TELECOMMUNICATIONS ACT 1997 - SECT 577A Acceptance of undertaking about structural separation
TELECOMMUNICATIONS ACT 1997 - SECT 577A
Acceptance of undertaking about structural separation(1) The ACCC may accept a written undertaking given by Telstra that:
(a) at all times after the designated day:
(i) Telstra will not supply fixed - line carriage services to retail customers in Australia using a telecommunications network over which Telstra is in a position to exercise control; and
(ii) Telstra will not be in a position to exercise control of a company that supplies fixed - line carriage services to retail customers in Australia using a telecommunications network over which Telstra is in a position to exercise control; and
(b) Telstra will, in connection with paragraph (a), take specified action and/or refrain from taking specified action.
Note 1: For when Telstra is in a position to exercise control of a network, see section 577Q.
Note 2: For control of a company, see section 577P.
(2) For the purposes of paragraph (1)(b), a matter relating to transparency and equivalence in relation to the supply by Telstra of regulated services to:
(a) Telstra's wholesale customers; and
(b) Telstra's retail business units;
(c) beginning when the undertaking comes into force; and
(d) ending at the start of the designated day;
is taken to be a matter that is in connection with paragraph (1)(a).
(3) The ACCC must not accept an undertaking under this section unless the ACCC is satisfied that:
(a) the undertaking provides for transparency and equivalence in relation to the supply by Telstra of regulated services to:
(i) Telstra's wholesale customers; and
(ii) Telstra's retail business units;
(iii) beginning when the undertaking comes into force; and
(iv) ending at the start of the designated day; and
(b) the undertaking does so in an appropriate and effective manner.
(4) In subsections (2) and (3), equivalence , supply , regulated service and retail business unit have the same meaning as in Part 9 of Schedule 1.
(5) The ACCC must not accept an undertaking under this section unless the ACCC is satisfied that:
(a) the undertaking provides for:
(i) the ACCC to monitor Telstra's compliance with the undertaking; and
(ii) Telstra to have systems, procedures and processes that promote and facilitate the ACCC's monitoring of Telstra's compliance with the undertaking; and
(b) the undertaking does so in an appropriate and effective manner.
Matters to which ACCC must have regard
(6) In deciding whether to accept an undertaking under this section, the ACCC must have regard to:
(a) the matters set out in an instrument in force under subsection (7); and
(aa) the national interest in structural reform of the telecommunications industry; and
(ab) the impact of that structural reform on:
(ii) competition in telecommunications markets; and
(b) such other matters (if any) as the ACCC considers relevant.
(7) The Minister may, by writing, set out matters for the purposes of paragraph (6)(a).
(7A) Before making or varying an instrument under subsection (7), the Minister must:
(a) cause to be published on the Department's website a notice:
(i) setting out the draft instrument or variation; and
(ii) inviting persons to make submissions to the Minister about the draft instrument or variation within 14 days after the notice is published; and
(b) consider any submissions received within the 14 - day period mentioned in paragraph (a).
(8) The Minister must take all reasonable steps to ensure that an instrument comes into force under subsection (7) as soon as practicable after the commencement of this section.
(9) Telstra is not entitled to give an undertaking under this section unless an instrument is in force under subsection (7).
(10) For the purposes of this section, the designated day is:
(b) if the Minister, by written instrument, specifies another day--that other day.
(11) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a power conferred on the Minister by paragraph (10)(b), but it applies with the following changes:
(a) an instrument made under paragraph (10)(b) cannot be varied;
(b) an instrument made under paragraph (10)(b) must not be revoked unless:
(i) a fresh instrument is made under that paragraph; and
(ii) the fresh instrument specifies a day that is later than the day specified in the revoked instrument.
(a) the ACCC has accepted an undertaking given by Telstra under subsection (1); and
(b) when the undertaking was accepted, a particular day (the relevant day ) was the designated day;
the Minister must not make an instrument under paragraph (10)(b) specifying a day earlier than the relevant day.
(13) Telstra may, before the designated day, request the Minister to:
(a) if no instrument is in force under paragraph (10)(b)--make an instrument under that paragraph specifying a particular day; or
(b) if an instrument is in force under paragraph (10)(b):
(i) revoke that instrument; and
(ii) make a fresh instrument under that paragraph specifying a particular day that is later than the day specified in the revoked instrument.
(14) If Telstra gives the Minister a request under subsection (13), the Minister must consider the request.
(15) However, the Minister is not required to consider the request if the Minister is satisfied that the request:
(a) is frivolous or vexatious; or
(b) was not made in good faith.
(16) An undertaking under this section must be expressed to be an undertaking under this section.
(17) An undertaking under this section may not be withdrawn after it has been accepted by the ACCC.
(18) If an undertaking under this section provides for the ACCC to perform functions or exercise powers in relation to the undertaking, the ACCC may perform those functions, and exercise those powers, in accordance with the undertaking.
(19) Part 9 of Schedule 1 does not, by implication, limit the matters that may be included in an undertaking under this section.
Note: Part 9 of Schedule 1 deals with the functional separation of Telstra.
(20) The Minister may, by legislative instrument, exempt a specified fixed - line carriage service from the scope of subsection (1) and the associated provisions, either:
(b) subject to such conditions or limitations as are specified in the instrument.
(21) The Minister may, by legislative instrument, exempt a specified telecommunications network from the scope of subsection (1) and the associated provisions, either:
(b) subject to such conditions or limitations as are specified in the instrument.
(22) The Minister must cause a copy of an instrument under subsection (7) or paragraph (10)(b) to be published on the Department's website.
(23) An instrument under subsection (7) or paragraph (10)(b) is not a legislative instrument.
(a) subsection 577BA(11); or
(b) subsection 577BC(2).
"fixed-line carriage service" means:
(a) a carriage service that is supplied using a line to premises occupied or used by an end - user; or
(b) a service that facilitates the supply of a carriage service covered by paragraph (a).
"telecommunications market" has the same meaning as in Part XIB of the
Competition and Consumer Act 2010 .