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 Telecommunications Act 1997 (consolidated as of March 2, 2019)

Authorised Version C2019C00104 registered 12/03/2019

Telecommunications Act 1997

No. 47, 1997

Compilation No. 92

Compilation date: 2 March 2019

Includes amendments up to: Act No. 6, 2019

Registered: 12 March 2019

This compilation is in 2 volumes

Volume 1: sections 1–594

Volume 2: Schedules

Endnotes

Each volume has its own contents

Prepared by the Office of Parliamentary Counsel, Canberra

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 2 March 2019 (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If a provision of the compiled law has been repealed in accordance with a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 ..........................................................23

9 Extra-territorial application .............................................23

10 Extension to external Territories .....................................23

11 Extension to offshore areas .............................................23

11A Application of the Criminal Code ...................................24

12 Act subject to Radiocommunications Act .......................24

13 Continuity of partnerships ...............................................25

14 Controlled carriage services, controlled networks

and controlled facilities ...................................................25

15 Content service................................................................26

16 Listed carriage services ...................................................27

18 Access to an emergency call service ...............................28

19 Recognised person who operates an emergency

call service.......................................................................28

20 Customer cabling.............................................................28

21 Customer equipment........................................................29

22 Customer cabling and customer equipment—

boundary of a telecommunications network ....................30

23 Immediate circle ..............................................................32

24 Extended meaning of use.................................................37

Part 2—Network units 38

Division 1—Simplified outline 38

25 Simplified outline............................................................38

Division 2—Basic definition 39

26 Single line links connecting distinct places in

Australia ..........................................................................39

27 Multiple line links connecting distinct places in

Australia ..........................................................................39

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28 Designated radiocommunications facility .......................40

29 Facilities specified in Ministerial determination..............41

Division 3—Related definitions

30 Line links.........................................................................42

31 Designated radiocommunications facility .......................42

32 Public mobile telecommunications service......................44

33 Intercell hand-over functions...........................................45

34 When a base station is part of a terrestrial

radiocommunications customer access network..............46

35 Fixed radiocommunications link .....................................47

Division 4—Distinct places 49

36 Distinct places—basic rules ............................................49

37 Properties.........................................................................49

38 Combined areas ...............................................................50

39 Principal user of a property .............................................51

40 Eligible combined areas ..................................................51

Part 3—Carriers 52

Division 1—Simplified outline 52

41 Simplified outline............................................................52

Division 2—Prohibitions relating to carriers 53

42 Network unit not to be used without carrier licence

or nominated carrier declaration......................................53

43 Continuing offences ........................................................54

44 Supply to the public.........................................................54

45 Exemption—defence .......................................................56

46 Exemption—intelligence operations ...............................57

47 Exemption—transport authorities....................................57

48 Exemption—broadcasting services .................................58

49 Exemption—electricity supply bodies.............................60

50 Exemption—line links authorised by or under

previous laws...................................................................61

51 Exemption—Ministerial determination ...........................63

Division 3—Carrier licences 65

52 Applications for carrier licence .......................................65

53 Form of application etc....................................................65

53A Copy of application to be given to

Communications Access Co-ordinator ............................65

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54 Application to be accompanied by charge .......................65

55 Further information .........................................................66

56 Grant of licence ...............................................................66

56A Consultation with Communications Access

Co-ordinator ....................................................................66

57 Carrier licence has effect subject to this Act ...................68

58 Refusal of carrier licence—disqualified applicant...........68

58A Refusal of carrier licence—security ................................71

59 Time limit on licence decision.........................................72

60 Notification of refusal of application...............................74

61 Conditions of carrier licence specified in

Schedule 1 .......................................................................74

62 Condition of carrier licence set out in

section 152AZ of the Competition and Consumer

Act 2010 ..........................................................................74

62A Condition of carrier licence set out in

section 152BCO of the Competition and

Consumer Act 2010 .........................................................75

62B Condition of carrier licence set out in

section 152BDF of the Competition and Consumer

Act 2010 ..........................................................................75

62C Condition of carrier licence set out in

section 152BEC of the Competition and Consumer

Act 2010 ..........................................................................75

62D Condition of carrier licence set out in

section 152CJC of the Competition and Consumer

Act 2010 ..........................................................................75

62E Condition of carrier licence set out in section 37 of

the National Broadband Network Companies Act

2011.................................................................................76

63 Conditions of carrier licence declared by Minister..........76

64 Consultation about declared licence conditions...............77

65 Conditions about foreign ownership or control ...............78

67 Carrier licence conditions—special provisions ...............78

68 Compliance with conditions ............................................79

69 Remedial directions—breach of condition ......................79

69AA Remedial directions—breach of conditions

relating to access .............................................................81

70 Formal warnings—breach of condition ...........................82

71 Surrender of carrier licence .............................................85

72 Cancellation of carrier licence.........................................85

73 Collection of charges relating to carrier licences.............86

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73A Refund of application charge...........................................88

74 Collection of charges on behalf of the

Commonwealth ...............................................................89

75 Cancellation of certain exemptions from charge .............89

76 Commonwealth not liable to charge ................................89

Division 4—Nominated carrier declarations 90

77 Applications for nominated carrier declarations..............90

78 Application to be accompanied by charge etc. ................90

79 Form of application etc....................................................90

80 Further information .........................................................90

81 Making a nominated carrier declaration ..........................91

81A Obligations of nominated carrier .....................................91

82 Notification of refusal of application...............................92

83 Revocation of nominated carrier declaration...................92

Division 5—Register of nominated carrier declarations and

carrier licences 94

84 Register of nominated carrier declarations and

carrier licences.................................................................94

Part 4—Service providers 95

Division 1—Simplified outline 95

85 Simplified outline............................................................95

Division 2—Service providers 96

86 Service providers.............................................................96

Division 3—Carriage service providers 97

87 Carriage service providers ...............................................97

88 Supply to the public.........................................................99

89 Exemption from definition—customers located on

the same premises..........................................................100

90 Exemption from definition—defence ............................100

91 Exemption from definition—intelligence

operations ......................................................................101

92 Exemption from definition—transport authorities.........101

93 Exemption from definition—broadcasting services ......102

94 Exemption from definition—electricity supply

bodies ............................................................................103

95 Exemption from definition—Ministerial

determination.................................................................103

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96 Exemption from certain regulatory provisions—

Ministerial determination ..............................................104

Division 4—Content service providers 105

97 Content service providers ..............................................105

Division 5—Service provider rules 106

98 Service provider rules....................................................106

99 Service provider determinations....................................107

100 Exemptions from service provider rules........................108

101 Service providers must comply with service

provider rules ................................................................108

102 Remedial directions—breach of service provider

rules...............................................................................109

103 Formal warnings—breach of service provider rules......111

Part 5—Monitoring of the performance of carriers and

carriage service providers 113 104 Simplified outline..........................................................113

105 Monitoring of performance—annual report ..................113

105A Monitoring of performance—additional report .............115

105C Monitoring of breaches by Telstra of an

undertaking about structural separation.........................116

Part 6—Industry codes and industry standards 117

Division 1—Simplified outline 117

106 Simplified outline..........................................................117

Division 2—Interpretation 118

107 Industry codes ...............................................................118

108 Industry standards .........................................................118

108A Electronic messaging service provider ..........................118

108B Telecommunications industry .......................................119

109 Telecommunications activity.........................................119

109B Telemarketing activity...................................................119

109C Fax marketing activity...................................................121

110 Sections of the telecommunications industry ................123

110B Sections of the telemarketing industry ..........................125

110C Sections of the fax marketing industry ..........................125

111 Participants in a section of the telecommunications

industry..........................................................................126

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111AA Participants in a section of the telemarketing

industry..........................................................................126

111AB Participants in a section of the fax marketing

industry..........................................................................127

111B Unsolicited commercial electronic messages ................127

Division 3—General principles relating to industry codes and

industry standards 128

112 Statement of regulatory policy ......................................128

113 Examples of matters that may be dealt with by

industry codes and industry standards ...........................130

114 Industry codes and industry standards may confer

powers on the Telecommunications Industry

Ombudsman ..................................................................133

115 Industry codes and industry standards not to deal

with certain design features and performance

requirements ..................................................................133

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 ..............135

116A Industry codes and standards do not affect Privacy

Act 1988 ........................................................................135

Division 4—Industry codes 136

117 Registration of industry codes .......................................136

118 ACMA may request codes.............................................138

119 Publication of notice where no body or association

represents a section of the telecommunications

industry, the telemarketing industry or the fax

marketing industry.........................................................141

119A Variation of industry codes ...........................................141

119B Publication requirements for submissions .....................144

120 Replacement of industry codes......................................147

121 Directions about compliance with industry codes .........147

122 Formal warnings—breach of industry codes .................148

122A De-registering industry codes and provisions of

industry codes................................................................149

Division 5—Industry standards 150

123 ACMA may determine an industry standard if a

request for an industry code is not complied with .........150

124 ACMA may determine industry standard where no

industry body or association formed..............................151

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125 ACMA may determine industry standards where

industry codes fail .........................................................152

125AA ACMA must determine an industry standard if

directed by the Minister.................................................153

125A ACMA must determine certain industry standards

relating to the telemarketing industry ............................154

125B ACMA must determine certain industry standards

relating to the fax marketing industry............................155

126 Industry standards not to be determined for certain

privacy matters ..............................................................156

128 Compliance with industry standards..............................156

129 Formal warnings—breach of industry standards ...........157

130 Variation of industry standards......................................157

131 Revocation of industry standards ..................................158

132 Public consultation on industry standards .....................158

133 Consultation with ACCC and the

Telecommunications Industry Ombudsman ..................159

134 Consultation with Information Commissioner ..............159

135 Consultation with consumer body .................................160

135A Consultation with the States and Territories..................160

Division 6—Register of industry codes and industry standards 161

136 ACMA to maintain Register of industry codes and

industry standards..........................................................161

Division 6A—Reimbursement of costs of development or

variation of consumer-related industry codes 162

136A Application for eligibility for reimbursement of

costs of development or variation of

consumer-related industry code.....................................162

136B Declaration of eligibility for reimbursement of

costs of development or variation of

consumer-related industry code.....................................163

136C Reimbursement of costs of developing or varying

consumer-related industry code.....................................165

136D Costs—transactions between persons not at arm’s

length.............................................................................168

136E Refundable cost .............................................................168

Division 7—Miscellaneous 169

137 Protection from civil proceedings..................................169

138 Implied freedom of political communication ................169

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139 Agreements for the carrying on of telemarketing

activities or fax marketing activities must require

compliance with this Part ..............................................169

Part 7—Layer 2 bitstream services 171 140 Simplified outline..........................................................171

141 Supply of Layer 2 bitstream services.............................171

141A Exemptions....................................................................174

141B Deemed networks ..........................................................174

141C Certain installations and connections are not taken

to be an extension, alteration or upgrade .......................176

141D Local access line............................................................176

141E Alteration.......................................................................177

141F Upgrade of telecommunications network ......................177

141G Small business customer ...............................................177

Part 8—Superfast fixed-line networks 178

Division 1—Introduction 178

142 Simplified outline..........................................................178

142A Definitions.....................................................................178

Division 2—Supply of eligible services to be on wholesale basis 181

143 Supply of eligible services to be on wholesale

basis...............................................................................181

144 Exemptions—Ministerial instrument.............................182

145 Exemption—transport authorities..................................183

146 Exemption—electricity supply bodies...........................184

147 Exemption—gas supply bodies .....................................184

148 Exemption—water supply bodies..................................185

149 Exemption—sewerage services bodies..........................185

150 Exemption—storm water drainage services bodies .......186

151 Exemption—State or Territory road authorities ............186

Division 3—Other provisions 188

152 Associate .......................................................................188

153 Control ..........................................................................189

154 Control of a company ....................................................189

155 When a person is in a position to exercise control

of a network...................................................................189

156 Deemed networks ..........................................................191

157 Certain installations and connections are not taken

to be an extension, alteration or upgrade .......................192

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158 Local access line............................................................193

159 Alteration.......................................................................193

160 Upgrade of telecommunications network ......................193

Part 13—Protection of communications 194

Division 1—Introduction 194

270 Simplified outline..........................................................194

271 Eligible person...............................................................194

272 Number-database operator and eligible

number-database person ................................................195

273 Information....................................................................195

274 Telecommunications contractor ....................................195

275 Number-database contractor..........................................196

275A Location information.....................................................196

275B Emergency management person....................................196

275C Emergency.....................................................................197

275D Emergency law..............................................................197

275E Relevant information.....................................................197

Division 2—Primary disclosure/use offences 198

276 Primary disclosure/use offence—eligible persons.........198

277 Primary disclosure/use offence—eligible

number-database persons...............................................200

278 Primary disclosure/use offence—emergency call

persons ..........................................................................202

Division 3—Exceptions to primary disclosure/use offences 204

Subdivision A—Exceptions 204

279 Performance of person’s duties .....................................204

280 Authorisation by or under law.......................................205

281 Witnesses.......................................................................207

284 Assisting the ACMA, the eSafety Commissioner,

the ACCC or the Telecommunications Industry

Ombudsman ..................................................................208

285 Integrated public number database ................................209

285A Data for emergency warnings........................................213

286 Calls to emergency service number...............................214

287 Threat to person’s life or health.....................................214

288 Communications for maritime purposes........................215

289 Knowledge or consent of person concerned ..................215

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290 Implicit consent of sender and recipient of

communication ..............................................................215

291 Business needs of other carriers or service

providers........................................................................216

291A Location dependent carriage services ............................218

292 Circumstances prescribed in the regulations .................219

293 Uses connected with exempt disclosures.......................219

294 Effect of this Subdivision ..............................................220

Subdivision B—Burden of proof 220

295 Burden of proof .............................................................220

Division 3A—Integrated public number database authorisations 221

Subdivision A—ACMA scheme for the granting of authorisations 221

295A ACMA to make integrated public number database

scheme...........................................................................221

295B Scheme must deal with certain matters .........................221

295C Applications may be treated differently ........................222

295D Scope of authorisations .................................................222

295E Provisional and final authorisations ..............................222

295F Conditions .....................................................................222

295G Varying or revoking authorisations ...............................222

295H Scheme may confer administrative powers on the

ACMA...........................................................................223

295J Ancillary or incidental provisions .................................223

295K Scheme-making power not limited................................223

295L Variation of scheme.......................................................223

295M Consultation ..................................................................223

Subdivision B—Ministerial instruments 224

295N Criteria for deciding authorisation applications.............224

295P Conditions .....................................................................224

295Q Other reviewable decisions............................................225

Subdivision C—Enforcing compliance with conditions of

authorisations 225

295R Offence of breaching a condition ..................................225

295S Remedial directions for breaching a condition ..............225

295T Formal warnings for breaching a condition ...................226

Subdivision D—Report to Minister 226

295U Report to Minister .........................................................226

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227Division 3B—Emergency warnings

295V Use or disclosure of information by emergency

management persons .....................................................227

295W Use or disclosure of information by other persons ........228

295X Effect on telecommunications network .........................228

295Y Coronial and other inquiries ..........................................228

295Z Offence—use or disclosure of information by

emergency management persons ...................................229

295ZA Offence—use or disclosure of information by

other persons .................................................................229

295ZB Reports of access ...........................................................230

295ZC Annual reports to the ACMA and Information

Commissioner ...............................................................230

295ZD Arrangements with States and Territories .....................231

295ZE Commonwealth immunity .............................................231

Division 4—Secondary disclosure/use offences 232

296 Performance of person’s duties .....................................232

297 Authorisation by or under law.......................................232

299 Assisting the ACMA, the eSafety Commissioner,

the ACCC or the Telecommunications Industry

Ombudsman ..................................................................232

299A Integrated public number database ................................233

300 Threat to person’s life or health.....................................234

301 Communications for maritime purposes........................235

302 Business needs of other carriers or service

providers........................................................................235

302A Location dependent carriage services ............................236

303 Secondary offence—contravening this Division ...........236

303A Generality of Division not limited.................................236

Division 4A—Relationship with the Privacy Act 1988 237

303B Acts taken to be authorised by this Act for

purposes of Privacy Act ................................................237

303C Prosecution of an offence against this Part does

not affect proceedings under the Privacy Act 1988 .......237

Division 5—Record-keeping requirements 238

304 Associate .......................................................................238

305 Authorisations under the Telecommunications

(Interception and Access) Act 1979 ...............................238

306 Record of disclosures—general.....................................238

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306A Record of disclosures—prospective authorisation

under the Telecommunications (Interception and

Access) Act 1979 ...........................................................240

307 Incorrect records............................................................241

308 Annual reports to the ACMA by carriers, carriage

service providers or number-database operators............242

309 Monitoring by the Information Commissioner ..............242

Division 6—Instrument-making powers not limited 244

310 Instrument-making powers not limited..........................244

Part 14—National interest matters 245

Division 1—Simplified outline 245

311 Simplified outline..........................................................245

Division 2—Obligations of ACMA and carriers and carriage

service providers 247

312 ACMA’s obligations .....................................................247

313 Obligations of carriers and carriage service

providers........................................................................247

314 Terms and conditions on which help is to be given.......252

Division 3—Notification of changes to telecommunications

services or telecommunications systems relating to

obligation under subsection 313(1A) or (2A) 254

Subdivision A—Individual notifications 254

314A Individual notifications..................................................254

314B Assessment of proposed change ....................................257

Subdivision B—Security capability plans 259

314C Security capability plans ...............................................259

314D Assessment of security capability plan..........................260

314E Relationship with section 314A.....................................262

Division 4—Carriage service provider may suspend supply of

carriage service in an emergency 263

315 Suspension of supply of carriage service in an

emergency .....................................................................263

Division 5—Directions by Home Affairs Minister 265

315A Direction if use or supply of carriage services

prejudicial to security ....................................................265

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315B Direction if risk of unauthorised interference or

access involving telecommunications networks or

facilities .........................................................................266

Division 6—Home Affairs Secretary’s information-gathering

powers 270

315C Home Affairs Secretary may obtain information

and documents from carriers and carriage service

providers........................................................................270

315D Self-incrimination..........................................................271

315E Copies of documents .....................................................272

315F Retention of documents.................................................272

315G Delegation by Home Affairs Secretary..........................273

Division 7—Information sharing and confidentiality 274

315H Information sharing and confidentiality ........................274

Division 8—Annual report 276

315J Annual report ................................................................276

Division 8A—Review by Parliamentary Joint Committee on

Intelligence and Security 278

315K Review by Parliamentary Joint Committee on

Intelligence and Security ...............................................278

Division 9—Generality of Part not limited 279

316 Generality of Part not limited ........................................279

Part 15—Industry assistance 280

Division 1—Introduction 280

317A Simplified outline of this Part........................................280

317B Definitions.....................................................................282

317C Designated communications provider etc......................288

317D Electronic service ..........................................................292

317E Listed acts or things.......................................................293

317F Extension to external Territories ...................................295

Division 2—Voluntary technical assistance 296

317G Voluntary technical assistance provided to ASIO,

the Australian Secret Intelligence Service, the

Australian Signals Directorate or an interception

agency ...........................................................................296

317H Form of technical assistance request .............................299

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317HAA Provision of advice to designated communications

providers........................................................................300

317HAB Notification obligations .................................................301

317HA Duration of technical assistance request........................302

317J Specified period etc. ......................................................303

317JAA Decision-making criteria ...............................................303

317JA Variation of technical assistance requests .....................304

317JB Revocation of technical assistance requests ..................308

317JC Whether a technical assistance request is

reasonable and proportionate.........................................310

317K Contract etc. ..................................................................311

Division 3—Technical assistance notices 313

317L Technical assistance notices ..........................................313

317LA Approval of technical assistance notices given by

the chief officer of an interception agency of a

State or Territory ...........................................................314

317M Form of technical assistance notice ...............................314

317MAA Provision of advice to designated communications

providers........................................................................315

317MAB Notification obligations .................................................317

317MA Duration of technical assistance notice..........................317

317N Compliance period etc...................................................318

317P Decision-making criteria ...............................................319

317PA Consultation about a proposal to give a technical

assistance notice ............................................................319

317Q Variation of technical assistance notices .......................320

317R Revocation of technical assistance notices ....................322

317RA Whether requirements imposed by a technical

assistance notice are reasonable and proportionate .......324

Division 4—Technical capability notices 325

317S Attorney-General may determine procedures and

arrangements relating to requests for technical

capability notices...........................................................325

317T Technical capability notices ..........................................325

317TAAA Approval of technical capability notice .........................328

317TAA Provision of advice to designated communications

providers........................................................................329

317TAB Notification obligations .................................................329

317TA Duration of technical capability notice..........................330

317U Compliance period etc...................................................332

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317V Decision-making criteria ...............................................332

317W Consultation about a proposal to give a technical

capability notice ............................................................333

317WA Assessment and report...................................................334

317X Variation of technical capability notices .......................339

317XA Approval of variation of technical capability

notice.............................................................................341

317Y Consultation about a proposal to vary a technical

capability notice ............................................................342

317YA Assessment and report...................................................343

317Z Revocation of technical capability notices ....................347

317ZAA Whether requirements imposed by a technical

capability notice are reasonable and proportionate........348

Division 5—Compliance and enforcement 350

317ZA Compliance with notices—carriers and carriage

service providers ...........................................................350

317ZB Compliance with notices—designated

communications provider (other than a carrier or

carriage service provider) ..............................................350

317ZC Civil penalty provision ..................................................351

317ZD Enforceable undertakings ..............................................352

317ZE Injunctions.....................................................................353

Division 6—Unauthorised disclosure of information etc. 354

317ZF Unauthorised disclosure of information ........................354

317ZFA Powers of a court...........................................................364

Division 7—Limitations 366

317ZG Designated communications provider must not be

requested or required to implement or build a

systemic weakness or systemic vulnerability etc. ..........366

317ZGA Limits on technical capability notices ...........................367

317ZH General limits on technical assistance requests,

technical assistance notices and technical

capability notices...........................................................368

Division 8—General provisions 373

317ZJ Immunity .......................................................................373

317ZK Terms and conditions on which help is to be given

etc. .................................................................................373

317ZKA Notification obligations .................................................380

317ZL Service of notices etc.....................................................382

317ZM Interception agency—chief officer and officer..............384

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317ZN Delegation by Director-General of Security..................385

317ZP Delegation by Director-General of the Australian

Secret Intelligence Service ............................................385

317ZQ Delegation by Director-General of the Australian

Signals Directorate ........................................................386

317ZR Delegation by the chief officer of an interception

agency ...........................................................................386

317ZRA Relationship of this Part to parliamentary

privileges and immunities..............................................387

317ZRB Inspection of records .....................................................388

317ZS Annual reports ...............................................................389

317ZT Alternative constitutional basis .....................................390

Part 16—Defence requirements and disaster plans 391

Division 1—Introduction 391

333 Simplified outline..........................................................391

334 Defence authority ..........................................................391

Division 2—Supply of carriage services 392

335 Requirement to supply carriage services for

defence purposes or for the management of natural

disasters .........................................................................392

Division 3—Defence planning 394

336 Definitions.....................................................................394

337 Preparation of draft agreement ......................................394

338 ACMA’s certification of draft agreement......................395

339 Requirement to enter into certified agreement ..............396

340 Compliance with agreement ..........................................396

341 Withdrawal of certification of agreement......................396

342 Duration of agreement...................................................397

343 Variation of agreement ..................................................397

Division 4—Disaster plans 399

344 Designated disaster plans ..............................................399

345 Carrier licence conditions about designated

disaster plans .................................................................399

346 Service provider determinations about designated

disaster plans .................................................................399

346A Carrier and carriage service provider immunity ............399

Division 5—Delegation 401

347 Delegation .....................................................................401

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Part 17—Pre-selection in favour of carriage service providers 402 348 Simplified outline..........................................................402

349 Requirement to provide pre-selection............................402

350 When pre-selection is provided in favour of a

carriage service provider ...............................................408

350A Declared carriage services .............................................409

351 Pre-selection to be provided ..........................................410

352 Exemptions from requirement to provide

pre-selection ..................................................................411

353 Use of over-ride dial codes............................................411

Part 18—Calling line identification 413 354 Simplified outline..........................................................413

355 Calling line identification ..............................................413

356 Exemptions from calling line identification

requirement ...................................................................413

Part 20—International aspects of activities of the

telecommunications industry 415

Division 1—Simplified outline 415

364 Simplified outline..........................................................415

Division 2—Compliance with international agreements 416

365 INTELSAT and Inmarsat—directions to

Signatories.....................................................................416

366 Compliance with conventions .......................................416

Division 3—Rules of conduct about dealings with international

telecommunications operators 418

367 Rules of conduct about dealings with international

telecommunications operators .......................................418

368 ACCC to administer Rules of Conduct .........................420

369 Rules of Conduct to bind carriers and carriage

service providers ...........................................................421

370 Unenforceability of agreements.....................................421

371 Investigations by the ACCC..........................................421

372 Reviews of the operation of this Division .....................422

Part 20A—Deployment of optical fibre etc. 423

Division 1—Simplified outline 423

372A Simplified outline..........................................................423

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425Division 2—Deployment of optical fibre lines

372B Deployment of optical fibre lines to building lots .........425

372C Deployment of optical fibre lines to building units .......427

372D Exemptions—Ministerial instrument.............................429

Division 3—Installation of fibre-ready facilities 430

Subdivision A—Installation obligations 430

372E Installation of fibre-ready facilities—building lots........430

372F Installation of fibre-ready facilities—building

units...............................................................................431

Subdivision B—Sale of building lots and building units 433

372G Sale of building lots and building units—

subdivisions...................................................................433

372H Sale of building units—other projects ...........................435

Subdivision C—NBN Co may issue statement about the

non-installation of optical fibre lines 437

372J NBN Co may issue statement about the

non-installation of optical fibre lines.............................437

372JA Register of Statements about the Non-installation

of Optical Fibre Lines....................................................438

Subdivision D—Exemptions 438

372K Exemptions—Ministerial instrument.............................438

Division 4—Third party access regime 441

372L Third party access regime..............................................441

372M Terms and conditions of access .....................................443

372N Exemptions—Ministerial instrument.............................444

372NA Code relating to access ..................................................444

Division 5—Exemption of certain projects 446

372P Exemption of certain projects........................................446

Division 6—Miscellaneous 447

372Q Real estate development projects etc. ............................447

372R Subdivision of an area of land .......................................449

372S Building units ................................................................449

372T Sale of building lots.......................................................449

372U Sale of building units.....................................................450

372V Fixed-line facilities........................................................450

372W Fibre-ready facility ........................................................451

372X Installation of a facility..................................................451

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372Y Installation of a fibre-ready facility in proximity to

a building lot or building unit ........................................451

372Z Sewerage services, electricity or water supplied to

a building lot or building unit ........................................452

372ZA Supply to the public.......................................................453

372ZB Concurrent operation of State and Territory laws..........454

372ZD NBN Co.........................................................................454

Part 21—Technical regulation 455

Division 1—Simplified outline 455

373 Simplified outline..........................................................455

Division 2—Interpretative provisions 457

374 Part applies to networks or facilities in Australia

operated by carriers or carriage service providers .........457

375 Manager of network or facility......................................457

Division 3—Technical standards about customer equipment and

customer cabling 458

376 ACMA’s power to make technical standards ................458

376A ACMA must make technical standards if directed

by the Minister ..............................................................460

377 Adoption of voluntary standards ...................................460

378 Procedures for making technical standards ...................460

379 Making technical standards in cases of urgency............461

Division 4—Disability standards 463

380 Disability standards .......................................................463

381 Adoption of voluntary standards ...................................463

382 Procedures for making disability standards ...................464

383 Effect of compliance with disability standards..............465

Division 5—Technical standards about the interconnection of

facilities 466

384 ACMA’s power to make technical standards ................466

385 Adoption of voluntary standards ...................................467

386 Procedures for making technical standards ...................467

387 Procedures for making technical standards ...................468

388 Provision of access ........................................................469

389 Promotion of the long-term interests of end-users

of carriage services and of services supplied by

means of carriage services.............................................469

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Division 5A—Technical standards relating to Layer 2 bitstream

services 470

389A ACMA’s power to determine technical standards .........470

389B Compliance with technical standards ............................470

Division 6—Connection permits and connection rules 472

Subdivision A—Connection permits authorising the connection of

non-standard customer equipment and

non-standard cabling 472

390 Application for connection permit.................................472

391 Form of application .......................................................472

392 Application to be accompanied by charge .....................473

393 Further information .......................................................473

394 Issue of connection permits ...........................................473

395 Connection permit has effect subject to this Act ...........474

396 Nominees of holder .......................................................474

397 Duration of connection permits .....................................474

398 Conditions of connection permits..................................475

399 Offence of contravening condition ................................475

400 Formal warnings—breach of condition .........................476

401 Surrender of connection permit .....................................476

402 Cancellation of connection permit.................................476

403 Register of connection permits ......................................477

Subdivision B—Connection rules 478

404 Connection rules............................................................478

405 Procedures for making connection rules........................478

Division 7—Labelling of customer equipment and customer

cabling 480

406 Application of labels .....................................................480

406A Application of Division to agent of manufacturer

or importer.....................................................................480

407 Labelling requirements..................................................480

408 Requirements to apply labels—ancillary matters ..........481

409 Recognised testing authorities and competent

bodies ............................................................................483

410 Certification bodies .......................................................483

411 Connection of customer equipment or customer

cabling—breach of section 376 standards .....................483

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412 Connection of labelled customer equipment or

customer cabling not to be refused ................................485

413 Supply of unlabelled customer equipment or

unlabelled customer cabling ..........................................487

414 Applying labels before satisfying requirements

under subsection 408(5) ................................................487

415 Failure to retain records etc. ..........................................488

416 Application of labels containing false statements

about compliance with standards...................................489

Division 8—Protected symbols 490

417 Protected symbols .........................................................490

Division 9—Cabling providers 494

418 Cabling work.................................................................494

419 Types of cabling work ...................................................494

420 Prohibition of unauthorised cabling work .....................494

421 Cabling provider rules ...................................................495

422 Procedures for making cabling provider rules ...............496

423 Application for cabling licence......................................497

424 Form of application .......................................................497

425 Application to be accompanied by charge .....................497

426 Further information .......................................................497

427 Grant of cabling licence ................................................497

428 Time limit on licence decision.......................................498

429 Notification of refusal of application.............................499

430 Cabling licence has effect subject to this Act ................499

431 Duration of cabling licence ...........................................499

432 Conditions of cabling licence ........................................499

433 Procedures for changing licence conditions ..................500

434 Offence in relation to contravening condition ...............500

435 Formal warnings—breach of condition .........................501

436 Surrender of cabling licence..........................................501

437 Suspension of cabling licence .......................................502

438 Cancellation of cabling licence......................................502

439 ACMA may limit application of Division in

relation to customer cabling ..........................................503

440 Ministerial directions.....................................................503

441 Delegation .....................................................................504

442 Register of cabling licences...........................................505

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Division 10—Remedies for unauthorised connections to

telecommunications networks etc. 506

443 Civil action for unauthorised connections to

telecommunications networks etc..................................506

444 Remedy for contravention of labelling

requirements ..................................................................507

445 Remedies for connection of unlabelled customer

equipment or unlabelled customer cabling ....................508

446 Disconnection of dangerous customer equipment

or customer cabling .......................................................510

447 Disconnection of customer equipment or customer

cabling—protection of the integrity of networks

and facilities ..................................................................512

448 Civil action for dangerous connections to

telecommunications networks etc..................................513

449 Other remedies not affected...........................................514

Division 11—Prohibited customer equipment and prohibited

customer cabling 515

450 Declaration of prohibited customer equipment or

prohibited customer cabling ..........................................515

452 Operation of prohibited customer equipment or

customer cabling ...........................................................515

Division 12—Pre-commencement labels 517

453 Pre-commencement labels.............................................517

Division 13—Penalties payable instead of prosecution 518

453A Penalties payable instead of prosecution .......................518

Part 22—Numbering of carriage services and regulation of

electronic addressing 519

Division 1—Simplified outline 519

454 Simplified outline..........................................................519

Division 2—Numbering of carriage services 520

Subdivision A—Numbering plan 520

455 Numbering plan.............................................................520

456 Numbering plan—supply to the public..........................522

457 Numbering plan—allocation otherwise than in

accordance with an allocation system............................522

458 Numbering plan—rules about portability of

allocated numbers..........................................................522

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459 ACMA to administer numbering plan ...........................523

460 Consultation about numbering plan...............................523

461 Consultation with ACCC...............................................524

462 Compliance with the numbering plan............................525

Subdivision B—Allocation system for numbers 526

463 Allocation system for numbers......................................526

464 Consultation about an allocation system .......................527

Subdivision C—Miscellaneous 528

465 Register of allocated numbers .......................................528

466 Emergency service numbers..........................................529

467 Delegation .....................................................................530

468 Collection of numbering charges...................................531

469 Collection of charges on behalf of the

Commonwealth .............................................................533

470 Cancellation of certain exemptions from charge ...........533

471 Commonwealth not liable to charge ..............................533

472 Integrated public number database ................................534

473 Letters and symbols taken to be numbers ......................535

Division 3—Regulation of electronic addressing 536

474 Declared manager of electronic addressing ...................536

475 ACMA may give directions to declared manager

of electronic addressing.................................................536

476 ACCC may give directions to declared manager of

electronic addressing .....................................................537

477 ACCC’s directions to prevail over the ACMA’s

directions.......................................................................539

Part 23—Standard agreements for the supply of carriage

services 540 478 Simplified outline..........................................................540

479 Standard terms and conditions apply unless

excluded ........................................................................540

482 Concurrent operation of State/Territory laws ................541

483 Competition and Consumer Act not affected by

this Part .........................................................................542

Part 24—Carriers’ powers and immunities 543 484 Schedule 3 .....................................................................543

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Part 24A—Submarine cables 544 484A Schedule 3A ..................................................................544

Part 25—Public inquiries 545

Division 1—Simplified outline 545

485 Simplified outline..........................................................545

Division 2—Inquiries by the ACMA 546

486 When inquiry must be held............................................546

487 When inquiry may be held ............................................546

488 Informing the public about an inquiry ...........................547

489 Discussion paper ...........................................................547

490 Written submissions and protection from civil

actions ...........................................................................548

491 Hearings ........................................................................548

492 Hearing to be in public except in exceptional cases ......549

493 Confidential material not to be published......................550

494 Direction about private hearings....................................551

495 Reports on inquiries.......................................................552

Division 3—Inquiries by the ACCC 553

496 When inquiry must be held............................................553

497 When inquiry may be held ............................................553

498 Informing the public about an inquiry ...........................553

499 Discussion paper ...........................................................554

500 Written submissions and protection from civil

actions ...........................................................................554

501 Hearings ........................................................................555

502 Hearing to be in public except in exceptional cases ......556

503 Confidential material not to be published......................556

504 Direction about private hearings....................................557

505 Reports on inquiries.......................................................558

505A ACCC may use material presented to a previous

public inquiry ................................................................559

505B ACCC may adopt a finding from a previous public

inquiry ...........................................................................560

506 ACCC’s other powers not limited .................................560

Part 26—Investigations 561 507 Simplified outline..........................................................561

508 Matters to which this Part applies..................................561

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509 Complaints to the ACMA..............................................562

510 Investigations by the ACMA.........................................564

511 Preliminary inquiries .....................................................565

512 Conduct of investigations ..............................................565

513 Complainant and certain other persons to be

informed of various matters...........................................566

514 Reference of matters to Ombudsman or other

responsible person .........................................................567

515 Reference of matters to the ACCC ................................568

515A Reference of matters to Information Commissioner......569

516 Reports on investigations ..............................................570

517 Publication of reports ....................................................571

518 Person adversely affected by report to be given

opportunity to comment ................................................572

519 Protection from civil actions .........................................572

Part 27—The ACMA’s information-gathering powers 574

Division 1—Simplified outline 574

520 Simplified outline..........................................................574

Division 2—Information-gathering powers 575

521 The ACMA may obtain information and

documents from carriers and service providers .............575

522 The ACMA may obtain information and

documents from other persons.......................................576

523 Copying documents—reasonable compensation ...........578

524 Self-incrimination..........................................................578

525 Giving false or misleading information or

evidence ........................................................................579

527 Copies of documents .....................................................579

528 ACMA may retain documents.......................................579

Division 3—Record-keeping rules 581

529 ACMA may make record-keeping rules........................581

530 Compliance with record-keeping rules..........................582

531 Incorrect records............................................................582

Part 28—Enforcement 583

Division 1—Introduction 583

532 Simplified outline..........................................................583

532A References to the Spam Act 2003 ..................................584

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Division 2—Inspectors and identity cards 585

533 Inspectors ......................................................................585

534 Identity cards .................................................................586

Division 3—Search warrants relating to breaches of the Spam

Act 2003 or Part 21 of this Act 587

535 Magistrate may issue warrant ........................................587

536 Reasonable grounds for issuing warrant etc. .................588

537 Contents of warrant .......................................................588

538 Warrants may be issued by telephone etc. .....................588

539 Provisions relating to issue of warrant by

telephone etc..................................................................588

540 Proceedings involving warrant issued by telephone

etc. .................................................................................590

Division 4—Searches and seizures relating to breaches of the

Spam Act 2003 or Part 21 of this Act 591

541 When is a thing connected with an offence? .................591

541A When is a thing connected with a breach of the

Spam Act 2003?.............................................................591

542 Searches and seizures ....................................................591

543 Production of identity card etc.......................................592

544 Evidence of commission of other offences against

Part 21 of this Act or other breaches of the Spam

Act 2003 ........................................................................593

545 Emergency entry, search and seizure.............................594

546 Retention of things seized .............................................595

Division 5—Searches to monitor compliance with Part 21 596

547 Searches to monitor compliance with Part 21 ...............596

Division 5A—Searches to monitor compliance with the Spam

Act 2003 597

547A Powers available to inspectors for monitoring

compliance ....................................................................597

547B Monitoring powers ........................................................597

547C Production of identity card etc.......................................599

547D Monitoring warrants ......................................................599

547E Details of warrant to be given to occupier etc. ..............601

547F Announcement before entry ..........................................601

547G Compensation for damage to equipment .......................601

547H Occupier entitled to be present during search................602

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Division 5B—Access to computer data that is relevant to the

Spam Act 2003 604

547J Access to computer data that is relevant to the

Spam Act 2003...............................................................604

Division 6—Other powers of inspectors 606

548 General powers of inspectors ........................................606

549 Power to require information etc. ..................................607

550 Retention of documents.................................................609

Division 7—Forfeiture 610

551 Court may order forfeiture.............................................610

552 Forfeited goods may be sold..........................................610

Division 8—Future offences 611

553 Offences that are going to be committed .......................611

Part 29—Review of decisions 612 554 Simplified outline..........................................................612

555 Decisions that may be subject to reconsideration

by the ACMA................................................................612

556 Deadlines for reaching certain decisions .......................612

557 Statements to accompany notification of decisions .......613

558 Applications for reconsideration of decisions................613

559 Reconsideration by the ACMA .....................................614

560 Deadlines for reconsiderations ......................................614

561 Statements to accompany notification of decisions

on reconsideration .........................................................614

562 Review by the Administrative Appeals Tribunal...........615

Part 30—Injunctions 616 563 Simplified outline..........................................................616

564 Injunctions.....................................................................616

565 Interim injunctions ........................................................620

566 Discharge etc. of injunctions .........................................620

567 Certain limits on granting injunctions not to apply .......620

568 Other powers of the court unaffected ............................621

Part 31—Civil penalties 622 569 Simplified outline..........................................................622

570 Pecuniary penalties for contravention of civil

penalty provisions .........................................................622

571 Civil action for recovery of pecuniary penalties............624

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572 Criminal proceedings not to be brought for

contravention of civil penalty provisions ......................627

Part 31A—Enforceable undertakings 628 572A Simplified outline..........................................................628

572B Acceptance of undertakings ..........................................628

572C Enforcement of undertakings ........................................629

Part 31B—Infringement notices for contraventions of civil

penalty provisions 631 572D Simplified outline..........................................................631

572E When an infringement notice can be given ...................631

572F Matters to be included in an infringement notice ..........635

572G Amount of penalty.........................................................636

572H Withdrawal of an infringement notice ...........................636

572J What happens if the penalty is paid...............................637

572K Effect of this Part on civil proceedings..........................637

572L Appointment of authorised infringement notice

officer ............................................................................638

572M Guidelines relating to infringement notices...................638

572N Regulations....................................................................639

Part 32—Vicarious liability 640 573 Simplified outline..........................................................640

574 Proceedings under this Act ............................................640

574A Definition ......................................................................640

575 Liability of corporations ................................................641

576 Liability of persons other than corporations ..................642

Part 33—Voluntary undertakings given by Telstra 644

Division 1—Introduction 644

577 Simplified outline..........................................................644

Division 2—Structural separation 645

Subdivision A—Undertaking about structural separation 645

577A Acceptance of undertaking about structural

separation ......................................................................645

577AA Acceptance of undertaking about structural

separation may be subject to the occurrence of

events ............................................................................650

577AB When undertaking about structural separation

comes into force ............................................................652

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577AC Publication requirements for undertaking about

structural separation ......................................................653

577AD Compliance with undertaking about structural

separation ......................................................................654

577B Variation of undertaking about structural

separation ......................................................................654

577BA Authorised conduct—subsection 51(1) of the

Competition and Consumer Act 2010............................655

Subdivision B—Migration plan 662

577BB Migration plan principles ..............................................662

577BC Migration plan...............................................................663

577BD Approval of draft migration plan by the ACCC—

plan given after undertaking about structural

separation comes into force ...........................................665

577BDA Approval of draft migration plan by the ACCC—

plan given before undertaking about structural

separation comes into force ...........................................667

577BDB Approval of draft migration plan by the ACCC—

plan given in compliance with a direction .....................669

577BDC Approval of draft migration plan by the ACCC—

plan given in response to a request ................................670

577BE Effect of approval of draft migration plan .....................672

577BF Variation of final migration plan ...................................673

Division 3—Hybrid fibre-coaxial networks 675

577C Acceptance of undertaking about hybrid

fibre-coaxial networks ...................................................675

577CA Acceptance of undertaking about hybrid

fibre-coaxial networks may be subject to the

occurrence of events ......................................................676

577CB When undertaking about hybrid fibre-coaxial

networks comes into force.............................................678

577CC Publication requirements for undertaking about

hybrid fibre-coaxial networks........................................679

577CD Compliance with undertaking about hybrid

fibre-coaxial networks ...................................................680

577D Variation of undertaking about hybrid

fibre-coaxial networks ...................................................680

Division 4—Subscription television broadcasting licences 682

577E Acceptance of undertaking about subscription

television broadcasting licences ....................................682

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577EA Acceptance of undertaking about subscription

television broadcasting licences may be subject to

the occurrence of events ................................................683

577EB When undertaking about subscription television

broadcasting licences comes into force .........................685

577EC Publication requirements for undertaking about

subscription television broadcasting licences ................686

577ED Compliance with undertaking about subscription

television broadcasting licences ....................................687

577F Variation of undertaking about subscription

television broadcasting licences ....................................687

Division 5—Enforcement of undertakings 689

577G Enforcement of undertakings ........................................689

Division 6—Limits on allocation of spectrum licences etc. 691

577GA Excluded spectrum regime ............................................691

577H Designated part of the spectrum ....................................691

577J Limits on allocation of certain spectrum licences

to Telstra........................................................................691

577K Limits on use of certain spectrum licences by

Telstra............................................................................694

577L Limits on assignment of certain spectrum licences

to Telstra etc. .................................................................696

Division 7—Other provisions 698

577M Associate .......................................................................698

577N Control ..........................................................................699

577P Control of a company ....................................................699

577Q When Telstra is in a position to exercise control of

a network.......................................................................699

Part 34—Special provisions relating to conventions and

directions 702 579 Simplified outline..........................................................702

580 ACMA must have regard to conventions ......................702

581 Power to give directions to carriers and service

providers........................................................................703

Part 35—Miscellaneous 705 582 Simplified outline..........................................................705

583 Penalties for certain continuing offences.......................706

584 Procedure relating to certain continuing offences .........707

585 Treatment of partnerships..............................................707

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586 Giving of documents to partnerships.............................708

587 Nomination of address for service of documents ..........709

588 Service of summons or process on foreign

corporations—criminal proceedings..............................709

589 Instruments under this Act may provide for

matters by reference to other instruments......................710

590 Arbitration—acquisition of property .............................712

591 Compensation—constitutional safety net ......................712

592 Act not to affect performance of State or Territory

functions........................................................................713

593 Funding of consumer representation, and of

research, in relation to telecommunications ..................713

594 Regulations....................................................................714

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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 do their best to

protect telecommunications networks and facilities from

unauthorised interference or unauthorised access.

• Carriers and carriage service providers must ensure that it is

possible to execute a warrant issued under the

Telecommunications (Interception and Access) Act 1979.

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• Carriage service providers may be required to supply carriage

services 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.

• 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.

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• The ACMA may investigate certain matters relating to

telecommunications.

• 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

Calling line identification Part 18

Carriers’ powers and immunities Part 24, Schedule 3

Carrier licence conditions Part 3, Schedule 1

Carriers Part 3

Communications, protection of Part 13

Decisions, review of Part 29, Schedule 4

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

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Main Index

Item Topic Provisions

15 Inquiries, public Part 25

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 Part 5

providers, monitoring of

26 Pre-selection Part 17

Service provider rules Part 4, Schedule 2

29 Service providers Part 4

30 Standard agreements for the supply of carriage Part 23

services

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.

adverse security assessment has the meaning given by section 35

of the Australian Security Intelligence Organisation Act 1979.

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AFP Minister means the Minister administering the Australian

Federal Police Act 1979.

aircraft includes a balloon.

ASIO means the Australian Security Intelligence Organisation.

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.

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carry includes transmit, switch and receive.

civil penalty provision means:

(a) a provision of this Act (other than section 317ZB) that is

declared by this Act to be a civil penalty provision; or

(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;

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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.

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;

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(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.

designated radiocommunications facility has the meaning given

by section 31.

Director-General of Security means the Director-General of

Security holding office under the Australian Security Intelligence

Organisation Act 1979.

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.

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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

(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.

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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:

(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.

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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.

Home Affairs Department means the Department administered by

the Home Affairs Minister.

Home Affairs Minister means the Minister administering the

Australian Security Intelligence Organisation Act 1979.

Home Affairs Secretary means the Secretary of the Home Affairs

Department.

hybrid fibre-coaxial network means a telecommunications

network:

(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.

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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.

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

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(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.

nominated carriage service provider means a carriage service

provider covered by a declaration in force under subsection 197(4)

of the Telecommunications (Interception and Access) Act 1979.

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.

notifiable equipment has the same meaning as in the

Telecommunications (Interception and Access) Act 1979.

numbering plan has the meaning given by section 455.

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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.

public mobile telecommunications service has the meaning given

by section 32.

radiocommunication has the same meaning as in the

Radiocommunications Act 1992.

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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.

service provider rules has the meaning given by section 98.

spectrum has the same meaning as in the Radiocommunications

Act 1992.

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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.

Telecommunications Industry Ombudsman has the same meaning

as in the Telecommunications (Consumer Protection and Service

Standards) Act 1999.

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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.

telecommunications service has the same meaning as in the

Telecommunications (Interception and Access) Act 1979.

telecommunications system has the same meaning as in the

Telecommunications (Interception and Access) Act 1979.

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.

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vessel means a vessel or boat of any description, and includes:

(a) an air-cushion vehicle; and

(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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Division 1 Simplified outline

Section 25

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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Section 26

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

Section 30

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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Network units Part 2

Distinct places Division 4

Section 36

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

Section 41

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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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; or

(c) by the Australian Signals Directorate.

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 disqualifiedfailure 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 Home Affairs Minister, 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 Home Affairs Minister 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 Home Affairs Minister 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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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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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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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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Part 3 Carriers

Division 4 Nominated carrier declarations

Section 77

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

(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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Division 4 Nominated carrier declarations

Section 82

(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

(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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Division 5 Register of nominated carrier declarations and carrier licences

Section 84

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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Service providers Part 4

Simplified outline Division 1

Section 85

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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Division 2 Service providers

Section 86

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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Carriage service providers Division 3

Section 87

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);

(v) paragraph 47(8)(b);

(vi) paragraph 48(2)(d);

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Section 87

(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

(d) the conditions (if any) specified in a determination under

subsection (8) are satisfied;

the person is a carriage service provider.

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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.

(4) If:

(a) a carriage service is used to supply designated content

services (other than point-to-multipoint services) to

end-users; and

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(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.

(2) In this section:

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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; or

(c) by the Australian Signals Directorate.

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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(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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(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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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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Section 97

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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Section 98

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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(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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(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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Monitoring of the performance of carriers and carriage service providers Part 5

Section 104

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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(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).

(5B) Paragraph (5A)(a) does not apply in relation to Part 14 to the extent

that Part 14 was amended by the Telecommunications and Other

Legislation Amendment Act 2017.

(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

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(b) if the direction requires the report to be given before a

specified time—before that time.

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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Industry codes and industry standards Part 6

Simplified outline Division 1

Section 106

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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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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Section 117

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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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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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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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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(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

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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(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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(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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(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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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

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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(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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(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

(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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Industry codes and industry standards Part 6

Register of industry codes and industry standards Division 6

Section 136

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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Part 6 Industry codes and industry standards

Division 6A Reimbursement of costs of development or variation of consumer-related

industry codes

Section 136A

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

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

(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

Section 136C

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

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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Division 6A

Section 136C

(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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industry codes

Section 136D

(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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Industry codes and industry standards Part 6

Miscellaneous Division 7

Section 137

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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Division 7 Miscellaneous

Section 139

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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Layer 2 bitstream services Part 7

Section 140

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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Section 141

(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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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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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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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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(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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(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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Division 1 Introduction

Section 142

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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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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Supply of eligible services to be on wholesale basis Division 2

Section 143

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

(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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(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

Section 152

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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Division 1 Introduction

Section 270

Part 13—Protection of communications

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 AFP Minister 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 AFP

Minister 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 AFP Minister 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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Section 276

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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Section 279

Division 3—Exceptions to primary disclosure/use offences

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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Integrated public number database authorisations Division 3A

Section 295A

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

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

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

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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(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

(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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Section 295V

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

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 AFP Minister, by legislative

instrument, for the purposes of this paragraph;

in relation to an emergency or likely emergency is taken, for the

purposes of this Division, to be a disclosure for a purpose

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Section 295Z

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:

(a) information is disclosed to the person as permitted by

subsection 295V(4) or 295W(3); and

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Section 295ZB

(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 AFP

Minister 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

AFP Minister 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:

(a) if the disclosure occurred under subsection 295V(1) or (2)—a

description of the emergency or likely emergency concerned

and its location;

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Section 295ZD

(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 AFP Minister 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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Division 4 Secondary disclosure/use offences

Section 296

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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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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(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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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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Division 4 Secondary disclosure/use offences

Section 302A

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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Relationship with the Privacy Act 1988 Division 4A

Section 303B

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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Division 5 Record-keeping requirements

Section 304

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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(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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Division 5 Record-keeping requirements

Section 306A

(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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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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Section 308

(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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Division 6 Instrument-making powers not limited

Section 310

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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National interest matters Part 14

Simplified outline Division 1

Section 311

Part 14—National interest matters

Division 1—Simplified outline

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.

• Carriers and carriage service providers have a duty to do their

best to protect telecommunications networks and facilities from

unauthorised interference, or unauthorised access, for the purposes

of security. Carriers and certain carriage service providers must

notify changes to telecommunications services or

telecommunications systems that are likely to have a material

adverse effect on their capacity to comply with this duty.

• 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.

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Division 1 Simplified outline

Section 311

• The Home Affairs Minister may give directions to a carrier or a

carriage service provider in certain circumstances where certain

activities may be prejudicial to security.

• The Home Affairs Secretary may obtain information from

carriers, carriage service providers and carriage service

intermediaries if the information is relevant to assessing

compliance with the duty of those persons to protect

telecommunications networks and facilities from unauthorised

interference or unauthorised access.

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National interest matters Part 14

Obligations of ACMA and carriers and carriage service providers Division 2

Section 312

Division 2—Obligations of ACMA and carriers and

carriage service providers

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.

(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

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(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.

(1A) For the purposes of security (within the meaning of the Australian

Security Intelligence Organisation Act 1979), 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 protect

telecommunications networks and facilities owned, operated or

used by the carrier or provider from unauthorised interference or

unauthorised access to ensure:

(c) the confidentiality of communications carried on, and of

information contained on, telecommunications networks or

facilities; and

(d) the availability and integrity of telecommunications networks

and facilities.

Note 1: Security, among other things, covers the protection of, and of the

people of, the Commonwealth and the States and Territories from

espionage, sabotage, attacks on Australia’s defence system and acts of

foreign interference.

Note 2: A person who uses a carriage service to supply various kinds of

broadcasting services is not a carriage service provider merely

because of that use (and therefore not subject to the duty imposed by

this subsection): see subsections 87(1) and (2) and 93(1) and (2).

(1B) Without limiting subsection (1A), the duty imposed by that

subsection includes the requirement for the carrier or carriage

service provider to maintain competent supervision of, and

effective control over, telecommunications networks and facilities

owned or operated by the carrier or provider.

(2) A carriage service intermediary must do the intermediary’s best to

prevent telecommunications networks and facilities from being

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used in, or in relation to, the commission of offences against the

laws of the Commonwealth or of the States and Territories.

(2A) For the purposes of security (within the meaning of the Australian

Security Intelligence Organisation Act 1979), a carriage service

intermediary must do the intermediary’s best to protect

telecommunications networks and facilities used to supply the

carriage service referred to in subsection 87(5) from unauthorised

interference or unauthorised access to ensure:

(a) the confidentiality of communications carried on, and of

information contained on, telecommunications networks or

facilities; and

(b) the availability and integrity of telecommunications networks

and facilities.

Note: Security, among other things, covers the protection of, and of the

people of, the Commonwealth and the States and Territories from

espionage, sabotage, attacks on Australia’s defence system and acts of

foreign interference.

(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

(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;

(cb) assisting the investigation and prosecution of:

(i) crimes within the jurisdiction of the ICC (within the

meaning of the International Criminal Court Act 2002);

and

(ii) Tribunal offences (within the meaning of the

International War Crimes Tribunals Act 1995);

(d) protecting the public revenue;

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(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;

(cb) assisting the investigation and prosecution of:

(i) crimes within the jurisdiction of the ICC (within the

meaning of the International Criminal Court Act 2002);

and

(ii) Tribunal offences (within the meaning of the

International War Crimes Tribunals Act 1995);

(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), (1A),

(2), (2A), (3) or (4); or

(b) in compliance with a direction that the ACMA gives in good

faith in performance of its duties under section 312; or

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(c) in compliance with a direction given under

subsection 315A(1) or 315B(2).

(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

(caa) giving effect to authorisations under section 31A of that Act;

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.

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Division 2 Obligations of ACMA and carriers and carriage service providers

Section 314

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).

(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

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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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Division 3 Notification of changes to telecommunications services or

telecommunications systems relating to obligation under subsection 313(1A) or (2A)

Section 314A

Division 3—Notification of changes to telecommunications

services or telecommunications systems relating

to obligation under subsection 313(1A) or (2A)

Subdivision A—Individual notifications

314A Individual notifications

(1) This section applies if, at any time, a carrier or a nominated

carriage service provider becomes aware that the implementation

by the carrier or provider of a change that is proposed to a

telecommunications service or a telecommunications system is

likely to have a material adverse effect on the capacity of the

carrier or provider to comply with its obligations under

subsection 313(1A) or (2A).

Kinds of changes

(2) A change to a telecommunications service or a telecommunications

system includes (but is not limited to) the following:

(a) the carrier or carriage service provider providing one or more

new telecommunication services;

(b) the carrier or carriage service provider changing the location

of notifiable equipment (including moving equipment outside

Australia);

(c) the carrier or carriage service provider procuring notifiable

equipment (including procuring equipment that is located

outside Australia);

(d) the carrier or carriage service provider entering into

outsourcing arrangements:

(i) to have all or part of the telecommunication services

provided for the carrier or provider; or

(ii) to have all or part of the provision of telecommunication

services managed for the carrier or provider; or

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(iii) to have all or some information to which section 276

applies in relation to the carrier or provider, managed

for the carrier or provider;

(e) the carrier or carriage service provider entering into

arrangements to have all or some information to which

section 276 applies in relation to the carrier or provider

accessed by persons outside Australia;

(f) the carrier or carriage service provider entering into

arrangements to have all or some information or documents

to which subsection 187A(1) of the Telecommunications

(Interception and Access) Act 1979 applies in relation to the

carrier or provider kept outside Australia.

(2A) Subsection (1) does not apply to changes to a telecommunications

service or a telecommunications system that are changes

determined in an instrument under subsection (2B).

(2B) The Communications Access Co-ordinator may, by legislative

instrument, make a determination for the purposes of

subsection (2A).

Note: For variation and revocation, see subsection 33(3) of the Acts

Interpretation Act 1901.

Notification of change

(3) The carrier or provider must notify the Communications Access

Co-ordinator, in writing, of its intention to implement the proposed

change. The notification must include a description of the proposed

change.

Exemptions

(4) The Communications Access Co-ordinator may, by notice in

writing given to a carrier or a nominated carriage service provider,

exempt the carrier or provider from the operation of this section.

Note: For revocation, see subsection 33(3) of the Acts Interpretation Act

1901.

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Division 3 Notification of changes to telecommunications services or

telecommunications systems relating to obligation under subsection 313(1A) or (2A)

Section 314A

(5) The Communications Access Co-ordinator may, by notice in

writing given to a carrier or a nominated carriage service provider,

exempt the carrier or provider from the operation of this section in

relation to changes specified in the notice.

Note: For variation and revocation, see subsection 33(3) of the Acts

Interpretation Act 1901.

(5A) The Communications Access Co-ordinator may grant an

exemption under subsection (4) or (5) on his or her own initiative

or on written application by a carrier or a nominated carriage

service provider.

(5B) If a carrier or a nominated carriage service provider makes such an

application, the Communications Access Co-ordinator must, within

60 days of receiving the application, either:

(a) give the carrier or provider an exemption under

subsection (4) or (5); or

(b) give the carrier or provider a notice in writing refusing the

application, including setting out the reasons for the refusal.

(5C) Applications may be made to the Administrative Appeals Tribunal

for review of a decision of the Communications Access

Co-ordinator under paragraph (5B)(b) to refuse an application.

(6) An exemption under subsection (4) or (5) has effect accordingly.

(6A) An exemption under subsection (4) or (5) may specify the period

during which it is to remain in force. The exemption remains in

force for that period unless it is revoked earlier or it ceases to be in

force as mentioned in subsection (6B).

(6B) An exemption under subsection (4) or (5) may be given subject to

conditions specified in the exemption. The exemption ceases to be

in force if the carrier or nominated carriage service provider

breaches a condition.

(7) An exemption under subsection (4) or (5) is not a legislative

instrument.

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Section 314B

314B Assessment of proposed change

Further information

(1) If:

(a) under subsection 314A(3), a carrier or a nominated carriage

service provider notifies the Communications Access

Co-ordinator of a proposed change; and

(b) the Co-ordinator considers that further information, in

relation to the proposed change, is required for the

Co-ordinator to assess whether there is a risk of unauthorised

interference with, or unauthorised access to,

telecommunications networks or facilities that would be

prejudicial to security;

the Co-ordinator may, by notice in writing given to the carrier or

provider, set out the further information the Co-ordinator requires.

(2) A notice under subsection (1) must be given to the carrier or

provider within 30 days of the notification of the proposed change

to the Communications Access Co-ordinator.

Assessment of proposed change

(3) If:

(a) the Communications Access Co-ordinator considers a

proposed change notified under subsection 314A(3)

(including a proposed change where further information is

provided as mentioned in this section); and

(b) in relation to the proposed change, the Co-ordinator is

satisfied that there is a risk of unauthorised interference with,

or unauthorised access to, telecommunications networks or

facilities that would be prejudicial to security;

the Co-ordinator must give a written notice to the carrier or

provider:

(c) advising the carrier or provider of that risk; and

(d) setting out the duty imposed by subsection 313(1A) or (2A);

and

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Division 3 Notification of changes to telecommunications services or

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Section 314B

(e) setting out the consequences for the carrier or provider for

not complying with that duty.

(4) A notice under subsection (3) may also set out the measures the

Communications Access Co-ordinator considers the carrier or

provider could adopt to eliminate or reduce the risk referred to in

subsection (3).

(5) If:

(a) the Communications Access Co-ordinator considers a

proposed change notified under subsection 314A(3)

(including a proposed change where further information is

provided as mentioned in this section); and

(b) in relation to the proposed change, the Co-ordinator is

satisfied that there is not a risk of unauthorised interference

with, or unauthorised access to, telecommunications

networks or facilities that would be prejudicial to security;

the Co-ordinator must give a written notice to the carrier or

provider to that effect.

(6) In response to a proposed change notified to the Communications

Access Co-ordinator under subsection 314A(3), a notice must be

given to the carrier or provider:

(a) within 30 days of the notification; or

(b) if under subsection (1) the Communications Access

Co-ordinator sought further information from the carrier or

provider—as soon as practicable and no later than 30 days

after the carrier or provider gave that further information.

The notice must be a notice under subsection (3) or (5).

Definitions

(7) In this section:

security has the same meaning as in the Australian Security

Intelligence Organisation Act 1979.

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Notification of changes to telecommunications services or telecommunications systems

relating to obligation under subsection 313(1A) or (2A) Division 3

Section 314C

Subdivision B—Security capability plans

314C Security capability plans

(1) A carrier or a nominated carriage service provider may give the

Communications Access Co-ordinator a written instrument (a

security capability plan) under this section.

(2) A security capability plan may set out one or more changes to a

telecommunications service or a telecommunications system the

carrier or provider proposes to implement in the future that are

likely to have a material adverse effect on the capacity of the

carrier or provider to comply with its obligations under

subsection 313(1A) or (2A).

(3) A security capability plan may set out the time each of the changes

is proposed to be implemented.

Kinds of changes

(4) For the purposes of subsection (2), a change to a

telecommunications service or a telecommunications system

includes (but is not limited to):

(a) changes referred to in subsection 314A(2); and

(b) changes determined in an instrument under subsection (5) of

this section.

(5) The Communications Access Co-ordinator may, by legislative

instrument, determine changes for the purposes of

paragraph (4)(b).

Other matters plan may include

(6) A security capability plan may set out the carrier’s or provider’s

practices, policies or strategies to comply with its obligations under

subsection 313(1A) or (2A).

(7) A security capability plan may set out the measures the carrier or

provider is implementing, or proposing to implement, to mitigate

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Section 314D

the risk of unauthorised interference with, or unauthorised access

to, telecommunications networks or facilities.

One instrument each 12-month period

(8) A carrier or a nominated carriage service provider cannot give

more than one instrument under this section in any 12-month

period.

314D Assessment of security capability plan

Further information

(1) If:

(a) a carrier or a nominated carriage service provider gives the

Communications Access Co-ordinator a security capability

plan setting out one or more proposed changes mentioned in

subsection 314C(2); and

(b) the Co-ordinator considers that further information, in

relation to a particular proposed change, is required for the

Co-ordinator to assess whether there is a risk of unauthorised

interference with, or unauthorised access to,

telecommunications networks or facilities that would be

prejudicial to security;

the Co-ordinator may, by notice in writing given to the carrier or

provider, set out the further information the Co-ordinator requires.

(2) A notice under subsection (1) must be given to the carrier or

provider within 60 days of the plan being given to the

Communications Access Co-ordinator.

Assessment of proposed change

(3) If:

(a) the Communications Access Co-ordinator considers a

particular proposed change mentioned in subsection 314C(2)

that is set out in a security capability plan (including a

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proposed change where further information is provided as

mentioned in this section); and

(b) in relation to the proposed change, the Co-ordinator is

satisfied that there is a risk of unauthorised interference with,

or unauthorised access to, telecommunications networks or

facilities that would be prejudicial to security;

the Co-ordinator must give a written notice to the carrier or

provider:

(c) advising the carrier or provider of that risk; and

(d) setting out the duty imposed by subsection 313(1A) or (2A);

and

(e) setting out the consequences for the carrier or provider for

not complying with that duty.

(4) A notice under subsection (3) may also set out the measures the

Communications Access Co-ordinator considers the carrier or

provider could adopt to eliminate or reduce the risk referred to in

subsection (3).

(5) If:

(a) the Communications Access Co-ordinator considers a

particular proposed change mentioned in subsection 314C(2)

that is set out in a security capability plan (including a

proposed change where further information is provided as

mentioned in this section); and

(b) in relation to the proposed change, the Co-ordinator is

satisfied that there is not a risk of unauthorised interference

with, or unauthorised access to, telecommunications

networks or facilities that would be prejudicial to security;

the Co-ordinator must give a written notice to the carrier or

provider to that effect.

(6) In response to a proposed change mentioned in subsection 314C(2)

that is set out in a security capability plan, a notice must be given

to the carrier or provider:

(a) within 60 days of the plan being given to the

Communications Access Co-ordinator; or

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Division 3 Notification of changes to telecommunications services or

telecommunications systems relating to obligation under subsection 313(1A) or (2A)

Section 314E

(b) if under subsection (1) the Communications Access

Co-ordinator sought further information from the carrier or

provider—as soon as practicable and no later than 60 days

after the carrier or provider gave that further information.

The notice must be a notice under subsection (3) or (5) and may

relate to one or more such changes.

Definitions

(7) In this section:

security has the same meaning as in the Australian Security

Intelligence Organisation Act 1979.

314E Relationship with section 314A

Dual notifications not required

(1) If, under section 314C, a carrier or a nominated carriage service

provider has given a security capability plan setting out one or

more proposed changes mentioned in subsection 314C(2), the

carrier or provider is not required to notify those proposed changes

under section 314A.

Certain modifications to changes are changes in their own right

(2) If:

(a) under section 314C, a carrier or a nominated carriage service

provider has given a security capability plan setting out one

or more proposed changes mentioned in subsection 314C(2);

and

(b) the carrier or provider becomes aware that the

implementation by the carrier or provider of any modification

to such a proposed change is likely to have a material adverse

effect on the capacity of the carrier or provider to comply

with its obligations under subsection 313(1A) or (2A);

then section 314A applies in relation to the modification as if the

modification were a change in its own right.

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Carriage service provider may suspend supply of carriage service in an emergency

Division 4

Section 315

Division 4—Carriage service provider may suspend supply

of carriage service in an emergency

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.

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Division 4 Carriage service provider may suspend supply of carriage service in an

emergency

Section 315

(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.

(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.

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Directions by Home Affairs Minister Division 5

Section 315A

Division 5—Directions by Home Affairs Minister

315A Direction if use or supply of carriage services prejudicial to

security

(1) If:

(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 Home Affairs Minister, 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 Home Affairs Minister may give the carrier or carriage service

provider a written direction not to use or supply, or to cease using

or supplying, the carriage service or the carriage services.

(2) A direction under subsection (1) 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.

Direction to be given after adverse security assessment

(3) The Home Affairs Minister must not give a carrier or carriage

service provider a direction under subsection (1) unless an adverse

security assessment in respect of the carrier or carriage service

provider is given to the Home Affairs Minister in connection with

this section.

Copy of direction to be given to ACMA

(4) The Home Affairs Minister must give the ACMA a copy of any

direction under subsection (1).

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Division 5 Directions by Home Affairs Minister

Section 315B

Compliance with direction

(5) A person must comply with a direction given to the person under

subsection (1).

Definitions

(6) In this section:

security has the same meaning as in the Australian Security

Intelligence Organisation Act 1979.

315B Direction if risk of unauthorised interference or access

involving telecommunications networks or facilities

(1) This section applies if, in connection with:

(a) the operation by a carrier or carriage service provider of

telecommunications networks or facilities; or

(b) the supply by a carrier or carriage service provider of a

carriage service; or

(c) the supply by a carriage service provider of a carriage

service, being a supply arranged by a carriage service

intermediary;

the Home Affairs Minister is satisfied that there is a risk of

unauthorised interference with, or unauthorised access to,

telecommunications networks or facilities that would be prejudicial

to security.

(2) The Home Affairs Minister may give a carrier, carriage service

provider or carriage service intermediary a written direction

requiring the carrier, provider or intermediary to do, or to refrain

from doing, a specified act or thing within the period specified in

the direction.

(3) A direction under subsection (2) may be given only if the Home

Affairs Minister is satisfied that requiring the carrier, carriage

service provider or carriage service intermediary to do, or to refrain

from doing, the specified act or thing is reasonably necessary for

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Section 315B

purposes relating to eliminating or reducing the risk referred to in

subsection (1).

Direction to be given after adverse security assessment

(4) The Home Affairs Minister must not give a carrier, carriage service

provider or carriage service intermediary a direction under

subsection (2) unless an adverse security assessment in respect of

the carrier, provider or intermediary is given to the Home Affairs

Minister in connection with this section.

Direction to be given after negotiations in good faith

(5) The Home Affairs Minister must not give a carrier, carriage service

provider or carriage service intermediary a direction under

subsection (2) unless the Home Affairs Minister is satisfied that

reasonable steps have been taken to negotiate in good faith with the

carrier, provider or intermediary to achieve an outcome of

eliminating or reducing the risk referred to in subsection (1).

Matters to which regard must be had before giving direction

(6) Before giving a carrier, carriage service provider or carriage

service intermediary a direction under subsection (2), the Home

Affairs Minister must have regard to the following matters:

(a) the adverse security assessment mentioned in subsection (4);

(b) the costs, in complying with any direction, that would be

likely to be incurred by the carrier, provider or intermediary;

(c) the potential consequences that any direction may have on

competition in the telecommunications industry;

(d) the potential consequences that any direction may have on

customers of the carrier, provider or intermediary.

The Home Affairs Minister must give the greatest weight to the

matter mentioned in paragraph (a).

(7) Subsection (6) does not limit the matters to which regard may be

had.

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Division 5 Directions by Home Affairs Minister

Section 315B

Consultation

(8) Before giving a carrier, carriage service provider or carriage

service intermediary a direction under subsection (2), the Home

Affairs Minister must:

(a) consult the Minister administering this Act; and

(b) do the following:

(i) by written notice, given to the carrier, provider or

intermediary, set out the proposed direction;

(ii) in that notice, invite the carrier, provider or intermediary

to make written representations to the Home Affairs

Minister in relation to the proposed direction within the

period specified in the notice;

(iii) have regard to any such representations made within

that period.

(9) For the purposes of subparagraph (8)(b)(ii), the period to be

specified in the notice must be at least 28 days after the notice is

given. However, the Home Affairs Minister may specify a shorter

period if the Home Affairs Minister considers it necessary to do so

because of urgent circumstances.

(10) Subsection (8) does not limit the persons with whom the Home

Affairs Minister may consult.

Copy of direction to be given to ACMA

(11) The Home Affairs Minister must give the ACMA a copy of any

direction under subsection (2).

Compliance with direction

(12) A person must comply with a direction given to the person under

subsection (2).

Definitions

(13) In this section:

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Section 315B

security has the same meaning as in the Australian Security

Intelligence Organisation Act 1979.

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Division 6 Home Affairs Secretary’s information-gathering powers

Section 315C

Division 6—Home Affairs Secretary’s

information-gathering powers

315C Home Affairs Secretary may obtain information and

documents from carriers and carriage service providers

(1) This section applies to a carrier, carriage service provider or

carriage service intermediary if the Home Affairs Secretary has

reason to believe that the carrier, provider or intermediary has

information or a document that is relevant to assessing compliance

with the duty imposed by subsection 313(1A) or (2A).

(2) The Home Affairs Secretary may, by written notice given to the

carrier, provider or intermediary, require the carrier, provider or

intermediary:

(a) to give to that Secretary, within the period and in the manner

and form specified in the notice, any such information; or

(b) to produce to that Secretary, 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 that

Secretary, within the period and in the manner specified in

the notice, those copies.

(3) The carrier, provider or intermediary must comply with a

requirement under subsection (2).

Matters to which regard must be had before giving notice

(4) Before giving a carrier, carriage service provider or carriage

service intermediary a notice under subsection (2), the Home

Affairs Secretary must have regard to the costs, in complying with

any requirement in the notice, that would be likely to be incurred

by the carrier, provider or intermediary.

(5) Subsection (4) does not limit the matters to which regard may be

had.

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Section 315D

Content of notice

(6) 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) sections 137.1 and 137.2 of the Criminal Code (false or

misleading information or documents).

(7) A notice given to a carriage service provider or carriage service

intermediary 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) sections 137.1 and 137.2 of the Criminal Code (false or

misleading information or documents).

Copying documents—reasonable compensation

(8) A carrier, carriage service provider or carriage service intermediary

is entitled to be paid by the Commonwealth reasonable

compensation for complying with a requirement covered by

paragraph (2)(c).

315D Self-incrimination

(1) A person is not excused from giving information or producing a

document or a copy of a document under section 315C on the

ground that the information or the production of the document or

copy might tend to incriminate the person or expose the person to a

penalty.

(2) However, in the case of an individual:

(a) the information given or the document or copy produced; or

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Section 315E

(b) giving the information or producing the document or copy; or

(c) any information, document or thing obtained as a direct or

indirect consequence of giving the information or producing

the document or copy;

is not admissible in evidence against the individual:

(d) in criminal proceedings other than proceedings for an offence

against section 137.1 or 137.2 of the Criminal Code that

relates to this Division; or

(e) in civil proceedings other than proceedings under section 570

for recovery of a penalty in relation to a contravention of

subsection 315C(3).

315E Copies of documents

(1) The Home Affairs Secretary may inspect a document or copy

produced under section 315C and may make and retain copies of

such a document.

(2) The Home Affairs Secretary may retain possession of a copy of a

document produced in accordance with a requirement covered by

paragraph 315C(2)(c).

315F Retention of documents

(1) The Home Affairs Secretary may take, and retain for as long as is

necessary, possession of a document produced under section 315C.

(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 Home Affairs Secretary 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 Home Affairs Secretary must,

at such times and places as he or she thinks appropriate, permit the

person otherwise entitled to possession of the document, or a

person authorised by that person, to inspect and make copies of the

document.

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Section 315G

315G Delegation by Home Affairs Secretary

(1) The Home Affairs Secretary may, in writing, delegate any or all of

his or her powers and functions under sections 315C, 315E and

315F to the Director-General of Security.

(2) In exercising a power or performing a function under a delegation

under subsection (1), the Director-General of Security must

comply with any directions of the Home Affairs Secretary.

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Division 7 Information sharing and confidentiality

Section 315H

Division 7—Information sharing and confidentiality

315H Information sharing and confidentiality

(1) A person who obtains information or a document under

section 314A, 314B, 314C, 314D, 315C or this subsection may

disclose any of that information, or provide the document (or a

copy of it), to another person for either or both of the following

purposes:

(a) the assessment of the risk of unauthorised interference with,

or unauthorised access to, telecommunications networks or

facilities and, if there is such a risk, the assessment of the risk

to security;

(b) the purposes of security.

Note: The Privacy Act 1988 applies to the disclosure of personal

information.

Limitation

(2) However, if a person obtains information or a document under

section 314A, 314B, 314C, 314D, 315C or subsection (1) of this

section, the person must not disclose any of that information, or

provide the document (or a copy of it), to a person who is not a

Commonwealth officer, to the extent that the information is

identifying information or that the document (or a copy of it)

contains identifying information.

Confidentiality

(3) Subject to this section, a person who obtains information or a

document under section 314A, 314B, 314C, 314D, 315C or this

section must treat the information or document as confidential.

Definitions

(4) In this section:

Commonwealth officer means:

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(a) a person who is in the employment of the Commonwealth,

other than a person who is engaged outside Australia to

perform duties outside Australia as an employee; or

(b) a person who holds or performs the duties of any office or

position established by or under a law of the Commonwealth;

or

(c) a member of the Australian Defence Force; or

(d) the Commissioner of the Australian Federal Police, a Deputy

Commissioner of the Australian Federal Police, an AFP

employee, a special member or a special protective service

officer (all within the meaning of the Australian Federal

Police Act 1979).

Note: Paragraph (a) of this definition covers, for example, persons employed

by the Director-General of Security, on behalf of the Commonwealth,

under subsection 84(1) of the Australian Security Intelligence

Organisation Act 1979.

identifying information means information that identifies the

carrier, carriage service provider or carriage service intermediary

concerned.

security has the same meaning as in the Australian Security

Intelligence Organisation Act 1979.

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Division 8 Annual report

Section 315J

Division 8—Annual report

315J Annual report

(1) The Home Affairs Secretary must report each financial year to the

Home Affairs Minister on the operation of this Part, to the extent

that this Part was amended by the Telecommunications and Other

Legislation Amendment Act 2017.

(1A) Without limiting subsection (1), a report under that subsection for a

financial year must include the following information for that year:

(a) the number of directions the Home Affairs Minister gave

under subsection 315A(1);

(b) the number of directions the Home Affairs Minister gave

under subsection 315B(2);

(c) the following:

(i) the number of notifications the Communications Access

Co-ordinator received under subsection 314A(3);

(ii) in response to such notifications, the average number of

days taken by the Co-ordinator to give a notice under

subsection 314B(3) or (5);

(iii) in response to such notifications, the percentage of

notices given within the period under

subsection 314B(6) by the Co-ordinator under

subsection 314B(3) or (5);

(d) the following:

(i) the number of applications the Communications Access

Co-ordinator received under subsection 314A(5A);

(ii) in response to such applications, the average number of

days taken by the Co-ordinator to give a notice under

subsection 314A(4) or (5) or paragraph 314A(5B)(b);

(iii) in response to such applications, the percentage of

notices given within the period under

subsection 314A(5B) by the Co-ordinator under

subsection 314A(4) or (5) or paragraph 314A(5B)(b);

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(e) the following:

(i) the number of security capability plans the

Communications Access Co-ordinator received under

subsection 314C(1);

(ii) in response to such plans, the average number of days

taken by the Co-ordinator to give a notice under

subsection 314D(3) or (5);

(iii) in response to such plans, the percentage of notices

given within the period under subsection 314D(6) by the

Co-ordinator under subsection 314D(3) or (5);

(f) the number of notices the Home Affairs Secretary gave under

subsection 315C(2);

(g) details of the information sharing arrangements between the

Commonwealth and carriers and carriage service providers in

relation to this Part, to the extent that this Part was amended

by the Telecommunications and Other Legislation

Amendment Act 2017;

(h) a summary of any feedback or complaints made in relation to

this Part, to the extent that this Part was amended by that Act;

(i) trends or issues in relation to the matters covered by

paragraphs (a) to (h).

(2) The Home Affairs Secretary must give a report under

subsection (1) to the Home Affairs Minister as soon as practicable

after the end of the financial year concerned.

(3) The Home Affairs Minister must cause a copy of a report under

subsection (1) to be laid before each House of the Parliament

within 15 sitting days of that House after receiving the report.

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Division 8A Review by Parliamentary Joint Committee on Intelligence and Security

Section 315K

Division 8A—Review by Parliamentary Joint Committee

on Intelligence and Security

315K Review by Parliamentary Joint Committee on Intelligence and

Security

(1) The Parliamentary Joint Committee on Intelligence and Security

must review the operation of this Part, to the extent that this Part

was amended by the Telecommunications and Other Legislation

Amendment Act 2017.

(2) The review:

(a) must start on or before the second anniversary of the

commencement of this section; and

(b) must be concluded on or before the third anniversary of the

commencement of this section.

(3) The Committee must give the Home Affairs Minister a written

report of the review.

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Generality of Part not limited Division 9

Section 316

Division 9—Generality of Part not limited

316 Generality of Part not limited

Nothing in this Part limits the generality of anything else in it.

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Part 15 Industry assistance

Division 1 Introduction

Section 317A

Part 15—Industry assistance

Division 1—Introduction

317A Simplified outline of this Part

• The Director-General of Security, the Director-General of the

Australian Secret Intelligence Service, the Director-General of

the Australian Signals Directorate or the chief officer of an

interception agency may give a technical assistance request to

a designated communications provider.

• A technical assistance request may ask the provider to do acts

or things on a voluntary basis that are directed towards

ensuring that the provider is capable of giving certain types of

help to ASIO, the Australian Secret Intelligence Service, the

Australian Signals Directorate or an interception agency in

relation to:

(a) in the case of ASIO—safeguarding national security; or

(b) in the case of the Australian Secret Intelligence

Service—the interests of Australia’s national security,

the interests of Australia’s foreign relations or the

interests of Australia’s national economic well-being; or

(c) in the case of the Australian Signals Directorate—

providing material, advice and other assistance on

matters relating to the security and integrity of

information that is processed, stored or communicated

by electronic or similar means; or

(d) in the case of an interception agency—enforcing the

criminal law, so far as it relates to serious Australian

offences; or

(e) in the case of an interception agency—assisting the

enforcement of the criminal laws in force in a foreign

country, so far as those laws relate to serious foreign

offences.

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• A technical assistance request may ask the provider to give

help to ASIO, the Australian Secret Intelligence Service, the

Australian Signals Directorate or an interception agency on a

voluntary basis in relation to:

(a) in the case of ASIO—safeguarding national security; or

(b) in the case of the Australian Secret Intelligence

Service—the interests of Australia’s national security,

the interests of Australia’s foreign relations or the

interests of Australia’s national economic well-being; or

(c) in the case of the Australian Signals Directorate—

providing material, advice and other assistance on

matters relating to the security and integrity of

information that is processed, stored or communicated

by electronic or similar means; or

(d) in the case of an interception agency—enforcing the

criminal law, so far as it relates to serious Australian

offences; or

(e) in the case of an interception agency—assisting the

enforcement of the criminal laws in force in a foreign

country, so far as those laws relate to serious foreign

offences.

• The Director-General of Security or the chief officer of an

interception agency may give a designated communications

provider a notice, to be known as a technical assistance notice,

that requires the provider to do acts or things by way of giving

certain types of help to ASIO or the agency in relation to:

(a) enforcing the criminal law, so far as it relates to serious

Australian offences; or

(b) assisting the enforcement of the criminal laws in force in

a foreign country, so far as those laws relate to serious

foreign offences; or

(c) safeguarding national security.

• The Attorney-General may give a designated communications

provider a notice, to be known as a technical capability notice.

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• A technical capability notice may require the provider to do

acts or things directed towards ensuring that the provider is

capable of giving certain types of help to ASIO or an

interception agency in relation to:

(a) enforcing the criminal law, so far as it relates to serious

Australian offences; or

(b) assisting the enforcement of the criminal laws in force in

a foreign country, so far as those laws relate to serious

foreign offences; or

(c) safeguarding national security.

• A technical capability notice may require the provider to do

acts or things by way of giving certain types of help to ASIO

or an interception agency in relation to:

(a) enforcing the criminal law, so far as it relates to serious

Australian offences; or

(b) assisting the enforcement of the criminal laws in force in

a foreign country, so far as those laws relate to serious

foreign offences; or

(c) safeguarding national security.

317B Definitions

In this Part:

access, when used in relation to material, includes:

(a) access that is subject to a pre-condition (for example, the use

of a password); and

(b) access by way of push technology; and

(c) access by way of a standing request.

ASIO affiliate has the same meaning as in the Australian Security

Intelligence Organisation Act 1979.

ASIO employee has the same meaning as in the Australian Security

Intelligence Organisation Act 1979.

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chief officer of an interception agency has the meaning given by

section 317ZM.

contracted service provider, in relation to a designated

communications provider, means a person who performs services

for or on behalf of the provider, but does not include a person who

performs such services in the capacity of an employee of the

provider.

designated communications provider has the meaning given by

section 317C.

electronic protection includes:

(a) authentication; and

(b) encryption.

electronic service has the meaning given by section 317D.

eligible activities of a designated communications provider has the

meaning given by section 317C.

entrusted ASD person means a person who:

(a) is a staff member of the Australian Signals Directorate; or

(b) has entered into a contract, agreement or arrangement with

the Australian Signals Directorate; or

(c) is an employee or agent of a person who has entered into a

contract, agreement or arrangement with the Australian

Signals Directorate.

entrusted ASIO person means an entrusted person (within the

meaning of the Australian Security Intelligence Organisation Act

1979).

entrusted ASIS person means a person who:

(a) is a staff member or agent of the Australian Secret

Intelligence Service; or

(b) has entered into a contract, agreement or arrangement with

the Australian Secret Intelligence Service; or

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(c) is an employee or agent of a person who has entered into a

contract, agreement or arrangement with the Australian

Secret Intelligence Service.

giving help:

(a) when used in relation to ASIO—includes giving help to an

ASIO employee or an ASIO affiliate; or

(b) when used in relation to the Australian Secret Intelligence

Service—includes giving help to a staff member of the

Australian Secret Intelligence Service; or

(c) when used in relation to the Australian Signals Directorate—

includes giving help to a staff member of the Australian

Signals Directorate; or

(d) when used in relation to an interception agency—includes

giving help to an officer of the agency.

Home Affairs Minister means the Minister administering the

Telecommunications (Interception and Access) Act 1979.

IGIS official has the same meaning as in the Australian Security

Intelligence Organisation Act 1979.

interception agency means:

(a) the Australian Federal Police; or

(b) the Australian Crime Commission; or

(c) the Police Force of a State or the Northern Territory.

listed act or thing has the meaning given by section 317E.

material means material:

(a) whether in the form of text; or

(b) whether in the form of data; or

(c) whether in the form of speech, music or other sounds; or

(d) whether in the form of visual images (moving or otherwise);

or

(e) whether in any other form; or

(f) whether in any combination of forms.

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officer of an interception agency has the meaning given by

section 317ZM.

Ombudsman official means:

(a) the Commonwealth Ombudsman; or

(b) a Deputy Commonwealth Ombudsman; or

(c) a person who is a member of the staff referred to in

subsection 31(1) of the Ombudsman Act 1976.

serious Australian offence means an offence against a law of the

Commonwealth, a State or a Territory that is punishable by a

maximum term of imprisonment of 3 years or more or for life.

serious foreign offence means an offence against a law in force in

a foreign country that is punishable by a maximum term of

imprisonment of 3 years or more or for life.

staff member, when used in relation to the Australian Secret

Intelligence Service or the Australian Signals Directorate, has the

same meaning as in the Intelligence Services Act 2001.

State or Territory inspecting authority, in relation to an

interception agency of a State or Territory, means the authority

that, under the law of the State or Territory concerned, has the

function of making inspections of a similar kind to those provided

for in section 55 of the Surveillance Devices Act 2004 when the

interception agency is exercising powers under the law of that State

or Territory that is of a similar nature to that Act.

supply:

(a) when used in relation to:

(i) a facility; or

(ii) customer equipment; or

(iii) a component;

includes supply (including re-supply) by way of sale,

exchange, lease, hire or hire-purchase; and

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(b) when used in relation to software—includes provide, grant or

confer rights, privileges or benefits.

systemic vulnerability means a vulnerability that affects a whole

class of technology, but does not include a vulnerability that is

selectively introduced to one or more target technologies that are

connected with a particular person. For this purpose, it is

immaterial whether the person can be identified.

systemic weakness means a weakness that affects a whole class of

technology, but does not include a weakness that is selectively

introduced to one or more target technologies that are connected

with a particular person. For this purpose, it is immaterial whether

the person can be identified.

target technology:

(a) for the purposes of this Part, a particular carriage service, so

far as the service is used, or is likely to be used, (whether

directly or indirectly) by a particular person, is a target

technology that is connected with that person; and

(b) for the purposes of this Part, a particular electronic service,

so far as the service is used, or is likely to be used, (whether

directly or indirectly) by a particular person, is a target

technology that is connected with that person; and

(c) for the purposes of this Part, particular software installed, or

to be installed, on:

(i) a particular computer; or

(ii) a particular item of equipment;

used, or likely to be used, (whether directly or indirectly) by

a particular person is a target technology that is connected

with that person; and

(d) for the purposes of this Part, a particular update of software

that has been installed on:

(i) a particular computer; or

(ii) a particular item of equipment;

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used, or likely to be used, (whether directly or indirectly) by

a particular person is a target technology that is connected

with that person; and

(e) for the purposes of this Part, a particular item of customer

equipment used, or likely to be used, (whether directly or

indirectly) by a particular person is a target technology that

is connected with that person; and

(f) for the purposes of this Part, a particular data processing

device used, or likely to be used, (whether directly or

indirectly) by a particular person is a target technology that

is connected with that person.

For the purposes of paragraphs (a), (b), (c), (d), (e) and (f), it is

immaterial whether the person can be identified.

technical assistance notice means a notice given under

section 317L.

technical assistance notice information means:

(a) information about any of the following:

(i) the giving of a technical assistance notice;

(ia) consultation relating to the giving of a technical

assistance notice;

(ii) the existence or non-existence of a technical assistance

notice;

(iii) the variation of a technical assistance notice;

(iv) the revocation of a technical assistance notice;

(v) the requirements imposed by a technical assistance

notice;

(vi) any act or thing done in compliance with a technical

assistance notice; or

(b) any other information about a technical assistance notice.

technical assistance request means a request under

paragraph 317G(1)(a).

technical assistance request information means:

(a) information about any of the following:

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(i) the giving of a technical assistance request;

(ii) the existence or non-existence of a technical assistance

request;

(iii) the acts or things covered by a technical assistance

request;

(iv) any act or thing done in accordance with a technical

assistance request; or

(b) any other information about a technical assistance request.

technical capability notice means a notice given under

section 317T.

technical capability notice information means:

(a) information about any of the following:

(i) the giving of a technical capability notice;

(ii) consultation relating to the giving of a technical

capability notice;

(iii) the existence or non-existence of a technical capability

notice;

(iv) the variation of a technical capability notice;

(iva) consultation relating to the variation of a technical

capability notice;

(v) the revocation of a technical capability notice;

(vi) the requirements imposed by a technical capability

notice;

(vii) any act or thing done in compliance with a technical

capability notice; or

(b) any other information about a technical capability notice.

317C Designated communications provider etc.

For the purposes of this Part, the following table defines:

(a) designated communications provider; and

(b) the eligible activities of a designated communications

provider.

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Designated communications provider and eligible activities

Item A person is a designated

communications provider if ...

... and the eligible activities of the

person are ...

1 the person is a carrier or carriage

service provider

(a) the operation by the person of

telecommunications networks, or

facilities, in Australia; or

(b) the supply by the person of listed

carriage services

2 the person is a carriage service

intermediary who arranges for the

supply by a carriage service provider

of listed carriage services

(a) the arranging by the person for

the supply by the carriage service

provider of listed carriage

services; or

(b) the operation by the carriage

service provider of

telecommunications networks, or

facilities, in Australia; or

(c) the supply by the carriage service

provider of listed carriage

services

3 the person provides a service that

facilitates, or is ancillary or

incidental to, the supply of a listed

carriage service

the provision by the person of a

service that facilitates, or is ancillary

or incidental to, the supply of a

listed carriage service

4

5

6

the person provides an electronic

service that has one or more

end-users in Australia

the person provides a service that

facilitates, or is ancillary or

incidental to, the provision of an

electronic service that has one or

more end-users in Australia

the person develops, supplies or

updates software used, for use, or

likely to be used, in connection with:

(a) a listed carriage service; or

(b) an electronic service that has one

or more end-users in Australia

the provision by the person of an

electronic service that has one or

more end-users in Australia

the provision by the person of a

service that facilitates, or is ancillary

or incidental to, the provision of an

electronic service that has one or

more end-users in Australia

(a) the development by the person of

any such software; or

(b) the supply by the person of any

such software; or

(c) the updating by the person of any

such software

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Designated communications provider and eligible activities

Item A person is a designated ... and the eligible activities of the

communications provider if ... person are ...

7 the person manufactures, supplies,

installs, maintains or operates a

facility

(a) the manufacture by the person of

a facility for use, or likely to be

used, in Australia; or

(b) the supply by the person of a

facility for use, or likely to be

used, in Australia; or

(c) the installation by the person of a

facility in Australia; or

(d) the maintenance by the person of

a facility in Australia; or

(e) the operation by the person of a

facility in Australia

8 the person manufactures or supplies

components for use, or likely to be

used, in the manufacture of a facility

for use, or likely to be used, in

Australia

(a) the manufacture by the person of

any such components; or

(b) the supply by the person of any

such components

9 the person connects a facility to a the connection by the person of a

telecommunications network in facility to a telecommunications

Australia network in Australia

10 the person manufactures or supplies (a) the manufacture by the person of

customer equipment for use, or any such customer equipment; or

likely to be used, in Australia (b) the supply by the person of any

such customer equipment

11 the person manufactures or supplies

components for use, or likely to be

used, in the manufacture of customer

equipment for use, or likely to be

used, in Australia

(a) the manufacture by the person of

any such components; or

(b) the supply by the person of any

such components

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Designated communications provider and eligible activities

Item A person is a designated ... and the eligible activities of the

communications provider if ... person are ...

12 the person: (a) any such installation by the

(a) installs or maintains customer person of customer equipment;

equipment in Australia; and or

(b) does so otherwise than in the (b) any such maintenance by the

capacity of end-user of the person of customer equipment

equipment

13 the person: any such connection by the person

(a) connects customer equipment to of customer equipment to a

a telecommunications network in telecommunications network in

Australia; and Australia

(b) does so otherwise than in the

capacity of end-user of the

equipment

14 the person is a constitutional (a) the manufacture by the person of

corporation who: data processing devices for use,

(a) manufactures; or

(b) supplies; or

(c) installs; or

or likely to be used, in Australia;

or

(b) the supply by the person of data

processing devices for use, or (d) maintains; likely to be used, in Australia; or

data processing devices (c) the installation by the person of

data processing devices in

Australia; or

(d) the maintenance by the person of

data processing devices in

Australia

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Designated communications provider and eligible activities

Item A person is a designated ... and the eligible activities of the

communications provider if ... person are ...

15 the person is a constitutional (a) the development by the person of

corporation who: any such software; or

(a) develops; or

(b) supplies; or

(c) updates;

software that is capable of being

(b) the supply by the person of any

such software; or

(c) the updating by the person of any

such software

installed on a computer, or other

equipment, that is, or is likely to be,

connected to a telecommunications

network in Australia

Note 1: See also sections 317HAA, 317MAA and 317TAA (provision of

advice to designated communications providers).

Note 2: See also section 317ZT (alternative constitutional basis).

317D Electronic service

(1) For the purposes of this Part, electronic service means:

(a) a service that allows end-users to access material using a

carriage service; or

(b) a service that delivers material to persons having equipment

appropriate for receiving that material, where the delivery of

the service is by means of a carriage service;

but does not include:

(c) a broadcasting service; or

(d) a datacasting service (within the meaning of the

Broadcasting Services Act 1992).

(2) For the purposes of subsection (1), service includes a website.

(3) For the purposes of this Part, a person does not provide an

electronic service merely because the person supplies a carriage

service that enables material to be accessed or delivered.

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(4) For the purposes of this Part, a person does not provide an

electronic service merely because the person provides a billing

service, or a fee collection service, in relation to an electronic

service.

(5) A reference in this section 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.

317E Listed acts or things

(1) For the purposes of the application of this Part to a designated

communications provider, listed act or thing means:

(a) removing one or more forms of electronic protection that are

or were applied by, or on behalf of, the provider; or

(b) providing technical information; or

(c) installing, maintaining, testing or using software or

equipment; or

(d) ensuring that information obtained in connection with the

execution of a warrant or authorisation is given in a particular

format; or

(da) an act or thing done to assist in, or facilitate:

(i) giving effect to a warrant or authorisation under a law of

the Commonwealth, a State or a Territory; or

(ii) the effective receipt of information in connection with a

warrant or authorisation under a law of the

Commonwealth, a State or a Territory; or

(e) facilitating or assisting access to whichever of the following

are the subject of eligible activities of the provider:

(i) a facility;

(ii) customer equipment;

(iii) a data processing device;

(iv) a listed carriage service;

(v) a service that facilitates, or is ancillary or incidental to,

the supply of a listed carriage service;

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(vi) an electronic service;

(vii) a service that facilitates, or is ancillary or incidental to,

the provision of an electronic service;

(viii) software used, for use, or likely to be used, in

connection with a listed carriage service;

(ix) software used, for use, or likely to be used, in

connection with an electronic service;

(x) software that is capable of being installed on a

computer, or other equipment, that is, or is likely to be,

connected to a telecommunications network; or

(f) assisting with the testing, modification, development or

maintenance of a technology or capability; or

(g) notifying particular kinds of changes to, or developments

affecting, eligible activities of the designated

communications provider, if the changes are relevant to the

execution of a warrant or authorisation; or

(h) modifying, or facilitating the modification of, any of the

characteristics of a service provided by the designated

communications provider; or

(i) substituting, or facilitating the substitution of, a service

provided by the designated communications provider for:

(i) another service provided by the provider; or

(ii) a service provided by another designated

communications provider; or

(j) an act or thing done to conceal the fact that any thing has

been done covertly in the performance of a function, or the

exercise of a power, conferred by a law of the

Commonwealth, a State or a Territory, so far as the function

or power relates to:

(i) enforcing the criminal law, so far as it relates to serious

Australian offences; or

(ii) assisting the enforcement of the criminal laws in force

in a foreign country, so far as those laws relate to

serious foreign offences; or

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(iii) the interests of Australia’s national security, the

interests of Australia’s foreign relations or the interests

of Australia’s national economic well-being.

(2) Paragraph (1)(j) does not apply to:

(a) making a false or misleading statement; or

(b) engaging in dishonest conduct.

317F Extension to external Territories

This Part extends to every external Territory.

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Division 2—Voluntary technical assistance

317G Voluntary technical assistance provided to ASIO, the

Australian Secret Intelligence Service, the Australian

Signals Directorate or an interception agency

(1) If:

(a) any of the following persons:

(i) the Director-General of Security;

(ii) the Director-General of the Australian Secret

Intelligence Service;

(iii) the Director-General of the Australian Signals

Directorate;

(iv) the chief officer of an interception agency;

requests a designated communications provider to do one or

more specified acts or things that:

(v) are in connection with any or all of the eligible activities

of the provider; and

(vi) are covered by subsection (2); and

(b) the provider does an act or thing:

(i) in accordance with the request; or

(ii) in good faith purportedly in accordance with the

request;

then:

(c) the provider is not subject to any civil liability for, or in

relation to, the act or thing mentioned in paragraph (b); and

(d) an officer, employee or agent of the provider is not subject to

any civil liability for, or in relation to, an act or thing done by

the officer, employee or agent in connection with the act or

thing mentioned in paragraph (b).

(2) The specified acts or things must:

(a) be directed towards ensuring that the designated

communications provider is capable of giving help to:

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(i) in a case where the request is made by the

Director-General of Security—ASIO; or

(ii) in a case where the request is made by the

Director-General of the Australian Secret Intelligence

Service—the Australian Secret Intelligence Service; or

(iii) in a case where the request is made by the

Director-General of the Australian Signals

Directorate—the Australian Signals Directorate; or

(iv) in a case where the request is made by the chief officer

of an interception agency—the agency;

in relation to:

(v) the performance of a function, or the exercise of a

power, conferred by or under a law of the

Commonwealth, a State or a Territory, so far as the

function or power relates to a relevant objective; or

(vi) a matter that facilitates, or is ancillary or incidental to, a

matter covered by subparagraph (v); or

(b) be by way of giving help to:

(i) in a case where the request is made by the

Director-General of Security—ASIO; or

(ii) in a case where the request is made by the

Director-General of the Australian Secret Intelligence

Service—the Australian Secret Intelligence Service; or

(iii) in a case where the request is made by the

Director-General of the Australian Signals

Directorate—the Australian Signals Directorate; or

(iv) in a case where the request is made by the chief officer

of an interception agency—the agency;

in relation to:

(v) the performance of a function, or the exercise of a

power, conferred by or under a law of the

Commonwealth, a State or a Territory, so far as the

function or power relates to a relevant objective; or

(vi) a matter that facilitates, or is ancillary or incidental to, a

matter covered by subparagraph (v).

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(3) A request under paragraph (1)(a) is to be known as a technical

assistance request.

(4) Subparagraph (1)(b)(ii) does not apply to an act or thing done by a

designated communications provider unless the act or thing is in

connection with any or all of the eligible activities of the provider.

Relevant objective

(5) For the purposes of this section, relevant objective means:

(a) in relation to a technical assistance request given by the

Director-General of Security—safeguarding national

security; or

(b) in relation to a technical assistance request given by the

Director-General of the Australian Secret Intelligence

Service—the interests of Australia’s national security, the

interests of Australia’s foreign relations or the interests of

Australia’s national economic well-being; or

(c) in relation to a technical assistance request given by the

Director-General of the Australian Signals Directorate—

providing material, advice and other assistance to a person or

body mentioned in subsection 7(2) of the Intelligence

Services Act 2001 on matters relating to the security and

integrity of information that is processed, stored or

communicated by electronic or similar means; or

(d) in relation to a technical assistance request given by the chief

officer of an interception agency:

(i) enforcing the criminal law, so far as it relates to serious

Australian offences; or

(ii) assisting the enforcement of the criminal laws in force

in a foreign country, so far as those laws relate to

serious foreign offences.

Listed acts or things

(6) The acts or things that may be specified in a technical assistance

request given to a designated communications provider include

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(but are not limited to) listed acts or things, so long as those acts or

things:

(a) are in connection with any or all of the eligible activities of

the provider; and

(b) are covered by subsection (2).

Note: For listed acts or things, see section 317E.

317H Form of technical assistance request

(1) A technical assistance request may be given:

(a) orally; or

(b) in writing.

(2) A technical assistance request must not be given orally unless:

(a) an imminent risk of serious harm to a person or substantial

damage to property exists; and

(b) the technical assistance request is necessary for the purpose

of dealing with that risk; and

(c) it is not practicable in the circumstances to give the technical

assistance request in writing.

(3) If a technical assistance request is given orally by:

(a) the Director-General of Security; or

(b) the Director-General of the Australian Secret Intelligence

Service; or

(c) the Director-General of the Australian Signals Directorate; or

(d) the chief officer of an interception agency;

the Director-General of Security, the Director-General of the

Australian Secret Intelligence Service, the Director-General of the

Australian Signals Directorate or the chief officer, as the case

requires, must:

(e) make a written record of the request; and

(f) do so within 48 hours after the request was given.

(4) If, under subsection (3):

(a) the Director-General of Security; or

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(b) the Director-General of the Australian Secret Intelligence

Service; or

(c) the Director-General of the Australian Signals Directorate; or

(d) the chief officer of an interception agency;

makes a written record of a technical assistance request, the

Director-General of Security, the Director-General of the

Australian Secret Intelligence Service, the Director-General of the

Australian Signals Directorate or the chief officer, as the case

requires, must:

(e) give a copy of the record to the designated communications

provider concerned; and

(f) do so as soon as practicable after the record was made.

(5) If, under subsection (3):

(a) the Director-General of Security; or

(b) the Director-General of the Australian Secret Intelligence

Service; or

(c) the Director-General of the Australian Signals Directorate; or

(d) the chief officer of an interception agency;

makes a written record of a technical assistance request, the

Director-General of Security, the Director-General of the

Australian Secret Intelligence Service, the Director-General of the

Australian Signals Directorate or the chief officer, as the case

requires, must retain the record while the request is in force.

317HAA Provision of advice to designated communications

providers

(1) If the Director-General of Security gives a technical assistance

request to a designated communications provider, the

Director-General of Security must advise the provider that

compliance with the request is voluntary.

(2) If the Director-General of the Australian Secret Intelligence

Service gives a technical assistance request to a designated

communications provider, the Director-General of the Australian

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Secret Intelligence Service must advise the provider that

compliance with the request is voluntary.

(3) If the Director-General of the Australian Signals Directorate gives

a technical assistance request to a designated communications

provider, the Director-General of the Australian Signals

Directorate must advise the provider that compliance with the

request is voluntary.

(4) If the chief officer of an interception agency gives a technical

assistance request to a designated communications provider, the

chief officer must advise the provider that compliance with the

request is voluntary.

Form of advice

(5) Advice under subsection (1), (2), (3) or (4) may be given:

(a) orally; or

(b) in writing.

(6) If advice under subsection (1), (2), (3) or (4) is given orally by:

(a) the Director-General of Security; or

(b) the Director-General of the Australian Secret Intelligence

Service; or

(c) the Director-General of the Australian Signals Directorate; or

(d) the chief officer of an interception agency;

the Director-General of Security, the Director-General of the

Australian Secret Intelligence Service, the Director-General of the

Australian Signals Directorate or the chief officer, as the case

requires, must:

(e) make a written record of the advice; and

(f) do so within 48 hours after the advice was given.

317HAB Notification obligations

(1) If the Director-General of Security gives a technical assistance

request, the Director-General of Security must, within 7 days after

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the request is given, notify the Inspector-General of Intelligence

and Security that the request has been given.

(2) If the Director-General of the Australian Secret Intelligence

Service gives a technical assistance request, the Director-General

of the Australian Secret Intelligence Service must, within 7 days

after the request is given, notify the Inspector-General of

Intelligence and Security that the request has been given.

(3) If the Director-General of the Australian Signals Directorate gives

a technical assistance request, the Director-General of the

Australian Signals Directorate must, within 7 days after the request

is given, notify the Inspector-General of Intelligence and Security

that the request has been given.

(4) If the chief officer of an interception agency gives a technical

assistance request, the chief officer must, within 7 days after the

request is given, notify the Commonwealth Ombudsman that the

request has been given.

(5) A failure to comply with subsection (1), (2), (3) or (4) does not

affect the validity of a technical assistance request.

317HA Duration of technical assistance request

(1) A technical assistance request:

(a) comes in force:

(i) when it is given; or

(ii) if a later time is specified in the request—at that later

time; and

(b) unless sooner revoked, remains in force:

(i) if an expiry date is specified in the request—until the

start of the expiry date; or

(ii) otherwise—at end of the 90-day period beginning when

the request was given.

(2) If a technical assistance request expires, this Part does not prevent

the giving of a fresh technical assistance request in the same terms

as the expired technical assistance request.

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317J Specified period etc.

(1) A technical assistance request may include a request that a

specified act or thing be done within a specified period.

(2) A technical assistance request may include a request that a

specified act or thing be done:

(a) in a specified manner; or

(b) in a way that meets one or more specified conditions.

(3) Subsections (1) and (2) of this section do not limit

subsections 317G(1) and (2).

317JAA Decision-making criteria

(1) The Director-General of Security must not give a technical

assistance request to a designated communications provider unless

the Director-General of Security is satisfied that:

(a) the request is reasonable and proportionate; and

(b) compliance with the request is:

(i) practicable; and

(ii) technically feasible.

Note: See also section 317JC.

(2) The Director-General of the Australian Secret Intelligence Service

must not give a technical assistance request to a designated

communications provider unless the Director-General of the

Australian Secret Intelligence Service is satisfied that:

(a) the request is reasonable and proportionate; and

(b) compliance with the request is:

(i) practicable; and

(ii) technically feasible.

Note: See also section 317JC.

(3) The Director-General of the Australian Signals Directorate must

not give a technical assistance request to a designated

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communications provider unless the Director-General of the

Australian Signals Directorate is satisfied that:

(a) the request is reasonable and proportionate; and

(b) compliance with the request is:

(i) practicable; and

(ii) technically feasible.

Note: See also section 317JC.

(4) The chief officer of an interception agency must not give a

technical assistance request to a designated communications

provider unless the chief officer is satisfied that:

(a) the request is reasonable and proportionate; and

(b) compliance with the request is:

(i) practicable; and

(ii) technically feasible.

Note: See also section 317JC.

317JA Variation of technical assistance requests

(1) If a technical assistance request has been given to a designated

communications provider by the Director-General of Security, the

Director-General of Security may vary the request.

(2) If a technical assistance request has been given to a designated

communications provider by the Director-General of the Australian

Secret Intelligence Service, the Director-General of the Australian

Secret Intelligence Service may vary the request.

(3) If a technical assistance request has been given to a designated

communications provider by the Director-General of the Australian

Signals Directorate, the Director-General of the Australian Signals

Directorate may vary the request.

(4) If a technical assistance request has been given to a designated

communications provider by the chief officer of an interception

agency, the chief officer may vary the request.

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Form of variation

(5) A variation may be made:

(a) orally; or

(b) in writing.

(6) A variation must not be made orally unless:

(a) an imminent risk of serious harm to a person or substantial

damage to property exists; and

(b) the variation is necessary for the purpose of dealing with that

risk; and

(c) it is not practicable in the circumstances to make the

variation in writing.

(7) If a variation is made orally by:

(a) the Director-General of Security; or

(b) the Director-General of the Australian Secret Intelligence

Service; or

(c) the Director-General of the Australian Signals Directorate; or

(d) the chief officer of an interception agency;

the Director-General of Security, the Director-General of the

Australian Secret Intelligence Service, the Director-General of the

Australian Signals Directorate or the chief officer, as the case

requires, must:

(e) make a written record of the variation; and

(f) do so within 48 hours after the variation was made.

(8) If, under subsection (7):

(a) the Director-General of Security; or

(b) the Director-General of the Australian Secret Intelligence

Service; or

(c) the Director-General of the Australian Signals Directorate; or

(d) the chief officer of an interception agency;

makes a written record of a variation, the Director-General of

Security, the Director-General of the Australian Secret Intelligence

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Service, the Director-General of the Australian Signals Directorate

or the chief officer, as the case requires, must:

(e) give a copy of the record to the designated communications

provider concerned; and

(f) do so as soon as practicable after the record was made.

Acts or things specified in a varied technical assistance request

(9) The acts or things specified in a varied technical assistance request

must be:

(a) in connection with any or all of the eligible activities of the

designated communications provider concerned; and

(b) covered by subsection 317G(2).

(10) The acts or things that may be specified in a varied technical

assistance request include (but are not limited to) listed acts or

things, so long as those acts or things:

(a) are in connection with any or all of the eligible activities of

the designated communications provider concerned; and

(b) are covered by subsection 317G(2).

Note: For listed acts or things, see section 317E.

Decision-making criteria

(11) The Director-General of Security must not vary a technical

assistance request unless the Director-General of Security is

satisfied that:

(a) the varied request is reasonable and proportionate; and

(b) compliance with the varied request is:

(i) practicable; and

(ii) technically feasible.

Note: See also section 317JC.

(12) The Director-General of the Australian Secret Intelligence Service

must not vary a technical assistance request unless the

Director-General of the Australian Secret Intelligence Service is

satisfied that:

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(a) the varied request is reasonable and proportionate; and

(b) compliance with the varied request is:

(i) practicable; and

(ii) technically feasible.

Note: See also section 317JC.

(13) The Director-General of the Australian Signals Directorate must

not vary a technical assistance request unless the Director-General

of the Australian Signals Directorate is satisfied that:

(a) the varied request is reasonable and proportionate; and

(b) compliance with the varied request is:

(i) practicable; and

(ii) technically feasible.

Note: See also section 317JC.

(14) The chief officer of an interception agency must not vary a

technical assistance request unless the chief officer is satisfied that:

(a) the varied request is reasonable and proportionate; and

(b) compliance with the varied request is:

(i) practicable; and

(ii) technically feasible.

Note: See also section 317JC.

Notification obligations

(15) If the Director-General of Security varies a technical assistance

request, the Director-General of Security must, within 7 days after

varying the request, notify the Inspector-General of Intelligence

and Security that the request has been varied.

(16) If the Director-General of the Australian Secret Intelligence

Service varies a technical assistance request, the Director-General

of the Australian Secret Intelligence Service must, within 7 days

after varying the request, notify the Inspector-General of

Intelligence and Security that the request has been varied.

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(17) If the Director-General of the Australian Signals Directorate varies

a technical assistance request, the Director-General of the

Australian Signals Directorate must, within 7 days after varying the

request, notify the Inspector-General of Intelligence and Security

that the request has been varied.

(18) If the chief officer of an interception agency varies a technical

assistance request, the chief officer must, within 7 days after

varying the request, notify the Commonwealth Ombudsman that

the request has been varied.

(19) A failure to comply with subsection (15), (16), (17) or (18) does

not affect the validity of a variation of a technical assistance

request.

317JB Revocation of technical assistance requests

(1) If a technical assistance request has been given to a person by the

Director-General of Security, the Director-General of Security

may, by written notice given to the person, revoke the request.

(1A) If a technical assistance request has been given to a person by the

Director-General of Security, and the Director-General of Security

is satisfied that:

(a) the request is not reasonable and proportionate; or

(b) compliance with the request is not:

(i) practicable; and

(ii) technically feasible;

the Director-General of Security must, by written notice given to

the person, revoke the request.

(2) If a technical assistance request has been given to a person by the

Director-General of the Australian Secret Intelligence Service, the

Director-General of the Australian Secret Intelligence Service may,

by written notice given to the person, revoke the request.

(2A) If a technical assistance request has been given to a person by the

Director-General of the Australian Secret Intelligence Service, and

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the Director-General of the Australian Secret Intelligence Service

is satisfied that:

(a) the request is not reasonable and proportionate; or

(b) compliance with the request is not:

(i) practicable; and

(ii) technically feasible;

the Director-General of the Australian Secret Intelligence Service

must, by written notice given to the person, revoke the request.

(3) If a technical assistance request has been given to a person by the

Director-General of the Australian Signals Directorate, the

Director-General of the Australian Signals Directorate may, by

written notice given to the person, revoke the request.

(3A) If a technical assistance request has been given to a person by the

Director-General of the Australian Signals Directorate, and the

Director-General of the Australian Signals Directorate is satisfied

that:

(a) the request is not reasonable and proportionate; or

(b) compliance with the request is not:

(i) practicable; and

(ii) technically feasible;

the Director-General of the Australian Signals Directorate must, by

written notice given to the person, revoke the request.

(4) If a technical assistance request has been given to a person by the

chief officer of an interception agency, the chief officer may, by

written notice given to the person, revoke the request.

(5) If a technical assistance request has been given to a person by the

chief officer of an interception agency, and the chief officer is

satisfied that:

(a) the request is not reasonable and proportionate; or

(b) compliance with the request is not:

(i) practicable; and

(ii) technically feasible;

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the chief officer must, by written notice given to the person, revoke

the request.

Notification obligations

(6) If the Director-General of Security revokes a technical assistance

request, the Director-General of Security must, within 7 days after

revoking the request, notify the Inspector-General of Intelligence

and Security that the request has been revoked.

(7) If the Director-General of the Australian Secret Intelligence

Service revokes a technical assistance request, the

Director-General of the Australian Secret Intelligence Service

must, within 7 days after revoking the request, notify the

Inspector-General of Intelligence and Security that the request has

been revoked.

(8) If the Director-General of the Australian Signals Directorate

revokes a technical assistance request, the Director-General of the

Australian Signals Directorate must, within 7 days after revoking

the request, notify the Inspector-General of Intelligence and

Security that the request has been revoked.

(9) If the chief officer of an interception agency revokes a technical

assistance request, the chief officer must, within 7 days after

revoking the request, notify the Commonwealth Ombudsman that

the request has been revoked.

(10) A failure to comply with subsection (6), (7), (8) or (9) does not

affect the validity of a revocation of a technical assistance request.

317JC Whether a technical assistance request is reasonable and

proportionate

In considering whether a technical assistance request or a varied

technical assistance request is reasonable and proportionate, the

Director-General of Security, the Director-General of the

Australian Secret Intelligence Service, the Director-General of the

Australian Signals Directorate or the chief officer of an

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interception agency, as the case requires, must have regard to the

following matters:

(a) the interests of national security;

(b) the interests of law enforcement;

(c) the legitimate interests of the designated communications

provider to whom the request relates;

(d) the objectives of the request;

(e) the availability of other means to achieve the objectives of

the request;

(f) whether the request, when compared to other forms of

industry assistance known to the Director-General of

Security, the Director-General of the Australian Secret

Intelligence Service, the Director-General of the Australian

Signals Directorate or the chief officer, as the case requires,

is the least intrusive form of industry assistance so far as the

following persons are concerned:

(i) persons whose activities are not of interest to ASIO;

(ii) persons whose activities are not of interest to the

Australian Secret Intelligence Service;

(iii) persons whose activities are not of interest to the

Australian Signals Directorate;

(iv) persons whose activities are not of interest to

interception agencies;

(g) whether the request is necessary;

(h) the legitimate expectations of the Australian community

relating to privacy and cybersecurity;

(i) such other matters (if any) as the Director-General of

Security, the Director-General of the Australian Secret

Intelligence Service, the Director-General of the Australian

Signals Directorate or the chief officer, as the case requires,

considers relevant.

317K Contract etc.

Any of the following persons:

(a) the Director-General of Security;

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(b) the Director-General of the Australian Secret Intelligence

Service;

(c) the Director-General of the Australian Signals Directorate;

(d) the chief officer of an interception agency;

may enter into a contract, agreement or arrangement with a

designated communications provider in relation to acts or things

done by the provider in accordance with a technical assistance

request.

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Division 3—Technical assistance notices

317L Technical assistance notices

(1) The Director-General of Security or the chief officer of an

interception agency may give a designated communications

provider a notice, to be known as a technical assistance notice, that

requires the provider to do one or more specified acts or things

that:

(a) are in connection with any or all of the eligible activities of

the provider; and

(b) are covered by subsection (2).

Note: Section 317ZK deals with the terms and conditions on which such a

requirement is to be complied with.

(2) The specified acts or things must be by way of giving help to:

(a) in a case where the technical assistance notice is given by the

Director-General of Security—ASIO; or

(b) in a case where the technical assistance notice is given by the

chief officer of an interception agency—the agency;

in relation to:

(c) the performance of a function, or the exercise of a power,

conferred by or under a law of the Commonwealth, a State or

a Territory, so far as the function or power relates to:

(i) enforcing the criminal law, so far as it relates to serious

Australian offences; or

(ii) assisting the enforcement of the criminal laws in force

in a foreign country, so far as those laws relate to

serious foreign offences; or

(iii) safeguarding national security; or

(d) a matter that facilitates, or is ancillary or incidental to, a

matter covered by paragraph (c).

(2A) The specified acts or things must not be directed towards ensuring

that a designated communications provider is capable of giving

help to ASIO or an interception agency.

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Listed acts or things

(3) The acts or things specified in a technical assistance notice given to

a designated communications provider must be listed acts or

things, so long as those acts or things:

(a) are in connection with any or all of the eligible activities of

the provider; and

(b) are covered by subsection (2).

Note: For listed acts or things, see section 317E.

317LA Approval of technical assistance notices given by the chief

officer of an interception agency of a State or Territory

(1) The chief officer of an interception agency of a State or Territory

must not give a technical assistance notice to a designated

communications provider unless:

(a) the chief officer has given the AFP Commissioner a written

notice setting out a proposal to give the technical assistance

notice; and

(b) the AFP Commissioner has approved the giving of the

technical assistance notice.

(2) An approval under paragraph (1)(b) may be given:

(a) orally; or

(b) in writing.

(3) If an approval under paragraph (1)(b) is given orally, the AFP

Commissioner must:

(a) make a written record of the approval; and

(b) do so within 48 hours after the approval was given.

(4) For the purposes of this section, AFP Commissioner means the

Commissioner (within the meaning of the Australian Federal

Police Act 1979).

317M Form of technical assistance notice

(1) A technical assistance notice may be given:

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(a) orally; or

(b) in writing.

(2) A technical assistance notice must not be given orally unless:

(a) an imminent risk of serious harm to a person or substantial

damage to property exists; and

(b) the technical assistance notice is necessary for the purpose of

dealing with that risk; and

(c) it is not practicable in the circumstances to give the technical

assistance notice in writing.

(3) If a technical assistance notice is given orally by the

Director-General of Security or the chief officer of an interception

agency, the Director-General of Security or the chief officer, as the

case requires, must:

(a) make a written record of the notice; and

(b) do so within 48 hours after the notice was given.

(4) If, under subsection (3), the Director-General of Security or the

chief officer of an interception agency makes a written record of a

technical assistance notice, the Director-General of Security or the

chief officer, as the case requires, must:

(a) give a copy of the record to the designated communications

provider concerned; and

(b) do so as soon as practicable after the record was made.

(5) If, under subsection (3), the Director-General of Security or the

chief officer of an interception agency makes a written record of a

technical assistance notice, the Director-General of Security or the

chief officer, as the case requires, must retain the record while the

notice is in force.

317MAA Provision of advice to designated communications

providers

(1) If the Director-General of Security gives a technical assistance

notice to a designated communications provider, the

Director-General of Security must give the provider advice relating

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to the provider’s obligations under whichever of sections 317ZA

and 317ZB is applicable, so far as those obligations relate to the

notice.

(2) If the chief officer of an interception agency gives a technical

assistance notice to a designated communications provider, the

chief officer must give the provider advice relating to the

provider’s obligations under whichever of sections 317ZA and

317ZB is applicable, so far as those obligations relate to the notice.

(3) If the Director-General of Security gives a technical assistance

notice to a designated communications provider, the

Director-General of Security must notify the provider of the

provider’s right to make a complaint about the notice to the

Inspector-General of Intelligence and Security under the

Inspector-General of Intelligence and Security Act 1986.

(4) If:

(a) the chief officer of an interception agency gives a technical

assistance notice to a designated communications provider;

and

(b) the provider has a right to make a complaint about the

conduct of the chief officer, or the interception agency, in

relation to the notice to:

(i) the Commonwealth Ombudsman; or

(ii) an authority that is the State or Territory inspecting

agency in relation to the interception agency;

the chief officer must notify the provider of the provider’s right to

make such a complaint.

Form of advice or notification

(5) Advice under subsection (1) or (2), or notification under

subsection (3) or (4), may be given:

(a) orally; or

(b) in writing.

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(6) If advice under subsection (1) or (2), or notification under

subsection (3) or (4), is given orally by the Director-General of

Security or the chief officer of an interception agency, the

Director-General of Security or the chief officer, as the case

requires, must:

(a) make a written record of the advice or notification; and

(b) do so within 48 hours after the advice or notification was

given.

317MAB Notification obligations

(1) If the Director-General of Security gives a technical assistance

notice, the Director-General of Security must, within 7 days after

the notice is given, notify the Inspector-General of Intelligence and

Security that the notice has been given.

(2) If the chief officer of an interception agency gives a technical

assistance notice, the chief officer must, within 7 days after the

notice is given, notify the Commonwealth Ombudsman that the

notice has been given.

(3) A failure to comply with subsection (1) or (2) does not affect the

validity of a technical assistance notice.

317MA Duration of technical assistance notice

(1) A technical assistance notice:

(a) comes in force:

(i) when it is given; or

(ii) if a later time is specified in the notice—at that later

time; and

(b) unless sooner revoked, remains in force:

(i) if an expiry date is specified in the notice—until the

start of the expiry date; or

(ii) otherwise—at end of the 90-day period beginning when

the notice was given.

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(1A) An expiry date specified in a technical assistance notice must not

be later than 12 months after the notice was given.

(1B) Paragraph (1)(b) has effect subject to subsections (1C) and (1D).

(1C) If the Director-General of Security has given a technical assistance

notice to a designated communications provider, the

Director-General of Security may, with the agreement of the

provider, extend for a further period (not exceeding 12 months) or

further periods (not exceeding 12 months in each case) the period

for which the technical assistance notice is in force.

(1D) If the chief officer of an interception agency has given a technical

assistance notice to a designated communications provider, the

chief officer may, with the agreement of the provider, extend for a

further period (not exceeding 12 months) or further periods (not

exceeding 12 months in each case) the period for which the

technical assistance notice is in force.

(1E) If the Director-General of Security extends the period for which a

technical assistance notice is in force, the Director-General of

Security must, within 7 days after extending the period, notify the

Inspector-General of Intelligence and Security of the extension.

(1F) If the chief officer of an interception agency extends the period for

which a technical assistance notice is in force, the chief officer

must, within 7 days after extending the period, notify the

Commonwealth Ombudsman of the extension.

(1G) A failure to comply with subsection (1E) or (1F) does not affect the

validity of an extension of a technical assistance notice.

(2) If a technical assistance notice expires, this Part does not prevent

the giving of a fresh technical assistance notice in the same terms

as the expired technical assistance notice.

317N Compliance period etc.

(1) A technical assistance notice may require a specified act or thing to

be done within a specified period.

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(2) A technical assistance notice may require a specified act or thing to

be done:

(a) in a specified manner; or

(b) in a way that meets one or more specified conditions.

(3) Subsections (1) and (2) of this section do not limit

subsections 317L(1) and (2).

317P Decision-making criteria

The Director-General of Security or the chief officer of an

interception agency must not give a technical assistance notice to a

designated communications provider unless the Director-General

of Security or the chief officer, as the case requires, is satisfied

that:

(a) the requirements imposed by the notice are reasonable and

proportionate; and

(b) compliance with the notice is:

(i) practicable; and

(ii) technically feasible.

Note: See also section 317RA.

317PA Consultation about a proposal to give a technical assistance

notice

(1) Before giving a technical assistance notice to a designated

communications provider, the Director-General of Security or the

chief officer of an interception agency, as the case requires, must

consult the provider.

(2) The rule in subsection (1) does not apply to a technical assistance

notice given to a designated communications provider by the

Director-General of Security if:

(a) the Director-General of Security is satisfied that the technical

assistance notice should be given as a matter of urgency; or

(b) the provider waives compliance with subsection (1).

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(3) The rule in subsection (1) does not apply to a technical assistance

notice given to a designated communications provider by the chief

officer of an interception agency if:

(a) the chief officer is satisfied that the technical assistance

notice should be given as a matter of urgency; or

(b) the provider waives compliance with subsection (1).

317Q Variation of technical assistance notices

(1) If a technical assistance notice has been given to a designated

communications provider by the Director-General of Security, the

Director-General of Security may vary the notice.

(2) If a technical assistance notice has been given to a designated

communications provider by the chief officer of an interception

agency, the chief officer may vary the notice.

Form of variation

(3) A variation may be made:

(a) orally; or

(b) in writing.

(4) A variation must not be made orally unless:

(a) an imminent risk of serious harm to a person or substantial

damage to property exists; and

(b) the variation is necessary for the purpose of dealing with that

risk; and

(c) it is not practicable in the circumstances to make the

variation in writing.

(5) If a variation is made orally by the Director-General of Security or

the chief officer of an interception agency, the Director-General of

Security or the chief officer, as the case requires, must:

(a) make a written record of the variation; and

(b) do so within 48 hours after the variation was made.

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(6) If, under subsection (5), the Director-General of Security or the

chief officer of an interception agency makes a written record of a

variation, the Director-General of Security or the chief officer, as

the case requires, must:

(a) give a copy of the record to the designated communications

provider concerned; and

(b) do so as soon as practicable after the record was made.

(7) If a variation is made in writing by the Director-General of

Security or the chief officer of an interception agency, the

Director-General of Security or the chief officer, as the case

requires, must:

(a) give a copy of the variation to the designated

communications provider concerned; and

(b) do so as soon as practicable after the variation was made.

Acts or things specified in a varied technical assistance notice

(8) The acts or things specified in a varied technical assistance notice

must be:

(a) in connection with any or all of the eligible activities of the

designated communications provider concerned; and

(b) covered by subsection 317L(2).

(9) The acts or things specified in a varied technical assistance notice

must be listed acts or things, so long as those acts or things:

(a) are in connection with any or all of the eligible activities of

the designated communications provider concerned; and

(b) are covered by subsection 317L(2).

Note: For listed acts or things, see section 317E.

Decision-making criteria

(10) The Director-General of Security or the chief officer of an

interception agency must not vary a technical assistance notice

unless the Director-General of Security or the chief officer, as the

case requires, is satisfied that:

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(a) the requirements imposed by the varied notice are reasonable

and proportionate; and

(b) compliance with the varied notice is:

(i) practicable; and

(ii) technically feasible.

Note: See also section 317RA.

Variation must not extend duration of technical assistance notice

(11) A variation of a technical assistance notice must not extend the

period for which the notice is in force.

Notification obligations

(12) If the Director-General of Security varies a technical assistance

notice, the Director-General of Security must, within 7 days after

varying the notice, notify the Inspector-General of Intelligence and

Security that the notice has been varied.

(13) If the chief officer of an interception agency varies a technical

assistance notice, the chief officer must, within 7 days after varying

the notice, notify the Commonwealth Ombudsman that the notice

has been varied.

(14) A failure to comply with subsection (12) or (13) does not affect the

validity of a variation of a technical assistance notice.

317R Revocation of technical assistance notices

(1) If a technical assistance notice has been given to a person by the

Director-General of Security, the Director-General of Security

may, by written notice given to the person, revoke the notice.

(2) If a technical assistance notice has been given to a person by the

Director-General of Security, and the Director-General of Security

is satisfied that:

(a) the requirements imposed by the notice are not reasonable

and proportionate; or

(b) compliance with the notice is not:

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(i) practicable; and

(ii) technically feasible;

the Director-General of Security must, by written notice given to

the person, revoke the notice.

(3) If a technical assistance notice has been given to a person by the

chief officer of an interception agency, the chief officer may, by

written notice given to the person, revoke the notice.

(4) If a technical assistance notice has been given to a person by the

chief officer of an interception agency, and the chief officer is

satisfied that:

(a) the requirements imposed by the notice are not reasonable

and proportionate; or

(b) compliance with the notice is not:

(i) practicable; and

(ii) technically feasible;

the chief officer must, by written notice given to the person, revoke

the notice.

Notification obligations

(5) If the Director-General of Security revokes a technical assistance

notice, the Director-General of Security must, within 7 days after

revoking the notice, notify the Inspector-General of Intelligence

and Security that the notice has been revoked.

(6) If the chief officer of an interception agency revokes a technical

assistance notice, the chief officer must, within 7 days after

revoking the notice, notify the Commonwealth Ombudsman that

the notice has been revoked.

(7) A failure to comply with subsection (5) or (6) does not affect the

validity of a revocation of a technical assistance notice.

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317RA Whether requirements imposed by a technical assistance

notice are reasonable and proportionate

In considering whether the requirements imposed by a technical

assistance notice or a varied technical assistance notice are

reasonable and proportionate, the Director-General of Security or

the chief officer of an interception agency, as the case requires,

must have regard to the following matters:

(a) the interests of national security;

(b) the interests of law enforcement;

(c) the legitimate interests of the designated communications

provider to whom the notice relates;

(d) the objectives of the notice;

(e) the availability of other means to achieve the objectives of

the notice;

(ea) whether the requirements, when compared to other forms of

industry assistance known to the Director-General of

Security or the chief officer, as the case requires, are the least

intrusive form of industry assistance so far as the following

persons are concerned:

(i) persons whose activities are not of interest to ASIO;

(ii) persons whose activities are not of interest to

interception agencies;

(eb) whether the requirements are necessary;

(f) the legitimate expectations of the Australian community

relating to privacy and cybersecurity;

(g) such other matters (if any) as the Director-General of

Security or the chief officer, as the case requires, considers

relevant.

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Division 4—Technical capability notices

317S Attorney-General may determine procedures and

arrangements relating to requests for technical capability

notices

(1) The Attorney-General may, by writing, determine procedures and

arrangements to be followed in relation to the making of requests

for technical capability notices.

(2) A procedure or arrangement determined under subsection (1) may

require that the agreement of a person or body must be obtained

before a request is made for a technical capability notice.

(3) A failure to comply with a determination under subsection (1) does

not affect the validity of a technical capability notice.

(4) A determination under subsection (1) is not a legislative

instrument.

317T Technical capability notices

(1) The Attorney-General may, in accordance with a request made by

the Director-General of Security or the chief officer of an

interception agency, give a designated communications provider a

written notice, to be known as a technical capability notice, that

requires the provider to do one or more specified acts or things

that:

(a) are in connection with any or all of the eligible activities of

the provider; and

(b) are covered by subsection (2).

Note: Section 317ZK deals with the terms and conditions on which such a

requirement is to be complied with.

(2) The specified acts or things must:

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(a) be directed towards ensuring that the designated

communications provider is capable of giving listed help to

ASIO, or an interception agency, in relation to:

(i) the performance of a function, or the exercise of a

power, conferred by or under a law of the

Commonwealth, a State or a Territory, so far as the

function or power relates to a relevant objective; or

(ii) a matter that facilitates, or is ancillary or incidental to, a

matter covered by subparagraph (i); or

(b) be by way of giving help to ASIO, or an interception agency,

in relation to:

(i) the performance of a function, or the exercise of a

power, conferred by or under a law of the

Commonwealth, a State or a Territory, so far as the

function or power relates to a relevant objective; or

(ii) a matter that facilitates, or is ancillary or incidental to, a

matter covered by subparagraph (i).

Relevant objective

(3) For the purposes of this section, relevant objective means:

(a) enforcing the criminal law, so far as it relates to serious

Australian offences; or

(b) assisting the enforcement of the criminal laws in force in a

foreign country, so far as those laws relate to serious foreign

offences; or

(c) safeguarding national security.

Listed help

(4) For the purposes of the application of this section to a designated

communications provider, if one or more acts or things done by the

provider:

(a) are by way of giving help to ASIO or an interception agency;

and

(b) are in connection with any or all of the eligible activities of

the provider; and

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(c) consist of either or both of the following:

(i) one or more listed acts or things (other than an act or

thing covered by paragraph 317E(1)(a));

(ii) one or more acts or things of a kind determined under

subsection (5);

that help is listed help.

Note: For listed acts or things, see section 317E.

(5) The Home Affairs Minister may, by legislative instrument,

determine one or more kinds of acts or things for the purposes of

subparagraph (4)(c)(ii).

(6) In making a determination under subsection (5), the Home Affairs

Minister must have regard to the following matters:

(a) the interests of law enforcement;

(b) the interests of national security;

(c) the objects of this Act;

(d) the likely impact of the determination on designated

communications providers;

(e) such other matters (if any) as the Home Affairs Minister

considers relevant.

Listed acts or things

(7) The acts or things specified in a technical capability notice given to

a designated communications provider in accordance with

paragraph (2)(b) must be listed acts or things, so long as those acts

or things:

(a) are in connection with any or all of the eligible activities of

the provider; and

(b) are covered by subsection (2), so far as that subsection relates

to paragraph (2)(b).

Applicable costs negotiator

(12) A technical capability notice must specify a person as the

applicable costs negotiator for the notice.

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Note: See section 317ZK.

(13) A person may be specified under subsection (12):

(a) by name; or

(b) as any person from time to time holding, occupying, or

performing the duties of, a specified office or position.

317TAAA Approval of technical capability notice

(1) The Attorney-General must not give a technical capability notice to

a designated communications provider unless:

(a) the Attorney-General has given the Minister a written notice

setting out a proposal to give the technical capability notice;

and

(b) the Minister has approved the giving of the technical

capability notice.

(2) An approval under paragraph (1)(b) may be given:

(a) orally; or

(b) in writing.

(3) If an approval under paragraph (1)(b) is given orally, the Minister

must:

(a) make a written record of the approval; and

(b) do so within 48 hours after the approval was given.

(4) The Attorney-General may make a representation to the Minister

about the proposal to give the technical capability notice.

(5) A representation may deal with:

(a) any of the matters set out in section 317ZAA; and

(b) such other matters (if any) as the Attorney-General considers

relevant.

(6) In considering whether to approve the giving of the technical

capability notice, the Minister must have regard to the following

matters:

(a) the objectives of the notice;

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(b) the legitimate interests of the designated communications

provider to whom the notice relates;

(c) the impact of the notice on the efficiency and international

competitiveness of the Australian telecommunications

industry;

(d) the representation (if any) that was made under

subsection (4);

(e) such other matters (if any) as the Minister considers relevant.

317TAA Provision of advice to designated communications

providers

(1) If the Attorney-General gives a technical capability notice to a

designated communications provider, the Attorney-General must

give the provider advice relating to the provider’s obligations

under whichever of sections 317ZA and 317ZB is applicable, so

far as those obligations relate to the notice.

Form of advice

(2) Advice under subsection (1) may be given:

(a) orally; or

(b) in writing.

(3) If advice under subsection (1) is given orally, the Attorney-General

must:

(a) make a written record of the advice; and

(b) do so within 48 hours after the advice was given.

317TAB Notification obligations

(1) If:

(a) the Attorney-General gives a technical capability notice; and

(b) the acts or things specified in the notice:

(i) are directed towards ensuring that a designated

communications provider is capable of giving listed

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help (within the meaning of section 317T) to ASIO in

relation to a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to ASIO in relation to a

matter covered by paragraph 317T(2)(b);

the Attorney-General must, within 7 days after the notice is given,

notify the Inspector-General of Intelligence and Security that the

notice has been given.

(2) If:

(a) the Attorney-General gives a technical capability notice; and

(b) the acts or things specified in the notice:

(i) are directed towards ensuring that a designated

communications provider is capable of giving listed

help (within the meaning of section 317T) to an

interception agency in relation to a matter covered by

paragraph 317T(2)(a); or

(ii) are by way of giving help to an interception agency in

relation to a matter covered by paragraph 317T(2)(b);

the Attorney-General must, within 7 days after the notice is given,

notify the Commonwealth Ombudsman that the notice has been

given.

(3) A failure to comply with subsection (1) or (2) does not affect the

validity of a technical capability notice.

317TA Duration of technical capability notice

(1) A technical capability notice:

(a) comes in force:

(i) when it is given; or

(ii) if a later time is specified in the notice—at that later

time; and

(b) unless sooner revoked, remains in force:

(i) if an expiry date is specified in the notice—until the

start of the expiry date; or

(ii) otherwise—at end of the 180-day period beginning

when the notice was given.

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(1A) An expiry date specified in a technical capability notice must not

be later than 12 months after the notice was given.

(1B) Paragraph (1)(b) has effect subject to subsection (1C).

(1C) If the Attorney-General has given a technical capability notice to a

designated communications provider, the Attorney-General may,

with the agreement of the provider, extend for a further period (not

exceeding 12 months) or further periods (not exceeding 12 months

in each case) the period for which the technical capability notice is

in force.

(1D) If:

(a) the Attorney-General extends the period for which a

technical capability notice is in force; and

(b) the acts or things specified in the notice:

(i) are directed towards ensuring that a designated

communications provider is capable of giving listed

help (within the meaning of section 317T) to ASIO in

relation to a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to ASIO in relation to a

matter covered by paragraph 317T(2)(b);

the Attorney-General must, within 7 days after extending the

period, notify the Inspector-General of Intelligence and Security of

the extension.

(1E) If:

(a) the Attorney-General extends the period for which a

technical capability notice is in force; and

(b) the acts or things specified in the notice:

(i) are directed towards ensuring that a designated

communications provider is capable of giving listed

help (within the meaning of section 317T) to an

interception agency in relation to a matter covered by

paragraph 317T(2)(a); or

(ii) are by way of giving help to an interception agency in

relation to a matter covered by paragraph 317T(2)(b);

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the Attorney-General must, within 7 days after extending the

period, notify the Commonwealth Ombudsman of the extension.

(1F) A failure to comply with subsection (1D) or (1E) does not affect

the validity of an extension of a technical capability notice.

(2) If a technical capability notice expires, this Part does not prevent

the giving of a fresh technical capability notice in the same terms

as the expired technical capability notice.

317U Compliance period etc.

(1) A technical capability notice may require a specified act or thing to

be done within a specified period.

(2) A technical capability notice may require a specified act or thing to

be done:

(a) in a specified manner; or

(b) in a way that meets one or more specified conditions.

(3) Subsections (1) and (2) of this section do not limit

subsections 317T(1) and (2).

317V Decision-making criteria

The Attorney-General must not give a technical capability notice to

a designated communications provider unless:

(a) the Attorney-General is satisfied that the requirements

imposed by the notice are reasonable and proportionate; and

(b) the Attorney-General is satisfied that compliance with the

notice is:

(i) practicable; and

(ii) technically feasible.

Note: See also section 317ZAA.

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317W Consultation about a proposal to give a technical capability

notice

(1) The Attorney-General must not give a technical capability notice to

a designated communications provider unless the Attorney-General

has first:

(a) given the provider a written notice (the consultation notice):

(i) setting out a proposal to give the technical capability

notice; and

(ii) inviting the provider to make a submission to the

Attorney-General on the proposed technical capability

notice; and

(b) considered any submission that was received within the time

limit specified in the consultation notice.

(2) A time limit specified in a consultation notice must run for at least

28 days.

(3) The rule in subsection (2) does not apply to a technical capability

notice given to a designated communications provider if:

(a) the Attorney-General is satisfied that the technical capability

notice should be given as a matter of urgency; or

(b) compliance with subsection (2) is impracticable; or

(c) the provider waives compliance with subsection (2).

(4) For the purposes of paragraph (3)(c), a designated communications

provider may waive compliance:

(a) orally; or

(b) in writing.

(5) If compliance is waived orally by a designated communications

provider, the provider must:

(a) make a written record of the waiver; and

(b) do so within 48 hours after the waiver was made.

(6) If, under subsection (5), a designated communications provider

makes a written record of the waiver, the provider must:

(a) give a copy of the record to the Attorney-General; and

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(b) do so as soon as practicable after the record was made.

(7) Subsection (1) does not apply to a technical capability notice

proposed to be given to a designated communications provider if:

(a) the requirements imposed by the proposed technical

capability notice are the same, or substantially the same, as

the requirements imposed by another technical capability

notice that has previously been given to the provider; and

(b) the proposed technical capability notice is to come into force

immediately after the expiry of the other technical capability

notice.

Special consultation requirements for replacement technical

capability notices

(8) Before giving a designated communications provider a technical

capability notice that satisfies the following conditions:

(a) the requirements imposed by the technical capability notice

are the same, or substantially the same, as the requirements

imposed by another technical capability notice that has

previously been given to the provider;

(b) the first-mentioned technical capability notice is to come into

force immediately after the expiry of the other technical

capability notice;

the Attorney-General must consult the provider.

(9) The rule in subsection (8) does not apply to a technical capability

notice given to a designated communications provider if the

provider waives compliance with subsection (8).

317WA Assessment and report

Designated communications provider may request carrying out of

assessment

(1) If a consultation notice is given to a designated communications

provider under subsection 317W(1) in relation to a proposed

technical capability notice, the provider may, within the time limit

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specified in the consultation notice, give the Attorney-General a

written notice requesting the carrying out of an assessment of

whether the proposed technical capability notice should be given.

Attorney-General must appoint assessors

(2) If a designated communications provider gives the

Attorney-General a notice under subsection (1) in relation to a

proposed technical capability notice, the Attorney-General must

appoint 2 persons to carry out an assessment of whether the

proposed technical capability notice should be given.

(3) For the purposes of this section, the persons appointed under

subsection (2) are to be known as the assessors.

(4) One of the assessors must be a person who:

(a) has knowledge that would enable the person to assess

whether proposed technical capability notices would

contravene section 317ZG; and

(b) is cleared for security purposes to:

(i) the highest level required by staff members of ASIO; or

(ii) such lower level as the Attorney-General approves.

(5) One of the assessors must be a person who:

(a) has served as a judge in one or more prescribed courts for a

period of 5 years; and

(b) no longer holds a commission as a judge of a prescribed

court.

Assessment and report by assessors

(6) As soon as practicable after being appointed under subsection (2),

the assessors must:

(a) carry out an assessment of whether the proposed technical

capability notice should be given; and

(b) prepare a report of the assessment; and

(c) give a copy of the report to:

(i) the Attorney-General; and

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(ii) the designated communications provider concerned; and

(d) if the acts or things specified in the proposed technical

capability notice:

(i) are directed towards ensuring that the designated

communications provider is capable of giving listed

help (within the meaning of section 317T) to ASIO in

relation to a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to ASIO in relation to a

matter covered by paragraph 317T(2)(b);

give a copy of the report to the Inspector-General of

Intelligence and Security; and

(e) if the acts or things specified in the proposed technical

capability notice:

(i) are directed towards ensuring that the designated

communications provider is capable of giving listed

help (within the meaning of section 317T) to an

interception agency in relation to a matter covered by

paragraph 317T(2)(a); or

(ii) are by way of giving help to an interception agency in

relation to a matter covered by paragraph 317T(2)(b);

give a copy of the report to the Commonwealth Ombudsman.

(7) In carrying out an assessment under paragraph (6)(a) in relation to

a technical capability notice proposed to be given to a designated

communications provider, the assessors must:

(a) consider:

(i) whether the proposed technical capability notice would

contravene section 317ZG; and

(ii) whether the requirements imposed by the proposed

technical capability notice are reasonable and

proportionate; and

(iii) whether compliance with the proposed technical

capability notice is practicable; and

(iv) whether compliance with the proposed technical

capability notice is technically feasible; and

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(v) whether the proposed technical capability notice is the

least intrusive measure that would be effective in

achieving the legitimate objective of the proposed

technical capability notice; and

(b) give the greatest weight to the matter mentioned in

subparagraph (a)(i).

(8) In carrying out an assessment under paragraph (6)(a) in relation to

a technical capability notice proposed to be given to a designated

communications provider, the assessors must consult:

(a) the provider; and

(b) if the acts or things specified in the proposed technical

capability notice:

(i) are directed towards ensuring that a designated

communications provider is capable of giving listed

help (within the meaning of section 317T) to ASIO in

relation to a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to ASIO in relation to a

matter covered by paragraph 317T(2)(b);

the Director-General of Security; and

(c) if the acts or things specified in the proposed technical

capability notice:

(i) are directed towards ensuring that a designated

communications provider is capable of giving listed

help (within the meaning of section 317T) to an

interception agency in relation to a matter covered by

paragraph 317T(2)(a); or

(ii) are by way of giving help to an interception agency in

relation to a matter covered by paragraph 317T(2)(b);

the chief officer of the interception agency.

(9) If:

(a) the assessors have begun to carry out an assessment under

paragraph (6)(a) in relation to a technical capability notice

proposed to be given to a designated communications

provider; and

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(b) the provider informs the Attorney-General that the provider

no longer wants the assessment to be carried out;

then:

(c) the Attorney-General must direct the assessors to cease

carrying out the assessment; and

(d) the assessors must comply with the direction.

(10) If:

(a) the assessors have begun to carry out an assessment under

paragraph (6)(a); and

(b) the Attorney-General withdraws the proposed technical

capability notice to which the assessment relates;

then:

(c) the Attorney-General must direct the assessors to cease

carrying out the assessment; and

(d) the assessors must comply with the direction.

Attorney-General must have regard to the report of the assessment

(11) If:

(a) a notice is given under subsection (1) in relation to a

technical capability notice proposed to be given to a

designated communications provider; and

(b) a copy of the report relating to the proposed technical

capability notice is given to the Attorney-General under

subsection (6);

the Attorney-General, in considering whether to proceed to give

the technical capability notice, must have regard to the copy of the

report.

Technical capability notice information

(12) For the purposes of this Part:

(a) information about the carrying out of an assessment under

subsection (6); or

(b) information contained in a report prepared under

subsection (6);

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is taken to be information about consultation relating to the giving

of a technical capability notice.

Prescribed court

(13) For the purposes of this section, prescribed court means:

(a) the High Court; or

(b) the Federal Court of Australia; or

(c) the Supreme Court of a State or Territory; or

(d) the District Court (or equivalent) of a State or Territory.

317X Variation of technical capability notices

(1) If a technical capability notice has been given to a designated

communications provider, the Attorney-General may, by written

notice given to the provider, vary the notice.

Acts or things specified in a varied technical capability notice

(2) The acts or things specified in a varied technical capability notice

must be:

(a) in connection with any or all of the eligible activities of the

designated communications provider concerned; and

(b) covered by subsection 317T(2).

(3) The acts or things specified in a varied technical capability notice

in accordance with paragraph 317T(2)(b) must be listed acts or

things, so long as those acts or things:

(a) are in connection with any or all of the eligible activities of

the designated communications provider concerned; and

(b) are covered by subsection 317T(2), so far as that subsection

relates to paragraph 317T(2)(b).

Note: For listed acts or things, see section 317E.

Decision-making criteria

(4) The Attorney-General must not vary a technical capability notice

unless the Attorney-General is satisfied that:

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(a) the requirements imposed by the varied notice are reasonable

and proportionate; and

(b) compliance with the varied notice is:

(i) practicable; and

(ii) technically feasible.

Note: See also section 317ZAA.

Variation must not extend duration of technical capability notice

(5) A variation of a technical capability notice must not extend the

period for which the notice is in force.

Notification obligations

(6) If:

(a) the Attorney-General varies a technical capability notice; and

(b) the acts or things specified in the varied notice:

(i) are directed towards ensuring that a designated

communications provider is capable of giving listed

help (within the meaning of section 317T) to ASIO in

relation to a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to ASIO in relation to a

matter covered by paragraph 317T(2)(b);

the Attorney-General must, within 7 days after varying the notice,

notify the Inspector-General of Intelligence and Security that the

notice has been varied.

(7) If:

(a) the Attorney-General varies a technical capability notice; and

(b) the acts or things specified in the varied notice:

(i) are directed towards ensuring that a designated

communications provider is capable of giving listed

help (within the meaning of section 317T) to an

interception agency in relation to a matter covered by

paragraph 317T(2)(a); or

(ii) are by way of giving help to an interception agency in

relation to a matter covered by paragraph 317T(2)(b);

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the Attorney-General must, within 7 days after varying the notice,

notify the Commonwealth Ombudsman that the notice has been

varied.

(8) A failure to comply with subsection (6) or (7) does not affect the

validity of a variation of a technical capability notice.

317XA Approval of variation of technical capability notice

(1) If a technical capability notice has been given to a designated

communications provider, the Attorney-General must not vary the

notice unless:

(a) both:

(i) the Attorney-General has given the Minister a written

notice setting out a proposal to vary the technical

capability notice; and

(ii) the Minister has approved the variation of the technical

capability notice; or

(b) the provider has waived compliance with subsection 317Y(2)

in relation to the variation of the technical capability notice.

(2) An approval under subparagraph (1)(a)(ii) may be given:

(a) orally; or

(b) in writing.

(3) If an approval under subparagraph (1)(a)(ii) is given orally, the

Minister must:

(a) make a written record of the approval; and

(b) do so within 48 hours after the approval was given.

(4) The Attorney-General may make a representation to the Minister

about the proposal to vary the technical capability notice.

(5) A representation may deal with:

(a) any of the matters set out in section 317ZAA; and

(b) such other matters (if any) as the Attorney-General considers

relevant.

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(6) In considering whether to approve the variation of the technical

capability notice, the Minister must have regard to the following

matters:

(a) the objectives of the notice as proposed to be varied;

(b) the legitimate interests of the designated communications

provider to whom the notice relates;

(c) the impact of the notice as proposed to be varied on the

efficiency and international competitiveness of the Australian

telecommunications industry;

(d) the representation (if any) that was made under

subsection (4);

(e) such other matters (if any) as the Minister considers relevant.

317Y Consultation about a proposal to vary a technical capability

notice

(1) If a technical capability notice has been given to a designated

communications provider, the Attorney-General must not vary the

notice unless the Attorney-General has first:

(a) given the provider a written notice (the consultation notice):

(i) setting out a proposal to vary the technical capability

notice; and

(ii) inviting the provider to make a submission to the

Attorney-General on the proposed variation; and

(b) considered any submission that was received within the time

limit specified in the consultation notice.

(2) A time limit specified in a consultation notice must run for at least

28 days.

(3) If a technical capability notice has been given to a designated

communications provider, the rule in subsection (2) does not apply

to a variation of the notice if:

(a) the Attorney-General is satisfied that the technical capability

notice should be varied as a matter of urgency; or

(b) compliance with subsection (2) is impracticable; or

(c) the provider waives compliance with subsection (2).

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(4) For the purposes of paragraph (3)(c), a designated communications

provider may waive compliance:

(a) orally; or

(b) in writing.

(5) If compliance is waived orally by a designated communications

provider, the provider must:

(a) make a written record of the waiver; and

(b) do so within 48 hours after the waiver was made.

(6) If, under subsection (5), a designated communications provider

makes a written record of the waiver, the provider must:

(a) give a copy of the record to the Attorney-General; and

(b) do so as soon as practicable after the record was made.

317YA Assessment and report

Designated communications provider may request carrying out of

assessment

(1) If:

(a) a consultation notice is given to a designated

communications provider under subsection 317Y(1) in

relation to a proposed variation of a technical capability

notice; and

(b) the variation is not of a minor nature;

the provider may, within the time limit specified in the consultation

notice, give the Attorney-General a written notice requesting the

carrying out of an assessment of whether the technical capability

notice as proposed to be varied would contravene section 317ZG.

Attorney-General must appoint assessors

(2) If a designated communications provider gives the

Attorney-General a notice under subsection (1) in relation to a

technical capability notice as proposed to be varied, the

Attorney-General must appoint 2 persons to carry out an

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assessment of whether the technical capability notice as proposed

to be varied would contravene section 317ZG.

(3) For the purposes of this section, the persons appointed under

subsection (2) are to be known as the assessors.

(4) One of the assessors must be a person who:

(a) has knowledge that would enable the person to assess

whether proposed technical capability notices would

contravene section 317ZG; and

(b) is cleared for security purposes to:

(i) the highest level required by staff members of ASIO; or

(ii) such lower level as the Attorney-General approves.

(5) One of the assessors must be a person who:

(a) has served as a judge in one or more prescribed courts for a

period of 5 years; and

(b) no longer holds a commission as a judge of a prescribed

court.

Assessment and report by assessors

(6) As soon as practicable after being appointed under subsection (2),

the assessors must:

(a) carry out an assessment of whether the technical capability

notice as proposed to be varied would contravene

section 317ZG; and

(b) prepare a report of the assessment; and

(c) give a copy of the report to:

(i) the Attorney-General; and

(ii) the designated communications provider concerned; and

(d) if the acts or things specified in the technical capability

notice as proposed to be varied:

(i) are directed towards ensuring that the designated

communications provider is capable of giving listed

help (within the meaning of section 317T) to ASIO in

relation to a matter covered by paragraph 317T(2)(a); or

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(ii) are by way of giving help to ASIO in relation to a

matter covered by paragraph 317T(2)(b);

give a copy of the report to the Inspector-General of

Intelligence and Security; and

(e) if the acts or things specified in the technical capability

notice as proposed to be varied:

(i) are directed towards ensuring that the designated

communications provider is capable of giving listed

help (within the meaning of section 317T) to an

interception agency in relation to a matter covered by

paragraph 317T(2)(a); or

(ii) are by way of giving help to an interception agency in

relation to a matter covered by paragraph 317T(2)(b);

give a copy of the report to the Commonwealth Ombudsman.

(7) In carrying out an assessment under paragraph (6)(a) in relation to

a technical capability notice as proposed to be varied, the assessors

must consult:

(a) the designated communications provider concerned; and

(b) if the acts or things specified in the technical capability

notice as proposed to be varied:

(i) are directed towards ensuring that the designated

communications provider is capable of giving listed

help (within the meaning of section 317T) to ASIO in

relation to a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to ASIO in relation to a

matter covered by paragraph 317T(2)(b);

the Director-General of Security; and

(c) if the acts or things specified in the technical capability

notice as proposed to be varied:

(i) are directed towards ensuring that the designated

communications provider is capable of giving listed

help (within the meaning of section 317T) to an

interception agency in relation to a matter covered by

paragraph 317T(2)(a); or

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(ii) are by way of giving help to an interception agency in

relation to a matter covered by paragraph 317T(2)(b);

the chief officer of the interception agency.

(8) If:

(a) the assessors have begun to carry out an assessment under

paragraph (6)(a) in relation to the technical capability notice

as proposed to be varied; and

(b) the designated communications provider concerned informs

the Attorney-General that the provider no longer wants the

assessment to be carried out;

then:

(c) the Attorney-General must direct the assessors to cease

carrying out the assessment; and

(d) the assessors must comply with the direction.

(9) If:

(a) the assessors have begun to carry out an assessment under

paragraph (6)(a); and

(b) the Attorney-General withdraws the proposed variation of the

technical capability notice concerned;

then:

(c) the Attorney-General must direct the assessors to cease

carrying out the assessment; and

(d) the assessors must comply with the direction.

Attorney-General must have regard to the report of the assessment

(10) If:

(a) a notice is given under subsection (1) in relation to a

proposed variation of a technical capability notice; and

(b) a copy of the report relating to the technical capability notice

as proposed to be varied is given to the Attorney-General

under subsection (6);

the Attorney-General, in considering whether to proceed to vary

the technical capability notice, must have regard to the copy of the

report.

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Section 317Z

Technical capability notice information

(11) For the purposes of this Part:

(a) information about the carrying out of an assessment under

subsection (6); or

(b) information contained in a report prepared under

subsection (6);

is taken to be information about consultation relating to the

variation of a technical capability notice.

Prescribed court

(12) For the purposes of this section, prescribed court means:

(a) the High Court; or

(b) the Federal Court of Australia; or

(c) the Supreme Court of a State or Territory; or

(d) the District Court (or equivalent) of a State or Territory.

317Z Revocation of technical capability notices

(1) If a technical capability notice has been given to a person, the

Attorney-General may, by written notice given to the person,

revoke the notice.

(2) If a technical capability notice has been given to a person, and the

Attorney-General is satisfied that:

(a) the requirements imposed by the notice are not reasonable

and proportionate; or

(b) compliance with the notice is not:

(i) practicable; and

(ii) technically feasible;

the Attorney-General must, by written notice given to the person,

revoke the notice.

Notification obligations

(3) If:

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(a) the Attorney-General revokes a technical capability notice;

and

(b) the acts or things specified in the revoked notice:

(i) are directed towards ensuring that a designated

communications provider is capable of giving listed

help (within the meaning of section 317T) to ASIO in

relation to a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to ASIO in relation to a

matter covered by paragraph 317T(2)(b);

the Attorney-General must, within 7 days after revoking the notice,

notify the Inspector-General of Intelligence and Security that the

notice has been revoked.

(4) If:

(a) the Attorney-General revokes a technical capability notice;

and

(b) the acts or things specified in the revoked notice:

(i) are directed towards ensuring that a designated

communications provider is capable of giving listed

help (within the meaning of section 317T) to an

interception agency in relation to a matter covered by

paragraph 317T(2)(a); or

(ii) are by way of giving help to an interception agency in

relation to a matter covered by paragraph 317T(2)(b);

the Attorney-General must, within 7 days after revoking the notice,

notify the Commonwealth Ombudsman that the notice has been

revoked.

(5) A failure to comply with subsection (3) or (4) does not affect the

validity of a revocation of a technical capability notice.

317ZAA Whether requirements imposed by a technical capability

notice are reasonable and proportionate

In considering whether the requirements imposed by a technical

capability notice or a varied technical capability notice are

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reasonable and proportionate, the Attorney-General must have

regard to the following matters:

(a) the interests of national security;

(b) the interests of law enforcement;

(c) the legitimate interests of the designated communications

provider to whom the notice relates;

(d) the objectives of the notice;

(e) the availability of other means to achieve the objectives of

the notice;

(ea) whether the requirements, when compared to other forms of

industry assistance known to the Attorney-General, are the

least intrusive form of industry assistance so far as the

following persons are concerned:

(i) persons whose activities are not of interest to ASIO;

(ii) persons whose activities are not of interest to

interception agencies;

(eb) whether the requirements are necessary;

(f) the legitimate expectations of the Australian community

relating to privacy and cybersecurity;

(g) such other matters (if any) as the Attorney-General considers

relevant.

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Division 5 Compliance and enforcement

Section 317ZA

Division 5—Compliance and enforcement

317ZA Compliance with notices—carriers and carriage service

providers

(1) A carrier or carriage service provider must comply with a

requirement under:

(a) a technical assistance notice; or

(b) a technical capability notice;

to the extent that the carrier or provider is capable of doing so.

(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.

317ZB Compliance with notices—designated communications

provider (other than a carrier or carriage service

provider)

(1) A designated communications provider (other than a carrier or

carriage service provider) must comply with a requirement under:

(a) a technical assistance notice; or

(b) a technical capability notice;

to the extent that the provider is capable of doing so.

Civil penalty:

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(a) if the provider is a body corporate—47,619 penalty units; or

(b) if the provider is not a body corporate—238 penalty units.

(2) The pecuniary penalty for a contravention by a designated

communications provider of subsection (1) must not be more than:

(a) if the provider is a body corporate—47,619 penalty units; or

(b) if the provider is not a body corporate—238 penalty units.

(3) Subsection 82(5) of the Regulatory Powers (Standard Provisions)

Act 2014 does not apply to a contravention of subsection (1) of this

section.

(4) Sections 564 and 572B do not apply to a contravention of

subsection (1) of this section.

(5) In proceedings for a civil penalty order against a designated

communications provider for a contravention of subsection (1) in

relation to:

(a) a requirement under a technical assistance notice to do an act

or thing in a foreign country; or

(b) a requirement under a technical capability notice to do an act

or thing in a foreign country;

it is a defence if the provider proves that compliance with the

requirement in the foreign country would contravene a law of the

foreign country.

317ZC Civil penalty provision

Enforceable civil penalty provision

(1) Section 317ZB of this Act is enforceable under Part 4 of the

Regulatory Powers (Standard Provisions) Act 2014.

Note: Part 4 of the Regulatory Powers (Standard Provisions) Act 2014

allows a civil penalty provision to be enforced by obtaining an order

for a person to pay a pecuniary penalty for the contravention of the

provision.

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Section 317ZD

Authorised applicant

(2) For the purposes of Part 4 of the Regulatory Powers (Standard

Provisions) Act 2014, the Communications Access Co-ordinator is

an authorised applicant in relation to section 317ZB of this Act.

Relevant courts

(3) For the purposes of Part 4 of the Regulatory Powers (Standard

Provisions) Act 2014, the Federal Court and the Federal Circuit

Court of Australia are relevant courts in relation to section 317ZB

of this Act.

Extension to external Territories etc.

(4) Part 4 of the Regulatory Powers (Standard Provisions) Act 2014,

as it applies in relation to section 317ZB of this Act, extends to:

(a) every external Territory; and

(b) acts, omissions, matters and things outside Australia.

317ZD Enforceable undertakings

Enforceable provision

(1) Section 317ZB of this Act is enforceable under Part 6 of the

Regulatory Powers (Standard Provisions) Act 2014.

Authorised person

(2) The Communications Access Co-ordinator is an authorised person

in relation to section 317ZB of this Act for the purposes of Part 6

of the Regulatory Powers (Standard Provisions) Act 2014.

Relevant courts

(3) The Federal Court and the Federal Circuit Court of Australia are

relevant courts in relation to section 317ZB of this Act for the

purposes of Part 6 of the Regulatory Powers (Standard Provisions)

Act 2014.

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Extension to external Territories etc.

(4) Part 6 of the Regulatory Powers (Standard Provisions) Act 2014,

as it applies in relation to section 317ZB of this Act, extends to:

(a) every external Territory; and

(b) acts, omissions, matters and things outside Australia.

317ZE Injunctions

Enforceable provision

(1) Section 317ZB of this Act is enforceable under Part 7 of the

Regulatory Powers (Standard Provisions) Act 2014.

Authorised person

(2) The Communications Access Co-ordinator is an authorised person

in relation to section 317ZB of this Act for the purposes of Part 7

of the Regulatory Powers (Standard Provisions) Act 2014.

Relevant courts

(3) The Federal Court and the Federal Circuit Court of Australia are

relevant courts in relation to section 317ZB of this Act for the

purposes of Part 7 of the Regulatory Powers (Standard Provisions)

Act 2014.

Extension to external Territories etc.

(4) Part 7 of the Regulatory Powers (Standard Provisions) Act 2014,

as it applies in relation to section 317ZB of this Act, extends to:

(a) every external Territory; and

(b) acts, omissions, matters and things outside Australia.

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Division 6 Unauthorised disclosure of information etc.

Section 317ZF

Division 6—Unauthorised disclosure of information etc.

317ZF Unauthorised disclosure of information

(1) A person commits an offence if:

(a) the person discloses information; and

(b) the person is or was:

(i) a designated communications provider; or

(ii) an employee of a designated communications provider;

or

(iii) a contracted service provider of a designated

communications provider; or

(iv) an employee of a contracted service provider of a

designated communications provider; or

(v) an entrusted ASIO person; or

(vi) an entrusted ASIS person; or

(vii) an entrusted ASD person; or

(viii) an officer of an interception agency; or

(ix) an officer or employee of the Commonwealth, a State or

a Territory; or

(x) a person appointed under subsection 317WA(2); or

(xa) a person appointed under subsection 317YA(2); or

(xi) an arbitrator appointed under section 317ZK; and

(c) the information:

(i) is technical assistance notice information; or

(ii) is technical capability notice information; or

(iii) is technical assistance request information; or

(iv) was obtained in accordance with a technical assistance

notice; or

(v) was obtained in accordance with a technical capability

notice; or

(vi) was obtained in accordance with a technical assistance

request; and

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(d) if the information is covered by subparagraph (c)(i), (ii) or

(iii)—the information has come to the person’s knowledge,

or into the person’s possession:

(i) if the person is or was a designated communications

provider—in connection with the person’s capacity as

such a provider; or

(ii) if the person is or was an employee of a designated

communications provider—because the person is or was

employed by the provider in connection with its

business as such a provider; or

(iii) if the person is or was a contracted service provider of a

designated communications provider—in connection

with the person’s business as such a contracted service

provider; or

(iv) if the person is or was an employee of a contracted

service provider of a designated communications

provider—because the person is or was employed by the

contractor in connection with its business as such a

contracted service provider; or

(v) if the person is or was an entrusted ASIO person—in the

person’s capacity as such an entrusted ASIO person; or

(vi) if the person is or was an entrusted ASIS person—in the

person’s capacity as such an entrusted ASIS person; or

(vii) if the person is or was an entrusted ASD person—in the

person’s capacity as such an entrusted ASD person; or

(viii) if the person is or was an officer of an interception

agency—in the person’s capacity as such an officer; or

(ix) if the person is or was an officer or employee of the

Commonwealth, a State or a Territory—in the person’s

capacity as such an officer or employee; or

(ixa) if the person is or was a person appointed under

subsection 317WA(2)—in the person’s capacity as such

an appointee; or

(ixb) if the person is or was a person appointed under

subsection 317YA(2)—in the person’s capacity as such

an appointee; or

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(x) if the person is or was an arbitrator appointed under

section 317ZK—in the person’s capacity as such an

arbitrator; and

(e) if the information is covered by subparagraph (c)(iv), (v) or

(vi)—the information has come to the person’s knowledge,

or into the person’s possession:

(i) if the person is or was an entrusted ASIO person—in the

person’s capacity as such an entrusted ASIO person; or

(ii) if the person is or was an entrusted ASIS person—in the

person’s capacity as such an entrusted ASIS person; or

(iii) if the person is or was an entrusted ASD person—in the

person’s capacity as such an entrusted ASD person; or

(iv) if the person is or was an officer of an interception

agency—in the person’s capacity as such an officer; or

(v) if the person is or was an officer or employee of the

Commonwealth, a State or a Territory—in the person’s

capacity as such an officer or employee; or

(vi) if the person is or was an arbitrator appointed under

section 317ZK—in the person’s capacity as such an

arbitrator.

Penalty: Imprisonment for 5 years.

Exceptions

(2) Subsection (1) does not apply if the disclosure was authorised

under subsection (3), (5), (5A), (5B), (5C), (6), (7), (8), (9), (10),

(11), (12A), (12B), (12C), (12D), (13), (14), (15) or (16).

Note: Except as provided by subsection (2A) or (2B), a defendant bears an

evidential burden in relation to the matters in this subsection—see

subsection 13.3(3) of the Criminal Code.

(2A) Despite subsection 13.3(3) of the Criminal Code, in a prosecution

for an offence against subsection (1) of this section, an IGIS

official does not bear an evidential burden in relation to the matters

in subsection (2) of this section, to the extent to which that

subsection relates to subsection (5) of this section.

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(2B) Despite subsection 13.3(3) of the Criminal Code, in a prosecution

for an offence against subsection (1) of this section, an

Ombudsman official does not bear an evidential burden in relation

to the matters in subsection (2) of this section, to the extent to

which that subsection relates to subsection (5A), (5B) or (5C) of

this section.

Authorised disclosures—general

(3) A person covered by paragraph (1)(b) may disclose technical

assistance notice information, technical capability notice

information or technical assistance request information:

(a) in connection with the administration or execution of this

Part; or

(b) for the purposes of any legal proceedings arising out of or

otherwise related to this Part or of any report of any such

proceedings; or

(c) in accordance with any requirement imposed by a law of the

Commonwealth, a State or a Territory; or

(d) in connection with the performance of functions, or the

exercise of powers, by:

(i) ASIO; or

(ii) the Australian Secret Intelligence Service; or

(iii) the Australian Signals Directorate; or

(iv) an interception agency; or

(e) for the purpose of obtaining legal advice in relation to this

Part; or

(f) to an IGIS official for the purpose of exercising powers, or

performing functions or duties, as an IGIS official; or

(g) to an Ombudsman official for the purpose of exercising

powers, or performing functions or duties, as an Ombudsman

official.

(4) For the purposes of subsection (3), this Part includes:

(a) any other provision of this Act, so far as that other provision

relates to this Part; and

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(b) the Regulatory Powers (Standard Provisions) Act 2014, so

far as that Act relates to this Part.

Authorised disclosures—IGIS official

(5) An IGIS official may disclose:

(a) technical assistance notice information; or

(b) technical capability notice information; or

(c) technical assistance request information;

in connection with the IGIS official exercising powers, or

performing functions or duties, as an IGIS official.

Authorised disclosures—Ombudsman official

(5A) An Ombudsman official may disclose:

(a) technical assistance notice information; or

(b) technical capability notice information; or

(c) technical assistance request information;

in connection with the Ombudsman official exercising powers, or

performing functions or duties, as an Ombudsman official.

(5B) If a technical assistance notice is given by the chief officer of an

interception agency of a State or Territory, an Ombudsman official

may disclose technical assistance notice information that relates to

the notice to an officer or employee of an authority that is the State

or Territory inspecting authority in relation to the interception

agency, so long as the disclosure is in connection with the officer

or employee exercising powers, or performing functions or duties,

as an officer or employee of the State or Territory inspecting

authority.

(5C) If a technical assistance request is given by the chief officer of an

interception agency of a State or Territory, an Ombudsman official

may disclose technical assistance request information that relates to

the request to an officer or employee of an authority that is the

State or Territory inspecting authority in relation to the interception

agency, so long as the disclosure is in connection with the officer

or employee exercising powers, or performing functions or duties,

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as an officer or employee of the State or Territory inspecting

authority.

Authorised disclosures—information sharing

(6) The Director-General of Security or the Communications Access

Co-ordinator may disclose information that is:

(a) technical assistance notice information; or

(b) technical capability notice information; or

(c) technical assistance request information;

to the chief officer of an interception agency for purposes relating

to the performance of functions, or the exercise of powers, by the

interception agency.

(7) The chief officer of an interception agency may disclose

information that is:

(a) technical assistance notice information; or

(b) technical capability notice information; or

(c) technical assistance request information;

to the chief officer of another interception agency for purposes

relating to the performance of functions, or the exercise of powers,

by the other interception agency.

(8) The Director-General of Security, the Director-General of the

Australian Signals Directorate or the chief officer of an

interception agency may disclose information that is:

(a) technical assistance notice information; or

(b) technical capability notice information; or

(c) technical assistance request information;

to the Director-General of the Australian Secret Intelligence

Service for purposes relating to the performance of functions, or

the exercise of powers, by the Australian Secret Intelligence

Service.

(9) The Director-General of Security, the Director-General of the

Australian Secret Intelligence Service or the chief officer of an

interception agency may disclose information that is:

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(a) technical assistance notice information; or

(b) technical capability notice information; or

(c) technical assistance request information;

to the Director-General of the Australian Signals Directorate for

purposes relating to the performance of functions, or the exercise

of powers, by the Australian Signals Directorate.

(10) The Communications Access Co-ordinator, the Director-General of

the Australian Secret Intelligence Service, the Director-General of

the Australian Signals Directorate or the chief officer of an

interception agency may disclose information that is:

(a) technical assistance notice information; or

(b) technical capability notice information; or

(c) technical assistance request information;

to the Director-General of Security for purposes relating to the

performance of functions, or the exercise of powers, by ASIO.

(11) The Director-General of Security or the chief officer of an

interception agency may disclose information that is:

(a) technical assistance notice information; or

(b) technical capability notice information; or

(c) technical assistance request information;

to the Communications Access Co-ordinator for purposes relating

to the performance of functions, or the exercise of powers, by the

Communications Access Co-ordinator.

(12) Before disclosing information under subsection (6), (7), (8), (9) or

(10), the Director-General of Security, the Director-General of the

Australian Secret Intelligence Service, the Director-General of the

Australian Signals Directorate or the chief officer of an

interception agency, as the case requires, must notify the

Communications Access Co-ordinator of the proposed disclosure.

Authorised disclosures—Communications Access Co-ordinator

(12A) If:

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(a) the Attorney-General has given a technical capability notice;

and

(b) the acts or things specified in the notice:

(i) are directed towards ensuring that a designated

communications provider is capable of giving listed

help (within the meaning of section 317T) to an

interception agency of a State or Territory in relation to

a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to an interception agency of a

State or Territory in relation to a matter covered by

paragraph 317T(2)(b);

the Communications Access Co-ordinator may disclose technical

capability notice information that relates to the notice to an officer

or employee of an authority that is the State or Territory inspecting

authority in relation to the interception agency, so long as the

disclosure is in connection with the officer or employee exercising

powers, or performing functions or duties, as an officer or

employee of the State or Territory inspecting authority.

Authorised disclosures—State or Territory inspecting authority

(12B) If a technical assistance notice has been given to a designated

communications provider by the chief officer of an interception

agency of a State or Territory:

(a) the designated communications provider; or

(b) an employee of the designated communications provider; or

(c) a contracted service provider of the designated

communications provider; or

(d) an employee of a contracted service provider of the

designated communications provider;

may disclose technical assistance notice information that relates to

the notice to an officer or employee of an authority that is the State

or Territory inspecting authority in relation to the interception

agency, so long as the disclosure is in connection with the officer

or employee exercising powers, or performing functions or duties,

as an officer or employee of the State or Territory inspecting

authority.

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(12C) If a technical assistance request has been given to a designated

communications provider by the chief officer of an interception

agency of a State or Territory:

(a) the designated communications provider; or

(b) an employee of the designated communications provider; or

(c) a contracted service provider of the designated

communications provider; or

(d) an employee of a contracted service provider of the

designated communications provider;

may disclose technical assistance request information that relates to

the request to an officer or employee of an authority that is the

State or Territory inspecting authority in relation to the interception

agency, so long as the disclosure is in connection with the officer

or employee exercising powers, or performing functions or duties,

as an officer or employee of the State or Territory inspecting

authority.

(12D) If:

(a) technical assistance notice information is disclosed under

subsection (12B); or

(b) technical assistance request information is disclosed under

subsection (12C);

to an officer or employee of an authority that is the State or

Territory inspecting authority in relation to an interception agency,

the officer or employee may disclose the information in connection

with the officer or employee exercising powers, or performing

functions or duties, as an officer or employee of the State or

Territory inspecting authority.

Authorised disclosures—statistics

(13) A person who is:

(a) a designated communications provider; or

(b) an employee of a designated communications provider; or

(c) a contracted service provider of a designated communications

provider; or

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(d) an employee of a contracted service provider of a designated

communications provider;

may, in the person’s capacity as such a provider or employee,

disclose:

(e) the total number of technical assistance notices given to the

provider during a period of at least 6 months; or

(f) the total number of technical capability notices given to the

provider during a period of at least 6 months; or

(g) the total number of technical assistance requests given to the

provider during a period of at least 6 months.

Note: This subsection authorises the disclosure of aggregate statistical

information. That information cannot be broken down:

(a) by agency; or

(b) in any other way.

Other authorised disclosures

(14) If a technical assistance notice has been given to a designated

communications provider by the Director-General of Security, the

Director-General of Security may, if requested to do so by the

designated communications provider, authorise:

(a) the designated communications provider; or

(b) a specified employee of the designated communications

provider; or

(c) a specified contracted service provider of the designated

communications provider; or

(d) a specified employee of a contracted service provider of the

designated communications provider;

to disclose, in accordance with the conditions specified in the

authorisation, specified technical assistance notice information that

relates to the notice.

(15) If a technical assistance notice has been given to a designated

communications provider by the chief officer of an interception

agency, the chief officer may, if requested to do so by the

designated communications provider, authorise:

(a) the designated communications provider; or

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(b) a specified employee of the designated communications

provider; or

(c) a specified contracted service provider of the designated

communications provider; or

(d) a specified employee of a contracted service provider of the

designated communications provider;

to disclose, in accordance with the conditions specified in the

authorisation, specified technical assistance notice information that

relates to the notice.

(16) If a technical capability notice has been given to a designated

communications provider, the Attorney-General may, if requested

to do so by the designated communications provider, authorise:

(a) the designated communications provider; or

(b) a specified employee of the designated communications

provider; or

(c) a specified contracted service provider of the designated

communications provider; or

(d) a specified employee of a contracted service provider of the

designated communications provider;

to disclose, in accordance with the conditions specified in the

authorisation, specified technical capability notice information that

relates to the notice.

(17) An authorisation under subsection (14), (15) or (16) must be in

writing.

317ZFA Powers of a court

(1) In a proceeding under, or arising out of:

(a) this Part; or

(b) any other provision of this Act, so far as that other provision

relates to this Part; or

(c) the Regulatory Powers (Standard Provisions) Act 2014, so

far as that Act relates to this Part;

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a court may make such orders as the court considers appropriate in

relation to the disclosure, protection, storage, handling or

destruction, in the proceeding, of:

(d) technical assistance notice information; or

(e) technical capability notice information; or

(f) technical assistance request information;

if the court is satisfied that it is in the public interest to make such

orders.

(2) The powers conferred on a court by subsection (1) are in addition

to any other powers of the court.

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Division 7—Limitations

317ZG Designated communications provider must not be requested

or required to implement or build a systemic weakness or

systemic vulnerability etc.

(1) A technical assistance request, technical assistance notice or

technical capability notice must not have the effect of:

(a) requesting or requiring a designated communications

provider to implement or build a systemic weakness, or a

systemic vulnerability, into a form of electronic protection;

or

(b) preventing a designated communications provider from

rectifying a systemic weakness, or a systemic vulnerability,

in a form of electronic protection.

(2) The reference in paragraph (1)(a) to implement or build a systemic

weakness, or a systemic vulnerability, into a form of electronic

protection includes a reference to implement or build a new

decryption capability in relation to a form of electronic protection.

(3) The reference in paragraph (1)(a) to implement or build a systemic

weakness, or a systemic vulnerability, into a form of electronic

protection includes a reference to one or more actions that would

render systemic methods of authentication or encryption less

effective.

(4) Subsections (2) and (3) are enacted for the avoidance of doubt.

(4A) In a case where a weakness is selectively introduced to one or more

target technologies that are connected with a particular person, the

reference in paragraph (1)(a) to implement or build a systemic

weakness into a form of electronic protection includes a reference

to any act or thing that will, or is likely to, jeopardise the security

of any information held by any other person.

(4B) In a case where a vulnerability is selectively introduced to one or

more target technologies that are connected with a particular

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person, the reference in paragraph (1)(a) to implement or build a

systemic vulnerability into a form of electronic protection includes

a reference to any act or thing that will, or is likely to, jeopardise

the security of any information held by any other person.

(4C) For the purposes of subsections (4A) and (4B), an act or thing will,

or is likely to, jeopardise the security of information if the act or

thing creates a material risk that otherwise secure information can

be accessed by an unauthorised third party.

(5) A technical assistance request, technical assistance notice or

technical capability notice has no effect to the extent (if any) to

which it would have an effect covered by paragraph (1)(a) or (b).

317ZGA Limits on technical capability notices

(1) If:

(a) a designated communications provider supplies a particular

kind of telecommunications service; and

(b) the service involves, or will involve, the use of a

telecommunications system;

a technical capability notice has no effect to the extent (if any) to

which it requires the provider to ensure that the kind of service, or

the system:

(c) has the capability to enable a communication passing over

the system to be intercepted in accordance with an

interception warrant; or

(d) has the capability to transmit lawfully intercepted

information to the delivery points applicable in respect of

that kind of service; or

(e) has a delivery capability.

Note 1: Part 5-3 of the Telecommunications (Interception and Access) Act

1979 deals with interception capability.

Note 2: Part 5-5 of the Telecommunications (Interception and Access) Act

1979 deals with delivery capability.

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(2) For the purposes of subsection (1), ensuring that a kind of service

or a system has a particular capability includes ensuring that the

capability is developed, installed and maintained.

(3) A technical capability notice has no effect to the extent (if any) to

which it requires a designated communications provider to keep, or

cause to be kept:

(a) information of a kind specified in or under section 187AA of

the Telecommunications (Interception and Access) Act 1979;

or

(b) documents containing information of that kind;

relating to any communication carried by means of a service to

which Part 5-1A of the Telecommunications (Interception and

Access) Act 1979 applies.

Note: Part 5-1A of the Telecommunications (Interception and Access) Act

1979 deals with data retention.

(4) A technical capability notice has no effect to the extent (if any) to

which it requires a designated communications provider to keep, or

cause to be kept, information that:

(a) states an address to which a communication was sent on the

internet, from a telecommunications device, using an internet

access service provided by the provider; and

(b) was obtained by the provider only as a result of providing the

service.

Note: This subsection ensures that a technical capability notice cannot

require a designated communications provider to keep information

about subscribers’ web browsing history.

(5) An expression used in this section and in Chapter 5 of the

Telecommunications (Interception and Access) Act 1979 has the

same meaning in this section as it has in that Chapter.

317ZH General limits on technical assistance requests, technical

assistance notices and technical capability notices

(1) A technical assistance request that relates to an agency, or a

technical assistance notice that relates to an agency, or a technical

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capability notice that relates to an agency, has no effect to the

extent (if any) to which it would request or require a designated

communications provider to do an act or thing for which the

agency, or an officer of the agency, would be required to have or

obtain a warrant or authorisation under any of the following laws:

(a) the Telecommunications (Interception and Access) Act 1979;

(b) the Surveillance Devices Act 2004;

(c) the Crimes Act 1914;

(d) the Australian Security Intelligence Organisation Act 1979;

(f) a law of the Commonwealth (other than this Part) that is not

covered by paragraph (a), (b), (c) or (d);

(g) a law of a State or Territory.

(2) For the purposes of subsection (1):

(a) assume that each law mentioned in that subsection applied

both within and outside Australia; and

(b) assume that each reference in Part 13 to a carriage service

provider included a reference to a designated

communications provider.

(3) A technical assistance request, technical assistance notice or

technical capability notice has no effect to the extent (if any) to

which it would request or require a designated communications

provider to:

(a) use a surveillance device (within the meaning of the

Surveillance Devices Act 2004); or

(b) access data held in a computer (within the meaning of the

Surveillance Devices Act 2004);

if a law of a State or Territory requires a warrant or authorisation

for that use or access.

(4) To avoid doubt, subsection (1) or (3) does not prevent a technical

assistance request, technical assistance notice or technical

capability notice from requesting or requiring a designated

communications provider to do an act or thing by way of giving

help to:

(a) ASIO; or

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(b) an interception agency;

in relation to:

(ca) in the case of a technical assistance request—a matter

covered by subparagraph 317G(2)(b)(v) or (vi); or

(c) in the case of a technical assistance notice—a matter covered

by paragraph 317L(2)(c) or (d); or

(d) in the case of a technical capability notice—a matter covered

by subparagraph 317T(2)(b)(i) or (ii);

if the doing of the act or thing would:

(e) assist in, or facilitate, giving effect to a warrant or

authorisation under a law of the Commonwealth, a State or a

Territory; or

(f) give effect to a warrant or authorisation under a law of the

Commonwealth.

(5) To avoid doubt, subsection (1) or (3) does not prevent a technical

capability notice from requiring a designated communications

provider to do an act or thing directed towards ensuring that the

provider is capable of giving listed help (within the meaning of

section 317T) to:

(a) ASIO; or

(b) an interception agency;

in relation to a matter covered by subparagraph 317T(2)(a)(i) or

(ii), if the doing of the act or thing would:

(c) assist in, or facilitate, giving effect to a warrant or

authorisation under a law of the Commonwealth, a State or a

Territory; or

(d) give effect to a warrant or authorisation under a law of the

Commonwealth.

Interpretation

(6) For the purposes of this section, a technical assistance request

relates to an agency if:

(a) if the agency is ASIO—the request was given by the

Director-General of Security; or

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(b) if the agency is the Australian Secret Intelligence Service—

the request was given by the Director-General of the

Australian Secret Intelligence Service; or

(c) if the agency is the Australian Signals Directorate—the

request was given by the Director-General of the Australian

Signals Directorate; or

(d) if the agency is an interception agency—the request was

given by the chief officer of the interception agency.

(7) For the purposes of this section, a technical assistance notice

relates to an agency if:

(a) if the agency is ASIO—the notice was given by the

Director-General of Security; or

(b) if the agency is an interception agency—the notice was given

by the chief officer of the interception agency.

(8) For the purposes of this section, a technical capability notice

relates to an agency if:

(a) if the agency is ASIO—the acts or things specified in the

notice:

(i) are directed towards ensuring that a designated

communications provider is capable of giving listed

help (within the meaning of section 317T) to ASIO in

relation to a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to ASIO in relation to a

matter covered by paragraph 317T(2)(b); or

(b) if the agency is an interception agency—the acts or things

specified in the notice:

(i) are directed towards ensuring that a designated

communications provider is capable of giving listed

help (within the meaning of section 317T) to the

interception agency in relation to a matter covered by

paragraph 317T(2)(a); or

(ii) are by way of giving help to the interception agency in

relation to a matter covered by paragraph 317T(2)(b).

(9) For the purposes of this section, agency means:

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(a) ASIO; or

(b) the Australian Secret Intelligence Service; or

(c) the Australian Signals Directorate; or

(d) an interception agency.

(10) For the purposes of this section, officer of an agency means:

(a) if the agency is ASIO:

(i) the Director-General of Security; or

(ii) an ASIO employee; or

(b) if the agency is the Australian Secret Intelligence Service:

(i) the Director-General of the Australian Secret

Intelligence Service; or

(ii) a staff member of the Australian Secret Intelligence

Service; or

(c) if the agency is the Australian Signals Directorate:

(i) the Director-General of the Australian Signals

Directorate; or

(ii) a staff member of the Australian Signals Directorate; or

(d) if the agency is an interception agency:

(i) the chief officer of the interception agency; or

(ii) an officer of the interception agency.

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Division 8—General provisions

317ZJ Immunity

(1) A designated communications provider is not subject to any civil

liability for, or in relation to, an act or thing done by the provider:

(a) in compliance; or

(b) in good faith in purported compliance;

with:

(c) a technical assistance notice; or

(d) a technical capability notice.

(2) Paragraph (1)(b) does not apply to an act or thing done by a

designated communications provider unless the act or thing is in

connection with any or all of the eligible activities of the provider.

(3) An officer, employee or agent of a designated communications

provider is not subject to any civil liability for, or in relation to, an

act or thing done by the officer, employee or agent in connection

with an act or thing done by the provider:

(a) in compliance; or

(b) in good faith in purported compliance;

with:

(c) a technical assistance notice; or

(d) a technical capability notice.

(4) Paragraph (3)(b) does not apply to an act or thing done by a

designated communications provider unless the act or thing is in

connection with any or all of the eligible activities of the provider.

317ZK Terms and conditions on which help is to be given etc.

Scope

(1) This section applies if a designated communications provider is

subject to a requirement under:

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(a) a technical assistance notice; or

(b) a technical capability notice;

unless:

(c) in the case of a requirement under a technical assistance

notice given by the Director-General of Security—the

Director-General of Security declares in writing that the

Director-General of Security is satisfied that it would be

contrary to the public interest for this section to apply to the

requirement; or

(d) in the case of a requirement under a technical assistance

notice given by the chief officer of an interception agency—

the chief officer declares in writing that the chief officer is

satisfied that it would be contrary to the public interest for

this section to apply to the requirement; or

(e) in the case of a requirement under a technical capability

notice—the Attorney-General declares in writing that the

Attorney-General is satisfied that it would be contrary to the

public interest for this section to apply to the requirement.

(2) In deciding whether it would be contrary to the public interest for

this section to apply to a requirement, the Director-General of

Security, the chief officer or the Attorney-General, as the case may

be, must have regard to the following matters:

(a) in the case of a requirement under a technical assistance

notice given by the chief officer of an interception agency or

a requirement under a technical capability notice that relates

to an interception agency—the interests of law enforcement;

(b) in the case of a requirement under a technical assistance

notice given by the Director-General of Security or a

requirement under a technical capability notice that relates to

ASIO—the interests of national security;

(c) the objects of this Act;

(d) the extent to which compliance with the requirement will

impose a regulatory burden on the provider;

(e) the reasons for the giving of the technical assistance notice or

technical capability notice, as the case requires;

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(f) such other matters (if any) as the Director-General of

Security, the chief officer or the Attorney-General, as the

case may be, considers relevant.

Basis of compliance

(3) The designated communications provider must comply with the

requirement on the basis that the provider neither:

(a) profits from complying with the requirement; nor

(b) bears the reasonable costs of complying with the

requirement;

unless:

(c) the provider and the applicable costs negotiator otherwise

agree; or

(d) in the case of a requirement under a technical assistance

notice given by the Director-General of Security—the

Director-General of Security declares in writing that the

Director-General of Security is satisfied that it would be

contrary to the public interest for this subsection to apply to

the requirement; or

(e) in the case of a requirement under a technical assistance

notice given by the chief officer of an interception agency—

the chief officer declares in writing that the chief officer is

satisfied that it would be contrary to the public interest for

this subsection to apply to the requirement; or

(f) in the case of a requirement under a technical capability

notice—the Attorney-General declares in writing that the

Attorney-General is satisfied that it would be contrary to the

public interest for this subsection to apply to the requirement.

Note: For applicable costs negotiator, see subsection (16).

(3A) In deciding whether it would be contrary to the public interest for

subsection (3) to apply to the requirement, the Director-General of

Security, the chief officer or the Attorney-General, as the case may

be, must have regard to the following matters:

(a) in the case of a requirement under a technical assistance

notice given by the chief officer of an interception agency or

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a requirement under a technical capability notice that relates

to an interception agency—the interests of law enforcement;

(b) in the case of a requirement under a technical assistance

notice given by the Director-General of Security or a

requirement under a technical capability notice that relates to

ASIO—the interests of national security;

(c) the objects of this Act;

(d) the extent to which compliance with the requirement will

impose a regulatory burden on the provider;

(e) the reasons for the giving of the technical assistance notice or

technical capability notice, as the case requires;

(f) such other matters (if any) as the Director-General of

Security, the chief officer or the Attorney-General, as the

case may be, considers relevant.

Terms and conditions

(4) The designated communications provider must comply with the

requirement on such terms and conditions as are:

(a) agreed between the following parties:

(i) the provider;

(ii) the applicable costs negotiator; or

(b) failing agreement, determined by an arbitrator appointed by

the parties.

Note: For applicable costs negotiator, see subsection (16).

(5) If:

(a) the parties fail to agree on the appointment of an arbitrator;

and

(b) one of the parties is a carrier or carriage service provider;

the ACMA is to appoint the arbitrator.

(6) If:

(a) the parties fail to agree on the appointment of an arbitrator;

and

(b) none of the parties is a carrier or carriage service provider;

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the Attorney-General is to appoint the arbitrator.

(6A) Subsection (4) does not apply to the requirement if:

(a) in the case of a requirement under a technical assistance

notice given by the Director-General of Security—the

Director-General of Security declares in writing that the

Director-General of Security is satisfied that it would be

contrary to the public interest for subsection (4) to apply to

the requirement; or

(b) in the case of a requirement under a technical assistance

notice given by the chief officer of an interception agency—

the chief officer declares in writing that the chief officer is

satisfied that it would be contrary to the public interest for

subsection (4) to apply to the requirement; or

(c) in the case of a requirement under a technical capability

notice—the Attorney-General declares in writing that the

Attorney-General is satisfied that it would be contrary to the

public interest for subsection (4) to apply to the requirement.

(6B) In deciding whether it would be contrary to the public interest for

subsection (4) to apply to the requirement, the Director-General of

Security, the chief officer or the Attorney-General, as the case may

be, must have regard to the following matters:

(a) in the case of a requirement under a technical assistance

notice given by the chief officer of an interception agency or

a requirement under a technical capability notice that relates

to an interception agency—the interests of law enforcement;

(b) in the case of a requirement under a technical assistance

notice given by the Director-General of Security or a

requirement under a technical capability notice that relates to

ASIO—the interests of national security;

(c) the objects of this Act;

(d) the extent to which compliance with the requirement will

impose a regulatory burden on the provider;

(e) the reasons for the giving of the technical assistance notice or

technical capability notice, as the case requires;

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(f) such other matters (if any) as the Director-General of

Security, the chief officer or the Attorney-General, as the

case may be, considers relevant.

Arbitration

(7) An arbitrator appointed under subsection (5) or (6) must be:

(a) a person specified under subsection (8); or

(b) a person who belongs to a class of persons specified under

subsection (11).

(8) The Home Affairs Minister may, by writing, specify one or more

persons for the purposes of paragraph (7)(a).

(9) An instrument made under subsection (8) is not a legislative

instrument.

(10) Subsection 33(3AB) of the Acts Interpretation Act 1901 does not

apply to the power conferred by subsection (8).

(11) The Home Affairs Minister may, by legislative instrument, specify

a class of persons for the purposes of paragraph (7)(b).

(12) Before making an instrument under subsection (8) or (11), the

Home Affairs Minister must consult the Attorney-General.

(13) 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.

(14) The Home Affairs Minister may, by legislative instrument, make

provision for and in relation to the conduct of an arbitration under

this section.

Acquisition of property

(15) This section has no effect to the extent (if any) to which its

operation would result in an acquisition of property (within the

meaning of paragraph 51(xxxi) of the Constitution) otherwise than

on just terms (within the meaning of that paragraph).

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Applicable costs negotiator

(16) For the purposes of this section, the applicable costs negotiator is:

(a) in the case of a requirement under a technical assistance

notice given by the Director-General of Security—the

Director-General of Security; or

(b) in the case of a requirement under a technical assistance

notice given by the chief officer of an interception agency—

the chief officer; or

(c) in the case of a requirement under a technical capability

notice—the person specified in the notice, in accordance with

subsection 317T(12), as the applicable costs negotiator for

the notice.

Technical capability notice that relates to ASIO

(17) For the purposes of this section, a technical capability notice

relates to ASIO if the acts or things specified in the notice:

(a) are directed towards ensuring that a designated

communications provider is capable of giving listed help

(within the meaning of section 317T) to ASIO in relation to a

matter covered by paragraph 317T(2)(a); or

(b) are by way of giving help to ASIO in relation to a matter

covered by paragraph 317T(2)(b).

Technical capability notice that relates to an interception agency

(18) For the purposes of this section, a technical capability notice

relates to an interception agency if the acts or things specified in

the notice:

(a) are directed towards ensuring that a designated

communications provider is capable of giving listed help

(within the meaning of section 317T) to the interception

agency in relation to a matter covered by

paragraph 317T(2)(a); or

(b) are by way of giving help to the interception agency in

relation to a matter covered by paragraph 317T(2)(b).

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Technical assistance notice information

(19) For the purposes of this Part, information about a declaration

under:

(a) paragraph (1)(c); or

(b) paragraph (1)(d); or

(c) paragraph (3)(d); or

(d) paragraph (3)(e); or

(e) paragraph (6A)(a); or

(f) paragraph (6A)(b);

is taken to be information about a technical assistance notice.

Technical capability notice information

(20) For the purposes of this Part, information about a declaration under

paragraph (1)(e), (3)(f) or (6A)(c) is taken to be information about

a technical capability notice.

317ZKA Notification obligations

(1) If the Director-General of Security makes a declaration under

paragraph 317ZK(1)(c), (3)(d) or (6A)(a), the Director-General of

Security must, within 7 days after making the declaration, notify

the Inspector-General of Intelligence and Security of the making of

the declaration.

(2) If the chief officer of an interception agency makes a declaration

under paragraph 317ZK(1)(d), (3)(e) or (6A)(b), the chief officer

must, within 7 days after making the declaration, notify the

Commonwealth Ombudsman of the making of the declaration.

(3) If:

(a) the Attorney-General makes a declaration under

paragraph 317ZK(1)(e), (3)(f) or (6A)(c) in relation to a

technical capability notice; and

(b) the acts or things specified in the notice:

(i) are directed towards ensuring that a designated

communications provider is capable of giving listed

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help (within the meaning of section 317T) to ASIO in

relation to a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to ASIO in relation to a

matter covered by paragraph 317T(2)(b);

the Attorney-General must, within 7 days after making the

declaration, notify the Inspector-General of Intelligence and

Security of the making of the declaration.

(4) If:

(a) the Attorney-General makes a declaration under

paragraph 317K(1)(e), (3)(f) or (6A)(c) in relation to a

technical capability notice; and

(b) the acts or things specified in the notice:

(i) are directed towards ensuring that a designated

communications provider is capable of giving listed

help (within the meaning of section 317T) to an

interception agency in relation to a matter covered by

paragraph 317T(2)(a); or

(ii) are by way of giving help to an interception agency in

relation to a matter covered by paragraph 317T(2)(b);

the Attorney-General must, within 7 days after making the

declaration, notify the Commonwealth Ombudsman of the making

of the declaration.

(5) A failure to comply with subsection (1), (2), (3) or (4) does not

affect the validity of a declaration under:

(a) paragraph 317ZK(1)(c); or

(b) paragraph 317ZK(1)(d); or

(c) paragraph 317ZK(1)(e); or

(d) paragraph 317ZK(3)(d); or

(e) paragraph 317ZK(3)(e); or

(f) paragraph 317ZK(3)(f); or

(g) paragraph 317ZK(6A)(a); or

(h) paragraph 317ZK(6A)(b); or

(i) paragraph 317ZK(6A)(c).

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Section 317ZL

317ZL Service of notices etc.

Scope

(1) This section applies to:

(a) a summons or process in any proceedings under, or

connected with, this Part; or

(b) a summons or process in any proceedings under, or

connected with, the Regulatory Powers (Standard

Provisions) Act 2014, so far as that Act relates to this Part; or

(c) a technical assistance notice or any other notice under this

Part; or

(d) a notice under the Regulatory Powers (Standard Provisions)

Act 2014, so far as that Act relates to this Part; or

(e) a technical capability notice.

Address for service of summons, process or notice

(2) If:

(a) the summons, process or notice, as the case may be, is

required to be served on, or given to, a designated

communications provider; and

(b) the designated communications provider has nominated an

address for service in a document given by the provider to:

(i) the Attorney-General; or

(ii) the Communications Access Co-ordinator; or

(iii) the Director-General of Security; or

(iv) the chief officer of an interception agency;

the summons, process, or notice, as the case may be, is taken to

have been served on, or given to, the provider if it is left at, or sent

by pre-paid post to, the nominated address for service.

(3) If:

(a) the summons, process or notice, as the case may be, is

required to be served on, or given to, a designated

communications provider; and

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(b) the designated communications provider has nominated an

electronic address for service in a document given by the

provider to:

(i) the Attorney-General; or

(ii) the Communications Access Co-ordinator; or

(iii) the Director-General of Security; or

(iv) the chief officer of an interception agency;

the summons, process or notice, as the case may be, is taken to

have been served on, or given to, the provider if it is sent to the

nominated electronic address for service.

Service of summons, process or notice on agent etc.

(4) If:

(a) the summons, process or notice, as the case may be, is

required to be served on, or given to, 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;

the summons, process or notice, as the case may be, is taken to

have been served on, or given to, the body corporate if it is served

on, or given to, the agent.

(5) If:

(a) the summons, process or notice, as the case may be, is

required to be served on, or given to, 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 carries on business, or conducts activities,

at an address in Australia;

the summons, process or notice, as the case may be, is taken to

have been served on, or given to, the body corporate if it is left at,

or sent by pre-paid post to, that address.

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Section 317ZM

Other matters

(6) Subsections (2), (3), (4) and (5) have effect in addition to:

(a) section 28A of the Acts Interpretation Act 1901; and

(b) sections 587 and 588 of this Act.

Note: Section 28A of the Acts Interpretation Act 1901 deals with the service

of documents.

317ZM Interception agency—chief officer and officer

For the purposes of this Part, the following table defines:

(a) chief officer of an interception agency; and

(b) officer of an interception agency.

Chief officer and officers of interception agencies

Item Column 1 Column 2 Column 3

Interception agency Chief officer Officer

1 Australian Federal

Police

the Commissioner

(within the meaning of

the Australian Federal

a member or special

member of the

Australian Federal

Police Act 1979) Police

3 Australian Crime

Commission

Chief Executive

Officer of the

(a) the Chief Executive

Officer of the

Australian Crime

Commission

Australian Crime

Commission; or

(b) an examiner (within

the meaning of the

Australian Crime

Commission Act

2002); or

(c) a member of the

staff of the ACC

(within the meaning

of the Australian

Crime Commission

Act 2002)

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Chief officer and officers of interception agencies

Item Column 1 Column 2 Column 3

Interception agency Chief officer Officer

4 Police Force of a State the Commissioner of an officer of that Police

or the Northern Police (however Force

Territory designated) of that

State or Territory

317ZN Delegation by Director-General of Security

(1) The Director-General of Security may, by writing, delegate any or

all of the functions or powers of the Director-General of Security

under Division 2, 3 or 6 to a senior position-holder (within the

meaning of the Australian Security Intelligence Organisation Act

1979).

(2) A delegate must comply with any written directions of the

Director-General of Security.

317ZP Delegation by Director-General of the Australian Secret

Intelligence Service

(1) The Director-General of the Australian Secret Intelligence Service

may, by writing, delegate any or all of the functions or powers of

the Director-General of the Australian Secret Intelligence Service

under Division 2 or 6 to a person who:

(a) is a staff member of the Australian Secret Intelligence

Service; and

(b) holds, or is acting in, a position in the Australian Secret

Intelligence Service that is equivalent to, or higher than, a

position occupied by an SES employee.

(2) A delegate must comply with any written directions of the

Director-General of the Australian Secret Intelligence Service.

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Section 317ZQ

317ZQ Delegation by Director-General of the Australian Signals

Directorate

(1) The Director-General of the Australian Signals Directorate may, by

writing, delegate any or all of the functions or powers of the

Director-General of the Australian Signals Directorate under

Division 2 or 6 to a person:

(a) who is a staff member of the Australian Signals Directorate;

and

(b) who:

(i) is an SES employee, or acting SES employee, in the

Australian Signals Directorate; or

(ii) holds, or is acting in, a position in the Australian Signals

Directorate that is equivalent to, or higher than, a

position occupied by an SES employee.

(2) A delegate must comply with any written directions of the

Director-General of the Australian Signals Directorate.

317ZR Delegation by the chief officer of an interception agency

(1) The chief officer of an interception agency mentioned in an item of

column 1 of the following table may, by writing, delegate any or

all of the functions or powers of the chief officer under Division 2,

3 or 6 to a person mentioned in column 2 of the item.

Potential delegates

Item Column 1 Column 2

Interception Potential delegates

agency

1 Australian

Federal Police

(a) a Deputy Commissioner (within the meaning of the

Australian Federal Police Act 1979); or

(b) a senior executive AFP employee (within the

meaning of the Australian Federal Police Act 1979)

3 Australian

Crime

Commission

a member of the staff of the ACC (within the meaning of

the Australian Crime Commission Act 2002) who is an

SES employee or acting SES employee

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Potential delegates

Item Column 1 Column 2

Interception Potential delegates

agency

4 Police Force of a (a) an Assistant Commissioner of the Police Force or a

State or the person holding equivalent rank; or

Northern (b) a Superintendent of the Police Force or a person Territory holding equivalent rank

(2) A delegate must comply with any written directions of the chief

officer.

Executive level

(3) For the purposes of this section, a person is at executive level, in

relation to an interception agency of New South Wales, if the

person occupies an office or position at an equivalent level to that

of a Public Service senior executive (within the meaning of the

Government Sector Employment Act 2013 (NSW)).

(4) For the purposes of this section, a person is at executive level, in

relation to an interception agency of Victoria, if the person

occupies an office or position at an equivalent level to that of an

executive (within the meaning of the Public Administration Act

2004 (Vic.)).

(5) For the purposes of this section, a person is at executive level, in

relation to an interception agency of South Australia, if the person

occupies an office or position at an equivalent level to that of an

executive employee (within the meaning of the Public Sector Act

2009 (SA)).

317ZRA Relationship of this Part to parliamentary privileges and

immunities

To avoid doubt, this Part does not affect the law relating to the

powers, privileges and immunities of any of the following:

(a) each House of the Parliament;

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Section 317ZRB

(b) the members of each House of the Parliament;

(c) the committees of each House of the Parliament and joint

committees of both Houses of the Parliament.

317ZRB Inspection of records

(1) An Ombudsman official may inspect the records of an interception

agency to determine the extent of compliance with this Part by:

(a) the agency; and

(b) the chief officer of the agency; and

(c) officers of the agency.

(2) The chief officer of an interception agency must ensure that

officers of the agency give an Ombudsman official any assistance

the Ombudsman official reasonably requires to enable the

Ombudsman official to exercise the power conferred by

subsection (1).

Report

(3) The Commonwealth Ombudsman may make a written report to the

Home Affairs Minister on the results of one or more inspections

under subsection (1).

(4) A report under subsection (3) must not include information which,

if made public, could reasonably be expected to:

(a) prejudice an investigation or prosecution; or

(b) compromise any interception agency’s operational activities

or methodologies.

(5) If:

(a) the Commonwealth Ombudsman makes a report under

subsection (3); and

(b) the report relates to an inspection under subsection (1) of the

records of an interception agency of a State or Territory;

the Commonwealth Ombudsman must give a copy of the report to

the chief officer of the interception agency.

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Section 317ZS

(6) If the Home Affairs Minister receives a report under

subsection (3), the Home Affairs Minister must cause a copy of the

report to be tabled in each House of the Parliament within 15

sitting days of that House after the Home Affairs Minister receives

the report.

(7) Before tabling the copy of the report, the Home Affairs Minister

may delete from the copy information that, if made public, could

reasonably be expected to:

(a) prejudice an investigation or prosecution; or

(b) compromise any interception agency’s operational activities

or methodologies.

317ZS Annual reports

(1) The Home Affairs Minister must, as soon as practicable after each

30 June, cause to be prepared a written report that sets out:

(a) the number of technical assistance requests that were given

during the year ending on that 30 June by the chief officers of

interception agencies; and

(b) the number of technical assistance notices that were given

during the year ending on that 30 June by the chief officers of

interception agencies; and

(c) the number of technical capability notices that were:

(i) given during the year ending on that 30 June; and

(ii) directed towards ensuring that designated

communications providers are capable of giving help to

interception agencies; and

(d) if any technical assistance requests, technical assistance

notices or technical capability notices given during the year

ending on that 30 June related to the enforcement of the

criminal law so far as it relates to one or more kinds of

serious Australian offences—those kinds of serious

Australian offences.

(2) A report under subsection (1) must be included in the report

prepared under subsection 186(2) of the Telecommunications

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Section 317ZT

(Interception and Access) Act 1979 relating to the year ending on

that 30 June.

317ZT Alternative constitutional basis

(1) Without limiting its effect apart from this section, this Part also has

effect as provided by this section.

(2) This Part also has the effect it would have if each reference in this

Part to a designated communications provider were, by express

provision, confined to a designated communications provider that

is a constitutional corporation.

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Defence requirements and disaster plans Part 16

Introduction Division 1

Section 333

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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Division 2 Supply of carriage services

Section 335

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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Section 335

(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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Part 16 Defence requirements and disaster plans

Division 3 Defence planning

Section 336

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

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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(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

(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

(7) If the ACMA certifies a draft variation of a certified agreement, the

agreement is varied accordingly.

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Disaster plans Division 4

Section 344

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

connection with an act done or omitted by the carrier or provider as

mentioned in subsection (1).

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Delegation Division 5

Section 347

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

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

(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

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

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

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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Division 3 Rules of conduct about dealings with international telecommunications

operators

Section 367

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

(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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Section 369

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

(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

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

• 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 lines Division 2

Section 372B

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

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

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

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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Section 372D

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

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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Section 372F

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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Section 372F

(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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Section 372G

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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Section 372G

(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

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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(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

(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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Section 372JA

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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(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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(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

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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(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

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

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

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

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

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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Division 6 Miscellaneous

Section 372Q

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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Miscellaneous Division 6

Section 372R

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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Division 6 Miscellaneous

Section 372U

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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Miscellaneous Division 6

Section 372W

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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Division 6 Miscellaneous

Section 372Z

(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

(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

(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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