Commonwealth Consolidated Acts Commonwealth Consolidated ActsNote: See section 61.
Part 1 -- Compliance with this Act
(1) A carrier must comply with this Act.
(2) In this clause:
"this Act" includes the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act and Chapter 5 of the Telecommunications (Interception and Access) Act 1979 .
Part 3 -- Access to supplementary facilities
The following is a simplified outline of this Part:
• Carriers must provide other carriers with access to facilities for the purpose of enabling the other carriers to:
(a) provide competitive facilities and competitive carriage services; or
(b) establish their own facilities.
17 Access to supplementary facilities
(1) A carrier (the first carrier ) must, if requested to do so by another carrier (the second carrier ) give the second carrier access to facilities owned or operated by the first carrier.
(2) The first carrier is not required to comply with subclause (1) unless:
(a) the access is provided for the sole purpose of enabling the second carrier:
(i) to provide competitive facilities and competitive carriage services; or
(ii) to establish its own facilities; and
(b) the second carrier's request is reasonable; and
(c) the second carrier gives the first carrier reasonable notice that the second carrier requires the access; and
(d) in a case where the facilities do not consist of customer cabling or customer equipment--the facilities:
(i) were in place on 30 June 1991; or
(ii) were not in place on 30 June 1991, and were not obtained after that date by the first carrier solely by means of commercial negotiation.
(3) For the purposes of this clause, in determining whether the second carrier's request is reasonable, regard must be had to the question whether compliance with the request will promote the long‑term interests of end‑users of carriage services or of services supplied by means of carriage services. That question is to be determined in the same manner as it is determined for the purposes of Part XIC of the Trade Practices Act 1974 .
(4) Subclause (3) is intended to limit the matters to which regard may be had.
(5) A reference in this clause to a facility is a reference to:
(a) a facility as defined by section 7; or
(b) land on which a facility mentioned in paragraph (a) is located; or
(c) a building or structure on land referred to in paragraph (b); or
(d) customer equipment, or customer cabling, connected to a telecommunications network owned or operated by a carrier.
18 Terms and conditions of access
(1) The first carrier (within the meaning of clause 17) must comply with subclause 17(1) on such terms and conditions as are:
(a) agreed between the following parties:
(i) the first carrier;
(ii) the second carrier (within the meaning of that clause); or
(b) failing agreement, determined by an arbitrator appointed by the parties.
If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.
(2) The regulations may make provision for and in relation to the conduct of an arbitration under this clause.
(3) The regulations may provide that, for the purposes of a particular arbitration conducted by the ACCC under this clause, the ACCC may be constituted by a single member, or a specified number of members, of the ACCC. For each such arbitration, that member or those members are to be nominated in writing by the Chairperson of the ACCC.
(4) Subclause (3) does not, by implication, limit subclause (2).
(5) A determination made in an arbitration under this clause must not be inconsistent with a Ministerial pricing determination in force under clause 19.
19 Ministerial pricing determinations
(1) The Minister may make a written determination setting out principles dealing with price‑related terms and conditions relating to the obligations imposed by subclause 17(1). The determination is to be known as a Ministerial pricing determination .
(2) A determination under subclause (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(3) In this clause:
"price-related terms and conditions" means terms and conditions relating to price or a method of ascertaining price.
Part 4 -- Access to network information
The following is a simplified outline of this Part:
• Carriers must provide other carriers with access to certain information relating to the operation of telecommunications networks.
21 Access to network information
(1) This clause applies to a carrier (the first carrier ) if the first carrier supplies carriage services to another carrier (the second carrier ).
(2) The first carrier must, if requested to do so by the second carrier, provide the second carrier with reasonable access to:
(a) timely and detailed information from the first carrier's operations support systems; and
(b) timely and detailed traffic flow information.
(3) The first carrier is not required to comply with subclause (2) unless:
(a) a purpose of the access is to enable the second carrier to undertake planning, maintenance or reconfiguration of the second carrier's telecommunications network; and
(b) the second carrier's request is reasonable.
(4) If information is requested by the second carrier under subclause (2), the first carrier must make the information available to the second carrier as soon as practicable after the request is made.
(5) Clauses 22, 23, 24, 25 and 29 do not, by implication, limit this clause.
22 Access to information in databases
(1) This clause applies to a carrier (the first carrier ) if the first carrier supplies carriage services to another carrier (the second carrier ).
(2) The first carrier must, if requested to do so by the second carrier, provide the second carrier with reasonable access to timely and detailed information that:
(a) is contained in the first carrier's databases; and
(b) relates to the manner in which the first carrier's telecommunications network treats calls of a particular kind.
(3) The first carrier is not required to comply with subclause (2) unless:
(a) a purpose of the access is to enable the second carrier to undertake planning, maintenance or reconfiguration of the second carrier's telecommunications network; and
(b) the second carrier's request is reasonable.
(4) If information is requested by the second carrier under subclause (2), the first carrier must make the information available to the second carrier as soon as practicable after the request is made.
23 Access to network planning information
(1) This clause applies to a carrier (the first carrier ) if the first carrier supplies carriage services to another carrier (the second carrier ).
(2) The first carrier must, if requested to do so by the second carrier, provide the second carrier with timely and detailed telecommunications network planning information.
(3) The information is to include (but is not limited to) information relating to the following:
(a) the volume or characteristics of traffic being offered by the first carrier to a telecommunications network of the second carrier;
(b) the telecommunications network performance standards (if any) that have been set by the first carrier.
(4) The first carrier is not required to comply with subclause (2) unless:
(a) a purpose of the provision of the information is to enable the second carrier to undertake planning for its own telecommunications network; and
(b) the second carrier's request is reasonable.
(5) If information is requested by the second carrier under subclause (2), the first carrier must make the information available to the second carrier as soon as practicable after the request is made.
24 Access to information about likely changes to network facilities--completion success rate of calls
(1) This clause applies to a carrier (the first carrier ) if the first carrier supplies carriage services to another carrier (the second carrier ).
(2) The first carrier must, if requested to do so by the second carrier, provide the second carrier with timely and detailed information that:
(a) relates to likely changes to facilities on a telecommunications network of the first carrier; and
(b) will affect the completion success rate of calls offered by the second carrier.
(3) The first carrier is not required to comply with subclause (2) unless:
(a) a purpose of the provision of the information is to enable the second carrier to undertake planning for its own telecommunications network; and
(b) the second carrier's request is reasonable.
(4) If information is requested by the second carrier under subclause (2), the first carrier must make the information available to the second carrier as soon as practicable after the request is made.
25 Access to quality of service information etc.
(1) This clause applies to a carrier (the first carrier ) if the first carrier supplies carriage services to another carrier (the second carrier ).
(2) The first carrier must, if requested to do so by the second carrier, provide the second carrier with timely and detailed information relating to:
(a) conditions affecting the quality of service experienced by customers of the second carrier; and
(b) localisation of telecommunications network conditions affecting traffic offered by the second carrier to the first carrier's telecommunications network; and
(c) routing information allowing the second carrier to determine in which telecommunications network calls have failed; and
(d) identification of switching or other equipment or facilities in each of the first carrier's telecommunications networks which contribute to a level of uncompleted calls, affecting the second carrier's offered traffic, beyond the threshold agreed by the first carrier and the second carrier and consistent with terms used in the relevant ITU(T) Recommendations; and
(e) periodic summaries, in relation to the second carrier's traffic, of unsuccessful call ratios across the first carrier's telecommunications network, categorised by cause of call failure and including separate identification of telecommunications network difficulties and congestion; and
(f) telecommunications network control actions taken by the first carrier which would affect the completion success rate of calls offered to the first carrier by the second carrier; and
(g) such other matters (if any) as are specified in the regulations.
(3) The first carrier is not required to comply with subclause (2) unless the second carrier's request is reasonable.
(4) If information is requested by the second carrier under subclause (2), the first carrier must make the information available to the second carrier as soon as practicable after the request is made.
(5) In this clause:
"ITU(T) Recommendations" means the E500, E600 and E700 series of recommendations dealing with quality of service, telecommunications network management and traffic engineering promulgated by the International Telecommunication Union, being recommendations in force on:
(a) 1 July 1997; or
(b) such later date (if any) as is specified in the regulations.
(1) A carrier (the first carrier ) is not required to give another carrier (the second carrier ) information, or access to information, under clause 21, 22, 23, 24 or 25 unless the second carrier has in place security procedures:
(a) agreed between the first carrier and the second carrier; or
(b) failing agreement--determined in writing by the ACCC.
(2) For the purposes of subclause (1), security procedures are procedures designed to protect the confidentiality of information.
27 Terms and conditions of compliance
(1) The first carrier (within the meaning of clause 21, 22, 23, 24 or 25) must comply with a requirement imposed on the first carrier by that clause on such terms and conditions as are:
(a) agreed between the following parties:
(i) the first carrier;
(ii) the second carrier (within the meaning of that clause); or
(b) failing agreement, determined by an arbitrator appointed by the parties.
If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.
(2) The regulations may make provision for and in relation to the conduct of an arbitration under this clause.
(3) The regulations may provide that, for the purposes of a particular arbitration conducted by the ACCC under this clause, the ACCC may be constituted by a single member, or a specified number of members, of the ACCC. For each such arbitration, that member or those members are to be nominated in writing by the Chairperson of the ACCC.
(4) Subclause (3) does not, by implication, limit subclause (2).
(5) A determination made in an arbitration under this clause must not be inconsistent with a Ministerial pricing determination in force under clause 28.
27A Code relating to access to information
(1) The ACCC may, by written instrument, make a Code setting out conditions that are to be complied with in relation to the provision of information, or access to information, under clause 21, 22, 23, 24 or 25.
(2) A carrier must comply with the Code.
(3) This clause does not, by implication, limit a power conferred by or under this Act to make an instrument.
(4) This clause does not, by implication, limit the matters that may be dealt with by codes or standards referred to in Part 6.
(5) Subclauses (3) and (4) do not, by implication, limit subsection 33(3B) of the Acts Interpretation Act 1901 .
(6) An instrument under subclause (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .
28 Ministerial pricing determinations
(1) The Minister may make a written determination setting out principles dealing with price‑related terms and conditions relating to an obligation imposed by clause 21, 22, 23, 24 or 25. The determination is to be known as a Ministerial pricing determination .
(2) A determination under subclause (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(3) In this clause:
"price-related terms and conditions" means terms and conditions relating to price or a method of ascertaining price.
29 Consultation about reconfiguration etc.
(1) This clause applies to a carrier (the first carrier ) if the first carrier supplies carriage services to another carrier (the second carrier ).
(2) The first carrier must, if requested to do so by the second carrier, consult with the second carrier before modifying or reconfiguring the first carrier's telecommunications network.
(3) The first carrier is not required to comply with subclause (2) unless the modification or reconfiguration has a bearing on the second carrier's:
(a) telecommunications network planning activities; or
(b) telecommunications network maintenance activities; or
(c) telecommunications network reconfiguration activities.
(4) The first carrier must comply with the requirement set out in subclause (2) on such terms and conditions as are:
(a) agreed between the following parties:
(i) the first carrier;
(ii) the second carrier; or
(b) failing agreement, determined by an arbitrator appointed by the parties.
If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.
(5) The regulations may make provision for and in relation to the conduct of an arbitration under this clause.
(6) The regulations may provide that, for the purposes of a particular arbitration conducted by the ACCC under this clause, the ACCC may be constituted by a single member, or a specified number of members, of the ACCC. For each such arbitration, that member or those members are to be nominated in writing by the Chairperson of the ACCC.
(7) Subclause (6) does not, by implication, limit subclause (5).
29A Code relating to consultation
(1) The ACCC may, by written instrument, make a Code setting out conditions that are to be complied with in relation to consultations under clause 29.
(2) The Code may specify the manner and form in which a consultation is to occur.
(3) Subclause (2) does not, by implication, limit subclause (1).
(4) A carrier must comply with the Code.
(5) This clause does not, by implication, limit a power conferred by or under this Act to make an instrument.
(6) This clause does not, by implication, limit the matters that may be dealt with by codes or standards referred to in Part 6.
(7) Subclauses (5) and (6) do not, by implication, limit subsection 33(3B) of the Acts Interpretation Act 1901 .
(8) An instrument under subclause (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .
Part 5 -- Access to telecommunications transmission towers and to underground facilities
The following is a simplified outline of this Part:
• Carriers must provide other carriers with access to:
(a) telecommunications transmission towers; and
(b) the sites of telecommunications transmission towers; and
(c) underground facilities that are designed to hold lines.
In this Part:
"business day" means a day that is not a Saturday, a Sunday or a public holiday in the place concerned.
"eligible underground facility" means an underground facility that is used, installed ready to be used, or intended to be used, to hold lines.
"site" means:
(a) land; or
(b) a building on land; or
(c) a structure on land.
"telecommunications transmission tower" means:
(a) a tower; or
(b) a pole; or
(c) a mast; or
(d) a similar structure;
used to supply a carriage service by means of radiocommunications.
(1) For the purposes of this Part, giving access to a tower includes replacing the tower with another tower located on the same site and giving access to the replacement tower.
(2) For the purposes of this Part, giving access to a site on which is situated a tower includes replacing the tower with another tower located on the site.
33 Access to telecommunications transmission towers
(1) A carrier (the first carrier ) must, if requested to do so by another carrier (the second carrier ), give the second carrier access to a telecommunications transmission tower owned or operated by the first carrier.
(2) The first carrier is not required to comply with subclause (1) unless:
(a) the access is provided for the sole purpose of enabling the second carrier to install a facility used, or for use, in connection with the supply of a carriage service by means of radiocommunications; and
(b) the second carrier gives the first carrier reasonable notice that the second carrier requires the access.
(3) The first carrier is not required to comply with subclause (1) in relation to a particular telecommunications transmission tower if there is in force a written certificate issued by the ACMA stating that, in the ACMA's opinion, compliance with subclause (1) in relation to that tower is not technically feasible.
(4) In determining whether compliance with subclause (1) in relation to a tower is technically feasible, the ACMA must have regard to:
(a) whether compliance is likely to result in significant difficulties of a technical or engineering nature; and
(b) whether compliance is likely to result in a significant threat to the health or safety of persons who operate, or work on, the tower; and
(c) if compliance is likely to have a result referred to in paragraph (a) or (b)--whether there are practicable means of avoiding such a result, including (but not limited to):
(i) changing the configuration or operating parameters of a facility situated on the tower; and
(ii) making alterations to the tower; and
(d) such other matters (if any) as the ACMA considers relevant.
(5) If the ACMA receives a request to make a decision about the issue of a certificate under subclause (3), the ACMA must use its best endeavours to make that decision within 10 business days after the request was made.
34 Access to sites of telecommunications transmission towers
(1) A carrier (the first carrier ) must, if requested to do so by another carrier (the second carrier ), give the second carrier access to a site if:
(a) either:
(i) the site is owned, occupied or controlled by the first carrier; or
(ii) the first carrier has a right (whether conditional or unconditional) to use the site; and
(b) there is situated on the site a telecommunications transmission tower owned or operated by the first carrier.
(2) The first carrier is not required to comply with subclause (1) unless:
(a) the access is provided for the sole purpose of enabling the second carrier to install a facility used, or for use, in connection with the supply of a carriage service by means of radiocommunications; and
(b) the second carrier gives the first carrier reasonable notice that the second carrier requires the access.
(3) The first carrier is not required to comply with subclause (1) in relation to a particular site if there is in force a written certificate issued by the ACMA stating that, in the ACMA's opinion, compliance with subclause (1) in relation to that site is not technically feasible.
(4) In determining whether compliance with subclause (1) in relation to a site is technically feasible, the ACMA must have regard to:
(a) whether compliance is likely to result in significant difficulties of a technical or engineering nature; and
(b) whether compliance is likely to result in a significant threat to the health or safety of persons who operate, or work on, a facility situated on the site; and
(c) if compliance is likely to have a result referred to in paragraph (a) or (b)--whether there are practicable means of avoiding such a result, including (but not limited to):
(i) changing the configuration or operating parameters of a facility situated on the site; and
(ii) making alterations to a facility situated on the site; and
(d) such other matters (if any) as the ACMA considers relevant.
(5) If the ACMA receives a request to make a decision about the issue of a certificate under subclause (3), the ACMA must use its best endeavours to make that decision within 10 business days after the request was made.
35 Access to eligible underground facilities
(1) A carrier (the first carrier ) must, if requested to do so by another carrier (the second carrier ), give the second carrier access to an eligible underground facility owned or operated by the first carrier.
(2) The first carrier is not required to comply with subclause (1) unless:
(a) the access is provided for the sole purpose of enabling the second carrier to install a line used, or for use, in connection with the supply of a carriage service; and
(b) the second carrier gives the first carrier reasonable notice that the second carrier requires the access.
(3) The first carrier is not required to comply with subclause (1) in relation to a particular eligible underground facility if there is in force a written certificate issued by the ACMA stating that, in the ACMA's opinion, compliance with subclause (1) in relation to that facility is not technically feasible.
(4) In determining whether compliance with subclause (1) in relation to an eligible underground facility is technically feasible, the ACMA must have regard to:
(a) whether compliance is likely to result in significant difficulties of a technical or engineering nature; and
(b) whether compliance is likely to result in a significant threat to the health or safety of persons who operate, or work on, the eligible underground facility; and
(c) if compliance is likely to have a result referred to in paragraph (a) or (b)--whether there are practicable means of avoiding such a result, including (but not limited to):
(i) changing the configuration or operating parameters of the eligible underground facility; and
(ii) making alterations to the eligible underground facility; and
(d) such other matters (if any) as the ACMA considers relevant.
(5) If the ACMA receives a request to make a decision about the issue of a certificate under subclause (3), the ACMA must use its best endeavours to make that decision within 10 business days after the request was made.
36 Terms and conditions of access
(1) The first carrier (within the meaning of clause 33) must comply with subclause 33(1) on such terms and conditions as are:
(a) agreed between the following parties:
(i) the first carrier;
(ii) the second carrier (within the meaning of that clause); or
(b) failing agreement, determined by an arbitrator appointed by the parties.
If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.
(2) The first carrier (within the meaning of clause 34) must comply with subclause 34(1) on such terms and conditions as are:
(a) agreed between the following parties:
(i) the first carrier;
(ii) the second carrier (within the meaning of that clause); or
(b) failing agreement, determined by an arbitrator appointed by the parties.
If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.
(3) The first carrier (within the meaning of clause 35) must comply with subclause 35(1) on such terms and conditions as are:
(a) agreed between the following parties:
(i) the first carrier;
(ii) the second carrier (within the meaning of that clause); or
(b) failing agreement, determined by an arbitrator appointed by the parties.
If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.
(4) The regulations may make provision for and in relation to the conduct of an arbitration under this clause.
(5) The regulations may provide that, for the purposes of a particular arbitration conducted by the ACCC under this clause, the ACCC may be constituted by a single member, or a specified number of members, of the ACCC. For each such arbitration, that member or those members are to be nominated in writing by the Chairperson of the ACCC.
(6) Subclause (5) does not, by implication, limit subclause (4).
(1) The ACCC may, by written instrument, make a Code setting out conditions that are to be complied with in relation to the provision of access under this Part.
(2) A carrier must comply with the Code.
(3) This clause does not, by implication, limit a power conferred by or under this Act to make an instrument.
(4) This clause does not, by implication, limit the matters that may be dealt with by codes or standards referred to in Part 6.
(5) Subclauses (3) and (4) do not, by implication, limit subsection 33(3B) of the Acts Interpretation Act 1901 .
(6) An instrument under subclause (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .
38 Industry co‑operation about sharing of sites and eligible underground facilities
A carrier, in planning the provision of future carriage services, must co‑operate with other carriers to share sites and eligible underground facilities.
39 This Part does not limit Part 3 of this Schedule
This Part does not, by implication, limit Part 3 of this Schedule.
Part 6 -- Inspection of facilities etc.
The following is a simplified outline of this Part:
• Carriers must keep records about their designated overhead lines, telecommunications transmission towers and underground facilities.
• Carriers must inspect their facilities regularly.
• Carriers must investigate their facilities if there are reasonable grounds to suspect that the facilities are likely to endanger:
(a) the health or safety of persons; or
(b) property.
• Carriers must take any remedial action that is reasonably required following such an inspection or investigation.
41 Records relating to underground facilities
(1) If a carrier owns or operates designated overhead lines, the carrier must keep and maintain records of the kind and location of those lines.
(2) If a carrier owns or operates telecommunications transmission towers, the carrier must keep and maintain records of the kind and location of those towers.
(3) If a carrier owns or operates underground facilities, the carrier must keep and maintain records of:
(a) the kind and location of those facilities; and
(b) if any of those facilities is an eligible underground facility--the capacity of that facility to hold further lines.
(4) A carrier must not, in purported compliance with subclause (1), (2) or (3), make a record of any matter or thing in such a way that it does not correctly record the matter or thing.
(5) In this clause:
"designated overhead line" has the same meaning as in Schedule 3.
"eligible underground facility" means an underground facility that is used, installed ready to be used, or intended to be used, to hold lines.
"telecommunications transmission tower" means:
(a) a tower; or
(b) a pole; or
(c) a mast; or
(d) a similar structure;
used to supply a carriage service by means of radiocommunications.
42 Regular inspection of facilities
(1) If a facility is owned or operated by a carrier, the carrier must inspect that facility regularly.
(2) In determining the regularity of inspections required by subclause (1), regard must be had to good engineering practice.
43 Prompt investigation of dangerous facilities
If:
(a) a facility is owned or operated by a carrier; and
(b) the carrier has reasonable grounds to suspect that the condition of the facility is likely to endanger:
(i) the health or safety of persons; or
(ii) property;
the carrier must investigate promptly the condition of the facility.
(1) A carrier must take any remedial action that is reasonably required following an inspection under clause 42.
(2) A carrier must take any remedial action that is reasonably required following an investigation under clause 43.
(3) A carrier must comply with subclause (1) or (2) as soon as practicable after the carrier becomes aware of the need to take the remedial action concerned.
Part 7 -- Any‑to‑any connectivity
The following is a simplified outline of this Part:
• If a carriage service provider's telecommunications network is interconnected with a carrier's telecommunications network, the carrier must obtain a designated interconnection service from the carriage service provider for the purpose of ensuring any‑to‑any connectivity.
In this Part:
"active declared service" has the same meaning as in section 152AR of the Trade Practices Act 1974 .
"designated interconnection service" has the meaning given by clause 47.
"eligible service" has the same meaning as in section 152AL of the Trade Practices Act 1974 .
46 Carriers must obtain designated interconnection services from carriage service providers for the purpose of ensuring any‑to‑any connectivity
(1) If:
(a) a carrier owns, or supplies a carriage service over, a telecommunications network (the carrier's telecommunications network ); and
(b) a carriage service provider supplies a carriage service over a telecommunications network (the carriage service provider's telecommunications network ); and
(c) any of the following subparagraphs applies:
(i) the carriage service provider's telecommunications network is interconnected with the carrier's telecommunications network;
(ii) the carriage service provider's telecommunications network is to be interconnected with the carrier's telecommunications network;
(iii) the carriage service provider is seeking to have the carriage service provider's telecommunications network interconnected with the carrier's telecommunications network; and
(d) the carriage service provider requests the carrier to obtain from the carriage service provider a designated interconnection service for the purpose of ensuring that each end‑user who is:
(i) connected to the carrier's telecommunications network; and
(ii) supplied with a carriage service that involves communication between end‑users;
is able to communicate, by means of that carriage service, with an end‑user who is connected to the carriage service provider's telecommunications network;
the carrier must obtain the designated interconnection service from the carriage service provider.
(2) The designated interconnection service is to be obtained on such terms and conditions as are:
(a) agreed between the carrier and the carriage service provider; or
(b) failing agreement, determined by an arbitrator appointed by the parties.
If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.
(3) The regulations may make provision for and in relation to the conduct of an arbitration under this clause.
(4) The regulations may provide that, for the purposes of a particular arbitration conducted by the ACCC under this clause, the ACCC may be constituted by a single member, or a specified number of members, of the ACCC. For each such arbitration, that member or those members are to be nominated in writing by the Chairperson of the ACCC.
(5) Subclause (4) does not, by implication, limit subclause (3).
47 Designated interconnection services
(1) The Minister may, by written instrument, declare that a specified eligible service is a designated interconnection service for the purposes of this Part.
(2) A declaration under subclause (1) has effect accordingly.
(3) Before making a declaration under subclause (1) in relation to a service that is not an active declared service, the Minister must, by writing, request the ACCC to give a written report about whether the proposed declaration would promote the achievement of the objective of any‑to‑any connectivity (as defined by subsection 152AB(8) of the Trade Practices Act 1974 ).
(4) The ACCC must give the report to the Minister within 30 days after receiving the request.
(5) In deciding whether to make the declaration, the Minister must have regard to:
(a) the ACCC's report; and
(b) such other matters (if any) as the Minister considers relevant.
(6) A declaration under subclause (1) is a legislative instrument for the purposes of the Legislative Instruments Act 2003 .
Part 8 -- Operational separation of Telstra
Aim
(1) The aim of this Part is to promote the principles of transparency and equivalence in relation to the supply by Telstra of wholesale eligible services.
Objects
(2) The objects of this Part are as follows:
(a) to promote a principle of equivalence in relation to the supply by Telstra of designated services to:
(i) Telstra's wholesale customers; and
(ii) Telstra's retail business units;
(b) to require Telstra to maintain the following business units:
(i) one or more wholesale business units;
(ii) one or more retail business units;
(iii) one or more key network services business units;
(c) to promote a substantial degree of organisational and operational separation between:
(i) Telstra's wholesale business units (considered as a group); and
(ii) Telstra's retail business units (considered as a group); and
(iii) Telstra's key network services business units (considered as a group);
(d) to promote responsiveness by Telstra in meeting its wholesale customers' needs in relation to eligible services;
(e) to require Telstra to have a plan (to be known as the final operational separation plan ) to achieve the aim and other objects of this Part;
(f) to ensure that Telstra has systems, procedures and processes that promote and facilitate:
(i) compliance with the final operational separation plan; and
(ii) monitoring of, and reporting on, compliance with the plan; and
(iii) the development of performance measures relating to compliance with the plan; and
(iv) audit, and other checks, of compliance with the plan;
(g) to ensure that the achievement of:
(i) the aim of this Part; and
(ii) any of the above objects;
does not impair Telstra's ability to compete on a fair and efficient basis.
(3) In determining the principle of equivalence covered by paragraph (2)(a), regard must be had to:
(a) terms and conditions relating to price or a method of ascertaining price; and
(b) other terms and conditions.
(4) Subclause (3) does not limit the matters to which regard may be had.
(5) In determining, for the purposes of paragraph (2)(d), the needs of Telstra's wholesale customers in relation to eligible services, regard must be had to the following needs:
(a) the need for those customers to be supplied by Telstra with eligible services on a basis that allows fair competition with eligible services supplied by Telstra's retail business units;
(b) the need for disputes between those customers and Telstra about eligible services to be resolved in a fair and timely manner;
(c) the need for confidentiality in relation to eligible services supplied by Telstra to those customers;
(d) the need to be kept informed of relevant issues and developments in connection with:
(i) Telstra's network, in so far as it relates to the supply of eligible services; and
(ii) eligible services supplied by Telstra.
(6) Subclause (5) does not limit the matters to which regard may be had.
Note: See also subsection 61(2).
The following is a simplified outline of this Part:
• Telstra must prepare a draft operational separation plan. The plan must be directed towards the achievement of the aim and objects of this Part.
• A final operational separation plan is a draft operational separation plan that has been approved by the Minister.
• If Telstra has contravened, or is contravening, a final operational separation plan, the Minister may require Telstra to prepare a draft rectification plan.
• A final rectification plan is a draft rectification plan that has been approved by the Minister.
• If a final rectification plan is in force, Telstra must comply with the plan.
In this Part:
"business unit" means a part of Telstra.
"declared network service" has the meaning given by clause 50B.
"designated service" has the meaning given by clause 50A.
"draft operational separation plan" means a draft operational separation plan under Division 2.
"draft rectification plan" means a draft rectification plan under Division 3.
"eligible service" has the same meaning as in section 152AL of the Trade Practices Act 1974 .
"final operational separation plan" means a final operational separation plan under Division 2.
"final rectification plan" means a final rectification plan under Division 3.
"key network services business unit" means a business unit of Telstra that supplies the following in relation to eligible services:
(a) fault detection, handling and rectification;
(b) service activation and provisioning;
(c) a declared network service.
"retail business unit" means a business unit by which Telstra deals with its retail customers.
"supply" , in relation to a service, includes supply by Telstra of the service to itself.
"wholesale business unit" means a business unit by which Telstra deals with its wholesale customers.
(1) For the purposes of this Part, a designated service is an eligible service specified in a written determination made by the Minister under this subclause.
(2) The Minister must not make a determination under subclause (1) that specifies a service that is not an active declared service (within the meaning of section 152AR of the Trade Practices Act 1974 ) unless:
(a) the determination is the first determination made under subclause (1); or
(b) Telstra has given written consent to the making of the determination.
(3) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a power conferred on the Minister by subclause (1), but it applies with the change set out in subclause (4).
(4) The Minister must not vary a determination under subclause (1) so as to specify a service that is not an active declared service (within the meaning of section 152AR of the Trade Practices Act 1974 ) unless Telstra has given written consent to the variation of the determination.
(5) Before making a determination under subclause (1), the Minister must consult Telstra.
(6) A determination under subclause (1) is a legislative instrument for the purposes of the Legislative Instruments Act 2003 .
(1) For the purposes of this Part, a declared network service is a service specified in a written determination made by the Minister under this subclause.
(2) A determination under subclause (1) is a legislative instrument for the purposes of the Legislative Instruments Act 2003 .
For the purposes of this Part:
(a) a notional contract (however described) between any of Telstra's business units is to be treated as if it were an actual contract; and
(b) any terms and conditions (whether or not relating to price or a method of ascertaining price) in such a notional contract are to be treated as if they were actual terms and conditions.
Division 2 -- Operational separation plan
51 Contents of draft or final operational separation plan
(1) A draft or final operational separation plan must:
(a) be directed towards the achievement of the aim and objects of this Part; and
(b) contain provisions requiring Telstra:
(i) within a specified period after the end of each financial year, to prepare a report about the extent to which Telstra complied with the plan during that year; and
(ii) to give the report to the Minister; and
(iii) to make a copy of the report, or extracts from the report, available on Telstra's Internet site; and
(c) contain provisions requiring Telstra:
(i) within a specified period after the end of each financial year, to arrange for an independent audit of the extent to which Telstra complied with the plan during that year, and to obtain a report of that independent audit; and
(ii) to give the report to the Minister; and
(iii) to make a copy of the report, or extracts from the report, available on Telstra's Internet site; and
(d) comply with such requirements (if any) as are specified in a written determination made by the Minister under this paragraph.
(2) A paragraph (1)(d) requirement may deal with the manner in which a paragraph (1)(b) or (c) requirement is to be met. This subclause does not limit paragraph (1)(d).
(3) A draft or final operational separation plan may make provision for, or in relation to, a matter by empowering the Minister, the ACCC or the ACMA to make decisions of an administrative character.
(4) A determination under paragraph (1)(d) is a legislative instrument for the purposes of the Legislative Instruments Act 2003 .
Note: A final operational separation plan is a draft operational separation plan that has been approved by the Minister--see clause 55.
52 Draft operational separation plan to be given to Minister
Telstra must give the Minister a draft operational separation plan within 90 days after the commencement of this clause.
53 Public comment--draft operational separation plan
(1) Before giving the Minister a draft operational separation plan under clause 52, Telstra must:
(a) cause to be published in a newspaper circulating generally in each State, the Australian Capital Territory and the Northern Territory a notice:
(i) stating that Telstra has prepared a preliminary version of the draft plan; and
(ii) stating that a copy of the preliminary version will be available on Telstra's Internet site throughout the period of 30 days after the publication of the notice; and
(iii) inviting persons to give written comments about the preliminary version to Telstra within 30 days after the publication of the notice; and
(b) make a copy of the preliminary version available on Telstra's Internet site in accordance with the notice.
(2) If persons have given written comments about the preliminary version in accordance with the notice, Telstra must ensure that the draft plan given to the Minister is accompanied by a copy of those comments.
54 Approval of draft by Minister
(1) This clause applies if Telstra gives the Minister a draft operational separation plan.
(2) The Minister must:
(a) approve the plan; or
(b) refuse to approve the plan.
(3) In deciding whether to approve the plan, the Minister must have regard to the following matters:
(a) the extent to which the plan is likely to achieve the aim and objects of this Part; and
(b) such other matters (if any) as are specified in a written determination made by the Minister under this paragraph.
(4) Subclause (3) does not limit the matters to which the Minister may have regard.
(5) If the Minister neither approves, nor refuses to approve, the plan before the end of the period of 90 days after the day on which the Minister received the draft plan, the Minister is taken, at the end of that period, to have approved the plan under subclause (2).
(6) As soon as practicable after deciding whether to approve the plan, the Minister must notify Telstra in writing of the decision.
(7) If the Minister refuses to approve the plan, the Minister must notify Telstra in writing of the Minister's reasons for the refusal.
(8) If the Minister refuses to approve the plan, the Minister may, by written notice given to Telstra, direct Telstra to:
(a) vary the draft plan in accordance with the direction; and
(b) give the varied draft plan to the Minister under subclause (1).
Telstra must give the varied draft plan to the Minister within 60 days after the day on which the direction was given.
(9) A determination under paragraph (3)(b) is a legislative instrument for the purposes of the Legislative Instruments Act 2003 .
(10) A direction under subclause (8) is a legislative instrument for the purposes of the Legislative Instruments Act 2003 .
(1) If the Minister approves a draft operational separation plan, the plan becomes a final operational separation plan. The final operational separation plan comes into force at the time when Telstra is notified of the approval.
(2) A final operational separation plan is not a legislative instrument for the purposes of the Legislative Instruments Act 2003 .
(3) Compliance with a final operational separation plan is not a condition of Telstra's carrier licence.
56 Variation of final operational separation plan
(1) This clause applies if:
(a) a final operational separation plan is in force; and
(b) Telstra gives the Minister a draft variation of the plan.
(2) The Minister must:
(a) approve the variation; or
(b) refuse to approve the variation.
(3) In deciding whether to approve the variation, the Minister must have regard to the following matters:
(a) the extent to which the final operational separation plan, as proposed to be varied, is likely to achieve the aim and objects of this Part; and
(b) such other matters (if any) as are specified in a written determination made by the Minister under this paragraph.
(4) Subclause (3) does not limit the matters to which the Minister may have regard.
(5) If the Minister neither approves, nor refuses to approve, the variation before the end of the period of 90 days after the day on which the Minister received the draft variation, the Minister is taken, at the end of that period, to have approved the variation under subclause (2).
(6) As soon as practicable after deciding whether to approve the variation, the Minister must notify Telstra in writing of the decision.
(7) If the Minister refuses to approve the variation, the Minister must notify Telstra in writing of the Minister's reasons for the refusal.
(8) If the Minister approves the variation, the plan is varied accordingly.
(9) A determination under paragraph (3)(b) is a legislative instrument for the purposes of the Legislative Instruments Act 2003 .
(10) A variation of a final operational separation plan is not a legislative instrument for the purposes of the Legislative Instruments Act 2003 .
56A Minister may direct Telstra to vary final operational separation plan
(1) This clause applies if a final operational separation plan is in force.
(2) The Minister may, by written notice given to Telstra, direct Telstra to:
(a) prepare a draft variation of the plan in accordance with the direction; and
(b) give the draft variation to the Minister under subclause 56(1).
Telstra must give the draft variation to the Minister within 60 days after the day on which the direction was given.
(3) A direction under this clause is a legislative instrument for the purposes of the Legislative Instruments Act 2003 .
57 Public comment--variation of final operational separation plan
(1) This clause applies to a draft variation of a final operational separation plan unless:
(a) the draft variation was given to the Minister as a result of a direction under subclause 56A(2); or
(b) both:
(i) Telstra had previously given the Minister a written outline of the draft variation; and
(ii) the Minister, by written notice given to Telstra, had informed Telstra that the Minister was satisfied that the draft variation was of a minor nature.
(2) Before giving the Minister a draft variation of a final operational separation plan under subclause 56(1), Telstra must:
(a) cause to be published in a newspaper circulating generally in each State, the Australian Capital Territory and the Northern Territory a notice:
(i) stating that Telstra has prepared a preliminary version of the draft variation; and
(ii) stating that a copy of the preliminary version will be available on Telstra's Internet site throughout the period of 20 days after the publication of the notice; and
(iii) inviting persons to give written comments about the preliminary version to Telstra within 20 days after the publication of the notice; and
(b) make a copy of the preliminary version available on Telstra's Internet site in accordance with the notice.
(3) If persons have given written comments about the preliminary version in accordance with the notice, Telstra must ensure that the draft variation given to the Minister is accompanied by a copy of those comments.
(4) A notice under subparagraph (1)(b)(ii) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003 .
58 Publication of final operational separation plan
(1) As soon as practicable after a final operational separation plan comes into force, Telstra must make a copy of the plan available on Telstra's Internet site.
(2) As soon as practicable after a variation of a final operational separation plan comes into force, Telstra must make a copy of the varied final operational separation plan available on Telstra's Internet site.
Division 3 -- Rectification plan
59 Contents of draft or final rectification plan
(1) The following matters must be set out in each draft or final rectification plan that relates to a contravention of a final operational separation plan:
(a) the action to be taken by Telstra to ensure that the contravention ceases;
(b) the action to be taken by Telstra directed towards ensuring that there is no repetition of the contravention in the future;
(c) the action to be taken by Telstra by way of reporting to the Minister on any action taken by it as mentioned in paragraph (a) or (b).
Note: A final rectification plan is a draft rectification plan that has been approved by the Minister--see clause 62.
(2) A draft or final rectification plan may make provision for, or in relation to, a matter by empowering the Minister, the ACCC or the ACMA to make decisions of an administrative character.
60 Draft rectification plan to be given to Minister
(1) This clause applies if Telstra has contravened, or is contravening, a final operational separation plan.
(2) The Minister may give Telstra a written direction requiring Telstra to give the Minister a draft rectification plan that relates to that contravention.
(3) Telstra must comply with the direction within 90 days after the day on which the direction was given.
(4) A direction under this clause is a legislative instrument for the purposes of the Legislative Instruments Act 2003 .
61 Approval of draft by Minister
(1) This clause applies if Telstra gives the Minister a draft rectification plan that relates to a particular contravention.
(2) The Minister must:
(a) approve the plan; or
(b) refuse to approve the plan.
(3) In deciding whether to approve the plan, the Minister must have regard to the following matters:
(a) the extent to which the action proposed to be taken by Telstra is likely to ensure that:
(i) the contravention ceases; and
(ii) there is no repetition of the contravention in the future;
(b) such other matters (if any) as are specified in a written determination made by the Minister under this paragraph.
(4) Subclause (3) does not limit the matters to which the Minister may have regard.
(5) If the Minister neither approves, nor refuses to approve, the plan before the end of the period of 90 days after the day on which the Minister received the draft plan, the Minister is taken, at the end of that period, to have approved the plan under subclause (2).
(6) As soon as practicable after deciding whether to approve the plan, the Minister must notify Telstra in writing of the decision.
(7) If the Minister refuses to approve the plan, the Minister must notify Telstra in writing of the Minister's reasons for the refusal.
(8) If the Minister refuses to approve the plan, the Minister may, by written notice given to Telstra, direct Telstra to:
(a) vary the draft plan in accordance with the direction; and
(b) give the varied draft plan to the Minister under subclause (1).
Telstra must give the varied draft plan to the Minister within 60 days after the day on which the direction was given.
(9) A determination under paragraph (3)(b) is a legislative instrument for the purposes of the Legislative Instruments Act 2003 .
(10) A direction under subclause (8) is a legislative instrument for the purposes of the Legislative Instruments Act 2003 .
(1) If the Minister approves a draft rectification plan, the plan becomes a final rectification plan. The final rectification plan comes into force at the time when Telstra is notified of the approval.
(2) A final rectification plan is not a legislative instrument for the purposes of the Legislative Instruments Act 2003 .
63 Variation of final rectification plan
(1) This clause applies if:
(a) a final rectification plan is in force; and
(b) the plan relates to a particular contravention; and
(c) Telstra gives the Minister a draft variation of the plan.
(2) The Minister must:
(a) approve the variation; or
(b) refuse to approve the variation.
(3) In deciding whether to approve the variation, the Minister must have regard to the following matters:
(a) the extent to which the action proposed to be taken by Telstra under the plan as proposed to be varied will be likely to ensure that:
(i) the contravention ceases; and
(ii) there is no repetition of the contravention in the future;
(b) such other matters (if any) as are specified in a written determination made by the Minister under this paragraph.
(4) Subclause (3) does not limit the matters to which the Minister may have regard.
(5) If the Minister neither approves, nor refuses to approve, the variation before the end of the period of 90 days after the day on which the Minister received the draft variation, the Minister is taken, at the end of that period, to have approved the variation under subclause (2).
(6) As soon as practicable after deciding whether to approve the variation, the Minister must notify Telstra in writing of the decision.
(7) If the Minister refuses to approve the variation, the Minister must notify Telstra in writing of the Minister's reasons for the refusal.
(8) If the Minister approves the variation, the plan is varied accordingly.
(9) A determination under paragraph (3)(b) is a legislative instrument for the purposes of the Legislative Instruments Act 2003 .
(10) A variation of a final rectification plan is not a legislative instrument for the purposes of the Legislative Instruments Act 2003 .
64 Minister may direct Telstra to vary final rectification plan
(1) This clause applies if a final rectification plan is in force.
(2) The Minister may, by written notice given to Telstra, direct Telstra to:
(a) prepare a draft variation of the plan in accordance with the direction; and
(b) give the draft variation to the Minister under subclause 63(1).
The draft variation must be given to the Minister within 60 days after the day on which the direction was given.
(3) A direction under this clause is a legislative instrument for the purposes of the Legislative Instruments Act 2003 .
65 Compliance with final rectification plan
If a final rectification plan is in force, Telstra must comply with the plan.
66 Publication of final rectification plan
(1) As soon as practicable after a final rectification plan comes into force, Telstra must make a copy of the plan available on Telstra's Internet site.
(2) As soon as practicable after a variation of a final rectification plan comes into force, Telstra must make a copy of the varied final rectification plan available on Telstra's Internet site.
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