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This is a Bill, not an Act. For current law, see the Acts databases.
Contents
A carrier must comply with this Act.
The following is a simplified outline of this Part:
• A carrier must have an industry development plan.
• An industry development plan is a plan for the development in
Australia, in connection with the carrier’s business as a carrier,
of:
(a) industries involved in the manufacture, development or supply of
facilities; and
(b) research and development activities relating to an industry referred
to in paragraph (a).
• An industry development plan must be given to the Industry
Minister.
• A summary of an industry development plan must be made available to
the public.
In this Part:
current industry development plan has the meaning given by
clause 7.
industry development plan has the meaning given by clause
6.
Industry Minister means the Minister for Industry, Science
and Tourism.
(1) Within 90 days after a carrier is granted a carrier licence, and at
all times after that time, the carrier must have a current industry development
plan.
(2) A carrier must give the Industry Minister its current industry
development plan:
(a) within 90 days after the beginning of the period to which the plan
relates; or
(b) if the Industry Minister, by written notice given to the carrier,
allows a longer period—before the end of that longer period.
(1) The Industry Minister may, by written instrument, declare that this
Part does not apply to a specified kind of carrier.
(2) The declaration has effect accordingly.
(3) An instrument under subclause (1) is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act 1901.
(1) For the purposes of this Part, an industry development plan
for a carrier is a plan for the development in Australia, in connection
with the carrier’s business as a carrier, of:
(a) industries involved in the manufacture, development or supply of
facilities; and
(b) research and development activities relating to an industry referred
to in paragraph (a).
(2) The plan must include any relevant particulars of the
carrier’s:
(a) strategic commercial relationships; and
(b) research and development activities; and
(c) involvement with industry; and
(d) export facilitation plans.
(3) The plan must specify the period to which it relates. That period must
run for at least 12 months.
(4) In this clause:
facility includes any system (whether software-based or
otherwise) used in connection with the supply of a carriage service or a content
service.
For the purposes of this Part, an industry development plan is current at
a particular time if, and only if, that time is included in the period to which
the plan relates.
(1) As soon as practicable after giving the Industry Minister an industry
development plan, a carrier must make a summary of the plan available to the
public.
(2) However, the summary need not contain any commercially sensitive
information.
(1) As soon as practicable after varying an industry development plan, a
carrier must:
(a) give the Industry Minister a copy of the variation; and
(b) make a summary of the variation available to the public.
(2) However, the summary need not contain any commercially sensitive
information.
If the Industry Minister has expressed any views of the Commonwealth
Government about industry development, then, in formulating an industry
development plan, or a variation of such a plan, a carrier must have regard to
those views.
If a carrier becomes aware that a particular matter may affect the
achievement of its current industry development plan, the carrier must, as soon
as practicable, give the Industry Minister a written notice:
(a) setting out particulars of the matter; and
(b) explaining the effect of the matter on the achievement of the
plan.
(1) This clause applies if a carrier has a current industry development
plan.
(2) As soon as practicable, and in any event within 90 days, after the end
of each financial year, the carrier must:
(a) give the Industry Minister a report setting out particulars of the
progress made by the carrier in implementing the plan during that year;
and
(b) make a summary of the report available to the public.
(3) However, the summary need not contain any commercially sensitive
information.
The following is a simplified outline of this Part:
• Carriers must provide other carriers with
access to facilities for the purpose of enabling the other carriers
to:
(a) provide competitive facilities and competitive carriage services;
or
(b) establish their own facilities.
(1) A carrier (the first carrier) must, if requested to do
so by another carrier (the second carrier) give the second carrier
access to facilities owned or operated by the first carrier.
(2) The first carrier is not required to comply with subclause (1)
unless:
(a) the access is provided for the sole purpose of enabling the second
carrier:
(i) to provide competitive facilities and competitive carriage services;
or
(ii) to establish its own facilities; and
(b) the second carrier’s request is reasonable; and
(c) the second carrier gives the first carrier reasonable notice that the
second carrier requires the access; and
(d) in a case where the facilities do not consist of customer cabling or
customer equipment—the facilities:
(i) were in place on 30 June 1991; or
(ii) were not in place on 30 June 1991, and were not obtained after that
date by the first carrier solely by means of commercial negotiation.
(3) For the purposes of this clause, in determining whether the second
carrier’s request is reasonable, regard must be had to the question
whether compliance with the request will promote the long-term interests of
end-users of carriage services or of services supplied by means of carriage
services. That question is to be determined in the same manner as it is
determined for the purposes of Part XIC of the Trade Practices Act
1974.
(4) Subclause (3) is intended to limit the matters to which regard may be
had.
(5) A reference in this clause to a facility is a reference
to:
(a) a facility as defined by section 104; or
(b) land on which a facility mentioned in paragraph (a) is located;
or
(c) a building or structure on land referred to in paragraph (b);
or
(d) customer equipment, or customer cabling, connected to a
telecommunications network owned or operated by a carrier.
(1) The first carrier (within the meaning of clause 14) must comply with
subclause 14(1) on such terms and conditions as are:
(a) agreed between the following parties:
(i) the first carrier;
(ii) the second carrier (within the meaning of that clause); or
(b) failing agreement, determined by an arbitrator appointed by the
parties.
If the parties fail to agree on the appointment of an arbitrator, the ACCC
is to be the arbitrator.
(2) The regulations may make provision for and in relation to the conduct
of an arbitration under this clause.
(3) The regulations may provide that, for the purposes of a particular
arbitration conducted by the ACCC under this clause, the ACCC may be constituted
by a single member, or a specified number of members, of the ACCC. For each such
arbitration, that member or those members are to be nominated in writing by the
Chairperson of the ACCC.
(4) Subclause (3) does not, by implication, limit subclause (2).
(5) A determination made in an arbitration under this clause must not be
inconsistent with a Ministerial pricing determination in force under clause
16.
(1) The Minister may make a written determination setting out principles
dealing with price-related terms and conditions relating to the obligations
imposed by subclause 14(1). The determination is to be known as a
Ministerial pricing determination.
(2) A determination under subclause (1) is a disallowable
instrument for the purposes of section 46A of the Acts Interpretation Act
1901.
(3) In this clause:
price-related terms and conditions means terms and conditions
relating to price or a method of ascertaining price.
The following is a simplified outline of this Part:
• Carriers must
provide other carriers with access to certain information relating to the
operation of telecommunications networks.
(1) This clause applies to a carrier (the first carrier) if
the first carrier supplies carriage services to another carrier (the
second carrier).
(2) The first carrier must, if requested to do so by the second carrier,
provide the second carrier with reasonable access to:
(a) information from the first carrier’s operations support systems;
and
(b) traffic flow information.
(3) The first carrier is not required to comply with subclause (2) unless
the sole purpose of the access is to enable the second carrier to undertake
planning, maintenance or reconfiguration of the second carrier’s
telecommunications network.
(4) If information is requested by the second carrier under subclause (2),
the first carrier must make the information available to the second carrier as
soon as practicable after the request is made.
(5) Clauses 19, 20, 21, 22 and 26 do not, by implication, limit this
clause.
(1) This clause applies to a carrier (the first carrier) if
the first carrier supplies carriage services to another carrier (the
second carrier).
(2) The first carrier must, if requested to do so by the second carrier,
provide the second carrier with reasonable access to information that:
(a) is contained in the first carrier’s databases; and
(b) relates to the manner in which the first carrier’s
telecommunications network treats calls of a particular kind.
(3) The first carrier is not required to comply with subclause (2) unless
the sole purpose of the access is to enable the second carrier to undertake
planning, maintenance or reconfiguration of the second carrier’s
telecommunications network.
(4) If
information is requested by the second carrier under subclause (2), the first
carrier must make the information available to the second carrier as soon as
practicable after the request is made.
(1) This clause applies to a carrier (the first carrier) if
the first carrier supplies carriage services to another carrier (the
second carrier).
(2) The first carrier must, if requested to do so by the second carrier,
provide the second carrier with timely and detailed telecommunications network
planning information that is sufficient to enable the second carrier to
undertake planning for the second carrier’s own telecommunications
network.
(3) The information is to include (but is not limited to) information
relating to the following:
(a) the volume or characteristics of traffic being offered by the first
carrier to a telecommunications network of the second carrier;
(b) the telecommunications network performance standards (if any) that
have been set by the first carrier.
(4) The first carrier is not required to comply with subclause (2) unless
the second carrier’s request is reasonable.
(5) If information is requested by the second carrier under subclause (2),
the first carrier must make the information available to the second carrier as
soon as practicable after the request is made.
(1) This clause applies to a carrier (the first carrier) if
the first carrier supplies carriage services to another carrier (the
second carrier).
(2) The first carrier must, if requested to do so by the second carrier,
provide the second carrier with timely and detailed information that:
(a) relates to likely changes to facilities on a telecommunications
network of the first carrier; and
(b) will affect the completion success rate of calls offered by the second
carrier.
(3) The first carrier is not required to comply with subclause (2) unless
the sole purpose of the provision of the information is to enable the second
carrier to undertake forward planning for its own telecommunications
network.
(4) If
information is requested by the second carrier under subclause (2), the first
carrier must make the information available to the second carrier as soon as
practicable after the request is made.
(1) This clause applies to a carrier (the first carrier) if
the first carrier supplies carriage services to another carrier (the
second carrier).
(2) The first carrier must, if requested to do so by the second carrier,
provide the second carrier with timely and detailed information relating
to:
(a) conditions affecting the quality of service experienced by customers
of the second carrier; and
(b) localisation of telecommunications network conditions affecting
traffic offered by the second carrier to the first carrier’s
telecommunications network; and
(c) routing information allowing the second carrier to determine in which
telecommunications network calls have failed; and
(d) identification of switching or other equipment or facilities in each
of the first carrier’s telecommunications networks which contribute to a
level of uncompleted calls, affecting the second carrier’s offered
traffic, beyond the threshold agreed by the first carrier and the second carrier
and consistent with terms used in the relevant ITU(T) Recommendations;
and
(e) periodic summaries, in relation to the second carrier’s traffic,
of unsuccessful call ratios across the first carrier’s telecommunications
network, categorised by cause of call failure and including separate
identification of telecommunications network difficulties and congestion;
and
(f) telecommunications network control actions taken by the first carrier
which would affect the completion success rate of calls offered to the first
carrier by the second carrier; and
(g) such other matters (if any) as are specified in the
regulations.
(3) The first carrier is not required to comply with subclause (2) unless
the second carrier’s request is reasonable.
(4) If information is requested by the second carrier under subclause (2),
the first carrier must make the information available to the second carrier as
soon as practicable after the request is made.
(5) In this clause:
ITU(T) Recommendations means the E500, E600 and E700 series
of recommendations dealing with quality of service, telecommunications network
management and traffic engineering promulgated by the International
Telecommunication Union, being recommendations in force on:
(a) 1 July 1997; or
(b) such later date (if any) as is specified in the regulations.
(1) A carrier (the first carrier) is not required to give
another carrier (the second carrier) information, or access to
information, under clause 18, 19, 20, 21 or 22 unless the second carrier has in
place security procedures:
(a) agreed between the first carrier and the second carrier; or
(b) failing agreement—determined in writing by the ACCC.
(2) For the purposes of subclause (1), security
procedures are procedures designed to protect the
confidentiality of information.
(1) The first carrier (within the meaning of clause 18, 19, 20, 21 or 22)
must comply with a requirement imposed on the first carrier by that clause on
such terms and conditions as are:
(a) agreed between the following parties:
(i) the first carrier;
(ii) the second carrier (within the meaning of that clause); or
(b) failing agreement, determined by an arbitrator appointed by the
parties.
If the parties fail to agree on the appointment of an arbitrator, the ACCC
is to be the arbitrator.
(2) The regulations may make provision for and in relation to the conduct
of an arbitration under this clause.
(3) The regulations may provide that, for the purposes of a particular
arbitration conducted by the ACCC under this clause, the ACCC may be constituted
by a single member, or a specified number of members, of the ACCC. For each such
arbitration, that member or those members are to be nominated in writing by the
Chairperson of the ACCC.
(4) Subclause (3) does not, by implication, limit subclause (2).
(5) A determination made in an arbitration under this clause must not be
inconsistent with a Ministerial pricing determination in force under clause
25.
(1) The Minister may make a written determination setting out principles
dealing with price-related terms and conditions relating to an obligation
imposed by clause 18, 19, 20, 21 or 22. The determination is to be known as a
Ministerial pricing determination.
(2) A determination under subclause (1) is a disallowable
instrument for the purposes of section 46A of the Acts Interpretation Act
1901.
(3) In this clause:
price-related terms and conditions means terms and conditions
relating to price or a method of ascertaining price.
(1) This clause applies to a carrier (the first carrier) if
the first carrier supplies carriage services to another carrier (the
second carrier).
(2) The first carrier must, if requested to do so by the second carrier,
consult with the second carrier before modifying or reconfiguring the first
carrier’s telecommunications network.
(3) The first carrier is not required to comply with subclause (2) unless
the modification or reconfiguration has a bearing on the second
carrier’s:
(a) telecommunications network planning activities; or
(b) telecommunications network maintenance activities; or
(c) telecommunications network reconfiguration activities.
(4) The first carrier must comply with the requirement set out in
subclause (2) on such terms and conditions as are:
(a) agreed between the following parties:
(i) the first carrier;
(ii) the second carrier; or
(b) failing agreement, determined by an arbitrator appointed by the
parties.
If the parties fail to agree on the appointment of an arbitrator, the ACCC
is to be the arbitrator.
(5) The regulations may make provision for and in relation to the conduct
of an arbitration under this clause.
(6) The regulations may provide that, for the purposes of a particular
arbitration conducted by the ACCC under this clause, the ACCC may be constituted
by a single member, or a specified number of members, of the ACCC. For each such
arbitration, that member or those members are to be nominated in writing by the
Chairperson of the ACCC.
(7) Subclause (6) does not, by implication, limit subclause
(5).
The following is a simplified outline of this Part:
• Carriers must provide other carriers with
access to:
(a) mobile telecommunications transmission towers; and
(b) the sites of mobile telecommunications transmission towers.
In this Part:
mobile telecommunications transmission tower means a tower,
mast or antenna that is used, or for use, in connection with:
(a) a public mobile telecommunications service; or
(b) a carriage service supplied by means of a base station that is part of
a terrestrial radiocommunications customer access network.
site means:
(a) land; or
(b) a building on land; or
(c) a structure on land.
(1) A carrier (the first carrier) must, if requested to do
so by another carrier (the second carrier) give the second carrier
access to a mobile telecommunications transmission tower owned or operated by
the first carrier.
(2) The first carrier is not required to comply with subclause (1)
unless:
(a) the access is provided for the sole purpose of enabling the second
carrier to install, maintain or operate a facility used, or for use, in
connection with:
(i) a public mobile telecommunications service; or
(ii) a carriage service supplied by means of a base station that is part
of a terrestrial radiocommunications customer access network; and
(b) the second carrier gives the first carrier reasonable notice that the
second carrier requires the access.
(3) The first carrier is not required to comply with subclause (1) in
relation to a particular mobile telecommunications transmission tower if there
is in force a written certificate issued by the ACA stating that, in the
ACA’s opinion, compliance with subclause (1) in relation to that tower is
not technically feasible.
(1) A carrier (the first carrier) must, if requested to do
so by another carrier (the second carrier) give the second carrier
access to a site controlled by the first carrier, if there is situated on the
site a mobile telecommunications transmission tower owned or operated by the
first carrier.
(2) The first carrier is not required to comply with subclause (1)
unless:
(a) the access is provided for the sole purpose of enabling the second
carrier to install, maintain or operate a facility used, or for use, in
connection with:
(i) a public mobile telecommunications service; or
(ii) a carriage service supplied by means of a base station that is part
of a terrestrial radiocommunications customer access network; and
(b) the second carrier gives the first carrier reasonable notice that the
second carrier requires the access.
(3) The first carrier is not required to comply with subclause (1) in
relation to a particular site if there is in force a written certificate issued
by the ACA stating that, in the ACA’s opinion, compliance with subclause
(1) in relation to that site is not technically feasible.
(1) The first carrier (within the meaning of clause 28) must comply with
subclause 28(1) on such terms and conditions as are:
(a) agreed between the following parties:
(i) the first carrier;
(ii) the second carrier (within the meaning of that clause); or
(b) failing agreement, determined by an arbitrator appointed by the
parties.
If the parties fail to agree on the appointment of an arbitrator, the ACCC
is to be the arbitrator.
(2) The first carrier (within the meaning of clause 29) must comply with
subclause 29(1) on such terms and conditions as are:
(a) agreed between the following parties:
(i) the first carrier;
(ii) the second carrier (within the meaning of that clause); or
(b) failing agreement, determined by an arbitrator appointed by the
parties.
If the parties fail to agree on the appointment of an arbitrator, the ACCC
is to be the arbitrator.
(3) The regulations may make provision for and in relation to the conduct
of an arbitration under this clause.
(4) The regulations may provide that, for the purposes of a particular
arbitration conducted by the ACCC under this clause, the ACCC may be constituted
by a single member, or a specified number of members, of the ACCC. For each such
arbitration, that member or those members are to be nominated in writing by the
Chairperson of the ACCC.
(5) Subclause (4) does not, by implication, limit subclause (3).
This Part does not, by implication, limit Part 3 of this
Schedule.
The following is a simplified outline of this Part:
• Carriers must keep records about their
underground facilities.
• Carriers must inspect their sites and
facilities regularly.
• Carriers must investigate their sites and
facilities if there are reasonable grounds to suspect that the sites or
facilities are likely to endanger:
(a) the health or safety of persons; or
(b) property.
• Carriers must take any remedial action that
is reasonably required following such an inspection or investigation.
(1) If a carrier owns or operates underground facilities, the carrier must
keep and maintain records of the kind and location of those
facilities.
(2) A carrier must not, in purported compliance with subclause (1), make a
record of any matter or thing in such a way that it does not correctly record
the matter or thing.
(1) If a facility is owned or operated by a carrier, the carrier must
inspect that facility regularly.
(2) In determining the regularity of inspections required by
subclause (1), regard must be had to good engineering practice.
If:
(a) a facility is owned or operated by a carrier; and
(b) the carrier has reasonable grounds to suspect that the condition of
the facility is likely to endanger:
(i) the health or safety of persons; or
(ii) property;
the carrier must investigate promptly the condition of the
facility.
(1) A carrier must take any remedial action that is reasonably required
following an inspection under clause 35.
(2) A carrier must take any remedial action that is reasonably required
following an investigation under clause 36.
(3) A carrier must comply with subclause (1) or (2) as soon as practicable
after the carrier becomes aware of the need to take the remedial action
concerned.
A service provider must comply with this Act.
The following is a simplified outline of this Part:
• Certain
operator services must be provided to end-users of standard telephone
services.
This Part applies to the following operator services:
(a) services for dealing with faults and service difficulties;
(b) services of a kind specified in the regulations.
(1) A carriage service provider who supplies a standard telephone service
must make operator services available to each end-user of that standard
telephone service.
(2) The provider may do this by:
(a) providing the operator services itself; or
(b) arranging with another person for the provision of the operator
services.
(1) If:
(a) a carriage service provider (the first provider) who
supplies a standard telephone service itself provides a particular kind of
operator services to end-users of its standard telephone service; and
(b) another carriage service provider (the second provider)
who supplies a standard telephone service does not itself provide that kind of
operator services to particular end-users of its standard telephone service;
and
(c) the second provider requests the first provider to enter into an
agreement for the first provider to provide that kind of operator services to
those end-users of the second provider’s standard telephone
service;
the first provider must comply with the request.
(2) The operator services are to be provided to the end-users of the
second provider’s standard telephone service in accordance with the
request and on such terms and conditions as are:
(a) agreed between the first provider and the second provider;
or
(b) failing agreement, determined by an arbitrator appointed by the
parties.
If the parties fail to agree on the appointment of an arbitrator, the ACCC
is to be the arbitrator.
(3) The regulations may make provision for and in relation to the conduct
of an arbitration under this clause.
(4) The regulations may provide that, for the purposes of a particular
arbitration conducted by the ACCC under this clause, the ACCC may be constituted
by a single member, or a specified number of members, of the ACCC. For each such
arbitration, that member or those members are to be nominated in writing by the
Chairperson of the ACCC.
(5) Subclause (4) does not, by implication, limit subclause
(3).
The following is a simplified outline of this Part:
• Directory
assistance services must be made available to end-users of standard telephone
services.
(1) A carriage service provider who supplies a standard telephone service
must make directory assistance services available to each end-user of the
service.
(2) The provider may do this by:
(a) providing the directory assistance services itself; or
(b) arranging with another person for the provision of the directory
assistance services.
(1) If:
(a) a carriage service provider (the first provider) who
supplies a standard telephone service itself provides directory assistance
services to end-users of its standard telephone service; and
(b) another carriage service provider (the second provider)
who supplies a standard telephone service does not itself provide directory
assistance services to particular end-users of its standard telephone service;
and
(c) the second provider requests the first provider to enter into an
agreement for the first provider to provide directory assistance services to
those end-users of the second provider’s standard telephone
service;
the first provider must comply with the request.
(2) The directory assistance services are to be provided to the end-users
of the second provider’s standard telephone service in accordance with the
request and on such terms and conditions as are:
(a) agreed between the first provider and the second provider;
or
(b) failing agreement, determined by an arbitrator appointed by the
parties.
If the parties fail to agree on the appointment of an arbitrator, the ACCC
is to be the arbitrator.
(3) The regulations may make provision for and in relation to the conduct
of an arbitration under this clause.
(4) The regulations may provide that, for the purposes of a particular
arbitration conducted by the ACCC under this clause, the ACCC may be constituted
by a single member, or a specified number of members, of the ACCC. For each such
arbitration, that member or those members are to be nominated in writing by the
Chairperson of the ACCC.
(5) Subclause (4) does not, by implication, limit subclause
(3).
The following is a simplified outline of this Part:
• If
a person or association is under an obligation to provide and maintain an
integrated public number database, carriage service providers must give the
person or association information in connection with the fulfilment of that
obligation.
(1) This clause applies if Telstra is obliged by a condition of a carrier
licence to provide and maintain an integrated public number database.
(2) If:
(a) a carriage service provider supplies a carriage service to an
end-user; and
(b) the end-user has a public number;
the carriage service provider must give Telstra such information as Telstra
reasonably requires in connection with Telstra’s fulfilment of that
obligation.
(3) In this clause:
number has the same meaning as in Division 2 of Part
22.
public number means a number specified in the numbering plan
as mentioned in subsection 302(3).
(1) This clause applies if a person or association is obliged by
section 309AE to provide and maintain an integrated public number
database.
(2) If:
(a) a carriage service provider supplies a carriage service to an
end-user; and
(b) the end-user has a public number;
the carriage service provider must give the person or association such
information as the person or association reasonably requires in connection with
the person’s or association’s fulfilment of that
obligation.
(3) In this clause:
number has the same meaning as in Division 2 of Part
22.
public number means a number specified in the numbering plan
as mentioned in subsection 302(3).
The following is a simplified outline of this Part:
• A
carriage service provider who supplies a standard telephone service must provide
itemised billing for each of its customers of such a service.
(1) This clause applies to a carriage service provider who supplies a
standard telephone service.
(2) The provider must provide itemised billing for calls made using such a
service. The provider may do this by:
(a) providing the itemised billing itself; or
(b) arranging with another person for the provision of the itemised
billing.
(3) The rule set out in subclause (2) does not apply in relation to calls
made using a particular service if the customer chooses not to have itemised
billing for calls made using that service.
(4) The rule set out in subclause (2) does not apply to designated local
calls unless the customer requests the provider to provide itemised billing in
relation to those calls.
(5) For the purposes of the application of this clause to a carriage
service provider who supplies a standard telephone service to a customer, a
designated local call is a call that:
(a) is made using that service; and
(b) is made between points in the applicable zone in relation to the
provider and in relation to the customer; and
(c) is not an exempt call (as defined by subclause (6)).
(6) For the purposes of subclause (5), a call is an exempt
call if:
(a) the call involves the use of a public mobile telecommunications
service (whether by the party who originated the call or by any other party to
the call); or
(b) the call involves the use of a satellite service.
(7) A reference in this clause to the applicable zone is a
reference to the applicable zone for the purposes of Part 8.
(8) For the purposes of this clause, a call is regarded as an untimed
local call if, and only if, the call is an eligible local call for the purposes
of Part 8.
itemised billing, in relation to calls of a particular kind,
means the provision to a customer of a bill that:
(a) if there is in force a written determination made by the ACA relating
to that kind of service—shows such details as are specified in the
determination; or
(b) in any other case—shows, for each call of that kind that is not
regarded as an untimed local call, the following details:
(i) the date on which the call was made;
(ii) the number to which the call was made;
(iii) the duration of the call;
(iv) the charge applicable to the call;
and complies with a determination in force under clause 15.
satellite service means a carriage service, where customer
equipment used in connection with the supply of the service communicates
directly with a satellite-based facility.
(10) A determination under paragraph (a) of the definition of
itemised billing in subclause (9) is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
(1) The ACA may, by notice in the Gazette, declare that a specified
carriage service provider is exempt from the requirement set out in subclause
13(2) in so far as that requirement applies in relation to specified customers.
The declaration has effect accordingly.
Note: Providers or customers may be specified by name, by
inclusion in a particular class or in any other way.
(2) In deciding whether a provider should be exempt from the requirement
set out in subclause 13(2), the ACA must have regard to:
(a) the technical feasibility of complying with the requirement set out in
that subclause; and
(b) any plans by the provider to install a capability to provide itemised
billing to those customers.
(3) Subclause (2) does not, by implication, limit the matters to which the
ACA may have regard.
(1) The ACA may, by written instrument, determine that specified details
must not be shown in an itemised bill provided by a carriage service provider to
a customer.
(2) In making a determination under subclause (1), the ACA must have
regard to the Information Privacy Principles set out in section 14 of the
Privacy Act 1988. This subclause does not, by implication, limit the
matters to which the ACA is to have regard.
(3) A carriage service provider must comply with a determination under
subclause (1).
The following is a simplified outline of this Part:
• A carrier may enter on land and exercise any
of the following powers:
(a) the power to inspect the land to determine whether the land is
suitable for the carrier’s purposes;
(b) the power to install a facility on the land;
(c) the power to maintain a facility that is situated on the
land.
• The power to install a facility may only be
exercised if:
(a) the carrier holds a facility installation permit; or
(b) the facility is a low-impact facility; or
(c) the installation is carried out before 1 July 2000 for the sole
purpose of connecting a building to a line that was first installed before
1 July 1997.
• A facility installation permit will only be
issued in relation to a facility if:
(a) the carrier has made reasonable efforts to negotiate in good faith
with the relevant approving authorities; and
(b) the telecommunications network to which the
facility relates is or will be of national significance; and
(c) the facility is an important part of the telecommunications network to
which the facility relates; and
(d) either the greater part of the infrastructure of the
telecommunications network to which the facility relates has already been
installed or relevant approving authorities are reasonably likely to approve the
installation of the greater part of the infrastructure of the telecommunications
network to which the facility relates; and
(e) the advantages that are likely to be derived from the operation of the
facility in the context of the telecommunications network to which the facility
relates outweigh any form of degradation of environmental amenity that is likely
to result from the installation of the facility.
• In exercising powers under this Part, a
carrier must comply with certain conditions, including:
(a) doing as little damage as practicable;
(b) acting in accordance with good engineering practice;
(c) complying with recognised industry standards;
(d) complying with conditions specified in the regulations;
(e) complying with conditions specified in a Ministerial Code of
Practice;
(f) complying with conditions specified in a facility installation permit;
(g) giving notice to the owner of land.
In this Part:
business day means a day that is not a Saturday, a Sunday or
a public holiday in the place concerned.
environment includes all aspects of the surroundings of human
beings, whether affecting human beings as individuals or in social
groupings.
facility installation permit means a permit issued under
clause 19.
listed international agreement has the meaning given by
clause 3.
public utility means a body that provides to the
public:
(a) reticulated products or services, such as electricity, gas, water,
sewerage or drainage; or
(b) communications services (other than carriage services); or
(c) transport services; or
(d) a product or service of a kind that is similar to a product or service
covered by paragraph (a), (b) or (c).
A reference in this Part to a listed international
agreement is a reference to an agreement set out in the following
table:
|
Listed international agreements |
|
|
|
||
|---|---|---|---|---|---|
|
|
|
Place agreement done |
|
||
|
1 |
Plant Protection Agreement for the Asia and Pacific Region |
Rome |
27 February 1956 |
||
|
2 |
Amendment to Article I(a) of the Plant Protection Agreement for the Asia
and Pacific Region of 27 February 1956, as amended |
Rome |
9 February 1984 |
||
|
3 |
Convention on Wetlands of International Importance Especially as Waterfowl
Habitat (as amended by the Protocol agreed to on 3 December 1982) |
Ramsar |
2 February 1971 |
||
|
4 |
Amendments to Articles 6 and 7 of the Convention on Wetlands of
International Importance Especially as Waterfowl Habitat of 2 February 1971, as
amended |
Regina |
3 June 1987 |
||
|
5 |
Agreement between the Government of Australia and Government of the
People’s Republic of China for the Protection of Migratory Birds and their
Environment |
Canberra |
23 December 1972 |
||
|
6 |
Convention Concerning the Protection of the World Cultural and Natural
Heritage |
Paris |
23 December 1972 |
||
|
7 |
Agreement between the Government of Australia and the Government of Japan
for the Protection of Migratory Birds and Birds in Danger of Extinction and
their Environment |
Tokyo |
8 February 1974 |
||
|
8 |
Convention on the Conservation of Nature in the South Pacific |
Apia |
12 June 1976 |
||
|
9 |
Convention on the Conservation of Migratory Species of Wild
Animals |
Bonn |
23 June 1979 |
||
|
10 |
Revised Text of the International Plant Protection Convention of
6 December 1951 |
Rome |
28 November 1979 |
||
|
11 |
Treaty between Australia and the Independent State of Papua New Guinea
concerning the Sovereignty and Maritime Boundaries in the area between the two
Countries, including the area known as Torres Strait, and Related
Matters |
Sydney |
15 February 1985 |
||
|
12 |
Protocol to Amend the Convention on Wetlands of International Importance
Especially of Waterfowl Habitat of 2 February 1971 |
Paris |
1 October 1986 |
||
|
13 |
Convention for the Protection of the Natural Resources and Environment of
the South Pacific Region |
Noumea |
24 November 1988 |
||
|
14 |
Agreement between the Government of Australia and the Government of the
USSR on Co-operation in the Field of Protection and Enhancement of the
Environment |
Canberra |
15 February 1990 |
||
|
15 |
Convention on Biological Diversity |
Rio de Janeiro |
June 1992 |
||
(1) A carrier may, for the purposes of determining whether any land is
suitable for its purposes:
(a) enter on, and inspect, the land; and
(b) do anything on the land that is necessary or desirable for that
purpose, including, for example, making surveys, taking levels, sinking bores,
taking samples, digging pits and examining the soil.
(2) A carrier may, for the purpose of surveying or obtaining information
in relation to any land that, in the carrier’s opinion, is or may be
suitable for its purposes:
(a) enter on any land; and
(b) do anything on the entered land that is necessary or desirable for
that purpose, including, for example, making surveys and taking
levels.
(1) A carrier may, for purposes connected with the supply of a carriage
service, carry out any of the following activities:
(a) the construction of a facility on, over or under any land;
(b) the attachment of a facility to any building or other structure;
(c) the carrying out of any works that are ancillary or incidental to an
activity covered by paragraph (a) or (b);
if:
(d) the carrier is authorised to do so by a facility installation permit;
or
(e) the facility is a low-impact facility (as defined by subclause (3));
or
(f) all of the following conditions are satisfied in relation to the
activity concerned:
(i) the activity occurs before 1 July 2000;
(ii) the activity is carried out for the sole purpose of connecting a
building, structure, caravan or mobile home to a line that forms part of a
telecommunications network;
(iii) the line was first installed before 1 July 1997.
(2) If subclause (1) authorises a carrier to carry out a particular
activity, the carrier may, for purposes in connection with the carrying out of
that activity:
(a) enter on, and occupy, any land; and
(b) on, over or under the land, do anything necessary or desirable for
those purposes, including, for example:
(i) constructing, erecting and placing any plant, machinery, equipment and
goods; and
(ii) felling and lopping trees and clearing and removing other vegetation
and undergrowth; and
(iii) making cuttings and excavations; and
(iv) restoring the surface of the land and, for that purpose, removing and
disposing of soil, vegetation and other material; and
(v) erecting temporary workshops, sheds and other buildings; and
(vi) levelling the surface of the land and making roads.
(3) The Minister may, by written instrument, determine that a specified
facility is a low-impact facility for the purposes of this clause. The
determination has effect accordingly.
Note: For specification by class, see subsection 46(2) of
the Acts Interpretation Act 1901.
(4) A determination under subclause (3) is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
(1) A carrier may, at any time, maintain:
(a) a facility constructed on, over or under any land; or
(b) a facility attached to a building or other structure.
(2) For the purpose of exercising powers under subclause (1), a carrier
may:
(a) enter on, and occupy, land; and
(b) remove, or erect a gate in, any fence.
(3) A reference in this clause to the maintenance of a
facility includes a reference to:
(a) the alteration, removal or repair of the facility; and
(b) the provisioning of the facility with material or with information
(whether in electronic form or otherwise); and
(c) the replacement of the whole or a part of the facility in its original
location, where the conditions specified in subclause (4) are satisfied;
and
(d) in a case where any tree, undergrowth or vegetation obstructs, or is
likely to obstruct, the operation of the facility—the cutting down or
lopping of the tree, or the clearing or removal of the undergrowth or
vegetation, as the case requires.
(4) For the purposes of paragraph (3)(c), the following conditions are
specified:
(a) the levels of noise that are likely to result from the operation of
the replacement facility are less than or equal to the levels of noise that
resulted from the operation of the original facility;
(b) in a case where the facility is a tower:
(i) the height of the replacement facility does not exceed the height of
the original facility; and
(ii) the volume of the replacement facility does not exceed the volume of
the original facility;
(c) in a case where the facility is not a tower—either:
(i) the volume of the replacement facility does not exceed the volume of
the original facility; or
(ii) the replacement facility is located inside a fully-enclosed building
and the building is not modified externally as a result of the carrying out of
the activity;
(d) such other conditions (if any) as are specified in the
regulations.
(5) In subclause (4):
tower means a tower, mast or antenna.
In exercising its powers under Division 2, 3 or 4, a carrier must take
all reasonable steps to ensure that the carrier causes as little detriment and
inconvenience, and does as little damage, as is practicable.
A carrier must, in connection with carrying out an activity covered by
Division 2, 3 or 4, take all reasonable steps:
(a) to act in accordance with good engineering practice; and
(b) to protect the safety of persons and property; and
(c) to ensure that the activity interferes as little as practicable
with:
(i) the operations of a public utility; and
(ii) public roads and paths; and
(iii) the movement of traffic; and
(iv) the use of land.
(1) A carrier must make reasonable efforts to enter into an agreement with
a public utility that makes provision for the manner in which the carrier will
engage in an activity that is:
(a) covered by Division 2, 3 or 4; and
(b) likely to affect the operations of the utility.
(2) A carrier must comply with an agreement in force under subclause
(1).
If a carrier engages in an activity covered by Division 2, 3 or 4, the
carrier must do so in accordance with any standard that:
(a) relates to the activity; and
(b) is recognised by participants in the Australian telecommunications
industry as a standard for use in that industry; and
(c) is likely to reduce a risk to the safety of the public if the carrier
complies with the standard.
If a carrier engages in an activity covered by Division 2, 3 or 4, the
carrier must do so in a manner that is consistent with Australia’s
obligations under a listed international agreement that is relevant to the
activity.
If a carrier engages in an activity covered by Division 2, 3 or 4, the
carrier must do so in accordance with any conditions that are specified in the
regulations.
(1) The Minister may, by written instrument, make a Code of Practice
setting out conditions that are to be complied with by carriers in engaging in
any or all of the activities covered by Division 2, 3 or 4 (other than
activities covered by a facility installation permit).
(2) This clause does not, by implication, limit a power conferred by or
under this Act to make an instrument.
(3) This clause does not, by implication, limit the matters that may be
dealt with by codes or standards referred to in Part 6.
(4) Subclauses (2) and (3) do not, by implication, limit subsection 33(3B)
of the Acts Interpretation Act 1901.
(5) An instrument under subsection (1) is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
If:
(a) a carrier engages, or proposes to engage, in an activity covered by
Division 3; and
(b) that activity is or will be authorised by a facility installation
permit; and
(c) the facility installation permit is subject to one or more
conditions;
the carrier must not contravene any of those conditions.
(1) Before exercising its powers under Division 2, 3 or 4 in relation to
any land, a carrier must give written notice of its intention to do so
to:
(a) the owner of the land; and
(b) if the land is occupied by a person other than the owner—the
occupier.
(2) The notice must specify the purpose for which the carrier intends to
exercise its powers in relation to the land.
(3) The notice under subclause (1) must be given at least 10 business days
before the carrier begins to exercise its powers in relation to the land.
However, if:
(a) no part of the land is, or is included in, a sensitive area (as
defined by subclause (6)); and
(b) the notice relates to the exercise of powers under Division 2 (which
deals with inspection); and
(c) the exercise of those powers does not involve any material disturbance
to the land;
the notice must be given at least 2 business days before the carrier begins
to exercise the powers concerned.
(4) A person may waive the person’s right to be given a notice under
subclause (1).
(5) Subclause (1) does not apply if:
(a) the carrier intends to exercise its powers under Division 4 (which
deals with maintenance); and
(b) those powers need to be exercised without delay in order to
protect:
(i) the integrity of a telecommunications network or a facility;
or
(ii) the health or safety of persons; or
(iii) the environment; or
(iv) property; or
(v) the maintenance of an adequate level of service.
(6) For the purposes of this clause, each of the following areas is a
sensitive area:
(a) an identified property (within the meaning of section 3A of the
World Heritage Properties Conservation Act 1983);
(b) a place that Australia is required to protect by the terms of a listed
international agreement;
(c) an area that, under a law of the Commonwealth, a State or a Territory,
is reserved wholly or principally for nature conservation purposes (however
described);
(d) an area that, under a law of the Commonwealth, a State or a Territory,
is protected from significant environmental disturbance.
(1) At least 10 business days before exercising its powers under Division
3 or 4 to:
(a) cut down or lop a tree on private land; or
(b) clear or remove undergrowth or vegetation on private land;
a carrier must give:
(c) the owner of the land; and
(d) if the land is occupied by a person other than the owner—the
occupier;
a written notice requesting that the tree be cut down or lopped, or that
the undergrowth or vegetation be cleared, as the case may be, in the manner, and
within the period, specified in the notice.
(2) The carrier may only exercise those powers if the request is not
complied with.
(3) A person may waive the person’s right to be given a notice under
subclause (1).
(4) Subclauses (1) and (2) do not apply if:
(a) the carrier intends to exercise its powers under Division 4 (which
deals with maintenance); and
(b) those powers need to be exercised without delay in order to
protect:
(i) the integrity of a telecommunications network or a facility;
or
(ii) the health or safety of persons; or
(iii) the environment; or
(iv) property; or
(v) the maintenance of an adequate level of service.
(1) At least 10 business days before exercising its powers under Division
3 to:
(a) close, divert or narrow a road or bridge; or
(b) install a facility on, over or under a road or bridge; or
(c) alter the position of a water, sewerage or gas main or pipe;
or
(d) alter the position of an electricity cable or wire;
a carrier must give written notice of its intention to do so to the person
or authority responsible for the care and management of the road, bridge, main,
pipe, cable or wire.
(2) A person or authority may waive the person’s or
authority’s right to be given a notice under subclause (1).
(3) Subclause (1) does not apply if:
(a) the carrier intends to exercise its powers under Division 4 (which
deals with maintenance); and
(b) those powers need to be exercised without delay in order to
protect:
(i) the integrity of a telecommunications network or a facility;
or
(ii) the health or safety of persons; or
(iii) the environment; or
(iv) property; or
(v) the maintenance of an adequate level of service.
If a carrier engages in an activity covered by Division 3, the carrier
must ensure that a facility installed over a road, bridge, path or navigable
water is installed in a way that will allow reasonable passage by persons,
vehicles and vessels.
(1) A carrier may apply to the ACA for a permit authorising the carrier to
carry out one or more specified activities referred to in Division 3 (which
deals with installation of facilities).
(2) The permit is called a facility installation
permit.
An application must be:
(a) in writing; and
(b) in accordance with the form approved in writing by the ACA.
An application must be accompanied by the charge (if any) fixed by a
determination under section 52 of the Australian Communications Authority Act
1996 in relation to so much of the ACA’s expenses in connection with
dealing with the application as do not relate to the conduct of a public inquiry
under Part 25.
(1) After considering the application, the ACA may issue a facility
installation permit authorising the applicant to carry out any or all of the
activities specified in the application.
(2) The ACA must not issue a facility installation permit unless the ACA
has held a public inquiry under Part 25 about whether the permit should be
issued.
(3) The ACA may decide to refuse to issue a facility installation permit
without holding a public inquiry under Part 25 about whether the permit should
be issued.
Note: An example of the operation of this subclause would be
a case where the application does not disclose grounds on which the ACA could
issue the permit.
(4) If the ACA decides to refuse to issue a facility installation permit,
it must give the applicant a written notice setting out the decision.
(5) Clause 21 does not prevent a charge from being fixed by a
determination under section 52 of the Australian Communications Authority Act
1996 in relation to the holding of a public inquiry under Part 25 about
whether a facility installation permit should be issued.
(1) If:
(a) the ACA receives an application for a facility installation permit;
and
(b) 20 business days pass and the ACA has neither:
(i) notified the applicant in writing that the ACA has decided to refuse
to issue the permit; nor
(ii) notified the applicant in writing that the ACA has decided to hold a
public inquiry under Part 25 about whether the permit should be issued;
the ACA is taken, at the end of that period of 20 business days, to have
decided to refuse to issue the permit.
(2) If:
(a) the ACA receives an application for a facility installation permit;
and
(b) 75 business days pass and the ACA has neither:
(i) notified the applicant in writing that the ACA has decided to refuse
to issue the permit; nor
(ii) notified the applicant in writing that the ACA has decided to issue
the permit;
the ACA is taken, at the end of that period of 75 business days, to have
decided to refuse to issue the permit.
(3) The ACA may, by written instrument, determine that subclause (2) has
effect, in relation to a specified application for a facility installation
permit, as if a reference in that subclause to 75 business days were a reference
to such greater number of business days, not exceeding 95 business days, as is
specified in the determination. The determination has effect
accordingly.
(4) In determining the validity of any action taken by the ACA under Part
25 in relation to the holding of a public inquiry about whether a facility
installation permit should be issued, regard must be had to the ACA’s need
to act with sufficient speed to meet the time limit imposed by subclause
(2).
Criteria
(1) The ACA must not issue a facility installation permit that authorises
a carrier to carry out an activity in relation to the installation of a facility
unless the ACA is satisfied that:
(a) both:
(i) the carrier has made reasonable efforts to negotiate in good faith
with each authority whose approval is required or would, apart from this Part,
be required, for carrying out the activity; and
(ii) the approvals have not been obtained within 40 business days
after those negotiations began; and
(b) the telecommunications network to which the facility relates is or
will be of national significance; and
(c) the facility is an important part of the telecommunications network to
which the facility relates; and
(d) any of the following conditions is satisfied:
(i) the greater part of the infrastructure of the telecommunications
network to which the facility relates has already been installed;
(ii) the greater part of the infrastructure of the telecommunications
network to which the facility relates has not been installed, but each authority
whose approval was required or would, apart from this Part, be required, for the
installation of the greater part of the infrastructure of the network has given,
or is reasonably likely to give, such an approval;
(iii) no part of the infrastructure of the telecommunications network to
which the facility relates has been installed, but each authority whose approval
was required or would, apart from this Part, be required, for the installation
of the greater part of the infrastructure of the network has given, or is
reasonably likely to give, such an approval; and
(e) the advantages that are likely to be derived from the operation of the
facility in the context of the telecommunications network to which the facility
relates outweigh any form of degradation of environmental amenity that is likely
to result from the installation of the facility.
Networks of national significance
(2) In determining the matter set out in paragraph (1)(b), the ACA must
have regard to the following:
(a) the geographical reach of the network;
(b) the number of customers connected, or likely to be connected, to the
network;
(c) the importance of the network to the national economy;
(d) such other matters (if any) as the ACA considers relevant.
When a facility is an important part of a network
(3) In determining the matter set out in paragraph (1)(c), the ACA must
have regard to at least one of the following:
(a) the technical importance of the facility in the context of the
operation of the telecommunications network to which the facility
relates;
(b) the economic importance of the facility in the context of the
operation of the telecommunications network to which the facility
relates;
(c) the social importance of the facility in the context of the operation
of the telecommunications network to which the facility relates.
When advantages of a facility outweigh degradation of environmental
amenity
(4) In determining the matter set out in paragraph (1)(e), the ACA must
have regard to the following:
(a) the extent to which the installation of the facility is likely to
promote the long-term interests of end-users of carriage services or of services
supplied by means of carriage services;
(b) the impact of the installation, maintenance or operation of the
facility on the environment;
(c) any relevant technical and/or economic aspects of the installation,
maintenance or operation of the facility in the context of the operation or
proposed operation of the telecommunications network to which the facility
relates;
(d) whether the installation of the facility contributes to the fulfilment
by the applicant of the universal service obligation;
(e) whether the installation of the facility involves co-location with one
or more other facilities;
(f) whether the installation of the facility facilitates co-location, or
future co-location, with one or more other facilities;
(g) such other matters (if any) as the ACA considers relevant.
Long-term interests of end-users
(5) For the purposes of this clause, the question whether a particular
thing promotes the long-term interests of end-users of carriage services or of
services supplied by means of carriage services is to be determined in the same
manner as that question is determined for the purposes of Part XIC of the
Trade Practices Act 1974.
Environmental impact
(6) In determining the matter set out in paragraph (4)(b), the ACA must
have regard to the following:
(a) whether the installation, maintenance or operation of the
facility:
(i) is inconsistent with Australia’s obligations under a listed
international agreement; or
(ii) could threaten with extinction, or significantly impede the recovery
of, a threatened species; or
(iii) could put a species of flora or fauna at risk of becoming a
threatened species; or
(iv) could have an adverse effect on a threatened species of flora or
fauna; or
(v) could damage the whole or a part of a habitat of a threatened species
of flora or fauna; or
(vi) could damage the whole or a part of a place, or an ecological
community, that is essential to the continuing existence of a threatened species
of flora or fauna;
(b) whether the facility is to be installed at any of the following
places:
(i) an identified property (within the meaning of section 3A of the
World Heritage Properties Conservation Act 1983);
(ii) a place that Australia is required to protect by the terms of a
listed international agreement;
(iii) an area that, under a law of the Commonwealth, a State or a
Territory, is reserved wholly or principally for nature conservation purposes
(however described);
(iv) an area that, under a law of the Commonwealth, a State or a
Territory, is protected from significant environmental disturbance;
(c) whether the facility is to be installed at or near an area or thing
that is:
(i) entered in the Register of the National Estate; or
(ii) entered in the Interim List for that Register; or
(iii) registered under a law of a State or Territory relating to heritage
conservation; or
(iv) of particular significance to Aboriginal persons, or Torres Strait
Islanders, in accordance with their traditions;
(d) the visual effect of the facility on streetscapes and other
landscapes;
(e) such other matters (if any) as the ACA considers relevant.
Authority
(7) A reference in this clause to an authority includes a
reference to:
(a) an authority of the Commonwealth, a State or a Territory;
and
(b) a local government body; and
(c) an owner or occupier of land.
Definitions
(8) In this clause:
approval means an approval or permission (however
described).
negotiations includes:
(a) the submission of an application for approval; and
(b) pursuing an application for approval.
(1) In performing a function or exercising a power, conferred on the ACA
by this Part, the ACA is exempt from any administrative procedures in force
under section 6 of the Environment Protection (Impact of Proposals) Act
1974.
(2) Before issuing a facility installation permit, the ACA must
consult:
(a) the Secretary to the Department responsible for the administration of
the Environment Protection (Impact of Proposals) Act 1974; and
(b) the Australian Heritage Commission.
(3) In this clause:
this Part includes:
(a) Part 25, to the extent that that Part relates to the holding of a
public inquiry about whether a facility installation permit should be issued;
and
(b) Part 29, to the extent that that Part relates to this Part.
Before making a decision to issue, or to refuse to issue, a facility
installation permit, the ACA must consult the ACCC.
A facility installation permit has effect subject to this Act.
(1) A facility installation permit comes into force when it is issued and
remains in force until the end of the period specified in the permit.
(2) However, the ACA may, by written notice given to the holder of a
facility installation permit, extend the period specified in the permit if the
ACA is satisfied that the extension is warranted because of special
circumstances.
(1) A facility installation permit is subject to such conditions as are
specified in the permit.
(2) A condition of a facility installation permit may restrict, limit or
prevent the exercise of, a power referred to in Division 3. This subclause does
not, by implication, limit subclause (1).
(3) The following are examples of conditions to which a facility
installation permit may be subject:
(a) a condition requiring the holder to undertake an assessment, or a
further assessment, of the environmental impact of the installation of the
facility concerned;
(b) a condition requiring the holder to consult a particular person or
body in relation to the installation of the facility concerned;
(c) a condition requiring the holder to obtain the approval of a
particular person or body in relation to the installation of the facility
concerned.
The ACA may issue a formal warning to the holder of a facility
installation permit if the holder contravenes a condition to which the permit is
subject.
The holder of a facility installation permit may, at any time, surrender
the permit by written notice given to the ACA.
(1) The ACA may, by written notice given to the holder of a facility
installation permit, cancel the permit.
(2) In deciding whether to cancel the permit, the ACA may have regard
to:
(a) any contravention of Division 5 or 6; and
(b) any matter which the ACA was entitled to have regard in deciding
whether to issue a permit.
(3) Subclause (2) does not, by implication, limit the matters to which the
ACA may have regard.
(1) For the purposes of the performance of the functions, and the exercise
of the powers, conferred on the ACA by this Part, the ACA is to be constituted
by:
(a) the Chairman of the ACA; and
(b) not fewer than 2, and not more than 4, eligible associate members of
the ACA.
(2) For the purposes of subclause (1), an eligible associate
member of the ACA is an associate member of the ACA whose instrument of
appointment contains a statement to the effect that the member’s
appointment relates to the performance of the ACA’s functions, and the
exercise of the ACA’s powers, under this Part.
(3) This clause has effect despite anything in section 1506 (which deals
with hearings for the purposes of a public inquiry).
(4) In this clause:
this Part includes:
(a) Part 25, to the extent that that Part relates to the holding of a
public inquiry about whether a facility installation permit should be issued;
and
(b) Part 29, to the extent that that Part relates to this Part.
(1) Applications may be made to the Administrative Appeals Tribunal for
review of any of the following decisions of the ACA:
(a) a decision under clause 23 or 23A to issue, or to refuse to issue, a
facility installation permit;
(b) a decision under subclause 27(1) to specify a condition of a facility
installation permit.
(2) If the ACA:
(a) makes a decision of a kind covered by subsection (1); and
(b) gives to the person or persons whose interests are affected by the
decision written notice of the making of the decision;
that notice is to include a statement to the effect that, subject to the
Administrative Appeals Tribunal Act 1975, application may be made to the
Administrative Appeals Tribunal for review of the decision.
(3) A failure to comply with subsection (2) does not affect the validity
of a decision.
(4) In this section:
decision has the same meaning as in the Administrative
Appeals Tribunal Act 1975.
(1) Divisions 2, 3 and 4 do not operate so as to confer a power to the
extent that the exercise of the power would be inconsistent with the provisions
of a law of a State or Territory.
(2) The rule set out in subclause (1) has effect subject to any exemptions
that are applicable under clause 34.
(1) This clause applies to an activity carried on by a carrier if the
activity is authorised by Division 2, 3 or 4.
(2) The carrier may engage in the activity despite a law of a State or
Territory about:
(a) the assessment of the environmental effects of engaging in the
activity; or
(b) the protection of places or items of significance to Australia’s
natural or cultural heritage; or
(c) town planning; or
(d) the planning, design, siting, construction, alteration or removal of a
structure; or
(e) the powers and functions of a local government body; or
(f) the use of land; or
(g) tenancy; or
(h) the supply of fuel or power, including the supply and distribution of
extra-low voltage power systems; or
(i) a matter specified in the regulations.
(3) Paragraph (2)(b) does not apply to a law in so far as the law provides
for the protection of places or items of significance to the cultural heritage
of Aboriginal persons or Torres Strait Islanders.
(4) Paragraph (2)(h) does not apply to a law in so far as the law deals
with the supply of electricity at a voltage that exceeds that used for ordinary
commercial or domestic requirements.
It is the intention of the Parliament that, if clause 34 entitles a
carrier to engage in activities despite particular laws of a State or Territory,
nothing in this Division is to affect the operation of any other law of a State
or Territory, so far as that other law is capable of operating concurrently with
this Act.
This Division does not affect the liability of a carrier to taxation
under a law of a State or Territory.
(1) In performing a function, or exercising a power, conferred on the ACA
by this Part, the ACA must have regard to:
(a) any guidelines in force under subclause (2); and
(b) such other matters as the ACA considers relevant.
(2) The ACA may, by written instrument, formulate guidelines for the
purposes of subclause (1).
(1) If a person suffers financial loss or damage because of anything done
by a carrier under Division 2, 3 or 4 in relation to:
(a) any property owned by the person; or
(b) any property in which the person has an interest;
there is payable to the person by the carrier such reasonable amount of
compensation:
(c) as is agreed between them; or
(d) failing agreement—as is determined by a court of competent
jurisdiction.
(2) Compensation payable under subclause (1) includes, without limitation,
compensation in relation to:
(a) damage of a temporary character as well as of a permanent character;
and
(b) the taking of sand, soil, stone, gravel, timber, water and other
things.
(3) In this clause:
court of competent jurisdiction, in relation to property,
means:
(a) the Federal Court; or
(b) the Supreme Court of the State or Territory in which the property is
situated or was situated at the time of the relevant loss or damage;
or
(c) an inferior court that has jurisdiction:
(i) for the recovery of debts up to an amount not less than the amount of
compensation claimed by the person; and
(ii) in relation to the locality in which the property, or part of the
property, is situated or was situated at the time of the relevant loss or
damage.
inferior court means:
(a) a County Court, District Court or local Court of a State or Territory;
or
(b) a court of summary jurisdiction exercising civil
jurisdiction.
If, under a provision of Division 2, 3 or 4, a carrier is empowered
to:
(a) enter on land; or
(b) inspect land; or
(c) occupy land; or
(d) do anything else on, over or under land;
the provision also empowers:
(e) an employee of the carrier; or
(f) a person acting for the carrier under a contract; or
(g) an employee of a person referred to in paragraph (f);
to do that thing.
A law of a State or Territory has no effect to the extent to which the
law discriminates, or would have the effect (whether direct or indirect) of
discriminating, against a particular carrier or against a particular class of
carriers.
It is the intention of the Parliament that this Part is not to be
construed as preventing a law of a State or Territory from conferring powers or
immunities on carriers, so long as those laws are capable of operating
concurrently with this Act.
(1) The ACA may, by written instrument, impose limits on amounts
recoverable in tort in relation to acts done, or omissions made, in relation to
the supply of specified carriage services.
Note: For specification by class, see subsection 46(2) of
the Acts Interpretation Act 1901.
(2) An instrument under subclause (1) has effect accordingly.
(3) A limit imposed by an instrument under subclause (1) may be expressed
to apply in relation to:
(a) the total of the amounts that can be recovered in relation to a single
event; or
(b) the total of the amounts that can be recovered by a particular
plaintiff in relation to a single event.
(4) An instrument under subclause (1) may impose a limit expressed
as:
(a) a dollar amount; or
(b) a method of calculating an amount.
(5) Subclauses (3) and (4) do not, by implication, limit subclause
(1).
(6) This clause does not apply to a cause of action under Part 9 (which
deals with the customer service guarantee).
(7) This clause does not apply to a cause of action under clause 36B
(which deals with compensation for loss or damage resulting from a
carrier’s activities under Division 2, 3 or 4).
(8) An instrument under subclause (1) is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act 1901.
Unless the circumstances indicate otherwise, a facility, or part of a
facility, that is supplied, installed, maintained or operated by a carrier
remains the property of the carrier, whether or not it has become (either in
whole or in part) a fixture.
(1) The ACA may inform members of the public about the kinds and location
of underground facilities.
(2) Clause 31 does not apply to the function conferred on the ACA by
subclause (1).
(1) If:
(a) a carrier is unable, after diligent inquiry, to find out who owns
particular land; or
(b) a carrier is unable to serve a notice under this Part on the owner of
land either personally or by post;
the carrier may serve a notice under this Part on the owner of the land by
publishing a copy of the notice in a newspaper circulating in a district in
which the land is situated and:
(c) if the land is occupied—serving a copy of the notice on the
occupier; or
(d) if the land is not occupied—attaching, if practicable, a copy of
the notice to a conspicuous part of the land.
(2) If a carrier is unable, after diligent inquiry, to find out:
(a) whether particular land is occupied; or
(b) who occupies particular land;
the carrier may treat the land as unoccupied land.
(3) If a carrier is unable to serve a notice under this Part on the
occupier of land either personally or by post, the carrier may serve a notice
under this Part on the occupier by:
(a) publishing a copy of the notice in a newspaper circulating in a
district in which the land is situated; and
(b) attaching, if practicable, a copy of the notice to a conspicuous part
of the land.
(4) This clause does not affect the operation of any other law of the
Commonwealth, or of any law of a State or Territory, that authorises the service
of a document otherwise than as provided in this clause.
(1) This clause applies to a particular exempt activity if:
(a) before 1 July 1997, a proposal to engage in the activity was
notified by a carrier (within the meaning of the Telecommunications Act
1991) under a Telecommunications National Code; and
(b) the activity commenced on or before 31 December 1997.
(2) Despite the repeal of the Telecommunications Act 1991 by the
Telecommunications (Transitional and Consequential Amendments) Act 1996,
sections 116, 117, 118 and 119 of the Telecommunications Act 1991
continue to apply during the transitional period, in relation to the
activity, as if:
(a) a reference in those sections to a carrier (within the meaning of the
Telecommunications Act 1991) were a reference to a carrier (within the
meaning of this Act); and
(b) a reference in those sections to AUSTEL were a reference to the ACA;
and
(c) a reference in section 117 of the Telecommunications Act 1991
to paragraph 327(b) of that Act were a reference to section 1501 of this Act;
and
(d) a reference in section 117 of the Telecommunications Act 1991
to Part 14 of that Act were a reference to Part 25 of this Act; and
(e) that repeal had not been made.
(3) If the activity consists of the installation of a line, subparagraph
5(1)(f)(iii) of this Schedule has effect as if the activity had been completed
before 1 July 1997.
(4) Part 1 of Schedule 1 to this Act has effect as if sections 116, 117,
118 and 119 of the Telecommunications Act 1991 were provisions of this
Act.
(5) In this clause:
AUSTEL means the Australian Telecommunications
Authority.
exempt activity has the same meaning as in the
Telecommunications Act 1991, as in force before 1 July 1997.
Telecommunications National Code means a National Code
determined under section 117 of the Telecommunications Act
1991.
transitional period means the period:
(a) beginning on 1 July 1997; and
(b) ending at the end of 30 June 1999.
(1) This clause applies to an activity if:
(a) before 1 July 1997, a carrier (within the meaning of the
Telecommunications Act 1991) notified under Division 3 of Part 7 of the
Telecommunications Act 1991 the carrier’s intention to carry out
the activity; and
(b) the activity commenced on or before 31 December 1997.
(2) Despite the repeal of the Telecommunications Act 1991 by the
Telecommunications (Transitional and Consequential Amendments) Act 1996,
Division 3 of Part 7 of the Telecommunications Act 1991 continues to
apply during the transitional period, in relation to the activity, as
if:
(a) a reference in that Division to a carrier (within the meaning of the
Telecommunications Act 1991) were a reference to a carrier (within the
meaning of this Act); and
(b) a reference in that Division to AUSTEL were a reference to the ACA;
and
(c) that repeal had not been made.
(3) If the activity consists of the installation of a line,
subparagraph 5(1)(f)(iii) of this Schedule has effect as if the activity
had been completed before 1 July 1997.
(4) Part 1 of Schedule 1 to this Act has effect as if the provisions of
Division 3 of Part 7 of the Telecommunications Act 1991 were provisions
of this Act.
(5) In this clause:
AUSTEL means the Australian Telecommunications
Authority.
transitional period means the period:
(a) beginning on 1 July 1997; and
(b) ending at the end of 30 June 1999.
A law of a State or Territory that relates to:
(a) the standards applicable to:
(i) the design; or
(ii) the manner of the construction;
of a building, structure or facility; or
(b) the approval of the construction of a building, structure or facility;
or
(c) the occupancy, or use, of a building, structure or facility;
or
(d) the alteration or demolition of a building, structure or
facility;
does not apply to a building, structure or facility that is the property of
a carrier if the construction, alteration or demolition of the building,
structure or facility was authorised by:
(e) section 116 of the Telecommunications Act 1991; or
(f) Division 3 of Part 7 of the Telecommunications Act
1991.
The following kinds of decisions are specified for the purposes of
section 1946:
(a) a decision under section 219, 220 or 221 to refuse to grant a carrier
licence;
(b) a decision under section 226A to:
(i) give or vary a direction; or
(ii) refuse to revoke a direction;
(c) a decision under section 229 to cancel a carrier licence;
(d) a decision of a kind referred to in subsection 232(6) (which deals
with remission of late payment penalty);
(e) a decision under section 233E to refuse to make a nominated carrier
declaration;
(f) a decision under section 233G to revoke a nominated carrier
declaration;
(g) a decision of a kind referred to in subsection 268(5) (which deals
with decisions under service provider determinations);
(h) a decision under section 278 to:
(i) give or vary a direction; or
(ii) refuse to revoke a direction;
(i) a decision under section 1906 to refuse to register a code;
(j) a decision under section 1907A to:
(i) give or vary a direction; or
(ii) refuse to revoke a direction;
(k) a decision under section 1711A to refuse to make a
declaration;
(l) a decision under section 1712 to give a direction;
(m) a decision under section 1742 to refuse to make a
declaration;
(n) a decision under section 1724A to refuse to make a
declaration;
(o) a decision under section 1733 to refuse to make a
declaration;
(p) a decision under section 416 to refuse to issue a connection permit;
(q) a decision to make a declaration under section 416B (which deals with
duration of connection permits);
(r) a decision under paragraph 417(1)(c) or subsection 417(3) to specify,
impose, vary or revoke a condition of a connection permit;
(s) a decision under section 421 to cancel a connection permit;
(t) a decision under section 435 to refuse to grant a cabling
licence;
(u) a decision under section 438 to specify, impose, vary or revoke a
condition of a cabling licence;
(v) a decision under section 442 to cancel a cabling licence;
(w) a decision of a kind referred to in subsection 309AA(6)
(which deals with remission of late payment penalty);
(x) a decision under subsection 309AA(10) (which deals with the withdrawal
of numbers);
(y) a decision under clause 30 of Schedule 3 to cancel a facility
installation permit.
The following kinds of decisions are specified for the purposes of
subsection 1947(1):
(a) a decision under section 219 or 220 to refuse to grant a carrier
licence;
(b) a decision under section 435 to refuse to grant a cabling
licence;
(c) a decision under subsection 438(3) to impose, vary or revoke a
condition of a cabling licence, being a decision on an application made under
paragraph 438A(1)(b).
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