Telecommunications Legislation Amendment (Competition and Consumer) Act 2020 (47 of 2020)

Schedule 2   Local access lines

Telecommunications Act 1997

42   After section 143

Insert:

143AA Judicial enforcement of prohibitions

(1) If the Federal Court is satisfied that a person has, on or after the designated commencement date, contravened subsection 142C(2) or (4) or 143(2) or (5), the Court may, on the application of:

(a) the ACCC; or

(b) a carrier; or

(c) a carriage service provider;

make all or any of the following orders:

(d) an order directing the person to comply with that subsection;

(e) an order directing the person to compensate any other person (who may be the applicant) who has suffered loss or damage as a result of the contravention;

(f) any other order that the Court thinks appropriate.

(2) The Federal Court may discharge or vary an order granted under this section.

Division 2A - Exemptions

143A Class exemptions

Determination providing for exemption

(1) The ACCC may, by legislative instrument, determine that, if:

(a) a person is included in a specified class of persons; and

(b) the person has, by written notice given to the ACCC, elected to be bound by the determination; and

(c) the person has not, by written notice given to the ACCC, cancelled the election; and

(d) in a case where the person is not a member of an associated group - the number of residential customers to whom the person supplies fixed-line carriage services does not exceed:

(i) 2,000; or

(ii) if a higher number (not exceeding 12,000) is specified in the regulations - that higher number; and

(e) in a case where the person is a member of an associated group - the total number of residential customers to whom the members of the group supply fixed-line carriage services does not exceed:

(i) 2,000; or

(ii) if a higher number (not exceeding 12,000) is specified in the regulations - that higher number;

the person is exempt from section 142C.

Note: For associated group , see subsection (10) of this section.

(2) The ACCC may, by legislative instrument, determine that, if:

(a) a person is included in a specified class of persons; and

(b) the person has, by written notice given to the ACCC, elected to be bound by the determination; and

(c) the person has not, by written notice given to the ACCC, cancelled the election; and

(d) in a case where the person is not a member of an associated group - the number of residential customers to whom the person supplies fixed-line carriage services does not exceed:

(i) 2,000; or

(ii) if a higher number (not exceeding 12,000) is specified in the regulations - that higher number; and

(e) in a case where the person is a member of an associated group - the total number of residential customers to whom the members of the group supply fixed-line carriage services does not exceed:

(i) 2,000; or

(ii) if a higher number (not exceeding 12,000) is specified in the regulations - that higher number;

the person is exempt from section 143.

Note: For associated group , see subsection (10) of this section.

(3) A determination under subsection (1) or (2) is subject to the following conditions and limitations:

(a) the person must ensure that a designated carriage service is available for supply to wholesale customers, or prospective wholesale customers, of the person;

(b) the person must not discriminate between the person's wholesale customers, or the person's prospective wholesale customers, in relation to the supply of designated carriage services;

(c) the person must not discriminate in favour of itself in relation to the supply of designated carriage services;

(d) the person must not, in carrying on any of the following activities, discriminate between the person's wholesale customers or the person's prospective wholesale customers:

(i) developing a new eligible service;

(ii) enhancing an eligible service;

(iii) extending or enhancing the capability of a facility or telecommunications network by means of which an eligible service is, or is to be, supplied;

(iv) planning for a facility or telecommunications network by means of which an eligible service is, or is to be, supplied;

(v) an activity that is preparatory to the supply of an eligible service;

(vi) an activity that is ancillary or incidental to the supply of an eligible service;

(vii) giving information to service providers about any of the above activities;

(e) the person must not discriminate in favour of itself in relation to the carrying on of any of the following activities:

(i) developing a new eligible service;

(ii) enhancing an eligible service;

(iii) extending or enhancing the capability of a facility or telecommunications network by means of which an eligible service is, or is to be, supplied;

(iv) planning for a facility or telecommunications network by means of which an eligible service is, or is to be, supplied;

(v) an activity that is preparatory to the supply of an eligible service;

(vi) an activity that is ancillary or incidental to the supply of an eligible service;

(vii) giving information to service providers about any of the above activities;

(f) such other conditions and limitations as are specified in the determination.

Note 1: For compliance with conditions and limitations, see section 143B.

Note 2: For judicial enforcement of conditions and limitations, see section 143C.

(4) The rule in paragraph (3)(b) does not prevent discrimination against a wholesale customer, or prospective wholesale customer, if the person has reasonable grounds to believe that the wholesale customer or prospective wholesale customer would fail, to a material extent, to comply with the terms and conditions on which the person supplies designated carriage services.

(5) Examples of grounds for believing as mentioned in subsection (4) include:

(a) evidence that the wholesale customer or prospective wholesale customer is not creditworthy; and

(b) repeated failures by the wholesale customer or prospective wholesale customer to comply with the terms and conditions on which the person supplied eligible services (whether or not using the line).

(6) A determination under subsection (1) or (2) must not specify a condition or limitation of a kind specified in a determination under subsection (7).

(7) The Minister may, by legislative instrument, determine one or more kinds of condition or limitation for the purposes of subsection (6).

Criteria for making determination

(8) In deciding whether to make a determination under subsection (1) or (2), the ACCC must have regard to:

(a) whether the determination promotes the long-term interests of end-users of carriage services or of services supplied by means of carriage services; and

(b) the matters (if any) specified in a determination under subsection (9); and

(c) such other matters (if any) as the ACCC considers relevant.

(9) The Minister may, by legislative instrument, determine one or more matters for the purposes of paragraph (8)(b).

Associated group

(10) For the purposes of this section, if:

(a) a person is in a position to exercise control of:

(i) a local access line; or

(ii) a telecommunications network; and

(b) the person has one or more associates;

then:

(c) the person is taken to belong to an associated group; and

(d) the associated group consists of the person and those associates.

143B Compliance with conditions and limitations of exemption determinations

(1) A person must, on or after the designated commencement date, comply with the conditions or limitations of a determination under subsection 143A(1) or (2).

Ancillary contraventions

(2) A person must not:

(a) aid, abet, counsel or procure a contravention of subsection (1); or

(b) induce, whether by threats or promises or otherwise, a contravention of subsection (1); or

(c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or

(d) conspire with others to effect a contravention of subsection (1).

Civil penalty provisions

(3) Subsections (1) and (2) are civil penalty provisions .

Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

143C Judicial enforcement of conditions and limitations of exemption determinations

(1) If the Federal Court is satisfied that a person has, on or after the designated commencement date, contravened any of the conditions or limitations of a determination under subsection 143A(1) or (2), the Court may, on the application of:

(a) the ACCC; or

(b) a carrier; or

(c) a carriage service provider;

make all or any of the following orders:

(d) an order directing the person to comply with the condition or limitation;

(e) an order directing the person to compensate any other person (who may be the applicant) who has suffered loss or damage as a result of the contravention;

(f) any other order that the Court thinks appropriate.

(2) The Federal Court may discharge or vary an order granted under this section.

143D Publication of list of persons who have elected to be bound by exemption determinations

If a determination is in force under subsection 143A(1) or (2), the ACCC must publish on its website a list setting out the names of the persons who:

(a) have elected to be bound by the determination; and

(b) have not cancelled the election concerned.

143E Exemptions - certain real estate development projects etc.

(1) If:

(a) a part of the infrastructure of a telecommunications network is situated in a particular area that:

(i) on 1 January 2011, was being developed as a particular stage of a real estate development project; or

(ii) before 1 January 2011, was developed as a particular stage of a real estate development project; and

(b) on or after the designated commencement date, the network is extended to another area that is being, or is to be, developed as another stage of the project; and

(c) a carrier installs telecommunications network infrastructure; and

(d) the infrastructure mentioned in paragraph (c) is part of the extension;

the infrastructure mentioned in paragraph (c) is exempt from sections 142C and 143.

(2) If:

(a) a part of the infrastructure of a telecommunications network is situated in a particular area that:

(i) on 1 January 2011, was being developed as a particular stage of a real estate development project; or

(ii) before 1 January 2011, was developed as a particular stage of a real estate development project; and

(b) during the period:

(i) beginning at the start of the designated commencement date; and

(ii) ending when the Minister makes a declaration under section 48 of the National Broadband Network Companies Act 2011 that, in the Minister's opinion, the national broadband network should be treated as built and fully operational;

the network is extended to an area that is:

(iii) the project area of a real estate development project specified under subsection (3); or

(iv) the project area of a real estate development project that belongs to a class of real estate development projects specified under subsection (5); or

(v) the project area of a building redevelopment project specified under subsection (6); or

(vi) the project area of a building redevelopment project that belongs to a class of building redevelopment projects specified under subsection (8); and

(c) a carrier installs telecommunications network infrastructure; and

(d) the infrastructure mentioned in paragraph (c) is part of the extension;

the infrastructure mentioned in paragraph (c) is exempt from sections 142C and 143.

(3) The Minister may, by notifiable instrument, specify one or more real estate development projects for the purposes of subparagraph (2)(b)(iii).

(4) Subsection 13(3) of the Legislation Act 2003 does not apply to subsection (3) of this section.

(5) The Minister may, by legislative instrument, specify one or more classes of real estate development projects for the purposes of subparagraph (2)(b)(iv).

(6) The Minister may, by notifiable instrument, specify one or more building redevelopment projects for the purposes of subparagraph (2)(b)(v).

(7) Subsection 13(3) of the Legislation Act 2003 does not apply to subsection (6) of this section.

(8) The Minister may, by legislative instrument, specify one or more classes of building redevelopment projects for the purposes of subparagraph (2)(b)(vi).

Building redevelopment project

(9) For the purposes of this section, a project is a building redevelopment project if the project involves:

(a) the significant refurbishment or repurposing of one or more buildings so as to bring into existence one or more building units; and

(b) the making available of any or all of those building units for sale or lease.

(10) For the purposes of this section, the area or areas occupied by the building or buildings are the project area for the building redevelopment project.

(11) For the purposes of subsection (9), it is immaterial whether:

(a) the project has been, is being, or will be, implemented in stages; or

(b) different elements of the project have been, are being, or will be, carried out by different persons; or

(c) one or more approvals are given, are required, or will be required, under a law of the Commonwealth, a State or a Territory, for the project, or any element of the project.

143F Exemptions - lines installed in close proximity to other lines

(1) If:

(a) a telecommunications network came into existence on or after 1 January 2011; and

(b) a line came into existence on or after the designated commencement date for the purposes of connecting particular premises to the network; and

(c) the coming into existence of the line enables or enabled the occupier of the premises to become a customer in relation to carriage services supplied using the line; and

(d) the premises are in close proximity to a line that forms part of the infrastructure of the network as the network stood immediately before the designated commencement date; and

(e) the line mentioned in paragraph (b) is used to supply a superfast carriage service;

the line mentioned in paragraph (b) is exempt from section 142C.

Note 1: See also section 156A (certain lines deemed to have come into existence on or after the designated commencement date).

Note 2: See also section 158A (certain line extensions deemed to be local access lines in their own right, and to have come into existence on or after the designated commencement date).

(2) If:

(a) a designated telecommunications network (within the meaning of the Carrier Licence Conditions (Networks supplying Superfast Carriage Services to Residential Customers) Declaration 2014) was in existence immediately before the designated commencement date; and

(b) a line came into existence on or after the designated commencement date for the purposes of connecting particular premises to the network; and

(c) the coming into existence of the line enables or enabled the occupier of the premises to become a customer in relation to carriage services supplied using the line; and

(d) the premises are in close proximity to a line that forms part of the infrastructure of the network as the network stood immediately before the designated commencement date; and

(e) the line mentioned in paragraph (b) is used to supply a superfast carriage service;

the line mentioned in paragraph (b) is exempt from section 142C.

Note 1: See also section 156A (certain lines deemed to have come into existence on or after the designated commencement date).

Note 2: See also section 158A (certain line extensions deemed to be local access lines in their own right, and to have come into existence on or after the designated commencement date).

143G Exemptions - networks covered by exemption instruments

(1) If:

(a) the Telecommunications (Network Exemption - TransACT Very Small Scale Networks) Instrument 2012 was in force at the start of the designated commencement date; and

(b) a line came into existence on or after the designated commencement date; and

(c) the line forms part of the infrastructure of:

(i) an ACT Very Small Scale Network that is a FTTP network or a VDSL network (within the meaning of that instrument); or

(ii) a Victorian Very Small Scale Network that is a FTTP network, a VDSL network or a HFC network (within the meaning of that instrument); and

(d) that instrument has not ceased to be in force;

the line is exempt from section 142C.

Note 1: See also section 156A (certain lines deemed to have come into existence on or after the designated commencement date).

Note 2: See also section 158A (certain line extensions deemed to be local access lines in their own right, and to have come into existence on or after the designated commencement date).

(2) If:

(a) the Telecommunications (Network Exemption - Telstra South Brisbane Network) Instrument 2012 was in force at the start of the designated commencement date; and

(b) a line came into existence on or after the designated commencement date; and

(c) the line forms part of the infrastructure of the Telstra South Brisbane Network (within the meaning of that instrument); and

(d) that instrument has not ceased to be in force;

the line is exempt from section 142C.

Note 1: See also section 156A (certain lines deemed to have come into existence on or after the designated commencement date).

Note 2: See also section 158A (certain line extensions deemed to be local access lines in their own right, and to have come into existence on or after the designated commencement date).

(3) If:

(a) the Telecommunications (Network Exemption - TransACT Upgraded VDSL Networks) Instrument 2012 was in force at the start of the designated commencement date; and

(b) a line came into existence on or after the designated commencement date; and

(c) the line forms part of the infrastructure of a TransACT Upgraded VDSL Network (within the meaning of that instrument); and

(d) that instrument has not ceased to be in force;

the line is exempt from section 142C.

Note 1: See also section 156A (certain lines deemed to have come into existence on or after the designated commencement date).

Note 2: See also section 158A (certain line extensions deemed to be local access lines in their own right, and to have come into existence on or after the designated commencement date).

(4) If:

(a) the Telecommunications (Network Exemption - Specified Velocity Networks) Instrument 2012 was in force at the start of the designated commencement date; and

(b) a line came into existence on or after the designated commencement date; and

(c) the line forms part of the infrastructure of a Specified Velocity Network (within the meaning of that instrument); and

(d) that instrument has not ceased to be in force;

the line is exempt from section 142C.

Note 1: See also section 156A (certain lines deemed to have come into existence on or after the designated commencement date).

Note 2: See also section 158A (certain line extensions deemed to be local access lines in their own right, and to have come into existence on or after the designated commencement date).

(5) For the purposes of paragraph (4)(c) of this section, assume that paragraph (c) of the definition of Specified Velocity Network in the Telecommunications (Network Exemption - Specified Velocity Networks) Instrument 2012 were modified by omitting all the words from and including "in accordance with" to and including "project".

143H Exemption - networks marketed as business networks

(1) If:

(a) a local access line is part of the infrastructure of a telecommunications network operated by a carrier; and

(b) the network is marketed by the carrier exclusively as a business network; and

(c) the line is used, or proposed to be used, to supply a superfast carriage service wholly or principally to residential customers, or prospective residential customers, in Australia; and

(d) that use or proposed use, when considered in relation to the use or proposed use of all of the local access lines that are part of the infrastructure of the network, is minor; and

(e) the other conditions (if any) determined under subsection (2) have been satisfied;

the line is exempt from section 142C.

(2) The Minister may, by legislative instrument, determine one or more conditions for the purposes of paragraph (1)(e).