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This is a Bill, not an Act. For current law, see the Acts databases.
1996
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Telstra (Dilution
of Public Ownership) Bill 1996
No. ,
1996
(Communications and the
Arts)
A Bill for an Act relating to the
dilution of the public ownership of Telstra, and for other
purposes
9601520—1,000/2.5.1996—(15/96)
Contents
Telecommunications Act
1991 6tdpo0h1.html
Telstra Corporation Act
1991 6tdpo0h1.html
9601520—1,000/2.5.1996—(15/96)
The Parliament of Australia enacts:
This Act may be cited as the Telstra (Dilution of Public Ownership)
Act 1996.
(1) Subject to this section, this Act commences on the day on which it
receives the Royal Assent.
(2) Item 25 of Schedule 1 commences on the first day after the
minority-interest sale time.
(3) In this section:
minority-interest sale time means the first time after the
commencement of this section when a person other than the Commonwealth becomes
the legal owner of any of the voting shares in Telstra.
Subject to section 2, each Act that is specified in a Schedule to this
Act is amended as set out in the applicable items in the Schedule concerned, and
any other item in a Schedule to this Act has effect according to its
terms.
1 Subsection 38(2)
After “persons in” (first occurring), insert “connection
with”.
2 Paragraph 38(2)(b)
Omit “the quality of”.
3 At the beginning of subparagraphs 38(2)(b)(i),
(ii) and (iii)
Insert “the quality of”.
4 At the end of paragraph
38(2)(b)
Add:
(iv) matters associated with, or incidental to, the supply of goods or
services referred to in subparagraph (i), (ii) or (iii); and
5 At the end of section 38
Add:
(4) The matters referred to in subparagraph (2)(b)(iv) include (but are
not limited to):
(a) the timeliness and comprehensibility of bills; and
(b) the procedures to be followed by carriers to generate standard billing
reports in order to assist in the investigation of consumer complaints about
bills; and
(c) any other matter relating to customer billing.
6 Before paragraph 50(3)(a)
Insert:
(aa) that he or she is empowered to give under section 87P; or
7 At the end of section 55
Add:
; and (e) providing for a customer service guarantee that requires
carriers to comply with certain performance standards.
8 At the end of subsection
61(1)
Add “(other than section 87P)”.
9 Subsection 73(2)
Omit “an eligible customer”, substitute “a
customer”.
10 Subsection 73(3) (definition of eligible
customer)
Repeal the definition.
11 After section 87C
Insert:
(1) In this Division:
customer includes prospective customer.
damages includes punitive damages.
(2) In determining the meaning that an expression has when used in a
provision of this Act other than this Division, subsection (1) is to be
disregarded.
(1) AUSTEL may, by written instrument, make standards to be complied with
by carriers in relation to:
(a) the making of arrangements with customers about the period taken to
comply with requests to connect customers to specified kinds of
telecommunications services; and
(b) the periods that carriers may offer to customers when making those
arrangements; and
(c) the compliance by carriers with the terms of those arrangements;
and
(d) the period taken to comply with requests to rectify faults or service
difficulties relating to specified kinds of telecommunications services, where
the rectification follows the making of a customer report about a fault or
service difficulty; and
(e) the keeping of appointments to meet customers, or representatives of
customers, where the appointment relates to:
(i) a connection of a kind covered by paragraph (a); or
(ii) a rectification of a kind covered by paragraph (d).
(2) A standard under this section that relates to a particular kind of
telecommunications service does not apply to a particular carrier in connection
with the supply of that kind of service at a particular location unless the
carrier:
(a) supplies that kind of service at that location; or
(b) offers to supply that kind of service at that location.
(3) AUSTEL must not make a standard under this section unless it is
directed to do so by the Minister under section 87P.
(4) A standard under this section may be of general application or may be
limited as provided in the standard. This subsection does not, by implication,
limit subsection 33(3A) of the Acts Interpretation Act 1901.
(5) A standard under this section takes effect:
(a) if the instrument making the standard specifies a day for the
purpose—on that day; or
(b) otherwise—on the day on which the standard was notified in the
Gazette.
(6) A standard under this section is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act 1901.
(1) If:
(a) a carrier contravenes a standard in force under section 87E;
and
(b) the contravention relates to a particular customer;
the carrier is liable to pay damages to the customer for the
contravention.
(2) The amount of damages payable for a particular contravention is equal
to the relevant amount specified in the scale in force under section
87G.
(3) The customer may recover the amount of the damages by action against
the carrier in a court of competent jurisdiction.
(4) The liability of the carrier under this section may be
discharged:
(a) by giving the customer a credit in an account the customer has with
the carrier; or
(b) in any other manner agreed between the carrier and the
customer.
(5) An action under this section must be instituted within 2 years
after:
(a) in the case of a contravention that continued throughout a
period—the time when the contravention began; or
(b) in any other case—the time when the contravention
occurred.
(6) If the customer dies, a reference in this section to the
customer includes a reference to the legal personal representative
of the customer.
(1) AUSTEL may, by written instrument, specify a scale of damages for
contraventions of standards under section 87E.
(2) The scale must:
(a) specify categories of contraventions; and
(b) specify a dollar amount as the amount of damages payable for
contraventions covered by each of those categories.
(3) A dollar amount specified in accordance with paragraph (2)(b) must not
exceed $3,000.
(4) A category may be specified by reference to contraventions that
continue over a specified number of days.
(5) Subsection (4) does not, by implication, limit the ways in which a
category may be specified.
(6) An instrument under this section is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act 1901.
(1) The Telecommunications Industry Ombudsman may issue a written
certificate:
(a) stating that a specified carrier has contravened a standard in force
under section 87E; and
(b) setting out particulars of that contravention.
(2) In any proceedings under this Division, a certificate under subsection
(1) is prima facie evidence of the matters in the certificate.
(3) A document purporting to be a certificate under subsection (1) must,
unless the contrary is established, be taken to be a certificate and to have
been properly given.
(4) Subsection (1) does not apply to the Telecommunications Industry
Ombudsman unless the Telecommunications Industry Ombudsman gives the Minister a
written notice consenting to the conferral of the powers conferred by that
subsection.
(5) If no notice is in force under subsection (4), subsection (1) has
effect as if the reference in that subsection to the Telecommunications Industry
Ombudsman were a reference to AUSTEL.
(6) The Minister must cause a copy of a notice under subsection (4) to be
published in the Gazette.
(7) The continuity of a notice under subsection (4) is not affected
by:
(a) a change in the occupancy of the position of Telecommunications
Industry Ombudsman; or
(b) a vacancy in the position of Telecommunications Industry Ombudsman
that does not continue for more than 4 months.
(1) AUSTEL may, by written instrument, make provision for customers of
carriers to waive, in whole or in part, their protection and rights under this
Division in relation to a particular telecommunications service supplied, or
proposed to be supplied, by the carrier concerned.
(2) If such a waiver is made, then, to the extent of the waiver, the
carrier is not bound by, and need not comply with, any standards in force under
section 87E in relation to the supply of that service to that
customer.
(3) A waiver must be made in accordance with the rules set out in the
instrument.
(4) An instrument under subsection (1) is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
(1) This Division is not intended to exclude or limit the concurrent
operation of any law of a State or Territory.
(2) This Division does not limit, restrict or otherwise affect any right
or remedy a person would have if this Division had not been enacted.
Sections 121 and 122 do not apply to a cause of action under this
Division.
Note: Sections 121 and 122 deal with limitation of tort
liability.
A contravention of a standard in force under section 87E is not an
offence.
Paragraph 62(a) does not apply to a contravention of a standard in force
under section 87E.
Note: Paragraph 62(a) imposes a licence condition that
requires compliance with this Act.
(1) The Minister may give AUSTEL written directions about how AUSTEL is to
exercise its powers under this Division.
(2) AUSTEL must comply with a direction under this section.
(3) This section does not affect the Minister’s power to give AUSTEL
directions under other provisions about other matters.
(4) A direction under this section is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act 1901.
(1) This section applies to a direction under section 87P that requires
AUSTEL to make a standard under section 87E.
(2) If the Minister revokes a direction, AUSTEL must revoke the section
87E standard that is in force because of the direction.
(3) If the Minister varies a direction, AUSTEL must either:
(a) vary the section 87E standard that is in force because of the
direction so that the standard complies with the varied direction; or
(b) revoke the section 87E standard and determine a new section 87E
standard that so complies.
(4) If a section 87E standard is in force because of a
direction:
(a) AUSTEL may vary the standard on its own initiative, but only in such a
way that the varied standard still complies with the direction; and
(b) AUSTEL may, on its own initiative, revoke the standard and determine a
new section 87E standard that so complies.
12 Before paragraph 333(a)
Insert:
(aa) a failure by a carrier to comply with an obligation, or discharge a
liability, under Division 6 of Part 5; or
13 After paragraph
399(2)(b)
Insert:
(ba) compliance by the carriers with the standards developed under
subparagraph 38(2)(b)(iv); and
14 After paragraph
399(2)(d)
Insert:
(da) the appropriateness and adequacy of the approaches taken by the
carriers in carrying out their obligations, and discharging their liabilities,
under Division 6 of Part 5; and
15 Section 400
After “time”, insert “and in the manner”.
16 At the end of section
400
Add:
(2) A notice under subsection (1) that relates to the giving of
information may require the information to be given in a specified
form.
17 Subsection 401(1)
After “time”, insert “and in the manner”.
18 After subsection 401(1)
Insert:
(1A) A notice under subsection (1) that relates to the giving of
information may require the information to be given in a specified
form.
19 Application—amendments of section 73 of
the Telecommunications Act 1991
(1) This item applies to the amendments of section 73 of the
Telecommunications Act 1991 made by this Schedule.
(2) The amendments do not apply in relation to a contract for the supply of
a standard telephone service if:
(a) the contract was entered into before the commencement of this item;
and
(b) the contract would not have complied with section 73 of the
Telecommunications Act 1991 if it had been entered into immediately after
the commencement of this item.
20 Title
Omit “to provide for Telstra Corporation Limited to take over the
undertakings and assets of Telecom and OTC”, substitute
“relating to Telstra Corporation Limited”.
21 Section 3 (definition of
rights)
Before “means”, insert “(except in Parts 2, 2A, 2B and 2C
and the Schedule)”.
22 Section 3
Insert:
constitution, in relation to Telstra, has the same meaning as
in the Corporations Law.
Federal Court means the Federal Court of Australia.
minority-interest sale time means the first time after the
commencement of Part 2A when a person other than the Commonwealth becomes the
legal owner of any of the voting shares in Telstra.
sale-scheme trust deed has the meaning given by section
8AJ.
sale-scheme trustee has the meaning given by section
8AJ.
Senior Executive Service office has the same meaning
as in the Public Service Act 1922.
Telstra sale scheme has the meaning given by section
8AJ.
Telstra subsidiary means a body corporate that is a
subsidiary of Telstra.
unacceptable foreign-ownership situation has the meaning
given by section 8BG.
23 Section 3
Add at the end:
Note: The Schedule sets out definitions of expressions used
in Part 2A (which deals with ownership restrictions).
24 Part 2
Repeal the Part, substitute:
The following is a simplified outline of this Part:
• The Commonwealth may sell one-third of its
equity interest in Telstra, but must retain the remaining two-thirds.
• This Part imposes reporting obligations on
Telstra.
• This Part sets out rules about how that sale
is to be carried out.
(1) The Commonwealth must not transfer any of its shares in Telstra if the
transfer results in a breach of subsection (2).
(2) Neither the Commonwealth nor Telstra is allowed to do anything to
cause or contribute to any of the following results:
(a) that the Commonwealth no longer holds shares in Telstra that carry the
rights to exercise at least two-thirds of the total voting rights attached to
the voting shares in Telstra;
(b) that the Commonwealth no longer controls the exercise of at least
two-thirds of the total voting rights attached to the voting shares in
Telstra;
(c) that the Commonwealth no longer holds at least two-thirds of the total
paid-up share capital of Telstra;
(d) that the Commonwealth is no longer entitled to hold at least
two-thirds of the total rights to any distribution of capital or profits of
Telstra on winding-up;
(e) that the Commonwealth is no longer entitled to hold at least
two-thirds of the total rights to any distribution of capital or profits of
Telstra, otherwise than on winding-up.
(1) Telstra must take all reasonable steps to ensure that a situation
described in paragraph 8AB(2)(a), (b), (c), (d) or (e) does not exist.
(2) If Telstra knowingly or recklessly contravenes subsection (1), Telstra
is guilty of an offence punishable on conviction by a fine not exceeding 500
penalty units.
(1) The Minister may give Telstra a written direction requiring Telstra to
give the Minister a specified financial statement or statements for a specified
period or for each specified period.
(2) Telstra must comply with a direction under subsection (1).
(3) The following are examples of periods that may be specified under
subsection (1):
(a) the first 3 months of each financial year;
(b) the first 6 months of each financial year;
(c) the first 9 months of each financial year;
(d) each financial year.
(4) The members of the Board must:
(a) prepare each statement in accordance with written guidelines given to
the Board by the Minister; and
(b) give the statement to the Minister within 2 months after the end of
the period to which the statement relates.
(5) The Minister may grant extensions of time in special
circumstances.
(6) In this section:
financial statements includes financial statements for the
group consisting of:
(a) Telstra; and
(b) Telstra subsidiaries.
(1) If Telstra, or any Telstra subsidiary, proposes to do any of the
following things, the members of the Board must immediately give the Minister
written particulars of the proposal:
(a) form a company or participate in the formation of a company;
(b) participate in a significant partnership, trust, unincorporated joint
venture or similar arrangement;
(c) acquire or dispose of a significant shareholding in a
company;
(d) acquire or dispose of a significant business;
(e) commence or cease a significant business activity;
(f) make a significant change in the nature or extent of its interests in
a partnership, trust, unincorporated joint venture or similar
arrangement.
(2) The Minister may, by writing, exempt the members of the Board from the
requirement to notify matters covered by paragraph (1)(a). The exemption may be
granted subject to conditions.
(3) The Minister may give written guidelines to the Board that are to be
used by the members in deciding whether a proposal is covered by paragraph
(1)(b), (c), (d), (e) or (f).
(1) The members of the Board must:
(a) keep the Minister informed of the operations of Telstra and Telstra
subsidiaries; and
(b) give the Minister such reports, documents and information in relation
to those operations as the Minister requires; and
(c) give the Minister for Finance such reports, documents and information
in relation to those operations as the Minister for Finance requires.
(2) The members of the Board must comply with requirements under
paragraphs (1)(b) and (c) within the time limits set by the Minister
concerned.
(1) The members of the Board must prepare a corporate plan at least once a
year and give it to the Minister.
(2) The plan must cover a period of at least 3 years and not more than 5
years.
(3) If Telstra has subsidiaries, the plan must cover both Telstra and its
subsidiaries. In particular, for each subsidiary the plan must include details
of the matters in subsection (6), so far as they are applicable.
(4) The members of the Board must keep the Minister informed about changes
to the plan.
(5) If the Board becomes aware that a particular matter may affect the
achievement of the plan, the Board must give the 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.
(6) The plan must include details of the following matters (so far as they
are applicable):
(a) the objectives of the company;
(b) assumptions about the business environment in which the company
operates;
(c) the business strategies of the company;
(d) the investment and financing programs of the company, including
strategies for managing financial risk;
(e) financial targets and projections for the company;
(f) the dividend policy of the company;
(g) non-financial performance measures for the company;
(h) community service obligations of the company;
(i) review of performance against previous corporate plans and
targets;
(j) analysis of factors likely to affect achievement of targets or create
significant financial risk for the company or for the Commonwealth;
(k) price control and quality control strategies for goods or services
supplied by the company under a monopoly;
(l) human resource strategies and industrial relations
strategies.
(7) The plan must also cover any other matters required by the Minister
(which may include further details about the matters in subsection
(6)).
A contravention of this Division is not an offence. However, a
contravention of this Division is a ground for obtaining an injunction under
Division 1 of Part 2B.
To avoid doubt, the operation of this Division does not result in a
contravention of, or give rise to a liability or remedy under:
(a) a provision of the Corporations Law; or
(b) a rule of common law or equity (other than a rule of administrative
law).
(1) The object of this section is to define the expressions Telstra
sale scheme, sale-scheme trustee and sale-scheme
trust deed.
(2) For the purposes of this Act, a Telstra sale scheme is a
scheme the object of which is to achieve the transfer, or progressive transfer,
of a part of the Commonwealth’s equity in Telstra to other
persons.
(3) A Telstra sale scheme must be consistent with sections 8AB and
8AC.
(4) A Telstra sale scheme may involve any or all of the
following:
(a) the transfer by the Commonwealth of any of its shares in Telstra;
(b) the transfer by the Commonwealth of interests in its shares in Telstra
to a company (the sale-scheme trustee) in the company’s
capacity as the trustee of a trust established by a trust deed (the
sale-scheme trust deed);
(c) an investor in Telstra initially acquiring a particular interest in
shares in Telstra and subsequently acquiring the remaining interests in those
shares;
(d) the payment by Telstra of a dividend;
(e) the reduction of Telstra’s share capital;
(f) the cancellation of a particular parcel of shares in Telstra held by
the Commonwealth;
(g) Telstra buying back shares in itself;
(h) the issue of securities in Telstra;
(i) the redemption of redeemable preference shares in Telstra held by the
Commonwealth;
(j) the alteration of Telstra’s constitution.
(5) In determining whether a scheme is a Telstra sale scheme, regard must
be had to the economic and commercial substance of the scheme.
(6) Subsections (4) and (5) do not, by implication, limit subsection
(2).
(7) In this section:
interest in a share has the same meaning as it has for the
purposes of Part 2A.
scheme means:
(a) any agreement, arrangement, understanding, promise or undertaking,
whether express or implied; and
(b) any scheme, plan, proposal, action, course of action or course of
conduct, whether unilateral or otherwise.
securities includes:
(a) shares; and
(b) debentures (within the meaning of the Corporations Law).
transfer, in relation to an interest in a share, includes the
creation of the interest.
(1) In this section:
designated matter means any of the following matters, where
the matter relates to the entering into or carrying out of a Telstra sale
scheme:
(a) the transfer by the Commonwealth of:
(i) a share in Telstra held by the Commonwealth; or
(ii) an interest in such a share;
(b) an agreement relating to a transfer covered by paragraph (a);
(c) the receipt of money by the Commonwealth, or by a person acting on
behalf of the Commonwealth, in respect of a transfer covered by paragraph (a);
(d) the transfer by the sale-scheme trustee of:
(i) a share in Telstra held by the trustee; or
(ii) an interest in such a share;
where the transfer is in accordance with the sale-scheme trust deed;
(e) an agreement relating to a transfer covered by paragraph (d);
(f) the receipt of money by the sale-scheme trustee, or by a person acting
on behalf of the sale-scheme trustee, in respect of a transfer covered by
paragraph (d);
(g) the reduction of Telstra’s share capital;
(h) the cancellation of a particular parcel of shares in Telstra held by
the Commonwealth;
(i) Telstra buying back shares in itself;
(j) the issue of securities in Telstra;
(k) the redemption of redeemable preference shares in Telstra held by the
Commonwealth;
(l) any other matter that is specified in the regulations.
interest in a share has the same meaning as it has for the
purposes of Part 2A.
securities includes:
(a) shares; and
(b) debentures (within the meaning of the Corporations Law).
transfer, in relation to an interest in a
share, includes the creation of the interest.
(2) Stamp duty or other tax is not payable under a law of a State or
Territory in respect of:
(a) a designated matter; or
(b) anything done (including a transaction entered into or an instrument
or document made, executed, lodged or given) because of, or for a purpose
connected with or arising out of, a designated matter.
(1) The Consolidated Revenue Fund is appropriated to the extent necessary
for the purposes of the payment or discharge of the costs, expenses and other
obligations incurred by the Commonwealth in connection with the formulation,
entering into, or carrying out, of a Telstra sale scheme.
(2) The costs and expenses covered by subsection (1) include (but are not
limited to) the following:
(a) legal and accounting fees;
(b) costs of undertaking due diligence inquiries;
(c) underwriting fees;
(d) costs associated with an offer document;
(e) marketing expenses;
(f) other administrative and logistical expenses.
(1) This section applies to an obligation (whether contingent or
otherwise) of Telstra or a Telstra subsidiary.
(2) The Treasurer may, on the Commonwealth’s behalf:
(a) at or before the minority-interest sale time; and
(b) in order to facilitate, either directly or indirectly, the
formulation, entering into, or carrying out, of a Telstra sale scheme;
enter into an agreement to take over an obligation.
If the Treasurer enters into an agreement under subsection 8AM(2), the
Treasurer may authorise the payment of money to discharge the
Commonwealth’s obligations under the agreement, whether by terminating
those obligations or otherwise.
A payment under section 8AN is to be made out of the Consolidated Revenue
Fund, which is appropriated accordingly.
Sections 5A, 5B, 5C and 5D (other than paragraphs (1)(c) and (2)(c)) of
the Loans Securities Act 1919 apply in relation to an obligation that is
taken over by the Commonwealth under section 8AM as if that obligation were a
borrowing of money outside Australia:
(a) that the Treasurer was authorised to make on behalf of the
Commonwealth; and
(b) that the Treasurer made accordingly.
(1) Telstra may, on its own initiative, assist the Commonwealth in
connection with the formulation, entering into, or carrying out, of a Telstra
sale scheme.
(2) A member of the Board may, on the member’s own initiative,
assist the Commonwealth in connection with the formulation, entering into, or
carrying out, of a Telstra sale scheme.
(3) Telstra must, when requested in writing by the Minister or the
Minister for Finance to do so, assist the Commonwealth in connection with the
formulation, entering into, or carrying out, of a Telstra sale scheme. The
assistance is to be given within the period, and in the form and manner,
specified in the request.
(4) The Board must, when requested in writing by the Minister or the
Minister for Finance to do so, assist the Commonwealth in connection with the
formulation, entering into, or carrying out, of a Telstra sale scheme. The
assistance is to be given within the period, and in the form and manner,
specified in the request.
(5) To avoid doubt, the giving of assistance as mentioned in subsection
(1), (2), (3) or (4), or the making of a request under subsection (3) or (4),
does not result in a contravention of, or give rise to a liability or remedy
under:
(a) a provision of the Corporations Law; or
(b) a rule of common law or equity (other than a rule of administrative
law).
(6) A contravention of subsection (3) or (4) is not an offence. However, a
contravention of subsection (3) or (4) is a ground for obtaining an injunction
under Division 1 of Part 2B.
(1) The assistance mentioned in subsection 8AQ(1), (2), (3) or (4) may
take the form of:
(a) the giving of information; or
(b) the giving of financial assistance (within the meaning of section 205
of the Corporations Law); or
(c) the giving of a financial benefit to a related party (within the
meaning of Part 3.2A of the Corporations Law); or
(d) the provision, by Telstra’s directors or employees, of
facilities, information and other assistance in connection with the conduct
of:
(i) a due diligence procedure or a similar process; or
(ii) a market briefing or a similar process.
(2) For the purposes of paragraph (1)(b), if section 205 of the
Corporations Law is repealed and replaced by another provision of the
Corporations Law that deals with the giving of financial assistance by
companies, the reference in that paragraph to section 205 is to be read as a
reference to the replacement provision.
(3) For the purposes of paragraph (1)(c), if Part 3.2A of the Corporations
Law is repealed and replaced by another provision of the Corporations Law that
deals with the giving of financial benefits to related parties, the reference in
that paragraph to Part 3.2A is to be read as a reference to the replacement
provision.
(4) Subsection (1) does not, by implication, limit the forms in which
assistance may be given.
(5) Section 8AQ does not, by implication, limit any rights that are
conferred on shareholders by other laws.
(6) Section 8AQ does not authorise the imposition of taxation (within the
meaning of section 55 of the Constitution).
(7) Section 8AQ does not, by implication, limit:
(a) the executive power of the Commonwealth to enter into an agreement;
or
(b) the capacity of Telstra, or of a member of the Board, to enter into an
agreement with the Commonwealth.
Note: This
ensures, for example, that the Commonwealth can enter into a co-operation
agreement with Telstra or with a member of the Board.
(8) Section 8AQ extends to the giving of assistance outside Australia,
whether or not in a foreign country.
(1) This section applies if:
(a) assistance is given under section 8AQ; and
(b) the assistance is of a kind mentioned in paragraph 8AR(1)(b) or (c);
and
(c) Telstra or a member of the Board incurs expenses in relation to the
giving of that assistance.
(2) The Minister for Finance may authorise the payment by the Commonwealth
to Telstra, or to the member, as the case may be, of an amount equal to so much
of those expenses as the Minister for Finance considers reasonable.
(3) The Consolidated Revenue Fund is appropriated for the purposes of
making payments under subsection (2).
(1) Chapter 7 of the Corporations Law binds the Crown in right of the
Commonwealth to the extent to which that Chapter deals with the formulation,
entering into, or carrying out, of a Telstra sale scheme.
(2) Subsection (1) has effect despite anything in the following
laws:
(a) the Corporations Act 1989;
(b) the Corporations (New South Wales) Act 1990 of New South
Wales;
(c) the Corporations (Northern Territory) Act 1990 of the Northern
Territory;
(d) the Corporations (Queensland) Act 1990 of Queensland;
(e) the Corporations (South Australia) Act 1990 of South
Australia;
(f) the Corporations (Tasmania) Act 1990 of Tasmania;
(g) the Corporations (Victoria) Act 1990 of Victoria;
(h) the Corporations (Western Australia) Act 1990 of Western
Australia.
(3) This section does not render the Crown in right of the Commonwealth
liable to be prosecuted for an offence.
(4) For the purposes of subsection (1), if Chapter 7 of the Corporations
Law is repealed and replaced by another provision of the Corporations Law that
deals with securities regulation, the reference in that subsection to Chapter 7
is to be read as a reference to the replacement provision.
(1) This section applies to an alteration of Telstra’s constitution
if:
(a) the alteration occurs before the minority-interest sale time;
and
(b) the alteration relates to the formulation, entering into, or carrying
out, of a Telstra sale scheme.
(2) A notice of a general meeting specifying an intention to propose a
resolution for the alteration does not have to be given to:
(a) trustees for debenture holders; or
(b) debenture holders.
(3) A court is not empowered to cancel the alteration.
(4) Subsections (2) and (3) have effect despite anything in section 172
of the Corporations Law.
(5) For the purposes of subsection (4), if section 172 of the Corporations
Law is repealed and replaced by another provision of the Corporations Law that
deals with the alteration of a company’s constitution, the reference in
that subsection to section 172 is to be read as a reference to the replacement
provision.
(6) In this section:
debenture has the same meaning as in the Corporations
Law.
(1) This section applies to a reduction of Telstra’s share capital
if:
(a) the reduction relates to the formulation, entering into, or carrying
out, of a Telstra sale scheme; and
(b) the reduction is part of an overall arrangement or plan that
involves:
(i) the replacement of a particular type of share with one or more other
types of share; and
(ii) the replacement of the reduced share capital.
(2) Notice of the reduction does not have to be given to Telstra’s
creditors.
(3) Telstra’s creditors are not entitled to object to the
reduction.
(4) The reduction does not have to be confirmed by a court.
(5) Subsections (2), (3) and (4) have effect despite anything in section
195 of the Corporations Law.
(6) For the purposes of subsection (5), if section 195 of the Corporations
Law is repealed and replaced by another provision of the Corporations Law that
deals with the reduction of a company’s share capital, the reference in
that subsection to section 195 is to be read as a reference to the replacement
provision.
(1) This section applies to information obtained under Division 3 or
section 8AQ.
(2) The Commonwealth, or an associated person, may use the information for
a purpose in connection with the formulation, entering into, or carrying out, of
a Telstra sale scheme.
(3) The Commonwealth, or an associated person, may disclose the
information for a purpose in connection with the formulation, entering into, or
carrying out, of a Telstra sale scheme.
(4) If subsection (2) or (3) does not apply, the Commonwealth, or an
associated person, may use or disclose the information for a purpose in
connection with the Commonwealth’s capacity as a shareholder in Telstra,
so long as the use or disclosure does not involve giving the information to a
person who is not an associated person.
(5) To avoid doubt, the use or disclosure of information as mentioned in
subsection (2), (3) or (4) does not result in a contravention of, or give rise
to a liability or remedy under:
(a) a provision of the Corporations Law; or
(b) a rule of common law or equity (other than a rule of administrative
law).
(6) In this section:
associated person means:
(a) a Minister; or
(b) an individual who holds an office under, or is employed by, the
Commonwealth; or
(c) an officer or employee within the meaning of the Public Service Act
1922; or
(d) a person who performs services for or on behalf of the Commonwealth in
connection with:
(i) the formulation, entering into, or carrying out, of a Telstra sale
scheme; or
(ii) the Commonwealth’s capacity as a shareholder in
Telstra.
(1) The Minister for Finance may, on behalf of the Commonwealth, enter
into an agreement with Telstra, or with one or more members of the Board,
relating to the protection of information:
(a) that is obtained under Division 3 or section 8AQ; and
(b) the publication of which might be expected to prejudice substantially
Telstra’s commercial interests.
(2) The agreement may be enforced as if it were a contract.
(3) This section does not, by implication, limit the executive power of
the Commonwealth to enter into agreements.
(1) To avoid doubt, the mere fact that particular information was
requested, required or given under Division 3 or section 8AQ is not a ground on
which Telstra can be required to disclose or notify that, or any other,
information under:
(a) a provision of the Corporations Law; or
(b) a provision of the listing rules of a securities exchange.
(2) In this section:
listing rules has the same meaning as in section 1001A of the
Corporations Law.
securities exchange has the same meaning as in section 1001A
of the Corporations Law.
(3) For the purposes of subsection (2), if section 1001A of the
Corporations Law is repealed and replaced by another provision of the
Corporations Law that deals with continuous disclosure by listed companies, a
reference in that subsection to section 1001A is to be read as a reference to
the replacement provision.
(1) The rights of Telstra’s shareholders, debenture holders and
creditors are subject to this Act.
(2) In this section:
debenture has the same meaning as in the Corporations
Law.
(1) If:
(a) apart from this section, the operation of this Part would result in
the acquisition of property from a person otherwise than on just terms;
and
(b) the acquisition would be invalid because of paragraph 51(xxxi) of the
Constitution;
the Commonwealth is liable to pay compensation of a reasonable amount to
the person in respect of the acquisition.
(2) If the Commonwealth and the person do not agree on the amount of the
compensation, the person may institute proceedings in the Federal Court for the
recovery from the Commonwealth of such reasonable amount of compensation as the
court determines.
(3) The Consolidated Revenue Fund is appropriated for the purposes of
making payments under this section.
(1) The Minister may, by writing, delegate to:
(a) the Secretary to the Department; or
(b) a person holding or performing the duties of a Senior Executive
Service office (whether or not in the Department);
all or any of the Minister’s powers under this Part.
(2) The Minister for Finance may, by writing, delegate to:
(a) the Secretary to the Department of Finance; or
(b) a person holding or performing the duties of a Senior Executive
Service office (whether or not in the Department of Finance);
all or any of the powers conferred on the Minister for Finance by this
Part.
This Part does not apply to Telstra unless Telstra:
(a) is a corporation to which paragraph 51(xx) of the Constitution
applies; or
(b) carries on a business that consists of or includes the supply of a
telecommunications service (within the meaning of the Telecommunications Act
1991).
The following is a simplified outline of this Part:
• Telstra is subject to the following ownership
restrictions:
(a) a limit on total foreign ownership;
(b) a limit on individual foreign ownership.
• The regulations may require information to be
given for purposes relating to those limits.
• Telstra’s head office, base of
operations and place of incorporation are to remain in Australia.
• Telstra’s Chairperson,
and a majority of Telstra’s directors, must be Australian
citizens.
The Schedule sets out definitions of expressions used in this
Part.
Note 1: The limits on the ownership of Telstra relate to a
person’s stake in Telstra.
Note 2: Stake is defined in the
Schedule.
Note 3: A person’s stake includes the
interests of the person’s associates.
Note 4: There are 4 different types of stake. The main types
are the percentage of total paid-up share capital and the percentage of voting
power.
Note 5: The ownership restrictions will be breached if any
type of stake goes over the relevant limit.
The following provisions extend to acts, omissions, matters and things
outside Australia, whether or not in a foreign country:
(a) this Part and the Schedule;
(b) Part 2B, to the extent to which it relates to this Part.
For the purposes of this Act, an unacceptable foreign-ownership
situation exists in relation to Telstra if:
(a) there is a group of foreign persons who hold, in total, a particular
type of stake in Telstra of more than 11.6667%; or
(b) there is or are one or more foreign persons each of whom holds a
particular type of stake in Telstra of more than 1.6667%.
Note 1: 11.6667% is equal to 35% of one-third (rounded up to
4 decimal places).
Note 2: 1.6667% is equal to 5% of one-third (rounded up to 4
decimal places).
Note 3: The percentages specified in this section may be
reduced if the Commonwealth’s one-third equity interest in Telstra is
transferred in 2 or more tranches—see section 8BK.
Note 4: A person’s stake includes the
interests of the person’s associates—see the
Schedule.
If:
(a) a person, or 2 or more persons under an arrangement, acquire shares in
a company; and
(b) the acquisition has the result, in relation to Telstra,
that:
(i) an unacceptable foreign-ownership situation comes into existence in
relation to Telstra; or
(ii) if an unacceptable foreign-ownership situation already exists in
relation to Telstra because there is a group of foreign persons who hold, in
total, a particular type of stake in Telstra of more than 11.6667%—there
is an increase in the total of any type of stake held by any group of foreign
persons in Telstra; or
(iii) if an unacceptable foreign-ownership situation already exists in
relation to Telstra because there is or are one or more foreign persons each of
whom holds a particular type of stake in Telstra of more than
1.6667%—there is an increase in any type of stake held by any of those
foreign persons; and
(c) the person or persons mentioned in paragraph (a) knew, or were
reckless as to whether, the acquisition would have that result;
the person or persons mentioned in paragraph (a) are guilty of an offence
punishable on conviction by a fine not exceeding 400 penalty units.
Note 1: 11.6667% is equal to 35% of one-third (rounded up to
4 decimal places).
Note 2: 1.6667% is equal to 5% of one-third (rounded up to 4
decimal places).
Note 3: The percentages specified in this section may be
reduced if the Commonwealth’s one-third equity interest in Telstra is
transferred in 2 or more tranches—see section 8BK.
(1) Telstra must take all reasonable steps to ensure that an unacceptable
foreign-ownership situation does not exist in relation to Telstra.
(2) If Telstra knowingly or recklessly contravenes subsection (1), Telstra
is guilty of an offence punishable on conviction by a fine not exceeding 500
penalty units.
(1) If an unacceptable foreign-ownership situation exists in relation to
Telstra, the Federal Court may, on application by the Minister or Telstra, make
such orders as the court considers appropriate for the purpose of ensuring that
that situation ceases to exist.
(2) The Federal Court’s orders include:
(a) an order directing the disposal of shares; or
(b) an order restraining the exercise of any rights attached to shares;
or
(c) an order prohibiting or deferring the payment of any sums due to a
person in respect of shares held by the person; or
(d) an order that any exercise of rights attached to shares be
disregarded.
(3) Subsection (2) does not, by implication, limit subsection
(1).
(4) In addition to the Federal Court’s powers under subsections (1)
and (2), 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.
(5) 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.
(6) 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.
(1) The object of the section is to allow the regulations to reduce the
ownership limit percentages in the event that the Commonwealth’s one-third
equity interest in Telstra is transferred in 2 or more tranches.
(2) The regulations may provide that this Part has effect as if:
(a) each reference in Division 4 to 11.6667% were a reference to such
lower percentage as is specified in the regulations; and
(b) each reference in Division 4 to 1.6667% were a reference to such lower
percentage as is specified in the regulations.
(3) If any regulations are made for the purposes of this section, the
first of those regulations must be made before the minority-interest sale
time.
(4) Subsection (2) does not apply to a reference in a note set out at the
end of a section.
(1) This section applies to regulations made for the purposes of section
8BK.
(2) If any of those regulations is repealed, the remaining regulations are
repealed.
(3) If the regulations are repealed, no further regulations may be made
for the purposes of section 8BK.
(4) A regulation (the principal regulation) must not be
amended for the purpose of reducing the percentage specified in the principal
regulation.
(1) If:
(a) one or more persons enter into, begin to carry out or carry out a
scheme; and
(b) it would be concluded that the person, or any of the persons, who
entered into, began to carry out or carried out the scheme or any part of the
scheme did so for the sole or dominant purpose of avoiding the application of
any provision of Division 4 in relation to any person or persons (whether or not
mentioned in paragraph (a)); and
(c) as a result of the scheme or a part of the scheme, a person (the
stakeholder) increases the stakeholder’s stake in
Telstra;
the Minister may give the stakeholder a written direction to cease holding
that stake within a specified time.
(2) A person who intentionally contravenes a direction under subsection
(1) is guilty of an offence punishable on conviction by a fine not exceeding 400
penalty units.
(1) The regulations may make provision for and in relation to requiring a
person:
(a) to keep and retain records, where the records are relevant to an
ownership matter; and
(b) to give information to the Minister that is relevant to an ownership
matter; and
(c) to give information to Telstra, where the information is relevant to
an ownership matter.
Note: Ownership matter is defined by
subsection (6).
Statutory declarations
(2) The regulations may provide that information given in accordance with
a requirement covered by paragraph (1)(b) or (c) must be verified by statutory
declaration.
No self-incrimination
(3) An individual is not required to give information in accordance with a
requirement covered by paragraph (1)(b) or (c) if the information might tend to
incriminate the individual or expose the individual to a penalty.
Offence
(4) A person must not intentionally contravene a requirement covered by
paragraph (1)(a), (b) or (c).
Penalty: 50 penalty units.
Regulations may confer discretionary powers on the
Minister
(5) Regulations made for the purposes of this section may make provision
for or in relation to a matter by conferring a power on the Minister. For
example, the regulations could provide that the Minister may, by written notice
given to Telstra, require Telstra to give the Minister, within the period and in
the manner specified in the notice, specified information about an ownership
matter.
Definition
(6) For the purposes of this section, each of the following matters is an
ownership matter:
(a) whether a person holds a particular type of stake in Telstra;
(b) if a person holds a particular type of stake in Telstra—the
level of that stake.
(1) A person must not, in purported compliance with a requirement covered
by paragraph 8BN(1)(a), make a record of any matter or thing in such a way that
it does not correctly record the matter or thing.
(2) A person who intentionally or recklessly contravenes subsection (1) is
guilty of an offence punishable on conviction by imprisonment for a term not
exceeding 6 months.
A person who, in purported compliance with a requirement covered by
paragraph 8BN(1)(b) or (c), knowingly or recklessly:
(a) gives information to the Minister or to Telstra that is false or
misleading in a material particular; or
(b) omits from information given to the Minister or to Telstra any matter
or thing without which the information is misleading in a material
particular;
is guilty of an offence punishable on conviction by imprisonment for a term
not exceeding 6 months.
(1) Telstra must ensure that the central management and control of Telstra
is ordinarily exercised at a place in Australia.
(2) A contravention of subsection (1) is not an offence. However, a
contravention of subsection (1) is a ground for obtaining an injunction under
Division 1 of Part 2B.
(3) A contravention of subsection (1) does not affect the validity of any
transaction.
(1) Telstra must ensure that it maintains a substantial business and
operational presence in Australia.
(2) This section does not limit Telstra’s capacity to engage in
activities outside Australia.
(3) A contravention of subsection (1) is not an offence. However, a
contravention of subsection (1) is a ground for obtaining an injunction under
Division 1 of Part 2B.
(4) A contravention of subsection (1) does not affect the validity of any
transaction.
(1) Telstra must ensure that it remains incorporated under the
Corporations Law of the Australian Capital Territory.
(2) A contravention of subsection (1) is not an offence. However, a
contravention of subsection (1) is a ground for obtaining an injunction under
Division 1 of Part 2B.
(3) A contravention of subsection (1) does not affect the validity of any
transaction.
(1) Telstra must ensure that its Chairperson (however described) is an
Australian citizen.
(2) A contravention of subsection (1) is not an offence. However, a
contravention of subsection (1) is a ground for obtaining an injunction under
Division 1 of Part 2B.
(3) A contravention of subsection (1) does not affect the validity of any
transaction.
(1) Telstra must ensure that a majority of its directors are Australian
citizens.
(2) A contravention of subsection (1) is not an offence. However, a
contravention of subsection (1) is a ground for obtaining an injunction under
Division 1 of Part 2B.
(3) A contravention of subsection (1) does not affect the validity of any
transaction.
(1) The Minister may, by notice published in the Gazette before the
minority-interest sale time, require that Telstra’s constitution must
contain such provisions relating to classes of Telstra’s ordinary share
capital as are specified in the direction.
(2) A requirement under subsection (1) may consist of or include any or
all of the following:
(a) a requirement that Telstra’s constitution must contain a
provision dividing the ordinary share capital of Telstra into particular classes
of shares;
(b) a requirement that Telstra’s constitution must contain a
provision imposing restrictions on the issue and ownership of a specified class
of shares so as to prevent foreign persons, and associates of foreign persons,
from holding interests in that class of shares;
(c) a requirement that Telstra’s constitution must contain a
provision imposing restrictions on the issue and ownership of a specified class
of shares so as to prevent persons other than the Commonwealth from holding
interests in that class of shares.
(3) Subsection (2) does not, by implication, limit subsection
(1).
(4) A contravention of a notice under subsection (1) is taken to be a
contravention of this section.
(5) Telstra must comply with a provision contained in its constitution as
a result of a notice under subsection (1).
(6) A contravention of this section is not an offence. However, a
contravention of this section is a ground for obtaining an injunction under
Division 1 of Part 2B.
(7) A contravention of this section does not affect the validity of any
transaction.
(8) The requirements of this section are in addition to the requirements
of section 8BI.
(9) Clause 9 of the Schedule does not apply for the purposes of this
section.
It is the intention of the Parliament that this Part is not to apply to
the exclusion of a law of a State or Territory to the extent that that law is
capable of operating concurrently with this Part.
An act is not invalidated by the fact that it constitutes an offence
against this Part.
This Act does not, by implication, prevent Telstra being wound up in
accordance with the Corporations Law.
The Federal Court must not make an order under this Part if:
(a) the order would result in the acquisition of property from a person
otherwise than on just terms; and
(b) the order would be invalid because of paragraph 51(xxxi) of the
Constitution.
(1) Applications may be made to the Administrative Appeals Tribunal for
review of decisions made by the Minister under:
(a) subsection 8BM(1); or
(b) subclause 9(2) or (3) of the Schedule.
(2) If the Minister:
(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) The Minister may, by writing, delegate to:
(a) the Secretary to the Department; or
(b) a person holding or performing the duties of a Senior Executive
Service office (whether or not in the Department);
all or any of the Minister’s powers under:
(c) this Part; or
(d) the Schedule; or
(e) regulations made for the purposes of section 8BN.
(2) The Minister for Finance may, by writing, delegate to:
(a) the Secretary to the Department of Finance; or
(b) a person holding or performing the duties of a Senior Executive
Service office (whether or not in the Department of Finance);
all or any of the powers conferred on the Minister for Finance by this
Part.
This Part does not apply to Telstra unless Telstra:
(a) is a corporation to which paragraph 51(xx) of the Constitution
applies; or
(b) carries on a business that consists of or includes the supply of a
telecommunications service (within the meaning of the Telecommunications Act
1991).
Restraining injunctions
(1) If a person has engaged, is engaging or is proposing to engage in any
conduct in contravention of Part 2 or 2A, the Federal Court may, on the
application of the Minister, grant an injunction:
(a) restraining the person from engaging in the conduct; and
(b) if, in the court’s opinion, it is desirable to do
so—requiring the person to do something.
(2) If a person has engaged, is engaging or is proposing to engage in any
conduct in contravention of section 8BH, the Federal Court may, on the
application of Telstra, grant an injunction:
(a) restraining the person from engaging in the conduct; and
(b) if, in the court’s opinion, it is desirable to do
so—requiring the person to do something.
Performance injunctions
(3) If:
(a) a person has refused or failed, or is refusing or failing, or is
proposing to refuse or fail, to do an act or thing; and
(b) the refusal or failure was, is or would be a contravention of Part 2
or 2A;
the Federal Court may, on the application of the Minister, grant an
injunction requiring the person to do that act or thing.
(4) If:
(a) a person has refused or failed, or is refusing or failing, or is
proposing to refuse or fail, to do an act or thing; and
(b) the refusal or failure was, is or would be a contravention of
subsection 8BN(4) that relates to a requirement covered by paragraph 8BN(1)(c)
;
the Federal Court may, on the application of Telstra, grant an injunction
requiring the person to do that act or thing.
Grant of interim injunction
(1) If an application is made to the court for an injunction under section
8CD, the court may, before considering the application, grant an interim
injunction restraining a person from engaging in conduct of a kind referred to
in that section.
No undertakings as to damages
(2) The court is not to require an applicant for an injunction under
section 8CD, as a condition of granting an interim injunction, to give any
undertakings as to damages.
The court may discharge or vary an injunction granted under this
Division.
Restraining injunctions
(1) The power of the court under this Division to grant an injunction
restraining a person from engaging in conduct of a particular kind may be
exercised:
(a) if the court is satisfied that the person has engaged in conduct of
that kind—whether or not it appears to the court that the person intends
to engage again, or to continue to engage, in conduct of that kind; or
(b) if it appears to the court that, if an injunction is not granted, it
is likely that the person will engage in conduct of that kind—whether or
not the person has previously engaged in conduct of that kind and whether or not
there is an imminent danger of substantial damage to any person if the person
engages in conduct of that kind.
Performance injunctions
(2) The power of the court under this Division to grant an injunction
requiring a person to do an act or thing may be exercised:
(a) if the court is satisfied that the person has refused or failed to do
that act or thing—whether or not it appears to the court that the person
intends to refuse or fail again, or to continue to refuse or fail, to do that
act or thing; or
(b) if it appears to the court that, if an injunction is not granted, it
is likely that the person will refuse or fail to do that act or
thing—whether or not the person has previously refused or failed to do
that act or thing and whether or not there is an imminent danger of substantial
damage to any person if the person refuses or fails to do that act or
thing.
The powers conferred on the court under this Division are in addition to,
and not instead of, any other powers of the court, whether conferred by this Act
or otherwise.
State of mind
(1) If, in proceedings for an offence against Part 2 or 2A in respect of
conduct engaged in by a corporation, it is necessary to establish the state of
mind of the corporation, it is sufficient to show that:
(a) a director, employee or agent of the corporation engaged in that
conduct; and
(b) the director, employee or agent was, in engaging in that conduct,
acting within the scope of his or her actual or apparent authority;
and
(c) the director, employee or agent had that state of mind.
Conduct
(2) If:
(a) conduct is engaged in on behalf of a corporation by a director,
employee or agent of the corporation; and
(b) the conduct is within the scope of his or her actual or apparent
authority;
the conduct is taken, for the purposes of a prosecution for an offence
against Part 2 or 2A, to have been engaged in by the corporation unless the
corporation establishes that it took reasonable precautions and exercised due
diligence to avoid the conduct.
Extended meaning of state of mind
(3) A reference in subsection (1) to the state of mind of a
person includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the person;
and
(b) the person’s reasons for the intention, opinion, belief or
purpose.
Extended meaning of director
(4) A reference in this section to a director of a
corporation includes a reference to a constituent member of a body corporate
incorporated for a public purpose by a law of the Commonwealth, a State or a
Territory.
Extended meaning of engaging in conduct
(5) A reference in this section to engaging in conduct
includes a reference to failing or refusing to engage in conduct.
Extended meaning of offence against Part 2 or 2A
(6) A reference in this section to an offence against Part 2 or 2A
includes a reference to an offence created by section 6, 7 or 7A or
subsection 86(1) of the Crimes Act 1914 that relates to Part 2 or
2A.
State of mind
(1) If, in proceedings for an offence against Part 2 or 2A in respect of
conduct engaged in by a person other than a corporation, it is necessary to
establish the state of mind of the person, it is sufficient to show
that:
(a) the conduct was engaged in by an employee or agent of the person
within the scope of his or her actual or apparent authority; and
(b) the employee or agent had that state of mind.
Conduct
(2) If:
(a) conduct is engaged in on behalf of a person other than a corporation
by an employee or agent of the person; and
(b) the conduct is within the employee’s or agent’s actual or
apparent authority;
the conduct is taken, for the purposes of a prosecution for an offence
against Part 2 or 2A, to have been engaged in by the person unless the person
establishes that he or she took reasonable precautions and exercised due
diligence to avoid the conduct.
Limitation on imprisonment
(3) Despite any other provision of Part 2 or 2A, if:
(a) a person is convicted of an offence; and
(b) the person would not have been convicted of the offence if subsections
(1) and (2) had not been in force;
the person is not liable to be punished by imprisonment for that
offence.
Extended meaning of state of mind
(4) A reference in subsection (1) to the state of mind of a
person includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the person;
and
(b) the person’s reasons for the intention, opinion, belief or
purpose.
Extended meaning of engaging in conduct
(5) A reference in this section to engaging in conduct
includes a reference to failing or refusing to engage in conduct.
Extended meaning of offence against Part 2 or 2A
(6) A reference in this section to an offence against Part 2 or
2A includes a reference to an offence created by section 6, 7 or 7A or
subsection 86(1) of the Crimes Act 1914 that relates to Part 2 or
2A.
(1) This section applies to a summons or process in any criminal
proceedings under Part 2 or 2A, where:
(a) the summons or process is required to be served on a body corporate
incorporated outside Australia; and
(b) the body corporate does not have a registered office or a principal
office in Australia; and
(c) the body corporate has an agent in Australia.
(2) Service of the summons or process may be effected by serving it on the
agent.
(3) Subsection (2) has effect in addition to section 28A of the Acts
Interpretation Act 1901.
Note: Section 28A of the Acts Interpretation Act 1901
deals with the service of documents.
(4) In this section:
criminal proceeding includes a proceeding to determine
whether a person should be tried for an offence.
An offence against Part 2 or Division 4 or 6 of Part 2A is an indictable
offence.
(1) The Parliament re-affirms its intention:
(a) that all people in Australia, wherever they reside or carry on
business, will continue to have reasonable access, on an equitable basis, to
standard telephone services and payphones; and
(b) that the universal service obligation described in section 288 of the
Telecommunications Act 1991 should be fulfilled as efficiently and
economically as practicable; and
(c) that the losses that result from supplying loss-making services in the
course of fulfilling the universal service obligation should be shared among
carriers on an equitable basis, namely, in direct proportion to each
carrier’s share of the interconnect time between those carriers’
trunk and international networks and all local access networks; and
(d) that the information on the basis of which, and the methods by which,
those losses and those carriers’ respective shares in those losses are
determined should be open to scrutiny by those carriers, and by the public, to
the greatest extent possible without undue damage to a carrier’s interests
being caused by the disclosure of confidential commercial information.
(2) Part 13 of the Telecommunications Act 1991 provides accordingly
for the assessment, collection, recovery and distribution of the levy imposed by
the Telecommunications (Universal Service Levy) Act 1991.
(3) An expression used in this section and in Part 13 of the
Telecommunications Act 1991 has the same meaning in this section as it
has in that Part.
25 Part 3
Repeal the Part.
26 Subsection 41(1)
After “this Act”, insert “(other than Part 2, 2A, 2B or
2C)”.
27 After section 42
Insert:
The object of this Schedule is to define terms used in Part 2A (which
deals with ownership restrictions).
In Part 2A and this Schedule, unless the contrary intention
appears:
acquisition includes an agreement to acquire, but does not
include:
(a) an acquisition by will or by devolution by operation of law;
or
(b) an acquisition by way of enforcement of a loan security.
aggregate substantial interest, in relation to a trust
estate, has the meaning given by clause 13.
agreement means any agreement, whether formal or informal and
whether express or implied.
arrangement has the meaning given by clause 4.
associate has the meaning given by clause 5.
company means a body corporate.
constituent document, in relation to a company,
means:
(a) the memorandum and articles of association of the company;
or
(b) any rules or other documents constituting the company or governing its
activities.
direct control interest has the meaning given by clause
12.
director includes any person occupying the position of
director of a company, by whatever name called.
discretionary trust means a trust where:
(a) a person (who may include the trustee) is empowered (either
unconditionally or on the fulfilment of a condition) to exercise any power of
appointment or other discretion; and
(b) the exercise of the power or discretion, or the failure to exercise
the power or discretion, has the effect of determining, to any extent, either or
both of the following:
(i) the identities of those who may benefit under the trust;
(ii) how beneficiaries are to benefit, as between themselves, under the
trust.
foreign citizen means an individual who is not an Australian
citizen.
foreign company means a company incorporated outside
Australia.
foreign person means:
(a) a foreign citizen not ordinarily resident in Australia; or
(b) a company where:
(i) a foreign citizen not ordinarily resident in Australia; or
(ii) a foreign company;
holds a particular type of stake in the company of more than 15%;
or
(c) a company where a group of 2 or more persons, each of whom is
either:
(i) a foreign citizen not ordinarily resident in Australia; or
(ii) a foreign company;
holds, in total, a particular type of stake in the company of more than
40%; or
(d) the trustee of a trust estate in which a foreign citizen not
ordinarily resident in Australia or a foreign company holds a substantial
interest; or
(e) the trustee of a trust estate in which 2 or more persons, each of whom
is either a foreign citizen not ordinarily resident in Australia or a foreign
company, hold an aggregate substantial interest.
group includes:
(a) one person alone; or
(b) a number of persons, even if they are not in any way associated with
each other or acting together.
increase, in relation to a stake in a company, includes an
increase from a starting point of nil.
interest in a share has the meaning given by clause
8.
lending money includes providing non-equity finance where the
provision of the finance may reasonably be regarded as equivalent to lending
money.
loan security means a security held solely for the purposes
of a moneylending agreement.
moneylending agreement means an agreement entered into in
good faith in the ordinary course of carrying on a business of lending money,
but does not include an agreement dealing with any matter unrelated to the
carrying on of that business.
officer, in relation to a company, includes:
(a) a director, secretary or employee of the company; or
(b) a receiver and manager of any part of the undertaking of the company
appointed under a power contained in any instrument; or
(c) a liquidator of the company appointed in a voluntary
winding-up.
ordinarily resident in Australia has the meaning given by
clause 3.
ownership provisions means Part 2A and this
Schedule.
power to appoint a director of a company has a meaning
affected by clause 6.
relative, in relation to a person, means:
(a) the person’s spouse; or
(b) another person who, although not legally married to the person, lives
with the person on a bona fide domestic basis as the husband or wife of
the person; or
(c) a parent or remoter lineal ancestor of the person; or
(d) a son, daughter or remoter issue of the person; or
(e) a brother or sister of the person.
scheme means:
(a) any agreement, arrangement, understanding, promise or undertaking,
whether express or implied and whether or not enforceable, or intended to be
enforceable, by legal proceedings; and
(b) any scheme, plan, proposal, action, course of action or course of
conduct, whether unilateral or otherwise.
share, in relation to a company, means a share in the share
capital of the company, and includes:
(a) stock into which any or all of the share capital of the company has
been converted; or
(b) an interest in such a share or in such stock.
stake, in relation to a company, has the meaning given by
clause 11.
substantial interest, in relation to a trust estate, has the
meaning given by clause 13.
sub-underwriter, in relation to an issue of shares, means a
person who is a party to an agreement with an underwriter that obliges the
first-mentioned person to subscribe for any of the shares in circumstances
specified in the agreement.
underwriter, in relation to an issue of shares, means a
person who is a party to an agreement with the company issuing the shares that
includes a provision obliging the person to subscribe for any of the shares in
the event of a shortfall in public subscriptions below an amount specified in
the agreement.
voting power has the meaning given by clause 10.
For the purposes of the ownership provisions, a foreign citizen is
ordinarily resident in Australia at a particular time if, and only
if:
(a) the foreign citizen has been in Australia during 200 or more days in
the period of 12 months immediately preceding that time; and
(b) at that time, one of the following subparagraphs applies:
(i) the foreign citizen is in Australia and has permission to remain in
Australia indefinitely;
(ii) the individual is not in Australia but has a right to re-enter
Australia and, on re-entry, to be granted permission to remain in Australia
indefinitely;
(iii) the individual is in Australia, is a New Zealand citizen, holds a
New Zealand passport and has a special category visa under section 32 of the
Migration Act 1958;
(iv) the individual is not in Australia, is a New Zealand citizen, holds a
New Zealand passport and, on re-entry to Australia, would have the right to be
granted a special category visa under section 32 of the Migration Act
1958.
(1) For the purposes of the ownership provisions, a person is taken
to have proposed to enter into an agreement or arrangement if the
person takes part in, or proposes to take part in, negotiations with a view to
entering into the agreement or arrangement.
(2) A reference in the ownership provisions to entering into an
agreement or arrangement includes a reference to altering or varying an
agreement or arrangement.
(3) A reference in the ownership provisions to entering into an
arrangement is a reference to entering into any formal or informal
scheme, arrangement or understanding, whether expressly or by implication and,
without limiting the generality of the foregoing, includes a reference
to:
(a) entering into an agreement; or
(b) creating a trust, whether express or implied; or
(c) entering into a transaction;
and a reference in the ownership provisions to an arrangement
is to be construed accordingly.
(4) A reference in the ownership provisions to an arrangement
does not include a reference to a moneylending agreement.
(1) For the purposes of the ownership provisions, the following persons
are associates of a person:
(a) a relative of the person;
(b) a partner of the person;
(c) a company of which the person is an officer;
(d) if the person is a company—an officer of the company;
(e) an employee or employer of the person;
(f) an officer of a company of which the person is an officer;
(g) an employee of an individual of whom the person is an
employee;
(h) the trustee of a discretionary trust where the person or another
person who is an associate of the person by virtue of another paragraph of this
subclause benefits, or is capable (whether by the exercise of a power of
appointment or otherwise) of benefiting, under the trust, either directly or
through any interposed companies, partnerships or trusts;
(i) a company whose directors are accustomed or under an obligation,
whether formal or informal, to act in accordance with the directions,
instructions or wishes of the person;
(j) a company where the person is accustomed or under an obligation,
whether formal or informal, to act in accordance with the directions,
instructions or wishes of the company;
(k) a company in which the person has, apart from this paragraph, a
particular type of stake of not less than 15%;
(l) if the person is a company—a person who holds, apart from this
paragraph, a particular type of stake in the company of not less than
15%;
(m) a person who is, because of this subclause, an associate of any other
person who is an associate of the person (including a person who is an associate
of the person by any other application or applications of this
paragraph).
(2) If a person (the first person) enters, or proposes to
enter, into an arrangement with another person (the second person)
that relates to any of the following matters:
(a) the first person and the second person being in a position, by acting
together, to control any of the voting power in a company;
(b) the power of the first person and the second person, by acting
together, to appoint or remove a director of a company;
(c) the situation where one or more of the directors of a company are
accustomed or under an obligation, whether formal or informal, to act in
accordance with the directions, instructions or wishes of the first person and
the second person acting together;
then, the second person is taken to be an associate of the first person for
the purposes of the application of a provision of the ownership provisions in
relation to the matter concerned.
(1) A reference in the ownership provisions to a power to appoint a
director includes a reference to such a power whether exercisable with
or without the consent or concurrence of any other person.
(2) For the purposes of the ownership provisions, a person is taken to
have the power to appoint a director if:
(a) the person has the power (whether exercisable with or without the
consent or concurrence of any other person) to veto such an appointment;
or
(b) a person’s appointment as a director of the company follows
necessarily from that person being a director or other officer of the
first-mentioned person.
For the purposes of the ownership provisions, a person is entitled
to acquire any thing if the person is absolutely or contingently
entitled to acquire it, whether because of any constituent document of a
company, the exercise of any right or option or for any other reason.
(1) Subject to this clause, for the purposes of the ownership provisions,
a person holds an interest in a share if the person has any legal
or equitable interest in the share.
(2) For the purposes of the ownership provisions, a person is taken to
hold an interest in a share if:
(a) the person has entered into a contract to purchase the share;
or
(b) the person has a right (otherwise than because of having an interest
under a trust) to have the share transferred to the person or to the
person’s order (whether the right is exercisable presently or in the
future and whether or not on the fulfilment of a condition); or
(c) the person has a right to acquire the share, or an interest in the
share, under an option (whether the right is exercisable presently or in the
future and whether or not on the fulfilment of a condition); or
(d) the person is otherwise entitled to acquire the share or an interest
in the share; or
(e) the person is entitled (otherwise than because of having been
appointed as a proxy or representative to vote at a meeting of members of the
company or of a class of its members) to exercise or control the exercise of a
right attached to the share.
(3) Subclause (2) does not, by implication, limit subclause (1).
(4) A person is taken to hold an interest in a share even if
the person holds the interest in the share jointly with another
person.
(5) For the purpose of determining whether a person holds an interest in a
share, it is immaterial that the interest cannot be related to a particular
share.
(6) An interest in a share is not to be disregarded only because
of:
(a) its remoteness; or
(b) the manner in which it arose; or
(c) the fact that the exercise of a right conferred by the interest is, or
is capable of being made, subject to restraint or restriction.
(1) For the purposes of the ownership provisions, the following interests
must be disregarded:
(a) an interest in a share in Telstra held by the sale-scheme trustee in
accordance with the sale-scheme trust deed;
(b) an interest in a share held by a person whose ordinary business
includes the lending of money if the person holds the interest as a loan
security;
(c) an interest in a share held by a person, being an interest held by the
person because the person holds a prescribed office;
(d) an interest of a prescribed kind in a share, being an interest held by
such persons as are prescribed.
(2) For the purposes of the ownership provisions, if:
(a) a person holds an interest in a share as a loan security;
and
(b) the ordinary business of the person includes the lending of money;
and
(c) the loan security is enforced; and
(d) as a result of the enforcement of the loan security, the person
becomes the holder of the share; and
(e) the person holds the share for a continuous period (the holding
period) beginning at the time when the security was enforced;
the person’s interest in the share must be disregarded at all times
during so much of the holding period as occurs during whichever of the following
periods is applicable:
(f) the period of 90 days beginning when the security was
enforced;
(g) if the Minister, by written notice given to the person, allows a
longer period—the end of that longer period.
(3) For the purposes of the ownership provisions, if:
(a) a person acquires an interest in a share in Telstra; and
(b) the interest was acquired in the person’s capacity as an
underwriter or a sub-underwriter in relation to an issue of shares in Telstra
under a Telstra sale scheme;
the person’s interest in the share must be disregarded at all times
during whichever of the following periods is applicable:
(c) the period of 90 days beginning when the person acquired the
interest;
(d) if the Minister, by written notice given to the person, allows a
longer period—that longer period.
(1) A reference in the ownership provisions to the voting
power in a company is a reference to the total rights of shareholders to
vote, or participate in any decision-making, concerning any of the
following:
(a) the making of distributions of capital or profits of the company to
its shareholders;
(b) the constituent document of the company;
(c) any variation of the share capital of the company.
(2) A reference in the ownership provisions to control of the voting
power in a company is a reference to control that is direct or indirect,
including control that is exercisable as a result of or by means of arrangements
or practices:
(a) whether or not having legal or equitable force; and
(b) whether or not based on legal or equitable rights.
(3) If the percentage of total rights to vote or participate in
decision-making differs as between different types of voting or decision-making,
the highest of those percentages applies for the purposes of this
clause.
(4) If a company:
(a) is limited both by shares and by guarantee; or
(b) does not have a share capital;
this clause has effect as if the members or policy holders of the company
were shareholders in the company.
(1) A particular type of stake that a person holds in a
company at a particular time is the aggregate of:
(a) the direct control interests in the company of that type that the
person holds at that time; and
(b) the direct control interests in the company of that type held at that
time by associates of the person.
(2) In calculating the stake that a person holds in a company, a direct
control interest held because of subclause 12(5) is not to be counted under
paragraph (1)(a) to the extent to which it is calculated by reference to a
direct control interest in the company that is taken into account under
paragraph (1)(b).
(3) For the purpose of calculating the total of the stakes of a particular
type that a group of persons holds in a company, if a particular stake that a
person holds in a company would be counted more than once because the person is
an associate of one or more other persons in the group, that interest is to be
counted only once.
(1) A person holds a direct control interest in a company at
a particular time equal to the percentage of the total paid-up share capital of
the company in which the person holds an interest at that time.
(2) A person also holds a direct control interest in a
company at a particular time equal to the percentage of the voting power in the
company that the person is in a position to control at that time.
(3) A person also holds a direct control interest in a
company at a particular time equal to the percentage that the person holds, or
is entitled to acquire, at that time of the total rights to distributions of
capital or profits of the company to its shareholders on winding-up.
(4) A person also holds a direct control interest in a
company at a particular time equal to the percentage that the person holds, or
is entitled to acquire, at that time of the total rights to distributions of
capital or profits of the company to its shareholders, otherwise than on
winding-up.
(5) If:
(a) a person holds a particular type of direct control interest (including
a direct control interest that is taken to be held because of one or more
previous applications of this subclause) in a company (the first level
company); and
(b) the first level company holds the same type of direct control interest
in another company (the second level company);
the person is taken to hold that type of direct control interest in the
second level company equal to the percentage worked out using the
formula:
where:
first level percentage means the percentage of the direct
control interest held by the person in the first level company.
second level percentage means the percentage of the direct
control interest held by the first level company in the second level
company.
(1) For the purposes of the ownership provisions:
(a) a person is taken to hold a substantial interest in a
trust estate if the person, alone or together with an associate or associates,
holds a beneficial interest in not less than 15% of the corpus or income of the
trust estate; and
(b) 2 or more persons are taken to hold an aggregate substantial
interest in a trust estate if the persons, together with an associate or
associates, hold, in the aggregate, beneficial interests in not less than 40% of
the corpus or income of the trust estate.
(2) For the purposes of subclause (1), if, under the terms of a trust, a
trustee has a power or discretion as to the distribution of the income or corpus
of the trust estate to beneficiaries, each beneficiary is taken to hold a
beneficial interest in the maximum percentage of income or corpus of the trust
estate that the trustee is empowered to distribute to that
beneficiary.