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

Schedule 2   Local access lines

Telecommunications Act 1997

52   Before section 152

Insert:

151ZI Anti-avoidance

(1) A corporation must not, either alone or together with one or more other persons:

(a) enter into a scheme; or

(b) begin to carry out a scheme; or

(c) carry out a scheme;

for the sole or dominant purpose of avoiding the application of any provision of this Part in relation to:

(d) the corporation; or

(e) any other corporation.

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.

Scheme

(4) For the purposes of this section, scheme means:

(a) any agreement, arrangement, understanding, promise or undertaking, whether express or implied; or

(b) any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise;

but does not include a functional separation undertaking.

151ZJ Self-incrimination

(1) A person is not excused from:

(a) giving a report in compliance with a provision of a functional separation undertaking covered by subsection 151A(10) or 151C(10) or (11); or

(b) giving a report or information under section 151ZA:

on the ground that the report or information might tend to incriminate the person or expose the person to a penalty.

(2) However, in the case of an individual:

(a) the report or information; or

(b) giving the report or information; or

(c) any information, document or thing obtained as a direct or indirect consequence of giving the report or information;

is not admissible in evidence against the individual:

(d) in civil proceedings for the recovery of a penalty; or

(e) in criminal proceedings (other than proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to the report).

151ZK Delegation

The ACCC may, by writing, delegate to a person who is:

(a) a member of the staff of the ACCC; and

(b) an SES employee or acting SES employee;

the ACCC's powers under any of the following provisions:

(c) subsection 103(4F) (formal warning);

(d) section 151D (further information);

(e) subsection 151F(7) (extension of decision-making period);

(f) section 151H (serial undertakings);

(g) section 151R (further information);

(h) subsection 151T(7) (extension of decision-making period).

151ZL Review by the Australian Competition Tribunal

(1) If the ACCC makes a decision under section 151F to reject a functional separation undertaking that was given by a person or persons, the person or persons may apply to the Australian Competition Tribunal for a review of the decision.

(2) If the ACCC makes a decision under section 151N to vary a functional separation undertaking that was given by a person or persons, the person or persons may apply to the Australian Competition Tribunal for a review of the decision.

(3) If the ACCC makes a decision under section 151T to reject a variation that was given by a person or persons, the person or persons may apply to the Australian Competition Tribunal for a review of the decision.

(4) If the ACCC makes a decision under section 151W to revoke a functional separation undertaking that was given by a person or persons, the person or persons may apply to the Australian Competition Tribunal for a review of the decision.

(5) If the ACCC makes a decision under section 151Z to vary a functional separation undertaking that was given by a person or persons, the person or persons may apply to the Australian Competition Tribunal for a review of the decision.

(6) An application under this section for a review of a decision must be:

(a) in writing; and

(b) in the case of an application under subsection (1), (3), (4) or (5) - made within 21 days after the ACCC made the decision; and

(c) in the case of an application under subsection (2) - made within 14 days after the ACCC made the decision.

(7) If the Australian Competition Tribunal receives an application under this section for a review of a decision, the Australian Competition Tribunal must review the decision.

151ZM Functions and powers of the Australian Competition Tribunal etc.

Decision on review

(1) On a review of a decision of the ACCC of a kind mentioned in section 151ZL, the Australian Competition Tribunal may make a decision:

(a) affirming the ACCC's decision; or

(b) setting aside the ACCC's decision;

and, for the purposes of the review, the Australian Competition Tribunal may perform all the functions and exercise all the powers of the ACCC.

(2) A decision by the Australian Competition Tribunal:

(a) affirming a decision of the ACCC; or

(b) setting aside a decision of the ACCC;

is taken, for the purposes of this Act (other than this section or section 151ZL), to be a decision of the ACCC.

(3) If the Australian Competition Tribunal sets aside a decision of the ACCC under section 151F to reject a functional separation undertaking, subsection 151F(5) has effect as if the undertaking had been received by the ACCC immediately after the decision was set aside.

Note: This subsection resets the start of the 3-month decision-making period set out in subsection 151F(5).

(4) If the Australian Competition Tribunal sets aside a decision of the ACCC under section 151T to reject a variation, subsection 151T(5) has effect as if the variation had been received by the ACCC immediately after the decision was set aside.

Note: This subsection resets the start of the 3-month decision-making period set out in subsection 151T(5).

Conduct of review

(5) For the purposes of a review by the Australian Competition Tribunal, the member of the Australian Competition Tribunal presiding at the review may require the ACCC to give such information, make such reports and provide such other assistance to the Australian Competition Tribunal as the member specifies.

(6) For the purposes of a review, the Australian Competition Tribunal may have regard to any information given, documents produced or evidence given to the ACCC in connection with the making of the decision to which the review relates.

(7) Paragraphs 103(1)(a) and (b) and 108(b) of the Competition and Consumer Act 2010 have effect, in relation to a review, as if a reference in those paragraphs to that Act included a reference to this Part.

Note: Division 2 of Part IX of the Competition and Consumer Act 2010 applies to proceedings before the Australian Competition Tribunal.

151ZN Provisions that do not apply in relation to an Australian Competition Tribunal review

Division 1 of Part IX of the Competition and Consumer Act 2010 does not apply in relation to a review by the Australian Competition Tribunal of a decision of the ACCC of a kind mentioned in section 151ZL of this Act.