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COMPETITION AND CONSUMER ACT 2010 - SECT 152AL

Declared services

Eligible service

             (1)  For the purposes of this section, an eligible service is:

                     (a)  a listed carriage service (within the meaning of the Telecommunications Act 1997 ); or

                     (b)  a service that facilitates the supply of a listed carriage service (within the meaning of that Act);

where the service is supplied, or is capable of being supplied, by a carrier or a carriage service provider (whether to itself or to other persons).

Declaration made after public inquiry--services not supplied by an NBN corporation

             (3)  The Commission may, by written instrument, declare that a specified eligible service is a declared service if:

                     (a)  the Commission has held a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make the declaration; and

                     (b)  the Commission has prepared a report about the inquiry under section 505 of the Telecommunications Act 1997 ; and

                     (c)  the report was published during the 180-day period ending when the declaration was made; and

                     (d)  the Commission is satisfied that the making of the declaration will promote the long-term interests of end-users of carriage services or of services provided by means of carriage services.

Note:          Eligible services may be specified by name, by inclusion in a specified class or in any other way.

          (3A)  A declaration under subsection (3) does not apply to an eligible service to the extent to which the service is supplied, or is capable of being supplied, by an NBN corporation (whether to itself or to other persons).

          (3B)  Before commencing to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make a declaration under subsection (3) in relation to an eligible service, the Commission must consider whether to hold a public inquiry under that Part about a proposal to make a declaration under subsection (8A) in relation to the service.

Note:          For combined public inquiries, see section 152AN.

Mandatory declaration--Layer 2 bitstream service

          (3C)  As soon as practicable after the commencement of this subsection, the Commission must declare under subsection (3) that a specified Layer 2 bitstream service is a declared service.

          (3D)  A declaration mentioned in subsection (3C) has no effect except to the extent (if any) to which the Layer 2 bitstream service is supplied using a designated superfast telecommunications network.

Note:          For designated superfast telecommunications network , see section 152AGA.

          (3E)  Paragraphs (3)(a) to (d) do not apply to a declaration mentioned in subsection (3C).

           (3F)  If a Layer 2 bitstream service is declared as mentioned in subsection (3C), that subsection does not, by implication, prevent the Commission from making a declaration under subsection (3) in relation to another Layer 2 bitstream service.

          (3G)  If a Layer 2 bitstream service is declared as mentioned in subsection (3C), that subsection does not, by implication, prevent the Commission from making another declaration under subsection (3) in relation to the same Layer 2 bitstream service.

          (3H)  The other declaration mentioned in subsection (3G) has no effect except to the extent (if any) to which the Layer 2 bitstream service is supplied otherwise than by using a designated superfast telecommunications network.

Note:          For designated superfast telecommunications network , see section 152AGA.

Declaration has effect

             (4)  A declaration under subsection (3) has effect accordingly.

Gazettal of declaration

             (5)  A copy of a declaration under subsection (3) is to be published in the Gazette .

Related services

             (6)  A reference in paragraph (1)(b) to a service that facilitates the supply of a carriage service does not include a reference to the use of intellectual property except to the extent that it is an integral but subsidiary part of the first-mentioned service.

Services covered by special access undertakings--services not supplied by an NBN corporation

             (7)  If:

                     (a)  a person (other than an NBN corporation) gives the Commission a special access undertaking in relation to a service or a proposed service; and

                     (b)  the undertaking is in operation; and

                     (c)  the person supplies the service or proposed service (whether to itself or to other persons);

the service supplied by the person is a declared service . To avoid doubt, if the undertaking is subject to limitations, the service supplied by the person is a declared service only to the extent to which the service falls within the scope of the limitations.

             (8)  The Commission may declare a service under subsection (3) even if the service is, to any extent, covered by subsection (7).

Declaration made after public inquiry--services supplied by an NBN corporation

          (8A)  The Commission may, by written instrument, declare that a specified eligible service, to the extent to which the service is supplied, or is capable of being supplied, by a specified NBN corporation (whether to itself or to other persons), is a declared service if:

                     (a)  the Commission has held a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make the declaration; and

                     (b)  the Commission has prepared a report about the inquiry under section 505 of the Telecommunications Act 1997 ; and

                     (c)  the report was published during the 180-day period ending when the declaration was made; and

                     (d)  the Commission is satisfied that the making of the declaration will promote the long-term interests of end-users of carriage services or of services provided by means of carriage services.

If the Commission does so, the declared service relates to the NBN corporation for the purposes of subsections 152AXB(2) and 152AXC(7).

Note:          Eligible services may be specified by name, by inclusion in a specified class or in any other way.

          (8B)  A declaration under subsection (8A) has effect accordingly.

          (8C)  A copy of a declaration under section (8A) is to be published in the Gazette .

       (8CA)  Subsection (3C) does not, by implication, prevent a Layer 2 bitstream service from being declared under subsection (8A).

Services supplied by an NBN corporation--standard form of access agreement

          (8D)  If:

                     (a)  an eligible service is supplied, or is capable of being supplied, by an NBN corporation (whether to itself or to other persons); and

                     (b)  the NBN corporation is a carrier or a carriage service provider; and

                     (c)  the NBN corporation has formulated a standard form of access agreement that relates to access to the service; and

                     (d)  the standard form of access agreement is available on the NBN corporation's website;

then:

                     (e)  the service, to the extent to which it is supplied, or is capable of being supplied, by the NBN corporation (whether to itself or to other persons) is a declared service ; and

                      (f)  the declared service relates to the NBN corporation for the purposes of subsections 152AXB(2) and 152AXC(7).

Services covered by special access undertakings--services supplied by an NBN corporation

          (8E)  If:

                     (a)  an NBN corporation gives the Commission a special access undertaking in relation to a service or a proposed service; and

                     (b)  the undertaking is in operation; and

                     (c)  the NBN corporation supplies the service or proposed service (whether to itself or to other persons);

then:

                     (d)  the service supplied by the NBN corporation is a declared service ; and

                     (e)  the declared service relates to the NBN corporation for the purposes of subsections 152AXB(2) and 152AXC(7).

To avoid doubt, if the undertaking is subject to limitations, the service supplied by the NBN corporation is a declared service only to the extent to which the service falls within the scope of the limitations.

           (8F)  The Commission may declare a service under subsection (8A) even if the service is, to any extent, covered by subsection (8E).

Declaration is not a legislative instrument

             (9)  A declaration under this section is not, and is taken never to have been, a legislative instrument.

           (10)  A variation of a declaration made under this section is not, and is taken never to have been, a legislative instrument.

           (11)  A revocation of a declaration made under this section is not, and is taken never to have been, a legislative instrument.

           (12)  If:

                     (a)  a declaration was made under this section before the commencement of this subsection; and

                     (b)  the declaration ceased to be in force before the commencement of this subsection;

then:

                     (c)  the declaration is taken never to have been a legislative instrument; and

                     (d)  if the declaration was varied or revoked before the commencement of this subsection--the variation or revocation is taken never to have been a legislative instrument.

           (13)  For the purposes of paragraph (12)(b), assume that the Legislation Act 2003 had never been enacted.

           (14)  Subsections (9) to (12) are enacted for the avoidance of doubt.



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