Extract of Explanatory Memorandum
(Circulated by authority of the Minister for Communications, Cyber Safety and the Arts, the Honourable Paul Fletcher MP)NOTES ON CLAUSES
Clause 1 - Short title
Clause 1 provides that the Bill, when enacted, may be cited as the Telecommunications Legislation Amendment (Competition and Consumer) Act 2019.
Clause 2 - Commencement
Clause 2 provides for the commencement of provisions in the Bill when enacted.
Item 1 of the table at subclause 2(1) provides that clauses 1-4 of the Bill and any other provisions not covered in the table provided at subclause 2(1), would commence on the day on which the Act receives the Royal Assent.
Item 2 of the table provides that Schedule 1 would commence on the day after the Act receives the Royal Assent.
Item 3 of the table provides that Schedule 2 to the Bill would commence the day after the end of the period of 3 months beginning on the day the Act received the Royal Assent.
Item 4 of the table provides that the provisions in Part 1, Division 1 of Schedule 3 to the Bill would commence on the day after the Act receives the Royal Assent.
Item 5 of the table provides that the provisions in Part 1, Division 2 of Schedule 3 to the Bill would commence on 1 July 2020 or a day to be fixed by Proclamation (whichever is earlier). This is intended to provide industry, the Minister and the ACMA with sufficient time to finalise preparation for the SIP regime's operation in advance of its start, while allowing for its earlier commencement by Proclamation if that work is completed sooner.
Item 6 of the table provides that the provisions in Part 2 of Schedule 3 to the Bill would commence immediately after Schedule 3 (Part 1, Division 2) commences.
Item 7 of the table provides that the provisions in Schedules 4 and 5 to the Bill would commence on the day after the Act receives the Royal Assent.
Clause 3 - Schedules
Subclause 3(1) provides that legislation that is specified in a Schedule to the Bill is amended or repealed as set out in the applicable items in that Schedule, and any other item in a Schedule has effect according to its terms. There are five Schedules to this Bill.
Subclause 3(2) provides that the amendment of the CLCs Declaration does not prevent the declaration, as amended or inserted by the Bill, and any other provisions of the declaration from being varied or revoked by the responsible Minister. The amendments to the CLCs Declaration are contained in Schedule 2 to the Bill (see subsection 13(5) of the Legislation Act). Similarly, subclause 3(3) provides that the provisions of the Legislation (Exemptions and Other Matters) Regulation 2015 amended or inserted by the Bill, and any other provisions of that instrument, may be amended or repealed by regulations made under section 62 of the Legislation Act (see subsection 13(5) of the Legislation Act).
Schedule 2 - Local access lines
Schedule 2 to the Bill contains proposed amendments to the CLCs Declaration (Items 1 to 7 inclusive), the CCA (Items 11 to 14 inclusive), the Legislation (Exemptions and Other Matters) Regulation 2015 (Item 15) and the Tel Act (Items 17 to 87 inclusive). Due to amendments in drafting, there is no Item 9, 10 or 16.
Consistent with the Government's decision to grandfather existing arrangements, the amendments to the CLCs Declaration provide for the Minister to effectively preserve the operation of the declaration for certain networks. The CLCs Declaration applies to certain carriers in respect of specific local access lines that are not subject to the current Part 8 of the Tel Act. The Minister would have the power to make the licence conditions set out in the declaration to continue to apply to lines forming part of a network:
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- that came into existence before the designated commencement date; and
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- that has not been extended, altered or upgraded on, or after, the designated commencement date; and
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- where no functional separation undertaking given by the carrier is in force (in accordance with Part 8 of the Tel Act as amended by this Bill).
The amendments to the CCA would ensure that the ACCC's powers to make record-keeping rules extend to arrangements under Part 8 of the Tel Act.
The amendment to the Legislation (Exemptions and Other Matters) Regulation 2015 would exempt the CLCs Declaration from automatic sunsetting (though it would not prevent the Minister from revoking or varying the CLCs Declaration in the future).
The amendments to the Tel Act would amend Part 8 to give effect to new structural separation and non-discrimination obligations and establish the framework for functional separation undertakings.
Legislation (Exemptions and Other Matters) Regulation 2015
Item 15 - Section 12 (table Item 61, column headed "Legislative instrument", after paragraph (a))
Item 15 adds the CLCs Declaration to the table in section 12 of the Legislation (Exemption and Other Matters) Regulation 2015 setting out legislative instruments that are exempt from rules relating to sunsetting in the Legislation Act. This means that without further amendments, the CLCs Declaration will operate indefinitely.