Telecommunications Act 1997

[Note: Subsections 531F(1) and (2) and paragraphs 531G(2)(e) and (3A)(e) cease to have effect on 27 May 2009, see subsections 531F(3), 531G(3) and (3B)]

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra

Contents

Part 1—Introduction 1

1............ Short title [see Note 1]....................................................................... 1

2............ Commencement [see Note 1].............................................................. 1

3............ Objects................................................................................................ 1

4............ Regulatory policy............................................................................... 3

5............ Simplified outline................................................................................ 3

6............ Main index.......................................................................................... 7

7............ Definitions.......................................................................................... 8

8............ Crown to be bound........................................................................... 18

9............ Extra‑territorial application.............................................................. 18

10.......... Extension to external Territories....................................................... 18

11.......... Extension to offshore areas............................................................... 19

11A....... Application of the Criminal Code.................................................... 19

12.......... Act subject to Radiocommunications Act........................................ 20

13.......... Continuity of partnerships............................................................... 20

14.......... Controlled carriage services, controlled networks and controlled facilities 20

15.......... Content service................................................................................. 22

16.......... Listed carriage services..................................................................... 22

18.......... Access to an emergency call service................................................. 23

19.......... Recognised person who operates an emergency call service............ 23

20.......... Customer cabling.............................................................................. 23

21.......... Customer equipment........................................................................ 24

22.......... Customer cabling and customer equipment—boundary of a telecommunications network 25

23.......... Immediate circle................................................................................ 27

24.......... Extended meaning of use................................................................... 31

Part 2—Network units 32

Division 1—Simplified outline 32

25.......... Simplified outline.............................................................................. 32

Division 2—Basic definition 33

26.......... Single line links connecting distinct places in Australia.................... 33

27.......... Multiple line links connecting distinct places in Australia............... 33

28.......... Designated radiocommunications facility......................................... 34

29.......... Facilities specified in Ministerial determination............................... 35

Division 3—Related definitions 36

30.......... Line links.......................................................................................... 36

31.......... Designated radiocommunications facility......................................... 36

32.......... Public mobile telecommunications service........................................ 38

33.......... Intercell hand‑over functions............................................................ 39

34.......... When a base station is part of a terrestrial radiocommunications customer access network 40

35.......... Fixed radiocommunications link....................................................... 41

Division 4—Distinct places 43

36.......... Distinct places—basic rules............................................................. 43

37.......... Properties......................................................................................... 43

38.......... Combined areas................................................................................. 44

39.......... Principal user of a property............................................................. 45

40.......... Eligible combined areas..................................................................... 45

Part 3—Carriers 46

Division 1—Simplified outline 46

41.......... Simplified outline.............................................................................. 46

Division 2—Prohibitions relating to carriers 47

42.......... Network unit not to be used without carrier licence or nominated carrier declaration 47

43.......... Continuing offences.......................................................................... 48

44.......... Supply to the public......................................................................... 48

45.......... Exemption—defence......................................................................... 50

46.......... Exemption—intelligence operations................................................. 50

47.......... Exemption—transport authorities.................................................... 51

48.......... Exemption—broadcasting services................................................... 52

49.......... Exemption—electricity supply bodies............................................. 54

50.......... Exemption—line links authorised by or under previous laws.......... 54

51.......... Exemption—Ministerial determination............................................ 56

Division 3—Carrier licences 58

52.......... Applications for carrier licence......................................................... 58

53.......... Form of application etc.................................................................... 58

53A....... Copy of application to be given to Communications Access Co‑ordinator 58

54.......... Application to be accompanied by charge........................................ 58

55.......... Further information.......................................................................... 58

56.......... Grant of licence................................................................................. 59

56A....... Consultation with Communications Access Co‑ordinator............... 59

57.......... Carrier licence has effect subject to this Act.................................... 60

58.......... Refusal of carrier licence—disqualified applicant............................. 61

58A....... Refusal of carrier licence—security.................................................. 63

59.......... Time limit on licence decision........................................................... 64

60.......... Notification of refusal of application............................................... 67

61.......... Conditions of carrier licence specified in Schedule 1........................ 67

61A....... Review before 1 July 2009 of conditions relating to operational separation of Telstra 67

62.......... Condition of carrier licence set out in section 152AZ of the Trade Practices Act 1974 68

63.......... Conditions of carrier licence declared by Minister........................... 68

64.......... Consultation about declared licence conditions................................ 70

65.......... Conditions about foreign ownership or control................................ 71

67.......... Carrier licence conditions—special provisions................................. 71

68.......... Compliance with conditions............................................................. 71

69.......... Remedial directions—breach of condition........................................ 72

69A....... Remedial directions—breach by Telstra of conditions relating to operational separation 73

69B....... Review by the Australian Competition Tribunal of remedial directions given by the ACCC 73

70.......... Formal warnings—breach of condition............................................. 75

71.......... Surrender of carrier licence................................................................ 75

72.......... Cancellation of carrier licence........................................................... 76

73.......... Collection of charges relating to carrier licences............................... 77

73A....... Refund of application charge............................................................ 79

74.......... Collection of charges on behalf of the Commonwealth.................... 79

75.......... Cancellation of certain exemptions from charge............................... 79

76.......... Commonwealth not liable to charge.................................................. 80

Division 4—Nominated carrier declarations 81

77.......... Applications for nominated carrier declarations............................... 81

78.......... Application to be accompanied by charge etc.................................. 81

79.......... Form of application etc.................................................................... 81

80.......... Further information.......................................................................... 81

81.......... Making a nominated carrier declaration............................................ 82

81A....... Obligations of nominated carrier....................................................... 82

82.......... Notification of refusal of application............................................... 83

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

Division 5—Register of nominated carrier declarations and carrier licences 85

84.......... Register of nominated carrier declarations and carrier licences......... 85

Part 4—Service providers 86

Division 1—Simplified outline 86

85.......... Simplified outline.............................................................................. 86

Division 2—Service providers 87

86.......... Service providers.............................................................................. 87

Division 3—Carriage service providers 88

87.......... Carriage service providers................................................................. 88

88.......... Supply to the public......................................................................... 90

89.......... Exemption from definition—customers located on the same premises 91

90.......... Exemption from definition—defence................................................ 91

91.......... Exemption from definition—intelligence operations........................ 92

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

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

94.......... Exemption from definition—electricity supply bodies.................... 94

95.......... Exemption from definition—Ministerial determination................... 94

96.......... Exemption from certain regulatory provisions—Ministerial determination 95

Division 4—Content service providers 96

97.......... Content service providers................................................................. 96

Division 5—Service provider rules 97

98.......... Service provider rules....................................................................... 97

99.......... Service provider determinations....................................................... 97

100........ Exemptions from service provider rules........................................... 98

101........ Service providers must comply with service provider rules............ 98

102........ Remedial directions—breach of service provider rules..................... 99

103........ Formal warnings—breach of service provider rules....................... 100

Part 5—Monitoring of the performance of carriers and carriage service providers 101

104........ Simplified outline............................................................................ 101

105........ Monitoring of performance—annual report................................... 101

105A..... Monitoring of performance—additional report.............................. 103

Part 6—Industry codes and industry standards 104

Division 1—Simplified outline 104

106........ Simplified outline............................................................................ 104

Division 2—Interpretation 105

107........ Industry codes................................................................................ 105

108........ Industry standards.......................................................................... 105

108A..... Electronic messaging service provider............................................ 105

108B..... Telecommunications industry........................................................ 105

109........ Telecommunications activity.......................................................... 106

109A..... E‑marketing activity....................................................................... 106

109B..... Telemarketing activity.................................................................... 107

110........ Sections of the telecommunications industry................................. 109

110A..... Sections of the e‑marketing industry.............................................. 110

110B..... Sections of the telemarketing industry........................................... 111

111........ Participants in a section of the telecommunications industry........ 112

111A..... Participants in a section of the e‑marketing industry..................... 112

111AA.. Participants in a section of the telemarketing industry.................. 112

111B..... Unsolicited commercial electronic messages................................... 112

Division 3—General principles relating to industry codes and industry standards 113

112........ Statement of regulatory policy....................................................... 113

113........ Examples of matters that may be dealt with by industry codes and industry standards 115

114........ Industry codes and industry standards may confer powers on the Telecommunications Industry Ombudsman 117

115........ Industry codes and industry standards not to deal with certain design features and performance requirements 117

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.............................................................. 118

116A..... Industry codes and standards do not affect Privacy Act 1988....... 119

Division 4—Industry codes 120

117........ Registration of industry codes........................................................ 120

118........ ACMA may request codes............................................................. 122

119........ Publication of notice where no body or association represents a section of the telecommunications industry, the e‑marketing industry or the telemarketing industry....................... 124

120........ Replacement of industry codes...................................................... 124

121........ Directions about compliance with industry codes......................... 124

122........ Formal warnings—breach of industry codes.................................. 126

122A..... De‑registering industry codes and provisions of industry codes... 127

Division 5—Industry standards 128

123........ ACMA may determine an industry standard if a request for an industry code is not complied with 128

124........ ACMA may determine industry standard where no industry body or association formed 129

125........ ACMA may determine industry standards where industry codes fail 130

125A..... ACMA must determine certain industry standards relating to the telemarketing industry 131

126........ Industry standards not to be determined for certain privacy matters 132

127........ Industry standards not to be determined during the first 180 days after commencement 132

128........ Compliance with industry standards.............................................. 132

129........ Formal warnings—breach of industry standards............................ 133

130........ Variation of industry standards...................................................... 133

131........ Revocation of industry standards................................................... 134

132........ Public consultation on industry standards..................................... 134

133........ Consultation with ACCC and the Telecommunications Industry Ombudsman 135

134........ Consultation with Privacy Commissioner...................................... 135

135........ Consultation with consumer body................................................. 136

135A..... Consultation with the States and Territories.................................. 136

Division 6—Register of industry codes and industry standards 137

136........ ACMA to maintain Register of industry codes and industry standards 137

Division 6A—Reimbursement of costs of development of consumer‑related industry codes 138

136A..... Application for eligibility for reimbursement of costs of development of consumer‑related industry code 138

136B..... Declaration of eligibility for reimbursement of costs of development of consumer‑related industry code 139

136C..... Reimbursement of costs of developing consumer‑related industry code 140

136D..... Costs—transactions between persons not at arm’s length............ 141

136E...... Refundable cost.............................................................................. 142

Division 7—Miscellaneous 143

137........ Protection from civil proceedings................................................... 143

138........ Implied freedom of political communication.................................. 143

139........ Agreements for the carrying on of telemarketing activities must require compliance with this Part 143

Part 13—Protection of communications 145

Division 1—Introduction 145

270........ Simplified outline............................................................................ 145

271........ Eligible person................................................................................ 145

272........ Number‑database operator and eligible number‑database person... 146

273........ Information..................................................................................... 146

274........ Telecommunications contractor...................................................... 146

275........ Number‑database contractor........................................................... 146

275A..... Location information...................................................................... 147

275B..... Emergency management person...................................................... 147

275C..... Emergency...................................................................................... 148

275D..... Emergency law................................................................................ 148

275E...... Relevant information...................................................................... 148

Division 2—Primary disclosure/use offences 149

276........ Primary disclosure/use offence—eligible persons.......................... 149

277........ Primary disclosure/use offence—eligible number‑database persons 151

278........ Primary disclosure/use offence—emergency call persons.............. 152

Division 3—Exceptions to primary disclosure/use offences 154

Subdivision A—Exceptions 154

279........ Performance of person’s duties...................................................... 154

280........ Authorisation by or under law....................................................... 155

281........ Witnesses........................................................................................ 155

284........ Assisting the ACMA, the ACCC or the Telecommunications Industry Ombudsman 156

285........ Integrated public number database................................................. 156

285A..... Data for emergency warnings......................................................... 160

286........ Calls to emergency service number................................................. 161

287........ Threat to person’s life or health..................................................... 161

288........ Communications for maritime purposes........................................ 162

289........ Knowledge or consent of person concerned................................... 162

290........ Implicit consent of sender and recipient of communication........... 162

291........ Business needs of other carriers or service providers..................... 162

291A..... Location dependent carriage services.............................................. 165

292........ Circumstances prescribed in the regulations................................... 166

293........ Uses connected with exempt disclosures....................................... 166

294........ Effect of this Subdivision............................................................... 166

Subdivision B—Burden of proof 167

295........ Burden of proof.............................................................................. 167

Division 3A—Integrated public number database authorisations 168

Subdivision A—ACMA scheme for the granting of authorisations 168

295A..... ACMA to make integrated public number database scheme.......... 168

295B..... Scheme must deal with certain matters........................................... 168

295C..... Applications may be treated differently........................................ 168

295D..... Scope of authorisations.................................................................. 169

295E...... Provisional and final authorisations................................................ 169

295F...... Conditions...................................................................................... 169

295G..... Varying or revoking authorisations................................................. 169

295H..... Scheme may confer administrative powers on the ACMA............ 169

295J...... Ancillary or incidental provisions.................................................. 169

295K..... Scheme‑making power not limited.................................................. 170

295L...... Variation of scheme........................................................................ 170

295M.... Consultation................................................................................... 170

Subdivision B—Ministerial instruments 170

295N..... Criteria for deciding authorisation applications.............................. 170

295P...... Conditions...................................................................................... 171

295Q..... Other reviewable decisions............................................................. 171

Subdivision C—Enforcing compliance with conditions of authorisations 171

295R..... Offence of breaching a condition.................................................... 171

295S...... Remedial directions for breaching a condition................................ 172

295T..... Formal warnings for breaching a condition..................................... 172

Subdivision D—Report to Minister 172

295U..... Report to Minister......................................................................... 172

Division 3B—Emergency warnings 174

295V..... Use or disclosure of information by emergency management persons 174

295W.... Use or disclosure of information by other persons........................ 174

295X..... Effect on telecommunications network.......................................... 175

295Y..... Coronial and other inquiries............................................................ 175

295Z..... Offence—use or disclosure of information by emergency management persons 175

295ZA.. Offence—use or disclosure of information by other persons........ 176

295ZB... Reports of access............................................................................ 176

295ZC... Annual reports to the ACMA and Privacy Commissioner............ 177

295ZD.. Arrangements with States and Territories...................................... 177

295ZE... Commonwealth immunity.............................................................. 178

Division 4—Secondary disclosure/use offences 179

296........ Performance of person’s duties...................................................... 179

297........ Authorisation by or under law....................................................... 179

299........ Assisting the ACMA, the ACCC or the Telecommunications Industry Ombudsman 179

299A..... Integrated public number database................................................. 180

300........ Threat to person’s life or health..................................................... 181

301........ Communications for maritime purposes........................................ 181

302........ Business needs of other carriers or service providers..................... 181

302A..... Location dependent carriage services.............................................. 182

303........ Secondary offence—contravening this Division............................. 182

303A..... Generality of Division not limited.................................................. 182

Division 4A—Relationship with the Privacy Act 1988 183

303B..... Acts taken to be authorised by law for purposes of Privacy Act.. 183

303C..... Prosecution of an offence against this Part does not affect proceedings under the Privacy Act 1988 183

Division 5—Record‑keeping requirements 184

304........ Associate........................................................................................ 184

305........ Authorisations under the Telecommunications (Interception and Access) Act 1979 184

306........ Record of disclosures—general....................................................... 184

306A..... Record of disclosures—prospective authorisation under the Telecommunications (Interception and Access) Act 1979........................................................................................................ 186

307........ Incorrect records............................................................................. 187

308........ Annual reports to the ACMA by carriers, carriage service providers or number‑database operators 187

309........ Monitoring by the Privacy Commissioner..................................... 188

Division 6—Instrument‑making powers not limited 189

310........ Instrument‑making powers not limited.......................................... 189

Part 14—National interest matters 190

311........ Simplified outline............................................................................ 190

312........ ACMA’s obligations...................................................................... 190

313........ Obligations of carriers and carriage service providers..................... 191

314........ Terms and conditions on which help is to be given........................ 193

315........ Suspension of supply of carriage service in an emergency............. 194

316........ Generality of Part not limited......................................................... 195

Part 16—Defence requirements and disaster plans 196

Division 1—Introduction 196

333........ Simplified outline............................................................................ 196

334........ Defence authority........................................................................... 196

Division 2—Supply of carriage services 197

335........ Requirement to supply carriage services for defence purposes or for the management of natural disasters 197

Division 3—Defence planning 199

336........ Definitions...................................................................................... 199

337........ Preparation of draft agreement....................................................... 199

338........ ACMA’s certification of draft agreement...................................... 200

339........ Requirement to enter into certified agreement................................ 201

340........ Compliance with agreement............................................................ 201

341........ Withdrawal of certification of agreement........................................ 201

342........ Duration of agreement.................................................................... 201

343........ Variation of agreement.................................................................... 202

Division 4—Disaster plans 203

344........ Designated disaster plans............................................................... 203

345........ Carrier licence conditions about designated disaster plans............. 203

346........ Service provider determinations about designated disaster plans... 203

346A..... Carrier and carriage service provider immunity.............................. 203

Division 5—Delegation 204

347........ Delegation....................................................................................... 204

Part 17—Pre‑selection in favour of carriage service providers 205

348........ Simplified outline............................................................................ 205

349........ Requirement to provide pre‑selection............................................ 205

350........ When pre‑selection is provided in favour of a carriage service provider 206

350A..... Declared carriage services............................................................... 207

351........ Pre‑selection to be provided........................................................... 208

352........ Exemptions from requirement to provide pre‑selection................. 209

353........ Use of over‑ride dial codes............................................................. 209

Part 18—Calling line identification 211

354........ Simplified outline............................................................................ 211

355........ Calling line identification................................................................ 211

356........ Exemptions from calling line identification requirement................. 211

Part 19—Advanced Mobile Phone System (AMPS) 213

357........ Simplified outline............................................................................ 213

358........ Meaning of AMPS........................................................................... 213

359........ Scope of Part.................................................................................. 213

360........ No new AMPS............................................................................... 213

361........ AMPS to be phased out................................................................. 213

362........ Limited exemption from phase‑out of AMPS................................ 214

363........ Competition not to be reduced....................................................... 215

Part 20—International aspects of activities of the telecommunications industry 216

Division 1—Simplified outline 216

364........ Simplified outline............................................................................ 216

Division 2—Compliance with international agreements 217

365........ INTELSAT and Inmarsat—directions to Signatories..................... 217

366........ Compliance with conventions........................................................ 217

Division 3—Rules of conduct about dealings with international telecommunications operators 219

367........ Rules of conduct about dealings with international telecommunications operators 219

368........ ACCC to administer Rules of Conduct.......................................... 221

369........ Rules of Conduct to bind carriers and carriage service providers... 221

370........ Unenforceability of agreements...................................................... 222

371........ Investigations by the ACCC.......................................................... 222

372........ Reviews of the operation of this Division...................................... 222

Part 21—Technical regulation 224

Division 1—Simplified outline 224

373........ Simplified outline............................................................................ 224

Division 2—Interpretative provisions 226

374........ Part applies to networks or facilities in Australia operated by carriers or carriage service providers 226

375........ Manager of network or facility....................................................... 226

Division 3—Technical standards about customer equipment and customer cabling 227

376........ ACMA’s power to make technical standards................................ 227

377........ Adoption of voluntary standards................................................... 228

378........ Procedures for making technical standards..................................... 228

379........ Making technical standards in cases of urgency............................. 229

Division 4—Disability standards 231

380........ Disability standards........................................................................ 231

381........ Adoption of voluntary standards................................................... 232

382........ Procedures for making disability standards.................................... 232

383........ Effect of compliance with disability standards.............................. 233

Division 5—Technical standards about the interconnection of facilities 234

384........ ACMA’s power to make technical standards................................ 234

385........ Adoption of voluntary standards................................................... 235

386........ Procedures for making technical standards..................................... 235

387........ Procedures for making technical standards..................................... 236

388........ Provision of access......................................................................... 237

389........ Promotion of the long‑term interests of end‑users of carriage services and of services supplied by means of carriage services........................................................................................... 237

Division 6—Connection permits and connection rules 238

Subdivision A—Connection permits authorising the connection of non‑standard customer equipment and non‑standard cabling 238

390........ Application for connection permit................................................. 238

391........ Form of application........................................................................ 238

392........ Application to be accompanied by charge...................................... 239

393........ Further information........................................................................ 239

394........ Issue of connection permits............................................................ 239

395........ Connection permit has effect subject to this Act........................... 240

396........ Nominees of holder......................................................................... 240

397........ Duration of connection permits...................................................... 240

398........ Conditions of connection permits.................................................. 240

399........ Offence of contravening condition.................................................. 241

400........ Formal warnings—breach of condition........................................... 242

401........ Surrender of connection permit...................................................... 242

402........ Cancellation of connection permit.................................................. 242

403........ Register of connection permits....................................................... 242

Subdivision B—Connection rules 243

404........ Connection rules............................................................................. 243

405........ Procedures for making connection rules......................................... 244

Division 7—Labelling of customer equipment and customer cabling 246

406........ Application of labels...................................................................... 246

406A..... Application of Division to agent of manufacturer or importer...... 246

407........ Labelling requirements.................................................................... 246

408........ Requirements to apply labels—ancillary matters.......................... 247

409........ Recognised testing authorities and competent bodies.................... 248

410........ Certification bodies......................................................................... 249

411........ Connection of customer equipment or customer cabling—breach of section 376 standards 249

412........ Connection of labelled customer equipment or customer cabling not to be refused 251

413........ Supply of unlabelled customer equipment or unlabelled customer cabling 252

414........ Applying labels before satisfying requirements under subsection 408(5) 253

415........ Failure to retain records etc............................................................ 253

416........ Application of labels containing false statements about compliance with standards 254

Division 8—Protected symbols 255

417........ Protected symbols.......................................................................... 255

Division 9—Cabling providers 259

418........ Cabling work................................................................................... 259

419........ Types of cabling work.................................................................... 259

420........ Prohibition of unauthorised cabling work....................................... 259

421........ Cabling provider rules..................................................................... 260

422........ Procedures for making cabling provider rules................................. 261

423........ Application for cabling licence....................................................... 261

424........ Form of application........................................................................ 262

425........ Application to be accompanied by charge...................................... 262

426........ Further information........................................................................ 262

427........ Grant of cabling licence................................................................... 262

428........ Time limit on licence decision......................................................... 263

429........ Notification of refusal of application............................................. 263

430........ Cabling licence has effect subject to this Act................................. 263

431........ Duration of cabling licence.............................................................. 264

432........ Conditions of cabling licence.......................................................... 264

433........ Procedures for changing licence conditions..................................... 264

434........ Offence in relation to contravening condition................................. 265

435........ Formal warnings—breach of condition........................................... 266

436........ Surrender of cabling licence............................................................. 266

437........ Suspension of cabling licence.......................................................... 266

438........ Cancellation of cabling licence........................................................ 267

439........ ACMA may limit application of Division in relation to customer cabling 267

440........ Ministerial directions...................................................................... 268

441........ Delegation....................................................................................... 268

442........ Register of cabling licences............................................................. 269

Division 10—Remedies for unauthorised connections to telecommunications networks etc. 270

443........ Civil action for unauthorised connections to telecommunications networks etc. 270

444........ Remedy for contravention of labelling requirements...................... 271

445........ Remedies for connection of unlabelled customer equipment or unlabelled customer cabling 272

446........ Disconnection of dangerous customer equipment or customer cabling 274

447........ Disconnection of customer equipment or customer cabling—protection of the integrity of networks and facilities........................................................................................................ 275

448........ Civil action for dangerous connections to telecommunications networks etc. 276

449........ Other remedies not affected............................................................ 277

Division 11—Prohibited customer equipment and prohibited customer cabling 278

450........ Declaration of prohibited customer equipment or prohibited customer cabling 278

451........ Consultation on proposed declaration............................................ 279

452........ Operation of prohibited customer equipment or customer cabling 279

Division 12—Pre‑commencement labels 280

453........ Pre‑commencement labels............................................................... 280

Division 13—Penalties payable instead of prosecution 281

453A..... Penalties payable instead of prosecution....................................... 281

Part 22—Numbering of carriage services and regulation of electronic addressing 282

Division 1—Simplified outline 282

454........ Simplified outline............................................................................ 282

Division 2—Numbering of carriage services 283

Subdivision A—Numbering plan 283

455........ Numbering plan.............................................................................. 283

456........ Numbering plan—supply to the public......................................... 284

457........ Numbering plan—allocation otherwise than in accordance with an allocation system 285

458........ Numbering plan—rules about portability of allocated numbers.... 285

459........ ACMA to administer numbering plan............................................ 286

460........ Consultation about numbering plan................................................ 286

461........ Consultation with ACCC............................................................... 288

462........ Compliance with the numbering plan............................................. 288

Subdivision B—Allocation system for numbers 289

463........ Allocation system for numbers...................................................... 289

464........ Consultation about an allocation system........................................ 290

Subdivision C—Miscellaneous 291

465........ Register of allocated numbers......................................................... 291

466........ Emergency service numbers............................................................ 292

467........ Delegation....................................................................................... 293

468........ Collection of numbering charges..................................................... 294

469........ Collection of charges on behalf of the Commonwealth.................. 296

470........ Cancellation of certain exemptions from charge............................. 296

471........ Commonwealth not liable to charge................................................ 296

472........ Integrated public number database................................................. 297

473........ Letters and symbols taken to be numbers...................................... 297

Division 3—Regulation of electronic addressing 298

474........ Declared manager of electronic addressing...................................... 298

475........ ACMA may give directions to declared manager of electronic addressing 298

476........ ACCC may give directions to declared manager of electronic addressing 299

477........ ACCC’s directions to prevail over the ACMA’s directions.......... 300

Part 23—Standard agreements for the supply of carriage services 301

478........ Simplified outline............................................................................ 301

479........ Standard terms and conditions apply unless excluded................... 301

480........ Standard form of agreement to be publicly available...................... 302

480A..... Other information to be publicly available..................................... 303

481........ Standard form of agreement to be given to the ACMA.................. 304

482........ Concurrent operation of State/Territory laws................................ 304

483........ Trade Practices Act not affected by this Part................................ 304

Part 24—Carriers’ powers and immunities 305

484........ Schedule 3....................................................................................... 305

Part 24A—Submarine cables 306

484A..... Schedule 3A.................................................................................... 306

Part 25—Public inquiries 307

Division 1—Simplified outline 307

485........ Simplified outline............................................................................ 307

Division 2—Inquiries by the ACMA 308

486........ When inquiry must be held............................................................. 308

487........ When inquiry may be held.............................................................. 308

488........ Informing the public about an inquiry............................................ 309

489........ Discussion paper............................................................................ 309

490........ Written submissions and protection from civil actions.................. 309

491........ Hearings.......................................................................................... 310

492........ Hearing to be in public except in exceptional cases........................ 311

493........ Confidential material not to be published....................................... 311

494........ Direction about private hearings..................................................... 312

495........ Reports on inquiries....................................................................... 313

Division 3—Inquiries by the ACCC 315

496........ When inquiry must be held............................................................. 315

497........ When inquiry may be held.............................................................. 315

498........ Informing the public about an inquiry............................................ 315

499........ Discussion paper............................................................................ 316

500........ Written submissions and protection from civil actions.................. 316

501........ Hearings.......................................................................................... 317

502........ Hearing to be in public except in exceptional cases........................ 317

503........ Confidential material not to be published....................................... 318

504........ Direction about private hearings..................................................... 319

505........ Reports on inquiries....................................................................... 320

506........ ACCC’s other powers not limited................................................. 320

Part 26—Investigations 321

507........ Simplified outline............................................................................ 321

508........ Matters to which this Part applies................................................. 321

509........ Complaints to the ACMA............................................................. 322

510........ Investigations by the ACMA......................................................... 323

511........ Preliminary inquiries....................................................................... 324

512........ Conduct of investigations............................................................... 324

513........ Complainant and certain other persons to be informed of various matters 325

514........ Reference of matters to Ombudsman or other responsible person 325

515........ Reference of matters to the ACCC................................................. 327

515A..... Reference of matters to Privacy Commissioner............................. 328

516........ Reports on investigations............................................................... 329

517........ Publication of reports..................................................................... 329

518........ Person adversely affected by report to be given opportunity to comment 330

519........ Protection from civil actions........................................................... 330

Part 27—The ACMA’s information‑gathering powers 332

Division 1—Simplified outline 332

520........ Simplified outline............................................................................ 332

Division 2—Information‑gathering powers 333

521........ The ACMA may obtain information and documents from carriers and service providers 333

522........ The ACMA may obtain information and documents from other persons 334

523........ Copying documents—reasonable compensation............................ 336

524........ Self‑incrimination............................................................................ 336

525........ Giving false or misleading information or evidence........................ 336

527........ Copies of documents...................................................................... 337

528........ ACMA may retain documents....................................................... 337

Division 3—Record‑keeping rules 338

529........ ACMA may make record‑keeping rules......................................... 338

530........ Compliance with record‑keeping rules........................................... 338

531........ Incorrect records............................................................................. 339

Part 27A—Information relating to a broadband telecommunications network 340

Division 1—Introduction 340

531A..... Simplified outline............................................................................ 340

531B..... Definitions...................................................................................... 340

531C..... Designated information................................................................... 343

531D..... Designated request for proposal notice.......................................... 345

531E...... Action by the Commonwealth....................................................... 346

Division 2—Carriers must give information to an authorised information officer 347

531F...... Carriers must give information to an authorised information officer [see Note 1] 347

Division 3—Protection of information 348

531G..... Protection of information—entrusted public officials [see Note 1] 348

531H..... Disclosure of protected carrier information to a company............. 353

531J...... Stay of decisions............................................................................. 355

531K..... Protection of information—entrusted company officer................. 355

531L...... Compensation of carrier for loss or damage................................... 357

531M.... Appointment of authorised information officers........................... 358

531N..... Restricted recipients rules.............................................................. 359

531P...... Storage, handling or destruction of protected carrier information.. 359

531Q..... Submissions by companies............................................................. 360

Part 28—Enforcement 361

Division 1—Introduction 361

532........ Simplified outline............................................................................ 361

532A..... References to the Spam Act 2003................................................... 362

Division 2—Inspectors and identity cards 363

533........ Inspectors....................................................................................... 363

534........ Identity cards.................................................................................. 364

Division 3—Search warrants relating to breaches of the Spam Act 2003 or Part 21 of this Act 365

535........ Magistrate may issue warrant........................................................ 365

536........ Reasonable grounds for issuing warrant etc.................................... 365

537........ Contents of warrant........................................................................ 366

538........ Warrants may be issued by telephone etc...................................... 366

539........ Provisions relating to issue of warrant by telephone etc................ 366

540........ Proceedings involving warrant issued by telephone etc................. 368

Division 4—Searches and seizures relating to breaches of the Spam Act 2003 or Part 21 of this Act 369

541........ When is a thing connected with an offence?................................... 369

541A..... When is a thing connected with a breach of the Spam Act 2003?... 369

542........ Searches and seizures...................................................................... 369

543........ Production of identity card etc....................................................... 370

544........ Evidence of commission of other offences against Part 21 of this Act or other breaches of the Spam Act 2003 371

545........ Emergency entry, search and seizure.............................................. 372

546........ Retention of things seized.............................................................. 373

Division 5—Searches to monitor compliance with Part 21 374

547........ Searches to monitor compliance with Part 21................................ 374

Division 5A—Searches to monitor compliance with the Spam Act 2003 375

547A..... Powers available to inspectors for monitoring compliance............ 375

547B..... Monitoring powers......................................................................... 375

547C..... Production of identity card etc....................................................... 377

547D..... Monitoring warrants....................................................................... 377

547E...... Details of warrant to be given to occupier etc................................ 378

547F...... Announcement before entry........................................................... 379

547G..... Compensation for damage to equipment........................................ 379

547H..... Occupier entitled to be present during search................................ 380

Division 5B—Access to computer data that is relevant to the Spam Act 2003 381

547J...... Access to computer data that is relevant to the Spam Act 2003.... 381

Division 6—Other powers of inspectors 383

548........ General powers of inspectors......................................................... 383

549........ Power to require information etc.................................................... 384

550........ Retention of documents.................................................................. 386

Division 7—Forfeiture 387

551........ Court may order forfeiture............................................................. 387

552........ Forfeited goods may be sold........................................................... 387

Division 8—Future offences 388

553........ Offences that are going to be committed........................................ 388

Part 29—Review of decisions 389

554........ Simplified outline............................................................................ 389

555........ Decisions that may be subject to reconsideration by the ACMA. 389

556........ Deadlines for reaching certain decisions......................................... 389

557........ Statements to accompany notification of decisions....................... 389

558........ Applications for reconsideration of decisions................................ 390

559........ Reconsideration by the ACMA..................................................... 390

560........ Deadlines for reconsiderations........................................................ 391

561........ Statements to accompany notification of decisions on reconsideration 391

562........ Review by the Administrative Appeals Tribunal.......................... 391

Part 30—Injunctions 392

563........ Simplified outline............................................................................ 392

564........ Injunctions...................................................................................... 392

565........ Interim injunctions.......................................................................... 393

566........ Discharge etc. of injunctions........................................................... 394

567........ Certain limits on granting injunctions not to apply........................ 394

568........ Other powers of the court unaffected............................................ 395

Part 31—Civil penalties 396

569........ Simplified outline............................................................................ 396

570........ Pecuniary penalties for contravention of civil penalty provisions. 396

571........ Civil action for recovery of pecuniary penalties............................ 397

572........ Criminal proceedings not to be brought for contravention of civil penalty provisions 398

Part 31A—Enforceable undertakings 399

572A..... Simplified outline............................................................................ 399

572B..... Acceptance of undertakings............................................................ 399

572C..... Enforcement of undertakings.......................................................... 400

Part 32—Vicarious liability 401

573........ Simplified outline............................................................................ 401

574........ Proceedings under this Act............................................................. 401

574A..... Definition........................................................................................ 401

575........ Liability of corporations................................................................. 401

576........ Liability of persons other than corporations.................................. 403

Part 34—Special provisions relating to functions and powers of the ACMA and the Attorney‑General in respect of telecommunications 405

579........ Simplified outline............................................................................ 405

580........ ACMA must have regard to conventions....................................... 405

581........ Power to give directions to carriers and service providers............. 406

Part 35—Miscellaneous 408

582........ Simplified outline............................................................................ 408

583........ Penalties for certain continuing offences........................................ 409

584........ Procedure relating to certain continuing offences........................... 409

585........ Treatment of partnerships.............................................................. 410

586........ Giving of documents to partnerships............................................. 411

587........ Nomination of address for service of documents........................... 411

588........ Service of summons or process on foreign corporations—criminal proceedings 412

589........ Instruments under this Act may provide for matters by reference to other instruments 412

590........ Arbitration—acquisition of property............................................. 414

591........ Compensation—constitutional safety net...................................... 414

592........ Act not to affect performance of State or Territory functions....... 415

593........ Funding of consumer representation, and of research, in relation to telecommunications 415

594........ Regulations..................................................................................... 416

Schedule 1—Standard carrier licence conditions 417

Part 1—Compliance with this Act 417

1............ Compliance with this Act............................................................... 417

Part 3—Access to supplementary facilities 418

16.......... Simplified outline............................................................................ 418

17.......... Access to supplementary facilities................................................. 418

18.......... Terms and conditions of access...................................................... 419

19.......... Ministerial pricing determinations.................................................. 420

Part 4—Access to network information 421

20.......... Simplified outline............................................................................ 421

21.......... Access to network information...................................................... 421

22.......... Access to information in databases................................................ 422

23.......... Access to network planning information........................................ 422

24.......... Access to information about likely changes to network facilities—completion success rate of calls 423

25.......... Access to quality of service information etc.................................. 423

26.......... Security procedures........................................................................ 425

27.......... Terms and conditions of compliance.............................................. 425

27A....... Code relating to access to information............................................ 426

28.......... Ministerial pricing determinations.................................................. 426

29.......... Consultation about reconfiguration etc........................................... 427

29A....... Code relating to consultation.......................................................... 427

Part 5—Access to telecommunications transmission towers and to underground facilities 429

30.......... Simplified outline............................................................................ 429

31.......... Definitions...................................................................................... 429

32.......... Extended meaning of access............................................................ 430

33.......... Access to telecommunications transmission towers...................... 430

34.......... Access to sites of telecommunications transmission towers.......... 431

35.......... Access to eligible underground facilities......................................... 432

36.......... Terms and conditions of access...................................................... 433

37.......... Code relating to access.................................................................... 434

38.......... Industry co‑operation about sharing of sites and eligible underground facilities 435

39.......... This Part does not limit Part 3 of this Schedule............................. 435

Part 6—Inspection of facilities etc. 436

40.......... Simplified outline............................................................................ 436

41.......... Records relating to underground facilities....................................... 436

42.......... Regular inspection of facilities........................................................ 437

43.......... Prompt investigation of dangerous facilities................................... 437

44.......... Remedial action............................................................................... 437

Part 7—Any‑to‑any connectivity 439

44A....... Simplified outline............................................................................ 439

45.......... Definitions...................................................................................... 439

46.......... Carriers must obtain designated interconnection services from carriage service providers for the purpose of ensuring any‑to‑any connectivity................................................................. 439

47.......... Designated interconnection services............................................... 441

Part 8—Operational separation of Telstra 442

Division 1—Introduction 442

48.......... Aim and objects.............................................................................. 442

49.......... Simplified outline............................................................................ 444

50.......... Definitions...................................................................................... 444

50A....... Designated services......................................................................... 445

50B....... Declared network services.............................................................. 446

50C....... Notional contracts.......................................................................... 446

Division 2—Operational separation plan 447

51.......... Contents of draft or final operational separation plan................... 447

52.......... Draft operational separation plan to be given to Minister............. 448

53.......... Public comment—draft operational separation plan...................... 448

54.......... Approval of draft by Minister....................................................... 448

55.......... Effect of approval........................................................................... 449

56.......... Variation of final operational separation plan................................ 450

56A....... Minister may direct Telstra to vary final operational separation plan 451

57.......... Public comment—variation of final operational separation plan... 451

58.......... Publication of final operational separation plan............................. 452

Division 3—Rectification plan 453

59.......... Contents of draft or final rectification plan.................................... 453

60.......... Draft rectification plan to be given to Minister.............................. 453

61.......... Approval of draft by Minister....................................................... 453

62.......... Effect of approval........................................................................... 455

63.......... Variation of final rectification plan................................................. 455

64.......... Minister may direct Telstra to vary final rectification plan........... 456

65.......... Compliance with final rectification plan......................................... 456

66.......... Publication of final rectification plan.............................................. 456

Schedule 2—Standard service provider rules 457

Part 1—Compliance with this Act 457

1............ Compliance with this Act............................................................... 457

Part 2—Operator services 458

2............ Simplified outline............................................................................ 458

3............ Scope of Part.................................................................................. 458

4............ Operator services must be provided to end‑users of a standard telephone service 458

5............ Access to end‑users of other carriage service providers................. 458

Part 3—Directory assistance services 460

6............ Simplified outline............................................................................ 460

7............ Directory assistance services must be provided to end‑users........ 460

8............ Access by end‑users of other carriage service providers................ 460

Part 4—Integrated public number database 462

9............ Simplified outline............................................................................ 462

10.......... Carriage service providers must give information to Telstra.......... 462

11.......... Carriage service providers must give information to another person or association 462

Part 5—Itemised billing 464

12.......... Simplified outline............................................................................ 464

13.......... Itemised billing................................................................................ 464

14.......... Exemptions from itemised billing requirements.............................. 466

15.......... Details that are not to be specified in an itemised bill.................... 466

Schedule 3—Carriers’ powers and immunities 467

Part 1—General provisions 467

Division 1—Simplified outline and definitions 467

1............ Simplified outline............................................................................ 467

2............ Definitions...................................................................................... 469

3............ Designated overhead line................................................................ 472

4............ Extension to a tower to be treated as the installation of a facility.. 472

Division 2—Inspection of land 473

5............ Inspection of land........................................................................... 473

Division 3—Installation of facilities 474

6............ Installation of facilities................................................................... 474

Division 4—Maintenance of facilities 476

7............ Maintenance of facilities................................................................. 476

Division 5—Conditions relating to the carrying out of authorised activities 479

8............ Carrier to do as little damage as practicable.................................... 479

9............ Carrier to restore land..................................................................... 479

10.......... Management of activities................................................................ 479

11.......... Agreements with public utilities..................................................... 480

12.......... Compliance with industry standards.............................................. 480

13.......... Compliance with international agreements..................................... 480

14.......... Conditions specified in the regulations........................................... 480

15.......... Conditions specified in a Ministerial Code of Practice.................. 480

16.......... Conditions to which a facility installation permit is subject.......... 481

17.......... Notice to owner of land—general................................................... 482

18.......... Notice to owner of land—lopping of trees etc............................... 483

19.......... Notice to roads authorities, utilities etc.......................................... 485

20.......... Roads etc. to remain open for passage........................................... 486

Division 6—Facility installation permits 487

21.......... Application for facility installation permit.................................... 487

22.......... Form of application........................................................................ 487

23.......... Application to be accompanied by charge...................................... 487

24.......... Withdrawal of application.............................................................. 487

25.......... Issue of facility installation permit................................................. 487

26.......... Deemed refusal of facility installation permit................................ 488

27.......... Criteria for issue of facility installation permit.............................. 489

28.......... Special provisions relating to environmental matters..................... 495

29.......... Consultation with the ACCC......................................................... 496

30.......... Facility installation permit has effect subject to this Act.............. 496

31.......... Duration of facility installation permit........................................... 496

32.......... Conditions of facility installation permit....................................... 496

33.......... Surrender of facility installation permit.......................................... 497

34.......... Cancellation of facility installation permit..................................... 497

35.......... Review of decisions by Administrative Appeals Tribunal............ 497

Division 7—Exemptions from State and Territory laws 499

36.......... Activities not generally exempt from State and Territory laws..... 499

37.......... Exemption from State and Territory laws...................................... 499

38.......... Concurrent operation of State and Territory laws......................... 500

39.......... Liability to taxation not affected.................................................... 500

Division 8—Miscellaneous 501

41.......... Guidelines....................................................................................... 501

42.......... Compensation................................................................................. 501

43.......... Power extends to carrier’s employees etc...................................... 502

44.......... State and Territory laws that discriminate against carriers and users of carriage services 502

45.......... State and Territory laws may confer powers and immunities on carriers 504

46.......... ACMA may limit tort liability in relation to the supply of certain carriage services 504

47.......... Ownership of facilities................................................................... 505

48.......... ACMA may inform the public about designated overhead lines, telecommunications transmission towers and underground facilities...................................................................... 505

49.......... Review of options for placing facilities underground..................... 506

50.......... Monitoring of progress in relation to placing facilities underground 507

51.......... Removal of certain overhead lines.................................................. 507

52.......... Commonwealth laws not displaced................................................ 509

53.......... Subdivider to pay for necessary alterations................................... 509

54.......... Service of notices............................................................................ 510

55.......... Facilities installed before 1 January 2001 otherwise than in reliance on Commonwealth laws—environmental impact........................................................................................................ 511

Part 2—Transitional provisions 514

60.......... Existing buildings, structures and facilities—application of State and Territory laws 514

61.......... Existing buildings, structures and facilities—application of the common law 514

Part 3—Compensation for acquisition of property 515

62.......... Compensation for acquisition of property..................................... 515

63.......... Application of this Part.................................................................. 516

Schedule 3A—Protection of submarine cables 517

Part 1—Preliminary 517

1............ Simplified outline............................................................................ 517

2............ Definitions...................................................................................... 517

Part 2—Protection zones 521

Division 1—Simplified outline 521

3............ Simplified outline............................................................................ 521

Division 2—Declaration of protection zones 522

Subdivision A—Declarations 522

4............ ACMA may declare a protection zone.......................................... 522

5............ Declaration on ACMA’s initiative or in response to request........ 522

6............ Response to a request to declare a protection zone....................... 522

7............ Decision not to declare a requested protection zone or to declare a different protection zone 523

8............ Location of submarine cable to be specified in declaration............. 523

9............ Area of a protection zone............................................................... 524

10.......... Prohibited activities........................................................................ 525

11.......... Restricted activities........................................................................ 526

12.......... Conditions...................................................................................... 527

13.......... When a declaration takes effect...................................................... 527

14.......... Duration of declaration................................................................... 527

Subdivision B—Prerequisites to declaration of a protection zone 528

15.......... ACMA to develop a proposal for a protection zone..................... 528

16.......... ACMA to refer proposal to advisory committee.......................... 528

17.......... ACMA to publish proposal........................................................... 528

18.......... Cable must be a submarine cable of national significance............... 529

19.......... Consultation with Environment Secretary..................................... 529

20.......... Matters the ACMA must have regard to....................................... 529

21.......... Environment and heritage considerations....................................... 530

22.......... Deadline for final decision about protection zone.......................... 531

Division 3—Varying or revoking a declaration of a protection zone 532

Subdivision A—Variation or revocation 532

23.......... ACMA may vary or revoke a declaration of a protection zone..... 532

24.......... Variation or revocation on ACMA’s initiative or in response to request 532

25.......... ACMA to notify affected carrier of request to vary or revoke a declaration 532

26.......... Response to a request to vary or revoke a declaration................... 532

27.......... Decision not to vary or revoke a declaration after a request to do so 533

28.......... When a variation or revocation takes effect.................................... 533

29.......... Protection zone as varied must not exceed permitted area............. 534

Subdivision B—Prerequisites to variation or revocation of declaration 534

30.......... ACMA to develop a variation or revocation proposal.................. 534

31.......... ACMA to refer proposal to advisory committee.......................... 534

32.......... ACMA to publish proposal........................................................... 534

33.......... Consultation with Environment Secretary..................................... 535

34.......... Matters the ACMA must have regard to....................................... 535

35.......... Deadline for final decision about varying or revoking a protection zone 535

Division 4—Offences in relation to a protection zone 536

Subdivision A—Damaging a submarine cable 536

36.......... Damaging a submarine cable........................................................... 536

37.......... Negligently damaging a submarine cable......................................... 536

38.......... Defence to offences of damaging a submarine cable....................... 536

39.......... Master or owner of ship used in offence of damaging a submarine cable 537

Subdivision B—Engaging in prohibited or restricted activities 537

40.......... Engaging in prohibited or restricted activities................................. 537

41.......... Aggravated offence of engaging in prohibited or restricted activities 538

42.......... Defences to offences of engaging in prohibited or restricted activities 538

43.......... Alternative verdict if aggravated offence not proven...................... 539

44.......... Master or owner of ship used in offence of engaging in prohibited or restricted activities 539

Division 5—Miscellaneous 540

45.......... Person may claim damages............................................................. 540

46.......... Indemnity for loss of anchor etc..................................................... 540

47.......... ACMA to notify relevant authorities of declaration, variation etc. of protection zone 541

48.......... Notice if carrier decommissions a submarine cable......................... 541

49.......... Composition of advisory committee.............................................. 542

Part 3—Permits to install submarine cables 543

Division 1—Simplified outline 543

50.......... Simplified outline............................................................................ 543

Division 2—Protection zone installation permits 544

51.......... Application for a permit to install a submarine cable in a protection zone 544

52.......... Form of application etc.................................................................. 544

53.......... Application to be accompanied by charge...................................... 544

54.......... Withdrawal of application.............................................................. 544

55.......... Further information........................................................................ 544

56.......... Grant or refusal of permit............................................................... 544

57.......... Automatic refusal........................................................................... 545

58.......... Refund of application charge if automatic refusal.......................... 546

59.......... Duration of permit.......................................................................... 546

60.......... Surrender of permit......................................................................... 546

61.......... Extension of permit........................................................................ 546

62.......... Suspension or cancellation of permit.............................................. 547

63.......... Exemption from State and Territory laws...................................... 547

Division 3—Non‑protection zone installation permits 549

64.......... Application for a permit to install a submarine cable in Australian waters (otherwise than in a protection zone or coastal waters)................................................................................ 549

65.......... Form of application etc.................................................................. 549

66.......... Application to be accompanied by charge...................................... 549

67.......... Withdrawal of application.............................................................. 549

68.......... Further information........................................................................ 549

69.......... Grant or refusal of permit............................................................... 550

70.......... Consultation before the ACMA makes a decision about a permit. 550

71.......... Matters the ACMA must have regard to before it makes a decision about a permit 550

72.......... Environment and heritage considerations....................................... 551

73.......... Time limit on decision about a permit............................................ 552

74.......... Duration of permit.......................................................................... 552

75.......... Surrender of permit......................................................................... 553

76.......... Extension of permit........................................................................ 553

77.......... Suspension or cancellation of permit.............................................. 553

Division 4—Conditions applicable to the installation of submarine cables 554

78.......... Application of this Division........................................................... 554

79.......... Installation to do as little damage as practicable............................. 554

80.......... Management of installation activities............................................. 554

81.......... Compliance with industry standards.............................................. 554

82.......... Compliance with international agreements..................................... 555

83.......... Conditions specified in the regulations........................................... 555

Division 5—Offences in relation to installation of submarine cables 556

84.......... Installing a submarine cable without a permit................................ 556

85.......... Breaching conditions of a permit.................................................... 556

86.......... Failing to comply with ACMA direction to remove an unlawfully installed cable 557

Part 4—Compensation 558

87.......... Compensation................................................................................. 558

88.......... Compensation for acquisition of property..................................... 558

Part 5—Miscellaneous 560

89.......... Review of operation of this Schedule............................................. 560

Schedule 4—Reviewable decisions of the ACMA 561

Part 1—Decisions that may be subject to reconsideration by the ACMA 561

1............ Reviewable decisions of the ACMA.............................................. 561

Part 2—Decisions to which section 556 does not apply 564

2............ Decisions to which section 556 does not apply............................. 564

Notes 565

An Act about telecommunications, and for related purposes

Part 1—Introduction

1 Short title [see Note 1]

This Act may be cited as the Telecommunications Act 1997.

2 Commencement [see Note 1]

(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;

(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 Trade Practices Act 1974, 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.

(2) The other objects of this Act, when read together with Parts XIB and XIC of the Trade Practices Act 1974, are as follows:

(a) to ensure that standard telephone services, payphones and other carriage services of social importance 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;

(b) to provide a framework under which a carriage service that provides digital data capability comparable to an ISDN channel is to become available to all people in Australia:

(i) by 1 January 2000; or

(ii) by another date having regard to the findings of the review into the timing of the availability of that service;

(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 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.

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.

• 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;

(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.

• 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 e‑marketing industry or the telemarketing 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 e‑marketing industry or the telemarketing industry to comply with the code.

• The ACMA has a reserve power to make an industry standard if there are no industry codes or if an industry code is deficient.

• Compliance with industry standards is mandatory.

• Carriers and carriage service providers must protect the confidentiality of communications.

• The ACMA, carriers and carriage service providers must do their best to prevent telecommunications networks and facilities from being used to commit offences.

• Carriers and carriage service providers must ensure that it is possible to execute a warrant issued under the Telecommunications (Interception and Access) Act 1979.

• Carriage service providers may be required to supply carriage services for defence purposes or for the management of natural disasters.

• 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 must require certain carriers and carriage service providers to provide pre‑selection in favour of carriage service providers.

• The Advanced Mobile Phone System is to be phased out by 1 January 2000.

• Carriers and carriage service providers may be required to comply with certain international conventions.

• The Minister may make Rules of Conduct about dealings with international telecommunications operators.

• Provision is made for the technical regulation of customer equipment, customer cabling and cabling work.

• The ACMA may regulate numbering by means of a numbering plan.

• Provision is made for standard agreements for the supply of carriage services.

• The ACMA and the ACCC may hold public inquiries about certain matters relating to telecommunications.

• The ACMA may investigate certain matters relating to telecommunications.

• 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;

(d) injunctions.

6 Main index

The following is a main index to this Act:

Main Index
Item	Topic	Provisions
1	AMPS (Advanced Mobile Phone System)	Part 19
2	Calling line identification	Part 18
3	Carriers’ powers and immunities	Part 24, Schedule 3
4	Carrier licence conditions	Part 3, Schedule 1
5	Carriers	Part 3
6	Communications, protection of	Part 13
8	Decisions, review of	Part 29, Schedule 4
9	Defence requirements and disaster plans	Part 16
10	Enforceable undertakings	Part 31A
11	Enforcement	Part 28
12	Industry codes and industry standards	Part 6
13	Information‑gathering powers	Part 27
14	Injunctions	Part 30
15	Inquiries, public	Part 25
16	International aspects	Part 20
17	Investigations	Part 26
19	Liability, vicarious	Part 32
21	National interest matters	Part 14
22	Network units	Part 2
23	Numbering and electronic addressing	Part 22
24	Penalties, civil	Part 31
25	Performance of carriers and carriage service providers, monitoring of	Part 5
26	Pre‑selection	Part 17
28	Service provider rules	Part 4, Schedule 2
29	Service providers	Part 4
30	Standard agreements for the supply of carriage services	Part 23
32	Technical regulation	Part 21

7 Definitions

In this Act, unless the contrary intention appears:

ACCC means the Australian Competition and Consumer Commission.

ACCC official means a Commission official within the meaning of section 155AAA of the Trade Practices Act 1974.

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

(d) Part XIC of the Trade Practices Act 1974; or

(e) any other provision of the Trade Practices Act 1974, 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 official has the same meaning as in the Australian Communications and Media Authority Act 2005.

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

(ca) the Do Not Call Register Act 2006; or

(d) Part XIC of the Trade Practices Act 1974; 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.

aircraft includes a balloon.

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 information officer has the meaning given by section 531B.

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.

cabling licence means a licence granted under section 427.

carriage service means a service for carrying communications by means of guided and/or unguided electromagnetic energy.

carriage service intermediary means a person who is a carriage service provider under subsection 87(5).

carriage service provider has the meaning given by section 87.

carrier means the holder of a carrier licence.

carrier licence means a licence granted under section 56.

carry includes transmit, switch and receive.

civil penalty provision means:

(a) subsection 68(1); or

(b) subsection 68(2); or

(d) subsection 101(2); or

(e) subsection 121(2); or

(f) subsection 121(3); or

(g) subsection 128(1); or

(h) subsection 128(2); or

(ha) subsection 531K(1); or

(hb) subsection 531K(3); or

(hc) subsection 531P(3); or

(hd) subsection 531P(4); or

(i) subsection 139(1); or

(j) subsection 139(2); or

(i) subsection 295S(3); or

(k) subsection 148(1) of the Telecommunications (Consumer Protection and Service Standards) Act 1999; or

(l) subsection 148(3) of the Telecommunications (Consumer Protection and Service Standards) Act 1999; or

(m) subsection 158B(1) of the Telecommunications (Consumer Protection and Service Standards) Act 1999; or

(n) subsection 158B(4) of the Telecommunications (Consumer Protection and Service Standards) Act 1999; or

(o) subsection 158C(1) of the Telecommunications (Consumer Protection and Service Standards) Act 1999; or

(q) subsection 158E(1) of the Telecommunications (Consumer Protection and Service Standards) Act 1999.

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

(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

(d) customer equipment;

includes connection otherwise than by means of physical contact, for example, a connection by means of radiocommunication.

connection permit means a permit issued under section 394.

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

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 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;

(d) the collection or dissemination of information relevant to the security or defence of:

(i) the Commonwealth; or

(ii) a foreign country that is allied or associated with the Commonwealth;

(e) the operation or control of weapons systems, including any thing that, by itself or together with any other thing or things, is intended for defensive or offensive use in combat;

(f) any other matter specified in the regulations.

designated information has the meaning given by section 531C.

designated radiocommunications facility has the meaning given by section 31.

designated request for proposal notice has the meaning given by section 531D.

digital data service provider has the same meaning as in the Telecommunications (Consumer Protection and Service Standards) Act 1999.

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.

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

e‑marketing industry means an industry that involves carrying on an e‑marketing activity.

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

(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.

entrusted company officer has the meaning given by section 531B.

entrusted public official has the meaning given by section 531B.

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.

Federal Court means the Federal Court of Australia.

fixed radiocommunications link has the meaning given by section 35.

immediate circle has the meaning given by section 23.

import means import into Australia.

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 service provider has the same meaning as in Schedule 5 to the Broadcasting Services Act 1992.

levy means levy imposed by the Telecommunications (Universal Service Levy) Act 1997.

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.

member means a member of the ACMA (and does not include an associate member).

network unit has the meaning given by Division 2 of Part 2.

nominated carrier means a carrier in respect of whom a nominated carrier declaration is in force.

nominated carrier declaration means a declaration under section 81.

numbering plan has the meaning given by section 455.

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.

protected carrier information has the meaning given by section 531B.

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.

radiocommunications receiver has the same meaning as in the Radiocommunications Act 1992.

radiocommunications transmitter has the same meaning as in the Radiocommunications Act 1992.

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.

restricted recipients rules means rules made under section 531N.

satellite‑based facility means a radiocommunications transmitter, or a radiocommunications receiver, in a satellite.

service provider has the meaning given by section 86.

service provider rules has the meaning given by section 98.

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.

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

(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.

Telecommunications Industry Ombudsman scheme has the same meaning as in the Telecommunications (Consumer Protection and Service Standards) Act 1999.

telecommunications network means a system, or series of systems, that carries, or is capable of carrying, communications by means of guided and/or unguided electromagnetic energy.

telemarketing call means:

(a) a telemarketing call (within the meaning of the Do Not Call Register Act 2006) that is made to an Australian number; or

(b) a voice call (within the meaning of the Do Not Call Register Act 2006) that is made to an Australian number, where, having regard to:

(i) the content of the call; and

(ii) the presentational aspects of the call;

it would be concluded that the purpose, or one of the purposes, of the call is:

(iii) to conduct opinion polling; or

(iv) to carry out standard questionnaire‑based research.

telemarketing industry means an industry that involves carrying on a telemarketing activity (as defined by section 109B).

Telstra has the same meaning as in the Telstra Corporation Act 1991.

this Act includes the regulations.

universal service obligation has the same meaning as in the Telecommunications (Consumer Protection and Service Standards) Act 1999.

universal service provider has the same meaning as in the Telecommunications (Consumer Protection and Service Standards) Act 1999.

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

(a) an air‑cushion vehicle; and

(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, of the Northern Territory and of Norfolk Island.

(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

This Act extends to:

(a) the Territory of Christmas Island; and

(b) the Territory of Cocos (Keeling) Islands; and

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).

(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:

continental shelf has the same meaning as in the Seas and Submerged Lands Act 1973.

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 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);

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

(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:

(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 make a written determination for the purposes of paragraph (1)(e).

(3) A determination made for the purposes of paragraph (1)(e) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

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

is taken to be a point in Australia.

(4) 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.

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.

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.

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:

(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 customer side of the boundary of a telecommunications network;

but does not include:

(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 and 30, 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;

(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 and 30, 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

(i) a telecommunications network is used to supply a carriage service to an end‑user; and

(ii) paragraphs (a) and (b) do not apply;

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;

(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;

(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;

(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 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).

(2) The Minister may make a written 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 make a written 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 make a written 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.

(8) A determination under subsection (2), (5) or (6) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

(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.

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.

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;

(d) a facility specified in a Ministerial determination.

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

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

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:

(a) in the atmosphere; and

(b) in or below the stratosphere; and

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 written instrument, determine that a specified facility is a network unit for the purposes of this Act.

(2) The determination has effect accordingly.

(3) An instrument under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

(4) To avoid doubt, nothing in the other provisions of this Part limits the power conferred by subsection (1).

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:

(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

(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 make a written determination for the purposes of paragraph (1)(e).

(3) The Minister may make a written determination for the purposes of paragraph (1)(f).

(4) A determination under subsection (2) or (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

(5) The Minister may make a written declaration for the purposes of paragraph (1)(g), (h) or (i).

(6) A declaration under subsection (5) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

(7) To avoid doubt, nothing in the other provisions of this Part limits a power conferred by subsection (2), (3) or (5).

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

(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

(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

(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

(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.

(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

(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

(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.

(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.

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

(2) If:

(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:

(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.

(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

(1) The Minister may, by writing, determine that specified combined areas are eligible combined areas for the purposes of paragraph 36(3)(b).

(2) An instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

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.

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.

(5) A person who contravenes subsection (1), (2), (3) or (4) is guilty of 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 is guilty of 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

(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

(b) no nominated carrier declaration is in force in relation to the unit; and

(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;

the unit is used to supply a carriage service to the public.

(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 disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

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 Department of Defence; or

(b) the Australian Defence Force; or

(i) has functions corresponding to functions of, or of a part of, the Department of Defence or the Australian Defence Force; and

(ii) is authorised by the Commonwealth to operate or train in Australia or an external Territory; or

(d) a part of such an organisation or body.

46 Exemption—intelligence operations

Section 42 does not apply to a network unit that is used wholly or principally:

(a) by the Australian Secret Intelligence Service; or

(b) by the Australian Security Intelligence Organisation.

47 Exemption—transport authorities

(1) Section 42 does not apply to a network unit if the sole use of the unit is use by Airservices Australia to carry communications necessary or desirable for the workings of aviation services.

(3) Section 42 does not apply to a network unit if the sole use of the unit is use by a State or Territory transport authority to carry communications necessary or desirable for the workings of any or all of the following services:

(a) train services of a kind provided by the authority;

(b) bus or other road services of a kind provided by the authority;

(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

(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:

(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.

(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

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.

(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 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

(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 written instrument, determine that section 42 does not apply in relation to:

(a) a specified network unit; or

(b) a specified person; or

(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.

(4) A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

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

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.

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.

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).

(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 (2); 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 (2); or

(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.

When individual is disqualified—failure to pay annual charge

(3) For the purposes of subsection (2), an individual is disqualified at a particular time (the test time) if:

(a) at any time before the test time, a carrier licence held by a body corporate or partnership was cancelled under subsection 72(1) because of a failure by the body corporate or partnership to pay in full the charge referred to in that subsection; and

(b) in the case of a body corporate—at the time when the charge referred to in subsection 72(1) was due and payable, the individual was:

(i) a director of the body corporate; or

(ii) the secretary of the body corporate; or

(iii) a person (by whatever name called and whether or not a director of the body corporate) who was concerned in, or took part in, the management of the body corporate; and

(c) in the case of a partnership—at the time when the charge referred to in subsection 72(1) was due and payable, the individual:

(i) was an employee of the partnership; and

(ii) was concerned in, or took part in, the management of the partnership; and

(d) the individual:

(i) aided, abetted, counselled or procured the failure of the body corporate or partnership; or

(ii) was in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the failure of the body corporate or partnership.

When individual is disqualified—failure to pay universal service levy

(4) 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(2) because of a failure by the body corporate or partnership to pay in full the levy referred to in that subsection; and

(b) in the case of a body corporate—at the time when the levy referred to in subsection 72(2) 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 levy referred to in subsection 72(2) 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 (2); or

(b) at the test time, any of the partners is disqualified; or

(i) is an employee of the partnership; and

(ii) is concerned in, or takes part in, the management of the partnership;

is disqualified.

This section does not limit grounds for refusal to grant carrier licence

(6) This section does not, by implication, limit the grounds on which the ACMA may refuse to grant a carrier licence.

58A Refusal of carrier licence—security

(1) If the Attorney‑General, after consulting the Prime Minister and the Minister administering this Act, considers that the grant of a carrier licence to a particular person would be prejudicial to security, the Attorney‑General may give a written direction to the ACMA not to grant a carrier licence to the person.

(2) The ACMA must comply with a direction under subsection (1).

(3) While a direction is in force under this section:

(a) the ACMA cannot reconsider a non‑compulsory refusal to grant a carrier licence to the person; and

(b) the Administrative Appeals Tribunal cannot consider an application for review of a non‑compulsory refusal to grant a carrier licence to the person.

(4) If an application for a carrier licence is pending at the time when the Attorney‑General gives a direction to the ACMA under this section, then the application lapses.

Note: Section 73A provides for refund of the application charge.

(5) In this section:

non‑compulsory refusal means a refusal to grant a carrier licence, other than a refusal that is required by section 56A or this section.

security has the same meaning as in the Australian Security Intelligence Organisation Act 1979.

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;

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;

(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

(1) A carrier licence is subject to the conditions specified in Schedule 1.

(2) At any time after the last day on which a report of a subsection 61A(1) review was tabled in a House of the Parliament, the Minister may, by written instrument, declare that Part 8 of Schedule 1 ceases to have effect on a specified day. The specified day must not be earlier than the last day on which a resolution disallowing the declaration could have been passed by a House of the Parliament under section 42 of the Legislative Instruments Act 2003.

Note: A subsection 61A(1) review must be conducted before 1 July 2009.

(3) A declaration under subsection (2) has effect accordingly.

(4) A declaration under subsection (2) is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

61A Review before 1 July 2009 of conditions relating to operational separation of Telstra

(1) Before 1 July 2009, the Minister must cause to be conducted a review of the operation of Part 8 of Schedule 1.

(2) A review under subsection (1) must have regard to the following matters:

(a) the state of competition in telecommunications markets;

(b) whether Telstra has a substantial degree of power in any telecommunications market;

(c) technological developments that have, or might reasonably be expected to have, a significant impact on competition in telecommunications markets;

(d) Telstra’s commercial incentives for supplying wholesale eligible services;

(e) costs and benefits of the operation of Part 8 of Schedule 1.

(3) The Minister must cause to be prepared a report of a review under subsection (1).

(4) The Minister must cause copies of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the completion of the preparation of the report.

(5) In this section:

eligible service has the same meaning as in section 152AL of the Trade Practices Act 1974.

substantial degree of power in a telecommunications market has the same meaning as in Part XIB of the Trade Practices Act 1974.

telecommunications market has the same meaning as in Part XIB of the Trade Practices Act 1974.

62 Condition of carrier licence set out in section 152AZ of the Trade Practices Act 1974

A carrier licence is subject to the condition set out in section 152AZ of the Trade Practices Act 1974.

Note: Section 152AZ of the Trade Practices Act 1974 deals with standard access obligations.

63 Conditions of carrier licence declared by Minister

Conditions applying to each carrier licence

(1) The Minister may, by written 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 written 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 written 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.

Variation of conditions

(5) The Minister may, by written instrument, vary an instrument under subsection (1), (2) or (3).

Revocation of conditions

(6) The Minister may, by written 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.

Gazettal

(10) A copy of an instrument under subsection (1), (2), (3), (5) or (6) is to be published in the Gazette.

Date of effect—existing licences

(11) An instrument under subsection (1), (2), (5) or (6) takes effect:

(a) on the day on which a copy of the instrument is published in the Gazette; or

(b) if the instrument specifies a later day—on that later day.

Date of effect—future licences

(12) An instrument under subsection (3) relating to a licence takes effect when the licence is granted.

Disallowable instrument

(13) An instrument under subsection (1), (2), (3), (5) or (6) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

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

(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).

(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

(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;

(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.

(6) Subsection (1) does not apply to a condition set out in Part 3 or 4 of Schedule 1.

Note: Parts 3 and 4 of Schedule 1 deal with access to supplementary facilities and network information.

(7) Subsection (1) does not apply to the condition set out in section 152AZ of the Trade Practices Act 1974.

Note: Section 152AZ of the Trade Practices Act 1974 deals with standard access obligations.

(8) A direction under subsection (2) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.

69A Remedial directions—breach by Telstra of conditions relating to operational separation

(1) This section applies if Telstra has contravened, or is contravening, a condition set out in Part 8 of Schedule 1.

(2) The ACCC may give Telstra a written direction requiring Telstra to take specified action directed towards ensuring that Telstra 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 Telstra under subsection (2):

(a) a direction that Telstra implement effective administrative systems for monitoring compliance with the condition;

(b) a direction that Telstra implement a system designed to give Telstra’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) Telstra must not contravene a direction under subsection (2).

(5) A direction under subsection (2) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.

(6) This section does not limit section 69.

69B Review by the Australian Competition Tribunal of remedial directions given by the ACCC

Application for review

(1) If the ACCC gives a section 69A direction to Telstra, Telstra may apply to the Australian Competition Tribunal for a review of the direction.

(2) An application under this section for a review of a section 69A direction must be:

(a) in writing; and

(b) made within 7 days after the ACCC gave the direction.

Review

(3) If the Australian Competition Tribunal receives an application under this section for review of a section 69A direction, the Australian Competition Tribunal must review the direction.

Decision on review

(4) On a review of a section 69A direction, the Australian Competition Tribunal may make a decision:

(a) affirming the direction; or

(b) setting aside the direction; or

(d) varying the direction;

and, for the purposes of the review, the Australian Competition Tribunal may perform all the functions and exercise all the powers of the ACCC.

(5) A decision by the Australian Competition Tribunal:

(a) affirming a section 69A direction; or

(b) setting aside a section 69A direction; or

(d) varying a section 69A direction;

is taken, for the purposes of this Act (other than this section), to be a decision of the ACCC.

Conduct of review

(6) For the purposes of a review by the Australian Competition Tribunal under this section, the member of the Tribunal presiding at the review may require the ACCC to give such information, make such reports and provide such other assistance to the Tribunal as the member specifies.

(7) For the purposes of a review, the Australian Competition Tribunal may have regard to any information given, documents produced or evidence given to the ACCC in connection with the making of the section 69A direction to which the review relates.

(8) To avoid doubt, Division 2 of Part IX of the Trade Practices Act 1974 applies to proceedings before the Australian Competition Tribunal under this section.

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.

Note: Section 369 deals with Rules of Conduct under section 367.

(3) Subsection (1) does not apply to a condition set out in Part 3 or 4 of Schedule 1.

Note: Parts 3 and 4 of Schedule 1 deal with access to supplementary facilities and network information.

(4) Subsection (1) does not apply to the condition set out in section 152AZ of the Trade Practices Act 1974.

Note: Section 152AZ of the Trade Practices Act 1974 deals with standard access obligations.

(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;

(b) a condition set out in Part 3 or 4 of Schedule 1;

(ba) if the carrier is Telstra—a condition set out in Part 8 of Schedule 1;

(6) Paragraph (5)(ba) does not limit subsection (1).

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 universal service levy

(2) The ACMA may cancel a carrier licence held by a carrier if the carrier fails to pay in full any levy on or before the date on which the levy becomes due and payable.

Note: Levy is defined by section 7 to mean levy imposed by the Telecommunications (Universal Service Levy) Act 1997.

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.

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;

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.

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.

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.

Disallowable instrument

(10) A determination under subsection (3) or (4) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

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.

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.

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

(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.

(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.

(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.

(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.

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

(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.

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.

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.

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);

(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 written 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 46(2) of the Acts Interpretation Act 1901.

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.

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

(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 make a written determination for the purposes of paragraph (5)(d).

Disallowable instrument

(9) An instrument under subsection (4) or (8) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

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

(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 disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

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

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:

defence organisation means:

(a) the Department of Defence; or

(b) the Australian Defence Force; or

(i) has functions corresponding to functions of, or of a part of, the Department of Defence or the Australian Defence Force; and

(ii) is authorised by the Commonwealth to operate or train in Australia or an external Territory; or

(d) a part of such an organisation or body.

91 Exemption from definition—intelligence operations

Subsections 87(1) and (2) do not apply to a carriage service that is used wholly or principally:

(a) by the Australian Secret Intelligence Service; or

(b) by the Australian Security Intelligence Organisation.

92 Exemption from definition—transport authorities

(1) Subsections 87(1) and (2) do not apply to a carriage service if the sole or principal use of the carriage service is use by Airservices Australia to carry communications necessary or desirable for the workings of aviation services.

(3) Subsections 87(1) and (2) do not apply to a carriage service if the sole or principal use of the unit is use by a State or Territory transport authority to carry communications necessary or desirable for the workings of the following services:

(a) train services of a kind provided by the authority;

(b) bus or other road services of a kind provided by the authority;

(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.

(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

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 written instrument, determine that a specified eligible definition provision does not apply in relation to:

(a) a specified carriage service; or

(b) a specified person.

Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

(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.

(4) A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

(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);

(d) subsection 87(5).

96 Exemption from certain regulatory provisions—Ministerial determination

(1) The Minister may, by written 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 46(2) of the Acts Interpretation Act 1901.

(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.

(4) A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

(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.

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.

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 Trade Practices Act 1974 is a service provider rule for the purposes of this Act.

Note: Subsection 152BA(2) of the Trade Practices Act 1974 provides that a carriage service provider must comply with any standard access obligations that are applicable to the provider.

99 Service provider determinations

(1) The ACMA may make a written 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.

(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.

(6) A service provider determination is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

100 Exemptions from service provider rules

(1) The Minister may, by written instrument, determine that a specified service provider is exempt from the service provider rules.

(2) The Minister may, by written 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.

(5) A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

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

(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 Trade Practices Act 1974.

Note: Subsection 152BA(2) of the Trade Practices Act 1974 provides that a carriage service provider must comply with any standard access obligations that are applicable to the provider.

(7) A direction under subsection (2) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.

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 Trade Practices Act 1974.

Note: Subsection 152BA(2) of the Trade Practices Act 1974 provides that a carriage service provider must comply with any standard access obligations that are applicable to the provider.

(4) The ACCC may issue a formal warning if a person contravenes the service provider rule set out in subsection 152BA(2) of the Trade Practices Act 1974.

(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.

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.

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:

(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).

(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;

(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) the adequacy of compliance with obligations under Part 2 of the Telecommunications (Consumer Protection and Service Standards) Act 1999;

(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.

(5) The ACMA must monitor, and report each financial year to the Minister on, the progress made by carriers and carriage service providers towards making a carriage service that provides digital data capability comparable to an ISDN channel available to all people in Australia.

(5A) The ACMA must monitor, and report each financial year to the Minister on, the operation of Parts 14 and 15 and on the costs of compliance with the requirements of those Parts.

(6) The ACMA must give a report under subsection (1), (4), (5) 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), (5) or (5A) to be laid before each House of the Parliament within 15 sitting days of that House after receiving the report.

(8) In this section:

ancillary goods means goods for use in connection with a carriage service.

ancillary service means a service for use in connection with a carriage service.

105A Monitoring of performance—additional report

(1) The ACMA must monitor, and report to the Minister on, specified matters relating to the performance of carriers and carriage service providers in accordance with any written direction given by the Minister to the ACMA.

(2) The ACMA must give a report under subsection (1) to the Minister:

(a) if paragraph (b) does not apply—as soon as practicable after the end of a period specified in the direction; or

(b) if the direction requires the report to be given before a specified time—before that time.

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 e‑marketing industry or the telemarketing 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 e‑marketing industry or the telemarketing 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.

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 e‑mail;

(b) instant messages;

(d) messages of a kind specified in the regulations.

message has the same meaning as in the Spam Act 2003.

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

(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.

109A E‑marketing activity

(1) For the purposes of this Part, an e‑marketing activity is an activity to which subsection (2) or (3) 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 commercial electronic messages 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

(ii) using commercial electronic messages 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 commercial electronic messages 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 commercial electronic messages 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 commercial electronic messages 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 commercial electronic messages 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:

(a) the activity consists of using commercial electronic messages to market, advertise or promote goods or services; and

(b) the person is the supplier or prospective supplier of the goods or services; and

(4) An expression used in this section and in section 6 of the Spam Act 2003 has the same meaning in this section as it has in that section.

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

(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

(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

(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.

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;

(d) carriage service providers who supply standard telephone services;

(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.

(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.

110A Sections of the e‑marketing industry

(1) For the purposes of this Part, sections of the e‑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, e‑marketing activities constitute a single section of the e‑marketing industry for the purposes of this Part.

(3) The ACMA may, by written instrument, determine that persons carrying on, or proposing to carry on, one or more specified kinds of e‑marketing activity constitute a section of the e‑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 e‑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 e‑marketing industry mentioned in subsection (2) or determined under subsection (3); and

(c) may be subsets of a section of the e‑marketing 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.

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).

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.

111A Participants in a section of the e‑marketing industry

For the purposes of this Part, if a person is a member of a group that constitutes a section of the e‑marketing industry, the person is a participant in that section of the e‑marketing 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.

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.

Division 3—General principles relating to industry codes and industry standards

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.

(1A) The Parliament intends that bodies or associations that the ACMA is satisfied represent sections of the e‑marketing industry should develop codes (industry codes) that are to apply to participants in the respective sections of the industry in relation to the e‑marketing 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.

(2) The Parliament intends that the ACMA, in exercising its powers under sections 117, 118, 119, 123, 124, 125 and 125A, 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 e‑marketing industry or the telemarketing 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

(b) the extent to which those customers are residential or small business customers; 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

(3B) 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 e‑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

(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

(4) Subsections (3), (3A), (3B) and (3C) 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 e‑marketing industry or the telemarketing 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;

(d) the internal handling of customer complaints;

(e) reporting about customer complaints;

(f) privacy and, in particular:

(i) the protection of personal information; and

(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;

(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;

(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 telephone 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.

(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.

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 an approved privacy code (as defined in that Act).

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 e‑marketing industry or the telemarketing 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, e‑marketing activities or telemarketing activities, as the case may be, of those participants; 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 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

(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 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

(g) the ACMA is satisfied that the ACCC has been consulted about the development of the code; and

(h) except in a case where 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—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 Privacy Commissioner has been consulted by the body or association about the development of the code before the body or association gave the copy of the code to the ACMA; and

(k) the ACMA has consulted the Privacy 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 National Privacy Principles (as defined in the Privacy Act 1988); or

(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 e‑marketing industry or the telemarketing industry; or

(iv) provisions of that Act that relate to the approved privacy 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 e‑marketing industry or the telemarketing industry, the ACMA may, by written notice given to the body or association, request the body or association to:

(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, e‑marketing activities or telemarketing 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 Privacy Commissioner (exercising functions under the Privacy Act 1988) has advised the ACMA is inconsistent with the National Privacy Principles or a relevant approved privacy 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 e‑marketing industry or the telemarketing 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.

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.

(4A) The ACMA must consult the Privacy 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 National Privacy Principles (as defined in the Privacy Act 1988); or

(b) other provisions of that Act relating to those Principles; or

(c) an approved privacy code (as defined in that Act) that binds one or more participants in the section of the telecommunications industry, the e‑marketing industry or the telemarketing industry to which the request relates; or

(d) provisions of that Act that relate to the approved privacy 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).

119 Publication of notice where no body or association represents a section of the telecommunications industry, the e‑marketing industry or the telemarketing industry

(1) If the ACMA is satisfied that a particular section of the telecommunications industry, the e‑marketing industry or the telemarketing 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, e‑marketing activities or telemarketing 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.

120 Replacement of industry codes

(1) Changes to an industry code are to 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.

(2) If the replacement code differs only in minor respects from the original code, section 117 has effect, in relation to the registration of the code, as if paragraphs 117(1)(e) and (f) had not been enacted.

Note: Paragraphs 117(1)(e) and (f) deal with submissions about draft codes.

121 Directions about compliance with industry codes

(1) If:

(a) a person is a participant in a particular section of the telecommunications industry, the e‑marketing industry or the telemarketing 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 National Privacy Principles (as defined in the Privacy Act 1988) or by an approved privacy code (as defined in that Act), the ACMA must consult the Privacy 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;

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

(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 for the purposes of the Legislative Instruments Act 2003.

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 e‑marketing industry or the telemarketing 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 National Privacy Principles (as defined in the Privacy Act 1988) or by an approved privacy code (as defined in that Act), the ACMA must consult the Privacy Commissioner before issuing the warning.

(4) If:

(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.

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 e‑marketing industry or the telemarketing industry; and

(ii) deal with one or more matters relating to the telecommunications activities or, e‑marketing activities or telemarketing 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

(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 written 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.

(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.

(4) A standard under subsection (2) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

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 e‑marketing industry or the telemarketing 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

(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, e‑marketing activities or telemarketing 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.

(3) A standard under subsection (2) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

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 e‑marketing industry or the telemarketing industry; and

(ii) deals with one or more matters relating to the telecommunications activities, e‑marketing activities or telemarketing 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 written 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).

(5) A standard under subsection (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

(6) The industry code ceases to be registered under this Part on the day on which the industry standard comes into force.

(7) For the purposes of this section, an industry code that applies to participants in a particular section of the telecommunications industry, the e‑marketing industry or the telemarketing industry and deals with one or more matters relating to the telecommunications activities, e‑marketing activities or telemarketing 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.

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

(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.

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.

127 Industry standards not to be determined during the first 180 days after commencement

The ACMA must not determine an industry standard during the first 180 days after the commencement of this section.

128 Compliance with industry standards

(1) If an industry standard that applies to participants in a particular section of the telecommunications industry, the e‑marketing industry or the telemarketing industry is registered under this Part, 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

(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 e‑marketing industry or the telemarketing 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

(1) The ACMA may, by written instrument, vary an industry standard that applies to participants in a particular section of the telecommunications industry, the e‑marketing industry or the telemarketing 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, e‑marketing activities or telemarketing activities, as the case may be, of those participants; and

(b) otherwise regulate adequately those participants in relation to one or more matters relating to the telecommunications activities, e‑marketing activities or telemarketing 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 National Privacy Principles or an approved privacy code (as defined in the Privacy Act 1988), following advice given by the Privacy Commissioner in the exercise of his or her functions under that Act.

(2) An instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

131 Revocation of industry standards

(1) The ACMA may, by written 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.

(3) An instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

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.

(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), 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 Privacy 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 National Privacy Principles (as defined in the Privacy Act 1988); or

(b) other provisions of that Act relating to those Principles; or

(d) provisions of that Act that relate to an approved privacy code.

(2) Before determining or varying the industry standard, the ACMA must consult the Privacy Commissioner.

(3) Before revoking the industry standard under subsection 131(1), the ACMA must consult the Privacy 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, the ACMA must consult:

(a) each State; and

(b) the Australian Capital Territory; and

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; and

(b) all industry standards; 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.

(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.

Division 6A—Reimbursement of costs of development of consumer‑related industry codes

136A Application for eligibility for reimbursement of costs of development of consumer‑related industry code

(1) If a body or association proposes to develop 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.

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

(i) an estimate of the total of the refundable costs likely to be incurred by the body or association in developing the code; and

(ii) a statement breaking down that estimate into categories of refundable costs.

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 of consumer‑related industry code

(1) If a body or association makes an application under subsection 136A(1) for a declaration in relation to 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

(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.

(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 for the purposes of the Legislative Instruments Act 2003.

136C Reimbursement of costs of developing consumer‑related industry code

Reimbursement of costs

(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;

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.

(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:

(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 Legislative Instruments Act 2003.

(6) A determination under subsection (5) has effect accordingly.

(7) A determination under subsection (5) is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

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

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 a code is a cost incurred by the body or association in developing the code 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 Legislative Instruments Act 2003.

(2) A determination under subsection (1) is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

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:

(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 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; 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 covered by the contract, arrangement or understanding.

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

(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.

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

• 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

(b) a carriage service provider; 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

(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.

275 Number‑database contractor

A reference in this Part to a number‑database contractor is a reference to a person who performs services for or on behalf of a number‑database operator, but does not include a reference to a person who performs such services in the capacity of an employee of the operator.

275A Location information

(1) For the purposes of this Part, information about the location of:

(a) a mobile telephone handset; or

(b) any other mobile communications device;

is taken to be information that relates to the affairs of the customer responsible for the handset or device.

(2) For the purposes of this Part, a document about the location of:

(a) a mobile telephone handset; or

(b) any other mobile communications device;

is taken to be a document that relates to the affairs of the customer responsible for the handset or device.

(3) This section is enacted for the avoidance of doubt.

275B Emergency management person

(1) In this Part:

emergency management person means a person who holds, occupies or performs the duties of an office or position specified under subsection (2).

(2) The Minister administering the Administrative Decisions (Judicial Review) Act 1977 may, by legislative instrument, specify either or both of the following for the purposes of the definition of emergency management person in subsection (1) of this section:

(a) offices;

(b) positions.

(3) Offices or positions established by or under a law of a State or Territory may be specified under subsection (2).

(4) Subsection (3) does not limit subsection (2).

(5) Before making an instrument under subsection (2), the Minister administering the Administrative Decisions (Judicial Review) Act 1977 must consult the Minister administering this Act.

275C Emergency

In this Part:

emergency means an emergency or disaster (however described) within the meaning of an emergency law.

275D Emergency law

(1) In this Part:

emergency law means a law specified under subsection (2).

(2) The Minister administering the Administrative Decisions (Judicial Review) Act 1977 may, by legislative instrument, specify a law of a State or a Territory for the purposes of the definition of emergency law in subsection (1) of this section.

275E Relevant information

In this Part:

relevant information means information, or the contents of a document, disclosed as permitted by section 285A.

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

(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 is guilty of 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.

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 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 is guilty of 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.

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 is guilty of 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.

Scope of subsection (1)—carriage by means of electromagnetic energy

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.

(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).

(2) In this section:

enforcement agency has the same meaning as in the Telecommunications (Interception and Access) Act 1979.

281 Witnesses

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.

284 Assisting the ACMA, 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.

(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.

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

(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

(ii) the affairs or personal particulars of another person (other than an address relating to an unlisted telephone number); and

(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

(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

(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 carrying on a business; or

(b) a charity or charitable institution; or

(d) a religious organisation; 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).

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).

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

(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

(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

(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 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

(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.

(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

(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

(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

(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

(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:

(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.

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;

(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.

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.

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 Privacy Commissioner and have regard to any submissions made by the Privacy Commissioner because of that consultation; and

(b) must consult the Secretary of the Department that is administered by the Minister administering the Privacy Act 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.

(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

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.

(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 the ACMA gives the Minister a report under section 57 of the Australian Communications and Media Authority Act 2005, 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.

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.

295W Use or disclosure of information by other persons

Actual or likely emergencies

(1) If information is disclosed to a person as permitted by subsection 295V(1) or (2) or this subsection, the person may use or disclose the information for a purpose connected with persons being alerted to the emergency or likely emergency concerned.

Testing

(2) If information is disclosed to a person as permitted by subsection 295V(3) or this subsection, the person may use or disclose the information for the purpose of reasonable testing of whether, in the event of an emergency occurring, persons would be able to be alerted to that emergency.

Other

(3) If information is disclosed to a person as permitted by subsection 295V(4) or this subsection, the person may use or disclose the information for a purpose connected with persons being alerted to an emergency or a likely emergency.

295X Effect on telecommunications network

In using or disclosing information that is permitted by section 295V or 295W, a person must take reasonable steps to ensure that the use or disclosure does not adversely affect the operation of a telecommunications network.

295Y Coronial and other inquiries

The disclosure of relevant information to:

(a) a coronial inquiry; or

(b) another inquiry specified by the Minister administering the Administrative Decisions (Judicial Review) Act 1977, by legislative instrument, for the purposes of this paragraph;

in relation to an emergency or likely emergency is taken, for the purposes of this Division, to be a disclosure for a purpose connected with persons being alerted to the emergency or likely emergency concerned.

295Z Offence—use or disclosure of information by emergency management persons

An emergency management person commits an offence if:

(a) the person uses or discloses relevant information; and

(b) the use or disclosure is not permitted under section 295V.

Penalty: Imprisonment for 2 years.

295ZA Offence—use or disclosure of information by other persons

(1) A person commits an offence if:

(a) information is disclosed to the person as permitted by subsection 295V(1) or (2) or 295W(1); and

(b) the person uses or discloses the information; and

(c) the use or disclosure referred to in paragraph (b) of this subsection is not for a purpose connected with persons being alerted to the emergency or likely emergency concerned.

Penalty: Imprisonment for 2 years.

(2) A person commits an offence if:

(a) information is disclosed to the person as permitted by subsection 295V(3) or 295W(2); and

(b) the person uses or discloses the information; and

(c) the use or disclosure referred to in paragraph (b) of this subsection is not for the purpose of reasonable testing of whether, in the event of an emergency occurring, persons would be able to be alerted to that emergency.

Penalty: Imprisonment for 2 years.

(3) A person commits an offence if:

(a) information is disclosed to the person as permitted by subsection 295V(4) or 295W(3); and

(b) the person uses or discloses the information; and

(c) the use or disclosure referred to in paragraph (b) of this subsection is not for a purpose connected with persons being alerted to an emergency or a likely emergency.

Penalty: Imprisonment for 2 years.

295ZB Reports of access

(1) If an emergency management person discloses relevant information, the person must give a written report to the Minister administering the Administrative Decisions (Judicial Review) Act 1977 and to the ACMA that covers the following matters:

(a) if the disclosure occurred under subsection 295V(1) or (2)—a description of the emergency or likely emergency concerned and its location;

(b) in any case—the number of telephone numbers that were disclosed and the day that disclosure occurred;

(c) in any case—the number of persons to whom the emergency management person disclosed those numbers and the purpose of each disclosure.

(2) The emergency management person must give the report to the Minister administering the Administrative Decisions (Judicial Review) Act 1977 and to the ACMA as soon as practicable after the last disclosure referred to in paragraph (1)(c) of this section occurs (disregarding section 295Y).

295ZC Annual reports to the ACMA and Privacy 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 Privacy 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;

(b) in any case—the number of telephone numbers that were disclosed and the day that disclosure occurred;

(c) in any case—the number of persons to whom the emergency management person disclosed those numbers and the purpose of each disclosure (whether the disclosure occurred in that financial year or the following financial year).

295ZD Arrangements with States and Territories

(1) The Minister administering the Administrative Decisions (Judicial Review) Act 1977 may make arrangements with a Minister of a State or a Territory with respect to the performance of functions or duties, or the exercise of powers, by an emergency management person under this Division.

(2) An instrument by which an arrangement under this section is made is not a legislative instrument.

295ZE Commonwealth immunity

No action, suit or proceeding lies against the Commonwealth in relation to loss, damage or injury to any person or property as a result of the use or disclosure of relevant information:

(a) for a purpose connected with persons being alerted to an emergency or a likely emergency; or

(b) for the purpose of reasonable testing of whether, in the event of an emergency occurring, persons would be able to be alerted to that emergency.

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 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.

(2) If information or a document is disclosed to a person as permitted by subsection 284(2) 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 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 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

(b) the disclosure is for a purpose covered by subparagraph 285(1A)(c)(iv);

then:

(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.

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.

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 is guilty of 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.

Division 4A—Relationship with the Privacy Act 1988

303B Acts taken to be authorised by law 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 an approved privacy code (as defined in that Act), to be authorised by law.

(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 an approved privacy code (as defined in that Act), to be authorised by law.

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 an approved privacy 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.

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

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 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

(ii) section 177, 178 or 179 or subsection 180(3) 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

(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

(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 is guilty of 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 of the Telecommunications (Interception and Access) Act 1979 (in so far as the authorisation is of a kind referred to in subsection 180(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 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

(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.

(2) A person who contravenes subsection (1) is guilty of 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 Privacy Commissioner

(1) In addition to the functions conferred on the Privacy Commissioner by the Privacy Act 1988, the Privacy Commissioner has the function of monitoring compliance with this Division.

(2) In particular, the function conferred on the Privacy Commissioner by subsection (1) includes monitoring:

(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 Privacy Commissioner such access to the records of the carrier, provider or operator as the Privacy Commissioner reasonably requires for the purposes of the performance of the function conferred by subsection (1).

(4) The Privacy Commissioner may give the Minister a written report about any matters arising out of the performance of the function conferred by subsection (1).

(5) Section 99 of the Privacy Act 1988 applies to this section as if this section were a provision of the Privacy Act 1988.

Note: Section 99 of the Privacy Act 1988 deals with delegation.

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.

Part 14—National interest matters

311 Simplified outline

The following is a simplified outline of this Part:

• The ACMA, carriers and carriage service providers must do their best to prevent telecommunications networks and facilities from being used to commit offences.

• The ACMA, carriers and carriage service providers must give the authorities such help as is reasonably necessary for the purposes of:

(a) enforcing the criminal law and laws imposing pecuniary penalties; and

(b) protecting the public revenue; and

• A carriage service provider may suspend the supply of a carriage service in an emergency if requested to do so by a senior police officer.

312 ACMA’s obligations

(1) The ACMA must, in performing its telecommunications functions or exercising its telecommunications powers, do its best to prevent:

(a) telecommunications networks; and

(b) facilities;

from being used in, or in relation to, the commission of offences against the laws of the Commonwealth and of the States and Territories.

(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;

(3) The ACMA is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in performance of the duty imposed by subsection (1) or (2).

(4) An officer, employee or agent of the ACMA is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in connection with an act done or omitted by the ACMA as mentioned in subsection (3).

313 Obligations of carriers and carriage service providers

(1) A carrier or carriage service provider must, in connection with:

(a) the operation by the carrier or provider of telecommunications networks or facilities; or

(b) the supply by the carrier or provider of carriage services;

do the carrier’s best or the provider’s best to prevent telecommunications networks and facilities from being used in, or in relation to, the commission of offences against the laws of the Commonwealth or of the States and Territories.

(2) A carriage service intermediary must do the intermediary’s best to prevent telecommunications networks and facilities from being used in, or in relation to, the commission of offences against the laws of the Commonwealth or of the States and Territories.

(3) A carrier or carriage service provider must, in connection with:

(a) the operation by the carrier or provider of telecommunications networks or facilities; or

(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:

(d) protecting the public revenue;

(e) safeguarding national security.

Note: Section 314 deals with the terms and conditions on which such help is to be provided.

(4) A carriage service intermediary who arranges for the supply by a carriage service provider of carriage services must, in connection with:

(a) the operation by the provider of telecommunications networks or facilities; or

(b) the supply by the provider of carriage services;

give officers and authorities of the Commonwealth and of the States and Territories such help as is reasonably necessary for the following purposes:

(d) protecting the public revenue;

(e) safeguarding national security.

Note: Section 314 deals with the terms and conditions on which such help is to be provided.

(5) A carrier or carriage service provider is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith:

(a) in performance of the duty imposed by subsection (1), (2), (3) or (4); or

(b) in compliance with a direction that the ACMA gives in good faith in performance of its duties under section 312.

(6) An officer, employee or agent of a carrier or of a carriage service provider is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in connection with an act done or omitted by the carrier or provider as mentioned in subsection (5).

(7) A reference in this section to giving help includes a reference to giving help by way of:

(a) the provision of interception services, including services in executing an interception warrant under the Telecommunications (Interception and Access) Act 1979; or

(b) giving effect to a stored communications warrant under that Act; or

(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

(d) giving effect to authorisations under Division 3 or 4 of Part 4‑1 of that Act; or

(e) disclosing information or a document in accordance with section 280 of this Act.

Note: Additional obligations concerning interception capability and delivery capability are, or may be, imposed on a carrier or carriage service provider under Chapter 5 of the Telecommunications (Interception and Access) Act 1979.

314 Terms and conditions on which help is to be given

(1) This section applies if a person is required to give help to an officer or authority of the Commonwealth, a State or a Territory as mentioned in subsection 313(3) or (4).

(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 5‑3 or 5‑5 of the Telecommunications (Interception and Access) Act 1979 (about 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.

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

(i) prevent a recurrence of the act mentioned in subparagraph (b)(i); or

(ii) prevent or reduce the likelihood of the carrying out of a threat mentioned in subparagraph (b)(ii), (iii), (iv) or (v);

the officer may request a carriage service provider to suspend the supply of the carriage service.

(2) The carriage service provider may comply with the request.

(3) This section does not, by implication, limit any other powers that the provider may have to suspend the supply of the carriage service.

(3A) The provider is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in compliance with the request.

(3B) An officer, employee or agent of the provider is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in connection with an act done or omitted by the provider as mentioned in subsection (3A).

(4) In this section:

senior officer, in relation to a police force or service, means a commissioned officer of the force or service who holds a rank not lower than the rank of Assistant Commissioner.

316 Generality of Part not limited

Nothing in this Part limits the generality of anything else in it.

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 to the Department of Defence; or

(b) the Chief of the Defence Force.

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 Department of Defence; 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.

(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).

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

(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.

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;

(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 Department of Defence 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.

(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.

(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.

(7) If the ACMA certifies a draft variation of a certified agreement, the agreement is varied accordingly.

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 connection with an act done or omitted by the carrier or provider as mentioned in subsection (1).

Division 5—Delegation

347 Delegation

(1) The Secretary to the Department of Defence 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

Part 17—Pre‑selection in favour of carriage service providers

348 Simplified outline

The following is a simplified outline of this Part:

• The ACMA must require certain carriers and carriage service providers to provide pre‑selection in favour of carriage service providers.

• 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 must make a written determination requiring each carrier or carriage service provider who supplies a standard telephone service to:

(a) provide pre‑selection in favour of a specified carriage service provider, in relation to calls made using a 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:

(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.

(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 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 disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

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

(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;

is to be determined in the same manner in which that question is determined for the purposes of Part XIC of the Trade Practices Act 1974.

Note: See section 152AB of the Trade Practices Act 1974.

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).

352 Exemptions from requirement to provide pre‑selection

(1) The ACMA may, by notice in the Gazette, 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.

353 Use of over‑ride dial codes

(1) This section applies to a carriage service provider (the first provider) if:

(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.

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

(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 make a written determination for the purposes of subparagraph (1)(b)(ii).

(4) A determination under subsection (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

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.

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.

Part 19—Advanced Mobile Phone System (AMPS)

357 Simplified outline

The following is a simplified outline of this Part:

• The Advanced Mobile Phone System is to be phased out by 1 January 2000.

358 Meaning of AMPS

In this Part:

AMPS means the Advanced Mobile Phone System.

Note: The Advanced Mobile Phone System does not incorporate digital modulation techniques.

359 Scope of Part

This Part applies to a person who is:

(a) a carrier; or

(b) a carriage service provider.

360 No new AMPS

Before 1 January 2000, a person other than Telstra must not install or operate an AMPS network.

361 AMPS to be phased out

(1) On or after 1 January 2000, a person must not install or operate an AMPS network.

(2) Before 1 January 2000, a person must comply with any written plan determined by the Minister in relation to:

(a) ceasing installation or operation of an AMPS network; or

(b) ceasing the supply of AMPS services; or

(3) Subsections (1) and (2) have effect subject to section 362.

(4) A plan under subsection (2) may make provision in relation to a matter by applying, adopting or incorporating (with or without modifications) provisions of any frequency band plan (within the meaning of the Radiocommunications Act 1992), either:

(a) as in force at a particular time; or

(b) as in force from time to time.

(5) Subsection (4) does not, by implication, limit section 589.

362 Limited exemption from phase‑out of AMPS

(1) A person may install or operate an AMPS network in a particular area:

(a) on or after 1 January 2000; or

(b) contrary to the requirements of a plan of a kind to which subsection 361(2) applies;

if:

(d) the Minister agrees in writing after:

(i) the Minister has consulted each eligible mobile carrier; and

(ii) the Minister has determined that the installation or operation of the AMPS network will not erode unduly the practical value to an eligible mobile carrier of the regime embodied in sections 360 and 361.

(2) Subsection (1) does not authorise a person to do anything that would contravene a provision of this Act (other than section 360 or 361).

(3) In this section:

eligible mobile carrier means a person who was a mobile carrier (within the meaning of the Telecommunications Act 1991) immediately before 1 July 1997.

this Act includes the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act.

363 Competition not to be reduced

(1) This section applies if a person installs or operates an AMPS network.

(2) The person must not use the installation of the AMPS network, or operate the AMPS network, in a way that could unfairly reduce the scope for competition between carriage service providers who supply public mobile telecommunications services.

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.

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

(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.

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

(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:

(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

(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.

(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 disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.

(5) A determination mentioned in paragraph (2)(b) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

(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

(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 Trade Practices Act 1974.

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.

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.

(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.

Part 21—Technical regulation

Division 1—Simplified outline

373 Simplified outline

The following is a simplified outline of this Part:

• The ACMA may make the following types of standards:

(a) technical standards about customer equipment and customer cabling;

(b) standards relating to the features of customer equipment that are designed to cater for the special needs of persons with disabilities;

• The ACMA may require customer equipment and customer cabling to be labelled so as to indicate compliance with standards.

• The ACMA may issue connection permits, and make connection rules, authorising the connection of customer equipment and customer cabling that does not comply with the labelling requirements.

• A label may include a compliance symbol. The unauthorised use of compliance symbols is prohibited.

• The ACMA may grant cabling licences, and make cabling provider rules, authorising the performance of cabling work.

• Civil actions may be instituted for unlawful or dangerous connections of customer equipment or customer cabling.

• Dangerous equipment and cabling may be disconnected from networks.

• The ACMA may prohibit the supply or possession of dangerous equipment or cabling.

Division 2—Interpretative provisions

374 Part applies to networks or facilities in Australia operated by carriers or carriage service providers

(1) A reference in this Part to a telecommunications network is a reference to a telecommunications network in Australia that is operated by a carrier or carriage service provider.

(2) A reference in this Part to a facility is a reference to a facility in Australia that is operated by a carrier or carriage service provider.

375 Manager of network or facility

For the purposes of this Part, the manager of:

(a) a telecommunications network; or

(b) a facility of a telecommunications network;

is the carrier, or carriage service provider, who operates the network or facility, as the case may be.

Division 3—Technical standards about customer equipment and customer cabling

376 ACMA’s power to make technical standards

(1) The ACMA may, by written instrument, make a technical standard relating to specified customer equipment or specified customer cabling.

(2) Standards under this section are to consist only of such requirements as are necessary or convenient for:

(a) protecting the integrity of a telecommunications network or a facility; or

(b) protecting the health or safety of persons who:

(i) operate; or

(ii) work on; or

(iii) use services supplied by means of; or

(iv) are otherwise reasonably likely to be affected by the operation of;

a telecommunications network or a facility; or

(d) ensuring, for the purpose of the supply of a standard telephone service, the interoperability of customer equipment with a telecommunications network to which the equipment is, or is proposed to be, connected; or

(e) achieving an objective specified in the regulations.

(3) Regulations made for the purposes of paragraph (2)(e) must not specify an objective if the achievement of the objective is likely to have the effect (whether direct or indirect) of requiring a telecommunications network or a facility to:

(a) have particular design features; or

(b) meet particular performance requirements.

(4) A standard under this section may be of general application or may be limited as provided in the standard. This subsection does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

(5) A standard under this section takes effect:

(a) if the instrument making the standard specifies a day for the purpose—on that day; or

(b) otherwise—on the day on which the standard was notified in the Gazette.

(6) A standard under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

377 Adoption of voluntary standards

(1) In making a technical standard under section 376, the ACMA may apply, adopt or incorporate (with or without modification) any matter contained in a standard proposed or approved by:

(a) Standards Australia International Limited; or

(b) any other body or association;

either:

(d) as in force or existing from time to time.

(2) Subsection (1) does not, by implication, limit section 589.

378 Procedures for making technical standards

(1) Before making a technical standard under section 376, the ACMA must, so far as is practicable, try to ensure that:

(a) interested persons have had an adequate opportunity to make representations about the proposed standard (either directly, or indirectly by means of a report under paragraph (2)(g)); and

(b) due consideration has been given to any representation so made.

Note: This subsection has effect subject to section 379 (which deals with the ACMA’s power to make standards in cases of urgency).

(2) The ACMA may make an arrangement with any of the following bodies or associations:

(a) Standards Australia International Limited;

(b) a body or association approved in writing by Standards Australia International Limited for the purposes of this subsection;

under which the body or association:

(d) prepares a draft of a standard; and

(e) publishes the draft standard; and

(f) undertakes a process of public consultation on the draft standard; and

(g) reports to the ACMA on the results of that process of public consultation.

(3) A copy of an approval under paragraph (2)(b) is to be published in the Gazette.

(4) A copy of a determination under paragraph (2)(c) is to be published in the Gazette.

(5) For the purposes of subsection (1), interested persons are taken not to have had an adequate opportunity to make representations unless there was a period of at least 60 days during which the representations could be made.

379 Making technical standards in cases of urgency

(1) The ACMA is not required to comply with subsection 378(1) in relation to the making of a particular technical standard if the ACMA is satisfied that it is necessary to make the standard as a matter of urgency in order to:

(a) protect the integrity of a telecommunications network or of a facility; or

(b) protect the health or safety of persons who:

(i) operate; or

(ii) work on; or

(iii) use services supplied by means of; or

(iv) are otherwise reasonably likely to be affected by the operation of;

a telecommunications network or a facility.

(2) If subsection (1) applies to a standard (the urgent standard), the urgent standard ceases to have effect 12 months after it came into operation. However, this rule does not prevent the ACMA from revoking the urgent standard and making another standard under section 376 that:

(a) is not a standard to which subsection (1) applies; and

(b) deals with the same subject matter as the urgent standard.

Division 4—Disability standards

380 Disability standards

(1) The ACMA may, by written instrument, make a standard relating to specified customer equipment if:

(a) the customer equipment is for use in connection with the standard telephone service; and

(b) the customer equipment is for use primarily by persons who do not have a disability; and

(c) the standard relates to the features of the equipment that are designed to cater for any or all of the special needs of persons with disabilities.

(2) The following are examples of features mentioned in paragraph (1)(c):

(a) an induction loop that is designed to assist in the operation of a hearing aid;

(b) a raised dot on the button labelled “5” on a telephone.

(3) A standard under this section may be of general application or may be limited as provided in the standard. This subsection does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

(4) A standard under this section takes effect:

(a) if the instrument making the standard specifies a day for the purpose—on that day; or

(b) otherwise—on the day on which the standard was notified in the Gazette.

(5) A standard under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

(6) In this section:

disability has the same meaning as in the Disability Discrimination Act 1992.

381 Adoption of voluntary standards

(1) In making a standard under section 380, the ACMA may apply, adopt or incorporate (with or without modification) any matter contained in a standard proposed or approved by:

(a) Standards Australia International Limited; or

(b) any other body or association;

either:

(d) as in force or existing from time to time.

(2) Subsection (1) does not, by implication, limit section 589.

382 Procedures for making disability standards

(1) Before making a standard under section 380, the ACMA must, so far as is practicable, try to ensure that:

(a) interested persons have had an adequate opportunity to make representations about the proposed standard (either directly, or indirectly by means of a report under paragraph (2)(g)); and

(b) due consideration has been given to any representation so made.

(2) The ACMA may make an arrangement with any of the following bodies or associations:

(a) Standards Australia International Limited;

(b) a body or association approved in writing by Standards Australia International Limited for the purposes of this subsection;

under which the body or association:

(d) prepares a draft of a standard; and

(e) publishes the draft standard; and

(f) undertakes a process of public consultation on the draft standard; and

(g) reports to the ACMA on the results of that process of public consultation.

(3) A copy of an approval under paragraph (2)(b) is to be published in the Gazette.

(4) A copy of a determination under paragraph (2)(c) is to be published in the Gazette.

383 Effect of compliance with disability standards

(1) In determining whether a person has infringed section 24 of the Disability Discrimination Act 1992 in relation to the supply or provision of customer equipment, regard must be had to whether the customer equipment complies with a standard in force under section 380.

(2) Subsection (1) does not, by implication, limit the matters to which regard may be had.

Division 5—Technical standards about the interconnection of facilities

384 ACMA’s power to make technical standards

(1) The ACMA may, by written instrument, make a technical standard relating to the interconnection of facilities.

Note: For enforcement of the standards, see section 152AR of the Trade Practices Act 1974.

(2) The ACMA must not make a standard under subsection (1) unless the ACMA is directed to do so by the ACCC under subsection (3).

(3) The ACCC may give written directions to the ACMA in relation to the exercise of the power to make standards under subsection (1).

(4) The ACMA must exercise its powers under subsection (1) in a manner consistent with any directions given by the ACCC under subsection (3).

(5) The ACCC must not give a direction under subsection (3) unless, in the ACCC’s opinion, it is necessary to do so in order to:

(a) promote the long‑term interests of end‑users of carriage services or of services supplied by means of carriage services; or

(b) reduce or eliminate the likelihood of hindrance to the provision of access to declared services.

(6) A standard under subsection (1) may be of general application or may be limited as provided in the standard. This subsection does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

(7) A standard under subsection (1) takes effect:

(a) if the instrument making the standard specifies a day for the purpose—on that day; or

(b) otherwise—on the day on which the standard was notified in the Gazette.

(8) A standard under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

(9) In this section:

declared service has the same meaning as in Part XIC of the Trade Practices Act 1974.

385 Adoption of voluntary standards

(1) In making a technical standard under section 384, the ACMA may apply, adopt or incorporate (with or without modification) any matter contained in a standard proposed or approved by:

(a) Standards Australia International Limited; or

(b) any other body or association;

either:

(d) as in force or existing from time to time.

(2) Subsection (1) does not, by implication, limit section 589.

386 Procedures for making technical standards

(1) Before making a technical standard under section 384, the ACMA must, so far as is practicable, try to ensure that:

(a) interested persons have had an adequate opportunity to make representations about the proposed standard (either directly, or indirectly by means of a report under paragraph (2)(g)); and

(b) due consideration has been given to any representations so made.

(2) The ACMA may make an arrangement with any of the following bodies or associations:

(a) Standards Australia International Limited;

(b) a body or association approved in writing by Standards Australia International Limited for the purposes of this subsection;

under which the body or association:

(d) prepares a draft of a standard; and

(e) publishes the draft standard; and

(f) undertakes a process of public consultation on the draft standard; and

(g) reports to the ACMA on the results of that process of public consultation.

(3) A copy of an approval under paragraph (2)(b) is to be published in the Gazette.

(4) A copy of a determination under paragraph (2)(c) is to be published in the Gazette.

387 Procedures for making technical standards

(1) The ACMA must not make a standard under section 384 relating to a particular matter unless:

(a) the ACMA has given a body or association a written notice requesting the body or association to make a standard relating to that matter within the period specified in the notice; and

(b) one of the following subparagraphs applies:

(i) the body or association does not comply with the request;

(ii) the body or association complies with the request, but the ACMA is not satisfied that the body’s or association’s standard deals with that matter in an adequate way;

(iii) the body or association complies with the request, but the ACMA is not satisfied that the body’s or association’s standard is operating adequately.

(2) The period specified under paragraph (1)(a) must run for at least 120 days after the notice was given.

(3) In making a decision under subparagraph (1)(b)(ii) or (iii), the ACMA must have regard to:

(a) whether the body’s or association’s standard is likely to promote the long‑term interests of end‑users of carriage services and of services supplied by means of carriage services; and

(b) whether the body’s or association’s standard is likely to reduce or eliminate the likelihood of hindrance to the provision of access to declared services.

(4) Subsection (3) does not, by implication, limit the matters to which the ACMA may have regard.

(5) Before making a decision under subparagraph (1)(b)(ii) or (iii), the ACMA must consult the ACCC.

388 Provision of access

A reference in this Division to the provision of access is a reference to the provision of access to:

(a) service providers generally; or

(b) a particular class or classes of service providers; or

in order that the service provider or providers can provide carriage services and/or content services.

389 Promotion of the long‑term interests of end‑users of carriage services and of services supplied by means of carriage services

For the purposes of this Division, the question whether a particular thing promotes the long‑term interests of end‑users of carriage services or of services supplied by means of carriage services is to be determined in the same manner as it is determined for the purposes of Part XIC of the Trade Practices Act 1974.

Division 6—Connection permits and connection rules

Subdivision A—Connection permits authorising the connection of non‑standard customer equipment and non‑standard cabling

390 Application for connection permit

Customer equipment

(1) A person (the applicant) may apply to the ACMA for a permit authorising the applicant, and such other persons as are from time to time nominated by the applicant, to:

(a) connect specified customer equipment to a telecommunications network or to a facility; and

(b) maintain such a connection.

The permit is called a connection permit.

Customer cabling

(2) A person (the applicant) may apply to the ACMA for a permit authorising the applicant, and such other persons as are from time to time nominated by the applicant, to:

(a) connect specified customer cabling to a telecommunications network or to a facility; and

(b) maintain such a connection.

The permit is called a connection permit.

391 Form of application

An application must be:

(a) in writing; and

(b) in accordance with the form approved in writing by the ACMA.

392 Application to be accompanied by charge

An application must be accompanied by the charge (if any) fixed by a determination under section 60 of the Australian Communications and Media Authority Act 2005.

393 Further information

(1) The ACMA may request the applicant to give the ACMA further information about the application.

(2) The ACMA may refuse to consider the application until the applicant gives the ACMA the information.

394 Issue of connection permits

(1) After considering an application, the ACMA may issue a connection permit in accordance with the application.

(2) In deciding whether to issue a connection permit, the ACMA may have regard to:

(a) whether the purpose for which the permit is sought is a purpose related to:

(i) education or research; or

(ii) the testing of customer equipment or customer cabling; or

(iii) the demonstration of customer equipment or customer cabling; and

(b) the knowledge and experience of the applicant.

(3) In deciding whether to issue a connection permit, the ACMA must have regard to:

(a) the protection of the integrity of a telecommunications network or of a facility; and

(b) the protection of the health or safety of persons who:

(i) operate; or

(ii) work on; or

(iii) use services supplied by means of; or

(iv) are otherwise reasonably likely to be affected by the operation of;

a telecommunications network or a facility.

(4) Subsections (2) and (3) do not, by implication, limit the matters to which the ACMA may have regard.

(5) If the ACMA decides to refuse to issue the connection permit, it must give the applicant a written notice setting out the decision.

395 Connection permit has effect subject to this Act

(1) A connection permit has effect subject to this Act.

(2) In this section:

this Act includes the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act.

396 Nominees of holder

If the ACMA issues a connection permit, the persons nominated by the holder are called the holder’s nominees.

397 Duration of connection permits

(1) A connection permit comes into force when it is issued and remains in force:

(a) if the permit specifies a day of expiration—until the end of that day; or

(b) otherwise—indefinitely.

(2) The ACMA may, by written notice given to the holder of a connection permit, declare that the permit has effect as if the permit had specified a day specified in the notice as the day of expiration of the connection permit. The declaration has effect accordingly.

(3) A day specified in a notice under subsection (2) must be later than the day on which the notice is given to the holder of the connection permit.

398 Conditions of connection permits

(1) A connection permit is subject to the following conditions:

(a) a condition that the holder and the holder’s nominees must comply with this Division;

(b) any condition to which the permit is subject under subsection (2);

(2) The ACMA may, by written instrument, determine that:

(a) each connection permit is subject to such conditions as are specified in the determination; or

(b) each connection permit included in a specified class of connection permits is subject to such conditions as are specified in the determination.

(3) The ACMA may, by written notice given to the holder of a connection permit:

(a) impose one or more further conditions to which the permit is subject; or

(b) vary or revoke any condition:

(i) imposed under paragraph (a); or

(ii) specified in the permit.

(4) A condition of a connection permit may relate to the kinds of persons who can be the holder’s nominees.

(5) Subsection (4) does not, by implication, limit the conditions to which a connection permit may be subject.

(6) A determination under subsection (2) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

399 Offence of contravening condition

(1) A person is guilty of an offence if:

(a) the person is the holder of a connection permit, or a nominee of such a holder; and

(b) the person engages in conduct; and

Penalty: 100 penalty units.

Note 1: See also sections 4AA and 4B of the Crimes Act 1914.

Note 2: See also Division 13 of this Part (which deals with the payment of penalties as an alternative to prosecution).

(2) In this section:

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

400 Formal warnings—breach of condition

The ACMA may issue a formal warning to the holder of a connection permit if the holder, or a nominee of the holder, contravenes a condition to which the permit is subject.

401 Surrender of connection permit

The holder of a connection permit may, at any time, surrender the permit by written notice given to the ACMA.

402 Cancellation of connection permit

(1) The ACMA may, by written notice given to the holder of a connection permit, cancel the permit.

(2) In deciding whether to cancel the permit, the ACMA may have regard to any matter which the ACMA was entitled, under subsection 394(2), to have regard in deciding whether to issue a permit.

(3) In deciding whether to cancel the permit, the ACMA must have regard to:

(a) any matter to which the ACMA was required, under subsection 394(3), to have regard in deciding whether to issue a permit; and

(b) whether or not the holder, or a nominee of the holder, has been convicted of an offence against this Division.

(4) Subsections (2) and (3) do not, by implication, limit the matters to which the ACMA may have regard.

403 Register of connection permits

(1) The ACMA is to maintain a Register in which it includes:

(a) all connection permits currently in force; and

(b) all conditions of such permits.

(2) The Register may be maintained by electronic means.

(3) A person may, on payment of the charge (if any) fixed by a determination under section 60 of the Australian Communications and Media Authority Act 2005:

(a) inspect the Register; and

(b) make a copy of, or take extracts from, the Register.

(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.

Subdivision B—Connection rules

404 Connection rules

(1) The ACMA may, by written instrument, make rules (connection rules) that:

(a) are expressed to apply to specified persons; and

(b) relate to any or all of the following:

(i) the connection of specified customer equipment to a telecommunications network or to a facility;

(ii) maintaining a connection referred to in subparagraph (i);

(iii) the connection of specified customer cabling to a telecommunications network or to a facility;

(iv) maintaining a connection referred to in subparagraph (iii).

Note 1: A person may be specified by name, by inclusion in a specified class or in any other way.

Note 2: Equipment or cabling may be specified by name, by inclusion in a specified class or in any other way.

(2) A person specified under paragraph (1)(a) is said to be subject to the connection rules.

(3) The connection rules may make provision for or in relation to a particular matter by empowering the ACMA to make decisions of an administrative character.

(4) An instrument under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

405 Procedures for making connection rules

(1) Before making connection rules under section 404, the ACMA must, so far as is practicable, try to ensure that:

(a) interested persons have had an adequate opportunity to make representations about the proposed rules (either directly, or indirectly by means of a report under paragraph (2)(g)); and

(b) due consideration has been given to any representation so made.

(2) The ACMA may make an arrangement with any of the following bodies or associations:

(a) Standards Australia International Limited;

(b) a body or association approved in writing by Standards Australia International Limited for the purposes of this subsection;

under which the body or association:

(d) prepares draft rules; and

(e) publishes the draft rules; and

(f) undertakes the process of public consultation on the draft rules; and

(g) reports to the ACMA on the results of that process of public consultation.

(3) A copy of an approval under paragraph (2)(b) is to be published in the Gazette.

(4) A copy of a determination under paragraph (2)(c) is to be published in the Gazette.

Division 7—Labelling of customer equipment and customer cabling

406 Application of labels

(1) A reference in this Division to a label includes a reference to a statement.

(2) For the purposes of this Division, a label is taken to be applied to a thing if:

(a) the label is affixed to the thing; or

(b) the label is woven in, impressed on, worked into or annexed to the thing; or

(c) the label is affixed to a container, covering, package, case, box or other thing in or with which the first‑mentioned thing is supplied; or

(d) the label is affixed to, or incorporated in, an instruction or other document that accompanies the first‑mentioned thing.

406A Application of Division to agent of manufacturer or importer

For the purposes of this Act and to avoid doubt, a reference in this Division to a manufacturer or importer of customer equipment or customer cabling includes a reference to a person who is authorised in writing by such a manufacturer or importer to act in Australia as an agent of the manufacturer or importer (as the case may be) for the purposes of this Division.

407 Labelling requirements

(1) The ACMA may, by written instrument, require any person who is a manufacturer or importer of specified customer equipment or specified customer cabling to apply to the equipment or cabling a label that indicates whether the equipment or cabling meets the requirements of the section 376 standards specified in the instrument.

(2) An instrument under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

408 Requirements to apply labels—ancillary matters

(1) This section applies to an instrument under section 407.

(2) The label must be in the form specified by the ACMA in the instrument.

(3) The method of applying the label to the equipment or cabling must be as specified by the ACMA in the instrument.

(4) The instrument may state that the requirement does not apply to imported customer equipment, or imported customer cabling, if there is applied to the equipment or cabling a label of a specified kind that indicates that the equipment or cabling complies with the requirements of:

(a) a specified law of a specified foreign country; or

(b) a specified instrument in force under a specified law of a specified foreign country; or

(d) a specified instrument in force under a specified convention, treaty or international agreement.

(5) The instrument may specify requirements that must be met before a label can be applied, including (but not limited to):

(a) a requirement that, before a manufacturer or importer applies the label to the equipment or cabling, the manufacturer or importer must have obtained a written statement from a certification body certifying that the equipment or cabling complies with a specified section 376 standard; and

(b) a requirement that, before a manufacturer or importer applies the label to the equipment or cabling, the equipment or cabling must have been tested by a recognised testing authority for compliance with the standards specified in the instrument; and

(i) conduct quality assurance programs; or

(ii) be satisfied that quality assurance programs have been conducted; or

(iii) have regard to the results of quality assurance programs;

before the manufacturer or importer applies the label to the equipment or cabling; and

(d) a requirement that, before a manufacturer or importer applies the label to the equipment or cabling, the manufacturer or importer must have obtained a written statement from a competent body certifying that reasonable efforts have been made to avoid a contravention of a specified section 376 standard; and

(e) a requirement that, before a manufacturer or importer applies the label to the equipment or cabling, the manufacturer or importer must make a written declaration in relation to the equipment or cabling, being a declaration in a form specified in the instrument.

Note 1: Certification body is defined by section 410.

Note 2: Recognised testing authority is defined by section 409.

Note 3: Competent body is defined by section 409.

(6) The instrument may specify requirements that must be met after a label has been applied to customer equipment or customer cabling, including (but not limited to) a requirement that a manufacturer or importer retain for inspection, for the period specified in the instrument:

(a) records of the quality assurance programs conducted in accordance with the instrument in respect of the equipment or cabling; and

(b) records of any results of any tests conducted in relation to compliance with the standards specified in the instrument; and

409 Recognised testing authorities and competent bodies

(1) The ACMA may, by notice published in the Gazette, determine that a specified person or association is an accreditation body for the purposes of this section. The determination has effect accordingly.

(2) An accreditation body may, by written instrument, determine that a specified person is a recognised testing authority for the purposes of this Division. The determination has effect accordingly.

(3) An accreditation body may, by written instrument, determine that a specified person or association is a competent body for the purposes of this Division. The determination has effect accordingly.

410 Certification bodies

(1) The ACMA may, by notice published in the Gazette, determine that a specified person or association is an approving body for the purposes of this section. The determination has effect accordingly.

(2) An approving body may, by written instrument, determine that a specified person or association is a certification body for the purposes of this Division. The determination has effect accordingly.

411 Connection of customer equipment or customer cabling—breach of section 376 standards

Basic prohibition

(1) A person must not:

(a) connect customer equipment or customer cabling to a telecommunications network or to a facility; or

(b) maintain such a connection;

if:

(c) the manufacturer or importer of the equipment or cabling was required by subsection 407(1) to apply a label to the equipment or cabling; and

(d) either:

(i) the manufacturer or importer did not comply with the requirement; or

(ii) the manufacturer or importer complied with the requirement, but the label indicated that the equipment or cabling did not meet the requirements of the section 376 standards that were specified in the first‑mentioned requirement.

Offence

(2) A person who contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding 120 penalty units.

Note 1: See also sections 4AA and 4B of the Crimes Act 1914.

Note 2: See also Division 13 of this Part (which deals with the payment of penalties as an alternative to prosecution).

Exception—reasonable excuse for contravention

(2A) Subsection (2) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code).

Exception—connection permit

(3) A person does not contravene subsection (1) in relation to:

(a) connecting customer equipment, or customer cabling, to a telecommunications network, or to a facility; or

(b) maintaining such a connection;

if the connection, or the maintenance of the connection, as the case may be, is in accordance with a connection permit.

Note: Connection permits are issued under section 394.

Exception—compliance with connection rules

(4) A person does not contravene subsection (1) in relation to:

(a) connecting customer equipment, or customer cabling, to a telecommunications network, or to a facility; or

(b) maintaining such a connection;

if:

(d) the connection, or the maintenance of the connection, as the case may be, is in accordance with the connection rules.

Note: The connection rules are dealt with by section 404.

Exception—consent of network manager

(5) A person does not contravene subsection (1) in relation to the connection of customer equipment, or customer cabling, to a telecommunications network, or to a facility, if:

(a) the manager of the network or facility consents in writing to the connection; and

(b) the equipment or cabling has applied to it a label that indicates that the equipment or cabling does not meet the requirements of each of the standards under section 376 that were applicable to it when it was connected.

Note: Manager is defined by section 375.

412 Connection of labelled customer equipment or customer cabling not to be refused

(1) If:

(a) at a particular time, a person proposes to connect customer equipment or customer cabling to a telecommunications network or to a facility; and

(b) the manufacturer or importer of the equipment or cabling was required by subsection 407(1) to apply a label to the equipment or cabling; and

(i) the manufacturer or importer complied with the requirement; and

(ii) the label indicated that the equipment or cabling met the requirements of the section 376 standards that were specified in the first‑mentioned requirement;

the manager of the network or facility must not refuse to give written consent to the connection.

Note: Manager is defined by section 375.

(2) A person who contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding 100 penalty units.

Note: See also sections 4AA and 4B of the Crimes Act 1914.

(2A) Subsection (2) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code).

(3) A manager of a telecommunications network, or of a facility, does not contravene subsection (1) in relation to a refusal to give consent to the connection of customer equipment, or customer cabling, to the network, or to the facility, if:

(a) the manager has reasonable grounds to believe that a label has been applied to the equipment or cabling in contravention of section 414 or 416; or

(b) the manager has reasonable grounds to believe that the connection would, or would be likely to, constitute a threat to the integrity of a telecommunications network or of a facility; or

(c) the manager has reasonable grounds to believe that the connection would, or would be likely to, constitute a threat to the health or safety of persons who:

(i) operate; or

(ii) work on; or

(iii) use services supplied by means of; or

(iv) are otherwise reasonably likely to be affected by the operation of;

a telecommunications network or a facility.

(4) This section does not, by implication, impose an obligation to supply a carriage service to a particular person.

413 Supply of unlabelled customer equipment or unlabelled customer cabling

(1) If a person:

(a) is a manufacturer or importer of customer equipment or customer cabling; and

(b) is required under section 407 to apply to it a label in a particular form;

the person must not supply the equipment or cabling unless a label in that form has been applied to the equipment or cabling.

(2) A person who contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding 100 penalty units.

Note 1: See also sections 4AA and 4B of the Crimes Act 1914.

Note 2: See also Division 13 of this Part (which deals with the payment of penalties as an alternative to prosecution).

(2A) Subsection (2) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code).

(3) In this section:

supply includes supply (including re‑supply) by way of sale, exchange, lease, hire or hire‑purchase.

414 Applying labels before satisfying requirements under subsection 408(5)

(1) If a person is subject to requirements that:

(a) have been specified under subsection 408(5); and

(b) must be met before applying a particular label to customer equipment or customer cabling;

the person must not apply:

(d) a label that purports to be such a label;

before the person satisfies those requirements.

(2) A person who contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding 100 penalty units.

Note 1: See also sections 4AA and 4B of the Crimes Act 1914.

Note 2: See also Division 13 of this Part (which deals with the payment of penalties as an alternative to prosecution).

(3) Subsection (2) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

415 Failure to retain records etc.

(1) If the ACMA makes an instrument under subsection 407(1) that specifies requirements to be met after a label has been applied, a manufacturer or importer must not contravene those requirements.

(2) A person is guilty of an offence if:

(a) the person is a manufacturer or importer of customer equipment or customer cabling; and

(b) the person engages in conduct; and

Penalty: 100 penalty units.

Note 1: See also sections 4AA and 4B of the Crimes Act 1914.

Note 2: See also Division 13 of this Part (which deals with the payment of penalties as an alternative to prosecution).

(3) Subsection (1) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

(4) In this section:

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

416 Application of labels containing false statements about compliance with standards

(1) A person must not apply a label to customer equipment or customer cabling if:

(a) the label contains a statement to the effect that the equipment or cabling complies with a section 376 standard; and

(b) the statement is false or misleading.

(2) A person who contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding 120 penalty units.

Note 1: See also sections 4AA and 4B of the Crimes Act 1914.

Note 2: See also Division 13 of this Part (which deals with the payment of penalties as an alternative to prosecution).

Division 8—Protected symbols

417 Protected symbols

(1) A person must not:

(a) use in relation to a business, trade, profession or occupation; or

(b) apply, as a trade mark or otherwise, to goods imported, manufactured, produced, sold, offered for sale or let on hire; or

(i) goods or services; or

(ii) the promotion, by any means, of the supply or use of goods or services;

a protected symbol, or a symbol so closely resembling a protected symbol as to be likely to be mistaken for it.

(2) A person who contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding 30 penalty units.

Note 1: See also sections 4AA and 4B of the Crimes Act 1914.

Note 2: See also Division 13 of this Part (which deals with the payment of penalties as an alternative to prosecution).

(3) Nothing in subsection (1) limits anything else in that subsection.

(4) Nothing in subsection (1), so far as it applies in relation to a protected symbol, affects rights conferred by law on a person in relation to:

(a) a trade mark that is registered under the Trade Marks Act 1995; or

(b) a design that is registered under the Designs Act 2003;

and was registered under the Trade Marks Act 1995 or the Designs Act 1906 immediately before 16 August 1996 in relation to the symbol.

(5) Nothing in this section, so far as it applies to a protected symbol, affects the use, or rights conferred by law relating to the use, of the symbol by a person in a particular manner if, immediately before 16 August 1996, the person:

(a) was using the symbol in good faith in that manner; or

(b) would have been entitled to prevent another person from passing off, by means of the use of the symbol or a similar symbol, goods or services as the goods or services of the first‑mentioned person.

(6) This section does not apply to a person who uses or applies a protected symbol for the purposes of labelling customer equipment or customer cabling in accordance with section 407 of this Act or labelling a device in accordance with section 182 of the Radiocommunications Act 1992. For this purpose, device has the same meaning as in the Radiocommunications Act 1992.

(7) This section does not apply to a person who uses or applies a protected symbol for a purpose of a kind specified in a written determination made by the ACMA.

(8) A reference in this section to a protected symbol is a reference to:

(a) the symbol known in the telecommunications industry as the C‑Tick mark:

(i) the design of which is set out in a written determination made by the ACMA; and

(ii) a purpose of which, after the commencement of this section, is to indicate compliance by customer equipment or customer cabling with applicable section 376 standards; or

(b) a symbol:

(i) the design of which is set out in a written determination made by the ACMA; and

(ii) a purpose of which, after the commencement of this section, is to indicate compliance by customer equipment or customer cabling with applicable section 376 standards; or

(i) the design of which is set out in a written determination made by the ACMA; and

(ii) a purpose of which, after the commencement of this section, is to indicate non‑compliance by customer equipment or customer cabling with applicable section 376 standards.

(9) For the purposes of this Part, if:

(a) a label is applied to customer equipment or customer cabling; and

(b) the label embodies a symbol referred to in paragraph (8)(a) or (b);

the label is taken to indicate that the equipment or cabling meets the requirements of each applicable section 376 standard.

(10) For the purposes of this Part, if:

(a) a label is applied to customer equipment or customer cabling; and

(b) the label embodies a symbol referred to in paragraph (8)(c);

the label is taken to indicate that the equipment or cabling does not meet the requirements of each applicable section 376 standard.

(11) For the purposes of this section, a section 376 standard is taken to be applicable in relation to customer equipment or customer cabling if, and only if, the standard was specified in the section 407 requirement that dealt with the manufacture or importation of the equipment or cabling.

(12) A determination made by the ACMA under subsection (7) or (8) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

(13) In addition to its effect apart from this subsection, this section also has the effect it would have if a reference in subsection (1) to a person were, by express provision, confined to a corporation to which paragraph 51(xx) of the Constitution applies.

(14) In addition to its effect apart from this subsection, this section also has the effect it would have if each reference in subsection (1) to use, or to application, were a reference to use or application, as the case may be, in the course of, or in relation to:

(a) trade or commerce between Australia and places outside Australia; or

(b) trade or commerce among the States; or

(d) the supply of goods or services to the Commonwealth, to a Territory or to an authority or instrumentality of the Commonwealth or of a Territory; or

(e) the defence of Australia; or

(f) the operation of lighthouses, lightships, beacons or buoys; or

(g) astronomical or meteorological observations; or

(h) an activity of a corporation to which paragraph 51(xx) of the Constitution applies; or

(i) banking, other than State banking; or

(j) insurance, other than State insurance; or

(k) weighing or measuring.

Division 9—Cabling providers

418 Cabling work

A reference in this Division to cabling work is a reference to:

(a) the installation of customer cabling for connection to a telecommunications network or to a facility; or

(b) the connection of customer cabling to a telecommunications network or to a facility; or

419 Types of cabling work

(1) The ACMA may, by notice in the Gazette, declare that a specified kind of cabling work is a type of cabling work for the purposes of this Division.

(2) The declaration has effect accordingly.

(3) For the purposes of this Division, the type of cabling work is to be ascertained solely by reference to the declaration.

(4) A declaration under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

420 Prohibition of unauthorised cabling work

(1) A person must not perform a particular type of cabling work unless:

(a) the person is subject to the cabling provider rules; or

(b) the person performs the work under the supervision of another person who is subject to the cabling provider rules; or

(d) the person performs the work under the supervision of the holder of a cabling licence that authorises the performance of that type of cabling work.

(2) A person who contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding 120 penalty units.

Note 1: See also sections 4AA and 4B of the Crimes Act 1914.

Note 2: See also Division 13 of this Part (which deals with the payment of penalties as an alternative to prosecution).

421 Cabling provider rules

(1) The ACMA may, by written instrument, make rules (cabling provider rules) that:

(a) are expressed to apply to specified persons; and

(b) relate to:

(i) the performance of cabling work; or

(ii) the supervision of the performance of cabling work;

or both.

Note: A person may be specified by name, by inclusion in a specified class or in any other way.

(2) A person specified under paragraph (1)(a) is said to be subject to the cabling provider rules.

(3) A person who is subject to the cabling provider rules must comply with the cabling provider rules.

(4) A person who contravenes subsection (3) is guilty of an offence punishable on conviction by a fine not exceeding 100 penalty units.

Note 1: See also sections 4AA and 4B of the Crimes Act 1914.

Note 2: See also Division 13 of this Part (which deals with the payment of penalties as an alternative to prosecution).

(5) The cabling provider rules may make provision for or in relation to a particular matter by empowering the ACMA to make decisions of an administrative character.

(6) An instrument under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

422 Procedures for making cabling provider rules

(1) Before making cabling provider rules under section 421, the ACMA must, so far as is practicable, try to ensure that:

(a) interested persons have had an adequate opportunity to make representations about the proposed rules (either directly, or indirectly by means of a report under paragraph (2)(g)); and

(b) due consideration has been given to any representation so made.

(2) The ACMA may make an arrangement with any of the following bodies or associations:

(a) Standards Australia International Limited;

(b) a body or association approved in writing by Standards Australia International Limited for the purposes of this subsection;

under which the body or association:

(d) prepares a draft of the cabling provider rules; and

(e) publishes the draft rules; and

(f) undertakes a process of public consultation on the draft rules; and

(g) reports to the ACMA on the results of that process of public consultation.

(3) A copy of an approval under paragraph (2)(b) is to be published in the Gazette.

(4) A copy of a determination under paragraph (2)(c) is to be published in the Gazette.

423 Application for cabling licence

An individual may apply to the ACMA for a cabling licence that authorises the performance of a particular type of cabling work.

424 Form of application

(1) An application must:

(a) be in writing; and

(b) describe the knowledge and experience of the applicant to perform cabling work; and

(2) The approved form of application may provide for verification by statutory declaration of statements in applications.

425 Application to be accompanied by charge

An application must be accompanied by the charge (if any) fixed by a determination under section 60 of the Australian Communications and Media Authority Act 2005.

426 Further information

(1) The ACMA may, within 7 days after an application is made, request the applicant to give the ACMA further information about the application.

(2) The ACMA may refuse to consider the application until the applicant gives the ACMA the information.

427 Grant of cabling licence

(1) After considering an application, the ACMA may grant a cabling licence in accordance with the application.

(2) The ACMA must not grant a cabling licence authorising the performance of a particular type of cabling work unless it is satisfied that:

(a) the applicant has the necessary knowledge and experience to perform cabling work of that type; and

(b) cabling work of that type performed in accordance with the conditions included in the licence would comply with standards in force under section 376; and

428 Time limit on licence decision

If the ACMA neither grants, nor refuses to grant, a cabling licence before the end of whichever of the following periods is applicable:

(a) if the ACMA did not give a request under section 426 in relation to the licence application—the period of 30 days after the day on which the ACMA received the application;

(b) if:

(i) the ACMA gave a request under section 426 in relation to the licence application; and

(ii) the request was complied with;

the period of 30 days after the day on which the request was complied with;

(i) the ACMA gave a request under section 426 in relation to the licence application; and

(ii) the request was not complied with;

the period of 30 days after the end of the period specified in the request;

the ACMA is taken, at the end of that 30‑day period, to have refused to grant the licence under section 427.

429 Notification of refusal of application

If the ACMA decides to refuse to grant a cabling licence, the ACMA must give written notice of the decision to the applicant.

430 Cabling licence has effect subject to this Act

(1) A cabling licence has effect subject to this Act.

(2) In this section:

this Act includes the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act.

431 Duration of cabling licence

A cabling licence comes into force when it is issued and remains in force:

(a) if the licence specifies a day of expiration—until the end of that day; or

(b) otherwise—indefinitely.

432 Conditions of cabling licence

(1) A cabling licence is subject to such conditions as are specified in a written determination made by the ACMA for the purposes of this subsection.

(2) A cabling licence is subject to such conditions as are specified in the licence.

(3) The ACMA may, by written notice given to the holder of a cabling licence:

(a) impose one or more further conditions to which the licence is subject; or

(b) revoke or vary any condition:

(i) imposed under paragraph (a); or

(ii) specified in the licence.

(4) The following are examples of conditions to which a cabling licence could be subject:

(a) conditions relating to the types of premises in or on which the holder of the licence may perform cabling work;

(b) conditions requiring customer cabling to be inspected by persons authorised in writing by the ACMA for the purposes of this paragraph.

(5) A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

433 Procedures for changing licence conditions

(1) The ACMA’s powers under subsection 432(3) may be exercised:

(a) on the ACMA’s own initiative; or

(b) on application made to the ACMA by the holder of the licence.

(2) An application under paragraph (1)(b) must:

(a) be in writing; and

(b) be in accordance with the form approved in writing by the ACMA.

(3) The approved form of application may provide for verification by statutory declaration of statements in applications.

(4) If the ACMA refuses an application under paragraph (1)(b), the ACMA must give written notice of the refusal to the applicant.

(5) If the ACMA neither grants, nor refuses to grant, an application under paragraph (1)(b) before the end of 30 days after receiving the application, the ACMA is taken, at the end of that period, to have refused the application.

434 Offence in relation to contravening condition

(1) A person is guilty of an offence if:

(a) the person is the holder of a cabling licence that authorises the performance of a particular type of cabling work; and

(b) the person performs cabling work of that type; and

Penalty: 100 penalty units.

Note 1: See also sections 4AA and 4B of the Crimes Act 1914.

Note 2: See also Division 13 of this Part (which deals with the payment of penalties as an alternative to prosecution).

(2) A person is guilty of an offence if:

(a) the person is the holder of a cabling licence that authorises the performance of a particular type of cabling work; and

(b) the person engages in conduct; and

(c) the result of the person’s conduct is a failure to take all reasonable steps to ensure that cabling work of that type performed under the person’s supervision does not contravene the conditions of the licence.

Penalty: 100 penalty units.

Note 1: See also sections 4AA and 4B of the Crimes Act 1914.

Note 2: See also Division 13 of this Part (which deals with the payment of penalties as an alternative to prosecution).

(3) In this section:

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

435 Formal warnings—breach of condition

The ACMA may issue a formal warning if the holder of a cabling licence contravenes a condition to which the licence is subject.

436 Surrender of cabling licence

(1) The holder of a cabling licence may, at any time, surrender the licence by:

(a) returning it to the ACMA; and

(b) giving the ACMA written notice that it is surrendered.

(2) The surrender of a cabling licence takes effect on the day on which the notice is given to the ACMA.

437 Suspension of cabling licence

(1) The ACMA may, by written notice given to the holder of a cabling licence, suspend the cabling licence for a period of not longer than 28 days.

(2) In deciding whether to suspend the cabling licence, the ACMA must have regard to:

(a) any matter to which the ACMA was required, under section 427, to have regard in deciding whether to grant a cabling licence; and

(b) whether or not the holder of the cabling licence has been convicted of an offence against this Division.

(3) Subsection (2) does not, by implication, limit the matters to which the ACMA may have regard.

(4) During the period of suspension, section 420 has effect as if the licence did not exist.

438 Cancellation of cabling licence

(1) The ACMA may, by written notice given to the holder of a cabling licence, cancel the cabling licence.

(2) In deciding whether to cancel the cabling licence, the ACMA must have regard to:

(a) any matter to which the ACMA was required, under section 427, to have regard in deciding whether to grant a cabling licence; and

(b) whether or not the holder of the cabling licence has been convicted of an offence against this Division.

(3) Subsection (2) does not, by implication, limit the matters to which the ACMA may have regard.

439 ACMA may limit application of Division in relation to customer cabling

(1) The ACMA may, by written instrument, declare that this Division, or specified provisions of it, do not apply in relation to specified kinds of customer cabling.

(2) An instrument under subsection (1) may specify a kind of customer cabling:

(a) by reference to the technical characteristics of the cabling; or

(b) by reference to the functions of the cabling; or

(d) by reference to the location of the cabling.

(3) Subsection (2) does not, by implication, limit subsection (1).

(4) This Division has effect in accordance with an instrument in force under subsection (1).

(5) An instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

440 Ministerial directions

(1) The Minister may give the ACMA written directions about how it is to perform its functions or exercise its powers under this Division.

(2) A direction under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

(3) A direction under subsection (1) must not concern the way in which the ACMA is to deal with a particular application for a cabling licence.

(4) The Minister must not give the ACMA a direction under section 14 of the Australian Communications and Media Authority Act 2005 about how the ACMA is to perform its functions or exercise its powers under this Division.

441 Delegation

(1) The ACMA may, by writing, delegate to a person any or all of its functions and powers under this Division.

(1A) If, under section 50 of the Australian Communications and Media Authority Act 2005, the ACMA has delegated a function or power referred to in subsection (1) to a Division of the ACMA, the following provisions have effect:

(a) the Division may delegate the function or power to a person;

(b) subsections 52(2), (3), (4), (5) and (6) of the Australian Communications and Media Authority Act 2005 have effect as if the delegation by the Division were a delegation under section 52 of that Act.

(2) Subsections (1) and (1A) do not apply to the following powers:

(a) the power to refuse an application for a cabling licence;

(b) the power conferred by subsection 432(3);

(d) the power to make a declaration under section 439.

(3) The delegate is, in the exercise of the delegated function or power, subject to the written directions of:

(a) the ACMA, if the delegation to the delegate was under subsection (1); or

(b) the Division that delegated the power, if the delegation to the delegate was under subsection (1A).

(4) The powers conferred on the ACMA by subsection (1), and on a Division of the ACMA by subsection (1A), are in addition to the powers conferred by sections 50, 51 and 52 of the Australian Communications and Media Authority Act 2005.

442 Register of cabling licences

(1) The ACMA is to maintain a Register in which it includes:

(a) all cabling licences currently in force; and

(b) all conditions of such licences.

(2) The Register may be maintained by electronic means.

(3) A person may, on payment of the charge (if any) fixed by a determination under section 60 of the Australian Communications and Media Authority Act 2005:

(a) inspect the Register; and

(b) make a copy of, or take extracts from, the Register.

(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.

Division 10—Remedies for unauthorised connections to telecommunications networks etc.

443 Civil action for unauthorised connections to telecommunications networks etc.

(1) If:

(a) a person:

(i) connects customer equipment, or customer cabling, to a telecommunications network, or to a facility, contrary to section 411; or

(ii) has under his or her control customer equipment, or customer cabling, connected to a telecommunications network, or to a facility, where the equipment or cabling was so connected by another person contrary to section 411; and

(b) as a result of:

(i) the connection of the customer equipment or customer cabling to the network or facility; or

(ii) the customer equipment or customer cabling being used while it was so connected;

either:

(iii) damage is caused to the network or the facility; or

(iv) the manager of the network or facility suffers a loss or incurs a liability;

the manager of the network or facility may apply to the Federal Court for remedial relief.

(2) The relief that may be granted includes an injunction and, at the option of the manager, either damages or an account of profits.

(3) If an application is made to the Federal Court for an injunction under this section, the court may grant an interim injunction pending determination of the application.

(4) The power of the court under this section to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised:

(a) if the court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; or

(b) if it appears to the court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the person engages in conduct of that kind.

(5) The power of the court under this section to grant an injunction requiring a person to do an act or thing may be exercised:

(a) if the court is satisfied that the person has refused or failed to do that act or thing—whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; or

(b) if it appears to the court that, if an injunction is not granted, it is likely that the person will refuse or fail to do that act or thing—whether or not the person has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any person if the person refuses or fails to do that act or thing.

(6) An application under this section must be made within 3 years after the damage was caused, the loss was suffered or the liability was incurred, as the case requires.

444 Remedy for contravention of labelling requirements

(1) If:

(a) a person (the first person) contravenes section 413, 414 or 415 in relation to particular customer equipment or particular customer cabling; and

(b) a person (who may be the first person) connects the equipment or cabling to a telecommunications network or to a facility; and

(i) the connection of the equipment or cabling to the network or facility; or

(ii) the equipment or cabling being used while it was so connected;

either:

(iii) damage is caused to the network or the facility; or

(iv) the manager of the network or facility suffers a loss;

the manager of the network or facility may apply to the Federal Court for the recovery from the first person of the amount of the loss or damage.

(2) An application under this section must be made within 3 years after the damage was caused or the loss was suffered, as the case requires.

445 Remedies for connection of unlabelled customer equipment or unlabelled customer cabling

(1) This section applies if:

(a) a person:

(i) connects customer equipment, or customer cabling, to a telecommunications network or to a facility; or

(ii) has under his or her control customer equipment, or customer cabling, connected to a telecommunications network or to a facility; and

(b) the manufacturer or importer of the equipment or cabling was required by subsection 407(1) to apply a label to the equipment or cabling; and

(i) the manufacturer or importer did not comply with the requirement; or

(2) If, as a result of:

(a) the connection of the equipment or cabling to the network or facility; or

(b) the equipment or cabling being used while it was so connected;

either:

(d) the manager of the network or facility suffers a loss;

the manager of the network or facility may apply to the Federal Court for remedial relief.

(3) The relief that may be granted includes an injunction and, at the option of the manager, either damages or an account of profits.

(4) The manager of the network or facility may disconnect the equipment or cabling from the network or facility.

(5) If it is necessary for other customer equipment or other customer cabling to be disconnected from the network or facility in order to achieve the disconnection mentioned in subsection (4), the manager may disconnect that other equipment or cabling.

(6) If an application is made to the Federal Court for an injunction under this section, the court may grant an interim injunction pending determination of the application.

(7) The power of the court under this section to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised:

(8) The power of the court under this section to grant an injunction requiring a person to do an act or thing may be exercised:

(9) An application under this section must be made within 3 years after the damage was caused or the loss was suffered, as the case requires.

446 Disconnection of dangerous customer equipment or customer cabling

(1) If:

(a) a person (the first person):

(i) connects customer equipment, or customer cabling, to a telecommunications network or to a facility; or

(ii) has under his or her control customer equipment, or customer cabling, connected to a telecommunications network or to a facility; and

(b) the manager of the network or facility has an honest belief that the equipment or cabling is, or is likely to be, a threat to the health or safety of persons who:

(i) operate; or

(ii) work on; or

(iii) use services supplied by means of; or

(iv) are otherwise reasonably likely to be affected by the operation of;

a telecommunications network or a facility;

the manager of the network or facility may:

(d) if it is necessary to disconnect other customer equipment or other customer cabling for the purposes of achieving the disconnection referred to in paragraph (c)—disconnect that other equipment or cabling.

(2) If:

(a) equipment or cabling is disconnected, or purportedly disconnected, under subsection (1); and

(b) the ACMA is satisfied that there were no reasonable grounds for the belief mentioned in paragraph (1)(b);

the ACMA may, by written notice given to the manager of the network or facility, direct the manager to reconnect the equipment or cabling.

(3) A person must comply with a direction under subsection (2).

(4) If:

(a) equipment or cabling is disconnected, or purportedly disconnected, under subsection (1); and

(b) the manager of the network or facility had no reasonable grounds for the belief mentioned in paragraph (1)(b); and

the first person may apply to the Federal Court for the recovery from the manager of the amount of the loss or damage.

(5) An application under subsection (4) must be made within 3 years after the damage was caused or the loss was suffered, as the case requires.

447 Disconnection of customer equipment or customer cabling—protection of the integrity of networks and facilities

(1) If:

(a) a person (the first person):

(i) connects customer equipment, or customer cabling, to a telecommunications network or to a facility; or

(ii) has under his or her control customer equipment, or customer cabling, connected to a telecommunications network or to a facility; and

(b) the manager of the network or facility has an honest belief that the equipment or cabling is, or is likely to be, a threat to the integrity of a telecommunications network or a facility;

the manager of the network or facility may:

(2) If:

(a) equipment or cabling is disconnected, or purportedly disconnected, under subsection (1); and

(b) the ACMA is satisfied that there were no reasonable grounds for the belief mentioned in paragraph (1)(b);

the ACMA may, by written notice given to the manager of the network or facility, direct the manager to reconnect the equipment or cabling.

(3) A person must comply with a direction under subsection (2).

(4) If:

(a) equipment or cabling is disconnected, or purportedly disconnected, under subsection (1); and

(b) the manager of the network or facility had no reasonable grounds for the belief mentioned in paragraph (1)(b); and

the first person may apply to the Federal Court for the recovery from the manager of the amount of the loss or damage.

(5) An application under subsection (4) must be made within 3 years after the damage was caused or the loss was suffered, as the case requires.

448 Civil action for dangerous connections to telecommunications networks etc.

(1) If:

(a) a person:

(i) connects customer equipment, or customer cabling, to a telecommunications network or to a facility; or

(ii) has under his or her control customer equipment, or customer cabling, connected to a telecommunications network or to a facility; and

(b) the equipment or cabling is, or is likely to be, a threat to the health or safety of persons who:

(i) operate; or

(ii) work on; or

(iii) use services supplied by means of; or

(iv) are otherwise reasonably likely to be affected by the operation of;

a telecommunications network or a facility; and

(i) the connection of the equipment or cabling to the network or facility; or

(ii) the equipment or cabling being used while it was so connected;

either:

(iii) damage is caused to the network or the facility; or

(iv) the manager of the network or facility suffers a loss;

the manager of the network or facility may apply to the Federal Court for the recovery from the person of the amount of the loss or damage.

(2) An application under subsection (1) must be made within 3 years after the damage was caused or the loss was suffered, as the case requires.

449 Other remedies not affected

This Division does not, by implication, affect other remedies.

Division 11—Prohibited customer equipment and prohibited customer cabling

450 Declaration of prohibited customer equipment or prohibited customer cabling

(1) The ACMA may, by written instrument, declare that operation or supply, or possession for the purpose of operation or supply, of:

(a) specified customer equipment; or

(b) specified customer cabling;

is prohibited for the reasons set out in the instrument.

(2) Those reasons must relate to:

(a) the protection of the integrity of a telecommunications network or of a facility; or

(b) the protection of the health or safety of persons who:

(i) operate; or

(ii) work on; or

(iii) use services supplied by means of; or

(iv) are otherwise reasonably likely to be affected by the operation of;

a telecommunications network or a facility.

(3) A copy of an instrument under subsection (1) must be published in one or more newspapers circulating generally in the capital city of each State.

(4) An instrument under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

(5) In this section:

State includes the Northern Territory and the Australian Capital Territory.

supply includes supply (including re‑supply) by way of sale, exchange, lease, hire or hire‑purchase.

451 Consultation on proposed declaration

(1) Before making an instrument under section 450, the ACMA must, by notice published in the Gazette:

(a) describe the customer equipment or customer cabling concerned; and

(b) specify the reasons why the ACMA proposes to make the instrument; and

(c) invite interested persons to make representations about the proposed declaration within the period specified in the notice.

The period must not be less than 28 days.

(2) If a person makes representations to the ACMA in accordance with the notice, the ACMA must give due consideration to those representations.

(3) This section does not apply if the ACMA is satisfied that making the instrument is a matter of urgency.

452 Operation of prohibited customer equipment or customer cabling

(1) A person must not:

(a) operate or supply customer equipment, or customer cabling, in respect of which a declaration is in force under section 450; or

(b) have in his or her possession customer equipment, or customer cabling, in respect of which such a declaration is in force, if the possession is for the purpose of operating or supplying the equipment or cabling.

(2) A person who contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding 2,000 penalty units.

Note: See also sections 4AA and 4B of the Crimes Act 1914.

(3) In this section:

supply includes supply (including re‑supply) by way of sale, exchange, lease, hire or hire‑purchase.

Division 12—Pre‑commencement labels

453 Pre‑commencement labels

(1) This section applies if:

(a) before the commencement of this section, customer equipment was labelled in accordance with a condition of a kind mentioned in paragraph 258(2)(a) of the Telecommunications Act 1991; and

(b) the label embodied the protected symbol (within the meaning of section 402A of that Act).

(2) This Part has effect as if:

(a) at the time when the equipment was manufactured or imported, the manufacturer or importer had been required by subsection 407(1) to apply the label to the equipment; and

(b) the manufacturer or importer had complied with that requirement by applying the label to the equipment; and

(c) the label had indicated that the equipment met the requirements of each of the section 376 standards that were applicable to the equipment when it was manufactured or imported.

Division 13—Penalties payable instead of prosecution

453A Penalties payable instead of prosecution

(1) The regulations may make provision in relation to enabling a person who is alleged to have committed an offence of a kind referred to in the following table to pay to the Commonwealth, as an alternative to prosecution, a penalty of an amount worked out in accordance with subsection (2).

(2) The amount of penalty payable to the Commonwealth under regulations made for the purposes of subsection (1) in respect of an offence is determined using the following table:

Penalties payable
Item	Alleged offence	Penalty for individual	Penalty for body corporate
1	subsection 399(1)	12 penalty units	60 penalty units
2	subsection 411(2)	12 penalty units	60 penalty units
3	subsection 413(2)	12 penalty units	60 penalty units
4	subsection 414(2)	12 penalty units	60 penalty units
5	subsection 415(2)	12 penalty units	60 penalty units
6	subsection 416(2)	12 penalty units	60 penalty units
7	subsection 417(2)	6 penalty units	30 penalty units
8	subsection 420(2)	12 penalty units	60 penalty units
9	subsection 421(4)	12 penalty units	60 penalty units
10	subsection 434(1) or (2)	12 penalty units	60 penalty units

Part 22—Numbering of carriage services and regulation of electronic addressing

Division 1—Simplified outline

454 Simplified outline

The following is a simplified outline of this Part:

• The ACMA is required to make a plan for:

(a) the numbering of carriage services in Australia; and

(b) the use of numbers in connection with the supply of such services.

• The plan is called the numbering plan.

• Numbers may be allocated to carriage service providers:

(a) in accordance with an allocation system; or

(b) otherwise than in accordance with such a system.

• The numbering plan will specify emergency service numbers.

• The ACMA and the ACCC may give directions to managers of electronic addressing so long as the electronic addressing is of public importance.

Division 2—Numbering of carriage services

Subdivision A—Numbering plan

455 Numbering plan

(1) The ACMA must, by written instrument, make a plan for:

(a) the numbering of carriage services in Australia; and

(b) the use of numbers in connection with the supply of such services.

(2) The plan is called the numbering plan.

(3) The numbering plan must specify the numbers that are for use in connection with the supply of carriage services to the public in Australia.

Note: Specification is the “first tier” concept. It operates at the level of a general specification of numbers.

(4) Different numbers may be specified for use in connection with the supply of different types of carriage services.

(5) The numbering plan may set out rules about:

(a) the allocation of numbers to carriage service providers; and

(b) the transfer of allocated numbers between carriage service providers; and

(d) the portability of allocated numbers (including rules about the maintenance of, and access to, databases that facilitate portability); and

(e) the use of allocated numbers in connection with the supply of carriage services to the public in Australia (including rules about the issue of allocated numbers by carriage service providers to customers for use in connection with the supply of carriage services).

Note 1: Allocation is the “second tier” concept. It operates at the level of particular carriage service providers.

Note 2: Issue is the “third tier” concept. It operates at the level of particular customers of carriage service providers. The issue of an allocated number to a customer does not affect the allocation of the number to the carriage service provider concerned.

(6) Rules made for the purposes of paragraph (5)(a) may authorise the allocation of specified numbers:

(a) in accordance with an allocation system determined under section 463; or

(b) otherwise than in accordance with such a system.

(7) The numbering plan may make provision for, or in relation to, a matter by empowering the ACMA to make decisions of an administrative character.

(8) Subsections (3) to (7) (inclusive) do not, by implication, limit the matters that may be dealt with by the numbering plan.

(9) The renumbering of a number in accordance with the numbering plan does not affect the continuity of:

(a) the allocation of the number; or

(b) the issue of the number.

(10) In making or varying the numbering plan, the ACMA must have regard to:

(a) the obligations imposed on carriage service providers by Part 4 of the Telecommunications (Consumer Protection and Service Standards) Act 1999; and

(b) recognised international standards.

This subsection does not, by implication, limit the matters to which regard may be had.

(11) An instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

(12) Despite subsection (1), the ACMA is not required to make a numbering plan before 1 January 1998.

456 Numbering plan—supply to the public

(1) This section sets out the circumstances in which a carriage service is taken, for the purposes of section 455, to be supplied to the public.

(2) If:

(a) a carriage service is used for the carriage of communications between 2 end‑users; and

(b) each end‑user is outside the immediate circle of the supplier of the service;

the service is supplied to the public.

457 Numbering plan—allocation otherwise than in accordance with an allocation system

(1) The numbering plan must impose the following requirements in relation to an application for the allocation of a number otherwise than in accordance with an allocation system determined under section 463:

(a) a requirement that the application must be accompanied by the charge (if any) fixed by a determination under section 60 of the Australian Communications and Media Authority Act 2005;

(b) a requirement that the applicant must tender the amount of charge (if any) imposed on the allocation by Part 2 of the Telecommunications (Numbering Charges) Act 1997.

(2) If an applicant tenders an amount as mentioned in paragraph (1)(b), but the application is not successful, the amount is to be refunded to the applicant.

458 Numbering plan—rules about portability of allocated numbers

(1) The ACMA must not make a numbering plan that sets out rules about the matter mentioned in paragraph 455(5)(d) (portability of allocated numbers) unless the ACMA is directed to do so by the ACCC under subsection (2).

(2) The ACCC may give written directions to the ACMA in relation to the exercise of the power to determine a numbering plan setting out rules as mentioned in subsection (1).

(3) In exercising the power conferred by subsection (2), the ACCC must ensure that, at all times when the numbering plan is in force, the plan sets out rules about the matter mentioned in paragraph 455(5)(d).

(4) The ACMA must exercise its powers under section 455 in a manner consistent with any directions given by the ACCC under subsection (2).

(5) In exercising the power conferred by subsection (2), the ACCC must have regard to whether portability of particular allocated numbers is required in order to promote the long‑term interests of end‑users of carriage services or of services supplied by means of carriage services.

(6) For the purposes of this section, the question whether a particular thing promotes the long‑term interests of end‑users of carriage services or of services supplied by means of carriage services is to be determined in the same manner as that question is determined for the purposes of Part XIC of the Trade Practices Act 1974.

459 ACMA to administer numbering plan

The ACMA has the general administration of the numbering plan.

460 Consultation about numbering plan

(1) Before making a numbering plan, the ACMA must:

(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 plan; and

(ii) stating that copies of the draft will be available for inspection and purchase by members of the public during normal office hours throughout the period of 90 days after the publication of the notice; and

(iii) specifying the place or places where the copies will be available for inspection and purchase; and

(iv) inviting interested persons to give written comments about the draft to the ACMA within 90 days after the publication of the notice; and

(b) make copies of the draft available for inspection and purchase in accordance with the notice.

(2) If interested persons have given comments about the draft in accordance with the notice, the ACMA must have due regard to those comments in making the plan.

(3) If the ACMA is of the opinion:

(a) that a variation of a numbering plan:

(i) will affect a number issued to a customer of a carriage service provider, being a customer located in a particular State; and

(ii) is not a variation that, under a written declaration made by the ACMA under this subparagraph, is taken to be a minor variation; or

(b) that it is in the public interest that the public in a particular State should be consulted about a variation of a numbering plan;

the ACMA must:

(i) stating that the ACMA has prepared a draft of the variation; and

(ii) stating that copies of the draft will be available for inspection and purchase by members of the public during normal office hours throughout the period of 30 days after the publication of the notice; and

(iii) specifying the place or places where the copies will be available for inspection and purchase; and

(iv) inviting interested persons to give written comments about the draft to the ACMA within 30 days after the publication of the notice; and

(d) make copies of the draft available for inspection and purchase in accordance with the notice.

(4) If interested persons have given comments about the draft in accordance with the notice, the ACMA must have due regard to those comments in varying the plan.

(4A) A declaration under subparagraph (3)(a)(ii) is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

(5) In this section:

State includes the Northern Territory and the Australian Capital Territory.

461 Consultation with ACCC

(1) Before making or varying a numbering plan, the ACMA must consult the ACCC.

(2) The numbering plan may provide that, before exercising a power conferred on the ACMA by the numbering plan, the ACMA must consult the ACCC.

462 Compliance with the numbering plan

(1) A person who is a carrier or a carriage service provider must comply with the numbering plan.

(2) If:

(a) a person (the first person) is a carrier or a carriage service provider; and

(b) the plan requires the first person to provide number portability in relation to customers of a carriage service provider;

the first person must comply with that requirement on such terms and conditions as are:

(i) the first person;

(ii) the carriage service provider; or

(d) failing agreement, determined by an arbitrator appointed by the parties.

If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.

(3) The regulations may make provision for and in relation to the conduct of an arbitration under this section.

(5) Subsection (4) does not, by implication, limit subsection (3).

(6) A determination made in an arbitration under this section must not be inconsistent with:

(a) the numbering plan; or

(b) with a pricing principles determination.

For this purpose, a pricing principles determination is a written determination made by the Minister that sets out principles dealing with price‑related terms and conditions relating to a requirement of a kind referred to in paragraph (2)(b).

(7) A determination made by the Minister under subsection (6) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

(8) In this section:

price‑related terms and conditions means terms and conditions relating to price or a method of ascertaining price.

Subdivision B—Allocation system for numbers

463 Allocation system for numbers

(1) The ACMA may, by written instrument, determine an allocation system for allocating specified numbers to carriage service providers.

(2) Before so determining the system, the ACMA must consult the ACCC.

(3) A system so determined:

(a) may apply generally or in respect of a particular area; and

(b) may require payment of an application fee.

(4) A system so determined may:

(a) impose limits on the quantity of numbers that the ACMA may allocate to:

(i) any one person; or

(ii) a specified person; or

(b) impose limits on the quantity of numbers that the ACMA may, in total, allocate to the members of a specified group of persons.

Note: Persons or groups may be specified by name, by inclusion in a specified class or in any other way.

(5) Subsections (3) and (4) do not, by implication, limit subsection (1).

(6) A system so determined must provide for:

(a) the successful applicant for the allocation of a particular number; and

(b) an amount, to be known as the eligible amount, in relation to the allocation of that number;

to be determined by reference to the results of:

(d) a public auction; or

(e) another process;

carried out or conducted as provided by the system.

(7) The ACMA may enter into an arrangement with a person about the collection, on behalf of the ACMA, of fees of a kind referred to in subsection (3).

464 Consultation about an allocation system

(1) Before determining or varying an allocation system under section 463, the ACMA must:

(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 plan or variation; and

(iii) specifying the place or places where the copies will be available for inspection and purchase; and

(iv) inviting interested persons to give written comments about the draft to the ACMA within 30 days after the publication of the notice; and

(b) make copies of the draft available for inspection and purchase in accordance with the notice.

(2) If interested persons have given comments about the draft in accordance with the notice, the ACMA must have due regard to those comments in determining or varying the system, as the case may be.

(3) Subsection (1) does not apply to a variation if the variation is of a minor nature.

(4) In this section:

State includes the Northern Territory and the Australian Capital Territory.

Subdivision C—Miscellaneous

465 Register of allocated numbers

(1) For the purposes of this section, the designated authority is:

(a) the ACMA; or

(b) if the ACMA enters into an arrangement with another person under which the other person agrees to perform the functions conferred on the designated authority by this section—that other person.

Note: An arrangement under paragraph (b) may provide for the payment of amounts by the ACMA to the other person.

(2) The designated authority is to maintain a Register in which the designated authority includes:

(a) particulars of numbers that have been allocated to carriage service providers under the authority of the numbering plan; and

(b) in the case of a number that has been allocated in accordance with an allocation system determined under section 463:

(i) the name of the successful applicant for the allocation; and

(ii) the eligible amount in relation to the allocation of the number; and

(c) in the case of numbers that have been allocated otherwise than in accordance with such a system—the names of the persons to whom the numbers were allocated.

(3) The designated authority may include in the Register particulars relating to numbers that are taken, for the purposes of Part 3 of the Telecommunications (Numbering Charges) Act 1997, to be held by carriage service providers. Those particulars are to include the names of the carriage service providers concerned.

(4) The Register may be maintained by electronic means.

(5) If the ACMA is the designated authority, a person may, on payment of the charge (if any) fixed by a determination under section 60 of the Australian Communications and Media Authority Act 2005:

(a) inspect the Register; and

(b) make a copy of, or take extracts from, the Register.

(6) If the ACMA is not the designated authority, a person may, on payment to the designated authority of the fee (if any) specified in the regulations:

(a) inspect the Register; and

(b) make a copy of, or take extracts from, the Register.

(7) For the purposes of this section, if the Register is maintained by electronic means, a person is taken to have made a copy of, or taken an extract from, the Register if the designated authority gives the person a printout of, or of the relevant parts of, the Register.

(8) If a person requests that a copy be provided in an electronic form, the designated authority may provide the relevant information:

(a) on a data processing device; or

(b) by way of electronic transmission.

466 Emergency service numbers

(1) The object of this section is to identify numbers for the purpose of calling an emergency call service in connection with emergencies that are likely to require the provision of assistance by any or all of the following services:

(a) a police force or service;

(b) a fire service;

(d) a service specified in the numbering plan for the purposes of this paragraph.

(2) For the purposes of this Act, an emergency service number is a number specified in the numbering plan for the purposes of this subsection.

(3) The numbering plan may specify different numbers for use in different areas.

(4) The numbering plan may specify different numbers for use in connection with different types of services.

(5) The numbering plan may set out rules about the use of emergency service numbers.

(6) In making the numbering plan, the ACMA must have regard to the objective that, as far as practicable, there should be no more than one emergency service number for use throughout Australia.

(7) Subsection (6) does not, by implication, limit section 455.

467 Delegation

(1) The ACMA may, by writing, delegate any or all of the powers conferred on the ACMA by the numbering plan to a body corporate.

(1A) If, under section 50 of the Australian Communications and Media Authority Act 2005, the ACMA has delegated a power referred to in subsection (1) to a Division of the ACMA, the following provisions have effect:

(a) the Division may delegate the power to a body corporate;

(2) The delegate is, in the exercise of a delegated power, subject to the written directions of:

(a) the ACMA, if the delegation to the delegate was under subsection (1); or

(b) the Division that delegated the power, if the delegation to the delegate was under subsection (1A).

(3) Before giving a direction under subsection (2), the ACMA or the Division (as the case requires) must consult the ACCC.

468 Collection of numbering charges

Definitions

(1) In this section:

allocation charge means a charge imposed by Part 2 of the Telecommunications (Numbering Charges) Act 1997.

annual charge means a charge imposed by Part 3 of the Telecommunications (Numbering Charges) Act 1997.

late payment penalty means an amount that is payable by way of penalty in accordance with a determination under subsection (4).

When allocation charge due and payable

(2) An allocation charge imposed on the allocation of a number is due and payable when the number is allocated.

When annual charge due and payable

(3) An annual charge is due and payable at the time ascertained in accordance with a written determination made by the ACMA.

Late payment penalty

(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.

Payment of charge and late payment penalty

(7) Allocation charge, annual charge and late payment penalty are payable to the ACMA on behalf of the Commonwealth.

Recovery of charge and penalty

(8) Allocation charge, annual charge and late payment penalty may be recovered by the ACMA, on behalf of the Commonwealth, as debts due to the Commonwealth.

Payment to the Commonwealth

(9) Amounts received by way of allocation charge, annual charge or late payment penalty must be paid to the Commonwealth.

Withdrawal of number for non‑payment of annual charge

(10) If any annual charge payable by a person in relation to a number remains unpaid after the time when it became due for payment, the ACMA may, by written notice given to the person, withdraw the number. Such a withdrawal is taken to be in accordance with the numbering plan.

Disallowable instrument

(11) A determination under subsection (3) or (4) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

469 Collection of charges on behalf of the Commonwealth

The ACMA may enter into an arrangement with a person under which the person may, on behalf of the Commonwealth, collect payments of charge imposed by the Telecommunications (Numbering Charges) Act 1997.

470 Cancellation of certain exemptions from charge

471 Commonwealth not liable to charge

(1) The Commonwealth is not liable to pay charge imposed by the Telecommunications (Numbering Charges) Act 1997.

(2) Even though the Commonwealth is not liable to pay charge imposed by Division 1 of Part 2 of the Telecommunications (Numbering Charges) Act 1997, it is the intention of the Parliament that the following should be notionally liable for such a charge:

(a) a Department of State;

(b) a Department of the Parliament;

(c) a branch or part of the Australian Public Service in relation to which a person has, under an Act, the powers of, or exercisable by, the Secretary to a Department of the Australian Public Service;

(d) an authority of the Commonwealth that cannot, by a law of the Commonwealth, be made liable to taxation by the Commonwealth.

(3) The Minister for Finance may give such written directions as are necessary or convenient to be given for carrying out or giving effect to subsection (2) and, in particular, may give directions in relation to the transfer of money within the Public Account.

(4) Directions under subsection (3) have effect, and must be complied with, despite any other law of the Commonwealth.

(5) A reference in this section to the Commonwealth includes a reference to an authority of the Commonwealth that cannot, by a law of the Commonwealth, be made liable to taxation by the Commonwealth.

472 Integrated public number database

(1) The Minister may, by written instrument, determine that a specified person (other than Telstra) is to provide and maintain an integrated public number database.

(2) If a determination is in force under subsection (1) in relation to a person, the person must comply with the determination.

(3) If a determination is in force under subsection (1) in relation to a person, the Minister may, by written notice given to the person, direct the person to do, or refrain from doing, a specified act or thing relating to the provision or maintenance of the integrated public number database.

(4) A direction under subsection (3) may require the database to include specified information. This subsection does not, by implication, limit subsection (3).

(5) A determination under subsection (1) has no effect if Telstra is obliged by a condition of a carrier licence to provide and maintain an integrated public number database.

(6) A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

(7) In this section:

public number means a number specified in the numbering plan as mentioned in subsection 455(3).

473 Letters and symbols taken to be numbers

For the purposes of this Division, a letter or a symbol is taken to be a number.

Division 3—Regulation of electronic addressing

474 Declared manager of electronic addressing

(1) The ACMA may, by notice in the Gazette, determine that, for the purposes of this Division, a specified person or association is a declared manager of electronic addressing in relation to a specified kind of electronic addressing and a specified kind of listed carriage service.

(2) The determination has effect accordingly.

(3) The ACMA must not make a determination under subsection (1) in relation to a particular person or association unless:

(a) the ACMA is directed to do so by the ACCC under subsection (4); or

(b) the ACMA considers that the person or association is not managing that kind of electronic addressing to the ACMA’s satisfaction.

(4) The ACCC may give written directions to the ACMA in relation to the exercise of the power conferred by subsection (1).

(5) The ACMA must exercise its powers under subsection (1) in a manner consistent with directions given by the ACCC under subsection (4).

(6) The ACCC must not give a direction under subsection (4) unless, in the ACCC’s opinion, compliance with the direction is likely to have a bearing on competition or consumer protection.

475 ACMA may give directions to declared manager of electronic addressing

(1) The ACMA may, by written notice given to a declared manager of electronic addressing in relation to a particular kind of electronic addressing and a particular kind of listed carriage service, direct the manager to do, or refrain from doing, a specified act or thing relating to that kind of electronic addressing and that kind of carriage service.

(2) The ACMA must not give a direction under this section unless, in the ACMA’s opinion, the electronic addressing is of public importance.

(3) In determining whether the kind of electronic addressing is of public importance, the ACMA must have regard to the extent to which the addressing is of significant social and/or economic importance.

(4) Subsection (3) does not, by implication, limit the matters to which the ACMA may have regard.

(5) Before giving a direction under this section, the ACMA must consult the ACCC.

(6) A person must comply with a direction under this section.

(7) A person is guilty of an offence if:

(a) the person has been given a direction under this section; and

(b) the person engages in conduct; and

Penalty: 10 penalty units.

(8) A direction under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

(9) In this section:

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

476 ACCC may give directions to declared manager of electronic addressing

(1) The ACCC may, by written notice given to a declared manager of electronic addressing in relation to a particular kind of electronic addressing and a particular kind of listed carriage service, direct the manager to do, or refrain from doing, a specified act or thing relating to that kind of electronic addressing and that kind of carriage service.

(2) The ACCC must not give a direction under this section unless, in the ACCC’s opinion:

(a) the electronic addressing is of public importance; and

(b) compliance with the direction is likely to have a bearing on competition or consumer protection.

(3) In determining whether the kind of electronic addressing is of public importance, the ACCC must have regard to the extent to which the addressing is of significant social and/or economic importance.

(4) Subsection (3) does not, by implication, limit the matters to which the ACCC may have regard.

(5) Before giving a direction under this section, the ACCC must consult the ACMA.

(6) A person must comply with a direction under this section.

(7) A person is guilty of an offence if:

(a) the person has been given a direction under this section; and

(b) the person engages in conduct; and

Penalty: 10 penalty units.

(8) A direction under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

(9) In this section:

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

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

A direction given by the ACMA under section 475 has no effect to the extent to which it is inconsistent with a direction given by the ACCC under section 476.

Part 23—Standard agreements for the supply of carriage services

478 Simplified outline

The following is a simplified outline of this Part:

• The terms and conditions on which certain telecommunications‑related goods and services are supplied are:

(a) as agreed between the supplier and the customer; or

(b) failing agreement, set out in a standard form of agreement formulated for the purposes of this Part.

479 Standard terms and conditions apply unless excluded

(1) This section applies to the supply to an ordinary person by a carriage service provider of:

(a) a standard telephone service; or

(b) a carriage service of a kind specified in the regulations; or

(d) an ancillary service of a kind specified in the regulations.

(2) The terms and conditions on which the goods or services are supplied are:

(a) so far as the provider and the person agree on the terms and conditions on which the goods or services are supplied—the agreed terms and conditions; and

(b) if the provider and the person do not agree on terms and conditions, but terms and conditions are set out in a standard form of agreement that:

(i) is formulated by the provider for the purpose of this section; and

(ii) relates to the goods or services; and

(iii) is in force at the time of the supply;

the terms and conditions so set out, so far as they are applicable to the supply of the goods or services.

(3) Subsection (2) has effect subject to any express provision of this Act or any other Act.

(4) In this section:

ancillary goods means goods for use in connection with a carriage service.

ancillary service means a service for use in connection with a carriage service.

ordinary person means a person other than a carrier or a carriage service provider.

terms and conditions, in relation to the supply of goods or services, includes:

(a) charges for the supply of the goods or services; and

(b) any discounts, allowances, rebates or credits given or allowed in relation to the supply of the goods or services; and

(c) any commissions or similar benefits (whether monetary or otherwise) payable or given in relation to the supply of the goods or services; and

(d) the supply of other goods or services, where the other goods or services are supplied in connection with the first‑mentioned goods or services; and

(e) the making of payments for such other goods or services.

480 Standard form of agreement to be publicly available

(1) This section applies to a standard form of agreement formulated by a carriage service provider for the purposes of section 479.

(2) The provider must ensure that copies of the agreement are made available for inspection and purchase at each of its business offices.

(3) A person may request the provider to give the person a copy of the whole, or of a specified part, of the agreement.

(4) The provider must comply with a request under subsection (3):

(a) if the agreement is relevant to ascertaining the terms and conditions governing the commercial relationship between the provider and the person who made the request—without requiring any payment from the person; or

(b) in any other case—on payment, by the person who made the request, of such reasonable charge (if any) as the provider requires.

480A Other information to be publicly available

(1) For the purposes of this section, if a standard form of agreement formulated by a carriage service provider for the purposes of section 479 sets out terms and conditions that are applicable to the supply of goods or services to a person:

(a) the person is an ordinary customer of the carriage service provider; and

(b) the goods or services are designated goods or services.

(2) The ACMA may make a written determination requiring carriage service providers to:

(a) give ordinary customers specified information relating to the supply of designated goods or services; or

(b) give specified kinds of ordinary customers specified information about the supply of designated goods or services; or

(3) A determination under subsection (2) may specify the manner and form in which information is to be given or published.

(4) A determination under subsection (2) may make provision for customers to be informed (whether by individual notice or general publication) of, or of a summary of, any or all of their rights as customers, including their rights under Part 5 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with the customer service guarantee).

(5) Subsections (3) and (4) do not limit subsection (2).

(6) Before making a determination under subsection (2), the ACMA must consult the Telecommunications Industry Ombudsman.

(7) A carriage service provider must comply with a determination under subsection (2).

(8) The ACMA must ensure that a determination is in force under subsection (2) at all times after the commencement of this section.

(9) A determination under subsection (2) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

481 Standard form of agreement to be given to the ACMA

(1) This section applies to a standard form of agreement formulated by a carriage service provider for the purposes of section 479.

(2) The provider must give a copy of:

(a) the agreement; and

(b) any variation of that agreement;

to the ACMA as soon as practicable after the agreement or variation comes into force.

482 Concurrent operation of State/Territory laws

This Part does not prevent or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Part.

483 Trade Practices Act not affected by this Part

This Part has no effect to the extent (if any) to which it is inconsistent with the Trade Practices Act 1974.

Part 24—Carriers’ powers and immunities

484 Schedule 3

Schedule 3 has effect.

Part 24A—Submarine cables

484A Schedule 3A

Schedule 3A has effect.

Part 25—Public inquiries

Division 1—Simplified outline

485 Simplified outline

The following is a simplified outline of this Part:

• The ACMA and the ACCC may hold public inquiries about certain matters relating to telecommunications.

Division 2—Inquiries by the ACMA

486 When inquiry must be held

(1) The Minister may give the ACMA a written direction to hold a public inquiry under this Division about a specified matter concerning:

(a) carriage services; or

(b) content services; or

(2) The Minister must not give the ACMA a direction under subsection (1) to hold a public inquiry about a matter concerning the content of a content service.

(3) If the Minister gives a direction under subsection (1) about a particular public inquiry, the Minister may direct the ACMA to:

(a) consult with one or more specified persons, bodies or agencies in connection with the conduct of the inquiry; and

(b) have regard to one or more specified matters in connection with the conduct of the inquiry.

(4) The ACMA must comply with a direction under this section.

487 When inquiry may be held

(1) This section applies if the ACMA considers that it is appropriate and practicable to hold a public inquiry under this Division about a matter relating to:

(a) the performance of any of the ACMA’s telecommunications functions; or

(b) the exercise of any of the ACMA’s telecommunications powers.

(2) The ACMA may hold such an inquiry about the matter.

488 Informing the public about an inquiry

(1) If the ACMA holds a public inquiry, it must publish, in whatever ways it thinks appropriate, notice of:

(a) the fact that it is holding the inquiry; and

(b) the period during which the inquiry is to be held; and

(d) the period within which, and the form in which, members of the public may make submissions to the ACMA about that matter; and

(e) the matters that the ACMA would like such submissions to deal with; and

(f) the address or addresses to which submissions may be sent.

(2) The ACMA need not publish at the same time or in the same way notice of all the matters referred to in subsection (1).

489 Discussion paper

(1) After deciding to hold a public inquiry about a matter, the ACMA may cause to be prepared a discussion paper that:

(a) identifies the issues that, in the ACMA’s opinion, are relevant to that matter; and

(b) sets out such background material about, and discussion of, those issues as the ACMA thinks appropriate.

(2) The ACMA must make copies of the discussion paper available at each of the ACMA’s offices. The ACMA may charge a reasonable price for supplying copies of the discussion paper in accordance with this subsection.

(3) The ACMA may otherwise publish the discussion paper, including in electronic form. The ACMA may charge for supplying a publication under this subsection in accordance with a determination under section 60 of the Australian Communications and Media Authority Act 2005.

490 Written submissions and protection from civil actions

(1) The ACMA must provide a reasonable opportunity for any member of the public to make a written submission to the ACMA about the matter to which a public inquiry relates.

(2) For the purposes of subsection (1), the ACMA is taken not to have provided a reasonable opportunity to make submissions unless there was a period of at least 28 days during which the submissions could be made.

(3) Civil proceedings do not lie against a person in respect of loss, damage or injury of any kind suffered by another person because of the making in good faith of a statement, or the giving in good faith of a document or information, to the ACMA in connection with a public inquiry under this Division.

(4) The rule in subsection (3) applies whether or not the statement is made, or the document or information is given, in connection with a written submission or a public hearing.

491 Hearings

(1) The ACMA may hold hearings for the purposes of a public inquiry.

(2) Hearings may be held, for example:

(a) in order to receive submissions about the matter to which the inquiry relates; or

(b) in order to provide a forum for public discussion of issues relevant to that matter.

(3) At a hearing, the ACMA may be constituted by:

(a) a member or members determined in writing by the Chair for the purposes of that hearing; or

(b) if the functions or powers of the ACMA in relation to the hearing have been delegated to a person, or to a Division of the ACMA, under section 50, 51 or 52 of the Australian Communications and Media Authority Act 2005—that person or Division.

(4) The Chair is to preside at all hearings at which he or she is present.

(5) If the Chair is not present at a hearing, the hearing is to be presided over by:

(a) if paragraph (3)(a) applies—the member, specified in an instrument under that paragraph, as the member who is to preside at the hearing; or

(b) if paragraph (3)(b) applies and the delegation is to a person—that person; or

(c) if paragraph (3)(b) applies and the delegation is to a Division of the ACMA—a member of the Division chosen by the Division.

(6) The ACMA may regulate the conduct of proceedings at a hearing as it thinks appropriate.

492 Hearing to be in public except in exceptional cases

(1) This section applies to a hearing conducted under this Division.

(2) The basic rule is that the hearing must take place in public.

(3) However, the hearing, or a part of the hearing, may be conducted in private if the ACMA is satisfied that:

(a) evidence that may be given, or a matter that may arise, during the hearing or a part of the hearing is of a confidential nature; or

(b) hearing a matter, or part of a matter, in public would not be conducive to the due administration of this Act.

(4) If the hearing is to be conducted in public, the ACMA must give reasonable public notice of the conduct of the hearing.

(5) In this section:

this Act includes:

(a) the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act; and

(b) the Spam Act 2003 and regulations under that Act; and

493 Confidential material not to be published

(1) This section applies to a hearing conducted under this Division.

(2) If:

(a) the hearing, or a part of the hearing, takes place in public; and

(b) the ACMA is of the opinion that:

(i) evidence or other material presented to the hearing; or

(ii) material in a written submission lodged with the ACMA;

is of a confidential nature;

the ACMA may order that:

(d) its disclosure be restricted.

(3) A person must not fail to comply with an order under subsection (2).

(4) A person is guilty of an offence if:

(a) the ACMA has made an order under subsection (2); and

(b) the person engages in conduct; and

Penalty: 50 penalty units.

(5) Subsections (3) and (4) do not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).

(6) In this section:

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

494 Direction about private hearings

(1) This section applies to a hearing conducted under this Division.

(2) If the hearing, or a part of the hearing, takes place in private, the ACMA:

(a) must give directions as to the persons who may be present at the hearing or the part of the hearing; and

(b) may give directions restricting the disclosure of evidence or other material presented at the hearing or the part of the hearing.

(3) A person must not fail to comply with a direction under subsection (2).

(4) A person is guilty of an offence if:

(a) the ACMA has given a direction under paragraph (2)(a); and

(b) the person engages in conduct; and

Penalty: 10 penalty units.

(5) A person is guilty of an offence if:

(a) the ACMA has given a direction under paragraph (2)(b); and

(b) the person engages in conduct; and

Penalty: 50 penalty units.

(6) Subsections (3), (4) and (5) do not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).

(7) In this section:

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

495 Reports on inquiries

(1) If the ACMA holds a public inquiry, the ACMA must prepare a report setting out its findings as a result of the inquiry.

(2) If the inquiry was held because of a direction given by the Minister under section 486, the ACMA must give a copy of the report to the Minister.

(3) If the inquiry was held otherwise than because of a direction given by the Minister under section 486, the ACMA must publish the report.

(4) The ACMA is not required to include in a report any material:

(a) that is of a confidential nature; or

(b) the disclosure of which is likely to prejudice the fair trial of a person; or

Division 3—Inquiries by the ACCC

496 When inquiry must be held

(1) The Minister may give the ACCC a written direction to hold a public inquiry under this Division about a specified matter concerning:

(a) carriage services; or

(b) content services; or

(2) The Minister must not give the ACCC a direction under subsection (1) to hold a public inquiry about a matter concerning the content of a content service.

(3) If the Minister gives a direction under subsection (1) about a particular public inquiry, the Minister may direct the ACCC to:

(a) consult with one or more specified persons, bodies or agencies in connection with the conduct of the inquiry; and

(b) have regard to one or more specified matters in connection with the conduct of the inquiry.

(4) The ACCC must comply with a direction under this section.

497 When inquiry may be held

(1) This section applies if the ACCC considers that it is appropriate and practicable to hold a public inquiry under this Division about a matter relating to the ACCC’s telecommunications functions and powers.

(2) The ACCC may hold such an inquiry about the matter.

498 Informing the public about an inquiry

(1) If the ACCC holds a public inquiry, it must publish, in whatever ways it thinks appropriate, notice of:

(a) the fact that it is holding the inquiry; and

(b) the period during which the inquiry is to be held; and

(d) the period within which, and the form in which, members of the public may make submissions to the ACCC about that matter; and

(e) the matters that the ACCC would like such submissions to deal with; and

(f) the address or addresses to which submissions may be sent.

(2) The ACCC need not publish at the same time or in the same way notice of all the matters referred to in subsection (1).

499 Discussion paper

(1) After deciding to hold a public inquiry about a matter, the ACCC may cause to be prepared a discussion paper that:

(a) identifies the issues that, in the ACCC’s opinion, are relevant to that matter; and

(b) sets out such background material about, and discussion of, those issues as the ACCC thinks appropriate.

(2) The ACCC must make copies of the discussion paper available at each of the ACCC offices. The ACCC may charge a reasonable price for supplying copies of the discussion paper in accordance with this subsection.

(3) The ACCC may otherwise publish the discussion paper, including in electronic form. The ACCC may charge a fee for supplying a publication under this subsection.

500 Written submissions and protection from civil actions

(1) The ACCC must provide a reasonable opportunity for any member of the public to make a written submission to the ACCC about the matter to which a public inquiry relates.

(2) For the purposes of subsection (1), the ACCC is taken not to have provided a reasonable opportunity to make submissions unless there was a period of at least 28 days during which the submissions could be made.

(3) Civil proceedings do not lie against a person in respect of loss, damage or injury of any kind suffered by another person because of the making in good faith of a statement, or the giving in good faith of a document or information, to the ACCC in connection with a public inquiry under this Division.

(4) The rule in subsection (3) applies whether or not the statement is made, or the document or information is given, in connection with a written submission or a public hearing.

501 Hearings

(1) The ACCC may hold hearings for the purposes of a public inquiry.

(2) Hearings may be held, for example:

(a) in order to receive submissions about the matter to which the inquiry relates; or

(b) in order to provide a forum for public discussion of issues relevant to that matter.

(3) At a hearing, the ACCC may be constituted by a member or members determined in writing by the Chairperson for the purposes of that hearing.

(4) The Chairperson is to preside at all hearings at which he or she is present.

(5) If the Chairperson is not present at a hearing, the member specified, in an instrument under subsection (3), as the member who is to preside at the hearing is to preside.

(6) The ACCC may regulate the conduct of proceedings at a hearing as it thinks appropriate.

502 Hearing to be in public except in exceptional cases

(1) This section applies to a hearing conducted under this Division.

(2) The basic rule is that the hearing must take place in public.

(3) However, the hearing, or a part of the hearing, may be conducted in private if the ACCC is satisfied that:

(a) evidence that may be given, or a matter that may arise, during the hearing or a part of the hearing is of a confidential nature; or

(b) hearing a matter, or part of a matter, in public would not be conducive to the due administration of this Act.

(4) If the hearing is to be conducted in public, the ACCC must give reasonable public notice of the conduct of the hearing.

(5) In this section:

this Act includes:

(a) the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act; and

(b) the Spam Act 2003 and regulations under that Act; and

503 Confidential material not to be published

(1) This section applies to a hearing conducted under this Division.

(2) If:

(a) the hearing, or a part of the hearing, takes place in public; and

(b) the ACCC is of the opinion that:

(i) evidence or other material presented to the hearing; or

(ii) material in a written submission lodged with the ACCC;

is of a confidential nature;

the ACCC may order that:

(d) its disclosure be restricted.

(3) A person must not fail to comply with an order under subsection (2).

(4) A person is guilty of an offence if:

(a) the ACCC has made an order under subsection (2); and

(b) the person engages in conduct; and

Penalty: 50 penalty units.

(5) Subsections (3) and (4) do not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).

(6) In this section:

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

504 Direction about private hearings

(1) This section applies to a hearing conducted under this Division.

(2) If the hearing, or a part of the hearing, takes place in private, the ACCC:

(a) must give directions as to the persons who may be present at the hearing or the part of the hearing; and

(b) may give directions restricting the disclosure of evidence or other material presented at the hearing or the part of the hearing.

(3) A person must not fail to comply with a direction under subsection (2).

(4) A person is guilty of an offence if:

(a) the ACCC has given a direction under paragraph (2)(a); and

(b) the person engages in conduct; and

Penalty: 10 penalty units.

(5) A person is guilty of an offence if:

(a) the ACCC has given a direction under paragraph (2)(b); and

(b) the person engages in conduct; and

Penalty: 50 penalty units.

(6) Subsections (3), (4) and (5) do not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).

(7) In this section:

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

505 Reports on inquiries

(1) If the ACCC holds a public inquiry, the ACCC must prepare a report setting out its findings as a result of the inquiry.

(2) If the inquiry was held because of a direction given by the Minister under section 496, the ACCC must give a copy of the report to the Minister.

(3) If the inquiry was held otherwise than because of a direction given by the Minister under section 496, the ACCC must publish the report.

(4) The ACCC is not required to include in a report any material:

(a) that is of a confidential nature; or

(b) the disclosure of which is likely to prejudice the fair trial of a person; or

506 ACCC’s other powers not limited

This Division does not, by implication, limit the powers conferred on the ACCC by the Trade Practices Act 1974.

Part 26—Investigations

507 Simplified outline

The following is a simplified outline of this Part:

• The ACMA may investigate certain matters relating to telecommunications.

508 Matters to which this Part applies

This Part applies to the following matters:

(a) a contravention of this Act;

(aa) a contravention of the Telecommunications (Consumer Protection and Service Standards) Act 1999 or regulations under that Act;

(ab) a contravention of the Spam Act 2003 or regulations under that Act;

(ac) a contravention of the Do Not Call Register Act 2006 or regulations under that Act;

(b) a contravention of a code registered under Part 6;

(c) a failure by a carriage service provider to comply with an obligation, or discharge a liability, under Part 5 of the Telecommunications (Consumer Protection and Service Standards) Act 1999;

(d) a matter relating to the supply of, or a refusal or failure to supply, a carriage service;

(e) a matter relating to the connection of, or a refusal or failure to connect, customer equipment;

(f) a matter relating to the performance of the ACMA’s telecommunications functions, or the exercise of the ACMA’s telecommunications powers;

except to the extent (if any) to which the matter relates to the content of a content service.

509 Complaints to the ACMA

(1) A person may complain to the ACMA about a matter.

(2) A complaint must be in writing.

(3) A complaint must specify, as the respondent in respect of the complaint, the person against whom the complaint is made.

(4) If it appears to the ACMA that:

(a) a person wishes to make a complaint; and

(b) the person requires assistance to formulate the complaint or to reduce it to writing;

it is the duty of the ACMA to take reasonable steps to provide appropriate assistance to the person.

(5) If it appears to the ACMA that:

(a) a person (the first person) wishes to make a complaint about:

(i) a contravention of a code registered under Part 6, where the code applies to participants in a section of the telemarketing industry (within the meaning of Part 6) and deals with one or more matters relating to the telemarketing activities (within the meaning of Part 6) of those participants; or

(ii) a contravention of section 128 in relation to an industry standard, where the standard applies to participants in a section of the telemarketing industry (within the meaning of Part 6) and deals with one or more matters relating to the telemarketing activities (within the meaning of Part 6) of those participants; or

(iii) a contravention of the Do Not Call Register Act 2006 or regulations under that Act; and

(b) the complaint relates to a voice call (within the meaning of the Do Not Call Register Act 2006) made, or attempted to be made, to an Australian number; and

(i) the person who made, or attempted to make, the call; or

(ii) the person who caused the call to be made or attempted; and

(d) the first person gives the ACMA such information about the call as the ACMA requires;

it is the duty of the ACMA to take reasonable steps to assist the first person to identify whichever of the following is applicable:

(e) the person who made, or attempted to make, the call;

(f) the person who caused the call to be made or attempted.

(6) Subsection (5) does not limit subsection (4).

510 Investigations by the ACMA

(1) The ACMA may investigate a matter of a kind referred to in section 508 if:

(a) in the case of a matter covered by paragraph 508(a)—the ACMA has reason to suspect that a person may have contravened this Act; or

(aa) in the case of a matter covered by paragraph 508(aa)—the ACMA has reason to suspect that a person may have contravened the Telecommunications (Consumer Protection and Service Standards) Act 1999 or regulations under that Act; or

(ab) in the case of a matter covered by paragraph 508(ab)—the ACMA has reason to suspect that a person may have contravened the Spam Act 2003 or regulations under that Act; or

(ac) in the case of a matter covered by paragraph 508(ac)—the ACMA has reason to suspect that a person may have contravened the Do Not Call Register Act 2006 or regulations under that Act; or

(b) in any case—a complaint is made under section 509; or

(2) The ACMA must not conduct such an investigation if it thinks that the subject matter of the investigation would not be a matter relevant to the performance of any of its functions.

(3) The ACMA must investigate:

(a) a matter of a kind referred to in section 508; or

(b) any other matter concerning carriage services or the telecommunications industry;

if the Minister requests the ACMA so to investigate.

511 Preliminary inquiries

If a complaint has been made to the ACMA under section 509, the ACMA may make inquiries of the respondent for the purposes of determining:

(a) whether the ACMA has power to investigate the matter to which the complaint relates; or

(b) whether the ACMA should, in its discretion, investigate the matter.

512 Conduct of investigations

(1) Before beginning an investigation of a matter to which a complaint relates, the ACMA must inform the respondent that the matter is to be investigated.

(1A) However, the ACMA is not required to inform the respondent that the matter is to be investigated if:

(a) the matter relates to a possible breach of:

(i) the Spam Act 2003 or regulations under that Act; or

(ii) the Do Not Call Register Act 2006 or regulations under that Act; and

(b) the ACMA has reasonable grounds to believe that informing the respondent is likely to result in the concealment, loss or destruction of a thing connected with the breach.

(2) An investigation under this Part is to be conducted as the ACMA thinks fit.

(3) The ACMA may, for the purposes of an investigation, obtain information from such persons, and make such inquiries, as it thinks fit.

(4) It is not necessary for a complainant or a respondent to be given an opportunity to appear before the ACMA in connection with an investigation. This subsection has effect subject to subsection (5).

(5) The ACMA must not, as a result of the investigation, make a finding that is adverse to a complainant or a respondent unless it has given the complainant or respondent an opportunity to make submissions about the matter to which the investigation relates.

(6) However, the ACMA is not required to give the respondent an opportunity to make submissions if:

(a) the matter relates to a possible breach of:

(i) the Spam Act 2003 or regulations under that Act; or

(ii) the Do Not Call Register Act 2006 or regulations under that Act; and

(b) the ACMA has reasonable grounds to believe that giving the respondent an opportunity to make submissions is likely to result in the concealment, loss or destruction of a thing connected with the breach.

513 Complainant and certain other persons to be informed of various matters

(1) If the ACMA decides not to investigate, or not to investigate further, a matter to which a complaint relates, it must, as soon as practicable and in such manner as it thinks fit, inform the complainant and the respondent of the decision and of the reasons for the decision.

(2) However, the ACMA is not required to inform the respondent of the decision and of the reasons for the decision if:

(a) the matter relates to a possible breach of:

(i) the Spam Act 2003 or regulations under that Act; or

(ii) the Do Not Call Register Act 2006 or regulations under that Act; and

(b) the ACMA has reasonable grounds to believe that informing the respondent is likely to result in the concealment, loss or destruction of a thing connected with the breach.

514 Reference of matters to Ombudsman or other responsible person

(1) If, before the ACMA starts, or after it has started, an investigation of a matter to which a complaint relates, the ACMA forms the opinion that:

(a) a complaint relating to that matter has been, or could have been, made by the complainant to:

(i) the Ombudsman under the Ombudsman Act 1976; or

(ii) the Telecommunications Industry Ombudsman; or

(iii) another person or body responsible for handling complaints under a code registered, or standard determined, under Part 6; and

(b) the matter could be more conveniently or effectively dealt with by:

(i) the Ombudsman; or

(ii) the Telecommunications Industry Ombudsman; or

(iii) another person or body responsible for handling complaints under a code registered, or standard determined, under Part 6;

the ACMA may decide not to investigate the matter, or not to investigate the matter further, as the case may be.

(2) If the ACMA decides as mentioned in subsection (1), it must:

(a) transfer the complaint to:

(i) the Ombudsman; or

(ii) the Telecommunications Industry Ombudsman; or

(iii) another person or body responsible for handling complaints under a code registered, or standard determined, under Part 6;

as the case requires; and

(b) give written notice to the complainant stating that the complaint has been so transferred.

(3) If the ACMA decides as mentioned in subsection (1), then:

(a) in a case where subparagraph (1)(a)(i) applies—the ACMA must give the Ombudsman any information or documents that relate to the complaint and that are in the ACMA’s possession or under its control; and

(b) in a case where subparagraph (1)(a)(ii) applies—the ACMA may give the Telecommunications Industry Ombudsman any information or documents that relate to the complaint and that are in the ACMA’s possession or under its control; and

(c) in a case where subparagraph (1)(a)(iii) applies—the ACMA may give the person or body mentioned in that subparagraph:

(i) any information or documents that relate to the complaint and that are in the ACMA’s possession or under its control; or

(ii) copies of, or extracts from, such information or documents.

(4) A complaint transferred under subsection (2) to the Ombudsman is taken to be a complaint made to the Ombudsman under the Ombudsman Act 1976.

515 Reference of matters to the ACCC

(1) If, before the ACMA commences, or after it has commenced, an investigation of a matter to which a complaint relates, the ACMA forms the opinion that the matter could be more conveniently or effectively dealt with by the ACCC, it may decide not to investigate the matter, or not to investigate the matter further, as the case may be.

(2) If the ACMA so decides, it must:

(a) transfer the complaint to the ACCC; and

(b) give written notice to the complainant stating that the complaint has been so transferred; and

(c) give to the ACCC any information or documents that relate to the complaint and that are in the ACMA’s possession or under its control.

(3) The ACCC may hold an investigation into the matter and, if it decides to do so, it must report to the ACMA on:

(a) the conduct of the investigation; and

(b) any findings that it has made as a result of the investigation; and

(d) such other matters relating to, or arising out of, the investigation as the ACCC thinks fit.

(4) If the ACCC decides not to hold an investigation into the matter, it must give to the ACMA a written notice informing the ACMA of its decision and of the reasons for its decision.

515A Reference of matters to Privacy Commissioner

(1) This section applies to a complaint about any of the following matters:

(a) a contravention of a code registered under Part 6, where the code applies to participants in a section of the telemarketing industry (within the meaning of Part 6) and deals with one or more matters relating to the telemarketing activities (within the meaning of Part 6) of those participants;

(b) a contravention of section 128 in relation to an industry standard, where the standard applies to participants in a section of the telemarketing industry (within the meaning of Part 6) and deals with one or more matters relating to the telemarketing activities (within the meaning of Part 6) of those participants;

(2) If, before the ACMA starts, or after it has started, an investigation of a matter to which a complaint relates, the ACMA forms the opinion that:

(a) a complaint relating to that matter has been, or could have been, made by the complainant to the Privacy Commissioner under section 36 of the Privacy Act 1988; and

(b) the matter could be more conveniently or effectively dealt with by the Privacy Commissioner;

the ACMA may decide not to investigate the matter, or not to investigate the matter further, as the case may be.

(3) If the ACMA decides as mentioned in subsection (2), it must:

(a) transfer the complaint to the Privacy Commissioner; and

(b) give written notice to the complainant stating that the complaint has been so transferred; and

(c) give the Privacy Commissioner any information or documents that relate to the complaint and that are in the ACMA’s possession or under its control.

(4) A complaint transferred under subsection (3) to the Privacy Commissioner is taken to be a complaint made to the Privacy Commissioner under section 36 of the Privacy Act 1988.

516 Reports on investigations

(1) After concluding an investigation under subsection 510(1), the ACMA may prepare and give to the Minister a report under this section.

(2) After concluding an investigation under subsection 510(3), the ACMA must prepare and give to the Minister a report under this section.

(3) A report under this section must cover:

(a) the conduct of the investigation concerned; and

(b) any findings that the ACMA has made as a result of the investigation; and

(d) such other matters relating to, or arising out of, the investigation as the ACMA thinks fit or as the Minister directs.

517 Publication of reports

(1) This section applies if the ACMA prepares a report under section 516.

(2) If the report was prepared under subsection 516(1), the ACMA may cause the report to be published.

(3) If the report was prepared under subsection 516(2), the Minister may direct the ACMA to publish the report. The ACMA must comply with the direction. The ACMA must not otherwise cause the report to be published.

(4) The ACMA is not required to publish, or to disclose to a person to whose affairs it relates, a report or a part of a report if the publication or disclosure would:

(a) disclose a matter of a confidential character; or

(b) be likely to prejudice the fair trial of a person.

(5) The ACMA is not required to publish a report or part of a report if the publication would involve the unreasonable disclosure of personal information about any individual (including a deceased individual).

518 Person adversely affected by report to be given opportunity to comment

(1) This section applies if the publication of a matter in a report or a part of a report would, or would be likely to, adversely affect the interests of a person.

(2) The ACMA must not publish the report or the part of the report, as the case may be, until the ACMA has given the person a reasonable period (not exceeding 30 days) to make representations, either orally or in writing, in relation to the matter.

(3) However, the ACMA is not required to give the person a reasonable period to make representations if:

(a) the matter relates to a possible breach of:

(i) the Spam Act 2003 or regulations under that Act; or

(ii) the Do Not Call Register Act 2006 or regulations under that Act; and

(b) the ACMA has reasonable grounds to believe that giving the person a reasonable period to make representations is likely to result in the concealment, loss or destruction of a thing connected with the breach.

519 Protection from civil actions

(1) Civil proceedings do not lie against a person in respect of loss, damage or injury of any kind suffered by another person because of any of the following acts done in good faith:

(a) the making of a complaint under section 509;

(b) the making of a statement to, or the giving of a document or information to, the ACMA in connection with an investigation under section 510;

(d) subject to subsection (2), the making of a statement to, or the giving of a document or information to, the Telecommunications Industry Ombudsman in connection with the consideration by the Telecommunications Industry Ombudsman of a complaint.

(2) Paragraph (1)(d) does not apply to the making of a statement, or the giving of a document or information, by:

(a) a carrier; or

(b) a person who is a service provider and who is participating in the Telecommunications Industry Ombudsman scheme under which the Telecommunications Industry Ombudsman has been appointed.

Part 27—The ACMA’s information‑gathering powers

Division 1—Simplified outline

520 Simplified outline

The following is a simplified outline of this Part:

• The ACMA may obtain information from carriers, service providers and other persons if the information is relevant to:

(a) the performance of any of the ACMA’s telecommunications functions; or

(b) the exercise of any of the ACMA’s telecommunications powers.

• The ACMA may make record‑keeping rules that apply to carriers and carriage service providers.

Division 2—Information‑gathering powers

521 The ACMA may obtain information and documents from carriers and service providers

(1) This section applies to a carrier or a service provider if the ACMA has reason to believe that the carrier or provider:

(a) has information or a document that is relevant to:

(i) the performance of any of the ACMA’s telecommunications functions; or

(ii) the exercise of any of the ACMA’s telecommunications powers; or

(b) is capable of giving evidence which the ACMA has reason to believe is relevant to:

(i) the performance of any of the ACMA’s telecommunications functions; or

(ii) the exercise of any of the ACMA’s telecommunications powers.

(2) The ACMA may, by written notice given to the carrier or provider, require the carrier or provider:

(a) to give to the ACMA, within the period and in the manner and form specified in the notice, any such information; or

(b) to produce to the ACMA, within the period and in the manner specified in the notice, any such documents; or

(c) to make copies of any such documents and to produce to the ACMA, within the period and in the manner specified in the notice, those copies; or

(d) if the carrier or provider is an individual—to appear before the ACMA at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents; or

(e) if the carrier or provider is a body corporate or a public body—to cause a competent officer of the body to appear

before the ACMA at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents; or

(f) if the carrier or provider is a partnership—to cause an individual who is:

(i) a partner in the partnership; or

(ii) an employee of the partnership;

to appear before the ACMA at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents.

(3) A carrier or service provider must comply with a requirement under subsection (2).

(4) A notice given to a carrier under this section must set out the effect of the following provisions:

(a) subsection (3);

(b) section 68;

(d) Part 1 of Schedule 1;

(e) section 525.

(5) A notice given to a service provider under this section must set out the effect of the following provisions:

(a) subsection (3);

(b) section 101;

(d) Part 1 of Schedule 2;

(e) section 525.

522 The ACMA may obtain information and documents from other persons

(1) This section applies to a person if the ACMA has reason to believe that the person:

(a) has information or a document that is relevant to:

(i) the performance of any of the ACMA’s telecommunications functions; or

(ii) the exercise of any of the ACMA’s telecommunications powers; or

(b) is capable of giving evidence which the ACMA has reason to believe is relevant to:

(i) the performance of any of the ACMA’s telecommunications functions; or

(ii) the exercise of any of the ACMA’s telecommunications powers.

(2) The ACMA may, by written notice given to the person, require the person:

(a) to give to the ACMA, within the period and in the manner and form specified in the notice, any such information; or

(b) to produce to the ACMA, within the period and in the manner specified in the notice, any such documents; or

(c) to make copies of any such documents and to produce to the ACMA, within the period and in the manner specified in the notice, those copies; or

(d) if the person is an individual—to appear before the ACMA at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents; or

(e) if the person is a body corporate or a public body—to cause a competent officer of the body to appear before the ACMA at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents; or

(f) if the person is a partnership—to cause an individual who is:

(i) a partner in the partnership; or

(ii) an employee of the partnership;

to appear before the ACMA at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents.

(3) A person must comply with a requirement under subsection (2).

(4) A person is guilty of an offence if:

(a) the ACMA has given a notice to the person under subsection (2); and

(b) the person engages in conduct; and

Penalty: 20 penalty units.

(5) A notice under this section must set out the effect of subsection (4) and section 525.

(6) In this section:

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

523 Copying documents—reasonable compensation

A person is entitled to be paid by the ACMA reasonable compensation for complying with a requirement covered by paragraph 521(2)(c) or 522(2)(c).

524 Self‑incrimination

(1) An individual is not excused from giving information or evidence or producing a document or a copy of a document under this Division on the ground that the information or evidence or the production of the document or copy might tend to incriminate the individual or expose the individual to a penalty.

(2) However:

(a) giving the information or evidence or producing the document or copy; or

(b) any information, document or thing obtained as a direct or indirect consequence of giving the information or evidence or producing the document or copy;

is not admissible in evidence against the individual in:

(d) proceedings under section 570 for recovery of a pecuniary penalty in relation to a contravention of section 521.

525 Giving false or misleading information or evidence

A person must not, under section 521 or 522, give information or evidence that is false or misleading.

Penalty: Imprisonment for 12 months.

Note: See also sections 4AA and 4B of the Crimes Act 1914.

527 Copies of documents

(1) The ACMA may inspect a document or copy produced under this Division and may make and retain copies of, or take and retain extracts from, such a document.

(2) The ACMA may retain possession of a copy of a document produced in accordance with a requirement covered by paragraph 521(2)(c) or 522(2)(c).

528 ACMA may retain documents

(1) The ACMA may take, and retain for as long as is necessary, possession of a document produced under this Division.

(2) The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the ACMA to be a true copy.

(3) The certified copy must be received in all courts and tribunals as evidence as if it were the original.

(4) Until a certified copy is supplied, the ACMA must, at such times and places as the ACMA thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect and make copies of, or take extracts from, the document.

Division 3—Record‑keeping rules

529 ACMA may make record‑keeping rules

(1) The ACMA may, by written instrument, make rules for and in relation to requiring one or more specified carriers or one or more specified carriage service providers to keep and retain records. Rules under this subsection are to be known as record‑keeping rules.

Note: Carriers and carriage service providers may be specified by name, by inclusion in a specified class or in any other way.

(2) The rules may specify the manner and form in which the records are to be kept.

(3) If the rules apply to a particular carrier or carriage service provider, the ACMA must give the carrier or provider a copy of the rules.

(4) The ACMA must not exercise its powers under this section so as to require the keeping or retention of records unless the records contain, or will contain, information that is relevant to:

(a) the performance by the ACMA of a function, or the exercise by the ACMA of a power, conferred on the ACMA by or under Part 5 (which deals with the monitoring of the performance of carriers and carriage service providers); or

(b) the performance by the ACMA of a function, or the exercise by the ACMA of a power, conferred on the ACMA by or under Part 2 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with universal service).

Note: Under section 521, the ACMA may require a carrier or carriage service provider to produce a document (including a record kept in accordance with the record‑keeping rules).

530 Compliance with record‑keeping rules

A carrier or carriage service provider must comply with any record‑keeping rules that are applicable to the carrier or provider.

531 Incorrect records

(1) A person must not, in purported compliance with a requirement imposed by the record‑keeping rules, make a record of any matter or thing in such a way that it does not correctly record the matter or thing.

(2) A person who contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding 100 penalty units.

Note: See also sections 4AA and 4B of the Crimes Act 1914.

Part 27A—Information relating to a broadband telecommunications network

Division 1—Introduction

531A Simplified outline

The following is a simplified outline of this Part:

• A carrier must give information (protected carrier information) to an authorised information officer.

• Protected carrier information must not be disclosed or used except as permitted by this Part.

• Protected carrier information may be disclosed to a Minister or other public official for the purposes of considering Commonwealth action in relation to a proposal that is:

(a) for the creation or development of a telecommunications network that is capable of carrying communications on a broadband basis; and

(b) set out in a submission made by a company in response to a designated request for proposal notice.

• Protected carrier information may be disclosed to an officer of a company that:

(a) is considering making a submission in response to a designated request for proposal notice; or

(b) intends to make such a submission.

531B Definitions

In this Act:

authorised information officer means:

(a) the Secretary of the Department; or

(b) a Deputy Secretary of the Department; or

(i) who is an SES employee in the Department; and

(ii) whose duties relate to the National Broadband Network Task Force; or

(d)a person for whom an appointment as an authorised information officer is in force under section 531M.

entrusted company officer, in relation to a company, means:

(a) a director of the company; or

(b) an employee of the company; or

(d) an individual engaged to provide services to the company; or

(e) an employee or director of a body corporate engaged as a consultant to the company; or

(f) an employee or director of a body corporate engaged to provide services to the company; or

(g) an individual who is a partner in, or employee of, a partnership engaged as a consultant to the company; or

(h) an individual who is a partner in, or employee of, a partnership engaged to provide services to the company; or

(i) an individual who is an officer or employee of a body politic that provides services to the company; or

(j) an individual engaged as a consultant to a body politic that provides services to the company; or

(k) an individual engaged to provide services to a body politic that provides services to the company; or

(l) an employee or director of a body corporate engaged as a consultant to a body politic that provides services to the company; or

(m) an employee or director of a body corporate engaged to provide services to a body politic that provides services to the company; or

(n) an individual who is a partner in, or employee of, a partnership engaged as a consultant to a body politic that provides services to the company; or

(o) an individual who is a partner in, or employee of, a partnership engaged to provide services to a body politic that provides services to the company; or

(p) an employee or director of a body corporate that provides services to the company; or

(q) an individual engaged as a consultant to a body corporate that provides services to the company; or

(r) an individual engaged to provide services to a body corporate that provides services to the company; or

(s) an employee or director of a body corporate engaged as a consultant to a body corporate that provides services to the company; or

(t) an employee or director of a body corporate engaged to provide services to a body corporate that provides services to the company; or

(u) an individual who is a partner in, or employee of, a partnership engaged as a consultant to a body corporate that provides services to the company; or

(v) an individual who is a partner in, or employee of, a partnership engaged to provide services to a body corporate that provides services to the company.

The paragraphs of this definition are to be read independently of each other.

entrusted public official means:

(a) a Minister; or

(b) a Secretary of a Department; or

(d) a member of a committee established under the executive power of the Commonwealth; or

(e) an ACCC official; or

(f) an ACMA official; or

(g) the Director‑General of the Australian Security Intelligence Organisation; or

(h) an individual engaged as a consultant to the Commonwealth; or

(i) an individual engaged to provide services to the Commonwealth; or

(j) an employee or director of a body corporate engaged as a consultant to the Commonwealth; or

(k) an employee or director of a body corporate engaged to provide services to the Commonwealth; or

(l) an individual who is a partner in, or an employee of, a partnership engaged as a consultant to the Commonwealth; or

(m) an individual who is a partner in, or an employee of, a partnership engaged to provide services to the Commonwealth.

The paragraphs of this definition are to be read independently of each other.

matter preparatory to the publication of a designated request for proposal notice includes a matter preparatory to the publication of a variation of a designated request for a proposal notice.

protected carrier information means:

(aa) any information that was given by a carrier to an authorised information officer during the period:

(i) beginning on 27 February 2008; and

(ii) ending 12 months after the commencement of this Part;

where, after the information was given, an authorised information officer gave the carrier a written undertaking, on behalf of the Commonwealth, that:

(iii) after the commencement of this Part, the information would be treated as protected carrier information for the purposes of this Part; and

(iv) the information would not be disclosed by an authorised information officer before the commencement of this Part; or

(a) any information that was given to an authorised information officer under section 531F; or

(b) any information that was disclosed under paragraph 531G(2)(a), (b), (c), (d), (e), (f) or (g), subsection 531H(1) or paragraph 531K(2)(a) or (b).

531C Designated information

(1) The Minister may, by written instrument, determine that:

(a) specified information is designated information for the purposes of the application of this Act to a specified carrier; and

(b) a specified manner is the approved manner in which a specified carrier is to give designated information to an authorised information officer under section 531F; and

(c) a specified form is the approved form in which a specified carrier is to give designated information to an authorised information officer under section 531F; and

(d) a specified number of business days is the approved period within which a specified carrier is to give designated information to an authorised information officer under section 531F.

Note: For specification by class, see subsection 46(3) of the Acts Interpretation Act 1901.

(2) A number specified under paragraph (1)(d) must not be less than 10.

(3) Subsection (1) 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

Consultation

(4) Before making an instrument under subsection (1) that relates to a carrier, the Minister must first:

(a) cause the carrier to be given a written notice that:

(i) sets out a draft version of the instrument; and

(ii) invites the carrier to make submissions to the Minister on the draft within 3 business days after the notice was given; and

(b) consider any submissions that were received within those 3 business days.

Publication of instrument

(5) A copy of an instrument made under subsection (1) is to be published on the Internet.

Business day

(6) For the purposes of this section, business day means a day that is not a Saturday, a Sunday or a public holiday in the Australian Capital Territory.

Disallowable non‑legislative instrument

(7) An instrument made under subsection (1) is a disallowable instrument for the purposes of section 46B of the Acts Interpretation Act 1901.

(8) An instrument made under subsection (1) is not a legislative instrument.

531D Designated request for proposal notice

(1) For the purposes of this Act, a designated request for proposal notice is a notice that:

(a) is published:

(i) on the Internet; and

(ii) in the exercise of the executive power of the Commonwealth; and

(b) invites companies to make submissions to the Commonwealth setting out proposals for the creation or development of a telecommunications network that:

(i) is capable of carrying communications on a broadband basis; and

(ii) meets the requirements specified in the notice; and

(2) For the purposes of subsection (1), it is immaterial whether the notice specifies one or more requirements that a company must meet in order to be eligible to make a submission in response to the invitation set out in the notice.

(3) For the purposes of subsection (1), it is immaterial whether the notice was published before or after the commencement of this section.

531E Action by the Commonwealth

For the purposes of this Part, action by the Commonwealth includes:

(a) expenditure by the Commonwealth; and

(b) the introduction of a Bill into a House of the Parliament.

Division 2—Carriers must give information to an authorised information officer

531F Carriers must give information to an authorised information officer [see Note 1]

Scope

(1) This section applies to a carrier if:

(a) an instrument under subsection 531C(1) comes into force; and

(b) the effect, or any of the effects, of the instrument is that particular information is designated information for the purposes of the application of this Act to the carrier.

Requirement

(2) The carrier must give the information to an authorised information officer, in the approved manner and the approved form, within the approved period after the instrument came into force.

Note 1: See the carrier licence condition in Part 1 of Schedule 1.

Note 2: For approved manner, approved form and approved period, see subsection 531C(1).

Note 3: Information given to an authorised information officer under this section is protected carrier information—see the definition of protected carrier information in section 531B.

Sunset

(3)Subsections (1) and (2) cease to have effect at the end of the period of 12 months beginning on the day on which this subsection commenced.

Division 3—Protection of information

531G Protection of information—entrusted public officials [see Note 1]

(1) If a person has obtained protected carrier information in the person’s capacity as an entrusted public official, the person must not:

(a) disclose the information to another person; or

(b) use the information.

(2) Each of the following is an exception to the prohibition of disclosure in subsection (1):

(a) the information is disclosed to the Cabinet for the purposes of the consideration by the Cabinet of:

(i) a matter preparatory to the publication of a designated request for proposal notice; or

(ii) the approach to be taken in relation to the consideration of submissions that could be made, after the publication or proposed publication of a designated request for proposal notice, in response to an invitation set out in the notice; or

(iii) action to be taken by the Commonwealth or a Minister in relation to a proposal set out in a submission made in response to an invitation set out in a designated request for proposal notice; or

(iv) a matter that is ancillary or incidental to a matter referred to in subparagraph (i), (ii) or (iii);

(b) the information is disclosed to a Minister for the purposes of the consideration by the Minister of:

(i) a matter preparatory to the publication of a designated request for proposal notice; or

(iii) action to be taken by the Commonwealth or a Minister in relation to a proposal set out in a submission made in response to an invitation set out in a designated request for proposal notice; or

(iv) a matter that is ancillary or incidental to a matter referred to in subparagraph (i), (ii) or (iii);

(i) the Cabinet; or

(ii) a Minister; or

(iii) a Secretary of a Department;

about:

(iv) a matter preparatory to the publication of a designated request for proposal notice; or

(v) the approach to be taken in relation to the consideration of submissions that could be made, after the publication or proposed publication of a designated request for proposal notice, in response to an invitation set out in the notice; or

(vi) action to be taken by the Commonwealth or a Minister in relation to a proposal set out in a submission made in response to an invitation set out in a designated request for proposal notice; or

(vii) a matter that is ancillary or incidental to a matter referred to in subparagraph (iv), (v) or (vi);

(d) the information is disclosed to another entrusted public official for the purposes of the Australian Security Intelligence Organisation, the ACCC or the ACMA giving advice to:

(i) the Commonwealth; or

(ii) a Minister; or

(iii) a committee established under the executive power of the Commonwealth;

in relation to:

(iv) a matter preparatory to the publication of a designated request for proposal notice; or

(vi) action to be taken by the Commonwealth or a Minister in relation to a proposal set out in a submission made in response to an invitation set out in a designated request for proposal notice; or

(vii) a matter that is ancillary or incidental to a matter referred to in subparagraph (iv), (v) or (vi);

(e) the information is disclosed to another entrusted public official for a purpose specified in the regulations;

(f) the information is disclosed to another entrusted public official for the purposes of:

(i) giving advice to an authorised information officer in relation to action to be taken by the officer under section 531H; or

(ii) assisting an authorised information officer in relation to the exercise of the officer’s powers under section 531H;

(g) the information is disclosed by an authorised information officer to another authorised information officer for the purposes of:

(i) enabling the other authorised information officer to make a decision under section 531H; or

(ii) enabling the other authorised information officer to disclose the information under section 531H;

(h) the disclosure is authorised by section 531H;

(i) the carrier who gave the information to an authorised information officer has consented to the disclosure of the information;

(j) the information has been made publicly known by:

(i) the carrier who gave the information to an authorised information officer; or

(ii) a person authorised by the carrier to make the information publicly known;

(k) the disclosure is in compliance with a requirement under a law of the Commonwealth, a State or a Territory.

(3) Paragraph (2)(e) ceases to have effect at the end of the period of 12 months beginning on the day on which this subsection commenced.

(3A) Each of the following is an exception to the prohibition of use in subsection (1):

(a) the information is used for the purposes of the consideration by the Cabinet of:

(i) a matter preparatory to the publication of a designated request for proposal notice; or

(iii) action to be taken by the Commonwealth or a Minister in relation to a proposal set out in a submission made in response to an invitation set out in a designated request for proposal notice; or

(iv) a matter that is ancillary or incidental to a matter referred to in subparagraph (i), (ii) or (iii);

(b) the information is used for the purposes of the consideration by the Minister of:

(i) a matter preparatory to the publication of a designated request for proposal notice; or

(iii) action to be taken by the Commonwealth or a Minister in relation to a proposal set out in a submission made in response to an invitation set out in a designated request for proposal notice; or

(iv) a matter that is ancillary or incidental to a matter referred to in subparagraph (i), (ii) or (iii);

(i) the Cabinet; or

(ii) a Minister; or

(iii) a Secretary of a Department;

about:

(iv) a matter preparatory to the publication of a designated request for proposal notice; or

(vi) action to be taken by the Commonwealth or a Minister in relation to a proposal set out in a submission made in response to an invitation set out in a designated request for proposal notice; or

(vii) a matter that is ancillary or incidental to a matter referred to in subparagraph (iv), (v) or (vi);

(d) the information is used for the purposes of the Australian Security Intelligence Organisation, the ACCC or the ACMA giving advice to:

(i) the Commonwealth; or

(ii) a Minister; or

(iii) a committee established under the executive power of the Commonwealth;

in relation to:

(iv) a matter preparatory to the publication of a designated request for proposal notice; or

(vi) action to be taken by the Commonwealth or a Minister in relation to a proposal set out in a submission made in response to an invitation set out in a designated request for proposal notice; or

(vii) a matter that is ancillary or incidental to a matter referred to in subparagraph (iv), (v) or (vi);

(e) the information is used for a purpose specified in the regulations;

(f) the information is used for the purposes of:

(i) giving advice to an authorised information officer in relation to action to be taken by the officer under section 531H; or

(ii) assisting an authorised information officer in relation to the exercise of the officer’s powers under section 531H;

(g) the information is used for the purposes of:

(i) enabling an authorised information officer to make a decision under section 531H; or

(ii) enabling an authorised information officer to disclose the information under section 531H;

(h) the carrier who gave the information to an authorised information officer has consented to the use of the information;

(i) the information has been made publicly known by:

(i) the carrier who gave the information to an authorised information officer; or

(ii) a person authorised by the carrier to make the information publicly known;

(j) the use is authorised by or under a law of the Commonwealth, a State or a Territory.

(3B) Paragraph (3A)(e) ceases to have effect at the end of the period of 12 months beginning on the day on which this subsection commenced.

(4) An entrusted public official is not required to give a carrier an opportunity to be heard in relation to a decision to disclose information under subsection (2).

(4A) An entrusted public official is not required to give a carrier an opportunity to be heard in relation to a decision to use information under subsection (3A).

(5) If a person has obtained protected carrier information in the person’s capacity as an entrusted public official, section 70 of the Crimes Act 1914 has effect, in relation to the information, as if the person were a Commonwealth officer.

531H Disclosure of protected carrier information to a company

(1) If:

(a) a designated request for proposal notice has been published; and

(b) a company notifies an authorised information officer, in writing, that:

(i) the company is considering making a submission in response to the invitation set out in the notice; or

(ii) the company intends to make a submission in response to the invitation set out in the notice; or

(iii) the company has made a submission in response to the invitation set out in the notice, and is considering varying the submission; or

(iv) the company has made a submission in response to the invitation set out in the notice, and intends to vary the submission; and

(c) if a determination is in force under subsection (3)—the notification is accompanied by such information as is specified in the determination; and

(d) if a determination is in force under subsection (4)—an authorised information officer is satisfied that the conditions set out in the determination are met; and

(e) if the designated request for proposal notice specifies one or more requirements that a company must meet in order to be eligible to make a submission in response to the invitation set out in the notice—an authorised information officer is satisfied that the company has met those requirements; and

(f) a carrier has given protected carrier information to an authorised information officer;

an authorised information officer may disclose the information to an entrusted company officer of the company for the purposes of:

(g) the consideration by the company of whether to make a submission in response to the invitation set out in the designated request for proposal notice; or

(h) the preparation of a submission by the company in response to the invitation set out in the designated request for proposal notice; or

(i) if the company has made a submission in response to the invitation set out in the designated request for proposal notice—the consideration by the company of whether to vary the submission; or

(j) if the company has made a submission in response to the invitation set out in the designated request for proposal notice—the preparation by the company of a variation of the submission;

so long as the disclosure complies with any applicable restricted recipients rules.

(2) An authorised information officer is not required to give a carrier an opportunity to be heard in relation to a decision to disclose information under subsection (1).

(3) The Minister may, by legislative instrument, make a determination specifying information for the purposes of paragraph (1)(c).

(4) The Minister may, by legislative instrument, make a determination setting out conditions for the purposes of paragraph (1)(d).

531J Stay of decisions

(1) Paragraphs 15(1)(a) and (b) and 15A(1)(a) and (b) of the Administrative Decisions (Judicial Review) Act 1977 do not apply to a decision to disclose information under subsection 531G(2) or 531H(1) or a decision to use information under subsection 531G(3A).

(2) If a person applies to the Federal Court under subsection 39B(1) of the Judiciary Act 1903 for a writ or injunction in relation to a decision to disclose information under subsection 531G(2) or 531H(1) or a decision to use information under subsection 531G(3A), the Court must not make any orders staying or otherwise affecting the operation or implementation of the decision pending the finalisation of the application.

531K Protection of information—entrusted company officer

(1) If a person has obtained protected carrier information in the person’s capacity as an entrusted company officer of a company, the person must not:

(a) disclose the information to another person; or

(b) use the information.

(2) Each of the following is an exception to the prohibition of disclosure in subsection (1):

(a) the disclosure is to another entrusted company officer of the company for the purposes of:

(i) the consideration by the company of whether to make a submission in response to an invitation set out in a designated request for proposal notice; or

(ii) the preparation of a submission by the company in response to an invitation set out in a designated request for proposal notice; or

(iii) if the company has made a submission in response to an invitation set out in a designated request for proposal notice—the consideration by the company of whether to vary the submission; or

(iv) if the company has made a submission in response to an invitation set out in a designated request for proposal notice—the preparation by the company of a variation of the submission;

so long as the disclosure complies with any applicable restricted recipients rules;

(b) the information is disclosed in:

(i) a submission of the company made in response to an invitation set out in a designated request for proposal notice; or

(ii) a variation of such a submission;

(c) the carrier who gave the information to an authorised information officer has consented to the disclosure of the information;

(d) the information has been made publicly known by:

(i) the carrier who gave the information to an authorised information officer; or

(ii) a person authorised by the carrier to make the information publicly known;

(e) the disclosure is in compliance with a requirement under a law of the Commonwealth, a State or a Territory.

(2A) Each of the following is an exception to the prohibition of use in subsection (1):

(a) the information is used for the purposes of:

(i) the consideration by the company of whether to make a submission in response to an invitation set out in a designated request for proposal notice; or

(ii) the preparation of a submission by the company in response to an invitation set out in a designated request for proposal notice; or

(iii) if the company has made a submission in response to an invitation set out in a designated request for proposal notice—the consideration by the company of whether to vary the submission; or

(iv) if the company has made a submission in response to an invitation set out in a designated request for proposal notice—the preparation by the company of a variation of the submission;

(b) the carrier who gave the information to an authorised information officer has consented to the use of the information;

(i) the carrier who gave the information to an authorised information officer; or

(ii) a person authorised by the carrier to make the information publicly known;

(d) the use was authorised by or under a law of the Commonwealth, a State or a Territory.

(3) A person must not:

(a) aid, abet, counsel or procure a contravention of subsection (1); or

(b) induce, whether by threats or promises or otherwise, a contravention of subsection (1); or

(d) conspire with others to effect a contravention of subsection (1).

(4) Subsections (1) and (3) are civil penalty provisions.

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

531L Compensation of carrier for loss or damage

(1) If:

(a) protected carrier information was given to an authorised information officer by a carrier; and

(b) the Federal Court is satisfied that an entrusted company officer of a company has contravened subsection 531K(1) or (3) in relation to the information; and

(d) the Court is satisfied that the company expressly, tacitly or impliedly authorised or permitted the contravention;

the Court may, on the application of the carrier, make an order that the Court considers appropriate directing the company to compensate the carrier.

(2) An application under subsection (1) may be made at any time within 6 years after the contravention occurred.

(3) If:

(a) protected carrier information was given to an authorised information officer by a carrier; and

(b) the Federal Court is satisfied that an entrusted company officer of a company has contravened subsection 531K(1) or (3) in relation to the information; and

(d) the Court is satisfied that:

(i) the entrusted company officer was an employee or agent of the company; and

(ii) the entrusted company officer’s conduct was within the entrusted company officer’s actual or apparent authority as an employee or agent of the company;

the Court may, on the application of the carrier, make an order that the Court considers appropriate directing the company to compensate the carrier.

(4) An application under subsection (3) may be made at any time within 6 years after the contravention occurred.

(5) Compensation is not payable to a company under both:

(a) subsection (1); and

(b) subsection (3);

in respect of the same contravention of subsection 531K(1) or (3).

531M Appointment of authorised information officers

The Minister may, in writing, appoint an SES employee to be an authorised information officer for the purposes of this Act.

Note 1: The expression SES employee is defined in section 17AA of the Acts Interpretation Act 1901.

Note 2: For revocation, see subsection 33(3) of the Acts Interpretation Act 1901.

531N Restricted recipients rules

(1) The Minister may, by legislative instrument, make rules (the restricted recipients rules) restricting or limiting the entrusted company officers to whom information may be disclosed under subsection 531H(1) or paragraph 531K(2)(a).

(2) The restricted recipients rules may make different provision with respect to the disclosure of information in different circumstances.

(3) Subsection (2) does not limit subsection 33(3A) of the Acts Interpretation Act 1901.

(4) The restricted recipients rules may make provision with respect to a matter by conferring on an APS employee a power to make a decision of an administrative character.

Note: The expression APS employee is defined in section 17AA of the Acts Interpretation Act 1901.

(5) The restricted recipients rules may provide for the payment of a fee in respect of the making of such a decision.

(6) A fee imposed under subsection (5) must not be such as to amount to taxation.

531P Storage, handling or destruction of protected carrier information

(1) The Minister may, by legislative instrument, make rules relating to the storage, handling or destruction of protected carrier information.

(2) Rules in force under subsection (1), to the extent to which they relate to protected carrier information given to an authorised information officer by a carrier, must not impose any requirements or prohibitions on the carrier.

(3) A person must comply with rules in force under subsection (1).

(4) A person must not:

(a) aid, abet, counsel or procure a contravention of subsection (3); or

(b) induce, whether by threats or promises or otherwise, a contravention of subsection (3); or

(d) conspire with others to effect a contravention of subsection (3).

(5) Subsections (3) and (4) are civil penalty provisions.

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

531Q Submissions by companies

For the purposes of this Part, it is immaterial whether a company’s submission:

(a) is made by the company alone; or

(b) is made by the company jointly with one or more other companies.

Part 28—Enforcement

Division 1—Introduction

532 Simplified outline

The following is a simplified outline of this Part:

• A person may be appointed as an inspector.

• Searches relating to offences against Part 21 (technical regulation) may be conducted:

(a) under the authority of a search warrant; or

(b) with the consent of the owner or occupier concerned; or

• Searches to monitor compliance with Part 21 (technical regulation) may be conducted with the consent of the occupier concerned.

• Searches relating to breaches of the Spam Act 2003 may be conducted:

(a) under the authority of a search warrant; or

(b) with the consent of the owner or occupier concerned.

• Searches to monitor compliance with the Spam Act 2003 may be conducted:

(a) under the authority of a monitoring warrant; or

(b) with the consent of the occupier concerned.

• An inspector may require the production of a carrier licence.

• An inspector may require the giving of certain information, and the production of certain documents, relevant to compliance with the Spam Act 2003 or Part 21 of this Act (technical regulation).

• A court may order forfeiture of goods used or otherwise involved in the commission of an offence against this Act.

532A References to the Spam Act 2003

In this Part:

Spam Act 2003 includes regulations under the Spam Act 2003.

Division 2—Inspectors and identity cards

533 Inspectors

(1) A person is an inspector for the purposes of a particular provision of this Act if:

(a) the person is an officer appointed by the ACMA, by written instrument, to be an inspector:

(i) for the purposes of this Act in general; or

(ii) for the purposes of that provision; or

(b) the person is an officer included in a class of officers appointed by the ACMA, by notice in the Gazette, to be inspectors:

(i) for the purposes of this Act in general; or

(ii) for the purposes of that provision; or

(c) if the person is a member (other than a special member) of the Australian Federal Police or of the police force of a Territory.

(2) In this section:

Commonwealth officer means:

(a) a person who, whether on a full‑time or a part‑time basis, and whether in a permanent capacity or otherwise:

(i) is in the service or employment of the Commonwealth, the Administration of an external Territory or an authority of the Commonwealth; or

(ii) holds or performs the duties of any office or position established by or under a law of the Commonwealth or an external Territory; or

(b) a member of the Defence Force.

officer means:

(a) a Commonwealth officer; or

(b) a State officer.

State includes:

(a) the Australian Capital Territory; and

(b) the Northern Territory.

State officer means a person who, whether on a full‑time basis or a part‑time basis and whether in a permanent capacity or otherwise:

(a) is in the service or employment of a State or an authority of a State; or

(b) holds or performs the duties of any office or position established by or under a law of a State;

and includes a member of a police force of a State.

534 Identity cards

(1) The ACMA may issue an identity card to an inspector, other than a member of a police force, in a form approved, in writing, by the ACMA.

(2) A person who ceases to be an inspector must, as soon as practicable, return his or her identity card to the ACMA.

(3) A person must not contravene subsection (2).

Penalty: 5 penalty units.

Note: See also sections 4AA and 4B of the Crimes Act 1914.

(4) Subsection (3) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).

(5) Subsection (3) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

Division 3—Search warrants relating to breaches of the Spam Act 2003 or Part 21 of this Act

535 Magistrate may issue warrant

(1) If:

(a) an information on oath is laid before a magistrate alleging that an inspector suspects on reasonable grounds that there may be on any land, or in or on any premises, vessel, aircraft or vehicle:

(i) anything in respect of which an offence against Part 21 has been committed; or

(ii) anything that may afford evidence about the commission of an offence against Part 21; or

(iii) anything that was used, or is intended to be used, for the purposes of committing an offence against Part 21; or

(iv) anything in respect of which a breach of the Spam Act 2003 has happened; or

(v) anything that may afford evidence about a breach of the Spam Act 2003; or

(vi) anything that was used, or is intended to be used, for the purposes of breaching the Spam Act 2003; and

(b) the information sets out those grounds;

the magistrate may issue a search warrant authorising the inspector named in the warrant, with such assistance, and by such force, as is necessary and reasonable, to enter the land, premises, vessel, aircraft or vehicle and exercise the powers referred to in paragraphs 542(2)(b), (c) and (d), in respect of the thing.

(2) A reference in this section to an offence against Part 21 includes a reference to an offence created by section 6 of the Crimes Act 1914 or Part 2.4 of the Criminal Code that relates to Part 21 of this Act.

536 Reasonable grounds for issuing warrant etc.

A magistrate is not to issue a warrant under section 535 unless:

(a) the informant or some other person has given to the magistrate, either orally or by affidavit, such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought; and

(b) the magistrate is satisfied that there are reasonable grounds for issuing the warrant.

537 Contents of warrant

The following must be stated in a warrant issued under section 535:

(a) the purpose for which the warrant is issued, and the nature of the offence or breach in relation to which the entry and search are authorised;

(b) whether entry is authorised to be made at any time of the day or night or during specified hours of the day or night;

(d) a day, not later than 7 days after the day of issue of the warrant, upon which the warrant ceases to have effect.

538 Warrants may be issued by telephone etc.

If, because of circumstances of urgency, an inspector thinks it necessary to do so, the inspector may apply to a magistrate for a warrant under section 535 by telephone, telex, fax or other electronic means.

539 Provisions relating to issue of warrant by telephone etc.

(1) Before applying under section 538 for a warrant, an inspector must prepare an information of a kind referred to in section 535 that sets out the grounds on which the issue of the warrant is being sought. However, the inspector may, if it is necessary to do so, make the application before the information has been sworn.

(2) If the magistrate to whom an application under section 538 is made is satisfied:

(a) after having considered the terms of the information prepared under subsection (1); and

(b) after having received such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought;

that there are reasonable grounds for issuing the warrant, the magistrate must complete and sign such a search warrant as the magistrate would issue under section 535 if the application had been made under that section.

(3) If the magistrate signs a warrant under subsection (2):

(a) the magistrate must:

(i) inform the inspector of the terms of the warrant; and

(ii) inform the inspector of the day on which and the time at which the warrant was signed; and

(iii) inform the inspector of the day (not more than 7 days after the magistrate completes and signs the warrant) on which the warrant ceases to have effect; and

(iv) record on the warrant the reasons for issuing the warrant; and

(b) the inspector must:

(i) complete a form of warrant in the same terms as the warrant completed and signed by the magistrate; and

(ii) write on it the magistrate’s name and the day on which and the time at which the warrant was signed.

(4) The inspector must, not later than the day after the date of expiry or execution of the warrant, whichever is the earlier, send to the magistrate:

(a) the form of warrant completed by the inspector; and

(b) the information duly sworn in connection with the warrant.

(5) On receiving the documents referred to in subsection (4), the magistrate must:

(a) attach to them the warrant signed by the magistrate; and

(b) deal with the documents in the way which the magistrate would have dealt with the information if the application for the warrant had been made under section 535.

(6) A form of warrant duly completed by an inspector under subsection (3), if it is in accordance with the terms of the warrant signed by the magistrate, is authority for an entry, search, seizure or other exercise of a power that the warrant so signed authorises.

540 Proceedings involving warrant issued by telephone etc.

If:

(a) it is material in any proceedings for a court to be satisfied that an entry, search, seizure or other exercise of power was authorised in accordance with section 539; and

(b) a warrant signed by a magistrate under section 539 authorising the entry, search, seizure or other exercise of power is not produced in evidence;

the court is to assume, unless the contrary is proved, that the entry, search, seizure or other exercise of power was not authorised by such a warrant.

Division 4—Searches and seizures relating to breaches of the Spam Act 2003 or Part 21 of this Act

541 When is a thing connected with an offence?

For the purposes of this Division, a thing is connected with a particular offence if it is:

(a) a thing in respect of which the offence has been committed; or

(b) a thing that may afford evidence about the commission of the offence; or

541A When is a thing connected with a breach of the Spam Act 2003?

For the purposes of this Part, a thing is connected with a breach of the Spam Act 2003 if it is:

(a) a thing in respect of which the breach has happened; or

(b) a thing that may afford evidence about the breach; or

542 Searches and seizures

(1) This section applies if an inspector suspects on reasonable grounds that there is on any land, or on or in any premises, vessel, aircraft or vehicle anything connected with:

(a) a particular offence against Part 21 of this Act; or

(b) a particular breach of the Spam Act 2003.

(2) The inspector may, with the consent of the owner or occupier of the land, premises, vessel, aircraft or vehicle, or in accordance with a warrant issued under Division 3:

(a) enter the land, premises, vessel, aircraft or vehicle; and

(b) search the land, premises, vessel, aircraft or vehicle; and

(c) break open and search a cupboard, drawer, chest, trunk, box, package or other receptacle, whether a fixture or not, in which the inspector suspects on reasonable grounds there to be anything of a kind referred to in subsection (1); and

(d) examine and seize anything that the inspector suspects on reasonable grounds to be connected with the offence or breach.

(3) If an inspector may enter a vessel, aircraft or vehicle under subsection (2), the inspector may, for that purpose and for the purpose of exercising a power referred to in paragraph (2)(b), (c) or (d), stop and detain the vessel, aircraft or vehicle.

(4) A reference in this section to an offence against Part 21 includes a reference to an offence created by section 6 of the Crimes Act 1914 or Part 2.4 of the Criminal Code that relates to Part 21 of this Act.

543 Production of identity card etc.

(1) An inspector (other than a member of a police force who is in uniform) who proposes to enter land or premises under section 542 must:

(a) in the case of a member of a police force—produce, for inspection by the owner or occupier of the land or premises written evidence of the fact that the inspector is a member of a police force; or

(b) in any other case—produce the inspector’s identity card for inspection by the owner or occupier;

and, if the inspector fails to do so, he or she is not authorised to enter the land or premises.

(2) If the entry is in accordance with a warrant issued under Division 3, the inspector is taken not to have complied with subsection (1) unless he or she also produces the warrant for inspection by the owner or occupier.

544 Evidence of commission of other offences against Part 21 of this Act or other breaches of the Spam Act 2003

(1) If:

(a) in the course of searching, in accordance with a warrant issued under Division 3, for a particular thing in relation to a particular offence, an inspector finds a thing that the inspector believes on reasonable grounds to be:

(i) a thing that is connected with the offence, although not the thing specified in the warrant; or

(ii) a thing that is connected with another offence against Part 21; and

(b) the inspector believes, on reasonable grounds, that it is necessary to seize that thing in order to prevent its concealment, loss or destruction, or its use in committing, continuing or repeating the offence or the other offence;

the warrant is taken to authorise the inspector to seize that thing.

(1A) If:

(a) in the course of searching, in accordance with a warrant issued under Division 3, for a particular thing in relation to a particular breach of the Spam Act 2003, an inspector finds a thing that the inspector believes on reasonable grounds to be:

(i) a thing that is connected with the breach, although not the thing specified in the warrant; or

(ii) a thing that is connected with another breach of the Spam Act 2003; and

the warrant is taken to authorise the inspector to seize that thing.

545 Emergency entry, search and seizure

(1) If an inspector has reasonable grounds to believe:

(a) that a person is carrying anything that is connected with an offence against Part 21; and

(b) that the exercise of the powers under this section is necessary to prevent the concealment, loss or destruction of a thing connected with a particular offence;

the inspector may:

(d) seize any thing found in the course of the search;

so long as those powers are exercised in circumstances of such seriousness and urgency as to require and justify the immediate exercise of those powers without the authority of a warrant issued under Division 3.

(2) If an inspector has reasonable grounds to believe:

(a) that there is on any land or on or in any premises, vessel, aircraft or vehicle any thing that is connected with a particular offence against Part 21; and

(b) that the exercise of powers conferred under this section is necessary to prevent the concealment, loss or destruction of the thing;

the inspector may, with such assistance as the inspector thinks fit, and if necessary by force:

(d) search for the thing; and

(e) seize any such thing found in the course of the search;

(3) If an inspector may enter a vessel, aircraft or vehicle under subsection (2), the inspector may, for that purpose and for the purpose of exercising a power referred to in paragraph (2)(d) or (e), stop and detain the vessel, aircraft or vehicle.

546 Retention of things seized

(1) If an inspector seizes a thing under this Division, the inspector or the ACMA may retain it until:

(a) the end of the period of 60 days after the seizure; or

(b) if either of the following proceedings are instituted within that period:

(i) proceedings for an offence against, or arising out of, this Act in respect of which the thing may afford evidence;

(ii) proceedings for a breach of the Spam Act 2003 in respect of which the thing may afford evidence;

the proceedings (including any appeal to a court in relation to those proceedings) are completed.

(2) The ACMA may, by written instrument, authorise a thing seized under this Division to be released to the owner, or to the person from whom it was seized, either:

(a) unconditionally; or

(b) on such conditions as the ACMA thinks fit, including conditions as to giving security for payment of its value if it is forfeited under section 551.

(3) In this section:

this Act includes the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act.

Division 5—Searches to monitor compliance with Part 21

547 Searches to monitor compliance with Part 21

(1) An inspector may, to the extent that it is reasonably necessary for the purpose of ascertaining whether Part 21 has been complied with, enter, at any time during the day or night, any premises that the inspector has reasonable cause to believe are premises to which this section applies and:

(a) search the premises; or

(b) inspect and take photographs, or make sketches, of the premises or any substance or thing at the premises; or

(d) remove, or make copies of, any such document.

This section has effect subject to subsections (2) and (3).

(2) An inspector may not, under subsection (1), enter premises that are a residence unless the occupier of the premises has consented to the entry.

(3) An inspector is not entitled to exercise any powers under subsection (1) in relation to premises if:

(a) the occupier of the premises has required the inspector to produce his or her identity card for inspection by the occupier; and

(b) the inspector fails to comply with the requirement.

(4) This section applies to premises at which:

(a) activities that are the subject of regulation under Part 21 are engaged in; or

(b) records relating to any such activities are kept.

Division 5A—Searches to monitor compliance with the Spam Act 2003

547A Powers available to inspectors for monitoring compliance

(1) For the purpose of finding out whether the Spam Act 2003 has been complied with, an inspector may:

(a) enter any premises; and

(b) exercise the monitoring powers set out in section 547B.

(2) An inspector is not authorised to enter premises under subsection (1) unless:

(a) the occupier of the premises has consented to the entry; or

(b) the entry is made under a warrant under section 547D.

Consent

(3) Before obtaining the consent of a person for the purposes of paragraph (2)(a), the inspector must inform the person that he or she may refuse consent.

(4) An entry of an inspector by virtue of the consent of a person is not lawful unless the person voluntarily consented to the entry.

547B Monitoring powers

(1) The monitoring powers that an inspector may exercise under paragraph 547A(1)(b) are as follows:

(a) to search the premises;

(b) to inspect and take photographs, or make sketches, of the premises or any substance or thing at the premises;

(d) to remove, or make copies of, any such document;

(e) to take onto the premises such equipment and materials as the inspector requires for the purpose of exercising powers in relation to the premises;

(f) to secure a thing, until a warrant is obtained to seize it, if:

(i) the inspector finds the thing during the exercise of powers on the premises; and

(ii) the inspector believes on reasonable grounds that the thing is connected with a breach of the Spam Act 2003; and

(iii) the inspector believes on reasonable grounds that the thing would be lost, destroyed or tampered with before the warrant can be obtained;

(g) to secure a computer, until an order under section 547J is obtained in relation to it, if:

(i) the inspector finds the computer during the exercise of powers on the premises; and

(ii) there are reasonable grounds for suspecting that a thing connected with a breach of the Spam Act 2003 is held in, or is accessible from, the computer; and

(iii) the inspector believes on reasonable grounds that the computer, or the thing mentioned in subparagraph (ii), would be lost, destroyed or tampered with before the order can be obtained.

(2) The monitoring powers that an inspector may exercise under paragraph 547A(1)(b) include the power to operate equipment at premises to see whether:

(a) the equipment; or

(b) a disk, tape or other storage device that:

(i) is at the premises; and

(ii) can be used with the equipment or is associated with it;

contains information that is relevant to determining whether there has been compliance with the Spam Act 2003.

(3) If the inspector, after operating equipment at the premises, finds that the equipment, or that a tape, disk or other storage device at the premises, contains information mentioned in subsection (2), the inspector may:

(a) operate facilities at the premises to put the information in documentary form and copy the document so produced; or

(b) if the information can be transferred to a tape, disk or other storage device that:

(i) is brought to the premises; or

(ii) is at the premises and the use of which for the purpose has been agreed to in writing by the occupier of the premises;

operate the equipment or other facilities to copy the information to the storage device, and remove the storage device from the premises.

Note: See also section 547J (order requiring person to assist with access to computer data).

547C Production of identity card etc.

An inspector (other than a member of a police force who is in uniform) who proposes to enter premises under section 547A must:

(a) in the case of a member of a police force—produce, for inspection by the occupier of the premises, written evidence of the fact that the inspector is a member of a police force; or

(b) in any other case—produce the inspector’s identity card for inspection by the occupier;

and, if the inspector fails to do so, he or she is not authorised to enter the premises.

547D Monitoring warrants

(1) An inspector may apply to a magistrate for a warrant under this section in relation to premises.

(2) The magistrate may issue the warrant if the magistrate is satisfied, by information on oath or affirmation, that it is reasonably necessary that one or more inspectors should have access to the premises for the purposes of finding out whether the Spam Act 2003 has been complied with.

(3) The magistrate must not issue the warrant unless the inspector or some other person has given to the magistrate, either orally or by affidavit, such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought.

(4) If the premises are a residence, the magistrate must not issue the warrant unless:

(a) all of the following conditions are satisfied:

(i) the Federal Court has found, in proceedings under the Spam Act 2003, that an individual has breached that Act;

(ii) the finding has not been overturned on appeal;

(iii) the individual ordinarily resides at the premises;

(iv) the breach involved the use of equipment that is or was on those premises;

(v) the warrant is issued within 10 years after the finding; or

(b) all of the following conditions are satisfied:

(i) an individual has given an undertaking for the purposes of section 38 of the Spam Act 2003;

(ii) the undertaking is in force;

(iii) the individual ordinarily resides at the premises;

(iv) the undertaking applies to the use of equipment that is on those premises.

(5) The warrant must:

(a) authorise one or more inspectors (whether or not named in the warrant), with such assistance and by such force as is necessary and reasonable:

(i) to enter the premises; and

(ii) to exercise the powers set out in section 547B in relation to the premises; and

(b) state whether the entry is authorised to be made at any time of the day or night or during specified hours of the day or night; and

(c) specify the day (not more than 6 months after the issue of the warrant) on which the warrant ceases to have effect; and

(d) state the purpose for which the warrant is issued.

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

(1) If:

(a) a warrant under section 547D in relation to premises is being executed by an inspector; and

(b) the occupier of the premises or another person who apparently represents the occupier is present at the premises;

the inspector must make available to that person a copy of the warrant.

(2) The inspector must identify himself or herself to that person.

(3) The copy of the warrant referred to in subsection (1) need not include the signature of the magistrate who issued the warrant.

547F Announcement before entry

(1) An inspector must, before entering premises under a warrant under section 547D:

(a) announce that he or she is authorised to enter the premises; and

(b) give any person at the premises an opportunity to allow entry to the premises.

(2) An inspector is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required:

(a) to ensure the safety of a person; or

(b) to ensure that the effective execution of the warrant is not frustrated.

547G Compensation for damage to equipment

(1) This section applies if:

(a) as a result of equipment being operated as mentioned in section 547B:

(i) damage is caused to the equipment; or

(ii) the data recorded on the equipment is damaged; or

(iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and

(b) the damage or corruption occurs because:

(i) insufficient care was exercised in selecting the person who was to operate the equipment; or

(ii) insufficient care was exercised by the person operating the equipment.

(2) The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.

(3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in the Federal Court for such reasonable amount of compensation as the Court determines.

(4) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier’s employees and agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.

(5) Compensation is payable out of money appropriated by the Parliament.

(6) For the purposes of subsection (1):

damage, in relation to data, includes damage by erasure of data or addition of other data.

547H Occupier entitled to be present during search

(1) If:

(a) a warrant under section 547D in relation to premises is being executed; and

(b) the occupier of the premises, or another person who apparently represents the occupier, is present at the premises;

the person is entitled to observe the search being conducted.

(2) The right to observe the search being conducted ceases if the person impedes the search.

(3) This section does not prevent 2 or more areas of the premises being searched at the same time.

Division 5B—Access to computer data that is relevant to the Spam Act 2003

547J Access to computer data that is relevant to the Spam Act 2003

Scope

(1) This section applies if:

(a) both:

(i) a warrant is in force under Division 3 authorising an inspector to enter particular premises; and

(ii) the warrant relates to the Spam Act 2003; or

(b) a warrant is in force under Division 5A authorising an inspector to enter particular premises.

Application to magistrate for access order

(2) The inspector may apply to a magistrate for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow the inspector to do one or more of the following:

(a) access data held in, or accessible from, a computer that is on those premises;

(b) copy the data to a data storage device;

Grant of access order

(3) The magistrate may grant the order if the magistrate is satisfied that:

(a) there are reasonable grounds for suspecting that a thing connected with a breach of the Spam Act 2003 is held in, or is accessible from, the computer; and

(b) the specified person is:

(i) reasonably suspected of having been involved in the breach; or

(ii) the owner or lessee of the computer; or

(iii) an employee of the owner or lessee of the computer; and

(i) the computer or a computer network of which the computer forms a part; or

(ii) measures applied to protect data held in, or accessible from, the computer.

Offence

(4) A person is guilty of an offence if:

(a) the person is subject to an order under this section; and

(b) the person omits to do an act; and

Penalty: Imprisonment for 6 months.

Definitions

(5) In this section:

data includes:

(a) information in any form; and

(b) any program (or part of a program).

data held in a computer includes:

(a) data held in any removable data storage device for the time being held in a computer; and

(b) data held in a data storage device on a computer network of which the computer forms a part.

data storage device means a thing containing, or designed to contain, data for use by a computer.

(6) This section does not, by implication, affect the meaning of the expression data when used in any other provision of this Act or the Telecommunications (Consumer Protection and Service Standards) Act 1999.

Division 6—Other powers of inspectors

548 General powers of inspectors

(1) An inspector may:

(a) require a person whom he or she suspects on reasonable grounds of having done an act in respect of which the person is required to hold:

(i) a carrier licence; or

(ii) a connection permit; or

(iii) a cabling licence;

to produce the licence or permit (as the case may be), or evidence of its existence and contents; and

(b) require a person to produce evidence of having applied a label in accordance with an obligation imposed on the person under section 407; and

(i) obtain a written statement from a certification body certifying that customer equipment or customer cabling complies with a specified section 376 standard; or

(ii) obtain a written statement from a competent body stating that reasonable efforts have been made to avoid a contravention of a specified section 376 standard;

to produce the statement, or evidence of its existence and contents; and

(d) require a person who has been required under paragraph 408(5)(b) to have customer equipment or customer cabling tested by a recognised testing authority to produce evidence of the testing; and

(e) require a person who has been required under subsection 408(6) to retain:

(i) records; or

(ii) a declaration; or

(iii) a copy of a declaration;

for a particular period to produce those records, that declaration or that copy, so long as the inspector does not require the production of those records, that declaration or that copy after the end of that period.

(2) A person must not contravene a requirement under this section.

Penalty: 20 penalty units.

Note: See also sections 4AA and 4B of the Crimes Act 1914.

(2A) Subsection (2) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code).

(2B) Subsection (2) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(3) In this section:

application, in relation to a label, has the same meaning as in Division 7 of Part 21.

certification body has the same meaning as in Division 7 of Part 21.

competent body has the same meaning as in Division 7 of Part 21.

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

recognised testing authority has the same meaning as in Division 7 of Part 21.

549 Power to require information etc.

(1) An inspector who has entered land, premises, a vessel, an aircraft or a vehicle under Division 4 or 5 may, to the extent that is reasonably necessary for the purpose of ascertaining whether Part 21 has been complied with, require the person to:

(a) answer any questions put by the inspector; and

(b) produce any documents requested by the inspector.

(1A) An inspector who has entered land, premises, a vessel, an aircraft or a vehicle under Division 4 or 5A may, to the extent that is reasonably necessary for the purpose of ascertaining whether the Spam Act 2003 has been complied with, require the person to:

(a) answer any questions put by the inspector; and

(b) produce any documents requested by the inspector.

(2) An inspector is not entitled to make a requirement of a person under subsection (1) or (1A) unless:

(a) the inspector produces his or her identity card for inspection by the person; or

(b) the inspector is a member of a police force and is wearing the uniform of that police force.

(3) A person is guilty of an offence if:

(a) the person is subject to a requirement under subsection (1) or (1A); and

(b) the person engages in conduct; and

Penalty: 20 penalty units.

(3A) Subsection (3) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3A) (see subsection 13.3(3) of the Criminal Code).

(4) An individual is excused from giving information or producing a document under this section if the information or the production of the document might tend to incriminate the individual or expose the individual to a penalty.

(5) In this section:

engage in conduct means:

(a) do an act; or

(b) omit to perform an act.

550 Retention of documents

If:

(a) an inspector removes a document from any land, premises, vessel, aircraft or vehicle under section 542, 547 or 547B; or

(b) a person produces a document to an inspector in accordance with a requirement under subsection 549(1) or (1A);

then:

(c) the inspector may retain possession of the document for such period as is necessary and reasonable for the purpose of ascertaining whether the Spam Act 2003 or Part 21 of this Act has been complied with; and

(d) during that period, the inspector must permit a person who would be entitled to inspect the document if it were not in the inspector’s possession to inspect the document at all reasonable times.

Division 7—Forfeiture

551 Court may order forfeiture

(1) If a court convicts a person of an offence against this Act, the court may order the forfeiture to the Commonwealth of anything used or otherwise involved in the commission of the offence.

(2) A reference in this section to an offence against this Act includes a reference to an offence created by section 6 of the Crimes Act 1914 or Part 2.4 of the Criminal Code that relates to this Act.

(3) In this section:

this Act includes the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act.

552 Forfeited goods may be sold

A thing forfeited under section 551:

(a) may be sold or otherwise disposed of in accordance with the directions of the ACMA; and

(b) pending such directions, must be kept in such custody as the ACMA directs.

Division 8—Future offences

553 Offences that are going to be committed

(1) If:

(a) there are reasonable grounds for suspecting that an offence against this Act is going to be committed; and

(b) the commission of that offence would pose a threat to the safety of human life or cause substantial loss or damage;

this Part applies in relation to the offence as if there were reasonable grounds for suspecting that it had been committed.

(3) In this section:

this Act includes the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act.

Part 29—Review of decisions

554 Simplified outline

The following is a simplified outline of this Part:

• Certain decisions of the ACMA may be reviewed by the Administrative Appeals Tribunal following a process of internal reconsideration by the ACMA.

555 Decisions that may be subject to reconsideration by the ACMA

An application may be made to the ACMA for reconsideration of a decision of a kind specified in Part 1 of Schedule 4.

556 Deadlines for reaching certain decisions

(1) This section applies to a decision of a kind referred to in section 555, other than a decision of a kind specified in Part 2 of Schedule 4.

(2) If this Act provides for a person to make an application to the ACMA for such a decision, the ACMA must make the decision:

(a) within 90 days after receiving the application; or

(b) if the ACMA has, within those 90 days, given the applicant a written request for further information about the application—within 90 days after receiving that further information.

(3) The ACMA is taken, for the purposes of this Part, to have made a decision to refuse the application if it has not informed the applicant of its decision before the end of the relevant period of 90 days.

557 Statements to accompany notification of decisions

(1) If the ACMA makes a decision of a kind referred to in section 555 and gives written notice of the decision to a person whose interests it affects, the notice must include:

(a) a statement to the effect that a person affected by the decision may, if he or she is dissatisfied with the decision, seek a reconsideration of the decision by the ACMA under subsection 558(1); and

(b) a statement to the effect that, if a person who has applied for a reconsideration is dissatisfied with the ACMA’s decision on the reconsideration:

(i) subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of the decision on that reconsideration; and

(ii) the person may request a statement under section 28 of that Act in relation to the decision on that reconsideration.

(2) Failure to comply with this section does not affect the validity of a decision.

558 Applications for reconsideration of decisions

(1) A person affected by a decision of a kind referred to in section 555 who is dissatisfied with the decision may apply to the ACMA for the ACMA to reconsider the decision.

(2) The application must:

(a) be in a form approved in writing by the ACMA; and

(b) set out the reasons for the application.

(3) The application must be made within:

(a) 28 days after the applicant is informed of the decision; or

(b) if, either before or after the end of that period of 28 days, the ACMA extends the period within which the application may be made—the extended period for making the application.

(4) An approved form of an application may provide for verification by statutory declaration of statements in applications.

559 Reconsideration by the ACMA

(1) Upon receiving such an application, the ACMA must:

(a) reconsider the decision; and

(b) affirm, vary or revoke the decision.

(2) The ACMA’s decision on reconsideration of a decision has effect as if it had been made under the provision under which the original decision was made.

(3) The ACMA must give to the applicant a notice stating its decision on the reconsideration together with a statement of its reasons for its decision.

560 Deadlines for reconsiderations

(1) The ACMA must make its decision on reconsideration of a decision within 90 days after receiving an application for reconsideration.

(2) The ACMA is taken, for the purposes of this Part, to have made a decision affirming the original decision if it has not informed the applicant of its decision on the reconsideration before the end of the period of 90 days.

561 Statements to accompany notification of decisions on reconsideration

(1) A notice under subsection 559(3) notifying the applicant that a decision has been affirmed or varied must include:

(a) a statement to the effect that a person affected by the decision so affirmed or varied may, subject to the Administrative Appeals Tribunal Act 1975, if he or she is dissatisfied with the decision so affirmed or varied, apply to the Administrative Appeals Tribunal for review of the decision; and

(b) a statement to the effect that the person may request a statement under section 28 of that Act in relation to the decision so affirmed or varied.

(2) Failure to comply with this section does not affect the validity of a decision.

562 Review by the Administrative Appeals Tribunal

Applications may be made to the Administrative Appeals Tribunal to review a decision of a kind referred to in section 555 if the ACMA has affirmed or varied the decision under section 559.

Part 30—Injunctions

563 Simplified outline

The following is a simplified outline of this Part:

• The Federal Court may grant injunctions in relation to contraventions of this Act, of the Telecommunications (Consumer Protection and Service Standards) Act 1999 or of regulations under that Act.

564 Injunctions

Restraining injunctions

(1) If a person has engaged, is engaging or is proposing to engage, in any conduct in contravention of this Act, the Federal Court may, on the application of the Minister, the ACMA or the ACCC, grant an injunction:

(a) restraining the person from engaging in the conduct; and

(b) if, in the court’s opinion, it is desirable to do so—requiring the person to do something.

Performance injunctions

(2) If:

(a) a person has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do an act or thing; and

(b) the refusal or failure was, is or would be a contravention of this Act;

the Federal Court may, on the application of the Minister, the ACMA or the ACCC, grant an injunction requiring the person to do that act or thing.

Limit on standing of the ACMA

(3) Despite subsections (1) and (2), the ACMA is not entitled to apply for an injunction in relation to a contravention of:

(a) the carrier licence condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 369; or

(b) a carrier licence condition set out in Part 3 or 4 of Schedule 1; or

(d) the carrier licence condition set out in section 152AZ of the Trade Practices Act 1974; or

(e) the service provider rule set out in subsection 152BA(2) of the Trade Practices Act 1974.

Note 1: Section 369 deals with Rules of Conduct under section 367.

Note 2: Parts 3 and 4 of Schedule 1 deal with access to supplementary facilities and network information.

Note 3: Section 152AZ of the Trade Practices Act 1974 deals with standard access obligations.

Note 4: Subsection 152BA(2) of the Trade Practices Act 1974 provides that a carriage service provider must comply with any standard access obligations, and certain ancillary obligations, that are applicable to the provider.

(4) In this section:

this Act includes the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act.

565 Interim injunctions

Grant of interim injunction

(1) If an application is made to the court for an injunction under section 564, the court may, before considering the application, grant an interim injunction restraining a person from engaging in conduct of a kind referred to in that section.

No undertakings as to damages

(2) The court is not to require an applicant for an injunction under section 564, as a condition of granting an interim injunction, to give any undertakings as to damages.

566 Discharge etc. of injunctions

The court may discharge or vary an injunction granted under this Part.

567 Certain limits on granting injunctions not to apply

Restraining injunctions

(1) The power of the court under this Part to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised:

Performance injunctions

(2) The power of the court to grant an injunction requiring a person to do an act or thing may be exercised:

568 Other powers of the court unaffected

The powers conferred on the court under this Part are in addition to, and not instead of, any other powers of the court, whether conferred by this Act or otherwise.

Part 31—Civil penalties

569 Simplified outline

The following is a simplified outline of this Part:

• Pecuniary penalties are payable for contraventions of civil penalty provisions.

570 Pecuniary penalties for contravention of civil penalty provisions

(1) If the Federal Court is satisfied that a person has contravened a civil penalty provision, the Court may order the person to pay to the Commonwealth such pecuniary penalty, in respect of each contravention, as the Court determines to be appropriate.

(2) In determining the pecuniary penalty, the Court must have regard to all relevant matters, including:

(a) the nature and extent of the contravention; and

(b) the nature and extent of any loss or damage suffered as a result of the contravention; and

(d) whether the person has previously been found by the Court in proceedings under this Act to have engaged in any similar conduct.

(3) The pecuniary penalty payable under subsection (1) by a body corporate is not to exceed:

(a) in the case of a contravention of subsection 68(1) or (2) or 101(1) or (2)—$10 million for each contravention; or

(b) in any other case—$250,000 for each contravention.

(4) The pecuniary penalty payable under subsection (1) by a person other than a body corporate is not to exceed $50,000 for each contravention.

(4A) Subsections (3) and (4) do not apply to a contravention of subsection 139(1) or (2).

(4B) Section 25 of the Do Not Call Register Act 2006 applies to a contravention of subsection 139(1) or (2) of this Act in a corresponding way to the way in which it applies to a contravention of subsection 12(1) or (2) of the Do Not Call Register Act 2006, subject to the following modifications:

(a) each reference in section 25 of the Do Not Call Register Act 2006 to subsection 24(1) of that Act includes a reference to subsection (1) of this section;

(b) each reference in section 25 of the Do Not Call Register Act 2006 to a civil penalty provision includes a reference to subsection 139(1) or (2) of this Act;

(c) each reference in section 25 of the Do Not Call Register Act 2006 to a civil penalty order includes a reference to an order under subsection (1) of this section.

(5) If conduct constitutes a contravention of 2 or more civil penalty provisions, proceedings may be instituted under this Act against a person in relation to the contravention of any one or more of those provisions. However, the person is not liable to more than one pecuniary penalty under this section in respect of the same conduct. This subsection has effect subject to subsection (6).

(6) If conduct constitutes a contravention of:

(a) section 68 or 101; and

(b) one or more other civil penalty provisions;

proceedings must not be instituted under this Act against the person in relation to the contravention of section 68 or 101, as the case may be.

(7) In this section:

this Act includes the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act.

571 Civil action for recovery of pecuniary penalties

(1) The Minister, the ACMA or the ACCC may institute a proceeding in the Federal Court for the recovery on behalf of the Commonwealth of a pecuniary penalty referred to in section 570.

(2) A proceeding under subsection (1) may be commenced within 6 years after the contravention.

(3) Despite subsection (1), the ACMA is not entitled to institute a proceeding for the recovery of a pecuniary penalty in respect of a contravention of:

(a) the carrier licence condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 369; or

(b) a carrier licence condition set out in Part 3 or 4 of Schedule 1; or

(d) the carrier licence condition set out in section 152AZ of the Trade Practices Act 1974; or

(e) the service provider rule set out in subsection 152BA(2) of the Trade Practices Act 1974.

Note 1: Section 369 deals with Rules of Conduct under section 367.

Note 2: Parts 3 and 4 of Schedule 1 deal with access to supplementary facilities and network information.

Note 3: Section 152AZ of the Trade Practices Act 1974 deals with standard access obligations.

572 Criminal proceedings not to be brought for contravention of civil penalty provisions

Criminal proceedings do not lie against a person only because the person has contravened a civil penalty provision.

Part 31A—Enforceable undertakings

572A Simplified outline

The following is a simplified outline of this Part:

• A person may give the ACMA an enforceable undertaking about compliance with this Act.

572B Acceptance of undertakings

(1) The ACMA may accept any of the following undertakings:

(a) a written undertaking given by a person that the person will, in order to comply with this Act, take specified action;

(b) a written undertaking given by a person that the person will, in order to comply with this Act, refrain from taking specified action;

(c) a written undertaking given by a person that the person will take specified action directed towards ensuring that the person does not contravene this Act, or is unlikely to contravene this Act, in the future.

(2) The undertaking must be expressed to be an undertaking under this section.

(3) The person may withdraw or vary the undertaking at any time, but only with the consent of the ACMA.

(4) The ACMA may, by written notice given to the person, cancel the undertaking.

(5) The ACMA may publish the undertaking on its Internet site.

(6) In this section:

this Act includes:

(a) the Telecommunications (Consumer Protection and Service Standards) Act 1999; and

(b) the Do Not Call Register Act 2006.

572C Enforcement of undertakings

(1) If:

(a) a person has given an undertaking under section 572B; and

(b) the undertaking has not been withdrawn or cancelled; and

the ACMA may apply to the Federal Court for an order under subsection (2).

(2) If the Federal Court is satisfied that the person has breached the undertaking, the Court may make any or all of the following orders:

(a) an order directing the person to comply with the undertaking;

(b) an order directing the person to pay to the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;

(c) any order that the Court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;

(d) any other order that the Court considers appropriate.

Part 32—Vicarious liability

573 Simplified outline

The following is a simplified outline of this Part:

• This Part deals with the proof of matters that involve employees, agents etc.

574 Proceedings under this Act

A reference in this Part to a proceeding under this Act includes a reference to:

(a) an action under this Act; and

(b) a proceeding for an offence against:

(i) this Act; or

(ii) an offence created by section 6 of the Crimes Act 1914 or Part 2.4 of the Criminal Code that relates to this Act.

574A Definition

In this Part:

this Act includes:

(a) the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act; and

(b) the Spam Act 2003 and regulations under that Act; and

575 Liability of corporations

State of mind

(1) If, in a proceeding under this Act in respect of conduct engaged in by a corporation, it is necessary to establish the state of mind of the corporation, it is sufficient to show that:

(a) a director, employee or agent of the corporation engaged in that conduct; and

(b) the director, employee or agent was, in engaging in that conduct, acting within the scope of his or her actual or apparent authority; and

Conduct

(2) If:

(a) conduct is engaged in on behalf of a corporation by a director, employee or agent of the corporation; and

(b) the conduct is within the scope of his or her actual or apparent authority;

the conduct is taken, for the purposes of a proceeding under this Act, to have been engaged in by the corporation unless the corporation establishes that it took reasonable precautions and exercised due diligence to avoid the conduct.

Extended meaning of state of mind

(3) A reference in subsection (1) to the state of mind of a person includes a reference to:

(a) the knowledge, intention, opinion, belief or purpose of the person; and

(b) the person’s reasons for the intention, opinion, belief or purpose.

Extended meaning of director

(4) A reference in this section to a director of a corporation includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, a State or a Territory.

Extended meaning of engaging in conduct

(5) A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.

576 Liability of persons other than corporations

This section does not apply to proceedings for certain offences

(1) This section does not apply to proceedings for:

(a) an offence against section 42; or

(b) an offence created by section 6 of the Crimes Act 1914 or Part 2.4 of the Criminal Code that relates to section 42 of this Act.

State of mind

(2) If, in proceedings under this Act in respect of conduct engaged in by a person other than a corporation, it is necessary to establish the state of mind of the person, it is sufficient to show that:

(a) the conduct was engaged in by an employee or agent of the person within the scope of his or her actual or apparent authority; and

(b) the employee or agent had that state of mind.

Conduct

(3) If:

(a) conduct is engaged in on behalf of a person other than a corporation by an employee or agent of the person; and

(b) the conduct is within the employee’s or agent’s actual or apparent authority;

the conduct is taken, for the purposes of a proceeding under this Act, to have been engaged in by the person unless the person establishes that he or she took reasonable precautions and exercised due diligence to avoid the conduct.

Limitation on imprisonment

(4) Despite any other provision of this Act, if:

(a) a person is convicted of an offence; and

(b) the person would not have been convicted of the offence if subsections (2) and (3) had not been in force;

the person is not liable to be punished by imprisonment for that offence.

Extended meaning of state of mind

(5) A reference in this section to the state of mind of a person includes a reference to:

(a) the knowledge, intention, opinion, belief or purpose of the person; and

(b) the person’s reasons for the intention, opinion, belief or purpose.

Extended meaning of engaging in conduct

(6) A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.

Part 34—Special provisions relating to functions and powers of the ACMA and the Attorney‑General in respect of telecommunications

579 Simplified outline

The following is a simplified outline of this Part:

• The ACMA is to have regard to certain international obligations when performing its telecommunications functions and exercising its telecommunications powers.

• The ACMA may give directions to a carrier or a service provider in connection with the ACMA’s performance of its telecommunications functions or the exercise of its telecommunications powers.

580 ACMA must have regard to conventions

(1) In performing its telecommunications functions and exercising its telecommunications powers, the ACMA must have regard to Australia’s obligations under any convention of which the Minister has notified the ACMA in writing.

(2) In this section:

convention means:

(a) a convention to which Australia is a party; or

(b) an agreement or arrangement between Australia and a foreign country;

and includes, for example, an agreement, arrangement or understanding between a Minister and an official or authority of a foreign country.

581 Power to give directions to carriers and service providers

(1) The ACMA may give written directions to:

(a) a carrier; or

(b) a service provider;

in connection with performing any of the ACMA’s telecommunications functions or exercising any of the ACMA’s telecommunications powers.

(2) This section is not limited by any other provision of a law that:

(a) confers a function or power on the ACMA; or

(b) prescribes the mode in which the ACMA is to perform a function or exercise a power; or

(c) prescribes conditions or restrictions which must be observed in relation to the performance by the ACMA of a function or the exercise by the ACMA of a power.

(3) 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 Attorney‑General, after consulting the Prime Minister and the Minister administering this Act, considers that the proposed use or supply would be, or the use or supply is, as the case may be, prejudicial to security;

the Attorney‑General may give to the carrier or carriage service provider a written direction not to use or supply, or to cease using or supplying, as the case may be, the carriage service, or all of the carriage services.

(3A) A direction under subsection (3) must relate to a carriage service generally and cannot be expressed to apply to the supply of a carriage service to a particular person, particular persons or a particular class of persons.

(4) A person must comply with a direction given to the person under subsection (1) or (3).

(5) In this section:

security has the same meaning as in the Australian Security Intelligence Organisation Act 1979.

Part 35—Miscellaneous

582 Simplified outline

The following is a simplified outline of this Part:

• Provision is made in relation to continuing offences.

• Partnerships are to be treated as persons for the purposes of this Act, the Spam Act 2003, regulations under the Spam Act 2003, the Do Not Call Register Act 2006, regulations under the Do Not Call Register Act 2006, the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act.

• Provision is made in relation to the service of documents.

• Instruments under this Act, the Spam Act 2003, the Do Not Call Register Act 2006 or the Telecommunications (Consumer Protection and Service Standards) Act 1999 may apply, adopt or incorporate certain other instruments.

• An arbitration under this Act or the Telecommunications (Consumer Protection and Service Standards) Act 1999 must not result in the acquisition of property otherwise than on just terms.

• In order to provide a constitutional safety‑net, compensation is payable in the event that the operation of this Act, the Spam Act 2003, regulations under the Spam Act 2003, the Do Not Call Register Act 2006, regulations under the Do Not Call Register Act 2006, the Telecommunications (Consumer Protection and Service Standards) Act 1999 or regulations under that Act results in the acquisition of property otherwise than on just terms.

• This Act, the Spam Act 2003, regulations under the Spam Act 2003, the Do Not Call Register Act 2006, regulations under the Do Not Call Register Act 2006, the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act do not affect the performance of State or Territory functions.

• The Minister may make grants of financial assistance to consumer bodies for purposes in connection with the representation of the interests of consumers in relation to telecommunications issues.

• The Minister may make grants of financial assistance for purposes in connection with research into the social, economic, environmental or technological implications of developments relating to telecommunications.

• The Governor‑General may make regulations for the purposes of this Act.

583 Penalties for certain continuing offences

(1) This section applies if an offence against this Act is a continuing offence (whether under this Act or because of section 4K of the Crimes Act 1914).

(2) The maximum penalty for each day that the offence continues is 10% of the maximum penalty that could be imposed in respect of the principal offence.

(3) In this section:

this Act includes the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act.

584 Procedure relating to certain continuing offences

(1) If section 43 applies to an offence against a provision of this Act, charges against the same person for any number of offences against that provision may be joined in the same information, complaint or summons if:

(a) those charges are founded on the same facts; or

(b) form, or are part of, a series of offences of the same or a similar character.

(2) If a person is convicted of 2 or more offences against such a provision, the court may impose one penalty in respect of both or all of those offences, but that penalty must not exceed the sum of the maximum penalties that could be imposed if a separate penalty were imposed in respect of each offence.

585 Treatment of partnerships

(1) This Act applies to a partnership as if the partnership were a person, but it applies with the following changes:

(a) obligations that would be imposed on the partnership are imposed instead on each partner, but may be discharged by any of the partners;

(b) any offence against this Act that would otherwise be committed by the partnership is taken to have been committed by each partner who:

(i) aided, abetted, counselled or procured the relevant act or omission; or

(ii) was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the partner).

(2) In this section:

civil penalty provision includes:

(a) a civil penalty provision within the meaning of the Spam Act 2003; and

(b) a civil penalty provision within the meaning of the Do Not Call Register Act 2006.

offence includes a breach of a civil penalty provision.

this Act includes:

(a) the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act; and

(b) the Spam Act 2003 and regulations under that Act; and

586 Giving of documents to partnerships

(1) For the purposes of this Act, if a document is given to a partner of a partnership in accordance with section 28A of the Acts Interpretation Act 1901, the document is taken to have been given to the partnership.

(2) In this section:

this Act includes:

(a) the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act; and

(b) the Spam Act 2003 and regulations under that Act; and

587 Nomination of address for service of documents

(1) For the purposes of this Act, a person may nominate an address for service in:

(a) an application made by the person under this Act; or

(b) any other document given by the person to the ACCC or the ACMA.

The address must be in Australia.

(2) For the purposes of this Act, a document may be given to the person by leaving it at, or by sending it by pre‑paid post to, the nominated address for service.

(3) Subsection (2) has effect in addition to section 28A of the Acts Interpretation Act 1901.

Note: Section 28A of the Acts Interpretation Act 1901 deals with the service of documents.

(4) In this section:

this Act includes:

(a) the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act; and

(b) the Spam Act 2003 and regulations under that Act; and

588 Service of summons or process on foreign corporations—criminal proceedings

(1) This section applies to a summons or process in any criminal proceedings under this Act, where:

(a) the summons or process is required to be served on a body corporate incorporated outside Australia; and

(b) the body corporate does not have a registered office or a principal office in Australia; and

(2) Service of the summons or process may be effected by serving it on the agent.

(3) Subsection (2) has effect in addition to section 28A of the Acts Interpretation Act 1901.

Note: Section 28A of the Acts Interpretation Act 1901 deals with the service of documents.

(4) In this section:

criminal proceeding includes a proceeding to determine whether a person should be tried for an offence.

this Act includes the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act.

589 Instruments under this Act may provide for matters by reference to other instruments

(1) An instrument under this Act may make provision in relation to a matter by applying, adopting or incorporating (with or without modifications) provisions of any Act:

(a) as in force at a particular time; or

(b) as in force from time to time.

(2) An instrument under this Act may make provision in relation to a matter by applying, adopting or incorporating (with or without modifications) matter contained in any other instrument or writing whatever:

(a) as in force or existing at a particular time; or

(b) as in force or existing from time to time;

even if the other instrument or writing does not yet exist when the instrument under this Act is made.

(3) A reference in subsection (2) to any other instrument or writing includes a reference to an instrument or writing:

(a) made by any person or body in Australia or elsewhere (including, for example, the Commonwealth, a State or Territory, an officer or authority of the Commonwealth or of a State or Territory or an overseas entity); and

(b) whether of a legislative, administrative or other official nature or of any other nature; and

for example:

(d) regulations or rules under an Act; or

(e) a State Act, a law of a Territory, or regulations or any other instrument made under such an Act or law; or

(f) an international technical standard or performance indicator; or

(g) a written agreement or arrangement or an instrument or writing made unilaterally.

(4) Nothing in this section limits the generality of anything else in it.

(5) Subsections (1) and (2) have effect despite anything in:

(a) the Acts Interpretation Act 1901; or

(b) the Legislative Instruments Act 1997.

(6) In this section:

instrument under this Act means:

(a) the regulations; or

(b) any other instrument made under this Act.

this Act includes:

(a) the Telecommunications (Consumer Protection and Service Standards) Act 1999; and

(b) Parts XIB and XIC of the Trade Practices Act 1974; and

(d) the Do Not Call Register Act 2006.

590 Arbitration—acquisition of property

(1) This section applies to a provision of this Act that authorises the conduct of an arbitration (whether by the ACCC or another person).

(2) The provision has no effect to the extent (if any) to which it purports to authorise the acquisition of property if that acquisition:

(a) is otherwise than on just terms; and

(b) would be invalid because of paragraph 51(xxxi) of the Constitution.

(3) In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

this Act includes the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act.

591 Compensation—constitutional safety net

(1) If:

(a) apart from this section, the operation of this Act would result in the acquisition of property from a person otherwise than on just terms; and

(b) the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;

the Commonwealth is liable to pay compensation of a reasonable amount to the person in respect of the acquisition.

(2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

(3) In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

this Act includes:

(a) the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act; and

(b) the Spam Act 2003 and regulations under that Act; and

592 Act not to affect performance of State or Territory functions

(1) A power conferred by this Act must not be exercised in such a way as to prevent the exercise of the powers, or the performance of the functions, of government of a State, the Northern Territory, the Australian Capital Territory or Norfolk Island.

(2) In this section:

this Act includes:

(a) the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act; and

(b) the Spam Act 2003 and regulations under that Act; and

593 Funding of consumer representation, and of research, in relation to telecommunications

(1) The Minister may, on behalf of the Commonwealth, make a grant of financial assistance to a consumer body for purposes in connection with the representation of the interests of consumers in relation to telecommunications issues.

(2) The Minister may, on behalf of the Commonwealth, make a grant of financial assistance to a person or body for purposes in connection with research into the social, economic, environmental or technological implications of developments relating to telecommunications.

(3) The terms and conditions on which financial assistance is to be granted under this section are to be set out in a written agreement between the Commonwealth and the person or body receiving the grant.

(4) An agreement under subsection (3) may be entered into by the Minister on behalf of the Commonwealth.

(5) The Minister must, as soon as practicable after the end of each financial year (and, in any event, within 6 months after the end of the financial year), cause to be prepared a report relating to the administration of this section during the financial year.

(6) The Minister must cause copies of a report prepared under subsection (5) to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the preparation of the report.

(7) Grants under this section are to be paid out of money appropriated by the Parliament for the purposes of this section.

(8) In this section:

consumer body means a body or association that represents the interests of consumers.

telecommunications means the carriage of communications by means of guided and/or unguided electromagnetic energy.

594 Regulations

(1) The Governor‑General may make regulations prescribing matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2) The regulations may prescribe penalties, not exceeding 10 penalty units, for offences against the regulations.

Schedule 1—Standard carrier licence conditions

Note: See section 61.

Part 1—Compliance with this Act

1 Compliance with this Act

(1) A carrier must comply with this Act.

(2) In this clause:

this Act includes the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act and Chapter 5 of the Telecommunications (Interception and Access) Act 1979.

Part 3—Access to supplementary facilities

16 Simplified outline

The following is a simplified outline of this Part:

• Carriers must provide other carriers with access to facilities for the purpose of enabling the other carriers to:

(a) provide competitive facilities and competitive carriage services; or

(b) establish their own facilities.

17 Access to supplementary facilities

(1) A carrier (the first carrier) must, if requested to do so by another carrier (the second carrier) give the second carrier access to facilities owned or operated by the first carrier.

(2) The first carrier is not required to comply with subclause (1) unless:

(a) the access is provided for the sole purpose of enabling the second carrier:

(i) to provide competitive facilities and competitive carriage services; or

(ii) to establish its own facilities; and

(b) the second carrier’s request is reasonable; and

(d) in a case where the facilities do not consist of customer cabling or customer equipment—the facilities:

(i) were in place on 30 June 1991; or

(ii) were not in place on 30 June 1991, and were not obtained after that date by the first carrier solely by means of commercial negotiation.

(3) For the purposes of this clause, in determining whether the second carrier’s request is reasonable, regard must be had to the question whether compliance with the request will promote the long‑term interests of end‑users of carriage services or of services supplied by means of carriage services. That question is to be determined in the same manner as it is determined for the purposes of Part XIC of the Trade Practices Act 1974.

(4) Subclause (3) is intended to limit the matters to which regard may be had.

(5) A reference in this clause to a facility is a reference to:

(a) a facility as defined by section 7; or

(b) land on which a facility mentioned in paragraph (a) is located; or

(d) customer equipment, or customer cabling, connected to a telecommunications network owned or operated by a carrier.

18 Terms and conditions of access

(1) The first carrier (within the meaning of clause 17) must comply with subclause 17(1) on such terms and conditions as are:

(a) agreed between the following parties:

(i) the first carrier;

(ii) the second carrier (within the meaning of that clause); 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 clause.

(3) The regulations may provide that, for the purposes of a particular arbitration conducted by the ACCC under this clause, 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) Subclause (3) does not, by implication, limit subclause (2).

(5) A determination made in an arbitration under this clause must not be inconsistent with a Ministerial pricing determination in force under clause 19.

19 Ministerial pricing determinations

(1) The Minister may make a written determination setting out principles dealing with price‑related terms and conditions relating to the obligations imposed by subclause 17(1). The determination is to be known as a Ministerial pricing determination.

(2) A determination under subclause (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

(3) In this clause:

price‑related terms and conditions means terms and conditions relating to price or a method of ascertaining price.

Part 4—Access to network information

20 Simplified outline

The following is a simplified outline of this Part:

• Carriers must provide other carriers with access to certain information relating to the operation of telecommunications networks.

21 Access to network information

(1) This clause applies to a carrier (the first carrier) if the first carrier supplies carriage services to another carrier (the second carrier).

(2) The first carrier must, if requested to do so by the second carrier, provide the second carrier with reasonable access to:

(a) timely and detailed information from the first carrier’s operations support systems; and

(b) timely and detailed traffic flow information.

(3) The first carrier is not required to comply with subclause (2) unless:

(a) a purpose of the access is to enable the second carrier to undertake planning, maintenance or reconfiguration of the second carrier’s telecommunications network; and

(b) the second carrier’s request is reasonable.

(4) If information is requested by the second carrier under subclause (2), the first carrier must make the information available to the second carrier as soon as practicable after the request is made.

(5) Clauses 22, 23, 24, 25 and 29 do not, by implication, limit this clause.

22 Access to information in databases

(1) This clause applies to a carrier (the first carrier) if the first carrier supplies carriage services to another carrier (the second carrier).

(2) The first carrier must, if requested to do so by the second carrier, provide the second carrier with reasonable access to timely and detailed information that:

(a) is contained in the first carrier’s databases; and

(b) relates to the manner in which the first carrier’s telecommunications network treats calls of a particular kind.

(3) The first carrier is not required to comply with subclause (2) unless:

(a) a purpose of the access is to enable the second carrier to undertake planning, maintenance or reconfiguration of the second carrier’s telecommunications network; and

(b) the second carrier’s request is reasonable.

23 Access to network planning information

(1) This clause applies to a carrier (the first carrier) if the first carrier supplies carriage services to another carrier (the second carrier).

(2) The first carrier must, if requested to do so by the second carrier, provide the second carrier with timely and detailed telecommunications network planning information.

(3) The information is to include (but is not limited to) information relating to the following:

(a) the volume or characteristics of traffic being offered by the first carrier to a telecommunications network of the second carrier;

(b) the telecommunications network performance standards (if any) that have been set by the first carrier.

(4) The first carrier is not required to comply with subclause (2) unless:

(a) a purpose of the provision of the information is to enable the second carrier to undertake planning for its own telecommunications network; and

(b) the second carrier’s request is reasonable.

(5) If information is requested by the second carrier under subclause (2), the first carrier must make the information available to the second carrier as soon as practicable after the request is made.

24 Access to information about likely changes to network facilities—completion success rate of calls

(1) This clause applies to a carrier (the first carrier) if the first carrier supplies carriage services to another carrier (the second carrier).

(2) The first carrier must, if requested to do so by the second carrier, provide the second carrier with timely and detailed information that:

(a) relates to likely changes to facilities on a telecommunications network of the first carrier; and

(b) will affect the completion success rate of calls offered by the second carrier.

(3) The first carrier is not required to comply with subclause (2) unless:

(a) a purpose of the provision of the information is to enable the second carrier to undertake planning for its own telecommunications network; and

(b) the second carrier’s request is reasonable.

25 Access to quality of service information etc.

(1) This clause applies to a carrier (the first carrier) if the first carrier supplies carriage services to another carrier (the second carrier).

(2) The first carrier must, if requested to do so by the second carrier, provide the second carrier with timely and detailed information relating to:

(a) conditions affecting the quality of service experienced by customers of the second carrier; and

(b) localisation of telecommunications network conditions affecting traffic offered by the second carrier to the first carrier’s telecommunications network; and

(c) routing information allowing the second carrier to determine in which telecommunications network calls have failed; and

(d) identification of switching or other equipment or facilities in each of the first carrier’s telecommunications networks which contribute to a level of uncompleted calls, affecting the second carrier’s offered traffic, beyond the threshold agreed by the first carrier and the second carrier and consistent with terms used in the relevant ITU(T) Recommendations; and

(e) periodic summaries, in relation to the second carrier’s traffic, of unsuccessful call ratios across the first carrier’s telecommunications network, categorised by cause of call failure and including separate identification of telecommunications network difficulties and congestion; and

(f) telecommunications network control actions taken by the first carrier which would affect the completion success rate of calls offered to the first carrier by the second carrier; and

(g) such other matters (if any) as are specified in the regulations.

(3) The first carrier is not required to comply with subclause (2) unless the second carrier’s request is reasonable.

(5) In this clause:

ITU(T) Recommendations means the E500, E600 and E700 series of recommendations dealing with quality of service, telecommunications network management and traffic engineering promulgated by the International Telecommunication Union, being recommendations in force on:

(a) 1 July 1997; or

(b) such later date (if any) as is specified in the regulations.

26 Security procedures

(1) A carrier (the first carrier) is not required to give another carrier (the second carrier) information, or access to information, under clause 21, 22, 23, 24 or 25 unless the second carrier has in place security procedures:

(a) agreed between the first carrier and the second carrier; or

(b) failing agreement—determined in writing by the ACCC.

(2) For the purposes of subclause (1), security procedures are procedures designed to protect the confidentiality of information.

27 Terms and conditions of compliance

(1) The first carrier (within the meaning of clause 21, 22, 23, 24 or 25) must comply with a requirement imposed on the first carrier by that clause on such terms and conditions as are:

(a) agreed between the following parties:

(i) the first carrier;

(ii) the second carrier (within the meaning of that clause); 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 clause.

(4) Subclause (3) does not, by implication, limit subclause (2).

(5) A determination made in an arbitration under this clause must not be inconsistent with a Ministerial pricing determination in force under clause 28.

27A Code relating to access to information

(1) The ACCC may, by written instrument, make a Code setting out conditions that are to be complied with in relation to the provision of information, or access to information, under clause 21, 22, 23, 24 or 25.

(2) A carrier must comply with the Code.

(3) This clause does not, by implication, limit a power conferred by or under this Act to make an instrument.

(4) This clause does not, by implication, limit the matters that may be dealt with by codes or standards referred to in Part 6.

(5) Subclauses (3) and (4) do not, by implication, limit subsection 33(3B) of the Acts Interpretation Act 1901.

(6) An instrument under subclause (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

28 Ministerial pricing determinations

(1) The Minister may make a written determination setting out principles dealing with price‑related terms and conditions relating to an obligation imposed by clause 21, 22, 23, 24 or 25. The determination is to be known as a Ministerial pricing determination.

(2) A determination under subclause (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

(3) In this clause:

price‑related terms and conditions means terms and conditions relating to price or a method of ascertaining price.

29 Consultation about reconfiguration etc.

(1) This clause applies to a carrier (the first carrier) if the first carrier supplies carriage services to another carrier (the second carrier).

(2) The first carrier must, if requested to do so by the second carrier, consult with the second carrier before modifying or reconfiguring the first carrier’s telecommunications network.

(3) The first carrier is not required to comply with subclause (2) unless the modification or reconfiguration has a bearing on the second carrier’s:

(a) telecommunications network planning activities; or

(b) telecommunications network maintenance activities; or

(4) The first carrier must comply with the requirement set out in subclause (2) on such terms and conditions as are:

(a) agreed between the following parties:

(i) the first carrier;

(ii) the second carrier; 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.

(5) The regulations may make provision for and in relation to the conduct of an arbitration under this clause.

(6) The regulations may provide that, for the purposes of a particular arbitration conducted by the ACCC under this clause, 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) Subclause (6) does not, by implication, limit subclause (5).

29A Code relating to consultation

(1) The ACCC may, by written instrument, make a Code setting out conditions that are to be complied with in relation to consultations under clause 29.

(2) The Code may specify the manner and form in which a consultation is to occur.

(3) Subclause (2) does not, by implication, limit subclause (1).

(4) A carrier must comply with the Code.

(5) This clause does not, by implication, limit a power conferred by or under this Act to make an instrument.

(6) This clause does not, by implication, limit the matters that may be dealt with by codes or standards referred to in Part 6.

(7) Subclauses (5) and (6) do not, by implication, limit subsection 33(3B) of the Acts Interpretation Act 1901.

(8) An instrument under subclause (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Part 5—Access to telecommunications transmission towers and to underground facilities

30 Simplified outline

The following is a simplified outline of this Part:

• Carriers must provide other carriers with access to:

(a) telecommunications transmission towers; and

(b) the sites of telecommunications transmission towers; and

31 Definitions

In this Part:

business day means a day that is not a Saturday, a Sunday or a public holiday in the place concerned.

eligible underground facility means an underground facility that is used, installed ready to be used, or intended to be used, to hold lines.

site means:

(a) land; or

(b) a building on land; or

telecommunications transmission tower means:

(a) a tower; or

(b) a pole; or

(d) a similar structure;

used to supply a carriage service by means of radiocommunications.

32 Extended meaning of access

(1) For the purposes of this Part, giving access to a tower includes replacing the tower with another tower located on the same site and giving access to the replacement tower.

(2) For the purposes of this Part, giving access to a site on which is situated a tower includes replacing the tower with another tower located on the site.

33 Access to telecommunications transmission towers

(1) A carrier (the first carrier) must, if requested to do so by another carrier (the second carrier), give the second carrier access to a telecommunications transmission tower owned or operated by the first carrier.

(2) The first carrier is not required to comply with subclause (1) unless:

(a) the access is provided for the sole purpose of enabling the second carrier to install a facility used, or for use, in connection with the supply of a carriage service by means of radiocommunications; and

(b) the second carrier gives the first carrier reasonable notice that the second carrier requires the access.

(3) The first carrier is not required to comply with subclause (1) in relation to a particular telecommunications transmission tower if there is in force a written certificate issued by the ACMA stating that, in the ACMA’s opinion, compliance with subclause (1) in relation to that tower is not technically feasible.

(4) In determining whether compliance with subclause (1) in relation to a tower is technically feasible, the ACMA must have regard to:

(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 tower; 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 a facility situated on the tower; and

(ii) making alterations to the tower; and

(d) such other matters (if any) as the ACMA considers relevant.

(5) If the ACMA receives a request to make a decision about the issue of a certificate under subclause (3), the ACMA must use its best endeavours to make that decision within 10 business days after the request was made.

34 Access to sites of telecommunications transmission towers

(1) A carrier (the first carrier) must, if requested to do so by another carrier (the second carrier), give the second carrier access to a site if:

(a) either:

(i) the site is owned, occupied or controlled by the first carrier; or

(ii) the first carrier has a right (whether conditional or unconditional) to use the site; and

(b) there is situated on the site a telecommunications transmission tower owned or operated by the first carrier.

(2) The first carrier is not required to comply with subclause (1) unless:

(b) the second carrier gives the first carrier reasonable notice that the second carrier requires the access.

(3) The first carrier is not required to comply with subclause (1) in relation to a particular site if there is in force a written certificate issued by the ACMA stating that, in the ACMA’s opinion, compliance with subclause (1) in relation to that site is not technically feasible.

(4) In determining whether compliance with subclause (1) in relation to a site is technically feasible, the ACMA must have regard to:

(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, a facility situated on the site; 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 a facility situated on the site; and

(ii) making alterations to a facility situated on the site; and

(d) such other matters (if any) as the ACMA considers relevant.

35 Access to eligible underground facilities

(1) A carrier (the first carrier) must, if requested to do so by another carrier (the second carrier), give the second carrier access to an eligible underground facility owned or operated by the first carrier.

(2) The first carrier is not required to comply with subclause (1) unless:

(a) the access is provided for the sole purpose of enabling the second carrier to install a line used, or for use, in connection with the supply of a carriage service; and

(b) the second carrier gives the first carrier reasonable notice that the second carrier requires the access.

(3) The first carrier is not required to comply with subclause (1) in relation to a particular eligible underground facility if there is in force a written certificate issued by the ACMA stating that, in the ACMA’s opinion, compliance with subclause (1) in relation to that facility is not technically feasible.

(4) In determining whether compliance with subclause (1) in relation to an eligible underground facility is technically feasible, the ACMA must have regard to:

(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 eligible underground 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 eligible underground facility; and

(ii) making alterations to the eligible underground facility; and

(d) such other matters (if any) as the ACMA considers relevant.

36 Terms and conditions of access

(1) The first carrier (within the meaning of clause 33) must comply with subclause 33(1) on such terms and conditions as are:

(a) agreed between the following parties:

(i) the first carrier;

(ii) the second carrier (within the meaning of that clause); 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 first carrier (within the meaning of clause 34) must comply with subclause 34(1) on such terms and conditions as are:

(a) agreed between the following parties:

(i) the first carrier;

(ii) the second carrier (within the meaning of that clause); 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 first carrier (within the meaning of clause 35) must comply with subclause 35(1) on such terms and conditions as are:

(a) agreed between the following parties:

(i) the first carrier;

(ii) the second carrier (within the meaning of that clause); 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.

(4) The regulations may make provision for and in relation to the conduct of an arbitration under this clause.

(5) The regulations may provide that, for the purposes of a particular arbitration conducted by the ACCC under this clause, 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.

(6) Subclause (5) does not, by implication, limit subclause (4).

37 Code relating to access

(1) The ACCC may, by written instrument, make a Code setting out conditions that are to be complied with in relation to the provision of access under this Part.

(2) A carrier must comply with the Code.

(3) This clause does not, by implication, limit a power conferred by or under this Act to make an instrument.

(4) This clause does not, by implication, limit the matters that may be dealt with by codes or standards referred to in Part 6.

(5) Subclauses (3) and (4) do not, by implication, limit subsection 33(3B) of the Acts Interpretation Act 1901.

(6) An instrument under subclause (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

38 Industry co‑operation about sharing of sites and eligible underground facilities

A carrier, in planning the provision of future carriage services, must co‑operate with other carriers to share sites and eligible underground facilities.

39 This Part does not limit Part 3 of this Schedule

This Part does not, by implication, limit Part 3 of this Schedule.

Part 6—Inspection of facilities etc.

40 Simplified outline

The following is a simplified outline of this Part:

• Carriers must keep records about their designated overhead lines, telecommunications transmission towers and underground facilities.

• Carriers must inspect their facilities regularly.

• Carriers must investigate their facilities if there are reasonable grounds to suspect that the facilities are likely to endanger:

(a) the health or safety of persons; or

(b) property.

• Carriers must take any remedial action that is reasonably required following such an inspection or investigation.

41 Records relating to underground facilities

(1) If a carrier owns or operates designated overhead lines, the carrier must keep and maintain records of the kind and location of those lines.

(2) If a carrier owns or operates telecommunications transmission towers, the carrier must keep and maintain records of the kind and location of those towers.

(3) If a carrier owns or operates underground facilities, the carrier must keep and maintain records of:

(a) the kind and location of those facilities; and

(b) if any of those facilities is an eligible underground facility—the capacity of that facility to hold further lines.

(4) A carrier must not, in purported compliance with subclause (1), (2) or (3), make a record of any matter or thing in such a way that it does not correctly record the matter or thing.

(5) In this clause:

designated overhead line has the same meaning as in Schedule 3.

eligible underground facility means an underground facility that is used, installed ready to be used, or intended to be used, to hold lines.

telecommunications transmission tower means:

(a) a tower; or

(b) a pole; or

(d) a similar structure;

used to supply a carriage service by means of radiocommunications.

42 Regular inspection of facilities

(1) If a facility is owned or operated by a carrier, the carrier must inspect that facility regularly.

(2) In determining the regularity of inspections required by subclause (1), regard must be had to good engineering practice.

43 Prompt investigation of dangerous facilities

If:

(a) a facility is owned or operated by a carrier; and

(b) the carrier has reasonable grounds to suspect that the condition of the facility is likely to endanger:

(i) the health or safety of persons; or

(ii) property;

the carrier must investigate promptly the condition of the facility.

44 Remedial action

(1) A carrier must take any remedial action that is reasonably required following an inspection under clause 42.

(2) A carrier must take any remedial action that is reasonably required following an investigation under clause 43.

(3) A carrier must comply with subclause (1) or (2) as soon as practicable after the carrier becomes aware of the need to take the remedial action concerned.

Part 7—Any‑to‑any connectivity

44A Simplified outline

The following is a simplified outline of this Part:

• If a carriage service provider’s telecommunications network is interconnected with a carrier’s telecommunications network, the carrier must obtain a designated interconnection service from the carriage service provider for the purpose of ensuring any‑to‑any connectivity.

45 Definitions

In this Part:

active declared service has the same meaning as in section 152AR of the Trade Practices Act 1974.

designated interconnection service has the meaning given by clause 47.

eligible service has the same meaning as in section 152AL of the Trade Practices Act 1974.

46 Carriers must obtain designated interconnection services from carriage service providers for the purpose of ensuring any‑to‑any connectivity

(1) If:

(a) a carrier owns, or supplies a carriage service over, a telecommunications network (the carrier’s telecommunications network); and

(b) a carriage service provider supplies a carriage service over a telecommunications network (the carriage service provider’s telecommunications network); and

(i) the carriage service provider’s telecommunications network is interconnected with the carrier’s telecommunications network;

(ii) the carriage service provider’s telecommunications network is to be interconnected with the carrier’s telecommunications network;

(iii) the carriage service provider is seeking to have the carriage service provider’s telecommunications network interconnected with the carrier’s telecommunications network; and

(d) the carriage service provider requests the carrier to obtain from the carriage service provider a designated interconnection service for the purpose of ensuring that each end‑user who is:

(i) connected to the carrier’s telecommunications network; and

(ii) supplied with a carriage service that involves communication between end‑users;

is able to communicate, by means of that carriage service, with an end‑user who is connected to the carriage service provider’s telecommunications network;

the carrier must obtain the designated interconnection service from the carriage service provider.

(2) The designated interconnection service is to be obtained on such terms and conditions as are:

(a) agreed between the carrier and the carriage service provider; 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 clause.

(4) The regulations may provide that, for the purposes of a particular arbitration conducted by the ACCC under this clause, 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) Subclause (4) does not, by implication, limit subclause (3).

47 Designated interconnection services

(1) The Minister may, by written instrument, declare that a specified eligible service is a designated interconnection service for the purposes of this Part.

(2) A declaration under subclause (1) has effect accordingly.

(3) Before making a declaration under subclause (1) in relation to a service that is not an active declared service, the Minister must, by writing, request the ACCC to give a written report about whether the proposed declaration would promote the achievement of the objective of any‑to‑any connectivity (as defined by subsection 152AB(8) of the Trade Practices Act 1974).

(4) The ACCC must give the report to the Minister within 30 days after receiving the request.

(5) In deciding whether to make the declaration, the Minister must have regard to:

(a) the ACCC’s report; and

(b) such other matters (if any) as the Minister considers relevant.

(6) A declaration under subclause (1) is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

Part 8—Operational separation of Telstra

Division 1—Introduction

48 Aim and objects

Aim

(1) The aim of this Part is to promote the principles of transparency and equivalence in relation to the supply by Telstra of wholesale eligible services.

Objects

(2) The objects of this Part are as follows:

(a) to promote a principle of equivalence in relation to the supply by Telstra of designated services to:

(i) Telstra’s wholesale customers; and

(ii) Telstra’s retail business units;

(b) to require Telstra to maintain the following business units:

(i) one or more wholesale business units;

(ii) one or more retail business units;

(iii) one or more key network services business units;

(i) Telstra’s wholesale business units (considered as a group); and

(ii) Telstra’s retail business units (considered as a group); and

(iii) Telstra’s key network services business units (considered as a group);

(d) to promote responsiveness by Telstra in meeting its wholesale customers’ needs in relation to eligible services;

(e) to require Telstra to have a plan (to be known as the final operational separation plan) to achieve the aim and other objects of this Part;

(f) to ensure that Telstra has systems, procedures and processes that promote and facilitate:

(i) compliance with the final operational separation plan; and

(ii) monitoring of, and reporting on, compliance with the plan; and

(iii) the development of performance measures relating to compliance with the plan; and

(iv) audit, and other checks, of compliance with the plan;

(g) to ensure that the achievement of:

(i) the aim of this Part; and

(ii) any of the above objects;

does not impair Telstra’s ability to compete on a fair and efficient basis.

(3) In determining the principle of equivalence covered by paragraph (2)(a), regard must be had to:

(a) terms and conditions relating to price or a method of ascertaining price; and

(b) other terms and conditions.

(4) Subclause (3) does not limit the matters to which regard may be had.

(5) In determining, for the purposes of paragraph (2)(d), the needs of Telstra’s wholesale customers in relation to eligible services, regard must be had to the following needs:

(a) the need for those customers to be supplied by Telstra with eligible services on a basis that allows fair competition with eligible services supplied by Telstra’s retail business units;

(b) the need for disputes between those customers and Telstra about eligible services to be resolved in a fair and timely manner;

(d) the need to be kept informed of relevant issues and developments in connection with:

(i) Telstra’s network, in so far as it relates to the supply of eligible services; and

(ii) eligible services supplied by Telstra.

(6) Subclause (5) does not limit the matters to which regard may be had.

Note: See also subsection 61(2).

49 Simplified outline

The following is a simplified outline of this Part:

• Telstra must prepare a draft operational separation plan. The plan must be directed towards the achievement of the aim and objects of this Part.

• A final operational separation plan is a draft operational separation plan that has been approved by the Minister.

• If Telstra has contravened, or is contravening, a final operational separation plan, the Minister may require Telstra to prepare a draft rectification plan.

• A final rectification plan is a draft rectification plan that has been approved by the Minister.

• If a final rectification plan is in force, Telstra must comply with the plan.

50 Definitions

In this Part:

business unit means a part of Telstra.

declared network service has the meaning given by clause 50B.

designated service has the meaning given by clause 50A.

draft operational separation plan means a draft operational separation plan under Division 2.

draft rectification plan means a draft rectification plan under Division 3.

eligible service has the same meaning as in section 152AL of the Trade Practices Act 1974.

final operational separation plan means a final operational separation plan under Division 2.

final rectification plan means a final rectification plan under Division 3.

key network services business unit means a business unit of Telstra that supplies the following in relation to eligible services:

(a) fault detection, handling and rectification;

(b) service activation and provisioning;

retail business unit means a business unit by which Telstra deals with its retail customers.

supply, in relation to a service, includes supply by Telstra of the service to itself.

wholesale business unit means a business unit by which Telstra deals with its wholesale customers.

50A Designated services

(1) For the purposes of this Part, a designated service is an eligible service specified in a written determination made by the Minister under this subclause.

(2) The Minister must not make a determination under subclause (1) that specifies a service that is not an active declared service (within the meaning of section 152AR of the Trade Practices Act 1974) unless:

(a) the determination is the first determination made under subclause (1); or

(b) Telstra has given written consent to the making of the determination.

(3) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a power conferred on the Minister by subclause (1), but it applies with the change set out in subclause (4).

(4) The Minister must not vary a determination under subclause (1) so as to specify a service that is not an active declared service (within the meaning of section 152AR of the Trade Practices Act 1974) unless Telstra has given written consent to the variation of the determination.

(5) Before making a determination under subclause (1), the Minister must consult Telstra.

(6) A determination under subclause (1) is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

50B Declared network services

(1) For the purposes of this Part, a declared network service is a service specified in a written determination made by the Minister under this subclause.

(2) A determination under subclause (1) is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

50C Notional contracts

For the purposes of this Part:

(a) a notional contract (however described) between any of Telstra’s business units is to be treated as if it were an actual contract; and

(b) any terms and conditions (whether or not relating to price or a method of ascertaining price) in such a notional contract are to be treated as if they were actual terms and conditions.

Division 2—Operational separation plan

51 Contents of draft or final operational separation plan

(1) A draft or final operational separation plan must:

(a) be directed towards the achievement of the aim and objects of this Part; and

(b) contain provisions requiring Telstra:

(i) within a specified period after the end of each financial year, to prepare a report about the extent to which Telstra complied with the plan during that year; and

(ii) to give the report to the Minister; and

(iii) to make a copy of the report, or extracts from the report, available on Telstra’s Internet site; and

(i) within a specified period after the end of each financial year, to arrange for an independent audit of the extent to which Telstra complied with the plan during that year, and to obtain a report of that independent audit; and

(ii) to give the report to the Minister; and

(iii) to make a copy of the report, or extracts from the report, available on Telstra’s Internet site; and

(d) comply with such requirements (if any) as are specified in a written determination made by the Minister under this paragraph.

(2) A paragraph (1)(d) requirement may deal with the manner in which a paragraph (1)(b) or (c) requirement is to be met. This subclause does not limit paragraph (1)(d).

(3) A draft or final operational separation plan may make provision for, or in relation to, a matter by empowering the Minister, the ACCC or the ACMA to make decisions of an administrative character.

(4) A determination under paragraph (1)(d) is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

Note: A final operational separation plan is a draft operational separation plan that has been approved by the Minister—see clause 55.

52 Draft operational separation plan to be given to Minister

Telstra must give the Minister a draft operational separation plan within 90 days after the commencement of this clause.

53 Public comment—draft operational separation plan

(1) Before giving the Minister a draft operational separation plan under clause 52, Telstra must:

(a) cause to be published in a newspaper circulating generally in each State, the Australian Capital Territory and the Northern Territory a notice:

(i) stating that Telstra has prepared a preliminary version of the draft plan; and

(ii) stating that a copy of the preliminary version will be available on Telstra’s Internet site throughout the period of 30 days after the publication of the notice; and

(iii) inviting persons to give written comments about the preliminary version to Telstra within 30 days after the publication of the notice; and

(b) make a copy of the preliminary version available on Telstra’s Internet site in accordance with the notice.

(2) If persons have given written comments about the preliminary version in accordance with the notice, Telstra must ensure that the draft plan given to the Minister is accompanied by a copy of those comments.

54 Approval of draft by Minister

(1) This clause applies if Telstra gives the Minister a draft operational separation plan.

(2) The Minister must:

(a) approve the plan; or

(b) refuse to approve the plan.

(3) In deciding whether to approve the plan, the Minister must have regard to the following matters:

(a) the extent to which the plan is likely to achieve the aim and objects of this Part; and

(b) such other matters (if any) as are specified in a written determination made by the Minister under this paragraph.

(4) Subclause (3) does not limit the matters to which the Minister may have regard.

(5) If the Minister neither approves, nor refuses to approve, the plan before the end of the period of 90 days after the day on which the Minister received the draft plan, the Minister is taken, at the end of that period, to have approved the plan under subclause (2).

(6) As soon as practicable after deciding whether to approve the plan, the Minister must notify Telstra in writing of the decision.

(7) If the Minister refuses to approve the plan, the Minister must notify Telstra in writing of the Minister’s reasons for the refusal.

(8) If the Minister refuses to approve the plan, the Minister may, by written notice given to Telstra, direct Telstra to:

(a) vary the draft plan in accordance with the direction; and

(b) give the varied draft plan to the Minister under subclause (1).

Telstra must give the varied draft plan to the Minister within 60 days after the day on which the direction was given.

(9) A determination under paragraph (3)(b) is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

(10) A direction under subclause (8) is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

55 Effect of approval

(1) If the Minister approves a draft operational separation plan, the plan becomes a final operational separation plan. The final operational separation plan comes into force at the time when Telstra is notified of the approval.

(2) A final operational separation plan is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.

(3) Compliance with a final operational separation plan is not a condition of Telstra’s carrier licence.

56 Variation of final operational separation plan

(1) This clause applies if:

(a) a final operational separation plan is in force; and

(b) Telstra gives the Minister a draft variation of the plan.

(2) The Minister must:

(a) approve the variation; or

(b) refuse to approve the variation.

(3) In deciding whether to approve the variation, the Minister must have regard to the following matters:

(a) the extent to which the final operational separation plan, as proposed to be varied, is likely to achieve the aim and objects of this Part; and

(b) such other matters (if any) as are specified in a written determination made by the Minister under this paragraph.

(4) Subclause (3) does not limit the matters to which the Minister may have regard.

(5) If the Minister neither approves, nor refuses to approve, the variation before the end of the period of 90 days after the day on which the Minister received the draft variation, the Minister is taken, at the end of that period, to have approved the variation under subclause (2).

(6) As soon as practicable after deciding whether to approve the variation, the Minister must notify Telstra in writing of the decision.

(7) If the Minister refuses to approve the variation, the Minister must notify Telstra in writing of the Minister’s reasons for the refusal.

(8) If the Minister approves the variation, the plan is varied accordingly.

(9) A determination under paragraph (3)(b) is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

(10) A variation of a final operational separation plan is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.

56A Minister may direct Telstra to vary final operational separation plan

(1) This clause applies if a final operational separation plan is in force.

(2) The Minister may, by written notice given to Telstra, direct Telstra to:

(a) prepare a draft variation of the plan in accordance with the direction; and

(b) give the draft variation to the Minister under subclause 56(1).

Telstra must give the draft variation to the Minister within 60 days after the day on which the direction was given.

(3) A direction under this clause is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

57 Public comment—variation of final operational separation plan

(1) This clause applies to a draft variation of a final operational separation plan unless:

(a) the draft variation was given to the Minister as a result of a direction under subclause 56A(2); or

(b) both:

(i) Telstra had previously given the Minister a written outline of the draft variation; and

(ii) the Minister, by written notice given to Telstra, had informed Telstra that the Minister was satisfied that the draft variation was of a minor nature.

(2) Before giving the Minister a draft variation of a final operational separation plan under subclause 56(1), Telstra must:

(a) cause to be published in a newspaper circulating generally in each State, the Australian Capital Territory and the Northern Territory a notice:

(i) stating that Telstra has prepared a preliminary version of the draft variation; and

(ii) stating that a copy of the preliminary version will be available on Telstra’s Internet site throughout the period of 20 days after the publication of the notice; and

(iii) inviting persons to give written comments about the preliminary version to Telstra within 20 days after the publication of the notice; and

(b) make a copy of the preliminary version available on Telstra’s Internet site in accordance with the notice.

(3) If persons have given written comments about the preliminary version in accordance with the notice, Telstra must ensure that the draft variation given to the Minister is accompanied by a copy of those comments.

(4) A notice under subparagraph (1)(b)(ii) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003.

58 Publication of final operational separation plan

(1) As soon as practicable after a final operational separation plan comes into force, Telstra must make a copy of the plan available on Telstra’s Internet site.

(2) As soon as practicable after a variation of a final operational separation plan comes into force, Telstra must make a copy of the varied final operational separation plan available on Telstra’s Internet site.

Division 3—Rectification plan

59 Contents of draft or final rectification plan

(1) The following matters must be set out in each draft or final rectification plan that relates to a contravention of a final operational separation plan:

(a) the action to be taken by Telstra to ensure that the contravention ceases;

(b) the action to be taken by Telstra directed towards ensuring that there is no repetition of the contravention in the future;

(c) the action to be taken by Telstra by way of reporting to the Minister on any action taken by it as mentioned in paragraph (a) or (b).

Note: A final rectification plan is a draft rectification plan that has been approved by the Minister—see clause 62.

(2) A draft or final rectification plan may make provision for, or in relation to, a matter by empowering the Minister, the ACCC or the ACMA to make decisions of an administrative character.

60 Draft rectification plan to be given to Minister

(1) This clause applies if Telstra has contravened, or is contravening, a final operational separation plan.

(2) The Minister may give Telstra a written direction requiring Telstra to give the Minister a draft rectification plan that relates to that contravention.

(3) Telstra must comply with the direction within 90 days after the day on which the direction was given.

(4) A direction under this clause is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

61 Approval of draft by Minister

(1) This clause applies if Telstra gives the Minister a draft rectification plan that relates to a particular contravention.

(2) The Minister must:

(a) approve the plan; or

(b) refuse to approve the plan.

(3) In deciding whether to approve the plan, the Minister must have regard to the following matters:

(a) the extent to which the action proposed to be taken by Telstra is likely to ensure that:

(i) the contravention ceases; and

(ii) there is no repetition of the contravention in the future;