submission consists partly of the material; and
(ii) it is not practicable for the body or association to
remove the material from the submission;
the body or association is not required to publish the
submission on its website.
(5) If, under subsection (4), the body or association removes material
from a submission before publishing the submission on its website,
the body or association must publish on its website a statement to
the effect that confidential or commercially sensitive material in
the submission has not been published.
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Section 119B
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Defamatory material
(6) If the body or association considers that a submission consists
wholly or partly of material that is, or is likely to be, defamatory:
(a) if the submission consists wholly of the material—the body
or association is not required to publish the submission on its
website; or
(b) if:
(i) the submission consists partly of the material; and
(ii) it is practicable for the body or association to remove
the material from the submission;
the body or association may remove the material from the
submission before publishing the submission on its website;
or
(c) if:
(i) the submission consists partly of the material; and
(ii) it is not practicable for the body or association to
remove the material from the submission;
the body or association is not required to publish the
submission on its website.
(7) If, under subsection (6), the body or association removes material
from a submission before publishing the submission on its website,
the body or association must publish on its website a statement to
the effect that material in the submission has not been published on
the grounds that the material is, or is likely to be, defamatory.
Statistical statement
(8) The body or association must publish on its website a statement
that sets out:
(a) the total number of those submissions; and
(b) if a number of those submissions have not been published, or
have been published in a modified form, because of
subsection (4) or (6)—that number.
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Section 120
146 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
120 Replacement of industry codes
Changes to an industry code may be achieved by replacing the
code instead of varying the code. However, this does not prevent
the ACMA from removing under section 122A an industry code, or
a provision of an industry code, from the Register of industry codes
kept under this Part.
121 Directions about compliance with industry codes
(1) If:
(a) a person is a participant in a particular section of the
telecommunications industry, the telemarketing industry or
the fax marketing industry; and
(b) the ACMA is satisfied that the person has contravened or is
contravening an industry code that:
(i) is registered under this Part; and
(ii) applies to participants in that section of the industry;
the ACMA may, by written notice given to the person, direct the
person to comply with the industry code.
(1A) If the ACMA is satisfied that the contravention of the industry
code relates directly or indirectly to a matter dealt with by the
Australian Privacy Principles or by a registered APP code (within
the meaning of the Privacy Act 1988), the ACMA must consult the
Information Commissioner before giving the direction.
(1B) If:
(a) at a time when an industry code (the original code) was
registered under this Part, a direction could have been given
to a person under subsection (1) in respect of the original
code; and
(b) the original code has been replaced by another code that is
registered under this Part; and
(c) the person could have been given a direction under
subsection (1) in respect of the replacement code, if the
conduct concerned had occurred after the replacement code
was registered;
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Section 122
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then, during the period when the replacement code is registered
under this Part, the person may be given a direction under
subsection (1) in respect of the replacement code.
(2) A person must comply with a direction under subsection (1).
(3) A person must not:
(a) aid, abet, counsel or procure a contravention of
subsection (2); or
(b) induce, whether by threats or promises or otherwise, a
contravention of subsection (2); or
(c) be in any way, directly or indirectly, knowingly concerned in,
or party to, a contravention of subsection (2); or
(d) conspire with others to effect a contravention of
subsection (2).
(4) Subsections (2) and (3) are civil penalty provisions.
Note: Part 31 provides for pecuniary penalties for breaches of civil penalty
provisions.
(5) A direction under subsection (1) is not a legislative instrument.
122 Formal warnings—breach of industry codes
(1) This section applies to a person who is a participant in a particular
section of the telecommunications industry, the telemarketing
industry or the fax marketing industry.
(2) The ACMA may issue a formal warning if the person contravenes
an industry code registered under this Part.
(3) If the ACMA is satisfied that the contravention of the industry
code relates directly or indirectly to a matter dealt with by the
Australian Privacy Principles or by a registered APP code (within
the meaning of the Privacy Act 1988), the ACMA must consult the
Information Commissioner before issuing the warning.
(4) If:
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Section 122A
148 Telecommunications Act 1997
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(a) at a time when an industry code (the original code) was
registered under this Part, a formal warning could have been
given to a person under subsection (2) in respect of the
original code; and
(b) the original code has been replaced by another code that is
registered under this Part; and
(c) the person could have been given a formal warning under
subsection (2) in respect of the replacement code, if the
conduct concerned had occurred after the replacement code
was registered;
then, during the period when the replacement code is registered
under this Part, the person may be given a formal warning under
subsection (2) in respect of the replacement code.
122A De-registering industry codes and provisions of industry codes
(1) The ACMA may remove from the Register of industry codes kept
under section 136:
(a) an industry code; or
(b) a provision of an industry code.
(2) An industry code ceases to be registered when it is removed from
the Register.
(3) If the ACMA removes a provision of an industry code from the
Register, this Part has effect in relation to things occurring after the
removal of the provision as if the code registered under this Part
did not include the provision removed.
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Section 123
Telecommunications Act 1997 149
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Division 5—Industry standards
123 ACMA may determine an industry standard if a request for an
industry code is not complied with
(1) This section applies if:
(a) the ACMA has made a request under subsection 118(1) in
relation to the development of a code that is to:
(i) apply to participants in a particular section of the
telecommunications industry, the telemarketing industry
or the fax marketing industry; and
(ii) deal with one or more matters relating to the
telecommunications activities, telemarketing activities
or fax marketing activities, as the case may be, of those
participants; and
(b) any of the following conditions is satisfied:
(i) the request is not complied with;
(ii) if indicative targets for achieving progress in the
development of the code were specified in the notice of
request—any of those indicative targets were not met;
(iii) the request is complied with, but the ACMA
subsequently refuses to register the code; and
(c) the ACMA is satisfied that it is necessary or convenient for
the ACMA to determine a standard in order to:
(i) provide appropriate community safeguards in relation to
that matter or those matters; or
(ii) otherwise regulate adequately participants in that
section of the industry in relation to that matter or those
matters.
(2) The ACMA may, by legislative instrument, determine a standard
that applies to participants in that section of the industry and deals
with that matter or those matters. A standard under this subsection
is to be known as an industry standard.
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Section 124
150 Telecommunications Act 1997
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(3) Before determining an industry standard under this section, the
ACMA must consult the body or association to whom the request
mentioned in paragraph (1)(a) was made.
124 ACMA may determine industry standard where no industry
body or association formed
(1) This section applies if:
(a) the ACMA is satisfied that a particular section of the
telecommunications industry, the telemarketing industry or
the fax marketing industry is not represented by a body or
association; and
(b) the ACMA has published a notice under subsection 119(1)
relating to that section of the industry; and
(c) that notice:
(i) states that, if such a body or association were to come
into existence within a particular period, the ACMA
would be likely to give a notice to that body or
association under subsection 118(1); and
(ii) sets out one or more matters relating to the
telecommunications activities, telemarketing activities
or fax marketing activities, as the case may be, of the
participants in that section of the industry; and
(d) no such body or association comes into existence within that
period; and
(e) the ACMA is satisfied that it is necessary or convenient for
the ACMA to determine a standard in order to:
(i) provide appropriate community safeguards in relation to
that matter or those matters; or
(ii) otherwise regulate adequately participants in that
section of the industry in relation to that matter or those
matters.
(2) The ACMA may, by legislative instrument, determine a standard
that applies to participants in that section of the industry and deals
with that matter or those matters. A standard under this subsection
is to be known as an industry standard.
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125 ACMA may determine industry standards where industry codes
fail
(1) This section applies if:
(a) an industry code that:
(i) applies to participants in a particular section of the
telecommunications industry, the telemarketing industry
or the fax marketing industry; and
(ii) deals with one or more matters relating to the
telecommunications activities, telemarketing activities
or fax marketing activities, as the case may be, of those
participants;
has been registered under this Part for at least 180 days; and
(b) the ACMA is satisfied that the code is deficient (as defined
by subsection (7)); and
(c) the ACMA has given the body or association that developed
the code a written notice requesting that deficiencies in the
code be addressed within a specified period; and
(d) that period ends and the ACMA is satisfied that it is
necessary or convenient for the ACMA to determine a
standard that applies to participants in that section of the
industry and deals with that matter or those matters.
(2) The period specified in a notice under paragraph (1)(c) must run
for at least 30 days.
(3) The ACMA may, by legislative instrument, determine a standard
that applies to participants in that section of the industry and deals
with that matter or those matters. A standard under this subsection
is to be known as an industry standard.
(4) If the ACMA is satisfied that a body or association represents that
section of the industry, the ACMA must consult the body or
association before determining an industry standard under
subsection (3).
(6) The industry code ceases to be registered under this Part on the day
on which the industry standard comes into force.
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Section 125AA
152 Telecommunications Act 1997
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(7) For the purposes of this section, an industry code that applies to
participants in a particular section of the telecommunications
industry, the telemarketing industry or the fax marketing industry
and deals with one or more matters relating to the
telecommunications activities, telemarketing activities or fax
marketing activities, as the case may be, of those participants is
deficient if, and only if:
(a) the code is not operating to provide appropriate community
safeguards in relation to that matter or those matters; or
(b) the code is not otherwise operating to regulate adequately
participants in that section of the industry in relation to that
matter or those matters.
125AA ACMA must determine an industry standard if directed by
the Minister
(1) The ACMA may, by legislative instrument, determine a standard
that:
(a) applies to participants in a particular section of the
telecommunications industry; and
(b) deals with one or more matters relating to the
telecommunications activities of those participants.
Note 1: For examples of matters that may be dealt with by industry standards,
see section 113.
Note 2: For variation and revocation, see subsection 33(3) of the Acts
Interpretation Act 1901.
(2) A standard under subsection (1) is to be known as an industry
standard.
(3) If the ACMA is satisfied that a body or association represents that
section of the telecommunications industry, the ACMA must
consult the body or association before determining a standard
under subsection (1).
(4) The Minister may, in writing, direct the ACMA to:
(a) determine a standard under subsection (1) that:
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(i) applies to participants in a specified section of the
telecommunications industry; and
(ii) deals with one or more specified matters relating to the
telecommunications activities of those participants; and
(b) do so within a specified period.
(5) The ACMA must not determine a standard under subsection (1)
unless it does so in accordance with a direction under
subsection (4).
125A ACMA must determine certain industry standards relating to
the telemarketing industry
(1) Before the commencement of Part 2 of the Do Not Call Register
Act 2006, the ACMA must, by legislative instrument, determine a
standard that:
(a) applies to participants in each section of the telemarketing
industry; and
(b) deals with the following matters relating to the telemarketing
activities of those participants:
(i) restricting the hours and/or days during which
telemarketing calls may be made or attempted to be
made;
(ii) requiring that a telemarketing call must contain
specified information about the relevant participant;
(iii) requiring that, if a person other than the relevant
participant caused a telemarketing call to be made, the
call must contain specified information about the person
who caused the call to be made;
(iv) requiring the relevant participant to terminate a
telemarketing call if a specified event happens;
(v) requiring the relevant participant to ensure that calling
line identification is enabled in respect of the making of
a telemarketing call; and
(c) is expressed to commence at the same time as the
commencement of Part 2 of the Do Not Call Register Act
2006.
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Section 125B
154 Telecommunications Act 1997
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(2) A standard under subsection (1) is to be known as an industry
standard.
(3) If the ACMA is satisfied that a body or association represents a
section of the telemarketing industry, the ACMA must consult the
body or association before determining a standard under
subsection (1).
(4) The ACMA must ensure that a standard is in force under
subsection (1) at all times after the commencement of Part 2 of the
Do Not Call Register Act 2006.
125B ACMA must determine certain industry standards relating to
the fax marketing industry
(1) The ACMA may, by legislative instrument, determine a standard
that:
(a) applies to participants in each section of the fax marketing
industry; and
(b) deals with the following matters relating to the fax marketing
activities of those participants:
(i) restricting the hours and/or days during which
marketing faxes may be sent, or attempted to be sent, to
an Australian number;
(ii) requiring that a marketing fax sent to an Australian
number must contain specified information about the
person who authorised the sending of the fax;
(iii) restricting the total number of marketing faxes sent, or
attempted to be sent, by the relevant participant during a
particular period to a particular Australian number;
(iv) requiring that, if a marketing fax sent to an Australian
number is authorised by a particular person (the
authorising person), the fax must contain information
about how the recipient of the fax may send a message
to the effect that the recipient does not want to receive
any marketing faxes authorised by the authorising
person.
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Section 126
Telecommunications Act 1997 155
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Note: For variation and revocation, see subsection 33(3) of the Acts
Interpretation Act 1901.
(2) A standard under subsection (1) is to be known as an industry
standard.
(3) If the ACMA is satisfied that a body or association represents a
section of the fax marketing industry, the ACMA must consult the
body or association before determining a standard under
subsection (1).
(4) The ACMA must ensure that a standard is in force under
subsection (1) at all times after the commencement of this section.
(5) For the purposes of this section, authorise, when used in relation to
a marketing fax, has the same meaning as in the Do Not Call
Register Act 2006.
126 Industry standards not to be determined for certain privacy
matters
The ACMA must not determine an industry standard if:
(a) the standard would deal with a matter referred to in
paragraph 113(3)(f) (which relates to privacy); and
(b) compliance with the standard would be likely to have the
effect (whether direct or indirect) of requiring customer
equipment, customer cabling, a telecommunications network
or a facility:
(i) to have particular design features; or
(ii) to meet particular performance requirements.
However, this rule does not apply if the ACMA is satisfied that the
benefits to the community from the operation of the standard
would outweigh the costs of compliance with the standard.
128 Compliance with industry standards
(1) If an industry standard that applies to participants in a particular
section of the telecommunications industry, the telemarketing
industry or the fax marketing industry is registered under this Part,
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Section 129
156 Telecommunications Act 1997
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each participant in that section of the industry must comply with
the standard.
(2) A person must not:
(a) aid, abet, counsel or procure a contravention of
subsection (1); or
(b) induce, whether by threats or promises or otherwise, a
contravention of subsection (1); or
(c) be in any way, directly or indirectly, knowingly concerned in,
or party to, a contravention of subsection (1); or
(d) conspire with others to effect a contravention of
subsection (1).
(3) Subsections (1) and (2) are civil penalty provisions.
Note: Part 31 provides for pecuniary penalties for breaches of civil penalty
provisions.
129 Formal warnings—breach of industry standards
(1) This section applies to a person who is a participant in a particular
section of the telecommunications industry, the telemarketing
industry or the fax marketing industry.
(2) The ACMA may issue a formal warning if the person contravenes
an industry standard registered under this Part.
130 Variation of industry standards
The ACMA may, by legislative instrument, vary an industry
standard that applies to participants in a particular section of the
telecommunications industry, the telemarketing industry or the fax
marketing industry if it is satisfied that it is necessary or
convenient to do so to:
(a) provide appropriate community safeguards in relation to one
or more matters relating to the telecommunications activities,
telemarketing activities or fax marketing activities, as the
case may be, of those participants; and
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Section 131
Telecommunications Act 1997 157
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(b) otherwise regulate adequately those participants in relation to
one or more matters relating to the telecommunications
activities, telemarketing activities or fax marketing activities,
as the case may be, of those participants.
Note: The ACMA may be satisfied that it is necessary or convenient to vary
an industry standard that is inconsistent with the Australian Privacy
Principles or a registered APP code (as defined in the Privacy Act
1988), following advice given by the Information Commissioner in
the exercise of his or her functions under that Act.
131 Revocation of industry standards
(1) The ACMA may, by legislative instrument, revoke an industry
standard.
(2) If:
(a) an industry code is registered under this Part; and
(b) the code is expressed to replace an industry standard;
the industry standard is revoked when the code is registered.
132 Public consultation on industry standards
(1) Before determining or varying an industry standard, the ACMA
must:
(a) cause to be published in a newspaper circulating in each State
a notice:
(i) stating that the ACMA has prepared a draft of the
industry standard or variation; and
(ii) stating that free copies of the draft will be made
available to members of the public during normal office
hours throughout the period specified in the notice; and
(iii) specifying the place or places where the copies will be
available; and
(iv) inviting interested persons to give written comments
about the draft to the ACMA within the period specified
under subparagraph (ii); and
(b) make copies of the draft available in accordance with the
notice.
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Section 133
158 Telecommunications Act 1997
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(2) The period specified under subparagraph (1)(a)(ii) must run for at
least 30 days after the publication of the notice.
(3) Subsection (1) does not apply to a variation if the variation is of a
minor nature.
(4) If interested persons have given comments in accordance with a
notice under subsection (1), the ACMA must have due regard to
those comments in determining or varying the industry standard, as
the case may be.
(5) In this section:
State includes the Northern Territory and the Australian Capital
Territory.
133 Consultation with ACCC and the Telecommunications Industry
Ombudsman
(1) Before determining or varying an industry standard, the ACMA
must consult the ACCC.
(1A) Before determining or varying an industry standard (other than an
industry standard under section 125A or 125B), the ACMA must
consult the Telecommunications Industry Ombudsman.
(2) Before revoking an industry standard under subsection 131(1), the
ACMA must consult the ACCC and the Telecommunications
Industry Ombudsman.
134 Consultation with Information Commissioner
(1) This section applies to an industry standard that deals with a matter
set out in paragraph 113(3)(f), including a matter dealt with by:
(a) the Australian Privacy Principles; or
(b) other provisions of the Privacy Act 1988 relating to those
principles; or
(c) a registered APP code (as defined in that Act); or
(d) provisions of that Act that relate to a registered APP code.
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Section 135
Telecommunications Act 1997 159
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(2) Before determining or varying the industry standard, the ACMA
must consult the Information Commissioner.
(3) Before revoking the industry standard under subsection 131(1), the
ACMA must consult the Information Commissioner.
135 Consultation with consumer body
(1) Before determining or varying an industry standard, the ACMA
must consult at least one body or association that represents the
interests of consumers.
(2) Before revoking an industry standard under subsection 131(1), the
ACMA must consult at least one body or association that
represents the interests of consumers.
135A Consultation with the States and Territories
Before determining or varying an industry standard under
section 125A or 125B, the ACMA must consult:
(a) each State; and
(b) the Australian Capital Territory; and
(c) the Northern Territory.
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Section 136
160 Telecommunications Act 1997
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Division 6—Register of industry codes and industry
standards
136 ACMA to maintain Register of industry codes and industry
standards
(1) The ACMA is to maintain a Register in which the ACMA
includes:
(a) all industry codes required to be registered under this Part, as
those codes are in force from time to time; and
(b) all industry standards; and
(c) all requests made under section 118; and
(d) all notices under section 119; and
(e) all directions given under section 121.
(1A) Paragraph (1)(a) does not require the ACMA to continue to include
in the Register an industry code, or a provision of an industry code,
removed from the Register under section 122A.
(2) The Register may be maintained by electronic means.
(3) A person may, on payment of the charge (if any) fixed by a
determination under section 60 of the Australian Communications
and Media Authority Act 2005:
(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 ACMA 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 ACMA may provide the relevant information:
(a) on a data processing device; or
(b) by way of electronic transmission.
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Division 6A
Section 136A
Telecommunications Act 1997 161
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Division 6A—Reimbursement of costs of development or
variation of consumer-related industry codes
136A Application for eligibility for reimbursement of costs of
development or variation of consumer-related industry
code
(1) If a body or association proposes to develop or vary an industry
code that:
(a) applies to participants in a particular section of the
telecommunications industry; and
(b) deals with one or more matters relating to the
telecommunications activities of those participants; and
(c) deals wholly or mainly with one or more matters relating to
the relationship between carriage service providers and their
retail customers;
the body or association may apply to the ACMA for a declaration
that the body or association is eligible for reimbursement of
refundable costs incurred by it in developing the code or varying
the code, as the case may be.
Note: For refundable cost, see section 136E.
Form of application etc.
(2) An application must be:
(a) in writing; and
(b) in accordance with the form approved in writing by the
ACMA; and
(c) accompanied by:
(i) an estimate of the total of the refundable costs likely to
be incurred by the body or association in developing the
code or varying the code, as the case may be; and
(ii) a statement breaking down that estimate into categories
of refundable costs.
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Section 136B
162 Telecommunications Act 1997
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Further information
(3) The ACMA may, within 20 business days after an application is
made, request the applicant to give the ACMA, within the period
specified in the request, further information about the application.
(4) The ACMA may refuse to consider the application until the
applicant gives the ACMA the information.
Definition
(5) In this section:
business day means a day on which the ACMA is open for
business in the Australian Capital Territory and in Victoria.
136B Declaration of eligibility for reimbursement of costs of
development or variation of consumer-related industry
code
Development of code
(1) If a body or association makes an application under
subsection 136A(1) for a declaration in relation to the development
of a code, the ACMA must make the declaration if it is satisfied
that:
(a) the body or association represents the section of the
telecommunications industry referred to in
paragraph 136A(1)(a); and
(b) the code will deal wholly or mainly with one or more matters
relating to the relationship between carriage service providers
and their retail customers; and
(c) the process for developing the code, as outlined in the
application, is likely to ensure that the interests of those retail
customers are adequately represented in relation to the
development of the code; and
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Section 136B
Telecommunications Act 1997 163
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(d) the total of the refundable costs likely to be incurred by the
body or association in developing the code, as set out in the
estimate that accompanied the application, is reasonable.
(2) If the ACMA is not satisfied as to the matters set out in
subsection (1), the ACMA must, by written notice given to the
applicant, refuse to make the declaration.
Variation of code
(2A) If a body or association makes an application under
subsection 136A(1) for a declaration in relation to the variation of
a code, the ACMA must make the declaration if it is satisfied that:
(a) the body or association represents the section of the
telecommunications industry referred to in
paragraph 136A(1)(a); and
(b) the code is registered under this Part; and
(c) the code deals wholly or mainly with one or more matters
relating to the relationship between carriage service providers
and their retail customers; and
(d) the process for varying the code, as outlined in the
application, is likely to ensure that the interests of those retail
customers are adequately represented in relation to the
variation of the code; and
(e) the total of the refundable costs likely to be incurred by the
body or association in varying the code, as set out in the
estimate that accompanied the application, is reasonable.
(2B) If the ACMA is not satisfied as to the matters set out in
subsection (2A), the ACMA must, by written notice given to the
applicant, refuse to make the declaration.
General provisions
(3) A declaration under this section is irrevocable, and remains in
force for 2 years.
(4) A declaration under this section is not a legislative instrument.
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Division 6A Reimbursement of costs of development or variation of consumer-related
industry codes
Section 136C
164 Telecommunications Act 1997
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136C Reimbursement of costs of developing or varying
consumer-related industry code
Reimbursement of costs—development of code
(1) If:
(a) a section 136B declaration was made in relation to the
development of an industry code by a body or association;
and
(b) when the section 136B declaration was in force, the body or
association gave a copy of the code to the ACMA under
section 117; and
(c) the ACMA is satisfied that the code deals wholly or mainly
with one or more matters relating to the relationship between
carriage service providers and their retail customers; and
(d) the ACMA is satisfied that the process for the development
of the code ensured that the interests of those retail customers
were adequately represented in relation to the development of
the code; and
(e) the copy of the code was accompanied by:
(i) a written statement itemising one or more costs incurred
by the body or association in developing the code; and
(ii) a written claim for reimbursement of those costs; and
(iii) a written declaration by an approved auditor that he or
she is of the opinion that the subparagraph (i) statement
complies with the approved auditing requirements; and
(iv) a written statement describing the process for the
development of the code; and
(f) the ACMA is satisfied that each of the costs itemised in the
subparagraph (e)(i) statement:
(i) is a refundable cost incurred by the body or association
in developing the code; and
(ii) was incurred when the section 136B declaration was in
force;
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Section 136C
Telecommunications Act 1997 165
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the ACMA must, by written notice given to the body or
association, determine that the body or association is entitled to be
paid a specified amount.
Note: For refundable cost, see section 136E.
(2) The specified amount must be equal to whichever is the lesser of
the following:
(a) the total of the costs itemised in the subparagraph (1)(e)(i)
statement;
(b) the estimate that accompanied the application for the
section 136B declaration.
(3) The ACMA, on behalf of the Commonwealth, must pay the
specified amount to the body or association within 30 days after
the day on which the body or association was notified under
subsection (1) of its entitlement to be paid that amount.
Reimbursement of costs—variation of code
(3A) If:
(a) a section 136B declaration was made in relation to the
variation of an industry code by a body or association; and
(b) when the section 136B declaration was in force, the body or
association gave a copy of the variation to the ACMA under
section 119A; and
(c) the ACMA is satisfied that the code deals wholly or mainly
with one or more matters relating to the relationship between
carriage service providers and their retail customers; and
(d) the ACMA is satisfied that the process for the variation of the
code ensured that the interests of those retail customers were
adequately represented in relation to the variation of the
code; and
(e) the copy of the variation was accompanied by:
(i) a written statement itemising one or more costs incurred
by the body or association in varying the code; and
(ii) a written claim for reimbursement of those costs; and
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Section 136C
166 Telecommunications Act 1997
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(iii) a written declaration by an approved auditor that he or
she is of the opinion that the subparagraph (i) statement
complies with the approved auditing requirements; and
(iv) a written statement describing the process for the
variation of the code; and
(f) the ACMA is satisfied that each of the costs itemised in the
subparagraph (e)(i) statement:
(i) is a refundable cost incurred by the body or association
in varying the code; and
(ii) was incurred when the section 136B declaration was in
force;
the ACMA must, by written notice given to the body or
association, determine that the body or association is entitled to be
paid a specified amount.
Note: For refundable cost, see section 136E.
(3B) The specified amount must be equal to whichever is the lesser of
the following:
(a) the total of the costs itemised in the subparagraph (3A)(e)(i)
statement;
(b) the estimate that accompanied the application for the
section 136B declaration.
(3C) The ACMA, on behalf of the Commonwealth, must pay the
specified amount to the body or association within 30 days after
the day on which the body or association was notified under
subsection (3A) of its entitlement to be paid that amount.
Appropriation
(4) The Consolidated Revenue Fund is appropriated for payments
under this section.
Approved auditors and approved auditing requirements
(5) The ACMA may make a written determination specifying:
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Division 6A
Section 136D
Telecommunications Act 1997 167
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(a) the persons who are to be approved auditors for the purposes
of this section; and
(b) the requirements that are to be approved auditing
requirements for the purposes of this section.
Note: For specification by class, see subsection 13(3) of the Legislation Act
2003.
(6) A determination under subsection (5) has effect accordingly.
(7) A determination under subsection (5) is a legislative instrument.
136D Costs—transactions between persons not at arm’s length
If:
(a) a body or association has incurred a cost in connection with a
transaction where the parties to the transaction are not
dealing with each other at arm’s length in relation to the
transaction; and
(b) apart from this section, the cost is counted for the purposes of
the application of this Division to the body or association;
and
(c) the amount of the cost is greater than is reasonable;
the amount of the cost is taken, for the purposes of the application
of this Division in relation to the body or association, to be the
amount that would have been reasonable if the parties were dealing
with each other at arm’s length.
136E Refundable cost
(1) For the purposes of this Division, a refundable cost incurred by a
body or association in developing or varying a code is a cost
incurred by the body or association in developing the code or
varying the code, as the case may be, other than a cost specified in
a written determination made by the ACMA under this subsection.
Note: For specification by class, see subsection 13(3) of the Legislation Act
2003.
(2) A determination under subsection (1) is a legislative instrument.
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Division 7 Miscellaneous
Section 137
168 Telecommunications Act 1997
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Division 7—Miscellaneous
137 Protection from civil proceedings
Civil proceedings do not lie against:
(a) an internet service provider; or
(b) an electronic messaging service provider;
in respect of anything done by the provider in connection with:
(c) an industry code registered under this Part; or
(d) an industry standard;
in so far as the code or standard deals with the procedures referred
to in paragraph 113(3)(q).
138 Implied freedom of political communication
This Part does not apply to the extent (if any) that it would infringe
any constitutional doctrine of implied freedom of political
communication.
139 Agreements for the carrying on of telemarketing activities or fax
marketing activities must require compliance with this
Part
(1) A person (the first person) must not enter into a contract or
arrangement, or arrive at an understanding, with another person, if:
(a) under the contract, arrangement or understanding, the other
person undertakes to carry on one or more telemarketing
activities or fax marketing activities; and
(b) the contract, arrangement or understanding does not contain
an express provision to the effect that the other person will
comply with this Part in relation to the telemarketing
activities or fax marketing activities covered by the contract,
arrangement or understanding.
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Section 139
Telecommunications Act 1997 169
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Ancillary contraventions
(2) A person must not:
(a) aid, abet, counsel or procure a contravention of
subsection (1); or
(b) induce, whether by threats or promises or otherwise, a
contravention of subsection (1); or
(c) be in any way, directly or indirectly, knowingly concerned in,
or party to, a contravention of subsection (1); or
(d) conspire with others to effect a contravention of
subsection (1).
Civil penalty provisions
(3) Subsections (1) and (2) are civil penalty provisions.
Note: Part 31 provides for pecuniary penalties for breaches of civil penalty
provisions.
Validity of contracts, arrangements or understandings
(4) A failure to comply with subsection (1) does not affect the validity
of any contract, arrangement or understanding.
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Part 7 Layer 2 bitstream services
Section 140
170 Telecommunications Act 1997
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Part 7—Layer 2 bitstream services
140 Simplified outline
The following is a simplified outline of this Part:
• A local access line that belongs to a telecommunications
network (other than the national broadband network) must not
be used to supply a fixed-line carriage service if:
(a) the network is used, or is proposed to be used, to
supply a superfast carriage service wholly or
principally to residential or small business
customers, or prospective residential or small
business customers, in Australia; and
(b) no Layer 2 bitstream service is available for supply
to those customers or prospective customers using
the network; and
(c) the network came into existence, or was upgraded,
on or after 1 January 2011.
141 Supply of Layer 2 bitstream services
Scope
(1) This section applies to a local access line if:
(a) the local access line is:
(i) part of the infrastructure of a telecommunications
network in Australia; or
(ii) used, or for use, in or in connection with a
telecommunications network in Australia; and
(b) the network is not the national broadband network; and
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(c) the network is used, or is proposed to be used, to supply a
superfast carriage service wholly or principally to residential
or small business customers, or prospective residential or
small business customers, in Australia; and
(d) no Layer 2 bitstream service is available for supply to those
customers or prospective customers using the network; and
(e) either:
(i) the network came into existence on or after 1 January
2011; or
(ii) the network was altered or upgraded on or after
1 January 2011 and, as a result of the alteration or
upgrade, the network became capable of being used to
supply a superfast carriage service to residential or
small business customers, or prospective residential or
small business customers, in Australia.
Note 1: See also section 141B (deemed networks).
Note 2: For exemptions, see section 141A.
Sole owner of local access line
(2) If there is only one owner of the local access line, the owner of the
local access line must not:
(a) use the local access line, either alone or jointly with one or
more other persons, to supply a fixed-line carriage service; or
(b) allow or permit another person to use the local access line to
supply a fixed-line carriage service.
Multiple owners of local access line
(3) If there are 2 or more owners of the local access line, an owner of
the local access line must not:
(a) use the local access line, either alone or jointly with one or
more other persons, to supply a fixed-line carriage service; or
(b) either alone or together with one or more other owners, allow
or permit another person to use the local access line to supply
a fixed-line carriage service.
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Section 141
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Offence
(4) A person commits an offence if:
(a) the person is subject to a requirement under subsection (2) or
(3); and
(b) the person engages in conduct; and
(c) the person’s conduct breaches the requirement.
Penalty: 20,000 penalty units.
Definitions
(10) In this section:
alter, in relation to a telecommunications network, has a meaning
affected by section 141E.
fixed-line carriage service means:
(a) a carriage service that is supplied using a line to premises
occupied or used by an end-user; or
(b) a service that facilitates the supply of a carriage service
covered by paragraph (a).
local access line has the meaning given by section 141D.
national broadband network has the same meaning as in the
National Broadband Network Companies Act 2011.
small business customer has the meaning given by section 141G.
superfast carriage service means a carriage service, where:
(a) the carriage service enables end-users to download
communications; and
(b) the download transmission speed of the carriage service is
normally more than 25 megabits per second; and
(c) the carriage service is supplied using a line to premises
occupied or used by an end-user.
upgrade, in relation to a telecommunications network, has a
meaning affected by section 141F.
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Section 141A
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141A Exemptions
(1) The Minister may, by written instrument, exempt a specified
network from section 141.
Note: For specification by class, see the Acts Interpretation Act 1901.
(2) The Minister may, by written instrument, exempt a specified local
access line from section 141.
Note: For specification by class, see the Acts Interpretation Act 1901.
(3) The Minister may, by written instrument, exempt a specified owner
from subsections 141(2) and (3).
Note: For specification by class, see the Acts Interpretation Act 1901.
(4) An instrument under subsection (1), (2) or (3) may be:
(a) unconditional; or
(b) subject to such conditions (if any) as are specified in the
instrument.
(5) Before making an instrument under subsection (1), (2) or (3), the
Minister must consult:
(a) the ACCC; and
(b) the ACMA.
(6) An instrument under subsection (1), (2) or (3) is not a legislative
instrument.
(7) In this section:
local access line has the meaning given by section 141D.
141B Deemed networks
(1) For the purposes of this Part, if:
(a) a telecommunications network is altered or upgraded on or
after 1 January 2011; and
(b) as a result of the alteration or upgrade, a part of the network
became capable of being used to supply a superfast carriage
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174 Telecommunications Act 1997
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service to residential or small business customers, or
prospective residential or small business customers, in
Australia;
then:
(c) that part is taken to be a network in its own right; and
(d) the network referred to in paragraph (c) is taken to have come
into existence on or after 1 January 2011.
(2) For the purposes of this Part, if:
(a) a telecommunications network is extended on or after
1 January 2011; and
(b) the extended part of the network is capable of being used to
supply a superfast carriage service to residential or small
business customers, or prospective residential or small
business customers, in Australia;
then:
(c) the extended part is taken to be a network in its own right;
and
(d) the network referred to in paragraph (c) is taken to have come
into existence on or after 1 January 2011.
(3) If:
(a) a part of the infrastructure of a telecommunications network
is situated in a particular area that is being or was developed
as a particular stage of a real estate development project
(within the ordinary meaning of that expression); and
(b) the network is extended to another area that is being, or is to
be, developed as another stage of the project;
subsection (2) does not apply to the extension.
(4) If:
(a) a telecommunications network was in existence immediately
before 1 January 2011; and
(b) the network is extended on or after 1 January 2011; and
(c) no point on the infrastructure of the extension is located more
than:
(i) 1 kilometre; or
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Section 141C
Telecommunications Act 1997 175
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(ii) if a longer distance is specified in the regulations—that
longer distance;
from a point on the infrastructure of the network as the
network stood immediately before 1 January 2011;
subsection (2) does not apply to the extension.
(5) The regulations may provide that subsection (2) does not apply to a
specified extension of a telecommunications network.
Note: For specification by class, see the Acts Interpretation Act 1901.
141C Certain installations and connections are not taken to be an
extension, alteration or upgrade
For the purposes of this Part, if:
(a) a line is or was installed for the purposes of connecting
particular premises to a telecommunications network; and
(b) the installation of the line enables or enabled the occupier of
the premises to become a customer in relation to carriage
services supplied using the network; and
(c) the premises are in close proximity to a line that forms part of
the infrastructure of the network; and
(d) the network is capable of being used to supply a superfast
carriage service; and
(e) the network came into existence before 1 January 2011;
neither the installation of the line mentioned in paragraph (a), nor
the connection of the premises, is taken to be an extension,
alteration or upgrade of the network.
141D Local access line
(1) For the purposes of this Part, a local access line is a line that is part
of the infrastructure of a local access network.
(2) However, a line does not form part of a local access line to the
extent that the line is on the customer side of the boundary of a
telecommunications network.
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Section 141E
176 Telecommunications Act 1997
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(3) For the purposes of this section, the boundary of a
telecommunications network is to be determined in the same
manner in which it is determined under section 22 for the purposes
of sections 20, 21 and 30.
(4) For the purposes of this section, local access network has the
meaning generally accepted within the telecommunications
industry.
141E Alteration
For the purposes of this Part, an alteration of a
telecommunications network does not include an extension of the
network.
141F Upgrade of telecommunications network
For the purposes of this Part, an upgrade of a telecommunications
network does not include an extension of the network.
141G Small business customer
For the purposes of this Part, small business customer means:
(a) a customer who is a small business employer (within the
meaning of the Fair Work Act 2009); or
(b) a customer who:
(i) carries on a business; and
(ii) does not have any employees.
For the purposes of paragraph (a) of this section, it is to be
assumed that each reference in section 23 of the Fair Work Act
2009 to a national system employer were a reference to an
employer (within the ordinary meaning of that expression).
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Introduction Division 1
Section 142
Telecommunications Act 1997 177
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Part 8—Superfast fixed-line networks
Division 1—Introduction
142 Simplified outline
The following is a simplified outline of this Part:
• A controller of a telecommunications network (other than the
national broadband network) must not use a local access line
to supply an eligible service to a person other than a carrier or
a service provider, if:
(a) the local access line is part of the infrastructure of
the network; and
(b) the network is used, or is proposed to be used, to
supply a superfast carriage service wholly or
principally to residential or small business
customers, or prospective residential or small
business customers, in Australia; and
(c) the network came into existence, or was upgraded,
on or after 1 January 2011.
142A Definitions
In this Part:
alter, in relation to a telecommunications network, has a meaning
affected by section 159.
electricity supply body has the same meaning as in the National
Broadband Network Companies Act 2011.
eligible service has the same meaning as in section 152AL of the
Competition and Consumer Act 2010.
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Division 1 Introduction
Section 142A
178 Telecommunications Act 1997
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gas supply body has the same meaning as in the National
Broadband Network Companies Act 2011.
local access line has the meaning given by section 158.
national broadband network has the same meaning as in the
National Broadband Network Companies Act 2011.
rail corporation has the same meaning as in the National
Broadband Network Companies Act 2011.
sewerage services body has the same meaning as in the National
Broadband Network Companies Act 2011.
small business customer means:
(a) a customer who is a small business employer (within the
meaning of the Fair Work Act 2009); or
(b) a customer who:
(i) carries on a business; and
(ii) does not have any employees.
For the purposes of paragraph (a) of this definition, it is to be
assumed that each reference in section 23 of the Fair Work Act
2009 to a national system employer were a reference to an
employer (within the ordinary meaning of that expression).
State or Territory road authority has the same meaning as in the
National Broadband Network Companies Act 2011.
storm water drainage services has the same meaning as in the
National Broadband Network Companies Act 2011.
storm water drainage services body has the same meaning as in
the National Broadband Network Companies Act 2011.
superfast carriage service means a carriage service, where:
(a) the carriage service enables end-users to download
communications; and
(b) the download transmission speed of the carriage service is
normally more than 25 megabits per second; and
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(c) the carriage service is supplied using a line to premises
occupied or used by an end-user.
upgrade, in relation to a telecommunications network, has a
meaning affected by section 160.
water supply body has the same meaning as in the National
Broadband Network Companies Act 2011.
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Division 2 Supply of eligible services to be on wholesale basis
Section 143
180 Telecommunications Act 1997
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Division 2—Supply of eligible services to be on wholesale
basis
143 Supply of eligible services to be on wholesale basis
Scope
(1) This section applies to a local access line if:
(a) the local access line is part of the infrastructure of a
telecommunications network in Australia; and
(b) the network is used, or proposed to be used, to supply a
superfast carriage service wholly or principally to residential
or small business customers, or prospective residential or
small business customers, in Australia; and
(c) the network is not the national broadband network; and
(d) either:
(i) the network came into existence on or after 1 January
2011; or
(ii) the network was altered or upgraded on or after
1 January 2011 and, as a result of the alteration or
upgrade, the network became capable of being used to
supply a superfast carriage service to residential or
small business customers, or prospective residential or
small business customers, in Australia.
Note 1: See also section 156 (deemed networks).
Note 2: For exemptions, see sections 144 to 151.
Person in position to exercise control of network
(2) A person who is in a position to exercise control of the network, or
a person who is an associate of such a person, must not use the
local access line, either alone or jointly with one or more other
persons, to supply an eligible service unless the service is supplied
to:
(a) a carrier; or
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Section 144
Telecommunications Act 1997 181
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(b) a service provider.
Note 1: For when a person is in a position to exercise control of a network, see
section 155.
Note 2: For control of a company, see section 154.
Offence
(3) A person commits an offence if:
(a) the person is subject to a requirement under subsection (2);
and
(b) the person engages in conduct; and
(c) the person’s conduct breaches the requirement.
Penalty: 20,000 penalty units.
144 Exemptions—Ministerial instrument
(1) The Minister may, by written instrument, exempt a specified
network from section 143.
Note: For specification by class, see the Acts Interpretation Act 1901.
(2) The Minister may, by written instrument, exempt a specified local
access line from section 143.
Note: For specification by class, see the Acts Interpretation Act 1901.
(3) The Minister may, by written instrument, exempt a specified
person from subsection 143(2).
Note: For specification by class, see the Acts Interpretation Act 1901.
(4) An instrument under subsection (1), (2) or (3) may be:
(a) unconditional; or
(b) subject to such conditions (if any) as are specified in the
instrument.
(5) Before making an instrument under subsection (1), (2) or (3), the
Minister must consult:
(a) the ACCC; and
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Section 145
182 Telecommunications Act 1997
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(b) the ACMA.
(6) An instrument under subsection (1), (2) or (3) is not a legislative
instrument.
145 Exemption—transport authorities
(1) Subsection 143(2) does not apply if:
(a) both:
(i) the eligible service is a carriage service; and
(ii) the sole use of the carriage service is use by Airservices
Australia to carry communications necessary or
desirable for the workings of aviation services; or
(b) the eligible service is a service that facilitates the supply of a
carriage service covered by paragraph (a) of this subsection.
(2) Paragraph (1)(a) does not apply to a carriage service supplied to
Airservices Australia unless the carriage service is supplied on the
basis that Airservices Australia must not re-supply the carriage
service.
(3) Subsection 143(2) does not apply if:
(a) the eligible service is a carriage service, and the sole use of
the carriage service is use by a State or Territory transport
authority to carry communications necessary or desirable for
the workings of the following services:
(i) train services of a kind provided by the authority;
(ii) bus or other road services of a kind provided by the
authority;
(iii) tram services of a kind provided by the authority; or
(b) the eligible service is a service that facilitates the supply of a
carriage service covered by paragraph (a) of this subsection.
(4) Paragraph (3)(a) does not apply to a carriage service supplied to a
State or Territory transport authority unless the carriage service is
supplied on the basis that the State or Territory transport authority
must not re-supply the carriage service.
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(5) Subsection 143(2) does not apply if:
(a) both:
(i) the eligible service is a carriage service; and
(ii) the sole use of the carriage service is use by a rail
corporation to carry communications necessary or
desirable for the workings of train services; or
(b) the eligible service is a service that facilitates the supply of a
carriage service covered by paragraph (a) of this subsection.
(6) Paragraph (5)(a) does not apply to a carriage service supplied to a
rail corporation unless the carriage service is supplied on the basis
that the rail corporation must not re-supply the carriage service.
146 Exemption—electricity supply bodies
(1) Subsection 143(2) does not apply if:
(a) the eligible service is a carriage service, and the sole use of
the carriage service is use by an electricity supply body to
carry communications necessary or desirable for:
(i) managing the generation, transmission, distribution or
supply of electricity; or
(ii) charging for the supply of electricity; or
(b) the eligible service is a service that facilitates the supply of a
carriage service covered by paragraph (a) of this section.
(2) Paragraph (1)(a) does not apply to a carriage service supplied to an
electricity supply body unless the carriage service is supplied on
the basis that the electricity supply body must not re-supply the
carriage service.
147 Exemption—gas supply bodies
(1) Subsection 143(2) does not apply if:
(a) the eligible service is a carriage service, and the sole use of
the carriage service is use by a gas supply body to carry
communications necessary or desirable for:
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(i) managing the transmission or distribution of natural gas
in a pipeline; or
(ii) charging for the supply of natural gas transmitted or
distributed in a pipeline; or
(b) the eligible service is a service that facilitates the supply of a
carriage service covered by paragraph (a) of this section.
(2) Paragraph (1)(a) does not apply to a carriage service supplied to a
gas supply body unless the carriage service is supplied on the basis
that the gas supply body must not re-supply the carriage service.
148 Exemption—water supply bodies
(1) Subsection 143(2) does not apply if:
(a) the eligible service is a carriage service, and the sole use of
the carriage service is use by a water supply body to carry
communications necessary or desirable for:
(i) managing the distribution of water in a pipeline; or
(ii) charging for the supply of water distributed in a
pipeline; or
(b) the eligible service is a service that facilitates the supply of a
carriage service covered by paragraph (a) of this section.
(2) Paragraph (1)(a) does not apply to a carriage service supplied to a
water supply body unless the carriage service is supplied on the
basis that the water supply body must not re-supply the carriage
service.
149 Exemption—sewerage services bodies
(1) Subsection 143(2) does not apply if:
(a) the eligible service is a carriage service, and the sole use of
the carriage service is use by a sewerage services body to
carry communications necessary or desirable for:
(i) managing the supply of sewerage services; or
(ii) charging for the supply of sewerage services; or
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(b) the eligible service is a service that facilitates the supply of a
carriage service covered by paragraph (a) of this section.
(2) Paragraph (1)(a) does not apply to a carriage service supplied to a
sewerage services body unless the carriage service is supplied on
the basis that the sewerage services body must not re-supply the
carriage service.
150 Exemption—storm water drainage services bodies
(1) Subsection 143(2) does not apply if:
(a) the eligible service is a carriage service, and the sole use of
the carriage service is use by a storm water drainage services
body to carry communications necessary or desirable for:
(i) managing the supply of storm water drainage services;
or
(ii) charging for the supply of storm water drainage
services; or
(b) the eligible service is a service that facilitates the supply of a
carriage service covered by paragraph (a) of this section.
(2) Paragraph (1)(a) does not apply to a carriage service supplied to a
storm water drainage services body unless the carriage service is
supplied on the basis that the storm water drainage services body
must not re-supply the carriage service.
151 Exemption—State or Territory road authorities
(1) Subsection 143(2) does not apply if:
(a) the eligible service is a carriage service, and the sole use of
the carriage service is use by a State or Territory road
authority to carry communications necessary or desirable for
the management or control of road traffic; or
(b) the eligible service is a service that facilitates the supply of a
carriage service covered by paragraph (a) of this section.
(2) Paragraph (1)(a) does not apply to a carriage service supplied to a
State or Territory road authority unless the carriage service is
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supplied on the basis that the State or Territory road authority must
not re-supply the carriage service.
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Division 3—Other provisions
152 Associate
(1) For the purposes of this Part, an associate of a person (the
controller) in relation to control of:
(a) a telecommunications network; or
(b) a company;
is:
(c) a partner of the controller; or
(d) if the controller or another person who is an associate of the
controller under another paragraph receives benefits or is
capable of benefiting under a trust—the trustee of the trust;
or
(e) a person (whether a company or not) who:
(i) acts, or is accustomed to act; or
(ii) under a contract or an arrangement or understanding
(whether formal or informal) is intended or expected to
act;
in accordance with the directions, instructions or wishes of,
or in concert with:
(iii) the controller; or
(iv) the controller and another person who is an associate of
the controller under another paragraph; or
(f) another company if:
(i) the other company is a related body corporate of the
controller for the purposes of the Corporations Act
2001; or
(ii) the controller, or the controller and another person who
is an associate of the controller under another
paragraph, is or are in a position to exercise control of
the other company.
(2) However, persons are not associates of each other if the ACCC is
satisfied that:
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(a) they do not act together in any relevant dealings relating to
the network or company; and
(b) neither of them is in a position to exert influence over the
business dealings of the other in relation to the network or
company.
153 Control
In this Part, control includes control as a result of, or by means of,
trusts, agreements, arrangements, understandings and practices,
whether or not having legal or equitable force and whether or not
based on legal or equitable rights.
154 Control of a company
(1) For the purposes of this Part, the question of whether a person is in
a position to exercise control of a company is to be determined
under Schedule 1 to the Broadcasting Services Act 1992.
(2) However, in determining that question:
(a) the definition of associate in subsection 6(1) of the
Broadcasting Services Act 1992 does not apply; and
(b) the definition of associate in section 152 of this Act applies
instead.
155 When a person is in a position to exercise control of a network
(1) For the purposes of this Part, a person (the controller) is in a
position to exercise control of a telecommunications network if:
(a) the controller legally or beneficially owns the network
(whether alone or together with one or more other persons);
or
(b) the controller is in a position, either alone or together with an
associate of the controller and whether directly or indirectly:
(i) to exercise control of the operation of all or part of the
network; or
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(ii) to exercise control of the selection of the kinds of
services that are supplied using the network; or
(iii) to exercise control of the supply of services using the
network; or
(c) a company other than the controller legally or beneficially
owns the network (whether alone or together with one or
more other persons), and:
(i) the controller is in a position, either alone or together
with an associate of the controller, to exercise control of
the company; or
(ii) the controller, either alone or together with an associate
of the controller, is in a position to veto any action taken
by the board of directors of the company; or
(iii) the controller, either alone or together with an associate
of the controller, is in a position to appoint or secure the
appointment of, or veto the appointment of, at least half
of the board of directors of the company; or
(iv) the controller, either alone or together with an associate
of the controller, is in a position to exercise, in any other
manner, whether directly or indirectly, direction or
restraint over any substantial issue affecting the
management or affairs of the company; or
(v) the company or more than 50% of its directors act, or
are accustomed to act, in accordance with the directions,
instructions or wishes of, or in concert with, the
controller, the controller and an associate of the
controller acting together, or the directors of the
controller; or
(vi) the company or more than 50% of its directors, under a
contract or an arrangement or understanding (whether
formal or informal), are intended or expected to act in
accordance with the directions, instructions or wishes
of, or in concert with, the controller, the controller and
an associate of the controller acting together, or the
directors of the controller.
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(2) An employee is not, except through an association with another
person, to be regarded as being in a position to exercise control of a
network under subsection (1) purely because of being an employee.
(3) More than one person may be in a position to exercise control of a
network.
156 Deemed networks
(1) For the purposes of this Part, if:
(a) a telecommunications network is altered or upgraded on or
after 1 January 2011; and
(b) as a result of the alteration or upgrade, a part of the network
became capable of being used to supply a superfast carriage
service to residential or small business customers, or
prospective residential or small business customers, in
Australia;
then:
(c) that part is taken to be a network in its own right; and
(d) the network referred to in paragraph (c) is taken to have come
into existence on or after 1 January 2011.
(2) For the purposes of this Part, if:
(a) a telecommunications network is extended on or after
1 January 2011; and
(b) the extended part of the network is capable of being used to
supply a superfast carriage service to residential or small
business customers, or prospective residential or small
business customers, in Australia;
then:
(c) the extended part is taken to be a network in its own right;
and
(d) the network referred to in paragraph (c) is taken to have come
into existence on or after 1 January 2011.
(3) If:
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(a) a part of the infrastructure of a telecommunications network
is situated in a particular area that is being or was developed
as a particular stage of a real estate development project
(within the ordinary meaning of that expression); and
(b) the network is extended to another area that is being, or is to
be, developed as another stage of the project;
subsection (2) does not apply to the extension.
(4) If:
(a) a telecommunications network was in existence immediately
before 1 January 2011; and
(b) the network is extended on or after 1 January 2011; and
(c) no point on the infrastructure of the extension is located more
than:
(i) 1 kilometre; or
(ii) if a longer distance is specified in the regulations—that
longer distance;
from a point on the infrastructure of the network as the
network stood immediately before 1 January 2011;
subsection (2) does not apply to the extension.
(5) The regulations may provide that subsection (2) does not apply to a
specified extension of a telecommunications network.
Note: For specification by class, see the Acts Interpretation Act 1901.
157 Certain installations and connections are not taken to be an
extension, alteration or upgrade
For the purposes of this Part, if:
(a) a line is or was installed for the purposes of connecting
particular premises to a telecommunications network; and
(b) the installation of the line enables or enabled the occupier of
the premises to become a customer in relation to carriage
services supplied using the network; and
(c) the premises are in close proximity to a line that forms part of
the infrastructure of the network; and
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(d) the network is capable of being used to supply a superfast
carriage service; and
(e) the network came into existence before 1 January 2011;
neither the installation of the line mentioned in paragraph (a), nor
the connection of the premises, is taken to be an extension,
alteration or upgrade of the network.
158 Local access line
(1) For the purposes of this Part, a local access line is a line that is part
of the infrastructure of a local access network.
(2) However, a line does not form part of a local access line to the
extent that the line is on the customer side of the boundary of a
telecommunications network.
(3) For the purposes of this section, the boundary of a
telecommunications network is to be determined in the same
manner in which it is determined under section 22 for the purposes
of sections 20, 21 and 30.
(4) For the purposes of this section, local access network has the
meaning generally accepted within the telecommunications
industry.
159 Alteration
For the purposes of this Part, an alteration of a
telecommunications network does not include an extension of the
network.
160 Upgrade of telecommunications network
For the purposes of this Part, an upgrade of a telecommunications
network does not include an extension of the network.
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Introduction Division 1
Section 270
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Division 1—Introduction
270 Simplified outline
The following is a simplified outline of this Part:
• Carriers, carriage service providers, number-database
operators, emergency call persons and their respective
associates must protect the confidentiality of information that
relates to:
(a) the contents of communications that have been, or
are being, carried by carriers or carriage service
providers; and
(b) carriage services supplied by carriers and carriage
service providers; and
(c) the affairs or personal particulars of other persons.
• The disclosure or use of protected information is authorised in
limited circumstances (for example, disclosure or use for
purposes relating to the enforcement of the criminal law).
• An authorised recipient of protected information may only
disclose or use the information for an authorised purpose.
• Certain record-keeping requirements are imposed in relation
to authorised disclosures or uses of information.
271 Eligible person
For the purposes of this Part, an eligible person is a person who is:
(a) a carrier; or
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(b) a carriage service provider; or
(c) an employee of a carrier; or
(d) an employee of a carriage service provider; or
(e) a telecommunications contractor; or
(f) an employee of a telecommunications contractor.
272 Number-database operator and eligible number-database
person
(1) For the purposes of this Part, a number-database operator is a
person in respect of which a determination is in force under
subsection 472(1).
(2) For the purposes of this Part, an eligible number-database person
is a person who is:
(a) a number-database operator; or
(b) an employee of a number-database operator; or
(c) a number-database contractor; or
(d) an employee of a number-database contractor.
273 Information
A reference in this Part to information includes a reference to
opinion.
274 Telecommunications contractor
A reference in this Part to a telecommunications contractor is a
reference to a person who performs services for or on behalf of:
(a) a carrier; or
(b) a carriage service provider;
but does not include a reference to a person who performs such
services in the capacity of an employee of the carrier or provider.
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275 Number-database contractor
A reference in this Part to a number-database contractor is a
reference to a person who performs services for or on behalf of a
number-database operator, but does not include a reference to a
person who performs such services in the capacity of an employee
of the operator.
275A Location information
(1) For the purposes of this Part, information about the location of:
(a) a mobile telephone handset; or
(b) any other mobile communications device;
is taken to be information that relates to the affairs of the customer
responsible for the handset or device.
(2) For the purposes of this Part, a document about the location of:
(a) a mobile telephone handset; or
(b) any other mobile communications device;
is taken to be a document that relates to the affairs of the customer
responsible for the handset or device.
(3) This section is enacted for the avoidance of doubt.
275B Emergency management person
(1) In this Part:
emergency management person means a person who holds,
occupies or performs the duties of an office or position specified
under subsection (2).
(2) The Minister administering the Administrative Decisions (Judicial
Review) Act 1977 may, by legislative instrument, specify either or
both of the following for the purposes of the definition of
emergency management person in subsection (1) of this section:
(a) offices;
(b) positions.
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(3) Offices or positions established by or under a law of a State or
Territory may be specified under subsection (2).
(4) Subsection (3) does not limit subsection (2).
(5) Before making an instrument under subsection (2), the Minister
administering the Administrative Decisions (Judicial Review) Act
1977 must consult the Minister administering this Act.
275C Emergency
In this Part:
emergency means an emergency or disaster (however described)
within the meaning of an emergency law.
275D Emergency law
(1) In this Part:
emergency law means a law specified under subsection (2).
(2) The Minister administering the Administrative Decisions (Judicial
Review) Act 1977 may, by legislative instrument, specify a law of a
State or a Territory for the purposes of the definition of emergency
law in subsection (1) of this section.
275E Relevant information
In this Part:
relevant information means information, or the contents of a
document, disclosed as permitted by section 285A.
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Division 2—Primary disclosure/use offences
276 Primary disclosure/use offence—eligible persons
Current eligible persons
(1) An eligible person must not disclose or use any information or
document that:
(a) relates to:
(i) the contents or substance of a communication that has
been carried by a carrier or carriage service provider; or
(ii) the contents or substance of a communication that is
being carried by a carrier or carriage service provider
(including a communication that has been collected or
received by such a carrier or provider for carriage by it
but has not been delivered by it); or
(iii) carriage services supplied, or intended to be supplied, to
another person by a carrier or carriage service provider;
or
(iv) the affairs or personal particulars (including any
unlisted telephone number or any address) of another
person; and
(b) comes to the person’s knowledge, or into the person’s
possession:
(i) if the person is a carrier or carriage service provider—in
connection with the person’s business as such a carrier
or provider; or
(ii) if the person is an employee of a carrier or carriage
service provider—because the person is employed by
the carrier or provider in connection with its business as
such a carrier or provider; or
(iii) if the person is a telecommunications contractor—in
connection with the person’s business as such a
contractor; or
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(iv) if the person is an employee of a telecommunications
contractor—because the person is employed by the
contractor in connection with its business as such a
contractor.
Former eligible persons
(2) A person who has been an eligible person must not disclose or use
any information or document that:
(a) relates to a matter mentioned in paragraph (1)(a); and
(b) came to the person’s knowledge, or into the person’s
possession:
(i) if the person was a carrier or carriage service provider—
in connection with the person’s business as such a
carrier or provider; or
(ii) if the person was an employee of a carrier or carriage
service provider—because the person was employed by
the carrier or provider in connection with its business as
such a carrier or provider; or
(iii) if the person was a telecommunications contractor—in
connection with the person’s business as such a
contractor; or
(iv) if the person was an employee of a telecommunications
contractor—because the person was employed by the
contractor in connection with its business as such a
contractor.
Offence
(3) A person who contravenes this section commits an offence
punishable on conviction by imprisonment for a term not
exceeding 2 years.
Note 1: This section is subject to the exceptions in Division 3 of this Part and
in Chapter 4 of the Telecommunications (Interception and Access) Act
1979.
Note 2: See also sections 4AA and 4B of the Crimes Act 1914.
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Scope of subsection (1)—carriage by means of electromagnetic
energy
(4) Subparagraphs (1)(a)(i) and (ii) do not apply to a communication
that is or has been carried by a carrier or carriage service provider
unless the carriage was by means of, is by means of, or is proposed
to be delivered by means of, guided and/or unguided
electromagnetic energy.
277 Primary disclosure/use offence—eligible number-database
persons
Current eligible number-database persons
(1) An eligible number-database person must not disclose or use any
information or document that:
(a) relates to:
(i) carriage services supplied, or intended to be supplied, to
another person by a carrier or carriage service provider;
or
(ii) the affairs or personal particulars (including any
unlisted telephone number or any address) of another
person; and
(b) comes to the person’s knowledge, or into the person’s
possession:
(i) if the person is a number-database operator—in
connection with the person’s business as such an
operator; or
(ii) if the person is an employee of a number-database
operator—because the person is employed by the
operator in connection with its business as such an
operator; or
(iii) if the person is a number-database contractor—in
connection with the person’s business as such a
contractor; or
(iv) if the person is an employee of a number-database
contractor—because the person is employed by the
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contractor in connection with its business as such a
contractor.
Former eligible number-database persons
(2) A person who has been an eligible number-database person must
not disclose or use any information or document that:
(a) relates to a matter mentioned in paragraph (1)(a); and
(b) came to the person’s knowledge, or into the person’s
possession:
(i) if the person was a number-database operator—in
connection with the person’s business as such an
operator; or
(ii) if the person was an employee of a number-database
operator—because the person was employed by the
operator in connection with its business as such an
operator; or
(iii) if the person was a number-database contractor—in
connection with the person’s business as such a
contractor; or
(iv) if the person was an employee of a number-database
contractor—because the person was employed by the
contractor in connection with its business as such a
contractor.
Offence
(3) A person who contravenes this section commits an offence
punishable on conviction by imprisonment for a term not
exceeding 2 years.
Note 1: This section is subject to the exceptions in Division 3 of this Part and
in Chapter 4 of the Telecommunications (Interception and Access) Act
1979.
Note 2: See also sections 4AA and 4B of the Crimes Act 1914.
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278 Primary disclosure/use offence—emergency call persons
Current emergency call persons
(1) An emergency call person must not disclose or use any information
or document that:
(a) relates to:
(i) the contents or substance of a communication that has
been carried by a carrier or carriage service provider; or
(ii) the contents or substance of a communication that is
being carried by a carrier or carriage service provider;
or
(iii) the affairs or personal particulars (including any
unlisted telephone number or any address) of another
person; and
(b) comes to the person’s knowledge, or into the person’s
possession, in connection with the operation of an emergency
call service.
Former emergency call persons
(2) A person who has been an emergency call person must not disclose
or use any information or document that:
(a) relates to a matter mentioned in paragraph (1)(a); and
(b) came to the person’s knowledge, or into the person’s
possession, in connection with the operation of an emergency
call service.
Offence
(3) A person who contravenes this section commits an offence
punishable on conviction by imprisonment for a term not
exceeding 2 years.
Note 1: This section is subject to the exceptions in Division 3 of this Part and
in Chapter 4 of the Telecommunications (Interception and Access) Act
1979.
Note 2: See also sections 4AA and 4B of the Crimes Act 1914.
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Scope of subsection (1)—carriage by means of electromagnetic
energy
(4) Subparagraphs (1)(a)(i) and (ii) do not apply to a communication
that is or has been carried by a carrier or carriage service provider
unless the carriage was by means of, is by means of, or is proposed
to be delivered by means of, guided and/or unguided
electromagnetic energy.
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Subdivision A—Exceptions
279 Performance of person’s duties
(1) Section 276 does not prohibit a disclosure or use by a person of
information or a document if:
(a) the person is an employee of:
(i) a carrier; or
(ii) a carriage service provider; or
(iii) a telecommunications contractor; and
(b) the disclosure or use is made in the performance of the
person’s duties as such an employee.
(2) Section 276 does not prohibit a disclosure or use by a person of
information or a document if:
(a) the person is a telecommunications contractor; and
(b) the disclosure or use is made in the performance of the
person’s duties as such a contractor.
(3) Section 277 does not prohibit a disclosure or use by a person of
information or a document if:
(a) the person is an employee of:
(i) a number-database operator; or
(ii) a number-database contractor; and
(b) the disclosure or use is made in the performance of the
person’s duties as such an employee.
(4) Section 277 does not prohibit a disclosure or use by a person of
information or a document if:
(a) the person is a number-database contractor; and
(b) the disclosure or use is made in the performance of the
person’s duties as such a contractor.
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(5) Section 278 does not prohibit a disclosure or use by a person of
information or a document if:
(a) the person is an employee of:
(i) a recognised person who operates an emergency call
service; or
(ii) an emergency call contractor; and
(b) the disclosure or use is made in the performance of the
person’s duties as such an employee.
(6) Section 278 does not prohibit a disclosure or use by a person of
information or a document if:
(a) the person is an emergency call contractor; and
(b) the disclosure or use is made in the performance of the
person’s duties as such a contractor.
280 Authorisation by or under law
(1) Division 2 does not prohibit a disclosure or use of information or a
document if:
(a) in a case where the disclosure or use is in connection with the
operation of an enforcement agency—the disclosure or use is
required or authorised under a warrant; or
(b) in any other case—the disclosure or use is required or
authorised by or under law.
(1A) In applying paragraph (1)(a) to the Australian Commission for Law
Enforcement Integrity, the reference in that paragraph to the
operation of an enforcement agency is taken to be a reference to
the performance of the functions of the Integrity Commissioner
(within the meaning of the Law Enforcement Integrity
Commissioner Act 2006).
(1B) Subject to subsection (1C), paragraph (1)(b) does not apply to a
disclosure of information or a document if:
(a) the disclosure is required or authorised because of:
(i) a subpoena; or
(ii) a notice of disclosure; or
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(iii) an order of a court;
in connection with a civil proceeding; and
(b) the information or document is kept, by a service provider
(within the meaning of the Telecommunications (Interception
and Access) Act 1979), solely for the purpose of complying
with Part 5-1A of that Act; and
(c) the information or document is not used or disclosed by the
service provider for any purpose other than one or more of
the following purposes:
(i) complying with Part 5-1A of that Act;
(ii) complying with the requirements of warrants under
Chapters 2 and 3 of that Act or authorisations under
Chapter 4 of that Act;
(iii) complying with requests or requirements to make
disclosures provided for by sections 284 to 288 of this
Act;
(iv) providing persons with access to their personal
information in accordance with the Privacy Act 1988;
(v) a purpose prescribed by the regulations;
(vi) a purpose incidental to any of the purposes referred to in
subparagraphs (i) to (v).
(1C) Subsection (1B) does not apply:
(a) in circumstances of a kind prescribed by the regulations; or
(b) to a disclosure to an enforcement agency (within the meaning
of the Telecommunications (Interception and Access) Act
1979); or
(c) to a disclosure that occurs during the implementation phase
(within the meaning of that Act).
(2) In this section:
enforcement agency has the same meaning as in the
Telecommunications (Interception and Access) Act 1979.
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281 Witnesses
(1) Division 2 does not prohibit a disclosure by a person of
information or a document if the person makes the disclosure as a
witness summoned to give evidence or to produce documents.
(2) Subject to subsection (3), this section does not apply to a disclosure
of information or a document by a person as a witness in a civil
proceeding if the information or document:
(a) is kept, by a service provider (within the meaning of the
Telecommunications (Interception and Access) Act 1979),
solely for the purpose of complying with Part 5-1A of that
Act; and
(b) is not used or disclosed by the service provider for any
purpose other than one or more of the following purposes:
(i) complying with Part 5-1A of that Act;
(ii) complying with the requirements of warrants under
Chapters 2 and 3 of that Act or authorisations under
Chapter 4 of that Act;
(iii) complying with requests or requirements to make
disclosures provided for by sections 284 to 288 of this
Act;
(iv) providing persons with access to their personal
information in accordance with the Privacy Act 1988;
(v) a purpose prescribed by the regulations;
(vi) a purpose incidental to any of the purposes referred to in
subparagraphs (i) to (v).
(3) Subsection (2) does not apply:
(a) in circumstances of a kind prescribed by the regulations; or
(b) to a disclosure to an enforcement agency (within the meaning
of the Telecommunications (Interception and Access) Act
1979); or
(c) to a disclosure that occurs during the implementation phase
(within the meaning of that Act).
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284 Assisting the ACMA, the eSafety Commissioner, the ACCC or
the Telecommunications Industry Ombudsman
(1) Sections 276 and 277 do not prohibit a disclosure by a person of
information or a document if:
(a) the disclosure is made to, or to a member of the staff of, the
ACMA; and
(b) the information or document may assist the ACMA to carry
out its functions or powers.
(1A) Sections 276 and 277 do not prohibit a disclosure by a person of
information or a document if:
(a) the disclosure is made to:
(i) the eSafety Commissioner; or
(ii) a member of the staff of the ACMA whose duties relate
to the performance of the eSafety Commissioner’s
functions; and
(b) the information or document may assist the eSafety
Commissioner to carry out his or her functions or powers.
(2) Sections 276 and 277 do not prohibit a disclosure by a person of
information or a document if:
(a) the disclosure is made to, or to a member of the staff of, the
ACCC; and
(b) the information or document may assist the ACCC to carry
out its telecommunications functions and powers.
(3) Sections 276 and 277 do not prohibit a disclosure by a person of
information or a document if:
(a) the disclosure is made to the Telecommunications Industry
Ombudsman, or to an employee of the Telecommunications
Industry Ombudsman; and
(b) the information or document may assist the
Telecommunications Industry Ombudsman in the
consideration of a complaint made to the
Telecommunications Industry Ombudsman.
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285 Integrated public number database
Permitted uses
(1) Sections 276 and 277 do not prohibit a use by a person of
information or a document if:
(a) the information or document relates to information (other
than information relating to an unlisted telephone number)
contained in an integrated public number database; and
(b) the information or document relates to:
(i) carriage services supplied, or intended to be supplied, to
another person by a carrier or carriage service provider;
or
(ii) the affairs or personal particulars of another person
(other than an address relating to an unlisted telephone
number); and
(c) the use is made for purposes connected with:
(i) the provision of directory assistance services by or on
behalf of a carriage service provider; or
(ii) the publication and maintenance of a public number
directory; or
(iii) dealing with the matter or matters raised by a call to an
emergency service number.
Permitted disclosures
(1A) Sections 276 and 277 do not prohibit a disclosure by a person of
information or a document if:
(a) the information or document relates to information (other
than information relating to an unlisted telephone number)
contained in an integrated public number database; and
(b) the information or document relates to:
(i) carriage services supplied, or intended to be supplied, to
another person by a carrier or carriage service provider;
or
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(ii) the affairs or personal particulars of another person
(other than an address relating to an unlisted telephone
number); and
(c) the disclosure is made to another person for purposes
connected with:
(i) the provision of directory assistance services by or on
behalf of a carriage service provider; or
(ii) the publication and maintenance of a public number
directory; or
(iii) dealing with the matter or matters raised by a call to an
emergency service number; or
(iv) the conduct of research of a kind specified in an
instrument under subsection (3); and
(d) if the disclosure to the other person is for a purpose covered
by subparagraph (c)(ii) or (iv)—the other person holds an
authorisation in force under the integrated public number
database scheme permitting the other person to use and
disclose the information or document.
Definitions
(2) In this section:
business includes a venture or concern in trade or commerce,
whether or not conducted on a regular, repetitive or continuous
basis.
educational institution includes:
(a) a pre-school; and
(b) a school; and
(c) a college; and
(d) a university.
integrated public number database means:
(a) an integrated public number database maintained by Telstra
as mentioned in Part 4 of Schedule 2; or
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(b) an integrated public number database maintained by a person
as mentioned in section 472.
public number means a number specified in the numbering plan as
mentioned in subsection 455(3), but does not include an unlisted
number.
public number directory means a record:
(a) that contains either or both of the following:
(i) the names of persons and their public numbers (whether
or not it also contains their addresses);
(ii) the names of bodies and their public numbers (whether
or not it also contains their addresses); and
(b) that, in relation to a person or body that is not a qualifying
entity, contains no other information about the person or
body; and
(c) that, in relation to a person or body that is a qualifying entity,
contains no other information about the person or body apart
from information:
(i) that is of a kind specified in an instrument under
subsection (4); and
(ii) that is applicable in relation to the person or body; and
(d) that:
(i) does not enable a person who only knows the public
number of an end-user of a carriage service to readily
identify the end-user’s name and/or address; and
(ii) does not enable a person who only knows the whole or a
part of the address of an end-user of a carriage service
to readily identify the end-user’s name and/or public
number; and
(e) that satisfies each requirement specified in an instrument
under subsection (5).
qualifying entity means:
(a) a person, or body, that is:
(i) carrying on a business; and
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(ii) registered under the Australian Charities and
Not-for-profits Commission Act 2012, or not an ACNC
type of entity; or
(b) a registered charity; or
(c) an educational institution that is:
(i) registered under the Australian Charities and
Not-for-profits Commission Act 2012; or
(ii) not an ACNC type of entity; or
(e) a department of the Commonwealth, a State or a Territory; or
(f) an agency, authority or instrumentality of the
Commonwealth, a State or a Territory; or
(g) any other person or body of a kind specified in an instrument
under subsection (6) that is:
(i) registered under the Australian Charities and
Not-for-profits Commission Act 2012; or
(ii) not an ACNC type of entity.
Research
(3) The Minister may, by legislative instrument, specify kinds of
research for the purposes of subparagraph (1A)(c)(iv). The
Minister must not specify a kind of research unless the Minister is
satisfied that the kind of research is in the public interest.
Additional information in public number directory
(4) The Minister may, by legislative instrument, specify kinds of
information for the purposes of subparagraph (c)(i) of the
definition of public number directory in subsection (2). The
Minister may specify different kinds of information in relation to
different kinds of qualifying entities.
Further requirements for public number directory
(5) The Minister may, by legislative instrument, specify requirements
for the purposes of paragraph (e) of the definition of public
number directory in subsection (2).
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Qualifying entities
(6) The Minister may, by legislative instrument, specify kinds of
persons or bodies for the purposes of paragraph (g) of the
definition of qualifying entity in subsection (2).
285A Data for emergency warnings
(1) Sections 276 and 277 do not prohibit a disclosure by a person (the
discloser) of information or a document if:
(a) the information is, or the document consists of, information
(including unlisted telephone numbers) contained in an
integrated public number database; and
(b) the disclosure is made to an emergency management person;
and
(c) the emergency management person has given the discloser a
written notice stating that the disclosure is for the purpose of
the information, or the contents of the document, being later
used or disclosed for either or both of the following:
(i) for a purpose connected with persons being alerted to an
emergency or a likely emergency;
(ii) for the purpose of reasonable testing of whether, in the
event of an emergency occurring, persons would be able
to be alerted to that emergency.
(1A) A notice given as mentioned in paragraph (1)(c) may cover one or
more disclosures (including each disclosure in a series of
disclosures under an arrangement between the discloser and the
emergency management person).
(1B) A notice given as mentioned in paragraph (1)(c) is not a legislative
instrument.
(2) In this section:
integrated public number database means:
(a) an integrated public number database maintained by Telstra
as mentioned in Part 4 of Schedule 2; or
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(b) an integrated public number database maintained by a person
as mentioned in section 472.
286 Calls to emergency service number
Division 2 does not prohibit a disclosure by a person of
information or a document if:
(a) the information or document came to the person’s
knowledge, or into the person’s possession, because of a call
to an emergency service number; and
(b) the information, or the contents of the document, consists of
any or all of the following:
(i) a name;
(ii) a telephone number;
(iii) an address;
(iv) a location;
(v) the matter or matters raised by the call; and
(c) the disclosure is made to:
(i) a member of a police force or service; or
(ii) a member of a fire service; or
(iii) a member of an ambulance service; or
(iv) an emergency call person; or
(v) a member of a service specified in the numbering plan
for the purposes of this subparagraph; or
(vi) a service for despatching a force or service referred to in
subparagraph (i), (ii), (iii) or (v);
for purposes connected with dealing with the matter or
matters raised by the call.
287 Threat to person’s life or health
Division 2 does not prohibit a disclosure or use by a person (the
first person) of information or a document if:
(a) the information or document relates to the affairs or personal
particulars (including any unlisted telephone number or any
address) of another person; and
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(b) the first person believes on reasonable grounds that the
disclosure or use is reasonably necessary to prevent or lessen
a serious and imminent threat to the life or health of a person.
288 Communications for maritime purposes
Division 2 does not prohibit a disclosure or use of information or a
document if:
(a) the disclosure or use is reasonably necessary for the purpose
of the preservation of human life at sea; or
(b) the disclosure or use:
(i) relates to the location of a vessel at sea; and
(ii) is made for maritime communications purposes.
289 Knowledge or consent of person concerned
Division 2 does not prohibit a disclosure or use by a person of
information or a document if:
(a) the information or document relates to the affairs or personal
particulars (including any unlisted telephone number or any
address) of another person; and
(b) the other person:
(i) is reasonably likely to have been aware or made aware
that information or a document of that kind is usually
disclosed, or used, as the case requires, in the
circumstances concerned; or
(ii) has consented to the disclosure, or use, as the case
requires, in the circumstances concerned.
290 Implicit consent of sender and recipient of communication
Section 276 does not prohibit a disclosure or use by a person if:
(a) the information or document relates to the contents or
substance of a communication made by another person; and
(b) having regard to all the relevant circumstances, it might
reasonably be expected that the sender and the recipient of
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the communication would have consented to the disclosure or
use, if they had been aware of the disclosure or use.
291 Business needs of other carriers or service providers
(1) Section 276 does not prohibit a disclosure or use by a person of
information or a document if:
(a) the disclosure or use is made by or on behalf of:
(i) a carrier (the first carrier); or
(ii) a carriage service provider (the first provider); and
(b) the disclosure or use is made for a purpose of, or is connected
with, any other carrier or service provider carrying on its
business as such a carrier or provider; and
(c) the information or document relates to a person (the third
person) who is a customer or former customer of:
(i) the first carrier or the first provider; or
(ii) the other carrier or the other provider; and
(d) the disclosure or use is made for a purpose of, or is connected
with:
(i) the supply, or proposed supply, by the other carrier or
other provider to the third person of a carriage service or
a content service; or
(ii) the supply, or proposed supply, by the other carrier or
other provider to the third person of goods or services
for use in connection with the supply of a carriage
service or a content service; or
(iii) the installation, maintenance, operation or provision of
access to a telecommunications network or a facility,
where the network or facility is used, or for use, by the
other carrier or the other provider to supply a carriage
service or a content service to the third person; and
(e) if the information or document relates to the location of:
(i) a mobile telephone handset; or
(ii) any other mobile communications device;
the third person has consented to the disclosure, or use, as the
case requires, in the circumstances concerned.
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(2) Section 276 does not prohibit a disclosure or use by a person of
information or a document if:
(a) the disclosure or use is made by or on behalf of a carriage
service provider; and
(b) the disclosure or use is made for a purpose of, or is connected
with, an arrangement, or proposed arrangement, made by a
carriage service intermediary for the supply of a carriage
service by the provider to a third person; and
(c) the information or document relates to the third person; and
(d) the disclosure or use is made for a purpose of, or is connected
with:
(i) the supply, or proposed supply, by the provider to the
third person of that service; or
(ii) the supply, or proposed supply, by the provider to the
third person of goods or services for use in connection
with the supply of the first-mentioned service; or
(iii) the installation, maintenance, operation or provision of
access to a telecommunications network or a facility,
where the network or facility is used, or for use, by the
provider to supply the first-mentioned service to the
third person; and
(e) if the information or document relates to the location of:
(i) a mobile telephone handset; or
(ii) any other mobile communications device;
the third person has consented to the disclosure, or use, as the
case requires, in the circumstances concerned.
(3) Section 276 does not prohibit a disclosure or use by a person of
information or a document if:
(a) the disclosure or use is made by or on behalf of a carriage
service intermediary; and
(b) the disclosure or use is made for a purpose of, or is connected
with, an arrangement, or proposed arrangement, made by the
intermediary for the supply of a carriage service by a carriage
service provider to a third person; and
(c) the information or document relates to the third person; and
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(d) the disclosure or use is made for a purpose of, or is connected
with:
(i) the supply, or proposed supply, by the provider to the
third person of that service; or
(ii) the supply, or proposed supply, by the provider to the
third person of goods or services for use in connection
with the supply of the first-mentioned service; or
(iii) the installation, maintenance, operation or provision of
access to a telecommunications network or a facility,
where the network or facility is used, or for use, by the
provider to supply the first-mentioned service to the
third person; and
(e) if the information or document relates to the location of:
(i) a mobile telephone handset; or
(ii) any other mobile communications device;
the third person has consented to the disclosure, or use, as the
case requires, in the circumstances concerned.
291A Location dependent carriage services
(1) Sections 276 and 277 do not prohibit a disclosure by a person of
information or a document if:
(a) the information or document relates to information (other
than information relating to an unlisted telephone number)
contained in an integrated public number database; and
(b) the disclosure is to a carrier or a carriage service provider;
and
(c) the disclosure is made for a purpose of, or is connected with,
the supply, or proposed supply, by a person of a location
dependent carriage service.
(2) Sections 276 and 277 do not prohibit a disclosure or use by a
carrier or a carriage service provider of information or a document
if:
(a) the information or document relates to information (other
than information relating to an unlisted telephone number)
contained in an integrated public number database; and
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(b) the disclosure or use is made for a purpose of, or is connected
with, the supply, or proposed supply, by a person of a
location dependent carriage service.
(3) In this section:
integrated public number database means:
(a) an integrated public number database maintained by Telstra
as mentioned in Part 4 of Schedule 2; or
(b) an integrated public number database maintained by a person
as mentioned in section 472.
location dependent carriage service means a carriage service that
depends for its provision on the availability of information about
the addresses of end users of the carriage service.
292 Circumstances prescribed in the regulations
(1) Section 276 does not prohibit a disclosure or use of information or
a document in circumstances specified in the regulations.
(2) Section 277 does not prohibit a disclosure or use of information or
a document in circumstances specified in the regulations.
(3) Section 278 does not prohibit a disclosure or use of information or
a document in circumstances specified in the regulations.
293 Uses connected with exempt disclosures
(1) Section 276 does not prohibit a use of information or a document
if:
(a) the use is made for the purposes of, or in connection with, a
disclosure of the information or document by the person; and
(b) because of this Division, the disclosure is not prohibited by
section 276.
(2) Section 277 does not prohibit a use of information or a document
if:
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(a) the use is made for the purposes of, or in connection with, a
disclosure of the information or document by the person; and
(b) because of this Division, the disclosure is not prohibited by
section 277.
(3) Section 278 does not prohibit a use of information or a document
if:
(a) the use is made for the purposes of, or in connection with, a
disclosure of the information or document by the person; and
(b) because of this Division, the disclosure is not prohibited by
section 278.
294 Effect of this Subdivision
Nothing in this Subdivision limits the generality of anything else in
it or in Divisions 3 to 5 of Part 4-1 of the Telecommunications
(Interception and Access) Act 1979.
Subdivision B—Burden of proof
295 Burden of proof
(1) For the purposes of determining the persuasive burden of proof in
proceedings for an offence against Division 2, the exceptions set
out in this Division or in Chapter 4 of the Telecommunications
(Interception and Access) Act 1979 are taken to be part of the
description of the offence.
(2) In proceedings for an offence against Division 2, the defendant
bears the evidential burden in relation to an exception set out in
this Division or in Chapter 4 of the Telecommunications
(Interception and Access) Act 1979.
(3) In this section:
evidential burden, in relation to a matter, means the burden of
adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist.
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Division 3A Integrated public number database authorisations
Section 295A
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Division 3A—Integrated public number database
authorisations
Subdivision A—ACMA scheme for the granting of
authorisations
295A ACMA to make integrated public number database scheme
The ACMA must, by legislative instrument, make a scheme (the
integrated public number database scheme) for the granting of
authorisations for the purposes of paragraph 285(1A)(d).
Note 1: The ACMA may make determinations fixing charges for any matter in
relation to which expenses are incurred by the ACMA under the
scheme: see section 60 of the Australian Communications and Media
Authority Act 2005.
Note 2: Various decisions under the scheme are reviewable: see section 555
and paragraphs 1(ma) to (md) of Schedule 4.
295B Scheme must deal with certain matters
(1) The scheme must make provision for and in relation to the
following matters:
(a) the making of applications for authorisations;
(b) the assessment of applications;
(c) the period for which authorisations are to be in force;
(d) the notification of decisions under the scheme (including to
the person who maintains the integrated public number
database referred to in paragraph 285(1A)(a)).
(2) The scheme must require an applicant for an authorisation to
specify the purpose for which the authorisation is sought.
Note: The relevant purposes are purposes connected with the publication
and maintenance of a public number directory or with the conduct of
particular research.
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Section 295C
Telecommunications Act 1997 221
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295C Applications may be treated differently
The scheme may make different provision for different kinds of
authorisation applications.
295D Scope of authorisations
The scheme may make provision for authorisations to be in respect
of:
(a) all information or documents that satisfy the matters referred
to in paragraphs 285(1A)(a) and (b); or
(b) specified information or specified documents that satisfy
those matters.
295E Provisional and final authorisations
The scheme may make provision for provisional authorisations and
final authorisations.
295F Conditions
The scheme may make provision for the imposition of conditions
on the grant of authorisations.
Note 1: Section 295P also allows the Minister to determine that authorisations
are granted subject to conditions.
Note 2: Section 295R creates an offence for breaching a condition of an
authorisation.
295G Varying or revoking authorisations
The scheme may make provision for the variation or revocation of
authorisations. For example, the variation may be the imposition of
new conditions or the variation or removal of existing conditions.
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Section 295H
222 Telecommunications Act 1997
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295H Scheme may confer administrative powers on the ACMA
The scheme may make provision for or in relation to a particular
matter by empowering the ACMA to make decisions of an
administrative character.
Note: Sections 50 and 51 of the Australian Communications and Media
Authority Act 2005 deal with the delegation of the ACMA’s powers.
295J Ancillary or incidental provisions
The scheme may contain such ancillary or incidental provisions as
the ACMA considers appropriate.
295K Scheme-making power not limited
Sections 295B to 295J do not, by implication, limit section 295A.
295L Variation of scheme
(1) The scheme may be varied, but not revoked, in accordance with
subsection 33(3) of the Acts Interpretation Act 1901.
(2) Subsection (1) does not limit the application of subsection 33(3) of
the Acts Interpretation Act 1901 to other instruments under this
Act.
295M Consultation
Making the scheme
(1) Before making the scheme, the ACMA:
(a) must consult the Information Commissioner in relation to
matters that relate to the privacy functions (within the
meaning of the Australian Information Commissioner Act
2010) and have regard to any submissions made by the
Information Commissioner because of that consultation; and
(b) must consult the Secretary of the Department that is
administered by the Minister administering the Privacy Act
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Section 295N
Telecommunications Act 1997 223
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1988 and have regard to any submissions made by that
Secretary because of that consultation; and
(c) may consult such other persons as the ACMA considers
appropriate and have regard to any submissions made by
those persons because of that consultation.
Decisions under the scheme
(2) Before making a decision under the scheme, the ACMA may
consult such persons as the ACMA considers appropriate and have
regard to any submissions made by those persons because of that
consultation.
Subdivision B—Ministerial instruments
295N Criteria for deciding authorisation applications
(1) The Minister must, by legislative instrument, specify criteria for
deciding authorisation applications made under the integrated
public number database scheme.
(2) The Minister may specify different criteria for different kinds of
authorisation applications.
(3) In deciding an authorisation application, the ACMA:
(a) must apply the criteria applicable to that application; and
(b) may have regard to any other matters that it thinks are
relevant.
295P Conditions
(1) The Minister may, by legislative instrument, do either or both of
the following:
(a) determine that all authorisations under the integrated public
number database scheme are granted subject to specified
conditions;
(b) determine that a specified kind of authorisation under that
scheme is granted subject to specified conditions.
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Section 295Q
224 Telecommunications Act 1997
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(2) An authorisation under that scheme is granted subject to any
condition specified in an instrument under this section that is
applicable to that authorisation.
Note 1: An authorisation may also be granted subject to conditions imposed in
accordance with that scheme: see section 295F.
Note 2: Section 295R creates an offence for breaching a condition of an
authorisation.
295Q Other reviewable decisions
The Minister may, by legislative instrument, specify decisions
under the integrated public number database scheme for the
purposes of paragraph 1(md) of Schedule 4.
Subdivision C—Enforcing compliance with conditions of
authorisations
295R Offence of breaching a condition
A person commits an offence if:
(a) the person is the holder of an authorisation under the
integrated public number database scheme; and
(b) the person does an act or omits to do an act; and
(c) the act or omission breaches a condition of the authorisation.
Penalty: 60 penalty units.
295S Remedial directions for breaching a condition
(1) This section applies if the ACMA is satisfied that a person has
contravened, or is contravening, a condition of an authorisation in
force under the integrated public number database scheme.
(2) The ACMA may give the person a written direction requiring the
person to take specified action directed towards ensuring that the
person does not contravene the condition, or is unlikely to
contravene the condition, in the future.
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Section 295T
Telecommunications Act 1997 225
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(3) A person must not contravene a direction under subsection (2).
(4) Subsection (3) is a civil penalty provision.
Note: Part 31 provides for pecuniary penalties for breaches of civil penalty
provisions.
(5) A direction given under subsection (2) is not a legislative
instrument.
295T Formal warnings for breaching a condition
The ACMA may issue a formal warning if the ACMA is satisfied
that a person has contravened, or is contravening, a condition of an
authorisation in force under the integrated public number database
scheme.
Subdivision D—Report to Minister
295U Report to Minister
(1) At the time an annual report prepared by the Chair of the ACMA is
given to the Minister under section 46 of the Public Governance,
Performance and Accountability Act 2013, the ACMA must give
the Minister a separate report on the following matters:
(a) the compliance by persons with authorisations granted under
the integrated public number database scheme;
(b) any other matter relating to the operation of that scheme that
the ACMA considers appropriate.
(2) The ACMA is not required to include in the separate report any
material:
(a) that is of a confidential nature; or
(b) the disclosure of which is likely to prejudice the fair trial of a
person.
(3) The Minister must cause a copy of the separate report to be tabled
in each House of the Parliament within 15 sitting days of that
House after the day on which the Minister receives the separate
report.
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Division 3B Emergency warnings
Section 295V
226 Telecommunications Act 1997
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Division 3B—Emergency warnings
295V Use or disclosure of information by emergency management
persons
Likely emergencies
(1) If an emergency management person believes on reasonable
grounds that an emergency is likely to occur, the person may use or
disclose relevant information (other than the names of persons) for
a purpose connected with persons being alerted to that likely
emergency.
Actual emergencies
(2) If an emergency occurs, an emergency management person may
use or disclose relevant information (other than the names of
persons) for a purpose connected with persons being alerted to that
emergency.
Testing
(3) An emergency management person may use or disclose relevant
information (other than the names of persons) for the purpose of
reasonable testing of whether, in the event of an emergency
occurring, persons would be able to be alerted to that emergency.
Other
(4) An emergency management person may disclose relevant
information (other than the names of persons) to another person for
the purpose of the information being later used or disclosed for a
purpose connected with persons being alerted to an emergency or a
likely emergency.
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Section 295W
Telecommunications Act 1997 227
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295W Use or disclosure of information by other persons
Actual or likely emergencies
(1) If information is disclosed to a person as permitted by
subsection 295V(1) or (2) or this subsection, the person may use or
disclose the information for a purpose connected with persons
being alerted to the emergency or likely emergency concerned.
Testing
(2) If information is disclosed to a person as permitted by
subsection 295V(3) or this subsection, the person may use or
disclose the information for the purpose of reasonable testing of
whether, in the event of an emergency occurring, persons would be
able to be alerted to that emergency.
Other
(3) If information is disclosed to a person as permitted by
subsection 295V(4) or this subsection, the person may use or
disclose the information for a purpose connected with persons
being alerted to an emergency or a likely emergency.
295X Effect on telecommunications network
In using or disclosing information that is permitted by
section 295V or 295W, a person must take reasonable steps to
ensure that the use or disclosure does not adversely affect the
operation of a telecommunications network.
295Y Coronial and other inquiries
The disclosure of relevant information to:
(a) a coronial inquiry; or
(b) another inquiry specified by the Minister administering the
Administrative Decisions (Judicial Review) Act 1977, by
legislative instrument, for the purposes of this paragraph;
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Section 295Z
228 Telecommunications Act 1997
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in relation to an emergency or likely emergency is taken, for the
purposes of this Division, to be a disclosure for a purpose
connected with persons being alerted to the emergency or likely
emergency concerned.
295Z Offence—use or disclosure of information by emergency
management persons
An emergency management person commits an offence if:
(a) the person uses or discloses relevant information; and
(b) the use or disclosure is not permitted under section 295V.
Penalty: Imprisonment for 2 years.
295ZA Offence—use or disclosure of information by other persons
(1) A person commits an offence if:
(a) information is disclosed to the person as permitted by
subsection 295V(1) or (2) or 295W(1); and
(b) the person uses or discloses the information; and
(c) the use or disclosure referred to in paragraph (b) of this
subsection is not for a purpose connected with persons being
alerted to the emergency or likely emergency concerned.
Penalty: Imprisonment for 2 years.
(2) A person commits an offence if:
(a) information is disclosed to the person as permitted by
subsection 295V(3) or 295W(2); and
(b) the person uses or discloses the information; and
(c) the use or disclosure referred to in paragraph (b) of this
subsection is not for the purpose of reasonable testing of
whether, in the event of an emergency occurring, persons
would be able to be alerted to that emergency.
Penalty: Imprisonment for 2 years.
(3) A person commits an offence if:
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Telecommunications Act 1997 229
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(a) information is disclosed to the person as permitted by
subsection 295V(4) or 295W(3); and
(b) the person uses or discloses the information; and
(c) the use or disclosure referred to in paragraph (b) of this
subsection is not for a purpose connected with persons being
alerted to an emergency or a likely emergency.
Penalty: Imprisonment for 2 years.
295ZB Reports of access
(1) If an emergency management person discloses relevant
information, the person must give a written report to the Minister
administering the Administrative Decisions (Judicial Review) Act
1977 and to the ACMA that covers the following matters:
(a) if the disclosure occurred under subsection 295V(1) or (2)—a
description of the emergency or likely emergency concerned
and its location;
(b) in any case—the number of telephone numbers that were
disclosed and the day that disclosure occurred;
(c) in any case—the number of persons to whom the emergency
management person disclosed those numbers and the purpose
of each disclosure.
(2) The emergency management person must give the report to the
Minister administering the Administrative Decisions (Judicial
Review) Act 1977 and to the ACMA as soon as practicable after the
last disclosure referred to in paragraph (1)(c) of this section occurs
(disregarding section 295Y).
295ZC Annual reports to the ACMA and Information
Commissioner
If an emergency management person discloses relevant
information during a financial year, the person must, within 2
months after the end of that financial year, give a written report to
the ACMA and to the Information Commissioner that covers the
following matters in relation to each such disclosure:
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Section 295ZD
230 Telecommunications Act 1997
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(a) if the disclosure occurred under subsection 295V(1) or (2)—a
description of the emergency or likely emergency concerned
and its location;
(b) in any case—the number of telephone numbers that were
disclosed and the day that disclosure occurred;
(c) in any case—the number of persons to whom the emergency
management person disclosed those numbers and the purpose
of each disclosure (whether the disclosure occurred in that
financial year or the following financial year).
295ZD Arrangements with States and Territories
(1) The Minister administering the Administrative Decisions (Judicial
Review) Act 1977 may make arrangements with a Minister of a
State or a Territory with respect to the performance of functions or
duties, or the exercise of powers, by an emergency management
person under this Division.
(2) An instrument by which an arrangement under this section is made
is not a legislative instrument.
295ZE Commonwealth immunity
No action, suit or proceeding lies against the Commonwealth in
relation to loss, damage or injury to any person or property as a
result of the use or disclosure of relevant information:
(a) for a purpose connected with persons being alerted to an
emergency or a likely emergency; or
(b) for the purpose of reasonable testing of whether, in the event
of an emergency occurring, persons would be able to be
alerted to that emergency.
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Section 296
Telecommunications Act 1997 231
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Division 4—Secondary disclosure/use offences
296 Performance of person’s duties
If:
(a) information or a document is disclosed to a person for a
particular purpose as permitted by section 279 or this section;
and
(b) the information or the contents of the document does not
relate to the person’s affairs or personal particulars;
the person must not disclose or use the information or document
except for that purpose.
297 Authorisation by or under law
If information or a document is disclosed to a person for a
particular purpose as permitted by section 280 or this section, the
person must not disclose or use the information or document unless
the disclosure or use is required or authorised by or under law.
299 Assisting the ACMA, the eSafety Commissioner, the ACCC or
the Telecommunications Industry Ombudsman
(1) If information or a document is disclosed to a person as permitted
by subsection 284(1) or this subsection, the person must not
disclose or use the information or document except for the purpose
of, or in connection with, the carrying out of the ACMA’s
functions and powers.
(1A) If information or a document is disclosed to a person as permitted
by subsection 284(1A) or this subsection, the person must not
disclose or use the information or document except for the purpose
of, or in connection with, the carrying out of the eSafety
Commissioner’s functions and powers.
(2) If information or a document is disclosed to a person as permitted
by subsection 284(2) or this subsection, the person must not
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Section 299A
232 Telecommunications Act 1997
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disclose or use the information or document except for the purpose
of, or in connection with, the carrying out of the ACCC’s
telecommunications functions and powers.
(3) If information or a document is disclosed to a person as permitted
by subsection 284(3) or this subsection, the person must not
disclose or use the information or document except for the purpose
of, or in connection with, assisting the Telecommunications
Industry Ombudsman in the consideration of a complaint made to
the Telecommunications Industry Ombudsman.
Note: Section 284 deals with the disclosure or use of information or
documents to assist the ACMA, the eSafety Commissioner, the ACCC
or the Telecommunications Industry Ombudsman.
299A Integrated public number database
Public number directory
(1) If:
(a) information or a document is disclosed to a person as
permitted by subsection 285(1A); and
(b) the disclosure is for a purpose covered by
subparagraph 285(1A)(c)(ii);
then:
(c) during the period the person holds an authorisation in force
under the integrated public number database scheme in
relation to the information or document—the person must not
disclose or use the information or document except for that
purpose; and
(d) if the person does not hold such an authorisation—the person
must not disclose or use the information or document.
Research
(2) If:
(a) information or a document is disclosed to a person as
permitted by subsection 285(1A); and
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Section 300
Telecommunications Act 1997 233
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(b) the disclosure is for a purpose covered by
subparagraph 285(1A)(c)(iv);
then:
(c) during the period the person holds an authorisation in force
under the integrated public number database scheme in
relation to the information or document—the person must not
disclose or use the information or document except for that
purpose; and
(d) if the person does not hold such an authorisation—the person
must not disclose or use the information or document.
(3) If information or a document is disclosed to a person for a
particular purpose as permitted by subsection (2) or this subsection,
the person must not disclose or use the information or document
except for that purpose.
300 Threat to person’s life or health
If information or a document is disclosed to a person (the first
person) as permitted by section 287 or this section, the first person
must not disclose or use the information or document unless:
(a) the disclosure or use is for the purpose of, or in connection
with, preventing or lessening a serious and imminent threat to
the life or health of another person; or
(b) the first person believes on reasonable grounds that the
disclosure or use is reasonably necessary to prevent or lessen
a serious and imminent threat to the life or health of another
person.
Note: Section 287 deals with the disclosure or use of information or
documents by a person where the person believes on reasonable
grounds that the disclosure or use is reasonably necessary to prevent
or lessen a serious and imminent threat to the life or health of another
person.
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Section 301
234 Telecommunications Act 1997
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301 Communications for maritime purposes
If information or a document is disclosed to a person as permitted
by section 288 or this section, the person must not disclose or use
the information or document unless:
(a) the disclosure or use is reasonably necessary for the purpose
of the preservation of human life at sea; or
(b) the disclosure or use:
(i) relates to the location of a vessel at sea; and
(ii) is made for maritime communications purposes.
Note: Section 288 deals with the disclosure or use of information or
documents where the disclosure or use is made for certain maritime
purposes.
302 Business needs of other carriers or service providers
If information or a document is disclosed to a person as permitted
by section 291 or this section, a person must not disclose or use the
information or document except for:
(a) the purpose of, or in connection with, the carrying on by:
(i) a carrier; or
(ii) a service provider;
of its business as such a carrier or provider; and
(b) the purpose of, or in connection with:
(i) the supply, or proposed supply, by a carrier or service
provider of a carriage service or a content service; or
(ii) the supply, or proposed supply, by a carrier or service
provider of goods or services for use in connection with
the supply of a carriage service or a content service; or
(iii) the installation, maintenance, operation or provision of
access to a telecommunications network or a facility,
where the network or facility is used, or for use, by a
carrier or service provider to supply a carriage service
or a content service to a person.
Note: Section 291 deals with the disclosure or use of information or
documents for the purposes of a carrier or a service provider carrying
on its business as such a carrier or provider.
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302A Location dependent carriage services
(1) If information or a document is disclosed to a person as permitted
by section 291A or this subsection, a person must not disclose or
use the information or document except for the purpose of, or in
connection with, the supply, or proposed supply, by a person of a
location dependent carriage service.
Note: Section 291A deals with the disclosure or use of information or
documents for the purposes of the supply, or proposed supply, by a
person of a location dependent carriage service.
(2) In this section:
location dependent carriage service means a carriage service that
depends for its provision on the availability of information about
the addresses of end users of the carriage service.
303 Secondary offence—contravening this Division
A person who contravenes this Division commits an offence
punishable on conviction by imprisonment for a term not
exceeding 2 years.
Note: See also sections 4AA and 4B of the Crimes Act 1914.
303A Generality of Division not limited
Nothing in this Division limits the generality of anything else in it.
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Division 4A Relationship with the Privacy Act 1988
Section 303B
236 Telecommunications Act 1997
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Division 4A—Relationship with the Privacy Act 1988
303B Acts taken to be authorised by this Act for purposes of Privacy
Act
(1) If a disclosure or use of information by a person would be
prohibited by Division 2 apart from a provision of Division 3, the
disclosure or use is taken for the purposes of the Privacy Act 1988,
and of a registered APP code (as defined in that Act), to be
authorised by this Act.
(2) If a disclosure or use of information by a person would be
prohibited by a provision of Division 4 apart from the fact that the
disclosure or use is covered by an exception in that provision to the
prohibition, the disclosure or use is taken for the purposes of the
Privacy Act 1988, and of a registered APP code (as defined in that
Act), to be authorised by this Act.
303C Prosecution of an offence against this Part does not affect
proceedings under the Privacy Act 1988
(1) The prosecution of an offence against Division 2 or 4 of this Part
for disclosure or use of information or a document does not prevent
civil proceedings or administrative action from being taken under
the Privacy Act 1988 or a registered APP code (as defined in that
Act) in relation to the disclosure or use.
(2) This section applies regardless of the outcome of the prosecution.
(3) This section does not affect the operation of section 49 of the
Privacy Act 1988.
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Section 304
Telecommunications Act 1997 237
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Division 5—Record-keeping requirements
304 Associate
A reference in this Division to an associate of a carrier, carriage
service provider or number-database operator is a reference to:
(a) an employee of the carrier, provider or operator; or
(b) a person (other than an employee) who performs services for
or on behalf of the carrier, provider or operator; or
(c) an employee of a person covered by paragraph (b).
305 Authorisations under the Telecommunications (Interception and
Access) Act 1979
(1) This section applies if:
(a) a carrier, carriage service provider or number-database
operator; or
(b) an associate of a carrier, carriage service provider or
number-database operator;
is notified of an authorisation made under Division 4 or 4A of
Part 4-1 of the Telecommunications (Interception and Access) Act
1979.
Note: Section 184 of the Telecommunications (Interception and Access) Act
1979 deals with notification of such authorisations.
(2) The carrier, carriage service provider or number-database operator
must retain the notification for 3 years.
306 Record of disclosures—general
(1) This section applies if:
(a) an eligible person or an eligible number-database person
discloses information or a document; and
(b) the disclosure is authorised by:
(i) a provision of Division 3 (other than section 279, 285,
285A, 290, 291 or 291A); or
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Section 306
238 Telecommunications Act 1997
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(ii) section 177, 178 or 179, subsection 180(3) or
section 180A of the Telecommunications (Interception
and Access) Act 1979.
(2) If the person is a carrier, carriage service provider or
number-database operator, the carrier, provider or operator must:
(a) make a record of the disclosure as soon as practicable after
the disclosure and, in any event, within 5 days after the
disclosure; and
(b) retain that record for 3 years.
(3) If the person is an associate of a carrier, carriage service provider
or number-database operator, the person must:
(a) make a record of the disclosure as soon as practicable after
the disclosure and, in any event, within 5 days after the
disclosure; and
(b) give a copy of that record to the carrier, provider or operator
within 5 days after the making of the record.
(4) If a copy of a record is given to a carrier, carriage service provider
or number-database operator under subsection (3), the carrier,
provider or operator must retain that copy for 3 years.
(5) A record made under subsection (2) or (3) must set out:
(a) the name of the person who disclosed the information or
document concerned; and
(b) the date of the disclosure; and
(c) a statement of the grounds for the disclosure; and
(d) if the disclosure is made on the grounds of an authorisation
under the Telecommunications (Interception and Access) Act
1979:
(i) the name of the person who made the authorisation; and
(ii) the date of the making of the authorisation; and
(e) if paragraph (d) does not apply and the disclosure was at the
request of another body or person:
(i) the name of the body or person; and
(ii) the date of the request; and
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Section 306A
Telecommunications Act 1997 239
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(f) if the information or document relates to the contents or
substance of a communication that was carried by means of a
carriage service—particulars of that carriage service.
(6) A record, or a copy of a record, may be made, given or retained
under this section:
(a) in written form; or
(b) in electronic form.
(7) A person who contravenes this section commits an offence
punishable on conviction by a fine not exceeding 300 penalty units.
Note: See also sections 4AA and 4B of the Crimes Act 1914.
306A Record of disclosures—prospective authorisation under the
Telecommunications (Interception and Access) Act 1979
(1) This section applies if:
(a) an eligible person or an eligible number-database person
discloses information or a document; and
(b) the disclosure or disclosures are authorised by an
authorisation under section 180 or 180B of the
Telecommunications (Interception and Access) Act 1979 (in
so far as the authorisation is of a kind referred to in
subsection 180(2) or 180B(2) of that Act).
(2) If the person is a carrier, carriage service provider or
number-database operator, the carrier, provider or operator must:
(a) make a record of the disclosure or disclosures as soon as
practicable after the day on which the authorisation ceases to
be in force and, in any event, within 5 days after that day;
and
(b) retain that record for 3 years.
(3) If the person is an associate of a carrier, carriage service provider
or number-database operator, the person must:
(a) make a record of the disclosure or disclosures as soon as
practicable after the day on which the authorisation ceases to
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240 Telecommunications Act 1997
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be in force and, in any event, within 5 days after that day;
and
(b) give a copy of that record to the carrier, provider or operator
within 5 days after the making of the record.
(4) If a copy of a record is given to a carrier, carriage service provider
or number-database operator under subsection (3), the carrier,
provider or operator must retain that copy for 3 years.
(5) A record made under subsection (2) or (3) must set out:
(a) the name of the person or persons who made the disclosure
or disclosures; and
(b) one of the following:
(i) if only 1 disclosure is made because of the
authorisation—the date of the disclosure;
(ii) if more than 1 disclosure is made because of the
authorisation—the date of the first disclosure and the
date of the last disclosure; and
(c) a statement of the grounds for the disclosure or disclosures;
and
(d) the name of the person who made the authorisation and the
date of the making of the authorisation.
(6) A record, or a copy of a record, may be made, given or retained
under this section:
(a) in written form; or
(b) in electronic form.
(7) A person who contravenes this section commits an offence
punishable on conviction by a fine not exceeding 300 penalty units.
Note: See also sections 4AA and 4B of the Crimes Act 1914.
307 Incorrect records
(1) A person must not, in purported compliance with section 306 or
306A, make a record of any matter or thing in such a way that it
does not correctly record the matter or thing.
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Record-keeping requirements Division 5
Section 308
Telecommunications Act 1997 241
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(2) A person who contravenes subsection (1) commits an offence
punishable on conviction by imprisonment for a term not
exceeding 6 months.
Note: See also sections 4AA and 4B of the Crimes Act 1914.
308 Annual reports to the ACMA by carriers, carriage service
providers or number-database operators
(1) If:
(a) information or a document is disclosed during a financial
year; and
(b) either:
(i) under section 306 or 306A, a carrier, carriage service
provider or number-database operator makes a record of
the disclosure; or
(ii) under section 306 or 306A, a carrier, carriage service
provider or number-database operator is given a copy of
a record of the disclosure;
the carrier, carriage service provider or number-database operator
must, within 2 months after the end of the financial year, give the
ACMA a written report relating to the disclosure.
(2) The report must set out such information about the disclosure as
the ACMA requires.
309 Monitoring by the Information Commissioner
(1) In addition to the functions conferred on the Information
Commissioner by the Privacy Act 1988, the Information
Commissioner has the function of monitoring compliance with this
Division.
(1A) The function conferred on the Information Commissioner by
subsection (1) is a privacy function for the purposes of the
Australian Information Commissioner Act 2010.
(2) In particular, the function conferred on the Information
Commissioner by subsection (1) includes monitoring:
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(a) whether a record made under section 306 or 306A sets out a
statement of the grounds for a disclosure; and
(b) whether that statement is covered by Division 3 of this Part
or Chapter 4 of the Telecommunications (Interception and
Access) Act 1979 (which deal with exceptions).
(3) A carrier, carriage service provider or number-database operator
must give the Information Commissioner such access to the
records of the carrier, provider or operator as the Information
Commissioner reasonably requires for the purposes of the
performance of the function conferred by subsection (1).
(4) The Information Commissioner may give the Minister a written
report about any matters arising out of the performance of the
function conferred by subsection (1).
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Instrument-making powers not limited Division 6
Section 310
Telecommunications Act 1997 243
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Division 6—Instrument-making powers not limited
310 Instrument-making powers not limited
(1) This Part does not, by implication, limit a power conferred by or
under this Act to make an instrument.
(2) This Part does not, by implication, limit the matters that may be
dealt with by codes or standards referred to in Part 6.
(3) This section does not, by implication, limit subsection 33(3B) of
the Acts Interpretation Act 1901.
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Part 14 National interest matters
Section 311
244 Telecommunications Act 1997
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Part 14—National interest matters
311 Simplified outline
The following is a simplified outline of this Part:
• The ACMA, carriers and carriage service providers must do
their best to prevent telecommunications networks and
facilities from being used to commit offences.
• The ACMA, carriers and carriage service providers must give
the authorities such help as is reasonably necessary for the
purposes of:
(a) enforcing the criminal law and laws imposing
pecuniary penalties; and
(b) protecting the public revenue; and
(c) safeguarding national security.
• A carriage service provider may suspend the supply of a
carriage service in an emergency if requested to do so by a
senior police officer.
312 ACMA’s obligations
(1) The ACMA must, in performing its telecommunications functions
or exercising its telecommunications powers, do its best to prevent:
(a) telecommunications networks; and
(b) facilities;
from being used in, or in relation to, the commission of offences
against the laws of the Commonwealth and of the States and
Territories.
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Section 313
Telecommunications Act 1997 245
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(2) The ACMA must, in performing its telecommunications functions
or exercising its telecommunications powers, give officers and
authorities of the Commonwealth and of the States and Territories
such help as is reasonably necessary for the following purposes:
(a) enforcing the criminal law and laws imposing pecuniary
penalties;
(b) protecting the public revenue;
(c) safeguarding national security.
(3) The ACMA is not liable to an action or other proceeding for
damages for or in relation to an act done or omitted in good faith in
performance of the duty imposed by subsection (1) or (2).
(4) An officer, employee or agent of the ACMA is not liable to an
action or other proceeding for damages for or in relation to an act
done or omitted in good faith in connection with an act done or
omitted by the ACMA as mentioned in subsection (3).
313 Obligations of carriers and carriage service providers
(1) A carrier or carriage service provider must, in connection with:
(a) the operation by the carrier or provider of
telecommunications networks or facilities; or
(b) the supply by the carrier or provider of carriage services;
do the carrier’s best or the provider’s best to prevent
telecommunications networks and facilities from being used in, or
in relation to, the commission of offences against the laws of the
Commonwealth or of the States and Territories.
(2) A carriage service intermediary must do the intermediary’s best to
prevent telecommunications networks and facilities from being
used in, or in relation to, the commission of offences against the
laws of the Commonwealth or of the States and Territories.
(3) A carrier or carriage service provider must, in connection with:
(a) the operation by the carrier or provider of
telecommunications networks or facilities; or
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246 Telecommunications Act 1997
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(b) the supply by the carrier or provider of carriage services;
give officers and authorities of the Commonwealth and of the
States and Territories such help as is reasonably necessary for the
following purposes:
(c) enforcing the criminal law and laws imposing pecuniary
penalties;
(ca) assisting the enforcement of the criminal laws in force in a
foreign country;
(d) protecting the public revenue;
(e) safeguarding national security.
Note: Section 314 deals with the terms and conditions on which such help is
to be provided.
(4) A carriage service intermediary who arranges for the supply by a
carriage service provider of carriage services must, in connection
with:
(a) the operation by the provider of telecommunications
networks or facilities; or
(b) the supply by the provider of carriage services;
give officers and authorities of the Commonwealth and of the
States and Territories such help as is reasonably necessary for the
following purposes:
(c) enforcing the criminal law and laws imposing pecuniary
penalties;
(ca) assisting the enforcement of the criminal laws in force in a
foreign country;
(d) protecting the public revenue;
(e) safeguarding national security.
Note: Section 314 deals with the terms and conditions on which such help is
to be provided.
(5) A carrier or carriage service provider is not liable to an action or
other proceeding for damages for or in relation to an act done or
omitted in good faith:
(a) in performance of the duty imposed by subsection (1), (2),
(3) or (4); or
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Telecommunications Act 1997 247
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(b) in compliance with a direction that the ACMA gives in good
faith in performance of its duties under section 312.
(6) An officer, employee or agent of a carrier or of a carriage service
provider is not liable to an action or other proceeding for damages
for or in relation to an act done or omitted in good faith in
connection with an act done or omitted by the carrier or provider as
mentioned in subsection (5).
(7) A reference in this section to giving help includes a reference to
giving help by way of:
(a) the provision of interception services, including services in
executing an interception warrant under the
Telecommunications (Interception and Access) Act 1979; or
(b) giving effect to a stored communications warrant under that
Act; or
(c) providing relevant information about:
(i) any communication that is lawfully intercepted under
such an interception warrant; or
(ii) any communication that is lawfully accessed under such
a stored communications warrant; or
(ca) complying with a domestic preservation notice or a foreign
preservation notice that is in force under Part 3-1A of that
Act; or
(d) giving effect to authorisations under Division 3 or 4 of
Part 4-1 of that Act; or
(e) disclosing information or a document in accordance with
section 280 of this Act.
Note: Additional obligations concerning interception capability and delivery
capability are, or may be, imposed on a carrier or carriage service
provider under Chapter 5 of the Telecommunications (Interception
and Access) Act 1979.
314 Terms and conditions on which help is to be given
(1) This section applies if a person is required to give help to an officer
or authority of the Commonwealth, a State or a Territory as
mentioned in subsection 313(3) or (4).
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(2) The person must comply with the requirement on the basis that the
person neither profits from, nor bears the costs of, giving that help.
(3) The person must comply with the requirement on such terms and
conditions as are:
(a) agreed between the following parties:
(i) the person;
(ii) the Commonwealth, the State or the Territory, as the
case may be; or
(b) failing agreement, determined by an arbitrator appointed by
the parties.
If the parties fail to agree on the appointment of an arbitrator, the
ACMA is to appoint the arbitrator.
(4) An arbitrator appointed by the ACMA under subsection (3) must
be a person specified in a written determination made by the
Minister.
Note: A person may be specified by name, by inclusion in a specified class
or in any other way.
(5) Before making a determination under subsection (4), the Minister
must consult the Attorney-General.
(6) If an arbitration under this section is conducted by an arbitrator
appointed by the ACMA, the cost of the arbitration must be
apportioned equally between the parties.
(7) The regulations may make provision for and in relation to the
conduct of an arbitration under this section.
(8) This section does not apply in relation to the obligation of carriers
or carriage service providers under Part 5-1A, 5-3 or 5-5 of the
Telecommunications (Interception and Access) Act 1979 (about
data retention, interception capability and delivery capability).
Note: Part 5-6 of the Telecommunications (Interception and Access) Act
1979 contains provisions about the allocation of costs in relation to
interception capability and delivery capability.
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Section 315
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315 Suspension of supply of carriage service in an emergency
(1) If a senior officer of a police force or service has reasonable
grounds to believe that:
(a) an individual has access to a particular carriage service; and
(b) the individual has:
(i) done an act that has resulted, or is likely to result, in loss
of life or in the infliction of serious personal injury; or
(ii) made an imminent threat to kill, or seriously injure,
another person; or
(iii) made an imminent threat to cause serious damage to
property; or
(iv) made an imminent threat to take the individual’s own
life; or
(v) made an imminent threat to do an act that will, or is
likely to, endanger the individual’s own life or create a
serious threat to the individual’s health or safety; and
(c) the suspension of the supply of the carriage service is
reasonably necessary to:
(i) prevent a recurrence of the act mentioned in
subparagraph (b)(i); or
(ii) prevent or reduce the likelihood of the carrying out of a
threat mentioned in subparagraph (b)(ii), (iii), (iv) or
(v);
the officer may request a carriage service provider to suspend the
supply of the carriage service.
(2) The carriage service provider may comply with the request.
(3) This section does not, by implication, limit any other powers that
the provider may have to suspend the supply of the carriage
service.
(3A) The provider is not liable to an action or other proceeding for
damages for or in relation to an act done or omitted in good faith in
compliance with the request.
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250 Telecommunications Act 1997
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(3B) An officer, employee or agent of the provider is not liable to an
action or other proceeding for damages for or in relation to an act
done or omitted in good faith in connection with an act done or
omitted by the provider as mentioned in subsection (3A).
(4) In this section:
senior officer, in relation to a police force or service, means a
commissioned officer of the force or service who holds a rank not
lower than the rank of Assistant Commissioner.
316 Generality of Part not limited
Nothing in this Part limits the generality of anything else in it.
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Defence requirements and disaster plans Part 16
Introduction Division 1
Section 333
Telecommunications Act 1997 251
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Part 16—Defence requirements and disaster plans
Division 1—Introduction
333 Simplified outline
The following is a simplified outline of this Part:
• A carriage service provider may be required to supply a
carriage service for defence purposes or for the management
of natural disasters.
• A carrier or carriage service provider may be required to enter
into an agreement with the Commonwealth about:
(a) planning for network survivability; or
(b) operational requirements in times of crisis.
• A carrier licence condition or a service provider rule may deal
with compliance with a disaster plan.
334 Defence authority
For the purposes of this Part, a defence authority is:
(a) the Secretary of the Defence Department; or
(b) the Chief of the Defence Force.
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Section 335
252 Telecommunications Act 1997
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Division 2—Supply of carriage services
335 Requirement to supply carriage services for defence purposes or
for the management of natural disasters
(1) A defence authority may give a carriage service provider a written
notice requiring the provider to supply a specified carriage service
for the use of:
(a) the Defence Department; or
(b) the Defence Force.
(2) A defence authority must not issue a notice about a carriage service
unless the service is required for:
(a) defence purposes; or
(b) for the purposes of the management of natural disasters;
or both.
(3) A notice issued by a defence authority requiring a carriage service
provider to supply a carriage service in particular circumstances is
of no effect if there is in force a written certificate issued by the
ACMA stating that, in the ACMA’s opinion, it would be
unreasonable for the provider to be required to supply the service
in those circumstances.
(4) If a requirement is in force, the provider must supply the carriage
service in accordance with the requirement and on such terms and
conditions as are:
(a) agreed between the provider and the defence authority; or
(b) failing agreement, determined by an arbitrator appointed by
the parties.
If the parties cannot agree on the appointment of an arbitrator, the
ACCC is to be the arbitrator.
(5) The regulations may make provision for and in relation to the
conduct of an arbitration under this section.
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Supply of carriage services Division 2
Section 335
Telecommunications Act 1997 253
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(6) The regulations may provide that, for the purposes of a particular
arbitration conducted by the ACCC under this section, the ACCC
may be constituted by a single member, or a specified number of
members, of the ACCC. For each such arbitration, that member or
those members are to be nominated in writing by the Chairperson
of the ACCC.
(7) Subsection (6) does not, by implication, limit subsection (5).
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Division 3 Defence planning
Section 336
254 Telecommunications Act 1997
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Division 3—Defence planning
336 Definitions
In this Division:
certified agreement has the meaning given by section 338.
crisis means:
(a) war, war-like conflict or war-like operations; or
(b) civil disturbance; or
(c) terrorism; or
(d) earthquakes, floods, fire, cyclones, storms or other disasters
(whether natural or resulting from the acts or omissions of
humans).
draft agreement means a draft agreement prepared under
section 337.
network survivability means the ability of a telecommunications
network, or of a facility, to continue to function in times of crisis.
337 Preparation of draft agreement
(1) A defence authority may prepare a draft agreement to be entered
into by the defence authority (on behalf of the Commonwealth)
and:
(a) a carrier; or
(b) a carriage service provider.
(2) The agreement must be about:
(a) planning for network survivability; or
(b) operational requirements in times of crisis;
or both.
(3) In preparing the draft agreement, the defence authority must
consult the carrier or provider concerned.
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Section 338
Telecommunications Act 1997 255
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338 ACMA’s certification of draft agreement
(1) The ACMA may certify a draft agreement if the ACMA is of the
opinion that the draft agreement is reasonable.
(2) On being certified, the draft agreement becomes a certified
agreement.
(3) In deciding whether to certify a draft agreement, the ACMA must
have regard to whether the draft agreement deals with the
following matters in a reasonable way:
(a) consultation with a defence authority about maintenance,
installation, modification and removal of telecommunications
networks or facilities;
(b) consultation with a defence authority about operational
arrangements in times of crisis;
(c) the protection of confidential information, including
restrictions on the uses to which such information may be
put;
(d) grants of financial assistance (including conditional grants)
by the Commonwealth for purposes relating to:
(i) network survivability; or
(ii) operational requirements in times of crisis;
or both.
(4) For the purposes of this section, in determining whether a
particular matter is reasonable, the ACMA must have regard to:
(a) the needs of the Defence Department and of the Defence
Force; and
(b) the interests of the carrier or carriage service provider
concerned.
This subsection does not, by implication, limit the meaning of the
expression “reasonable”.
(5) In deciding whether to certify a draft agreement, the ACMA must
consult the parties to the agreement.
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Section 339
256 Telecommunications Act 1997
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(6) As soon as practicable after deciding whether to certify a draft
agreement, the ACMA must give each of the parties to the
agreement a written notice setting out its decision.
339 Requirement to enter into certified agreement
(1) This section applies if the ACMA has certified a draft agreement
relating to a carrier or carriage service provider.
(2) A defence authority may give:
(a) the carrier; or
(b) the carriage service provider;
as the case requires, a written notice requiring the carrier or
provider to enter into the agreement within 30 days after receiving
the notice.
(3) The carrier or provider must comply with the notice.
340 Compliance with agreement
If:
(a) a carrier; or
(b) a carriage service provider;
has entered into a certified agreement, the carrier or provider, as
the case requires, must comply with the agreement, so long as the
agreement remains in force.
341 Withdrawal of certification of agreement
(1) This section applies if:
(a) a certified agreement is in force at a particular time; and
(b) the ACMA is of the opinion that, if the agreement were a
draft agreement at that time, the ACMA would have refused
to certify it.
(2) The ACMA must withdraw its certification of the agreement.
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Section 342
Telecommunications Act 1997 257
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(3) As soon as practicable after withdrawing its certification of the
agreement, the ACMA must give each of the parties to the
agreement a written notice stating that it has withdrawn its
certification of the agreement.
342 Duration of agreement
(1) If a certified agreement has been entered into, it remains in force
until it is revoked under this section.
(2) A certified agreement is revoked if the parties enter into a fresh
certified agreement that is expressed to replace the original
agreement.
(3) If the ACMA withdraws its certification of a certified agreement,
the agreement is revoked 60 days after the withdrawal.
343 Variation of agreement
(1) This section applies if a certified agreement is in force.
(2) A defence authority may prepare a draft variation of the agreement.
(3) In preparing the draft variation, the defence authority must consult
the carrier or carriage service provider concerned.
(4) If:
(a) a defence authority has prepared a draft variation of a
certified agreement; and
(b) the ACMA is of the opinion that, if the agreement, as
proposed to be varied, were a draft agreement, the ACMA
would certify the agreement;
the ACMA must certify the variation.
(5) Before forming an opinion referred to in paragraph (4)(b) about an
agreement, the ACMA must consult the parties to the agreement.
(6) After deciding whether to certify a draft variation of a certified
agreement, the ACMA must give each of the parties to the
agreement a written notice setting out its decision.
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Section 343
258 Telecommunications Act 1997
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(7) If the ACMA certifies a draft variation of a certified agreement, the
agreement is varied accordingly.
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Defence requirements and disaster plans Part 16
Disaster plans Division 4
Section 344
Telecommunications Act 1997 259
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Division 4—Disaster plans
344 Designated disaster plans
For the purposes of this Division, a designated disaster plan is a
plan that:
(a) is for coping with disasters and/or civil emergencies; and
(b) is prepared by the Commonwealth, a State or a Territory.
345 Carrier licence conditions about designated disaster plans
(1) An instrument under section 63 imposing conditions on a carrier
licence held by a carrier may make provision for and in relation to
compliance by the carrier with one or more specified designated
disaster plans.
(2) Subsection (1) does not, by implication, limit section 63.
346 Service provider determinations about designated disaster plans
(1) Service provider determinations under section 99 may make
provision for and in relation to compliance by one or more
specified carriage service providers with one or more specified
designated disaster plans.
(2) Subsection (1) does not, by implication, limit section 99.
346A Carrier and carriage service provider immunity
(1) A carrier or carriage service provider is not liable to an action or
other proceeding for damages for or in relation to an act done or
omitted in good faith in compliance with a designated disaster plan
covered by subsection 345(1) or 346(1), as the case may be.
(2) An officer, employee or agent of a carrier or of a carriage service
provider is not liable to an action or other proceeding for damages
for or in relation to an act done or omitted in good faith in
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Section 346A
260 Telecommunications Act 1997
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connection with an act done or omitted by the carrier or provider as
mentioned in subsection (1).
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Defence requirements and disaster plans Part 16
Delegation Division 5
Section 347
Telecommunications Act 1997 261
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Division 5—Delegation
347 Delegation
(1) The Secretary of the Defence Department may, by writing,
delegate to an SES employee or acting SES employee in that
Department any or all of the Secretary’s powers under this Part.
(2) The Chief of the Defence Force may, by writing, delegate to a
member of the Defence Force holding a senior rank any or all of
the powers conferred on the Chief of the Defence Force by this
Part.
(3) In this section:
senior rank means a rank not lower than:
(a) in the case of the Royal Australian Navy—the rank of
Commodore; or
(b) in the case of the Australian Army—the rank of Brigadier; or
(c) in the case of the Royal Australian Air Force—the rank of
Air Commodore.
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Part 17 Pre-selection in favour of carriage service providers
Section 348
262 Telecommunications Act 1997
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Part 17—Pre-selection in favour of carriage service
providers
348 Simplified outline
The following is a simplified outline of this Part:
• The ACMA may require certain carriers and carriage service
providers to provide pre-selection in favour of carriage service
providers in relation to calls made using a standard telephone
service.
• The ACMA must require certain carriers and carriage service
providers to provide pre-selection in favour of carriage service
providers in relation to calls made using a declared carriage
service.
• Pre-selection must include over-ride dial codes for selecting
alternative carriage service providers on a call-by-call basis.
349 Requirement to provide pre-selection
(1) The ACMA may make a written determination requiring each
carrier or carriage service provider who supplies an eligible
standard telephone service to:
(a) provide pre-selection in favour of a specified carriage service
provider, in relation to calls made using an eligible standard
telephone service, in the manner specified in the
determination; and
(b) comply with such ancillary or incidental rules (if any) as are
set out in the determination.
(2) The ACMA must make a written determination requiring each
carrier or carriage service provider who supplies a specified
declared carriage service to:
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Section 349
Telecommunications Act 1997 263
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(a) provide pre-selection in favour of a specified carriage service
provider, in relation to calls made using the carriage service,
in the manner specified in the determination; and
(b) comply with such ancillary or incidental rules (if any) as are
set out in the determination.
Note: Declared carriage service is defined by section 350A.
(3) In making a determination under subsection (1) or (2), the ACMA
must have regard to:
(a) the technical feasibility of complying with the requirement
concerned; and
(b) the costs and benefits of complying with the requirement
concerned.
(4) Subsection (3) does not, by implication, limit the matters to which
regard may be had.
(5) A reference in this section to a standard telephone service does not
include a reference to a service that is supplied by means of a
public mobile telecommunications service.
(5A) A reference in this section to a standard telephone service does not
include a reference to a service that:
(a) is supplied using:
(i) a designated radiocommunications facility owned or
operated by a carrier or carriage service provider; and
(ii) a line that runs directly between the facility and the
premises occupied or used by an end-user; and
(b) if an instrument is in force under subsection (5B)—satisfies
the conditions set out in the instrument.
(5B) The Minister may, by legislative instrument, set out conditions for
the purposes of paragraph (5A)(b).
(6) Before making a determination under this section, the ACMA must
consult the ACCC.
(7) In making a determination under this section, the ACMA may
apply, adopt or incorporate (with or without modification) any
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matter contained in a code or standard proposed or approved by a
body or association, either:
(a) as in force or existing at a particular time; or
(b) as in force or existing from time to time.
This subsection does not, by implication, limit section 589.
(8) A determination under this section is a legislative instrument.
(9) The ACMA must take all reasonable steps to ensure that a
determination is in force under subsection (1) at all times before
the start of the designated day (within the meaning of
section 577A).
Eligible standard telephone service
(10) For the purposes of this section, eligible standard telephone
service means a standard telephone service that is supplied using a
local access line (other than an exempt line) to premises occupied
or used by an end-user, where:
(a) the local access line forms part of the infrastructure of:
(i) a public switched telephone network (other than a
designated network) that was in existence immediately
before the commencement of this subsection (even if it
is subsequently extended); or
(ii) an integrated services digital network (other than a
designated network) that was in existence immediately
before the commencement of this subsection (even if it
is subsequently extended); or
(iii) a telecommunications network specified in an
instrument in force under subsection (11); or
(b) the following conditions are satisfied:
(i) the service is a public switched telephone service
supplied by a carriage service provider;
(ii) the local access line is part of the infrastructure of a
designated network (other than a hybrid fibre-coaxial
network);
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(iii) the carriage service provider is in a position to exercise
control over the designated network;
(iv) such other conditions (if any) as are set out in an
instrument in force under subsection (11A); or
(c) the following conditions are satisfied:
(i) the service is an integrated services digital service
supplied by a carriage service provider;
(ii) the local access line is part of the infrastructure of a
designated network (other than a hybrid fibre-coaxial
network);
(iii) the carriage service provider is in a position to exercise
control over the designated network;
(iv) such other conditions (if any) as are set out in an
instrument in force under subsection (11B); or
(d) the following conditions are satisfied:
(i) the service is a PSTN pass-through service supplied in
conjunction with a telecommunications network
covered by paragraph (b) of the definition of optical
fibre network in subsection (16);
(ii) such other conditions (if any) as are set out in an
instrument in force under subsection (11C).
(11) The Minister may, by legislative instrument, specify a
telecommunications network for the purposes of
subparagraph (10)(a)(iii).
(11A) The Minister may, by legislative instrument, set out one or more
conditions for the purposes of subparagraph (10)(b)(iv).
(11B) The Minister may, by legislative instrument, set out one or more
conditions for the purposes of subparagraph (10)(c)(iv).
(11C) The Minister may, by legislative instrument, set out one or more
conditions for the purposes of subparagraph (10)(d)(ii).
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Exempt line
(12) For the purposes of this section, exempt line means a line specified
in an instrument in force under subsection (13).
(13) The Minister may, by legislative instrument, specify a line for the
purposes of subsection (12).
Designated network
(14) For the purposes of this section, designated network means:
(a) an optical fibre network; or
(b) a hybrid fibre-coaxial network; or
(c) a telecommunications network specified in an instrument in
force under subsection (15).
(15) The Minister may, by legislative instrument, specify a
telecommunications network for the purposes of paragraph (14)(c).
(15A) For the purposes of this section:
(a) the question of whether a carriage service provider is in a
position to exercise control over a designated network is to
be determined under Division 7 of Part 33; and
(b) in determining that question for a carriage service provider
other than Telstra, that Division applies in relation to the
carriage service provider in a corresponding way to the way
in which that Division applies in relation to Telstra.
Review of determination
(15B) The ACMA must:
(a) conduct a review of whether a determination in force under
subsection (1) of this section should be varied or revoked;
and
(b) do so at least 2 months before the start of the designated day
(within the meaning of section 577A).
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Definitions
(16) In this section:
integrated services digital network has the meaning generally
accepted within the telecommunications industry immediately
before the commencement of this subsection.
integrated services digital service has the meaning generally
accepted within the telecommunications industry immediately
before the commencement of this subsection.
local access line has the same meaning as in section 141D.
non-optical-fibre cable means a line other than an optical fibre
line.
optical fibre network means:
(a) a telecommunications network the line component of which
consists of optical fibre lines; or
(b) a telecommunications network the line component of which
consists of optical fibre lines to connecting nodes,
supplemented by either or both of the following:
(i) non-optical-fibre cable connections from the nodes to
premises occupied or used by end-users;
(ii) non-optical-fibre cable connections from the nodes to
main distribution frames, and non-optical-fibre cable
connections from main distribution frames to premises
occupied or used by end-users.
PSTN pass-through service has the meaning generally accepted
within the telecommunications industry immediately before the
commencement of this subsection.
public switched telephone network has the meaning generally
accepted within the telecommunications industry immediately
before the commencement of this subsection.
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public switched telephone service has the meaning generally
accepted within the telecommunications industry immediately
before the commencement of this subsection.
350 When pre-selection is provided in favour of a carriage service
provider
(1) For the purposes of this Part, a determination requires a carrier to
provide pre-selection in favour of a carriage service provider in
relation to calls made using a particular carriage service if, and
only if, the determination requires:
(a) the controlled networks and controlled facilities of the carrier
to permit an end-user to:
(i) pre-select the carriage service provider as the end-user’s
preferred carriage service provider for such of the
end-user’s requirements, in relation to calls made using
that carriage service, as are specified in the
determination; and
(ii) change that selection from time to time; and
(c) the controlled networks and controlled facilities of the carrier
to provide over-ride dial codes for selecting alternative
carriage service providers, in relation to calls made using that
carriage service, on a call-by-call basis.
Note: End-user is defined by subsection (3).
(2) For the purposes of this Part, a determination requires a carriage
service provider (the first provider) to provide pre-selection in
favour of another carriage service provider (the second provider)
in relation to calls made using a particular carriage service if, and
only if, the determination requires:
(a) the controlled networks and controlled facilities of the first
provider to permit an end-user to:
(i) pre-select the second provider as the end-user’s
preferred carriage service provider for such of the
end-user’s requirements, in relation to calls made using
that carriage service, as are specified in the
determination; and
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(ii) change that selection from time to time; and
(c) the controlled networks and controlled facilities of the first
provider to provide over-ride dial codes for selecting
alternative carriage service providers, in relation to calls
made using that carriage service, on a call-by-call basis.
Note: End-user is defined by subsection (3).
(3) For the purposes of this section, an end-user, in relation to a
controlled network or a controlled facility, is an end-user of a
carriage service that involves the use of the network or facility.
(4) Each of the following is an example of an end-user’s requirements:
(a) the end-user’s requirements relating to domestic
long-distance calls;
(b) the end-user’s requirements relating to international calls.
350A Declared carriage services
(1) The ACCC may, by written instrument, declare that a specified
carriage service is a declared carriage service for the purposes of
this Part.
(2) The declaration has effect accordingly.
(3) In deciding whether to make a declaration under this section, the
ACCC must have regard to whether the declaration will promote
the long-term interests of end-users of:
(a) carriage services; or
(b) services supplied by means of carriage services.
(4) The ACCC may have regard to any other matters that it thinks are
relevant.
(5) For the purposes of this section, the question whether a particular
thing promotes the long-term interests of end-users of:
(a) carriage services; or
(b) services supplied by means of carriage services;
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is to be determined in the same manner in which that question is
determined for the purposes of Part XIC of the Competition and
Consumer Act 2010.
Note: See section 152AB of the Competition and Consumer Act 2010.
351 Pre-selection to be provided
(1) This section applies to a person if a determination under
section 349 is in force and that determination requires the person to
provide pre-selection.
(2) A person must provide pre-selection in accordance with the
requirements set out in the determination and on such terms and
conditions as are:
(a) agreed between the following parties:
(i) the person;
(ii) the carriage service provider in whose favour
pre-selection is required to be provided; or
(b) failing agreement, determined by an arbitrator appointed by
the parties.
If the parties fail to agree on the appointment of an arbitrator, the
ACCC is to be the arbitrator.
(3) The regulations may make provision for and in relation to the
conduct of an arbitration under this section.
(4) The regulations may provide that, for the purposes of a particular
arbitration conducted by the ACCC under this section, the ACCC
may be constituted by a single member, or a specified number of
members, of the ACCC. For each such arbitration, that member or
those members are to be nominated in writing by the Chairperson
of the ACCC.
(5) Subsection (4) does not, by implication, limit subsection (3).
(6) A person must comply with any rules set out in the determination
as mentioned in paragraph 349(1)(b) or (2)(b).
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352 Exemptions from requirement to provide pre-selection
(1) The ACMA may, by writing, declare that a specified carrier or
carriage service provider is exempt from a requirement imposed
under section 349. The declaration has effect accordingly.
Note: Carriers or providers may be specified by name, by inclusion in a
particular class or in any other way.
(2) In deciding whether a carrier or carriage service provider should be
exempt from a requirement imposed under section 349, the ACMA
must have regard to the following matters:
(a) whether it would be technically feasible for the carrier or
provider to comply with the requirement concerned;
(b) whether compliance with the requirement concerned would
impose unreasonable financial hardship on the carrier or
provider.
(3) Subsection (2) does not, by implication, limit the matters to which
the ACMA may have regard.
(4) Before making a declaration under this section, the ACMA must
consult the ACCC.
(5) The ACMA must publish a copy of a declaration under this section
on the ACMA’s website.
(6) A declaration under this section is not a legislative instrument if:
(a) the declaration specifies a carrier by name; or
(b) the declaration specifies a carriage service provider by name.
(7) A declaration under this section is a legislative instrument if:
(a) the declaration specifies a class of carriers; or
(b) the declaration specifies a class of carriage service providers.
353 Use of over-ride dial codes
(1) This section applies to a carriage service provider (the first
provider) if:
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(a) the first provider supplies a carriage service that involves the
use of a controlled network, or a controlled facility, of a
carrier, of the first provider or of another carriage service
provider; and
(b) in accordance with a determination under section 349, the
network or facility, as the case may be, provides over-ride
dial codes for selecting alternative carriage service providers
on a call-by-call basis.
(2) Unless, in the ACMA’s opinion:
(a) it would not be technically feasible; or
(b) it would impose unreasonable financial hardship on the first
provider;
the first provider must take such steps as are necessary to ensure
that each end-user of the carriage service is able to make use of
those codes for selecting alternative carriage service providers on a
call-by-call basis.
(3) The requirement in subsection (2) does not, by implication, prevent
an alternative carriage service provider from refusing to supply a
carriage service to the end-user concerned.
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Calling line identification Part 18
Section 354
Telecommunications Act 1997 273
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Part 18—Calling line identification
354 Simplified outline
The following is a simplified outline of this Part:
• Certain switching systems must be capable of providing
calling line identification.
355 Calling line identification
(1) This section applies to a person if:
(a) the person is a carrier or a carriage service provider; and
(b) a controlled facility of the person consists of:
(i) a switching system used in connection with the supply
of a standard telephone service; or
(ii) a switching system of a kind specified in a
determination under subsection (3); and
(c) either:
(i) the completion of the installation of the system occurred
on or after 1 July 1997; or
(ii) immediately before 1 July 1997, the system was capable
of providing calling line identification.
(2) The person must take all reasonable steps to ensure that the system
is capable of providing calling line identification.
(3) The ACMA may, by legislative instrument, make a determination
for the purposes of subparagraph (1)(b)(ii).
356 Exemptions from calling line identification requirement
(1) The ACMA may, by notice in the Gazette, declare that a specified
person is exempt from the requirement set out in section 355. The
declaration has effect accordingly.
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Note: A person may be identified by name, by inclusion in a particular class
or in any other way.
(2) In deciding whether a person should be exempt from the
requirement set out in section 355, the ACMA must have regard to
the following matters:
(a) whether it would be unreasonable to impose the requirement;
(b) whether it is in the public interest to impose the requirement.
(3) Subsection (2) does not, by implication, limit the matters to which
the ACMA may have regard.
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International aspects of activities of the telecommunications industry Part 20
Simplified outline Division 1
Section 364
Telecommunications Act 1997 275
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Part 20—International aspects of activities of the
telecommunications industry
Division 1—Simplified outline
364 Simplified outline
The following is a simplified outline of this Part:
• The Minister may give directions to the Signatories to the
INTELSAT Agreement and the Inmarsat Convention.
• Carriers and carriage service providers may be required to
comply with certain international conventions.
• The Minister may make Rules of Conduct about dealings with
international telecommunications operators.
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Division 2 Compliance with international agreements
Section 365
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Division 2—Compliance with international agreements
365 INTELSAT and Inmarsat—directions to Signatories
(1) This section applies to a person if:
(a) the person is:
(i) a carrier; or
(ii) a carriage service provider; and
(b) either:
(i) the person is a Signatory within the meaning of the
INTELSAT Agreement because the person has been
designated, by or on behalf of the Commonwealth and
in accordance with Article II(b) of that Agreement, to
sign the INTELSAT Operating Agreement; or
(ii) the person is a Signatory within the meaning of the
Convention on the International Maritime Satellite
Organisation (Inmarsat) because the person has been
designated, by or on behalf of the Commonwealth and
in accordance with Article 2(3) of that Convention, to
sign the Operating Agreement on the International
Maritime Satellite Organisation (Inmarsat).
(2) The Minister may give the person such written directions as the
Minister thinks necessary in relation to the person’s performance
of the person’s functions as a Signatory within the meaning of that
Agreement or Convention.
(3) The Minister must not give a direction under subsection (2) that
relates to the manner in which the person is to deal with a
particular customer.
(4) A person must comply with a direction under subsection (2).
366 Compliance with conventions
(1) This section applies to a person who is:
(a) a carrier; or
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(b) a carriage service provider.
(2) The Minister may, by notice published in the Gazette, declare that,
for the purposes of this section, a specified convention is binding in
relation to the members of a specified class of persons.
(3) A person who is a member of that class must, in connection with:
(a) the operation by the person of telecommunications networks
or of facilities; or
(b) the supply by the person of carriage services;
act in a way consistent with Australia’s obligations under that
convention.
(4) The Minister may, by notice published in the Gazette, declare that,
for the purposes of this section, a specified part of a specified
convention is binding in relation to the members of a specified
class of persons.
(5) A person who is a member of that class must, in connection with:
(a) the operation by the person of telecommunications networks
or of facilities; or
(b) the supply by the person of carriage services;
act in a way consistent with Australia’s obligations under that part
of the convention.
(6) In this section:
convention means:
(a) a convention to which Australia is a party; or
(b) an agreement or arrangement between Australia and a foreign
country;
and includes, for example, an agreement, arrangement or
understanding between a Minister and an official or authority of a
foreign country.
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Part 20 International aspects of activities of the telecommunications industry
Division 3 Rules of conduct about dealings with international telecommunications
operators
Section 367
278 Telecommunications Act 1997
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Division 3—Rules of conduct about dealings with
international telecommunications operators
367 Rules of conduct about dealings with international
telecommunications operators
(1) For the purposes of this section, an international
telecommunications operator engages in unacceptable conduct if,
and only if:
(a) the operator uses, in a manner that is, or is likely to be,
contrary to the national interest, the operator’s power in a
market for:
(i) carriage services; or
(ii) goods or services for use in connection with the supply
of carriage services; or
(iii) the installation of, maintenance of, operation of, or
provision of access to, telecommunications networks or
facilities; or
(b) the operator uses, in a manner that is, or is likely to be,
contrary to the national interest, any legal rights or legal
status that the operator has because of foreign laws that relate
to:
(i) carriage services; or
(ii) goods or services for use in connection with the supply
of carriage services; or
(iii) the installation of, maintenance of, operation of, or
provision of access to, telecommunications networks or
facilities; or
(c) the operator engages in any other conduct that is, or is likely
to be, contrary to the national interest.
(2) With a view to preventing, mitigating or remedying unacceptable
conduct engaged in by international telecommunications operators,
the Minister may, by written instrument, make Rules of Conduct:
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(a) prohibiting or regulating dealings by either or both of the
following:
(i) carriers;
(ii) carriage service providers;
with such operators and with other persons; or
(b) authorising the ACCC to make written determinations of a
legislative character, where the determination imposes
requirements, prohibitions or restrictions on either or both of
the following:
(i) carriers;
(ii) carriage service providers; or
(c) authorising the ACCC to give either or both of the following:
(i) carriers;
(ii) carriage service providers;
written directions of an administrative character, where the
direction imposes a requirement, prohibition or restriction on
the carrier or provider, as the case requires; or
(d) requiring:
(i) carriers; and
(ii) carriage service providers;
to comply with:
(iii) a determination mentioned in paragraph (b); or
(iv) a direction mentioned in paragraph (c); or
(e) authorising the ACCC to make information available to:
(i) the public; or
(ii) a specified class of persons; or
(iii) a specified person;
if, in the opinion of the ACCC, the disclosure of the
information:
(iv) would promote the fair and efficient operation of a
market; or
(v) would otherwise be in the national interest.
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Section 368
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(3) Before the ACCC makes a determination, or gives a direction,
under the Rules of Conduct, the ACCC must consult the ACMA.
(4) Rules of Conduct are legislative instruments.
(5) A determination mentioned in paragraph (2)(b) is a legislative
instrument.
(6) For the purposes of this section, if a person carries on activities
outside Australia that involve:
(a) the supply of a carriage service specified in
paragraph 16(1)(b) or (c); or
(b) the supply of goods or services for use in connection with the
supply of a carriage service specified in paragraph 16(1)(b)
or (c); or
(c) the installation of, maintenance of, operation of or provision
of access to:
(i) a telecommunications network; or
(ii) a facility;
where the network or facility is used to supply a carriage
service specified in paragraph 16(1)(b) or (c);
the person is an international telecommunications operator.
(7) In this section:
engaging in conduct has the same meaning as in the Competition
and Consumer Act 2010.
foreign law means a law of a place outside Australia.
international telecommunications operator has the meaning given
by subsection (6).
368 ACCC to administer Rules of Conduct
The ACCC has the general administration of the Rules of Conduct
in force under section 367.
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369 Rules of Conduct to bind carriers and carriage service providers
(1) This section applies to a person who is:
(a) a carrier; or
(b) a carriage service provider.
(2) The person must comply with Rules of Conduct in force under
section 367.
(3) If a provision of an agreement made by the person is inconsistent
with Rules of Conduct in force under section 367, the provision is
unenforceable (see section 370).
370 Unenforceability of agreements
(1) This section applies if an agreement, or a provision of an
agreement, is unenforceable because of section 369.
(2) A party to the agreement is not entitled, as against any other party:
(a) to enforce the agreement or provision, as the case may be,
whether directly or indirectly; or
(b) to rely on the agreement or provision, as the case may be,
whether directly or indirectly and whether by way of defence
or otherwise.
(3) A party (the first party) to the agreement is not entitled to recover
by any means (including, for example, set-off, a quasi-contractual
claim or a claim for a restitutionary remedy) any amount that
another party would have been liable to pay to the first party under
or in connection with the agreement or provision, as the case may
be, if this section had not been enacted.
371 Investigations by the ACCC
(1) This Act does not prevent the ACCC from carrying out an
investigation of a contravention of Rules of Conduct in force under
section 367.
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Section 372
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(2) If the ACCC begins an investigation of a contravention of the
Rules of Conduct, the ACCC must:
(a) notify the ACMA accordingly; and
(b) consult the ACMA about any significant developments that
occur in the course of that investigation.
372 Reviews of the operation of this Division
(1) The ACCC must review, and report each financial year to the
Minister on, the operation of this Division.
(2) The ACCC must give a report under subsection (1) to the Minister
as soon as practicable after the end of the financial year concerned.
(3) The ACCC must, if directed in writing to do so by the Minister,
review, and report to the Minister on, specified matters relating to
the operation of this Division.
(4) The ACCC must give a report under subsection (3) to the Minister
before the end of the period specified in the direction.
(5) The Minister must cause a copy of a report under this section to be
laid before each House of the Parliament within 15 sitting days of
that House after receiving the report.
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Deployment of optical fibre etc. Part 20A
Simplified outline Division 1
Section 372A
Telecommunications Act 1997 283
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Part 20A—Deployment of optical fibre etc.
Division 1—Simplified outline
372A Simplified outline
The following is a simplified outline of this Part:
• If a real estate development project is specified in a legislative
instrument made by the Minister, a person must not install a
line in the project area unless the line is an optical fibre line.
• A person must not install a fixed-line facility in the project
area for a real estate development project unless the facility is
a fibre-ready facility.
• The rule about the installation of a fixed-line facility does not
apply if NBN Co has issued a statement to the effect that
neither it nor any other NBN corporation has installed, is
installing, or proposes to install, optical fibre lines in the
project area.
• If the developer of a real estate development project is a
constitutional corporation, the developer must not, in the
course of carrying out the project, sell or lease a building lot
or building unit unless a fibre-ready facility is installed in
proximity to the lot or unit.
• The rule about selling or leasing a building lot or building unit
does not apply if NBN Co has issued a statement to the effect
that neither it nor any other NBN corporation has installed, is
installing, or proposes to install, optical fibre lines in the
project area.
• These rules are subject to any exemptions specified in a
legislative instrument made by the Minister.
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Division 1 Simplified outline
Section 372A
284 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
• A third party access regime applies to fixed-line facilities
owned or operated by a person other than a carrier.
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Deployment of optical fibre etc. Part 20A
Deployment of optical fibre lines Division 2
Section 372B
Telecommunications Act 1997 285
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Division 2—Deployment of optical fibre lines
372B Deployment of optical fibre lines to building lots
Scope
(1) This section applies to the installation of a line in the project area,
or any of the project areas, for a real estate development project if:
(a) the project involves the subdivision of one or more areas of
land into building lots; and
(b) the project is specified in, or ascertained in accordance with,
a legislative instrument made by the Minister; and
(c) the line is wholly or primarily used, or wholly or primarily
for use, to supply one or more carriage services to either or
both of the following:
(i) one or more end-users in one or more building units;
(ii) one or more prospective end-users in one or more
building units; and
(d) those building units have been, are being, are to be, or may
be, constructed on any of those building lots; and
(e) the line is not on the customer side of the boundary of a
telecommunications network; and
(f) the line is used, or for use, to supply a carriage service to the
public; and
(g) the installation occurs after the commencement of this
section.
Note 1: For real estate development project, see section 372Q.
Note 2: For subdivision of an area of land, see section 372R.
Note 3: For building lot, see section 372Q.
Note 4: For specification by class, see subsection 13(3) of the Legislation Act
2003.
Note 5: For building unit, see section 372S.
Note 6: For boundary of a telecommunications network, see section 22.
Note 7: For supply to the public, see section 372ZA.
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Division 2 Deployment of optical fibre lines
Section 372B
286 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Note 8: For exemption of certain projects, see section 372P.
Requirement
(2) A person must not install a line in the project area, or any of the
project areas, for a real estate development project, unless:
(a) the line is an optical fibre line; and
(b) the conditions (if any) specified in an instrument under
subsection (4) are satisfied.
Note: For exemptions, see section 372D.
Ancillary provisions
(3) For the purposes of paragraph (1)(c), it is immaterial whether the
end-users or prospective end-users are capable of being identified.
Conditions
(4) The Minister may, by legislative instrument, specify conditions for
the purposes of paragraph (2)(b).
Functions and powers
(5) An instrument under paragraph (1)(b) may confer functions or
powers on the ACMA.
Ancillary contraventions
(6) A person must not:
(a) aid, abet, counsel or procure a contravention of
subsection (2); or
(b) induce, whether by threats or promises or otherwise, a
contravention of subsection (2); or
(c) be in any way, directly or indirectly, knowingly concerned in,
or party to, a contravention of subsection (2); or
(d) conspire with others to effect a contravention of
subsection (2).
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Deployment of optical fibre lines Division 2
Section 372C
Telecommunications Act 1997 287
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Civil penalty provisions
(7) Subsections (2) and (6) are civil penalty provisions.
Note: Part 31 provides for pecuniary penalties for breaches of civil penalty
provisions.
372C Deployment of optical fibre lines to building units
Scope
(1) This section applies to the installation of a line in the project area,
or any of the project areas, for a real estate development project if:
(a) the project involves the construction of one or more building
units on one or more areas of land; and
(b) the project is specified in, or ascertained in accordance with,
a legislative instrument made by the Minister; and
(c) the line is wholly or primarily used, or wholly or primarily
for use, to supply one or more carriage services to either or
both of the following:
(i) one or more end-users in those building units;
(ii) one or more prospective end-users in those building
units; and
(d) the line is not on the customer side of the boundary of a
telecommunications network; and
(e) the line is used, or for use, to supply a carriage service to the
public; and
(f) the installation occurs after the commencement of this
section.
Note 1: For real estate development project, see section 372Q.
Note 2: For building unit, see section 372S.
Note 3: For specification by class, see subsection 13(3) of the Legislation Act
2003.
Note 4: For boundary of a telecommunications network, see section 22.
Note 5: For supply to the public, see section 372ZA.
Note 6: For exemption of certain projects, see section 372P.
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Division 2 Deployment of optical fibre lines
Section 372C
288 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Requirement
(2) A person must not install a line in the project area, or any of the
project areas, for a real estate development project, unless:
(a) the line is an optical fibre line; and
(b) the conditions (if any) specified in an instrument under
subsection (4) are satisfied.
Note: For exemptions, see section 372D.
Ancillary provisions
(3) For the purposes of paragraph (1)(c), it is immaterial whether the
end-users or prospective end-users are capable of being identified.
Conditions
(4) The Minister may, by legislative instrument, specify conditions for
the purposes of paragraph (2)(b).
Functions and powers
(5) An instrument under paragraph (1)(b) may confer functions or
powers on the ACMA.
Ancillary contraventions
(6) A person must not:
(a) aid, abet, counsel or procure a contravention of
subsection (2); or
(b) induce, whether by threats or promises or otherwise, a
contravention of subsection (2); or
(c) be in any way, directly or indirectly, knowingly concerned in,
or party to, a contravention of subsection (2); or
(d) conspire with others to effect a contravention of
subsection (2).
Civil penalty provisions
(7) Subsections (2) and (6) are civil penalty provisions.
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Deployment of optical fibre lines Division 2
Section 372D
Telecommunications Act 1997 289
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Note: Part 31 provides for pecuniary penalties for breaches of civil penalty
provisions.
372D Exemptions—Ministerial instrument
(1) The Minister may, by legislative instrument, exempt:
(a) conduct specified in the instrument; or
(b) conduct ascertained in accordance with the instrument;
from the scope of either or both of the following provisions:
(c) subsection 372B(2);
(d) subsection 372C(2).
(2) An exemption under subsection (1) may be unconditional or
subject to such conditions (if any) as are specified in the
exemption.
(3) An instrument under subsection (1) may confer functions or
powers on the ACMA.
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Part 20A Deployment of optical fibre etc.
Division 3 Installation of fibre-ready facilities
Section 372E
290 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Division 3—Installation of fibre-ready facilities
Subdivision A—Installation obligations
372E Installation of fibre-ready facilities—building lots
Scope
(1) This section applies to the installation of a fixed-line facility in the
project area, or any of the project areas, for a real estate
development project if:
(a) the project involves the subdivision of one or more areas of
land into building lots; and
(b) the installation occurs after the commencement of this
section; and
(c) sewerage services, electricity or water is, are, or will be,
supplied to those lots.
Note 1: For fixed-line facility, see section 372V.
Note 2: For real estate development project, see section 372Q.
Note 3: For subdivision of an area of land, see section 372R.
Note 4: For building lot, see section 372Q.
Note 5: For supply of sewerage services, electricity or water, see
section 372Z.
Note 6: For exemptions, see section 372K.
Note 7: For exemption of certain projects, see section 372P.
Requirement
(2) A person must not install a fixed-line facility in the project area, or
any of the project areas, for a real estate development project,
unless:
(a) the facility is a fibre-ready facility; and
(b) the conditions (if any) specified in an instrument under
subsection (4) are satisfied.
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Installation of fibre-ready facilities Division 3
Section 372F
Telecommunications Act 1997 291
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Note 1: For fibre-ready facility, see section 372W.
Note 2: For exemptions, see section 372K.
(3) Subsection (2) does not apply if NBN Co has issued a statement
under section 372J to the effect that neither it nor any other NBN
corporation has installed, is installing, or proposes to install, optical
fibre lines in the project area, or any of the project areas, for the
project.
(4) The Minister may, by legislative instrument, specify conditions for
the purposes of paragraph (2)(b).
Ancillary contraventions
(5) A person must not:
(a) aid, abet, counsel or procure a contravention of
subsection (2); or
(b) induce, whether by threats or promises or otherwise, a
contravention of subsection (2); or
(c) be in any way, directly or indirectly, knowingly concerned in,
or party to, a contravention of subsection (2); or
(d) conspire with others to effect a contravention of
subsection (2).
Civil penalty provisions
(6) Subsections (2) and (5) are civil penalty provisions.
Note: Part 31 provides for pecuniary penalties for breaches of civil penalty
provisions.
372F Installation of fibre-ready facilities—building units
Scope
(1) This section applies to the installation of a fixed-line facility in the
project area, or any of the project areas, for a real estate
development project if:
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Division 3 Installation of fibre-ready facilities
Section 372F
292 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(a) the project involves the construction of one or more building
units on one or more areas of land; and
(b) the installation occurs after the commencement of this
section; and
(c) sewerage services, electricity or water is, are, or will be,
supplied to those units.
Note 1: For fixed-line facility, see section 372V.
Note 2: For real estate development project, see section 372Q.
Note 3: For building unit, see section 372S.
Note 4: For supply of sewerage services, electricity or water, see
section 372Z.
Note 5: For exemptions, see section 372K.
Note 6: For exemption of certain projects, see section 372P.
Requirement
(2) A person must not install a fixed-line facility in the project area, or
any of the project areas, for a real estate development project,
unless:
(a) the facility is a fibre-ready facility; and
(b) the conditions (if any) specified in an instrument under
subsection (4) are satisfied.
Note 1: For fibre-ready facility, see section 372W.
Note 2: For exemptions, see section 372K.
(3) Subsection (2) does not apply if NBN Co has issued a statement
under section 372J to the effect that neither it nor any other NBN
corporation has installed, is installing, or proposes to install, optical
fibre lines in the project area, or any of the project areas, for the
project.
(4) The Minister may, by legislative instrument, specify conditions for
the purposes of paragraph (2)(b).
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Installation of fibre-ready facilities Division 3
Section 372G
Telecommunications Act 1997 293
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Ancillary contraventions
(5) A person must not:
(a) aid, abet, counsel or procure a contravention of
subsection (2); or
(b) induce, whether by threats or promises or otherwise, a
contravention of subsection (2); or
(c) be in any way, directly or indirectly, knowingly concerned in,
or party to, a contravention of subsection (2); or
(d) conspire with others to effect a contravention of
subsection (2).
Civil penalty provisions
(6) Subsections (2) and (5) are civil penalty provisions.
Note: Part 31 provides for pecuniary penalties for breaches of civil penalty
provisions.
Subdivision B—Sale of building lots and building units
372G Sale of building lots and building units—subdivisions
Scope
(1) This section applies if:
(a) a real estate development project involves the subdivision of
one or more areas of land into building lots; and
(b) the project involves either or both of the following:
(i) the making available of one or more of those lots for
sale or lease, where it would be reasonable to expect
that one or more building units would be subsequently
constructed on the lots;
(ii) the construction of one or more building units on any of
the lots and the making available of any of those
building units for sale or lease; and
(c) if subparagraph (b)(i) applies—sewerage services, electricity
or water is, are, or will be, supplied to those lots; and
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Division 3 Installation of fibre-ready facilities
Section 372G
294 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(d) is subparagraph (b)(ii) applies—sewerage services, electricity
or water is, are, or will be, supplied to those units.
Note 1: For subdivision of an area of land, see section 372R.
Note 2: For building lot, see section 372Q.
Note 3: For building unit, see section 372S.
Note 4: For sale of building lots, see section 372T.
Note 5: For sale of building units, see section 372U.
Note 6: For supply of sewerage services, electricity or water, see
section 372Z.
Note 7: For exemptions, see section 372K.
Note 8: For exemption of certain projects, see section 372P.
Requirements—building lots
(2) If subparagraph (1)(b)(i) applies to a building lot, a constitutional
corporation must not, in the course of carrying out, or carrying out
an element of, the project, sell or lease the lot unless a fibre-ready
facility is installed in proximity to the lot.
Note 1: For fibre-ready facility, see section 372W.
Note 2: For proximity, see section 372Y.
Note 3: For exemptions, see section 372K.
(3) Subsection (2) does not apply if NBN Co has issued a statement
under section 372J to the effect that neither it nor any other NBN
corporation has installed, is installing, or proposes to install, optical
fibre lines in the project area, or any of the project areas, for the
project.
Requirements—building units
(4) If subparagraph (1)(b)(ii) applies to a building unit, a constitutional
corporation must not, in the course of carrying out, or carrying out
an element of, the project, sell or lease the unit unless a fibre-ready
facility is installed in proximity to the unit.
Note 1: For fibre-ready facility, see section 372W.
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Section 372H
Telecommunications Act 1997 295
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Note 2: For proximity, see section 372Y.
Note 3: For exemptions, see section 372K.
(5) Subsection (4) does not apply if NBN Co has issued a statement
under section 372J to the effect that neither it nor any other NBN
corporation has installed, is installing, or proposes to install, optical
fibre lines in the project area, or any of the project areas, for the
project.
Ancillary contraventions
(6) A person must not:
(a) aid, abet, counsel or procure a contravention of
subsection (2) or (4); or
(b) induce, whether by threats or promises or otherwise, a
contravention of subsection (2) or (4); or
(c) be in any way, directly or indirectly, knowingly concerned in,
or party to, a contravention of subsection (2) or (4); or
(d) conspire with others to effect a contravention of
subsection (2) or (4).
Civil penalty provisions
(7) Subsections (2), (4) and (6) are civil penalty provisions.
Note: Part 31 provides for pecuniary penalties for breaches of civil penalty
provisions.
Validity of transactions
(8) A contravention of subsection (2) or (4) does not affect the validity
of any transaction.
372H Sale of building units—other projects
Scope
(1) This section applies if:
(a) a real estate development project involves:
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Section 372H
296 Telecommunications Act 1997
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(i) the construction of one or more building units on one or
more areas of land; and
(ii) the making available of any or all of those building units
for sale or lease; and
(b) sewerage services, electricity or water is, are, or will be,
supplied to those units.
Note 1: For building unit, see section 372S.
Note 2: For sale of building units, see section 372U.
Note 3: For supply of sewerage services, electricity or water, see
section 372Z.
Note 4: For exemptions, see section 372K.
Note 5: For exemption of certain projects, see section 372P.
Requirements
(2) A constitutional corporation must not, in the course of carrying out,
or carrying out an element of, the project, sell or lease such a
building unit unless a fibre-ready facility is installed in proximity
to the unit.
Note 1: For fibre-ready facility, see section 372W.
Note 2: For proximity, see section 372Y.
Note 3: For exemptions, see section 372K.
(3) Subsection (2) does not apply if NBN Co has issued a statement
under section 372J to the effect that neither it nor any other NBN
corporation has installed, is installing, or proposes to install, optical
fibre lines in the project area, or any of the project areas, for the
project.
Ancillary contraventions
(4) A person must not:
(a) aid, abet, counsel or procure a contravention of
subsection (2); or
(b) induce, whether by threats or promises or otherwise, a
contravention of subsection (2); or
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Section 372J
Telecommunications Act 1997 297
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(c) be in any way, directly or indirectly, knowingly concerned in,
or party to, a contravention of subsection (2); or
(d) conspire with others to effect a contravention of
subsection (2).
Civil penalty provisions
(5) Subsections (2) and (4) are civil penalty provisions.
Note: Part 31 provides for pecuniary penalties for breaches of civil penalty
provisions.
Validity of transactions
(6) A contravention of subsection (2) does not affect the validity of
any transaction.
Subdivision C—NBN Co may issue statement about the
non-installation of optical fibre lines
372J NBN Co may issue statement about the non-installation of
optical fibre lines
(1) NBN Co may issue a written statement to the effect that neither it
nor any other NBN corporation has installed, is installing, or
proposes to install, optical fibre lines in the project area, or any of
the project areas, for a specified real estate development project.
(2) NBN Co may exercise the power conferred by subsection (1):
(a) at the request of a person; or
(b) on NBN Co’s own initiative.
(3) A statement issued under subsection (1) is not a legislative
instrument.
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Division 3 Installation of fibre-ready facilities
Section 372JA
298 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
372JA Register of Statements about the Non-installation of Optical
Fibre Lines
(1) NBN Co must keep a register, to be known as the Register of
Statements about the Non-installation of Optical Fibre Lines, that
sets out each statement issued under subsection 372J(1).
(2) The register is to be maintained by electronic means.
(3) The register is to be made available for inspection on NBN Co’s
website.
Subdivision D—Exemptions
372K Exemptions—Ministerial instrument
Real estate development projects
(1) The Minister may, by legislative instrument, exempt:
(a) a real estate development project specified in the instrument;
or
(b) a real estate development project ascertained in accordance
with the instrument;
from the scope of any or all of the following provisions:
(c) section 372E;
(d) section 372F;
(e) section 372G;
(f) section 372H.
Note: For specification by class, see subsection 13(3) of the Legislation Act
2003.
(2) An exemption under subsection (1) may be unconditional or
subject to such conditions (if any) as are specified in the
exemption.
Installations
(3) The Minister may, by legislative instrument, exempt:
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Section 372K
Telecommunications Act 1997 299
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(a) conduct specified in the instrument; or
(b) conduct ascertained in accordance with the instrument;
from the scope of either or both of the following provisions:
(c) subsection 372E(2);
(d) subsection 372F(2).
Note: For specification by class, see subsection 13(3) of the Legislation Act
2003.
(4) An exemption under subsection (3) may be unconditional or
subject to such conditions (if any) as are specified in the
exemption.
Building lots
(5) The Minister may, by legislative instrument, exempt:
(a) a building lot specified in the instrument; or
(b) a building lot ascertained in accordance with the instrument;
from the scope of subsection 372G(2).
Note: For specification by class, see subsection 13(3) of the Legislation Act
2003.
(6) An exemption under subsection (5) may be unconditional or
subject to such conditions (if any) as are specified in the
exemption.
Building units
(7) The Minister may, by legislative instrument, exempt:
(a) a building unit specified in the instrument; or
(b) a building unit ascertained in accordance with the instrument;
from the scope of either or both of the following provisions:
(c) subsection 372G(4);
(d) subsection 372H(2).
Note: For specification by class, see subsection 13(3) of the Legislation Act
2003.
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Section 372K
300 Telecommunications Act 1997
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(8) An exemption under subsection (7) may be unconditional or
subject to such conditions (if any) as are specified in the
exemption.
Functions and powers
(9) An instrument under subsection (1), (3), (5) or (7) may confer
functions or powers on the ACMA.
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Third party access regime Division 4
Section 372L
Telecommunications Act 1997 301
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Division 4—Third party access regime
372L Third party access regime
Scope
(1) This section applies to a fixed-line facility installed in Australia if:
(a) the installation occurs after the commencement of this
section; and
(b) the facility is owned or operated by a person other than a
carrier.
Note 1: For fixed-line facility, see section 372V.
Note 2: For exemptions, see section 372N.
Access to facility
(2) The owner or operator of the facility must, if requested to do so by
a carrier, give the carrier access to the facility.
(3) The owner or operator of the facility is not required to comply with
subsection (2) unless:
(a) the access is provided for the sole purpose of enabling the
carrier:
(i) to provide facilities and carriage services; or
(ii) to establish its own facilities; and
(b) the carrier gives the owner or operator of the facility
reasonable notice that the carrier requires the access.
(4) The owner or operator of the facility is not required to comply with
subsection (2) in relation to the facility if there is in force a written
certificate issued by the ACCC stating that, in the ACCC’s
opinion, compliance with subsection (2) in relation to the facility is
not technically feasible.
(5) In determining whether compliance with subsection (2) in relation
to a facility is technically feasible, the ACCC must have regard to:
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Section 372L
302 Telecommunications Act 1997
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(a) whether compliance is likely to result in significant
difficulties of a technical or engineering nature; and
(b) whether compliance is likely to result in a significant threat
to the health or safety of persons who operate, or work on,
the facility; and
(c) if compliance is likely to have a result referred to in
paragraph (a) or (b)—whether there are practicable means of
avoiding such a result, including (but not limited to):
(i) changing the configuration or operating parameters of
the facility; and
(ii) making alterations to the facility; and
(d) such other matters (if any) as the ACCC considers relevant.
(6) Before issuing a certificate under subsection (4), the ACCC may
consult the ACMA.
(7) If the ACCC receives a request to make a decision about the issue
of a certificate under subsection (4), the ACCC must use its best
endeavours to make that decision within 10 business days after the
request was made.
(8) Subsection (2) does not impose an obligation to the extent (if any)
to which the imposition of the obligation would have the effect of
depriving any person of a right under a contract that was in force at
the time the request was made.
Ancillary contraventions
(9) A person must not:
(a) aid, abet, counsel or procure a contravention of
subsection (2); or
(b) induce, whether by threats or promises or otherwise, a
contravention of subsection (2); or
(c) be in any way, directly or indirectly, knowingly concerned in,
or party to, a contravention of subsection (2); or
(d) conspire with others to effect a contravention of
subsection (2).
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Section 372M
Telecommunications Act 1997 303
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Civil penalty provisions
(10) Subsections (2) and (9) are civil penalty provisions.
Note: Part 31 provides for pecuniary penalties for breaches of civil penalty
provisions.
372M Terms and conditions of access
(1) The owner or operator of a fixed-line facility must comply with
subsection 372L(2) on such terms and conditions as are:
(a) agreed between the following parties:
(i) the owner or operator of the facility;
(ii) the carrier who made the request under that subsection;
or
(b) failing agreement, determined by an arbitrator appointed by
the parties.
If the parties fail to agree on the appointment of an arbitrator, the
ACCC is to be the arbitrator.
(2) The regulations may make provision for and in relation to the
conduct of an arbitration under this section.
(3) The regulations may provide that, for the purposes of a particular
arbitration conducted by the ACCC under this section, the ACCC
may be constituted by a single member, or a specified number of
members, of the ACCC. For each such arbitration, that member or
those members are to be nominated in writing by the Chairperson
of the ACCC.
(4) Subsection (3) does not, by implication, limit subsection (2).
(5) If:
(a) an agreement mentioned in paragraph (1)(a) is in force; and
(b) the agreement is in writing;
a determination under this section has no effect to the extent to
which it is inconsistent with the agreement.
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Division 4 Third party access regime
Section 372N
304 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
372N Exemptions—Ministerial instrument
(1) The Minister may, by legislative instrument, exempt:
(a) a fixed-line facility specified in the instrument; or
(b) a fixed-line facility ascertained in accordance with the
instrument;
from the scope of section 372L.
Note: For specification by class, see subsection 13(3) of the Legislation Act
2003.
(2) An exemption under subsection (1) may be unconditional or
subject to such conditions (if any) as are specified in the
exemption.
(3) An instrument under subsection (1) may confer functions or
powers on the ACCC.
(4) The ACCC may, by writing, delegate any or all of the functions or
powers conferred on it by an instrument under subsection (1) to a
member of the Commission (within the meaning of the
Competition and Consumer Act 2010).
372NA Code relating to access
(1) The ACCC may, by legislative instrument, make a Code setting out
conditions that are to be complied with in relation to the provision
of access under this Division.
(2) The owner or operator of a fixed-line facility must comply with the
Code.
(3) This section does not, by implication, limit a power conferred by or
under this Act to make an instrument.
(4) This section does not, by implication, limit the matters that may be
dealt with by codes or standards referred to in Part 6.
(5) Subsections (3) and (4) do not, by implication, limit
subsection 33(3B) of the Acts Interpretation Act 1901.
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Section 372NA
Telecommunications Act 1997 305
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Ancillary contraventions
(6) A person must not:
(a) aid, abet, counsel or procure a contravention of
subsection (2); or
(b) induce, whether by threats or promises or otherwise, a
contravention of subsection (2); or
(c) be in any way, directly or indirectly, knowingly concerned in,
or party to, a contravention of subsection (2); or
(d) conspire with others to effect a contravention of
subsection (2).
Civil penalty provisions
(7) Subsections (2) and (6) are civil penalty provisions.
Note: Part 31 provides for pecuniary penalties for breaches of civil penalty
provisions.
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Division 5 Exemption of certain projects
Section 372P
306 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Division 5—Exemption of certain projects
372P Exemption of certain projects
(1) A real estate development project is exempt from the scope of
Division 2 if, before the commencement of this section, a person
who carries out, or carries out an element of, the project:
(a) began to install lines in the project area, or any of the project
areas, for the project; or
(b) entered into a contract with another person for the installation
of lines in the project area, or any of the project areas, for the
project.
(2) A real estate development project is exempt from the scope of
Division 3 if, before the commencement of this section, a person
who carries out, or carries out an element of, the project:
(a) began to install fixed-line facilities in the project area, or any
of the project areas, for the project; or
(b) entered into a contract with another person for the installation
of fixed-line facilities in the project area, or any of the project
areas, for the project.
(3) A real estate development project is exempt from the scope of
Division 3 if, before the commencement of this section:
(a) civil works associated with the project began to be carried
out; or
(b) a person who carries out, or carries out an element of, the
project entered into a contract with another person for the
carrying out of civil works associated with the project.
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Miscellaneous Division 6
Section 372Q
Telecommunications Act 1997 307
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Division 6—Miscellaneous
372Q Real estate development projects etc.
Subdivisions
(1) For the purposes of this Act, a project is a real estate development
project if:
(a) the project involves the subdivision of one or more areas of
land in Australia into lots (however described); and
(b) the project involves either or both of the following:
(i) the making available of one or more of those lots for
sale or lease, where it would be reasonable to expect
that one or more building units would be subsequently
constructed on the lots;
(ii) the construction of one or more building units on any of
the lots and the making available of any of those
building units for sale or lease; and
(c) the conditions (if any) specified in an instrument under
subsection (4) are satisfied.
Note 1: For subdivision of an area of land, see section 372R.
Note 2: For sale of building lots, see section 372T.
Note 3: For building unit, see section 372S.
Note 4: For sale of building units, see section 372U.
(2) For the purposes of this Act, an area of land mentioned in
subsection (1) is a project area for the real estate development
project.
(3) For the purposes of this Act, a lot mentioned in subsection (1) is a
building lot.
(4) The Minister may, by legislative instrument, specify conditions for
the purposes of paragraph (1)(c).
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Section 372Q
308 Telecommunications Act 1997
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Building units
(5) For the purposes of this Act, a project is a real estate development
project if:
(a) the project involves:
(i) the construction of one or more building units on one or
more areas of land in Australia; and
(ii) the making available of any or all of those building units
for sale or lease; and
(b) the conditions (if any) specified in an instrument under
subsection (7) are satisfied.
Note 1: For building unit, see section 372S.
Note 2: For sale of building units, see section 372U.
(6) For the purposes of this Act, an area of land mentioned in
subsection (5) is a project area for the real estate development
project.
(7) The Minister may, by legislative instrument, specify conditions for
the purposes of paragraph (5)(b).
Application
(8) For the purposes of subsections (1) and (5), it is immaterial
whether:
(a) the project has been, is being, or will be, implemented in
stages; or
(b) different elements of the project have been, are being, or will
be, carried out by different persons; or
(c) one or more approvals are given, are required, or will be
required, under a law of the Commonwealth, a State or
Territory, for the project, or any element of the project; or
(d) in a case where the project relates to 2 or more areas of
land—those areas of land are under common ownership.
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Section 372R
Telecommunications Act 1997 309
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372R Subdivision of an area of land
For the purposes of this Act, if an area of land has been subdivided
into lots (however described) it is immaterial whether, after the
subdivision, a part of the area of land (for example, a road) is not
included in any of those lots.
372S Building units
Scope
(1) This section applies to a building that has been, is being, or is to
be, constructed.
Building units
(2) For the purposes of this Act, if the whole of the building is, or is to
be, for single occupation or use, the building is a building unit.
(3) For the purposes of this Act, if the whole or a part of the building
is, or is to be, held as a unit under a strata title system (or a similar
system) established under a law of a State or Territory, the whole
or the part, as the case may be, of the building is a building unit.
(4) For the purposes of this Act, if a part of the building is, or is to be,
for separate lease, that part of the building is a building unit.
372T Sale of building lots
For the purposes of this Act, a person sells a building lot if:
(a) in a case where the person holds a freehold interest in the
land concerned—the person transfers the whole or a part of
the freehold interest in the land; or
(b) in a case where the person holds a leasehold interest in the
land concerned—the person transfers the whole or a part of
the leasehold interest in the land.
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Section 372U
310 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
372U Sale of building units
For the purposes of this Act, a person sells a building unit if:
(a) in a case where:
(i) the building unit is covered by subsection 372S(2), but
is not covered by subsection 372S(3); and
(ii) the person holds a freehold interest in the land on which
the building unit is situated;
the person transfers the whole or a part of the freehold
interest; or
(b) in a case where:
(i) the building unit is covered by subsection 372S(2), but
is not covered by subsection 372S(3); and
(ii) the person holds a leasehold interest in the land on
which the building unit is situated;
the person transfers the whole or a part of the leasehold
interest; or
(c) in a case where:
(i) the building unit is covered by subsection 372S(3); and
(ii) the person holds an interest in the unit;
the person transfers the whole or a part of the interest in the
unit.
372V Fixed-line facilities
For the purposes of this Act, a fixed-line facility is a facility (other
than a line) used, or for use, in connection with a line, where the
line:
(a) is not on the customer side of the boundary of a
telecommunications network; and
(b) is used, or for use, to supply a carriage service to the public.
Note 1: For boundary of a telecommunications network, see section 22.
Note 2: For supply to the public, see section 372ZA.
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Section 372W
Telecommunications Act 1997 311
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372W Fibre-ready facility
For the purposes of this Act, each of the following is a fibre-ready
facility:
(a) an underground fixed-line facility that:
(i) is used, or for use, in connection with an optical fibre
line; and
(ii) satisfies such conditions (if any) as are specified in a
legislative instrument made by the Minister;
(b) a fixed-line facility that:
(i) is used, or for use, in connection with an optical fibre
line; and
(ii) is specified in a legislative instrument made by the
Minister; and
(iii) satisfies such conditions (if any) as are specified in a
legislative instrument made by the Minister.
372X Installation of a facility
For the purposes of this Part, install, in relation to a facility,
includes:
(a) construct the facility on, over or under any land; and
(b) attach the facility to any building or other structure.
372Y Installation of a fibre-ready facility in proximity to a building
lot or building unit
Building lot
(1) For the purposes of this Part, a fibre-ready facility used, or for use,
in connection with a line is installed in proximity to a building lot
if, and only if, it is installed:
(a) in, on or under the lot, so as to enable the line to be readily
connected to a building unit that has been, is being, is to be,
or may be, constructed on the lot; or
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Section 372Z
312 Telecommunications Act 1997
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(b) in sufficient proximity to the lot as to enable the line to be
readily connected to a building unit that has been, is being, is
to be, or may be, constructed on the lot.
Building unit
(2) For the purposes of this Part, a fibre-ready facility used, or for use,
in connection with a line is installed in proximity to a building unit
if, and only if, it is installed in sufficient proximity to the building
unit as to enable the line to be readily connected to the building
unit.
372Z Sewerage services, electricity or water supplied to a building
lot or building unit
Sewerage services
(1) For the purposes of this Part, sewerage services are supplied to a
building lot if, and only if:
(a) a sewerage pipeline is installed:
(i) under the lot; or
(ii) in sufficient proximity to the lot as to enable sewerage
services to be readily connected to a building unit that
has been, is being, is to be, or may be, constructed on
the lot; and
(b) the pipeline is part of a public sewerage system.
(2) For the purposes of this Part, sewerage services are supplied to a
building unit if, and only if:
(a) a sewerage pipeline is installed in sufficient proximity to the
building unit as to enable sewerage services to be readily
connected to the building unit; and
(b) the pipeline is part of a public sewerage system.
Electricity
(3) For the purposes of this Part, electricity is supplied to a building lot
if, and only if:
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Section 372ZA
Telecommunications Act 1997 313
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(a) an electricity cable is installed:
(i) over or under the lot; or
(ii) in sufficient proximity to the lot as to enable electricity
to be readily connected to a building unit that has been,
is being, is to be, or may be, constructed on the lot; and
(b) the cable is part of an electricity supply grid.
(4) For the purposes of this Part, electricity is supplied to a building
unit if, and only if:
(a) an electricity cable is installed in sufficient proximity to the
building unit as to enable electricity to be readily connected
to the building unit; and
(b) the cable is part of an electricity supply grid.
Water
(5) For the purposes of this Part, water is supplied to a building lot if,
and only if:
(a) a water pipeline is installed:
(i) under the lot; or
(ii) in sufficient proximity to the lot as to enable water to be
readily connected to a building unit that has been, is
being, is to be, or may be, constructed on the lot; and
(b) the pipeline is part of a reticulated water supply system.
(6) For the purposes of this Part, water is supplied to a building unit if,
and only if:
(a) a water pipeline is installed in sufficient proximity to the
building unit as to enable water to be readily connected to the
building unit; and
(b) the pipeline is part of a reticulated water supply system.
372ZA Supply to the public
(1) For the purposes of this Part, if:
(a) a line consists of, or forms part of, a network unit; and
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Section 372ZB
314 Telecommunications Act 1997
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(b) under section 44, the network unit is taken, for the purposes
of section 42, to be used to supply a carriage service to the
public;
the line is taken to be used, or for use, to supply a carriage service
to the public.
(2) For the purposes of this Part, if:
(a) a line neither consists of, nor forms part of, a network unit;
and
(b) assuming that the line were a network unit, then, under
section 44, the network unit would be taken, for the purposes
of section 42, to be used to supply a carriage service to the
public;
the line is taken to be used, or for use, to supply a carriage service
to the public.
372ZB Concurrent operation of State and Territory laws
This Part is not intended to exclude or limit the operation of a law
of a State or Territory that is capable of operating concurrently
with this Part.
372ZD NBN Co
In this Part:
NBN Co means NBN Co Limited (ACN 136 533 741), as the
company exists from time to time (even if its name is later
changed).
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Technical regulation Part 21
Simplified outline Division 1
Section 373
Telecommunications Act 1997 315
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Part 21—Technical regulation
Division 1—Simplified outline
373 Simplified outline
The following is a simplified outline of this Part:
• The ACMA may make the following types of standards:
(a) technical standards about customer equipment and
customer cabling;
(b) standards relating to the features of customer
equipment that are designed to cater for the special
needs of persons with disabilities;
(c) technical standards about the interconnection of
facilities;
(d) technical standards relating to Layer 2 bitstream
services.
• The ACMA may require customer equipment and customer
cabling to be labelled so as to indicate compliance with
standards.
• The ACMA may issue connection permits, and make
connection rules, authorising the connection of customer
equipment and customer cabling that does not comply with
the labelling requirements.
• A label may include a compliance symbol. The unauthorised
use of compliance symbols is prohibited.
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Section 373
316 Telecommunications Act 1997
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• The ACMA may grant cabling licences, and make cabling
provider rules, authorising the performance of cabling work.
• Civil actions may be instituted for unlawful or dangerous
connections of customer equipment or customer cabling.
• Dangerous equipment and cabling may be disconnected from
networks.
• The ACMA may prohibit the supply or possession of
dangerous equipment or cabling.
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Interpretative provisions Division 2
Section 374
Telecommunications Act 1997 317
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Division 2—Interpretative provisions
374 Part applies to networks or facilities in Australia operated by
carriers or carriage service providers
(1) A reference in this Part to a telecommunications network is a
reference to a telecommunications network in Australia that is
operated by a carrier or carriage service provider.
(2) A reference in this Part to a facility is a reference to a facility in
Australia that is operated by a carrier or carriage service provider.
375 Manager of network or facility
For the purposes of this Part, the manager of:
(a) a telecommunications network; or
(b) a facility of a telecommunications network;
is the carrier, or carriage service provider, who operates the
network or facility, as the case may be.
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Division 3 Technical standards about customer equipment and customer cabling
Section 376
318 Telecommunications Act 1997
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Division 3—Technical standards about customer
equipment and customer cabling
376 ACMA’s power to make technical standards
(1) The ACMA may, by legislative instrument, make a technical
standard relating to specified customer equipment or specified
customer cabling.
(2) Standards under this section are to consist only of such
requirements as are necessary or convenient for:
(a) protecting the integrity of a telecommunications network or a
facility; or
(b) protecting the health or safety of persons who:
(i) operate; or
(ii) work on; or
(iii) use services supplied by means of; or
(iv) are otherwise reasonably likely to be affected by the
operation of;
a telecommunications network or a facility; or
(c) ensuring that customer equipment can be used to give access
to an emergency call service; or
(d) ensuring, for the purpose of the supply of a standard
telephone service, the interoperability of customer equipment
with a telecommunications network to which the equipment
is, or is proposed to be, connected; or
(da) ensuring, for the purpose of the supply of a carriage service
using:
(i) the national broadband network; or
(ii) any other superfast telecommunications network;
the interoperability of customer equipment with such a
network; or
(db) ensuring that customer equipment or customer cabling that is,
or is proposed to be, connected to:
(i) the national broadband network; or
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Section 376
Telecommunications Act 1997 319
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(ii) any other superfast telecommunications network;
meets particular performance requirements; or
(dc) ensuring that customer equipment or customer cabling that is,
or is proposed to be, connected to:
(i) the national broadband network; or
(ii) any other superfast telecommunications network;
has particular design features; or
(e) achieving an objective specified in the regulations.
(3) Regulations made for the purposes of paragraph (2)(e) must not
specify an objective if the achievement of the objective is likely to
have the effect (whether direct or indirect) of requiring a
telecommunications network or a facility to:
(a) have particular design features; or
(b) meet particular performance requirements.
(4) A standard under this section may be of general application or may
be limited as provided in the standard. This subsection does not, by
implication, limit subsection 33(3A) of the Acts Interpretation Act
1901.
(7) In this section:
national broadband network has the same meaning as in
section 577BA.
superfast carriage service means a carriage service, where:
(a) the carriage service enables end-users to download
communications; and
(b) the download transmission speed of the carriage service is
normally more than 25 megabits per second; and
(c) the carriage service is supplied using a line to premises
occupied or used by an end-user.
superfast telecommunications network means a
telecommunications network that is capable of being used to
supply a superfast carriage service.
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Section 376A
320 Telecommunications Act 1997
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376A ACMA must make technical standards if directed by the
Minister
(1) The Minister may, by legislative instrument, direct the ACMA to:
(a) make a technical standard under section 376 that deals with
one or more specified matters; and
(b) do so within a specified period.
(2) The Minister must not give the ACMA a direction under section 14
of the Australian Communications and Media Authority Act 2005
requiring the ACMA to make a technical standard under
section 376 of this Act that deals with one or more specified
matters.
377 Adoption of voluntary standards
(1) In making a technical standard under section 376, the ACMA may
apply, adopt or incorporate (with or without modification) any
matter contained in a standard proposed or approved by:
(a) Standards Australia; or
(b) any other body or association;
either:
(c) as in force or existing at a particular time; or
(d) as in force or existing from time to time.
(2) Subsection (1) does not, by implication, limit section 589.
378 Procedures for making technical standards
(1) Before making a technical standard under section 376, the ACMA
must, so far as is practicable, try to ensure that:
(a) interested persons have had an adequate opportunity to make
representations about the proposed standard (either directly,
or indirectly by means of a report under paragraph (2)(g));
and
(b) due consideration has been given to any representation so
made.
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Section 379
Telecommunications Act 1997 321
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Note: This subsection has effect subject to section 379 (which deals with the
ACMA’s power to make standards in cases of urgency).
(2) The ACMA may make an arrangement with any of the following
bodies or associations:
(a) Standards Australia;
(b) a body or association approved in writing by Standards
Australia for the purposes of this subsection;
(c) a body or association specified in a written determination
made by the ACMA for the purposes of this subsection;
under which the body or association:
(d) prepares a draft of a standard; and
(e) publishes the draft standard; and
(f) undertakes a process of public consultation on the draft
standard; and
(g) reports to the ACMA on the results of that process of public
consultation.
(3) A copy of an approval under paragraph (2)(b) is to be published in
the Gazette.
(4) A copy of a determination under paragraph (2)(c) is to be
published in the Gazette.
(5) For the purposes of subsection (1), interested persons are taken not
to have had an adequate opportunity to make representations unless
there was a period of at least 60 days during which the
representations could be made.
379 Making technical standards in cases of urgency
(1) The ACMA is not required to comply with subsection 378(1) in
relation to the making of a particular technical standard if the
ACMA is satisfied that it is necessary to make the standard as a
matter of urgency in order to:
(a) protect the integrity of a telecommunications network or of a
facility; or
(b) protect the health or safety of persons who:
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Section 379
322 Telecommunications Act 1997
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(i) operate; or
(ii) work on; or
(iii) use services supplied by means of; or
(iv) are otherwise reasonably likely to be affected by the
operation of;
a telecommunications network or a facility.
(2) If subsection (1) applies to a standard (the urgent standard), the
urgent standard ceases to have effect 12 months after it came into
operation. However, this rule does not prevent the ACMA from
revoking the urgent standard and making another standard under
section 376 that:
(a) is not a standard to which subsection (1) applies; and
(b) deals with the same subject matter as the urgent standard.
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Disability standards Division 4
Section 380
Telecommunications Act 1997 323
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Division 4—Disability standards
380 Disability standards
(1) The ACMA may, by legislative instrument, make a standard
relating to specified customer equipment if:
(a) the customer equipment is for use in connection with the
standard telephone service; and
(b) the customer equipment is for use primarily by persons who
do not have a disability; and
(c) the standard relates to the features of the equipment that are
designed to cater for any or all of the special needs of persons
with disabilities.
(2) The following are examples of features mentioned in
paragraph (1)(c):
(a) an induction loop that is designed to assist in the operation of
a hearing aid;
(b) a raised dot on the button labelled “5” on a telephone.
(3) A standard under this section may be of general application or may
be limited as provided in the standard. This subsection does not, by
implication, limit subsection 33(3A) of the Acts Interpretation Act
1901.
(6) In this section:
disability has the same meaning as in the Disability Discrimination
Act 1992.
381 Adoption of voluntary standards
(1) In making a standard under section 380, the ACMA may apply,
adopt or incorporate (with or without modification) any matter
contained in a standard proposed or approved by:
(a) Standards Australia; or
(b) any other body or association;
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Section 382
324 Telecommunications Act 1997
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either:
(c) as in force or existing at a particular time; or
(d) as in force or existing from time to time.
(2) Subsection (1) does not, by implication, limit section 589.
382 Procedures for making disability standards
(1) Before making a standard under section 380, the ACMA must, so
far as is practicable, try to ensure that:
(a) interested persons have had an adequate opportunity to make
representations about the proposed standard (either directly,
or indirectly by means of a report under paragraph (2)(g));
and
(b) due consideration has been given to any representation so
made.
(2) The ACMA may make an arrangement with any of the following
bodies or associations:
(a) Standards Australia;
(b) a body or association approved in writing by Standards
Australia for the purposes of this subsection;
(c) a body or association specified in a written determination
made by the ACMA for the purposes of this subsection;
under which the body or association:
(d) prepares a draft of a standard; and
(e) publishes the draft standard; and
(f) undertakes a process of public consultation on the draft
standard; and
(g) reports to the ACMA on the results of that process of public
consultation.
(3) A copy of an approval under paragraph (2)(b) is to be published in
the Gazette.
(4) A copy of a determination under paragraph (2)(c) is to be
published in the Gazette.
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Disability standards Division 4
Section 383
Telecommunications Act 1997 325
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(5) For the purposes of subsection (1), interested persons are taken not
to have had an adequate opportunity to make representations unless
there was a period of at least 60 days during which the
representations could be made.
383 Effect of compliance with disability standards
(1) In determining whether a person has infringed section 24 of the
Disability Discrimination Act 1992 in relation to the supply or
provision of customer equipment, regard must be had to whether
the customer equipment complies with a standard in force under
section 380.
(2) Subsection (1) does not, by implication, limit the matters to which
regard may be had.
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Division 5 Technical standards about the interconnection of facilities
Section 384
326 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Division 5—Technical standards about the interconnection
of facilities
384 ACMA’s power to make technical standards
(1) The ACMA may, by legislative instrument, make a technical
standard relating to the interconnection of facilities.
Note: For enforcement of the standards, see sections 152AR and 152AXB of
the Competition and Consumer Act 2010.
(2) The ACMA must not make a standard under subsection (1) unless
the ACMA is directed to do so by the ACCC under subsection (3).
(3) The ACCC may give written directions to the ACMA in relation to
the exercise of the power to make standards under subsection (1).
(4) The ACMA must exercise its powers under subsection (1) in a
manner consistent with any directions given by the ACCC under
subsection (3).
(5) The ACCC must not give a direction under subsection (3) unless,
in the ACCC’s opinion, it is necessary to do so in order to:
(a) promote the long-term interests of end-users of carriage
services or of services supplied by means of carriage
services; or
(b) reduce or eliminate the likelihood of hindrance to the
provision of access to declared services.
(6) A standard under subsection (1) may be of general application or
may be limited as provided in the standard. This subsection does
not, by implication, limit subsection 33(3A) of the Acts
Interpretation Act 1901.
(9) In this section:
declared service has the same meaning as in Part XIC of the
Competition and Consumer Act 2010.
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Section 385
Telecommunications Act 1997 327
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
385 Adoption of voluntary standards
(1) In making a technical standard under section 384, the ACMA may
apply, adopt or incorporate (with or without modification) any
matter contained in a standard proposed or approved by:
(a) Standards Australia; or
(b) any other body or association;
either:
(c) as in force or existing at a particular time; or
(d) as in force or existing from time to time.
(2) Subsection (1) does not, by implication, limit section 589.
386 Procedures for making technical standards
(1) Before making a technical standard under section 384, the ACMA
must, so far as is practicable, try to ensure that:
(a) interested persons have had an adequate opportunity to make
representations about the proposed standard (either directly,
or indirectly by means of a report under paragraph (2)(g));
and
(b) due consideration has been given to any representations so
made.
(2) The ACMA may make an arrangement with any of the following
bodies or associations:
(a) Standards Australia;
(b) a body or association approved in writing by Standards
Australia for the purposes of this subsection;
(c) a body or association specified in a written determination
made by the ACMA for the purposes of this subsection;
under which the body or association:
(d) prepares a draft of a standard; and
(e) publishes the draft standard; and
(f) undertakes a process of public consultation on the draft
standard; and
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Division 5 Technical standards about the interconnection of facilities
Section 387
328 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(g) reports to the ACMA on the results of that process of public
consultation.
(3) A copy of an approval under paragraph (2)(b) is to be published in
the Gazette.
(4) A copy of a determination under paragraph (2)(c) is to be
published in the Gazette.
(5) For the purposes of subsection (1), interested persons are taken not
to have had an adequate opportunity to make representations unless
there was a period of at least 60 days during which the
representations could be made.
387 Procedures for making technical standards
(1) The ACMA must not make a standard under section 384 relating to
a particular matter unless:
(a) the ACMA has given a body or association a written notice
requesting the body or association to make a standard
relating to that matter within the period specified in the
notice; and
(b) one of the following subparagraphs applies:
(i) the body or association does not comply with the
request;
(ii) the body or association complies with the request, but
the ACMA is not satisfied that the body’s or
association’s standard deals with that matter in an
adequate way;
(iii) the body or association complies with the request, but
the ACMA is not satisfied that the body’s or
association’s standard is operating adequately.
(2) The period specified under paragraph (1)(a) must run for at least
120 days after the notice was given.
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Section 388
Telecommunications Act 1997 329
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(3) In making a decision under subparagraph (1)(b)(ii) or (iii), the
ACMA must have regard to:
(a) whether the body’s or association’s standard is likely to
promote the long-term interests of end-users of carriage
services and of services supplied by means of carriage
services; and
(b) whether the body’s or association’s standard is likely to
reduce or eliminate the likelihood of hindrance to the
provision of access to declared services.
(4) Subsection (3) does not, by implication, limit the matters to which
the ACMA may have regard.
(5) Before making a decision under subparagraph (1)(b)(ii) or (iii), the
ACMA must consult the ACCC.
388 Provision of access
A reference in this Division to the provision of access is a
reference to the provision of access to:
(a) service providers generally; or
(b) a particular class or classes of service providers; or
(c) a particular service provider or particular service providers;
in order that the service provider or providers can provide carriage
services and/or content services.
389 Promotion of the long-term interests of end-users of carriage
services and of services supplied by means of carriage
services
For the purposes of this Division, the question whether a particular
thing promotes the long-term interests of end-users of carriage
services or of services supplied by means of carriage services is to
be determined in the same manner as it is determined for the
purposes of Part XIC of the Competition and Consumer Act 2010.
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Division 5A Technical standards relating to Layer 2 bitstream services
Section 389A
330 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Division 5A—Technical standards relating to Layer 2
bitstream services
389A ACMA’s power to determine technical standards
The ACMA may, by legislative instrument, determine technical
standards relating to Layer 2 bitstream services.
Note: See section 589 (instruments under this Act may provide for matters
by reference to other instruments).
389B Compliance with technical standards
(1) A carrier or carriage service provider must comply with a standard
determined under section 389A.
(2) A person must not:
(a) aid, abet, counsel or procure a contravention of
subsection (1); or
(b) induce, whether by threats or promises or otherwise, a
contravention of subsection (1); or
(c) be in any way, directly or indirectly, knowingly concerned in,
or party to, a contravention of subsection (1); or
(d) conspire with others to effect a contravention of
subsection (1).
(3) Subsections (1) and (2) are civil penalty provisions.
Note: Part 31 provides for pecuniary penalties for breaches of civil penalty
provisions.
Exemptions
(4) The Minister may, by written instrument, exempt a specified
carrier, or a specified carriage service provider, from
subsection (1).
Note: For specification by class, see the Acts Interpretation Act 1901.
(5) An instrument under subsection (4) may be:
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Section 389B
Telecommunications Act 1997 331
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(a) unconditional; or
(b) subject to such conditions (if any) as are specified in the
instrument.
(6) Before making an instrument under subsection (4), the Minister
must consult:
(a) the ACCC; and
(b) the ACMA.
(7) An instrument under subsection (4) is not a legislative instrument.
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Part 21 Technical regulation
Division 6 Connection permits and connection rules
Section 390
332 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Division 6—Connection permits and connection rules
Subdivision A—Connection permits authorising the connection
of non-standard customer equipment and
non-standard cabling
390 Application for connection permit
Customer equipment
(1) A person (the applicant) may apply to the ACMA for a permit
authorising the applicant, and such other persons as are from time
to time nominated by the applicant, to:
(a) connect specified customer equipment to a
telecommunications network or to a facility; and
(b) maintain such a connection.
The permit is called a connection permit.
Customer cabling
(2) A person (the applicant) may apply to the ACMA for a permit
authorising the applicant, and such other persons as are from time
to time nominated by the applicant, to:
(a) connect specified customer cabling to a telecommunications
network or to a facility; and
(b) maintain such a connection.
The permit is called a connection permit.
391 Form of application
An application must be:
(a) in writing; and
(b) in accordance with the form approved in writing by the
ACMA.
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Section 392
Telecommunications Act 1997 333
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
392 Application to be accompanied by charge
An application must be accompanied by the charge (if any) fixed
by a determination under section 60 of the Australian
Communications and Media Authority Act 2005.
393 Further information
(1) The ACMA may request the applicant to give the ACMA further
information about the application.
(2) The ACMA may refuse to consider the application until the
applicant gives the ACMA the information.
394 Issue of connection permits
(1) After considering an application, the ACMA may issue a
connection permit in accordance with the application.
(2) In deciding whether to issue a connection permit, the ACMA may
have regard to:
(a) whether the purpose for which the permit is sought is a
purpose related to:
(i) education or research; or
(ii) the testing of customer equipment or customer cabling;
or
(iii) the demonstration of customer equipment or customer
cabling; and
(b) the knowledge and experience of the applicant.
(3) In deciding whether to issue a connection permit, the ACMA must
have regard to:
(a) the protection of the integrity of a telecommunications
network or of a facility; and
(b) the protection of the health or safety of persons who:
(i) operate; or
(ii) work on; or
(iii) use services supplied by means of; or
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Section 395
334 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(iv) are otherwise reasonably likely to be affected by the
operation of;
a telecommunications network or a facility.
(4) Subsections (2) and (3) do not, by implication, limit the matters to
which the ACMA may have regard.
(5) If the ACMA decides to refuse to issue the connection permit, it
must give the applicant a written notice setting out the decision.
395 Connection permit has effect subject to this Act
(1) A connection permit has effect subject to this Act.
(2) In this section:
this Act includes the Telecommunications (Consumer Protection
and Service Standards) Act 1999 and regulations under that Act.
396 Nominees of holder
If the ACMA issues a connection permit, the persons nominated by
the holder are called the holder’s nominees.
397 Duration of connection permits
(1) A connection permit comes into force when it is issued and
remains in force:
(a) if the permit specifies a day of expiration—until the end of
that day; or
(b) otherwise—indefinitely.
(2) The ACMA may, by written notice given to the holder of a
connection permit, declare that the permit has effect as if the
permit had specified a day specified in the notice as the day of
expiration of the connection permit. The declaration has effect
accordingly.
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Section 398
Telecommunications Act 1997 335
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(3) A day specified in a notice under subsection (2) must be later than
the day on which the notice is given to the holder of the connection
permit.
398 Conditions of connection permits
(1) A connection permit is subject to the following conditions:
(a) a condition that the holder and the holder’s nominees must
comply with this Division;
(b) any condition to which the permit is subject under
subsection (2);
(c) any other conditions specified in the permit.
(2) The ACMA may, by legislative instrument, determine that:
(a) each connection permit is subject to such conditions as are
specified in the determination; or
(b) each connection permit included in a specified class of
connection permits is subject to such conditions as are
specified in the determination.
(3) The ACMA may, by written notice given to the holder of a
connection permit:
(a) impose one or more further conditions to which the permit is
subject; or
(b) vary or revoke any condition:
(i) imposed under paragraph (a); or
(ii) specified in the permit.
(4) A condition of a connection permit may relate to the kinds of
persons who can be the holder’s nominees.
(5) Subsection (4) does not, by implication, limit the conditions to
which a connection permit may be subject.
399 Offence of contravening condition
(1) A person commits an offence if:
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Division 6 Connection permits and connection rules
Section 400
336 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(a) the person is the holder of a connection permit, or a nominee
of such a holder; and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes a condition to which the
permit is subject.
Penalty: 100 penalty units.
Note 1: See also sections 4AA and 4B of the Crimes Act 1914.
Note 2: See also Division 13 of this Part (which deals with the payment of
penalties as an alternative to prosecution).
(2) In this section:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
400 Formal warnings—breach of condition
The ACMA may issue a formal warning to the holder of a
connection permit if the holder, or a nominee of the holder,
contravenes a condition to which the permit is subject.
401 Surrender of connection permit
The holder of a connection permit may, at any time, surrender the
permit by written notice given to the ACMA.
402 Cancellation of connection permit
(1) The ACMA may, by written notice given to the holder of a
connection permit, cancel the permit.
(2) In deciding whether to cancel the permit, the ACMA may have
regard to any matter which the ACMA was entitled, under
subsection 394(2), to have regard in deciding whether to issue a
permit.
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Section 403
Telecommunications Act 1997 337
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(3) In deciding whether to cancel the permit, the ACMA must have
regard to:
(a) any matter to which the ACMA was required, under
subsection 394(3), to have regard in deciding whether to
issue a permit; and
(b) whether or not the holder, or a nominee of the holder, has
been convicted of an offence against this Division.
(4) Subsections (2) and (3) do not, by implication, limit the matters to
which the ACMA may have regard.
403 Register of connection permits
(1) The ACMA is to maintain a Register in which it includes:
(a) all connection permits currently in force; and
(b) all conditions of such permits.
(2) The Register may be maintained by electronic means.
(3) A person may, on payment of the charge (if any) fixed by a
determination under section 60 of the Australian Communications
and Media Authority Act 2005:
(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 ACMA 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 ACMA may provide the relevant information:
(a) on a data processing device; or
(b) by way of electronic transmission.
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Division 6 Connection permits and connection rules
Section 404
338 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Subdivision B—Connection rules
404 Connection rules
(1) The ACMA may, by legislative instrument, make rules
(connection rules) that:
(a) are expressed to apply to specified persons; and
(b) relate to any or all of the following:
(i) the connection of specified customer equipment to a
telecommunications network or to a facility;
(ii) maintaining a connection referred to in
subparagraph (i);
(iii) the connection of specified customer cabling to a
telecommunications network or to a facility;
(iv) maintaining a connection referred to in
subparagraph (iii).
Note 1: A person may be specified by name, by inclusion in a specified class
or in any other way.
Note 2: Equipment or cabling may be specified by name, by inclusion in a
specified class or in any other way.
(2) A person specified under paragraph (1)(a) is said to be subject to
the connection rules.
(3) The connection rules may make provision for or in relation to a
particular matter by empowering the ACMA to make decisions of
an administrative character.
405 Procedures for making connection rules
(1) Before making connection rules under section 404, the ACMA
must, so far as is practicable, try to ensure that:
(a) interested persons have had an adequate opportunity to make
representations about the proposed rules (either directly, or
indirectly by means of a report under paragraph (2)(g)); and
(b) due consideration has been given to any representation so
made.
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Section 405
Telecommunications Act 1997 339
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(2) The ACMA may make an arrangement with any of the following
bodies or associations:
(a) Standards Australia;
(b) a body or association approved in writing by Standards
Australia for the purposes of this subsection;
(c) a body or association specified in a written determination
made by the ACMA for the purposes of this subsection;
under which the body or association:
(d) prepares draft rules; and
(e) publishes the draft rules; and
(f) undertakes the process of public consultation on the draft
rules; and
(g) reports to the ACMA on the results of that process of public
consultation.
(3) A copy of an approval under paragraph (2)(b) is to be published in
the Gazette.
(4) A copy of a determination under paragraph (2)(c) is to be
published in the Gazette.
(5) For the purposes of subsection (1), interested persons are taken not
to have had an adequate opportunity to make representations unless
there was a period of at least 60 days during which the
representations could be made.
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Part 21 Technical regulation
Division 7 Labelling of customer equipment and customer cabling
Section 406
340 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Division 7—Labelling of customer equipment and
customer cabling
406 Application of labels
(1) A reference in this Division to a label includes a reference to a
statement.
(2) For the purposes of this Division, a label is taken to be applied to a
thing if:
(a) the label is affixed to the thing; or
(b) the label is woven in, impressed on, worked into or annexed
to the thing; or
(c) the label is affixed to a container, covering, package, case,
box or other thing in or with which the first-mentioned thing
is supplied; or
(d) the label is affixed to, or incorporated in, an instruction or
other document that accompanies the first-mentioned thing.
406A Application of Division to agent of manufacturer or importer
For the purposes of this Act and to avoid doubt, a reference in this
Division to a manufacturer or importer of customer equipment or
customer cabling includes a reference to a person who is authorised
in writing by such a manufacturer or importer to act in Australia as
an agent of the manufacturer or importer (as the case may be) for
the purposes of this Division.
407 Labelling requirements
(1) The ACMA may, by written instrument, require any person who is
a manufacturer or importer of specified customer equipment or
specified customer cabling to apply to the equipment or cabling a
label that indicates whether the equipment or cabling meets the
requirements of the section 376 standards specified in the
instrument.
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Section 408
Telecommunications Act 1997 341
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(2) An instrument under this section is a legislative instrument.
408 Requirements to apply labels—ancillary matters
(1) This section applies to an instrument under section 407.
(2) The label must be in the form specified by the ACMA in the
instrument.
(3) The method of applying the label to the equipment or cabling must
be as specified by the ACMA in the instrument.
(4) The instrument may state that the requirement does not apply to
imported customer equipment, or imported customer cabling, if
there is applied to the equipment or cabling a label of a specified
kind that indicates that the equipment or cabling complies with the
requirements of:
(a) a specified law of a specified foreign country; or
(b) a specified instrument in force under a specified law of a
specified foreign country; or
(c) a specified convention, treaty or international agreement; or
(d) a specified instrument in force under a specified convention,
treaty or international agreement.
(5) The instrument may specify requirements that must be met before a
label can be applied, including (but not limited to):
(a) a requirement that, before a manufacturer or importer applies
the label to the equipment or cabling, the manufacturer or
importer must have obtained a written statement from a
certification body certifying that the equipment or cabling
complies with a specified section 376 standard; and
(b) a requirement that, before a manufacturer or importer applies
the label to the equipment or cabling, the equipment or
cabling must have been tested by a recognised testing
authority for compliance with the standards specified in the
instrument; and
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Section 408
342 Telecommunications Act 1997
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(c) a requirement that a manufacturer or importer must:
(i) conduct quality assurance programs; or
(ii) be satisfied that quality assurance programs have been
conducted; or
(iii) have regard to the results of quality assurance programs;
before the manufacturer or importer applies the label to the
equipment or cabling; and
(d) a requirement that, before a manufacturer or importer applies
the label to the equipment or cabling, the manufacturer or
importer must have obtained a written statement from a
competent body certifying that reasonable efforts have been
made to avoid a contravention of a specified section 376
standard; and
(e) a requirement that, before a manufacturer or importer applies
the label to the equipment or cabling, the manufacturer or
importer must make a written declaration in relation to the
equipment or cabling, being a declaration in a form specified
in the instrument.
Note 1: Certification body is defined by section 410.
Note 2: Recognised testing authority is defined by section 409.
Note 3: Competent body is defined by section 409.
(6) The instrument may specify requirements that must be met after a
label has been applied to customer equipment or customer cabling,
including (but not limited to) a requirement that a manufacturer or
importer retain for inspection, for the period specified in the
instrument:
(a) records of the quality assurance programs conducted in
accordance with the instrument in respect of the equipment
or cabling; and
(b) records of any results of any tests conducted in relation to
compliance with the standards specified in the instrument;
and
(c) a declaration, or a copy of a declaration, made as mentioned
in paragraph (5)(e).
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Section 409
Telecommunications Act 1997 343
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409 Recognised testing authorities and competent bodies
(1) The ACMA may, by notice published in the Gazette, determine
that a specified person or association is an accreditation body for
the purposes of this section. The determination has effect
accordingly.
(2) An accreditation body may, by written instrument, determine that a
specified person is a recognised testing authority for the purposes
of this Division. The determination has effect accordingly.
(3) An accreditation body may, by written instrument, determine that a
specified person or association is a competent body for the
purposes of this Division. The determination has effect
accordingly.
410 Certification bodies
(1) The ACMA may, by notice published in the Gazette, determine
that a specified person or association is an approving body for the
purposes of this section. The determination has effect accordingly.
(2) An approving body may, by written instrument, determine that a
specified person or association is a certification body for the
purposes of this Division. The determination has effect
accordingly.
411 Connection of customer equipment or customer cabling—
breach of section 376 standards
Basic prohibition
(1) A person must not:
(a) connect customer equipment or customer cabling to a
telecommunications network or to a facility; or
(b) maintain such a connection;
if:
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Section 411
344 Telecommunications Act 1997
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(c) the manufacturer or importer of the equipment or cabling was
required by subsection 407(1) to apply a label to the
equipment or cabling; and
(d) either:
(i) the manufacturer or importer did not comply with the
requirement; or
(ii) the manufacturer or importer complied with the
requirement, but the label indicated that the equipment
or cabling did not meet the requirements of the
section 376 standards that were specified in the
first-mentioned requirement.
Offence
(2) A person who contravenes subsection (1) commits an offence
punishable on conviction by a fine not exceeding 120 penalty units.
Note 1: See also sections 4AA and 4B of the Crimes Act 1914.
Note 2: See also Division 13 of this Part (which deals with the payment of
penalties as an alternative to prosecution).
Exception—reasonable excuse for contravention
(2A) Subsection (2) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (2A) (see subsection 13.3(3) of the Criminal Code).
Exception—connection permit
(3) A person does not contravene subsection (1) in relation to:
(a) connecting customer equipment, or customer cabling, to a
telecommunications network, or to a facility; or
(b) maintaining such a connection;
if the connection, or the maintenance of the connection, as the case
may be, is in accordance with a connection permit.
Note: Connection permits are issued under section 394.
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Section 412
Telecommunications Act 1997 345
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Exception—compliance with connection rules
(4) A person does not contravene subsection (1) in relation to:
(a) connecting customer equipment, or customer cabling, to a
telecommunications network, or to a facility; or
(b) maintaining such a connection;
if:
(c) the person is subject to the connection rules; and
(d) the connection, or the maintenance of the connection, as the
case may be, is in accordance with the connection rules.
Note: The connection rules are dealt with by section 404.
Exception—consent of network manager
(5) A person does not contravene subsection (1) in relation to the
connection of customer equipment, or customer cabling, to a
telecommunications network, or to a facility, if:
(a) the manager of the network or facility consents in writing to
the connection; and
(b) the equipment or cabling has applied to it a label that
indicates that the equipment or cabling does not meet the
requirements of each of the standards under section 376 that
were applicable to it when it was connected.
Note: Manager is defined by section 375.
412 Connection of labelled customer equipment or customer cabling
not to be refused
(1) If:
(a) at a particular time, a person proposes to connect customer
equipment or customer cabling to a telecommunications
network or to a facility; and
(b) the manufacturer or importer of the equipment or cabling was
required by subsection 407(1) to apply a label to the
equipment or cabling; and
(c) both:
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Division 7 Labelling of customer equipment and customer cabling
Section 412
346 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(i) the manufacturer or importer complied with the
requirement; and
(ii) the label indicated that the equipment or cabling met the
requirements of the section 376 standards that were
specified in the first-mentioned requirement;
the manager of the network or facility must not refuse to give
written consent to the connection.
Note: Manager is defined by section 375.
(2) A person who contravenes subsection (1) commits an offence
punishable on conviction by a fine not exceeding 100 penalty units.
Note: See also sections 4AA and 4B of the Crimes Act 1914.
(2A) Subsection (2) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (2A) (see subsection 13.3(3) of the Criminal Code).
(3) A manager of a telecommunications network, or of a facility, does
not contravene subsection (1) in relation to a refusal to give
consent to the connection of customer equipment, or customer
cabling, to the network, or to the facility, if:
(a) the manager has reasonable grounds to believe that a label
has been applied to the equipment or cabling in contravention
of section 414 or 416; or
(b) the manager has reasonable grounds to believe that the
connection would, or would be likely to, constitute a threat to
the integrity of a telecommunications network or of a facility;
or
(c) the manager has reasonable grounds to believe that the
connection would, or would be likely to, constitute a threat to
the health or safety of persons who:
(i) operate; or
(ii) work on; or
(iii) use services supplied by means of; or
(iv) are otherwise reasonably likely to be affected by the
operation of;
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Section 413
Telecommunications Act 1997 347
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a telecommunications network or a facility.
(4) This section does not, by implication, impose an obligation to
supply a carriage service to a particular person.
413 Supply of unlabelled customer equipment or unlabelled
customer cabling
(1) If a person:
(a) is a manufacturer or importer of customer equipment or
customer cabling; and
(b) is required under section 407 to apply to it a label in a
particular form;
the person must not supply the equipment or cabling unless a label
in that form has been applied to the equipment or cabling.
(2) A person who contravenes subsection (1) commits an offence
punishable on conviction by a fine not exceeding 100 penalty units.
Note 1: See also sections 4AA and 4B of the Crimes Act 1914.
Note 2: See also Division 13 of this Part (which deals with the payment of
penalties as an alternative to prosecution).
(2A) Subsection (2) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (2A) (see subsection 13.3(3) of the Criminal Code).
(3) In this section:
supply includes supply (including re-supply) by way of sale,
exchange, lease, hire or hire-purchase.
414 Applying labels before satisfying requirements under
subsection 408(5)
(1) If a person is subject to requirements that:
(a) have been specified under subsection 408(5); and
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Division 7 Labelling of customer equipment and customer cabling
Section 415
348 Telecommunications Act 1997
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(b) must be met before applying a particular label to customer
equipment or customer cabling;
the person must not apply:
(c) the label; or
(d) a label that purports to be such a label;
before the person satisfies those requirements.
(2) A person who contravenes subsection (1) commits an offence
punishable on conviction by a fine not exceeding 100 penalty units.
Note 1: See also sections 4AA and 4B of the Crimes Act 1914.
Note 2: See also Division 13 of this Part (which deals with the payment of
penalties as an alternative to prosecution).
(3) Subsection (2) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (3) (see subsection 13.3(3) of the Criminal Code).
415 Failure to retain records etc.
(1) If the ACMA makes an instrument under subsection 407(1) that
specifies requirements to be met after a label has been applied, a
manufacturer or importer must not contravene those requirements.
(2) A person commits an offence if:
(a) the person is a manufacturer or importer of customer
equipment or customer cabling; and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes a requirement referred to in
subsection (1).
Penalty: 100 penalty units.
Note 1: See also sections 4AA and 4B of the Crimes Act 1914.
Note 2: See also Division 13 of this Part (which deals with the payment of
penalties as an alternative to prosecution).
(3) Subsection (1) does not apply if the person has a reasonable
excuse.
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Section 416
Telecommunications Act 1997 349
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Note: A defendant bears an evidential burden in relation to the matter in
subsection (3) (see subsection 13.3(3) of the Criminal Code).
(4) In this section:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
416 Application of labels containing false statements about
compliance with standards
(1) A person must not apply a label to customer equipment or
customer cabling if:
(a) the label contains a statement to the effect that the equipment
or cabling complies with a section 376 standard; and
(b) the statement is false or misleading.
(2) A person who contravenes subsection (1) commits an offence
punishable on conviction by a fine not exceeding 120 penalty units.
Note 1: See also sections 4AA and 4B of the Crimes Act 1914.
Note 2: See also Division 13 of this Part (which deals with the payment of
penalties as an alternative to prosecution).
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Division 8 Protected symbols
Section 417
350 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Division 8—Protected symbols
417 Protected symbols
(1) A person must not:
(a) use in relation to a business, trade, profession or occupation;
or
(b) apply, as a trade mark or otherwise, to goods imported,
manufactured, produced, sold, offered for sale or let on hire;
or
(c) use in relation to:
(i) goods or services; or
(ii) the promotion, by any means, of the supply or use of
goods or services;
a protected symbol, or a symbol so closely resembling a protected
symbol as to be likely to be mistaken for it.
(2) A person who contravenes subsection (1) commits an offence
punishable on conviction by a fine not exceeding 30 penalty units.
Note 1: See also sections 4AA and 4B of the Crimes Act 1914.
Note 2: See also Division 13 of this Part (which deals with the payment of
penalties as an alternative to prosecution).
(3) Nothing in subsection (1) limits anything else in that subsection.
(4) Nothing in subsection (1), so far as it applies in relation to a
protected symbol, affects rights conferred by law on a person in
relation to:
(a) a trade mark that is registered under the Trade Marks Act
1995; or
(b) a design that is registered under the Designs Act 2003;
and was registered under the Trade Marks Act 1995 or the Designs
Act 1906 immediately before 16 August 1996 in relation to the
symbol.
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Section 417
Telecommunications Act 1997 351
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(5) Nothing in this section, so far as it applies to a protected symbol,
affects the use, or rights conferred by law relating to the use, of the
symbol by a person in a particular manner if, immediately before
16 August 1996, the person:
(a) was using the symbol in good faith in that manner; or
(b) would have been entitled to prevent another person from
passing off, by means of the use of the symbol or a similar
symbol, goods or services as the goods or services of the
first-mentioned person.
(6) This section does not apply to a person who uses or applies a
protected symbol for the purposes of labelling customer equipment
or customer cabling in accordance with section 407 of this Act or
labelling a device in accordance with section 182 of the
Radiocommunications Act 1992. For this purpose, device has the
same meaning as in the Radiocommunications Act 1992.
(7) This section does not apply to a person who uses or applies a
protected symbol for a purpose of a kind specified in a written
determination made by the ACMA.
(8) A reference in this section to a protected symbol is a reference to:
(a) the symbol known in the telecommunications industry as the
C-Tick mark:
(i) the design of which is set out in a written determination
made by the ACMA; and
(ii) a purpose of which, after the commencement of this
section, is to indicate compliance by customer
equipment or customer cabling with applicable
section 376 standards; or
(b) a symbol:
(i) the design of which is set out in a written determination
made by the ACMA; and
(ii) a purpose of which, after the commencement of this
section, is to indicate compliance by customer
equipment or customer cabling with applicable
section 376 standards; or
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Section 417
352 Telecommunications Act 1997
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(c) a symbol:
(i) the design of which is set out in a written determination
made by the ACMA; and
(ii) a purpose of which, after the commencement of this
section, is to indicate non-compliance by customer
equipment or customer cabling with applicable
section 376 standards.
(9) For the purposes of this Part, if:
(a) a label is applied to customer equipment or customer cabling;
and
(b) the label embodies a symbol referred to in paragraph (8)(a) or
(b);
the label is taken to indicate that the equipment or cabling meets
the requirements of each applicable section 376 standard.
(10) For the purposes of this Part, if:
(a) a label is applied to customer equipment or customer cabling;
and
(b) the label embodies a symbol referred to in paragraph (8)(c);
the label is taken to indicate that the equipment or cabling does not
meet the requirements of each applicable section 376 standard.
(11) For the purposes of this section, a section 376 standard is taken to
be applicable in relation to customer equipment or customer
cabling if, and only if, the standard was specified in the section 407
requirement that dealt with the manufacture or importation of the
equipment or cabling.
(12) A determination made by the ACMA under subsection (7) or (8) is
a legislative instrument.
(13) In addition to its effect apart from this subsection, this section also
has the effect it would have if a reference in subsection (1) to a
person were, by express provision, confined to a corporation to
which paragraph 51(xx) of the Constitution applies.
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Section 417
Telecommunications Act 1997 353
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(14) In addition to its effect apart from this subsection, this section also
has the effect it would have if each reference in subsection (1) to
use, or to application, were a reference to use or application, as the
case may be, in the course of, or in relation to:
(a) trade or commerce between Australia and places outside
Australia; or
(b) trade or commerce among the States; or
(c) trade or commerce within a Territory, between a State and a
Territory or between 2 Territories; or
(d) the supply of goods or services to the Commonwealth, to a
Territory or to an authority or instrumentality of the
Commonwealth or of a Territory; or
(e) the defence of Australia; or
(f) the operation of lighthouses, lightships, beacons or buoys; or
(g) astronomical or meteorological observations; or
(h) an activity of a corporation to which paragraph 51(xx) of the
Constitution applies; or
(i) banking, other than State banking; or
(j) insurance, other than State insurance; or
(k) weighing or measuring.
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Division 9 Cabling providers
Section 418
354 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Division 9—Cabling providers
418 Cabling work
A reference in this Division to cabling work is a reference to:
(a) the installation of customer cabling for connection to a
telecommunications network or to a facility; or
(b) the connection of customer cabling to a telecommunications
network or to a facility; or
(c) the maintenance of customer cabling connected to a
telecommunications network or to a facility.
419 Types of cabling work
(1) The ACMA may, by legislative instrument, declare that a specified
kind of cabling work is a type of cabling work for the purposes of
this Division.
(2) The declaration has effect accordingly.
(3) For the purposes of this Division, the type of cabling work is to be
ascertained solely by reference to the declaration.
420 Prohibition of unauthorised cabling work
(1) A person must not perform a particular type of cabling work
unless:
(a) the person is subject to the cabling provider rules; or
(b) the person performs the work under the supervision of
another person who is subject to the cabling provider rules;
or
(c) the person is the holder of a cabling licence that authorises
the performance of that type of cabling work; or
(d) the person performs the work under the supervision of the
holder of a cabling licence that authorises the performance of
that type of cabling work.
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Section 421
Telecommunications Act 1997 355
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(2) A person who contravenes subsection (1) commits an offence
punishable on conviction by a fine not exceeding 120 penalty units.
Note 1: See also sections 4AA and 4B of the Crimes Act 1914.
Note 2: See also Division 13 of this Part (which deals with the payment of
penalties as an alternative to prosecution).
421 Cabling provider rules
(1) The ACMA may, by legislative instrument, make rules (cabling
provider rules) that:
(a) are expressed to apply to specified persons; and
(b) relate to:
(i) the performance of cabling work; or
(ii) the supervision of the performance of cabling work;
or both.
Note: A person may be specified by name, by inclusion in a specified class
or in any other way.
(2) A person specified under paragraph (1)(a) is said to be subject to
the cabling provider rules.
(3) A person who is subject to the cabling provider rules must comply
with the cabling provider rules.
(4) A person who contravenes subsection (3) commits an offence
punishable on conviction by a fine not exceeding 100 penalty units.
Note 1: See also sections 4AA and 4B of the Crimes Act 1914.
Note 2: See also Division 13 of this Part (which deals with the payment of
penalties as an alternative to prosecution).
(5) The cabling provider rules may make provision for or in relation to
a particular matter by empowering the ACMA to make decisions of
an administrative character.
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Section 422
356 Telecommunications Act 1997
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422 Procedures for making cabling provider rules
(1) Before making cabling provider rules under section 421, the
ACMA must, so far as is practicable, try to ensure that:
(a) interested persons have had an adequate opportunity to make
representations about the proposed rules (either directly, or
indirectly by means of a report under paragraph (2)(g)); and
(b) due consideration has been given to any representation so
made.
(2) The ACMA may make an arrangement with any of the following
bodies or associations:
(a) Standards Australia;
(b) a body or association approved in writing by Standards
Australia for the purposes of this subsection;
(c) a body or association specified in a written determination
made by the ACMA for the purposes of this subsection;
under which the body or association:
(d) prepares a draft of the cabling provider rules; and
(e) publishes the draft rules; and
(f) undertakes a process of public consultation on the draft rules;
and
(g) reports to the ACMA on the results of that process of public
consultation.
(3) A copy of an approval under paragraph (2)(b) is to be published in
the Gazette.
(4) A copy of a determination under paragraph (2)(c) is to be
published in the Gazette.
(5) For the purposes of subsection (1), interested persons are taken not
to have had an adequate opportunity to make representations unless
there was a period of at least 60 days during which the
representations could be made.
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Section 423
Telecommunications Act 1997 357
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423 Application for cabling licence
An individual may apply to the ACMA for a cabling licence that
authorises the performance of a particular type of cabling work.
424 Form of application
(1) An application must:
(a) be in writing; and
(b) describe the knowledge and experience of the applicant to
perform cabling work; and
(c) be in accordance with the form approved in writing by the
ACMA.
(2) The approved form of application may provide for verification by
statutory declaration of statements in applications.
425 Application to be accompanied by charge
An application must be accompanied by the charge (if any) fixed
by a determination under section 60 of the Australian
Communications and Media Authority Act 2005.
426 Further information
(1) The ACMA may, within 7 days after an application is made,
request the applicant to give the ACMA further information about
the application.
(2) The ACMA may refuse to consider the application until the
applicant gives the ACMA the information.
427 Grant of cabling licence
(1) After considering an application, the ACMA may grant a cabling
licence in accordance with the application.
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Section 428
358 Telecommunications Act 1997
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(2) The ACMA must not grant a cabling licence authorising the
performance of a particular type of cabling work unless it is
satisfied that:
(a) the applicant has the necessary knowledge and experience to
perform cabling work of that type; and
(b) cabling work of that type performed in accordance with the
conditions included in the licence would comply with
standards in force under section 376; and
(c) the issue of the licence is not contrary to directions given by
the Minister under section 440.
428 Time limit on licence decision
If the ACMA neither grants, nor refuses to grant, a cabling licence
before the end of whichever of the following periods is applicable:
(a) if the ACMA did not give a request under section 426 in
relation to the licence application—the period of 30 days
after the day on which the ACMA received the application;
(b) if:
(i) the ACMA gave a request under section 426 in relation
to the licence application; and
(ii) the request was complied with;
the period of 30 days after the day on which the request was
complied with;
(c) if:
(i) the ACMA gave a request under section 426 in relation
to the licence application; and
(ii) the request was not complied with;
the period of 30 days after the end of the period specified in
the request;
the ACMA is taken, at the end of that 30-day period, to have
refused to grant the licence under section 427.
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Section 429
Telecommunications Act 1997 359
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429 Notification of refusal of application
If the ACMA decides to refuse to grant a cabling licence, the
ACMA must give written notice of the decision to the applicant.
430 Cabling licence has effect subject to this Act
(1) A cabling licence has effect subject to this Act.
(2) In this section:
this Act includes the Telecommunications (Consumer Protection
and Service Standards) Act 1999 and regulations under that Act.
431 Duration of cabling licence
A cabling licence comes into force when it is issued and remains in
force:
(a) if the licence specifies a day of expiration—until the end of
that day; or
(b) otherwise—indefinitely.
432 Conditions of cabling licence
(1) A cabling licence is subject to such conditions as are specified in a
written determination made by the ACMA for the purposes of this
subsection.
(2) A cabling licence is subject to such conditions as are specified in
the licence.
(3) The ACMA may, by written notice given to the holder of a cabling
licence:
(a) impose one or more further conditions to which the licence is
subject; or
(b) revoke or vary any condition:
(i) imposed under paragraph (a); or
(ii) specified in the licence.
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Section 433
360 Telecommunications Act 1997
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(4) The following are examples of conditions to which a cabling
licence could be subject:
(a) conditions relating to the types of premises in or on which
the holder of the licence may perform cabling work;
(b) conditions requiring customer cabling to be inspected by
persons authorised in writing by the ACMA for the purposes
of this paragraph.
(5) A determination under subsection (1) is a legislative instrument.
433 Procedures for changing licence conditions
(1) The ACMA’s powers under subsection 432(3) may be exercised:
(a) on the ACMA’s own initiative; or
(b) on application made to the ACMA by the holder of the
licence.
(2) An application under paragraph (1)(b) must:
(a) be in writing; and
(b) be in accordance with the form approved in writing by the
ACMA.
(3) The approved form of application may provide for verification by
statutory declaration of statements in applications.
(4) If the ACMA refuses an application under paragraph (1)(b), the
ACMA must give written notice of the refusal to the applicant.
(5) If the ACMA neither grants, nor refuses to grant, an application
under paragraph (1)(b) before the end of 30 days after receiving the
application, the ACMA is taken, at the end of that period, to have
refused the application.
434 Offence in relation to contravening condition
(1) A person commits an offence if:
(a) the person is the holder of a cabling licence that authorises
the performance of a particular type of cabling work; and
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Section 435
Telecommunications Act 1997 361
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(b) the person performs cabling work of that type; and
(c) the performance of that work contravenes a condition to
which the licence is subject.
Penalty: 100 penalty units.
Note 1: See also sections 4AA and 4B of the Crimes Act 1914.
Note 2: See also Division 13 of this Part (which deals with the payment of
penalties as an alternative to prosecution).
(2) A person commits an offence if:
(a) the person is the holder of a cabling licence that authorises
the performance of a particular type of cabling work; and
(b) the person engages in conduct; and
(c) the result of the person’s conduct is a failure to take all
reasonable steps to ensure that cabling work of that type
performed under the person’s supervision does not
contravene the conditions of the licence.
Penalty: 100 penalty units.
Note 1: See also sections 4AA and 4B of the Crimes Act 1914.
Note 2: See also Division 13 of this Part (which deals with the payment of
penalties as an alternative to prosecution).
(3) In this section:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
435 Formal warnings—breach of condition
The ACMA may issue a formal warning if the holder of a cabling
licence contravenes a condition to which the licence is subject.
436 Surrender of cabling licence
(1) The holder of a cabling licence may, at any time, surrender the
licence by:
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Section 437
362 Telecommunications Act 1997
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(a) returning it to the ACMA; and
(b) giving the ACMA written notice that it is surrendered.
(2) The surrender of a cabling licence takes effect on the day on which
the notice is given to the ACMA.
437 Suspension of cabling licence
(1) The ACMA may, by written notice given to the holder of a cabling
licence, suspend the cabling licence for a period of not longer than
28 days.
(2) In deciding whether to suspend the cabling licence, the ACMA
must have regard to:
(a) any matter to which the ACMA was required, under
section 427, to have regard in deciding whether to grant a
cabling licence; and
(b) whether or not the holder of the cabling licence has been
convicted of an offence against this Division.
(3) Subsection (2) does not, by implication, limit the matters to which
the ACMA may have regard.
(4) During the period of suspension, section 420 has effect as if the
licence did not exist.
438 Cancellation of cabling licence
(1) The ACMA may, by written notice given to the holder of a cabling
licence, cancel the cabling licence.
(2) In deciding whether to cancel the cabling licence, the ACMA must
have regard to:
(a) any matter to which the ACMA was required, under
section 427, to have regard in deciding whether to grant a
cabling licence; and
(b) whether or not the holder of the cabling licence has been
convicted of an offence against this Division.
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Section 439
Telecommunications Act 1997 363
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(3) Subsection (2) does not, by implication, limit the matters to which
the ACMA may have regard.
439 ACMA may limit application of Division in relation to customer
cabling
(1) The ACMA may, by legislative instrument, declare that this
Division, or specified provisions of it, do not apply in relation to
specified kinds of customer cabling.
(2) An instrument under subsection (1) may specify a kind of customer
cabling:
(a) by reference to the technical characteristics of the cabling; or
(b) by reference to the functions of the cabling; or
(c) by reference to the purposes for which the cabling is used, or
is intended to be used, by the customer concerned; or
(d) by reference to the location of the cabling.
(3) Subsection (2) does not, by implication, limit subsection (1).
(4) This Division has effect in accordance with an instrument in force
under subsection (1).
440 Ministerial directions
(1) The Minister may, by legislative instrument, give the ACMA
written directions about how it is to perform its functions or
exercise its powers under this Division.
(2) A direction under subsection (1) may require the ACMA to make
cabling provider rules that deal with one or more specified matters.
(2A) Subsection (2) does not limit subsection (1).
(3) A direction under subsection (1) must not concern the way in
which the ACMA is to deal with a particular application for a
cabling licence.
(4) The Minister must not give the ACMA a direction under section 14
of the Australian Communications and Media Authority Act 2005
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Division 9 Cabling providers
Section 441
364 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
about how the ACMA is to perform its functions or exercise its
powers under this Division.
441 Delegation
(1) The ACMA may, by writing, delegate to a person any or all of its
functions and powers under this Division.
(1A) If, under section 50 of the Australian Communications and Media
Authority Act 2005, the ACMA has delegated a function or power
referred to in subsection (1) to a Division of the ACMA, the
following provisions have effect:
(a) the Division may delegate the function or power to a person;
(b) subsections 52(2), (3), (4), (5) and (6) of the Australian
Communications and Media Authority Act 2005 have effect
as if the delegation by the Division were a delegation under
section 52 of that Act.
(2) Subsections (1) and (1A) do not apply to the following powers:
(a) the power to refuse an application for a cabling licence;
(b) the power conferred by subsection 432(3);
(c) the power to cancel or suspend a cabling licence;
(d) the power to make a declaration under section 439.
(3) The delegate is, in the exercise of the delegated function or power,
subject to the written directions of:
(a) the ACMA, if the delegation to the delegate was under
subsection (1); or
(b) the Division that delegated the power, if the delegation to the
delegate was under subsection (1A).
(4) The powers conferred on the ACMA by subsection (1), and on a
Division of the ACMA by subsection (1A), are in addition to the
powers conferred by sections 50, 51 and 52 of the Australian
Communications and Media Authority Act 2005.
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Cabling providers Division 9
Section 442
Telecommunications Act 1997 365
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
442 Register of cabling licences
(1) The ACMA is to maintain a Register in which it includes:
(a) all cabling licences currently in force; and
(b) all conditions of such licences.
(2) The Register may be maintained by electronic means.
(3) A person may, on payment of the charge (if any) fixed by a
determination under section 60 of the Australian Communications
and Media Authority Act 2005:
(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 ACMA 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 ACMA may provide the relevant information:
(a) on a data processing device; or
(b) by way of electronic transmission.
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Division 10 Remedies for unauthorised connections to telecommunications networks
etc.
Section 443
366 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Division 10—Remedies for unauthorised connections to
telecommunications networks etc.
443 Civil action for unauthorised connections to telecommunications
networks etc.
(1) If:
(a) a person:
(i) connects customer equipment, or customer cabling, to a
telecommunications network, or to a facility, contrary to
section 411; or
(ii) has under his or her control customer equipment, or
customer cabling, connected to a telecommunications
network, or to a facility, where the equipment or cabling
was so connected by another person contrary to
section 411; and
(b) as a result of:
(i) the connection of the customer equipment or customer
cabling to the network or facility; or
(ii) the customer equipment or customer cabling being used
while it was so connected;
either:
(iii) damage is caused to the network or the facility; or
(iv) the manager of the network or facility suffers a loss or
incurs a liability;
the manager of the network or facility may apply to the Federal
Court for remedial relief.
(2) The relief that may be granted includes an injunction and, at the
option of the manager, either damages or an account of profits.
(3) If an application is made to the Federal Court for an injunction
under this section, the court may grant an interim injunction
pending determination of the application.
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Section 444
Telecommunications Act 1997 367
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(4) The power of the court under this section to grant an injunction
restraining a person from engaging in conduct of a particular kind
may be exercised:
(a) if the court is satisfied that the person has engaged in conduct
of that kind—whether or not it appears to the court that the
person intends to engage again, or to continue to engage, in
conduct of that kind; or
(b) if it appears to the court that, if an injunction is not granted, it
is likely that the person will engage in conduct of that kind—
whether or not the person has previously engaged in conduct
of that kind and whether or not there is an imminent danger
of substantial damage to any person if the person engages in
conduct of that kind.
(5) The power of the court under this section to grant an injunction
requiring a person to do an act or thing may be exercised:
(a) if the court is satisfied that the person has refused or failed to
do that act or thing—whether or not it appears to the court
that the person intends to refuse or fail again, or to continue
to refuse or fail, to do that act or thing; or
(b) if it appears to the court that, if an injunction is not granted, it
is likely that the person will refuse or fail to do that act or
thing—whether or not the person has previously refused or
failed to do that act or thing and whether or not there is an
imminent danger of substantial damage to any person if the
person refuses or fails to do that act or thing.
(6) An application under this section must be made within 3 years after
the damage was caused, the loss was suffered or the liability was
incurred, as the case requires.
444 Remedy for contravention of labelling requirements
(1) If:
(a) a person (the first person) contravenes section 413, 414 or
415 in relation to particular customer equipment or particular
customer cabling; and
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Division 10 Remedies for unauthorised connections to telecommunications networks
etc.
Section 445
368 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(b) a person (who may be the first person) connects the
equipment or cabling to a telecommunications network or to
a facility; and
(c) as a result of:
(i) the connection of the equipment or cabling to the
network or facility; or
(ii) the equipment or cabling being used while it was so
connected;
either:
(iii) damage is caused to the network or the facility; or
(iv) the manager of the network or facility suffers a loss;
the manager of the network or facility may apply to the Federal
Court for the recovery from the first person of the amount of the
loss or damage.
(2) An application under this section must be made within 3 years after
the damage was caused or the loss was suffered, as the case
requires.
445 Remedies for connection of unlabelled customer equipment or
unlabelled customer cabling
(1) This section applies if:
(a) a person:
(i) connects customer equipment, or customer cabling, to a
telecommunications network or to a facility; or
(ii) has under his or her control customer equipment, or
customer cabling, connected to a telecommunications
network or to a facility; and
(b) the manufacturer or importer of the equipment or cabling was
required by subsection 407(1) to apply a label to the
equipment or cabling; and
(c) either:
(i) the manufacturer or importer did not comply with the
requirement; or
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Section 445
Telecommunications Act 1997 369
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(ii) the manufacturer or importer complied with the
requirement, but the label indicated that the equipment
or cabling did not meet the requirements of the
section 376 standards that were specified in the
first-mentioned requirement.
(2) If, as a result of:
(a) the connection of the equipment or cabling to the network or
facility; or
(b) the equipment or cabling being used while it was so
connected;
either:
(c) damage is caused to the network or the facility; or
(d) the manager of the network or facility suffers a loss;
the manager of the network or facility may apply to the Federal
Court for remedial relief.
(3) The relief that may be granted includes an injunction and, at the
option of the manager, either damages or an account of profits.
(4) The manager of the network or facility may disconnect the
equipment or cabling from the network or facility.
(5) If it is necessary for other customer equipment or other customer
cabling to be disconnected from the network or facility in order to
achieve the disconnection mentioned in subsection (4), the
manager may disconnect that other equipment or cabling.
(6) If an application is made to the Federal Court for an injunction
under this section, the court may grant an interim injunction
pending determination of the application.
(7) The power of the court under this section to grant an injunction
restraining a person from engaging in conduct of a particular kind
may be exercised:
(a) if the court is satisfied that the person has engaged in conduct
of that kind—whether or not it appears to the court that the
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Division 10 Remedies for unauthorised connections to telecommunications networks
etc.
Section 446
370 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
person intends to engage again, or to continue to engage, in
conduct of that kind; or
(b) if it appears to the court that, if an injunction is not granted, it
is likely that the person will engage in conduct of that kind—
whether or not the person has previously engaged in conduct
of that kind and whether or not there is an imminent danger
of substantial damage to any person if the person engages in
conduct of that kind.
(8) The power of the court under this section to grant an injunction
requiring a person to do an act or thing may be exercised:
(a) if the court is satisfied that the person has refused or failed to
do that act or thing—whether or not it appears to the court
that the person intends to refuse or fail again, or to continue
to refuse or fail, to do that act or thing; or
(b) if it appears to the court that, if an injunction is not granted, it
is likely that the person will refuse or fail to do that act or
thing—whether or not the person has previously refused or
failed to do that act or thing and whether or not there is an
imminent danger of substantial damage to any person if the
person refuses or fails to do that act or thing.
(9) An application under this section must be made within 3 years after
the damage was caused or the loss was suffered, as the case
requires.
446 Disconnection of dangerous customer equipment or customer
cabling
(1) If:
(a) a person (the first person):
(i) connects customer equipment, or customer cabling, to a
telecommunications network or to a facility; or
(ii) has under his or her control customer equipment, or
customer cabling, connected to a telecommunications
network or to a facility; and
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Section 446
Telecommunications Act 1997 371
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(b) the manager of the network or facility has an honest belief
that the equipment or cabling is, or is likely to be, a threat to
the health or safety of persons who:
(i) operate; or
(ii) work on; or
(iii) use services supplied by means of; or
(iv) are otherwise reasonably likely to be affected by the
operation of;
a telecommunications network or a facility;
the manager of the network or facility may:
(c) disconnect the equipment or cabling; and
(d) if it is necessary to disconnect other customer equipment or
other customer cabling for the purposes of achieving the
disconnection referred to in paragraph (c)—disconnect that
other equipment or cabling.
(2) If:
(a) equipment or cabling is disconnected, or purportedly
disconnected, under subsection (1); and
(b) the ACMA is satisfied that there were no reasonable grounds
for the belief mentioned in paragraph (1)(b);
the ACMA may, by written notice given to the manager of the
network or facility, direct the manager to reconnect the equipment
or cabling.
(3) A person must comply with a direction under subsection (2).
(4) If:
(a) equipment or cabling is disconnected, or purportedly
disconnected, under subsection (1); and
(b) the manager of the network or facility had no reasonable
grounds for the belief mentioned in paragraph (1)(b); and
(c) as a result of the disconnection, the first person suffers loss or
damage;
the first person may apply to the Federal Court for the recovery
from the manager of the amount of the loss or damage.
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Division 10 Remedies for unauthorised connections to telecommunications networks
etc.
Section 447
372 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(5) An application under subsection (4) must be made within 3 years
after the damage was caused or the loss was suffered, as the case
requires.
447 Disconnection of customer equipment or customer cabling—
protection of the integrity of networks and facilities
(1) If:
(a) a person (the first person):
(i) connects customer equipment, or customer cabling, to a
telecommunications network or to a facility; or
(ii) has under his or her control customer equipment, or
customer cabling, connected to a telecommunications
network or to a facility; and
(b) the manager of the network or facility has an honest belief
that the equipment or cabling is, or is likely to be, a threat to
the integrity of a telecommunications network or a facility;
the manager of the network or facility may:
(c) disconnect the equipment or cabling; and
(d) if it is necessary to disconnect other customer equipment or
other customer cabling for the purposes of achieving the
disconnection referred to in paragraph (c)—disconnect that
other equipment or cabling.
(2) If:
(a) equipment or cabling is disconnected, or purportedly
disconnected, under subsection (1); and
(b) the ACMA is satisfied that there were no reasonable grounds
for the belief mentioned in paragraph (1)(b);
the ACMA may, by written notice given to the manager of the
network or facility, direct the manager to reconnect the equipment
or cabling.
(3) A person must comply with a direction under subsection (2).
(4) If:
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Section 448
Telecommunications Act 1997 373
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(a) equipment or cabling is disconnected, or purportedly
disconnected, under subsection (1); and
(b) the manager of the network or facility had no reasonable
grounds for the belief mentioned in paragraph (1)(b); and
(c) as a result of the disconnection, the first person suffers loss or
damage;
the first person may apply to the Federal Court for the recovery
from the manager of the amount of the loss or damage.
(5) An application under subsection (4) must be made within 3 years
after the damage was caused or the loss was suffered, as the case
requires.
448 Civil action for dangerous connections to telecommunications
networks etc.
(1) If:
(a) a person:
(i) connects customer equipment, or customer cabling, to a
telecommunications network or to a facility; or
(ii) has under his or her control customer equipment, or
customer cabling, connected to a telecommunications
network or to a facility; and
(b) the equipment or cabling is, or is likely to be, a threat to the
health or safety of persons who:
(i) operate; or
(ii) work on; or
(iii) use services supplied by means of; or
(iv) are otherwise reasonably likely to be affected by the
operation of;
a telecommunications network or a facility; and
(c) as a result of:
(i) the connection of the equipment or cabling to the
network or facility; or
(ii) the equipment or cabling being used while it was so
connected;
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Division 10 Remedies for unauthorised connections to telecommunications networks
etc.
Section 449
374 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
either:
(iii) damage is caused to the network or the facility; or
(iv) the manager of the network or facility suffers a loss;
the manager of the network or facility may apply to the Federal
Court for the recovery from the person of the amount of the loss or
damage.
(2) An application under subsection (1) must be made within 3 years
after the damage was caused or the loss was suffered, as the case
requires.
449 Other remedies not affected
This Division does not, by implication, affect other remedies.
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Prohibited customer equipment and prohibited customer cabling Division 11
Section 450
Telecommunications Act 1997 375
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Division 11—Prohibited customer equipment and
prohibited customer cabling
450 Declaration of prohibited customer equipment or prohibited
customer cabling
(1) The ACMA may, by legislative instrument, declare that operation
or supply, or possession for the purpose of operation or supply, of:
(a) specified customer equipment; or
(b) specified customer cabling;
is prohibited for the reasons set out in the instrument.
(2) Those reasons must relate to:
(a) the protection of the integrity of a telecommunications
network or of a facility; or
(b) the protection of the health or safety of persons who:
(i) operate; or
(ii) work on; or
(iii) use services supplied by means of; or
(iv) are otherwise reasonably likely to be affected by the
operation of;
a telecommunications network or a facility.
(3) A copy of an instrument under subsection (1) must be published on
the ACMA’s website.
(5) In this section:
supply includes supply (including re-supply) by way of sale,
exchange, lease, hire or hire-purchase.
452 Operation of prohibited customer equipment or customer
cabling
(1) A person must not:
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Division 11 Prohibited customer equipment and prohibited customer cabling
Section 452
376 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(a) operate or supply customer equipment, or customer cabling,
in respect of which a declaration is in force under
section 450; or
(b) have in his or her possession customer equipment, or
customer cabling, in respect of which such a declaration is in
force, if the possession is for the purpose of operating or
supplying the equipment or cabling.
(2) A person who contravenes subsection (1) commits an offence
punishable on conviction by a fine not exceeding 2,000 penalty
units.
Note: See also sections 4AA and 4B of the Crimes Act 1914.
(3) In this section:
supply includes supply (including re-supply) by way of sale,
exchange, lease, hire or hire-purchase.
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Pre-commencement labels Division 12
Section 453
Telecommunications Act 1997 377
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Division 12—Pre-commencement labels
453 Pre-commencement labels
(1) This section applies if:
(a) before the commencement of this section, customer
equipment was labelled in accordance with a condition of a
kind mentioned in paragraph 258(2)(a) of the
Telecommunications Act 1991; and
(b) the label embodied the protected symbol (within the meaning
of section 402A of that Act).
(2) This Part has effect as if:
(a) at the time when the equipment was manufactured or
imported, the manufacturer or importer had been required by
subsection 407(1) to apply the label to the equipment; and
(b) the manufacturer or importer had complied with that
requirement by applying the label to the equipment; and
(c) the label had indicated that the equipment met the
requirements of each of the section 376 standards that were
applicable to the equipment when it was manufactured or
imported.
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Division 13 Penalties payable instead of prosecution
Section 453A
378 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Division 13—Penalties payable instead of prosecution
453A Penalties payable instead of prosecution
(1) The regulations may make provision in relation to enabling a
person who is alleged to have committed an offence of a kind
referred to in the following table to pay to the Commonwealth, as
an alternative to prosecution, a penalty of an amount worked out in
accordance with subsection (2).
(2) The amount of penalty payable to the Commonwealth under
regulations made for the purposes of subsection (1) in respect of an
offence is determined using the following table:
Penalties payable
Item Alleged offence Penalty for
individual
Penalty for body
corporate
1 subsection 399(1) 12 penalty units 60 penalty units
2 subsection 411(2) 12 penalty units 60 penalty units
3 subsection 413(2) 12 penalty units 60 penalty units
4 subsection 414(2) 12 penalty units 60 penalty units
5 subsection 415(2) 12 penalty units 60 penalty units
6 subsection 416(2) 12 penalty units 60 penalty units
7 subsection 417(2) 6 penalty units 30 penalty units
8 subsection 420(2) 12 penalty units 60 penalty units
9 subsection 421(4) 12 penalty units 60 penalty units
10 subsection 434(1) or (2) 12 penalty units 60 penalty units
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Numbering of carriage services and regulation of electronic addressing Part 22
Simplified outline Division 1
Section 454
Telecommunications Act 1997 379
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Part 22—Numbering of carriage services and
regulation of electronic addressing
Division 1—Simplified outline
454 Simplified outline
The following is a simplified outline of this Part:
• The ACMA is required to make a plan for:
(a) the numbering of carriage services in Australia;
and
(b) the use of numbers in connection with the supply
of such services.
• The plan is called the numbering plan.
• Numbers may be allocated to carriage service providers:
(a) in accordance with an allocation system; or
(b) otherwise than in accordance with such a system.
• The numbering plan will specify emergency service numbers.
• The ACMA and the ACCC may give directions to managers
of electronic addressing so long as the electronic addressing is
of public importance.
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Part 22 Numbering of carriage services and regulation of electronic addressing
Division 2 Numbering of carriage services
Section 455
380 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Division 2—Numbering of carriage services
Subdivision A—Numbering plan
455 Numbering plan
(1) The ACMA must, by legislative instrument, make a plan for:
(a) the numbering of carriage services in Australia; and
(b) the use of numbers in connection with the supply of such
services.
(2) The plan is called the numbering plan.
(3) The numbering plan must specify the numbers that are for use in
connection with the supply of carriage services to the public in
Australia.
Note: Specification is the “first tier” concept. It operates at the level of a
general specification of numbers.
(4) Different numbers may be specified for use in connection with the
supply of different types of carriage services.
(5) The numbering plan may set out rules about:
(a) the allocation of numbers to carriage service providers; and
(b) the transfer of allocated numbers between carriage service
providers; and
(c) the surrender or withdrawal of allocated numbers; and
(d) the portability of allocated numbers (including rules about
the maintenance of, and access to, databases that facilitate
portability); and
(e) the use of allocated numbers in connection with the supply of
carriage services to the public in Australia (including rules
about the issue of allocated numbers by carriage service
providers to customers for use in connection with the supply
of carriage services).
Note 1: Allocation is the “second tier” concept. It operates at the level of
particular carriage service providers.
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Numbering of carriage services Division 2
Section 455
Telecommunications Act 1997 381
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Note 2: Issue is the “third tier” concept. It operates at the level of particular
customers of carriage service providers. The issue of an allocated
number to a customer does not affect the allocation of the number to
the carriage service provider concerned.
(6) Rules made for the purposes of paragraph (5)(a) may authorise the
allocation of specified numbers:
(a) in accordance with an allocation system determined under
section 463; or
(b) otherwise than in accordance with such a system.
(7) The numbering plan may make provision for, or in relation to, a
matter by empowering the ACMA to make decisions of an
administrative character.
(8) Subsections (3) to (7) (inclusive) do not, by implication, limit the
matters that may be dealt with by the numbering plan.
(9) The renumbering of a number in accordance with the numbering
plan does not affect the continuity of:
(a) the allocation of the number; or
(b) the issue of the number.
(10) In making or varying the numbering plan, the ACMA must have
regard to:
(a) the obligations imposed on carriage service providers by
Part 4 of the Telecommunications (Consumer Protection and
Service Standards) Act 1999; and
(b) recognised international standards.
This subsection does not, by implication, limit the matters to which
regard may be had.
(12) Despite subsection (1), the ACMA is not required to make a
numbering plan before 1 January 1998.
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Part 22 Numbering of carriage services and regulation of electronic addressing
Division 2 Numbering of carriage services
Section 456
382 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
456 Numbering plan—supply to the public
(1) This section sets out the circumstances in which a carriage service
is taken, for the purposes of section 455, to be supplied to the
public.
(2) If:
(a) a carriage service is used for the carriage of communications
between 2 end-users; and
(b) each end-user is outside the immediate circle of the supplier
of the service;
the service is supplied to the public.
457 Numbering plan—allocation otherwise than in accordance with
an allocation system
(1) The numbering plan must impose the following requirements in
relation to an application for the allocation of a number otherwise
than in accordance with an allocation system determined under
section 463:
(a) a requirement that the application must be accompanied by
the charge (if any) fixed by a determination under section 60
of the Australian Communications and Media Authority Act
2005;
(b) a requirement that the applicant must tender the amount of
charge (if any) imposed on the allocation by Part 2 of the
Telecommunications (Numbering Charges) Act 1997.
(2) If an applicant tenders an amount as mentioned in paragraph (1)(b),
but the application is not successful, the amount is to be refunded
to the applicant.
458 Numbering plan—rules about portability of allocated numbers
(1) The ACMA must not make a numbering plan that sets out rules
about the matter mentioned in paragraph 455(5)(d) (portability of
allocated numbers) unless the ACMA is directed to do so by the
ACCC under subsection (2).
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Numbering of carriage services Division 2
Section 459
Telecommunications Act 1997 383
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(2) The ACCC may give written directions to the ACMA in relation to
the exercise of the power to determine a numbering plan setting out
rules as mentioned in subsection (1).
(3) In exercising the power conferred by subsection (2), the ACCC
must ensure that, at all times when the numbering plan is in force,
the plan sets out rules about the matter mentioned in
paragraph 455(5)(d).
(4) The ACMA must exercise its powers under section 455 in a
manner consistent with any directions given by the ACCC under
subsection (2).
(5) In exercising the power conferred by subsection (2), the ACCC
must have regard to whether portability of particular allocated
numbers is required in order to promote the long-term interests of
end-users of carriage services or of services supplied by means of
carriage services.
(6) For the purposes of this section, the question whether a particular
thing promotes the long-term interests of end-users of carriage
services or of services supplied by means of carriage services is to
be determined in the same manner as that question is determined
for the purposes of Part XIC of the Competition and Consumer Act
2010.
459 ACMA to administer numbering plan
The ACMA has the general administration of the numbering plan.
460 Consultation about numbering plan
(1) Before making a numbering plan, the ACMA must publish on its
website a notice:
(a) stating that the ACMA has prepared a draft of the plan; and
(b) setting out the draft; and
(c) inviting interested persons to give written comments about
the draft to the ACMA within 90 days after the publication of
the notice.
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Section 461
384 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(2) If interested persons have given comments about the draft in
accordance with the notice, the ACMA must have due regard to
those comments in making the plan.
(3) If the ACMA is of the opinion:
(a) that a variation of a numbering plan:
(i) will affect a number issued to a customer of a carriage
service provider; and
(ii) is not a variation that, under a written declaration made
by the ACMA under this subparagraph, is taken to be a
minor variation; or
(b) that it is in the public interest that the public should be
consulted about a variation of a numbering plan;
the ACMA must publish on its website a notice:
(c) stating that the ACMA has prepared a draft of the variation;
and
(d) setting out the draft; and
(e) inviting interested persons to give written comments about
the draft to the ACMA within 30 days after the publication of
the notice.
(4) If interested persons have given comments about the draft in
accordance with the notice, the ACMA must have due regard to
those comments in varying the plan.
(4A) A declaration under subparagraph (3)(a)(ii) is a legislative
instrument.
461 Consultation with ACCC
(1) Before making or varying a numbering plan, the ACMA must
consult the ACCC.
(2) The numbering plan may provide that, before exercising a power
conferred on the ACMA by the numbering plan, the ACMA must
consult the ACCC.
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Section 462
Telecommunications Act 1997 385
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
462 Compliance with the numbering plan
(1) A person who is a carrier or a carriage service provider must
comply with the numbering plan.
(2) If:
(a) a person (the first person) is a carrier or a carriage service
provider; and
(b) the plan requires the first person to provide number
portability in relation to customers of a carriage service
provider;
the first person must comply with that requirement on such terms
and conditions as are:
(c) agreed between the following parties:
(i) the first person;
(ii) the carriage service provider; or
(d) failing agreement, determined by an arbitrator appointed by
the parties.
If the parties fail to agree on the appointment of an arbitrator, the
ACCC is to be the arbitrator.
(3) The regulations may make provision for and in relation to the
conduct of an arbitration under this section.
(4) The regulations may provide that, for the purposes of a particular
arbitration conducted by the ACCC under this section, the ACCC
may be constituted by a single member, or a specified number of
members, of the ACCC. For each such arbitration, that member or
those members are to be nominated in writing by the Chairperson
of the ACCC.
(5) Subsection (4) does not, by implication, limit subsection (3).
(6) A determination made in an arbitration under this section must not
be inconsistent with:
(a) the numbering plan; or
(b) with a pricing principles determination.
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Section 463
386 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
For this purpose, a pricing principles determination is a written
determination made by the Minister that sets out principles dealing
with price-related terms and conditions relating to a requirement of
a kind referred to in paragraph (2)(b).
(7) A determination made by the Minister under subsection (6) is a
legislative instrument.
(8) In this section:
price-related terms and conditions means terms and conditions
relating to price or a method of ascertaining price.
Subdivision B—Allocation system for numbers
463 Allocation system for numbers
(1) The ACMA may, by legislative instrument, determine an allocation
system for allocating specified numbers to carriage service
providers.
(2) Before so determining the system, the ACMA must consult the
ACCC.
(3) A system so determined:
(a) may apply generally or in respect of a particular area; and
(b) may require payment of an application fee.
(4) A system so determined may:
(a) impose limits on the quantity of numbers that the ACMA
may allocate to:
(i) any one person; or
(ii) a specified person; or
(b) impose limits on the quantity of numbers that the ACMA
may, in total, allocate to the members of a specified group of
persons.
Note: Persons or groups may be specified by name, by inclusion in a
specified class or in any other way.
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Section 464
Telecommunications Act 1997 387
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(5) Subsections (3) and (4) do not, by implication, limit subsection (1).
(6) A system so determined must provide for:
(a) the successful applicant for the allocation of a particular
number; and
(b) an amount, to be known as the eligible amount, in relation to
the allocation of that number;
to be determined by reference to the results of:
(c) a tender process; or
(d) a public auction; or
(e) another process;
carried out or conducted as provided by the system.
(7) The ACMA may enter into an arrangement with a person about the
collection, on behalf of the ACMA, of fees of a kind referred to in
subsection (3).
464 Consultation about an allocation system
(1) Before determining or varying an allocation system under
section 463, the ACMA must publish on its website a notice:
(a) stating that the ACMA has prepared a draft of the plan or
variation; and
(b) setting out the draft; and
(c) inviting interested persons to give written comments about
the draft to the ACMA within 30 days after the publication of
the notice.
(2) If interested persons have given comments about the draft in
accordance with the notice, the ACMA must have due regard to
those comments in determining or varying the system, as the case
may be.
(3) Subsection (1) does not apply to a variation if the variation is of a
minor nature.
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Section 465
388 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Subdivision C—Miscellaneous
465 Register of allocated numbers
(1) For the purposes of this section, the designated authority is:
(a) the ACMA; or
(b) if the ACMA enters into an arrangement with another person
under which the other person agrees to perform the functions
conferred on the designated authority by this section—that
other person.
Note: An arrangement under paragraph (b) may provide for the payment of
amounts by the ACMA to the other person.
(2) The designated authority is to maintain a Register in which the
designated authority includes:
(a) particulars of numbers that have been allocated to carriage
service providers under the authority of the numbering plan;
and
(b) in the case of a number that has been allocated in accordance
with an allocation system determined under section 463:
(i) the name of the successful applicant for the allocation;
and
(ii) the eligible amount in relation to the allocation of the
number; and
(c) in the case of numbers that have been allocated otherwise
than in accordance with such a system—the names of the
persons to whom the numbers were allocated.
(3) The designated authority may include in the Register particulars
relating to numbers that are taken, for the purposes of Part 3 of the
Telecommunications (Numbering Charges) Act 1997, to be held by
carriage service providers. Those particulars are to include the
names of the carriage service providers concerned.
(4) The Register may be maintained by electronic means.
(5) If the ACMA is the designated authority, a person may, on
payment of the charge (if any) fixed by a determination under
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Section 466
Telecommunications Act 1997 389
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
section 60 of the Australian Communications and Media Authority
Act 2005:
(a) inspect the Register; and
(b) make a copy of, or take extracts from, the Register.
(6) If the ACMA is not the designated authority, a person may, on
payment to the designated authority 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.
(7) 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 designated authority gives
the person a printout of, or of the relevant parts of, the Register.
(8) If a person requests that a copy be provided in an electronic form,
the designated authority may provide the relevant information:
(a) on a data processing device; or
(b) by way of electronic transmission.
466 Emergency service numbers
(1) The object of this section is to identify numbers for the purpose of
calling an emergency call service in connection with emergencies
that are likely to require the provision of assistance by any or all of
the following services:
(a) a police force or service;
(b) a fire service;
(c) an ambulance service;
(d) a service specified in the numbering plan for the purposes of
this paragraph.
(2) For the purposes of this Act, an emergency service number is a
number specified in the numbering plan for the purposes of this
subsection.
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Section 467
390 Telecommunications Act 1997
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(3) The numbering plan may specify different numbers for use in
different areas.
(4) The numbering plan may specify different numbers for use in
connection with different types of services.
(5) The numbering plan may set out rules about the use of emergency
service numbers.
(6) In making the numbering plan, the ACMA must have regard to the
objective that, as far as practicable, there should be no more than
one emergency service number for use throughout Australia.
(7) Subsection (6) does not, by implication, limit section 455.
467 Delegation
(1) The ACMA may, by writing, delegate any or all of the powers
conferred on the ACMA by the numbering plan to a body
corporate.
(1A) If, under section 50 of the Australian Communications and Media
Authority Act 2005, the ACMA has delegated a power referred to
in subsection (1) to a Division of the ACMA, the following
provisions have effect:
(a) the Division may delegate the power to a body corporate;
(b) subsections 52(2), (3), (4), (5) and (6) of the Australian
Communications and Media Authority Act 2005 have effect
as if the delegation by the Division were a delegation under
section 52 of that Act.
(2) The delegate is, in the exercise of a delegated power, subject to the
written directions of:
(a) the ACMA, if the delegation to the delegate was under
subsection (1); or
(b) the Division that delegated the power, if the delegation to the
delegate was under subsection (1A).
(3) Before giving a direction under subsection (2), the ACMA or the
Division (as the case requires) must consult the ACCC.
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Section 468
Telecommunications Act 1997 391
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(4) The powers conferred on the ACMA by subsection (1), and on a
Division of the ACMA by subsection (1A), are in addition to the
powers conferred by sections 50, 51 and 52 of the Australian
Communications and Media Authority Act 2005.
468 Collection of numbering charges
Definitions
(1) In this section:
allocation charge means a charge imposed by Part 2 of the
Telecommunications (Numbering Charges) Act 1997.
annual charge means a charge imposed by Part 3 of the
Telecommunications (Numbering Charges) Act 1997.
late payment penalty means an amount that is payable by way of
penalty in accordance with a determination under subsection (4).
When allocation charge due and payable
(2) An allocation charge imposed on the allocation of a number is due
and payable when the number is allocated.
When annual charge due and payable
(3) An annual charge is due and payable at the time ascertained in
accordance with a written determination made by the ACMA.
Late payment penalty
(4) The ACMA may, by written instrument, determine that, if any
annual charge payable by a person remains unpaid after the time
when it became due for payment, the person is liable to pay to the
Commonwealth, by way of penalty, an amount calculated at the
rate of:
(a) 20% per annum; or
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Section 468
392 Telecommunications Act 1997
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(b) if the determination specifies a lower percentage—that lower
percentage per annum;
on the amount unpaid, computed from that time.
Determination has effect
(5) A determination under subsection (4) has effect accordingly.
Remission of penalty
(6) A determination under subsection (4) may authorise the ACMA to
make decisions about the remission of the whole or a part of an
amount of late payment penalty.
Payment of charge and late payment penalty
(7) Allocation charge, annual charge and late payment penalty are
payable to the ACMA on behalf of the Commonwealth.
Recovery of charge and penalty
(8) Allocation charge, annual charge and late payment penalty may be
recovered by the ACMA, on behalf of the Commonwealth, as debts
due to the Commonwealth.
Payment to the Commonwealth
(9) Amounts received by way of allocation charge, annual charge or
late payment penalty must be paid to the Commonwealth.
Withdrawal of number for non-payment of annual charge
(10) If any annual charge payable by a person in relation to a number
remains unpaid after the time when it became due for payment, the
ACMA may, by written notice given to the person, withdraw the
number. Such a withdrawal is taken to be in accordance with the
numbering plan.
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Section 469
Telecommunications Act 1997 393
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Legislative instrument
(11) A determination under subsection (3) or (4) is a legislative
instrument.
469 Collection of charges on behalf of the Commonwealth
The ACMA may enter into an arrangement with a person under
which the person may, on behalf of the Commonwealth, collect
payments of charge imposed by the Telecommunications
(Numbering Charges) Act 1997.
470 Cancellation of certain exemptions from charge
(1) This section cancels the effect of a provision of another Act that
would have the effect of exempting a person from liability to pay
charge imposed by the Telecommunications (Numbering Charges)
Act 1997.
(2) The cancellation does not apply if the provision of the other Act is
enacted after the commencement of this section and refers
specifically to charge imposed by the Telecommunications
(Numbering Charges) Act 1997.
471 Commonwealth not liable to charge
(1) The Commonwealth is not liable to pay charge imposed by the
Telecommunications (Numbering Charges) Act 1997.
(2) Even though the Commonwealth is not liable to pay charge
imposed by Division 1 of Part 2 of the Telecommunications
(Numbering Charges) Act 1997, it is the intention of the Parliament
that the following should be notionally liable for such a charge:
(a) a Department of State;
(b) a Department of the Parliament established under the
Parliamentary Service Act 1999;
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Section 472
394 Telecommunications Act 1997
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(c) a branch or part of the Australian Public Service in relation to
which a person has, under an Act, the powers of, or
exercisable by, the Secretary of a Department of the
Australian Public Service;
(d) an authority of the Commonwealth that cannot, by a law of
the Commonwealth, be made liable to taxation by the
Commonwealth.
(3) The Finance Minister may give such written directions as are
necessary or convenient to be given for carrying out or giving
effect to subsection (2) and, in particular, may give directions in
relation to the transfer of money within the Public Account.
(4) Directions under subsection (3) have effect, and must be complied
with, despite any other law of the Commonwealth.
(5) A reference in this section to the Commonwealth includes a
reference to an authority of the Commonwealth that cannot, by a
law of the Commonwealth, be made liable to taxation by the
Commonwealth.
472 Integrated public number database
(1) The Minister may, by legislative instrument, determine that a
specified person (other than Telstra) is to provide and maintain an
integrated public number database.
(2) If a determination is in force under subsection (1) in relation to a
person, the person must comply with the determination.
(3) If a determination is in force under subsection (1) in relation to a
person, the Minister may, by written notice given to the person,
direct the person to do, or refrain from doing, a specified act or
thing relating to the provision or maintenance of the integrated
public number database.
(4) A direction under subsection (3) may require the database to
include specified information. This subsection does not, by
implication, limit subsection (3).
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Section 473
Telecommunications Act 1997 395
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(5) A determination under subsection (1) has no effect if Telstra is
obliged by a condition of a carrier licence to provide and maintain
an integrated public number database.
(7) In this section:
public number means a number specified in the numbering plan as
mentioned in subsection 455(3).
473 Letters and symbols taken to be numbers
For the purposes of this Division, a letter or a symbol is taken to be
a number.
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Division 3 Regulation of electronic addressing
Section 474
396 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Division 3—Regulation of electronic addressing
474 Declared manager of electronic addressing
(1) The ACMA may, by notice in the Gazette, determine that, for the
purposes of this Division, a specified person or association is a
declared manager of electronic addressing in relation to a
specified kind of electronic addressing and a specified kind of
listed carriage service.
(2) The determination has effect accordingly.
(3) The ACMA must not make a determination under subsection (1) in
relation to a particular person or association unless:
(a) the ACMA is directed to do so by the ACCC under
subsection (4); or
(b) the ACMA considers that the person or association is not
managing that kind of electronic addressing to the ACMA’s
satisfaction.
(4) The ACCC may give written directions to the ACMA in relation to
the exercise of the power conferred by subsection (1).
(5) The ACMA must exercise its powers under subsection (1) in a
manner consistent with directions given by the ACCC under
subsection (4).
(6) The ACCC must not give a direction under subsection (4) unless,
in the ACCC’s opinion, compliance with the direction is likely to
have a bearing on competition or consumer protection.
475 ACMA may give directions to declared manager of electronic
addressing
(1) The ACMA may, by written notice given to a declared manager of
electronic addressing in relation to a particular kind of electronic
addressing and a particular kind of listed carriage service, direct
the manager to do, or refrain from doing, a specified act or thing
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Section 476
Telecommunications Act 1997 397
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relating to that kind of electronic addressing and that kind of
carriage service.
(2) The ACMA must not give a direction under this section unless, in
the ACMA’s opinion, the electronic addressing is of public
importance.
(3) In determining whether the kind of electronic addressing is of
public importance, the ACMA must have regard to the extent to
which the addressing is of significant social and/or economic
importance.
(4) Subsection (3) does not, by implication, limit the matters to which
the ACMA may have regard.
(5) Before giving a direction under this section, the ACMA must
consult the ACCC.
(6) A person must comply with a direction under this section.
(7) A person commits an offence if:
(a) the person has been given a direction under this section; and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes the direction.
Penalty: 10 penalty units.
(8) A direction under this section is a legislative instrument.
(9) In this section:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
476 ACCC may give directions to declared manager of electronic
addressing
(1) The ACCC may, by written notice given to a declared manager of
electronic addressing in relation to a particular kind of electronic
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Division 3 Regulation of electronic addressing
Section 476
398 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
addressing and a particular kind of listed carriage service, direct
the manager to do, or refrain from doing, a specified act or thing
relating to that kind of electronic addressing and that kind of
carriage service.
(2) The ACCC must not give a direction under this section unless, in
the ACCC’s opinion:
(a) the electronic addressing is of public importance; and
(b) compliance with the direction is likely to have a bearing on
competition or consumer protection.
(3) In determining whether the kind of electronic addressing is of
public importance, the ACCC must have regard to the extent to
which the addressing is of significant social and/or economic
importance.
(4) Subsection (3) does not, by implication, limit the matters to which
the ACCC may have regard.
(5) Before giving a direction under this section, the ACCC must
consult the ACMA.
(6) A person must comply with a direction under this section.
(7) A person commits an offence if:
(a) the person has been given a direction under this section; and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes the direction.
Penalty: 10 penalty units.
(8) A direction under this section is a legislative instrument.
(9) In this section:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
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Regulation of electronic addressing Division 3
Section 477
Telecommunications Act 1997 399
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477 ACCC’s directions to prevail over the ACMA’s directions
A direction given by the ACMA under section 475 has no effect to
the extent to which it is inconsistent with a direction given by the
ACCC under section 476.
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Part 23 Standard agreements for the supply of carriage services
Section 478
400 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Part 23—Standard agreements for the supply of
carriage services
478 Simplified outline
The following is a simplified outline of this Part:
• The terms and conditions on which certain
telecommunications-related goods and services are supplied
are:
(a) as agreed between the supplier and the customer;
or
(b) failing agreement, set out in a standard form of
agreement formulated for the purposes of this Part.
479 Standard terms and conditions apply unless excluded
(1) This section applies to the supply to an ordinary person by a
carriage service provider of:
(a) a standard telephone service; or
(b) a carriage service of a kind specified in the regulations; or
(c) ancillary goods of a kind specified in the regulations; or
(d) an ancillary service of a kind specified in the regulations.
(2) The terms and conditions on which the goods or services are
supplied are:
(a) so far as the provider and the person agree on the terms and
conditions on which the goods or services are supplied—the
agreed terms and conditions; and
(b) if the provider and the person do not agree on terms and
conditions, but terms and conditions are set out in a standard
form of agreement that:
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Section 482
Telecommunications Act 1997 401
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(i) is formulated by the provider for the purpose of this
section; and
(ii) relates to the goods or services; and
(iii) is in force at the time of the supply;
the terms and conditions so set out, so far as they are
applicable to the supply of the goods or services.
(3) Subsection (2) has effect subject to any express provision of this
Act or any other Act.
(4) In this section:
ancillary goods means goods for use in connection with a carriage
service.
ancillary service means a service for use in connection with a
carriage service.
ordinary person means a person other than a carrier or a carriage
service provider.
terms and conditions, in relation to the supply of goods or
services, includes:
(a) charges for the supply of the goods or services; and
(b) any discounts, allowances, rebates or credits given or allowed
in relation to the supply of the goods or services; and
(c) any commissions or similar benefits (whether monetary or
otherwise) payable or given in relation to the supply of the
goods or services; and
(d) the supply of other goods or services, where the other goods
or services are supplied in connection with the
first-mentioned goods or services; and
(e) the making of payments for such other goods or services.
482 Concurrent operation of State/Territory laws
This Part does not prevent or limit the operation of a law of a State
or Territory that is capable of operating concurrently with this Part.
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Part 23 Standard agreements for the supply of carriage services
Section 483
402 Telecommunications Act 1997
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483 Competition and Consumer Act not affected by this Part
This Part has no effect to the extent (if any) to which it is
inconsistent with the Competition and Consumer Act 2010.
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Carriers’ powers and immunities Part 24
Section 484
Telecommunications Act 1997 403
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Part 24—Carriers’ powers and immunities
484 Schedule 3
Schedule 3 has effect.
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Part 24A Submarine cables
Section 484A
404 Telecommunications Act 1997
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Part 24A—Submarine cables
484A Schedule 3A
Schedule 3A has effect.
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Public inquiries Part 25
Simplified outline Division 1
Section 485
Telecommunications Act 1997 405
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Part 25—Public inquiries
Division 1—Simplified outline
485 Simplified outline
The following is a simplified outline of this Part:
• The ACMA and the ACCC may hold public inquiries about
certain matters relating to telecommunications.
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Part 25 Public inquiries
Division 2 Inquiries by the ACMA
Section 486
406 Telecommunications Act 1997
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Division 2—Inquiries by the ACMA
486 When inquiry must be held
(1) The Minister may give the ACMA a written direction to hold a
public inquiry under this Division about a specified matter
concerning:
(a) carriage services; or
(b) content services; or
(c) the telecommunications industry.
(2) The Minister must not give the ACMA a direction under
subsection (1) to hold a public inquiry about a matter concerning
the content of a content service.
(3) If the Minister gives a direction under subsection (1) about a
particular public inquiry, the Minister may direct the ACMA to:
(a) consult with one or more specified persons, bodies or
agencies in connection with the conduct of the inquiry; and
(b) have regard to one or more specified matters in connection
with the conduct of the inquiry.
(4) The ACMA must comply with a direction under this section.
487 When inquiry may be held
(1) This section applies if the ACMA considers that it is appropriate
and practicable to hold a public inquiry under this Division about a
matter relating to:
(a) the performance of any of the ACMA’s telecommunications
functions; or
(b) the exercise of any of the ACMA’s telecommunications
powers.
(2) The ACMA may hold such an inquiry about the matter.
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Section 488
Telecommunications Act 1997 407
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488 Informing the public about an inquiry
(1) If the ACMA holds a public inquiry, it must publish, in whatever
ways it thinks appropriate, notice of:
(a) the fact that it is holding the inquiry; and
(b) the period during which the inquiry is to be held; and
(c) the nature of the matter to which the inquiry relates; and
(d) the period within which, and the form in which, members of
the public may make submissions to the ACMA about that
matter; and
(e) the matters that the ACMA would like such submissions to
deal with; and
(f) the address or addresses to which submissions may be sent.
(2) The ACMA need not publish at the same time or in the same way
notice of all the matters referred to in subsection (1).
489 Discussion paper
(1) After deciding to hold a public inquiry about a matter, the ACMA
may cause to be prepared a discussion paper that:
(a) identifies the issues that, in the ACMA’s opinion, are
relevant to that matter; and
(b) sets out such background material about, and discussion of,
those issues as the ACMA thinks appropriate.
(2) The ACMA must make copies of the discussion paper available at
each of the ACMA’s offices. The ACMA may charge a reasonable
price for supplying copies of the discussion paper in accordance
with this subsection.
(3) The ACMA may otherwise publish the discussion paper, including
in electronic form. The ACMA may charge for supplying a
publication under this subsection in accordance with a
determination under section 60 of the Australian Communications
and Media Authority Act 2005.
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Section 490
408 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
490 Written submissions and protection from civil actions
(1) The ACMA must provide a reasonable opportunity for any
member of the public to make a written submission to the ACMA
about the matter to which a public inquiry relates.
(2) For the purposes of subsection (1), the ACMA is taken not to have
provided a reasonable opportunity to make submissions unless
there was a period of at least 28 days during which the submissions
could be made.
(3) Civil proceedings do not lie against a person in respect of loss,
damage or injury of any kind suffered by another person because
of the making in good faith of a statement, or the giving in good
faith of a document or information, to the ACMA in connection
with a public inquiry under this Division.
(4) The rule in subsection (3) applies whether or not the statement is
made, or the document or information is given, in connection with
a written submission or a public hearing.
491 Hearings
(1) The ACMA may hold hearings for the purposes of a public inquiry.
(2) Hearings may be held, for example:
(a) in order to receive submissions about the matter to which the
inquiry relates; or
(b) in order to provide a forum for public discussion of issues
relevant to that matter.
(3) At a hearing, the ACMA may be constituted by:
(a) a member or members determined in writing by the Chair for
the purposes of that hearing; or
(b) if the functions or powers of the ACMA in relation to the
hearing have been delegated to a person, or to a Division of
the ACMA, under section 50, 51 or 52 of the Australian
Communications and Media Authority Act 2005—that person
or Division.
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Section 492
Telecommunications Act 1997 409
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(4) The Chair is to preside at all hearings at which he or she is present.
(5) If the Chair is not present at a hearing, the hearing is to be presided
over by:
(a) if paragraph (3)(a) applies—the member, specified in an
instrument under that paragraph, as the member who is to
preside at the hearing; or
(b) if paragraph (3)(b) applies and the delegation is to a person—
that person; or
(c) if paragraph (3)(b) applies and the delegation is to a Division
of the ACMA—a member of the Division chosen by the
Division.
(6) The ACMA may regulate the conduct of proceedings at a hearing
as it thinks appropriate.
492 Hearing to be in public except in exceptional cases
(1) This section applies to a hearing conducted under this Division.
(2) The basic rule is that the hearing must take place in public.
(3) However, the hearing, or a part of the hearing, may be conducted
in private if the ACMA is satisfied that:
(a) evidence that may be given, or a matter that may arise, during
the hearing or a part of the hearing is of a confidential nature;
or
(b) hearing a matter, or part of a matter, in public would not be
conducive to the due administration of this Act.
(4) If the hearing is to be conducted in public, the ACMA must give
reasonable public notice of the conduct of the hearing.
(5) In this section:
this Act includes:
(a) the Telecommunications (Consumer Protection and Service
Standards) Act 1999 and regulations under that Act; and
(b) the Spam Act 2003 and regulations under that Act; and
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Section 493
410 Telecommunications Act 1997
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(c) the Do Not Call Register Act 2006 and regulations under that
Act.
493 Confidential material not to be published
(1) This section applies to a hearing conducted under this Division.
(2) If:
(a) the hearing, or a part of the hearing, takes place in public;
and
(b) the ACMA is of the opinion that:
(i) evidence or other material presented to the hearing; or
(ii) material in a written submission lodged with the
ACMA;
is of a confidential nature;
the ACMA may order that:
(c) the evidence or material not be published; or
(d) its disclosure be restricted.
(3) A person must not fail to comply with an order under
subsection (2).
(4) A person commits an offence if:
(a) the ACMA has made an order under subsection (2); and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes the order.
Penalty: 50 penalty units.
(5) Subsections (3) and (4) do not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (5) (see subsection 13.3(3) of the Criminal Code).
(6) In this section:
engage in conduct means:
(a) do an act; or
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Telecommunications Act 1997 411
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(b) omit to perform an act.
494 Direction about private hearings
(1) This section applies to a hearing conducted under this Division.
(2) If the hearing, or a part of the hearing, takes place in private, the
ACMA:
(a) must give directions as to the persons who may be present at
the hearing or the part of the hearing; and
(b) may give directions restricting the disclosure of evidence or
other material presented at the hearing or the part of the
hearing.
(3) A person must not fail to comply with a direction under
subsection (2).
(4) A person commits an offence if:
(a) the ACMA has given a direction under paragraph (2)(a); and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes the direction.
Penalty: 10 penalty units.
(5) A person commits an offence if:
(a) the ACMA has given a direction under paragraph (2)(b); and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes the direction.
Penalty: 50 penalty units.
(6) Subsections (3), (4) and (5) do not apply if the person has a
reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (6) (see subsection 13.3(3) of the Criminal Code).
(7) In this section:
engage in conduct means:
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412 Telecommunications Act 1997
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(a) do an act; or
(b) omit to perform an act.
495 Reports on inquiries
(1) If the ACMA holds a public inquiry, the ACMA must prepare a
report setting out its findings as a result of the inquiry.
(2) If the inquiry was held because of a direction given by the Minister
under section 486, the ACMA must give a copy of the report to the
Minister.
(3) If the inquiry was held otherwise than because of a direction given
by the Minister under section 486, the ACMA must publish the
report.
(4) The ACMA is not required to include in a report any material:
(a) that is of a confidential nature; or
(b) the disclosure of which is likely to prejudice the fair trial of a
person; or
(c) that is the subject of an order or direction under section 493
or 494.
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Section 496
Telecommunications Act 1997 413
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Division 3—Inquiries by the ACCC
496 When inquiry must be held
(1) The Minister may give the ACCC a written direction to hold a
public inquiry under this Division about a specified matter
concerning:
(a) carriage services; or
(b) content services; or
(c) the telecommunications industry.
(2) The Minister must not give the ACCC a direction under
subsection (1) to hold a public inquiry about a matter concerning
the content of a content service.
(3) If the Minister gives a direction under subsection (1) about a
particular public inquiry, the Minister may direct the ACCC to:
(a) consult with one or more specified persons, bodies or
agencies in connection with the conduct of the inquiry; and
(b) have regard to one or more specified matters in connection
with the conduct of the inquiry.
(4) The ACCC must comply with a direction under this section.
497 When inquiry may be held
(1) This section applies if the ACCC considers that it is appropriate
and practicable to hold a public inquiry under this Division about a
matter relating to the ACCC’s telecommunications functions and
powers.
(2) The ACCC may hold such an inquiry about the matter.
498 Informing the public about an inquiry
(1) If the ACCC holds a public inquiry, it must publish, in whatever
ways it thinks appropriate, notice of:
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414 Telecommunications Act 1997
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(a) the fact that it is holding the inquiry; and
(b) the period during which the inquiry is to be held; and
(c) the nature of the matter to which the inquiry relates; and
(d) the period within which, and the form in which, members of
the public may make submissions to the ACCC about that
matter; and
(e) the matters that the ACCC would like such submissions to
deal with; and
(f) the address or addresses to which submissions may be sent.
(2) The ACCC need not publish at the same time or in the same way
notice of all the matters referred to in subsection (1).
499 Discussion paper
(1) After deciding to hold a public inquiry about a matter, the ACCC
may cause to be prepared a discussion paper that:
(a) identifies the issues that, in the ACCC’s opinion, are relevant
to that matter; and
(b) sets out such background material about, and discussion of,
those issues as the ACCC thinks appropriate.
(2) The ACCC must make copies of the discussion paper available at
each of the ACCC offices. The ACCC may charge a reasonable
price for supplying copies of the discussion paper in accordance
with this subsection.
(3) The ACCC may otherwise publish the discussion paper, including
in electronic form. The ACCC may charge a fee for supplying a
publication under this subsection.
500 Written submissions and protection from civil actions
(1) The ACCC must provide a reasonable opportunity for any member
of the public to make a written submission to the ACCC about the
matter to which a public inquiry relates.
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Section 501
Telecommunications Act 1997 415
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(2) For the purposes of subsection (1), the ACCC is taken not to have
provided a reasonable opportunity to make submissions unless
there was a period of at least 28 days during which the submissions
could be made.
(3) Civil proceedings do not lie against a person in respect of loss,
damage or injury of any kind suffered by another person because
of the making in good faith of a statement, or the giving in good
faith of a document or information, to the ACCC in connection
with a public inquiry under this Division.
(4) The rule in subsection (3) applies whether or not the statement is
made, or the document or information is given, in connection with
a written submission or a public hearing.
501 Hearings
(1) The ACCC may hold hearings for the purposes of a public inquiry.
(2) Hearings may be held, for example:
(a) in order to receive submissions about the matter to which the
inquiry relates; or
(b) in order to provide a forum for public discussion of issues
relevant to that matter.
(3) At a hearing, the ACCC may be constituted by a member or
members determined in writing by the Chairperson for the
purposes of that hearing.
(4) The Chairperson is to preside at all hearings at which he or she is
present.
(5) If the Chairperson is not present at a hearing, the member
specified, in an instrument under subsection (3), as the member
who is to preside at the hearing is to preside.
(6) The ACCC may regulate the conduct of proceedings at a hearing as
it thinks appropriate.
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Section 502
416 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
502 Hearing to be in public except in exceptional cases
(1) This section applies to a hearing conducted under this Division.
(2) The basic rule is that the hearing must take place in public.
(3) However, the hearing, or a part of the hearing, may be conducted
in private if the ACCC is satisfied that:
(a) evidence that may be given, or a matter that may arise, during
the hearing or a part of the hearing is of a confidential nature;
or
(b) hearing a matter, or part of a matter, in public would not be
conducive to the due administration of this Act.
(4) If the hearing is to be conducted in public, the ACCC must give
reasonable public notice of the conduct of the hearing.
(5) In this section:
this Act includes:
(a) the Telecommunications (Consumer Protection and Service
Standards) Act 1999 and regulations under that Act; and
(b) the Spam Act 2003 and regulations under that Act; and
(c) the Do Not Call Register Act 2006 and regulations under that
Act.
503 Confidential material not to be published
(1) This section applies to a hearing conducted under this Division.
(2) If:
(a) the hearing, or a part of the hearing, takes place in public;
and
(b) the ACCC is of the opinion that:
(i) evidence or other material presented to the hearing; or
(ii) material in a written submission lodged with the ACCC;
is of a confidential nature;
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Section 504
Telecommunications Act 1997 417
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the ACCC may order that:
(c) the evidence or material not be published; or
(d) its disclosure be restricted.
(3) A person must not fail to comply with an order under
subsection (2).
(4) A person commits an offence if:
(a) the ACCC has made an order under subsection (2); and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes the order.
Penalty: 50 penalty units.
(5) Subsections (3) and (4) do not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (5) (see subsection 13.3(3) of the Criminal Code).
(6) In this section:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
504 Direction about private hearings
(1) This section applies to a hearing conducted under this Division.
(2) If the hearing, or a part of the hearing, takes place in private, the
ACCC:
(a) must give directions as to the persons who may be present at
the hearing or the part of the hearing; and
(b) may give directions restricting the disclosure of evidence or
other material presented at the hearing or the part of the
hearing.
(3) A person must not fail to comply with a direction under
subsection (2).
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Section 505
418 Telecommunications Act 1997
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(4) A person commits an offence if:
(a) the ACCC has given a direction under paragraph (2)(a); and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes the direction.
Penalty: 10 penalty units.
(5) A person commits an offence if:
(a) the ACCC has given a direction under paragraph (2)(b); and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes the direction.
Penalty: 50 penalty units.
(6) Subsections (3), (4) and (5) do not apply if the person has a
reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (6) (see subsection 13.3(3) of the Criminal Code).
(7) In this section:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
505 Reports on inquiries
(1) If the ACCC holds a public inquiry, the ACCC must prepare a
report setting out its findings as a result of the inquiry.
(2) If the inquiry was held because of a direction given by the Minister
under section 496, the ACCC must give a copy of the report to the
Minister.
(3) If the inquiry was held otherwise than because of a direction given
by the Minister under section 496, the ACCC must publish the
report.
(4) The ACCC is not required to include in a report any material:
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Section 505A
Telecommunications Act 1997 419
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(a) that is of a confidential nature; or
(b) the disclosure of which is likely to prejudice the fair trial of a
person; or
(c) that is the subject of an order or direction under section 503
or 504.
505A ACCC may use material presented to a previous public
inquiry
(1) This section applies if:
(a) the ACCC has held a public inquiry (the original inquiry)
under this Part; and
(b) any of the following subparagraphs applies:
(i) evidence or other material was presented to a hearing
for the purposes of the original inquiry;
(ii) a written submission was lodged with the ACCC for the
purposes of the original inquiry;
(iii) any other information obtained by the ACCC was used
by the ACCC for the purposes of the original inquiry;
and
(c) the ACCC holds another public inquiry under this Part.
(2) The ACCC may:
(a) in the case of evidence or other material presented to a
hearing—treat the whole or a part of the evidence or other
material as if it had also been presented to a hearing for the
purposes of the other public inquiry; or
(b) in the case of a written submission lodged with the ACCC—
treat the whole or a part of the written submission as if it had
also been lodged with the ACCC for the purposes of the
other public inquiry; or
(c) in the case of any other information obtained by the ACCC—
use the whole or a part of the information for the purposes of
the other public inquiry.
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Section 505B
420 Telecommunications Act 1997
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(3) This section does not, by implication, limit the information that
may be used by the ACCC for the purposes of a public inquiry
under this Part.
505B ACCC may adopt a finding from a previous public inquiry
If:
(a) the ACCC has held a public inquiry (the original inquiry)
under this Part; and
(b) the ACCC has prepared a report about the original inquiry
under section 505; and
(c) the ACCC holds another public inquiry under this Part;
the ACCC may, for the purposes of the other public inquiry, adopt
a finding set out in the report about the original inquiry.
506 ACCC’s other powers not limited
This Division does not, by implication, limit the powers conferred
on the ACCC by the Competition and Consumer Act 2010.
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Section 507
Telecommunications Act 1997 421
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Part 26—Investigations
507 Simplified outline
The following is a simplified outline of this Part:
• The ACMA may investigate certain matters relating to
telecommunications.
508 Matters to which this Part applies
This Part applies to the following matters:
(a) a contravention of this Act;
(aa) a contravention of the Telecommunications (Consumer
Protection and Service Standards) Act 1999 or regulations
under that Act;
(ab) a contravention of the Spam Act 2003 or regulations under
that Act;
(ac) a contravention of the Do Not Call Register Act 2006 or
regulations under that Act;
(b) a contravention of a code registered under Part 6;
(c) a failure by a carriage service provider to comply with an
obligation, or discharge a liability, under Part 5 of the
Telecommunications (Consumer Protection and Service
Standards) Act 1999;
(d) a matter relating to the supply of, or a refusal or failure to
supply, a carriage service;
(e) a matter relating to the connection of, or a refusal or failure to
connect, customer equipment;
(f) a matter relating to the performance of the ACMA’s
telecommunications functions, or the exercise of the
ACMA’s telecommunications powers;
except to the extent (if any) to which the matter relates to the
content of a content service.
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Section 509
422 Telecommunications Act 1997
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509 Complaints to the ACMA
(1) A person may complain to the ACMA about a matter.
(2) A complaint must be in writing.
(3) A complaint must specify, as the respondent in respect of the
complaint, the person against whom the complaint is made.
(4) If it appears to the ACMA that:
(a) a person wishes to make a complaint; and
(b) the person requires assistance to formulate the complaint or
to reduce it to writing;
it is the duty of the ACMA to take reasonable steps to provide
appropriate assistance to the person.
(5) If it appears to the ACMA that:
(a) a person (the first person) wishes to make a complaint about:
(i) a contravention of a code registered under Part 6, where
the code applies to participants in a section of the
telemarketing industry (within the meaning of Part 6)
and deals with one or more matters relating to the
telemarketing activities (within the meaning of Part 6)
of those participants; or
(ii) a contravention of section 128 in relation to an industry
standard, where the standard applies to participants in a
section of the telemarketing industry (within the
meaning of Part 6) and deals with one or more matters
relating to the telemarketing activities (within the
meaning of Part 6) of those participants; or
(iii) a contravention of the Do Not Call Register Act 2006 or
regulations under that Act; and
(b) the complaint relates to a voice call (within the meaning of
the Do Not Call Register Act 2006) made, or attempted to be
made, to an Australian number; and
(c) the first person does not have sufficient information to
identify:
(i) the person who made, or attempted to make, the call; or
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Section 509
Telecommunications Act 1997 423
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(ii) the person who caused the call to be made or attempted;
and
(d) the first person gives the ACMA such information about the
call as the ACMA requires;
it is the duty of the ACMA to take reasonable steps to assist the
first person to identify whichever of the following is applicable:
(e) the person who made, or attempted to make, the call;
(f) the person who caused the call to be made or attempted.
(6) Subsection (5) does not limit subsection (4).
(7) If it appears to the ACMA that:
(a) a person (the first person) wishes to make a complaint about:
(i) a contravention of a code registered under Part 6, where
the code applies to participants in a section of the fax
marketing industry (within the meaning of Part 6) and
deals with one or more matters relating to the fax
marketing activities (within the meaning of Part 6) of
those participants; or
(ii) a contravention of section 128 in relation to an industry
standard, where the standard applies to participants in a
section of the fax marketing industry (within the
meaning of Part 6) and deals with one or more matters
relating to the fax marketing activities (within the
meaning of Part 6) of those participants; or
(iii) a contravention of the Do Not Call Register Act 2006 or
regulations under that Act; and
(b) the complaint relates to a marketing fax sent, or attempted to
be sent, to an Australian number; and
(c) the first person does not have sufficient information to
identify:
(i) the person who sent, or attempted to send, the fax; or
(ii) the person who caused the fax to be sent or attempted;
and
(d) the first person gives the ACMA such information about the
fax as the ACMA requires;
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Section 510
424 Telecommunications Act 1997
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it is the duty of the ACMA to take reasonable steps to assist the
first person to identify whichever of the following is applicable:
(e) the person who sent, or attempted to send, the fax;
(f) the person who caused the fax to be sent or attempted.
(8) Subsection (7) does not limit subsection (4).
510 Investigations by the ACMA
(1) The ACMA may investigate a matter of a kind referred to in
section 508 if:
(a) in the case of a matter covered by paragraph 508(a)—the
ACMA has reason to suspect that a person may have
contravened this Act; or
(aa) in the case of a matter covered by paragraph 508(aa)—the
ACMA has reason to suspect that a person may have
contravened the Telecommunications (Consumer Protection
and Service Standards) Act 1999 or regulations under that
Act; or
(ab) in the case of a matter covered by paragraph 508(ab)—the
ACMA has reason to suspect that a person may have
contravened the Spam Act 2003 or regulations under that Act;
or
(ac) in the case of a matter covered by paragraph 508(ac)—the
ACMA has reason to suspect that a person may have
contravened the Do Not Call Register Act 2006 or regulations
under that Act; or
(b) in any case—a complaint is made under section 509; or
(c) in any case—the ACMA thinks that it is desirable to
investigate the matter.
(2) The ACMA must not conduct such an investigation if it thinks that
the subject matter of the investigation would not be a matter
relevant to the performance of any of its functions.
(3) The ACMA must investigate:
(a) a matter of a kind referred to in section 508; or
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Section 511
Telecommunications Act 1997 425
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(b) any other matter concerning carriage services or the
telecommunications industry;
if the Minister requests the ACMA so to investigate.
511 Preliminary inquiries
If a complaint has been made to the ACMA under section 509, the
ACMA may make inquiries of the respondent for the purposes of
determining:
(a) whether the ACMA has power to investigate the matter to
which the complaint relates; or
(b) whether the ACMA should, in its discretion, investigate the
matter.
512 Conduct of investigations
(1) Before beginning an investigation of a matter to which a complaint
relates, the ACMA must inform the respondent that the matter is to
be investigated.
(1A) However, the ACMA is not required to inform the respondent that
the matter is to be investigated if:
(a) the matter relates to a possible breach of:
(i) the Spam Act 2003 or regulations under that Act; or
(ii) the Do Not Call Register Act 2006 or regulations under
that Act; and
(b) the ACMA has reasonable grounds to believe that informing
the respondent is likely to result in the concealment, loss or
destruction of a thing connected with the breach.
(2) An investigation under this Part is to be conducted as the ACMA
thinks fit.
(3) The ACMA may, for the purposes of an investigation, obtain
information from such persons, and make such inquiries, as it
thinks fit.
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(4) It is not necessary for a complainant or a respondent to be given an
opportunity to appear before the ACMA in connection with an
investigation. This subsection has effect subject to subsection (5).
(5) The ACMA must not, as a result of the investigation, make a
finding that is adverse to a complainant or a respondent unless it
has given the complainant or respondent an opportunity to make
submissions about the matter to which the investigation relates.
(6) However, the ACMA is not required to give the respondent an
opportunity to make submissions if:
(a) the matter relates to a possible breach of:
(i) the Spam Act 2003 or regulations under that Act; or
(ii) the Do Not Call Register Act 2006 or regulations under
that Act; and
(b) the ACMA has reasonable grounds to believe that giving the
respondent an opportunity to make submissions is likely to
result in the concealment, loss or destruction of a thing
connected with the breach.
513 Complainant and certain other persons to be informed of
various matters
(1) If the ACMA decides not to investigate, or not to investigate
further, a matter to which a complaint relates, it must, as soon as
practicable and in such manner as it thinks fit, inform the
complainant and the respondent of the decision and of the reasons
for the decision.
(2) However, the ACMA is not required to inform the respondent of
the decision and of the reasons for the decision if:
(a) the matter relates to a possible breach of:
(i) the Spam Act 2003 or regulations under that Act; or
(ii) the Do Not Call Register Act 2006 or regulations under
that Act; and
(b) the ACMA has reasonable grounds to believe that informing
the respondent is likely to result in the concealment, loss or
destruction of a thing connected with the breach.
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514 Reference of matters to Ombudsman or other responsible
person
(1) If, before the ACMA starts, or after it has started, an investigation
of a matter to which a complaint relates, the ACMA forms the
opinion that:
(a) a complaint relating to that matter has been, or could have
been, made by the complainant to:
(i) the Ombudsman under the Ombudsman Act 1976; or
(ii) the Telecommunications Industry Ombudsman; or
(iii) another person or body responsible for handling
complaints under a code registered, or standard
determined, under Part 6; and
(b) the matter could be more conveniently or effectively dealt
with by:
(i) the Ombudsman; or
(ii) the Telecommunications Industry Ombudsman; or
(iii) another person or body responsible for handling
complaints under a code registered, or standard
determined, under Part 6;
the ACMA may decide not to investigate the matter, or not to
investigate the matter further, as the case may be.
(2) If the ACMA decides as mentioned in subsection (1), it must:
(a) transfer the complaint to:
(i) the Ombudsman; or
(ii) the Telecommunications Industry Ombudsman; or
(iii) another person or body responsible for handling
complaints under a code registered, or standard
determined, under Part 6;
as the case requires; and
(b) give written notice to the complainant stating that the
complaint has been so transferred.
(3) If the ACMA decides as mentioned in subsection (1), then:
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(a) in a case where subparagraph (1)(a)(i) applies—the ACMA
must give the Ombudsman any information or documents
that relate to the complaint and that are in the ACMA’s
possession or under its control; and
(b) in a case where subparagraph (1)(a)(ii) applies—the ACMA
may give the Telecommunications Industry Ombudsman any
information or documents that relate to the complaint and
that are in the ACMA’s possession or under its control; and
(c) in a case where subparagraph (1)(a)(iii) applies—the ACMA
may give the person or body mentioned in that subparagraph:
(i) any information or documents that relate to the
complaint and that are in the ACMA’s possession or
under its control; or
(ii) copies of, or extracts from, such information or
documents.
(4) A complaint transferred under subsection (2) to the Ombudsman is
taken to be a complaint made to the Ombudsman under the
Ombudsman Act 1976.
515 Reference of matters to the ACCC
(1) If, before the ACMA commences, or after it has commenced, an
investigation of a matter to which a complaint relates, the ACMA
forms the opinion that the matter could be more conveniently or
effectively dealt with by the ACCC, it may decide not to
investigate the matter, or not to investigate the matter further, as
the case may be.
(2) If the ACMA so decides, it must:
(a) transfer the complaint to the ACCC; and
(b) give written notice to the complainant stating that the
complaint has been so transferred; and
(c) give to the ACCC any information or documents that relate
to the complaint and that are in the ACMA’s possession or
under its control.
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Section 515A
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(3) The ACCC may hold an investigation into the matter and, if it
decides to do so, it must report to the ACMA on:
(a) the conduct of the investigation; and
(b) any findings that it has made as a result of the investigation;
and
(c) the evidence and other material on which those findings were
based; and
(d) such other matters relating to, or arising out of, the
investigation as the ACCC thinks fit.
(4) If the ACCC decides not to hold an investigation into the matter, it
must give to the ACMA a written notice informing the ACMA of
its decision and of the reasons for its decision.
515A Reference of matters to Information Commissioner
(1) This section applies to a complaint about any of the following
matters:
(a) a contravention of a code registered under Part 6, where the
code applies to participants in a section of the telemarketing
industry (within the meaning of Part 6) and deals with one or
more matters relating to the telemarketing activities (within
the meaning of Part 6) of those participants;
(b) a contravention of section 128 in relation to an industry
standard, where the standard applies to participants in a
section of the telemarketing industry (within the meaning of
Part 6) and deals with one or more matters relating to the
telemarketing activities (within the meaning of Part 6) of
those participants;
(ba) a contravention of a code registered under Part 6, where the
code applies to participants in a section of the fax marketing
industry (within the meaning of Part 6) and deals with one or
more matters relating to the fax marketing activities (within
the meaning of Part 6) of those participants;
(bb) a contravention of section 128 in relation to an industry
standard, where the standard applies to participants in a
section of the fax marketing industry (within the meaning of
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Part 6) and deals with one or more matters relating to the fax
marketing activities (within the meaning of Part 6) of those
participants;
(c) a contravention of the Do Not Call Register Act 2006 or
regulations under that Act.
(2) If, before the ACMA starts, or after it has started, an investigation
of a matter to which a complaint relates, the ACMA forms the
opinion that:
(a) a complaint relating to that matter has been, or could have
been, made by the complainant to the Information
Commissioner under section 36 of the Privacy Act 1988; and
(b) the matter could be more conveniently or effectively dealt
with by the Information Commissioner;
the ACMA may decide not to investigate the matter, or not to
investigate the matter further, as the case may be.
(3) If the ACMA decides as mentioned in subsection (2), it must:
(a) transfer the complaint to the Information Commissioner; and
(b) give written notice to the complainant stating that the
complaint has been so transferred; and
(c) give the Information Commissioner any information or
documents that relate to the complaint and that are in the
ACMA’s possession or under its control.
(4) A complaint transferred under subsection (3) to the Information
Commissioner is taken to be a complaint made to the Information
Commissioner under section 36 of the Privacy Act 1988.
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Section 516
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516 Reports on investigations
(1) After concluding an investigation under subsection 510(1), the
ACMA may prepare and give to the Minister a report under this
section.
(2) After concluding an investigation under subsection 510(3), the
ACMA must prepare and give to the Minister a report under this
section.
(3) A report under this section must cover:
(a) the conduct of the investigation concerned; and
(b) any findings that the ACMA has made as a result of the
investigation; and
(c) the evidence and other material on which those findings were
based; and
(d) such other matters relating to, or arising out of, the
investigation as the ACMA thinks fit or as the Minister
directs.
517 Publication of reports
(1) This section applies if the ACMA prepares a report under
section 516.
(2) If the report was prepared under subsection 516(1), the ACMA
may cause the report to be published.
(3) If the report was prepared under subsection 516(2), the Minister
may direct the ACMA to publish the report. The ACMA must
comply with the direction. The ACMA must not otherwise cause
the report to be published.
(4) The ACMA is not required to publish, or to disclose to a person to
whose affairs it relates, a report or a part of a report if the
publication or disclosure would:
(a) disclose a matter of a confidential character; or
(b) be likely to prejudice the fair trial of a person.
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Section 518
432 Telecommunications Act 1997
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(5) The ACMA is not required to publish a report or part of a report if
the publication would involve the unreasonable disclosure of
personal information about any individual (including a deceased
individual).
518 Person adversely affected by report to be given opportunity to
comment
(1) This section applies if the publication of a matter in a report or a
part of a report would, or would be likely to, adversely affect the
interests of a person.
(2) The ACMA must not publish the report or the part of the report, as
the case may be, until the ACMA has given the person a
reasonable period (not exceeding 30 days) to make representations,
either orally or in writing, in relation to the matter.
(3) However, the ACMA is not required to give the person a
reasonable period to make representations if:
(a) the matter relates to a possible breach of:
(i) the Spam Act 2003 or regulations under that Act; or
(ii) the Do Not Call Register Act 2006 or regulations under
that Act; and
(b) the ACMA has reasonable grounds to believe that giving the
person a reasonable period to make representations is likely
to result in the concealment, loss or destruction of a thing
connected with the breach.
519 Protection from civil actions
(1) Civil proceedings do not lie against a person in respect of loss,
damage or injury of any kind suffered by another person because
of any of the following acts done in good faith:
(a) the making of a complaint under section 509;
(b) the making of a statement to, or the giving of a document or
information to, the ACMA in connection with an
investigation under section 510;
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Section 519
Telecommunications Act 1997 433
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(c) the making of a complaint to the Telecommunications
Industry Ombudsman;
(d) subject to subsection (2), the making of a statement to, or the
giving of a document or information to, the
Telecommunications Industry Ombudsman in connection
with the consideration by the Telecommunications Industry
Ombudsman of a complaint.
(2) Paragraph (1)(d) does not apply to the making of a statement, or
the giving of a document or information, by:
(a) a carrier; or
(b) a person who is a service provider and who is participating in
the Telecommunications Industry Ombudsman scheme under
which the Telecommunications Industry Ombudsman has
been appointed.
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Part 27 The ACMA’s information-gathering powers
Division 1 Simplified outline
Section 520
434 Telecommunications Act 1997
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Part 27—The ACMA’s information-gathering
powers
Division 1—Simplified outline
520 Simplified outline
The following is a simplified outline of this Part:
• The ACMA may obtain information from carriers, service
providers and other persons if the information is relevant to:
(a) the performance of any of the ACMA’s
telecommunications functions; or
(b) the exercise of any of the ACMA’s
telecommunications powers.
• The ACMA may make record-keeping rules that apply to
carriers and carriage service providers.
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Information-gathering powers Division 2
Section 521
Telecommunications Act 1997 435
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Division 2—Information-gathering powers
521 The ACMA may obtain information and documents from
carriers and service providers
(1) This section applies to a carrier or a service provider if the ACMA
has reason to believe that the carrier or provider:
(a) has information or a document that is relevant to:
(i) the performance of any of the ACMA’s
telecommunications functions; or
(ii) the exercise of any of the ACMA’s telecommunications
powers; or
(b) is capable of giving evidence which the ACMA has reason to
believe is relevant to:
(i) the performance of any of the ACMA’s
telecommunications functions; or
(ii) the exercise of any of the ACMA’s telecommunications
powers.
(2) The ACMA may, by written notice given to the carrier or provider,
require the carrier or provider:
(a) to give to the ACMA, within the period and in the manner
and form specified in the notice, any such information; or
(b) to produce to the ACMA, within the period and in the
manner specified in the notice, any such documents; or
(c) to make copies of any such documents and to produce to the
ACMA, within the period and in the manner specified in the
notice, those copies; or
(d) if the carrier or provider is an individual—to appear before
the ACMA at a time and place specified in the notice to give
any such evidence, either orally or in writing, and produce
any such documents; or
(e) if the carrier or provider is a body corporate or a public
body—to cause a competent officer of the body to appear
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Division 2 Information-gathering powers
Section 522
436 Telecommunications Act 1997
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before the ACMA at a time and place specified in the notice
to give any such evidence, either orally or in writing, and
produce any such documents; or
(f) if the carrier or provider is a partnership—to cause an
individual who is:
(i) a partner in the partnership; or
(ii) an employee of the partnership;
to appear before the ACMA at a time and place specified in
the notice to give any such evidence, either orally or in
writing, and produce any such documents.
(3) A carrier or service provider must comply with a requirement
under subsection (2).
(4) A notice given to a carrier under this section must set out the effect
of the following provisions:
(a) subsection (3);
(b) section 68;
(c) section 570;
(d) Part 1 of Schedule 1;
(e) section 525.
(5) A notice given to a service provider under this section must set out
the effect of the following provisions:
(a) subsection (3);
(b) section 101;
(c) section 570;
(d) Part 1 of Schedule 2;
(e) section 525.
522 The ACMA may obtain information and documents from other
persons
(1) This section applies to a person if the ACMA has reason to believe
that the person:
(a) has information or a document that is relevant to:
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Information-gathering powers Division 2
Section 522
Telecommunications Act 1997 437
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(i) the performance of any of the ACMA’s
telecommunications functions; or
(ii) the exercise of any of the ACMA’s telecommunications
powers; or
(b) is capable of giving evidence which the ACMA has reason to
believe is relevant to:
(i) the performance of any of the ACMA’s
telecommunications functions; or
(ii) the exercise of any of the ACMA’s telecommunications
powers.
(2) The ACMA may, by written notice given to the person, require the
person:
(a) to give to the ACMA, within the period and in the manner
and form specified in the notice, any such information; or
(b) to produce to the ACMA, within the period and in the
manner specified in the notice, any such documents; or
(c) to make copies of any such documents and to produce to the
ACMA, within the period and in the manner specified in the
notice, those copies; or
(d) if the person is an individual—to appear before the ACMA at
a time and place specified in the notice to give any such
evidence, either orally or in writing, and produce any such
documents; or
(e) if the person is a body corporate or a public body—to cause a
competent officer of the body to appear before the ACMA at
a time and place specified in the notice to give any such
evidence, either orally or in writing, and produce any such
documents; or
(f) if the person is a partnership—to cause an individual who is:
(i) a partner in the partnership; or
(ii) an employee of the partnership;
to appear before the ACMA at a time and place specified in
the notice to give any such evidence, either orally or in
writing, and produce any such documents.
(3) A person must comply with a requirement under subsection (2).
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Division 2 Information-gathering powers
Section 523
438 Telecommunications Act 1997
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(4) A person commits an offence if:
(a) the ACMA has given a notice to the person under
subsection (2); and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes a requirement in the notice.
Penalty: 20 penalty units.
(5) A notice under this section must set out the effect of subsection (4)
and section 525.
(6) In this section:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
523 Copying documents—reasonable compensation
A person is entitled to be paid by the ACMA reasonable
compensation for complying with a requirement covered by
paragraph 521(2)(c) or 522(2)(c).
524 Self-incrimination
(1) An individual is not excused from giving information or evidence
or producing a document or a copy of a document under this
Division on the ground that the information or evidence or the
production of the document or copy might tend to incriminate the
individual or expose the individual to a penalty.
(2) However:
(a) giving the information or evidence or producing the
document or copy; or
(b) any information, document or thing obtained as a direct or
indirect consequence of giving the information or evidence or
producing the document or copy;
is not admissible in evidence against the individual in:
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Information-gathering powers Division 2
Section 525
Telecommunications Act 1997 439
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(c) criminal proceedings other than proceedings under, or arising
out of, subsection 522(4) or section 525; or
(d) proceedings under section 570 for recovery of a pecuniary
penalty in relation to a contravention of section 521.
525 Giving false or misleading information or evidence
A person must not, under section 521 or 522, give information or
evidence that is false or misleading.
Penalty: Imprisonment for 12 months.
Note: See also sections 4AA and 4B of the Crimes Act 1914.
527 Copies of documents
(1) The ACMA may inspect a document or copy produced under this
Division and may make and retain copies of, or take and retain
extracts from, such a document.
(2) The ACMA may retain possession of a copy of a document
produced in accordance with a requirement covered by
paragraph 521(2)(c) or 522(2)(c).
528 ACMA may retain documents
(1) The ACMA may take, and retain for as long as is necessary,
possession of a document produced under this Division.
(2) The person otherwise entitled to possession of the document is
entitled to be supplied, as soon as practicable, with a copy certified
by the ACMA to be a true copy.
(3) The certified copy must be received in all courts and tribunals as
evidence as if it were the original.
(4) Until a certified copy is supplied, the ACMA must, at such times
and places as the ACMA thinks appropriate, permit the person
otherwise entitled to possession of the document, or a person
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Section 528
440 Telecommunications Act 1997
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authorised by that person, to inspect and make copies of, or take
extracts from, the document.
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The ACMA’s information-gathering powers Part 27
Record-keeping rules Division 3
Section 529
Telecommunications Act 1997 441
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Division 3—Record-keeping rules
529 ACMA may make record-keeping rules
(1) The ACMA may, by written instrument, make rules for and in
relation to requiring one or more specified carriers or one or more
specified carriage service providers to keep and retain records.
Rules under this subsection are to be known as record-keeping
rules.
Note: Carriers and carriage service providers may be specified by name, by
inclusion in a specified class or in any other way.
(2) The rules may specify the manner and form in which the records
are to be kept.
(2A) The rules may also require those carriers or carriage service
providers to prepare reports consisting of information contained in
those records.
(2B) The rules may also require those carriers or carriage service
providers to give any or all of the reports to the ACMA.
(2C) The rules may specify the manner and form in which reports are to
be prepared.
(2D) The rules may provide for:
(a) the preparation of reports as and when required by the
ACMA; or
(b) the preparation of periodic reports relating to such regular
intervals as are specified in the rules.
(2E) The rules may require or permit a report prepared in accordance
with the rules to be given to the ACMA, in accordance with
specified software requirements and specified authentication
requirements:
(a) on a specified kind of data processing device; or
(b) by way of a specified kind of electronic transmission.
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Division 3 Record-keeping rules
Section 530
442 Telecommunications Act 1997
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(2F) Subsections (2) to (2E) do not limit subsection (1).
(3) If the rules apply to a particular carrier or carriage service provider,
the ACMA must give the carrier or provider a copy of the rules.
(4) The ACMA must not exercise its powers under this section so as to
require the keeping or retention of records unless the records
contain, or will contain, information that is relevant to:
(a) the performance by the ACMA of any of the ACMA’s
telecommunications functions; or
(b) the exercise by the ACMA of any of the ACMA’s
telecommunications powers.
Note: Under section 521, the ACMA may require a carrier or carriage
service provider to produce a document (including a record kept in
accordance with the record-keeping rules).
(5) This section does not limit section 521 (which is about the general
information-gathering powers of the ACMA).
530 Compliance with record-keeping rules
A carrier or carriage service provider must comply with any
record-keeping rules that are applicable to the carrier or provider.
531 Incorrect records
(1) A person must not, in purported compliance with a requirement
imposed by the record-keeping rules, make a record of any matter
or thing in such a way that it does not correctly record the matter or
thing.
(2) A person who contravenes subsection (1) commits an offence
punishable on conviction by a fine not exceeding 100 penalty units.
Note: See also sections 4AA and 4B of the Crimes Act 1914.
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Introduction Division 1
Section 532
Telecommunications Act 1997 443
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Part 28—Enforcement
Division 1—Introduction
532 Simplified outline
The following is a simplified outline of this Part:
• A person may be appointed as an inspector.
• Searches relating to offences against Part 21 (technical
regulation) may be conducted:
(a) under the authority of a search warrant; or
(b) with the consent of the owner or occupier
concerned; or
(c) in an emergency.
• Searches to monitor compliance with Part 21 (technical
regulation) may be conducted with the consent of the occupier
concerned.
• Searches relating to breaches of the Spam Act 2003 may be
conducted:
(a) under the authority of a search warrant; or
(b) with the consent of the owner or occupier
concerned.
• Searches to monitor compliance with the Spam Act 2003 may
be conducted:
(a) under the authority of a monitoring warrant; or
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Division 1 Introduction
Section 532A
444 Telecommunications Act 1997
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(b) with the consent of the occupier concerned.
• An inspector may require the production of a carrier licence.
• An inspector may require the giving of certain information,
and the production of certain documents, relevant to
compliance with the Spam Act 2003 or Part 21 of this Act
(technical regulation).
• A court may order forfeiture of goods used or otherwise
involved in the commission of an offence against this Act.
532A References to the Spam Act 2003
In this Part:
Spam Act 2003 includes regulations under the Spam Act 2003.
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Enforcement Part 28
Inspectors and identity cards Division 2
Section 533
Telecommunications Act 1997 445
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Division 2—Inspectors and identity cards
533 Inspectors
(1) A person is an inspector for the purposes of a particular provision
of this Act if:
(a) the person is an officer appointed by the ACMA, by written
instrument, to be an inspector:
(i) for the purposes of this Act in general; or
(ii) for the purposes of that provision; or
(b) the person is an officer included in a class of officers
appointed by the ACMA, by notice in the Gazette, to be
inspectors:
(i) for the purposes of this Act in general; or
(ii) for the purposes of that provision; or
(c) if the person is a member (other than a special member) of
the Australian Federal Police or of the police force of a
Territory.
(2) In this section:
Commonwealth officer means:
(a) a person who, whether on a full-time or a part-time basis, and
whether in a permanent capacity or otherwise:
(i) is in the service or employment of the Commonwealth,
the Administration of an external Territory or an
authority of the Commonwealth; or
(ii) holds or performs the duties of any office or position
established by or under a law of the Commonwealth or
an external Territory; or
(b) a member of the Defence Force.
officer means:
(a) a Commonwealth officer; or
(b) a State officer.
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Division 2 Inspectors and identity cards
Section 534
446 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
State includes:
(a) the Australian Capital Territory; and
(b) the Northern Territory.
State officer means a person who, whether on a full-time basis or a
part-time basis and whether in a permanent capacity or otherwise:
(a) is in the service or employment of a State or an authority of a
State; or
(b) holds or performs the duties of any office or position
established by or under a law of a State;
and includes a member of a police force of a State.
534 Identity cards
(1) The ACMA may issue an identity card to an inspector, other than a
member of a police force, in a form approved, in writing, by the
ACMA.
(2) A person who ceases to be an inspector must, as soon as
practicable, return his or her identity card to the ACMA.
(3) A person must not contravene subsection (2).
Penalty: 5 penalty units.
Note: See also sections 4AA and 4B of the Crimes Act 1914.
(4) Subsection (3) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (4) (see subsection 13.3(3) of the Criminal Code).
(5) Subsection (3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
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Division 3
Section 535
Telecommunications Act 1997 447
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Division 3—Search warrants relating to breaches of the
Spam Act 2003 or Part 21 of this Act
535 Magistrate may issue warrant
(1) If:
(a) an information on oath is laid before a magistrate alleging
that an inspector suspects on reasonable grounds that there
may be on any land, or in or on any premises, vessel, aircraft
or vehicle:
(i) anything in respect of which an offence against Part 21
has been committed; or
(ii) anything that may afford evidence about the
commission of an offence against Part 21; or
(iii) anything that was used, or is intended to be used, for the
purposes of committing an offence against Part 21; or
(iv) anything in respect of which a breach of the Spam Act
2003 has happened; or
(v) anything that may afford evidence about a breach of the
Spam Act 2003; or
(vi) anything that was used, or is intended to be used, for the
purposes of breaching the Spam Act 2003; and
(b) the information sets out those grounds;
the magistrate may issue a search warrant authorising the inspector
named in the warrant, with such assistance, and by such force, as is
necessary and reasonable, to enter the land, premises, vessel,
aircraft or vehicle and exercise the powers referred to in paragraphs
542(2)(b), (c) and (d), in respect of the thing.
(2) A reference in this section to an offence against Part 21 includes a
reference to an offence created by section 6 of the Crimes Act 1914
or Part 2.4 of the Criminal Code that relates to Part 21 of this Act.
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Act
Section 536
448 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
536 Reasonable grounds for issuing warrant etc.
A magistrate is not to issue a warrant under section 535 unless:
(a) the informant or some other person has given to the
magistrate, either orally or by affidavit, such further
information (if any) as the magistrate requires concerning the
grounds on which the issue of the warrant is being sought;
and
(b) the magistrate is satisfied that there are reasonable grounds
for issuing the warrant.
537 Contents of warrant
The following must be stated in a warrant issued under
section 535:
(a) the purpose for which the warrant is issued, and the nature of
the offence or breach in relation to which the entry and
search are authorised;
(b) whether entry is authorised to be made at any time of the day
or night or during specified hours of the day or night;
(c) a description of the kind of things to be seized;
(d) a day, not later than 7 days after the day of issue of the
warrant, upon which the warrant ceases to have effect.
538 Warrants may be issued by telephone etc.
If, because of circumstances of urgency, an inspector thinks it
necessary to do so, the inspector may apply to a magistrate for a
warrant under section 535 by telephone, telex, fax or other
electronic means.
539 Provisions relating to issue of warrant by telephone etc.
(1) Before applying under section 538 for a warrant, an inspector must
prepare an information of a kind referred to in section 535 that sets
out the grounds on which the issue of the warrant is being sought.
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Division 3
Section 539
Telecommunications Act 1997 449
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
However, the inspector may, if it is necessary to do so, make the
application before the information has been sworn.
(2) If the magistrate to whom an application under section 538 is made
is satisfied:
(a) after having considered the terms of the information prepared
under subsection (1); and
(b) after having received such further information (if any) as the
magistrate requires concerning the grounds on which the
issue of the warrant is being sought;
that there are reasonable grounds for issuing the warrant, the
magistrate must complete and sign such a search warrant as the
magistrate would issue under section 535 if the application had
been made under that section.
(3) If the magistrate signs a warrant under subsection (2):
(a) the magistrate must:
(i) inform the inspector of the terms of the warrant; and
(ii) inform the inspector of the day on which and the time at
which the warrant was signed; and
(iii) inform the inspector of the day (not more than 7 days
after the magistrate completes and signs the warrant) on
which the warrant ceases to have effect; and
(iv) record on the warrant the reasons for issuing the
warrant; and
(b) the inspector must:
(i) complete a form of warrant in the same terms as the
warrant completed and signed by the magistrate; and
(ii) write on it the magistrate’s name and the day on which
and the time at which the warrant was signed.
(4) The inspector must, not later than the day after the date of expiry or
execution of the warrant, whichever is the earlier, send to the
magistrate:
(a) the form of warrant completed by the inspector; and
(b) the information duly sworn in connection with the warrant.
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Section 540
450 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(5) On receiving the documents referred to in subsection (4), the
magistrate must:
(a) attach to them the warrant signed by the magistrate; and
(b) deal with the documents in the way which the magistrate
would have dealt with the information if the application for
the warrant had been made under section 535.
(6) A form of warrant duly completed by an inspector under
subsection (3), if it is in accordance with the terms of the warrant
signed by the magistrate, is authority for an entry, search, seizure
or other exercise of a power that the warrant so signed authorises.
540 Proceedings involving warrant issued by telephone etc.
If:
(a) it is material in any proceedings for a court to be satisfied
that an entry, search, seizure or other exercise of power was
authorised in accordance with section 539; and
(b) a warrant signed by a magistrate under section 539
authorising the entry, search, seizure or other exercise of
power is not produced in evidence;
the court is to assume, unless the contrary is proved, that the entry,
search, seizure or other exercise of power was not authorised by
such a warrant.
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Division 4
Section 541
Telecommunications Act 1997 451
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Division 4—Searches and seizures relating to breaches of
the Spam Act 2003 or Part 21 of this Act
541 When is a thing connected with an offence?
For the purposes of this Division, a thing is connected with a
particular offence if it is:
(a) a thing in respect of which the offence has been committed;
or
(b) a thing that may afford evidence about the commission of the
offence; or
(c) a thing that was used, or is intended to be used, for the
purposes of committing the offence.
541A When is a thing connected with a breach of the Spam Act
2003?
For the purposes of this Part, a thing is connected with a breach of
the Spam Act 2003 if it is:
(a) a thing in respect of which the breach has happened; or
(b) a thing that may afford evidence about the breach; or
(c) a thing that was used, or is intended to be used, for the
purposes of the breach.
542 Searches and seizures
(1) This section applies if an inspector suspects on reasonable grounds
that there is on any land, or on or in any premises, vessel, aircraft
or vehicle anything connected with:
(a) a particular offence against Part 21 of this Act; or
(b) a particular breach of the Spam Act 2003.
(2) The inspector may, with the consent of the owner or occupier of
the land, premises, vessel, aircraft or vehicle, or in accordance with
a warrant issued under Division 3:
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Section 543
452 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(a) enter the land, premises, vessel, aircraft or vehicle; and
(b) search the land, premises, vessel, aircraft or vehicle; and
(c) break open and search a cupboard, drawer, chest, trunk, box,
package or other receptacle, whether a fixture or not, in
which the inspector suspects on reasonable grounds there to
be anything of a kind referred to in subsection (1); and
(d) examine and seize anything that the inspector suspects on
reasonable grounds to be connected with the offence or
breach.
(3) If an inspector may enter a vessel, aircraft or vehicle under
subsection (2), the inspector may, for that purpose and for the
purpose of exercising a power referred to in paragraph (2)(b), (c) or
(d), stop and detain the vessel, aircraft or vehicle.
(4) A reference in this section to an offence against Part 21 includes a
reference to an offence created by section 6 of the Crimes Act 1914
or Part 2.4 of the Criminal Code that relates to Part 21 of this Act.
543 Production of identity card etc.
(1) An inspector (other than a member of a police force who is in
uniform) who proposes to enter land or premises under section 542
must:
(a) in the case of a member of a police force—produce, for
inspection by the owner or occupier of the land or premises
written evidence of the fact that the inspector is a member of
a police force; or
(b) in any other case—produce the inspector’s identity card for
inspection by the owner or occupier;
and, if the inspector fails to do so, he or she is not authorised to
enter the land or premises.
(2) If the entry is in accordance with a warrant issued under
Division 3, the inspector is taken not to have complied with
subsection (1) unless he or she also produces the warrant for
inspection by the owner or occupier.
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Division 4
Section 544
Telecommunications Act 1997 453
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
544 Evidence of commission of other offences against Part 21 of this
Act or other breaches of the Spam Act 2003
(1) If:
(a) in the course of searching, in accordance with a warrant
issued under Division 3, for a particular thing in relation to a
particular offence, an inspector finds a thing that the
inspector believes on reasonable grounds to be:
(i) a thing that is connected with the offence, although not
the thing specified in the warrant; or
(ii) a thing that is connected with another offence against
Part 21; and
(b) the inspector believes, on reasonable grounds, that it is
necessary to seize that thing in order to prevent its
concealment, loss or destruction, or its use in committing,
continuing or repeating the offence or the other offence;
the warrant is taken to authorise the inspector to seize that thing.
(1A) If:
(a) in the course of searching, in accordance with a warrant
issued under Division 3, for a particular thing in relation to a
particular breach of the Spam Act 2003, an inspector finds a
thing that the inspector believes on reasonable grounds to be:
(i) a thing that is connected with the breach, although not
the thing specified in the warrant; or
(ii) a thing that is connected with another breach of the
Spam Act 2003; and
(b) the inspector believes, on reasonable grounds, that it is
necessary to seize that thing in order to prevent its
concealment, loss or destruction, or its use in committing,
continuing or repeating the breach or the other breach;
the warrant is taken to authorise the inspector to seize that thing.
(2) A reference in this section to an offence against Part 21 includes a
reference to an offence created by section 6 of the Crimes Act 1914
or Part 2.4 of the Criminal Code that relates to Part 21 of this Act.
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of this Act
Section 545
454 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
545 Emergency entry, search and seizure
(1) If an inspector has reasonable grounds to believe:
(a) that a person is carrying anything that is connected with an
offence against Part 21; and
(b) that the exercise of the powers under this section is necessary
to prevent the concealment, loss or destruction of a thing
connected with a particular offence;
the inspector may:
(c) search the person, the person’s clothing and any property in
the person’s immediate control; and
(d) seize any thing found in the course of the search;
so long as those powers are exercised in circumstances of such
seriousness and urgency as to require and justify the immediate
exercise of those powers without the authority of a warrant issued
under Division 3.
(2) If an inspector has reasonable grounds to believe:
(a) that there is on any land or on or in any premises, vessel,
aircraft or vehicle any thing that is connected with a
particular offence against Part 21; and
(b) that the exercise of powers conferred under this section is
necessary to prevent the concealment, loss or destruction of
the thing;
the inspector may, with such assistance as the inspector thinks fit,
and if necessary by force:
(c) enter the land, premises, vessel, aircraft or vehicle; and
(d) search for the thing; and
(e) seize any such thing found in the course of the search;
so long as those powers are exercised in circumstances of such
seriousness and urgency as to require and justify the immediate
exercise of those powers without the authority of a warrant issued
under Division 3.
(3) If an inspector may enter a vessel, aircraft or vehicle under
subsection (2), the inspector may, for that purpose and for the
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Division 4
Section 546
Telecommunications Act 1997 455
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
purpose of exercising a power referred to in paragraph (2)(d) or (e),
stop and detain the vessel, aircraft or vehicle.
(4) A reference in this section to an offence against Part 21 includes a
reference to an offence created by section 6 of the Crimes Act 1914
or Part 2.4 of the Criminal Code that relates to Part 21 of this Act.
546 Retention of things seized
(1) If an inspector seizes a thing under this Division, the inspector or
the ACMA may retain it until:
(a) the end of the period of 60 days after the seizure; or
(b) if either of the following proceedings are instituted within
that period:
(i) proceedings for an offence against, or arising out of, this
Act in respect of which the thing may afford evidence;
(ii) proceedings for a breach of the Spam Act 2003 in
respect of which the thing may afford evidence;
the proceedings (including any appeal to a court in relation to
those proceedings) are completed.
(2) The ACMA may, by written instrument, authorise a thing seized
under this Division to be released to the owner, or to the person
from whom it was seized, either:
(a) unconditionally; or
(b) on such conditions as the ACMA thinks fit, including
conditions as to giving security for payment of its value if it
is forfeited under section 551.
(3) In this section:
this Act includes the Telecommunications (Consumer Protection
and Service Standards) Act 1999 and regulations under that Act.
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Division 5 Searches to monitor compliance with Part 21
Section 547
456 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Division 5—Searches to monitor compliance with Part 21
547 Searches to monitor compliance with Part 21
(1) An inspector may, to the extent that it is reasonably necessary for
the purpose of ascertaining whether Part 21 has been complied
with, enter, at any time during the day or night, any premises that
the inspector has reasonable cause to believe are premises to which
this section applies and:
(a) search the premises; or
(b) inspect and take photographs, or make sketches, of the
premises or any substance or thing at the premises; or
(c) inspect any document kept at the premises; or
(d) remove, or make copies of, any such document.
This section has effect subject to subsections (2) and (3).
(2) An inspector may not, under subsection (1), enter premises that are
a residence unless the occupier of the premises has consented to
the entry.
(3) An inspector is not entitled to exercise any powers under
subsection (1) in relation to premises if:
(a) the occupier of the premises has required the inspector to
produce his or her identity card for inspection by the
occupier; and
(b) the inspector fails to comply with the requirement.
(4) This section applies to premises at which:
(a) activities that are the subject of regulation under Part 21 are
engaged in; or
(b) records relating to any such activities are kept.
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Section 547A
Telecommunications Act 1997 457
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Division 5A—Searches to monitor compliance with the
Spam Act 2003
547A Powers available to inspectors for monitoring compliance
(1) For the purpose of finding out whether the Spam Act 2003 has been
complied with, an inspector may:
(a) enter any premises; and
(b) exercise the monitoring powers set out in section 547B.
(2) An inspector is not authorised to enter premises under
subsection (1) unless:
(a) the occupier of the premises has consented to the entry; or
(b) the entry is made under a warrant under section 547D.
Consent
(3) Before obtaining the consent of a person for the purposes of
paragraph (2)(a), the inspector must inform the person that he or
she may refuse consent.
(4) An entry of an inspector by virtue of the consent of a person is not
lawful unless the person voluntarily consented to the entry.
547B Monitoring powers
(1) The monitoring powers that an inspector may exercise under
paragraph 547A(1)(b) are as follows:
(a) to search the premises;
(b) to inspect and take photographs, or make sketches, of the
premises or any substance or thing at the premises;
(c) to inspect any document kept at the premises;
(d) to remove, or make copies of, any such document;
(e) to take onto the premises such equipment and materials as the
inspector requires for the purpose of exercising powers in
relation to the premises;
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Section 547B
458 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(f) to secure a thing, until a warrant is obtained to seize it, if:
(i) the inspector finds the thing during the exercise of
powers on the premises; and
(ii) the inspector believes on reasonable grounds that the
thing is connected with a breach of the Spam Act 2003;
and
(iii) the inspector believes on reasonable grounds that the
thing would be lost, destroyed or tampered with before
the warrant can be obtained;
(g) to secure a computer, until an order under section 547J is
obtained in relation to it, if:
(i) the inspector finds the computer during the exercise of
powers on the premises; and
(ii) there are reasonable grounds for suspecting that a thing
connected with a breach of the Spam Act 2003 is held
in, or is accessible from, the computer; and
(iii) the inspector believes on reasonable grounds that the
computer, or the thing mentioned in subparagraph (ii),
would be lost, destroyed or tampered with before the
order can be obtained.
(2) The monitoring powers that an inspector may exercise under
paragraph 547A(1)(b) include the power to operate equipment at
premises to see whether:
(a) the equipment; or
(b) a disk, tape or other storage device that:
(i) is at the premises; and
(ii) can be used with the equipment or is associated with it;
contains information that is relevant to determining whether there
has been compliance with the Spam Act 2003.
(3) If the inspector, after operating equipment at the premises, finds
that the equipment, or that a tape, disk or other storage device at
the premises, contains information mentioned in subsection (2), the
inspector may:
(a) operate facilities at the premises to put the information in
documentary form and copy the document so produced; or
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Section 547C
Telecommunications Act 1997 459
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(b) if the information can be transferred to a tape, disk or other
storage device that:
(i) is brought to the premises; or
(ii) is at the premises and the use of which for the purpose
has been agreed to in writing by the occupier of the
premises;
operate the equipment or other facilities to copy the
information to the storage device, and remove the storage
device from the premises.
Note: See also section 547J (order requiring person to assist with access to
computer data).
547C Production of identity card etc.
An inspector (other than a member of a police force who is in
uniform) who proposes to enter premises under section 547A must:
(a) in the case of a member of a police force—produce, for
inspection by the occupier of the premises, written evidence
of the fact that the inspector is a member of a police force; or
(b) in any other case—produce the inspector’s identity card for
inspection by the occupier;
and, if the inspector fails to do so, he or she is not authorised to
enter the premises.
547D Monitoring warrants
(1) An inspector may apply to a magistrate for a warrant under this
section in relation to premises.
(2) The magistrate may issue the warrant if the magistrate is satisfied,
by information on oath or affirmation, that it is reasonably
necessary that one or more inspectors should have access to the
premises for the purposes of finding out whether the Spam Act
2003 has been complied with.
(3) The magistrate must not issue the warrant unless the inspector or
some other person has given to the magistrate, either orally or by
affidavit, such further information (if any) as the magistrate
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460 Telecommunications Act 1997
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requires concerning the grounds on which the issue of the warrant
is being sought.
(4) If the premises are a residence, the magistrate must not issue the
warrant unless:
(a) all of the following conditions are satisfied:
(i) the Federal Court has found, in proceedings under the
Spam Act 2003, that an individual has breached that
Act;
(ii) the finding has not been overturned on appeal;
(iii) the individual ordinarily resides at the premises;
(iv) the breach involved the use of equipment that is or was
on those premises;
(v) the warrant is issued within 10 years after the finding; or
(b) all of the following conditions are satisfied:
(i) an individual has given an undertaking for the purposes
of section 38 of the Spam Act 2003;
(ii) the undertaking is in force;
(iii) the individual ordinarily resides at the premises;
(iv) the undertaking applies to the use of equipment that is
on those premises.
(5) The warrant must:
(a) authorise one or more inspectors (whether or not named in
the warrant), with such assistance and by such force as is
necessary and reasonable:
(i) to enter the premises; and
(ii) to exercise the powers set out in section 547B in relation
to the premises; and
(b) state whether the entry is authorised to be made at any time
of the day or night or during specified hours of the day or
night; and
(c) specify the day (not more than 6 months after the issue of the
warrant) on which the warrant ceases to have effect; and
(d) state the purpose for which the warrant is issued.
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Section 547E
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547E Details of warrant to be given to occupier etc.
(1) If:
(a) a warrant under section 547D in relation to premises is being
executed by an inspector; and
(b) the occupier of the premises or another person who
apparently represents the occupier is present at the premises;
the inspector must make available to that person a copy of the
warrant.
(2) The inspector must identify himself or herself to that person.
(3) The copy of the warrant referred to in subsection (1) need not
include the signature of the magistrate who issued the warrant.
547F Announcement before entry
(1) An inspector must, before entering premises under a warrant under
section 547D:
(a) announce that he or she is authorised to enter the premises;
and
(b) give any person at the premises an opportunity to allow entry
to the premises.
(2) An inspector is not required to comply with subsection (1) if he or
she believes on reasonable grounds that immediate entry to the
premises is required:
(a) to ensure the safety of a person; or
(b) to ensure that the effective execution of the warrant is not
frustrated.
547G Compensation for damage to equipment
(1) This section applies if:
(a) as a result of equipment being operated as mentioned in
section 547B:
(i) damage is caused to the equipment; or
(ii) the data recorded on the equipment is damaged; or
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(iii) programs associated with the use of the equipment, or
with the use of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the person
who was to operate the equipment; or
(ii) insufficient care was exercised by the person operating
the equipment.
(2) The Commonwealth must pay the owner of the equipment, or the
user of the data or programs, such reasonable compensation for the
damage or corruption as the Commonwealth and the owner or user
agree on.
(3) However, if the owner or user and the Commonwealth fail to
agree, the owner or user may institute proceedings in the Federal
Court for such reasonable amount of compensation as the Court
determines.
(4) In determining the amount of compensation payable, regard is to
be had to whether the occupier of the premises, or the occupier’s
employees and agents, if they were available at the time, provided
any appropriate warning or guidance on the operation of the
equipment.
(5) Compensation is payable out of money appropriated by the
Parliament.
(6) For the purposes of subsection (1):
damage, in relation to data, includes damage by erasure of data or
addition of other data.
547H Occupier entitled to be present during search
(1) If:
(a) a warrant under section 547D in relation to premises is being
executed; and
(b) the occupier of the premises, or another person who
apparently represents the occupier, is present at the premises;
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the person is entitled to observe the search being conducted.
(2) The right to observe the search being conducted ceases if the
person impedes the search.
(3) This section does not prevent 2 or more areas of the premises being
searched at the same time.
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Section 547J
464 Telecommunications Act 1997
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Division 5B—Access to computer data that is relevant to
the Spam Act 2003
547J Access to computer data that is relevant to the Spam Act 2003
Scope
(1) This section applies if:
(a) both:
(i) a warrant is in force under Division 3 authorising an
inspector to enter particular premises; and
(ii) the warrant relates to the Spam Act 2003; or
(b) a warrant is in force under Division 5A authorising an
inspector to enter particular premises.
Application to magistrate for access order
(2) The inspector may apply to a magistrate for an order requiring a
specified person to provide any information or assistance that is
reasonable and necessary to allow the inspector to do one or more
of the following:
(a) access data held in, or accessible from, a computer that is on
those premises;
(b) copy the data to a data storage device;
(c) convert the data into documentary form.
Grant of access order
(3) The magistrate may grant the order if the magistrate is satisfied
that:
(a) there are reasonable grounds for suspecting that a thing
connected with a breach of the Spam Act 2003 is held in, or is
accessible from, the computer; and
(b) the specified person is:
(i) reasonably suspected of having been involved in the
breach; or
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Access to computer data that is relevant to the Spam Act 2003 Division 5B
Section 547J
Telecommunications Act 1997 465
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(ii) the owner or lessee of the computer; or
(iii) an employee of the owner or lessee of the computer; and
(c) the specified person has relevant knowledge of:
(i) the computer or a computer network of which the
computer forms a part; or
(ii) measures applied to protect data held in, or accessible
from, the computer.
Offence
(4) A person commits an offence if:
(a) the person is subject to an order under this section; and
(b) the person omits to do an act; and
(c) the omission breaches the order.
Penalty: Imprisonment for 6 months.
Definitions
(5) In this section:
data includes:
(a) information in any form; and
(b) any program (or part of a program).
data held in a computer includes:
(a) data held in any removable data storage device for the time
being held in a computer; and
(b) data held in a data storage device on a computer network of
which the computer forms a part.
data storage device means a thing containing, or designed to
contain, data for use by a computer.
(6) This section does not, by implication, affect the meaning of the
expression data when used in any other provision of this Act or the
Telecommunications (Consumer Protection and Service Standards)
Act 1999.
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Part 28 Enforcement
Division 6 Other powers of inspectors
Section 548
466 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Division 6—Other powers of inspectors
548 General powers of inspectors
(1) An inspector may:
(a) require a person whom he or she suspects on reasonable
grounds of having done an act in respect of which the person
is required to hold:
(i) a carrier licence; or
(ii) a connection permit; or
(iii) a cabling licence;
to produce the licence or permit (as the case may be), or
evidence of its existence and contents; and
(b) require a person to produce evidence of having applied a
label in accordance with an obligation imposed on the person
under section 407; and
(c) require a person who has been required under
paragraph 408(5)(a) or (d) to:
(i) obtain a written statement from a certification body
certifying that customer equipment or customer cabling
complies with a specified section 376 standard; or
(ii) obtain a written statement from a competent body
stating that reasonable efforts have been made to avoid
a contravention of a specified section 376 standard;
to produce the statement, or evidence of its existence and
contents; and
(d) require a person who has been required under
paragraph 408(5)(b) to have customer equipment or customer
cabling tested by a recognised testing authority to produce
evidence of the testing; and
(e) require a person who has been required under
subsection 408(6) to retain:
(i) records; or
(ii) a declaration; or
(iii) a copy of a declaration;
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Section 549
Telecommunications Act 1997 467
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for a particular period to produce those records, that declaration or
that copy, so long as the inspector does not require the production
of those records, that declaration or that copy after the end of that
period.
(2) A person must not contravene a requirement under this section.
Penalty: 20 penalty units.
Note: See also sections 4AA and 4B of the Crimes Act 1914.
(2A) Subsection (2) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (2A) (see subsection 13.3(3) of the Criminal Code).
(2B) Subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) In this section:
application, in relation to a label, has the same meaning as in
Division 7 of Part 21.
certification body has the same meaning as in Division 7 of
Part 21.
competent body has the same meaning as in Division 7 of Part 21.
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
recognised testing authority has the same meaning as in Division 7
of Part 21.
549 Power to require information etc.
(1) An inspector who has entered land, premises, a vessel, an aircraft
or a vehicle under Division 4 or 5 may, to the extent that is
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Division 6 Other powers of inspectors
Section 549
468 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
reasonably necessary for the purpose of ascertaining whether
Part 21 has been complied with, require the person to:
(a) answer any questions put by the inspector; and
(b) produce any documents requested by the inspector.
(1A) An inspector who has entered land, premises, a vessel, an aircraft
or a vehicle under Division 4 or 5A may, to the extent that is
reasonably necessary for the purpose of ascertaining whether the
Spam Act 2003 has been complied with, require the person to:
(a) answer any questions put by the inspector; and
(b) produce any documents requested by the inspector.
(2) An inspector is not entitled to make a requirement of a person
under subsection (1) or (1A) unless:
(a) the inspector produces his or her identity card for inspection
by the person; or
(b) the inspector is a member of a police force and is wearing the
uniform of that police force.
(3) A person commits an offence if:
(a) the person is subject to a requirement under subsection (1) or
(1A); and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes the requirement.
Penalty: 20 penalty units.
(3A) Subsection (3) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (3A) (see subsection 13.3(3) of the Criminal Code).
(4) An individual is excused from giving information or producing a
document under this section if the information or the production of
the document might tend to incriminate the individual or expose
the individual to a penalty.
(5) In this section:
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Other powers of inspectors Division 6
Section 550
Telecommunications Act 1997 469
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engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
550 Retention of documents
If:
(a) an inspector removes a document from any land, premises,
vessel, aircraft or vehicle under section 542, 547 or 547B; or
(b) a person produces a document to an inspector in accordance
with a requirement under subsection 549(1) or (1A);
then:
(c) the inspector may retain possession of the document for such
period as is necessary and reasonable for the purpose of
ascertaining whether the Spam Act 2003 or Part 21 of this
Act has been complied with; and
(d) during that period, the inspector must permit a person who
would be entitled to inspect the document if it were not in the
inspector’s possession to inspect the document at all
reasonable times.
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Part 28 Enforcement
Division 7 Forfeiture
Section 551
470 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Division 7—Forfeiture
551 Court may order forfeiture
(1) If a court convicts a person of an offence against this Act, the court
may order the forfeiture to the Commonwealth of anything used or
otherwise involved in the commission of the offence.
(2) A reference in this section to an offence against this Act includes a
reference to an offence created by section 6 of the Crimes Act 1914
or Part 2.4 of the Criminal Code that relates to this Act.
(3) In this section:
this Act includes the Telecommunications (Consumer Protection
and Service Standards) Act 1999 and regulations under that Act.
552 Forfeited goods may be sold
A thing forfeited under section 551:
(a) may be sold or otherwise disposed of in accordance with the
directions of the ACMA; and
(b) pending such directions, must be kept in such custody as the
ACMA directs.
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Future offences Division 8
Section 553
Telecommunications Act 1997 471
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Division 8—Future offences
553 Offences that are going to be committed
(1) If:
(a) there are reasonable grounds for suspecting that an offence
against this Act is going to be committed; and
(b) the commission of that offence would pose a threat to the
safety of human life or cause substantial loss or damage;
this Part applies in relation to the offence as if there were
reasonable grounds for suspecting that it had been committed.
(2) A reference in this section to an offence against this Act includes a
reference to an offence created by section 6 of the Crimes Act 1914
or Part 2.4 of the Criminal Code that relates to this Act.
(3) In this section:
this Act includes the Telecommunications (Consumer Protection
and Service Standards) Act 1999 and regulations under that Act.
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Part 29 Review of decisions
Section 554
472 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Part 29—Review of decisions
554 Simplified outline
The following is a simplified outline of this Part:
• Certain decisions of the ACMA may be reviewed by the
Administrative Appeals Tribunal following a process of
internal reconsideration by the ACMA.
555 Decisions that may be subject to reconsideration by the ACMA
An application may be made to the ACMA for reconsideration of a
decision of a kind specified in Part 1 of Schedule 4.
556 Deadlines for reaching certain decisions
(1) This section applies to a decision of a kind referred to in
section 555, other than a decision of a kind specified in Part 2 of
Schedule 4.
(2) If this Act provides for a person to make an application to the
ACMA for such a decision, the ACMA must make the decision:
(a) within 90 days after receiving the application; or
(b) if the ACMA has, within those 90 days, given the applicant a
written request for further information about the
application—within 90 days after receiving that further
information.
(3) The ACMA is taken, for the purposes of this Part, to have made a
decision to refuse the application if it has not informed the
applicant of its decision before the end of the relevant period of 90
days.
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Section 557
Telecommunications Act 1997 473
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
557 Statements to accompany notification of decisions
(1) If the ACMA makes a decision of a kind referred to in section 555
and gives written notice of the decision to a person whose interests
it affects, the notice must include:
(a) a statement to the effect that a person affected by the decision
may, if he or she is dissatisfied with the decision, seek a
reconsideration of the decision by the ACMA under
subsection 558(1); and
(b) a statement to the effect that, if a person who has applied for
a reconsideration is dissatisfied with the ACMA’s decision
on the reconsideration:
(i) subject to the Administrative Appeals Tribunal Act
1975, application may be made to the Administrative
Appeals Tribunal for review of the decision on that
reconsideration; and
(ii) the person may request a statement under section 28 of
that Act in relation to the decision on that
reconsideration.
(2) Failure to comply with this section does not affect the validity of a
decision.
558 Applications for reconsideration of decisions
(1) A person affected by a decision of a kind referred to in section 555
who is dissatisfied with the decision may apply to the ACMA for
the ACMA to reconsider the decision.
(2) The application must:
(a) be in a form approved in writing by the ACMA; and
(b) set out the reasons for the application.
(3) The application must be made within:
(a) 28 days after the applicant is informed of the decision; or
(b) if, either before or after the end of that period of 28 days, the
ACMA extends the period within which the application may
be made—the extended period for making the application.
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Part 29 Review of decisions
Section 559
474 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(4) An approved form of an application may provide for verification
by statutory declaration of statements in applications.
559 Reconsideration by the ACMA
(1) Upon receiving such an application, the ACMA must:
(a) reconsider the decision; and
(b) affirm, vary or revoke the decision.
(2) The ACMA’s decision on reconsideration of a decision has effect
as if it had been made under the provision under which the original
decision was made.
(3) The ACMA must give to the applicant a notice stating its decision
on the reconsideration together with a statement of its reasons for
its decision.
560 Deadlines for reconsiderations
(1) The ACMA must make its decision on reconsideration of a
decision within 90 days after receiving an application for
reconsideration.
(2) The ACMA is taken, for the purposes of this Part, to have made a
decision affirming the original decision if it has not informed the
applicant of its decision on the reconsideration before the end of
the period of 90 days.
561 Statements to accompany notification of decisions on
reconsideration
(1) A notice under subsection 559(3) notifying the applicant that a
decision has been affirmed or varied must include:
(a) a statement to the effect that a person affected by the decision
so affirmed or varied may, subject to the Administrative
Appeals Tribunal Act 1975, if he or she is dissatisfied with
the decision so affirmed or varied, apply to the
Administrative Appeals Tribunal for review of the decision;
and
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Section 562
Telecommunications Act 1997 475
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(b) a statement to the effect that the person may request a
statement under section 28 of that Act in relation to the
decision so affirmed or varied.
(2) Failure to comply with this section does not affect the validity of a
decision.
562 Review by the Administrative Appeals Tribunal
Applications may be made to the Administrative Appeals Tribunal
to review a decision of a kind referred to in section 555 if the
ACMA has affirmed or varied the decision under section 559.
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Part 30 Injunctions
Section 563
476 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Part 30—Injunctions
563 Simplified outline
The following is a simplified outline of this Part:
• The Federal Court may grant injunctions in relation to
contraventions of:
(a) this Act; or
(b) the Telecommunications (Consumer Protection
and Service Standards) Act 1999; or
(c) regulations under that Act.
564 Injunctions
Restraining injunctions
(1) If a person has engaged, is engaging or is proposing to engage, in
any conduct in contravention of this Act, the Federal Court may,
on the application of the Minister, the ACMA or the ACCC, grant
an injunction:
(a) restraining the person from engaging in the conduct; and
(b) if, in the court’s opinion, it is desirable to do so—requiring
the person to do something.
Performance injunctions
(2) If:
(a) a person has refused or failed, or is refusing or failing, or is
proposing to refuse or fail, to do an act or thing; and
(b) the refusal or failure was, is or would be a contravention of
this Act;
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Section 564
Telecommunications Act 1997 477
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
the Federal Court may, on the application of the Minister, the
ACMA or the ACCC, grant an injunction requiring the person to
do that act or thing.
Limit on standing of the ACMA
(3) Despite subsections (1) and (2), the ACMA is not entitled to apply
for an injunction in relation to a contravention of:
(a) the carrier licence condition set out in Part 1 of Schedule 1 in
so far as that condition relates to section 369; or
(aa) the carrier licence condition set out in Part 1 of Schedule 1 in
so far as that condition relates to section 577AD, 577CD or
577ED; or
(b) a carrier licence condition set out in Part 3, 4 or 5 of
Schedule 1; or
(ba) the carrier licence condition set out in clause 84 of
Schedule 1; or
(c) the service provider rule set out in Part 1 of Schedule 2 in so
far as that rule relates to section 369; or
(d) the carrier licence condition set out in section 152AZ of the
Competition and Consumer Act 2010; or
(e) the service provider rule set out in subsection 152BA(2) of
the Competition and Consumer Act 2010; or
(f) the carrier licence condition set out in section 152BCO of the
Competition and Consumer Act 2010; or
(g) the service provider rule set out in subsection 152BCP(2) of
the Competition and Consumer Act 2010; or
(h) the carrier licence condition set out in section 152BDF of the
Competition and Consumer Act 2010; or
(i) the service provider rule set out in subsection 152BDG(2) of
the Competition and Consumer Act 2010; or
(j) the carrier licence condition set out in section 152BEC of the
Competition and Consumer Act 2010; or
(k) the service provider rule set out in subsection 152BED(2) of
the Competition and Consumer Act 2010; or
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Section 564
478 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(l) the carrier licence condition set out in section 152CJC of the
Competition and Consumer Act 2010; or
(m) the service provider rule set out in subsection 152CJD(2) of
the Competition and Consumer Act 2010; or
(n) the carrier licence condition set out in section 37 of the
National Broadband Network Companies Act 2011; or
(o) the service provider rule set out in subsection 38(2) of the
National Broadband Network Companies Act 2011; or
(p) a carrier licence condition covered by section 41 of the
National Broadband Network Companies Act 2011.
Note 1: Section 369 deals with Rules of Conduct under section 367.
Note 1A: Sections 577AD, 577CD and 577ED deal with undertakings given by
Telstra.
Note 2: Parts 3, 4 and 5 of Schedule 1 deal with access to network information
and access to facilities.
Note 2A: Clause 84 of Schedule 1 deals with control by Telstra of certain
spectrum licences.
Note 3: Section 152AZ of the Competition and Consumer Act 2010 deals with
standard access obligations.
Note 4: Subsection 152BA(2) of the Competition and Consumer Act 2010
provides that a carriage service provider must comply with any
standard access obligations, and certain ancillary obligations, that are
applicable to the provider.
Note 5: Section 152BCO of the Competition and Consumer Act 2010 deals
with access determinations.
Note 6: Subsection 152BCP(2) of the Competition and Consumer Act 2010
provides that a carriage service provider must comply with any access
determinations that are applicable to the provider.
Note 7: Section 152BDF of the Competition and Consumer Act 2010 deals
with binding rules of conduct.
Note 8: Subsection 152BDG(2) of the Competition and Consumer Act 2010
provides that a carriage service provider must comply with any
binding rules of conduct that are applicable to the provider.
Note 9: Section 152BEC of the Competition and Consumer Act 2010 deals
with access agreements.
Note 10: Subsection 152BED(2) of the Competition and Consumer Act 2010
deals with access agreements.
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Section 565
Telecommunications Act 1997 479
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Note 11: Section 152CJC of the Competition and Consumer Act 2010 deals
with rules about the supply of services by NBN corporations.
Note 12: Subsection 152CJD(2) of the Competition and Consumer Act 2010
deals with rules about the supply of services by NBN corporations.
Note 13: Section 37 of the National Broadband Network Companies Act 2011
deals with rules about:
(a) the supply of goods and services by NBN corporations; and
(b) the investment of money by NBN corporations; and
(c) the functional separation of NBN corporations; and
(d) the divestment of assets by NBN corporations.
Note 14: Subsection 38(2) of the National Broadband Network Companies Act
2011 deals with rules about:
(a) the supply of goods and services by NBN corporations; and
(b) the investment of money by NBN corporations; and
(c) the functional separation of NBN corporations; and
(d) the divestment of assets by NBN corporations.
Note 15: Section 41 of the National Broadband Network Companies Act 2011
deals with rules about the supply of services by NBN corporations.
(4) In this section:
this Act includes the Telecommunications (Consumer Protection
and Service Standards) Act 1999 and regulations under that Act.
565 Interim injunctions
Grant of interim injunction
(1) If an application is made to the court for an injunction under
section 564, the court may, before considering the application,
grant an interim injunction restraining a person from engaging in
conduct of a kind referred to in that section.
No undertakings as to damages
(2) The court is not to require an applicant for an injunction under
section 564, as a condition of granting an interim injunction, to
give any undertakings as to damages.
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Part 30 Injunctions
Section 566
480 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
566 Discharge etc. of injunctions
The court may discharge or vary an injunction granted under this
Part.
567 Certain limits on granting injunctions not to apply
Restraining injunctions
(1) The power of the court under this Part to grant an injunction
restraining a person from engaging in conduct of a particular kind
may be exercised:
(a) if the court is satisfied that the person has engaged in conduct
of that kind—whether or not it appears to the court that the
person intends to engage again, or to continue to engage, in
conduct of that kind; or
(b) if it appears to the court that, if an injunction is not granted, it
is likely that the person will engage in conduct of that kind—
whether or not the person has previously engaged in conduct
of that kind and whether or not there is an imminent danger
of substantial damage to any person if the person engages in
conduct of that kind.
Performance injunctions
(2) The power of the court to grant an injunction requiring a person to
do an act or thing may be exercised:
(a) if the court is satisfied that the person has refused or failed to
do that act or thing—whether or not it appears to the court
that the person intends to refuse or fail again, or to continue
to refuse or fail, to do that act or thing; or
(b) if it appears to the court that, if an injunction is not granted, it
is likely that the person will refuse or fail to do that act or
thing—whether or not the person has previously refused or
failed to do that act or thing and whether or not there is an
imminent danger of substantial damage to any person if the
person refuses or fails to do that act or thing.
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Section 568
Telecommunications Act 1997 481
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
568 Other powers of the court unaffected
The powers conferred on the court under this Part are in addition
to, and not instead of, any other powers of the court, whether
conferred by this Act or otherwise.
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Part 31 Civil penalties
Section 569
482 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Part 31—Civil penalties
569 Simplified outline
The following is a simplified outline of this Part:
• Pecuniary penalties are payable for contraventions of civil
penalty provisions.
570 Pecuniary penalties for contravention of civil penalty provisions
(1) If the Federal Court is satisfied that a person has contravened a
civil penalty provision, 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:
(a) in the case of a contravention of subsection 68(1) or (2) or
101(1) or (2)—$10 million for each contravention; or
(b) in any other case—$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.
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Section 570
Telecommunications Act 1997 483
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(4A) Subsections (3) and (4) do not apply to a contravention of
subsection 139(1) or (2).
(4B) Section 25 of the Do Not Call Register Act 2006 applies to a
contravention of subsection 139(1) or (2) of this Act in a
corresponding way to the way in which it applies to a
contravention of subsection 12(1) or (2) of the Do Not Call
Register Act 2006, subject to the following modifications:
(a) each reference in section 25 of the Do Not Call Register Act
2006 to subsection 24(1) of that Act includes a reference to
subsection (1) of this section;
(b) each reference in section 25 of the Do Not Call Register Act
2006 to a civil penalty provision includes a reference to
subsection 139(1) or (2) of this Act;
(c) each reference in section 25 of the Do Not Call Register Act
2006 to a civil penalty order includes a reference to an order
under subsection (1) of this section.
(5) If conduct constitutes a contravention of 2 or more civil penalty
provisions, proceedings may be instituted under this Act against a
person in relation to the contravention of any one or more of those
provisions. However, the person is not liable to more than one
pecuniary penalty under this section in respect of the same
conduct. This subsection has effect subject to subsection (6).
(6) If conduct constitutes a contravention of:
(a) section 68 or 101; and
(b) one or more other civil penalty provisions;
proceedings must not be instituted under this Act against the
person in relation to the contravention of section 68 or 101, as the
case may be.
(7) In this section:
this Act includes the Telecommunications (Consumer Protection
and Service Standards) Act 1999 and regulations under that Act.
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Part 31 Civil penalties
Section 571
484 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
571 Civil action for recovery of pecuniary penalties
(1) The Minister, the ACMA or the ACCC may institute a proceeding
in the Federal Court for the recovery on behalf of the
Commonwealth of a pecuniary penalty referred to in section 570.
(2) A proceeding under subsection (1) may be commenced within 6
years after the contravention.
(3) Despite subsection (1), the ACMA is not entitled to institute a
proceeding for the recovery of a pecuniary penalty in respect of a
contravention of:
(a) the carrier licence condition set out in Part 1 of Schedule 1 in
so far as that condition relates to section 369; or
(aa) the carrier licence condition set out in Part 1 of Schedule 1 in
so far as that condition relates to section 577AD, 577CD or
577ED; or
(b) a carrier licence condition set out in Part 3, 4 or 5 of
Schedule 1; or
(ba) the carrier licence condition set out in clause 84 of
Schedule 1; or
(c) the service provider rule set out in Part 1 of Schedule 2 in so
far as that rule relates to section 369; or
(d) the carrier licence condition set out in section 152AZ of the
Competition and Consumer Act 2010; or
(e) the service provider rule set out in subsection 152BA(2) of
the Competition and Consumer Act 2010; or
(f) the carrier licence condition set out in section 152BCO of the
Competition and Consumer Act 2010; or
(g) the service provider rule set out in subsection 152BCP(2) of
the Competition and Consumer Act 2010; or
(h) the carrier licence condition set out in section 152BDF of the
Competition and Consumer Act 2010; or
(i) the service provider rule set out in subsection 152BDG(2) of
the Competition and Consumer Act 2010; or
(j) the carrier licence condition set out in section 152BEC of the
Competition and Consumer Act 2010; or
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(k) the service provider rule set out in subsection 152BED(2) of
the Competition and Consumer Act 2010; or
(l) the carrier licence condition set out in section 152CJC of the
Competition and Consumer Act 2010; or
(m) the service provider rule set out in subsection 152CJD(2) of
the Competition and Consumer Act 2010; or
(n) the carrier licence condition set out in section 37 of the
National Broadband Network Companies Act 2011; or
(o) the service provider rule set out in subsection 38(2) of the
National Broadband Network Companies Act 2011; or
(p) a carrier licence condition covered by section 41 of the
National Broadband Network Companies Act 2011.
Note 1: Section 369 deals with Rules of Conduct under section 367.
Note 1A: Sections 577AD, 577CD and 577ED deal with undertakings given by
Telstra.
Note 2: Parts 3, 4 and 5 of Schedule 1 deal with access to network information
and access to facilities.
Note 2A: Clause 84 of Schedule 1 deals with control by Telstra of certain
spectrum licences.
Note 3: Section 152AZ of the Competition and Consumer Act 2010 deals with
standard access obligations.
Note 4: Subsection 152BA(2) of the Competition and Consumer Act 2010
provides that a carriage service provider must comply with any
standard access obligations, and certain ancillary obligations, that are
applicable to the provider.
Note 5: Section 152BCO of the Competition and Consumer Act 2010 deals
with access determinations.
Note 6: Subsection 152BCP(2) of the Competition and Consumer Act 2010
provides that a carriage service provider must comply with any access
determinations that are applicable to the provider.
Note 7: Section 152BDF of the Competition and Consumer Act 2010 deals
with binding rules of conduct.
Note 8: Subsection 152BDG(2) of the Competition and Consumer Act 2010
provides that a carriage service provider must comply with any
binding rules of conduct that are applicable to the provider.
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Note 9: Section 152BEC of the Competition and Consumer Act 2010 deals
with access agreements.
Note 10: Subsection 152BED(2) of the Competition and Consumer Act 2010
deals with access agreements.
Note 11: Section 152CJC of the Competition and Consumer Act 2010 deals
with rules about the supply of services by NBN corporations.
Note 12: Subsection 152CJD(2) of the Competition and Consumer Act 2010
deals with rules about the supply of services by NBN corporations.
Note 13: Section 37 of the National Broadband Network Companies Act 2011
deals with rules about:
(a) the supply of goods and services by NBN corporations; and
(b) the investment of money by NBN corporations; and
(c) the functional separation of NBN corporations; and
(d) the divestment of assets by NBN corporations.
Note 14: Subsection 38(2) of the National Broadband Network Companies Act
2011 deals with rules about:
(a) the supply of goods and services by NBN corporations; and
(b) the investment of money by NBN corporations; and
(c) the functional separation of NBN corporations; and
(d) the divestment of assets by NBN corporations.
Note 15: Section 41 of the National Broadband Network Companies Act 2011
deals with rules about the supply of services by NBN corporations.
572 Criminal proceedings not to be brought for contravention of
civil penalty provisions
Criminal proceedings do not lie against a person only because the
person has contravened a civil penalty provision.
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Section 572A
Telecommunications Act 1997 487
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Part 31A—Enforceable undertakings
572A Simplified outline
The following is a simplified outline of this Part:
• A person may give the ACMA an enforceable undertaking
about compliance with this Act.
572B Acceptance of undertakings
(1) The ACMA may accept any of the following undertakings:
(a) a written undertaking given by a person that the person will,
in order to comply with this Act, take specified action;
(b) a written undertaking given by a person that the person will,
in order to comply with this Act, refrain from taking
specified action;
(c) a written undertaking given by a person that the person will
take specified action directed towards ensuring that the
person does not contravene this Act, or is unlikely to
contravene this Act, in the future.
(2) The undertaking must be expressed to be an undertaking under this
section.
(3) The person may withdraw or vary the undertaking at any time, but
only with the consent of the ACMA.
(4) The ACMA may, by written notice given to the person, cancel the
undertaking.
(5) The ACMA may publish the undertaking on its website.
(6) In this section:
this Act includes:
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Section 572C
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(a) the Telecommunications (Consumer Protection and Service
Standards) Act 1999; and
(b) the Do Not Call Register Act 2006.
572C Enforcement of undertakings
(1) If:
(a) a person has given an undertaking under section 572B; and
(b) the undertaking has not been withdrawn or cancelled; and
(c) the ACMA considers that the person has breached the
undertaking;
the ACMA may apply to the Federal Court for an order under
subsection (2).
(2) If the Federal Court is satisfied that the person has breached the
undertaking, the Court may make any or all of the following
orders:
(a) an order directing the person to comply with the undertaking;
(b) an order directing the person to pay to the Commonwealth an
amount up to the amount of any financial benefit that the
person has obtained directly or indirectly and that is
reasonably attributable to the breach;
(c) any order that the Court considers appropriate directing the
person to compensate any other person who has suffered loss
or damage as a result of the breach;
(d) any other order that the Court considers appropriate.
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Section 572D
Telecommunications Act 1997 489
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Part 31B—Infringement notices for contraventions
of civil penalty provisions
572D Simplified outline
The following is a simplified outline of this Part:
• This Part sets up a system of infringement notices for
contraventions of civil penalty provisions as an alternative to
the institution of court proceedings.
572E When an infringement notice can be given
(1) If an authorised infringement notice officer has reasonable grounds
to believe that a person has contravened a particular civil penalty
provision, the authorised infringement notice officer may give to
the person an infringement notice relating to the contravention.
Note: See also section 572M (guidelines).
Time limit
(2) An infringement notice must be given within 12 months after the
day on which the contravention is alleged to have taken place.
Carrier licence conditions and service provider rules
(3) If a person’s conduct constitutes a contravention of:
(a) section 68 or 101; and
(b) one or more other civil penalty provisions;
an infringement notice must not be given to the person in relation
to the contravention of section 68 or 101, as the case may be.
(4) If:
(a) a person’s conduct constitutes a contravention of section 68
or 101; and
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(b) the contravention consists of a breach of:
(i) the carrier licence condition set out in Part 1 of
Schedule 1 in so far as that condition relates to
section 369; or
(ia) the carrier licence condition set out in Part 1 of
Schedule 1 in so far as that condition relates to
section 577AD, 577CD or 577ED; or
(ii) a carrier licence condition set out in Part 3, 4 or 5 of
Schedule 1; or
(iii) a carrier licence condition set out in Part 9 of
Schedule 1; or
(iv) the carrier licence condition set out in clause 84 of
Schedule 1; or
(v) the service provider rule set out in Part 1 of Schedule 2
in so far as that rule relates to section 369; or
(vi) the carrier licence condition set out in section 152AZ of
the Competition and Consumer Act 2010; or
(vii) the service provider rule set out in subsection 152BA(2)
of the Competition and Consumer Act 2010; or
(viii) the carrier licence condition set out in section 152BCO
of the Competition and Consumer Act 2010; or
(ix) the service provider rule set out in
subsection 152BCP(2) of the Competition and
Consumer Act 2010; or
(x) the carrier licence condition set out in section 152BDF
of the Competition and Consumer Act 2010; or
(xi) the service provider rule set out in
subsection 152BDG(2) of the Competition and
Consumer Act 2010; or
(xii) the carrier licence condition set out in section 152BEC
of the Competition and Consumer Act 2010; or
(xiii) the service provider rule set out in
subsection 152BED(2) of the Competition and
Consumer Act 2010; or
(xiv) the carrier licence condition set out in section 152CJC
of the Competition and Consumer Act 2010; or
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Telecommunications Act 1997 491
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(xv) the service provider rule set out in
subsection 152CJD(2) of the Competition and
Consumer Act 2010; or
(xvi) the carrier licence condition set out in section 37 of the
National Broadband Network Companies Act 2011; or
(xvii) the service provider rule set out in subsection 38(2) of
the National Broadband Network Companies Act 2011;
or
(xviii) a carrier licence condition covered by section 41 of the
National Broadband Network Companies Act 2011;
an infringement notice must not be given to the person in relation
to the contravention of section 68 or 101, as the case may be.
(5) If:
(a) a person’s conduct constitutes a contravention of section 68
or 101; and
(b) the contravention consists of a breach of:
(i) a carrier licence condition set out in a provision of this
Act other than Part 1 of Schedule 1; or
(ii) a carrier licence condition set out in a provision of a
declaration in force under section 63; or
(iii) a service provider rule set out in a provision of this Act
other than Part 1 of Schedule 2; or
(iv) a service provider rule set out in a provision of a
determination in force under section 99;
an infringement notice must not be given to the person in relation
to the contravention of section 68 or 101, as the case may be,
unless the provision mentioned in subparagraph (b)(i), (ii), (iii) or
(iv), as the case may be:
(c) is a listed infringement notice provision; and
(d) has been a listed infringement notice provision for at least 3
months before the day on which the contravention is alleged
to have taken place.
Note: For listed infringement notice provision, see subsection (7).
(6) If:
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(a) a person’s conduct constitutes a contravention of section 68
or 101; and
(b) the contravention consists of a breach of:
(i) the carrier licence condition set out in Part 1 of
Schedule 1; or
(ii) the service provider rule set out in Part 1 of Schedule 2;
and
(c) the contravention consists of a breach of another provision of
this Act;
an infringement notice must not be given to the person in relation
to the contravention of section 68 or 101, as the case may be,
unless:
(d) the other provision is a listed infringement notice provision;
and
(e) the other provision has been a listed infringement notice
provision for at least 3 months before the day on which the
contravention is alleged to have taken place.
Note: For listed infringement notice provision, see subsection (7).
Listed infringement notice provision
(7) The ACMA may, by legislative instrument, declare that:
(a) a specified provision of this Act; or
(b) a specified provision of a declaration in force under
section 63; or
(c) a specified provision of a determination in force under
section 99;
is a listed infringement notice provision for the purposes of this
section.
Consultation
(8) Before making or varying a declaration under subsection (7), the
ACMA must:
(a) cause to be published on the ACMA’s website a notice:
(i) setting out the draft declaration or variation; and
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(ii) inviting persons to make submissions to the ACMA
about the draft declaration or variation within 14 days
after the notice is published; and
(b) consider any submissions received within the 14-day period
mentioned in paragraph (a).
Definition
(9) In this section:
this Act includes:
(a) the Telecommunications (Consumer Protection and Service
Standards) Act 1999 and regulations under that Act; and
(b) Chapter 5 of the Telecommunications (Interception and
Access) Act 1979.
572F Matters to be included in an infringement notice
(1) An infringement notice must:
(a) set out the name of the person to whom the notice is given;
and
(b) set out the name of the authorised infringement notice officer
who gave the notice; and
(c) set out brief details of the alleged contravention; and
(d) contain a statement to the effect that the matter will not be
dealt with by the Federal Court if the penalty specified in the
notice is paid to the ACMA, on behalf of the
Commonwealth, within:
(i) 28 days after the notice is given; or
(ii) if the ACMA allows a longer period—that longer
period; and
(e) give an explanation of how payment of the penalty is to be
made; and
(f) set out such other matters (if any) as are specified by the
regulations.
Note: For the amount of penalty, see section 572G.
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Section 572G
494 Telecommunications Act 1997
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(2) For the purposes of paragraph (1)(c), the brief details must include
the following information in relation to the alleged contravention:
(a) the date of the alleged contravention;
(b) the civil penalty provision that was allegedly contravened.
572G Amount of penalty
Infringement notice given to a body corporate
(1) The penalty to be specified in an infringement notice given to a
body corporate must be a pecuniary penalty equal to:
(a) if the alleged contravention is of a kind specified in a
determination under subsection (2)—the number of penalty
units specified in the determination in relation to that kind of
contravention; or
(b) otherwise—60 penalty units.
(2) For the purposes of paragraph (1)(a), the Minister may, by
legislative instrument, make a determination that:
(a) sets out one or more kinds of contraventions of section 68 or
101; and
(b) for each kind of contravention set out in the determination,
specifies a particular number of penalty units.
(3) The number of penalty units specified in a determination for a
particular kind of contravention must not exceed 18,000.
Infringement notice given to a person other than a body corporate
(4) The penalty to be specified in an infringement notice given to a
person other than a body corporate must be a pecuniary penalty
equal to 12 penalty units.
572H Withdrawal of an infringement notice
Scope
(1) This section applies if an infringement notice is given to a person.
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Section 572J
Telecommunications Act 1997 495
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Withdrawal
(2) An authorised infringement notice officer may, by written notice
(the withdrawal notice) given to the person, withdraw the
infringement notice.
(3) To be effective, the withdrawal notice must be given to the person
within 28 days after the infringement notice was given.
Refund of penalty if infringement notice withdrawn
(4) If:
(a) the penalty specified in the infringement notice is paid; and
(b) the infringement notice is withdrawn after the penalty is paid;
the Commonwealth is liable to refund the penalty.
572J What happens if the penalty is paid
Scope
(1) This section applies if:
(a) an infringement notice relating to an alleged contravention is
given to a person; and
(b) the penalty is paid in accordance with the infringement
notice; and
(c) the infringement notice is not withdrawn.
What happens
(2) Any liability of the person for the alleged contravention is
discharged.
(3) Proceedings under Part 31 may not be brought against the person
for the alleged contravention.
572K Effect of this Part on civil proceedings
This Part does not:
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Section 572L
496 Telecommunications Act 1997
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(a) require an infringement notice to be given in relation to an
alleged contravention; or
(b) affect the liability of a person to have proceedings under
Part 31 brought against the person for an alleged
contravention if:
(i) the person does not comply with an infringement notice
relating to the contravention; or
(ii) an infringement notice relating to the contravention is
not given to the person; or
(iii) an infringement notice relating to the contravention is
given to the person and subsequently withdrawn; or
(c) limit the Federal Court’s discretion to determine the amount
of a penalty to be imposed on a person who is found in
proceedings under Part 31 to have contravened a civil penalty
provision.
572L Appointment of authorised infringement notice officer
(1) The ACMA may, by writing, appoint a member of the staff of the
ACMA as an authorised infringement notice officer for the
purposes of this Part.
(2) The ACMA must not appoint a person under subsection (1) unless
the person:
(a) is an SES employee or acting SES employee; or
(b) holds, or is acting in, an Executive Level 1 or 2 position or an
equivalent position.
Note: SES employee is defined in the Acts Interpretation Act 1901.
572M Guidelines relating to infringement notices
(1) In exercising a power conferred on an authorised infringement
notice officer by this Part, the officer must have regard to any
relevant guidelines in force under subsection (2).
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Section 572N
Telecommunications Act 1997 497
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Formulation of guidelines
(2) The ACMA may, by legislative instrument, formulate guidelines
for the purposes of subsection (1).
Note: For consultation requirements, see section 17 (consultation) of the
Legislation Act 2003.
(3) An authorised infringement notice officer must not give an
infringement notice to a person unless guidelines are in force under
subsection (2).
572N Regulations
The regulations may make further provision in relation to
infringement notices.
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Part 32 Vicarious liability
Section 573
498 Telecommunications Act 1997
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Part 32—Vicarious liability
573 Simplified outline
The following is a simplified outline of this Part:
• This Part deals with the proof of matters that involve
employees, agents etc.
574 Proceedings under this Act
A reference in this Part to a proceeding under this Act includes a
reference to:
(a) an action under this Act; and
(b) a proceeding for an offence against:
(i) this Act; or
(ii) an offence created by section 6 of the Crimes Act 1914
or Part 2.4 of the Criminal Code that relates to this Act.
574A Definition
In this Part:
this Act includes:
(a) the Telecommunications (Consumer Protection and Service
Standards) Act 1999 and regulations under that Act; and
(b) the Spam Act 2003 and regulations under that Act; and
(c) the Do Not Call Register Act 2006 and regulations under that
Act.
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Section 575
Telecommunications Act 1997 499
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575 Liability of corporations
State of mind
(1) If, in a proceeding under this Act in respect of conduct engaged in
by a corporation, it is necessary to establish the state of mind of the
corporation, it is sufficient to show that:
(a) a director, employee or agent of the corporation engaged in
that conduct; and
(b) the director, employee or agent was, in engaging in that
conduct, acting within the scope of his or her actual or
apparent authority; and
(c) the director, employee or agent had that state of mind.
Conduct
(2) If:
(a) conduct is engaged in on behalf of a corporation by a
director, employee or agent of the corporation; and
(b) the conduct is within the scope of his or her actual or
apparent authority;
the conduct is taken, for the purposes of a proceeding under this
Act, to have been engaged in by the corporation unless the
corporation establishes that it took reasonable precautions and
exercised due diligence to avoid the conduct.
Extended meaning of state of mind
(3) A reference in subsection (1) to the state of mind of a person
includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the
person; and
(b) the person’s reasons for the intention, opinion, belief or
purpose.
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Extended meaning of director
(4) A reference in this section to a director of a corporation includes a
reference to a constituent member of a body corporate incorporated
for a public purpose by a law of the Commonwealth, a State or a
Territory.
Extended meaning of engaging in conduct
(5) A reference in this section to engaging in conduct includes a
reference to failing or refusing to engage in conduct.
576 Liability of persons other than corporations
This section does not apply to proceedings for certain offences
(1) This section does not apply to proceedings for:
(a) an offence against section 42; or
(b) an offence created by section 6 of the Crimes Act 1914 or
Part 2.4 of the Criminal Code that relates to section 42 of this
Act.
State of mind
(2) If, in proceedings under this Act in respect of conduct engaged in
by a person other than a corporation, it is necessary to establish the
state of mind of the person, it is sufficient to show that:
(a) the conduct was engaged in by an employee or agent of the
person within the scope of his or her actual or apparent
authority; and
(b) the employee or agent had that state of mind.
Conduct
(3) If:
(a) conduct is engaged in on behalf of a person other than a
corporation by an employee or agent of the person; and
(b) the conduct is within the employee’s or agent’s actual or
apparent authority;
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the conduct is taken, for the purposes of a proceeding under this
Act, to have been engaged in by the person unless the person
establishes that he or she took reasonable precautions and
exercised due diligence to avoid the conduct.
Limitation on imprisonment
(4) Despite any other provision of this Act, if:
(a) a person is convicted of an offence; and
(b) the person would not have been convicted of the offence if
subsections (2) and (3) had not been in force;
the person is not liable to be punished by imprisonment for that
offence.
Extended meaning of state of mind
(5) A reference in this section to the state of mind of a person includes
a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the
person; and
(b) the person’s reasons for the intention, opinion, belief or
purpose.
Extended meaning of engaging in conduct
(6) A reference in this section to engaging in conduct includes a
reference to failing or refusing to engage in conduct.
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Part 33 Voluntary undertakings given by Telstra
Division 1 Introduction
Section 577
502 Telecommunications Act 1997
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Part 33—Voluntary undertakings given by Telstra
Division 1—Introduction
577 Simplified outline
The following is a simplified outline of this Part:
• Telstra may give the following undertakings:
(a) an undertaking about structural separation;
(b) an undertaking about hybrid fibre-coaxial
networks;
(c) an undertaking about subscription television
broadcasting licences.
• An undertaking comes into force when it is accepted by the ACCC.
• The Minister may, by legislative instrument, determine that the excluded spectrum regime applies to Telstra. If the
Minister does so, Telstra will not be allowed to supply
services using a designated part of the spectrum unless all 3
undertakings given by Telstra are in force.
• However, the Minister may exempt Telstra from the requirement to have an undertaking about hybrid
fibre-coaxial networks or subscription television
broadcasting licences if the Minister is satisfied that
Telstra’s undertaking about structural separation is sufficient
to address concerns about the degree of Telstra’s power in
telecommunications markets.
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Structural separation Division 2
Section 577A
Telecommunications Act 1997 503
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Division 2—Structural separation
Subdivision A—Undertaking about structural separation
577A Acceptance of undertaking about structural separation
(1) The ACCC may accept a written undertaking given by Telstra that:
(a) at all times after the designated day:
(i) Telstra will not supply fixed-line carriage services to
retail customers in Australia using a
telecommunications network over which Telstra is in a
position to exercise control; and
(ii) Telstra will not be in a position to exercise control of a
company that supplies fixed-line carriage services to
retail customers in Australia using a
telecommunications network over which Telstra is in a
position to exercise control; and
(b) Telstra will, in connection with paragraph (a), take specified
action and/or refrain from taking specified action.
Note 1: For when Telstra is in a position to exercise control of a network, see
section 577Q.
Note 2: For control of a company, see section 577P.
Transparency and equivalence
(2) For the purposes of paragraph (1)(b), a matter relating to
transparency and equivalence in relation to the supply by Telstra of
regulated services to:
(a) Telstra’s wholesale customers; and
(b) Telstra’s retail business units;
during the period:
(c) beginning when the undertaking comes into force; and
(d) ending at the start of the designated day;
is taken to be a matter that is in connection with paragraph (1)(a).
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Division 2 Structural separation
Section 577A
504 Telecommunications Act 1997
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(3) The ACCC must not accept an undertaking under this section
unless the ACCC is satisfied that:
(a) the undertaking provides for transparency and equivalence in
relation to the supply by Telstra of regulated services to:
(i) Telstra’s wholesale customers; and
(ii) Telstra’s retail business units;
during the period:
(iii) beginning when the undertaking comes into force; and
(iv) ending at the start of the designated day; and
(b) the undertaking does so in an appropriate and effective
manner.
(4) In subsections (2) and (3), equivalence, supply, regulated service
and retail business unit have the same meaning as in Part 9 of
Schedule 1.
Monitoring of compliance
(5) The ACCC must not accept an undertaking under this section
unless the ACCC is satisfied that:
(a) the undertaking provides for:
(i) the ACCC to monitor Telstra’s compliance with the
undertaking; and
(ii) Telstra to have systems, procedures and processes that
promote and facilitate the ACCC’s monitoring of
Telstra’s compliance with the undertaking; and
(b) the undertaking does so in an appropriate and effective
manner.
Matters to which ACCC must have regard
(6) In deciding whether to accept an undertaking under this section,
the ACCC must have regard to:
(a) the matters set out in an instrument in force under
subsection (7); and
(aa) the national interest in structural reform of the
telecommunications industry; and
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Structural separation Division 2
Section 577A
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(ab) the impact of that structural reform on:
(i) consumers; and
(ii) competition in telecommunications markets; and
(b) such other matters (if any) as the ACCC considers relevant.
(7) The Minister may, by writing, set out matters for the purposes of
paragraph (6)(a).
(7A) Before making or varying an instrument under subsection (7), the
Minister must:
(a) cause to be published on the Department’s website a notice:
(i) setting out the draft instrument or variation; and
(ii) inviting persons to make submissions to the Minister
about the draft instrument or variation within 14 days
after the notice is published; and
(b) consider any submissions received within the 14-day period
mentioned in paragraph (a).
(8) The Minister must take all reasonable steps to ensure that an
instrument comes into force under subsection (7) as soon as
practicable after the commencement of this section.
(9) Telstra is not entitled to give an undertaking under this section
unless an instrument is in force under subsection (7).
Designated day
(10) For the purposes of this section, the designated day is:
(a) 1 July 2018; or
(b) if the Minister, by written instrument, specifies another
day—that other day.
(11) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a
power conferred on the Minister by paragraph (10)(b), but it
applies with the following changes:
(a) an instrument made under paragraph (10)(b) cannot be
varied;
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(b) an instrument made under paragraph (10)(b) must not be
revoked unless:
(i) a fresh instrument is made under that paragraph; and
(ii) the fresh instrument specifies a day that is later than the
day specified in the revoked instrument.
(12) If:
(a) the ACCC has accepted an undertaking given by Telstra
under subsection (1); and
(b) when the undertaking was accepted, a particular day (the
relevant day) was the designated day;
the Minister must not make an instrument under paragraph (10)(b)
specifying a day earlier than the relevant day.
(13) Telstra may, before the designated day, request the Minister to:
(a) if no instrument is in force under paragraph (10)(b)—make
an instrument under that paragraph specifying a particular
day; or
(b) if an instrument is in force under paragraph (10)(b):
(i) revoke that instrument; and
(ii) make a fresh instrument under that paragraph specifying
a particular day that is later than the day specified in the
revoked instrument.
(14) If Telstra gives the Minister a request under subsection (13), the
Minister must consider the request.
(15) However, the Minister is not required to consider the request if the
Minister is satisfied that the request:
(a) is frivolous or vexatious; or
(b) was not made in good faith.
General provisions
(16) An undertaking under this section must be expressed to be an
undertaking under this section.
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(17) An undertaking under this section may not be withdrawn after it
has been accepted by the ACCC.
(18) If an undertaking under this section provides for the ACCC to
perform functions or exercise powers in relation to the undertaking,
the ACCC may perform those functions, and exercise those
powers, in accordance with the undertaking.
(19) Part 9 of Schedule 1 does not, by implication, limit the matters that
may be included in an undertaking under this section.
Note: Part 9 of Schedule 1 deals with the functional separation of Telstra.
Exemptions
(20) The Minister may, by legislative instrument, exempt a specified
fixed-line carriage service from the scope of subsection (1) and the
associated provisions, either:
(a) unconditionally; or
(b) subject to such conditions or limitations as are specified in
the instrument.
(21) The Minister may, by legislative instrument, exempt a specified
telecommunications network from the scope of subsection (1) and
the associated provisions, either:
(a) unconditionally; or
(b) subject to such conditions or limitations as are specified in
the instrument.
(22) The Minister must cause a copy of an instrument under
subsection (7) or paragraph (10)(b) to be published on the
Department’s website.
(23) An instrument under subsection (7) or paragraph (10)(b) is not a
legislative instrument.
Definitions
(24) In this section:
associated provision means:
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(a) subsection 577BA(11); or
(b) subsection 577BC(2).
fixed-line carriage service means:
(a) a carriage service that is supplied using a line to premises
occupied or used by an end-user; or
(b) a service that facilitates the supply of a carriage service
covered by paragraph (a).
telecommunications market has the same meaning as in Part XIB
of the Competition and Consumer Act 2010.
577AA Acceptance of undertaking about structural separation may
be subject to the occurrence of events
(1) If:
(a) Telstra has, in a document accompanying an undertaking
under section 577A, nominated one or more events; and
(b) the nomination is expressed to be a nomination under this
subsection; and
(c) each of those events is:
(i) the passage of a resolution covered by
subparagraph 411(4)(a)(ii) of the Corporations Act
2001; or
(ii) an approval covered by paragraph 411(4)(b) of that Act;
or
(iii) the passage of a resolution, where Telstra’s members
(within the meaning of that Act) were entitled to vote on
the resolution; or
(iv) an approval covered by Chapter 11 of the ASX Listing
Rules; or
(v) the granting of a waiver under rule 18.1 of the ASX
Listing Rules; or
(vi) the approval of a draft migration plan by the ACCC
under section 577BDA or 577BDC; or
(vii) the making of a declaration under subsection 577J(3); or
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(viii) the making of a declaration under subsection 577J(5); or
(ix) an event specified in an instrument in force under
subsection (3); and
(d) the ACCC decides to accept the undertaking;
the decision to accept the undertaking must be expressed to be
subject to the occurrence of those events within a specified period
after the undertaking is accepted.
(2) A nomination under subsection (1) must not specify an event by
reference to the timing of the event.
(3) The Minister may, by writing, specify events for the purposes of
subparagraph (1)(c)(ix).
(4) A period specified by the ACCC under subsection (1) must be:
(a) 6 months; or
(b) if another period is specified in an instrument under
subsection (5)—that period.
(5) The Minister may, by writing, specify a period for the purposes of
paragraph (4)(b).
Notification requirement
(6) If:
(a) a decision to accept an undertaking under section 577A is
expressed to be subject to the occurrence of one or more
specified events within a specified period; and
(b) such an event occurs within that period;
Telstra must notify the ACCC in writing of the occurrence of the
event as soon as practicable after the occurrence.
(6A) Subsection (6) does not apply to an event mentioned in
subparagraph (1)(c)(vi).
If event does not occur
(7) If:
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(a) a decision to accept an undertaking under section 577A is
expressed to be subject to the occurrence of a single specified
event within a specified period; and
(b) the event does not occur within that period;
this Act (other than subclause 76(4) of Schedule 1) has effect as if
the undertaking had never been accepted by the ACCC.
(8) If:
(a) a decision to accept an undertaking under section 577A is
expressed to be subject to the occurrence of 2 or more
specified events within a specified period; and
(b) one or more of those events do not occur within that period;
this Act (other than subclause 76(4) of Schedule 1) has effect as if
the undertaking had never been accepted by the ACCC.
Publication requirement
(9) The Minister must cause a copy of an instrument under
subsection (3) or (5) to be published on the Department’s website.
Instruments are not legislative instruments
(10) An instrument under subsection (3) or (5) is not a legislative
instrument.
577AB When undertaking about structural separation comes into
force
An undertaking under section 577A comes into force:
(a) if:
(i) the decision to accept the undertaking is expressed to be
subject to the occurrence of a single specified event
within a specified period; and
(ii) the event occurs within that period;
when the event occurs; or
(b) if:
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(i) the decision to accept the undertaking is expressed to be
subject to the occurrence of 2 or more specified events
within a specified period; and
(ii) each of those events occur at the same time; and
(iii) that time occurs within that period;
at that time; or
(c) if:
(i) the decision to accept the undertaking is expressed to be
subject to the occurrence of 2 or more specified events
within a specified period; and
(ii) each of those events occur at different times; and
(iii) each of those times occur within that period;
at the last of those times; or
(d) if the decision to accept the undertaking is not expressed to
be subject to the occurrence of one or more specified events
within a specified period—when the undertaking is accepted
by the ACCC.
577AC Publication requirements for undertaking about structural
separation
(1) If a decision to accept an undertaking under section 577A is
expressed to be subject to the occurrence of one or more specified
events within a specified period, the ACCC must:
(a) as soon as practicable after making the decision, publish on
its website:
(i) the undertaking; and
(ii) the terms of the decision; and
(b) as soon as practicable after the ACCC becomes aware that
the undertaking has come into force, publish on its website a
notice announcing that the undertaking has come into force.
(2) If a decision to accept an undertaking under section 577A is not
expressed to be subject to the occurrence of one or more specified
events within a specified period, the ACCC must, as soon as
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practicable after accepting the undertaking, publish the undertaking
on its website.
577AD Compliance with undertaking about structural separation
If an undertaking given by Telstra is in force under section 577A,
Telstra must comply with the undertaking.
577B Variation of undertaking about structural separation
(1) This section applies if an undertaking given by Telstra is in force
under section 577A.
(2) Telstra may give the ACCC a variation of the undertaking, in so far
as the undertaking:
(a) is covered by paragraph 577A(1)(b); and
(b) does not consist of provisions of a final migration plan.
Note: For variation of a final migration plan, see section 577BF.
(3) After considering the variation, the ACCC must decide to:
(a) accept the variation; or
(b) reject the variation.
(4) In deciding whether to accept the variation, the ACCC must have
regard to:
(a) the matters (if any) set out in an instrument in force under
subsection (5); and
(b) such other matters (if any) as the ACCC considers relevant.
(5) The Minister may, by writing, set out matters for the purposes of
paragraph (4)(a).
(5A) Before making or varying an instrument under subsection (5), the
Minister must:
(a) cause to be published on the Department’s website a notice:
(i) setting out the draft instrument or variation; and
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(ii) inviting persons to make submissions to the Minister
about the draft instrument or variation within 14 days
after the notice is published; and
(b) consider any submissions received within the 14-day period
mentioned in paragraph (a).
(6) The variation takes effect when it is accepted by the ACCC.
(7) As soon as practicable after the variation takes effect, the ACCC
must publish the variation on its website.
(8) The Minister must cause a copy of an instrument under
subsection (5) to be published on the Department’s website.
(9) An instrument under subsection (5) is not a legislative instrument.
577BA Authorised conduct—subsection 51(1) of the Competition and
Consumer Act 2010
Object
(1) The object of this section is to promote the national interest in
structural reform of the telecommunications industry by
authorising, for the purposes of subsection 51(1) of the
Competition and Consumer Act 2010, certain conduct engaged in
by:
(a) Telstra; and
(b) NBN corporations; and
(c) certain other persons.
Note: If conduct is authorised for the purposes of subsection 51(1) of the
Competition and Consumer Act 2010, the conduct is disregarded in
deciding whether a person has contravened Part IV of that Act.
Authorised conduct
(2) The giving by Telstra of:
(a) an undertaking under section 577A; or
(b) a variation of an undertaking in force under section 577A; or
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(c) a draft migration plan in accordance with an undertaking in
force under section 577A; or
(d) a variation of a final migration plan;
is authorised for the purposes of subsection 51(1) of the
Competition and Consumer Act 2010.
(3) If:
(a) Telstra enters into a contract, arrangement or understanding
with an NBN corporation; and
(b) when the contract, arrangement or understanding is entered
into, no undertaking is in force under section 577A; and
(c) the operative provisions of the contract, arrangement or
understanding are subject to a condition precedent, namely,
the coming into force of an undertaking under section 577A;
then:
(d) the entering into of the contract, arrangement or
understanding by Telstra is authorised for the purposes of
subsection 51(1) of the Competition and Consumer Act 2010;
and
(e) the entering into of the contract, arrangement or
understanding by the NBN corporation is authorised for the
purposes of subsection 51(1) of the Competition and
Consumer Act 2010; and
(f) if:
(i) the undertaking under section 577A comes into force;
and
(ii) if the contract, arrangement or understanding was in
writing—before the undertaking was accepted by the
ACCC, Telstra or the NBN corporation gave the ACCC
a copy of the contract, arrangement or understanding;
and
(iii) if the contract, arrangement or understanding was not in
writing—before the undertaking was accepted by the
ACCC, the contract, arrangement or understanding was
reduced to writing and Telstra or the NBN corporation
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gave the ACCC a copy of the contract, arrangement or
understanding;
then:
(iv) conduct engaged in by Telstra or the NBN corporation
after the undertaking comes into force 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; and
(v) conduct engaged in by another NBN corporation after
the undertaking comes into force in order to facilitate
the first-mentioned NBN corporation giving 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.
(4) If:
(a) Telstra enters into a contract, arrangement or understanding
with an NBN corporation; and
(b) the contract, arrangement or understanding contains a
migration provision; and
(c) when the contract, arrangement or understanding is entered
into, no undertaking is in force under section 577A;
then:
(d) the entering into of the contract, arrangement or
understanding by Telstra is authorised for the purposes of
subsection 51(1) of the Competition and Consumer Act 2010,
to the extent to which the contract, arrangement or
understanding contains the migration provision; and
(e) the entering into of the contract, arrangement or
understanding by the NBN corporation is authorised for the
purposes of subsection 51(1) of the Competition and
Consumer Act 2010, to the extent to which the contract,
arrangement or understanding contains the migration
provision.
(5) If:
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(a) Telstra enters into a contract, arrangement or understanding
with an NBN corporation; and
(b) the contract, arrangement or understanding contains a
migration provision; and
(c) Telstra or the NBN corporation engages in conduct in order
to give effect to the migration provision; and
(d) when the conduct is engaged in, no undertaking is in force
under section 577A;
the conduct is authorised for the purposes of subsection 51(1) of
the Competition and Consumer Act 2010 unless, before the conduct
was engaged in:
(e) the ACCC refused to accept the most recent undertaking
given by Telstra under section 577A; or
(f) as a result of subsection 577AA(7) or (8), this Act (other than
subclause 76(4) of Schedule 1) had effect as if the most
recent undertaking given by Telstra under section 577A had
never been accepted by the ACCC; or
(g) a final functional separation undertaking came into force.
(6) If Telstra is required to engage in conduct in order to comply with
an undertaking in force under section 577A, the conduct is
authorised for the purposes of subsection 51(1) of the Competition
and Consumer Act 2010.
(7) If:
(a) a person directly or indirectly acquires an asset from Telstra;
and
(b) the disposal of the asset by Telstra is required for the
compliance by Telstra with an undertaking in force under
section 577A; and
(c) the person is identified in the undertaking as the person by
whom the asset is to be directly or indirectly acquired;
the acquisition of the asset is authorised for the purposes of
subsection 51(1) of the Competition and Consumer Act 2010.
(8) If:
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(a) Telstra enters into a contract, arrangement or understanding
with an NBN corporation; and
(b) Telstra enters into the contract, arrangement or understanding
in order to comply with an undertaking in force under
section 577A;
then:
(c) the entering into of the contract, arrangement or
understanding by Telstra; and
(d) the entering into of the contract, arrangement or
understanding by the NBN corporation; and
(e) conduct engaged in by Telstra or the NBN corporation in
order to give effect to a provision of the contract,
arrangement or understanding; and
(f) conduct engaged in by another NBN corporation in order to
facilitate the first-mentioned NBN corporation giving 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.
(9) If:
(a) an undertaking given by Telstra is in force under
section 577A; and
(b) Telstra enters into a contract, arrangement or understanding
with an NBN corporation;
the Minister may, by legislative instrument, determine that
subsection (8) applies, and is taken to have always applied, as if
Telstra had entered into the contract, arrangement or understanding
in order to comply with the undertaking.
(10) If:
(a) a final migration plan is in force; and
(b) the final migration plan sets out a method for determining a
timetable for the taking of the action specified in the plan in
accordance with paragraph 577BC(2)(a); and
(c) Telstra or an NBN corporation engages in conduct for the
purposes of determining the timetable; and
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(d) the conduct is consistent with the method;
the conduct is authorised for the purposes of subsection 51(1) of
the Competition and Consumer Act 2010.
Migration provisions
(11) If:
(a) Telstra enters into a contract, arrangement or understanding
with an NBN corporation; and
(b) the contract, arrangement or understanding contains one or
more provisions for:
(i) Telstra to cease to supply fixed-line carriage services to
customers using a telecommunications network over
which Telstra is in a position to exercise control; or
(ii) Telstra to cease to supply one or more types of
fixed-line carriage services to customers using a
telecommunications network over which Telstra is in a
position to exercise control; or
(iii) Telstra to cease to supply, in particular circumstances,
one or more types of fixed-line carriage services to
customers using a telecommunications network over
which Telstra is in a position to exercise control; or
(iv) Telstra to commence to supply fixed-line carriage
services to customers using the national broadband
network;
then:
(c) each of the provisions mentioned in paragraph (b) is a
migration provision; and
(d) if the contract, arrangement or understanding contains one or
more provisions for Telstra to supply services to an NBN
corporation in connection with any or all of the matters
mentioned in paragraph (b)—each of those provisions is a
migration provision; and
(e) if the contract, arrangement or understanding contains one or
more provisions for an NBN corporation to supply services
to Telstra in connection with any or all of the matters
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mentioned in paragraph (b)—each of those provisions is a
migration provision; and
(f) if the contract, arrangement or understanding contains one or
more provisions for Telstra to give information to an NBN
corporation in connection with any or all of the matters
mentioned in paragraph (b)—each of those provisions is a
migration provision; and
(g) if the contract, arrangement or understanding contains one or
more provisions for an NBN corporation to give information
to Telstra in connection with any or all of the matters
mentioned in paragraph (b)—each of those provisions is a
migration provision.
Definitions
(12) In this section:
asset means:
(a) any legal or equitable estate or interest in real or personal
property, including a contingent or prospective one; and
(b) any right, privilege or immunity, including a contingent or
prospective one.
enter into:
(a) when used in relation to an arrangement—includes make; or
(b) when used in relation to an understanding—includes arrive at
or reach.
fixed-line carriage service means:
(a) a carriage service that is supplied using a line to premises
occupied or used by an end-user; or
(b) a service that facilitates the supply of a carriage service
covered by paragraph (a).
give effect to, in relation to a provision of a contract, arrangement
or understanding, has the same meaning as in the Competition and
Consumer Act 2010.
migration provision has the meaning given by subsection (11).
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national broadband network means a telecommunications network
for the high-speed carriage of communications, where an NBN
corporation has been, is, or is to be, involved in the creation or
development of the network. To avoid doubt, it is immaterial
whether the creation or development of the network is, to any
extent, attributable to:
(a) the acquisition of assets that were used, or for use, in
connection with another telecommunications network; or
(b) the obtaining of access to assets that are also used, or for use,
in connection with another telecommunications network.
NBN Co means NBN Co Limited (ACN 136 533 741), as the
company exists from time to time (even if its name is later
changed).
NBN corporation means:
(a) NBN Co; or
(b) NBN Tasmania; or
(c) a company that is a related body corporate of NBN Co.
NBN Tasmania means NBN Tasmania Limited (ACN
138 338 271), as the company exists from time to time (even if its
name is later changed).
related body corporate has the same meaning as in the
Corporations Act 2001.
Subdivision B—Migration plan
577BB Migration plan principles
(1) The Minister may, by writing, determine that specified principles
are migration plan principles for the purposes of this Act.
Note: For variation and revocation, see subsection 33(3) of the Acts
Interpretation Act 1901.
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Consultation
(2) Before making or varying a determination under subsection (1), the
Minister must:
(a) cause to be published on the Department’s website a notice:
(i) setting out the draft determination or variation; and
(ii) inviting persons to make submissions to the Minister
about the draft determination or variation within 14 days
after the notice is published; and
(b) consider any submissions received within the 14-day period
mentioned in paragraph (a).
Publication requirement
(3) The Minister must cause a copy of a determination under
subsection (1) to be published on the Department’s website.
Determination is not a legislative instrument
(4) A determination under subsection (1) is not a legislative
instrument.
577BC Migration plan
(1) The specified action first mentioned in paragraph 577A(1)(b) may
include giving the ACCC a draft migration plan after the relevant
undertaking has come into force.
(2) A draft or final migration plan must:
(a) specify the action to be taken by Telstra to:
(i) cease to supply fixed-line carriage services to customers
using a telecommunications network over which Telstra
is in a position to exercise control; and
(ii) commence to supply fixed-line carriage services to
customers using the national broadband network; and
(b) either:
(i) set out a timetable for the taking of that action; or
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(ii) set out a method for determining a timetable for the
taking of that action.
(3) A draft or final migration plan may contain provisions dealing with
such other matters (if any) as are specified in a written instrument
made by the Minister.
(4) A draft or final migration plan must not contain provisions dealing
with such matters (if any) as are specified in a written instrument
made by the Minister.
Migration plan principles
(5) A draft migration plan must not be given to the ACCC unless a
determination is in force under subsection 577BB(1).
Publication requirement
(6) The Minister must cause a copy of an instrument under
subsection (3) or (4) to be published on the Department’s website.
Instrument is not a legislative instrument
(7) An instrument under subsection (3) or (4) is not a legislative
instrument.
Definitions
(8) In this section:
fixed-line carriage service means:
(a) a carriage service that is supplied using a line to premises
occupied or used by an end-user; or
(b) a service that facilitates the supply of a carriage service
covered by paragraph (a).
national broadband network means a telecommunications network
for the high-speed carriage of communications, where an NBN
corporation has been, is, or is to be, involved in the creation or
development of the network. To avoid doubt, it is immaterial
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whether the creation or development of the network is, to any
extent, attributable to:
(a) the acquisition of assets that were used, or for use, in
connection with another telecommunications network; or
(b) the obtaining of access to assets that are also used, or for use,
in connection with another telecommunications network.
NBN Co means NBN Co Limited (ACN 136 533 741), as the
company exists from time to time (even if its name is later
changed).
NBN corporation means:
(a) NBN Co; or
(b) NBN Tasmania; or
(c) a company that is a related body corporate of NBN Co.
NBN Tasmania means NBN Tasmania Limited (ACN
138 338 271), as the company exists from time to time (even if its
name is later changed).
related body corporate has the same meaning as in the
Corporations Act 2001.
577BD Approval of draft migration plan by the ACCC—plan given
after undertaking about structural separation comes into
force
Scope
(1) This section applies if Telstra gives the ACCC a draft migration
plan (the original plan) in accordance with an undertaking in force
under section 577A.
Decision
(2) The ACCC must:
(a) if the ACCC is satisfied that the original plan complies with
the migration plan principles—approve the original plan; or
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(b) otherwise:
(i) refuse to approve the original plan; and
(ii) by written notice given to Telstra, direct Telstra to give
the ACCC, within 30 days after the notice is given, a
replacement draft migration plan that complies with the
migration plan principles.
Note: For migration plan principles, see section 577BB.
Consultation
(3) Before making a decision under subsection (2), the ACCC must:
(a) cause to be published on the ACCC’s website a notice:
(i) setting out the original plan; and
(ii) inviting persons to make submissions to the ACCC
about the original plan within 28 days after the notice is
published; and
(b) cause to be published on the ACCC’s website a copy of each
submission received within the 28-day period mentioned in
paragraph (a); and
(c) consider any submissions received within the 28-day period
mentioned in paragraph (a).
Compliance with direction
(4) Telstra must comply with a direction under subparagraph (2)(b)(ii).
Note: The ACCC will make a decision about the plan under
section 577BDB.
Replacement plan to be treated as if it had been given in
accordance with the undertaking
(5) A draft migration plan given by Telstra in compliance with a
direction under subparagraph (2)(b)(ii) is taken, for the purposes of
this Act (other than this section and section 577BDB), to be given
in accordance with the undertaking.
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Section 577BDA
Telecommunications Act 1997 525
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Notification of decision
(6) As soon as practicable after making a decision under
subsection (2), the ACCC must notify Telstra in writing of the
decision.
577BDA Approval of draft migration plan by the ACCC—plan
given before undertaking about structural separation
comes into force
(1) If:
(a) Telstra gives the ACCC an undertaking under section 577A;
and
(b) the specified action first mentioned in paragraph 577A(1)(b)
consists of, or includes, giving the ACCC a draft migration
plan after the undertaking has come into force; and
(c) the following conditions are satisfied:
(i) Telstra has, in a document accompanying the
undertaking, nominated the event mentioned in
subparagraph 577AA(1)(c)(vi);
(ii) the nomination meets the requirements of
paragraph 577AA(1)(b) and subsection 577AA(2);
Telstra may give the ACCC a draft migration plan (the original
plan) during the period:
(d) beginning when Telstra gives the ACCC the undertaking; and
(e) ending when the undertaking comes into force;
as if the undertaking had come into force.
Decision
(2) The ACCC must:
(a) if the ACCC is satisfied that the original plan complies with
the migration plan principles—approve the original plan; or
(b) otherwise:
(i) refuse to approve the original plan; and
(ii) by written notice given to Telstra, request Telstra to
give the ACCC, within 30 days after the notice is given,
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a replacement draft migration plan that complies with
the migration plan principles.
Note 1: For migration plan principles, see section 577BB.
Note 2: If Telstra gives the ACCC a replacement draft migration plan in
response to the request, the ACCC will make a decision about the plan
under section 577BDC.
(3) The ACCC must not make a decision under subsection (2) before it
accepts the undertaking.
(4) After the undertaking comes into force, this Act (other than
section 577BD and this section) has effect as if the original plan
had been given to the ACCC in accordance with the undertaking.
Consultation
(5) Before making a decision under subsection (2), the ACCC must:
(a) cause to be published on the ACCC’s website a notice:
(i) setting out the original plan; and
(ii) inviting persons to make submissions to the ACCC
about the original plan within 28 days after the notice is
published; and
(b) cause to be published on the ACCC’s website a copy of each
submission received within the 28-day period mentioned in
paragraph (a); and
(c) consider any submissions received within the 28-day period
mentioned in paragraph (a).
Replacement plan to be treated as if it had been given in
accordance with the undertaking
(6) A draft migration plan given by Telstra in response to a request
under subparagraph (2)(b)(ii) is taken, for the purposes of this Act
(other than sections 577BD, 577BDB and 577BDC and this
section), to be given in accordance with the undertaking.
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Section 577BDB
Telecommunications Act 1997 527
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Notification of decision
(7) As soon as practicable after making a decision under
subsection (2), the ACCC must notify Telstra in writing of the
decision.
577BDB Approval of draft migration plan by the ACCC—plan
given in compliance with a direction
Scope
(1) This section applies if:
(a) Telstra has given the ACCC an undertaking under
section 577A; and
(b) Telstra gives the ACCC a draft migration plan (the original
plan) in compliance with a direction under:
(i) subparagraph 577BD(2)(b)(ii); or
(ii) subparagraph (2)(b)(ii) of this section.
Decision
(2) The ACCC must:
(a) if the ACCC is satisfied that the original plan complies with
the migration plan principles—approve the original plan; or
(b) otherwise:
(i) refuse to approve the original plan; and
(ii) by written notice given to Telstra, direct Telstra to give
the ACCC, within 30 days after the notice is given, a
replacement draft migration plan that complies with the
migration plan principles.
Note: For migration plan principles, see section 577BB.
Consultation
(3) Before making a decision under subsection (2), the ACCC must:
(a) cause to be published on the ACCC’s website a notice:
(i) setting out the original plan; and
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(ii) inviting persons to make submissions to the ACCC
about the original plan within 28 days after the notice is
published; and
(b) cause to be published on the ACCC’s website a copy of each
submission received within the 28-day period mentioned in
paragraph (a); and
(c) consider any submissions received within the 28-day period
mentioned in paragraph (a).
Compliance with direction
(4) Telstra must comply with a direction under subparagraph (2)(b)(ii).
Note: The ACCC will make a decision about the plan under subsection (2).
Replacement plan to be treated as if it had been given in
accordance with the undertaking
(5) A draft migration plan given by Telstra in compliance with a
direction under subparagraph (2)(b)(ii) is taken, for the purposes of
this Act (other than sections 577BD, 577BDA and 577BDC and
this section), to be given in accordance with the undertaking.
Notification of decision
(6) As soon as practicable after making a decision under
subsection (2), the ACCC must notify Telstra in writing of the
decision.
577BDC Approval of draft migration plan by the ACCC—plan
given in response to a request
Scope
(1) This section applies if:
(a) Telstra gives the ACCC an undertaking under section 577A;
and
(b) Telstra gives the ACCC a draft migration plan (the original
plan) in response to a request under:
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(i) subparagraph 577BDA(2)(b)(ii); or
(ii) subparagraph (2)(b)(ii) of this section.
Decision
(2) The ACCC must:
(a) if the ACCC is satisfied that the original plan complies with
the migration plan principles—approve the original plan; or
(b) otherwise:
(i) refuse to approve the original plan; and
(ii) by written notice given to Telstra, request Telstra to
give the ACCC, within 30 days after the notice is given,
a replacement draft migration plan that complies with
the migration plan principles.
Note 1: For migration plan principles, see section 577BB.
Note 2: If Telstra gives the ACCC a replacement draft migration plan in
response to the request, the ACCC will make a decision about the plan
under this section.
Consultation
(3) Before making a decision under subsection (2), the ACCC must:
(a) cause to be published on the ACCC’s website a notice:
(i) setting out the original plan; and
(ii) inviting persons to make submissions to the ACCC
about the original plan within 28 days after the notice is
published; and
(b) cause to be published on the ACCC’s website a copy of each
submission received within the 28-day period mentioned in
paragraph (a); and
(c) consider any submissions received within the 28-day period
mentioned in paragraph (a).
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Section 577BE
530 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Plan to be treated as if it had been given in accordance with the
undertaking
(4) A draft migration plan given by Telstra in response to a request
under subparagraph (2)(b)(ii) is taken, for the purposes of this Act
(other than sections 577BD, 577BDA and 577BDB and this
section), to be given in accordance with the undertaking.
Notification of decision
(5) As soon as practicable after making a decision under
subsection (2), the ACCC must notify Telstra in writing of the
decision.
577BE Effect of approval of draft migration plan
(1) If the ACCC approves a draft migration plan, the plan becomes a
final migration plan.
(2) If the ACCC approves a draft migration plan under
subsection 577BD(2), the plan comes into force at the start of the
day after notice of the decision to approve the plan is given to
Telstra in accordance with subsection 577BD(6).
(3) If the ACCC approves a draft migration plan under
subsection 577BDA(2), 577BDB(2) or 577BDC(2), the plan comes
into force at the later of:
(a) the start of the day after notice of the decision to approve the
plan is given to Telstra in accordance with
subsection 577BDA(7), 577BDB(6) or 577BDC(5), as the
case requires; or
(b) when the relevant undertaking under section 577A comes
into force.
(4) A final migration plan may not be withdrawn.
(5) When a final migration plan comes into force, the relevant
undertaking under section 577A has effect as if the provisions of
the plan were provisions of the undertaking.
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Section 577BF
Telecommunications Act 1997 531
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Publication requirement
(6) As soon as practicable after a final migration plan comes into
force, the ACCC must publish a copy of the plan on the ACCC’s
website.
ACCC’s functions and powers
(7) If a final migration plan provides for the ACCC to perform
functions or exercise powers in relation to the plan, the ACCC may
perform those functions, and exercise those powers, in accordance
with the plan.
Plan is not a legislative instrument
(8) A final migration plan is not a legislative instrument.
577BF Variation of final migration plan
(1) This section applies if a final migration plan is in force.
(2) Telstra may give the ACCC a variation of the final migration plan.
(3) The ACCC must:
(a) if the ACCC is satisfied that the final migration plan as
varied complies with the migration plan principles—approve
the variation; or
(b) otherwise—refuse to approve the variation.
Consultation
(4) Before making a decision under subsection (3), the ACCC must:
(a) cause to be published on the ACCC’s website a notice:
(i) setting out the variation; and
(ii) inviting persons to make submissions to the ACCC
about the variation within 28 days after the notice is
published; and
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Section 577BF
532 Telecommunications Act 1997
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(b) cause to be published on the ACCC’s website a copy of each
submission received within the 28-day period mentioned in
paragraph (a); and
(c) consider any submissions received within the 28-day period
mentioned in paragraph (a).
(5) Subsection (4) does not apply to a variation if the variation is of a
minor nature.
When variation takes effect
(6) The variation takes effect when it is approved by the ACCC.
(7) When the variation takes effect, the relevant undertaking under
section 577A has effect as if the provisions of the final migration
plan as varied were provisions of the undertaking.
(8) As soon as practicable after the variation takes effect, the ACCC
must publish a copy of the variation on the ACCC’s website.
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Hybrid fibre-coaxial networks Division 3
Section 577C
Telecommunications Act 1997 533
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Division 3—Hybrid fibre-coaxial networks
577C Acceptance of undertaking about hybrid fibre-coaxial
networks
(1) The ACCC may accept a written undertaking given by Telstra that:
(a) at all times after the end of the period specified in the
undertaking, Telstra will not be in a position to exercise
control of a hybrid fibre-coaxial network in Australia; and
(b) Telstra will, in connection with paragraph (a), take specified
action and/or refrain from taking specified action.
Note: For when Telstra is in a position to exercise control of a network, see
section 577Q.
(1A) In deciding whether to accept an undertaking under subsection (1),
the ACCC must have regard to:
(a) the matters (if any) set out in an instrument in force under
subsection (1B); and
(b) such other matters (if any) as the ACCC considers relevant.
(1B) The Minister may, by writing, set out matters for the purposes of
paragraph (1A)(a).
(1C) Before making or varying an instrument under subsection (1B), the
Minister must:
(a) cause to be published on the Department’s website a notice:
(i) setting out the draft instrument or variation; and
(ii) inviting persons to make submissions to the Minister
about the draft instrument or variation within 14 days
after the notice is published; and
(b) consider any submissions received within the 14-day period
mentioned in paragraph (a).
(2) The period specified in the undertaking as mentioned in
paragraph (1)(a) must not be longer than 12 months.
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Section 577CA
534 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(3) The undertaking must be expressed to be an undertaking under this
section.
(4) The undertaking may not be withdrawn after it has been accepted
by the ACCC.
(5) If the undertaking provides for the ACCC to perform functions or
exercise powers in relation to the undertaking, the ACCC may
perform those functions, and exercise those powers, in accordance
with the undertaking.
(6) The Minister must cause a copy of an instrument under
subsection (1B) to be published on the Department’s website.
(7) An instrument under subsection (1B) is not a legislative
instrument.
577CA Acceptance of undertaking about hybrid fibre-coaxial
networks may be subject to the occurrence of events
(1) If:
(a) Telstra has, in a document accompanying an undertaking
under section 577C, nominated one or more events; and
(b) the nomination is expressed to be a nomination under this
subsection; and
(c) each of those events is:
(i) the passage of a resolution covered by
subparagraph 411(4)(a)(ii) of the Corporations Act
2001; or
(ii) an approval covered by paragraph 411(4)(b) of that Act;
or
(iii) the passage of a resolution, where Telstra’s members
(within the meaning of that Act) were entitled to vote on
the resolution; or
(iv) an approval covered by Chapter 11 of the ASX Listing
Rules; or
(v) the granting of a waiver under rule 18.1 of the ASX
Listing Rules; or
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Section 577CA
Telecommunications Act 1997 535
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(vi) the making of a declaration under subsection 577J(5); or
(vii) an event specified in an instrument in force under
subsection (3); and
(d) the ACCC decides to accept the undertaking;
the decision to accept the undertaking must be expressed to be
subject to the occurrence of those events within a specified period
after the undertaking is accepted.
(2) A nomination under subsection (1) must not specify an event by
reference to the timing of the event.
(3) The Minister may, by writing, specify events for the purposes of
subparagraph (1)(c)(vii).
(4) A period specified by the ACCC under subsection (1) must be:
(a) 6 months; or
(b) if another period is specified in an instrument under
subsection (5)—that period.
(5) The Minister may, by writing, specify a period for the purposes of
paragraph (4)(b).
Notification requirement
(6) If:
(a) a decision to accept an undertaking under section 577C is
expressed to be subject to the occurrence of one or more
specified events within a specified period; and
(b) such an event occurs within that period;
Telstra must notify the ACCC in writing of the occurrence of the
event as soon as practicable after the occurrence.
If event does not occur
(7) If:
(a) a decision to accept an undertaking under section 577C is
expressed to be subject to the occurrence of a single specified
event within a specified period; and
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Section 577CB
536 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(b) the event does not occur within that period;
this Act has effect as if the undertaking had never been accepted by
the ACCC.
(8) If:
(a) a decision to accept an undertaking under section 577C is
expressed to be subject to the occurrence of 2 or more
specified events within a specified period; and
(b) one or more of those events do not occur within that period;
this Act has effect as if the undertaking had never been accepted by
the ACCC.
Publication requirement
(9) The Minister must cause a copy of an instrument under
subsection (3) or (5) to be published on the Department’s website.
Instruments are not legislative instruments
(10) An instrument under subsection (3) or (5) is not a legislative
instrument.
577CB When undertaking about hybrid fibre-coaxial networks
comes into force
An undertaking under section 577C comes into force:
(a) if:
(i) the decision to accept the undertaking is expressed to be
subject to the occurrence of a single specified event
within a specified period; and
(ii) the event occurs within that period;
when the event occurs; or
(b) if:
(i) the decision to accept the undertaking is expressed to be
subject to the occurrence of 2 or more specified events
within a specified period; and
(ii) each of those events occur at the same time; and
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Section 577CC
Telecommunications Act 1997 537
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(iii) that time occurs within that period;
at that time; or
(c) if:
(i) the decision to accept the undertaking is expressed to be
subject to the occurrence of 2 or more specified events
within a specified period; and
(ii) each of those events occur at different times; and
(iii) each of those times occur within that period;
at the last of those times; or
(d) if the decision to accept the undertaking is not expressed to
be subject to the occurrence of one or more specified events
within a specified period—when the undertaking is accepted
by the ACCC.
577CC Publication requirements for undertaking about hybrid
fibre-coaxial networks
(1) If a decision to accept an undertaking under section 577C is
expressed to be subject to the occurrence of one or more specified
events within a specified period, the ACCC must:
(a) as soon as practicable after making the decision, publish on
its website:
(i) the undertaking; and
(ii) the terms of the decision; and
(b) as soon as practicable after the ACCC becomes aware that
the undertaking has come into force, publish on its website a
notice announcing that the undertaking has come into force.
(2) If a decision to accept an undertaking under section 577C is not
expressed to be subject to the occurrence of one or more specified
events within a specified period, the ACCC must, as soon as
practicable after accepting the undertaking, publish the undertaking
on its website.
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Division 3 Hybrid fibre-coaxial networks
Section 577CD
538 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
577CD Compliance with undertaking about hybrid fibre-coaxial
networks
If an undertaking given by Telstra is in force under section 577C,
Telstra must comply with the undertaking.
577D Variation of undertaking about hybrid fibre-coaxial networks
(1) This section applies if an undertaking given by Telstra is in force
under section 577C.
(2) Telstra may give the ACCC a variation of the undertaking in so far
as the undertaking is covered by paragraph 577C(1)(b).
(3) After considering the variation, the ACCC must decide to:
(a) accept the variation; or
(b) reject the variation.
(3A) In deciding whether to accept the variation, the ACCC must have
regard to:
(a) the matters (if any) set out in an instrument in force under
subsection (3B); and
(b) such other matters (if any) as the ACCC considers relevant.
(3B) The Minister may, by writing, set out matters for the purposes of
paragraph (3A)(a).
(3C) Before making or varying an instrument under subsection (3B), the
Minister must:
(a) cause to be published on the Department’s website a notice:
(i) setting out the draft instrument or variation; and
(ii) inviting persons to make submissions to the Minister
about the draft instrument or variation within 14 days
after the notice is published; and
(b) consider any submissions received within the 14-day period
mentioned in paragraph (a).
(4) The variation takes effect when it is accepted by the ACCC.
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Section 577D
Telecommunications Act 1997 539
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(5) As soon as practicable after the variation takes effect, the ACCC
must publish the variation on its website.
(6) The Minister must cause a copy of an instrument under
subsection (3B) to be published on the Department’s website.
(7) An instrument under subsection (3B) is not a legislative
instrument.
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Part 33 Voluntary undertakings given by Telstra
Division 4 Subscription television broadcasting licences
Section 577E
540 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Division 4—Subscription television broadcasting licences
577E Acceptance of undertaking about subscription television
broadcasting licences
(1) The ACCC may accept a written undertaking given by Telstra that:
(a) at all times after the end of the period specified in the
undertaking, Telstra will not be in a position to exercise
control of a subscription television broadcasting licence; and
(b) Telstra will, in connection with paragraph (a), take specified
action and/or refrain from taking specified action.
Note: For when Telstra is in a position to exercise control of a subscription
television broadcasting licence, see subsection (7).
(1A) In deciding whether to accept an undertaking under subsection (1),
the ACCC must have regard to:
(a) the matters (if any) set out in an instrument in force under
subsection (1B); and
(b) such other matters (if any) as the ACCC considers relevant.
(1B) The Minister may, by writing, set out matters for the purposes of
paragraph (1A)(a).
(1C) Before making or varying an instrument under subsection (1B), the
Minister must:
(a) cause to be published on the Department’s website a notice:
(i) setting out the draft instrument or variation; and
(ii) inviting persons to make submissions to the Minister
about the draft instrument or variation within 14 days
after the notice is published; and
(b) consider any submissions received within the 14-day period
mentioned in paragraph (a).
(2) The period specified in the undertaking as mentioned in
paragraph (1)(a) must not be longer than 12 months.
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Section 577EA
Telecommunications Act 1997 541
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(3) The undertaking must be expressed to be an undertaking under this
section.
(4) The undertaking may not be withdrawn after it has been accepted
by the ACCC.
(5) If the undertaking provides for the ACCC to perform functions or
exercise powers in relation to the undertaking, the ACCC may
perform those functions, and exercise those powers, in accordance
with the undertaking.
(6) For the purposes of this section, the question of whether Telstra is
in a position to exercise control of a subscription television
broadcasting licence is to be determined under Schedule 1 to the
Broadcasting Services Act 1992.
(7) The Minister must cause a copy of an instrument under
subsection (1B) to be published on the Department’s website.
(8) An instrument under subsection (1B) is not a legislative
instrument.
577EA Acceptance of undertaking about subscription television
broadcasting licences may be subject to the occurrence of
events
(1) If:
(a) Telstra has, in a document accompanying an undertaking
under section 577E, nominated one or more events; and
(b) the nomination is expressed to be a nomination under this
subsection; and
(c) each of those events is:
(i) the passage of a resolution covered by
subparagraph 411(4)(a)(ii) of the Corporations Act
2001; or
(ii) an approval covered by paragraph 411(4)(b) of that Act;
or
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Section 577EA
542 Telecommunications Act 1997
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(iii) the passage of a resolution, where Telstra’s members
(within the meaning of that Act) were entitled to vote on
the resolution; or
(iv) an approval covered by Chapter 11 of the ASX Listing
Rules; or
(v) the granting of a waiver under rule 18.1 of the ASX
Listing Rules; or
(vi) the making of a declaration under subsection 577J(3); or
(vii) an event specified in an instrument in force under
subsection (3); and
(d) the ACCC decides to accept the undertaking;
the decision to accept the undertaking must be expressed to be
subject to the occurrence of those events within a specified period
after the undertaking is accepted.
(2) A nomination under subsection (1) must not specify an event by
reference to the timing of the event.
(3) The Minister may, by writing, specify events for the purposes of
subparagraph (1)(c)(vii).
(4) A period specified by the ACCC under subsection (1) must be:
(a) 6 months; or
(b) if another period is specified in an instrument under
subsection (5)—that period.
(5) The Minister may, by writing, specify a period for the purposes of
paragraph (4)(b).
Notification requirement
(6) If:
(a) a decision to accept an undertaking under section 577E is
expressed to be subject to the occurrence of one or more
specified events within a specified period; and
(b) such an event occurs within that period;
Telstra must notify the ACCC in writing of the occurrence of the
event as soon as practicable after the occurrence.
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Section 577EB
Telecommunications Act 1997 543
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If event does not occur
(7) If:
(a) a decision to accept an undertaking under section 577E is
expressed to be subject to the occurrence of a single specified
event within a specified period; and
(b) the event does not occur within that period;
this Act has effect as if the undertaking had never been accepted by
the ACCC.
(8) If:
(a) a decision to accept an undertaking under section 577E is
expressed to be subject to the occurrence of 2 or more
specified events within a specified period; and
(b) one or more of those events do not occur within that period;
this Act has effect as if the undertaking had never been accepted by
the ACCC.
Publication requirement
(9) The Minister must cause a copy of an instrument under
subsection (3) or (5) to be published on the Department’s website.
Instruments are not legislative instruments
(10) An instrument under subsection (3) or (5) is not a legislative
instrument.
577EB When undertaking about subscription television
broadcasting licences comes into force
An undertaking under section 577E comes into force:
(a) if:
(i) the decision to accept the undertaking is expressed to be
subject to the occurrence of a single specified event
within a specified period; and
(ii) the event occurs within that period;
when the event occurs; or
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Section 577EC
544 Telecommunications Act 1997
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(b) if:
(i) the decision to accept the undertaking is expressed to be
subject to the occurrence of 2 or more specified events
within a specified period; and
(ii) each of those events occur at the same time; and
(iii) that time occurs within that period;
at that time; or
(c) if:
(i) the decision to accept the undertaking is expressed to be
subject to the occurrence of 2 or more specified events
within a specified period; and
(ii) each of those events occur at different times; and
(iii) each of those times occur within that period;
at the last of those times; or
(d) if the decision to accept the undertaking is not expressed to
be subject to the occurrence of one or more specified events
within a specified period—when the undertaking is accepted
by the ACCC.
577EC Publication requirements for undertaking about
subscription television broadcasting licences
(1) If a decision to accept an undertaking under section 577E is
expressed to be subject to the occurrence of one or more specified
events within a specified period, the ACCC must:
(a) as soon as practicable after making the decision, publish on
its website:
(i) the undertaking; and
(ii) the terms of the decision; and
(b) as soon as practicable after the ACCC becomes aware that
the undertaking has come into force, publish on its website a
notice announcing that the undertaking has come into force.
(2) If a decision to accept an undertaking under section 577E is not
expressed to be subject to the occurrence of one or more specified
events within a specified period, the ACCC must, as soon as
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Section 577ED
Telecommunications Act 1997 545
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
practicable after accepting the undertaking, publish the undertaking
on its website.
577ED Compliance with undertaking about subscription television
broadcasting licences
If an undertaking given by Telstra is in force under section 577E,
Telstra must comply with the undertaking.
577F Variation of undertaking about subscription television
broadcasting licences
(1) This section applies if an undertaking given by Telstra is in force
under section 577E.
(2) Telstra may give the ACCC a variation of the undertaking in so far
as the undertaking is covered by paragraph 577E(1)(b).
(3) After considering the variation, the ACCC must decide to:
(a) accept the variation; or
(b) reject the variation.
(3A) In deciding whether to accept the variation, the ACCC must have
regard to:
(a) the matters (if any) set out in an instrument in force under
subsection (3B); and
(b) such other matters (if any) as the ACCC considers relevant.
(3B) The Minister may, by writing, set out matters for the purposes of
paragraph (3A)(a).
(3C) Before making or varying an instrument under subsection (3B), the
Minister must:
(a) cause to be published on the Department’s website a notice:
(i) setting out the draft instrument or variation; and
(ii) inviting persons to make submissions to the Minister
about the draft instrument or variation within 14 days
after the notice is published; and
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Section 577F
546 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(b) consider any submissions received within the 14-day period
mentioned in paragraph (a).
(4) The variation takes effect when it is accepted by the ACCC.
(5) As soon as practicable after the variation takes effect, the ACCC
must publish the variation on its website.
(6) The Minister must cause a copy of an instrument under
subsection (3B) to be published on the Department’s website.
(7) An instrument under subsection (3B) is not a legislative
instrument.
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Enforcement of undertakings Division 5
Section 577G
Telecommunications Act 1997 547
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Division 5—Enforcement of undertakings
577G Enforcement of undertakings
(1) If:
(a) an undertaking given by Telstra is in force under
section 577A, 577C or 577E; and
(b) the ACCC considers that Telstra has breached the
undertaking;
the ACCC may apply to the Federal Court for an order under
subsection (2).
(2) If the Federal Court is satisfied that Telstra has breached the
undertaking, the Court may make any or all of the following
orders:
(a) an order directing Telstra to comply with the undertaking;
(b) an order directing the disposal of network units, shares or
other assets;
(c) an order restraining the exercise of any rights attached to
shares;
(d) an order prohibiting or deferring the payment of any sums
due to a person in respect of shares held by Telstra;
(e) an order that any exercise of rights attached to shares be
disregarded;
(f) an order directing Telstra to pay to the Commonwealth an
amount up to the amount of any financial benefit that Telstra
has obtained directly or indirectly and that is reasonably
attributable to the breach;
(g) any order that the Court considers appropriate directing
Telstra to compensate any other person who has suffered loss
or damage as a result of the breach;
(h) any other order that the Court considers appropriate.
(3) In addition to the Federal Court’s powers under subsection (2), the
court:
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Section 577G
548 Telecommunications Act 1997
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(a) has power, for the purpose of securing compliance with any
other order made under this section, to make an order
directing any person to do or refrain from doing a specified
act; and
(b) has power to make an order containing such ancillary or
consequential provisions as the court thinks just.
(4) The Federal Court may, before making an order under this section,
direct that notice of the application be given to such persons as it
thinks fit or be published in such manner as it thinks fit, or both.
(5) The Federal Court may, by order, rescind, vary or discharge an
order made by it under this section or suspend the operation of
such an order.
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Limits on allocation of spectrum licences etc. Division 6
Section 577GA
Telecommunications Act 1997 549
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Division 6—Limits on allocation of spectrum licences etc.
577GA Excluded spectrum regime
(1) The Minister may, by legislative instrument, determine that the
excluded spectrum regime applies to Telstra.
(2) A determination under subsection (1) has effect for the purposes
of:
(a) this Division; and
(b) Part 10 of Schedule 1.
577H Designated part of the spectrum
(1) For the purposes of this Act, each of the following parts of the
spectrum is a designated part of the spectrum:
(a) frequencies higher than 520 MHz, up to and including 820
MHz;
(b) frequencies higher than 2.5 GHz, up to and including 2.69
GHz.
(2) Subsection (1) has effect subject to subsection (3).
(3) The Minister may, by legislative instrument, determine that a
specified part of the spectrum is not a designated part of the
spectrum for the purposes of this Act.
(4) The Minister may, by legislative instrument, determine that a
specified part of the spectrum is a designated part of the spectrum
for the purposes of this Act.
577J Limits on allocation of certain spectrum licences to Telstra
(1) If the excluded spectrum regime applies to Telstra, the ACMA
must not allocate a spectrum licence to Telstra if the licence relates
to a designated part of the spectrum.
Note: For excluded spectrum regime, see section 577GA.
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Section 577J
550 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
(2) However, the rule in subsection (1) does not apply if:
(a) both:
(i) an undertaking given by Telstra is in force under
section 577A; and
(ii) the undertaking is covered by subsection (2A); and
(b) either:
(i) an undertaking given by Telstra is in force under
section 577C; or
(ii) a declaration is in force under subsection (3); and
(c) either:
(i) an undertaking given by Telstra is in force under
section 577E; or
(ii) a declaration is in force under subsection (5).
Note 1: Section 577A deals with undertakings about structural separation.
Note 2: Section 577C deals with undertakings about hybrid fibre-coaxial
networks.
Note 3: Section 577E deals with undertakings about subscription television
broadcasting licences.
(2A) This subsection covers a section 577A undertaking if:
(a) the following conditions are satisfied:
(i) the undertaking requires Telstra to give the ACCC a
draft migration plan;
(ii) in accordance with the undertaking, Telstra has given
the ACCC a draft migration plan;
(iii) the ACCC has approved the draft migration plan under
section 577BD, 577BDA, 577BDB or 577BDC; or
(b) the undertaking does not require Telstra to give the ACCC a
draft migration plan.
(3) The Minister may declare, in writing, that Telstra is exempt from
the requirement to have an undertaking under section 577C.
(4) The Minister must not make a declaration under subsection (3)
unless the ACCC has made a decision to accept an undertaking
given by Telstra under section 577A, and:
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Section 577J
Telecommunications Act 1997 551
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(a) if the undertaking is in force—the Minister is satisfied that
the undertaking is sufficient to address concerns about the
degree of Telstra’s power in telecommunications markets; or
(b) if the undertaking is not in force—the Minister is satisfied
that, subject to the undertaking coming into force, the
undertaking is sufficient to address concerns about the degree
of Telstra’s power in telecommunications markets.
(4A) A declaration under subsection (3) comes into force:
(a) if paragraph (4)(a) applies—when the declaration is made; or
(b) if paragraph (4)(b) applies—when the undertaking comes
into force.
(4B) If:
(a) paragraph (4)(b) applies to a declaration; and
(b) as a result of subsection 577AA(7) or (8), this Act (other than
subclause 76(4) of Schedule 1) has effect as if the
undertaking had never been accepted by the ACCC;
this Act has effect as if the declaration had never been made by the
Minister.
(5) The Minister may declare, in writing, that Telstra is exempt from
the requirement to have an undertaking under section 577E.
(6) The Minister must not make a declaration under subsection (5)
unless the ACCC has made a decision to accept an undertaking
given by Telstra under section 577A, and:
(a) if the undertaking is in force—the Minister is satisfied that
the undertaking is sufficient to address concerns about the
degree of Telstra’s power in telecommunications markets; or
(b) if the undertaking is not in force—the Minister is satisfied
that, subject to the undertaking coming into force, the
undertaking is sufficient to address concerns about the degree
of Telstra’s power in telecommunications markets.
(6A) A declaration under subsection (5) comes into force:
(a) if paragraph (6)(a) applies—when the declaration is made; or
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Section 577K
552 Telecommunications Act 1997
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(b) if paragraph (6)(b) applies—when the undertaking comes
into force.
(6B) If:
(a) paragraph (6)(b) applies to a declaration; and
(b) as a result of subsection 577AA(7) or (8), this Act (other than
subclause 76(4) of Schedule 1) has effect as if the
undertaking had never been accepted by the ACCC;
this Act has effect as if the declaration had never been made by the
Minister.
(6C) A declaration made under subsection (3) or (5) cannot be revoked.
(7) A declaration made under subsection (3) or (5) is not a legislative
instrument.
(8) In this section:
telecommunications market has the same meaning as in Part XIB
of the Competition and Consumer Act 2010.
577K Limits on use of certain spectrum licences by Telstra
(1) If:
(a) the excluded spectrum regime applies to Telstra; and
(b) a spectrum licence relates to a designated part of the
spectrum;
the licensee of the spectrum licence must not authorise Telstra to
operate radiocommunications devices under the licence.
Note: For excluded spectrum regime, see section 577GA.
(2) However, the rule in subsection (1) does not apply if:
(a) both:
(i) an undertaking given by Telstra is in force under
section 577A; and
(ii) the undertaking is covered by subsection (2A); and
(b) either:
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Section 577K
Telecommunications Act 1997 553
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(i) an undertaking given by Telstra is in force under
section 577C; or
(ii) a declaration is in force under subsection 577J(3); and
(c) either:
(i) an undertaking given by Telstra is in force under
section 577E; or
(ii) a declaration is in force under subsection 577J(5).
Note 1: Section 577A deals with undertakings about structural separation.
Note 2: Section 577C deals with undertakings about hybrid fibre-coaxial
networks.
Note 3: Section 577E deals with undertakings about subscription television
broadcasting licences.
(2A) This subsection covers a section 577A undertaking if:
(a) the following conditions are satisfied:
(i) the undertaking requires Telstra to give the ACCC a
draft migration plan;
(ii) in accordance with the undertaking, Telstra has given
the ACCC a draft migration plan;
(iii) the ACCC has approved the draft migration plan under
section 577BD, 577BDA, 577BDB or 577BDC; or
(b) the undertaking does not require Telstra to give the ACCC a
draft migration plan.
(3) A person must not:
(a) aid, abet, counsel or procure a contravention of
subsection (1); or
(b) induce, whether by threats or promises or otherwise, a
contravention of subsection (1); or
(c) be in any way, directly or indirectly, knowingly concerned in,
or party to, a contravention of subsection (1); or
(d) conspire with others to effect a contravention of
subsection (1).
(4) Subsections (1) and (3) are civil penalty provisions.
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Section 577L
554 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Note: Part 31 provides for pecuniary penalties for breaches of civil penalty
provisions.
577L Limits on assignment of certain spectrum licences to Telstra
etc.
(1) If:
(a) the excluded spectrum regime applies to Telstra; and
(b) a spectrum licence relates to a designated part of the
spectrum;
the licensee of the spectrum licence must not:
(c) assign the whole or a part of the licence to Telstra; or
(d) otherwise deal with Telstra in relation to the whole or a part
of the licence.
Note: For excluded spectrum regime, see section 577GA.
(2) However, the rule in subsection (1) does not apply if:
(a) both:
(i) an undertaking given by Telstra is in force under
section 577A; and
(ii) the undertaking is covered by subsection (2A); and
(b) either:
(i) an undertaking given by Telstra is in force under
section 577C; or
(ii) a declaration is in force under subsection 577J(3); and
(c) either:
(i) an undertaking given by Telstra is in force under
section 577E; or
(ii) a declaration is in force under subsection 577J(5).
Note 1: Section 577A deals with undertakings about structural separation.
Note 2: Section 577C deals with undertakings about hybrid fibre-coaxial
networks.
Note 3: Section 577E deals with undertakings about subscription television
broadcasting licences.
(2A) This subsection covers a section 577A undertaking if:
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Section 577L
Telecommunications Act 1997 555
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(a) the following conditions are satisfied:
(i) the undertaking requires Telstra to give the ACCC a
draft migration plan;
(ii) in accordance with the undertaking, Telstra has given
the ACCC a draft migration plan;
(iii) the ACCC has approved the draft migration plan under
section 577BD, 577BDA, 577BDB or 577BDC; or
(b) the undertaking does not require Telstra to give the ACCC a
draft migration plan.
(3) A person must not:
(a) aid, abet, counsel or procure a contravention of
subsection (1); or
(b) induce, whether by threats or promises or otherwise, a
contravention of subsection (1); or
(c) be in any way, directly or indirectly, knowingly concerned in,
or party to, a contravention of subsection (1); or
(d) conspire with others to effect a contravention of
subsection (1).
(4) Subsections (1) and (3) are civil penalty provisions.
Note: Part 31 provides for pecuniary penalties for breaches of civil penalty
provisions.
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Division 7 Other provisions
Section 577M
556 Telecommunications Act 1997
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Division 7—Other provisions
577M Associate
(1) For the purposes of this Part, an associate of Telstra in relation to
control of:
(a) a hybrid fibre-coaxial network; or
(b) another telecommunications network; or
(c) a company;
is:
(d) a partner of Telstra; or
(e) if Telstra or another person who is an associate of Telstra
under another paragraph receives benefits or is capable of
benefiting under a trust—the trustee of the trust; or
(f) a person (whether a company or not) who:
(i) acts, or is accustomed to act; or
(ii) under a contract or an arrangement or understanding
(whether formal or informal) is intended or expected to
act;
in accordance with the directions, instructions or wishes of,
or in concert with:
(iii) Telstra; or
(iv) Telstra and another person who is an associate of
Telstra under another paragraph; or
(g) another company if:
(i) the other company is a related body corporate of Telstra
for the purposes of the Corporations Act 2001; or
(ii) Telstra, or Telstra and another person who is an
associate of Telstra under another paragraph, are in a
position to exercise control of the other company.
(2) However, persons are not associates of each other if the ACCC is
satisfied that:
(a) they do not act together in any relevant dealings relating to
the network or company; and
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Section 577N
Telecommunications Act 1997 557
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(b) neither of them is in a position to exert influence over the
business dealings of the other in relation to the network or
company.
577N Control
In this Part, control includes control as a result of, or by means of,
trusts, agreements, arrangements, understandings and practices,
whether or not having legal or equitable force and whether or not
based on legal or equitable rights.
577P Control of a company
(1) For the purposes of this Part, the question of whether a person is in
a position to exercise control of a company is to be determined
under Schedule 1 to the Broadcasting Services Act 1992.
(2) However, in determining that question:
(a) the definition of associate in subsection 6(1) of the
Broadcasting Services Act 1992 does not apply; and
(b) the definition of associate in section 577M of this Act applies
instead.
577Q When Telstra is in a position to exercise control of a network
(1) For the purposes of this Part, Telstra is in a position to exercise
control of:
(a) a hybrid fibre-coaxial network; or
(b) another telecommunications network;
if:
(c) Telstra legally or beneficially owns the network (whether
alone or together with one or more other persons); or
(d) Telstra is in a position, either alone or together with an
associate of Telstra and whether directly or indirectly:
(i) to exercise control of the operation of all or part of the
network; or
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Section 577Q
558 Telecommunications Act 1997
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(ii) to exercise control of the selection of the kinds of
services that are supplied using the network; or
(iii) to exercise control of the supply of services using the
network; or
(e) a company other than Telstra legally or beneficially owns the
network (whether alone or together with one or more other
persons), and:
(i) Telstra is in a position, either alone or together with an
associate of Telstra, to exercise control of the company;
or
(ii) Telstra, either alone or together with an associate of
Telstra, is in a position to veto any action taken by the
board of directors of the company; or
(iii) Telstra, either alone or together with an associate of
Telstra, is in a position to appoint or secure the
appointment of, or veto the appointment of, at least half
of the board of directors of the company; or
(iv) Telstra, either alone or together with an associate of
Telstra, is in a position to exercise, in any other manner,
whether directly or indirectly, direction or restraint over
any substantial issue affecting the management or
affairs of the company; or
(v) the company or more than 50% of its directors act, or
are accustomed to act in accordance with the directions,
instructions or wishes of, or in concert with, Telstra or
of Telstra and an associate of Telstra acting together or
of the directors of Telstra; or
(vi) the company or more than 50% of its directors, under a
contract or an arrangement or understanding (whether
formal or informal) are intended or expected to act, in
accordance with the directions, instructions or wishes
of, or in concert with, Telstra or of Telstra and an
associate of Telstra acting together or of the directors of
Telstra.
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Section 577Q
Telecommunications Act 1997 559
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(2) An employee is not, except through an association with another
person, to be regarded as being in a position to exercise control of a
network under subsection (1) purely because of being an employee.
(3) More than one person may be in a position to exercise control of a
network.
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Part 34 Special provisions relating to conventions and directions
Section 579
560 Telecommunications Act 1997
Compilation No. 85 Compilation date: 23/6/17 Registered: 30/6/17
Part 34—Special provisions relating to conventions
and directions
579 Simplified outline
The following is a simplified outline of this Part:
• The ACMA is to have regard to certain international
obligations when performing its telecommunications functions
and exercising its telecommunications powers.
• The ACMA may give directions to a carrier or a service
provider in connection with the ACMA’s performance of its
telecommunications functions or the exercise of its
telecommunications powers.
• The eSafety Commissioner may give directions to a carrier or
a service provider in connection with the Commissioner’s
performance of his or her functions or the exercise of his or
her powers.
580 ACMA must have regard to conventions
(1) In performing its telecommunications functions and exercising its
telecommunications powers, the ACMA must have regard to
Australia’s obligations under any convention of which the Minister
has notified the ACMA in writing.
(2) In this section:
convention means:
(a) a convention to which Australia is a party; or
(b) an agreement or arrangement between Australia and a foreign
country;
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Section 581
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and includes, for example, an agreement, arrangement or
understanding between a Minister and an official or authority of a
foreign country.
581 Power to give directions to carriers and service providers
(1) The ACMA may give written directions to:
(a) a carrier; or
(b) a service provider;
in connection with performing any of the ACMA’s
telecommunications functions or exercising any of the ACMA’s
telecommunications powers.
(2) This section is not limited by any other provision of a law that:
(a) confers a function or power on the ACMA; or
(b) prescribes the mode in which the ACMA is to perform a
function or exercise a power; or
(c) prescribes conditions or restrictions which must be observed
in relation to the performance by the ACMA of a function or
the exercise by the ACMA of a power.
(2A) The eSafety Commissioner may give written directions to:
(a) a carrier; or
(b) a service provider;
in connection with performing any of the Commissioner’s
functions or exercising any of the Commissioner’s powers.
(2B) This section is not limited by any other provision of a law that:
(a) confers a function or power on the eSafety Commissioner; or
(b) prescribes the mode in which the eSafety Commissioner is to
perform a function or exercise a power; or
(c) prescribes conditions or restrictions which must be observed
in relation to the performance by the eSafety Commissioner
of a function or the exercise by the eSafety Commissioner of
a power.
(3) If:
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(a) a person who is a carrier or carriage service provider
proposes to use, or uses, for the person’s own requirements
or benefit, or proposes to supply, or supplies, to another
person, one or more carriage services; and
(b) the Attorney-General, after consulting the Prime Minister and
the Minister administering this Act, considers that the
proposed use or supply would be, or the use or supply is, as
the case may be, prejudicial to security;
the Attorney-General may give to the carrier or carriage service
provider a written direction not to use or supply, or to cease using
or supplying, as the case may be, the carriage service, or all of the
carriage services.
(3A) A direction under subsection (3) must relate to a carriage service
generally and cannot be expressed to apply to the supply of a
carriage service to a particular person, particular persons or a
particular class of persons.
(4) A person must comply with a direction given to the person under
subsection (1) or (3).
(4A) A person must comply with a direction given to the person under
subsection (2A).
(5) In this section:
security has the same meaning as in the Australian Security
Intelligence Organisation Act 1979.
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Part 35—Miscellaneous
582 Simplified outline
The following is a simplified outline of this Part:
• Provision is made in relation to continuing offences.
• Partnerships are to be treated as persons for the purposes of
this Act, the Spam Act 2003, regulations under the Spam Act
2003, the Do Not Call Register Act 2006, regulations under
the Do Not Call Register Act 2006, the Telecommunications
(Consumer Protection and Service Standards) Act 1999 and
regulations under the Telecommunications (Consumer
Protection and Service Standards) Act 1999.
• Provision is made in relation to the service of documents.
• Instruments under this Act, the Spam Act 2003, the Do Not
Call Register Act 2006 or the Telecommunications (Consumer
Protection and Service Standards) Act 1999 may apply, adopt
or incorporate certain other instruments.
• An arbitration under this Act or the Telecommunications
(Consumer Protection and Service Standards) Act 1999 must
not result in the acquisition of property otherwise than on just
terms.
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• In order to provide a constitutional safety-net, compensation is
payable in the event that the operation of this Act, the Spam
Act 2003, regulations under the Spam Act 2003, the Do Not
Call Register Act 2006, regulations under the Do Not Call
Register Act 2006, the Telecommunications (Consumer
Protection and Service Standards) Act 1999 or regulations
under that Act results in the acquisition of property otherwise
than on just terms.
• This Act, the Spam Act 2003, regulations under the Spam Act
2003, the Do Not Call Register Act 2006, regulations under
the Do Not Call Register Act 2006, the Telecommunications
(Consumer Protection and Service Standards) Act 1999 and
regulations under the Telecommunications (Consumer
Protection and Service Standards) Act 1999 do not affect the
performance of State or Territory functions.
• The Minister may make grants of financial assistance to
consumer bodies for purposes in connection with the
representation of the interests of consumers in relation to
telecommunications issues.
• The Minister may make grants of financial assistance for
purposes in connection with research into the social,
economic, environmental or technological implications of
developments relating to telecommunications.
• The Governor-General may make regulations for the purposes
of this Act.
583 Penalties for certain continuing offences
(1) This section applies if an offence against this Act is a continuing
offence (whether under this Act or because of section 4K of the
Crimes Act 1914).
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(2) The maximum penalty for each day that the offence continues is
10% of the maximum penalty that could be imposed in respect of
the principal offence.
(3) In this section:
this Act includes the Telecommunications (Consumer Protection
and Service Standards) Act 1999 and regulations under that Act.
584 Procedure relating to certain continuing offences
(1) If section 43 applies to an offence against a provision of this Act,
charges against the same person for any number of offences against
that provision may be joined in the same information, complaint or
summons if:
(a) those charges are founded on the same facts; or
(b) form, or are part of, a series of offences of the same or a
similar character.
(2) If a person is convicted of 2 or more offences against such a
provision, the court may impose one penalty in respect of both or
all of those offences, but that penalty must not exceed the sum of
the maximum penalties that could be imposed if a separate penalty
were imposed in respect of each offence.
585 Treatment of partnerships
(1) This Act applies to a partnership as if the partnership were a
person, but it applies with the following changes:
(a) obligations that would be imposed on the partnership are
imposed instead on each partner, but may be discharged by
any of the partners;
(b) any offence against this Act that would otherwise be
committed by the partnership is taken to have been
committed by each partner who:
(i) aided, abetted, counselled or procured the relevant act or
omission; or
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(ii) was in any way knowingly concerned in, or party to, the
relevant act or omission (whether directly or indirectly
and whether by any act or omission of the partner).
(2) In this section:
civil penalty provision includes:
(a) a civil penalty provision within the meaning of the Spam Act
2003; and
(b) a civil penalty provision within the meaning of the Do Not
Call Register Act 2006.
offence includes a breach of a civil penalty provision.
this Act includes:
(a) the Telecommunications (Consumer Protection and Service
Standards) Act 1999 and regulations under that Act; and
(b) the Spam Act 2003 and regulations under that Act; and
(c) the Do Not Call Register Act 2006 and regulations under that
Act.
586 Giving of documents to partnerships
(1) For the purposes of this Act, if a document is given to a partner of
a partnership in accordance with section 28A of the Acts
Interpretation Act 1901, the document is taken to have been given
to the partnership.
(2) In this section:
this Act includes:
(a) the Telecommunications (Consumer Protection and Service
Standards) Act 1999 and regulations under that Act; and
(b) the Spam Act 2003 and regulations under that Act; and
(c) the Do Not Call Register Act 2006 and regulations under that
Act.
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587 Nomination of address for service of documents
(1) For the purposes of this Act, a person may nominate an address for
service in:
(a) an application made by the person under this Act; or
(b) any other document given by the person to the ACCC or the
ACMA.
The address must be in Australia.
(2) For the purposes of this Act, a document may be given to the
person by leaving it at, or by sending it by pre-paid post to, the
nominated address for service.
(3) Subsection (2) has effect in addition to section 28A of the Acts
Interpretation Act 1901.
Note: Section 28A of the Acts Interpretation Act 1901 deals with the service
of documents.
(4) In this section:
this Act includes:
(a) the Telecommunications (Consumer Protection and Service
Standards) Act 1999 and regulations under that Act; and
(b) the Spam Act 2003 and regulations under that Act; and
(c) the Do Not Call Register Act 2006 and regulations under that
Act.
588 Service of summons or process on foreign corporations—
criminal proceedings
(1) This section applies to a summons or process in any criminal
proceedings under this Act, where:
(a) the summons or process is required to be served on a body
corporate incorporated outside Australia; and
(b) the body corporate does not have a registered office or a
principal office in Australia; and
(c) the body corporate has an agent in Australia.
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(2) Service of the summons or process may be effected by serving it
on the agent.
(3) Subsection (2) has effect in addition to section 28A of the Acts
Interpretation Act 1901.
Note: Section 28A of the Acts Interpretation Act 1901 deals with the service
of documents.
(4) In this section:
criminal proceeding includes a proceeding to determine whether a
person should be tried for an offence.
this Act includes the Telecommunications (Consumer Protection
and Service Standards) Act 1999 and regulations under that Act.
589 Instruments under this Act may provide for matters by
reference to other instruments
(1) An instrument under this Act may make provision in relation to a
matter by applying, adopting or incorporating (with or without
modifications) provisions of any Act:
(a) as in force at a particular time; or
(b) as in force from time to time.
(2) An instrument under this Act may make provision in relation to a
matter by applying, adopting or incorporating (with or without
modifications) matter contained in any other instrument or writing
whatever:
(a) as in force or existing at a particular time; or
(b) as in force or existing from time to time;
even if the other instrument or writing does not yet exist when the
instrument under this Act is made.
(3) A reference in subsection (2) to any other instrument or writing
includes a reference to an instrument or writing:
(a) made by any person or body in Australia or elsewhere
(including, for example, the Commonwealth, a State or
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Territory, an officer or authority of the Commonwealth or of
a State or Territory or an overseas entity); and
(b) whether of a legislative, administrative or other official
nature or of any other nature; and
(c) whether or not having any legal force or effect;
for example:
(d) regulations or rules under an Act; or
(e) a State Act, a law of a Territory, or regulations or any other
instrument made under such an Act or law; or
(f) an international technical standard or performance indicator;
or
(g) a written agreement or arrangement or an instrument or
writing made unilaterally.
(4) Nothing in this section limits the generality of anything else in it.
(5) Subsections (1) and (2) have effect despite anything in:
(a) the Acts Interpretation Act 1901; or
(b) the Legislation Act 2003.
(6) In this section:
instrument under this Act means:
(a) the regulations; or
(b) any other instrument made under this Act.
this Act includes:
(a) the Telecommunications (Consumer Protection and Service
Standards) Act 1999; and
(b) Parts XIB and XIC of the Competition and Consumer Act
2010; and
(c) the Spam Act 2003; and
(d) the Do Not Call Register Act 2006.
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590 Arbitration—acquisition of property
(1) This section applies to a provision of this Act that authorises the
conduct of an arbitration (whether by the ACCC or another
person).
(2) The provision has no effect to the extent (if any) to which it
purports to authorise the acquisition of property if that acquisition:
(a) is otherwise than on just terms; and
(b) would be invalid because of paragraph 51(xxxi) of the
Constitution.
(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.
this Act includes the Telecommunications (Consumer Protection
and Service Standards) Act 1999 and regulations under that Act.
591 Compensation—constitutional safety net
(1) If:
(a) apart from this section, the operation of this Act would result
in the acquisition of property from a person otherwise than
on just terms; and
(b) the acquisition would be invalid because of
paragraph 51(xxxi) of the Constitution;
the Commonwealth is liable to pay compensation of a reasonable
amount to the person in respect of the acquisition.
(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:
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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.
this Act includes:
(a) the Telecommunications (Consumer Protection and Service
Standards) Act 1999 and regulations under that Act; and
(b) the Spam Act 2003 and regulations under that Act; and
(c) the Do Not Call Register Act 2006 and regulations under that
Act.
592 Act not to affect performance of State or Territory functions
(1) A power conferred by this Act must not be exercised in such a way
as to prevent the exercise of the powers, or the performance of the
functions, of government of a State, the Northern Territory or the
Australian Capital Territory.
(2) In this section:
this Act includes:
(a) the Telecommunications (Consumer Protection and Service
Standards) Act 1999 and regulations under that Act; and
(b) the Spam Act 2003 and regulations under that Act; and
(c) the Do Not Call Register Act 2006 and regulations under that
Act.
593 Funding of consumer representation, and of research, in
relation to telecommunications
(1) The Minister may, on behalf of the Commonwealth, make a grant
of financial assistance to a consumer body for purposes in
connection with the representation of the interests of consumers in
relation to telecommunications issues.
(2) The Minister may, on behalf of the Commonwealth, make a grant
of financial assistance to a person or body for purposes in
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connection with research into the social, economic, environmental
or technological implications of developments relating to
telecommunications.
(3) The terms and conditions on which financial assistance is to be
granted under this section are to be set out in a written agreement
between the Commonwealth and the person or body receiving the
grant.
(4) An agreement under subsection (3) may be entered into by the
Minister on behalf of the Commonwealth.
(5) The Minister must, as soon as practicable after the end of each
financial year (and, in any event, within 6 months after the end of
the financial year), cause to be prepared a report relating to the
administration of this section during the financial year.
(6) The Minister must cause copies of a report prepared under
subsection (5) to be laid before each House of the Parliament
within 15 sitting days of that House after the completion of the
preparation of the report.
(7) Grants under this section are to be paid out of money appropriated
by the Parliament for the purposes of this section.
(8) In this section:
consumer body means a body or association that represents the
interests of consumers.
telecommunications means the carriage of communications by
means of guided and/or unguided electromagnetic energy.
594 Regulations
(1) The Governor-General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or
giving effect to this Act.
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(2) The regulations may prescribe penalties, not exceeding 10 penalty
units, for offences against the regulations.
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