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

Schedule 2   Local access lines

Telecommunications Act 1997

51   Before Division 3 of Part 8

Insert:

Division 2B - Functional separation undertakings

151A Standard functional separation undertaking

(1) If a person is a corporation, the person may give a written undertaking (a standard functional separation undertaking ) to the ACCC.

(2) The undertaking must:

(a) provide that the person will maintain:

(i) a single wholesale business unit; and

(ii) a single retail business unit; and

(b) provide that the person will maintain arm's length functional separation between:

(i) the person's wholesale business unit; and

(ii) the person's retail business unit; and

(c) provide that the person will ensure that:

(i) the terms and conditions relating to price or a method of ascertaining price; and

(ii) other terms and conditions;

on which the person's wholesale business unit supplies local access line services to the person's retail business unit are documented; and

(d) provide that the person will, to the extent specified in the undertaking, ensure that the workers who perform their duties for the person's wholesale business unit are different from the workers who perform their duties for the person's retail business unit; and

(e) provide that the person will, to the extent specified in the undertaking, ensure that there are separate:

(i) operational support systems; and

(ii) business systems; and

(iii) communications systems; and

(iv) accounts;

for:

(v) the person's wholesale business unit; and

(vi) the person's retail business unit; and

(f) provide that the person will publish on the person's website:

(i) the terms and conditions relating to price or a method of ascertaining price; and

(ii) other terms and conditions;

on which the person's wholesale business unit offers to supply local access line services to the following:

(iii) the person's retail business unit;

(iv) the person's wholesale customers or prospective wholesale customers; and

(g) provide that the person will:

(i) if requested to do so by a wholesale customer or prospective wholesale customer, supply a local access line service to the wholesale customer or prospective wholesale customer; and

(ii) do so on the terms and conditions that were published on the person's website at the time when the request was made; and

(h) provide that the person will ensure that information provided to the person's wholesale business unit by the person's wholesale customers is not disclosed to the person's retail business unit; and

(i) provide that the person will ensure that the person's retail business unit does not obtain, access or use information provided to the person's wholesale business unit by the person's wholesale customers; and

(j) provide that the person will ensure that information provided to the person's retail business unit by a carrier or carriage service provider (other than information of a kind specified in a determination under subsection (13)) is not disclosed to the person's wholesale business unit; and

(k) provide that the person will ensure that the person's wholesale business unit does not obtain, access or use information provided to the person's retail business unit by a carrier or carriage service provider (other than information of a kind specified in a determination under subsection (13)); and

(l) provide that the person will use the same customer interface for dealings between:

(i) the person's wholesale business unit; and

(ii) the person's wholesale customers;

as the person uses for dealings between:

(iii) the person's wholesale business unit; and

(iv) the person's retail business unit; and

(m) contain such other provisions (if any) as are specified in a determination under subsection (14); and

(n) not contain a provision of a kind specified in a determination under subsection (15).

Note: A standard functional separation undertaking is supplemented by section 151ZF (which requires eligible services to be supplied on a non-discriminatory basis) and section 151ZG (which requires related activities to be carried on on a non-discriminatory basis).

(3) An extent specified under paragraph (2)(d) or (e) may be a nil extent.

Form etc.

(4) The undertaking must:

(a) be in a form approved in writing by the ACCC; and

(b) be accompanied by such information as is reasonably likely to assist the ACCC to decide whether to accept or reject the undertaking; and

(c) be accompanied by the fee (if any) specified in, or ascertained in accordance with, a determination under subsection (16).

Expiry time

(5) The undertaking must specify the expiry time of the undertaking.

(6) The expiry time of the undertaking may be described by reference to the end of a period beginning when the undertaking comes into force.

(7) Subsection (6) does not, by implication, limit subsection (5).

(8) The expiry time of the undertaking must not be more than 10 years after the undertaking comes into force.

Fundamental provisions

(9) The undertaking:

(a) must state that the provisions of the undertaking covered by paragraphs (2)(a), (b), (c), (f), (g), (h), (i), (j) and (k) are fundamental provisions; and

(b) may state that one or more other provisions of the undertaking are fundamental provisions.

Compliance reports

(10) The undertaking must provide that the person will give the ACCC periodic reports (to be known as compliance reports) that:

(a) relate to the person's compliance with the undertaking; and

(b) are in a form approved in writing by the ACCC.

Note: See section 151ZJ (self-incrimination).

Compliance plans

(11) The undertaking must provide that the person will:

(a) prepare a plan (to be known as a compliance plan) setting out the actions to be taken by the person for the purpose of ensuring that the person complies with the undertaking; and

(b) give the ACCC:

(i) a copy of the compliance plan; and

(ii) a copy of any variation of the compliance plan.

ACCC may perform functions or exercise powers

(12) If the undertaking provides for the ACCC to perform functions or exercise powers in relation to the undertaking, the ACCC may perform those functions, and exercise those powers, in accordance with the undertaking.

Determinations

(13) The ACCC may, by legislative instrument, determine one or more kinds of information for the purposes of paragraphs (2)(j) and (k).

(14) The Minister may, by legislative instrument, determine one or more provisions for the purposes of paragraph (2)(m).

(15) The Minister may, by legislative instrument, determine one or more kinds of provisions for the purposes of paragraph (2)(n).

(16) The ACCC may, by legislative instrument, determine a fee, or a method of ascertaining a fee, for the purposes of paragraph (4)(c).

(17) A fee determined under, or ascertained in accordance with, subsection (16) must not be such as to amount to taxation.

151B Deemed standard functional separation undertaking

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

(a) a corporation is included in a specified class of corporations; and

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

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

(d) the ACCC has not revoked the election under subsection (7);

this Act has effect as if:

(e) the corporation had given a standard functional separation undertaking in the terms set out in the determination; and

(f) the ACCC had accepted the undertaking; and

(g) if the election was given before the designated commencement date - the undertaking had come into force on the designated commencement date; and

(h) if the election was given on or after the designated commencement date - the undertaking had come into force when the election was given to the ACCC.

(1A) A functional separation undertaking covered by a determination under subsection (1) must comply with the following provisions:

(a) paragraphs 151A(2)(a) to (m);

(b) subsections 151A(9), (10) and (11).

(1B) A functional separation undertaking covered by a determination under subsection (1) must not contain a provision of a kind specified in a determination under subsection 151A(15).

(2) The following provisions do not apply to a functional separation undertaking covered by a determination under subsection (1):

(a) subsections 151A(4) to (8);

(b) section 151N;

(c) section 151P;

(d) section 151Q;

(e) section 151W.

(3) If, as a result of an election under a determination under subsection (1), a corporation is taken to have given a standard functional separation undertaking:

(a) this Act does not prevent the corporation from giving the ACCC another standard functional separation undertaking; and

(b) if the other standard functional separation undertaking comes into force - the corporation is taken to have cancelled the election immediately before the other standard functional separation undertaking comes into force.

(4) If, as a result of an election under a determination under subsection (1), a corporation is taken to have given a standard functional separation undertaking:

(a) this Act does not prevent the corporation, together with one or more other persons, from giving the ACCC a joint functional separation undertaking; and

(b) if the joint functional separation undertaking comes into force - the corporation is taken to have cancelled the election immediately before the joint functional separation undertaking comes into force.

(5) Before making a determination under subsection (1), the ACCC must:

(a) publish on the ACCC's website a notice:

(i) setting out the draft determination; and

(ii) inviting persons to make submissions to the ACCC about the draft determination within the time limit specified in the notice; and

(b) consider any submissions received within the time limit specified in the notice.

(6) The time limit must not be shorter than 15 business days after the notice is published.

(7) If:

(a) a standard functional separation undertaking is in force as the result of an election made by a person as mentioned in paragraph (1)(b); and

(b) any of the following conditions is satisfied:

(i) the person has breached a fundamental provision of the undertaking;

(ii) the person has contravened section 151ZF or 151ZG;

(iii) the ACCC is satisfied that the person has an unsatisfactory compliance record in relation to functional separation;

the ACCC may, by written notice given to the person, revoke the election.

151C Joint functional separation undertaking

(1) If 2 or more persons are corporations, those persons may give a joint written undertaking (a joint functional separation undertaking ) to the ACCC.

(2) The undertaking must:

(a) identify:

(i) one or more (but not all) of those persons as the wholesaler or wholesalers for the purposes of the undertaking; and

(ii) the remaining person or persons as the retailer or retailers for the purposes of the undertaking; and

(b) provide that a wholesaler will not supply a local access line service to a person unless the person is a wholesale customer; and

(c) provide that a retailer will not supply a local access line service to a person unless the person is a retail customer; and

(d) provide that a wholesaler will, to the extent specified in the undertaking, ensure that the wholesaler's workers will perform their duties exclusively for the wholesaler; and

(e) provide that a retailer will, to the extent specified in the undertaking, ensure that the retailer's workers will perform their duties exclusively for the retailer; and

(f) provide that a wholesaler will, to the extent specified in the undertaking, ensure that the workers who:

(i) are engaged by persons other than the wholesaler; and

(ii) perform duties for the wholesaler;

are different from the workers who:

(iii) are engaged by persons other than the wholesaler; and

(iv) perform duties for a retailer; and

(g) provide that a retailer will, to the extent specified in the undertaking, ensure that the workers who:

(i) are engaged by persons other than the retailer; and

(ii) perform duties for the retailer;

are different from the workers who:

(iii) are engaged by persons other than the retailer; and

(iv) perform duties for a wholesaler; and

(h) provide that a wholesaler will ensure that no director of the wholesaler is a director of a retailer; and

(i) provide that a retailer will ensure that no director of the retailer is a director of a wholesaler; and

(j) provide that:

(i) the wholesaler or wholesalers; and

(ii) the retailer or retailers;

will, to the extent specified in the undertaking, have separate:

(iii) operational support systems; and

(iv) business systems; and

(v) communications systems; and

(vi) accounts; and

(k) provide that a wholesaler will publish on the wholesaler's website:

(i) the terms and conditions relating to price or a method of ascertaining price; and

(ii) other terms and conditions;

on which the wholesaler offers to supply local access line services to the following:

(iii) a retailer;

(iv) its wholesale customers or prospective wholesale customers; and

(l) provide that a wholesaler will:

(i) if requested to do so by a wholesale customer or prospective wholesale customer, supply a local access line service to the wholesale customer or prospective wholesale customer; and

(ii) do so on the terms and conditions that were published on the wholesaler's website at the time when the request was made; and

(m) provide that a wholesaler will ensure that information provided by its wholesale customers (other than the retailer or retailers) is not disclosed to any of the retailers; and

(n) provide that a retailer will ensure that it does not obtain, access or use information provided to any of the wholesalers by the wholesaler's wholesale customers; and

(o) provide that a retailer will ensure that information provided to the retailer by a carrier or carriage service provider, other than:

(i) information provided by a wholesaler; or

(ii) information of a kind specified in a determination under subsection (15);

is not disclosed to any of the wholesalers; and

(p) provide that a wholesaler will ensure that it does not obtain, access or use information provided to any of the retailers by a carrier or carriage service provider, other than:

(i) information provided by a wholesaler; or

(ii) information of a kind specified in a determination under subsection (15); and

(q) provide that a wholesaler will use the same customer interface for dealings between:

(i) the wholesaler; and

(ii) the wholesaler's wholesale customers (other than the retailer or retailers);

as the wholesaler uses for dealings between:

(iii) the wholesaler; and

(iv) a retailer; and

(r) contain such other provisions (if any) as are specified in a determination under subsection (16); and

(s) not contain a provision of a kind specified in a determination under subsection (17).

Note: A joint functional separation undertaking is supplemented by section 151ZF (which requires eligible services to be supplied on a non-discriminatory basis) and section 151ZG (which requires related activities to be carried on on a non-discriminatory basis).

(3) An extent specified under paragraph (2)(d), (e), (f), (g) or (j) may be a nil extent.

Form etc.

(4) The undertaking must:

(a) be in a form approved in writing by the ACCC; and

(b) be accompanied by such information as is reasonably likely to assist the ACCC to decide whether to accept or reject the undertaking; and

(c) be accompanied by the fee (if any) specified in, or ascertained in accordance with, a determination under subsection (18).

Expiry time

(5) The undertaking must specify the expiry time of the undertaking.

(6) The expiry time of the undertaking may be described by reference to the end of a period beginning when the undertaking comes into force.

(7) Subsection (6) does not, by implication, limit subsection (5).

(8) The expiry time of the undertaking must not be more than 10 years after the undertaking comes into force.

Fundamental provisions

(9) The undertaking:

(a) must state that the provisions of the undertaking covered by paragraphs (2)(a), (b), (c), (h), (i), (k), (l), (m), (n), (o) and (p) are fundamental provisions; and

(b) may state that one or more other provisions of the undertaking are fundamental provisions.

Compliance reports

(10) The undertaking must provide that a wholesaler will give the ACCC periodic reports (to be known as compliance reports) that:

(a) relate to the wholesaler's compliance with the undertaking; and

(b) are in a form approved in writing by the ACCC.

Note: See section 151ZJ (self-incrimination).

(11) The undertaking must provide that a retailer will give the ACCC periodic reports (to be known as compliance reports) that:

(a) relate to the retailer's compliance with the undertaking; and

(b) are in a form approved in writing by the ACCC.

Note: See section 151ZJ (self-incrimination).

Compliance plans

(12) The undertaking must provide that a wholesaler will:

(a) prepare a plan (to be known as a compliance plan) setting out the actions to be taken by the wholesaler for the purpose of ensuring that the wholesaler complies with the undertaking; and

(b) give the ACCC:

(i) a copy of the compliance plan; and

(ii) a copy of any variation of the compliance plan.

(13) The undertaking must provide that a retailer will:

(a) prepare a plan (to be known as a compliance plan) setting out the actions to be taken by the retailer for the purpose of ensuring that the retailer complies with the undertaking; and

(b) give the ACCC:

(i) a copy of the compliance plan; and

(ii) a copy of any variation of the compliance plan.

ACCC may perform functions or exercise powers

(14) If the undertaking provides for the ACCC to perform functions or exercise powers in relation to the undertaking, the ACCC may perform those functions, and exercise those powers, in accordance with the undertaking.

Determinations

(15) The ACCC may, by legislative instrument, determine one or more kinds of information for the purposes of paragraphs (2)(o) and (p).

(16) The Minister may, by legislative instrument, determine one or more provisions for the purposes of paragraph (2)(r).

(17) The Minister may, by legislative instrument, determine one or more kinds of provisions for the purposes of paragraph (2)(s).

(18) The ACCC may, by legislative instrument, determine a fee, or a method of ascertaining a fee, for the purposes of paragraph (4)(c).

(19) A fee determined under, or ascertained in accordance with, subsection (18) must not be such as to amount to taxation.

151D Further information about undertaking

Scope

(1) This section applies if:

(a) a person gives the ACCC a standard functional separation undertaking; or

(b) 2 or more persons give the ACCC a joint functional separation undertaking.

Request for further information

(2) The ACCC may request the person or persons to give the ACCC further information about the undertaking.

(3) The ACCC may refuse to consider the undertaking until the person or persons give the ACCC the information.

(4) The ACCC may withdraw its request for further information, in whole or in part.

151E Withdrawal of undertaking that is under consideration

Scope

(1) This section applies if:

(a) a person gives the ACCC a standard functional separation undertaking; or

(b) 2 or more persons give the ACCC a joint functional separation undertaking.

Withdrawal

(2) The person or persons may withdraw the undertaking at any time before the ACCC makes a decision to accept or reject the undertaking.

(3) This Act does not prevent the person or persons from giving a fresh undertaking.

Refund of fee

(4) If:

(a) the person or persons withdraw the undertaking; and

(b) the person or persons have paid a fee in relation to the undertaking;

the ACCC may, on behalf of the Commonwealth, refund the whole or a part of the fee.

151F ACCC to accept or reject functional separation undertaking

Scope

(1) This section applies if:

(a) a person gives the ACCC a standard functional separation undertaking; or

(b) 2 or more persons give the ACCC a joint functional separation undertaking.

Decision to accept or reject undertaking

(2) After considering the undertaking, the ACCC must:

(a) accept the undertaking; or

(b) reject the undertaking.

Notice of decision

(3) If the ACCC accepts the undertaking, the ACCC must give the person or persons a written notice stating that the undertaking has been accepted.

(4) If the ACCC rejects the undertaking, the ACCC must give the person or persons a written notice:

(a) stating that the undertaking has been rejected; and

(b) setting out the reasons for the rejection.

ACCC to make decision within 3 months

(5) The ACCC must take all reasonable steps to ensure that a decision about the undertaking is made under subsection (2) within 3 months after receiving the undertaking.

(6) In calculating the 3-month period referred to in subsection (5), disregard:

(a) if:

(i) the ACCC has given a notice under section 151K in relation to the undertaking; and

(ii) no varied undertaking was given to the ACCC in response to the notice;

a day in the period specified in the notice; and

(b) if:

(i) the ACCC has given a notice under section 151K in relation to the undertaking; and

(ii) a varied undertaking was given to the ACCC in response to the notice;

a day in the period:

(iii) beginning on the day on which the notice was given; and

(iv) ending at the end of the time limit specified by the ACCC when it published the varied undertaking under section 151G; and

(c) if the ACCC has not given a notice under section 151K in relation to the undertaking - a day in the period:

(i) beginning on the day on which the ACCC published the undertaking under section 151G; and

(ii) ending at the end of the time limit specified by the ACCC when it published the undertaking under section 151G; and

(d) if the ACCC has requested further information under section 151D in relation to the undertaking - a day during any part of which the request, or any part of the request, remains unfulfilled.

Extension of decision-making period

(7) The ACCC may, by written notice given to the person or persons, extend the 3-month period referred to in subsection (5) (the initial 3-month period ), so long as:

(a) the extension is for a period of not more than 3 months; and

(b) the notice includes a statement explaining why the ACCC has been unable to make a decision on the undertaking within the initial 3-month period.

(8) As soon as practicable after the ACCC gives a notice under subsection (7), the ACCC must publish a copy of the notice on the ACCC's website.

151G Consultation - acceptance or rejection of undertaking

Scope

(1) This section applies if:

(a) a person gives the ACCC a standard functional separation undertaking; or

(b) 2 or more persons give the ACCC a joint functional separation undertaking.

Consultation

(2) Before making a decision to accept or reject the undertaking, the ACCC must:

(a) publish on the ACCC's website a notice:

(i) setting out the undertaking; and

(ii) inviting persons to make submissions to the ACCC about the undertaking within the time limit specified in the notice; and

(b) consider any submissions received within the time limit specified in the notice.

(3) The time limit must not be shorter than 15 business days after the notice is published.

151H Serial undertakings

(1) If:

(a) a person gives the ACCC a standard functional separation undertaking (the first functional separation undertaking ); and

(b) the ACCC rejects the first functional separation undertaking; and

(c) the person subsequently gives the ACCC another standard functional separation undertaking; and

(d) the ACCC is satisfied that any or all of the provisions of the first functional separation undertaking are materially similar to any or all of the provisions of the other functional separation undertaking;

the ACCC may refuse to consider the other functional separation undertaking.

(2) If:

(a) 2 or more persons give the ACCC a joint functional separation undertaking (the first functional separation undertaking ); and

(b) the ACCC rejects the first functional separation undertaking; and

(c) those persons subsequently give the ACCC another joint functional separation undertaking; and

(d) the ACCC is satisfied that any or all of the provisions of the first functional separation undertaking are materially similar to any or all of the provisions of the other functional separation undertaking;

the ACCC may refuse to consider the other functional separation undertaking.

Refund of fee

(3) If:

(a) the ACCC refuses to consider a functional separation undertaking under this section; and

(b) a person or persons have paid a fee in relation to the undertaking;

the ACCC must, on behalf of the Commonwealth, refund the fee.

151J Criteria for accepting functional separation undertaking

Scope

(1) This section applies if:

(a) a person gives the ACCC a standard functional separation undertaking; or

(b) 2 or more persons give the ACCC a joint functional separation undertaking.

Criteria

(2) In deciding whether to accept the undertaking, the ACCC must have regard to:

(a) whether the undertaking 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 that was in force under subsection (3) at the time the undertaking was given; and

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

(3) The Minister may, by legislative instrument, determine one or more matters for the purposes of paragraph (2)(b).

151K Variation of functional separation undertaking that is under consideration

Scope

(1) This section applies if:

(a) a person gives the ACCC a standard functional separation undertaking (the original undertaking ); or

(b) 2 or more persons give the ACCC a joint functional separation undertaking (the original undertaking ).

Notice

(2) The ACCC may give the person or persons a written notice stating that, if:

(a) the person makes, or the persons make, such variations to the original undertaking as are specified in the notice; and

(b) the person gives, or the persons give, the varied undertaking to the ACCC within the period specified in the notice;

the ACCC will consider the varied undertaking under section 151F as if the varied undertaking had been given to the ACCC instead of the original undertaking.

Treatment of varied undertaking

(3) If the person gives, or the persons give, the ACCC a varied undertaking in response to the notice, the ACCC must consider the varied undertaking under section 151F as if the varied undertaking had been given to the ACCC instead of the original undertaking.

No duty to consider whether to give a notice

(4) The ACCC does not have a duty to consider whether to give a notice under subsection (2).

151L Replacement of functional separation undertaking that is under consideration

Scope

(1) This section applies if a person gives the ACCC a standard functional separation undertaking (the original undertaking ).

Notice

(2) The ACCC may give the person a written notice stating that, if:

(a) the person withdraws the original undertaking; and

(b) the person, together with one or more other persons specified in the notice, gives a joint functional separation undertaking in the terms specified in the notice; and

(c) the person does the things mentioned in paragraphs (a) and (b) within the time limit specified in the notice;

the ACCC would be inclined to accept the joint functional separation undertaking.

(3) The ACCC does not have a duty to consider whether to give a notice under subsection (2).

151M Renewal of functional separation undertaking

(1) If:

(a) a standard functional separation undertaking (the existing undertaking ) given by a person is in force; and

(b) at least 12 months before the expiry of the existing undertaking, the person gives the ACCC another standard functional separation undertaking;

the other undertaking may be expressed to be given by way of renewal of the existing undertaking.

Note: For acceptance or rejection of the other undertaking, see section 151F.

(2) If:

(a) a joint functional separation undertaking (the existing undertaking ) given by 2 or more persons is in force; and

(b) at least 12 months before the expiry of the existing undertaking, those persons give another joint functional separation undertaking to the ACCC;

the other undertaking may be expressed to be given by way of renewal of the existing undertaking.

Note 1: For acceptance or rejection of the other undertaking, see section 151F.

Note 2: For consultation on a decision to accept or reject the other undertaking, see section 151G.

151N Variation of expiry time of certain functional separation undertakings

Standard functional separation undertaking

(1) If:

(a) a standard functional separation undertaking (the existing undertaking ) given by a person is in force; and

(b) another functional separation undertaking is given to the ACCC by the person; and

(c) the ACCC rejects the other undertaking;

the ACCC may, by written notice given to the person, vary the existing undertaking by:

(d) omitting the expiry time specified in the existing undertaking; and

(e) substituting the expiry time specified in the notice.

Note: See also section 142B.

(2) The expiry time specified in the notice:

(a) must be later than the rejection of the other undertaking; and

(b) must not be later than 12 months after the rejection of the other undertaking.

(3) Subsection 151A(8) does not apply to an expiry time specified in a notice under subsection (1).

Joint functional separation undertaking

(4) If:

(a) a joint functional separation undertaking (the existing undertaking ) given by 2 or more persons is in force; and

(b) another functional separation undertaking is given to the ACCC by a person who is one of the persons mentioned in paragraph (a); and

(c) the ACCC rejects the other undertaking;

the ACCC may, by written notice given to each of the persons mentioned in paragraph (a), vary the existing undertaking by:

(d) omitting the expiry time specified in the existing undertaking; and

(e) substituting the expiry time specified in the notice.

Note: See also section 142B.

(5) The expiry time specified in the notice:

(a) must be later than the rejection of the other undertaking; and

(b) must not be later than 12 months after the rejection of the other undertaking.

(6) Subsection 151C(8) does not apply to an expiry time specified in a notice under subsection (4).

Consultation

(7) Before making a decision under this section to vary a functional separation undertaking, the ACCC must:

(a) publish on the ACCC's website a notice:

(i) setting out the proposed variation; and

(ii) inviting persons to make submissions to the ACCC about the proposed variation within the time limit specified in the notice; and

(b) consider any submissions received within the time limit specified in the notice.

(8) The time limit must not be shorter than 15 business days after the notice is published.

151P Duration of functional separation undertaking

Scope

(1) This section applies if:

(a) either:

(i) a person gives the ACCC a standard functional separation undertaking (the new undertaking ); or

(ii) 2 or more persons give the ACCC a joint functional separation undertaking (the new undertaking ); and

(b) the ACCC accepts the new undertaking.

Duration

(2) If the new undertaking is not expressed to be given by way of renewal of another functional separation undertaking:

(a) in a case where the new undertaking is accepted before the designated commencement date - the new undertaking comes into force:

(i) on the designated commencement date; or

(ii) if a later day is specified in the new undertaking - on that day; and

(b) in a case where the new undertaking is accepted on or after the designated commencement date - the new undertaking comes into force:

(i) on the day after it is accepted; or

(ii) if a later day is specified in the new undertaking - on that day; and

(c) unless sooner revoked, the new undertaking continues in force until it expires.

(3) If the new undertaking is expressed to be given by way of renewal of another functional separation undertaking:

(a) the new undertaking comes into force immediately after the expiry of the other undertaking; and

(b) unless sooner revoked, the new undertaking continues in force until it expires.

151Q Variation of functional separation undertaking that is in force

Scope

(1) This section applies if:

(a) a standard functional separation undertaking given by a person is in force; or

(b) a joint functional separation undertaking given by 2 or more persons is in force.

Variation

(2) The person or persons may give the ACCC a variation of the undertaking.

(3) If the undertaking is a standard functional separation undertaking, the undertaking as varied must comply with subsections 151A(2), (5), (8), (9), (10) and (11) and paragraph 151A(4)(a).

(4) If the undertaking is a joint functional separation undertaking, the undertaking as varied must comply with subsections 151C(2), (5), (8), (9), (10), (11), (12) and (13) and paragraph 151C(4)(a).

Form etc.

(5) The variation must:

(a) be accompanied by such information as is reasonably likely to assist the ACCC to decide whether to accept or reject the variation; and

(b) be accompanied by the fee (if any) specified in, or ascertained in accordance with, a determination under subsection (6).

(6) The ACCC may, by legislative instrument, determine a fee, or a method of ascertaining a fee, for the purposes of paragraph (5)(b).

(7) A fee determined under, or ascertained in accordance with, subsection (6) must not be such as to amount to taxation.

151R Further information about variation of functional separation undertaking

Scope

(1) This section applies if:

(a) a person gives the ACCC a variation of a standard functional separation undertaking; or

(b) 2 or more persons give the ACCC a variation of a joint functional separation undertaking.

Request for further information

(2) The ACCC may request the person or persons to give the ACCC further information about the variation.

(3) The ACCC may refuse to consider the variation until the person or persons give the ACCC the information.

(4) The ACCC may withdraw its request for further information, in whole or in part.

151S Withdrawal of variation that is under consideration

Scope

(1) This section applies if:

(a) a person gives the ACCC a variation of a standard functional separation undertaking; or

(b) 2 or more persons give the ACCC a variation of a joint functional separation undertaking.

Withdrawal

(2) The person or persons may withdraw the variation at any time before the ACCC makes a decision to accept or reject the variation.

(3) This Act does not prevent the person or persons from giving a fresh variation.

Refund of fee

(4) If:

(a) the person or persons withdraw the variation; and

(b) the person or persons have paid a fee in relation to the variation;

the ACCC may, on behalf of the Commonwealth, refund the whole or a part of the fee.

151T ACCC to accept or reject variation

Scope

(1) This section applies if:

(a) a person gives the ACCC a variation of a standard functional separation undertaking; or

(b) 2 or more persons give the ACCC a variation of a joint functional separation undertaking.

Decision to accept or reject variation

(2) After considering the variation, the ACCC must:

(a) accept the variation; or

(b) reject the variation.

Notice of decision

(3) If the ACCC accepts the variation, the ACCC must give the person or persons a written notice:

(a) stating that the variation has been accepted; and

(b) setting out the terms of the variation.

(4) If the ACCC rejects the variation, the ACCC must give the person or persons a written notice:

(a) stating that the variation has been rejected; and

(b) setting out the reasons for the rejection.

ACCC to make decision within 3 months

(5) The ACCC must take all reasonable steps to ensure that a decision about the variation is made under subsection (2) within 3 months after receiving the variation.

(6) In calculating the 3-month period referred to in subsection (5), disregard:

(a) a day in the period:

(i) beginning on the day on which the ACCC published the variation under section 151U; and

(ii) ending at the end of the time limit specified by the ACCC when it published the variation under section 151U; and

(b) if the ACCC has requested further information under section 151R in relation to the variation - a day during any part of which the request, or any part of the request, remains unfulfilled.

Extension of decision-making period

(7) The ACCC may, by written notice given to the person or persons, extend the 3-month period referred to in subsection (5) (the initial 3-month period ), so long as:

(a) the extension is for a period of not more than 3 months; and

(b) the notice includes a statement explaining why the ACCC has been unable to make a decision on the variation within the initial 3-month period.

(8) As soon as practicable after the ACCC gives a notice under subsection (7), the ACCC must publish a copy of the notice on the ACCC's website.

151U Consultation - acceptance or rejection of variation

Scope

(1) This section applies if:

(a) a person gives the ACCC a variation of a standard functional separation undertaking; or

(b) 2 or more persons give the ACCC a variation of a joint functional separation undertaking.

Consultation

(2) Before making a decision to accept or reject the variation, the ACCC must:

(a) publish on the ACCC's website a notice:

(i) setting out the variation; and

(ii) inviting persons to make submissions to the ACCC about the variation within the time limit specified in the notice; and

(b) consider any submissions received within the time limit specified in the notice.

(3) The time limit must not be shorter than 15 business days after the notice is published.

151V Criteria for accepting variation

Scope

(1) This section applies if:

(a) a person gives the ACCC a variation of a standard functional separation undertaking; or

(b) 2 or more persons give the ACCC a variation of a joint functional separation undertaking.

Criteria

(2) In deciding whether to accept the variation, the ACCC must have regard to:

(a) whether the variation 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 (3); and

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

(3) The Minister may, by legislative instrument, determine one or more matters for the purposes of paragraph (2)(b).

151W Revocation of functional separation undertaking

Standard functional separation undertaking

(1) If:

(a) a standard functional separation undertaking given by a person is in force; and

(b) the person has:

(i) breached a fundamental provision of the undertaking; or

(ii) contravened section 151ZF or 151ZG;

the ACCC may, by written notice given to the person, revoke the undertaking.

(2) If:

(a) a standard functional separation undertaking given by a person is in force; and

(b) the ACCC is satisfied that the person has an unsatisfactory compliance record in relation to functional separation;

the ACCC may, by written notice given to the person, revoke the undertaking.

(3) If:

(a) a standard functional separation undertaking given by a person is in force; and

(b) the person requests the ACCC, in writing, to revoke the undertaking;

the ACCC must, by written notice given to the person, revoke the undertaking.

(4) A revocation under subsection (1), (2) or (3) takes effect at the time specified in the notice of revocation. The specified time:

(a) must not be earlier than the time the notice is given; and

(b) must not be later than 12 months after the notice is given.

(5) After the giving of a notice of revocation of a standard functional separation undertaking under subsection (1), (2) or (3):

(a) the undertaking does not apply to local access line services supplied using a local access line that came into existence after the notice was given; and

(b) the definitions of retail business unit and wholesale business unit in section 142A (in so far as those definitions relate to the undertaking) have effect as if references in those definitions to the supply of local access line services did not include the supply of local access line services using a local access line that came into existence after the notice was given.

Joint functional separation undertaking

(6) If:

(a) a joint functional separation undertaking given by 2 or more persons is in force; and

(b) any of those persons has:

(i) breached a fundamental provision of the undertaking; or

(ii) contravened section 151ZF or 151ZG;

the ACCC may, by written notice given to each of those persons, revoke the undertaking.

(7) If:

(a) a joint functional separation undertaking given by 2 or more persons is in force; and

(b) the ACCC is satisfied that any of those persons has an unsatisfactory compliance record in relation to functional separation;

the ACCC may, by written notice given to each of those persons, revoke the undertaking.

(8) If:

(a) a joint functional separation undertaking given by 2 or more persons is in force; and

(b) those persons request the ACCC, in writing, to revoke the undertaking;

the ACCC must, by written notice given to each of those persons, revoke the undertaking.

(9) A revocation under subsection (6), (7) or (8) takes effect at the time specified in the notice of revocation. The specified time:

(a) must not be earlier than the time the notice is given; and

(b) must not be later than 12 months after the notice is given.

(10) After the giving of a notice of revocation of a joint functional separation undertaking under subsection (6), (7) or (8), the undertaking does not apply to local access line services supplied using a local access line that came into existence after the notice was given.

Matters to which the ACCC must have regard

(11) In exercising its powers under this section, the ACCC must have regard to the following matters:

(a) whether arrangements to maintain the continuity of the supply of superfast carriage services to residential customers using local access lines:

(i) have been made; or

(ii) can be made before the relevant revocation takes effect;

(b) in the case of a revocation under subsection (1) or (6) - the consequences of the breach;

(c) in the case of a revocation under subsection (2) or (7) - the consequences of the person's unsatisfactory compliance record;

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

151X Consultation - revocation of functional separation undertaking

Revocation of standard functional separation undertaking

(1) Before making a decision under subsection 151W(1) or (2) to revoke a standard functional separation undertaking given by a person, the ACCC must:

(a) give the person a written notice:

(i) stating that the ACCC proposes to revoke the undertaking; and

(ii) inviting the person to make a submission to the ACCC about the revocation within the time limit specified in the notice; and

(b) consider any submission received within the time limit specified in the notice.

(2) The time limit must not be shorter than 15 business days after the notice is given.

Revocation of joint functional separation undertaking

(3) Before making a decision under subsection 151W(6) or (7) to revoke a joint functional separation undertaking given by 2 or more persons, the ACCC must:

(a) give each of those persons a written notice:

(i) stating that the ACCC proposes to revoke the undertaking; and

(ii) inviting those persons to make submissions to the ACCC about the revocation within the time limit specified in the notice; and

(b) consider any submissions received within the time limit specified in the notice.

(4) The time limit must not be shorter than 15 business days after the notice is given.

151Y Notification that a person is at risk of having an unsatisfactory compliance record in relation to functional separation

Scope

(1) This section applies to:

(a) a breach by a person of a functional separation undertaking given by the person, so long as the breach occurred when the undertaking was in force; and

(b) a contravention by a person of section 143B, 151ZA, 151ZB, 151ZF, 151ZG, 151ZH or 151ZI.

Note: See section 142B.

Notification

(2) If:

(a) a functional separation undertaking given by a person is in force; and

(b) the ACCC is aware of one or more breaches or contraventions by the person; and

(c) the ACCC is satisfied that those breaches or contraventions do not mean that the person has an unsatisfactory compliance record in relation to functional separation; and

(d) the ACCC is satisfied that, if there were to be a particular kind of additional breach or contravention by the person, the person would have an unsatisfactory compliance record in relation to functional separation;

the ACCC must:

(e) give the person a written notice:

(i) stating that the ACCC considers that the person is at risk of having an unsatisfactory compliance record in relation to functional separation; and

(ii) informing the person that an unsatisfactory compliance record is a ground for revoking the undertaking; and

(f) do so as soon as practicable after becoming satisfied as mentioned in paragraph (d).

Note: See section 142B.

(3) A failure to comply with subsection (2) does not affect the validity of a revocation of a functional separation undertaking.

151Z Variation of functional separation undertaking following giving of revocation notice

Standard functional separation undertaking

(1) If:

(a) the ACCC has given a notice under section 151W revoking a standard functional separation undertaking; and

(b) the revocation has not taken effect;

the ACCC may, by written notice given to the person who gave the undertaking, vary the undertaking.

(2) The ACCC must not vary a standard functional separation undertaking under subsection (1) unless the variation:

(a) addresses the matter or matters that constituted the grounds for the revocation of the undertaking under section 151W; and

(b) does not address any other matter.

Joint functional separation undertaking

(3) If:

(a) the ACCC has given a notice under section 151W revoking a joint functional separation undertaking; and

(b) the revocation has not taken effect;

the ACCC may, by written notice given to each of the persons who gave the undertaking, vary the undertaking.

(4) The ACCC must not vary a joint functional separation undertaking under subsection (3) unless the variation:

(a) addresses the matter or matters that constituted the grounds for the revocation of the undertaking under section 151W; and

(b) does not address any other matter.

When variation takes effect

(5) A variation under subsection (1) or (3) takes effect at the time the notice is given.

151ZA Reporting obligations following giving of revocation notice

Standard functional separation undertaking

(1) If:

(a) the ACCC has given a notice under section 151W revoking a standard functional separation undertaking; and

(b) the revocation has not taken effect;

the ACCC may, by written notice given to the person who gave the undertaking, direct the person:

(c) to give the ACCC:

(i) a report about the person's compliance with the undertaking; or

(ii) information about the person's compliance with the undertaking; or

(iii) a report about action that the person has taken, is taking, or proposes to take for the purpose of ensuring that the person complies with sections 142C and 143 after the revocation takes effect; or

(iv) information about action that the person has taken, is taking, or proposes to take for the purpose of ensuring that the person complies with sections 142C and 143 after the revocation takes effect; and

(d) to do so within the period specified in the direction.

Note: See section 151ZJ (self-incrimination).

Joint functional separation undertaking

(2) If:

(a) the ACCC has given a notice under section 151W revoking a joint functional separation undertaking; and

(b) the revocation has not taken effect;

the ACCC may, by written notice given to a person who gave the undertaking jointly with one or more other persons, direct the person:

(c) to give the ACCC:

(i) a report about the person's compliance with the undertaking; or

(ii) information about the person's compliance with the undertaking; or

(iii) a report about action that the person has taken, is taking, or proposes to take for the purpose of ensuring that the person complies with sections 142C and 143 after the revocation takes effect; or

(iv) information about action that the person has taken, is taking, or proposes to take for the purpose of ensuring that the person complies with sections 142C and 143 after the revocation takes effect; and

(d) to do so within the period specified in the direction.

Note: See section 151ZJ (self-incrimination).

Compliance with direction

(3) A person must comply with a direction under subsection (1) or (2).

Ancillary contraventions

(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

(c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (3); or

(d) conspire with others to effect a contravention of subsection (3).

Civil penalty provisions

(5) Subsections (3) and (4) are civil penalty provisions .

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

151ZB Requirement to notify changes in control of person who gave undertaking

Notification by person who gave undertaking

(1) If:

(a) a functional separation undertaking given by a person (the first person ) is in force; and

(b) the first person becomes aware that:

(i) a person who was not in a position to exercise control of the first person has become in a position to exercise control of the first person; or

(ii) a person who was in a position to control the first person has ceased to be in that position;

the first person must:

(c) notify the ACCC, in writing, of that event; and

(d) do so as soon as practicable, but not later than 10 business days, after becoming so aware.

Note: See section 154.

(2) The notice must be in a form approved, in writing, by the ACCC.

Notification by controller of person who gave undertaking

(3) If:

(a) a functional separation undertaking given by a person (the first person ) is in force; and

(b) another person becomes aware that the other person is in a position to exercise control of the first person;

the other person must:

(c) notify the ACCC, in writing, of that position; and

(d) do so as soon as practicable, but not later than 10 business days, after becoming so aware.

Note: See section 154.

(4) The notice must be in a form approved, in writing, by the ACCC.

Ancillary contraventions

(5) A person must not:

(a) aid, abet, counsel or procure a contravention of subsection (1) or (3); or

(b) induce, whether by threats or promises or otherwise, a contravention of subsection (1) or (3); or

(c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1) or (3); or

(d) conspire with others to effect a contravention of subsection (1) or (3).

Civil penalty provisions

(6) Subsections (1), (3) and (5) are civil penalty provisions .

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

151ZC Register of functional separation undertakings

(1) The ACCC is to maintain a Register in which the ACCC includes:

(a) all functional separation undertakings that have been accepted by the ACCC (including those that are no longer in force); and

(b) in the case of a functional separation undertaking that, under section 151B, is taken to have been given by a corporation:

(i) the name of the corporation; and

(ii) the date the undertaking came into force; and

(c) all variations of functional separation undertakings.

(2) The Register is to be maintained by electronic means.

(3) The Register is to be made available for inspection on the ACCC's website.

(4) The Register is not a legislative instrument.

151ZD Compliance with functional separation undertaking

(1) If a functional separation undertaking given by a person is in force, the person must comply with the undertaking.

Note: See also section 142B.

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.

151ZE Enforcement of functional separation undertaking

(1) If:

(a) a functional separation undertaking given by a person is in force; and

(b) the Federal Court is satisfied, on the application of:

(i) the ACCC; or

(ii) a carrier; or

(iii) a carriage service provider;

that the person has breached the undertaking;

the Court may make any or all of the following orders:

(c) an order directing the person to comply with the undertaking;

(d) an order directing the disposal of network units, lines, shares or other assets;

(e) an order restraining the exercise of any rights attached to shares;

(f) an order prohibiting or deferring the payment of any sums due to a person in respect of shares held by the person;

(g) an order that any exercise of rights attached to shares be disregarded;

(h) 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;

(i) any order that the Court considers appropriate directing the person to compensate any other person (who may be the applicant) who has suffered loss or damage as a result of the breach;

(j) any other order that the Court considers appropriate.

Note: See also section 142B.

(2) In addition to the Federal Court's powers under subsection (1), the Court:

(a) has power, for the purpose of securing compliance with any other order made under this section, to make an order directing any person to do, or refrain from doing, a specified act; and

(b) has power to make an order containing such ancillary or consequential provisions as the Court thinks just.

(3) The Federal Court may, before making an order under this section, direct that notice of the application be given to such persons as it thinks fit or be published in such manner as it thinks fit, or both.

(4) The Federal Court may, by order, rescind, vary or discharge an order made by it under this section or suspend the operation of such an order.

Division 2C - Non-discrimination rules

151ZF Eligible services to be supplied on a non-discriminatory basis

No discrimination between wholesale customers

(1) If:

(a) an eligible service is supplied, or proposed to be supplied, by a person using a local access line; and

(b) any of the following conditions is satisfied:

(i) section 142C applies to the line;

(ii) section 143 applies to the line;

(iii) neither section 142C nor section 143 applies to the line, and there is in force a functional separation undertaking that relates to local access line services supplied, or proposed to be supplied, using the line;

the person must not, on or after the designated commencement date, discriminate between the person's wholesale customers, or the person's prospective wholesale customers, in relation to the supply of eligible services using the line.

(2) The rule in subsection (1) 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 eligible services using the line.

(3) Examples of grounds for believing as mentioned in subsection (2) 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).

No discrimination by a person in favour of itself

(4) If:

(a) a person supplies, or proposes to supply, an eligible service using a local access line:

(i) to itself; and

(ii) to its wholesale customers or prospective wholesale customers; and

(b) any of the following conditions is satisfied:

(i) section 142C applies to the line;

(ii) section 143 applies to the line;

(iii) neither section 142C nor section 143 applies to the line, and there is in force a functional separation undertaking that relates to local access line services supplied, or proposed to be supplied, using the line;

the person must not, on or after the designated commencement date, discriminate in favour of itself in relation to the supply of the eligible service.

Ancillary contraventions

(5) A person must not:

(a) aid, abet, counsel or procure a contravention of subsection (1) or (4); or

(b) induce, whether by threats or promises or otherwise, a contravention of subsection (1) or (4); or

(c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1) or (4); or

(d) conspire with others to effect a contravention of subsection (1) or (4).

Civil penalty provisions

(6) Subsections (1), (4) and (5) are civil penalty provisions .

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

151ZG Eligible services - related activities to be carried on on a non-discriminatory basis

Scope

(1) This section applies to a person, on and after the designated commencement date, if:

(a) an eligible service is supplied, or proposed to be supplied, by a person using a local access line; and

(b) any of the following conditions is satisfied:

(i) section 142C applies to the line;

(ii) section 143 applies to the line;

(iii) neither section 142C nor section 143 applies to the line, and there is in force a functional separation undertaking that relates to local access line services supplied, or proposed to be supplied, using the line.

No discrimination between wholesale customers

(2) 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:

(a) developing a new eligible service;

(b) enhancing an eligible service;

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

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

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

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

(g) giving information to service providers about any of the above activities.

No discrimination by a person in favour of itself

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

(a) developing a new eligible service;

(b) enhancing an eligible service;

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

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

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

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

(g) giving information to service providers about any of the above activities.

Ancillary contraventions

(4) A person must not:

(a) aid, abet, counsel or procure a contravention of subsection (2) or (3); or

(b) induce, whether by threats or promises or otherwise, a contravention of subsection (2) or (3); or

(c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (2) or (3); or

(d) conspire with others to effect a contravention of subsection (2) or (3).

Civil penalty provisions

(5) Subsections (2), (3) and (4) are civil penalty provisions .

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

151ZH Statement about the differences between an access agreement and an offer etc.

(1) If:

(a) an access agreement is entered into by a person on or after the designated commencement date; and

(b) the eligible service to which the access agreement relates is an eligible service supplied, or proposed to be supplied, by the person using a local access line; and

(c) any of the following conditions is satisfied:

(i) section 142C applies to the line;

(ii) section 143 applies to the line;

(iii) neither section 142C nor section 143 applies to the line, and there is in force a functional separation undertaking that relates to local access line services supplied, or proposed to be supplied, using the line; and

(d) immediately before the access agreement was entered into, there was published on the person's website:

(i) the terms and conditions relating to price or a method of ascertaining price; or

(ii) other terms and conditions;

on which the person offers to supply eligible services using the line; and

(e) the terms and conditions set out in the access agreement are not the same as the terms and conditions set out in the offer;

the person must, within 5 business days after the day on which the access agreement was entered into, publish on the person's website a statement, in a form approved in writing by the ACCC:

(f) identifying the parties to the access agreement; and

(g) describing the differences between the terms and conditions set out in the access agreement and the terms and conditions set out in the offer; and

(h) setting out such other information (if any) about the access agreement as is required by the form.

Note: For access agreement , see subsection (5).

Variation agreement

(2) If:

(a) a variation agreement is entered into by a person on or after the designated commencement date; and

(b) the eligible service to which the relevant access agreement relates is an eligible service supplied, or proposed to be supplied, by the person using a local access line; and

(c) any of the following conditions is satisfied:

(i) section 142C applies to the line;

(ii) section 143 applies to the line;

(iii) neither section 142C nor section 143 applies to the line, and there is in force a functional separation undertaking that relates to local access line services supplied, or proposed to be supplied, using the line; and

(d) immediately before the variation agreement was entered into, there was published on the person's website:

(i) the terms and conditions relating to price or a method of ascertaining price; or

(ii) other terms and conditions;

on which the person offers to supply eligible services using the line; and

(e) the terms and conditions set out in the relevant access agreement (as varied by the variation agreement) are not the same as the terms and conditions set out in the offer;

the person must, within 5 business days after the day on which the variation agreement was entered into, publish on the person's website a statement, in a form approved in writing by the ACCC:

(f) identifying the parties to the relevant access agreement (as varied by the variation agreement); and

(g) describing the differences between the terms and conditions set out in the relevant access agreement (as varied by the variation agreement) and the terms and conditions set out in the offer; and

(h) setting out such other information (if any) about the relevant access agreement (as varied by the variation agreement) as is required by the form.

Note: For variation agreement , see subsection (5).

Publication of offer

(2A) If:

(a) a person offers to supply eligible services to the person's wholesale customers, or prospective wholesale customers, using a local access line; and

(b) any of the following conditions is satisfied:

(i) section 142C applies to the line;

(ii) section 143 applies to the line;

(iii) neither section 142C nor section 143 applies to the line, and there is in force a functional separation undertaking that relates to local access line services supplied, or proposed to be supplied, using the line;

the person must publish on the person's website:

(c) the terms and conditions relating to price or a method of ascertaining price; or

(d) other terms and conditions;

on which the person offers to supply eligible services to the person's wholesale customers, or prospective wholesale customers, using the line.

Ancillary contraventions

(3) A person must not:

(a) aid, abet, counsel or procure a contravention of subsection (1), (2) or (2A); or

(b) induce, whether by threats or promises or otherwise, a contravention of subsection (1), (2) or (2A); or

(c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1), (2) or (2A); or

(d) conspire with others to effect a contravention of subsection (1), (2) or (2A).

Civil penalty provisions

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

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

Access agreement and variation agreement

(5) For the purposes of this section, access agreement and variation agreement have the same respective meanings as in Part XIC of the Competition and Consumer Act 2010. For this purpose, assume that:

(a) each reference in section 152AF, subsections 152AG(1) and (3) and section 152BE of that Act to a declared service were a reference to an eligible service; and

(b) subsection 152BE(2) of that Act had not been enacted.

151ZHA Judicial enforcement of non-discrimination rules

(1) If the Federal Court is satisfied that a person has, on or after the designated commencement date, contravened subsection 151ZF(1), (4) or (5), 151ZG(2), (3) or (4) or 151ZH(1), (2), (2A) or (3), 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.